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Anglo French PDF
Anglo French PDF
arbitration
K. B. Berry,
*
1.
2.
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prejudice to either Government's position on the outer limits of the shelf. The
Tribunal noted that extension of the boundary to this point might cause future
problems if Ireland sought to extend its continental shelf boundary into the Atlantic.
However, the Tribunal found that it was not competent to deaJ with such a
hypothetical situation: see Award paras 23-28. The International Court in the North
Sea Continental Shelf cases (hereinafter referred to as the North Sea cases) had not
been so timid, and had expressJy stated in its judgment ICJ Rep 1969 at 54 that states
should take account of the effects 'actuaJ and prospective' of their deJimitations
between adjacent states in the region. It might also be noted that Brown, E. D .. in
The Legal Regime of Hydrospace (1971), p 7, feJt that the limit of expJoitability
criterion in the 1958 Convention wouJd probabJy be insufficient 'to found a claim by
the United Kingdom to an AtJantic Shelf out to a depth of 800 metres'. See also pp
22-23.
See Award para 33. One of the French reservations reJated to the 'Bay of GranviHe'.
the depression in the French coastline within the arms of which the ChanneJ IsJands
are Jocated. Britain objected that the term 'Bay of GranviHe' had no precise geographicaJ meaning. It is strange that France did not point to an agreement of 1839
between it and the United Kingdom whereby areas of the Bay of GranviJJe were
reserved for French oyster fishermen: see Prescott, J. V. R .. The Political Geography
of the Oceans (1975), p 143; and also Award para 74.
See Award para 34. In addition to the United Kingdom. Canada. the United States.
Spain and Yugoslavia have also Jodged objections to the French reservations.
Canada's objection, Jodged in 1970. was to the reservation insofar as it related to
areas where there were 'speciaJ circumstances'. This was obviously to protect the
Canadian position with regard to the delimitation with France over St Pierre-etMiquelon, concluded in 1972. The Tribunal in the present case made severaJ references to that delimitation.
Award paras 59-62, 64, 71-75.
9.
142
25.
26.
144
Proportionality
The Tribunal rejected any notion that proportionality (of the length of a
State's coastline to the area of shelf accruing to it) was necessarily a
major factor in delimitation. 27 On the contrary, it found that disproportionality could be the important factor. Stressing equity and citing once
again cases of coastal irregularities, the Tribunal said that it was important to consider whether the proportion of shelf allotted to a State had
been inequitably affected by such irregularities. 28 Drawing on the North
Sea judgment, the Tribunal also emphasized that its function was not to
refashion nature in order to give one State with a small coast a similar
area of shelf to that of a State with a large coastline. Rather the Junction
of delimitation was to remove the disproportionate and inequitable effects
of irregularities or peculiarities where otherwise the attribution of shelf
might have been comparable under the geographical facts. 29
While the Tribunal in the present case looked at factors relating to the
status of the Channel Islands when delimiting the French sector of the
shelf, it was nonetheless apparent that the virtual equality of the lengths
and facades of the English and French coasts was a major determinant in
limiting the shelf awarded to the Channel Islands. Although this may be
justifiable in law, it does not answer the geographer's criticism as to the
selection of what is natural or unnatural in judging whether there are
disproportionate effects flowing from treating 'unnatural' situations in a
particular way.30 For instance, on what criteria maya coastline without
islands be judged as natural while one with islands would necessarily be
peculiar? The answer in this case would appear to be purely political in
that the islands are under the sovereignty of another state.
Juridical Concept of Natural Prolongation
Perhaps the most significant concept rejected by the Tribunal was directly
related to natural prolongation. While the continental shelf was seen
geographically as being the natural prolongation of a State's land territory
under the sea, the Tribunal refused to recognise any absolute legal effects
as flowing from the situation. 31 The question arose in relation to the
Channel Islands sector. The United Kingdom argued that the Islands
generated their own shelf (as provided by the 1958 Convention) and that
the natural prolongation of this shelf northward merged with the natural
prolongation of the United Kingdom's shelf southward from the English
mainland. The effect, in the British view, was thus to deflect the median
to include the Channel Islands. 32 The Tribunal had earlier held that the
27.
28.
29.
30.
31.
32.
The Court in the North Sea cases (lCJ Rep 1969. pp 53-4) noted that 'reasonable
degree' of proportionality should be one of the objectives of a just and equitable
delimitation.
Award para 101.
Ibid.
See Prescott, op cit. p 169; Friedmann, W., 'The North Sea Continental Shelf Cases:
a Critique' (1970) 64 AJIL 229 at 237,239.
Award paras 191. 194.
Award paras 168, 169.
delimit ation in this sector was govern ed by custom ary interna tional
law
(Le., 'equita ble princip les ').
