17 November 1953

 

General List No. 17

 
     

international Court of Justice

     
 

Minquiers and Ecrehos

 
     

France

 

v. 

United Kingdom

     
     
 

Judgment

 
     
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BEFORE: Vice-President: Guerrero, Acting President;
President: Sir Arnold McNair;
Judges: Alvarez, Basdevant, Hackworth, Winiarski, Klaestad, Badawi, Read, Hsu Mo, Levi Carneiro, Armand-Ugon
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1953.11.17_minquiers_and_ecrehos.htm
   
Citation: Minquiers and Ecrehos, France v. U.K., Judgment, 1953 I.C.J. 47 (Nov. 17)
   
Represented By:

France: M. André Gros, Professor of the Faculties of Law, Legal Adviser to the Ministry for Foreign Affairs, as Agent; assisted by M. Jean Bumay, Conseiller d'État, Rear-Admiral Durand de Saint-Front (Retd.); M. Prosper Weil, Professor agrégé of the Law Faculty of Grenoble; M. Pierre Duparc, Archivist-Palæographer, Assistant Keeper of Archives at the Ministry for Foreign Affairs, as Expert Advisers;

United Kingdom: Mr. R. S. B. Best, Third Legal Adviser to the Foreign Office, as Agent; assisted by Sir Lionel Heald, Q.C., M.P., Attorney-General;
Mr. C. S. Harrison, O.B.E., Attorney-General for the island of Jersey; Mr. G. G. Fitzmaurice, C.M.G., Legal Adviser of the Foreign Office; Professor E. C. S. Wade, Downing Professor of the Laws of England in the University of Cambridge; Mr. D. H. N. Johnson, Assistant Legal Adviser, Foreign Office, as Counsel; Mr. J. D. Lambert, Research Department, Foreign Office, as Expert Adviser.

 
     
 
 
     
 

[p47]

The Court,

composed as above,

delivers the following Judgment:

By a letter dated December 5th, 1951, the British Ambassador to the Netherlands transmitted to the Registry on behalf of his Government a certified copy of a Special Agreement concluded between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic, signed on December 29th, 1950, the instruments of ratification in respect of which were exchanged at Paris on September 24th, 1951.

Pursuant to Article 33, paragraph 2, of the Rules of Court, the French Government was informed of the notification to the Court of the Special Agreement, copies of which were, in accordance with Article 34, paragraph 2, of the Rules of Court, transmitted to the States entitled to appear before the Court and to the Secretary-General of the United Nations.

The Preamble and Articles 1 and II of the Special Agreement were in the following terms :

"The Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic ;

Considering that differences have arisen between them as a result of claims by each of them to sovereignty over the islets and rocks in the Minquiers and Ecrehos groups ;

Desiring that these differences should be settled by a decision of the International Court of Justice determining their respective rights as regards sovereignty over those islets and rocks ;

Desiring to define the issues to be submitted to the International Court of Justice ;

Have agreed as follows :

Article I

The Court is requested 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.

Article II
Without prejudice to any question as to the burden of proof, the Contracting Parties agree, having regard to Article 37 of the Rules of Court, that the written proceedings should consist of [p50]

(1) a United Kingdom memorial to be submitted within three months of the notification of the present Agreement to the Court in pursuance of Article III below ;

(2) a French counter-memorial to be submitted within three months of delivery of the United Kingdom memorial;

(3) a United Kingdom reply followed by a French rejoinder to be delivered within such times as the Court may order."

The Pleadings were filed within the time-limits fixed and subsequently twice extended at the request of the Parties by Orders of the Acting President. On March 28th, Igj3, the case became ready for hearing.

Public hearings were held between September 17th and October 8th, 1953. In the course of these hearings the Court, which was presided over by the Vice-President, in accordance with Article 13, paragraph 1, of the Rules, heard the Parties who by agreement addressed the Court in the order in which they had submitted their Pleadings. Sir Lionel Heald, Mr. Fitzmaurice, Professor Wade and Mr. Harrison spoke on behalf of the United Kingdom Government, and Professor Gros on behalf of the French Government.

At the end of the arguments before the Court, that is on October 6th and October 8th respectively, the following final Submissions were presented by the Parties :

On behalf of the United Kingdom Government :

"The Court is asked to declare :

That the United Kingdom is entitled under international law to full and undivided sovereignty over all the Islets and Rocks of the Minquiers and the Ecréhous groups :

(1) by reason of having established the existence of an ancient title supported throughout by effective possession evidenced by acts which manifest a continuous display of sovereignty over the groups ;

alternatively,

(2) by reason of having established title by long continued effective possession alone, such possession being evidenced by similar acts."

On behalf of the French Government :

"May it please the Court,

To adjudge and declare :

(1) that France possesses an original title to the islets and rocks of the Minquiers group on the one hand and the Ecrehos group on the other ;[p51 ]

(2) that France has at all times confirmed this original title by an effective exercise of her sovereignty to the extent that the character of these islets and rocks lent itself to such an exercise ;

(3) that the United Kingdom has been unable to establish that it had effective possession of these islets and rocks at the time of the conclusion of the Treaty of Paris of 1259, which made effective possession the necessary condition for English sovereignty over the various Channel Islands, or at any subsequent period ;

(4) that by the Convention of August 2nd, 1839, the United Kingdom and France brought into being, between a line three miles from low water mark on the island of Jersey and an ad hoc line defined in Article I of the Convention, a zone in which fishery of every type should be common to the subjects of the two countries ;

(5) that the islets and rocks of the Minquiers and Ecrehos groups, being within the common fishery zone as so defined, were, in 1839, subjected by the Parties to a régime of common user for fishery purposes, without the territorial sovereignty over these islets and rocks being otherwise affected by the said Convention ;

(6) that the acts performed by each Party on the islets and rocks subsequently to August 2nd, 1839, are consequently not capable of being set up against the other Party as manifestations of territorial sovereignty, with the result that such sovereignty belongs to-day to that one of the Parties to whom it belonged before August 2nd, 1839 ;

(7) that this 'critical date' would still apply even if the construction put upon the Convention of August 2nd, 1839, by the French Government should be incorrect, since the Government of the United Kingdom was not unaware of this interpretation or of the possibility it afforded to the Government of the United Kingdom and to British subjects to benefit from the institution of a common user of the islets and rocks of the two groups for fishery purposes, as this resulted, in the mind of the French Government, from Article 3 of the Convention of August 2nd, 1839 ;

(8) that, even if the 'critical date' should be fixed at a date subsequent to August 2nd, 1839, the acts of possession invoked by the Government of the United Kingdom do not satisfy the condi-tions required by international law for the acquisition or preservation of territorial sovereignty ;

(9) that, furthermore, France in the nineteenth and twentieth centuries has performed the acts of sovereignty required, having regard to the special character of these islets, and has assumed the essential responsibilities inherent in her sovereignty ;

(10) that, for these reasons, sovereignty over the islets and rocks of the Minquiers group and the Ecrehos group respectively belongs, in so far as these islets and rocks are capable of appropriation, to the French Republic." [p52]

***

The Submissions reproduced above and presented by the United Kingdom Government consist of three paragraphs, the last two being reasons underlying the first, which must be regarded as the final Submission of that Government. The Submissions of the French Government consist of ten paragraphs, the first nine being reasons leading up to the last, which must be regarded as the final Submission of that Government.

The Submissions of the Parties should therefore be considered to be as follows :

of the United Kingdom Government,

"that the United Kingdom is entitled under international law to full and undivided sovereignty over all the Islets and Rocks of the Minquiers and the Ecréhous groups;"

of the French Government,

"that, for these reasons, sovereignty over the islets and rocks of the Minquiers group and the Ecrehos group respectively belongs, in so far as these islets and rocks are capable of appropriation, to the French Republic".

By Article 1 of the Special Agreement, signed on December 29th, 1950, the Court is requested

"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".

Having thus been requested to decide whether these groups belong either to France or to the United Kingdom, the Court has 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. By the formulation of Article 1 the Parties have excluded the status of res nullius as well as that of condominium.

In Article II the Parties have stated their agreement as to the presentation of the Pleadings "without prejudice to any question as to the burden of proof", a question which it is for the Court to decide. Having regard to the position of the Parties, both claiming sovereignty over the same territory, and in view of the formulation of the task of the Court in Article 1, and the terms of Article II, the Court is of opinion that each Party has to prove its alleged title and the facts upon which it relies.[p53]

By the Special Agreement the Court is requested to determine the sovereignty over the islets and rocks in so far as they are capable of appropriation. These words must be considered as relating to islets and rocks which are physically capable of appropriation. The Court is requested to decide in general to which Party sovereignty over each group as a whole belongs, without determining in detail the facts relating to the particular units of which the groups consist.

These groups lie between the British Channel Island of Jersey and the coast of France and consist each of two or three habitable islets, many smaller islets and a great number of rocks. The Ecrehos group lies north-east of Jersey, 3.9 sea-miles from that island, measured from the rock nearest thereto and permanently above water, and 6.6 sea-miles from the coast of France, measured in the same way. The Minquiers group lies south of Jersey, 9.8 sea-miles therefrom and 16.2 sea-miles from the French mainland,measured in the same way. This group lies 8 sea-miles from the Chausey Islands which belong to France.

***

Both Parties contend that they have respectively an ancient or original title to the Ecrehos and the Minquiers, and that their title has always been maintained and was never lost. The present case does not therefore present the characteristics of a dispute concerning the acquisition of sovereignty over terra nullius.

The United Kingdom Government derives the ancient title invoked by it from the conquest of England in 1066 by William, Duke of Normandy. By this conquest England became united with the Duchy of Normandy, including the Channel Islands, and this union lasted until 1204 when King Philip Augustus of France drove the Anglo-Norman forces out of Continental Normandy. But his attempts to occupy also the Islands were not successful, except for brief periods when some of them were taken by French forces. On this ground the United Kingdom Government submits the view that all of the Channel Islands, including the Ecrehos and the Minquiers, remained, as before, united with England and that this situation of fact was placed on a legal basis by subsequent Treaties concluded between the English and French Kings.

The French Government does not dispute that the Islands of Jersey, Guernsey, Aldemey, Sark, Herm and Jethou continued to be held by the King of England ; but it denies that the Ecrehoç and Minquiers groups were held by him after the dismemberment of the Duchy of Normandy in 1204. After that event, these two groups were, it is asserted, held by the King of France together [p54] with some other islands close to the continent, and reference is made to the same medieval Treaties as those which are invoked by the United Kingdom Government.

In such circumstances it must be examined whether these Treaties, invoked by both Parties, contain anything which might throw light upon the status of the Ecrehos and the Minquiers.

The Treaty of Lambeth of 1217, to which the Parties have referred, cannot be said to contain anything which might elucidate this question. The Treaty of Paris of 1259, which appears to be the principal Treaty on which the Parties rely, enumerates in Article 4 all the lands which the King of England should hold in fee of the King of France in Saintonge beyond the river Charente as well as Bordeaux, Bayonne and Gascony and "all the land which he holds on this side of the sea of England in fee and in demesne and the islands, if any there be, which the king of england holds which are of the realm of france, and he shall hold of us as peer of france and duke of Aquitaine". These terms seem to refer to islands which the King of England held as Duke of Aquitaine, and not to the Channel Islands. But even assuming that these Islands were also included, the article refers in any case only to islands, if any there be, which are held by the English King. It does not Say which islands were at that time held by him. Article 6 enumerates all the lands which the King of England relinquished "in any part of the Realm of france or in the islands, if any are held by us or by our brother or by others in our or their behalf". This text refers only to islands, if any, which are held by the King of France, without indicating which islands were so held. From the text itself of this Treaty nothing can therefore be deduced with regard to the status of the Ecrehos and the Minquiers. The Treaty of Calais of 1360 contains in Article 6 a clause providing that the King of England shall have and hold all islands which he "now holds". This provision must be considered as including those of the Channel Islands which the King held at that time. But as it is not said which of these Islands were held by the English King, it is not possible to draw from this text alone any conclusion as to the status of the islets in dispute. The Treaty of Troyes of 1420 contains many far-reaching provisions, but it cannot be said to provide anything which might throw- light upon the present dispute. Common to all these Treaties is the fact that they did not specify which islands were held by the Kings of England and France respectively. The Court would therefore not be justified in drawing from them any conclusion as to whether the Ecrehos and the Minquiers at the time when these Treaties were signed were held either by the English or by the French King. This question depends on facts which cannot be deduced from the text of these Treaties.

There are, however, other documents which provide some indication as to the possession of the islets in dispute. [p55]

By a Charter of January 14th, 1200, King John of England granted to one of his Barons, Piers des Préaux, the Islands of Jersey, Guernsey and Alderney "to have and to hold of us by service of three knights' fees". Three years later, by a Charter of 1203, Piers des Préaux granted to the Abbey of Val-Richer "the island of Escrehou in entirety", stating that the King of England "gave me the islands" (insulas mihi dedit). This shows that he treated the Ecrehos as an integral part of the fief of the Islands which he had received from the King. In an Order from the English King of July 5th, 1258, the Sub-Warden of the Islands was ordered "to guard the islands of Gernere and Geresey, and the king's other islands in his keeping". In Letters Patent of the English King, dated June 28th, 1360, it was provided that the "keeper of the islands of Gerneseye, Jereseye, Serk and Aurneye, and the other islands adjacent thereto" may have the keeping for a further period. The Truce of London of 1471 provided in Article 3 that the King of France would not make any hostile act against the Kingdom of England and other lands specially mentioned, including the Islands "of guernsey, Jersey and alderney [and] other territories, islands, lands and lordships, which are, or will be, held and possessed by the said lord King of england or by his subjects". A Papal Bull of January 20th, 1500, transferring the Channel Islands from the Diocese of Coutances to the Diocese of Winchester, mentioned "the Islands of Jersey and Guernsey, Chausey, Alderney, Herm and Sark", while two commercial Treaties of 1606 and 1655 mentioned only Jersey and Guernsey.

Basing itself on facts such as these, the United Kingdom Government submits the view that the Channel Islands in the Middle Ages were considered as an entity, physically distinct from Conti-nental Normandy, and that any failure to mention by name any particular island in any relevant document, while enumerating other Channel islands, does not imply that any such island lay outside this entity. Having regard to the above-mentioned documents, and particularly to the Charters of 1200 and 1203, and in view of the undisputed fact that the whole of Normandy, including all of the Channel Islands, was held by the English King in his capacity as Duke of Normandy from 1066 until 1204, there appears to be a strong presumption in favour of this British view. If the Ecrehos and Minquiers were never specifically mentioned in such enumerations, this was probably due to their slight importance. Even some of the more important Islands, such as Sark and Herm, were only occasionally mentioned by name in documents of that period, though they were held by the English King just as were the three largest Islands. The Court does not, however, feel that it can draw from these considerations alone any definitive conclusion as to the sovereignty over the Ecrehos and the Minquiers, since this question must ultimately depend on the evidence which relates directly to the possession of these groups. [p56]

The French Government derives the original title invoked by it from the fact that the Dukes of Normandy were the vassals of the Kings of France, and that the Kings of England after 1066, in their capacity as Dukes of Normandy, held the Duchy in fee of the French Kings. It is contended that the Channel Islands became added to the fiefs of the Duke of Normandy when William Longsword in 933 received the Islands in fee of the King of France, and that he, as well as his successors, did homage to the French Kings for the whole of Normandy, including the Islands. The French Government further relies on a Judgment of April 28th, 1202, of the Court of France and contends that King John of England was thereby condemned to forfeit all the lands which he held in fee of the King of France, including the whole of Normandy. On the basis of this historical origin and of the Judgment of 1202, there is, in the opinion of that Government, a presumption in favour of the present French claim to sovereignty over the Ecrehos and the Minquiers.

The United Kingdom Government contends that the feudal title of the French Kings in respect of Normandy was only nominal. It denies that the Channel Islands were received by the Duke of Normandy in fee of the King of France, and that William Longsword or any of his successors ever did homage for the Islands. It contests the validity, and even the existence, of the Judgment of 1202, and asserts that even if such a Judgment was validly pronounced against the English King in his capacity as Duke of Normandy, it could not have the alleged consequences.

