JURI 4640:
International Law I
The International Legal Process

Professor Bodansky
University of Georgia School of Law

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CLASS 15:
Treaty and Custom: The 1958 Continental Shelf Convention

Assignment

Read the materials below together with:

Consider the following questions:

  1. Why did states attempt to develop a convention on the continental shelf, rather than just rely on the customary lawmaking process? What are the benefits of treaties over customary law? What are the disadvantages, if any?

  2. To what degree did the 1958 Continental Shelf Convention codify customary international law? To what extent did it represent progressive development? Can these activities be distinguished?

  3. Can norms contained in treaties ever bind non-parties? If so, how? What factors are relevant to determining whether a treaty norm applies to non-parties?

  4. Do any norms in the 1958 Continental Shelf Convention bind non- parties? If so, which ones and why?

  5. Should treaties be considered a type of state practice that can create customary norms? Why or why not? What is the ICJ's view in the North Sea Continental Shelf Cases?

  6. In the North Sea Continental Shelf Cases, the ICJ stated:
    Even if these instances of [delimitations using the equidistance principle] by nonparties 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 be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. (para. 77)
    How can opinio juris be established? Are explicit statements by states required, or can we in some cases infer opinio juris from state practice? If the latter, when is such an inference appropriate?

Background

In 1958, the UN Conference on the Law of the Sea adopted four conventions, including the Convention on the Continental Shelf. The 1958 Continental Shelf Convention provides coastal states with "exclusive" rights over the continental shelf "for the purpose of exploring it and exploiting its natural resources." According to the Convention, these rights "do not depend on occupation, effective or notional, or on any express proclamation." (Article 2)

The Convention was initially developed by the International Law Commission (ILC), a body established by the UN General Assembly in 1946 to "codify" and "progressively develop" international law.FN1 In this section we will use the Continental Shelf Convention as a vehicle to examine the concepts of codification and progressive development, as well as the relationship of treaties and customary law. After reading the following materials on codification and progressive development, read the excerpts from the Digest of International Law concerning the adoption of the Continental Shelf Convention.

Codification and progressive development

According to the ILC's Statute, "progressive development" refers to "the preparation of draft conventions on subjects which have not yet been regulated by written international law or in regard to which the law has not yet been sufficiently developed in the practice of States." (Statute of the ILC art. 15) "Codification" means "the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine." (Id.)

Prior to the creation of the ILC, efforts to codify particular fields of international law had been made by both public and private groups.

Before the First World War notable success was achieved by the Hague Conventions of 1899 and 1906, resulting from the Hague Conferences of the same years, on the laws of war and neutrality. Between the two world wars, the League of Nations sponsored a Codification Conference at The Hague in 1930 which was prepared for in optimistic mood and which examined the law of nationality, territorial waters and state responsibility. It was a great disappointment when agreement was possible only on certain aspects of the law of nationality.FN2

Since its creation in 1946, the ILC has been responsible for preparing the initial drafts of many multilateral conventions, including the Vienna Convention on the Law of Treaties and the Vienna Convention on Diplomatic Relations. In its work, the ILC does not indicate which parts of a treaty "codify" existing international law and which parts represent "progressive development." Some scholars have questioned whether a sharp separation can be drawn between the two. As Judge Sorenson stated in his dissenting opinion in the North Sea Continental Shelf Cases:

Although theoretically clear and distinguishable, the two notions tend in practice to overlap or to leave between them an intermediate area in which it is not possible to indicate precisely where codification ends and progressive development begins. The very act of formulating or restating an existing customary rule may have the effect of defining its contents more precisely and removing such doubts as may have existed as to its exact scope or the modalities of its application. The opportunity may also be taken of adapting the rule to contemporary conditions, whether factual or legal, in the international community. On the other hand, a treaty purporting to create new law may be based on a certain amount of State practice and doctrinal opinion which has not yet crystallized into customary law.

