Introduction

• This case revolves around the requirements of the law it must hold to attain the status of customary law.

Facts

• In the present case the Federal Republic of the Germany (Plaintiff) were claiming its boundary in the continental shelf of Northern Sea.
• Netherlands (Respondent) divided their boundaries based on the equidistance principle.
• An agreement on further prolongation of the boundary proved difficult because Netherlands wanted this prolongation to take place based on the equidistance principle.
• Germany argued that due to its concave coastline it would result in loosing out on share of the continental shelf based on proportionality to the length of its North Sea coastline.
• Respondent argued that the boundaries should be determined by the application of the principle of equidistance under Article 6 of the Geneva Convention of 1958 on the Continental Shelf, which by 1^st January 1969 had been ratified by 39 states but to which Germany was not a party.
• It was also contended by the respondent that irrespective if Germany is signatory or not, based on the general rule of international law Germany was bound to accept the delimitation on an equidistance basis as it is a customary law.

Issues Involved

• Whether delimitation is an integral part of the equitable agreement between the parties?
• Whether Equidistance principle is a customary law?

Observations

• The International Court of Justice (ICJ) observed that Article 6 of the Geneva Convention of 1958 makes the obligation to use the equidistance method a secondary one which comes into play only when agreements between the parties are absent.
  • It was noted by the ICJ that even if one were to assume that Germany had intended to become a party to the Convention, it does not presuppose that it would have also undertaken those obligations contained in Article 6 of the Geneva Convention of 1958.
  • The Court also held that the mere fact that Germany may not have specifically objected to the equidistance principle as contained in Article 6 of the Geneva Convention of 1958, is not sufficient to state that the principle is now binding upon it.
• The ICJ also listed the criteria to be determined while considering a practice as customary law and after making due consideration and applying those criteria on the Equidistance principle it was found that the principle has not attained the customary law status.

Conclusion

• The ICJ held that the delimitation is not obligatory for equidistance method for the areas concerned in the present case and it is not a customary law.
• Therefore, Article 6 of the Geneva Convention of 1958 is not binding upon Germany.