The Application had been preceded by three diplomatic notes which were appended to it. The first was a Note presented by the Government of the United Kingdom to the Government of the French Republic on 19 September 1977; its text was as follows:
Her Britannic Majesty’s Embassy present their compliments to the Ministry of Foreign Affairs and have the honour to refer to the Decision of the United Kingdom/France Court of Arbitration on Delimitation of the Continental Shelf, which was delivered to representatives of the two Parties on 18 July 1977. In accordance with Article 10(1) of the Arbitration Agreement of 10 July 1975, the Decision of the Court on the question specified in Article 2 of that Agreement is accepted by the two Governments as final and binding upon them. Nevertheless paragraph 2 of the same Article 10 provides that 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
The Embassy are instructed to convey to the Ministry of Foreign Affairs that Her Majesty’s Government, having considered the terms of the Court’s Decision and the accompanying chart, together with the Technical Report annexed to the Decision, are of the view that the methods employed for drawing the two boundary lines laid down by the Court of Arbitration in its Decision raise two technical questions as to the meaning, or alternatively the scope, of the Court’s Decision.
The first question relates to the manner in which the 12-mile enclave boundary has been drawn to the north and west of the Channel Islands. It is stated by the Court in paragraph 202 of its Decision that the enclave boundary "must not... be so drawn as to allow the continental shelf of the French Republic to encroach upon the established 12-mile fishery zone of the Channel Islands", and the Court earlier refers to this fishery zone of 12 miles as "expressly recognised by the French Republic" (paragraph 187 of the Decision): on this basis, the Court decides, in paragraph 202 of the Decision, that the boundary in this area shall be drawn at a distance of 12 miles "from the established baselines of the territorial sea of the Channel Islands" This notwithstanding, the boundary as drawn on the chart accompanying the Decision and as defined in its dispositif does not coincide with the description in paragraph 202 or with the outer limit of the 12-mile fishery zone of the Channel Islands; this limit was drawn by the United Kingdom on a large-scale chart at the Court’s express request, during the course of the oral hearing A copy of the chart deposited with the Court indicating the 12-mile fishery limit around the Channel Islands was simultaneously made available to the French representatives. The discrepancies between the continental shelf boundary, as defined in the Decision, and the fishery limit, as thus illustrated, occur across a frontage of about 14 nautical miles in the area north of Alderney and the Casquéts, and in a further area of about 13 nautical miles in length fronting the north west of Guernsey; in the latter area, the discrepancy amounts to distances of up to 1½ nautical miles. In each case, the discrepancy appears to be due mainly to the fact that the selection of basepoints used by the expert appointed by the Court, and listed in paragraph (11) of his Technical Report—a listing which is also contained in paragraph 20.3 of the Court's Decision—does not include certain basepoints, both low-tide elevations and permanently dry features, although these basepoints are relevant for purposes of delimitation, and have consistently been used by the United Kingdom, in accordance with the applicable rules of international law and without protest from other States, for delimiting the territorial sea and the exclusive fishery limit around the Channel Islands.
The second question relates to the techniques used for the drawing of the boundary in the South-Western Approaches westward of point "M" to the terminal point "N" The Court defines the boundary line in this part of the arbitration area in general terms in paragraph 251 of its Decision as being a line drawn mid-way between two equidistance lines, the first of which does not use the off-shore island as a basepoint and the second of which does use the off-shore island as a basepoint. Subsequently, the Court defines the boundary line in this part of the area more precisely in paragraph 254 of its Decision as following the line which bisects the area formed by the equidistance line delimited from Ushant and the Scilly Isles and the equidistance line delimited from Ushant and Land’s End. It appears to the United Kingdom, from a study of the boundary-line chart and of the Technical Report by the Court’s expert, that the boundary line has been drawn as a straight line on a Mercator chart, and that its course has been arrived at by using the technique of constant bearings based upon the chosen basepoints on the Cornish mainland, the Scilly Isles and Ushant. However, as a result of the scale distortions inherent in charts drawn on the Mercator projection, the line M-N as drawn on the boundary-line chart does not represent a straight line on the surface of the earth, and does not represent the line lying mid-way between, or bisecting the area between, true equidistance lines based on Ushant and the Scilly Isles and on Ushant and Land's End, respectively: at its western-most extremity on the 1,000-metre isobath, the true bisector line would lie approximately 4 nautical miles to the south of the line traced by the Court’s expert on the boundary-line chart
Her Majesty’s Government take the view that the Court's Decision on the question specified in Article 2 of the Arbitration Agreement is contained in the wording of its award, and in particular in paragraph 202 and in paragraph 251 and the first sentence of paragraph 254, and that the tracing of the boundary line by the Court’s expert represents the expert’s interpretation of the Court’s Decision, and, in Her Majesty's Government’s view, is, in the respects described above, an incorrect interpretation of the Decision Moreover, Her Majesty’s Government cannot find any indication in the body of the Decision that the expert’s technical calculations were, in these respects, specifically endorsed by the Court
Her Majesty’s Government therefore consider that these two matters raise questions concerning the meaning, or alternatively the scope, of the Court’s Decision. The Embassy are accordingly instructed to propose urgent talks between representatives of the two Governments, accompanied by the appropriate technical experts, at which the above matters might be discussed and at which the United Kingdom representatives would be able to furnish any additional technical information that might be required by the French representatives It would be the hope of Her Majesty's Government that the outcome of these discussions would be agreement between the two Governments on the necessary modifications to the boundary-line chart, which might then be conveyed jointly by the two Parties to the Court of Arbitration. However, should it not prove possible to reach agreement, Her Majesty’s Government must reserve the right to refer the disagreement to the Court of Arbitration as provided for in Article 10(2) of the Arbitration Agreement of 10 July 1975
The reply of the French Government to this Note was presented to the British Embassy in Paris on 28 September 1977. It read as follows:41
The Ministry of Foreign Affairs presents its compliments to the Embassy of the United Kingdom, and, in reply to the Note presented by the Embassy on 19 September last with regard to the delimitation of the continental shelf between France and the United Kingdom, has the honour to inform the Embassy of the comments which the said Note leads it to make and of the conclusions which it is forced to draw from an examination thereof.
The British Note of 19 September shows that the Government of the United Kingdom only attributes the character of a decision to certain parts of the Arbitral Award to be found in the statement of the reasons for the said Award and, in particular, in paragraph 202, in paragraph 251 and in the first sentence of paragraph 254 The United Kingdom, in consequence, categorically denies the character of a decision to other paragraphs describing the course of the boundary-line, such as paragraphs 252, 25.3, and 254 (in respect of all the sentences in this last paragraph except the first).
Above all, it denies this character to the whole of the dispositif of the Decision as well as to the chart which forms an integral part of that Decision. The references to the course of the boundary-line, and to the chart, are supposed to represent only the views of the expert and not those of the Court.
This position of the United Kingdom is in clear conflict with Articles 2 and 9 of the Arbitration Agreement and with what the Court itself has said.
Article 2 of the Arbitration Agreement makes it clear that the Court’s mandate consists in deciding the course of the boundary-line or lines dividing the two continental shelves. Article 9 provides that the Court’s decision on the question put in Article 2 of the Arbitration Agreement shall include the drawing of the course of the boundary-line or lines on a chart.