These opposite contentions are based on more or less uncertain and controversial views as to w-hat was the true situation in this remote feudal epoch. For the purpose of deciding the present case it is, in the opinion of the Court, not necessary to solve these historical controversies. The Court considers it sufficient to state as its view that even if the Kings of France did have an original feudal title also in respect of the Channel Islands, such a title must have lapsed as a consequence of the events of the year 1204 and following years. Such an alleged original feudal title of the Kings of France in respect of the Channel Islands could to-day produce no legal effect, unless it had been replaced by another title valid according to the law of the time of replacement. It is for the French Government to establish that it was so replaced. The Court will later deal with the evidence which that Government has produced with a view to establishing that its alleged original title was replaced by effective possession of the islets in dispute.

With regard to the Judgment of 1202 invoked by France it is the opinion of the Court that, whatever view is held as to its existence, validity, scope and consequences, it was not executed in respect of the Channel Islands, the French Kings having failed to obtain possession of these Islands except for brief periods. Even if this feudal Judgment, assuming that it was in fact pronounced, [p57] was intended to produce legal effects at that time, it remained in any case inoperative with regard to the Channel Islands. To revive its legal force to-day by attributing legal effects to it after an interval of more than seven centuries seems to lead far beyond any reasonable application of legal considerations.

The view is expressed by the French Government that the dismemberment of the Duchy of Normandy, which in fact occurred in 1204 when Continental Normandy was occupied by the King of France, has legal consequences in the present dispute. It is said that if the United Kingdom Government is unable to establish its claim to the Ecrehos and the Minquiers, the title to these islets must be considered as having remained with France since 1204. But since that time there has been a further development in the territorial position. Many wars and peace settlements between the two States succeeded each other during the following centuries. The Channel Islands, or some of them, were occupied temporarily by French forces during some years immediately following the events in 1204, as well as for brief periods in the next two centuries, and Continental Normandy was reconquered by the English King and held by him for a long period in the fifteenth century. In such circumstances it is difficult to see why the dismemberment of the Duchy of Normandy in 1204 should have the legal consequences attributed to it by the French Government. What is of decisive importance, in the opinion of the Court, is not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession of the Ecrehos and Minquiers groups.

***

Before considering this evidence, the Court will examine some questions which concern both groups.

On August 2nd, 1839, France and the United Kingdom concluded a Convention concerning fishery, and particularly the oyster fishery between the Island of Jersey and the neighbouring coast of France. It is common ground between the Parties that this Convention did not settle the question of sovereignty over the Ecrehos and the Minquiers. But the French Government has submitted contentions which to a certain extent affect that question. These contentions, which were modified during the proceedings, were at the public hearing on October 8th, 1953, formulated as follows, as part of the Submissions presented on behalf of that Government :

"(4) that by the Convention of August 2nd, 1839, the United Kingdom and France brought into being, between a line three miles from low water mark on the island of Jersey and an ad hoc line defined in Article I of the Convention, a zone in which fishery of every type should be common to the subjects of the two countries ; [p58]

(5) that the islets and rocks of the Minquiers and Ecrehos groups, being within the common fishery zone as so defined, were, in 1839, subjected by the Parties to a régime of common user for fishery purposes, without the territorial sovereignty over these islets and rocks being otherwise affected by the said Convention ;

(6) that the acts performed by each Party on the islets and rocks subsequently to August 2nd, 1839, are consequently not capable of being set up against the other Party as manifestations of territorial sovereignty, with the result that such sovereignty belongs to-day to that one of the Parties to whom it belonged before August 2nd, 1839".

These contentions were based on the first three Articles of the Convention, and particularly on Article 3. By Article I an ad hoc line is acknowledged by the two Governments "as defining the limits between which and the French shore the oyster fishery shall be reserved exclusively to french subjects". Article 2 provides that "oyster fishery within three miles of the Island of Jersey, calculated from lower water mark, shall be reserved exclusively to british subjects". Article 3 provides as follows :

"The oyster fishery outside of the limits within which that fishery is exclusively reserved to french and british subjects respectively, as stipulated in the preceding articles, shall be common to the subjects of both countries."

The French Government asserts and the United Kingdom Government denies that the Ecrehos and Minquiers groups are included within this agreed common fishery zone, the United Kingdom Government basing itself on a provision in Article 9 concerning exclusive right of fishery for British subjects within three miles from low water mark "along the whole extent of the coasts of the British Islands".

The Court does not consider it necessary, for the purpose of deciding the present case, to determine whether the waters of the Ecrehos and Minquiers groups are inside or outside the common fishery zone established by Article 3. Even if it be held that these groups lie within this common fishery zone, the Court cannot admit that such an agreed common fishery zone in these waters would involve a régime of common user of the land territory of the islets and rocks, since the Articles relied on refer to fishery only and not to any kind of user of land territory. Nor can the Court admit that such an agreed common fishery zone should necessarily have the effect of precluding the Parties from relying on subsequent acts involving a manifestation of sovereignty in respect of the islets. The Parties could have established such a common fishery zone, including the waters of the groups, even if these groups had in 1839 been under the undisputed exclusive sovereignty of one of them ; and they could equally have acquired or claimed exclusive sovereignty after 1839 and relied upon subsequent acts involving [p59] the manifestation of sovereignty, notwithstanding such an agreed common fishery zone, provided of course that the common fishery in this zone would not in any way be impaired thereby. The above-mentioned contention as to exclusion of acts subsequent to 1839 is, moreover, not compatible with the attitude which the French Government has taken since that time. It not only claimed sovereignty over the Ecrehos in 1886 and over the Minquiers in 1888, and later, but it has, in order to establish such a sovereignty, itself relied on measures taken subsequent to 1839, as referred to in its communications to the Foreign Office, dated August 27th, 1888, and July 15th, 1903, as well as in the present proceedings. Nor can the contention that the Court should determine to which Party sovereignty belonged in 1839, be considered as consistent with the Special Agreement of 1950, by which the Court is requested to determine to which Party sovereignty belongs at present. The Court is therefore unable to accept the above-mentioned contentions as to the effects of the Convention of 1839 on the question of the sovereignty over the Ecrehos and Minquiers groups.

The Parties have further discussed the question of the selection of a "critical date" for allowing evidence in the present case. The United Kingdom Government submits that, though the Parties have for a long time disagreed as to the sovereignty over the two groups, the dispute did not become "crystallized" before the conclusion of the Special Agreement of December 29th, 1950, and that therefore this date should be considered as the critical date, with the result that al acts before that date must be taken into consideration by the Court. The French Government, on the other hand, contends that the date of the Convention of 1839 should be selected as the critical date, and that all subsequent acts must be excluded from consideration.

At the date of the Convention of 1839, no dispute as to the sovereignty over the Ecrehos and Minquiers groups had yet arisen. The Parties had for a considerable time been in disagreement with regard to the exclusive right to fish oysters, but they did not link that question to the question of sovereignty over the Ecrehos and the Minquiers. In such circumstances there is no reason why the conclusion of that Convention should have any effect on the question of allowing or ruling out evidence relating to sovereignty. A dispute as to sovereignty over the groups did not arise before the years 1886 and 1888, when France for the first time claimed sovereignty over the Ecrehos and the Minquiers respectively. But in view of the special circumstances of the present case, subsequent acts should also be considered by the Court, unless the measure in question was taken with a view to improving the legal position of the Party concerned. In many respects activity in regard to these groups had developed gradually long before the dispute as [p60] to sovereignty arose, and it has since continued without interruption and in a similar manner. In such circumstances there would be no justification for ruling out all events which during this continued development occurred after the years 1886 and 1888 respectively.

There is also another point concerning both groups which the Court will mention before dealing with each group separately. The United Kingdom Government has endeavoured to show that the groups must be considered as dependencies of Jersey and has referred to Article 38 of a Franco-British Fishery Convention of 1867, which was ratified but not brought into operation. This Article provided :

"The terms 'British Islands' and 'United Kingdom', employed in this Convention, shall include the Islands of Jersey, Guernsey, Alderney, Sark and Man, with their dependencies."

The United Kingdom Government has also invoked similar clauses in a Franco-British Submarine Telegraph Convention of 1859 and in a British Sea Fisheries Act of 1843.

These various clauses indicate that there are islands or islets which are dependencies of such Channel Islands as are enumerated ; but no evidence is produced showing that it was the intention of the contracting Parties to include the Ecrehos and Minquiers groups within the terms "British Islands" or "dependencies" or, on the other hand, to exclude the groups from these terms.
***
The Court will now consider the claims of both Parties to sovereignty over the Ecrehos and begins with the evidence produced by the United Kingdom Government.

It has already been mentioned that the Charter of 1200 of the English King, whereby he granted the fief of the Channel Islands to Piers des Préaux, and the Charter of 1203, whereby the latter in turn granted the Ecrehos to the Abbey of Val-Richer, show that the Ecrehos were treated by him as an integral part of his fief.

The grant of the Ecrehos was in frankalmoin. The French Government contends that such a grant had the effect of severing the feudal link between Piers des Préaux and the Abbey, so that the Ecrehos no longer formed a part of the fief of the Channel Islands. The view submitted by that Government is that the Ecrehos remained subject to the Duke of Normandy through the intermediary of the Abbey of Val-Richer, which was situated on the French mainland, and that, when the King of France succeeded [p61] to the rights of the Duke after the occupation of Continental Normandy in 1204, the Abbey "passed under his protection, as did the Ecrehos, whose overlord he became".

This contention renders it necessary to consider the Charter of 1203 more closely. It provided the following :

".... Noverit universitas vestra me divinæ pietatis intuitu concessisse & dedisse, & præsenti charta mea confirmasse Deo & ecclesiæ sanctæ Mariæ de Valle-Richerii, & monachis ibidem Deo servientibus, pro salute animæ Johannis illustris regis Angliæ, qui insulas mihi dedit, & pro salute animæ meæ, & patris & matris meæ, & omnium antecessorum meorum, insulam de Escrehou integre, ad ædificandam ibidem basilicam in honore Dei & beatæ Mariæ, ita ut divina ibidem celebrentur mysteria singulis diebus, habendam & possidendam libere & quiete, plenarie & honorifice, in liberam & puram & perpetuam eleemosynam, & quidquid in eadem insula poterunt augmentare & ædificare. Item concessi prædictis monachis quidquid ab hominibus meis de Gersy, & de Gernesé, & de Aurene, eis caritatis intuitu rationabiliter datum fuerit, salvo jure meo." [Gallia Christiana, XI, col. 94, No. XXXII (Instrumenta).]

[Translation]

".... Know ye all that I, having regard to the mercy of God, have granted and given and by my present charter have confirmed to God and to the church of St. Mary of Val-Richer and to the monks there serving God, for the salvation of the soul of John, illustrious king of England, who gave me the islands, and for the salvation of the souls of myself and of my father and mother and of all my ancestors, the island of Ecrehou in entirety, for the building there of a church in honour of God and of the blessed Mary, so that the divine mysteries be daily celebrated there, to have and possess [it] and whatever in the same island they shall be able to increase and build, freely and quietly, fully and honourably, in free pure and perpetual alms. I have further granted to the aforesaid monks whatever by my men of Jersey, and of Guernsey, and of Alderney, having regard to charity, shall be reasonably given to them, saving my right."

It appears clearly from the Grand Coutumier de Normandie of the thirteenth century, chapters XXVIII and XXXII (de Gruchy edition, 1881, pp. 90-91 and 98), 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. The text of the first part of Chapter XXXII is as follows:

[Translation]

"They are said to hold by alms who hold lands given in pure alms to God and his servants, wherein the donors retain nothing to themselves or their heirs save only the patronal domain ; and they hold from them by alms only, as from patrons. None can make alms out of any land, save only that which is his own therein. Wherefore note that neither the duke, nor barons, nor anyone, ought to sustain any detriment if their men make alms of the lands which [p62] they hold of them ; and their lords shall exercise their justice and levy their rights in the lands so put in alms, notwithstanding."

This text shows that the grantor retained the "patronal domain" (dominium patronale). According to this ancient Norman custom, Piers des Préaux did not by his grant drop out of the feudal chain as far as the Ecrehos was concerned. He continued to hold the Ecrehos as a part of his fief of the Channel Islands, with the Abbot of Val-Richer as his vassal and the King of England as his overlord, and the King continued to exercise his justice and levy his rights in the land so put in alms. By granting the Ecrehos in frankalmoin to the Abbey, Piers des Préaux did not, and could not, alienate the island from the fief of the Channel Islands ; it remained a part of that fief.

This view is contested by the French Government on the ground that Piers des Préaux had not in the Charter reserved any feudal service and that he therefore had not created any feudal tenure. It seems that no such condition for the creation of a "teneure par omosne", or frankalmoin, was required by the ancient Norman custom, as described in the Coutumier. But even assuming that a condition or reservation was required, the grant to the Abbey did contain such a condition or reservation. As is seen from the text of the Charter, the Abbey was to build a church in the Ecrehos "so that the divine mysteries be daily celebrated there", and when the grant was said to be given "for the salvation of the soul of John, illustrious king of England .... and for the salvation of the souls of myself and of my father and mother and all my ancestors", this could, in view of the custom at that time, only mean that a service of prayers was reserved in the Charter. That this must also have been the view of the Abbot himself and of his successors is seen from the records of certain Quo Warranto proceedings held in Jersey in 1309 before the King's itinerant Justices. The Assize Rolls show that a chapel had in fact been built in the Ecrehos, and that the Prior of that chapel, appearing before the Justices, gave evidence that he and his fellow monk, dwelling in the chapel throughout the whole year, "always celebrate for the lord the King and his progenitors". These records show that the Prior himself as well as the Justices called the grant a tenura.

Shortly after his grant of 1203 Piers des Préaux forfeited the fief of the Channel Islands, which thereupon reverted to the English King and were administered by Wardens appointed by that King, except for certain periods in the thirteenth and the beginning of the fourteenth century, when the Islands were again granted in fee. Up to 1309, there is no indication that any change had occurred as to the connection of the Ecrehos with the Channel Islands.[p63]

The object of the Quo Warranto proceedings of 1309 mentioned above was to enquire into the property and revenue of the English King. These proceedings, which were numerous, took the form of calling upon persons to justify their possession of property. The Abbot of Val-Richer was summoned before the King's Justices to answer regarding a mill and the advocatio of the Priory of the Ecrehos as well as a rent. As the mill was situated in Jersey and the rent was payable there, the proceedings in respect of these objects do not show anything with regard to the status of the Ecrehos. But the question of the advocatio is in a different position. Such a right of a patron to presentation to an ecclesiastical office was, according to an ancient Korman custom, considered and treated as a jus in rem, inherent in the soil and inseparable from the territory of the fief to which it was attached. (Grand Coutumier de Normandie, Chapter CXI, de Gruchy edition, p. 259 ; Atiremens et Jugiés d'Eschequiers, published by Génestal and Tardif, 1921, p. 7,§ 18.) When therefore the Abbot of Val-Richer was summoned before the King's Justices in Jersey to answer for this advocatio, it must have been on the ground that the Ecrehos, to which the advocatio was attached, was within the domain of the English King. And when the Prior of the Ecrehos appeared as the Abbot's attorney in answer to the summons, jurisdiction in respect of the Ecrehos was exercised by the Justices, who decided that "it is permitted to the said Prior to hold the premissa as he holds them as long as it shall please the lord the King".

The Prior of the Ecrehos became involved in three other legal proceedings in Jersey in the years 1323 and 1331. As they concerned events which occurred in Jersey, they do not throw any light upon the status of the Ecrehos, but they show that there was a close relationship between the Ecrehos and Jersey at that time. Further evidence of this relationship is given by Letters of Pro-tection, which, on August 18th, 1337, shortly before the outbreak of the Hundred Years War between England and France, were granted by the English King to ten Priors of Jersey and Guernsey, including the Prior of the Ecrehos, who was described as "Prior de Acrehowe de Insula de Iereseye". Such protection was apparently accorded to him because the Priory was under the authority of the English King.

