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[Music]
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[Music]
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one of the basic fundamental purposes of
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international law is to identify the
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territory which lawfully and properly
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belongs to each Nation the significance
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of this is obvious during the whole
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history of humankind Whenever two groups
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have differed as to the borders of their
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territory War has been the most likely
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result even if every other function
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fails international law must at the very
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least be an attempt to settle
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borders National sovereignty of course
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doesn't just involve the ownership of
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land it has long been a matter of
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international law that countries with a
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coastline are entitled to possession of
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the waters adjacent to that Coastline in
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most cases the coastal state is entitled
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to the waters 12 nautical miles out from
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its Coastline and each Coastal state is
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exclusively entitled to take economic
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resources 200 nautical miles from its
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Coastline then just to make matters more
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complicated we have the idea of a
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continental shelf this is the area of
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relatively shallow ocean surrounding
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land before we get to the drop off into
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deep
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ocean now if the continental shelf goes
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out past 200 nordal miles a country's
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exclusive economic zone can be extended
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right out to the edge of the continental
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shelf all of this is pretty
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straightforward for countries like
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Australia which have long Coast Lines no
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land borders and very few overlapping
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claims with other nearby
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countries the system work works much
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less well in situations where you have
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multiple countries and complicated
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borders for instance in areas like the
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South China Sea where various countries
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have legitimate overlapping claims and
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China has a huge illegitimate
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claim the North Sea is a fairly small
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area of sea about half the size of New
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South Wales with England bordering it on
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one side and on the other side a range
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of countries including Norway Denmark
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Holland Germany Belgium and France at
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the very
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bottom it has been the center of Naval
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Warfare for centuries and in the early
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part of the 20th century was really
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dominated by Great Britain which had the
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largest and most powerful naval fleet
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and which had successfully blockaded
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Germany during the first world war after
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the second world war with the formation
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of the United Nations and the creation
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of the new German states it was
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appropriate for the neighboring states
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with North Sea coastlines to formalize
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each of their claims over the seabed one
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of the reasons this was so important is
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that the North Sea is one of the world's
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biggest fisheries and because it's
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relatively shallow it's also a major
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source of oil the most traditional way
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of establishing sea borders was known as
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the projection method essentially you
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take your land border and continue it
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out to sea
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if they did that in this case then the
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claims would look like this Holland
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would claim this area Denmark would
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claim this area and West Germany would
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have been left with just this much
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space now there was a treaty setting out
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rules for maritime boundaries the treaty
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was called the 1958 Geneva Convention on
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the continental shelf it enshrined the
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principle of equidistance that is trying
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to place the maritime boundaries in such
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a way that it was equally distant from
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each
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state however this too would have left
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West Germany with much less than what it
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felt was a fair share probably for that
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very reason West Germany was not a party
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to the
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convention if the convention had applied
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then according to the Dutch and danish
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assessments of equidistance Holland
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would have received this area Denmark
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this area and West Germany just this
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area
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the three countries were on good terms
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and they made efforts to resolve their
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border issues amicably however the three
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countries were not able to come to an
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agreement something had to be done to
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break the
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impass now to understand how the matter
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proceeded you need to know that
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international law has three key sources
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first international law can be found in
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treaties which are agreements between
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nations the 1958 Geneva Convention on
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the continental shelf with such a
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treaty however treaties themselves only
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bind the countries which sign the treaty
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and then also ratify the treaty this
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means they have signed the treaty and
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then done whatever domestic stuff they
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needed to do in order to commit their
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country to the
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treaty second rarely international law
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has been based on the Learned writings
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of prominent professors this is not
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really relevant to this case and I'm
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just mentioning it for
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completeness third international law has
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been based on
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custom customary international law is
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international law based on the
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established pattern of obligation and
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conduct among nations it reflects the
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fact that for centuries international
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law developed without treaties and
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certainly without big multilateral
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treaties so before treaties became king
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international law was simply the way
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that countries or Empires behave towards
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one another this idea that the common
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customary behavior of countries can lead
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to binding law remains valid the really
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interesting thing about customary law is
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that once it is recognized it is binding
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on all countries even those that have
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never agreed to be bound Holland and
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Denmark argued that while the Geneva
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Convention on the continental shelf had
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started out as a mere treaty binding
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only the part to the treaty it had now
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reached the point where acceptance was
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so widespread that it was customary law
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binding on All Nations including West
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Germany whether they liked it or not the
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court did not object to the underlying
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principle here the court accepted that
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one way in which modern customary law
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can be created is by treaties becoming
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so widespread that they do represent the
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established patterns of obligation and
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conduct between nations the court said
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there is no doubt that this process is a
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perfectly possible one and does from
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time to time occur it constitutes indeed
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one of the recognized methods by which
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new rules of customary international law
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may be formed at the same time this
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result is not likely to be regarded as
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having been attained so in this case the
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court had to decide whether that result
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had been attained they applied four
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tests first they noted that even if West
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Germany had signed up to the treaty it
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could have entered reservations to the
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treaty in other words it could have said
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we sign up to the treaty except we do
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not agree to apply these rules to our
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North Sea continental shelf
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claims if it was open to them to make
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reservations even under the treaty it
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would seem odd for them to be bound
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under customary law surely the customary
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law can't impose a greater level of
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obligation than the treaty on which the
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customary law is said to be based second
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the court found that the treaty was not
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sufficiently supported to be regarded as
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settled practice among
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nations at the time of the Judgment 46
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Nations had signed the treaty and just
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39 had fully ratified it the court found
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that even if one didn't count the
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landlocked nations with no interest in
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Maritime borders the number of
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ratifications and sessions so far
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secured is though respectable hardly
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sufficient third the court noted the
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relatively brief time between the
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signing of the convention and the
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dispute the convention was signed in
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1958 and this dispute first commenced
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before the court in
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1967 with judgment in
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1969 now there's no rule that says that
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common practice among nations has to
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endure for any specific period of time
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in order to be customary law but it
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makes sense that the longer sum conduct
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has been practiced the more likely it is
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to be regarded as customary and not
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merely
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temporary finally the court looked at
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other Maritime boundary negotiations
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involving other nations and found that
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the court could not be satisfied that
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the countries involved in those
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negotiations felt themselves to be under
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a legal obligation of the type Denmark
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and Norway argued
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for overall the court said the Geneva
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Convention was not in its origins or
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Inception declaratory of a mandatory
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rule of customary international law
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enjoining the use of the equidistance
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principle for the delimitation of
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continental shelf areas between adjacent
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States and neither has it subsequent
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effect been constitutive of such a rule
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and state practice up to date has
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equally been insufficient for the
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purpose in short Denmark and Holland had
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failed to demonstrate that the treaty
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had sufficiently affected the behavior
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of states to be regarded as a customary
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international
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law the court encouraged the parties to
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resume negotiations but the negotiations
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were not limited by the principles set
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out in the hag
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convention ultimately the parties came
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to a compromise with West Germany
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obtaining most but not all of the
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maritime claim that it
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sought from this case we learn that
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treaties can become customary
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international law but in determining
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whether this has happened the court will
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consider the extent to which nations can
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and do enter reservations to the treaty
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the number of nations who have carried
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out the conduct required under the
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treaty the length of time for which
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these observations have been observed
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and most importantly the extent to which
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Nations carrying out the conduct
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required under the treaty have done so
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on the basis that they are discharging
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obligations of international
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[Music]
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law