In executing its mandate, the Court did in fact determine the course of the boundarylines in question in the dispositif of its Award, attaching a chart thereto By preceding the dispositif with the words: "For these reasons, [t]he Court, unanimously, decides..",
the Court, at the same time, indicated, pursuant to paragraph 2 of Article 9 of the Arbitration Agreement, that that which preceded the dispositif of its Decision constituted simply the reasons therefor.
It follows that the course of the boundary-lines determined by the Court and the chart included in the Decision are, by virtue of Article 10, paragraph 1, of the Arbitration Agreement, of a final and binding nature for the Parties.
The French Government consequently does not see how the United Kingdom can deem it possible to deny this character to the whole dispositif of the Award and to the chart which forms part of the Decision, while on the contrary attributing such character to certain arbitrarily chosen portions of the statement of the reasons for that Decision.
So far as the French Government is concerned, the final and binding nature of the arbitral Award provided for in Article 10 of the Arbitration Agreement obviously applies to the dispositif of the Award, that is to say, to the description of the course of the boundaryline which is preceded by the words: "For these reasons, [t]he Court, unanimously, decides..." as well as to the chart which forms an integral part of the Decision.
To recognise that the dispositif oí the Award has this characteristic is an obligation incumbent upon both Parties by virtue of Articles 2, 9 and 10 of the Arbitration Agreement.
The French Government, determined for its part to honour the obligations it assumed in signing the Arbitration Agreement, expects the United Kingdom Government to do the same.
Under these conditions, it is of the view that its concern to carry out its obligations arising out of the Arbitration Agreement does not allow it to take part in negotiations on the subject proposed in the United Kingdom Note of 19 September.
A final Note was presented by the British Embassy in Paris to the French Ministry of Foreign Affairs on 7 October 1977. The text of this Note was as follows:
Her Britannic Majesty’s Embassy present their compliments to the Ministry of Foreign Affairs and have the honour, with reference to the Ministry’s Note of 28 September in reply to the Embassy's Note of 19 September concerning the Decision of the United King-dom/France Court of Arbitration on Delimitation of the Continental Shelf, to state the following
In expressing Her Majesty’s Government's regret that the French Government decline to meet with representatives of Her Majesty’s Government for the talks proposed in the Embassy's Note, the Embassy are instructed to say that Her Majesty’s Government neither deny the binding force of the Court of Arbitration’s Decision in accordance with Article 10(1) of the Arbitration Agreement of 10 July 1975 nor do they deny binding force to the dispositif of the Court's Decision. On the contrary, the Embassy's Note identified certain issues of a technical character in relation to which there appears to be a disparity between the boundary lines, as drawn on the chart, in certain specified parts of the arbitration area and the wording and intent of the Court’s Decision itself. As a result, the boundary lines in these parts of the arbitration area, as traced on the chart and defined in the Technical Report and the dispositif ate, in the view of Her Majesty’s Government, based upon an incorrect interpretation of the reasoning on which the Court's Decision is founded.
In the light of the Ministry’s Note, it is clear that there exists a dispute between the two Governments as to the meaning, or alternatively the scope, of the Court’s Decision, and Her Majesty's Government now intend, in accordance with the express terms of Article 10(2) of the Arbitration Agreement, to refer this dispute to the Court of Arbitration. A copy of their Application will be delivered to the Agent for the French Government as soon as it has been deposited with the Registrar of the Court of Arbitration.
The Application of 17 October 1977 instituting the present proceedings reads as follows:
Application to the Court of Arbitration pursuant to the provisions of Article 10, PARAGRAPH 2, OF THE ARBITRATION AGREEMENT OF 10 JULY 1975
1. In accordance with the provisions of Article 10, paragraph 2, of the Arbitration Agreement between the Government of the United Kingdom and the Government of the French Republic signed in Paris on 10 July 1975 ("the Arbitration Agreement"), the United Kingdom wish hereby to refer to the Court of Arbitration two questions relating to the meaning, or alternatively the scope, of the Court’s Decision of 30 June 1977, which are in dispute between the Parties, namely:
(1) the techniques and methods employed for drawing on the boundary-line chart the 12-mile enclave boundary to the north and west of the Channel Islands;
(2) the techniques and methods employed for drawing on the boundary-line chart the portion of the boundary west of point "M" out to the 1,000-metre isobath
2. The reasons justifying this Application are set out below.
A. General
3. The Court’s Decision dated 30 June 1977 on the question specified in Article 2 of the Arbitration Agreement of 10 July 1975 was delivered to the Parties in Geneva on 18 July 1977 In accordance with Articles 9(1) and (2) of the Arbitration Agreement the Decision is fully reasoned, and includes a navigational chart on which is traced the course of the two boundaries decided upon by the Court. As indicated in the Decision, these boundary lines were drawn on the chart by the technical expert duly appointed by the Court pursuant to Article 9(1) of the Arbitration Agreement There is also annexed to the Decision a Technical Report by the Court’s expert entitled "The Boundary-Line Chart and the Tracing of the Boundary Line", which explains the calculations performed in determining the precise co-ordinates defining the boundary lines and in tracing the boundary lines thus defined on the boundary-line chart. The co-ordinates thus calculated are also reproduced in the dispositif of the Court’s Decision.
4. In the opinion of the United Kingdom, the techniques and methods employed to arrive at these co-ordinates and to trace the corresponding lines on the boundary-line chart in certain parts of the arbitration area give rise to certain technical problems involving contradictions between segments of the boundary lines thus traced and defined and the intentions of the Court set out in the body of its Decision.
5. The problems identified by the United Kingdom and their reasons for characterising them as raising questions relating to the meaning, or alternatively the scope, of the Court’s Decision, were explained in detail to France in a Note delivered by the British Embassy in Paris to the French Ministry of Foreign Affairs on 19 September 1977, a copy of which is annexed to this Application as Appendix A. 1 This Note proposed that, in view of the time limit laid down in Article 10(2) of the Arbitration Agreement, urgent discussions should be held between representatives of the Parties, accompanied by the appropriate technical experts, in order to see whether it would be possible to reach agreement between the Parties as to the technical issues identified in the Note The Note further stated that, should agreement not be forthcoming, the United Kingdom reserved the right to refer the matters in question to the Court of Arbitration pursuant to Article 10(2) of the Arbitration Agreement.
6. France’s reply to this proposal was contained in a Note from the French Ministry of Foreign Affairs delivered to the British Embassy on 28 September 1977, a copy of which is annexed to this Application as Appendix A.2. In this Note, France declined to enter into discussions of the kind proposed by the United Kingdom or to deal on their merits with the technical issues identified by the United Kingdom, but set out at length the contention of France that the decision of the Court on the question specified in Article 2 of the Arbitration Agreement is to be found in the dispositif of the Court’s Decision and in the lines traced on the boundary-line chart.
7. It is thus apparent, in the view of the United Kingdom, that there exists a clear difference of view between the Parties as to the proper interpretation of the Court’s Decision of 30 June 1977 (and thus as to its meaning); and that there existí a clear difference of view between the Parties as to the binding force of certain parts of the Decision in relation to the Decision as a whole (and thus as to its scope) Accordingly, the Court has jurisdiction, pursuant to the express terms of Article 10(2) of the Arbitration Agreement, to deal with the disputed issues identified in the British Embassy's Note of 19 September, provided that the Court is seized of the matter within the time limit specified in Article 10(2), that is to say, within three months of 18 July 1977. A copy of the British Embassy’s Note delivered to the French Ministry of Foreign Affairs on 7 October 1977, stating the United Kingdom’s intention of referring these questions to the Court under the provisions of Article 10(2), is annexed to this Application as Appendix A 3.
