Explain the facts, principle, issue and judgement laid down in the North Sea continental shelf case (Germany Vs Denmark & Netherlands), 1969.
Introduction
On February 20, 1967, the Federal Republic of Germany deposited in the Secretariat of the International Court of Justice two dilemmas, one with Denmark, and the other with Netherlands, both concerning about the delimitation of areas of continental shelf of the North Sea belonging to these countries. On April 26, 1968, the Court decides to meet these two cases, because they concerned about the same context, with same interests. There was a dispute between Germany and Denmark and also between Germany and the Netherlands. Both were about the same issue.
Dispute: Delimitation of the continental shelf
West Germany, the Netherlands and Denmark wanted to determine where the maritime borders of their countries were. West Germany wanted to use the just and equitable idea where as the Netherlands and Denmark wanted to use the equidistance/special circumstances principals in the 1958 Geneva Convention on the Continental Shelf. This is that each State claimed all areas that are closer to itself than any other state. The Netherlands and Denmark claimed that the Geneva Convention supported this method. Moreover, it was alleged to have been an a priori rule of law, a rule of customary 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 shelf that was proportional to the size of each state’s adjacent land. Applying the equidistance principle would cut off ocean access to West Germany while greatly increase the area under Danish and Dutch control.
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. Its main functions are to settle legal disputes submitted to it by states and to provide advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly. Both Denmark and the Netherlands submitted an individual dispute with Germany to the International Court of Justice (ICJ) involving claims to the North Sea Continental Shelf. These two separate claims were joined by the ICJ, and decided as one case. The parties sought a method by which the Continental Shelf could be fairly delimited. All parties agreed the Court was not to physically apportion claims, but merely prescribe a method of delimitation for the parties to follow.[1] 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 Germany would have received a smaller portion of the resource-rich shelf relative to the two other states. A concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the use of the equidistance method is to pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two lines are drawn at different points on a concave coast, they will, if the curvature is pronounced, inevitably meet at a relatively short distance from the coast, thus causing the continental shelf area they enclose, to take the form approximately of a triangle with its apex to seaward and, as it was put on behalf of the Federal Republic, ‘cutting off’ the coastal State from the further areas of the continental shelf outside of and beyond this triangle. The effect of concavity could of course equally be produced for a country with a straight coastline if the coasts of adjacent countries protruded immediately on either side of it. In contrast to this, the effect of coastal projections, or of convex or outwardly curving coasts such as are, to a moderate extent, those of Denmark and the Netherlands, is to cause boundary lines drawn on an equidistance basis to leave the divergent courses, thus having a widening tendency on the area of continental shelf off that coast. These two distinct effects are directly attributable to the use of the equidistance method of delimiting continental shelf boundaries off recessing or projecting coasts. It goes without saying that on these types of coasts the equidistance method produces exactly similar effects in the delimitation of the lateral boundaries of the territorial sea of the States concerned. However, owing to the very close proximity of such waters to the coasts concerned, these effects are much less marked and may be very slight,-and there are other aspects involved, which were considered in their place. Thus Germany argued that the length of the coastlines be used to determine the delimitation. Germany wanted the ICJ to apportion the Continental Shelf to the proportion of the size of the state’s adjacent land and not by the rule of equidistance.
International Law and Customary International Law
International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It serves as the indispensable framework for the practice of stable and organized international relations. International law differs from national legal systems in that it primarily concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court.
Customary international law are those aspects of international law that derive from custom. Along with <href=”#General_principles_of_law” title=”Sources of international law”>general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law. The Statute of the International Court of Justice describes customary international law as “a general practice accepted as law”. It is generally agreed that the existence of a rule of customary international law requires the presence of two elements, namely State practice and a belief that such practice is required, prohibited or allowed, depending on the nature of the rule, as a matter of law. As the International Court of Justice stated in the Continental Shelf case: “It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinion juris of States.”
The Equidistance Principle
The equidistance principle or principle of equidistance is a legal concept that a nation’s maritime boundaries should conform to a median line equidistant from the shores of neighboring nation-states. This concept was developed in the process of settling disputes where the borders of adjacent nations were located on a contiguous continental shelf.
An equidistance line is one for which every point on the line is equidistant from the nearest points on the baselines being used.
The principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding that the Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6 and that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of customary international law. The inflexible application of the equidistance principle is was undesirable. The configuration of the mainland coast may render the equidistance principle as inequitable principle. This was the source of dispute litigated in the North Sea Continental Shelf, for under the equidistance principle the concavity coastline of the Federal Republic of Germany and the adjacent states, resulted in Germany being allotted with an exceptionally small part of the North Sea shelf.
The Facts and the Contentions of the Parties
The two Special Agreements had asked the Court to declare the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them beyond the partial boundaries in the immediate vicinity of the coast already determined between the Federal Republic and the Netherlands by an agreement of 1 December 1964 and between the Federal Republic and Denmark by an agreement of 9 June 1965.The Court was not asked actually to delimit the further boundaries involved, the Parties undertaking in their respective Special Agreements to effect such delimitation by agreement in pursuance of the Court’s decision.
The waters of the North Sea were shallow, the whole seabed, except for the Norwegian Trough, consisting of continental shelf at a depth of less than 200 meters. Most of it had already been delimited between the coastal States concerned. The Federal Republic and Denmark and the Netherlands, respectively, had, however, been unable to agree on the prolongation of the partial boundaries referred to above, mainly because Denmark and the Netherlands had wished this prolongation to be effected on the basis of the equidistance principle, whereas the Federal Republic had considered that it would unduly curtail what the Federal Republic believed should be its proper share of continental shelf area, on the basis of proportionality to the length of its North Sea coastline[2]. Neither of the boundaries in question would by itself produce this effect, but only both of them together – an element regarded by Denmark and the Netherlands as irrelevant to what they viewed as being two separate delimitations, to be carried out without reference to the other.
A boundary based on the equidistance principle, i.e., an “equidistance line”, left to each of the Parties concerned all those portions of the continental shelf that were nearer to a point on its own coast than they were to any point on the coast of the other Party. In the case of a concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the equidistance method was to pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two equidistance lines were drawn, they would, if the curvature were pronounced, inevitably meet at a relatively short distance from the coast, thus “cutting off” the coastal State from the area of the continental shelf outside. In contrast, the effect of convex or outwardly curving coasts, such as were, to a moderate extent, those of Denmark and the Netherlands, was to cause the equidistance lines to leave the coasts on divergent courses, thus having a widening tendency on the area of continental shelf off that coast.
It had been contended on behalf of Denmark and the Netherlands that the whole matter was governed by a mandatory rule of law which, reflecting the language of Article 6 of the Geneva Convention on the Continental Shelf of 29 April 1958, was designated by them as the “equidistance-special circumstances” rule. That rule was to the effect that in the absence of agreement by the parties to employ another method, all continental shelf boundaries had to be drawn by means of an equidistance line unless “special circumstances” were recognized to exist. According to Denmark and the Netherlands, the configuration of the German North Sea coast did not of itself constitute, for either of the two boundary lines concerned, a special circumstance.
The Federal Republic, for its part, had contended that the correct rule, at any rate in such circumstances as those of the North Sea, was one according to which each of the States concerned should have a “just and equitable share” of the available continental shelf, in proportion to the length of its sea-frontage. It had also contended that in a sea shaped as is the North Sea, each of the States concerned was entitled to a continental shelf area extending up to the central point of that sea, or at least extending to its median line. Alternatively, the Federal Republic had claimed that if the equidistance method were held to be applicable, the configuration of the German North Sea coast constituted a special circumstance such as to justify a departure from that method of delimitation in this particular case.[3]
The Court then suggested three factors to be taken into account in arriving at an equitable result: (a) the general configuration of the coasts, as well as the presence of any special or unusual features; (b) The physical and geological structure, as well as the natural resources, of the continental shelf concerned; and (c) proportionality. The ICJ concluded that the application of the equidistance method was not obligatory in all given cases, pointing out as part of its main reasoning that such a method could produce an inequitable result.[4]
The Judgement
Non-Applicability of Article 6 of the 1958 Continental Shelf Convention
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases. The dispute, which was submitted to the Court on 20 February 1967, related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other. The Parties asked the Court to state the principles and rules of international law applicable, and undertook thereafter to carry out the delimitations on that basis. The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding:
– That the Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6;
– that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of customary international law.
The Court turned to the question whether in delimiting those areas the Federal Republic was under a legal obligation to accept the application of the equidistance principle.[5] While it was probably true that no other method of delimitation had the same combination of practical convenience and certainty of application, those factors did not suffice of themselves to convert what was a method into a rule of law. Such a method would have to draw its legal force from other factors than the existence of those advantages.
