caseName: Minquiers and Ecrehos (France/United Kingdom)

procedure: (including the text of the declaration of Judge Alvarez)

reportsCitation: I.C.J. Reports 1953, p. 47

title: Judgment of 17 November 1953

text: 56 MIKQUIERS AND ECREHOS CASE (JUDGMEXT OF 17 XI 53)

text: 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. I t 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, iacluding the Islands. The French Government further relies on a Judgment of April &th, 1202, of the Court of France and contends that King John of England was thereby condemned to forfeit al1 the lands which he held in fee of the King of France, including the whole of Kormandy. 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. I t 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. I t is for the French Government to establish that it \vas so replaced. The Court will later deal with the evidence which that Government has produced with a view t o 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,

text: 13 was intended t o produce legal effects a t t h a t time, it remained in any case inoperative with regard t o the Channel Islands. To revive its legal force to-day by attributing legal effects t o i t after a n interval of more than seven centuries seems t o lead far beyond a n y reasonable application of legal considerations.

text: The vietv is expressed by the French Government t h a t the dismemberment of the Duchy of Normandy, which in fact occurred in 1204 tvhen Continental Normandy was occupied by t h e King of France, has legal consequences in the present dispute. I t is said t h a t if the United Kingdom Government is unable t o establish its claim t o the Ecrehos a n d the Minquiers, the title t o these islets must be considered a s having remained with France since 1204. B u t since t h a t time there has been a further development in t h e territorial position. Many wars and peace settlements between t h e two States succeeded each other during the following centuries. The Channel Islands, or some of them, were occupied temporarily b y French forces during some years immediately following the events in 1204, as well as for brief periods in the next two centuries, a n d Continental Normandy was reconquered by the English King and held b y him for a long period in the fifteenth century. I n such circumstances i t is difficult t o see why the dismemberment of the Duchy of Normandy in 1204 should have the legal consequences attributed t o i t b y 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, b u t the evidence which relates directly t o the possession of the Ecrehos and Minquiers groups.

text: Before considering this evidence, the Court will examine some questions tvhich concern both groups. On August znd, 1839, France and the United Kingdom concluded a Convention concerning fishery, and particularly t h e oyster fishery between the Island of Jersey and the neighbouring coast of France. I t is common ground between t h e Parties t h a t this Convention did not settle the question of sovereignty over t h e Ecrehos and the Minquiers. B u t the French Government has submitted contentions which t o a certain extent affect t h a t question. These contentions, which were modified during the proceedings, were a t the public hearing on October 8th, 1953, formulated a s follows, a s part of the Submissions presented on behalf of t h a t Government : "(4) that by the Convention of August znd, 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 ; 14

text: M I N Q U I E R S AND E C R E H O S C A S E (JUDGMENS O F I7 XI 53)

text: (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 znd, 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 end, 1839".

text: These contentions were based on the first three Articles of the Convention, and particularly on Article 3. By Article I a n 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 t h a t "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 :

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

text: 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 a n 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 the manifestation of sovereignty, notwithstanding such an agreed common fishery zone, provided of course that the common fishergin this zone would not in any way be impaired thereby. The abovementioned 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. I t 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 zyth, 1888, and July ~ j t h , 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 a t 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.

text: 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 zgth, 1950, and that therefore this date should be considered as the critical date, with the result that a l 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 al1 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. I n 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 to sovereignty arose, and it has since continued without interruption and in a similar manner. I n such circumstances there would be no justification for ruling out al1 events which during this continurd development occurred after the years 1886 and 1888 respectively.

text: There is also another point concerning both groups which t h e 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 :

text: "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."

text: 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.

text: 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.

text: The Court will now consider the claims of both Parties t o sovereignty over the Ecrehos and begins with the evidence produced by the United Kingdom Government.

