1977

AT

English Channel Arbitration Delimitation of the continental shelf (UK/France) 18 ILM 397

Parties disagree over the Applicable law. France contended that, though a party to the 1958 Geneva convention on Continental Shelf she had entered reservations to article 6 to which the UK had objected, with the result that the convention, or at leas art 6, was not in force between the parties. The applicable law therefore CIL as reflected in the North Sea Continental Shelf Cases, subsequent state practice and the work of UN Conference LOS III. In the alternative if the court were to find the 1958 convention applicable, the channel island sector and the Atlantic sector exhibited ‘special circumstances’ so to exclude the equidistance method. France reservations: 1. In the absence of a specific agreement France will not accept that any boundary of the continental shelf determined by the application of the principle of equidistance shall be invoked against it. UK argued that although attached to art 6, it was a reservation to 3, 4, or to the rules of CIL regarding the use of straight baselines therefore is inadmissible 2. (1…) if it extends beyond the 200 metre isobath UK argued that although attached to art 6, it has to be read jointly to the interpretative declaration of art 1, since they are connected, and since reservation to 1 is inadmissible under 12, therefore reservation to 6 is inadmissible 3. (1…) if it lies in areas where, in France opinion, there are special circumstances UK did not contended it, but said that it was not reservation but interpretative declaration Resolution 1. Constructed according to the natural meaning of its terms 1, is a general reservation designed to protect France, in absence of agreement, against continental shelf boundary delimited by application of the equidistance principle and by reference to the straight lines baselines established after 1958. It is a true reservation and a reservation to art 6, not to CIL related to straight baselines. The reservation does not say to protect France against the use of SB by other states in any context other than the delimitation of the continental shelf, when entering into a new obligation, under an entirely new convention, with respect the use of equidistance method in the delimitation of continental shelf, no rule of IL precluded France from formulating a reservation regarding the role of straight baselines in the application of that method as a condition of its acceptance

2. Constructed according to the natural meaning of its terms 2. Whether or not a link is thought to exist between the consideration of the interpretative declaration of 1 and this reservation, both are expressed as distinct acts having different objects. What ever the motive that inspired the reservation, it relates in substance to art 6, so it is not incompatible with art 12 of the convention 3. Although this reservation doubtless has within its elements of interpretation, it also appears to constitute a specific condition imposed by France on its acceptance of the delimitation regime provided for art 6. This condition, according to its terms, appears to go beyond mere interpretation; for it makes the application of the regime dependent on acceptance by the other state of the France designation of the areas involving ‘special circumstances’ regardless the designation under art 6. 2.1.d VCLT does not limit reservation to statements purporting to exclude or modify the actual terms of a treaty, it also covers statements purporting to exclude or modify the legal effects of certain provisions in their application to the reserving state. This is precisely the purport of this reservation, and so it is a reservation and not an interpretative declaration. (60) France alleged that because of reservation art 6 did not apply at all, UK that reservations are not opposable to it so art 6 applies (61) The effect of the rejection [by the UK] may properly be said to render the reservation non-opposalbe to the UK, just as the effect of the French reservation is to prevent the UK from invoking the provisions of art 6… The combined effect of French reservation and their rejection by the UK is to render art 6 inapplicable as between the two countries to the extent, but only to the extent, of the reservations and this precisely the effect envisaged in 21.3 VCLT indicated by the principle of mutuality of consent. (62) the fact that art 6 is not applicable … does not mean that there are no legal rules to govern the delimitation of the boundary in areas where the reservation operates. On the contrary, as ICJ observed in North sea Continental Shelf cases, ‘there are still rules and principles of law to be applied’ and these are the rules and principles governing delimitation of the continental shelf in general IL