Germany v Denmark and the Netherlands

• Overview
• Arguments
• Judgement
• Impact

Germany v Denmark and the Netherlands

• A series of disputes Between Germany, Denmark and the Netherlands that came to the international court of justice in 1967 and were decided on 1969
• Both Denmark and the Netherlands submitted an individual dispute with Germany to the ICJ involving claims to the North Sea Continental Shelf
  • Joined by the ICJ, and decided as one case
  • The parties sought a method by which the Continental Shelf could be fairly delimited.
  • The Court was not to physically apportion claims, but merely prescribe a method of delimitation for the parties to follow​

Germany v Denmark and the Netherlands

Article 6 of the Geneva Convention of 1958 on the Continental Shelf

2. Where the same continental shelf is adjacent to the territories of two
adjacent States, the boundary of the continental shelf shall be determined
by agreement between them. In the absence of agreement, and unless another
boundary line is justified by special circumstances, the boundary shall be
determined by application of the principle of equidistance from the nearest
points of the baselines from which the breadth of the territorial sea of
each State is measured.

3. In delimiting the boundaries of the continental shelf, any lines which
are drawn in accordance with the principles set out in paragraphs 1 and 2
of this article should be defined with reference to charts and geographical
features as they exist at a particular date, and reference should be made
to fixed permanent identifiable points on the land.

Germany v Denmark and the Netherlands

• Germany was against the equidistance rule, since with this rule, it would have received a smaller area in relative to the other two states. Due to this, Germany was against the delimitation, by equidistance rule. In this matter, Germany was against this, because more region means more resources. 

Claims and disputes

• Professor Jaenicke stated on behalf of Germany: "The equidistance method cannot be employed for the delimitation of the continental shelf unless it is established by agreement, arbitration, or otherwise, that it will achieve a just and equitable apportionment of the continental shelf among the States concerned.

Germany v Denmark and the Netherlands

• Germany suggested that the determination of the delimitation would be counted by coastline length. This would be profitable for Germany, since their coastline is longer than the other states. 

Claims and disputes

This is also called as the "Doctrine of the Just and equitable share".

• Professor Jaenicke, on behalf of FDR: "The delimitation of the continental shelf between the Parties in the North Sea is governed by the principle that each coastal State is entitled to a just and equitable share."

Germany v Denmark and the Netherlands

Claims and disputes

• Professor Riphagen on behalf of Kingdom of the Netherlands:"The delimitation as between the Parties of the said areas of the continental shelf in the North Sea is governed by the principles and rules of international law which are expressed in Article 6, paragraph 2, of the Geneva Convention of 1958 on the Continental Shelf"

Germany v Denmark and the Netherlands

The questions at hand

• Should the delimitation be the object of an equitable agreement between the states involved?
• In question was also whether the Geneva convention applied to the Germans, or not?
• If the equidistance rule is applicable or not?
• Was it infact that FDR was not legally bound by the 1958 Convention, since they did not ratify the convention?

Germany v Denmark and the Netherlands

• Ultimately, the court refused to recognize the article 6 of the convention as a part of the corpus general of international law or of customary international law by a vote of 11 to 6.
• The Court urged the parties to abate from the effects of the special feature of Germany's concave coast which would result in an unjustifiable difference in the treatment of the parties. 
  • Germany was granted most of the land it sought in subsequent negotiations

Germany v Denmark and the Netherlands

• The rejection of the apportionment theory
  • The Court did not accept the contention of the Federal Republic of Germany, namely, to apportion the areas concerned. The Court argued that its task was not to determine the areas de novo,  but to establish the boundaries of an area already, in principle, appertaining to the coastal State. The doctrine of equitable share was in direct conflict with the most fundamental rule relating to continental shelf, namely, that “the rights of the coastal State in respect of the area of continental shelf constituting a natural prolongation of its land territory under the sea existed ipso facto and ab initio, by virtue of its sovereignty over the land.”

Germany v Denmark and the Netherlands

• Article 6 1958 Continental Shelf Convention does not apply
  • The mere clarity and convenience of the rule do not convert it into a rule of law. It would have to draw its legal force from other factors and The court was unable to find sufficient evidence of their existence.
    • ​Under the provisions of the Convention, it became binding in a given state only after signature and ratification. Germany was one of the signatories of the convention, but had never ratified it and consequently was not a party. Denmark and Netherlands admitted this, but argued that Germany had made public statements and proclamations binding it to the obligations of the convention. The Court argued that this would require clearly and consistently evidenced acceptance of the regime and the detrimental change in the conduct of Netherlands and Denmark in reliance of this conduct. The Court found no evidence of such proclamations.
    • Further, if Germany had ratified the Convention, it could have entered a reservation to Article 6, by reason of the faculty to do so conferred by Article 12 of the Convention.

Germany v Denmark and the Netherlands

• The Equidistance Principle is not a rule of Customary International Law

  • Netherlands and Denmark argued that the rights of the coastal State to its continental shelf areas were based on its sovereignty over the land domain, of which the shelf area was the natural prolongation under the sea. The Court accepted this view. Denmark and the Netherlands further argued that this domain can only be measured by proximity. As only an equidistance line would do this, the rule should be applied.

