Assignment international treaty law north sea continental shelf, f r germany v denmark, f r germany v netherlands, icj report, 1969

The Parties asked the Court to state the principles and rules ofinternational law applicable, and undertook thereafter to carry out the delimitions The Court rejected the contention that

DIPLOMATIC ACADEMY OF VIETNAM

FACULTY OF INTERNATIONAL LAW

ASSIGNMENT INTERNATIONAL TREATY LAW

Members : Tran Khanh Ly

Rufino Aybar Carmona

Le Thi Minh Trang

I Overview of the case

These cases concerned the delimitation of the continental shelf of the NorthSea as between Denmark and the Federal Republic of Germany, and as between theNetherlands and the Federal Republic, and were submitted to the Court by SpecialAgreement The Parties asked the Court to state the principles and rules ofinternational law applicable, and undertook thereafter to carry out the delimitions

The Court rejected the contention that the delimitations in question had to becarried out in accordance with the principle of equidistance as defined in the 1958Geneva Convention on the Continental Shelf The Court took account of the factthat the Federal Republic had not ratified that Convention, and held that theequidistance principle was not inherent in the basic concept of continental shelfrights, and that this principle was not a rule of customary international law

II Facts of the case

Netherlands and Denmark had drawn partial boundary lines based on theequidistance principle (A-B and C-D) An agreement on further prolongation of theboundary proved difficult because Denmark and Netherlands wanted thisprolongation to take place based on the equidistance principle (B-E and D-E)where as Germany was of the view that, together, these two boundaries wouldproduce an inequitable result for her Germany stated that due to its concavecoastline, such a line would result in her losing out on her share of the continentalshelf based on proportionality to the length of its North Sea coastline The Courthad to decide the principles and rules of international law applicable to thisdelimitation In doing so, the Court had to decide if the principles espoused by the

parties were binding on the parties either through treaty law or customaryinternational law.

III Questions before the Court

Is Germany under a legal obligation to accept the equidistance-specialcircumstances principle, contained in Article 6 of the Geneva Convention on theContinental Shelf of 1958, either as a customary international law rule or on thebasis of the Geneva Convention?

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.

IV Arguments presented by the parties

Denmark and the Netherlands argued that the method of equidistance should

be implemented This is that each State claimed all areas that are closer to itselfthan any other state They claimed that the Geneva Convention supported thismethod Moreover, it was alleged to have been an a priori rule of law, a rule ofcustomary international law, and a general rule of conventional practicality Germany, who had not ratified the Geneva Convention, claimed that the rule

of equidistance was unfair The State also argued for an apportionment of the shelfthat was proportional to the size of each state’s adjacent land

V Relevant Findings of the Court:

1 Nature of the treaty obligation: Is the 1958 Geneva Convention, and inparticular Article 6, binding on Germany?

a Article 6 of the Geneva Convention stated that unless the parties hadalready agreed on a method for delimitation or unless specialcircumstances exist, the equidistance method would apply Germany hadsigned, but not ratified, the Geneva Convention, while Netherlands andDenmark were parties to the Convention The latter two States argued thatwhile Germany is not a party to the Convention (not having ratified it), itwas still bound by Article 6 of the Convention because:

“…(1) by conduct, by public statements and proclamations, and in otherways, the Republic has unilaterally assumed the obligations of theConvention; or has manifested its acceptance of the conventional regime;

or has recognized it as being generally applicable to the delimitation ofcontinental shelf areas…(2) the Federal Republic had held itself out as soassuming, accepting or recognizing, in such a manner as to cause otherStates, and in particular Denmark and the Netherlands, to rely on theattitude thus taken up” (the latter is called the principle of estoppel) (As it

is most commonly described, estoppel is a rule of international law thatbars a party from going back on its previous representations when thoserepresentations have induced reliance or some detriment on the part ofothers.)

b The Court rejected the first argument It said that only a ‘very definite

very consistent course of conduct on the part of a State would allow theCourt to presume that the State had somehow become bound by a treaty(by a means other than in the formal manner: i.e ratification) when theState was ‘at all times fully able and entitled to…’ accept the treatycommitments in a formal manner The Court held that Germany had notunilaterally assumed obligations under the Convention The court alsotook notice of the fact that even if Germany ratified the treaty, she had theoption of entering into a reservation on Article 6, following which thatparticular article would no longer be applicable to Germany (in otherwords, even if one were to assume that Germany had intended to become

a party to the Convention, it does not presuppose that it would have alsoundertaken those obligations contained in Article 6)

c The Vienna Convention on the Law of Treaties of 1969 (VCLT), whichcame into force in 1980, discusses in more detail treaty obligations ofthird States (those States who are not parties to the treaty) It clearlystipulates that obligations arise for third States from a provision of atreaty only if (1) the actual parties to the treaty intended the provision tocreate obligations for third States; and (2) third State expressly acceptthose obligations in writing (Article 35 of the VCLT) The VCLT was not

in force when the Court deliberated on this case However, as seen above,the Court’s position is consistent the VCLT (See the relevant provisions

of the Vienna Convention on the Law of Treaties)

d The Court held that the existence of a situation of estoppel would haveallowed Article 6 to become binding on Germany – but held thatGermany’s action did not support an argument for estoppel The Courtalso held that the mere fact that Germany may not have specificallyobjected to the equidistance principle as contained in Article 6, is notsufficient to state that the principle is now binding upon it

e In conclusion, the Court held that Germany had not acted in any manner

so as to incur obligations contained in Article 6 of the Geneva

Convention The equidistance–special circumstances rule was not binding

on Germany by way of treaty law

2 Nature of the customary international law obligation: Is Germany bound bythe provisions of Article 6 of the Geneva Convention in so far as theyreflect customary international law?