In his Charter of 1203 Piers des Préaux "granted to the aforesaid monks whatever by my men of Jersey and of Guernsey and of Alderney, having regard to charity, shall be reasonably given to them, saving my right". That such gifts were in fact given to the Priory of the Ecrehos is shown by subsequent documents, such as an account of the Warden of the Channel Islands for 1328-1329, a list of rents in a fifteenth century rental and in other rentals of Jersey showing wheat-rents due by certain Jersey parishioners "by cause of Escrehoo" in 1528 and some later years. It is explained that these wheat-rents, which formerly [p64] were due to the Priory, had been appropriated by the English King as a result of confiscatory measures taken against "alien priories". Both Parties have endeavoured to draw from this fact conclusions as to the status of the Ecrehos. The French Government contends that the confiscation of the Ecrehos rents can only be ascribed to the fact that the Priory was regarded as foreign ; it was the result of measures taken against "alien priories". The United Kingdom Government asserts that this term meant priories established on English soil whose mother church was situated on foreign territory. The Court cannot find that the Parties have justified their respective contentions in this regard. It appears that it was as a result of these confiscatorv measures that the Priory, having lost its means of subsistence, some time later was abandoned and the chapel fell into ruins. The close relationship between the Ecrehos and Jersey ceased and for a considerable period thereafter the islets were only occasionally visited by Jerseymen for the purpose of fishing and collecting seaweed.

In 1706 fishermen from Jersey proceeding to the Ecrehos came across a Frenchman there who had just fled from police prosecution in France, and at his request they brought him to Jersey, where he was examined by the authorities. The United Kingdom Government has relied on this examination, but it cannot be considered as an exercise of jurisdiction in respect of the Ecrehos. It was a measure which would naturally have been taken against any fugitive arriving in Jersey who was a national of another State.

In 1754 plague broke out at Rouen and, as a sanitary measure, the States of Jersey issued an Act providing inter alia:

"Qu'aucun Vaisseau ou Bateau venant du Royaume de France ne sera souffert à entrer dans aucun Havre, ni mettre à Terre Aucun Passagers ou Marchandises en aucun Endroit de cette Isle, pareille Deffence etant faite à l'egard des Iles& Rochers de Chauzé, Marqués, & Icrehots, ou Rochers adjacents."

Both Parties have invoked this Act, but its text is ambiguous. It may signify a ban on traffic from France to these islands and rocks, thereby involving a manifestation of authority in respect of them. But the text may also mean that traffic to Jersey from France, as well as from these islands and rocks is forbidden, as in a previous prohibition in 1720. The prohibition could then be explained by the fact that it was impossible to create a sanitary barrier round the Minquiers and the Ecrehos, and that therefore it became necessary to defend Jersey against the dangers of infection spreading from these islets. But even if this were the case, it would not follow that these islets were regarded as foreign territory.

From the beginning of the nineteenth century the connection between the Ecrehos and Jersey became closer again because of [p65] the growing importance of the oyster fishery in the waters surrounding the islets, and Jersey authorities took, during the subsequent period, action in many ways in respect of the islets. Of the manifold facts invoked by the United Kingdom Government, the Court attaches, in particular, probative value to the acts which relate to the exercise of jurisdiction and local administration and to legislation.

In 1826 criminal proceedings were instituted before the Royal Court of Jersey against a Jerseyman for having shot at a person on the Ecrehos. Similar judicial proceedings in Jersey in respect of criminal offences committed on the Ecrehos took place in 1881,1883, 1891, 1913 and 1921. On the evidence produced the Court is satisfied that the Courts of Jersey, in criminal cases such as these, have no jurisdiction in the matter of a criminal offence committed outside the Bailiwick of Jersey, even though the offence be committed by a British subject resident in Jersey, and that Jersey authorities took action in these cases because the Ecrehos were considered to be within the Bailiwick. These facts show therefore that Jersey courts have exercised criminal jurisdiction in respect of the Ecrehos during nearly a hundred years.

Evidence produced shows that the law of Jersey has for centuries required the holding of an inquest on corpses found within the Bailiwick where it was not clear that death was due to natural causes. Such inquests on corpses found at the Ecrehos were held in 1859, 1917 and 1948 and are additional evidence of the exercise of jurisdiction in respect of these islets.

Since about 1820, and probably earlier, persons from Jersey have erected and maintained some habitable houses or huts on the islets of the Ecrehos, where they have stayed during the fishing season. Some of these houses or huts have, for the purpose of parochial rates, been included in the records of the Parish of St. Martin in Jersey, which have been kept since 1889, and they have been assessed for the levying of local taxes. Rating schedules for 1889 and 1950 were produced in evidence.

A register of fishing boats for the port of Jersey shows that the fishing boat belonging to a Jersey fisherman, who lived permanently on an islet of the Ecrehos for more than forty years, was entered in that register in 1872, the port or place of the boat being indicated as "Ecrehos Rocks", and that the licence of that boat was cancelled in 1882. According to a letter of June, 1876, from the Principal Customs Officer of Jersey, an official of that Island visited occasionally the Ecrehos for the purpose of endorsing the licence of that boat.

It is established that contracts of sale relating to real property on the Ecrehos islets have been passed before the competent authorities of Jersey and registered in the public registry of deeds of that island. Examples of such registration of contracts are produced for 1863, 1881, 1884 and some later years.[p66]

In 1884, a custom-house was established in the Ecrehos by Jersey customs authorities. The islets have been included by Jersey authorities within the scope of their census enumerations, and in 1901 an official enumerator visited the islets for the purpose of taking the census.

These various facts show that Jersey authorities have in several ways exercised ordinary local administration in respect of the Ecrehos during a long period of time.

By a British Treasury Warrant of 1375, constituting Jersey as a Port of the Channel Islands, the "Ecrehou Rocks" were included within the limits of that port. This legislative Act was a clear manifestation of British sovereignty over the Ecrehos at a time when a dispute as to such sovereignty had not yet arisen. The French Government protested in 1376 on the ground that this Act derogated from the Fishery Convention of 1839. But this protest could not deprive the Act of its character as a manifestation of sovereignty.

Of other facts which throw light upon the dispute, it should be mentioned that Jersey authorities have made periodical official visits to the Ecrehos since 1885, and that they have carried out various works and constructions there, such as a slipway in 1895, a signal post in 1910 and the placing of a mooring buoy in 1939.

*

The French Government, in addition to the alleged original feudal title considered above, has invoked the fact that the States of Jersey in 1646 prohibited the inhabitants of Jersey from fishing without special permission at the Ecrehos and the Chausey Islands, and that they restricted visits to the Ecrehos in 1692 because of the war between England and France. This shows, it is contended, that the Ecrehos were not considered as British territory. But the Court does not consider that this is the necessary or natural inference to be drawn from these facts.

In the course of the diplomatic exchanges between the two Governments in the beginning of the nineteenth century concerning fisheries off the coast of Cotentin, the French Ambassador in London addressed to the Foreign Office a Note, dated June 12th, 1820, attaching two charts sent from the French Ministry of Marine to the French Ministry of Foreign Affairs purporting to delimit the areas within which the fishermen of each country were entitled to exclusive rights of fishery. In these charts a blue line marking territorial waters was drawn dong the coast of the French mainland and round the Chausey Islands, which were indicated as French, and a red line marking territorial waters was drawn round Jersey, Alderney, Sark and the Minquiers, which were indicated as British. No line of territorial waters was drawn round the Ecrehos group, one part of which was included in the red line [p67] for Jersey and consequently marked as belonging to Great Britain and the other part apparently treated as res nullius. When the French Government in 1876 protested against the British Treasury Warrant of 1875 and challenged British sovereignty over the Ecrehos, it did not itself claim sovereignty, but continued to treat the Ecrehos as res nullius. In a letter of March 26th, 1884, from the French Ministry of Foreign Affairs to the French Minister of Marine, it was stated that the British Government had not ceased to claim the Ecrehos as a dependency to the Channel Islands, and it was suggested that French fishermen should be prohibited access to the Ecrehos. It does not appear that any such measure was taken, and subsequently, in a Note to the Foreign Office of December 15th, 1886, the French Government claimed for the first time sovereignty over the Ecrehos "à la lumière des nouvelles données historiques et géologiques".

*
The Court, being now called upon 10 appraise the relative strength of the opposing claims to sovereignty over the Ecrehos in the light of the facts considered above, finds that the Ecrehos group in the beginning of the thirteenth century was considered and treated as an integral part of the fief of the Channel Islands which were held by the English King, and that the group continued to be under the dominion of that King, who in the beginning of the fourteenth century exercised jurisdiction in respect thereof. The Court further finds that British authorities during the greater part of the nineteenth century and in the twentieth century have exercised State functions in respect of the group. The French Government, on the other hand, has not produced evidence showing that it has any valid title to the group. In such circumstances it must be con-cluded that the sovereignty over the Ecrehos belongs to the United Kingdom.

***

The Court will now consider the claims of both Parties to sovereignty over the Minquiers and begins with the evidence produced by the United Kingdom Government.

The Rolls of the Manorial Court of the fief of Noirmont in Jersey contain three entries for the years 1615, 1616 and 1617 concerning certain objects shipwrecked at the Minquiers. The first two entries state that certain wreckage of a ship, believed to belong to Hon-fleur, and lost at the Minquiers, was carried off from the islets by certain named persons. The Court, which was held "on this fief", ordered the Serjeant to take charge of the objects until other provision should have been made. The third entry states that a named person is "in default towards the Officers of the Seigneur for having taken away an Anchor from the Minquiers and their neighbourhood [p68 ]
and carried it to St. Malo". The Court, which again was held "on the fief", ordered that certain persons "keep their day at the next Court, or answer in the superior Court if the circumstances shall require". The United Kingdom Government contends and the French Government contests that these entries show that the Minquiers were a part of the fief of Noirmont.

The Grand Coutumier de Normandie, to which the French Government has referred in this connection, deals with wreck in Chapter XVII (de Gruchy edition, pp. 48-50) and contains detailed statements as to custody and ownership. The wreck should be guarded and thereafter inspected by the Bailiff or his Officers, whereupon it should be given into custody of the lord of the fief or of "preudes hommes" and kept during a year and a day in case the owner should come forward and claim it. The Coutumier enumerates the things to which the Duke of Normandy was entitled and continues : "All things other than these shall enure to the lord in whose fief the wreck is found."

The Court inclines to the view that it was on the basis of this ancient Norman custom that the Manorial Court of Noirmont dealt with these two cases of wreck found at the Minquiers. It dealt with them on behalf of "the lord in whose fief the wreck is found", the lord of Noirmont. In the first case it ordered the Serjeant to take charge of the wreck, in the second case it declared a certain person to be "in default towards the Officers of the Seigneur" for having taken away the wreck, and it ordered some other persons to "keep their day at the next Court". As the jurisdiction of a local Court such as that of a Manor must have been strictly territorial and, in cases concerning wreck, limited to wreck found within the territory of its jurisdiction, it is difficult to explain its dealing with the two cases unless the Minquiers were considered to be a part of the fief of Noirmont.

The United Kingdom Government has further invoked a Judgment of 1692 of the Royal Court of Jersey in litigation between the English King and the guardian of the Seigneur of the fief of Samarès in Jersey, concerning goods shipwrecked on the rocks of the Minquiers. The Court decided that the goods should be shared between the two litigants and the salvors, each taking a third, and it based this decision on "certain Letters" of the King's Privy Council of 1620 and on an Act of 1632. As these documents are not produced, it cannot be seen on what ground the Judgment was based. It is therefore not possible to draw from this Judgment any conclusion supporting the British claim to the Minquiers.

In 1779 the Jersey Piers and Harbours Cornmittee made an order for subsidizing the owner of a boat for the use of his boat and for services rendered by him and his crew "who have been at the Minquiers for the purpose of helping and saving persons [p69] who, there was reason to think, had been shipwrecked there". This shows that the Committee was interested in ensuring such services at the Minquiers, but it can hardly be considered as a measure by which authority was exercised in respect of the islets, nor can it be concluded that the Committee made the grant only because it considered the Minquiers to be a part of Jersey. The United Kingdom Government has further invoked two Judgments of 1811 and 1817 of the Royal Court of Jersey relating to salvage services rendered by Jerseymen to two ships wrecked at the Minquiers. The cases appear to have been ordinary salvage cases, and it is not shown that the Royal Court of Jersey would have lacked jurisdiction if the salvage had taken place outside the territory of Jersey.

The further evidence produced by the United Kingdom Government in respect of the Minquiers is of the same character as that considered above in connection with its claim to the Ecrehos. As already mentioned, the law of Jersey has for centuries required the holding of an inquest on corpses found within the Bailiwick. Such inquests on corpses found at the Minquiers were held in 1850, 1938 and 1948 and show that jurisdiction was exercised in respect of these islets.

Since about 1815, and perhaps earlier, persons from Jersey have erected and maintained some habitable houses or huts also on the islets of the Minquiers, where they have stayed during the fishing season. Some of these houses or huts have, for the purpose of parochial rates, been included in the records of the Parish of Grouville in Jersey, and property taxes have been paid by the owners. Rating schedules for 1939 and 1950 are produced.

It is established that contracts of sale relating to real property in the Minquiers have, as in the case of the Ecrehos, been passed before the competent authorities of Jersey and registered in the public registry of deeds of the Island. Examples of such registration of contracts are given for 1896, 1909 and some later years.

In 1909 Jersey customs authorities established in the Minquiers a custom-house with the arms of Jersey. The islets have been included by Jersey authorities within the scope of their census enumerations, and in 1921 an official enumerator visited the islets for the purpose of taking the census.

These various facts show that Jersey authorities have in several ways exercised ordinary local administration in respect of the Minquiers during a long period of time.

Of other facts throwing light upon the dispute it should be mentioned that Jersey authorities have made periodical official visits to the Minquiers since 1888, and that they have carried out various works and constructions there, such as a slipway in 1907, a mooring buoy in 1913, a number of beacons and buoys in 1931 and later years and a winch in 1933. [p70]

The evidence thus produced by the United Kingdom Government shows in the opinion of the Court that the Minquiers in the beginning of the seventeenth century were treated as a part of the fief of Noirmont in Jersey, and that British authorities during a considerable part of the nineteenth century and in the twentieth century have exercised State functions in respect of this group.
*

The French Government has, in addition to the alleged original feudal title, invoked certain facis. It contends that the Minquiers have been a dependency of the Chausey Islands, which, according to the view of that Government, have always belonged. to France, and which in 1022 were granted by the Duke of Normandy to the Abbey of Mont-Saint-Michel. It has referred to a Papal Bull of 1179 which confirmed this Abbey in all its possessions, among which the Bull mentioned "totam insulam de cause cumz pertinentiis suis". But from this general clause about appurtenances to the Chausey Islands no deduction can be made with regard to the status of the Minquiers. The United Kingdom Government has, on the other hand, contended that the Chausey Islands belonged to England until about 1764. But the Court does not, for the purpose of deciding the present case, consider it necessary to determine at what time the Chausey Islands became a French possession.

In 1784 a French national submitted to the French Minister of Marine an application for a concession in respect of the Minquiers, an application which was not granted. The correspondence between the French authorities, relating to this matter, does not disclose anything which could support the present French claim to sovereignty, but it reveals certain fears of creating difficulties with the English Crown.

In 1831 a French national made a hydrographical survey of the Minquiers group ; but a British Naval officer, on instructions from the British Admiralty, surveyed both the Minquiers and the Ecrehos as early as 1813-1815.

The French Government further contends that since 1861 it has assumed the sole charge of the lighting and buoying of the Minquiers for more than 75 years, without having encountered any objection from the United Kingdom Government. The buoys were placed outside the reefs of the group and purported to aid navigation to and from French ports and protect shipping against the dangerous reefs of the Minquiers. In 1888 a French mission, appointed to make a hydrographic survey of the islets, erected provisional beacons on several of them to facilitate the survey.