B The 12-mile enclave boundary to the north and west of the Channel Islands
8. In paragraph 202 of its Decision the Court "decides that this boundary (sc the enclave boundary north and west of the Channel Islands) shall be drawn at a distance of 12 nautical miles from the established baselines of the territorial sea of the Channel Islands" In the United Kingdom’s submission, this is the definitive decision of the Court upon this issue.
9. The relevant section of the boundary is subsequently described, in paragraph 203 of the Court’s Decision and the dispositif, as arcs of circles of the 12-mile radius, and the co-ordinates of the points of intersection of these arcs with the mid-Channel median line and with one another, points X, X1 — X4 and Y, are listed. A more detailed explanation of these positions is provided in paragraph (11) of the Technical Report referred to in paragraph 3 of this Application. The Technical Report contains a listing of the basepoints which have been used for determining the relevant arcs of circles, the co-ordinates defining each of which are also listed, and these listings are reproduced in paragraph 203 and the dispositif of the Court’s Decision.
10. Unfortunately, however, the basepoints so listed comprise only an incomplete selection of the relevant points on the established baselines from which the territorial sea of the Channel Islands has consistently been measured by the United Kingdom Accordingly, the boundary line in this part of the arbitration area as traced on the boundary-line chart and as defined in the Decision does not correspond in all respects to a true 12-mile limit north and west of the Channel Islands and does not, for example, correspond accurately to the established 12-mile fishery limit maintained and enforced in this area pursuant to the relevant legislation of the United Kingdom and the Channel Islands. As the Court will recall, in response to specific requests made by the Court to the Agents of the two Parties during the course of the oral hearings, the United Kingdom submitted to the Court a large-scale chart, based upon the maps which had been especially prepared by the United Kingdom for the purpose of the Arbitration, on which was traced the precise course of the 12mile fishery limit around the Channel Islands. A copy of this chart was also made available to the French Agent. The map at Appendix B.1 to this Application is a fresh version of that chart on which has also been traced the 12-mile enclave boundary as rt appears on the boundary-line chart. It will be seen that (apart from certain plotting difficulties which are relatively insignificant) the line traced on the boundary-line chart encroaches on the 12mile fishery limit across a frontage of about 14 miles north of Alderney and the Casquéis, and across a frontage of about 13 miles north-west of Guernsey. As will also be seen from this map, the discrepancies between the two lines are accounted for by the fact that the line traced on the boundary-line chart omits to use certain basepoints which may be found on the large-scale map submitted to the Court as Appendix C,6 to the United Kingdom Memorial. A full list of the basepoints used by the United Kingdom's experts for the construction of this map (together with their co-ordinates on European Datum) is annexed to this Application as Appendix A.4. These basepoints also appear on large-scale navigational charts: samples of the relevant British Admiralty charts accompany this Application as Appendices B.2 and B.3.
11. Although the positions of the basepoints referred to in paragraph (11) of the Technical Report as La Hague, Quénard Point (Alderney), Island of Burhou, the Casquéts, Les Hanois and Roches Douvres differ to a certain extent from the equivalent points listed in Appendix A 4, the United Kingdom raise no objection to their use, In the view of the United Kingdom, however, the appropriate basepoints for determining the 12-mile limit north and west of the Channel Islands should also include the following, the co-ordinates for each of which, corrected for European Datum, are also given:
C Grois Rock 49°44'14"N; 02°10'26" W;
E. Verte Tête 49°44'18" N; 02°16'57" W;
G. Noire Roque 49°43'15" N; 02°23'01" W;
H. Hoffets 49°31'10"N; 02°34'24" W;
I Les Gruñes de L’Ouest 49°30'2I" N; 02°37'59" W;
J. Le Boin 49°29'15" N; 02o39'43" W;
K, Banc des Hanois 49°27'06" N; 02°42'26" W.42
Points C, H, I, J and K are low-tide elevations lying, respectively, 0.11, 0.59, 1.00 and
0.65 nautical miles from the low-water line of the nearest permanently dry feature and points E and G are on the low-water line of permanently dry features. All of these points are, in the wording used in paragraph 202 of the Court’s Decision, points on "the established baselines of the territorial sea of the Channel Islands": "established", because they have consistently been used by the United Kingdom, without protest by France or other States, for the delimitation of the existing 3-mile territorial sea of the Channel Islands43 and for the delimitation of the 6-mile43 and 12-mile belts provided for in the London Fisheries Convention of 1964; and, on the territorial sea baseline, because they represent in every case, either points on the low-water line along the coast, or alternatively low-tide elevations lying well within the 3-mile territorial sea of the Channel Islands, and are therefore proper to be used as part of the baseline from which the territorial sea is measured in accordance with the applicable rules of international law It follows, in the submission of the United Kingdom, that the omission of these base points is inconsistent with the practice followed in defining the course of other parts of the boundary lines, and cannot be reconciled with paragraph 202 of the of the Court’s Decision.
C The boundary west of point "M" out to the 1,000-metre isobath
12. In paragraph 251 of its Decision, the Court discusses the method for implementing its decision (which is not for this purpose in issue) to give half, instead of full, effect to an off-shore island in delimiting the equidistance line. The Court defines this method as follows:
"The method of giving half effect consists in delimiting the line equidistant between the two coasts, first, without the use of the off-shore island as a base-point and, subsequently, with its use as a base-point; a boundary giving half effect to the islands is then the line drawn mid-way between these two equidistance lines" (at page 219) The Court goes on to say that "This method" (emphasis supplied) appears to it to be a proper and practical way of abating the disproportion and inequity which it found would result from giving full effect to the Scilly Isles as a basepoint for determining the course of the boundary (ibid). In the United Kingdom's submission this is the definitive decision of the Court on this issue. This is confirmed by paragraph 253 in which the Court states that it has "decided... (i)n principle" that the boundary in the remainder of the Atlantic region "is to be determined by the equidistance method but giving only half-effect to the Scillies". When proceeding, in paragraph 254, to discuss the actual course of the boundary line westward of point M, the Court similarly defines the boundary as following the line "which bisects the area formed by, on its north [sic] side, the equidistance line delimited from Ushant and the Scilly Isles and, on its south [sic] side, the equidistance line delimited from Ushant and Land's End, that is, without the Scilly Isles"
13. The Court then proceeds to describe the "direction westward followed by the bisector line". The detailed calculations on which are based this direction and the identification of point "N" (which represents the approximate intersection between the line so defined and the 1,000-metre isobath) are given in paragraphs (7) to (10) of the Technical Report, and the values arrived at are reproduced in paragraph 254 of the Court’s Decision and in the dispositif In paragraph (7) of the Technical Report, the two equidistance lines used for the construction of the boundary line westward of point M are referred to as equidistance line (a) and equidistance line (b). and each is defined in terms of its direction westwards. In paragraph (8), the course of the bisector is said to be determined by the half angle between equidistance lines (a) and (b). and paragraph (9) states that "the bisector which the Court has decided shall be the boundary westwards of point M" is in turn defined in terms of an angular direction westwards. Th segment of boundary line M-N has been drawn as a straight line on the Mercator navigational chart used for the boundary-line chart, from which it may be inferred that the "equidistance lines" (a) and (b) used to calculate this segment of the boundary line were also conceived of as lines of constant bearing (technically known as rhumb lines or loxodromes) which, when traced on a standard Mercator chart, appear as straight lines The use of lines of constant bearing for calculating and defining this segment of the boundary over so large a distance as 170 nautical miles (Technical Report, paragraph (10)) raises the following technical difficulty.
