THE NORTH SEA CONTINENTAL SHELF CASES AND LAW‐MAKING CONVENTIONS
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01318.x |
| Date | 01 January 1972 |
| Published date | 01 January 1972 |
| Author | L. D. M. Nelson |
THE NORTH SEA CONTINENTAL SHELF
CASES AND LAW-MAKING CONVENTIONS
DURING the last two decades the International Law Commission
under the aegis
of
the United Nations has been proceeding with the
task
of
codifying the rules of international law. This process has
resulted in the conclusion of important multilateral conventions-
the
four
Geneva Conventions on the Law
of
the
Sea
(1958),
the
Vienna Convention on Diplomatic Relations
(1961),
the Vienna
Convention on Consular Relations
(1963)
and the Vienna Convention
on the Law
of
Treaties
(1969).
These conventions not only codified
the then existing rules
of
customary international law but they also
aided the progressive development
of
the law in the sense that they
embodied new legal norms. There are two ways by which these new
rules may become binding on members
of
the international com-
munity. States may ratify the conventions in which these rules are
embodied
or
such rules may themselves become the norms of
customary international 1aw.l The fact that States
for
one reason
or
another are notoriously slow in ratifying such conventions
makes
it
a
matter
of
some importance
to
the international com-
munity
to
have light thrown, as
it
were, on the
‘(
mysterious
process
”
by which such rules evolve into norms of international
customary law. the International
Court
of
Justice had the opportunity of considering this pheno-
menon. One of the significant issues the Court had to decide
was whether the Convention on the Continental Shelf
(1958),
in
particular whether Article
6
(2),4
which embodied the so-called equi-
distance
or
equidistance
cum
special circumstances rule, was binding
upon Germany. Since Germany had not ratified the Convention on
the Continental Shelf, the Court’s task was
to
determine
inter alia
whether the equidistance rule had become part of international
customary law.
Besides examining once again the problem of the creation of
customs in international law, the Court made some interesting
In ‘the
North Sea Continental Shelf Cases
1
Cf.
Art.
38
of the Vienna Convention
on
the Law
of
Treaties (1969).
2
The
International Law Commission in fact considers the failure
of
negotiating
States
to
take the necessary steps to become parties
to
multilateral treaties
a
great obstacle to the development
of
international liaw through the medium
of treaties.
See
Yearbook
of
the International Law Commission,
1966,
Vo1
ii
n
206
--9
r-
3
1.CYJ.
Rep. 1969, p.
3.
4
Art.
6
(2)
:
“
Where the same continental shelf is adjacent
to
the territories
of
two adiacent States. the boundary
of
the continental shelf shall
he
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 applioation
of
the principle of equidistance
from the nearest points
of
the base-lines from which
the
breadth of the
territorial
,sea
of
each Sta-te
is
measured.”
52
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