The French Government has also relied on the fact that the French Prime Minister and the Air Minister in 1938 travelled to the Minquiers in order to inspect the buoying, and that a Frenchman [p71] in 1939 erected a house on one of the islets with a subsidy from the Mayor of Granville. It has finally referred to certain recent hydro-electric projects for the installation of tidal power plants in the Bay of Mont-Saint-Michel and the region of the Minquiers islets.

The Court does not find that the facts, invoked by the French Government, are sufficient to show that France has a valid title to the Minquiers. As to the above-mentioned acts from the nineteenth and twentieth centuries in particular, including the buoying outside the reefs of the group, such acts can hardly be considered as sufficient evidence of the intention of that Government to act as sovereign over the islets ; nor are those acts of such a character that they can be considered as involving a manifestation of State authority in respect of the islets.

A perusal of the diplomatic exchanges between the two Governments from the beginning of the nineteenth century confirms this view. By his Note of June 12th, 1820, to the Foreign Office, already referred to above, the French Ambassador in London transmitted a letter from the French Minister of Marine of September 14th, 1819, to the French Foreign Minister, in which the Minquiers were stated to be "possédés par l’Angleterre", and in one of the charts enclosed the Minquiers group was indicated as being British. It is argued by the French Government that this admission cannot be invoked against it, as it was made in the course of negotiations which did not result in agreement. But it was not a proposal or a concession made during negotiations, but a statement of facts transmitted to the Foreign Office by the French Ambassador, who did not express any reservation in respect thereof. This statement must therefore be considered as evidence of the French official view at that time. When the British Embassy in Paris, in a Note of November 12th, 1869, to the French Foreign Minister, had complained about alleged theft by French fishermen at the Minquiers and referred to this group as "this dependency of the Channel Islands", the French Minister, in his reply of March 11h, 1870, refuted the accusation against French fishermen, but made no reservation in respect of the statement that the Minquiers group was a dependency of the Channel Islands. It was not until 1888, that France, in a Note of August 27th. for the first time made a claim to sovereignty over that group, a claim which appears to have been provoked by a visit to the islets of the Jersey Piers and Harbours Committee. In 1929 a French national, M. Leroux, commenced the construction of a house on one of the islets of the Minquiers in virtue of a lease issued by French Government officials. In a Note of July 26th, 1929, the United Kingdom Government protested and said that they "have no doubt that the French Government, in order to obviate all risk of the occurrence of some untoward incident on the spot, will restrain Monsieur Leroux from proceeding further with his building operations". No reply appears to have been [p72] given by the French Government ; but the construction of the house was stopped. That it was stopped at the instigation of that Government appears to follow from a Note of October 5th, 1937, from the French Ambassador to the Foreign Office, where it was stated that "the French Government, moreover, in spite of the slight distance between the Minquiers islands and the Chausey islands, did not hesitate, a few years ago, to prevent the acquisition of land on the Minquiers by French nationals".

*

In such circumstances, and having regard to the view expressed above with regard to the evidence produced by the United Kingdom Government, the Court is of opinion that the sovereignty over the Minquiers belongs to the United Kingdom.

***

For these reasons,

The Court,

unanimously,

finds that the sovereignty over the islets and rocks of the Ecrehos and Minquiers groups, in so far as these islets and rocks are capable of appropriation, belongs to the United Kingdom.

Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this seventeenth day of November, one thousand nine hundred and fifty-three, in three copies, one of which will be placed in the archives of the Court and the others will be transmitted to the Government of the French Republic and to the Government of the United Kingdom of Great Britain and Northern Ireland, respectively.

(Signed) J. G. Guerrero,
Vice-President.

(Signed) Garnier-Coignet,
Deputy-Registrar. [p73]

Judge Alvarez declares that he concurs in the conclusions reached in the Judgment of the Court but for different reasons.

In his opinion, it is clear from the written proceedings and the oral arguments that the Parties have attributed excessive importance to historic titles and that they have not sufficiently taken into account the state of international law or its present tendencies in regard to territorial sovereignty.

He wishes to emphasize that the task of the Court is to resolve international disputes by applying, not the traditional or classical international law, but that which exists at the present day and which is in conformity with the new conditions of international life, and to develop this law in a progressive spirit.

Judges Basdevant and Carneiro, availing themselves of the right conferred on them by Article 57 of the Statute, append to the Judgment of the Court statements of their individual opinions.

(Initialled) J. G. G.
(Initialled) G.-C. [p74]


INDIVIDVAL OPINION: OF JUDGE BASDEVANT

[Translation]

While concurring in the operative part of the Judgment, I am bound to Say that the reasons for which I do so are to a great extent different from those stated by the Court. I therefore think that I should indicate in outline, but without exhaustive consideration of each separate point, the means by which I arrive at agreement with the operative part. I do not propose, in doing this, to embark upon a criticism of the reasoning adopted by the Court, nor to express my views on alI the points dealt with in the at times over-complete arguments of the Parties ; to do either would be to go beyond the bounds within which an individual opinion ought, in my view, to be kept. I shall not indeed indicate the particular points on which I am in agreement with the reasons given by the Court.

In my view the present proceedings are essentially concerned with the interpretation, in so far as it affects the Ecrehos and the Minquiers, of the division of the Duchy of Normandy in the Middle Ages between the King of England and the King of France, the United Kingdom being now the successor to the rights of the King of England while the French Republic is the successor to the rights of the King of France. The problem was posed in this form by Sir Lionel Heald at the hearing on September 17th. Reference to this idea of division is made on a number of occasions in the course of the arguments of Professor Wade and of Professor Gros.

Sir Lionel Heald placed this division, the effect of which has to be determined, in the thirteenth century. In reality the facts constituting the division were spread over a longer period. The division was indeed effected as a result of a series of acts of war, acts of possession and treaties in the course of the thirteenth and fourteenth centuries. Both Parties go back to all these factors to find the historic titles upon which they seek to rely.

At the very beginning of the thirteenth century, immediately before the division of Normandy, the Ecrehos and the Mincuiers formed a part of this Duchy and were subject to its Duke. The King of England, as such, did not then possess any rights there. : the Duke of Normandy's conquest of England in 1066 and his acquisition of the title of King of that country cannot have conferred upon the King of England, as such, any title to the possessions of the Duke of Normandy. The two crowns, one royal, the other ducal, were vested in the same person, but legally they remained distinct. This situation was in complete consonance with the law of the feudal period, which was to subsist in the time of the conception of the princely State only to give way with the, growth of the conception of a national State, leaving traces even in modern [p75] times and indeed until the present day. For the King of England to have any place in the status of Normandy it is necessary for him to be substituted for the Duke of Normandy : such a novation was to take place in the course of the events by which the division which has to be interpreted was effected.

Immediately before the division of Normandy the King of France was the suzerain of the Duke of Normandy. The title which he thus possessed to the Duchy and to the islands which formed a part of it was not merely a nominal title. The Judgment of 1202, the forfeiture which resulted from it, certain provisions of the Treaty of Troyes of 1420 and indeed the terminology of the Treaty of Paris of 1259, which uses the word "give" to indicate what was done by the suzerain, the King of France, when, in respect of certain territories, he released the King of England from the effects of the forfeiture, all these factors go to show that this was so. Suzerainty, however, is ]lot sovereignty. For the French Republic to be able now successfully to rely upon the ancient title of the King of France, it is necessary to show that this ancient title became augmented as a result of the disappearance, from beneath the King of France and in respect of the disputed islets, of the vassal, the Duke of Normandy. A transformation of this sort occurred in the case of Continental Normandy in the course of the events which brought about the division. What has to be determined is whether such a transformation enured to the benefit of the King of France in respect of the Ecrehos and the Minquiers, or whether the birth of some new and independent right over these islets, a right vested in the King of England, prevented such a result. This is the real question, and it is unnecessary to go into the contention that the suzerainty of the King of France lapsed as a result of the disappearance of the feudal system towards the end of the fifteenth century, a contention which makes light of the fact that up to the end of the seventeenth century the policy followed by the French Kings in regard to boundaries was linked to feudal principles, and of the fact that survivals of these principles remained until a much later date than this.

The Judgment of 1202, with regard to which there has been controversy between the Parties, is not in itself relevant to the present case, for given as it was, against the Duke of Normandy, it did not affect the King of England. It did not deprive him of any right since the rights over Normandy belonged to the Duke and not to the King of England, and clearly it did not confer any right upon the King of England. It is therefore unnecessary to linger upon the doubts and criticisms to which this Judgment has given rise. The Judgment deserves to be mentioned here only because it is at the origin of the events marking, on the one hand, the beginning of the substitution of the King of England for the Duke of Normandy in regard to domination over Jersey, Guernsey and other islands, and, on the other hand, the beginning of the substitution of the sovereignty of the King of France for is suzerainty over Continental Normandy. [p76]

King John, as Duke of Normandy, treated the Judgment of 1202 and the forfeiture which ensued as a result of it with defiance ; he resisted the forfeiture, having recourse, for this purpose, to force which was available to him in his capacity as King of England. While the King of France eliminated his vassal from Continental Normandy, the King of England, after various vicis-situdes, gained possession of the islands or of some of them. This marked the breaking up of Normandy, the division of what had been united under the authority of the Duke and the suzerainty of the King of France.

In the course of these events, the King of England acquired jure belli and on his own behalf a title to the islands within his power, a title which was later to be confirmed by certain treaties. He thus became substituted for the Duke of Normandy in these islands. There was a novation of his title as a result of which "some alternative administration had to be framed by the English Crown to replace that of the Duke of former years", as is said in the Memorial (para. 26). The title thus acquired by the King of England may properly be invoked by the United Kingdom at the present day.

Did this title of the King of England extend to the Ecrehos and the Minquiers ?

The Treaty of Paris of 1259, which provided for the effects of the forfeiture, partly doing away with these and confirming the remainder, seems to me to refer, in Article 4, to the Channel Islands inter alia. It would seem to me to be difficult to hold that it had overlooked them, and when it speaks of land on this side of the sea of England and immediately afterwards mentions the islands, I am of opinion that it refers to the Channel Islands rather than to any other islands ; if it adds that the King of England shall hold these islands "as peer of France and Duke of Aquitaine", this is because it was not possible to say in this Treaty that the King should hold them as Duke of Normandy. From Article 4 of this Treaty, and from the reference it contains to the liege homage of the King of England to the King of France in respect of all that the King of France "gives" to the King of England, it seems to me to emerge that the King of England received the Channel Islands which he held at the time of the Treaty, that he was to have them as vassal of the King of France who remained their suzerain as in the past.

The Treaty of Calais or Brétigny of October 24th, 1360, went a step farther with regard to the right of the King of England. It indicated an agreement according to which the King of England should have and hold all the islands which he "now holds". His title to them was thus to be a complete one—he would no longer hold them as a vassal of the King of France. The rights of the King of France over these islands disappeared. This Treaty renders unnecessary further reference to the Treaty of 1259. It confirms the right which the King of England had acquired jure belli.[p77]

To determine whether this right of the King of England, which supplanted that of the King of France, extended to the Ecrehos and the Minquiers, it is necessary to ascertain whether the King of England held these islets at the time of the Treaty of 1360. The Treaty imposes this condition, but it contains no clear indication as to whether the Ecrehos and the Minquiers are to be considered as forming part of the portion enuring to the King of England. This lack of precision is common in the treaties of the period ; these are not concerned with precise definitions of boundaries but are based rather on feudal concepts of dependence ; the history of the French monarchy up to the end of the seventeenth century is filled with a mass of disputes relating to the interpretation and application of instruments of this kind. From the fact that the Ecrehos and the Minquiers are not expressly mentioned here and from the fact that in other instruments they do not appear in one or another of the enumerations of islands, or that after the indication of certain islands there is or is not a reference to their dependencies, no conclusion can be drawn as to the sovereignty over the islets. It is necessary to have recourse to other elements for a decision.

If it were a question of interpreting the Treaty of 1259, it would be necessary to have regard to the fact that the King of France by this Treaty "gives" the islands, on condition of liege homage, to the King of England who, until then and in that capacity, enjoyed no rights there Save those which he had acquired by force of arms. In case of doubt, therefore, this Treaty should be inter-preted in favour of the grantor, in the sense of restricting the gift. But what is in fact involved is the interpretation and application of the Treaty of 1360. This Treaty, however, does not make any reference to a gift by the King of France. It contains a statement of an agreement to the effect that the King of England should have the islands which he "now holds". This provision must be interpreted, not in a way a priori favourable to one Party rather than the other, but in a spirit of equality appropriate to the interpretation of the division effected in a century of confused strife.

Were the Ecrehos and the Minquiers held by the King of England in 1360 ? No direct and positive evidence to this effect has been adduced. Moreover, I do not think that the Charter of January 14th, 1200, in favour of Piers des Préaux, or the Charter which the latter granted in 1203 for the establishment of a Priory on the island of Ecrehos can provide proof that in 1259, and still less m 1360, the King of England held this island and the islets and rocks within this group ; these charters provide us with information as to the feudal dependence of the island of Ecrehos in 1200 and 1203, but they furnish no information as to the factual position existing in 1360.

Holding the islands—this is an expression which is used in the Treaty of 1360 in the military sense ; it refers to the situation created by the military strength of the King of England. So far [p78] as inhabited islands are concerned, this idea involves the establishment of English military authority in these islands, the possibility of action taken by the King's agents in respect of the inhabitants and, by the same token, the prevention of foreign action in the islands thus occupied. But none of these elements are to be looked for in the case of the Ecrehos and the Minquiers, islets and rocks which are practically uninhabited and most of which are uninhabitable. From a military point of view, for the King of England to hold them, it is not necessary that he should maintain a garrison there ; it is sufficient that by reason of his military and naval power he should be in a position to intervene there when he considers it appropriate without being prevented from doing so by the forces of the King of France and that, by the same token, he should be in a position to prevent intervention by these forces. It would seem probable that the King of England, who had established himself on the principal Channel Islands and who remained there by virtue of the naval power available to him, was thus in a position to take such action in respect of the Ecrehos and the Minquiers. Without here introducing the concept of an archipelago, which is not in consonance with the geographical situation, the propinquity of these islets in relation to Jersey tends to confirm this probability. It would therefore seem that within the meaning of the Treaty of 1360, the disputed islets were then held by the King of England and that the condition imposed by the Treaty for their being assigned to him as part of the division was satisfied.

It would be of very great assistance if it were possible to find confirmation of this probability in certain contemporary facts. The Quo Warranto proceedings of 1309, which can be considered relevant only with regard to a question of the advocatio raised therein, did not result in any expressed decision on this point and the arguments relied on before the Judges and accepted by them—the arguments relating to the poverty of the Priory— were quite unconnected with that part of the proceedings ; the desired confirmation is not therefore to be found here. As to the actual relations with Jersey arising from the gifts made to the Priory by the inhabitants of that island or the occasional visits of the Prior to Jersey, these are at least counterbalanced by the relations and the ecclesiastical discipline then existing between the Priory of the Ecrehos and the Abbey of Val-Richer which was on French soil. Neither here nor in any similar facts is it possible to find anything which confirms or invalidates the hypothesis according to which the disputed islets would appear to have formed a part of the islands held by the King of England in 1360.

The period which followed was one of strife in the course of which the advantage often lay with English arms. During a great part of this period Continental Normandy itself was in the hands of the King of England. The Treaty of Troyes of 1420, which made [p79] the King of England heir to the Crown of France—an inheritance of which subsequent events did not permit him to reap the fruits —expressly re-attached the Duchy of Normandy to the Crown of France, and it presented the distinction between the two Kingdoms under the authority of one and the same "King and sovereign lord". Finally, this prolonged strife resulted in the maintenance of French domination in Continental Normandy and English domination in Jersey, Guernsey and other islands: the division was preserved by the later Treaties without its terms being clearly defined by them.

