GERMANY v. DENMARK AND THE NETHERLANDS BY PRAGYA KUMAR
1. NORTH SEA CONTINENETAL SHELF CASE
GERMANY V. DENMARK AND THE NETHERLANDS
ICJ – 1969
BY: PRAGYA KUMAR
AMITY LAW SCHOOL, NOIDA
BATCH: 2019-2022
2. FACTS OF THE CASE
The Netherlands and Denmark had drawn partial boundary
lines based on the concept of equidistance principle (A-B,
C-D). An agreement on a further extension of the boundary
proved difficult because Denmark and the Netherlands
required this extension to take place on the basis of the
principle of equidistance (B-E and D-E), while Germany
was of the opinion that together these two boundaries would
create an unequal outcome . Germany claimed that it would
lose its share of the continental shelf due to its concave
coastline on the basis of proportionality to the length of its
North Sea coast.
3. ISSUE RELATED TO THE CASE
Whether the equidistance principle is customary
international law or not?
4. DECISION OF THE CASE
“The use of the equidistance method had not crystallised into customary law and the method was not
necessary for the delimitation of the areas similar to the present practise in the North Sea.”
The court has pass the judgement in the favour of Germany and said that it is indeed possible for conventions,
which only contractual in origin, to pass into the corpus of international law and become binding for the
countries which have never become parties to the convention, but this was not the case here.
Court decided that it is an unusual preface for it to be a general rule of law and the meaning of equidistance
principle in Article 6 of the convention it is not clear and that much specific.
Court said that if equidistance principle applied than Germany will face unjustifiable difference and unjust
treatment.
The states granted to Germany most of the additional shelf it sought.
5. EQUITY PRATER LEGEM
The case is also known as an example of EQUITY PRATER LEGEM – EQUITY
BEYOND THE LAW which means when a judge supplements the law with
equitable rules necessary to decide the case at hand.
7. DUAL REQUIREMENT FOR THE FORMATION
OF CUSTOMARY INTERNATIONAL LAW
• STATE PRACTICE (Objective Element)
It highlighted that the practices of those
States whose interests were specially
affected by the custom were especially
relevant in the formation of customary law.
• OPINIO JURIS (Subjective Element)
It also held that uniform and consistent
practice was necessary to
demonstrate opinio juris (it is the belief that
State practice amounts to a legal obligation)
8. CONTD.
• Article 6 of the Geneva Convention specified that the equidistance rule would apply if the parties had
not already decided on a system of delimitation, or if there were no special circumstances. Germany had
signed the Geneva Convention, but not ratified it, although the Netherlands and Denmark were parties
to that Convention.
• The Court held that the presence of an estoppel situation would have made it necessary for Article 6 to
become binding on Germany-but held that Germany 's action did not warrant an estoppel claim. The
Court also held that the mere fact that Germany does not expressly object to the principle of
equidistance set out in Article 6 is not sufficient to determine that the principle is now binding upon it.
9. CONTD.
• The Netherlands and Denmark argued that Article 6 also represented 'the agreed norm of general international
law as regards the delimitation of the continental shelf' and that it existed independently of the Convention.
Therefore, they argued, by way of customary international law Germany is bound by the subject matter of
Article 6.
• The Court held that at the time of drafting the Convention, the concept of equidistance provided for in Article 6
did not form part of current or evolving customary international law.
• The Court then examined whether the rule contained in Article 6 had become customary international law after
the Convention entered into force either due the Convention itself (i.e., if enough States had ratified the
Convention in a manner so as to fulfil the criteria specified below), or because of subsequent State practice (i.e.
even if an adequate number of States had not ratified the Convention, one could find sufficient State practice to
meet the criteria below). The Court held that Article 6 of the Convention had not gained a status under
customary law.
10. THE COURT HELD THAT IT REQUIRED A
CUSTOMARY RULE TO EMERGE:
• Very widespread and representative participation in the Convention, including States whose
interests were specially affected (in this case, they were coastal States)
• Virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that
demonstrates
• General acceptance of the rule of law (i.e. opinio juries).
11. CONTD.
• The Court ruled that the principle of equidistance by means of a treaty or customary international law
was not binding on Germany. In the case of the latter, at the time of or after the entry into force of the
Geneva Convention, the term had not acquired a customary status in international law. As such, the
Court held that the use of the equidistance procedure in the present proceedings is not necessary for
the delimitation of the areas concerned
