¹ United Kingdom of Great Britain and Northern Ireland and the French Republic: Delimitation of the Continental Shelf, Decision of the Court of Arbitration of June 30, 1977, hereinafter referred to as Decision. The parties have not released the pleadings for publication. The Decision is to be published as a White Paper.

² [1969] I.C.J. Rep. 1.

³ Owing to illness M. Reuter resigned and was replaced by M. André Gros, on April 6, 1976.

⁴ The agreement is reproduced in Decision, 4-8.

⁵ Arbitration Agreement of July 10, 1975, Article 2(1).

⁶ Article 2(2) provides that 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.

⁷ Article 9 (1). The United Kingdom, claiming that technical errors occurred in the actual plotting of the boundary delimited by the Court, asked the Court to review the matter in accordance with Article 10 of the Arbitration Agreement: see the Decision of the Court of Arbitration of March 14, 1978 (Interpretation of the Decision of June 30, 1977).

⁸ This might be compared with the position facing the International Court of Justice in the North Sea Continental Shelf Cases, where the Court was asked what principles and rules were applicable to the delimitation of the continental shelf between the parties and was not asked to effect the delimitation itself; supra note 2, at 5.

⁹ 499 U.N.T.S. su.

¹⁰ Article 6 provides:

1. 1

   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. 2

   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.

3 …

¹¹ Multilateral Treaties in Respect of which the Secretary General Performs Depository Functions ST/LEG/SER. D.10, at 518). Article 12 of the Convention on the Continental Shelf permits reservations to articles of the Convention other than Articles 1-3.

¹² Supra note 11, at 520.

¹³ The Court concluded (para. 71) that the boundaries in issue were not calculated from baselines established after April 12, 1968, and (para. 73) that the express agreement of France to accept arbitration of the boundary out to the 1,000-metre mark rendered the second part of the reservation inapplicable. This latter point is discussed further infra.

¹⁴ A/CONF. 39/37, May 23, 1969.

¹⁵ In a separate opinion attached to the court’s decision Mr. Herbert Briggs appeared to adopt the argument of the United Kingdom, concluding, without elaboration, that the third part of the French reservation was not a reservation at all as “it neither excludes nor modifies the legal effect of any provision of Article 6,” Decision, 232.

¹⁶ Decision, para. 64.

¹⁷ In Mr. Briggs’s opinion the United Kingdom view was reinforced by statements made in the French Counter Memorial and in oral argument by counsel for France. (Decision, 226.)

¹⁸ Decision, 231.

¹⁹ To say that France wished to prevent only unilateral assertions of a boundary based upon the principle of equidistance would be to render the French reservation nonsensical, and would be contrary to the plain meaning of the words used, which state that equidistance will be applicable if there is an express agreement. This surely can only be a reservation to the rule of law requiring settlement by application of the principle of equidistance.

²⁰ Decision, para. 73.

²¹ It might be noted, although it was not referred to by the Court, that Article 12 of the Convention on the Continental Shelf itself provides for withdrawal of reservations by notification to the Secretary General. Obviously this does not preclude other methods of resiling from a reservation, yet one might assume that the evidence of withdrawal ought to be clear and convincing.

²² Though Article 12 of the Continental Shelf Convention authorized certain reservations, it made no provision as to their effect.

²³ The arguments of the parties are set out in paras. 40-44 of the Decision.

²⁴ Decision, para. 61.

²⁵ Article 21(3) provides: “When a State objecting to a reservation has not opposed the entry into force of the treaty 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.”

²⁶ Decision, para. 74.

²⁷ Ibid., para. 68.

²⁸ Idem.

²⁹ Ibid., para. 70.

³⁰ Supra note 2.

³¹ The Court also said: “In other words, even under Article 6 it is the geographical and other circumstances of any given case which indicate and justify the use of the equidistance method as a means of achieving an equitable solution rather than the inherent quality of the method as a legal norm of delimitation” (para. 70).

³² Idem. The Court later said: “... the equidistance-special circumstances rule and the rules of customary law have the same object — the delimitation of the boundary in accordance with equitable principles” (para. 75).

³³ Decision, para. 75.

³⁴ Supra note 2.

³⁵ Decision, para. 77.

³⁶ Ibid. para. 87. However, the Court recognized, as had the International Court in the North Sea cases, that in the case of adjacent states the effect of irregular coastal features is magnified in any equidistance line delimitation.

³⁷ At para. 148 the Court said: “… the different ways in which the requirements of ‘equitable principles’ or the effects of ‘special circumstances’ are put reflect differences of approach and terminology rather than of substance.”

³⁸ Decision, para. 191. See further infra 190.

³⁹ Speaking of the principle of proportionality the Court said (para, 101): “In short, it is disproportion rather than any general principle of proportionality which is the relevant criterion or factor.”

⁴⁰ Decision, para. 12.

⁴¹ Ibid., para. 104.

⁴² Ibid., para. 9. The continental shelf in the Channel lies otherwise at less than 100 metres, and that depth is only reached beyond the Channel in the Atlantic region.

⁴³ Ibid., para. 12.

⁴⁴ Idem.

⁴⁵ Idem.

⁴⁶ Ibid., para. 107.

⁴⁷ In the view of the Court as well: “... to attach critical significance to a physical feature like the Hurd Deep-Hurd Deep Fault Zone in delimiting the continental shelf boundary in the present case would run counter to the whole tendency of State practice on the continental shelf in recent years” (para. 107).

