Lawyers, other representatives, expert(s), tribunal’s secretary
Dissenting opinion of Herbert W. Briggs
With regret, I am compelled to dissent from the finding of the Court that the delimitation of the line M-N in the Atlantic region, indicated in the dispositif and the Chart of the Court’s Decision of 30 June 1977 as a loxodrome on a Mercator projection without correction for scale errors, is expressive of the decision of the Court, on an approximation not incompatible therewith.
In the Atlantic region, the Court decided that the applicable law was Article 6 of the 1958 Geneva Convention on the Continental Shelf, which, absent agreement, provides for an equidistance boundary unless another boundary is justified by special circumstances; that, in the present case, the geographical position of the Scilly Isles constituted such a special circumstance, calling for a variant of the equidistance method so as to give half-effect to the Scilly Isles; that the actual boundary-line should be a line calculated by the equidistance method bisecting two other equidistance lines, one with, and the other without, the use of the Scilly Isles as a base-point. (Decision of 30 June 1977, paragraphs 248-254.)
The Court’s Expert was instructed to calculate the boundary-line on the basis of the above-mentioned determinations of the Court; however, the Court did not appreciate that the boundary-line he depicted on a Mercator chart was a loxodrome which, over its course of about 170 nautical miles; disregarded the sphericity of the earth, instead of a geodesic conforming to the earth’s curvature—a divergence not readily detectable to international lawyers from examination of the chart on which he drew the line.
The Court consequently set forth in its Decision passages which are clearly contradictory: the decision that the boundary-line should be an equidistance line and the inadvertent misapplication of that decision in the dispositif and on the Chart by a loxodrome no point on which, after Point M, conforms to an equidistance line.
Evidence supporting these assertions is spread on the record throughout the present Decision and requires no development here. The whole thrust of the Court’s Decision in these proceedings under Article 10, paragraph 2, of the Arbitration Agreement for the interpretation of its 1977 Decision (and I subscribe to the present Decision down through paragraph 103) leads me to the conclusion that the technical misapplication of what the Court decided should be corrected as a part of the process of interpretation by the Court of the obscurities resulting from the contradictory passages of its Decision. In view of certain ambiguities which I see in paragraph 36 of the Court’s Decision, I find it necessary to state that, whatever inherent power a court may possess under general international law and accepted international judicial practice to rectify material errors, the power of the Court in this Arbitration to interpret the meaning and scope of contradictory passages in its Decision of.30 June 1977, and, necessarily, to effect the required rectifications, can be found in Article 10, paragraph 2, of the Arbitration Agreement concluded by the Parties.
In the particular circumstances of what occurred in this Arbitration, I see no threat to the established principle of international law demanding respect for the authority of res judicata, when a Court, duly seised, interprets contradictions in its Decision in order to clarify the meaning and scope of that Decision.
It is my view that the United Kingdom Submissions on this point, as well as on the boundary-line to the north and west of the Channel Islands, are well-founded. In the Atlantic region the line M-N should be replaced with a geodesic commencing at Point M and going out to the 1,000-metre isobath, in order to conform to the Decision made by the Court in 1977.