Those which have been referred to in the arguments do not appear to me to assist the solution of the dispute. The Fishery Convention of 1839 is irrelevant on the question of sovereignty. It cannot, how-ever, be completely disregarded. This Convention, indeed, by its provisions on common fishery, either directly or as the result of a traditional liberal interpretation dictated by the character of the places in question, furnished sufficient justification for fishery acts and even for acts of user of the islets in connection with fishing requirements ; facts of this sort cannot thus be taken into consideration as providing any helpful indication on the question of sovereignty.

All these elements provide no more than an interpretation which is probable but not backed by decisive proof, that the disputed islets were held by the King of England in 1360 and that they must therefore be regarded as having been acknowledged his by the Treaty of that year. Some doubt must still linger, however, since this interpretation would lead to the acceptance of the view that there was an increase in the rights of the King of England on these islets and a corresponding abandonment of his rights by the King of France in relation to what had been decided in the Treaty of 1259.

This uncertain situation continued for a long period without any attempt being made to clarify it. On both sides a lack of interest was displayed in these islets, and when the disappearance of the Priory brought about the disappearance of the light which it had maintained on the island of Ecrehos for the guidance of fishermen, neither Jersey nor Val-Richer, it seems, was concerned to maintain the only public service which for centuries existed on these islets. When, in the nineteenth century, an interest was taken not in the islets themselves but in this area, this was concerned in the first place with the regulation of fisheries by the Convention of 1839, but the question of sovereignty over the islets was not raised. This question arose only in the last quarter of the nineteenth century.

A great many facts have been relied upon in support of the rival claims of the two Governments to sovereignty over the disputed islets, particularly facts which occurred in the nineteenth and twentieth centuries. In considering such facts one must not [p80] lose sight of the fact that the dispute relates not to rival claims to have acquired sovereignty over territory which was nullius, but to the interpretation of the division which was effected in the Middle Ages. The fact that one State exercised its authority on the disputed islets or on some of them constitutes no more than the expression of that State's convictions with regard to its own sovereignty over the islets, if it be not merely a reflection of its desire, a desire without ulterior motives, to provide for the pro-tection of its nationals in the absence of any established authority in the region : a unilateral expression of such convictions is not sufficient to invalidate a claim of the other State any more than a protest by one has this effect as against the other. There was at least a latent conflict between the two States as to the interpretation of the division, a conflict which it was not open to one of them to settle in its favour by a unilateral act. What must be ascertained in order to arrive at an interpretation of this ancient division which is now legally valid is, in the first place, whether the facts invoked reveal that either Government renounced its own claim or acknowledged that of the other Party. The discovery of such a fact or of such an admission would be sufficient to settle the issue. In the absence of a finding of this sort it is necessary to ascertain whether the facts invoked are consistent or inconsistent with the interpretation that the Treaty of 1360 placed the disputed islets within the portion assigned to the King of England, an interpretation so far based on the hypothesis, which is merely one of probability, that the King of England, who held the principal islands in 1360, also held the disputed islets.

On the first point, it is necessary to determine the effect of the letter of September 14th, 1819, from the French Minister of Marine, of which a copy, together with a chart, was transmitted to the Foreign Office on June 12th, 1820, by the French Ambassador ; this contained a reference to the "islands of .... the Minquiers which are in the possession of England". If it is to be taken literally, this reference would resolve the matter in respect of the Minquiers, but it seems to me that one cannot attribute such authority to it. This letter was forwarded only to provide certain clarification, in the course of negotiations relating to the protection of oyster fisheries and not to sovereignty ; it emanated from a Minister without authority to make decisions pertaining to questions of territorial sovereignty and indeed it reveals certain serious lapses of memory on the part of its author ; in London it was considered of so little weight that Canning, when drafting his instructions for the purpose of the ensuing negotiations, based himself on the ground of the State's exclusive fishery rights in its territorial waters and on that of reciprocity and, while admitting the existence of a belt of reserved fishery around the Chausey Islands—which he described as "uninhabited”—made no provision for either the Minquiers or the Ecrehos. The words of the Minister [p81] of Marine would not therefore appear to amount to an admission upon which reliance can be placed at the present day. It would be equally wrong to construe Canning's silence upon this point as implying an acknowledgment by him that these islets were outside British sovereignty. For neither of the responsible statesmen did this question arise at that time.

Though in terms less explicit, the attitude of the two Governments with regard to a fishery incident in 1869 seems to me to be of greater significance so far as the substance is concerned. Some Jersey fishermen had then complained of certain depredations committed on the Minquiers for which they blamed French fishermen. But these facts did not give rise to any police acts or any exercise of jurisdiction on the part of the Jersey authorities such as might normally have followed from the British possession of sovereignty over these islets. These complaints were dealt with, at the request of the Jersey authorities, on a governmental level, that is to say, on a level where those who had to deal with them had authority to decide questions of territorial sovereignty. The complaints were the subject of a démarche by the British Embassy which requested the French Government to take appropriate measures ; the latter Government undertook an enquiry the results of which it communicated to the Embassy. It can thus be seen that on this occasion the Government in London adopted an attitude which would seem to imply that it did not consider itself entitled to regard the Minquiers as a British possession. Such an interpretation can be avoided only if it be considered that that Government was then acting in a spirit of moderation desiring not to aggravate a trifling incident with regard to which the most important point was to ascertain whether the charge that had been made had any basis in fact.

There was a similar incident in 1929, again in connection with the Minquiers, when one Le Roux started building there after a lease had been granted to him by the French Administration. Again the British authorities did not attempt to prevent him by the exercise of the police or jurisdictional powers which they claimed to possess on the Minquiers by virtue of territorial sovereignty. The British Government addressed itself to the French Government, requesting it to prevent Le Roux from carrying on with the building he had started, and this was done. In this case neither of the two Governments went as far as its contentions in relation to sovereignty over the Minquiers. The spirit of moderation which they both displayed can prejudice neither the one nor the other.

It does not seem to me that one would be entitled to conclude from these facts, or from other facts of a similar nature, that there was any renunciation by either State of its claim to sover-eignty over the disputed islets, or any acknowledgment of the rival claim.[p82]

It thus becomes necessary to enquire whether the facts invoked on either side are such as to confirm or invalidate the interpretation according to which the medieval division resulted in the disputed islets being included in the portion of the King of England. We are not here concerned to seek the birth of any new title enuring to him, but rather confirmation of the correctness of a probable, though uncertain, interpretation of this division.

As I have indicated, when I referred to the 1839 Convention and to the liberal construction which in practice was given to it, no conclusion can be drawn in this connection from the fishery acts or from acts connected with fishing.

There are numerous facts, the existence of which has not been challenged—although there is disagreement as to the conclusions to be drawn therefrom—which show that the Jersey authorities have for a long time, on repeated occasions and in a consistent manner, concerned themselves with what was happening on the Ecrehos and the Minquiers and have acted accordingly. They have done so by the assumption of jurisdiction and by police and administrative acts. I have some hesitation in regarding the assumption of jurisdiction as the assumption of territorial jurisdiction. The facts to which the jurisdiction related occurred on islets which are not much more than emerged rocks on which there was no established authority, and they could thus easily frnish the occasion for an extension of jurisdiction just as if the wrong had been committed or the wreckage had been gathered on the high seas. Lord Finlay, in his opinion in Judgment No. 9, referred to this extension of jurisdiction in maritime cases (P.C.I.J., Series A, No. 10, p. 51). Jurisdiction was exercised with regard to Jerseymen ; at the time of the incident of 1869 and in the case of Le Roux, instead of applying jurisdiction, recourse was had by the British Government to action by the French authorities. Such recourse is inconsistent with the essential characteristic of territorial jurisdiction which is its exercise in respect of all persons. Census operations extending to persons on the islets or to acts carried out there do not imply the exercise of a territorial competence ; the same is true of rates imposed upon Jerseymen, in Jersey, in respect of property belonging to them on the islets ; there is nothing to prevent a State's taxation of its nationals in respect of property abroad or its compilation of statistics of facts occurring abroad. The setting up of a custom-house on the islets by the Jersey authorities would seem to be more significant; but, in the first place, no information relating to operations carried on there has been submitted and, secondly, we read in a document of 1886 produced by the United Kingdom that "[French] customs cutters go once a week to the Ecrehos". Finally, it must not be forgotten that international practice recognizes or tolerates customs control carried out by a State outside its territorial waters. [p83]

If, moreover, Jerseymen prepared their instruments of purchase or conveyance of property on the islets in Jersey and in the forms usual there, this is to be regarded less as an exercise of public authority over these islets than as an adoption of the only practical means available to those concerned.

At least the facts briefly mentioned above and other similar facts show that for a long time and in a consistent manner the Jersey authorities have taken an interest in what was happening on the Ecrehos and the Minquiers and that they took action in this connection to an extent and in a way appropriate to the character of these islets and the use which was made of them. They did this without encountering any competing action, still less any exclusive action, on the part of the French authorities. The latter displayed a far greater reserve. The French Government cannot be reproached for having sometimes sought a settlement of the dispute by means of compromise, but it is impossible not to have regard to the hesitation it showed for a long time to press its contentions and to the at least relative abstention of the French authorities from taking action with regard to what was happening on the Ecrehos and the Minquiers.

From the facts thus alleged and, in particular, from the action of the Jersey authorities, unimpeded by competing action on the part of the French authorities, it is possible to deduce some ex post facto confirmation of the reasonableness of the hypothesis previously stated, according to which the King of England, who held the principal islands in 1360, was in a position to exercise power over the Ecrehos and the Minquiers and that he held these islets within the meaning of the Treaty.

From these same facts it appears that, in the absence of the establishment of a separate local authority on the disputed islets, there was, to the extent permitted by the character of these islets, greater and more continuous activity on the part of the Jersey authorities than on the part of the French authorities and that in this way a tradition of the attachment of the islets to Jersey has grown up. This reveals the interpretation which in practice has been given to the division of 1360. An interpretation already manifested before the birth of controversy between the two Govern-ments as to sovereignty which has subsisted in practice throughout the course of this controversy. This interpretation confirms the interpretation previously advanced.

Thus the United Kingdom has, in modern times and at the present day, held the disputed islets so that the hypothesis that the King of England formerly held them appears to be reasonable. lt the same time the medieval division has been interpreted in practice in the sense of an attribution of the islets to the King of England. All this, however, was done not in absolute terms but in a somewhat flexible manner ; the British authorities have acted with moderation, hesitating to exercise the full rights which [p84] the United Kingdom now claims, addressing themselves to the French authorities in preference to taking action against Frenchmen. In order to maintain what has been established by practice on the basis of ancient instruments and of a liberal interpretation, this flexibility should likewise be maintained. But the Court has not been asked either in the Special Agreement or in the written proceedings or in the course of the arguments to prescribe such a maintenance.

This being so, and in the light of the facts referred to above, the decision set forth in the Judgment appears to me to be justified.

(Signed) Basdevant. [p85]


INDIVIDUAL OPINION OF JUDGE LEVI CARNEIRO

[Translation]

Having voted in favour of the operative clause of the Judgment and accepted all the reasons in support thereof, I venture to add a few observations which have decisively influenced mg- personal vote. These observations relate to circumstances of a general character which, in my view, explain. confirm, co-ordinate and lend value to the acts of occupation which occurred at irregular intervals throughout the centuries and are not all sufficiently significant if taken individually.

2. Criterion for the decision—In this Opinion I have confined myself to the following rules which were laid down by the Permanent Court of International Justice in the case concerning the Legal Status of Eastern Greenland :

(a) the elements necessary to establish a valid title to sovereignty are "the intention and will to exercise such sovereignty and the manifestation of State activity" (pp. 46 and 63) ;

(b) in many cases international jurisprudence "has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries" (p. 46);

(c) it is the criterion of the Court in each individual case which decides whether sovereign rights have been displayed and exercised "to an extent sufficient to constitute a valid title to sovereignty" (W. 63-64).

3. Fiej of the Channel Islands.—Whilst not disputing the occupation of the Channel Islands as a whole in the eleventh century by the Duke of Normandy, King of England, the French Government contends that this occupation was a consequence of the grant made in 93; by King Raoul to William Longsword ; that the fief of the Islands was thus constituted and that the Duke of Normandy, King of England, became a vassal of the King of France ; and that the Duke and King on several occasions rendered the homage owed by him in this capacity. The United Kingdom Government rejects these contentions on the ground that the Islands were conquered in 916 by the Normans ; that the fief was limited to the continental portion of Normandy ; that the homage due in respect of this fief was merely nominal and was rendered solely having regard to the convenience or political interest of the vassal.[p86]

We do not possess the instrument of the alleged grant in fee to William Longsword ; it is not known whether this instrument included the Channel Islands ; it has not been possible to define the exact scope of the homage allegedly rendered by the King of England to the King of France. The French Government has relied on a passage in Flodoard to the effect that the King gave to the Duke "terram Brittonam in ora maritima sitam", but it would appear that the only correct translation of this expression is "Breton territory sited along the coast", that is mainland territory bordering on the sea, but not islands. The French Government has challenged the assertion that the Islands were conquered by the Normans, on the ground that they "were added to the other fiefs". But it has not shown how this alleged addition was made. I consider it more plausible that the Islands were conquered by the powerful Norman warriors.

It must be recognized, furthermore, that the vassalage of a king was necessarily exceptional and limited : Philip Augustus himself proclaimed in 1185 that "the King must do fealty to no-one" (Henri Regnault, Manuel d'Histoire du Droit français, p. 102). The suggestion that the King of England was obliged to do fealty to the King of France seems even less probable having regard to the fact that the power of the King of France at that time was considerably reduced (Pierre Gaxotte, Histoire des Français, Vol. 1, pp. 126, 324-325), whereas the authority of the Princes, Dukes and Counts in some forty feudal States was increasing. In the great fiefs, the authority of the King of France was at that time "purely nominal" (Glasson, Histoire du Droit et des Insti-tutions de la France, tome IV, p. 487). Several domains kept to the very end "their right of sovereignty" (italics supplied) (Glasson, op. cit.). The Duke of Normandy in particular was a "real sovereign" (idem). Even on the continental territory of France, the powers of the Duke were not limited : he declared war and made peace, minted money, and was "the sole great judge in his Duchy" (op. cit., pp. 504-507, 508). Rollo had already founded "a State which was practically independent", "under suzerainty that was completely nominal" (idem, p. 497) ; "the Duke of Normandy was one of the most absolute sovereigns of the Middle Ages" (idem, pp. 497-498).

In these circumstances I am unable to accept the view that the Duke of Normandy, having become King of England, and having retained the Channel Islands when the King of France drove him out of Continental Normandy, humbly remained subject to the suzerainty of his adversary. The same considerations make it impossible for me to suppose that the suzerainty of the King of France extended to the Channel Islands, all the more so since he did not conquer them as a whole at the beginning of the thirteenth century when he conquered Continental Normandy. Sound authority may be found for my opinion. For example, Selden, cited by Calvo, has written as follows : [p87]

"When Kings John and Henry III lost Normandy, the Islands of Jersey, Guernsey and the other adjacent islands continued to remain under English sovereignty." (Italics supplied.) (Calvo, Le Droit international, 1870, Vol. 1, p. 325.)

It is true that some authors state that the King of England retained the Islands "par foi et hommage du roi de France" ; the Reply itself has cited such authors (para. 121 and note 68). But in 1200 King John of England (Annexes A 8 and 9 to British Memorial) granted the Islands to Piers des Préaux without alluding in any way to the alleged suzerainty of the King of France. There is a further valid indication disproving the existence of this suzerainty in respect of the Islands ; the King of England is said to have refused to recognize the vassalage alleged by the King of France ; he is said to have refused to render the homage demanded. For this reason the Court of France confiscated his lands in 1202. The feudal link—in so far as it existed and without extending, in my opinion, to the Islands—was then severed ; this is common ground between the Parties. (Oral Arguments.)

4. The period of the Treaties.—The strife between France and England which broke out after this decision of the Court of France extended beyond the thirteenth century and into the second half of the fifteenth century. The interruptions became longer and longer and peace treaties were ultimately concluded. In respect of this period, authentic documents are available. The Parties have submitted these texts and have debated the matter of their interpretation, but the literal interpretation is very doubtful. It is a well-known fact that cases brought before tribunals are always more or less doubtful and it is clearly because of these doubts that the Parties ask for a judicial interpretation. When a text is not clear, the circumstances in which a treaty was signed and the subsequent facts relating to its application must provide a sound basis for the interpretation. In the present case, the interpretation may also be based on other circumstances.