14. In paragraphs 320-323 of the [United Kingdom] Counter-Memorial, and especially footnote (3) on page 124, a description was given of some of the characteristics of the standard Mercator projection. It was explained that, despite the convenience of standard Mercator charts for the navigator, this map projection contains inherent distortions which require to be corrected if it is to be used for delimitation purposes In particular, it was explained that, because of the curvature of the earth’s surface, the horizontal distance scales on a standard Mercator chart are not, in general, constant, but vary according to the latitude at which the distance is measured. Consequently, an equidistance line cannot be directly plotted on to a standard Mercator chart unless an allowance for scale distortions is made for each set of measurements of equal distances44 In his statement to the Court of Arbitration on 8 February 1977, having mentioned accepted methods for taking account of the earth's spheroidal shape, Cdr Beazley pointed out "that in terms of plane geometry an equidistance line consists of a senes of perpendicular brsectors of lines joining relevant base-points on the coasts of the two States" (.. emphasis supplied). It follows that, if the surface of the earth were flat, equidistance line (a), the equidistance line based solely on Le Crom (Ushant) and Wingletang (Scilly Isles), would simply be the perpendicular bisector of the straight line joining these two points, and the same would hold for equidistance line (b), the equidistance line based solely on Runnelstone and Le Crom
15. The surface of the earth is, however, curved. A true equidistance line based on a single pair of basepoints would therefore have to be the equivalent of a straight line along the curved surface of the earth. Such a line is known as a geodesic For the reasons explained in the passages in the [United Kingdom] Counter-Memorial cited above, a geodesic, when plotted on a standard Mercator chart, would appear as a curved line (in the particular geographical location of the arbitration area, its curvature would be to the south) and the southward-tending curvature becomes ever more pronounced with the outward projection of the line over larger distances. It follows that the equidistance lines (a) and (b), if conceived of as straight lines on a Mercator chart (lines of constant bearing), their direction being determined by the bearings given in the Technical Report and in paragraph 254 of the Court's Decision, would not represent true equidistance lines between the chosen basepoints: as the lines of constant bearing were projected westward, the points on them would tend progressively closer to the northern (United Kingdom) basepoints and progressively further from the southern (French) basepoint.44 For the same reason, the line M-N traced as a straight line on a Mercator chart does not represent the line lying mid-way between, or bisecting the area between, true equidistance lines based on Ushant and the Scilly Isles and on Ushant and Land’s End, respectively: the true bisector line would appear on a Mercator chart as a line curving progressively southward and, on the meridian 9°36'30"W (the longitude of point "N"), would lie approximately 4 nautical miles to the south of the line M-N The discrepancy would of course increase if the lines in question were projected beyond the 1,000 metre isobath—to about 6 miles at the 200-mile limit, and still further at the outer edge of the continental margin. Annexed to this Application as Appendix B.4 is a navigational chart of the South-Western Approaches (Mercator projection) on which the discrepancy between the two lines is shown.
16. In the view of the United Kingdom, therefore, the segment M-N of the boundary line as drawn on the Boundary-Line Chart and as defined in paragraphs (9) and (10) of the Technical Report and in the dispositif the Court's Decision, cannot in this respect be reconciled with the evident intention of the Court embodied in paragraph 251 and the first sentence of paragraph 254 of the Court’s Decision
D. The interpretation of Article 10(2) of the Arbitration Agreement
17. Under Article 10(1) of the Arbitration Agreement of 10 July 1975, 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 Agreement. This provision is fully respected by the United Kingdom. Nevertheless, Article 10(2) of the Arbitration Agreement provides that "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". As explained in paragraph 5 of this Application and in the Note of 19 September 1977 from the British Embassy in Paris to the French Ministry of Foreign Affairs (Appendix A 1 to this Application), the United Kingdom consider that the technical difficulties discussed in parts B and C of this Application are the results of interpretations of the intentions of the Court which are. in the respects described above, incorrect. This entails, in the view of the United Kingdom, that, as a matter of the proper interpretation of the Court’s Decision of 30 June 1977, any internal contradictions in it should be resolved in favour of the evident intention behind the reasoned part of the Court’s Decision, since the dispositif itself is entirely based upon, and expressly incorporates ("For these reasons.."), the Court’s reasoning In the Note of 28 September 1977 (Appendix A.2 to this Application) France has adopted a different view, and contends that the tracing of the boundary lines on the Boundary-Line Chart constitutes an integral part of the Court’s Decision on the question specified in the Arbitration Agreement, and that the dispositif of the Court’s Decision is final and binding in every respect. Accordingly, France does not share the view of the United Kingdom as to the manner in which the Court’s Decision should be interpreted nor the view of the United Kingdom as to which parts of the Decision have the final force conferred by Article 10(1) of the Arbitration Agreement It follows that there is a dispute between the Parties as to the meaning, or alternatively the scope, of the Court’s Decision and that the Court has jurisdiction to resolve such a dispute under the express terms of Article 10(2) of the Arbitration Agreement.
18. If, however, France’s view is correct to the extent that the tracing of the boundary lines on the Boundary-Line Chart constitutes an integral part of the Court’s Decision on the question specified in Article 2 of the Arbitration Agreement, then, for the reasons given, there are conflicts within the Decision itself which can be resolved only by a further decision of the Court as to the true meaning, or alternatively the scope, of the Decision, namely, as to which parts thereof are to prevail
19. For the reasons given above, the United Kingdom asks the Court to adjudge and declare, in accordance with provisions of Articles 2, 9 and 10 of the Arbitration Agreement,
I that the tracing on the boundary-line chart of certain parts of the 12-mile enclave boundary north and west of the Channel Islands and of the boundary line westward of point M, and the formal definition of these parts of the boundary line in the text of the Court's Decision of 30 June 1977, does not in the respects described above give effect to the express words and evident intention of the Decision as a whole, and that the Decision should be interpreted so as to reconcile the contradiction in favour of the latter;
II. that the boundary-line chart and, as necessary, the text of the Decision should be rectified accordingly
The Application was accompanied by the three Notes quoted above and by a further Appendix (A.4) which listed the co-ordinates of the base-points controlling the limit of 12 nautical miles north and west of the Channel Islands. The text of this Appendix read as follows:
Co-ordinates of basepoints controlling a 12-mil.e
LIMIT NORTH AND WEST OF THE CHANNEL ISLANDS
(All positions are based on European Datum)
| Name | Latitude | Longitude |
| A Petite Grune | 49°44'15" | 01°56'17" |
| B. Sauquet Rocks | 49°44'05" | 02°09'27" |
| C. Grois Rock | 49°44'14" | 02°10'26" |
| D. Round Rock | 49°44'29" | 02°14'45" |
| E. Verte Tête | 49°44'18" | 02°16'57" |
| F. L’Auquière | 49°43'25" | 02°22'47" |
| G. Noire Roque | 49°43'15" | 02°23'01" |
| H. Hoffets | 49°31'10" | 02°34'24" |
| I. Les Gruñes de l'Ouest | 49°30'21" | 02°37'59" |
| J, Le Boin | 49°29'15" | 02°39'43" |
| K. Banc des Hanois | 49°27'06" | 02°42'26" |
| L. Les Hanois (a) | 49°26'31" | 02°42'46" |
| M. Roches Douvres | 49°07'16" | 02°49'00" |
| Point No. | Arcs from | Latitude N | Longitude H |
| 1 | A and B | 49°55'23" | 02°03'12" |
| 2 | B and C | 49°55'50" | 02°05'41" |
| 3 | C and D | 49°56'13" | 02°10'57" |
| 4 | D and E | 49°56'16" | 02°18'13" |
| 5 | E and F | 49°55'23" | 02°24'02" |
| 6 | F and G | 49°51'23" | 02°36'38" |
| 7 | G and H | 49°42'15" | 02°41'27" |
| 8 | H and I | 49°42'01" | 02°42'16" |
| 9 | I and J | 49°38'22" | 02°51’43" |
| 10 | J and K | 49°35'44" | 02°55'13" |
| 11 | K and L | 49°30'58" | 02°59'51" |
| 12 | L and M | 49°18'18" | 02°56'09" |
(a) Middle one of three rocks lying within 300 metres of one another.
