For this purpose, the Governments of the French Republic and of the United Kingdom, on 10 July 1975, signed in Paris an Arbitration Agreement in the following terms:
Arbitration Agreement signed at Paris, 10 July 1975
The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic,
Considering that agreement in principle has been reached between the two Governments on the delimitation of the portion of the continental shelf in the English Channel eastward of 30 minutes west of the Greenwich Meridian appertaining to each of them;
Considering that differences have arisen between the two Governments concerning the delimitation of the portion of the continental shelf westward of 30 minutes west of that Meridian appertaining to each of them which could not be settled by negotiation;
Considering the urgency of settling these differences by a process of arbitration which should result in a speedy decision on the remaining issues in dispute;
Have agreed as follows:
Article 1
1. The Court of Arbitration (hereinafter called the Court) shall be composed of: Sir Humphrey Waldock, nominated by the United Kingdom Government, Messrs Paul Reuter, nominated by the French Government; Herbert Briggs; Erik Castren; Endre Ustor.
The President of the Court shall be: Mr Erik Castren
2. Should the President or any other Member of the Court be or become unable to act, the vacancy shall be filled by a new Member appointed by the Government which nominated the Member to be replaced in the case of the two Members nominated by the United Kingdom and French Governments, or by agreement between the two Governments in the case of the President or the remaining two Members
Article 2
1. The Court is requested to decide, in accordance with the rules of international law applicable in the matter as between the Parties, the following question:
What is the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic, respectively, westward of 30 minutes west of the Greenwich Meridian as far as the 1,000 metre isobath?
2. The choice of the 1,000 metre isobath is without prejudice to the position of either Government concerning the outer limit of the continental shelf
Article 3
1. The Court shall, subject to the provisions of this Agreement, determine its own procedure and all questions affecting the conduct of the arbitration
2. In the absence of unanimity, the decisions of the Court on all questions, whether of substance or procedure, shall be given by a majority vote of its Members, including all questions relating to the competence of the Court, the interpretation of this Agreement, and the decision on the question specified in Article 2 hereof
Article 4
1. The Parties shall, within fourteen days of the signature of the present Agreement, each appoint an Agent for the purposes of the arbitration, and shall communicate the name and address of their respective Agents to each other and to the Court.
2. Each Agent so appointed shall be entitled to nominate an Assistant Agent to act for him as occasion may require The name and address of an Assistant Agent so appointed shall be similarly communicated
Article 5
The Court shall, after consultation with the two Agents, appoint a Registrar and establish its seat at a place fixed in agreement with the Parties Until the seat has been determined the Court may meet at a place provisionally chosen by the President,
Article 6
1. The proceedings shall be written and oral.
2. Without prejudice to any question as to burden of proof, the Parties agree that the written proceedings should consist of.
(a) a Memorial to be submitted by each Party not later than six months after signature of the present Agreement,
(b) a Counter-Memorial to be submitted by each Party within a time-limit of six months after the exchange of Memorials;
(c) any further pleading found by the Court to be necessary
The Court shall have power to extend the time-limits so fixed at the request of either Party,
3. The Registrar shall notify to the Parties an address for the riling of their written pleadings and other documents
4. The oral hearing shall follow the written proceedings, and shall be held in private at such place and time as the Court, after consultation with the two Agents, may determine
5. The Parties may be represented at the oral hearing by their Agents and by such Counsel and advisers as they may appoint
Article 7
1. The pleadings, written and oral, shall be either in the English or in the French language; the decisions of the Court shall be in both languages
2. The Court shall, as may be necessary, arrange for translations and interpretations and shall be entitled to engage secretarial and clerical staff, and to make arrangements in respect of accommodation and the purchase or hire of equipment
Article 8
1. The remuneration of Members of the Court shall be borne equally by the two Governments.
2. The general expenses of the arbitration shall be borne equally by the two Governments, but each Government shall bear its own expenses incurred in or for the preparation and presentation of its case
Article 9
1. When the proceedings before the Court have been completed, it shall transmit to the two Governments its decision on the question specified in Article 2 of the present Agreement The decision shall include the drawing of the course of the boundary (or boundaries) on a chart. To this end, the Court shall be entitled to appoint a technical expert or experts to assist it in preparing the chart
2. The decision shall be fully reasoned.
3. If the decision of the Court does not represent in whole or in part the unanimous opinion of the Members of the Court, any Member shall be entitled to deliver a separate opinion.
4. Any question of the subsequent publication of the proceedings shall be decided by agreement between the two Governments
Article 10
1. The two Governments agree to accept as final and binding upon them the decision of the Court on the Question specified in Article 2 of the present Agreement
2. Either Party may, within three months of the rendering of the decision, refer to the Court any dispute between the Parties as to the meaning and scope of the decision.
Article 11
1. A Party wishing to carry out, at any time before the Court has rendered its decision on the question specified in Article 2, any activity in a portion of what it considers to be its continental shelf within the area submitted to arbitration shall, subject to the remaining provisions of this Article, obtain the prior consent of the other Party.
2. If such a request for consent is made by one Party the other Party may not withhold its consent for more than one month nor, if it consents within this period, subject its consent to conditions, except on the ground that the proposed activity relates to an area which it intends to claim or might claim as part of its own continental shelf at any stage in the course of the arbitration.
3. The Party withholding consent or subjecting its consent to conditions shall, when notifying the Party making the request, briefly state the grounds upon which it justifies its position.
4. The Party making the request may, if dissatisfied with the justification provided, refer the issue to the Court for a ruling.
5. Without prejudice to paragraph 4, either Party may refer any dispute as to the interpretation or application of this Article to the Court for a ruling.
6. The Court shall give, as soon as possible, a ruling on any issue referred to it pursuant to paragraph 4 or 5, and may order such provisional measures as it considers desirable to protect the interests of either Party.
Article 12
The present Agreement shall enter into force on the date of signature.
In accordance with Article 4 of the Arbitration Agreement, the French Government, on 18 July 1975, appointed M. Guy Ladreit de Lacharrière as its Agent for the case, and the United Kingdom, on 22 July 1975, appointed Sir Ian Sinclair as its Agent.
The Court of Arbitration met first at The Hague on 18 September and 17 November 1975 in the premises of the Permanent Court of Arbitration. Pursuant to an agreement negotiated between the Parties and the Swiss Confederation, the authorities of the Canton and of the City of Geneva having courteously offered their cooperation, the Court then decided that its seat should be in Geneva, in the Palais Eynard. At its meeting on 20 January 1976, it adopted its Rules of Procedure.
M. Paul Reuter having resigned for reasons of health, the French Government, on 6 April 1976, in accordance with Article 1(2) of the Arbitration Agreement, appointed M. André Gros to take his place.
After consulting the Parties, the Court appointed M. Lucius Caflisch as Registrar and M. Georges Malinverni as Deputy-Registrar.
According to Article 6(2) of the Arbitration Agreement, the time-limit for the filing of the Memorials of the Parties was fixed for 10 January 1976 and the time-limit for the filing of the Counter-Memorials for 10 July 1976. By an Order of 6 January 1976, the President of the Court, at the request of the Parties, extended the original time-limits for the filing of the Memorials and Counter-Memorials to 20 January and 20 July 1976, respectively.
A request for an extension of the time-limit for the filing of the United Kingdom’s Counter-Memorial was received in the Registry from the Agent of the United Kingdom on 28 June 1976, and no opposition thereto having been expressed by the Agent of the French Republic, the President, by an Order of 5 July 1976, extended that time-limit to 20 August 1976 for both Parties.
On 14 September 1976, the Court made an Order that the Parties should file a Reply by 31 December 1976. It also fixed 26 January 1977 as the date for the opening of the oral proceedings.
The pleadings in the case having been filed within the time-limits thus prescribed, the case was ready for hearing on.31 December 1976.
The Court held twenty-one hearings, from 26 to 28 January, from.31 January to 4 February, from 7 to 10 February, from 16 to 18 February, from 21 to 23 February, and on 26 and 28 February 1977, during which it heard, in the order agreed between the Parties and approved by the Court, the following persons submit oral argument and give expert evidence: M. Ladreit de Lacharrière, Agent, MM. Virally, Bardonnet and Dupuy, Counsel, and MM. Hindermeyer and Mehl, Expert Advisers, on behalf of the Government of the French Republic; and the Right Honourable Samuel Silkin, AttorneyGeneral, Sir lan Sinclair, Agent and Counsel, MM. Bowett, Jennings and Frossard, Counsel, and Sir Peter Kent and Commander Beazley, Expert Advisers, on behalf of the Government of the United Kingdom.
The Court put certain questions to the Parties on 4, 11 and 2.3 February 1977. Further questions were addressed by the Court to the Parties after the completion of the oral proceedings on 28 February 1977. A difference of view between the Parties having then revealed itself after this date in regard to the status of Eddystone Rock and its effect on the delimitation of the boundary in the English Channel, the Court asked the Agents to pursue their examination of this question and to inform it as soon as possible whether they had reached any agreement. The Agents having apprised the Registrar of their inability to reach agreement, the Court requested the French Government to submit its observations on the question in writing before 7 April 1977, and the Government of the United Kingdom to submit in writing prior to 30 April 1977 its comments on the observations of the French Government. The observations thus requested by the Court were submitted within the prescribed time-limits, and the Court decided to convoke the Agents on 10 May 1977 to provide explanations on certain points raised by their abovementioned written observations, communicating to them four questions for this purpose on 4 May 1977. At the sitting of 10 May 1977, the Court heard the Agents on these questions; and, in connexion with the third question, it also put to them a supplementary question the reply to which was received from the two Agents on 12 May 1977.
The Court appointed as Expert Mr. Hans ERMEL, former Director of Nautical Surveys and Charting, Deutsches Hydrographisches Institut, Hamburg. Mr. Ermel entered upon his duties on 4 March 1977.
In the course of the written proceedings, the following Submissions were made by the Parties:
On behalf of the Government of the French Republic, in its Reply:2
May it please the Court to adjudge and declare:
A. Concerning the law applicable:
1. That the objections raised by the United Kingdom to the reservations which France attached to its accession to the Convention of 29 April, 1958 on the Continental Shelf (hereinafter referred to as "the Convention") reflect a disagreement between the two States on various articles of the Convention;
That the French reservations are in conformity with the provisions of Article 12 of the Convention and consequently fully permissible; that the objections of the United Kingdom are equally valid;
That by reason of the disagreement established as existing between the two States concerning part of the Convention, the latter, in accordance with the international law in force in 1966, the date of the British objections, is not in force between the two States;
2. That France has not, at any time since 14 June 1965, the date of its act of accession, through its conduct or through the statements of its representatives, let it be understood that it has abandoned its reservations or shown, in clear and unequivocal fashion, that it admitted that the Convention was in force between itself and the United Kingdom in all its provisions, including those which had formed the subject of its reservations;
That the United Kingdom could not have been misled on this point, that the United Kingdom has not, moreover, changed its own position;
That the United Kingdom has maintained its objections and still maintains them today, considering that the French reservations are not opposable to it;
That, consequently, the legal obstacles to the entry into force of the Convention between the two States still persist in their entirety;
3. That the rules of international law applicable in this matter between the Parties are the rules of customary law, as stated in particular by the International Court of Justice in the North Sea Continental Shelf cases and confirmed by the subsequent practice of States and the work of the Third Conference on the Law of the Sea;
4. That those rules prescribe that the boundary (or boundaries) between the portions of the Continental Shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic respectively westward of 30 minutes west of the Greenwich Meridian and as far as the 1,000-metre isobath must be drawn in conformity with the principle of the natural prolongation of the territories of each of the two States and with the equitable principles towards the elucidation of which the Court contributed in the aforementioned cases;
5. That, in the alternative, if the Convention is in force between the two States, Article 6 thereof, concerning which they are in disagreement, is not applicable between them;
6. That, in the further alternative, if Article 6 of the Convention be applicable as between the two States, there are special circumstances in the Channel Islands sector and in the Atlantic sector that prohibit recourse to the equidistance method.