text: 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 t o 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 17

text: 61 IIISQTJIERS -1SD ECREHOS C-1SE (JUDGXEST O F I 7 X I j3)

text: t o the rights of the Duke after the occupation of ContinentaI Xormandy in 1204, the Abbey "passed under his protection, a s did the Ecrehos, whose overlord he became". This contention renders i t necessary t o consider the Charter of 1203 more closely. I t provided the follotving :

text: sisse & 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, &

text: omnium antecessorum meorum, insulam de Escrehou integre, ad

text: ædificandam ibidem basilicam in honore Dei & beatæ Mariæ, ita u t 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).]

text: [ T r a n s l a t i o n ]

text: granted and given and by my present charter have confirmed t o God and to the church of St. Mary of Val-Richer and to the monkç 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 al1 my ancestors, the island of Escrehou 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. 1 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 C o u t u m i e r de N o r m a n d i e of the thirteenth century, chapters X X V I I I and X X X I I (de Gruchy edition, 1881, pp. 90-91 and 98), t h a t land held in frankalmoin was a tenure, a n d t h a t such a grant in frankalmoin t o a n ecclesiastical institution did not have the effect of severing feudal ties. The text of the first part of Chapter X X X I I is as follows:

text: [ T r a n s l a t i o n ]

text: "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. Wone 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 18 they hold of them ; and their lords shall exercise their justice and levy their rights in the lands so put in alms, notu-ithstanding."

text: This text shows that the grantor retained the "patronal domain" ( d o m i n i u m patronale). According to this ancient Korman 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 t h a t Piers des Préaux had not in the Charter reserved any feudal service and that he therefore had not created an? feudal tenure. I t seems that no such condition for the creation of a "teneure par ornosne", or frankalmoin, was required by the ancient Xormari 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

text: souls of myself and of my father and mother and al1 my ancestors", this could, in view of the custom a t 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 tefzz~ra.

text: 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 aypointed 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.

text: The object of the Quo Warranto proceedings of 1309 mentioned

text: above was to enquire into the property and revenue of the English King. These proceedings, which were numerous, took the form of calling upon perçons 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 a&docatio 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 r e m , inherent in the soil and inseparable from the territory of the fief to which it was attached. (Grand Coutzwnier de Normandie, Chapter CXI, de Gruchy edition, p. 259 ; rlfirernens et Jugiés d' Eschequiers, published by Génestal and Tardif, 1921, p. 7, 5 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 i t 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 Protection, which, on August 18th, 1337, shortly before the outbreak of the Hundred Years War between England and France, ivere 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 I n s u l a 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 IVarden 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. I t is explained that these wheat-rents, which formerly 20 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 mias 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 motl-ier church was situated on foreign territory. The Court cannot find that the Parties have justified their respective contentions in this regard. I t 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 chape1 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. I n 1706 fishermen from Jersey proceeding to the Ecrehos came across a Frenchman there who had just fled from police prosecution i n France, and a t 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 a s an exercise of jurisdiction in respect of the Ecrehos. I t was a measure which would naturally have been taken against any fiigitive arriving in Jersey who was a national of another State.

text: I n 1754 plague broke out a t Rouen and, as a sanitary measure, t h e States of Jersey issued an Act providing inter alia:

text: "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."

text: Both Parties have invoked this Act, but its text is ambiguous. It may signify a ban on traffic from France t o these islands and rocks, thereby involving a manifestation of authority in respect lof them. But the text may also mean that traffic to Jersey from France, as well as from these islands and rocks is forbidden, as i n a previous prohibition in 1720. The prohibition could then be explained b y the fact that it was impossible t o 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 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 a t 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, perçons 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.

text: In 1884, a custom-house was established in the Ecrehos b y 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 ~vhich throw light upon the dispute, it should be mentioned that Jersey authorities have made periodical official visits t o 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.

text: 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 hmbassador in London addressed to the Foreign Office a Note, dated June ~ z t h , 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 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. I t 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 historiqz~es et géologiques".

text: 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 wl-iich 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. I n such circumstances it must be concluded that the sovereignty over the Ecrehos belongs t o the United Kingdom.