The Application was immediately communicated by the Registrar to the Agent of the Government of the French Republic; and the President of the Court of Arbitration, by an Order of 5 November 1977, fixed the date of 10 December 1977 for the filing by that Government of written observations on the United Kingdom Government's Application.
These observations were received by the Registrar on 9 December 1977 and immediately communicated by him to the Government of the United Kingdom.
A session of the Court of Arbitration was convened by its President on 14 and 15 December 1977 in Geneva; in the course of that session it was decided, after having consulted the Agents of the Parties, to hold hearings starting on 23 January 1978 in order that the Parties might present their oral observations. In the course of this same session, the following two questions were put to the Agents, who were asked to submit written replies by 14 January 1978:
(1) What is the general practice in regard to the nature of the charts used for the delimitation of continental shelf and other maritime boundaries? Are charts based on Transverse Mercator Projection in general use in Hydrographic Departments?
(2) During the negotiations which took place in the years 1964 and 1970-1974 was there any understanding or discussion between the Parties regarding the use of the Mercator or Transverse Mercator Projection in determining the boundary in the Arbitration Area?
Written replies to these questions were delivered to the Registry within the time-limit laid down.
The Court of Arbitration accordingly met on 23 January 1978 and held six meetings, on 23 and 24 January, on 26 and 27 January and on 30 and 31 January 1978, at which observations were heard: on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland, from Sir Ian Sinclair, Agent and Counsel, and, on behalf of the Government of the French Republic, from M. Ladreit de Lacharrière, Agent. After hearing of 27 January 1978, the Court put the following questions to the Agents of the Parties:
(1) Is the Court correct in understanding that the French Government does not contest the status of the geographical features named in Appendix A.4 to the Application as basepoints of the Bailiwick of Guernsey for the purpose of delimiting the 12-mile fishery zone of the Channel Islands, or the technical accuracy of the two series of co-ordinates listed in that document?
(2) Replying to the second of the two questions posed in the Court’s Order of 15 December 1977, the French Government has stated that during the Franco-British negotiations of 1964 and 1970-1974 the delegations of the Parties were agreed upon working exclusively on charts based on the Mercator projection. Will the French Government please also inform the Court as to whether during those negotiations there was any understanding between the Parties concerning any need to make corrections on account of the curvature of the earth, and in this connexion will it please take into consideration paragraphs 19 and 20 of the United Kingdom's Response to the above-mentioned question and the documents reproduced at Appendices A(11) and A(23) of the United Kingdom Memorial.
(3) Will the United Kingdom please clarify its submission in paragraph 19.II of its Application, in so far as this relates to the Atlantic region, by including in its final Submissions a precise verbal description, with any relevant co-ordinates, of the rectification which it asks the Court to effect.
These questions were answered at the hearings of 30 and 31 January 1978.
The written Submissions of the Parties were as follows:
On behalf of the Government of the United Kingdom of Great Britain and Northern Ireland, in its Application of 17 October 1977:
[T]he United Kingdom asks the Court to adjudge and declare, in accordance with the provisions of Articles 2, 9 and 10 of the Arbitration Agreement:
I. that the tracing on the boundary-line chart of certain parts of the 12-mile enclave boundary north and west of the Channel Islands and of the boundary line westward of point M, and the formal definition of these parts of the boundary line in the text of the Court’s Decision of.30 June 1977, does not in the respects described above give effect to the express words and evident intention of the Decision as a whole, and that the Decision should be interpreted so as to reconcile the contradiction in favour of the latter;
II. that the boundary-line chart and, as necessary, the text of the Decision should be rectified accordingly.
On behalf of the Government of the French Republic, in its written observations of 9 December 1977:
[T]he French Government requests the Court to declare that the Application of the United Kingdom, apart from its having been filed late, is inadmissible by virtue of Article 10, paragraph 2, of the Arbitration Agreement, and that it moreover asks the Court to take a decision which would exceed its powers
Alternatively, and in the event that the Court should decide that it is competent to deal with the merits, the French Government requests the Court to declare that the Application of the United Kingdom must be rejected on the ground that the Decision is clear and contains no obscurity or contradiction.
At the end of their first oral statements, the Agents of the Parties presented the following Submissions:
On behalf of the Government of the United Kingdom of Great Britain and Northern Ireland, at the hearing of 24 January 1978:
We submit that, for the following reasons, the United Kingdom Application is admissible under Article 10(2) of the Arbitration Agreement.
(a) It was filed within the time-limit prescribed in that provision, that is to say, within three months of the rendering of the Court’s Decision which must be deemed to have taken place on 18 July 1977;
(b) It refers to the Court a "dispute" between the Parties, the nature of the dispute emerging clearly from the diplomatic Notes annexed to the United Kingdom Application, and, indeed, from the terms of the Application itself;
(c) The "dispute" is one as to the meaning and scope of the Decision since the United Kingdom contends, and France denies, that binding force attaches to certain key paragraphs in the body of the Court’s Decision, namely, paragraphs 202, 251 and 254, which paragraphs, in the submission of the United Kingdom, constitute an essential element of the Court’s Decision and accordingly form part of the Court’s response to the question specified in Article 2 of the Arbitration Agreement.
(d) The primary relief which the United Kingdom seek is a ruling from the Court on the meaning and scope of the Decision which it rendered last summer, given the contradictions to which reference is made in paragraphs 8 to 16 of their Application, and to which 1 have made reference also in this statement; and the United Kingdom submit that, if the Court is satisfied that the boundary-lines drawn on the chart and described in the dispositif do not, in the respects described in the United Kingdom Application or otherwise, give effect to the express words and evident intention of the Court’s Decision read as a whole, the Court has an inherent power under Article 10(2) of the Arbitration Agreement to rectify the chart and the dispositif to the extent necessary to give effect to the correct interpretation of its own Decision.