B. Concerning the Delimitation
(a) In the Channel'
7. That so far as concerns the Channel sector, where the coasts of the two States are opposite, the median line drawn in relation to the baselines from which the Parties measure the breadth of their territorial sea constitutes an equitable line, having regard to the fact that the two Parties have already agreed as to how that line is to be drawn in the western and eastern parts of the Channel which are submitted to arbitration and it being understood that in the Channel Islands sector this median is to be drawn between the baselines of the French land mass and the British land mass without the islands;
8. That the application of equitable principles to the Channel Islands, having regard to the very particular geographical circumstances in this area, leads to the drawing of a line, which delimits the continental shelf of these islands and the definition of which is as follows:
—facing the French coast:
(i) as far as longitude 2°29' west of the Greenwich Meridian, the median line drawn between, on the one hand, the low-water line and French straight baselines laid down in the Decree of 19 October 1967 and, on the other, the low-water line of the Islands of Alderney, Sark and Jersey, it being understood that no account is to be taken of either the Ecrehos and Minquiers or of the Chausey Islands;
(ii) from longitude 2°29' west of the Greenwich Meridian towards the open sea, the median line drawn between the low-water line of the Roches Douvres and the low-water line of the islands of Jersey and Guernsey;
—facing the open seas:
(i) around Alderney, Burhou and the Casquéis, segments of arcs of circles of six nautical miles in radius, drawn from the low-water lines of these islands or rocks, from the intersection of the arc of the circle of Alderney with the median line between the Cotentin Peninsula and the Channel Islands;
(ii) around Guernsey, segments of arcs of circles of six nautical miles in radius, drawn from the low-water lines of the island of Lihou and of the Hanois;
(iii) in the area situated between the Casquets and Guernsey, the tangent joining the arcs of ctrcles of six nautical miles in radius, drawn from the Casquets and from the island of L.ihou;
(iv) in the area situated to the south-west of Guernsey, a straight line drawn from the arc of a circle of six nautical miles in radius, as delimited from the Hanois, until its intersection with the median line, as previously defined, between the Roches Douvres and the Channel Islands;
(b) In the Atlantic
9. That so far as concerns the Atlantic sector, where the coasts of the two States are no longer opposite each other, the natural prolongation of their territories, in the absence of relevant geological factors, must be determined by extending into the Atlantic lines expressing the general direction of their Channel coasts;
That the bisector of the angle formed by these two lines, prolonging the median line in the Channel, delimits in equitable fashion those parts of the continental shelf appertaining to the United Kingdom and the French Republic respectively:
10. That the general direction of the coasts of each State is equitably determined by lines representing such general direction through the elimination of salients and re-entrants and drawn from Dungeness to Guethensbras and from Berneval to Pointe Gafaite respectively;
That the line of delimitation in the Atlantic is, in consequence, the bisector E of the angle formed by these two lines, prolonging the median line in the Channel as far as the 1,000 metre isobath.
On behalf of the Government of the United Kingdom of Great Britain and Northern Ireland, in its Counter-Memorial:
May it please the Court to adjudge and declare:
1. A. (a) That, neither at the time of the formulation of France’s reservations on accession to the Geneva Convention of 1958 on the Continental Shelf nor at the time of the formulation of the United Kingdom's observations on those reservations (nor subsequently), did there exist any rule of international law establishing a presumption (still less an irrebuttable presumption) that, in relation to a treaty containing no provisions regarding reservations, an objection to a reservation precluded the entry into force of the treaty as between the "reserving" and the "objecting" States;
(b) that the rules of general international law on the subject of reservations to multilateral conventions (which in this respect have remained unchanged since the relevant time) require effect to be given in the first instance to the particular régime for reservations contained in the text of the treaty in question; that is to say, in the particular case of the 1958 Convention, Article 12 of the said Conventton, which expressly permits reservations to be made to articles thereof other than Articles 1 to 3 inclusive;
(c) that, to the extent that the legal effect of the French Reservations to the 1958 Convention is not specifically provided for by the terms of the said Article 12, the legal effect of the said reservations and of the United Kingdom’s observations thereon is determined on the basis of the intention underlying the United Kingdom’s observations inferred from the terms thereof and from the surrounding circumstances;
(d) that the clear and unmistakable intention underlying the observations of the United Kingdom on the said French reservations was not to preclude the establishment, or deny the existence of, treaty relations with France on the basis of the 1958 Convention including Article 6 thereof;
(e) that France is, in any event, precluded by her subsequent conduct from denying the applicability of the 1958 Convention as a whole, including Article 6 thereof, as between the United Kingdom and France;
(f) that accordingly the 1958 Convention is in its entirety a treaty in force between the United Kingdom and France.
B. In the alternative, should the Court find, on the basis of Article 12 of the 1958 Convention, that the French reservations to Articles 4 et seq. of the said Convention were ipso jure effective from the date of France’s accession to the 1958 Convention as against all other States parties to that Convention, including the United Kingdom:
(a) that the particular "reservations" to Article 6 of the said Convention, on which France relies in her Memorial submitted to the Court on 20 January 1976, are not true reservations in the sense in which that term is understood in international law, or, to the extent that they are true reservations, are not permissible reservations to the said Article 6;
(b) that the said "reservations" did not have as their object and purpose to exclude Article 6 of the Convention in general, or in its application to the area submitted to the present Arbitration in particular;
(c) that in any event to give effect to any or all of the said "reservations" in accordance with their express terms would have a minimal practical effect in the circumstances of the present Arbitration.
2. (a) The delimitations of the portions of the continental shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic, respectively, in the area comprised in the question submitted to the Court under Article 2 of the Arbitration Agreement is governed by the provisions of Article 1 and paragraph 1 of Article 6 of the said Convention, which constitute the rules of international law applicable between the Parties in the matter
(b) The French "reservations" to Article 6 of the said Convention not being opposable to the United Kingdom, the said Article applies as between the Parties without any modification;
(c) in the alternative, should the Court find that the said "reservations", to the extent that they are true, permissible reservations to that Article, took effect ipso jure against the United Kingdom, the said "reservations", even on their most adverse interpretation, would not affect the course of the boundary (or boundaries) upon which the Court is required to decide in accordance with Article 2 of the Arbitration Agreement.
(d) The terms and the manifest intention of the said Article 6 render paragraph 1 thereof applicable to the entire area comprised in the question submitted to the Court under Article 2 of the Arbitration Agreement, since:
(i) the entire area is part of the same continental shelf and is adjacent to the coasts of the United Kingdom and the Channel Islands and France, respectively;
(ii) the coasts of the United Kingdom and France in that area and of the Channel Islands and France are indubitably opposite one another;
(iii) the said Article 6 was in any event intended to cover all questions of the delimitation of the continental shelf arising between immediately neighbouring States;
(iv) for the purposes of the present Arbitration, the entire area falls or must be deemed to fall within the terms of Article 1 of the 1958 Convention.
3. (a) Accordingly, the Parties having concluded that the delimitation westward of 30 minutes west of the Greenwich Meridian as far as the 1,000 metre isobath cannot be effected by agreement between them, the applicable rule is that the boundary line in that entire area, as determined by the said paragraph 1 of Article 6, is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea is measured, unless another boundary line is justified by special circumstances,
(b) In so far as it is open to France to claim the existence of special circumstances justifying another boundary in that part of the area lying to the west of approximately 5 degrees 45 minutes west of the Greenwich Meridian, France has not discharged the onus of showing that the circumstances of the area constitute special circumstances within the meaning of the said Article 6, nor that they justify a boundary line other than the median line defined above.
(c) France has failed to show what meaning is to be attributed to the geographical expression "baie de Granville" as used in her "reservations" and, neither in relation to the area comprised in that expression (whatever it may be) nor in relation to the area of the Channel Islands as a whole, has France discharged the onus of showing that the circumstances constitute special circumstances within the meaning of the said Article 6, nor that they justify a boundary line other than the median line defined above.
(d) The boundary line in the entire area is accordingly the median line as defined above, which is to be measured—
(i) in relation to the United Kingdom, from the established baselines and bay-closing lines on the south coast of England, including the Scilly Isles and all other islands and relevant low-tide elevations, all such baselines being established in fact and in law as the baselines from which the territorial sea of the United Kingdom in the area is measured;
(ii) in relation to the Channel Islands, from the established baselines on all the islands, including the groups known as the Casquets, the Ecrehos and the Min-quiers and all relevant low-tide elevations, all such baselines being established in fact and in law as the baselines from which the territorial sea of the Channel Islands is measured;
(iii) in relation to France, from the low water line along the north coast of France, including Ushant, the Iles Chausey and the group known as the Roches Douvres and all relevant low-tide elevations, and including lawful bay-closing lines, but excluding the baselines proclaimed by the Decree of 19 October 1967 and especially the line across the Anse de Vauville, which is not a bay in international law.
The line thus constructed is illustrated on Map 4 at Appendix C(5) to the United Kingdom Memorial.
4. In the alternative, should the Court find that the boundary line in the entire area or in any part of it is to be determined by customary or general international law, the rule is that the boundary line is to be drawn in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute the natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other
5. Accordingly:
(a) given the essential geological continuity of the continental shelf throughout the entire area, it can in principle be claimed by both Parties as constituting the natural prolongation of their land territories into and under the sea, and in the absence of agreement can therefore, in law, only be delimited by means of a median line;
(b) no rule of international law requires the displacement of the median line by another boundary line, since the median line, which faithfully reflects the geographical configuration of the coasts of the two States in relation to the sea, produces a result which accords with equitable principles and one which is in no way extraordinary, unnatural or unreasonable as leaving to either State areas of seabed which are uniquely part of the natural prolongation of the land territory of the other; in particular, there is no basis in law nor any objective validity for the drawing of any boundary in the South-Westem Approaches consisting of a modified "median line" constructed by means of an arbitrary revision of the baselines from which it is to be measured,
6. In the further alternative, should the Court decide that, in certain parts of the said area, there exists a major and persistent structural discontinuity of the seabed and subsoil of such a nature as to interrupt the essential geological continuity of the continental shelf and thereby to indicate the limits of those parts of the continental shelf that constitute a natural prolongation of the land territory of the United Kingdom and those parts of the continental shelf that constitute a natural prolongation of the land territory of France, the rule of international law is that the boundary line should be drawn along the axis of this structural discontinuity; this boundary line is more fully described in paragraphs 235 to 238 and 261 of the United Kingdom Memorial and is illustrated on Map 3 at Appendix C(4) hereto.
