North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands)

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Citation. I.C.J. 1969 I.C.J. 3

Brief Fact Summary. The view that customary rules of international law determined the boundaries of areas located on the continental shelf between their countries and the Federal Republic of Germany (D) was contended by Denmark (P) and the Netherlands (P).

Synopsis of Rule of Law. For a custom to become binding as international law, it must amount to a settled practice and must be rendered obligatory by a rule requiring it.

Facts. That the boundaries between their respective areas of the continental shelf in the North Sea and the area claimed by the Federal Republic of Germany (D), should be determined by the application of the principle of equidistance as set forth in Article 6 of the Geneva Convention of 1958 on the Continental Shelf, which by January 1, 1969 had been ratified or acceded to by 39 states but to which Germany was not a party, was the basis of Denmark’s (D) and the Netherland’s (P) contention.
Because the use of the delimitation method was not merely a conventional obligation, but a rule that was part of the corpus of general international law and like other rules of general or customary international law, which was binding automatically on Germany (D), independent of any specific assent, direct or indirect, given by Germany (D), Denmark (P) and the Netherland’s (P) contended that Germany (D) was bound to accept the delimitation on an equidistance basis.

Issue. Must delimitation be the object of an equitable agreement between the states involved?

Held. Yes. Delimitation must be the object of an equitable agreement between the states involved. As stipulated in Article 6 of the Geneva Convention, equidistance principle is not part of customary international law. Article 6 makes the obligation to use the equidistance method a secondary one which comes into play only when agreements between the parties are absent. Although the principle of equidistance is not given a fundamental norm-creating character by Article 6, which is necessary to the formation of a general rule of law.
In this case, after taking into consideration all relevant circumstances, the delimitation here is to be excused by equitable agreement.

Dissent. (Lachs, J.) not only the states who are parties to the Convention on the Continental Shelf have accepted the principles and rules enshrined in the Convention including the equidistance rule, but by other states who that have subsequently followed it in agreements, or in their legislation, or have acquiesced in it when faced with legislative acts of other affecting them. This can be seen as evidence of a practice widespread enough to satisfy the criteria for a general rule of law.

Discussion. The concept of opinion juris analyzed by the dissent is in consonance with the position taken by some legal scholars who maintain that opinio juris may be presumed from uniformities of practice regarding matters viewed normally as involving legal rights and obligations. A contrary position maintains that the practice of states must be accompanied by or consist of statements that something is law before it can become law