5. Bases of interpretation.—The treaties and other ancient documents with regard to which there has been lengthy argument have given rise to different interpretations. It is my view that the interpretation must be based on the adequate criterion in each particular case ; I nevertheless consider that some bases may be found for this interpretation.

The first is the historical moment; a peace treaty which is the result of a war and a decisive military victory probably favours the victor.

A further factor in the present case is the continuous and keen interest shown by England in the Channel Islands, in contrast to a certain indifference or a much less lively and assiduous interest shown by France, at least after a certain period. A French geographer, Elisée Reclus, has written : "Jersey, Guernsey and the [p88] neighbouring lands are therefore a very precious possession for Great Britain". (Italics supplied.) (Nouvelle Gtographie universelle, ed. 1881, Vol. II, p. 640.) And it may be readily understood why England's interest has always been more vigilant and why she has been more uncompromising in respect of France. The conflict of interests which gave rise to the fierce strife between 1202 and 1360, and even thereafter, became less acute when England ceased to dominate Continental Normandy in the fifteenth century and France renounced her attempt to conquer the Channel Islands.

In the diplomatic correspondence which was exchanged in the nineteenth century concerning the present dispute, a number of unequivocal expressions may be found to suggest a certain indif-ference on the part of France. In a Note dated December 15th, 1886 (Annex A 41 to British Memorial, the French Ambassador submitted to the Foreign Office the titles which, to use his words, "would permit France to establish her authority over the Ecrehos" ; he added that the French authorities "have in mind no purpose of a kind to cause concern to Her Majesty's Government". The French Government made a number of significant proposals : it rejected a decision on sovereignty (A 64); it proposed the neutralization of the islets (A 64); it suggested compensations in other parts of the world (A 71-72). It is to be noted that during the present proceedings the French Government stated in its Counter-Memorial that "the disputed areas cannot be declared to be capable of appropriation by one Party to the exclusion of the other and consequently the status quo must be maintained". In 1819 the French Minister of Marine went so far as to acknowledge that the Minquiers were a British possession. That Government appears to have merely desired the continuation of the joint position which it considered had been established by the Convention of 1839.

Several references have been made to the Minquiers and the Ecrehos by the French Government which suggest that they are practically of no value. Victor Hugo's definition of the Minquiers : "a desolation in a barren waste" has been repeated more than once (Oral Arguments). Reference has once been made to his words : "There is nothing to be found there except shipwreck." The Counter-Memorial has stated that "three above-water islets in the Ecrehos group and one islet in the Minquiers group are habitable during the summer, although there are no springs". With reference to the small dimensions of the rocks, it was said that on the Minquiers "not a single blade of grass is to be found", and, as regards the Ecrehos, "nothing can be grown there and habitation is difficult" (Oral Arguments). The region of the islets has been described by the French Government as "an arm of the sea sown with reefs", and the Counsel for the United Kingdom Government expressed his surprise at this (Oral Argu-[p89]ments). It is true that the French Agent nevertheless referred, in addition to the interests of fishermen, to the "fundamental" importance of a project in connection with the Minquiers, which "would double France's present electrical output" (Oral Arguments). This is a recent project and this magnificent undertaking may not be immediately realized. In any case, I am of opinion that these interests may be taken into consideration (see Conclusion No. 23).

On the other hand, the attitude of the British Government has always been to assert full and exclusive sovereignty, without restriction or concession of any kind.

Accordingly, it is my view that England has not left the Channel Islands as a whole in the hands of France, particularly when England had just conquered France by force of arms. This could not even have followed from an inconceivable oversight.

Despite the uncertainties of the more ancient facts, some bases may also be found for an exact interpretation of the instruments. The French Government has sought to rely on the argument that whenever some of the Channel Islands are mentioned, all the others are excluded : in such cases the enumerations are asserted to be exhaustive. In my opinion such references are almost invariably given "as examples", a view which is warranted by earlier historical facts and confirmed by subsequent facts. It is admitted in the Counter-Memorial that none of the ancient diplomatic instruments relating to the Channel Islands gives a complete enumeration. This is the case for the Treaty of Picquigny of 475 (Rejoinder). Why ? Obviously because, having regard to the "natural unity" of the archipelago which they constitute. it was not necessary to enumerate the islands, for it would have been almost impossible to do so. In other words, whenever some of the islands were mentioned, particularly the main islands—or those which were then regarded as the main islands—it was to be assumed that the provision also covered the other islands which were not listed but which were included in the same archipelago.

6. The Treaty of Lambeth or the "Draft Agreement" of 1217 which terminated the strife which followed the Judgment of 1202 confirmed the English naval victories of Damme and Sandwich, as well as the failure of French attempts to take the Channel Islands. The terms of this Treaty and the historical moment at which it was concluded justify the view that all the Channel Islands were occupied by the English at that time. Following the naval victories, certain significant facts which are contemporaneous with the Treaty confirm English domination (Oral Arguments). I shall merely refer to the proclamation of the autonomy of the islands (Reports of 1199-1216, Annex A 154 to British Memorial) in which even the protection of the ports is recommended, having particular regard to the proximity of the King of France and other [p90] enemies. The French Government has admitted that this Treaty provides for the "restoration" of several islands to the King of England, but it has merely inferred therefrom that the islands were not in his possession at that time (Oral Arguments). This inference is acceptable : there were islands which were not in the possession of the King of England ; but these islands were "restored" to him. The English obtained complete domination over the islands.

Reference has been made to the instruments providing for the implementation of the restoration, which had been agreed upon in the Treaty by the same English admiral who had commanded the English fleet at the Battle of Sandwich. He was appointed Warden of the islands and subsequently replaced in this office by one of his nephews. (Memorial, Nos. 23-24.)

Counsel for the United Kingdom Government has quoted two French historians who defined the scope of this Treaty : a Professor from Caen has stated that the islands "were detached from Nor-mandy in fact in 1204, in law by the Treaty of 1217". (Oral Arguments.)

The only impressive argument that has been raised against this Treaty is the contention that the Dauphin Louis acted "in his own name, not having been delegated to do so by his father, King Philip Augustus" (Oral Arguments). I find it difficult to consider as no more than a mere personal adventure the Dauphin's expedition, which went as far as London in an effort, to use the words of the French Government, "to repeat the exploit of William the Conqueror". Having been unsuccessful in this enterprise, the Dauphin signed the Treaty of Lambeth with King Henry III of England ; he subsequently became King of France as Louis VIII. He was bound to abide by his undertaking. For his part, King Henry III of England retook the main or "the majority of the Norman islands" in the admission of the French Government (Counter-Memorial and Rejoinder). Why should he not have retaken all the islands ? Why should he have left some of them under French domination ?

It should also be noted that the United Kingdom does not even contend that the Treaty of Lambeth re-established the feudal link which had been severed more than fifty years before : the United Kingdom Government attributes this effect to the Treaty of Paris. It may therefore be said that after the Treaty of Lambeth all the Channel Islands were under English domination, without vassalage of any kind.

7. The Treaty of Abbeville-Paris.—It is common ground between the Parties that the Treaty of Paris of 1259 is very important (Oral Arguments). The French Government actually purports to find its original title in that Treaty ; it has asserted (Oral Arguments) that its original title was "renewed and strengthened" by the Treaty of 1259. It then goes on to Say that its tenth century [p91] title was incorporated in the Treaty of 1259, "a treaty of frontiers, a treaty of boundaries" (Oral Arguments). Some of its remarks would appear to justify a claim to full ownership, not merely to suzerainty, of certain, of the Channel Islands, but not of the Channel Islands as a whole. France has, however, preferred to rely throughout on her alleged suzerainty.

I do not regard the Treaty of Paris as a treaty of frontiers. To do so would be to fall into the very error which we have been warned against : an instrument must not be appraised in the light of concepts which are not contemporaneous with it. The Treaty of Paris is a treaty of peace ; it contains no provisions on frontiers and establishes no boundaries. In the opinion of the French Government, it re-established the homage due by the King of England to the King of France by virtue of the feudal link which the Judgment of 1202 had severed. How can it be argued that as a result of this fact the territories of the fief were incorporated in the Kingdom of France when these territories formerly belonged to England ? No territorial alteration of any kind can have resulted from this mere fact : the personal link of vassalage alone m-as re-established.

The Treaty of Paris contains no express reference to the Ecrehos or the Minquiers, or even to the Channel Islands in general. The only provisions which might be relevant to the present dispute are Articles 4, 6 and 7, which are reproduced in Annex A I to the Memorial.

Doubts as to the interpretation of this Treaty arose immediately after its signature and were revived during the proceedings before this Court. The United Kingdom Government has asserted that by this Treaty King Henry III of England renounced all his claims to Continental Normandy ; that after the Treaty, France having delayed or refused to implement the restoration of certain territories, a meeting was held at Périgueux in 1311 to resolve these differences ; that France then asserted claims to the islands adjoining Normandy and to other lands ; that England rejected these claims and continued to possess the Channel Islands (Memorial, para. 18).

According to the Counter-Memorial, the King of England renounced Normandy and other lands in favour of the King of France, thus impliedly recognizing the validity of the Judgment of 1202; on the other hand, it is said to follow from Article 4 that the Duchy of Guyenne and various neighbouring regions were left, or returned as fiefs, to the King of England, who had to pay homage in respect of them to the King of France. Homage, it is asserted, was rendered in respect of all the islands subject to the King of France which were in the hands of the King of England, including the Channel Islands, which were situated "on this side of the English sea" and which previously were a part of the Duchy of Normandy (p. 197). [p92]

In paragraph 129 of its Reply, the United Kingdom Government contends that the King of England acknowledged the suzerainty of the King of France over his possessions in France and over the islands which he held off Aunis and Saintonge, but that it "appears improbable" that the Channel Islands were included among the islands to which the Treaty refers ; in any case, this homage is said to have been merely nominal and for a very short time. In the Rejoinder, the French Government asserts that in this, as in the subsequent treaties, "there is never any question of any islands but those in the possession of the King of England". The discussion on this point continued throughout the oral proceedings and could go on indefinitely as long as it is directed to the obscure wording of the Treaty.

It is clear from the debate that France claims that the suzerainty of the King of France was re-established in respect of the Channel Islands (Oral Arguments) ; on the other hand, the United Kingdom considers that the fealty was re-established only in respect of Aquitaine and its islands, not in respect of the Channel Islands (Oral Arguments).

Neither Party has succeeded in fully proving its own interpretation of the Treaty : it may well be that both interpretations are justified by the text of the Treaty. From the- terms of the Treaty themselves, it is not possible to ascertain with certainty which were the islands "possessed" by England. In order to determine which islands were under French suzerainty, it is necessary to consider the situation which existed before the Treaty was signed, as well as the manner in which the Treaty was carried out. An authoritative and impartial historian, David Jayne Hill, has pointed out that by this Treaty the King of England received the islands of Normandy in fee (A History of Diplomacy, Vol. 1, p. 388). In the present proceedings the United Kingdom has cited another well-known author, Besnier, who wrote as follows :

"The King of France .... definitively acquired the sovereignty of Continental Normandy, but the King of England continued to hold the islands by faith and homage of the King of France" (Reply, para. 121).

Which islands ? Those of the Channel ? In the same sense, J. Havet (Reply). David J. Hill relates the Treaty of Paris to the defeat of King Henry III of England in 1242 and to a desire for peace on the part of King Louis IX of France. Louis is accordingly said to have given Henry, in addition to his heritage in Aquitaine, "the Norman islands in fee to the Crown of France". The King of France is alleged to have said thereafter : "Henry was not my vassal but he has voluntarily become one." The peoples of the two nations continued to be discontented : the English complained of "the new vassalage" and the French complained of the fact that the English continued [p93] to have a foothold on the Continent (op. cit., 1, pp. 388-389). The scope of this suzerainty was questioned after the Treaty of Paris and even after the Treaty of 1303 (idem, Vol. II, pp. 7-8).

When the Treaty of Paris was signed, in contrast to the position at the time of the Treaty of Lambeth, France was victorious and strong, stronger than England, which had been vanquished and divided. Nevertheless, France did not take the Channel Islands back from England; Louis IX, Saint Louis, "l'homme juste", went even further by returning to him the lands of Aquitaine, being content to subject the King of England to his vassalage, even in respect of the Channel Islands, which the latter "continued" to occupy.

The Treaty of Paris thus confirmed the Treaty of Lambeth, although it may well have established (or re-established, if it existed at the beginning of the thirteenth century) French suzerainty over the Channel Islands.

It is conceivable that thenceforth the islands, as a fief, were subject to the King of France but in such a way that they continued to be occupied by England without England having acknowledged this vassalage. There is no evidence to show, nor any indication to suggest, that England acknowledged this vassalage in express terms. And if such vassalage had actually existed, England might have been expected to seek to rid herself of it as soon as possible.

8. The Treaty of Brétigny-Calais.—It is proper to recall, as an element in the interpretation of the Treaty of Calais, that it was signed at the beginning of the Hundred Years War and after the great English naval victory at Sluys in 1340 and a land victory at Poitiers in 1356, when King John the Good of France was taken prisoner by the English. Before the Treaty of Calais, a secret agreement was signed by the Royal prisoner in 1359, which provided for the restoration to the English Crown of all the Duchy of Normandy (Memorial, para. 19) "with all the cities, castles, dioceses, lands, regions and places lying within the Duchy itself". The French Government is quite right when it points out (Counter-Memorial, Part III, 1, III) that this secret agreement was never ratified. But in my view it is not right in adding that the same agreement "produced no effects", for one of the effects was the Treaty of Calais, although the latter restricted the scope of the agreement, having regard to new developments. Although the Treaty of Calais did not restore to England, as the secret agreement had done, "all the Duchy of Normandy"—i.e. Continental Normandy— it did nevertheless confirm in general terms the English possession of the islands, as had been done in the Treaties of 1217 and 1219. A very significant indication of this fact may be found in the absence of any express reference to the islands when the secret agreement refers to "cities, castles, dioceses, lands, regions and places". The purpose of the French attacks at the beginning of the [p94] Hundred Years War was to retake the Channel Islands ; this is a fact which should not be forgotten.

The absence of the reference is clear evidence that the islands were already English. If this were not so, England would certainly not have lost this opportunity—at least, in the secret agreement with its prisoner—to obtain the domain of the Channel Islands. With very significant emphasis, the Treaty stipulates that the King of England shall have and shall hold all the other islands which he already holds. It must be recognized that England dominated, and continued to dominate, the islands as a whole, and that she continued to possess them. "In any event the islands had remained faithful to John Lackland in 1204, and the Treaty of Brétigny (1360) was to confirm their loss by France in express terms. Henceforth the French sought to re-conquer them solely by force of arms." (Perrot, Deux expéditions insulaires françaises ,p. 5.)

The Treaty of Calais even ceded to the King of England—as is acknowledged by France (Oral Arguments)—"in full sovereignty", several provinces and towns—Calais, Ponthieu, Poitou, Saintonge, Guyenne. How could it possibly have reserved the suzerainty of France over the islands which England already possessed ? The process of the disintegration of feudalism was already quite advanced. I do not believe that reference was ever made again to homage by the King of England to the King of France. The French Government (Oral Arguments) has indicated only that such homage existed until the year 1200.

I incline to the view that if, against the will of England, the Treaty of Paris had re-established the suzerainty of the King of France over the Channel Islands, the Treaty of Calais would have extinguished that suzerainty. This view is supported by all the circumstances attendant upon the historical moment when the Treaty was concluded—already referred to above—as well as by the text of the Treaty of Calais itself.

9. Other treaties.—Subsequent treaties—the Treaty of Troyes of 1420, the "Truce of London" of 1471, the Treaties of Picquigny-Amiens of 1475, and of Etaples of 1492, as well as the commercial agreements of 1606 and 1665—have been analyzed by the Parties, who did not consider that any modification of the pre-existing situation resulted from the provisions of these treaties (Oral Arguments).