Netherlands and Denmark argued that Article 6 also reflected ‘the acceptedrule of general international law on the subject of continental shelf delimitation’and that it existed independently of the Convention Therefore, they argued,Germany is bound by the subject matter of Article 6 by way of customaryinternational law

To decide if the equidistance principle bound Germany by way of customaryinternational law, the Court examined (1) the status of the principle contained inArticle 6 as it stood when the Convention was being drawn up; and (2) its statusafter the Convention came into force

a What was the customary law status of Article 6 at the time of drafting theConvention?

❖ The Court held that the principle of equidistance, as contained in Article

6 did not form a part of existing or emerging customary internationallaw at the time of drafting the Convention The Court supported thisfinding based on (1) the hesitation expressed by the drafters of theConvention, the International Law Commission, on the inclusion ofArticle 6 into the Convention and (2) the fact that reservations to Article

6 was permissible under the Convention The Court held: “… Article 6 isone of those in respect of which, under the reservations article of theConvention (Article 12) reservations may be made by any State onsigning, ratifying or acceding, – for speaking generally, it is acharacteristic of purely conventional rules and obligations that, in regard

to them, some faculty of making unilateral reservations may, withincertain limits, be admitted; whereas this cannot be so in the case ofgeneral or customary law rules and obligations which, by their very

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nature, must have equal force for all members of the internationalcommunity, and cannot therefore be the subject of any right of unilateralexclusion exercisable at will by any one of them in its own favor… Thenormal inference would therefore be that any articles that do not figureamong those excluded from the faculty of reservation under Article 12,were not regarded as declaratory of previously existing or emergentrules of law …” (see para 65 for a counter argument and the Court’scareful differentiation)

b Did the provisions in Article 6 on the equidistance principle attain thecustomary law status after the Convention came into force?

The Court then examined whether the rule contained in Article 6 hadbecome customary international law after the Convention entered intoforce – either due the Convention itself (i.e., if enough States hadratified the Convention in a manner so as to fulfil the criteria specifiedbelow), or because of subsequent State practice (i.e even if an adequatenumber of States had not ratified the Convention, one could findsufficient State practice to meet the criteria below) The Court held thatArticle 6 of the Convention had not attained a customary law status.(Compare the 1958 Geneva Convention with the four GenevaConventions on 1949 relating to international humanitarian law in terms

of the latter’s authority as a pronouncement of customary internationallaw)

For a customary rule to emerge the Court held that it needed: (1) verywidespread and representative participation in the Convention, includingStates whose interests were specially affected (in this case, they werecoastal States) (i.e generality); and (2) virtually uniform practice (i.e.consistent and uniform usage) undertaken in a manner that demonstrates(3) a general recognition of the rule of law or legal obligation (i.e opiniojuries) In the North Sea Continental Shelf cases the court held that thepassage of a considerable period of time was unnecessary (i.e duration)

for the formation of a customary law.

Widespread and representative participation

The Court held that the first criteria was not met The number ofratifications and accessions to the Convention (39 States) were notadequately representative or widespread

Duration

The Court held that the duration taken for a customary law rule toemerge is not as important as widespread and representativeparticipation, uniform usage, and the existence of an opinio juris It heldthat: “Although the passage of only a short period of time (in this case, 3– 5 years) is not necessarily, or of itself, a bar to the formation of a newrule of customary international law on the basis of what was originally apurely conventional rule, an indispensable requirement would be thatwithin the period in question, short though it might be, State practice,including that of States whose interests are specially affected, shouldhave been both extensive and virtually uniform in the sense of theprovision invoked and should moreover have occurred in such a way as

to show a general recognition that a rule of law or legal obligation isinvolved.”

Opinio juris

Opinio juris is reflected in acts of States (Nicaragua Case) or inomissions (Lotus case), in so far as those acts or omissions were donefollowing a belief that the said State is obligated by law to act or refrainfrom acting in a particular way

The Court examined 15 cases where States had delimited theirboundaries using the equidistance method, after the Convention cameinto force (paras 75 -77) The Court concluded that even if there weresome State practice in favour of the equidistance principle, the Courtcould not deduct the necessary opinio juris from this State practice TheNorth Sea Continental Shelf Cases confirmed that both State practice

(the objective element) and opinio juris (the subjective element) areessential pre-requisites for the formation of a customary law rule This isconsistent with Article 38 (1) (b) of the Statute of the ICJ The Courtexplained the concept of opinio juris and the difference between customs(i.e habits) and customary law: “Not only must the acts concernedamount to a settled practice, but they must also be such, or be carried out

in such a way, as to be evidence of a belief that this practice is renderedobligatory by the existence of a rule of law requiring it The need forsuch a belief, i.e, the existence of a subjective element, is implicit in thevery notion of the opinio juris sive necessitatis The States concernedmust therefore feel that they are conforming to what amounts to a legalobligation The frequency, or even habitual character of the acts is not initself enough There are many international acts, e.g., in the field ofceremonial and protocol, which are performed almost invariably, butwhich are motivated only by considerations of courtesy, convenience ortradition, and not by any sense of legal duty.” (Para 77)

The Court concluded that the equidistance principle was not binding onGermany by way of treaty or customary international law In the case ofthe latter, the principle had not attained a customary international lawstatus at the time of the entry into force of the Geneva Convention orthereafter As such, the Court held that the use of the equidistancemethod is not obligatory for the delimitation of the areas concerned inthe present proceedings

VI Meaning of the CIL

The Court found in each case that the use of the equidistance method ofdelimitation was not obligatory as between the Parties; that no other singlemethod of delimitation was in all circumstances obligatory; that delimitationwas to be affected by agreement in accordance with equitable principles andtaking account of all relevant circumstances, in such a way as to leave asmuch as possible to each Party all those parts of the continental shelf that