The Tribun al stated that the fact that in interna tional law the concep
t of
the contine ntal shelf was a juridica l one meant that its scope
and the
conditi ons for its applica tion were not determ ined exclusi vely
by the
physica l facts of geogra phy but also by legal rules. 33 Moreo
ver, the
inclusi on of 'specia l circum stances ' in Article 6 and the empha
sis on
'equita ble princip les' in custom ary law implied that the force
of the
princip le of natural prolong ation was not absolu te but may be subjec
t to
qualific ation in the light of all relevan t consid eration s in particu
lar
cases. 34 Accord ingly the Tribun al found that the princip le of
natural
prolong ation could not be said to require that the shelf to the north
and
north-w est of the Channe l Islands should be consid ered as automa
tically
and necessa rily appurt enant to them rather than to France . 3s In the
event,
the Tribun al continu ed the median line throug h the Channe l, but
allocat ed
an area of shelf to seawar d of the Islands measur ed to 12 miles
from the
territor ial sea baselin es, and thus formin g an encla ve on the
shelf of
France . 36
Equalit y of States
One remain ing conten tion of France was also rejecte d, namely
that, aJJ
States being equal as politica l entities , they should share equally
in
commo n contine ntal shelf areas. The Tribun al said that not only
would
this amoun t to re-fash ioning of nature (reject ed in the North Sea
Cases)
but it would have 'vast implica tions' (implie dly unacce ptable)
for the
divisio n of the contine ntal shelf among the States of the world. 37
On the
other hand, the Tribun al found it necess ary to look at the equalit
y of
States in their geogra phical relation t9 the shelf. 38 In this
case, the
coastli nes of France and the United Kingdo m in the delimit ation
area
were almost equal, and thus the areas of shelf accruin g to each would
also
be approx imately equal were it not for the presen ce of the
Channe l
Islands . The resultin g imbala nce and prima facie inequit y caused
by the
presen ce of the islands was therefo re cited as yet anothe r reason
for not
39
grantin g them full effect.
Islands , Trough s as Special Circum stances
Partial effect was given to the islands after a survey of all the
'releva nt
consid eration s' concer ning them. Many of the islands were large,
with
substan tial popula tions. Moreo ver the Bailiwi cks of Jersey and Guerns
ey
had a long history of semi-in depend ence, with their own legislat
ures and
33.
34.
Ibid.
35.
36.
37.
38.
39.
146
45.
46.
Troughs 52
To the west of the Channel Islands there exists a trough known as the
Hurd Deep and a fault line running in a south westerly direction, designated the Hurd Deep Fault Zone. In its submission to the Tribunal, the
United Kingdom accepted a median line boundary in the western Channel
sector only on the condition that the Tribunal could not designate the axis
of the Hurd Deep Fault Zone as being a more suitable boundary.53 Use of
that axis would have resulted in moving the boundary to the south of the
median, to the detriment of France. It should be noted that the average
depth of the Hurd Deep is 100 metres while the surrounding shelf
averages 35 metres but slopes downwards to 100 metres at the approaches
to the Atlantic. 54
The Tribunal refused to vary the median line on the basic ground that
47.
48.
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53.
54.
148
the Hurd Deep and Fault Zone did not disturb the essential geological
continuity of the continental shelf throughout the entire Channel area and
Atlantic sector. 55 The Tribunal stated that the axis of the Fault Zone was
placed where it was simply as a fact of nature, and there was no intrinsic
reason why a boundary should be placed along that axis and justified as
a 'special circumstance' under Article 6. 56 Nor would recourse to the
median be creative of inequity in customary law. In reaching its decision,
the Court took into account the fact that Britain had been prepared to
disregard the much deeper Norwegian Trough in the North Sea delimitations, and also that the trend in State practice was away from treating
troughs alone as circumstances justifying variation of equidistance. 57
Implications for the Law of the Sea Conference
Before proceeding any further, it would be well to remember that the
conclusions of th'e Tribunal in the Anglo-French Arbitration are only
directed to the facts of that particular case, are limited to continental shelf
delimitation, and are only binding on the two States party to the Arbitration Agreement. 58 However, in view of the Court's specific references to
the RSNT (and, by extension, the ICNT) of the Law of the Sea Conference, and in view of the tendency of nations to rely on such rulings, the
opinions of the Tribunal in this case will doubtless be influential in
possible changes in the delimitation policies of some participants in the
Law of the Sea Conference. And, in view of the identical wording of
Articles 74 and 83 of the ICNT, such influence could extend not only to
continental shelf but also to Exclusive Economic Zone delimitations. 59
Two aspects of the Case are of major relevance to current negotiations
in the Law of the Sea Conference: (i) the emphasis on equitable principles
and (ii) the gloss placed by the Tribunal on the principle of natural
prolongation.
Article 83 of the ICNT provides as follows:
'Delimitation of the continental shelf between adjacent or opposite
States
1. The delimitation of the continental shelf between adjacent or
opposite States shall be effected by agreement in accordance with
equitable principles, employing, where appropriate, the median or
equidistance line, and taking account of all the relevant
circumstances.
2. If no agreement can be reached within a reasonable period of
time, the States concerned shall resort to the procedures provided for
in Part xv.
3. Pending agreement or settlement, the States concerned shall make
55.
56.
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59.
Ang~o-French
arbitration
149
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63.