⁴⁸ The Court did not fail to note that in her boundary delimitation with Norway the United Kingdom had ignored the Norwegian Trough.

⁴⁹ The Court was not, however, prepared to accept the contention of the United Kingdom that the Channel Islands were “semi-independent States entitled in their own right to their own continental shelf vis-à-vis the French Republic” (para 186).

⁵⁰ Of such considerations the Court said: “… they may support and strengthen, but they cannot negative, any conclusions that are already indicated by the geographical, political and legal circumstances of the region …” (para. 188).

⁵¹ France had also argued (para. 165) that the principle of the equality of states made it inequitable to accord to the United Kingdom “the entire central part of the Channel.”

⁵² Decision, para. 181.

⁵³ Ibid., para. 182.

⁵⁴ Ibid., para. 199.

⁵⁵ Ibid., para. 198.

⁵⁶ The United Kingdom had emphasized that it had a right under international law to extend its 3-mile territorial sea to 12 miles and that “any delimitation of the continental shelf around the Channel Islands should at least allow for that possibility” (para. 179). It should be remembered that the boundary established by the Court was to apply only on the seaward side of the islands, the Court having already concluded that it was without competence to delimit the boundary on the landward side, supra 175.

⁵⁷ Wolfgang Friedmann has highlighted the arbitrariness in the approach of the International Court in the North Sea cases to equity, which involves giving prominence to “one particular and limited aspect out of the thousands of inequalities of natural bounty.” The North Sea Continental Shelf Cases: A Critique 64 Am. J. Int’l L. 229 at 239 (1970). In that case the particular feature was the concavity of the German coastline.

⁵⁸ Decision, para. 200. The Court also noted that the case of St. Pierre and Miquelon was not one of islands between opposite states with coastlines of approximate equality.

⁵⁹ State practice would suggest that such a rule has emerged.

⁶⁰ The Court may have been influenced by the terms of a Relève des Conclusions concerning a possible settlement between Canada and France over the islands of St. Pierre and Miquelon. (This is mistakenly referred to in the judgment of the Court (para. 200) as an agreement between Canada and France.) Under the terms of this proposed settlement France was to accept only a 12-mile belt of territorial sea around the islands but was to receive compensation in the form of other special privileges. Moreover, the Court had characterized the position of the United Kingdom as one that argued for a shelf that would at least allow for the possibility of an extension of the territorial sea to 12 miles. The result, therefore, may have been acceptable to the United Kingdom, if not in fact contemplated by it.

⁶¹ Decision, para. 94.

⁶² Ibid., para. 242.

⁶³ Ibid., para. 240.

⁶⁴ Ibid., para. 241.

⁶⁵ In the case of the United Kingdom the Scilly Isles, and in the case of France, the island of Ushant.

⁶⁶ Decision, para. 232.

⁶⁷ Ibid., para. 244.

⁶⁸ Idem.

⁶⁹ Idem.

⁷⁰ Ibid., para. 246.

⁷¹ Ibid., para. 249.

⁷² The half-effect method was adopted by Iran and Saudi Arabia to deal with the island of Khark lying off the coast of Iran. See International Boundary Study, Series A, Limits in the Seas, No. 24, Continental Shelf Boundary Iran-Saudi Arabia (The Geographer, Office of the Geographer, Department of State).

⁷³ Decision, para. 251.

⁷⁴ It can be seen that although the Court characterized the situation as one of opposite states, and chose a method of giving “half-effect” that had been utilized in a true opposite state situation, in substance it treated the issue as one of states in a lateral relationship and provided an equidistance solution akin to that applicable to adjacent states.

⁷⁵ Though the Court must be taken to have intended that the inequity arose because of the existence of the islands and not because of the extension of the United Kingdom mainland further westward than the French mainland, the judgment is not free from ambiguity. At paragraph 249, the Court states:

“What equity calls for is an 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.” Moreover, the Court considered the islands to be integral parts of the land mass of their respective states, supra, text at note 66.

⁷⁶ One might also question why the Court concluded that the inequity occasioned by the Scillies could be remedied by giving the Scillies “half effect.” Why not “one-third effect,” or “three-quarters effect.” Without endeavouring to be too specific, the Court notes (para. 251) that the Scillies extend the United Kingdom coastline slightly more than twice as far as Ushant extends the French coastline.

⁷⁷ Part of the difficulty arose no doubt from employing a method previously used in a truly opposite situation in the case of “laterally related” states.

⁷⁸ This, of course, presupposes that granting full effect to the Scillies creates an inequity. How one would determine the appropriate distance east of the Scillies for selecting the base point is indeed conjectural. Presumably, however, “half effect” would involve selecting a base point half-way between the Scillies and the Cornish mainland.

⁷⁹ For criticism of the International Court on this account see Brown, E. D., The Legal Regime of Hydrospace, 70-71 (1971).Google Scholar

⁸⁰ Brown, op. cit. supra note 79, at 70; Friedmann, op. cit. supra note 57, at 236-40.

⁸¹ Supra note 57, at 238.

⁸² A similar factor seemed to influence the Court in the North Sea Cases, when it noted that the three states involved had North Sea coastlines “in fact com-parable in length and which, therefore, have been given broadly equal treatment by nature except that the configuration of one of the coastlines would, if the equidistance method is used, deny to one of these States treatment equal or comparable to that given the other two,” supra note 2, at 50.