    • ​Though the Court agreed that most of the continental shelf areas of a State are usually nearer to its coast than of any other state, it did not agree on the notion that every part of the area concerned should be delimited that way. Submarine areas do not appertain to a coastal state merely because they are near it nor does their delimitation necessarily depend on their boundaries. The ipso jure title to submarine areas belongs to the state of which land area the submarine area is a natural prolongation of. The use of the equidistance rule would often cause situations where the natural prolongation of a state would be attributed to another. Thus, the rule is not an a priori accompaniment of basic continental shelf doctrine.

Germany v Denmark and the Netherlands

• The Equidistance Principle is not a rule of Customary International Law

  • Netherlands and Denmark argued that the rights of the coastal State to its continental shelf areas were based on its sovereignty over the land domain, of which the shelf area was the natural prolongation under the sea. The Court accepted this view. Denmark and the Netherlands further argued that this domain can only be measured by proximity. As only an equidistance line would do this, the rule should be applied.

    • According to "Truman Proclamation" issued by the Government of the United States on 28 September 1945 the coastal State had an original, natural and exclusive right to the continental shelf off its shores. This view was also reflected in the 1958 Geneva Convention. Both the Truman Proclamation and the 1958 Geneva Convention put emphasis on the concepts of mutual agreement and equitable principles. The Court speculated that the equidistance rule was added to the Convention by the International Law Commission for purposes of practical convenience and cartography. Moreover, the article contains an exception to the rule in favor of special circumstances.

Germany v Denmark and the Netherlands

• The Equidistance Principle is not a rule of Customary International Law

  • The principle of equidistance had not been proposed by the International Law Commission as an emerging rule of customary international law nor did it reflect or crystallize such a rule.

    • ​Any State could make reservations to Article 6, unlike to some of the other more binding articles on signing, ratifying or acceding to the Convention.  since it was not excluded from the faculty of reservation, it was a legitimate inference that it was not considered to reflect emergent customary law.

    • No other article in the convention supports the binding nature of Article 6.

Germany v Denmark and the Netherlands

• The Equidistance Principle is not a rule of Customary International Law

  • The Netherlands and Denmark argued that such a rule had come into being since the Convention in part because of its own impact, and additionally on the basis of subsequent State practice.

    • For this to occur, Article 6 should be of a norm creating character. However, the primary obligation found in Article 6 is delimitation by agreement. Further, the exception to the equidistance rule and the possibility of making reservations raise doubts to norm-creating character of the article.

    • The number of ratifications and accessions so far is hardly sufficient to create a customary rule of international law in and of itself. With regards to state practise, this rule should have been extensive and virtually uniformly invoked in such a way as to show a general recognition that a rule of law was involved. The 15 cited cases where states had drawn the boundaries according to the principle of equidistance, but there is no evidence to support the notion that they felt legally compelled to do so.

Germany v Denmark and the Netherlands

• The Equidistance Principle is not a rule of Customary International Law

  • The Netherlands and Denmark argued that such a rule had come into being since the Convention in part because of its own impact, and additionally on the basis of subsequent State practice.

    • For this to occur, Article 6 should be of a norm creating character. However, the primary obligation found in Article 6 is delimitation by agreement. Further, the exception to the equidistance rule and the possibility of making reservations raise doubts to norm-creating character of the article.

    • The number of ratifications and accessions so far is hardly sufficient to create a customary rule of international law in and of itself. With regards to state practise, this rule should have been extensive and virtually uniformly invoked in such a way as to show a general recognition that a rule of law was involved.15 cases where states had drawn the boundaries according to the principle of equidistance were cited, but there is no evidence to support the notion that they felt legally compelled to do so.

Germany v Denmark and the Netherlands

• The Applicable Principles and Rules

  • Ex aequo et bono - "according to the right and good"

    • The parties were to conduct themselves so that the following negotiations would be meaningful and be willing to contemplate modifications to their own positions as stated in Article 33 of the Charter of the UN. Equitable principles were to be applied. The following factors should be taken into account:

      • The general configuration of the coasts of the Parties, as well as the presence of any special or unusual features

      • The physical and geological structure and natural resources of the continental shelf areas involved

      • The element of a reasonable degree of proportionality between the extent of the continental 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.

Germany v Denmark and the Netherlands

The effects of the case

• After a longlasting consideration, the court found that the regime of the continental shelf had been established a customary rule of international law. 
• Also court elaborated on how to define basically what is a continental shelf, and in-addition the court had to make a clear distinction between the words delimitation, and apportionment. 
• The Natural Prolongation Doctrine has arised from the North Sea Shelf cases, it has given a basis of title to the Continental Shelf, and even if revised subtly, it has been used in many other cases afterwards. (Anglo-French, Tunisia-Libya...)

Germany v Denmark and the Netherlands

The effects of the case

• The North Sea cases affected grandly on China and Korea against Japan cases, with the statement: "No state is entitled to claim it's natural prolongation, without keeping regard towards other state(s) that are in the same sea area."
• The China and Korea case is called East China Sea disputes. In this case China did  propose the application of UNCLOS, in regards of natural prolongation of its own continental shelf, advocating that their exclusive economical zone does extend until the Okinawa through. 
• The Chinese Foreign ministry did a statement concerning the matter:  "The natural prolongation of the continental shelf of China in the East China Sea extends to the Okinawa Trough and beyond 200 nautical miles from the baselines from which the breadth of the territorial sea of China is measured."

Questions?