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