Assignment international treaty law north sea continental shelf, f r germany v denmark, f r germany v netherlands, icj report, 1969

DIPLOMATIC ACADEMY OF VIETNAM FACULTY OF INTERNATIONAL LAW ASSIGNMENT INTERNATIONAL TREATY LAW Members : Tran Khanh Ly Rufino Aybar Carmona Le Thi Minh Trang Le Minh Do Ngoc Phuong Linh Class : Instructor : LQT44C Ngo Thi Trang Hanoi, December 2019 A North Sea Continental Shelf, F.R Germany v Denmark, F R Germany v Netherlands, ICJ Report, 1969 I Overview of the case These cases concerned the delimitation of the continental shelf of the North Sea as between Denmark and the Federal Republic of Germany, and as between the Netherlands and the Federal Republic, and were submitted to the Court by Special Agreement The Parties asked the Court to state the principles and rules of international law applicable, and undertook thereafter to carry out the delimitions on that basis In its Judgment, delivered on 20 February 1969, the Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable principles in such a way as to leave to each Party those areas of the continental shelf which constituted the natural prolongation of its land territory under the sea, and it indicated certain factors to be taken into consideration for that purpose The Court rejected the contention that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in the 1958 Geneva Convention on the Continental Shelf The Court took account of the fact that the Federal Republic had not ratified that Convention, and held that the equidistance principle was not inherent in the basic concept of continental shelf rights, and that this principle was not a rule of customary international law II Facts of the case Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and C-D) An agreement on further prolongation of the boundary proved difficult because Denmark and Netherlands wanted this prolongation to take place based on the equidistance principle (B-E and D-E) where as Germany was of the view that, together, these two boundaries would produce an inequitable result for her Germany stated that due to its concave coastline, such a line would result in her losing out on her share of the continental shelf based on proportionality to the length of its North Sea coastline The Court had to decide the principles and rules of international law applicable to this delimitation In doing so, the Court had to decide if the principles espoused by the parties were binding on the parties either through treaty law or customary international law III Questions before the Court Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in Article of the Geneva Convention on the Continental Shelf of 1958, either as a customary international law rule or on the basis of the Geneva Convention? Article 6: Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured 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 In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs and 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 IV Arguments presented by the parties Denmark and the Netherlands argued that the method of equidistance should be implemented This is that each State claimed all areas that are closer to itself than any other state They claimed that the Geneva Convention supported this method Moreover, it was alleged to have been an a priori rule of law, a rule of customary international law, and a general rule of conventional practicality Germany, who had not ratified the Geneva Convention, claimed that the rule of equidistance was unfair The State also argued for an apportionment of the shelf that was proportional to the size of each state’s adjacent land V Relevant Findings of the Court: Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on Germany? a Article of the Geneva Convention stated that unless the parties had already agreed on a method for delimitation or unless special circumstances exist, the equidistance method would apply Germany had signed, but not ratified, the Geneva Convention, while Netherlands and Denmark were parties to the Convention The latter two States argued that while Germany is not a party to the Convention (not having ratified it), it was still bound by Article of the Convention because: “…(1) by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has recognized it as being generally applicable to the delimitation of continental shelf areas…(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up” (the latter is called the principle of estoppel) (As it is most commonly described, estoppel is a rule of international law that bars a party from going back on its previous representations when those representations have induced reliance or some detriment on the part of others.) b The Court rejected the first argument It said that only a ‘very definite very consistent course of conduct on the part of a State would allow the Court to presume that the State had somehow become bound by a treaty (by a means other than in the formal manner: i.e ratification) when the State was ‘at all times fully able and entitled to…’ accept the treaty commitments in a formal manner The Court held that Germany had not unilaterally assumed obligations under the Convention The court also took notice of the fact that even if Germany ratified the treaty, she had the option of entering into a reservation on Article 6, following which that particular article would no longer be applicable to Germany (in other words, 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) c The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980, discusses in more detail treaty obligations of third States (those States who are not parties to the treaty) It clearly stipulates that obligations arise for third States from a provision of a treaty only if (1) the actual parties to the treaty intended the provision to create obligations for third States; and (2) third State expressly accept those obligations in writing (Article 35 of the VCLT) The VCLT was not in force when the Court deliberated on this case However, as seen above, the Court’s position is consistent the VCLT (See the relevant provisions of the Vienna Convention on the Law of Treaties) d The Court held that the existence of a situation of estoppel would have allowed Article to become binding on Germany – but held that Germany’s action did not support an argument for estoppel The Court also held that the mere fact that Germany may not have specifically objected to the equidistance principle as contained in Article 6, is not sufficient to state that the principle is now binding upon it e In conclusion, the Court held that Germany had not acted in any manner so as to incur obligations contained in Article of the Geneva Convention The equidistance–special circumstances rule was not binding on Germany by way of treaty law Nature of the customary international law obligation: Is Germany bound by the provisions of Article of the Geneva Convention in so far as they reflect customary international law? Netherlands and Denmark argued that Article also reflected ‘the accepted rule of general international law on the subject of continental shelf delimitation’ and that it existed independently of the Convention Therefore, they argued, Germany is bound by the subject matter of Article by way of customary international law To decide if the