The first question to be considered was whether the 1958 Geneva Convention on the Continental Shelf was binding for all the Parties in the case. Under the formal provisions of the Convention, it was in force for any individual State that had signed it within the time-limit provided, only if that State had also subsequently ratified it. Denmark and the Netherlands had both signed and ratified the Convention and were parties to it, but the Federal Republic, although one of the signatories of the Convention, had never ratified it, and was consequently not a party.
The Apportionment Theory Rejected
The Court also rejected the contentions of the Federal Republic in so far as these sought acceptance of the principle of an apportionment of the continental shelf into just and equitable shares. It held that each Party had an original right to those areas of the continental shelf which constituted the natural prolongation of its land territory into and under the sea. It was not a question of apportioning or sharing out those areas, but of delimiting them.
The Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable principles, and it indicated certain factors to be taken into consideration for that purpose. It was now for the Parties to negotiate on the basis of such principles, as they have agreed to do.[6] The proceedings, relating to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them, were instituted on 20 February 1967 by the communication to the Registry of the Court of two Special Agreements, between Denmark and the Federal Republic and the Federal Republic and the Netherlands respectively. By an Order of 26 April 1968, the Court joined the proceedings in the two cases. The Court decided the two cases in a single Judgment, which it adopted by eleven votes to six. Amongst the Members of the Court concurring in the Judgment, Judge Sir Muhammad Zafrulla Khan appended a declaration; and President Bustamantey Rivero and Judges Jessup, Padilla Nervo and Amount appended separate opinions. In the case of the non-concurring Judges, a declaration of his dissent was appended by Judge Bengzon; and Vice-President Koretsky, together with Judges Tanaka, Morelli and Lachs, and Judge ad hoc Sorensen, appended dissenting opinions. In its Judgment, the Court examined in the context of the delimitations concerned the problems relating to the legal régime of the continental shelf raised by the contentions of the Parties.
Conclusion
The first Judgment of 1969 in the North Sea Continental Shelf cases proved particularly misleading in this respect. Two of the three parties to that dispute, the Netherlands and Denmark, claimed the tracing of a simple equidistance line, not recognizing the concave shape of their common coast as a “special circumstance” according to Article 6 of the 1958 Geneva Convention on the Continental Shelf. Germany, which was the third party to the proceedings, found, with good reason, such delimitation unjust. It refuted Article 6 altogether, because it had signed but did not ratify the said Convention.
The Court found that Article 6 was not applicable in that case, refuting especially the principle of equidistance, as provided in it. It also refused to recognize in that provision a general customary rule. In that situation, the Court was not ready to recognize the lack of rules of positive international law. Instead, it resorted to the so-called “equitable principles” which were largely its own inventions. Its explanation of the nature of these “equitable principles” seems to be contradictory and unconvincing.
While the Geneva Convention does call for the rule of equidistance, the Court found that the Geneva Convention was not binding upon Germany. Moreover, the stipulations outlined in the Geneva Convention would have allowed Germany to opt out in this area, so its membership in the treaty is a moot point. The Court rejected Germany’s claim of proportional apportionment because doing so would intrude upon the natural claims due to States based on natural prolongations of land. Also, the Court’s role was to outline a mechanism of delimitation only. The Court found, therefore, that the two parties must draw up an agreement taking both the maximization of area and proportionality into account. These were to be based upon “equitable principles.” The holding here is somewhat inconclusive, but the opinion is significant to international law, regardless.
