国际法 北海大陆架.docx

1、国际法 北海大陆架Summary of the Judgment of 20 February 1969NORTH SEA CONTINENTAL SHELF CASES (Federal Republic of Germany v Denmark; FRG v Netherlands)Judgment of 20 February 1969The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases.The dispute, which was submitted to the

2、 Court on 20 February 1967, related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other. The Parties asked the Court to state the principles and rules of interna

3、tional law applicable, and undertook thereafter to carry out the delimitations on that basis.The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in Article

4、6 of the 1958 Geneva Convention on the Continental Shelf, holding:-that the Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6;-that the equidistance principle was not a necessary consequence of the general concept of continental shelf right

5、s, and was not a rule of customary international law.Non-Applicability of Article 6 of the 1958 Continental Shelf Convention (paras. 21-36 of the Judgment) The Court then turned to the question whether in delimiting those areas the Federal Republic was under a legal obligation to accept the applicat

6、ion of the equidistance principle. While it was probably true that no other method of delimitation had the same combination of practical convenience and certainty of application, those factors did not suffice of themselves to convert what was a method into a rule of law. Such a method would have to

7、draw its legal force from other factors than the existence of those advantages.The first question to be considered was whether the 1958 Geneva Convention on the Continental Shelf was binding for all the Parties in the case. Under the formal provisions of the Convention, it was in force for any indiv

8、idual State that had signed it within the time-limit provided, only if that State had also subsequently ratified it. Denmark and the Netherlands had both signed and ratified the Convention and were parties to it, but the Federal Republic, although one of the signatories of the Convention, had never

9、ratified it, and was consequently not a party. It was admitted on behalf of Denmark and the Netherlands that in the circumstances the Convention could not, as such, be binding on the Federal Republic. But it was contended that the rgime of Article 6 of the Convention had become binding on the Federa

10、l Republic, because, by conduct, by public statements and proclamations, and in other ways, the Republic had assumed the obligations of the Convention.It was clear that only a very definite, very consistent course of conduct on the part of a State in the situation of the Federal Republic could justi

11、fy upholding those contentions. When a number of States drew up a convention specifically providing for a particular method by which the intention to become bound by the rgime of the convention was to be manifested, it was not lightly to be presumed that a State which had not carried out those forma

12、lities had nevertheless somehow become bound in another way. Furthermore, had the Federal Republic ratified the Geneva 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.Only the existence of a situation of estopp

13、el could lend substance to the contention of Denmark and the Netherlands-ie., if the Federal Republic were now precluded from denying the applicability of the conventional rgime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that rgime,

14、but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this there was no evidence. Accordingly, Article 6 of the Geneva Convention was not, as such, applicable to the delimitations involved in the present proceedings

15、.The Equidistance Principle Not a Rule of Customary International Law (paras.60-82 of the Judgment) The question remained whether through positive law processes the equidistance principle must now be regarded as a rule of customary international law.Rejecting the contentions of Denmark and the Nethe

16、rlands, the Court considered that the principle of equidistance, as it figured in Article 6 of the Geneva Convention, had not been proposed by the International Law Commission as an emerging rule of customary international law. This Article could not be said to have reflected or crystallized such a

17、rule. This was confirmed by the fact that any State might make reservations in respect of Article 6, unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the Convention. While certain other provisions of the Convention, although relating to matters that lay within the field of received c

18、ustomary law, were also not excluded from the faculty of reservation, they all related to rules of general maritime law very considerably antedating the Convention which were only incidental to continental shelf rights as such, and had been mentioned in the Convention simply to ensure that they were

19、 not prejudiced by the exercise of continental shelf rights. Article 6, however, related directly to continental shelf rights as such, and 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.It had been

20、 argued on behalf of Denmark and the Netherlands that even if at the date of the Geneva Convention no rule of customary international law existed in favour of the equidistance principle, such a rule had nevertheless come into being since the Convention, partly because of its own impact, and partly o

21、n the basis of subsequent State practice. In order for this process to occur it was necessary that Article 6 of the Convention should, at all events potentially, be of a norm-creating character. Article 6 was so framed, however, as to put the obligation to make use of the equidistance method after a

22、 primary obligation to effect delimitation by agreement. Furthermore, the part played by the notion of special circumstances in relation to the principle of equidistance, the controversies as to the exact meaning and scope of that notion, and the faculty of making reservations to Article 6 must all

23、raise doubts as to the potentially norm-creating character of that Article.Furthermore, while a very widespread and representative participation in a convention might show that a conventional rule had become a general rule of international law, in the present case the number of ratifications and acc

24、essions so far was hardly sufficient. As regards the time element, although the passage of only a short period of time was not necessarily a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, it was indispensable that Sta

25、te practice during that period, including that of States whose interests were specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved. Some

26、15 cases had been cited in which the States concerned had agreed to draw or had drawn the boundaries concerned according to the principle of equidistance, but there was no evidence that they had so acted because they had felt legally compelled to draw them in that way by reason of a rule of customar

27、y law. The cases cited were inconclusive and insufficient evidence of a settled practice.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

28、 subsequent effect had not been constitutive of such a rule, and State practice up to date had equally been insufficient for the purpose.The Principles and Rules of Law Applicable (paras.83-101 of the Judgment) The Parties were under an obligation to act in such a way that in the particular case, an

29、d taking all the circumstances into account, equitable principles were applied. There was no question of the Courts decision being ex aequo et bono. It was precisely a rule of law that called for the application of equitable principles, and in such cases as the present ones the equidistance method c

30、ould unquestionably lead to inequity. Other methods existed and might be employed, alone or in combination, according to the areas involved. Although the Parties intended themselves to apply the principles and rules laid down by the Court some indication was called for of the possible ways in which

31、they might apply them.For all the foregoing reasons, 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 effected b

32、y 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 natura

33、l 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 rgime of joint jurisdiction, user, or exploitation.问题：1、为什么国际法院在本案中没有适用1958年日内瓦大陆架公约第六条？ 本案中，哪个国