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Territorial Controversies before the International Court of Justice
Published online by Cambridge University Press: 21 May 2009
Extract
Just as in the Fisheries Case (see p. 252 sqq.), a preliminary question as to the real scope of the proceedings might easily have arisen. Theoretically four answers to the problem of territorial sovereignty over the two disputed groups of small Channel islands would have been possible: sovereignty belongs to France; it belongs to Great Britain; the islets constitute a condominium; or they are terra nullius. From the outset the Court, however, took it for granted that the only choice under the Special Agreement of December 29th, 1950, lay as between British and French sovereignty, though it had freedom to come to a different conclusion in regard to either of the two groups. The task entrusted to the Court “to determine whether the sovereignty over the islets and rocks (in so far as they are capable of appropriation) of the Minquiers and Ecrehos groups respectively belongs to the United Kingdom or the French Republic” was thus interpreted by it as being designed to determine “which of the Parties has produced the more convincing proof of title to one or the other of these groups or to both of them.” The adjudication of sovereignty, being essentially an absolute title to a particular territory to the exclusion of, and vis-à-vis all other States, was thereby more or less reduced to the weighing of the respective titles, or at least of the relative probative force of the arguments adduced on either side in support thereof. In this respect the situation was exactly the same as in the case of the Palmas or Miangas island decided in 1928 by Professor Max Huber as sole arbitrator in a suit brought before the Permanent Court of Arbitration by the Netherlands and the United States Governments in virtue of a Special Agreement of 1925 under a previous general Arbitration Treaty of 1908.
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page 356 note 1 If not five, the fifth being a non liquet. Since, however, the permissibility of a non liquet forms a special problem which would need a separate enquiry, I will leave it at this simple allurion and a reference to a discussion of this point by Anzilotti, Cours de droit international, I, p. 117Google Scholar; Politis, La Justice internationale, p. 170Google Scholar; Härle, Die allgemeinen Entscheidungsgrundlagen des Ständigen Internationalen Gerichtshofes, pp. 216, 228. — The permissibility of a non liquet has been lately denied in Article 12 of the draft of the International Law Commission on Arbitral Procedure.
page 356 note 2 The Court attached no particular importance to these words (put between brackets in the English version of the Special Agreement). The words “capable of appropriation” were deemed by the Court to mean “capable of physical appropriation” and not to impose upon it the duty of determining in detail the facts relating to the particular units of which the groups consist, the only aim of the suit being to elicit a decision in general on the question, to which Party sovereignty over each group as a whole belonged.
page 357 note 1 Comp. for the latter cases: La Fontaine, Pasicrisie Internationale, pp. 478, 505 and 554.
page 358 note 1 On p. 52 the Court observes: “By the formulation of Article I the Parties have excluded the status of res nullius as well as that of condominium”. What does this paraphrase of the Parties' intention really mean? As I argued in the text, it can hardly be construed as intended to convey that Parties to a case before the Court are in a position to prevent it from reaching the only legal finding which would seem to it to be justified on the strength of the facts and the rules of law applicable thereto. It can therefore, in my opinion, only mean two things: a) in case the Court should be inclined on legal considerations to admit the exiitence of a condominium, the Parties wish to be deemed to have authorised it in advance to adjudicate the islets—by a constitutive judgement—to whichever of them should have adduced the strongest claims, i.e., in other words, the condominus with the weaker rights must be deemed to have ceded these in advance to its partner; b) in the case that the Court should tend to see the islets as still being terra nullius, the Parties must be held to have consented in advance to a solution which-would adjudicate them to whichever of them should have established at least the strongest inchoate title. Constitutive judgements as alluded to under a)—as opposed to declaratory–are certainly permissible if the Parties so desire. And although recognition of one of the Parties' inchoate, or stronger inchoate title, as envisaged under b), is not, at least in regard of third States, exactly the same as recognition of full sovereignty, the former nevertheless would seem equally to exclude possible future claims of such States to the same territory.
page 360 note 1 As to the Ecrehos, the Court rejected the main French argument that they became part of France as a result of the fact that Piers des Préaux, to whom the English King, by a Charter of 1200, had granted the fief of the Channel Islands, in his turn, by a Charter of 1203, granted the Ecrehos in frankalmoin to the Abbey of Val-Richer situated on the French mainland, on the assertion —incorrect in the Court's view—that such a grant had the effect of severing the feudal link between Piers des Préaux and the Abbey, with the result that at the French occupation of Continental Normandy in 1204, the Abbey passed under the overlordship of the King of France with its dependency the Ecrehos. Neither did the Court attach any legal importance to some facts of an ambiguous purport dating from the 17th century (1646: prohibition by the States of Jersey of Jerseymen from fishing without special permission on the Ecrehos; 1692: restriction by the same States of Jerseymen visiting the Ecrehos, on account of the war between England and France), and to some facts in the later part of the 19th century.—On the other hand, the Court attached importance to the fact that on two officiai charts of 1820, addressed to the Foreign Office in the course of diplomatic exchanges, the French Government even included part of the Ecrehos group in the British area, while treating the remaining part as terra nullius, just as the same Government continued to treat them in their protest against a British Treasury Warrant of 1875 constituting Jersey, including the “Ecrehos Rocks”, as a Port of the Channel Islands. It was not, indeed, until 1886 that France officially claimed sovereignty herself over the Ecrehos.