During the oral proceedings the following Submissions were made by the Parties:
On behalf of the Government of the French Republic, on 2 February 1977:
May it please the Court to adjudge and declare:
A. Concerning the law applicable
1. That the objections raised by the United Kingdom to the reservations which France attached to its accession to the Convention of 29 April 1958 on the Continental Shelf (hereinafter referred to as "the Convention") reflects a disagreement between the two States on several articles of the Convention;
That the French reservations are in conformity with the provisions of Article 12 of the Convention and consequently fully permissible; that the objections of the United Kingdom are equally valid;
That by reason of the disagreement established as existing between the two States concerning part of the Convention, the latter, in accordance with the international law in force in 1966, the date of the British objections, is not in force between the two States;
2. That France has not, at any time since 14 June 1965, the date of its act of accession, through its conduct or through the statements of its representatives, let it be understood that it has abandoned its reservations or shown, in clear and unequivocal fashion, that it admitted that the Convention was in force between itself and the United Kingdom in all its provisions, including those which had formed the subject of its reservations;
That the United Kingdom could not have been misled on this point; that the United Kingdom has not, moreover, changed its own position;
That the United Kingdom has maintained its objections and still maintains them today, considering that the French reservations are not opposable to it;
That, consequently, the legal obstacles to the entry into force of the Convention between the two States still persist in their entirety;
3. That the recent development of customary law, which was stimulated particularly by the work of the United Nations, the reactions on the part of Governments to this work, the discussions and negotiations at the Third Conference on the Law of the Sea, and the endorsement of this development in the practice of States with respect to economic zones and fishing zones of 200 miles, have rendered the 1958 Conventions obsolete;
4. That the situation of the continental shelf in the Atlantic sector in any event falls outside the scope of paragraphs 1 and 2 of Article 6 of the Convention;
5. That the rules of international law applicable in this matter between the Parties are the rules of customary law, as stated in particular by the International Court of Justice in the North Sea Continental Shelf cases and confirmed by the subsequent practice of States and the work of the Third Conference on the Law of the Sea;
6. That those rules prescribe that the boundary (or boundaries) between the portions of the continental shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic, respectively, westward of 30 minutes west of the Greenwich Meridian and as far as the 1,000 metre isobath must be drawn in conformity with the principle of the natural prolongation of the territories of each of the two States and with the equitable principles to the elucidation of which the Court contributed in the aforementioned cases;
7. That, in the alternative if the Convention is in force between the two States, Article 6 thereof, concerning which they are in disagreement, is not applicable as between them;
8. That, in the further alternative, if Article 6 of the Convention be applicable as between the two States:
(a) there are special circumstances in the Channel Islands sector which justify a delimitation other than that which would result from application of the principle of equidistance;
(b) the Atlantic sector falls outside the scope of paragraphs 1 and 2 of Article 6;
(c) alternatively there are special circumstances in the Atlantic sector which justify a delimitation other than that which would result from application of the principle of equidistance.
B. Concerning the Delimitation
(a) In the Channel:
9. So far as concerns the Channel sector, where the coasts of the two States are opposite, the median line drawn by reference to the baselines from which the Parties measure the breadth of their territorial sea constitutes an equitable line having regard to the fact that the two Parties have already agreed as to how that line is to be drawn in the western and eastern parts of the Channel which are submitted to arbitration and it being understood that in the Channel Islands sector this median is to be drawn between the baselines of the French land mass and the British land mass without the islands.
10. That the application of equitable principles to the Channel Islands, having regard to the very particular geographical circumstances in this area, lead to the drawing of a line, which delimits the continental shelf of these islands and the definition of which is as follows:
—facing the French coast:
(1) as far as longitude 2°29' west of the Greenwich Meridian, the median line drawn between, on the one hand, the low-water line and French baselines laid down in the Decree of 19 October 1967 and, on the other, the low-water mark of the Islands of Alderney, Sark and Jersey, it being understood that no account is to be taken of either the Ecrehos and Minquiers or of the Chausey Islands,
(ii) from longitude 2°29' west of the Greenwich Meridian towards the open sea, the median line drawn between the low-water line of the Roches Douvres and the low-water line of the islands of Jersey and Guernsey;
—facing the open seas:
(i) around Alderney, Burhou and the Casquets, segments of arcs of circles of six nautical miles in radius, drawn from the low-water lines of these islands or rocks, from the intersection of the arc of the circle of Alderney with the median line between the Cotentin Peninsula and the Channel Islands,
(ii) around Guernsey, segments of arcs of circles of six nautical miles in radius, drawn from the low-water lines of the island of Lihou and of the Hanois;
(iii) in the area situated between the Casquets and Guernsey, the tangent joining the arcs of circles of six nautical miles in radius, drawn from the Casquets and from the island of Lihou;
(iv) in the area situated to the south-west of Guernsey, a straight line drawn from the arc of a circle of six nautical miles in radius, as it was drawn from the Hanois, until its intersection with the median line, as previously defined, between the Roches Douvres and the Channel Islands,
(b) In the Atlantic:
11. That so far as concerns the Atlantic sector, where the coasts of the two States are no longer opposite each other, the natural prolongation of their territories, in the absence of relevant geological factors, must be determined by prolonging into the Atlantic lines expressing the general direction of their Channel coasts;
That the bisector of the angle formed by these two lines, extending the median line in the Channel, delimits in equitable fashion those parts of the continental shelf appertaining to the United Kingdom and the French Republic, respectively;
12. That the general direction of the coasts of each State is equitably determined by lines representing such general direction through the elimination of salients and re-entrants drawn from Dungeness to Guethenbras and f12. rom Berneval to Pointe Galaite, respectively.
That the line of delimitation in the Atlantic is, in consequence, the bisector E of the angle formed by these two lines, prolonging the median line in the Channel as far as the 1,000 metre isobath.
On behalf of the Government of the United Kingdom of Great Britain and Northern Ireland, on 9 February 1977:
May it please the Court to adjudge and declare;
1. A. (a) That, neither at the time of the formulation of France's reservations on accession to the Geneva Convention of 1958 on the Continental Shelf nor at the time of the formulation of the United Kingdom's observations on those reservations (nor subsequently) did there exist any rule of international law establishing a presumption (still less an irrebuttable presumption) that, in relation to a treaty containing no provisions regarding observations, an objection to a reservation precluded the entry into force of the treaty as between the "reserving" and the "objecting" States;
(b) that the rules of general international law on the subject of reservations to multilateral conventions (which in this respect have remained unchanged since the relevant time) require effect to be given in the first instance to the particular régime for reservations contained in the text of the treaty in question; that is to say, in the particular case of the 1958 Convention, Article 12 of the said Convention, which expressly permits reservations to be made to articles thereof other than to Articles 1 to 3 inclusive;
(c) that, to the extent that the legal effect of the French reservations to the 1958 Convention is not specifically provided for by the terms of the said Article 12, the legal effect of the said reservations and of the United Kingdom’s observations thereon is determined on the basis of the intention underlying the United Kingdom’s observations inferred from the terms thereof and from the surrounding circumstances;
(d) that the clear and unmistakable intention underlying the observations of the United Kingdom on the said French reservations was not to preclude the establishment, or deny the existence of, treaty relations with France on the basis of the 1958 Convention including Article 6 thereof;
(e) that the course of conduct followed by France in her relations with the United Kingdom between 1966 and the date of signature of the Arbitration Agreement constitutes a continuing recognition and acknowledgement that the 1958 Convention, including Article 6, is a treaty in force between the two States; that this continuing recognition and acknowledgement was given in circumstances where France was in good faith bound to have denied that this was the case had that been her true position; and that, the French argument before the Court being fundamentally inconsistent with that course of conduct, the Court ought to hold France to the legal position reflected in her conduct and reject the inconsistent argument now adduced;
(f) that accordingly the 1958 Convention is in its entirety a treaty in force between the United Kingdom and France, and has not been abandoned by the Parties in their mutual relations nor rendered obsolete by subsequent developments in customary law.
B. In the alternative, should the Court find, on the basis of Article 12 of the 1958 Convention, that the French reservations to Articles 4 et seq. of the said Convention were ipso jure effective from the date of France’s accession to the 1958 Convention as against all other States parties to that Convention, including the United Kingdom:
(а) that the particular "reservations" to Article 6 of the sard Convention, on which France relies in her Memorial submitted to the Court on 20 January 1976, are not true reservations in the sense in which that term is understood in international law, or, to the extent that they are true reservations, are not permissible reservations to the said Article 6;
(b) that the said "reservations" did not have as their object and purpose to exclude Article 6 of the Convention in general, or in its application to the area submitted to the present Arbitration in particular;
(c) that in any event to give effect to any or all of the said "reservations" in accordance with their express terms would have a minimal practical effect in the circumstances of the present Arbitration.
2. (a) The delimitation of the portions of the continental shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic, respectively, in the area comprised in the question submitted to the Court under Article 2 of the Arbitration Agreement is governed by the provisions of Article 1 and of paragraph 1 of Article 6 of the said Convention, which constitute the rules of international law applicable between the Parties in the matter.
(b) The French "reservations" to Article 6 of the said Convention not being opposable to the United Kingdom, the said Article applies as between the Parties without any modification;
(c) in the alternative, should the Court find that the said "reservations", to the extent that they are true, permissible reservations to that Article, took effect ipso jure against the United Kingdom, the said "reservations", even on their most adverse interpretation, would not affect the course of the boundary (or boundaries) upon which the Court is required to decide in accordance with Article 2 of the Arbitration Agreement
(d) The terms and the manifest intention of the said Article 6 render paragraph 1 thereof applicable to the entire area comprised in the question submitted to the Court under Article 2 of the Arbitration Agreement, since:
(i) the entire area is part of the same continental shelf and is adjacent to the coasts of the United Kingdom and the Channel Islands and France, respectively;
(ii) the coasts of the United Kingdom and France in that area and of the Channel Islands and France are indubitably opposite one another;
(iii) the said Article 6 was in any event intended to cover all questions of the delimitation of the continental shelf arising between immediately neighbouring States;
(iv) for the purposes of the present Arbitration, the entire area falls or must be deemed to fall within the terms of Article 1 of the 1958 Convention.
3. (a) Accordingly, the Parties having concluded that the delimitation westward of 30 minutes west of the Greenwich Meridian as far as the 1000 metre isobath cannot be effected by agreement between them, the applicable rule is that the boundary line in that entire area, as determined by the said paragraph 1 of Article 6, is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea is measured, unless another boundary line is justified by special circumstances.
(6) In so far as it is open to France to claim the existence of special circumstances justifying another boundary in that part of the area lying to the west of approximately 5 degrees 45 minutes west of the Greenwich Meridian, France has not discharged the onus of showing that the circumstances of the area constitute special circumstances within the meaning of the said Article 6, nor that they justify a boundary line other than the median line defined above
(c) France has failed to show what meaning is to be attributed to the geographical expression "baie de Granville" as used in her "reservations" and, neither in relation to the area comprised in that expression (whatever it may be) not in relation to the area of the Channel Islands as a whole, has France discharged the onus of showing that the circumstances constitute special circumstances within the meaning of the said Article 6, nor that they justify a boundary line other than the medían line defined above
(d) The boundary line in the entire area is accordingly the median line as defined above, which is to be measured'
(i) in relation to the United Kingdom, from the established baselines and bayclosing lines on the south coast of England, including the Scilly Isles and all other islands and relevant low-tide elevations, all such baselines being established in fact and in law as the baselines from which the territorial sea of the United Kingdom in the area is measured.
(ii) in relation to the Channel Islands, from the established baselines on all the islands, including the groups known as the Casquets, the Ecrehos and the Minquiers and all relevant low-tide elevations, all such baselines being established in fact and in law as the baselines from which the territorial sea of the Channel Islands is measured;
(iii) in relation to France, from the low water line along the North coast of France, including Ushant, the Iles Chausey and the group known as the Roches Douvres and all relevant low-tide elevations, and including lawful bay-closing lines, but excluding the baselines proclaimed by the Decree of 19 October 1967 and especially the line across the Anse de Vauville, which is not a bay in international law.
The line thus constructed is illustrated on Map 4 at Appendix C(5) to the United Kingdom Memorial
4. In the alternative, should the Court find that the boundary line in the entire area or in any part of it is to be determined by customary or general international law, the rule is that the boundary line is to be drawn in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute the natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other.