REFERNCES
Moraes,I.D. North Sea Continental Shelf Cases.(2012) Accessed from:- http://theclubofufsm.wordpress.com/2012/10/21/north-sea-continental-shelf-cases-by-ms-ingrid-de-moraes/
North Sea Continental Shelf Case (Federal Republic of Germany v Denmark v Netherlands). Accessed from:http://casebrief.wikia.com/wiki/North_Sea_Continental_Shelf_Case_(Federal_Republic_Of_Germany_v_Denmark_and_v_Netherlands)
ICJ Reports 1969. Accessed from:- http://courses.kvasaheim.com/ps376/briefs/ojf38491brief4.pdf
Lathrop,C.G. Sovereign Geographic Inc. Accessed from:- http://www.sovereigngeographic.com/maritime_pdf/1969-germany-den-neth-english.pdf
North Sea Continental Shelf Cases. Accessed from:- https://www.quimbee.com/cases/north-sea-continental-shelf-cases-federal-republic-of-germany-v-denmark-federal-republic-of-germany-v-netherlands
Kumar, N. Arbitation and Public International Law. Accessed from:- http://www.legalservicesindia.com/article/article/arbitration-&-public-international-law-660-1.html
Legal Service India. Accessed from:- http://www.legalservicesindia.com/article/category/international-law-27-1.html
Raunak,R. International Law: Nature, Scope and Subject. Accessed from:- http://www.legalservicesindia.com/article/article/international-law-bird%E2%80%99s-eye-view-1249-1.html
Baker,R.B. Customary International Law in the 21st Century: Old Challenges and New Debates. Accessed from:- <href=”#v=onepage&q=equidistance%20principle&f=false”>http://books.google.com.bd/books?id=Rgi8AAAAIAAJ&pg=PA155&lpg=PA155&dq=equidistance+principle&source=bl&ots=tK2GPTI58w&sig=dRxSpyPToCxjcqf3-3Dtay0Rj8c&hl=en&sa=X&ei=_zJbUfekAYzRrQfd7oDABg&ved=0CDgQ6AEwAg#v=onepage&q=equidistance%20principle&f=false
Assessment of Customary International Law. Accessed from:- http://www.icrc.org/customary-ihl/eng/docs/v1_rul_in_asofcuin
Churchill,R.R.R., Alan,A. The Law of the Sea. Accessed from:- <href=”#v=onepage&q=equidistance%20principle&f=false”>http://books.google.com.bd/books?id=Rgi8AAAAIAAJ&pg=PA155&lpg=PA155&dq=equidistance+principle&source=bl&ots=tK2GPTI58w&sig=dRxSpyPToCxjcqf3-3Dtay0Rj8c&hl=en&sa=X&ei=_zJbUfekAYzRrQfd7oDABg&ved=0CDgQ6AEwAg#v=onepage&q=equidistance%20principle&f=false
Analysis of the North Sea Continental Shelf Cases. Accessed from:- http://www.unhcr.org/refworld/country,,ICJ,,DEU,4562d8b62,4023a4c04,0.html
ICJ Reports. North Sea Continental Shelf Cases. Accessed from:- http://courses.kvasaheim.com/ps376/briefs/ojf38491brief4.pdf
Kolib,R. Case Law on Equitible Maritime delimitation:digest and commentataries. Accessed from:- <href=”#v=onepage&q=The%20limits%20of%20continental%20shelf%20jurisdiction%3A%20some%20possible%20implications%20of%20the%20North%20sea%20case%20judgment%20R.Y.%20JENNINGS&f=false”>http://books.google.com.bd/books?id=phBJGg-VgEMC&pg=RA1-PA77-IA1&lpg=RA1-PA77-IA1&dq=The+limits+of+continental+shelf+jurisdiction:+some+possible+implications+of+the+North+sea+case+judgment+R.Y.+JENNINGS&source=bl&ots=lvzDa2yTfp&sig=2aFMd9fA1hYnDF20R5QpjFN2sbc&hl=en&sa=X&ei=OGFbUfiIGsWOrgf84YHwCw&ved=0CD4Q6AEwBA#v=onepage&q=The%20limits%20of%20continental%20shelf%20jurisdiction%3A%20some%20possible%20implications%20of%20the%20North%20sea%20case%20judgment%20R.Y.%20JENNINGS&f=false
Degan,V.D. Consolidation of Legal Principles on Maritime Delimitation: Implications for the Dispute between Slovenia and Croatia in the North Adriatic.(2007). Accessed from:- http://chinesejil.oxfordjournals.org/content/6/3/601.full
