Equidistance principle is the method with most practical convenience and certainty, but those factors are not enough to convert it in a rule of law.
1958 Geneva Convention on Continental Shelf is in force for any State that had signed and ratified it. Germany had never ratified it. Such conventional rule has become binding on Germany however? Only a situation of estoppel could lead to that conclusion. I.e., Germany is precluded from denying such rule by reason of past conduct and because had caused on the other parties which relied in such conduct detrimental if change position. But there is no evidence in the case of that situation.
If Art 6 did not crystallize a rule of GIL in 1958, such conventional rule is now GIL? ‘partly because of its own impact, partly on the basis of subsequent state practice – and that this rule, being now a rule of CIL [is] binding on all states’[?]
1945 Truman proclamation is the starting point of positive law. With regard delimitation it establishes two principles: boundaries ‘shall be determined by mutual agreement between the states in accordance with equitable principles’ In the instant case art 6 could lead to inequity to Germany
Art 6 does not reflect such rule, confirmed by the fact that it was possible to make reservation to it. This also raises question about the its potentially norm creating character.
Although the passage of only a short period of time is not a bar to the formation of a new rule of GIL, it is indispensable that practice, including states especially affected, should have been extensive and virtually uniform, and occurred in a way as to show a general recognition of a rule of law was involved, a belief that such practice is obligatory
Other articles of 1958 VC however can be seen as reflecting or crystallizing, received or at least emergent rules of CIL.
85. [The Parties] are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insist upon its own position without contemplating any modification of it