5. Accordingly:
(a) given the essential geological continuity of the continental shelf throughout the entire area, it can in principle be claimed by both Parties as constituting the natural prolongation of their land territories into and under the sea, and in the absence of agreement can therefore, in law, only be delimited by means of a median line;
(b) no rule of international law requires the displacement of the median line by another boundary line, since the median line, which faithfully reflects the geographical configuration of the coasts of the two States in relation to the sea, produces a result which accords with equitable principles and one which is in no way extraordinary, unnatural or unreasonable as leaving to either State areas of seabed which are uniquely part of the natural prolongation of the land territory of the other; in particular, there is no basis in law nor any objective validity for the drawing of any boundary in the South-Western Approaches consisting of a modified "median line" constructed by means of an arbitrary revision of the baselines from which it is to be measured
6. In the further alternative, should the Court decide that, in certain parts of the said area, there exists a major and persistent structural discontinuity of the seabed and subsoil of such a nature as to interrupt the essential geological continuity of the continental shelf and thereby to indicate the limits of those parts of the continental shelf that constitute a natural prolongation of the land territory of the United Kingdom and those parts of the continental shelf that constitute a natural prolongation of the land territory of France, the rule of international law is that the boundary line should be drawn along the axis of this structural discontinuity; this boundary line is more fully described in paragraphs 235 to 238 and 261 of the United Kingdom Memorial and is illustrated on Map 3 at Appendix C(4) thereto
What is the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic, respectively, westward of 30 minutes west of the Greenwich Meridian as far as the 1,000 metre isobath?
They have further specified, by Article 9, paragraph 1, of the Arbitration Agreement, that the Court’s decision is to include "the drawing of the course of the boundary (or boundaries) on a chart".
(1) The northerly Alderney group, consisting of Alderney, Burhou, Ortac, the Casquets, and numerous other islets, lies due west and no more than eight nautical miles distant from Cap de la Hague on the Normandy coast.
(2) The westerly Guernsey group, which is situated furthest from the French coast, comprises Guernsey, Sark, Herm and Jethou together with a few islets.
(3) The Jersey group, consisting of Jersey itself, the Ecrehos and some other clusters of islets and rocks, lies to the south-east of the second group and is separated from the French mainland only by the narrow seapassages known as La Déroute. The most easterly point of the Ecrehos, it may be added, is no more than 6.6 nautical miles distant from Cap de Carteret on the Normandy coast.
(4) The Minquiers group, composed of numerous islets and rocks, is situated some ten miles due south of Jersey and about 16 miles to the north of Pointe de Meinga on the north coast of Brittany and only eight miles from the Iles Chausey.
What, if any, functions and powers are to be considered as having been conferred upon the Court by Article 2(1) with respect to the delimitation of the boundary in areas of seabed and subsoil which certainly form part of the territorial sea of one or other Party or in regard to which there is a difference between the Parties regarding their status as territorial sea or continental shelf?
As regards the connexion between the Court's mandate and the delimitation of the territorial waters of the Parties in the area under consideration, the French Government holds the view that, as presently defined, the Court’s mandate extends only to the delimitation of the continental shelf, and that shelf can begin only where the seabed and subsoil of the territorial sea end.
The Court can thus delimit the continental shelf only if the boundary line is located beyond the limits of the bed of the territorial sea of one of the Parties or coincides with those limits.
After analysing the position of the Parties in the successive sectors of the boundary proposed by each Party, the French Agent concluded:
It is consequently possible that the competence of the Court will be denied by one or the other Party, in at least an important portion of the area located between the Channel Islands, on the one hand, and the coasts of Normandy and Brittany on the other
At the final hearing of the Court on 28 February 1977, and in response to a further question from the Court, the French Agent formally confirmed his previous statement; and he further indicated that, as the territorial sea forms part of French national territory, any extension of the Court’s mandate with respect to the territorial sea would require reference to his Government.
The view of the United Kingdom is that the Court is empowered, under Article 2(1) of the Arbitration Agreement, to determine the course of the continental shelf boundary throughout the entire arbitration area. In relation to that part of the area which is the subject of the Court’s question:
(i) By reason of the fact that at present the United Kingdom claims a territorial sea only three miles in breadth around the Channel Islands, the boundary claimed by the United Kingdom is throughout (with the exception of one small segment off the Ecrehos,...) the boundary of the continental shelf adjacent to the Channel Islands;
(li) Although this boundary, or parts of it, may be, from the point of view of France, the boundary of their territorial sea, the Court is, in our view, nevertheless competent to delimit it as a continental shelf boundary in accordance with Article 2(1) of the Arbitration Agreement, notwithstanding that it may be coincident with a tectorial sea boundary from the point of the view of the other Party;
(iii) By reason of the fact that under Article 6 of the 1958 Convention and under customary law, the median line is measured from the same baseline as that from which the territorial sea is measured, the Court is, in any event, in the view of the United Kingdom, competent to determine the relevant base-points for those measurements; and
(iv) The United Kingdom claims, around the island groups of the Ecrehos and Minquiers, a territorial sea on exactly the same principles as around any other part of the Bailiwick of Jersey and would not, therefore, regard it as legitimate for the Court to draw a boundary which failed to recognise the territorial sea around these island groups.
Article 1
In the view of the Government of the French Republic, the expression "adjacent" areas implies a notion of geophysical, geological and geographical dependence which ipso facto rules out an unlimited extension of the continental shelf.
Article 2 (paragraph 4)
The Government of the French Republic considers that the expression "living organisms belonging to the sedentary species" must be interpreted as excluding crustaceans, with the exception of the species of crab termed "barnacle"; and it makes the following reservations:...
Article 4
The Government of the French Republic accepts this article only on condition that the coastal State claiming that the measures it intends to take are 'reasonable’ agrees that if their reasonableness is contested it shall be determined by arbitration.
Article 5 (paragraph 1)
The Government of the French Republic accepts the provisions of Article 5, paragraph 1, with the following reservations:
(a) An essential element which should serve as a basis for appreciating any 'interference’ with the conservation of the living resources of the sea, resulting from the exploitation of the continental shelf, particularly in breeding areas for maintenance of stocks, shall be the technical report of the international scientific bodies responsible for the conservation of the living resources of the sea in the areas specified respectively in Article 1 of the Convention for the North-West Atlantic Fisheries of 8 February 1949 and Article 1 of the Convention for the North-East Atlantic Fisheries of 24 January 1959.
(b) Any restrictions placed on the exercise of acquired fishing rights in waters above the continental shelf shall give rise to a right to compensation.
(c) It must be possible to establish by means of arbitration, if the matter is contested, whether the exploration of the continental shelf and the exploitation of its natural resources result in an interference with the other activities protected by Article 5, paragraph 1, which is unjustifiable.
Article 6 (paragraphs 1 and 2)
In the absence of a specific agreement the Government of the French Republic will not accept that any boundary of the continental shelf determined by application of the principle of equidistance shall be invoked against it:
—if such boundary is calculated from baselines established after 29 April 1958;
—if it extends beyond the 200-metre isobath;
—if it lies in areas where, in the Government’s opinion, there are 'special circumstances' within the meaning of Article 6, paragraphs I and 2, that is to say: the Bay of Biscay, the Bay of Granville, and the sea areas of the Straits of Dover and of the North Sea off the French coast.5
Article 1
The Government of the United Kingdom take note of the declaration made by the Government of the French Republic and reserve their position concerning it.
Article 2 (paragraph 4)
This declaration does not call for any observations on the part of the Government of the United Kingdom.
Article 4
The Government of the United Kingdom and The Government of the French Republic are both parties to the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes done at Geneva on the 29th April 1958. The Government of the United Kingdom assume that the declaration made by the Government of the French Republic is not intended to derogate from the rights and obligations of the parties to the Optional Protoco!
Article 5 (paragraph 1)
Reservation (a) does not call for any observation on the part of the Government of the United Kingdom:
The Government of the United Kingdom are unable to accept reservation (b),
The Government of the United Kingdom are prepared to accept reservation (c) on the understanding that it is not intended to derogate from the rights and obligations of parties to the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes.
Article 6 (paragraphs 1 and 2)
The Government of the United Kingdom are unable to accept the reservations made by the Government of the French Republic.
This Article was invoked by the United Kingdom delegation as pointing to a median line boundary, and by the French delegation as, on the contrary, calling first and foremost for a negotiated solution and allowing recourse to the median line only in the absence both of an agreed solution and of "special circumstances". The French delegation also placed emphasis on the distinction drawn in the two paragraphs of Article 6 between the cases of "opposite" and of "adjacent" States; and, in doing so, put forward the contention that the Atlantic region does not fall within either of these two cases. Mention was made by both Parties of the French Republic’s reservation to Article 6, claiming the existence of "special circumstances" in certain areas, and more especially of its reservation regarding "Granville Bay" under which rubric they discussed the delimitation of the boundary in the Channel Islands region. On the other hand, the materials before the Court contain no indication of any reference having been made by either Party to the United Kingdom’s communication to the Secretary-General of 14 January 1966 expressing its inability to accept some of the French reservations. Nor is there any indication in those materials that either Party spoke of the Continental Shelf Convention as inapplicable between them, whereas they do show that objection was taken by the French delegation to the United Kingdom’s invocation of the Convention on the Territorial Sea and Contiguous Zone on the ground that this Convention had not been ratified by the French Republic.7
When a State objecting to a reservation agrees to consider the treaty in force between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation
Stressing the final phrase "to the extent of the reservation", the United Kingdom maintains that the French reservations cannot render Article 6 inapplicable in toto, but at the most "to the extent of the reservations".
It will be seen therefore that the French "reservations" to Article 6 do not purport to exclude the application of the principle of equidistance even if any one of the three conditions is fulfilled. They seek merely to tender a unilateral determination of the boundary by another State, based upon the principle of equidistance, "non-opposable" to France. But that is not the position here The agreement of the two Governments to refer to arbitration the decision as to the course of the boundary in the area specified in Article 2 of the Arbitration Agreement necessarily pre-supposes that there can be no unilateral delimitation of the boundary by the United Kingdom, since it is for the Court (and the Court alone) to draw the line Accordingly, the fact that two Governments have agreed to submit the dispute to arbitration is sufficient in itself to deprive the French "reservations" to Article 6 of their object in the present case. (Emphasis in the original)
This argument appears to the Court to be open to more than one objection.
1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured
2. Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be 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 application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
The case with which the Court is here concerned is one where, after negotiations for the determination of the boundary by agreement, the States concerned failed to reach agreement, and it is therefore the provisions of these paragraphs applicable in the absence of agreement which come under consideration in the present proceedings. The arguments addressed to the Court by the Parties concerning the applicability or non-applicability of these provisions are directed, on the one side, to accent and. on the other, to minimise the rôle of the equidistance method as a legal criterion for the delimitation of continental shelf boundaries.
the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ah initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources
From this fundamental rule the Court drew two conclusions concerning the delimitation of the continental shelf which the Parties to the present proceedings are clearly correct in regarding as equally being of general application.
Even if proximity may afford one of the tests to be applied and an important one in the right conditions, it may not necessarily be the only, nor in all circumstances the most appropriate one. Hence it would seem that the notion of adjacency, so constantly employed in continental shelf doctrine from the start, only implies proximity in a general sense, and does not imply any fundamental or inherent iule the ultimate effect of which would be to prohibit any State (otherwise than by agreement) from exercising continental shelf rights in respect of areas closer to the coast of another State
The Parties to the present proceedings both appear to accept that these observations were intended to relate generally to the delimitation of the continental shelf, whether under customary law or under the 1958 Convention. The significance which they give to the observations differs, however, in some respects. The French Government lays stress on them as involving a finding by the International Court that "proximity" does not confer any title to rights over the continental shelf. What, in its view, the International Court’s observations imply is that it is the principle of the continuity of the coastal State’s territory, not of "proximity", which is decisive in giving title to the continental shelf. The United Kingdom, on the other hand, while not questioning the International Court’s rejection of proximity as by itself a ground of title to the shelf, insists that the Court "did not thereby reject proximity as a method employable in solving the problem of delimitation". What the Court rejected, the United Kingdom maintains, was "absolute proximity", not proximity as a method of delimitation.