As to the Minquiers, the situation was very similar. The French Government contended that the Minquiers were a dependency of the Chausey Islands, which gave rise to further discussion as to when the latter islands, now avowedly French, came under the sovereignty of France. Whereas the British Government dated this only from 1764 (after the Seven Years' War) the French Government asserted that they had always been French from the time (1022) when they were granted by the Duke of Normandy to the Abbey of Mont- Saint-Michel, which was confirmed in all its possessions by a Papal Bull of 1179. The Court ruled out these contradictory contentions because the relevant documents were too vague to allow of any deduction therefrom with regard to the status of the Minquiers. Nor did the Court attach any weight to such isolated facts as an application made in 1784 to the French Minister of Marine for a concession in respect of the Minquiers, a hydrographical survey made in 1831 by a French national and the assumption by the French Government in 1861, maintained for 75 years, of the sole charge of the lighting and buoying of the islets for the purpose of protecting shipping to and from French ports against the dangerous reefs of the Minquiers.—The balance tilted decisively to the British side on the consideration that on the abovementioned charts of 1820 the French Government themselves had indicated the Minquiers as forming part of the British Channel Islands. France indeed only claimed sovereignty over the Minquiers in 1888.
page 361 note 1 All evidence invoked by the Parties with regard to the Ecrehos from the middle of the 14th until the beginning of the 19th century, very scanty in itself, was ruled out as inconclusive, since the Court could only pronounce a non liquet in respect of the flatly contradictory constructions put upon the same facts by either Party. Among these facts were the appropriation by the English King in the first part of the 14th century of certain wheat-rents formerly due to the Ecrehos Priory, as a result of confiscatory measures taken against “alien priories” (i.e.: priories established on French soil, according to the French interpretation; priories established on English soil but whose mother church was situated on French territory, according to the United Kingdom interpretation) and the issuing of a very ambiguously worded Act by the States of Jersey, after plague had broken out at Rouen in 1754, as a health or safeguarding measure directed against certain sea traffic (from France to Jersey and the British Ecrehos, according to the United Kingdom interpretation; from France as well as from the French Ecrehos to Jersey, according to the interpretation by France). As a consequence there remained a considerable gap in the evidence concerning the Ecrehos of more than four centuries and a half, during which all relations, even of a purely factual nature, between these islets and Jersey would seem to have practically ceased as a consequence of the abandonment of the Priory.—Analogous considerations apply to the evidence regarding the Minquiers.
page 362 note 1 As to the exercise of State functions involving a manifestation of territorial sovereignty over the Ecrehos and the Minquiers by British (Channel Islands) authorities in later times, especially since 1800 when the growing importance of the oyster fishery in the waters surrounding the islets became evident, the Court attached, in particular, probative value to acts which related to the exercise of jurisdiction and local administration and to legislation. The Court recognised as such: the institution of criminal proceedings before the Royal Court of Jersey for criminal offences committed on the Ecrehos, the holding of inquests on corpses found at both groups, the inclusion of houses and huts erected on the islets by Jerseymen in the records of a Jersey Parish for local tax purposes, the entering of fishing boats in a register for the port of Jersey, the passing before competent authorities on Jersey, and the registration there, of contracts of sale relating to real property in the islets, the establishment of customs houses on the islets, the inclusion of the latter in a British Treasury Warrant of 1875, periodical official visits and the carrying out of various works and constructions. Thus quite a series of official functions were listed by the Court which were deemed sufficient to substantiate the British claim to sovereignty (pp. 64–66 and 69).
page 362 note 2 The conclusions of the Court in favour of the United Kingdom with regard to the feudal grant of the Ecrehos made by a vassal of the English King to the French Abbey of Val-Richer in 1203 and of the service of prayers reserved in the Charter by the grantor were founded on chapters XXVIII and XXXII of the Grand Coutumier de Normandie of the 13th century. The same Coutumier provided the Court with legal grounds for finding (chapter CXI) that the advocatio of the Priory of the Ecrehos, involved in certain Quo Warranto proceedings, held in Jersey in 1309 before the King's itinerant Justices, evidenced the Ecrehos' being within the domain of the English King and (chapter XVII) that the Manorial Court of Noirmont (Jersey) had jurisdiction to deal with two cases of wreck off the Minquiers in 1615/1617 only on the ground that the islets were considered to be a part of the fief of Noirmont.
page 363 note 1 See note on p. 360. The Court went fairly deeply into the legal character of a “franche aumône” under Norman customary feudal law. Contrary to the French thesis, the Court held that land held in frankalmoin was a tenure, and that such a grant in frankalmoin to an ecclesiastical institution did not have the effect of severing feudal ties since the grantor retained the dominium patronale; that no reservation in the Charter of any feudal service was required for the creation of a “teneure par osmone” by ancient Norman custom, but that, even if this were the case, the Charter of 1203 contained such a feudal service in the duty imposed up on the Abbey always to celebrate mass for the salvation of the soul of King John and for the soul of the grantor himself and his ancestors (pp. 60–62).
page 363 note 2 See note 2 on p. 362. When the French Abbot of Val-Richer was summoned before the English King's Justices in Jersey in 1309 to answer regarding the advocatio of the Priory of the Ecrehos, their jurisdiction must have been admitted on the ground that the right of a patron to presentation to an ecclesiastical office was treated as a jus in rem, inherent in the soil and inseparable from the territory of the fief to which it was attached, and that the Ecrehos were within the domain of the English King (p. 63).