It seems to me that further circumstantial evidence may be found in the Treaty of Troyes of 1420 in support of the construction placed on the older treaties. Article 22 of the Treaty of Troyes provided that when King Henry VI should become King of France, "the Duchy of Normandy and also the other places and each of them" conquered by him in the Kingdom of France, should be under the jurisdiction of the Crown of France. This could not [p95] apply to the Channel Islands, because these had not been conquered by King Henry. Furthermore, it is a fact that shortly before that date France had been defeated by England, which then conquered Continental Normandy.

It is nevertheless stated in the Counter-Memorial that : "It may be said that the Treaty of Troyes annulled the Treaty of Calais and re-established the unity of the Kingdom of France" (Part III, 1, III). This would be a strong argument. But France has not relied upon it; she continued to invoke the Treaty of Calais (Rejoinder, Section 1, 1, C ; Oral Arguments); she admitted that the argument was unsound. The Treaty of Troyes did not have this effect; the Channel Islands did not pass under the jurisdiction of the Crown of France. Why did they not do so ? Because, as I have already pointed out, the Channel Islands had not been conquered by King Henry T'I : they were already under English domination and remained thereunder.

Accordingly, the occupation of the Channel Islands by England, which had been acknowledged and legalized, became definitive and incontestable. Attempts to retake them were renewed until the sixteenth century. But no effort was made to re-establish the suzerainty which had lapsed at the latest in 1360.

10. Suzerainty alone.—If the contentions of the French Government were admitted, what would have been the situation ? At most the King of France would have had suzerainty over the islands occupied by England. Even if it were agreed that the homage due in respect of such suzerainty was not purely nominal but had been regularly rendered, could it be concluded that this suzerainty was transformed into sovereignty ? The answer to this question is related to the demise of the feudal system.

11. The transformation of suzerainty.—The feudal system disappeared slowly but by a continuous process. It disappeared gradually in certain countries and in certain regions without leaving any important traces in modern public law.

In private law, when relations are involved between individuals or between a State and one of its nationals, it may be admitted that the fief did not disappear completely without leaving any trace, but rather became an emphyteusis, suzerainty having become eminent or direct domain, or sovereignty. We are here concerned with ascertaining the consequences of the disappearance of feudalism, of the fief, of suzerainty and vassalage, when the vassal, as in Our particular case, was a king and the suzerain was another king.

With particular reference to the Minquiers, the French Government has asserted that "the feudal suzerainty of the King of France was ipso facto transformed into modern sovereignty". (Oral Arguments.) Was the suzerainty of a king over another king transformed into sovereignty over the territory of the extinguished fief ? Even when the fief was situated on the territory [p96] of the State of the vassal king ? Even when the vassal king was a powerful enemy of the suzerain king ? My reply is in the negative. In such a case the concept of national sovereignty destroys all the effects and traces of the former suzerainty. In such a case, when sovereignty is established, "political feudalism" disappears.

How can it be argued that once any personal link which may have existed between the King of England and the King of France was severed, the latter should have obtained sovereingty over the soil of England ? How is it conceivable that, by the sole fact that suzerainty was abolished, the so-called vassal, the King of England, freed of all personal duties in respect of the King of France, should have lost to his former suzerain the attributes of the exercise of sovereignty over the Channel Islands, the competence to carry out administrative acts, collect dues and taxes, etc. ? How is it conceivable that all these attributes should be vested in the King of France ? Here again, my answer is in the negative. Even mere nominal homage which may have been owed by the Duke of Normandy to the King of France, and which I believe was never rendered in respect of the islands, could no longer be required, even if it had ever been due. Even admitting that French suzerainty existed in respect of the Channel Islands belonging to the Dukes of Normandy, such suzerainty would have been completely abolished without leaving a trace.

Even within the Kingdom, it was only by force of arms that the Kings of France, from Philip Augustus onwards, began to dominate the feudal lords and ultimately made them subject to their sovereign authority. Louis XI reduced a number of feudal lords to complete obedience. This was the reaction against the feudal lords. Military victory, and not the former suzerainty, became the title to domination.

As regards Normandy, Philip Augustus conquered Continental Normandy and drove the English therefrom, by force of arms rather than by the execution of a judicial decision. But it has not been proved that Philip Augustus also conquered the Channel Islands: on the contrary, the treaties prove that these islands as s whole remained under English domination. In these islands, for more than a century, neither forfeiture nor the disappearance of feudalism, nor military victory, disturbed English domination, the union of the islands with England and the establishment of English sovereignty. The disappearance of feudalism removed the restriction which might hypothetically have attached to this domination.

Furthermore, it must not be forgotten that "vassals exercised all the rights of sovereignty" (Laurent, Ln féodalité et l'Église, p. 617).

Accordingly, it is my view that while the French original title— which rested at most on an unproved and doubtful suzerainty said to have been accepted against the will of the vassal and not to [p97] have been respected by him—while this title was disappearing and becoming extinct, the English original title—resting on what was probably unconditional conquest by the Normans—was growing stronger, becoming consolidated, and finding a legal basis as a result of the successive treaties and the almost uninterrupted occupation of the Channel Islands as a whole, and, finally, of the assertion of national sovereignty when political feudalism disappeared.

12. Geographical data.—I accept the following observation of the French Government :

"The juridical analysis which a court has to undertake always involves a previous examination of the geographical data, in cases which raise the question of territorial competence. International law attached very great importance to these factors in the Court's Judgment on the Norwegian Fisheries in 1951...." (Oral Arguments.)

In its Rejoinder the French Government had already indicated the importance of this aspect of the present question :

".... these islands, lying in a French bay, which have become English [italics supplied] because a French baron, a Duke of Normandy, conquered England in 1066. For in the ultimate analysis this is the somewhat piquant first cause of this trick of fate, which is completely at odds with the geographical data."

From this point of view, the source of the first observation is to be found in the very remote separation of certain of the islands from the Continent : Jersey is said to have been separated from the Continent perhaps in the year 709 (Oral Arguments). This consideration, which is based on a hypothesis, can obviously have no bearing on the present situation, whose origins are to be found in a period at least two centuries later. If the argument that "the archipelago, taken as a whole, represents a dismemberment of the mainland" (Oral Arguments) were to be taken into consideration, it might be contended that this whole now belongs to France. Likewise, another observation of the French Government, to the effect that the islands are situated in a bay bordered by French soil, does not appear in my view to contribute to a solution of the present dispute, because obviously most of the islands in that bay, or the more important of them, are under English sovereignty.

There is, however, another observation which I regard as an interesting one : whilst stressing the fact that "the archipelago, taken as a whole, represents a dismemberment of the mainland" (Oral Arguments), the French Government asserts that "the natural unity" of the archipelago "did exist before the thirteenth century" and that "at that period the chance of arms and the will of kings rent asunder what nature had joined together" (Oral Arguments). [p98]

Shortly before asserting this proposition, the French Government stated that the Channel Islands constitute a group of islands which seems to present a certain natural unity, so that it might be said that the State to which the principal islands belong should also possess sovereignty over the islands whose territorial status is uncertain (Oral Arguments).

13. Natural unity.—But the French Government does not agree that reference should be made to this "natural unity" after the thirteenth century. It claims to have acquired the Channel Islands through their incorporation "as a whole" in the Duchy of Normandy (Oral Arguments). At that period the islands formed a single complete whole with Normandy (Oral Arguments) ; later, in 1259, they are said to have been divided "into two groups" (Oral Arguments). "A part of the archipelago" was assigned to the King of France, "another part" to the King of England (Oral Arguments). We know one of these groups : it is still the Anglo-Norman archipelago. The other group is made up of the Chausey Islands, to which France claims that the Minquiers and the Ecrehos must be attached. The dismemberment of the Chausey from the archipelago has been admitted. I do not consider that this dismemberment involved the disappearance of the "natural unity" of the archipelago. The archipelago formed by all the other islands continued to exist. What it was necessary to prove was that the Minquiers and the Ecrehos were also detached at the same time as the Chausey or later, and once more attached to the Continent. It was necessary to invalidate the very reasonable presumption that they continued to be attached to the archipelago. In my opinion, the burden of proving this was on France, and France has not discharged this burden. The French Government claims that there has been a "dismemberment .... of a great number of islands”—the Chausey group, Mont-Saint-Michel, Tombelaine, the island of Bréhat, "to mention only a few of them" (Oral Arguments), which became and remained French. No other islands, except Cezambre, are cited. They are certainly a part of the "cluster of islands, islets and rocks" to which reference has been made (Oral Arguments). All this does not, in my view, constitute "a very large number of islands", or even "the greater part of the islands" (Oral Arguments). These small islands may not even have been a part of the archipelago ; or else they had already been detached from it, and continued to be so detached.

History is said to have been at odds with geography. But if the dismemberment only involved the Chausey and even if it extended to other lesser islands, the archipelago would nevertheless have included and would still include almost all the islands, all the more important islands which are described in all maps and geography books as "Anglo-Norman archipelago" or "Anglo-Norman islands", [p99] or ''Channel Islands". This archipelago, which still bears this name to-day, with its natural unity almost intact, is indisputably English.

Any exceptions which historical facts may have made to this rule should be accepted restrictively. The United Kingdom acknowledges one exception : the Chausey. As regards the disputed islets in the present case, it was necessary to prove that they also constituted an exception. The evidence adduced points the other way.

In my opinion, the French argument is based on an inversion of the "geopraphical data" when these are set out in the following terms : ".... their [the Ecrehos and the Minquiers] membership of an archipelago which the accidents of history alone have separated in part from France...." (Oral Arguments).

In my opinion this constitutes a recognition that these islets were then a part of the archipelago, even though they may no longer be a part thereof to-day. But since the archipelago is detached from France, not partially but almost entirely (on the view that it was formerly attached to France), it has kept "its natural unity" and the Ecrehos and the Minquiers remain incorporated therein. The burden of proving that the Ecrehos and the Minquiers are no longer a part of the archipelago and that historical facts have detached them from the "natural unity" of the islands was on France. France has not discharged this burden ; she considers that it was for the United Kingdom to provide direct evidence of its sovereignty over these two groups. It seems to me that it is for the Party interested in restricting the application of an established rule or of a recognized fact to prove that such a restriction is valid. In my opinion, the facts proved justify the presumption which I have stated above.

The union of the islands with the Continent is a geological hypothesis having no further consequences. The union of the islands with Continental Normandy is a political fact, having no further consequences. But the unity of the archipelago continues to be recognized as an undisputed fact to-day.

Just as a State which has occupied the coast or an important part of an island is deemed to have occupied the island as a whole, the occupation of the principal islands of an archipelago must also be deemed to include the occupation of islets and rocks in the same archipelago, which have not been actually occupied by another State.

As has been noted in the Reply (para. 118), the "natural unity" of the archipelago also explains the terms of a number of treaties and other instruments which mention a few of the principal islands in order to designate the archipelago as a whole. This method of referring to a whole by merely mentioning one of its parts is common procedure. The "natural unity" of the archipelago could not be broken and has not been broken ; nor has it been disregarded. [p100]

The mention of the principal islands was sufficient to designate the archipelago as a whole. But there have also been very frequent references to islands "adjacent" to other islands or lands indicated. An example of this may be found in respect of Jersey in the Treaty of Calais of 1360 (Annex A 2 to British Memorial). Likewise, in the fourteenth century, in an instrument confirming a Warden of the principal islands (Oral Arguments), in a Petition of the fifteenth century to Pope Sixtus IV (Memonal, para. 34), as well as in such modern documents as the Regulations of July 22nd, 1843 (Article XVIII), the Convention of January 2nd, 1859 (Article XVIII), the Convention of November 11th, 1867 (Article 38) and the Report of the French Experts of 1886.

Reference was made to the "islands of Jersey" in a Grant of 1216 (Memorial, para. 5). Reference is made to "Acrehowe .... de Iereseye" in a Letter of Protection of 1337 (Annex A 17 to British Memorial). In respect of this document the French Agent has argued that the Latin word "de" must not be translated by the preposition "of" (de), but rather by the expression "on behalf of" ("pour le compte de"), "concerning" ("au sujet de") (Oral Arguments), and he referred to the use of dictionaries. One of the best dictionaries, the one by Benoist and Goetzer, gives a considerable number of meanings for the word, including the meaning : "sur", "touchant", "quant à", "relativement". But the first meaning given, and the principal one, the most common one, is "de, hors de, venant de, issu de". And an explanation is given to the effect that the word "expresses the fact that an object is separated from another to which it was attached" ("exprime qu'un objet est séparé d'un autre auqztel il était rattaché"). It is precisely in this sense that the expression was used in the words "Acrehowe .... de Iereseye". If any other meaning were attributed to the word, the phrase would be incomprehensible ; it has moreover been shown that it was used at the same time with this meaning in other instances.

The references to "dependencies" or "adjacent islands" are evidence that other islets or rocks were included in the designation of Jersey. It has not been proved that the Ecrehos and the Minquiers were so included, nor that they were excluded therefrom. But it is clear that it could only have been these islets and rocks to which allusion was made. This consideration corroborates the evidence which has been assembled and justifies the acts of occupation and administration which the Jersey authorities have exercised and still exercise on the Ecrehos and the Minquiers.

The argument based on "dependency" has also been invoked by the French Government, which relies on the fact that the Minquiers are approximately equidistant from Jersey and the Chausey ; the Minquiers are said to be a "dependency" of the Chausey. But this does not appear to be a valid argument, for in a Judgment of July 28th, 1772, the Council of the King of France designated [p101] by name the fifty-three islets included in the Chausey group ; the Minquiers are not mentioned therein ; nor are any of the Minquiers islets. (Gibon, pp. 294 et sqq.) Other documents and considerations support the conclusion deduced from this observation. The Ecrehos and the Minquiers were regarded as attached to Jersey and not to the Chausey. And this is an important consideration, because the Ecrehos and the Minquiers have rarely been designated individually ; they are either included in the archipelago as a whole, or treated as a dependency of another principal island, i.e. Jersey.

14. Proximity of the Continent.—Apart from events of secondary importance, successive wars and the temporary military occupation of one or a number of islands, it may be said that history has not in fact been at odds with geography. My view is rather that historical facts have been influenced by the "geographical data" ; these facts have even confirmed a geographical criterion for the discrimination of the Channel Islands.

This criterion was that of territorial proximity. The islands that were close to the Continent, the islands that were closest to the French coast, became French, not by reason of the very ancient geological fact that they were separated from the mainland (Oral Arguments), but as a necessary consequence of historical facts. The islands which were furthest removed from the coast remained English. This has been acknowledged by the French Government, when it said that in the thirteenth century the King of England did not retain other islands "closer to the Continent" (Counter-Memorial, Part III, I, I) and that after the Treaty of Calais, the King of France "continues to remain the master of the islands close to the coast, which depend on it" (Annex A 2 to British Memorial; Counter-Memorial, Part III, I, III). The King is said to have kept "a group of islands which are generally small .... close to the French coast" (Oral Arguments). The French Government has not indicated what characterized the islands "close to the coast" or "to the mainland". It has not stated what distance from the coast constituted "proximity". It referred also to "dependency" .... "dependency on the toast"—which is rather vague. That Government has also stated, and rightly so, that "the claim that the archipelago constituted a natural unity can only be given its full meaning by taking into consideration the proximity of the coast of the mainland". (Oral Arguments.) But it has referred to no instrument or document in which the Min-quiers of the Ecrehos were regarded as dependencies of the coast or of the Chausey. Of course, the proximity of the coast of the mainland must be taken into consideration, but the natural unity of the archipelago must also be considered at the same time. What we have here are two "geographical data" which complement each other. As is stated by the French Government [p102] itself (Oral Arguments), the Minquiers and the Ecrehos are closer to Jersey than to the mainland. They must be regarded as attached to Jersey rather than to the mainland. They must be included in the archipelago. These islets were, and continue to be, a part of its "natural unity". It is for this reason that they remained English, as did the archipelago itself.