I conclude by stating formally that the United Kingdom affirm in their entirety the linked submissions made in paragraph 19 of their Application..
On behalf of the Government of the French Republic, at the hearing of 27 January 1978:
The French Government.., maintains the Submissions presented to the Court in its observations on the United Kingdom Application, namely:
—that the Application was submitted after the expiry of the period of three months following the Decision, which is provided for in Article 10(2) of the Arbitration Agreement;
— that during this three-months’ period, and independently of the determination of the date on which that period commences, no dispute can be shown to have arisen between France and the United Kingdom as to a possible contradiction which, according to the United Kingdom but not according to France, would exist between different parts of a Decision all of which was written by the Court;
— that a dispute on the alleged contradiction was revealed only after the United Kingdom submitted their Application to the Court, i.e at a time when the dispute could no longer serve as a ground for seizing the Court under Article 10(2) of the Arbitration Agreement,
— that the only dispute established during the three-months' period relates to an attribution by the United Kingdom of the paternity of different passages of the Decision, some to the Court, others to the Expert—an attribution denied by the United Kingdom, with the result that the dispute on this point would amount to no more than a misunderstanding and would therefore not exist;
— that, in any event, the Court’s powers of interpretation under the Arbitration Agreement only entitle it to clarify the meaning of a possible obscurity in the Decision, without empowering it in any manner to modify the contents of the Decision;
— that the measures which the United Kingdom request the Court to take to "reconcile" different parts of the Decision and to "rectify" certain parts of the Decision, including the course of the boundary-line on a chart, exceed the powers conferred on the Court by the Arbitration Agreement;
— that the Court has no "inherent power" entitling it to take measures of the scope of those mentioned in the Submissions of the United Kingdom,
— that, moreover, the Decision of the Court is not inconsistent with the reasoning set out tn the Decision;
— that, as regards the request for interpretation submitted by the United Kingdom on 24 January concerning the nature of the segments between turning points of the boundaryline tn the Channel and the nature of the geodesic reference system used for the delimitation in the Atlantic sector, the request is inadmissible because it does not relate to a dispute shown to exist between the Parties, nor, a fottori, to a dispute the existence of which has been established within the three-months’ period provided for in Article 10, paragraph 2, of the Arbitration Agreement,
— that, accordingly, there is no ground for the Court to give an interpretation of its Decision of 30 June 1977, which stands in its entirety, including the course of the boundary-line drawn on the Chart which constitutes an integral part of the Decision.
At the end of their final statements, the Agents of the Parties presented the following Submissions:
On behalf of the Government of the United Kingdom of Great Britain and Northern Ireland, at the hearing of 30 January 1978:
[The United Kingdom Government] invite the Court:
(a) to reject the objections which France has raised to the admissibility of the United Kingdom Application under Article 10(2) of the Arbitration Agreement;
(b) to declare that Application admissible;
(c) to uphold the submissions made in paragraph 19 of that Application, as completed by the reply I have just given to the question put to the United Kingdom by the Court on 27 January.
The Agent of the United Kingdom had given the following reply to question (3) put by the Court on 27 January 1978:
In answer to this question, I must inform the Court that the United Kingdom have calculated the position at which the true half-effect line meets the 1,000-metre isobath, so far as the course of the latter can be ascertained. This position, which I shall call NX, may be defined as:
NX = 48°08'11" N 09°16'00" W,
the coordinates being rounded off to the nearest second of arc. The appropriate segment of line is a geodetic line, the azimuth of which, at point M, is the same as the Direction westwards stated in paragraph 254 of the Court’s Decision, namely 247°09'37". For the convenience of the Court I may state that this geodetic line intersects the meridians 6, 7, 8, and 9° West at the following latitudes:
at 6°00'00" W : 49°06'52" N;
at 7°00'00" W : 48o49’44" N,
at 8°00'00" W : 48o31'52" N;
at 9°00'00" W. 48°13'16" N.
all the above latitudes being rounded off to the nearest second. All of the above positions are on European Datum.
On behalf of the Government of the French Republic, at the hearing of 31 January 1978:
[T]he French Government maintains its previous Submissions and adds thereto, entirely in the alternative and in the event that the Court should feel itself bound to modify its Decision of.30 June 1977, the following Submission: the Court is requested to replace, as from Point L, the description of the boundary-line between the French and United Kingdom parts of the continental shelf by the following description:
(1) The coordinates of point M, the definition of which remains unchanged, should be corrected to read:
M 49o12'04" N 5o41'51" W
(Paragraph 253 of the Award).
(2) Paragraph 254 of the Award should be amended as follows, as from the second sentence ("The direction westwards followed.."):
"This line is defined as a series of geodetic arcs joining the points whose coordinates are given below:
M = 49°12'04" N 5°41'51" W
P, = 49°10'22" N 5o48'24" W
P2 = 49°04'27" N 6°10T6"W
P3 = 49°00'08" N 6°25'50" W
Q1 = 48o56'28" N 6°39'12"W
P4 = 48°50'37" N 7°00’46" W
Q2 = 48°46'22" N 7° 16'04" W
P5 = 48°45'18" N 7°19'47" W
P6 = 48°37'53" N 7°45'23" W
Q3 = 48o21'55" N 8o39'00" W
N = 48o04'30" N 9°35'20" W
(Q4= 47°51'44" N 10o15'37" W)
The last arc of this line (Q3--Q4) cuts the 1000-metre isobath at approximately point N." Commencing with the words "The position of Point N...", the paragraph [254] remains unchanged
(3) The Court’s Decision should be amended in order to correct, in accordance with the foregoing, the coordinates of the points M and N, and to introduce between these two points the nine points P1 to Q3, the coordinates of which are given above.
(4) The chart annexed to the Decision must accordingly be corrected in conformity with the line drawn on the chart filed by France (chart 3).
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.
The French Government, on the other hand, objects that the Application is inadmissible on the grounds that it was not filed within the time-limit laid down in Article 10 and that it is also in other respects not in conformity with the terms of that Article. The Court must accordingly first address itself to the question whether it is precluded from entertaining the Application by reason of any of these objections.
However, as a result of the scale distortions inherent in charts drawn on the Mercator projection, the line M-N as drawn on the boundary-line chart does not represent a straight line on the surface of the earth, and does not represent the line lying mid-way between, or bisecting the area between, true equidistance lines based on Ushant and the Sciily Isles and on Ushant and Land’s End, respectively
In addition, the opening paragraph of the Note called the attention of the French Government expressly to Article 10, paragraph 2, while in the concluding paragraph the United Kingdom stated that it considered the two matters which it had specified to "raise questions concerning the meaning, or alternatively the scope, of the Court’s Decision".
