NAME: ATTA U ALLAH

ROLL NO: 35
DEPARTMENT: POLITICAL SCIENCE
SUBJECT : INTERNATIONL LAW

NORTH SEA CONTINENTAL SHELF

OVERVIEW OF THE CASE

These cases concerned the delimitation of the continental shelf of the North Sea as between
Denmark and the Federal Republic of Germany, and as between the Netherlands and the Federal
Republic, and were submitted to the Court by Special Agreement. 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. By an Order of 26 April 1968 the Court, having found
Denmark and the Netherlands to be in the same interest, joined the proceedings in the two cases.
In its Judgment, delivered on 20 February 1969, the Court found that the boundary lines in
question were to be drawn by agreement between the Parties and in accordance with equitable
principles in such a way as to leave to each Party those areas of the continental shelf which
constituted the natural prolongation of its land territory under the sea, and it indicated certain
factors to be taken into consideration for that purpose. The Court rejected the contention that the
delimitations in question had to be carried out in accordance with the principle of equidistance as
defined in the 1958 Geneva Convention on the Continental Shelf. The Court took account of the
fact that the Federal Republic had not ratified that Convention, and held that the equidistance
principle was not inherent in the basic concept of continental shelf rights, and that this principle
was not a rule of customary international

Agreements:
The Government of the Kingdom of Denmark and the Government of the Federd Republic of Germany,
Considering that the delimitation of the coastal continental shelf in the North Sea between the Kingdom
of Denmark and the Federal Republic of Germany has been laid down by a Convention concluded on 9
June 1965, Considering that in regard to the further course of the boundary disagree- ment exists
between the Danish and German Governments, which could not be settied by detailed negotiations,
Intending to settle the open questions in the spirit of the friendly and good- neighbourly relations
existing between them, Recalling the obligation laid down in Article 1 of the Danish-German Treaty of
Conciliation and Arbitration of 2 June 1926 to subrnit to a procedure of con- ciliation or to judicial
settlernent al1 controversies which cannot be settled by diplomacy, Bearing in mind the obligation
assumed by them under Articles 1 and 28 of the European Convention for the Peaceful Settlement of
Disputes of 29 April 1957 to submit to the judgment of the International Court of Justice al1 inter-
national legal controversies to the extent that no special arrangement has been or will be made, By
virtue of the fact that the Kingdom of Denmark is a party to the Statute of the International Court of
Justice, and of the Declaration of acceptance of the jurisdiction of the International Court of Justice
made by the Federal Republic of Germany on 29 AprilI961 in conformity with Article 3 of the Con-
vention of 29 April 1957 and with the Resoiution adopted by the Security Council of the United Nations
on 15 October 1946 concerning the "Condition under which the International Court of Justice shalf be
open to States not Parties to the Statute of the International Court of Justice", Have agreed as follows:
Article I (1) The International Court of Justice is requested to decide the following question: What
principles and rules of international law are appIicable to the delimi- tation as between the Parties of
the areas of the continental shelf in the North Sea which appertain to each of them beyond the partial
boundary deter- mined by the above-mentioned Convention of 9 June 1965? (2) The Governments of
the Kingdom of Denmark and of the Federal Republic of Germany shali delirnit the continental shelf in
the North Sea as between their countries by agreement in pursuance of the decision requested from the
International Court of Justice.
