Understanding the North Sea Continental Shelf cases (1969)

For this new public international law on Space Legal Issues, let us have a look at the North Sea Continental Shelf cases (1969). The question of the law of the sea has always been an issue, and especially since the time of colonisation in the 15th Century. Two main school of thoughts were always in opposition: on the one hand, there were the partisans of a sea which would belong to nobody and on the other hand, the partisans of the extension of the sovereignty of the State to the sea. So when Grotius published Mare Liberium (“The open sea”), a publication in favor of the freedom of the seas, Selden responded by publishing Mare Clausum (“The closed sea”), in which he declared English sovereignty over the sea around the British Isles. Despite the debate, the freedom of the seas was the concept retained and respected by the majority. Even today, a large part of the seas and oceans remain without any sovereignty and are called international waters.

However, the beginning of the 20th Century and the two world wars changed the rules. The States started to be concerned about the law of the sea. In 1930, an attempt to reach an agreement on the law of the sea failed and it was the Truman Proclamation on the Continental Shelf of 1945 that greatly influenced the development of the law of the sea. In this proclamation, the United States of America declared its sovereignty and jurisdiction over the natural resources of the continental shelf. In addition, the proclamation considered the continental shelves as an extension of the land of a coastal nation. This point of view was so vastly used that it has been codified in the 1982 United Nations Convention of the Law of the Sea.

The continental shelf is currently at the center of disputes between coastal states. But what is a continental shelf? It can be defined as the area of a land on the edge of a continent that slopes into the ocean. It extends from the coastline of a continent to a point called the shelf break. They are part of the continent and thus, each country that has a coastline has a continental shelf. These places are very strategic and are, from an economic point of view, necessary for the States. The continental shelf is very often rich in hydrocarbons, such as oil and gas, and in biological resources too. Such resources are more than necessary for the present economy and for human kind. For these reasons, the continental shelves are the subject of a merciless battle between the States which seek at all costs a part of it. This has led to a multitude of conflicts, the best known of which would be the North Sea Continental Shelf Cases (1969).

The North Sea Continental Shelf Cases (1969) opposed Germany v. Denmark and the Netherlands and concerned a series of disputes that came before the International Court of Justice in 1969. The disputes were about agreements, or this case disagreements, between Denmark, Germany and the Netherlands, regarding the delimitation of areas of the continental shelf in the North Sea. The parties had organised negotiations in order to find an agreement on the delimitation of the boundaries of the continental shelf.

If the delimitation had been determined by the equidistance rule (which is drawing a line, each point of which is equally distant from each shore), Germany would have received a smaller portion of the North Sea Continental shelf. The Federal Republic of Germany refused to use a principle that would have given it an unfair share. As the negotiations were fruitless, the countries decided to submit the matter to the International Court of Justice.

Germany argued and wanted the Court to determine the shares in proportion of the size of the state’s adjacent land, which Germany found to be a just and equitable share. However, in order to have the Court apply the principle of equidistance to settle the conflict, Denmark and the Netherlands invoked the fact that they had ratified the Geneva Continental Shelf Convention of 1958. According to the Article 6 of this convention, in the absence of an agreement, “the boundary shall be determined by application of the principle of equidistance”. For them, the equidistance principle was simply not a method of cartographical delimitation but an essential element in a rule of law, which should be applied. A new problem arose: Germany had not ratified the convention.

Thus leading to the main question the Court had to answer: was the equidistance principle a customary international law binding on all States, or as it rephrased it, is the Federal Republic of Germany under a legal obligation to accept the application of the equidistance principle? The Court ruled in its judgement delivered in February 1969 that the delimitation of the shares should be decided by an agreement between the Parties and most importantly, in accordance with equitable principles. Each party should have roughly the same portion of the continental shelf. With this judgement, the Court rejected the use of the principle of equidistance as defined in the Geneva Convention. It also declared that this principle was not a mandatory rule of customary international law as it was not a settled practice. The Court also argued that the Geneva Convention of 1958 could not be opposed to the Federal Republic of Germany.

Concerning the North Sea Continental Shelf cases (1969), as the parties had already agreed to delimit the shares of the continental shelf by agreement, the Court was therefore not responsible for prescribing the rules that should be applied in order to settle the conflict. As new negotiations would begin, the Court indicated that several factors should be taken into account, such as the configuration of the coasts and the physical structure and natural resources of the continental shelf areas, and the shares should be determined in a fair and equitable manner.

The United States Convention of the Law of the Sea of 1982 laid down the rules concerning the delimitation of the continental shelf belonging to a State. Now, it includes an area up to 200 nautical miles from the baseline of a state’s coast. But it can extend up to 350 nautical miles only if in return, the State distributes the resources drawn from this bonus. However, as in the North Sea Continental Shelf Case, the coasts of two states may be adjacent or opposite and may interfere with this famous area of 200 nautical miles. In this case, a “marine delimitation” will be necessary. It usually results from negotiations between the States, which would have to follow the law of the sea. If the negotiations are fruitless, the matter can be settled either by an arbitral tribunal, by the International Court of Justice or by the International Tribunal for the Law of the Sea. This is what can be said concerning the North Sea Continental Shelf cases (1969).