North Sea Continental Shelf cases

Germany v Denmark and the Netherlands [1969] ICJ 1 (also known as The North Sea Continental Shelf cases) were a series of disputes that came to the International Court of Justice in 1969. They involved agreements among Denmark, Germany, and the Netherlands regarding the "delimitation" of areas—rich in oil and gas—of the continental shelf in the North Sea.[1]

North Sea Continental Shelf
International Court of Justice Seal.svg
CourtInternational Court of Justice
Full case nameNorth Sea Continental Shelf (Federal Republic of Germany/Netherlands)
DecidedFebruary 20, 1969 (1969-02-20)
Case opinions
Declaration attached to Judgment: Muhammad Zafrulla Khan

Declaration attached to Judgment: César Bengzon
Separate Opinion: Philip Jessup
Separate Opinion: President José Bustamante y Rivero
Separate Opinion: Luis Padilla Nervo
Separate Opinion: Fouad Ammoun
Dissenting Opinion: Vice President Vladimir Koretsky
Dissenting Opinion: Kōtarō Tanaka
Dissenting Opinion: Gaetano Morelli
Dissenting Opinion: Manfred Lachs

Dissenting Opinion: Max Sørensen (ad hoc for The Netherlands)
Court membership
Judges sittingJosé Bustamante y Rivero (President)
Vladimir Koretsky (Vice President)
Sir Gerald Fitzmaurice
Kōtarō Tanaka
Philip Jessup
Gaetano Morelli
Muhammad Zafrulla Khan
Luis Padilla Nervo
Isaac Forster
Andre Gros
Fouad Ammoun
César Bengzon
Petrén Sture Petrén
Manfred Lachs
Mosler (ad hoc for Germany)
Max Sørensen (ad hoc for The Netherlands)

Case contextEdit

 
Exclusive economic zones (EEZs) of the North Sea

Germany's North Sea coast is concave, while the Netherlands' and Denmark's coasts are convex. If the delimitation had been determined by the equidistance rule ("drawing a line each point of which is equally distant from each shore"), Germany would have received a smaller portion of the resource-rich shelf relative to the two other states. Thus Germany argued that the length of the coastlines be used to determine the delimitation.[2] Germany wanted the ICJ to apportion the Continental Shelf to the proportion of the size of the state's adjacent land, which Germany found to be 'a just and equitable share', and not by the rule of equidistance.

Relevant is that Denmark and The Netherlands, having ratified the 1958 Geneva Continental Shelf Convention, whereas the Federal Republic of Germany did not, wished that Article 6, p. 2 (equidistance principle) were to be applied.

Article 6

  1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
  2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
  3. In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.

JudgmentEdit

An important question the Court answered was if the equidistance principle was, at the date of the ruling, a customary international law binding on all States. The Court argued that it is indeed possible for Conventions, while only contractual in origin, to pass into the corpus of international law, and thus become binding for countries which have never become parties to the Convention.[3] However, the Court noted that 'this result is not lightly to be regarded as having been attained' (para 71). For the aforegoing to happen, it would first be necessary that the provision should be of a fundamentally norm creating character, i.e. a general rule of law. In case, the obligation of the equidistance method came second, after the primary obligation to effect delimitation by agreement. The court decides this is an unusual preface for it to be a general rule of law. Furthermore, the Court took in notion that the scope and meaning relating to the equidistance as embodied in Article 6 remained unclear.[3] In para 74, the Court argues that while the passage of any considerable period of time is not a requirement, it is an indispensable requirement that within the period in question State practice should have been both extensive and virtually uniform in the sense of the provision invoked.

Moreover, as stated in para 77, the practice must also, as a subjective element, stem from a notion of opinio juris sive necessitatis. In other words, the States concerned must feel they are conforming to what amounts to a legal obligation.

The Court ultimately urged the parties to "abat[e] the effects of an incidental special feature [Germany's concave coast] from which an unjustifiable difference of treatment could result." In subsequent negotiations, the states granted to Germany most of the additional shelf it sought.[4] The cases are viewed as an example of "equity praeter legem"—that is, equity "beyond the law"—when a judge supplements the law with equitable rules necessary to decide the case at hand.[5]

See alsoEdit

NotesEdit

  1. ^ "Latest developments | North Sea Continental Shelf (Federal Republic of Germany/Netherlands) | International Court of Justice". www.icj-cij.org. Retrieved 2022-05-30.
  2. ^ Janis, Mark W., An Introduction to International Law, 4th ed. (New York: Aspen, 2003), 73.
  3. ^ a b Refugees, United Nations High Commissioner for. "Refworld | Analysis of North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands)". Refworld. Retrieved 2022-05-30.
  4. ^ 1969 I.C.J. Reports 4, 50.
  5. ^ Janis, Introduction, 70.