It would no doubt be desirable that a State should not proceed to take as serious a step as summoning another State to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome. But in view of the wording of the article, the Court considers that it cannot require that the dispute should have manifested itself in a formal way; according to the Court’s view it should be sufficient if the two Governments have in fact shown themselves as holding opposite views in regard to the meaning or scope of a judgment of the Court
This reasoning cleanly applies a fortiori where, as in Article 10, paragraph 2, the right to request an interpretation of a decision has been made subject to a comparatively short time-limit.
the United Kingdom contends, and France denies, that binding force attaches to certain key paragraphs in the body of the Court’s Decision, namely paragraphs 202, 251 and 254.
which, in its view, constitute an essential element of the Court’s Decision and accordingly form part of the Court’s response to the question specified in Article 2 of the Arbitration Agreement. It insists that the primary relief which it seeks is a ruling from the Court on the meaning and scope of the Decision, given the contradictions in the Decision which it has alleged in paragraphs 8 to 16 of its Application. It claims that
if the Court is satisfied that the boundary-lines drawn on the chart and described in the dispositif do not, in the respects described in the United Kingdom Application or otherwise, give effect to the express words and evident intention of the Court’s Decision read as a whole, the Court has an inherent power under Article 10(2) of the Arbitration Agreement to rectify the chart and the dispositif to the extent necessary to give effect to the correct interpretation of its own Decision
In answer to a question put by the Court, the United Kingdom defined more precisely the actual rectification of the Chart and the dispositif which it claims, and which for present purposes can be said to be the continuation westwards of the line from Point M, at the angle of 247°09'37" prescribed by the Court, by a geodetic line instead of by the loxodrome indicated in the dispositif and drawn on the Chart.
certain clearly identified passages in the body of the Decision itself constitute essential elements of the Award which equally have the authority of res judicata and, indeed, form an integral part of the Court's response to the question specified in Article 2.
As to Article 9 of the Agreement, the United Kingdom claims that the inference to be drawn from it is the opposite of that suggested by the French Government; and that, by providing for the decision to "include" the drawing of the line, the Article necessarily implies that the decision is to comprise something more.
form part of the Court’s reasoning but rather embody conclusions reached by the Court as to the course of the relevant boundaries, conclusions which determine and fix the limits within which the boundary lines should be formally defined in the dispositif and depicted on the Chart
Their wording, it argues, is consistent only with the view that "they form an integral part of the Court’s decision on the course of the boundary lines". As to the dispositif, the United Kingdom observes that it indicates the course of the two boundaries by reference to precise coordinates and declares that the two lines are those traced in black on the Boundary-Line Chart included with the Decision; and that this is its entire content. The United Kingdom does not contend that the dispositif is not responsive to the question specified in Article 2, or that it lacks binding force, except to the extent that it "is inconsistent with the principles laid down in the Decision as to the manner in which these boundary-lines should be drawn". It states, however, that the list of coordinates spelt out in the dispositif represents no more than the Court’s application of the principles clearly set out in the body of the Decision, notably in paragraphs 202, 251 and 254, for the construction of the boundary-line. It then contends that, in such a case, the legal principles or considerations laid down by the Court for the construction of the boundary-lines form the essential basis of the Court’s Decision on the question specified in the Agreement and cannot be divorced from the dispositif and the Chart.
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.
That the words "the decision of the Court" should have been intended by the Parties in this provision to refer only to the dispositif and the drawing of the course of the boundary on a chart is really inconceivable. To interpret the paragraph in such a way would run directly counter not only to the consistent and long established practice of the International Court of Justice but also to the object and purpose of the provision itself. Nor did even the possibility of such a novel interpretation of paragraph 3 occur to the present Court when it appended to its Decision of 30 June 1977 a declaration by one of its Members devoted exclusively to aspects of the reasoning. The regularity of that "declaration" under paragraph 3 has not been questioned and, in the view of the Court of Arbitration, is beyond question in the light of the object and purpose of the paragraph and of the settled practice in the matter.
Is the Court correct in understanding that the French Government does not contest the status of the geographical features named in Appendix A 4 to the Application as basepoints of the Bailiwick of Guernsey for the purpose of delimiting the 12-mile fishery zone of the Channel Islands, or the technical accuracy of the two series of coordinates listed in that document?
In replying to this question on 31 January 1978, the French Government first observed that, after careful checking, it had noted a few small differences between the coordinates given in Appendix A.4 and those taken on French charts, but that these were "minimal" and explicable by the difference in the geodesic systems used in the marine charts of the two countries. It then stated:
The French Government has not contested and does not contest that the identification of the basepoints relevant for the determination of the 12-mile limit from the baselines of the territorial sea has been carried out correctly by the British Government. It likewise accepts as correct the positions given for these points by the British Government, despite the differences already mentioned which it does not consider to be material
The method of giving half-effect consists in delimiting the line equidistant between the two coasts, first, without the use of the offshore island as a base-point and, secondly, with its use as a base-point; a boundary giving half-effect to the island is then the line drawn mid-way between those two equidistant lines. This method appears to the Court to be an appropriate and practical method of abating the disproportion and inequity which otherwise results from giving full effect to the Scilly Isles as a base-point for determining the course of the boundary
It argues that the Court’s definitive decision on this part of the case is to be found in that passage, and considers this to be confirmed by a further statement of the Court in paragraph 253:
In principle, as the Court has decided, the boundary in the remainder of the Atlantic region is to be determined by the equidistance method but giving only half-effect to the Scillies.
It further cites the Court’s description, in paragraph 254, of the resulting course of the boundary westwards of Point M:
From Point M, as indicated in paragraph 251, the boundary follows the line which bisects the area formed by, on its south46 side, the equidistance line delimited from Ushant and the Scilly Isles and, on its north side, the equidistance line delimited from Ushant and Land's End, that is, without the Scilly Isles. The direction westwards followed by the bisector line, which thus constitutes the boundary westwards of Point M, is at the angle of 247°09'37": and it meets the 1,000-metre isobath approximately at Point N, the coordinates of which may be stated as:
N : 48°06'00"N 09°36'30"W.
The three passages from the Court’s reasoning set out above, according to the United Kingdom, embody the Court’s "decision" as to the principle and method to be applied in delimiting the course of the boundary from Point M westwards to the 1,000-metre isobath.
the line M-N traced as a straight line on a Mercator chart does not represent the line lying mid-way between, or bisecting the area between, true equidistance lines based on Ushant and the Scilly Isles and on Ushant and Land's End, respectively
The "true" bisector line, it maintains, would appear on a Mercator chart as a line curving progressively southward and on the longitude of Point N would lie approximately four nautical miles to the south of the line M-N. The discrepancy, it adds, would increase to about six miles if the lines in question were projected beyond the 1,000-metre isobath to the 200-mile limit, and still more at the outer edge of the continental margin. On a Mercator chart attached as Appendix B.4 to the Application it depicts what it considers to be the discrepancy between the line M-N and the line resulting from the application on geodesic techniques of the half-effect method adopted by the Court for the delimitation of the boundary in this region.
general practice to make appropriate corrections for the scale distortions inherent in the map projection used, so as to arrive at an acceptably accurate equidistance line
It maintains that this is specially true for lengthy segments of the boundaryline which often magnify the error introduced by scale distortion. The United Kingdom adds, however, that according to the best modem practice equidistance boundaries are not plotted manually but computed, making no use of charts except for the purpose of identifying the relevant base-points.
The coordinates defining the points mentioned above are on the geodetic system Europe 50 (European datum) and the lines joining those points are geodesics. Nevertheless, the distance between these points is sufficiently small that the Parties are in agreement that, simply for the purposes of a graphic illustration of the boundary line, straight line segments may be drawn from one point to the next irrespective of the map projection used [emphasis added by the United Kingdom].