How does the ILC approach the problem of codifying and progressively developing international law? Professor Oscar Schachter of Columbia Law School provides the following discussion:

Before the United Nations began its work in the early 1950s, sharp differences had been expressed on whether codification should be a scientific or political task. The debate on this issue reflected, in some degree, the differences concerning positivism, voluntarism and state sovereignty. Those who saw codification as essentially scientific considered as Cecil Hurst did that [the ILC's] task was to "ascertain" and "declare the existing rule of international law, irrespective of any question as to whether the rule is satisfactory or unsatisfactory, obsolete or still adequate to modern conditions, just or unjust in the eyes of those who formulate it." That task could be carried out, it was assumed, solely on the basis of state practice and precedent. It was in its essence an inductive process that could and should be entrusted to independent jurists, not governments. . . .

The idea of a truly scientific, non-governmental restatement of international law did not find the requisite support in the United Nations. . . . The objection to scientific, non-official codification had several grounds. There was a basic difficulty with the idea implicit in the ILC definition . . . that "extensive state practice, precedent and doctrine" would yield a rule of law. [Some pointed] out that any attempt to formulate an explicit and clear rule, or systematizing rules based on precedent, involved elements of novelty. It assumes agreement where none may exist.FN3

In developing conventions, the ILC has used a two-step process. First, it develops a convention text, soliciting comments along the way from governments. (Governments may also express their views when the Legal Committee of the UN General Assembly discusses the ILC's yearly reports.) Second, the ILC text is discussed and adopted at an inter-governmental conference, such as the 1958 Conference on the Law of the Sea.

Treaties and Customary Law

One of the main questions that has arisen with respect to multilateral conventions such as the 1958 Continental Shelf Convention is their relation to customary international law. As a matter of treaty law, treaties do not bind non-parties. The Vienna Convention on the Law of Treaties expressly states that "a treaty does not create either obligations or rights for a third State without its consent." (Article 34) However, the norms contained in a treaty may bind non-parties if they codify existing norms of customary international law or become new customary norms. This process is expressly recognized in Article 39 of the Vienna Convention, which states, "Nothing in article 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such."

North Sea Continental Shelf Cases

The relationship between treaties and custom has been discussed most extensively in the ICJ's opinion in the North Sea Continental Shelf Case. These cases involved a dispute between Denmark and the Netherlands on the one hand, and Germany on the other, about how to divide up a portion of the North Sea continental shelf. By the time these cases arose, much of the North Sea continental shelf had already been divided up through a series of agreements between the United Kingdom on the one hand, and Norway, Denmark and the Netherlands on the other. These three delimitations were carried out by drawing what are known as "median lines," which are indicated on the accompanying map (next page) by the solid lines. In addition, partial boundary lines between Germany and Denmark, and between Germany and the Netherlands, were established by means of treaties; these boundaries are indicated on the map by the solid lines AB and CD respectively.

The question in the North Sea Continental Shelf Cases was how to divide up that part of the continental shelf represented by the triangle BFD. This was the only portion of the shelf in dispute. On the one hand, Denmark and the Netherlands sought to draw the boundary lines between themselves and Germany using the "equidistance" test set forth in Article 6 of the 1958 Continental Shelf Convention. These boundaries are indicated on the map by the line ABEF and CDEF respectively; under this delimitation, Germany would have received only the area in the triangle ABEDC. On the other hand, Germany argued that it was not bound by the equidistance test, since it had not become a party to the 1958 Continental Shelf Convention. Instead, it sought to draw straight boundary lines represented by ABF and CDF respectively.

Read the excerpts from the ICJ's decision in the North Sea Continental Shelf case on pages 690-96 of the Casebook.

Postscript

The 1982 UN Convention on the Law of the Sea defines the continental shelf as follows:

Article 76: Definition of the Continental Shelf

1. The continental shelf of a coastal state comprises the sea-bed and sub-soil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. . . .

3. The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

The 1982 Convention deals with the problem of delimitation of boundaries as follows:

Article 83: Delimitation of the Continental Shelf between States with Opposite or Adjacent Coasts

1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, . . . in order to achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.

Since the North Sea Continental Shelf Cases, maritime boundary cases have continued to be a significant source of business for the ICJ.

Footnotes

FN1 The ILC is composed of 34 members, "who shall be persons of recognized competence in international law." (Statute of the ILC art. 2) Members are elected by the UN General Assembly and sit as individuals rather than as representatives of their governments.

FN2 D.M. Harris, Cases and Materials on International Law 52-53 (1987)

FN3 Oscar Schachter, International Law in Theory and Practice 66-69 (1991)