Most of the difficulties felt in the International Law Commission related, as here, to the case of the lateral boundary between adjacent States Less difficulty was felt over that of the median line boundary between opposite States, although it too is an equidistance line. For this there seems to the Court to be good reason The continental shelf area off, and dividing, opposite States, can be claimed by each of them to be a natural prolongation of its territory. These prolongations meet and overlap, and can therefore only be delimited by means of a median line; and. ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved This type of case is therefore different from that of laterally adjacent States on rhe same coast with no immediately opposite coast in front of it. and does not give rise to the same kind of problem—a conclusion which also finds some confirmation in the difference of language to be observed in the two paragraphs of Article 6 of the Geneva Convention11. as respects recourse in the one case to median lines and in the other to lateral equidistance lines, in the event of absence of agreement
Further explaining its reason for making this distinction, the Court said (I.C.J. Reports 1969, paragraph 58):
whereas a median line divides equally between the two opposite countries areas that can be regarded as being the natural prolongation of the territory oí each of them, a lateral equidistance line often leaves to one of the States concerned areas that are a natural prolongation of the territory of the other
if the equidistance method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable are the results produced So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being of itself creative of inequity.
Clearly, this characteristic of the equidistance method marks a material difference between a geographical situation of "opposite States" and one of "adjacent States" in the delimitation of continental shelf boundaries.
Moving west at least as far as the Land’s End-Porsal line, and even up to the Scillies-Ushant line, one finds coasts which are opposite each other and from which a median line can be drawn West of the Scillies, however, there are no coasts: this is a fact, and there is no point in denying a geographical fact.
Thus, according to its view of the geographical facts, the two countries cease to have coasts facing each other certainly to the west of the Sciliies-Ushant line and perhaps even before that at the Land’s End-Porsal line. This being so, the French Government argues that in the region westwards of one or other of those lines there are no coasts between which the continental shelf is situated and the case cannot be one of "opposite" States for the purpose either of paragraph 1 of Article 6 or of the rules of customary law.
Undoubtedly, the shelf to be delimited extends out to sea oft the coasts of the two States, so that an analogy can be drawn with a lateral delimitation This is because the delimitation will be made seawards out to the point fixed by the Parties for defining the extent of the continental shelf to be delimited, that is, out Io the 1,000-metre isobath Hence, the problems to be resolved are more akin to those arising in a lateral delimitation than to those arising in a delimitation between opposite States, where the supposition is that the shelf to be delimited is situated between the two States.
It does not, however, suggest that the Atlantic region should be treated as a case of lateral delimitation between "adjacent" States. On the contrary, the French Republic contends that the situation in this region is neither one of "opposite" States under paragraph 1 of Article 6 nor one of "adjacent" States under paragraph 2 of the Article, but is sui generis. The draftsmen of Article 6, it says, failed to appreciate that there may be situations other than those provided for in the two paragraphs of the Article; and on this point it cites the view of the International Court in the North Sea Continental Shelf cases that the relation between the Netherlands and Denmark is not that of "adjacent" nor of "opposite" States (I.C.J. Reports 1969, paragraph 36).
An equidistance line may consist either of a "median" line between "opposite" States or of a "lateral" line between "adjacent" States. In certain geographical configurations of which the Parties furnished examples, a given equidistance line may partake in varying degree of the nature both of a median and of a lateral line
Referring to this statement in the present proceedings, the United Kingdom likewise remarked that there are many situations where "along the same boundary, the relationship changes from 'adjacent’ to 'opposite’ States". What this means, in the view of the present Court of Arbitration, is that in determining whether two States are to be considered as "opposite" or "adjacent", for the purpose of delimiting a continental shelf on which each of them abuts, the Court must have regard to their actual geographical relation to each other and to the continental shelf at any given place along the boundary.
If, however, the median line were not to be regarded as the proper boundary under customary international law, this could, in the submission of the United Kingdom, only be on the basis that the Hurd Deep and Hurd Deep Fault Zone are regarded as marking the limits of the respective natural prolongations of the two States In these circumstances, the United Kingdom could not regard the segment of the median line west of the Channel Islands as an agreed boundary, since the proper boundary in law would then lie, in their submission, throughout the entire arbitration area west of the Channel Islands, along the axis formed by the Hurd Deep and the Hurd Deep Fault Zone and its prolongation out to the 1,000-metre isobath.
Consequently, it appears that the United Kingdom makes its endorsement of a median line boundary in the Channel to the west of the Channel Islands in some measure conditional upon the median line’s being regarded by the Court as also the appropriate boundary in the Atlantic region outside the Channel.
(1) formally to confirm that the Court is to treat those segments of the boundary line in the Channel (to the east and to the west of the Channel Islands region) as agreed (between them);
(2) to identify precisely the respective terminal points of each of the agreed segments and to give the relevant coordinates of the median line in those segments of the boundary... and
(3) to trace these segments of the line on an appropriate chart or charts
Each Agent confirmed in general terms that the two segments of the boundary to the east and to the west of the Channel Islands region should be treated by the Court as agreed between the Parties to be the median line. Both of them, however, did so subject to reservations or qualifications in regard to the detailed delimitation of the median line.
(a) The 1971 simplified line was based upon the situation obtaining at the time of the original United Kingdom proposal of 1964, that is to say, before the promulgation of the French straight baseline system or the establishment of a French 12-mile territorial sea in 1971.
(b) Computer techniques developed in recent years now permit the location of the true median line with considerably greater accuracy than was possible with the techniques employed at the time; and
(c) It is possible now to refer all positions and base points to a common geodetic datum known as "European datum".
Since the discrepancies between the various lines were, in general, small, the United Kingdom was prepared either to confirm its acceptance of the 1971 simplified line and permit the technical experts of the two Parties to agree upon its tracing or, alternatively, to authorise its expert to reach agreement with the French experts on a fresh set of coordinates defining with the necessary accuracy this segment of the boundary line and on the tracing of the line on charts.
A: 50°07'29"N 00°30'00"W
B: 50°08'27"N 01°00'00"W
C: 50°09'15"N 01°30'00"W
D: 50°09'14"N 02°0.3'26"W
These points, and the tracing of the line between them are, for purposes of illustration, shown on Map 1, which appears on page 196.14 As the Parties themselves explain. Point D represents the equidistant tripoint between the appropriate base-points at Cap de la Hague (on the Cherbourg peninsula), Alderney (in the Channel Islands) and Portland Bill (on the coast of England). In other words, it represents the first point on the median line, travelling westwards, at which the presence of the Channel Islands calls for consideration.
E: 49°32'42"N 03°42'44"W
F: 49°32'08"N 03°55'47"W (see Map 1 on page 196)14
Point E, as the Parties explain, represents the equidistant tripoint between the appropriate base-points at Les Hanois (off the west coast of Guernsey), Les Sept Iles (off the coast of Brittany) and Prawle Point (on the coast of England). Westwards of Point F there is a gap in the "simplified" line agreed by the Parties owing to a difference of view between them about "the legal status of Eddystone Rock and its consequent effect on the course of the boundary line." Further to the west—at Point G—the Parties were again able to reach agreement, the second portion of the agreed "simplified" boundary being a line joining the following points:
G: 49°27'23"N 04°21'46"W
H: 49°23'14"N 04°32'39"W
1: 49°14'28"N 05°11'00"W
J: 49°13'22"N 05°18'00"W (see Map 1)
Point J thus marks the westerly terminal of the "simplified" median line which has been agreed between the Parties. According to the list of base-points subsequently transmitted to the Court by the Parties, Point J represents the point equidistant from Basse Vincent (Porsal off the north coast of Finistère) and the Stags (off The Lizard in Cornwall). It follows that the agreement between the Parties regarding the median line in the western segment of the Channel does not extend to the use of Ushant or the Scilly Isles as base-points for delimiting a median line boundary.
It was not possible to define an agreed line between points F and G... by reason of a difference of view about the legal status of Eddystone Rock, and its consequent effect on the course of the boundary line The French side took note of information provided by the United Kingdom on this subject The French side wishes to reserve its position for the time being on this question and will make its definite view known within a reasonably brief time The United Kingdom is willing to accept a line joining points F and G but must, tn the circumstances, reserve the right to place written documentation before the Court as to the effect to be attributed to the Eddystone Rock, against the eventuality that the French side should be unable to agree to the United Kingdom view.
After the completion of the oral arguments on 28 February 1977. the Court requested the Parties to proceed with their examination of the status of Eddystone Rock and to inform the Court as soon as possible whether they were able to reach agreement upon the question of its use as a base-point for delimiting the median line in the English Channel. The Parties having advised the Registrar that agreement on this question seemed unlikely to be forthcoming, the Court later fixed certain time limits for the French Government to submit its reasons in writing for objecting to Eddystone Rock’s being used as a base-point and for the United Kingdom Government to submit its written comments upon the French objections.
The Hydrographers of both delegations then reported that they had reached agreement on both the actual median line and the administrative (i e, "simplified") line in the Channel proper. It was decided that they should proceed by correspondence to agree the geographical coordinates of the turning points of the administrative line.
This paragraph shows, it says, that the coordinates of the British expert, after being communicated to the French authorities, still remained to be approved by the latter; and it insists that, although never contested, the coordinates have equally never been approved by the French Republic.
During the negotiations with the Government of the United Kingdom, the breaking off of which gave rise to the present dispute, the two delegations thus arrived without difficulty at an agreement on the determination of the boundary of the continental shelf, in the western and eastern areas of the Channel, apart from the Channel Islands sector. That agreement concerned the drawing of a median line all the points of which were equi-distant from the baselines from which the two States measure the breadth of their territorial sea; they even agreed on the drawing of a simplified median line which might possibly serve as a more convenient boundary The British delegation had even handed the French delegation a document stating the exact coordinates of this median line as well as the two British maritime charts No. 2649 and No. 2675 (HW 514/64, 16 June 1964) on which the Hydrographic Department of the Ministry of Defence had traced the "Anglo-French Seabed Boundary", outside the Channel Islands sector.
No reservation is expressed in this paragraph or elsewhere in the French pleadings as to the precise accuracy of the coordinates given by the United Kingdom expert. In any event, even if a doubt existed as to their accuracy, the fact would remain that all the turning points and the tracing of both the true and the "simplified" median lines were agreed between the two delegations in 1971.
F1: 49°27'40"N 04°17'54"W
This Point is a point equidistant from, on the United Kingdom side, Eddystone Rock and, on the French side, two base-points off the coast of Brittany, namely, La Fourchie (Plateau des Triagoz) and Le Raoumeur (Ile de Batz). From F1 the boundary will continue westwards in a straight line to the agreed Point G. The position of Point F1 and the tracing of a line from Point F to F1 and thence to Point G are shown, for purposes of illustration, in red on Map 2 which appears on page 20815. They are reproduced in black on the Boundary-Line Chart included with this Decision, the letter F1 also being used on the Boundary Chart to indicate the Point delimited from Eddystone Rock.
(i) around Aldemey, Burhou and the Casquets, segments of arcs of circles of six nautical miles in radius, drawn from the low-water lines of these Islands or rocks, from the intersection of the arc of the circle of Aldemey with the median line between the Cotentin Peninsula and the Channel Islands;
(ii) around Guernsey, segments of arcs of circles of six nautical miles in radius, drawn from the low-water lines of the island of Lihou and of the Hanois;
(iii) in the area situated between the Casquets and Guernsey, the tangent joining the arcs of circles of six nautical miles in radius, drawn from the Casquets and from the island of Lihou;
(iv) in the area situated to the south-west of Guernsey, a straight line drawn from the arc of a circle of six nautical miles in radius, as it was drawn from the Hanois, until its intersection with the median line, as previously defined, between the Roches Douvres and the Channel Islands.