15. Historical facts.—Moreover, the criterion of continental proximity is perfectly rational. I can readily understand why it has been adopted, or rather, why it has prevailed up to a certain point. It has not been the result of any abstract doctrinal trend, or of any preferred theory ; it has resulted from historical events and from force of arms. After they had lost Continental Normandy and the islands of the Atlantic Ocean, the English were obliged to keep the Channel Islands in the interests of their own territorial defence. The conquest by Normandy in 1066 was a warning. England went even further, by keeping Aquitaine until the fifteenth century, seeking to re-conquer Continental Normandy and occupying it, at least in part, in the same period, for more than thirty years. It is clear that England has always shown the greatest interest in the Channel Islands. Counsel for the United Kingdom has stated—a fact which has not been challenged—that since 1204 these islands were not given in fee (save in two exceptional cases) but were governed by a Warden, who was an administrative official of the Crown. One of these exceptions is significant because, in 1254, a fief was granted to the King's son, who later became Edward I (Oral Arguments for September 21st, 1953; List of Wardens from 1204-1373, Annex A158 to British Memorial). In 1226 the King proclaimed the autonomy of the Channel Islands, which is still in force at the present day, and granted them a charter of liberties (Memorial, para. 26). The autonomy of the islands is the political expression of the natural unity of the archipelago. And this unity had already been recognized by the declaration of the neutrality of the islands made by Louis XI and Pope Sixtus IV.

The military victories of the English and their naval power allowed them to secure the domination of these islands generally. It seems inconceivable to me that England, having an important interest in the Channel Islands and full domination over the sea, and possessing all the principal islands, should not, without some special reason, have conquered and retained the Ecrehos and the Minquiers or, rather, that she should have left them to France. A principle of British policy was at stake : Great Britain claimed ownership of the sea which separated that country from France (Calvo, Droit international public, ed. 1896, I, pp. 473-476). This principle was rejected (Oral Arguments), and France objected "to the Channel being called the 'British Channel' ". This is quite true, and yet even the French continued to call the Channel Islands "Anglo-Norman islands" and even "English islands". [p103]

16. The definitive situation.—The principle of the limitation of territorial waters may have been questionable at that time, but the development of history has led to a situation which confirms that principle, perhaps by anticipation. The same consideration which prevented English domination of some of the islands which were definitively subject to the French domain might have prevented English domination over the Ecrehos and the Riinquiers.

But the determining cause which in my opinion explains the fact that England did not have domination over all the Channel Islands is the proximity of the French coast.

The only islands which might be regarded as included in the Anglo-Norman archipelago and which were "dismembered" from the archipelago and placed under French domination, are the Chausey which are situated outside the strict belt of French territorial waters. But the Chausey are closer to the French mainland than all the other islands, even Alderney, which is indisputably English, and even the Ecrehos and the Minquiers. There was considerable alternation in the domination of the Chausey : one writer is alleged to have said that they ought to have remained English and the date of their definitive possession by France has been debated.

The French Agent has cited other islands. The Mont-Saint-Michel is linked to the mainland ; Tombelaine, according to French chart No. 1, is situated in the "sands and rocks uncovering at low water" ; Bréhat and Cezambre (cited in the Oral Arguments) are indisputably situated in French territorial waters. They could only be French. Like the Chausey they remained French. All the other islands are British, including therefore the Ecrehos and the Minquiers.

17. The grant of Piers des Préaux.—There has been very learned argument upon the question whether the grant by Piers des Préaux was really in frankalmoin and whether, therefore, it extinguished the rights of the grantor. I do not consider it necessary to decide these questions. Whatever view one may have, the principal question is not whether Piers des Préaux retained his rights on the island, but simply whether or not the Duke of Normandy retained his. In its Rejoinder (Part 1, Section I, II, A, °), the French Government has accepted the irrefutable rule that none may grant more than he possesses and that Government has acknowledged that the Duke retained his rights.

It is true that the French Government goes on to Say that the King of France succeeded the Duke, by the conquest of Normandy in 1204, and became the overlord of the island of Ecrehos. This brings us back to another question which has already been dealt with and settled : the King of France was not the lord of the islands, the Judgment of 1202 did not relate to the [p104] islands. The conquest of Continental Normandy did not affect the situation in any way. There is no evidence to show that the conquest extended to the islands, or, in particular, to the Ecrehos and the Minquiers.

There are certain other considerations to the same effect which I regard as relevant :

(a) Piers des Préaux could not, without the consent of the lord, effect the dismemberment of a part of the islands which King John had granted him in fee. It matters little that the island of Ecrehos was of no value, as stated by the French Government. And it is easy to discern the importance of the grant if, as is alleged by the French Government, it had the effect of transferring to the King of France the ownership of the island which belonged to the King of England. In such circumstances the grant would have been a nullity.

(b) In the "acknowledgment of his fiefs" made by Piers des Préaux to King Philip of France after the surrender of Rouen in 1204, there is no reference to the Ecrehos (Oral Arguments).

(c) Two years later, in 1206, the King of England restored to Piers des Préaux the lands which he held in England and he stated with regard to the islands that the King would "do his pleasure" (Annes A II to British Memorial). There is no restriction resulting from the grant to the Abbey of Val-Richer.

18. Acts of occupation.—The origin of the occupation of the islands by the English being clearly defined and the circumstances confirming that occupation being acknowledged, the acts carried out during this occupation, although they are scattered in time, bear witness to the continuity of that occupation and reflect the "slow evolution" of the process whereby sovereignty is established-

I need only add a few complementary observations to the analysis given in the Judgment.

19. Visits of fishermen.—The most assiduous and most numerous visitors were fishermen. The French Govemment has said that after 1839 "it allowed British fishermen to go peacefully to the Ecrehos and the Minquiers" (Oral Arguments). The English Government has never permitted Frenchmen to frequent the islets.

I quite agree that in certain cases, and in certain circumstances, the presence of private persons who are nationals of a given State may signify or entail occupation by that State. Sovereignty is exercised over persons who recognize that sovereignty. I have in mind the fact that the limits of the Portuguese and Spanish possessions in South America, which had been strictly laid down in the Treaty of Tordesilhas, were exceeded by persons from Brazil in search of gold and emeralds, and that, although these persons were frequently disappointed in their expectations and their ranks [p105] decimated by fever, they achieved the uti possedetis for Brazil and greatly increased her territory.

Such individual actions are particularly important in respect of territories situated at the border of two countries which both claim sovereignty in that region.

On the Ecrehos and the Minquiers, English fishermen have always been more numerous, much more numerous, than French fishermen. References to English houses on the islets are quite frequent and go back to ancient dates (Annexes A 51, A 54, A 61, A 64 to British Memorial). These persons came from Jersey and certainly from other islands close by. A further and more significant fact is that the French were pushed back by the English. And "on several occasions" the French Ministry of Marine stated it had "requested Our fishermen not to create incidents with the English fishermen" (Oral Arguments).

But the most important consideration is not the mere going into the territorial waters of the Minquiers and the Ecrehos. The most important matter is the actual settling on the islets. But I consider that the French never remained there. The French Government has sought to explain this fact by referring to prevailing winds and currents (Oral Arguments). Whatever may have been the cause, the fact gives rise to certain consequences.

An attempt has been made, without success, to show that the 1839 Convention gave the French "not only a right to fish around the Minquiers and the Ecrehos, but also a right to go ashore on the islets and to settle there" (Oral Arguments). But it has not been said that they landed there frequently, or even less, that they actually settled there in any numbers.

20. Maps.—It is necessary to say something on the evidence supplied by maps. I know that such evidence is not always decisive in the settlement of legal questions relating to territorial sovereignty. It may however constitute proof of the fact that the occupation or exercise of sovereignty was well known. The Parties have admitted this and have based certain contentions on documents of this kind. The United Kingdom Government has cited the map by Stieler, editions of 1905 and 1933, which show the disputed islets as British. The French Agent has submitted several other maps (Oral Arguments); some of these regard the Ecrehos as British but make no reference to the Minquiers. Still other maps omit both groups, or in some cases show the Ecrehos as falling outside the British zone. A searching and specialized study would be required in order to decide which of the contending views in respect of maps should prevail. At any rate, maps do not constitute a sufficiently important contribution to enable a decision to be based on them. I shall not take the evidence of maps into consideration.[p106]

21. French protests.—By fixing the "critical date" in the year 1839, and by stating that very few documents have come down from the Middle Ages by reason of the destruction of a substantial portion of the Norman archives (Oral Arguments) and that the more ancient documents have disappeared, that they were frequently very badly drafted, or may even never have existed at all, the French Government has sought to reduce considerably the volume of evidence upon which the Court may base its decision. Nevertheless, that same Government did not fail to consider acts subsequent to 1839, as the proceedings progressed, or to invoke them in support of its case. Such acts are much more numerous and more significant on the English side than on the French side. The French Government has invoked the protests which it made against several such acts. And since these protests were not made against the most important of these acts, the French Govern-ment has sought to explain this on the ground that the protests were solely directed against acts which did not signify an exercise of sovereignty because, according to its interpretation, both States were authorized to carry out such acts by the Convention of 1839. This interpretation has been rejected by the Court in its Judgment. There can consequently no longer be any excuse for the failure of the French Government to protest against the acts by which the British Government exercised sovereignty over the disputed islets. The French protests were even inadequate and ineffective in respect of British acts of another order. The words of the Permanent Court of International Justice in the Eastern Greenland case (p. 62) may be repeated here : the character of the acts of the British Government is not altered by the protests which, from time to time, were made by the French Government.

In no case did the French protest produce as effective a result as that of the British Government in the case, mentioned in the Judgment, of the construction of a house on the Minquiers by a French national. As regards the Ecrehos, no protests were made after 1888 for sixty years. The French Government has sought to explain the absence of protests by relying on two grounds which must now be considered. According to the first, it was "impossible" for France to "keep the United Kingdom Government continually under surveillance" (Rejoinder, Part 1, Section II, Sub-Section 1). Such an impossibility is quite understandable, but that was not the question. All that was required of the French Government was that it should have kept the islets under surveillance, just as the British Government had done, a surveillance which had permitted the latter Government, as I have already pointed out, to cause the construction of a house to be stopped immediately. Failure to exercise such surveillance and ignorance of what was going on on the islets indicate that France was not exercising sovereignty in that area.[p107]

The second ground on which the French Government seeks to rely relates to the very important matter of the rating of houses on the Ecrehos by the Jersey authorities. The French Government has not chosen to apply to this matter the justification referred to above, and it has stated (Rejoinder, Part I, Section II, Sub-Section I) : "that these measures were carried out in Jersey and did not give rise to any important or overt act in the territory under dispute". It might be said, according to the foregoing justification, that even if the payment of taxes had Seen carried out on the islets, the French Government would have been unaware of this fact because it was "impossible for it to keep the United Kingdom Government continually under surveillance". Indeed, the levying of taxes must necessarily have given rise to acts of authority on the islets themselves. But what is more important is the contrast between the attitude of the Jersey tax authorities and that of the French Government, or of some of its administrative departments, which never attempted to obtain any fiscal contribution from the disputed islets. They did not do so, nor—so far as I am aware—did they ever attempt to do so.

The action of the British Government on the islets became more continuous and more intensive. The French Government then asks the Court : "Should we, on our side, have resorted to force and war ? For this is not a negligible point in the period which runs from approximately 1875 to 1904.... The relations between our two countries were not what they are to-day.... Should we therefore have made a greater demand ; should we have defied the British Government, and provoked a breaking off of relations because of the Minquiers and the Ecrehos ? It was sufficient to protest on paper...."

It is impossible to Say too much in praise of the French Government for not having resorted to force and war, but if there were other more important disputes between the two countries, the same considerations which restrained the French Government should also have restrained the British Government, yet while the latter acted and continued to exercise its sovereignty, the French Government was satisfied to make a "paper" protest. Could it not have done anything else ? It could have, and it ought to have, unless I am mistaken, proposed arbitration ; all the more so since the two States were bound by the Treaty of October 14th, 1903, which provided for the settlement by the Permanent Court of Arbitration of all legal disputes or disputes involving the interpretation of a treaty.

The French Government has referred to the arbitral award in the Chamizal case and has cited the following passage : "In private law, the interruption of prescription is effected by a suit but in dealings between nations this is, of course, impossible, unless and until an international tribunal is established for such purposes." (Oral Arguments.) This award was made in 1911 and relates to facts in the period 1848-1895. At that time there was no inter-[p108]national court. The award makes such a course contingent upon the existence of such a tribunal: "until an international tribunal is established....". But such a tribunal has now been created and has existed for many years. Why did France not at least propose that the dispute should be referred to this tribunal, as England has done, after more than half a century of intermittent and fruitless discussion ? The failure to make such a proposal deprives the claim of much of its force ; it may even render it obsolete.

Without dwelling on this matter, which in my opinion is obviously an important one, I consider that the action of the Court might easily be restricted or even nullified if disputes were allowed to be prolonged indefinitely without good reason and if an attempt were not made to obtain the Court's decisive intervention but preference were given to mere periodical and ineffectual "paper" protests. This state of affairs would be incompatible with the régime under which the rights of each State would be specified and guaranteed.

22. Two further pieces of evidence.—The position which was achieved in the second half of the nineteenth century became definitive. It has been very well described by two famous Frenchmen.
The first of these is Victor Hugo. The French Government has cited his novel Les Travailleurs de la Mer, written around 1866, when Victor Hugo lived at Guernsey. In the introduction to this book the following words also deserve to be quoted, and I have myself italicized some of them : "The Channel Islands are pieces of France that have fallen into the sea and have been gathered up by England" (p. XXI). "The archipelago is made up of four islands .... without mentioning the islets" (p. XXI). "Facing France, the indentation of the Jersey coast at St. Aubin seems like the opening of a hive towards which these two scattered but separate groups, the Grelets and the Minquiers, appear to swarm" (p. XXV). Hugo noted that the local population were Normans and that they had not forgotten that it was Normandy that had conquered England. He might have said that there was no English domination but rather union with England. He also pointed out that the English called the archipelago the "Norman islands" and that the French called them "English islands" and Hugo himself called them "îles de la Manche" or, in English, "Channel Islands".

The other piece of evidence is supplied by the famous geographer, Élisée Reclus. I shall take the liberty of changing the order of the words in his proposition (Nouvelle Géographie ztni7ierselle, ed. 1881, Vol. II, p. 639), without altering their meaning, using the same words as he did, some of which I have italicized : "Jersey, Guernsey, Alderney and neighbouring archipelagos", those lands which "the English call the Channel Islands", belong "politically to Great [p109] Britain" although they are "a natural dependency of French Normandy".

23. Conclusion.—I should like to add two clarifications to the operative clause of the Judgment.

The first relates to the possibility of appropriating the islets : I would refer to "present or future appropriation". The extent to which the rocks are "capable" of appropriation is unspecified and the Court cannot determine this point. It is a matter which cannot be fixed in advance. Who could have foreseen in the not too distant past that France would some day plan to utilize tidal power at the Minquiers for the production of electrical energy ?

The purpose of the second clarification is to safeguard :

(a) The exercise of fishery rights in the waters of the Ecrehos and the Minquiers, in accordance with the Agreement of January 3oth, 1951 (Annex A 23 to British Memorial), signed by the representatives of France and the United Kingdom and negotiated by them at th2 same time as the Special Agreement of January 29th, 1950. The present Judgment in no way affects that Agreement.

(b) The possibility of English co-operation in carrying out the French Government's project for the production of electrical energy by means of works in the Minquiers region, in accordance with the declaration made by the British representative with the authorization of his Government (Oral Arguments). I am willing to believe that no judge nowadays can blindly follow the obsolete rule fiat justitia, pereat mumdus (Ripert, La règle morale dans les Obligations civiles, passim). Still less can we be bound by such a rule in the field of international law whose principles, as it has been said, may represent the consecration of the former natural law. And I would have been pleased to place on record the generous declarations of the representative of the British Government.

(Signed) Levi Carneiro.

 
     

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