Decision of Court:
The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases. The
dispute, which was submitted to the C:ourt on 20 Feb- ruary 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 internatioinal law applica- ble, 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 delimitati.ons in question had to be carried
out in accordance with the principle of equi- distance as defined in Article 6 of the 1958 Geneva
Conven- tion on the Continental Shelf, holding: -that the Federal Republic, which had not
ratified the Convention, was not legally bound by the pmwisions of Arti- cle 6; -that the
equidistance principle was not a necessary con- sequence of the general concept of continental
shelf rights, and was not a rule of customary international law. 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 temtory into1 and under the sea. It was not a question of apportioning or shiaring 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 accord- ance with equitable principles, and it
indicated certain fac- tors to be taken into consideration for that purpose. It was now for the
Parties to negotiate on the basis of such princi- ples, as they have aped to do. 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 Mem- bers of the Court
concumng in the Judgment, Judge Sir Muhammad Zafrulla Khan appended a declaration; and
Pres- ident Bustamante y Rivero and Judges Jessup, hdilla Nervo and Amrnoun appended
separate opinions. In the case of the nonconcumng 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 Serensen, antended dissenting opinions. In its Judgment,
the Court examined in the context of the delimitations concerned the problems relating to the
legal dgime of the continental shelf raised by the contentions of the Parties. The Facts and the
Contentions of the krties (paras. 1-17 of the Judgment) The two Special Agreements had asked
the Court to declare the principles and rules of international law applica- ble to the delimitation
as between the Parties of the areas of the North Sea contine.nta1 shelf appertaining to each of the
beyond the partial boundaries in the immediate vicinity of the North Sea coast constituted a
special circumstance such as to coast already determined between the Fede:ral Republic and
justify a departure from that method of delimitation in this the Netherlands by an agreement of 1
December 1964 and particular case. between the Federal Republic and Denmark by an
agreement of 9 June 1965. The Court was not asked actually to delimit The Apportionment
Theory Rejected the further boundaries invcilved, the Parties undertaking in (paras. 18-20 of the
Judgment) their respective Special Agreements to effect such delimita- tion by agreement in
pursuai~ce of the Count's decision. The Court felt unable to accept, in the particular form it had
taken, the first contention put forward on behalf of the The waters of the North Sea were the sea-
Federal Republic. Its task was to delimit, not to apportion the bed, except for the NorwegIian
Trough, collsisting of conti- me process of delimitation involved estab- nental shelf at a depth of
less than 200 metres. M.ost of it had lishing the boundaries of an area already, in principle,
apper- already been delimited between the coastal States concerned. bining to the coastal State
and not the determination de The and Denmark and the of such an area. The doctrine of the just
and equitable share had* however, been to agree' On the pro- was wholly at variance with the
most fundamental of all the longation of the partial boundaries to rules of law relating to the
continental shelf, namely, that the because Denmark and the "etherlands had wished this Pro-
rights of the coastal State in respect of the area of continental longation to be effected On basis
the equidistance Pin- shelf t;onstituting a natural prolongation of its land territory ciple, whereas
the Federal Republic had considered that it under the sea existed ipso facto and ab initio, by
virtue of its what the R'e~ublic &lieved sovereignty over the land. That right was inherent. In
order be its proper share of On the to exercise it, no special legal acts had to be performed. It fol-
basis of proportionality to the length of its North Sea coast- lowed that the notion of apportioning
an as yet undelimited line. Neither of the boundaries in questior~ worild by itself area as a whole
(which underlay the doctrine of produce this effect. but only both of them together-an ele- the
just and equitable share) was inconsisknt with the basic ment regarded by Denmark and the
Netherlands as irrelevant concept of continental shelf entitlement. to what they viewed as being
two separate delimitations, to be carried out without reference to the other. Non-Applicability of
Article 6 of the I958 Continental Shelf A boundary based on the equidistance princilple, i.e., an
Convention "equidistance line", left to each of the Parties concerned all (p,s. 21-36 ofthe
judgment) those portions of the continental shelf that were nearer to a point on its own coast than
tiley were to any point on the coast The Court then turned to the question whether in delimit- of
the other Party. In the case of a concave or recessing coast ing those areas the Federal Republic
was under a legal obli- such as that of the Federal ]Republic on the North Sea, the gation to
accept the application of the equidistance principle. effect of the equidistance method was to
pi111 the line of the While it was probably me that no other method of delimita- boundary
inwards, in the direction of the concavity. Conse- tion had the same combination of practical
convenience and quently, where two equidiatance lines were &awn, they certainty of application,
those factors did not suffice of them- would, if the curvature were pronounced, illevitably meet
at selves to convert what was a method into a rule of law. Such a a relatively short distance from
the coast, fias ''cutting off" method would have to draw its legal force from other factors the
coastal State from the area of the continental shelf out- than the existence of those advantages.