The effect of this Submission would be to allow to each of the groups of the Channel Islands which it mentions a three-mile zone of continental shelf in addition to its territorial sea and then to join the resulting six-mile zones by tangents so as to form a continuous boundary and create a coherent continental shelf enclave around the Channel Islands.
the boundary line is to be drawn in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute the natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other
The United Kingdom then maintains that accordingly (Submission 5):
(i) given the essential geological continuity of the continental shelf throughout the entire area, it can in principle be claimed by both Parties as constituting the natural prolongation of their land territories into and under the sea, and in the absence of agreement can therefore, in law, only be delimited by means of a median line;
(ii) no rule of international law requires the displacement of the median line by another boundary line, since the median line, which faithfully reflects the geographical configuration of the coasts of the two States in relation to the sea, produces a result which accords with equitable principles and one which is in no way extraordinary, unnatural or unreasonable as leaving to either State areas of seabed which are uniquely part of the natural prolongation of the land territory of the other...
While subparagraph (ii) of this Submission continues with a particular reference to the Atlantic region, it makes no specific mention of the Channel Islands region, which is therefore presumably to be taken as covered by the general contention in subparagraphs (i) and (ii).
the Channel Islands are, without any possible ambiguity, an integral part of the armorican area and are included, without any possible gap, in the French hercynien shelf
It also cites in this connection a dictum in the Judgment in the North Sea Continental Shelf cases referring to geological considerations as potentially relevant in determining the appurtenance of continental shelf to a territory (I.C.J. Reports 1969, paragraph 95).
For it is quite true that the prolongation of French territory, which constitutes a whole in the Channel on the French side of the grand median line delimited from the two mainlands, turns in some manner around the Channel Islands
The legal position of the French Government is justified above all by the basic factors underlying the notion of natural prolongation, that is, purely geographical circumstances
France, it must not be forgotten, is a State which abuts on the Channel throughout the entire length of its coasts. The importance of its points of contact with this area of sea is as great as those of the United Kingdom, which also abuts on the Channel throughout the length of its coasts. It is therefore proper, in seeking to achieve an equitable delimitation, to take account of the equality of States.
If the continental shelf of the Channel Islands were attached, as is the British view, to the continental shelf of the United Kingdom, if, in other words, the natural prolongation of
France in the Channel were interrupted, it would be literally cut off—as this chart well shows—from all the central part of the Channel So. Mr President, access to the central part of the Channel is a consequence al once of the principle of the equality of States abutting on the Channel and of the principle of natural prolongation. To admit that the entire central part of the Channel belongs exclusively to the United Kingdom is inequitable, for France and the United Kingdom have equal rights in the continental shelf of the Channel as a whole.
Thus, it is not the principle of natural prolongation in isolation which the French Republic invokes but that principle in combination with the principle of the equality of States.
the United Kingdom considers that there is a portion of continental shelf appertaining to the south coast of England and a portion of continental shelf appertaining to the Channel Islands. These separate portions merge together in mid-Channel.
the travaux préparatoires disclose that islands would constitute "special circumstances" only where very small islands produce an excessively complicated median line which might be straightened out in the interests of simplicity, but compensating a loss of shelf in one area with a gain in another. State practice has rarely recognized that such a situation has arisen.. To the extent that some juristic writings tend towards a wider view of the exception of "special circumstance", these writings are concerned to make distinctions de lege fenda, not embodied in the 1958 Convention, or based upon the practice of States not parties to the 1958 Convention.
It also emphasizes that in the Judgment in the North Sea Continental Shelf cases, it is only "islets, rocks and minor coastal projections" which are spoken of as having a "disproportionately distorting effect" on the course of median line.
Under the relevant laws and constitutional usage of the United Kingdom and the Channel Islands, the Channel Islands exercise jurisdiction in and over the territorial sea adjacent to the Islands. This jurisdiction is exercised by the Channel Islands authorities pursuant to legislation enacted by the Parliaments of the Islands, that is to say, the States of Jersey and the States of Guernsey. Moreover, by virtue of United Kingdom laws, which apply to, or have been extended to, the Channel Islands, the Island authorities exercise jurisdiction over fisheries within a 12-mile limit. No specific arrangements have been made in regard to the exploration and exploitation of the continental shelf adjacent to the Channel Islands, but the United Kingdom Continental Shelf Act, 1964, pursuant to which jurisdiction is exercised by the authorities of the United Kingdom, extends to such areas.
This information appears to indicate that, although the Channel Islands may enjoy some measure of autonomous maritime jurisdiction, this autonomy is incomplete and does not extend to jurisdiction over the continental shelf for the purpose of exploring it and exploiting its natural resources.
D1: 49°57'50"N 02°48'24"W
D2: 49°46'30"N 02°56'30"W
D3: 49°38'30"N 03°21'00"W
D4: 49°33'12"N 03°34'50"W
Point D1 is delimited from, on the French side. La Hague and, on the United Kingdom side, Start Point and Portland Bill; Point D2 from, on the French side, La Hague and Roches Douvres and, on the United Kingdom side, Start Point; Point D3 from, on the French side, Roches Douvres and, on the United Kingdom side, Start Point and Prawle Point; and Point D4 from, on the French side, Roches Douvres and Les Sept Iles and, on the United Kingdom side, Prawle Point. The boundary to the north and west of the Channel Islands is formed by a line which follows segments of arcs of circles of 12mile radius delimited from the relevant base-points, at low-water, in the Bailiwick of Guernsey. The eastern terminal of this boundary is therefore the point of intersection of the arcs of circles of a 12-mile radius delimited from Quénard Point on Alderney and from Cap La Hague on the Cherbourg peninsula; and its western terminal is likewise the point of intersection of circles of a 12-mile radius delimited from Les Hanois (off the west coast of Guernsey) and from Roches Douvres off the coast of Brittany. These eastern and western terminals of the boundary will be designated by the Court respectively Point X and Point Y. The segments of the arcs of circles of a 12mile radius along which the boundary is drawn westwards from Point X to Point Y are formed by the intersection of such arcs delimited from Quénard Point on Alderney, the island of Burhou (west of Aldemey), the Casquets, the island of Lihou (north of Guernsey) and Les Hanois (off the west coast of Guernsey). The four Points where the arcs of circles of a 12-mile radius intersect will be designated by the Court respectively XI (Quénard Point and Burhou), X2 (Burhou and the Casquets), X3 (the Casquets and Lihou) and X4 (Lihou and Les Hanois). The coordinates of the six points which thus constitute the salient points of the boundary to the north and west of the Channel Islands are as follows:
X: 49°55'05"N 02°03'26"W
XL 49°55'40"N 02°08'45"W
X2: 49°55'15"N 02°22'00"W
X3: 49o39'40"N 02°40'30"W
X4: 49°34'30"N 02°55'30"W
Y: 49°18'22"N 02°56'10"W
The two boundaries described above and the letters which mark their respective salient Points are, for purposes of illustration, shown in red on Map 2 which appears on page 208.16 These boundaries are reproduced in black on the Boundary-Line Chart included with this Decision, the letters used to mark their salient Points being the same as those given above.
11 That so far as concerns the Atlantic sector, where the coasts of the two States are no longer opposite each other, the natural prolongation of their territories, in the absence of relevant geological factors, must be determined by prolonging into the Atlantic lines expressing the general direction of their Channel coasts.
That the bisector of the angle formed by these two lines, extending the median line in the Channel, delimits in equitable fashion those parts of the continental shelf appertaining to the United Kingdom and the French Republic, respectively;
12 That the general direction of the coasts of each State is equitably determined by lines representing such general direction through the elimination of salients and re-entrants drawn from Dungeness to Guethensbras and from Berneval to Pointe Galaite, respectively;
That the line of delimitation in the Atlantic is, in consequence, the bisector E of the angle formed by those two lines, prolonging the median line in the Channel as far as the 1,000-metre isobath.
In so far as it is open to France to claim the existence of special circumstances justifying another boundary in that part of the atea lying to the west of approximately 5 degrees 45 minutes west of the Greenwich Meridian. France has not discharged the onus of showing that the circumstances of the area constitute special circumstances within the meaning of the said Article 6. nor that they justify a boundary line other than the median line defined above.
(a) given the essential geological continuity of the continental shell throughout the entire area, it can in principle be claimed by both Parties as constituting the natural ptolongation of their land territories into and under the sea, and in the absence of agreement can therefore, in law, only be delimited by means of a median line;
(b) no rule of international law requires the displacement ot the median line by another boundary line; since the median line, which faithfully reflects the geographical configuration of the coasts of the two States in relation to the sea, produces a result which accords with equitable principles and one which is in no way extraordinary, unnatural or unreasonable as leaving to either State areas of seabed which are uniquely part of the natural prolongation of the land territory of the other; in particular, there is no basis in law nor any objective validity for the drawing of any boundary in the South-Western Approaches, consisting of a modified "median line" constructed by means of an arbitrary version of the baselines from which it is to be measured.
(i) in relation to the United Kingdom, from the established baselines and bay-closing lines on the south coast of England, including the Scilly Isles and all other islands and low-tide elevations, all such baselines being established in fact and in law as the baselines from which the territorial sea of the United Kingdom in the area is measured:
(iii) in relation to France, from the low-water line along the North coast of France. including l/shant, the Iles Chausey and the group known as the Roches Douvres and all relevant low-tide elevations, and including lawful bay-closing lines (emphasis added)
In short, the method of delimitation proposed by the United Kingdom in its Submissions is the one prescribed by paragraph 1 of Article 6 in the absence of special circumstances, namely a median line equidistant from the baselines of each country; and it emphasizes that, in its view, Ushant and the Scilly Isles should each be taken into account as part respectively of the baselines of France and of the baselines of the United Kingdom.
If the drawing of an equidistance line appears to be the most natural solution in the area where the coasts of France and of the United Kingdom are opposite each other—and here our two delegations are in full agreement—the same cannot be said for the Iroise area, where the absence of adjacent coasts makes a median-line delimitation completely arbitrary, deflected by the slightest geographical feature, in particular islands and projections of the coast. In the Iroise area, the problem is in fact a problem of delimitation similar to that which arises between adjacent States It is a case akin to that which in 1969 the International Court of Justice gave its judgment and enumerated the geographical, geological or economic reasons of a kind to justify a boundary other than the equidistance line (emphasis added).
In a further letter of 20 November 1972, after repeating the French contention that the Atlantic region falls outside both paragraphs of Article 6, the chief French delegate expressly invoked the observation in the Judgment in the North Sea Continental Shelf cases as to the distorting effect of certain geographical features in the case of a lateral delimitation between adjacent States on the basis of equidistance. He then continued (U.K. Memorial, Appendix A(19), p. 2):
This observation, which refers to the case of adjacent States is still more pertinent in the present case, where the distances out from the coasts are considerable. This "geographical feature" resulting from the respective positions of the Scilly Islands and Ushant involves a deviation of the dividing line which becomes all the more important and unjustified as one moves seawards (emphasis added).
the thrust of the United Kingdom into the South-Western Approaches, far from being simply that of Bishop Rock, is constituted by the whole of south-west England (including the Scilly Isles) and part of Wales. In reality, however, what actually projects under the sea in the South-Western Approaches is part of the same continental shelf which underlies the English Channel (and the Irish and Celtic Seas) The concept of the continental shelf is that, whatever be the points of measurement, the continental shelf attaches to, and as a matter of apportionment reflects, the adjacent land mass The fallacy in the French argument is the assumption that what has to be reflected is Bishop Rock. Bishop Rock is not the land mass of the United Kingdom adjacent to the continental shelf, it is simply a point of measurement, the most extreme westerly point on the United Kingdom baseline....