Rothwell,D. International Law:Cases Material and Commentatory. Accessed from:- <href=”#v=onepge&q=north%20sea%20continental%20shelf&f=false”>http://books.google.com.bd/books?id=VT9Ep5Gehf4C&pg=PA68&lpg=PA68&dq=It+is+of+course+axiomatic+that+the+material+of+customary+international+law+is+to+be+looked+for+primarily+in+the+actual+practice+and+opinio+juris+of+States&source=bl&ots=pijF-zhd9k&sig=jTsXrO7XAN8vv-IPS5EBBn4Zkh4&hl=en&sa=X&ei=0DtbUZzbFYSRrQfdz4HwBw&ved=0CEsQ6AEwBg#v=onepge&q=north%20sea%20continental%20shelf&f=false
International Court of Justice. North Sea Continental Shelf. Accessed from:- http://www.worldcourts.com/icj/eng/decisions/1969.02.20_continental_shelf.htm
Karan,G. Delimitation of Continental Shelf. (2013). Accessed from:-http://www.legalservicesindia.com/article/article/delimitation-of-continental-shelf-1471-1.html
Churchill, R.R.R. The Law of the Sea. Accessed from:- <href=”#v=onepage&q=equidistance%20principle&f=false”>http://books.google.com.bd/books?id=Rgi8AAAAIAAJ&pg=PA155&lpg=PA155&dq=equidistance+principle&source=bl&ots=tK2GPTI58w&sig=dRxSpyPToCxjcqf3-3Dtay0Rj8c&hl=en&sa=X&ei=_zJbUfekAYzRrQfd7oDABg&ved=0CDgQ6AEwAg#v=onepage&q=equidistance%20principle&f=false
Juris, O. North Sea Continent Shelf Cases. Accessed from:- http://law.scu.edu/site/david-sloss%5Cfile/January%20Mini-Course/North%20Sea%20Cont%20Shelf.pdf
Analysis of the North Sea Continental Shelf. Accessed from:- http://www.unhcr.org/refworld/country,,ICJ,,DEU,4562d8b62,4023a4c04,0.html
Auburn,F.M. The North Sea Continental Shelf Boundary Settlement. Accessed from:- http://www.jstor.org/discover/10.2307/40797578?uid=3737584&uid=2129&uid=2&uid=70&uid=4&sid=21101971543211
Treves,T. 1958 Geneva Conventions on the Law of the Sea. Accessed from:- <href=”#v=onepage&q=equidistance%20principle&f=false”>http://books.google.com.bd/books?id=Rgi8AAAAIAAJ&pg=PA155&lpg=PA155&dq=equidistance+principle&source=bl&ots=tK2GPTI58w&sig=dRxSpyPToCxjcqf3-3Dtay0Rj8c&hl=en&sa=X&ei=_zJbUfekAYzRrQfd7oDABg&ved=0CDgQ6AEwAg#v=onepage&q=equidistance%20principle&f=false
Merills,J.G. Images and Models in the World Court: The Individual Opinion on the North Sea Continental Shelf Cases.(2011). Accessed from:- http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1978.tb01493.x/abstract
[1] ICJ Reports 1969. Accessed from:- http://courses.kvasaheim.com/ps376/briefs/ojf38491brief4.pdf [Accessed 30 March 2013]
[2] Moraes, I.D. (2012). North Sea Continental Shelf Cases. Accessed from:- http://theclubofufsm.wordpress.com/2012/10/21/north-sea-continental-shelf-cases-by-ms-ingrid-de-moraes/ [Accessed 31 March 2013]
[3] International Court of Justice. North Sea Continental Shelf. Accessed from:- http://www.icj-cij.org/docket/index.php?sum=295&code=cs2&p1=3&p2=3&case=52&k=cc&p3=5 [Accessed 1 April 2013]
[4] Karan,G. (2013). Delimitation of Continental Shelf. Accessed from:-http://www.legalservicesindia.com/article/article/delimitation-of-continental-shelf-1471-1.html [Accessed 1 April 2013]
[5] Churchill, R.R.R. The Law of the Sea. Accessed from:- <href=”#v=onepage&q=equidistance%20principle&f=false”>http://books.google.com.bd/books?id=Rgi8AAAAIAAJ&pg=PA155&lpg=PA155&dq=equidistance+principle&source=bl&ots=tK2GPTI58w&sig=dRxSpyPToCxjcqf3-3Dtay0Rj8c&hl=en&sa=X&ei=_zJbUfekAYzRrQfd7oDABg&ved=0CDgQ6AEwAg#v=onepage&q=equidistance%20principle&f=false [Accessed 30 March 2013]
[6] AuburnF.M. The North Sea Continental Shelf Boundary Settlement. Accessed from:- http://www.jstor.org/discover/10.2307/40797578?uid=3737584&uid=2129&uid=2&uid=70&uid=4&sid=21101971543211 [Accessed 1April 2013]