The United Kingdom then asks the Court to conclude that the dealings between the Parties since 1964 have proceeded upon the general acceptance:
(a) that any determination of equidistance lines by plotting on charts drawn on Mercator projection would have to incorporate appropriate corrections so as to take account of scale distortnons;
(b) that the boundary line should, if possible, be established to a degree of accuracy consistent with modem computational techniques; and
(c) that the course of the segments of boundary line between turning points should be specified in a manner which accords with (a) and (b) above.
In addition, the United Kingdom provides: in Appendix I to its Response, an analysis of the definitions of maritime boundaries in 33 agreements concluded by various States between 1942 and 1977; in Appendix II, the texts of the several continental shelf boundary agreements concluded by the United Kingdom with other States bordering on the North Sea; and in Appendix IV a list of some projections other than Mercator used for certain types of government charts published by a number of States.
a segment of boundary-line drawn as a loxodrome 170 miles long from Point M is not, within an acceptable limit of approximation, what the Court intended by a half-effect boundary as defined in paragraphs 251 and 254 of the Court's Decision
whether during those negotiations there was any understanding between the Parties concerning any need to make corrections on account of the curvature of the earth.
The French Government was further requested to take into account in its reply the paragraphs of the United Kingdom’s written Response relating to this question, together with certain records of the negotiations reproduced as Appendices A(11) and A(23) of the United Kingdom’s Memorial. The French Government, in its reply, says that the first requirement is to define what is meant by "need" to make corrections. There is no dispute between the Parties, it declares, on the point that, the earth being spherical, a proper use of charts requires that account should be taken of the fact that they represent only imperfectly the sphere depicted on them; nor as to the need for any calculation on a chart to be suitably corrected in order to arrive at a value correct on the surface of the globe. The present question, however, it supposes to be whether the Parties reached an understanding on a more concrete application of these elementary propositions, and to refer to an understanding not as to the appropriateness of taking account of the earth’s curvature but as to an obligation to do so.
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.
It also held that:
in appreciating the appropriateness of the equidistance method as a means of effecting a "just" or "equitable" delimitation in the Atlantic region the Court must have regard to both the lateral relations of the two coasts as they abut on the continental shelf of the region and to the great distance seawards that this shelf extends from those coasts (paragraph 242).
It then stressed two further geographical facts: (a) the projection of the Cornish peninsula and the Isles of Scilly further seawards into the Atlantic than the Brittany peninsula and the island of Ushant, and (b) the tendency of this extension south-westwards of the United Kingdom coast to make it obtrude upon the continental shelf situated to seawards of the more westerly facing coast of the French Republic in that region (paragraph 235). The combination of these several geographical facts was found by the Court to constitute "a special circumstance" and an element of distortion material enough to justify the delimitation of a boundary other than the strict equidistance line envisaged in the Convention (paragraphs 244-245).
to find a method of remedying in an appropriate measure the distorting effect on the course of the boundary of the more westerly position of the Scillies and the disproportion which it produces in the areas of continental shelf accruing to the French Republic and the United Kingdom (paragraph 248)
The Court went on to say that it appeared
to be in accord not only with the legal rules governing the continental shelf but also with State practice to seek the solution in a method modifying or varying the equidistance method rather than to have recourse to a wholly different criterion of delimitation.
This appropriate method, it decided, was to give less than full effect to the Scilly Isles in applying the equidistance method. In so holding, the Court observed:
Just as it is not the function of equity in the delimitation of the continental shelf completely to refashion geography, so it is also not the function of equity to create a situation of complete equity where nature and geography have established an inequity.. What equity calls for is appropriate abatement of the disproportionate effects of a considerable projection onto the Atlantic continental shelf of a somewhat attenuated portion of the coast of the United Kingdom. (Paragraph 249.)
The Court then proceeded to its finding that, in the particular circumstances of the present case, giving half-effect to the Scillies would serve to achieve that appropriate abatement of their otherwise inequitable effects on the course of the boundary (paragraph 251).
two paragraphs of the Article is a single, combined one: a combined equidistance-special circumstances rule. It follows, the Court observed, that
the question whether another boundary is justified by special circumstances is an integral part of the rule providing for application of the equidistance principle
And in paragraph 70 it added that the combined character of the equidistance-special circumstances rule means that the obligation to apply the equidistance principle is always one qualified by the condition "unless another boundary is justified by special circumstances". Stressing that the role of the special circumstances condition in Article 6 is to ensure an equitable delimitation, the Court further observed in that paragraph:
In addition, Article 6 neither defines special circumstances not lays down the criterion by which it is to be assessed whether any given circumstances justify a boundary other than the equidistance line Consequently, even under Article 6 the question whether the use of the equidistance principle or some other method is appropriate lor achieving an equitable delimitation is very much a matter of appreciation in the light of the geographical and other circumstances
The Court of Arbitration, in regard to the questions raised by the Application filed by the United Kingdom on 17 October 1977 under Article 10, paragraph 2, of the Arbitration Agreement,
Decides unanimously that:
(1) The objection to the admissibility of the Application put forward by the French Government in its written Observations that the Application was filed outside the time-limit of three months laid down by Article 10, paragraph 2, of the Agreement is not well-founded and must be rejected.
(2) The objection to the admissibility of the Application put forward by the French Government in its written Observations that the Application does not relate to a dispute concerning "the meaning and scope of the decision" which arose within the three-months’ period is also not well-founded and must be rejected.
(3) The objection to the admissibility of the Application put forward by the French Government in its written Observations that the subject matter of the Application does not fall within the competence of the Court under Article 10, paragraph 2, of the Arbitration Agreement does not possess an exclusively preliminary character and must accordingly be examined within the framework of the merits.
(4) In relation to the boundary to the north and west of the Channel Islands,
a. the course of the boundary for this region defined in paragraph 2 of the dispositif of the Decision of.30 June 1977 is not a correct application of the express findings of the Court in paragraph 202 of that Decision regarding the principles to be applied in delimiting the said boundary;
b. paragraph 202 of the Decision of 30 June 1977 expresses the intention of the Court, and the definition of the boundary to the north and west of the Channel Islands shall, therefore, now be rectified so as to follow the line composed of segments of arcs of circles of a 12-mile radius, drawn from the base-points A to M on the baselines of the Bailiwick of Guernsey listed in Appendix A.4 to the Application, which is reproduced on page 19 of this Decision, and joining the 12 points of intersection of these arcs of circles also listed in that Appendix;
c. the coordinates of the base-points A to M and of the 12 points of intersection of arcs of circles listed in the said Appendix are to be taken as referred to European datum (1950) in the same manner as all the coordinates given in the Decision of 30 June 1977.
By four votes to one further decides that:
(5) In relation to the course of the boundary westwards from Point M,
a. it has not been established that the course of the line M-N defined in the dispositif and traced on the Boundary-Line Chart is in such contradiction with the findings of the Court in paragraphs 251, 253 and 254 of the Decision of 30 June 1977 as to be incompatible with the method of delimitation prescribed in those findings;
b. the United Kingdom’s request for the rectification of this segment of the boundary is, therefore, not well-founded and must be rejected.
Done in English and in French at the Graduate Institute of International Studies, Geneva, this 14th day of March 1978, both texts being equally authoritative, in three copies, of which one will be placed in the archives of the Court and the others transmitted to the Government of the French Republic and to the Government of the United Kingdom of Great Britain and Northern Ireland, respectively.
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