equidistance principle bound Germany by way of customary international law, the Court examined (1) the status of the principle contained in Article as it stood when the Convention was being drawn up; and (2) its status after the Convention came into force a What was the customary law status of Article at the time of drafting the Convention? ❖ The Court held that the principle of equidistance, as contained in Article did not form a part of existing or emerging customary international law at the time of drafting the Convention The Court supported this finding based on (1) the hesitation expressed by the drafters of the Convention, the International Law Commission, on the inclusion of Article into the Convention and (2) the fact that reservations to Article was permissible under the Convention The Court held: “… Article is one of those in respect of which, under the reservations article of the Convention (Article 12) reservations may be made by any State on signing, ratifying or acceding, – for speaking generally, it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted; whereas this cannot be so in the case of general or customary law rules and obligations which, by their very Recommandé pour toi Suite du document ci-dessous ĐỀ MINH HỌA SỐ - About a mathematics exercises international trade 100% (4) Unit Listening CN tự học Học viện ngoại giao international trade 100% (1) nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favor… The normal inference would therefore be that any articles that not figure among those excluded from the faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules of law …” (see para 65 for a counter argument and the Court’s careful differentiation) b Did the provisions in Article on the equidistance principle attain the customary law status after the Convention came into force? The Court then examined whether the rule contained in Article 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 of the Convention had not attained a customary law status (Compare the 1958 Geneva Convention with the four Geneva Conventions on 1949 relating to international humanitarian law in terms of the latter’s authority as a pronouncement of customary international law) For a customary rule to emerge the Court held that it needed: (1) very widespread and representative participation in the Convention, including States whose interests were specially affected (in this case, they were coastal States) (i.e generality); and (2) virtually uniform practice (i.e consistent and uniform usage) undertaken in a manner that demonstrates (3) a general recognition of the rule of law or legal obligation (i.e opinio juries) In the North Sea Continental Shelf cases the court held that the passage of a considerable period of time was unnecessary (i.e duration) for the formation of a customary law Widespread and representative participation The Court held that the first criteria was not met The number of ratifications and accessions to the Convention (39 States) were not adequately representative or widespread Duration The Court held that the duration taken for a customary law rule to emerge is not as important as widespread and representative participation, uniform usage, and the existence of an opinio juris It held that: “Although the passage of only a short period of time (in this case, – years) is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.” Opinio juris Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so far as those acts or omissions were done following a belief that the said State is obligated by law to act or refrain from acting in a particular way The Court examined 15 cases where States had delimited their boundaries using the equidistance method, after the Convention came into force (paras 75 -77) The Court concluded that even if there were some State practice in favour of the equidistance principle, the Court could not deduct the necessary opinio juris from this State practice The North Sea Continental Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the subjective element) are essential pre-requisites for the formation of a customary law rule This is consistent with Article 38 (1) (b) of the Statute of the ICJ The Court explained the concept of opinio juris and the difference between customs (i.e habits) and customary law: “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis The States concerned must therefore feel that they are conforming to what amounts to a legal obligation The frequency, or even habitual character of the acts is not in itself enough There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.” (Para 77) The Court concluded that the equidistance principle was not binding on Germany by way of treaty or customary international law In the case of the latter, the principle had not attained a customary international law status at the time of the entry into force of the Geneva Convention or thereafter As such, the Court held that the use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings VI Meaning of the CIL The Court found in each case that the use of the equidistance method of delimitation was not obligatory as between the Parties; that no other single method of delimitation was in all circumstances obligatory; that delimitation was to be affected by agreement in accordance with equitable principles and taking account of all relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constituted a natural prolongation of its land territory, without encroachment on the natural prolongation of the land territory of the other; and that, if such delimitation produced overlapping areas, they were to be divided between the Parties in agreed proportions, or, failing agreement, equally, unless they decided on a régime of joint jurisdiction, user, or exploitation B Military and Paramilitary Activities in and against Nicaragua, Nicaragua v US, ICJ Report, 1986 I Overview of the case: This case was about military and paramilitary activities conducted by, or with the assistance of, the United States against Nicaragua from 1981 to 1984 Due to a United States’ multilateral treaty reservation, (the Vandenberg reservation), the Court could not rely on the United Nations Charter and was compelled to base its findings in relation to the use of force customary and general principles of international law As a result, the Nicaragua case developed a significant jurisprudence on customary international law relating to (1) the use of force and non-intervention, (2) elements necessary to form customary international law, and (3) the relationship between customary and treaty law II Facts of the case: In July 1979, the Government of President Somoza was replaced by a government installed by Frente Sandinista de Liberacion Nacional (FSLN) Supporters of the former Somoza Government and former members of the National Guard opposed the new government The US – initially supportive of the new government – changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador In April 1981 the United States stopped its aid to Nicaragua and in September 1981, according to Nicaragua, the United States “decided to plan and undertake activities directed against Nicaragua” The armed activities against the new Government was carried out mainly by (1) Fuerza Democratica Nicaragüense (FDN), which operated along the border