side. In contrast, the effect of convex or olltwardly curving The first question to be considered
was whether the 1958 coasts, such as were, to a moderate extent, tlhose of Denmark Geneva
Convention on the Continental Shelf was binding for and the Netherlands, was to cause the
equidistance lines to all the Parties in the case. Under the formal provisions of the leave the
coasts on divergent courses, thus having a widening Convention, it was in force for any
individual State that had tendency on the area of continental shelf off'that coast. signed it within
the time-limit provided, only if that State had It had been contended on Ittehalf of Denmark and
the Neth- also sllbsequently ratified it. Denmark and, the Netherlands erlands that the whole
matter was governed by a mandatory had both signed and ratified the Convention and were
parties rule of law which, reflecting: the language of Article 6 of the to it, but the Federal
Republic, although one of the signato- Geneva Convention on the. Continental Slhelf of 29 April
ries of the Convention, had never ratified il:, and was conse- 1958, was designated by them as
the "equidistance-special quently not a party. It was admitted on behalf of Denmark
circumstances" rule. That rule was to the (effect that in the and the Netherlands that in the
circumstance:^ the Convention absence of agreement by the parties to emplloy another could
not, as such, be binding on the Federal Republic. But it method, all continental shelf boundaries
had to tx drawn by was contended that the r6gime of Article 6 of the Convention means of an
equidistance line, unless '"special circum- had become binding on the Federal Republic, because,
by stances" were recognized to exist. Accordling 1:o Denmark conduct, by public statements and
proclzunations, and in and the Netherlands, the co~nfiguration of the German North other ways,
the Republic had assumed the obligations of the Sea coast did not of itself constitute, for either of
the two Convention. boundary lines concerned, a. special circum!rtance. It was clear that only a
very definite, very consistent The Federal Republic, for its part, had contended that the course of
conduct on the part of a State in the situation of the correct rule, at any rate in such
circumstanc~:~ as those of the Federal Republic could justify upholding those contentions. North
Sea, was one according to which each of the States When a number of States drew up a
convention specifically concerned should have a "just and equitatlle share" of the providing for a
particular method by which the intention to available continental shelf, in proportion to the
1.ength of its become bound by the r6gime of the convention was to be sea-frontage. It had also
corrtended that in a, sea shaped as is manifested, it was not lightly to be presumed that a State the
North Sea, each of the States concerned was entitled to a which had not carried out those
formalities had nevertheless continental shelf area extendling up to the cei~tral point of that
somehow become bound in another way. Furthermore, had sea, or at least extending to its
median line. IUtenlatively, the the Ferderal Republic ratified the Geneva Convention, it Federal
Republic had claimed that if the equidistance method could have entered a reservation to Article
6, by reason of the were held to be applicable, .the configuration of the German faculty to do so
conferred by Article 12 of the Convention. 73 Only the existence of a situation of estoppel could
lend States on 28 Septem'ber 1945 could be regarded as a starting- substance to the contention of
Denmark ;md the Nether- point of the positive :law on the subject, and the chief doctrine lands-
i.e., if the Federal Republic were now precluded it enunciated, that the coastal State had an
original, natural from denying the applicability of the conve:ntional dgime, and exclusive right to
the continental shelf off its shores, had by reason of past conduct, declarations, etc.., which not
only come to prevail over all others and was now reflected in the clearly and consistently evinced
acceptance of that dgime, 1958 Geneva Convention. With regard to the delimitation of but also
had caused Denmark or the Netherlands, in reliance boundaries between1 the continental shelves
of adjacent on such conduct, detrimentally to change position or suffer States, the Truman
Proclamation had stated that such bound- some prejudice. Of this there was no evidence.
Accordingly, aries "shall be detennined by the United States and the State Article 6 of the
Geneva Convention was not., as such, appli- concerned in accordance with equitable principles".
