Date of Judgment: 20 February 1969
Court: International Court of Justice
Judges: Sir Muhammad Zafrulla Khan, President Bustamante y Rivero, Jessup, Padilla Nervo, Ammoun, Judge Bengzon, Vice-President Koretsky, Judges Tanaka, Morelli, Lachs, and Judge ad hoc Sorensen,
Reference: I.C.J. Reports 1969, p.3
Parties: Netherlands and Denmark vs Federal Republic of Germany
- An Agreement was carried out between the Federal Republic ofGermany and theNetherlands on 1st December 1964 to determine the boundary.
- An Agreement was made between the Federal Republic of Germany and Denmark on 9th June 1965 to determine the boundary.
- These boundary lines were drawn based on the equidistance principle, i.e., an "equidistance line". Due to this, each of the concerned parties were left with only those portions of the continental shelf that were nearer to a point on its own coast than it were to any point on the coast of the other Party.
- Denmark and Netherlands wanted this prolongation to take place based on the equidistance principle (B-E and D-E) whereas Germany was of the view that, together, these two boundaries would produce an inequitable result for her and hence an agreement on further prolongation of the boundary proved difficult.
- The Netherlands and Denmark claimed that under Article 6 of 1958 Geneva Convention on Continental Shelf there exists equidistance principle according to which delimitation of continental shelf must be carried out
- In addition, the Netherlands and Denmark assert that equidistance principle is a rule of customary international law and that Federal Republic of Germany is bound to follow.
- On the other hand, the Federal Republic of Germany stated that there should be a “just and equitable share” of the continental shelf and due to the special nature of the North Sea Coast, the equidistance rule is not applicable.
8. Relevant Findings of the Court:
a. Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on Germany?
- Article 6 of 1958 Continental shelf convention states that only those states that have signed as well as ratified would become parties to the Convention. Denmark and Netherlands were parties to the convention as they had both signed and ratified the Convention. The Federal Republic of Germany had signed but not ratified the convention, so they were not party to the Convention.
- The Court rejected the first argument of the parties. The Court held that Germany had not individually assumed obligations under the Convention. The court also took notice of the fact that Germany would have had the option of entering into a reservation on Article 6even if it had ratified the treaty, following which that particular article would no longer be applicable to Germany.
- The Court also held that itwould not be sufficient to state that the principle is now binding upon Germany just because it did not specifically object to the equidistance principle as contained in Article 6.
b. The question remained whether through positive law processes the equidistance principle must now be regarded as a rule of customary international law.
- For this the court said that the use of the equidistance method had not crystallised into customary law and the method was not obligatory for the delimitation of the areas in the North Sea related to the present proceedings.
9. The court passed a judgment that:
- The equidistance principle as mentioned under Article 6 of 1958 Continental Shelf Convention is not an emerging customary rule of international law due to the fact that Article 6 was not excluded from the purview of Reservation under Article 12 of the Convention.
- Further, the equidistance principle did not meet the two-element test of being a State Practice and was not accepted as Law.
- The Court consequently concluded that the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance principle, its subsequent effect had not been constitutive of such a rule, and State practice up to date had equally been insufficient for the purpose.
The judgment of the Court was delivered by a margin of 11 votes to 6 with 5 cogent dissenting opinions annexed to the Judgment. It is therefore difficult to envisage how pronouncements by the Court on customary international law should be universally acknowledged without sound legal reasoning and such diversity of views. Sadly, the reasoning of the Court as regards customary international law is not much improved as evidenced by the case of Nicaragua v The United States (1986). The Court’s ruling has a terminal impact on the principle of equidistance and how it is utilized through the Geneva Convention. The Court does not exclude its use, but its legal credibility is eliminated with no impact on the rest of the Geneva Convention. As no specific remedy is prescribed by the holding, this case does not significantly aid in any future decisions. The only purpose for which it referred isfor denying the equidistance principle legal weight. If this case were used as precedent otherwise, it would merely direct the disputing states to look to customary international law and cooperative action.