As a matter of actual fact, the United Kingdom observes, the westerly extremity of the baseline of the United Kingdom is not Bishop Rock but another rock in the Scilly Isles called the Crebinicks.
Neither the English nor the French language text of that paragraph leaves any room for doubt that what the negotiating States had in mind was the truism that each point on the median line is determined by the fact that it is equidistant from the nearest points on the baselines of the two States; that is to say. equidistant from the nearest point on one baseline and the nearest point on the other; hence the use of the plural In its very essence, therefore, the paragraph is based upon the idea of only two points, one on each baseline, determining a third point or series of points on the median line Practical experience shows that, for the construction of any delimitation by way of a median line as between opposite States, only a relatively small number of coastal points come into play and these points, between themselves, determine the entire course of the boundary which may stretch over several hundred miles Even then, however, these points constitute a series of points all along each coast, just as there is such a series of points along each coast in the present case. A whole series of points all along the South coast of England has been used to determine the median line, of which Bishop Rock [the Crebinicks] is the last (just as, on the French side, the Pointe de Pern on Ushant is the last) Logically, there must be a last point, a most extreme point. But it does not make it the only point, nor does it make it "arbitrairement choisi"; the choice is the product of geographical tact and not in the least arbitrary" (emphasis in the original).
Describing the operation of this technical process in the Atlantic region in greater detail during the oral proceedings, the United Kingdom stated (Hearing of 8 February 1977):
The British base-points move from Lizard Head to a point on the south coast of the Scillies and thence gradually some eight kilometres further to the western end of the Scilly Isles to a rock there... whilst a single point on the north coast of Ushant controls the same 45-mile stretch of the equidistance line It controls the whole of that length. The Ushant base-point then moves in stages some five kilometres to the westernmost rocks, and the westernmost points of Ushant and the Scillies do not fully determine the equidistance line until a position over 60 miles, or 111 kilometres, beyond the line joining them, and after that the Ushant point still moves slightly further south.
The United Kingdom concedes that in this instance the movements of the base-points do not result in any significant change in the course of the equidistance line out to the 1,000-metre isobath. But it claims that they demonstrate that the French Republic’s contention is an oversimplification which is misleading.
Special circumstances can only mean an exceptional geographical configuration in the sense of a geographical feature which is highly unusual;
Such a feature may justify another boundary on ground of convenience, practicality, or equity;
Where an "equitable" justification is advanced, it must be shown that the exceptional geographical feature distorts the boundary in a manner totally disproportionate to its importance;
By definition, therefore, such a distortion can only arise from very minor features In applying these criteria to the Atlantic region, the United Kingdom invokes a passage in the Judgment in the North Sea Continental Shelf cases which it claims to fit the situation in the region exactly. In this passage, the full text of which has already been set out in paragraph 85, the International Court of Justice spoke of each State, in a case of "opposite" States, being able to claim the continental shelf as a natural prolongation of its territory and then continued:
These prolongations meet and overlap, and can therefore only be delimited by means of a median line; and ignoring the presence of islets, rocks and minor coastal projections, the disproportionately distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved (emphasis added)
This passage is invoked by the United Kingdom as indicating what the International Court of Justice understood by "special or unusual features".
Both Ushant and the Scilly Isles, it maintains, "are islands of considerable size", and under no circumstances could either be classed as an islet or rock and on that basis ignored.
Equity does not necessarily imply equality There can never be any question of completely refashioning nature, and equity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline. Equality is to be reckoned within the same plane, and it is not such natural inequalities as these that equity could remedy.
The fact that the Cornish peninsula and the Scilly Isles reach further into the Atlantic than the Breton peninsula and Ushant is, it insists, simply a fact of nature and to ignore the Scillies would be to refashion nature.
there is no consistency in a position which accepts that the boundary line is determined by the actual features as they lie off the two coastlines, including the Scilly Island: and Ushant, for the areas to the East of these islands, but formally denies to these features the same relevance further west while nevertheless claiming to substitute for them in this latter region artificial lines which are said to be based upon the self-same features (emphasis in the original)
Point J; 49°13'22"N 05°18'00"W
Point K: 49°13'00"N 05°20'40"W
Point L; 49o12'10"N 05o40'30"W (see Map 2 on page 208).
The base-points on the two coasts from which point J is delimited have already been specified in paragraph 118. Those from which Point K is delimited are, on the French side, Basse Vincent (Roches de Porsal) and Le Crom (Ushant) and, on the United Kingdom side, the Stags (The Lizard); and those from which Point L is delimited are, on the French side, Le Crom (Ushant) and, on the United Kingdom side, The Stags (The Lizard) and Wingletang (Scilly Isles). Point L is the median point which is equidistant from the points on Ushant (Le Crom) and the Scilly Isles (Wingletang) that are nearest each other.
M:49°12'00"N 05°41'30"W.
N;48°06'00"N 09°36'30"W.
The position of Point N, the terminal point of the boundary in the arbitration area, is given by the Court only approximately, because the meanderings of the contour of the 1,000-metre isobath make it difficult to fix the point of intersection between the boundary and the isobath with absolute precision. The distance that the line drawn from Point M to Point N extends the boundary seawards to the 1,000-metre isobath is approximately 170 nautical miles.
For these reasons,
The Court, unanimously, decides, in accordance with the rules of international law applicable in the matter as between the Parties, that:
(1) Except as provided in paragraph (2) below, the course of the boundary between the portions of the continental shelf appertaining to the United Kingdom and to the French Republic respectively, westward of 30 minutes west of the Greenwich Meridian as far as the 1,000-metre isobath shall be the line traced in black on the Boundary-Line Chart included with this Decision between Points A, B, C, D, D1, D2, D3, D4, E, F, F1, G, H, I, J, K, L, M and N, the coordinates of which Points are as follows:
Point A: 50°07'29"N 00°30'00"W
Point B: 50°08'27"N 01°00'00"W
Point C: 50°09'15"N 01°30'00"W
Point D: 50°09'14"N 02°03'26"W
Point D1: 49°57'50"N 02°48'24"W
Point D2: 49°46'30"N 02°56'30"W
Point D3: 49°38'30"N 03°21'00"W
Point D4: 49°33'12"N 03°34'50"W
Point E: 49°32'42"N 03°42'44"W
Point F: 49°32'08"N 03°55'47"W
Point F1: 49°27'40"N 04°17'54"W
Point G: 49°27'23"N 04°21'46"W
Point H: 49°23T4"N 04°32'39"W
Point I: 49°14'28"N 05°11'00"W
Point J: 49°13'22"N 05°18'00"W
Point K: 49°13'00"N 05°20'40’'W
Point L: 49°12'10"N 05°40'30"W
Point M: 49°12'00"N 05°41'30"W
Point N: 48°06'00"N 09°36'30"W
(2) To the north and west of the Channel Islands, the boundary between the portions of the continental shelf appertaining to the United Kingdom (Channel Islands) and to the French Republic respectively shall be the line composed of segments of arcs of circles of a 12-mile radius drawn from the baselines of the Bailiwick of Guernsey and traced in black on the Boundary-Line Chart included with this Decision between Points X, XI, X2, X3, X4, and Y, the coordinates of which Points are as follows:
Point X: 49°55'05"N 02°03'26"W
Point XI: 49°55'40"N 02°08'45"W
Point X2: 49°55T5"N 02°22'00"W
Point X3: 49°39'40"N 02°40'30"W
Point X4: 49°34'30"N 02°55'30"W
Point Y: 49°18'22"N 02°56'10"W
With the course of the boundaries delimited by the Court I am in complete agreement; the decision is thus unanimous.
However, for reasons set forth below, I must regretfully differ from my distinguished colleagues in their evaluation of the French reservations to Article 6 of the 1958 Geneva Convention on the Continental Shelf. These reservations have called for comment because final French Conclusions A.1 and A.7 are to the effect that, even if that Convention is in force between France and the United Kingdom, Article 6 thereof cannot provide the applicable law in this Arbitration because there is no agreement between the Parties to this Arbitration as to its text, the United Kingdom not having accepted the French reservations.
The specific conditions by which France, in acceding to the Geneva Convention on 14 June 1965, sought to limit the application of Article 6 were expressed in the form of three reservations, as follows (French Memorial, 1976, Annex III).
En déposant cet instrument d'adhésion le Gouvernement de la République française déclare:..
Article 6 (alinéas I et 2)
Le Gouvernement de la République française n'acceptera pas que lui soit opposée, sans un accord exprès, une délimitation entre des plateaux continentaux appliquant le principe de l'équidistance;
Si celle-ci est calculée à partir de lignes de base instituées postérieurement au 29 avril 1958;
Si elle est prolongée au-delà de l'isobathe de 200 mètres de profondeur;
Si elle se situe dans des zones où il considère qu'il existe des "circonstances spéciales", au sens des alinéas 1 et 2 de l'article 6, à savoir : le golfe de Gascogne, la baie de Granville et les espaces maritimes du pas de Calais et de la mer du Nord au large des côtes françaises18
Each of these three reservations to Article 6 is based upon the same premise, namely that the Government of the French Republic will not accept that there be invoked against it, in the absence of an express agreement, any delimitation between continental shelves which applies the principle of equidistance. The phrase "entre des plateaux continentaux" can only refer, in the context, to a delimitation made between the continental shelves of France and a neighbouring State; and the words "sans un accord exprès" clearly indicate that the purpose of the three reservations was to prevent a neighbouring State from unilaterally establishing or claiming against France a delimitation based upon equidistance.
This intent to prevent unilateral delimitations by States based upon equidistance was foreshadowed even before French accession to the Geneva Convention, and prior to the formulation of the French reservations, in the French Note of 7 August 1964 to the United Kingdom Government in which the French Government, after expressing its intention to accede to the Geneva Convention on the Continental Shelf with a number of reservations, observed in part [United Kingdom Memorial, 1976, Appendix A(7)]:
une ligne d'équidistance déterminée unilatéralement par la France ou le Royaume-Uni, en se fondant sur les lignes de base droites, telles que celles auxquelles se réfère la note du Royaume-Uni du 18 février 1964, ne saurait dans ces conditions être retenue pour le calcul de la ligne de partage sans l'accord de l'autre Partie.
After France acceded to the Geneva Convention in 1965 with the reservations, inter alia, quoted above, it has been the consistent and unvarying interpretation of the French Government that the intended purpose of the reservations to Article 6 was to prevent unilateral delimitations of continental shelves in relation to France by another State, if based upon equidistance.
Thus, referring to the first French reservation to Article 6, the French Counter-Memorial, paragraph 28, observes:
Les raisons qui ont pu motiver une telle réserve se laissent deviner assez facilement. La France n'a pas voulu que puisse lui être imposée une délimitation qui résulterait d'un double acte unilatéral d'un autre Etat :1a fixation de nouvelles lignes de base, d'abord, suivant des critères définis par cet Etat, la détermination d'une ligne d'équidistance ensuite, calculée à partir de ces lignes de base;
and the same paragraph 28 concludes that France "a voulu, en formulant une réserve, se prémunir contre une mauvaise surprise".