These cable to the delimitations involved in the present proceed- two concepts, of delimitation
by mutual agreement and ings. delimitation in accc~rdance with equitable principles, had
underlain all the sulxequent history of the subject. It had The Equidistance Principle Not Inherent
in the Basic Doc- been largely on the: ~~~n~mendation of a committee of trine of the
Continental Shelf experts that the principle of equidistance for the delimitation (paras. 37-59 of
the Judgment) of continental shelf boundaries had been accepted by the United Nations
International Law Commission in the text it It had been maintained by Denmark and the
Netherlands had laid before the Geneva Conference of 1958 on the Law of that the Federal
Republic was in any event, and quite apart the Sea which had a.dopted the Continental Shelf
Conven- from the Geneva Convention, bound to accrtpt delimitation tion. It could legitimately
be assumed that the experts had on an equidistance basis, since the use of tha.t method was a
been actuated by co~nsiderations not of legal theory but of rule of general or customary
international law, automatically practical convenience and cartography. Moreover, the article
binding on the Federal Republic. adopted by the Comimission had given priority to delimita-
One argument advanced by them in support ofthis conten- tion \by agreement and had contained
an exception in favour tion, which might be termed the a priori argument, started of ''special
~~rcumstamces". from the position that the rights of the coastal State to its con- The Court
consequently considered that Denmark and the tinental shelf areas were based on its sovereignty
over the Netherlands inverted the true order of things and that, far land domain, of which the
shelf area was the natural prolon- from an equidistance rule having been generated by an ante-
gation under the sea. From this notion of appurtenance was cedent principle of pi:oximity
inherent in the whole concept derived the view, which the Court accepted, that the coastal of
continental shelf appurtenance, the latter was rather a State's rights existed ipso facto and ab
initio. Denmark and rationalization of the former. the Netherlands claimed that the test of
appurtenance must be "proximity": all those parts of the shelf being considered as ~h,
~~~idi~~~~~~ principle N~~ a ~~l~ of~ustomary inter- appurtenant to a particular coastal State
which were closer to ,tio,l L~~ it than they were to any point on the coast of' another State.
(paras. 60-82 of the judgment) Hence, delimitation had to be effected by a method which would
leave to each one of the States concc:rned all those The question remained whether through
positive law pro- areas that were nearest to its own coast. As only an equidis- cesses the
equidistance principle must now be regarded as a tance line would do this, only such a line
coluld be valid, it rule of customary international law. was contended. Rejecting the contentions
of Denmark and the Nether- This view had much force; the greater part of a State's con- lands,
the Court considered that the principle of equidis- tinental shelf areas would normally in fact te
nearer to its tance, as it figured in Article 6 of the Geneva Convention, coasts than to any other.
But the real issue was whether it fol- had not been proposecl by the International Law
Commission lowed that every part of the area concerned must be placed in as an emerging rule
of customary international law. This that way. The Court did not consider this to follow from the
Article could not be said to have reflected or crystallized such notion of proximity, which was a
somewhat fl.uid one. More a rule. This was confirmed by the fact that any State might
fundamental was the concept of the continental shelf as being make reservations in respect of
Article 6, unlike Articles 1,2 the natural prolongation of the land domain. Bven if proxim- and 3,
on signing, ratifying or acceding to the Convention. ity might afford one of the tests to be
applied, and an impor- While certain other pirovisions of the Convention, although tant one in
the right conditions, it might not nec:essarily be the relating to matters that lay within the field of
received cus- only, nor in all circumstances the most applropriate, one. tomary law, were also not
excluded from the faculty of reser- Submarine areas did not appertain to the coastid State merely
vation, they all related to rules of general maritime law very because they were near it, nor did
their appurtenance depend considerably antedating the Convention which were only on any
certainty of delimitation as to their bou.ndaries. What incidental to continental shelf rights as
such, and had been conferred the ips0 jure title was the fact that the submarine mentioned in the
Convention simply to ensure that they were areas concerned might be deemed to be actuidly part
of its not prejudiced by the: exercise of continental shelf rights. temtory in the sense that they
were a prolongation of its land Article 6, however, related directly to continental shelf rights
territory under the sea. Equidistance clearly could not be as such, and since it was not excluded
from the faculty of res- identified with the notion of natural prolongation, since the ervation, it
was a legitimate inference that it was not consid- use of the equidistance method would
frequently cause areas ered to reflect emergent customary law. which were the natural
prolongation of the krritory of one ~t had been argued (3n behalf of knrnark and the ~~th~~-
State to be attributed to another. Hence, the notion of equi- lands that even if at tile date of the
Geneva Convention no distance was not an inescapable a priori acc0InpaIIiment of rule of
customary international law existed in favour of the basic continental shelf doctrine. equidistance
principle, such a rule had nevertheless come A review of the genesis of the equidistance method
of into being since the C:onvention, partly because of its own delimitation confirmed the
foregoing conclusion. The "'lku- impact, and partly on the basis of subsequent State practice.
man Proclamation" issued by the Government of the United In orcler for this process to occur it
was necessary that 74 Article 6 of the Convention should, at all events potentially, be of a norm-
creating char:zter. Article 68 was so framed, however, as to put the obligiation to make use of the
equidis- tance method after a primary obligation to effect delimitation by agreement.
