North Sea Continental Shelf Cases Germany v. Denmark Germany v. Netherlands

By agreement the court was asked to declare the principles and rules of IL applicable to the delimitation between the parties of the North Sea Continental Shelf. The court was NOT asked to delimit the further boundaries involved Denmark and Netherlands had whished that the prolongation to be affected on the basis of the equidistance principle. Germany considered that it would unduly curtail its proper share of continental shelf on basis of proportionality to the length of its North Sea coastline, the proper rule is then ‘just and equitable share’ Equidistance principle is equidistance line nearer to a point on its own coast than they were to any point on the coast of other party. In a concave coast such as the German, the effect was to pull the line of the boundary inwards. Such rule was enshrined in art 6 1958 VC The issue in this case was: Whether a treaty rule (art 6 VC 1958) was binding as custom upon a non-party to the treaty. (Multilateral law making treaties) [art 1,2,3 definition of Continental Shelf] The doctrine of ‘just and equitable share’ is wholly in variance with the fundamental rules of continental shelf, namely, rights of coastal state to continental shelf constituting a natural prolongation of its land territory, existed ab initio and ipso facto by virtue of its sovereignty over the land

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