Jurisprudence International Public Law
Class 2 | Sources of International Law
North Sea Continental Shelf (Federal Republic of Germany v. Denmar, Federal
Republic of Germany v. The Netherlands) [1969] I.C.J. Reports, p. 3
This case is about the limitation of the continental shelf in the North Sea. It was a case
between Denmark and The Netherlands on the one hand, and Germany on the other
hand. They each proposed different ways to delimit the continental shelf between the
states:
- Germany: “We must give each State a just and equitable share”
- Netherlands and Denmark: “We must apply rule of equidistance, except in special
circumstances”
The Netherlands and Denmark stated the following: “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 rearrest points of the
baselines from which the breadth of the territorial sea of each State is measured.” With
this they referred to article 6 Geneva convention of the Continental Shelf, a convention
which Germany is not a party of.
What does custom say? Denmark and The Netherlands argued that the treaty
provision was reflective of customary international law. This would mean that it would
also be binding for Germany.
Legal issue: “Can the existence of a customary rule be derived from a treaty, and if yes,
under what conditions?”
In this case, the ICJ develops two criteria, which are important to determine if something
is customary law:
1. State practice (para. 73 & 74)
2. Opinio juris (para. 77)
The court stated the following: “Articles in a convention can be regarded as reflecting, or
as crystallizing, received or at least emergent rules of customary international law. Even
without the passage of any considerable period of time, a very widespread and
representative participation in the convention might suffice of itself to make a
provision in the convention customary, provided it included that of States
whose interests were specifically affected.” (para. 73).
“Although the passage of only a short period of time 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.” (para. 74)
Think about:
- How ‘general’ (generality)? “widespread and representative, incl States
whose interests are specially affected”
- Whose practice? Specially affected States
- Duration of practice? Can be short, can be long
- Nature of practice (consistency): Extensive and virtually uniform
The essential point in this connection-and it seems necessary to stress it-is that
even if these instances of action by non-parties to the Convention were much more
numerous than they in fact are, they would not, even in the aggregate, suffice in
themselves to constitute the opinio juris; for, in order to achieve this result, two
conditions must be fulfilled. 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
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, 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).
Week 3 | Subjects of International Law
ICJ Reparations for Injuries Suffered in the Service of the United Nations,
Advisory opinion [1949] I.C.J. Reports, p. 174
This advisory opinion involved Count Folke Bernatdotte, an experienced Swedish
diplomat. Due to his experiences, he was appointed by the UN as a mediator on the Arab-
Israeli conflict. He was sent to Jerusalem. Unfortunately, in September 1948 he was
assassinated by an armed Jewish group. The UN wants to file an international claim
against Israel, but doesn’t know if this is possible. At the time, the UN only existed for a
few years. There were still fundamental questions about the position of the UN within the
International Legal Order. The UN has decided to request an advisory opinion from the
International Court of Justice.
Legal issue: “Can the UN bring an international claim against Israel?”
Two things were important when answering this question. The first question is if it was
even possible for the UN to file an international claim. The second question is if the UN
can file a claim against a non-member of the State. At the time of this assassination,
Israel was not yet part of the UN.
Can the UN bring an international claim for damage suffered by the UN?
According to the court, the question whether the UN possesses international personality
has to be answered first. The court says ‘yes’. The reasons for this were:
- In order for the UN to fulfill its functions, to possess international personality
was indispensable.
- This however does not mean that they are a State. This depends on the
purposes and functions specified or implied. A State is a full subject of
International Law, IO’s are partial subjects of International law. Their powers are
specified in its constituent documents (in this case, the UN Charter). (page 9)
Page 10: “It is clear that the Organization has the capacity to bring a claim for
this damage. As the claim is based on the breach of an international obligation
on the part of the Member held responsible by the Organization, the Member
cannot contend that this obligation is governed by municipal law, and the
Organization is justified in giving its claim the character of an international
claim.”
How about the damage caused to Mr. Bernadotte?
The UN Charter does not say anything about the UN capacity to claim damage caused to
its agent. The ICJ however stated that there is another option: the concept of implied
powers. According to the court, the UN also possessed powers by ‘necessary implication’
as being ‘essential to the performance of [the UN’s] duties’. But why does this apply in
this specific situation:
- Because the UN must protect its agents (page 11)
- The UN must safeguard this institutional independence (page 12)
Page 12: “When an infringement occurs, the Organization should be able to call
upon the responsible State to remedy its default, and, in particular, to obtain
from the State reparation for the damage that the default may have caused to
its agent.”
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