In paragraph 30, the French Counter-Memorial complains that the interpretation given to the first French reservation in the United Kingdom Memorial:
omet la phrase qui introduit l'ensemble des réserves françaises à l'article 6 "Le Gouvernement français n'acceptera pas que lui soit opposée, sans un accord exprès, une délimitation entre des plateaux continentaux appliquant le principe de l'équidistance "
and continues:
Cette phrase définit exactement et, de ce fait même, limite la portée de la réserve. Il s'agit seulement du refus d'une délimitation opérée unilatéralement d'après la méthode de l'équidistance dans les hypothèses énumérées plus loin, ici dans l'hypothèse d'une délimitation "calculée à partir de lignes de base instituées postérieurement au 29 avril 1958"
With regard to the second French reservation to Article 6, the French Counter-Memorial, in paragraph 34, again complains that it appears that "le Mémoire britannique ait négligé la phrase qui introduit l’ensemble des réserves françaises à Particle 6;" and in paragraph 39, rejecting the United Kingdom interpretations of this second reservation, it states, in part:
On voit mal comment l'une ou l'autre de ces délimitations opérées par acte unilatéral pourrait être opposée au Gouvernement français, alors que celui-ci déclare qu'il "n'acceptera pas que lui soit opposée, sans un accord exprès, une délimitation.., appliquant le principe de l'équidistance si elle est prolongée au-delà de l'isobathe de 200 mètres de profondeur".
Referring to the third French reservation to Article 6, the French Counter-Memorial, in paragraph 49, notes a third time that the United Kingdom Memorial appeared to have forgotten 'Ta phrase introductive de la réserve" and adds that in its third reservation, the French Government:
se borne à indiquer un certain nombre de zones où ses intérêts lui semblent assez clairement déterminés, en fonction de la. situation particulière des régions considérées, pour qu'il estime ne pouvoir accepter qu'on lui oppose unilatéralement une ligne d'équidistance et où, en conséquence, il considère qu'il existe des "circonstances spéciales" justifiant une autre délimitation, Il indique qu'il ne ratifie la Convention qu'à la condition que cette manière de voir soit acceptée par les autres parties.
Denying, in paragraph 56, that the purpose of the French reservation was to interpret the expression "special circumstances", the French Counter-Memorial asserts that the purpose of the third reservation was to apply Article 6:
C'est d'appliquer cette expression, avec toutes les conséquences de droit qu'en tire l'article 6, à un certain nombre de situations concrètes et identifiées, et de faire de cette application la condition de l'acceptation de la Convention par le Gouvernement français. (Emphasis in the original.)
Thus, each of the three French reservations to Article 6 is intended, according to explicit statements in the French Counter-Memorial, to prevent unilateral delimitations based on the principle of equidistance, by other States, of the continental shelf boundaries between them and France. It is not straight baselines as such, nor boundaries extended beyond the 200 metre isobath, nor special circumstances, nor even equidistance lines as such against which the French reservations are directed; according to repeated official French statements, the reservations were directed against unilateral action by another State to establish or claim against France any delimitation based upon equidistance.
This conclusion is reinforced by the words of Professor Virally, when, as counsel for France, speaking at the oral hearing of 27 January 1977 before this Court on the first French reservation to Article 6, he said:
Dans cette réserve lue sans préjugé, il apparaît que la France refuse seulement de se voir imposer unilatéralement une ligne d'équidistance, établie d'après les lignes de base définies après la signature de la Convention de 1958.
Of the third French reservation, Professor Virally observed at the same oral hearing:
Simplement, la France exclut l'application de la méthode de l'équidistance par acte unilatéral donc telle que prescrite dans l'article 6, dans une série de zones qu'elle définit et, par là-même, elle modifie la portée d'application de l'article 6 et non pas en interprète le sens.
The consistent French statements equating "sans un accord exprès" with "unilatéralement" cannot be attributed to error or to careless drafting: they must be taken as expressive of the very purpose of the French reservations to Article 6.
The United Kingdom Counter-Memorial draws the correct conclusion in paragraph 32(1):
The French reservations to Article 6 are prefaced by the statement that, in the absence of a specific agreement, France will not accept that any boundary of the continental shelf determined by application of the principle of equidistance "shall be invoked against it" if certain conditions are fulfilled. It will be seen therefore that the French "reservations" to Article 6 do not purport to exclude the application of the principle of equidistance even if any one of the three conditions is fulfilled. They seek merely to render a unilateral determination of the boundary by another State, based upon the principle of equidistance, "non-opposable" to France. But that is not the position here. The agreement of the two Governments to refer to arbitration the decision as to the course of the boundary in the area specified in Article 2 of the Arbitration Agreement necessarily presupposes that there can be no unilateral determination of the boundary by the United Kingdom, since it is for the Court (and the Court alone) to draw the line. Accordingly, the fact that the two Governments have agreed to submit the dispute to arbitration is sufficient in itself to deprive the French "reservations’' to Article 6 of their object in the present case.19 (Emphasis in the original)
The explicit and consistent interpretation, set forth above, by counsel for France that the reservations to Article 6 were intended to prevent unilateral delimitations based on equidistance by other States to the detriment of France, and the agreement of the Parties, which effectively prevents unilateral delimitation by submitting to this Court the determination of the boundary in accordance with the applicable rules of international law, have thus deprived the French reservations to Article 6 of the Geneva Convention of any relevance before this Court: there can be no unilateral aspect in the Court’s decision.
In any event, the first French reservation would be irrelevant in this Arbitration because, as the United Kingdom Agent observed at the oral hearing of 7 February 1977, "there do not exist in any part of the arbitration area United Kingdom baselines established after 29 April 1958 from which the median line has been measured or is sought to be measured." Moreover, the French Government has itself established straight baselines after 29 April 1958. The second reservation lacks any relevance in this Arbitration, if only because the 1,000 metre isobath limit was first proposed by France during the negotiations of 1970-1974, and agreed to by her in the Arbitration Agreement. As for the third reservation, claiming the application of special circumstances with all the legal consequences derived from Article 620 is not a reservation at all: it neither excludes nor modifies the legal effect of any provisions of Article 6. The gloss later placed by counsel for France on the words of the third reservation is that other States, parties to the Convention, must accept the unilateral designations by France of the areas where she considers special circumstances to exist so as to prevent any unilateral delimitations by those other States of continental shelf by equidistance lines in the areas specified. However, before this Court, no situation arises in which the United Kingdom is making any unilateral claim to an equidistance line: the boundaries throughout the entire area covered by the Arbitration are submitted to the decision of the Court.
Consequently, there is a certain sterility in discussing whether reservations which are not relevant were really reservations or admissible as reservations. Even if, following the method of the Court, I were to examine the legal nature of the French reservations to Article 6, I would have to find the first and second reservations invalid as reservations to Article 6 because, whatever modifying effect they purport to have on delimitations based upon equidistance, they attempt to exclude or modify rights not dependent upon Article 6, but upon Articles 1 and 2 of the Geneva Convention on the Continental Shelf, to which no such reservations are permitted, or upon rules of customary international law, the rights deriving from which cannot, in my opinion, be excluded collaterally by another State through incidental reservations to a treaty which merely refers to such established rules of international law.
The third reservation 1 have found to be no reservation at all. If, however—disregarding for the moment the explicit statements of counsel for France set forth above that it was intended to prevent unilateral delimitations based upon equidistance—the third reservation is treated as really a reservation because, after invoking the "special circumstances" provision of Article 6 with all its legal consequences, it additionally makes a peremptory determination that Granville Bay is a special circumstance (whether or not it can be justified as such under Article 6)—even on that assumption, this Court would not, in my opinion, be barred by the alleged reservation from deciding for itself whether or not the Channel Islands constitute a "special circumstance" within the terms of Article 6, justifying another line than an equidistance line.
I reach this conclusion for two reasons—one of fact and one of law. As for the facts: the French Counter-Memorial, starting from the premise (paragraph 170) that as a geographical concept the "Bay of Granville does not exist", proceeds (paragraphs 170 to 238) to analyze half a dozen meanings of the term, each covering for differing purposes a different territorial area, but none of which, prior to the present controversy over the continental shelf, embraced the entire area of the Channel Islands, in particular, any areas to the north or northwest of those islands. Since the Court has found that it lacks competence to delimit a boundary in any area historically or traditionally covered by the concept "Granville Bay", it stretches credulity to retain the Granville Bay reservation "to the extent of the reservation" as a disabling reservation to prevent the application of Article 6 in areas north and northwest of the Channel Islands, even if the negotiators of 1970-1974 sometimes discussed the Channel Islands under the rubric of "Granville Bay".
On the point of law, I submit the following observations. The Court appears to be holding that the applicable law which the Parties have agreed should govern its delimitation cannot include Article 6 of the Geneva Convention on the Continental Shelf to the extent of the third French reservation because that reservation was not accepted by the United Kingdom. This suggests the importance of re-examining the formulation of the third reservation and its legal consequences.
In formulating its third reservation, France availed itself of the right to invoke special circumstances under Article 6, explicitly referring thereto, and counsel for France have declared this to be an application of Article 6. The United Kingdom has in this case consistently recognized the right of France to invoke special circumstances under Article 6, with or without a reservation.
In invoking special circumstances under the terms of Article 6, however, the French Government additionally stipulated, according to counsel for France (French Counter-Memorial, paragraphs 49, 56 and 57), that other parties to the Convention must accept the French application of "special circumstances" to specified areas as a condition of French accession to the Convention, whether or not such designations are justified under the tenus of Article 6. This additional claim the United Kingdom has not accepted, since it regards the third reservation as being merely an interpretative declaration which, in case of dispute, is a matter for the Court to decide (United Kingdom Memorial, paragraph 99; United Kingdom Counter-Memorial, paragraph 87; United Kingdom Reply, paragraphs 33ff).
The fact that the United Kingdom has not fully accepted the ambiguous interpretation placed by counsel for France on the third reservation cannot, in my opinion, operate automatically to exclude Article 6 as "international law applicable in the matter as between the Parties" in the Channel Islands area, by reasoning that the United Kingdom rejected a condition set by France to her accession to the Continental Shelf Convention. The matter is more complex. It is difficult to regard the third French reservation as intended to eliminate application of the Article whose benefits it invoked specifically in an area now claimed by counsel for France to include the entire Channel Island area. This Court has rightly rejected French contentions that because the United Kingdom did not accept some of the French reservations to Article 6, therefore that Article in its entirety must be excluded as part of the applicable law in this Arbitration. Nor could a peremptory determination by France that other States must accept its designation of areas constituting special circumstances within the terms of Article 6 be conclusive on this Court.
Even following the Court in examining the validity of the French reservations to Article 6, I must therefore conclude that all three reservations are invalid as reservations to Article 6.
Careful study of the French reservations to Article 6 suggests that perhaps all of them were intended to prevent a possible interpretation of Article 6 as permitting an automatic delimitation by another State on equidistance principles in the absence of agreement, i.e., unilaterally. Thus, one inevitably comes back to the conclusion that in the particular circumstances of this Arbitration, the French reservations have no object or relevance.
The conclusion, therefore, is that "the rules of international law applicable in the matter as between the Parties" are to be found in the 1958 Geneva Convention on the Continental Shelf, including Article 6, supplemented, where required, by customary international law.
The view that Article 6 is expressive of customary international law—a view already held by some Judges of the International Court of Justice in 1969 in the North Sea Continental Shelf cases—has been substantially strengthened by the subsequent practice of States, which has been elaborately analyzed by counsel in this Arbitration. The fact that both Parties have, with qualifications, placed reliance alternatively on principles derived from customary international law and on those set forth in Article 6 leads me to agree with the Court that little practical effect on the delimitation which the Court is required to make would result from applying one or the other in the circumstances of this case.
My principal concern in this respect is that the Court’s interpretation of Article 6 seems, in effect, to shift "the burden of proof" of "special circumstances" from the State which invokes them to the Court itself, and constitutes some threat that the rule of positive law expressed in Article 6 will be eroded by its identification with subjective equitable principles, permitting attempts by the Court to redress the inequities of geography.
With these qualifications, and others which it would serve no helpful purpose to elaborate, I am in accord with much, perhaps most, of the reasoning of the Court.
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