Furthermore, the piart playetl by the notion of special circumstances in relation to the principlt:
of equidis- tance, the controversies as to the exact meaning ;md scope of that notion, and the
faculty csf making reservations to Article 6 must all raise doubts as to the potentially norm-
creating character of that Article. Furthermore, while a very widespread and representative
participation in a conventio~m might show that a conventional rule had become a general rule of
international law, in the present case the number of ratifications and accessions so far was hardly
sufficient. As regards the time element, although the passage of only a short pc:riod of time was
not necessarily a bar to the formation of a new rule of customary interna- tional law on the basis
of what was originally a purely con- ventional rule, it was indispensable that State practice
during that period, including that of States whose interests were spe- cially affected, should have
Iken both extensive and virtually uniform in the sense of the provision invoked and should have
occurred in such a way as to show a general recognition that a rule of law was involved. Some 15
cases had been cited in which the States concerr~ed had agreed to draw or had drawn the
boundaries concerned according tlo the principle of equidistance, but there wars no evidence that
they had so acted because they had felt legally compelleti to draw them in that way by reason of
a rullc of customary law. The cases cited were inconclusive and insufficient evidence of a settled
practice. The Court consequently concluded that the Geneva Con- vention was not in its origins
or inception declruatory of a mandatory rule of customary international law enjoining the use of
the equidistance principle, its subsequent effect had not been constitutive of sucli a rule, and
State practice up to date had equally been insuffi,cient for the pwpose. The Principles and Rules
of .law Applicable (paras. 83-101 of the Judgment) The legal situation was that the Parties were
under no obli- gation to apply the equidist:ance principle either under the 1958 Convention or as
a rule d general or customary interna- tional law. It consequently brxame unnecess.ary for the
Court to consider whether or not the configuratiori of the Gem North Sea coast constituted a
"special ci~rcumstance". It remained for the Court, however, to indicate to the Parties the
principles and rules of larv in the light of which delimita- tion was to be effected. The basic
principles in the matter of delimitation, deriving from the mman Proclamalion, were that it must
be the object of agreement between the States concerned and that such agreement must be
arrived at in accordance with equita- ble principles. The F'arties were under an obligation to enter
into negotiations with a view to arriving at an agreement and not merely to go through a formal
process sf negotiation as a sort of prior condition for the automatic application of a cer- tain
method of delimitation in the absence of agreement; they were so to conduct themselves that the
negotiations were meaningful, which would not be the case when one of them insisted upon its
own position without contemplating any modification of it. This obligation was merely a special
application of a principle underlying all international rela- tions, which was moreover recognized
in Article 33 of the Charter of the United Nations as one of the methods for the peaceful
settlement of international disputes. The Parties were under an obligation to act in such a way
that in the particular case, and taking all the circumstances into account, equitable principles
were applied. There was no question of the Court's decision being ex aequo et bono. It was
precisely a rule of law that called for the application of equitable principles, and in such cases as
the present ones the equidistance method could unquestionably lead to inequity. Other methods
existed and might be employed, alone or in combination, according to the areas involved.
Although the Parties intended themselves to apply the principles and rules laid down by the
Court some indication was called for of the possible ways in which they might apply them. For
all the foregoing reasons, the Court found in each case that the use of the equidistance method of
delimitation was not obligatory as between the Parties; that no other single method of
delimitation was in all circumstances obligatory; that delimitation was to be effected by
agreement in accord- ance with equitable principles and taking account of all rele- vant
circumstances,in such a way as to leave as much as pos- sible to each Party all those parts of the
continental shelf that constituted a naGral prolongation of its land territory, with- out
encroachment on the natural prolongation of the land ter- ritory of the other; and that, if such
delimitation produced overlapping areas, they were to be divided between the Par- ties in agreed
proportions, or, failing agreement, equally, unless they decided on a dgime of joint jurisdiction,
user, or exploitation. In the course of negotiations, the factors to be taken into account were to
include: the general configuration of the coasts d the Parties, as well as the presence of any
special or unusual features; so far as known or readily ascertainable, the physical and geological
structure and natural resources of the continental shelf areas involved; the element of a reason-
able degree of proportionality between the extent of the con- tinental shelf areas appertaining to
each State and the length of its coast measured in the general direction of the coastline, taking
into account the effects, actual or prospective, of any other continental shelf delimitations in the
same region.