text: The Court will now consider the claims of both Parties to sovereignty over the Minqz~iers and begins with the evidence produced by the United Kingdom Government.

text: 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 sl-iipwrecked a t the Minquiers. The first two entries state that certain wreckage of a ship, believed to belong to Honfleur, and lost a t 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 24

text: 68 31I'iQUIERS AXD ECREHOS C.1SE ( J U D G ~ ~ E ' U ' T O F I 7 X I j3)

text: 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 Coutz~mier 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 : "Al1 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 P\lanorial Court of Noirmont dealt with these two cases of wreck f o u ~ d a t the Minquiers. I t 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 a t 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.

text: 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. I t 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 Committee 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 a t the Minquiers for the purpose of helping and saving persons 2 5

text: M I S Q C I E R S AXD ECREHOS C-ISE ( J V D G ~ ~ E X T O F 1.7 S I 53) 70 The evidence thus produced by the United Kingdom Governmeilt shows in the opinion of the Court that the Minquiers in the begiilning 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 cei1tur.ihave exercised State functions in respect of this group.

text: The French Government has, in addition to the alleged original feudal title, invoked certain facis. I t contends that the Biinquiers have been a dependency of the Chausey Islands, ~vhich, according t o the view of that Goverilment, have always belongetl. to France, and which in 1022 n-ere granted b y the Duke of Sormandy t o the Abbey of Mont-Saint-Michel. I t has referred to a Papal Bull of 1179 which confirmed this Abbey in al1 its possessions, among which the Bull mentioned "totanz i~zsztlam de cause cz~nz pertine~ztiis suis". But from this general clause about appurtenances to the Chausey Islands no deduction can be made with regard t o the status of the Minquiers. The United Kingdom Government has, on the other hand, contended that the Chausey Islands belonged t o England until about 1764. But the Court does not, for the purpose of deciding the present case, consider it necessary to determine a t what time the Chausey Islands became a French possession. I n 1784 a French national submitted to the French NIinister of Marine an application for a concession in respect of the Ninquiers, a n application which was not granted. The correspondence between t h e French authorities, relating t o 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. I n 1831 a French national made a hydrographical survey of the Minquiers group ; but a British Naval officer, on instructions from t h e British Admiralty, surveyed both the Minquiers and the Ecrehos as early as 1813-1815. The French Government further contends t h a t since 1861 it has assumed the sole charge of the lighting and buoying of the Minquiers for more t h a n 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. I n 1888 a French mission, appointed t o make a hydrographic survey of the islets, erected provisional beacons on several of them to facilitate the survey.

text: The French Government has also relied on the fact that the French Prime 3~linister and the Air Mjnister in 1938 travelled to t h e Minquiers in order to inspect the buoying, and t h a t a Frenchman

text: in 1939 erected a house on one of the islets with a subsidy from the Mayor of Granville. I t 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 ~ z t h , 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 ~vhich 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. I t is argued by the French Government that this admission cannot be invoked against it, as it \vas 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 ~ z t h , 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 t th, 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 al1 risk of the occurrence of some untoward incident on the spot, will restrain RIonsieur Leroux from proceeding further with his building operations". No reply appears to have been

text: 28 given by the French Government ; but the construction of the house was stopped. That it was stopped a t 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".

text: I n 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.

text: For these reasons,

text: unanimously,

text: 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.

text: Done in English and French, the English text being authoritative, a t 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.

text: ( S i g n e d ) J . G. GUERRERO,

text: Vice-President.

text: ( S i g n e d ) GARNIER-COIGNET,

text: Deputy-Registrar.

text: 73 MIXQGIERS AKD ECREHOS CASE (JCDGMEKT O F I7 XI 53)

text: Judge ALTAREZ declares that he concurs in the conclusions reached in the Judgment of the Court but for different reasons. I n his opinion, it is clear from the ~vritten 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 nrhich exists a t the present day and which is in conformity with the new conditions of international life, and t o develop this law in a progressive spirit.

text: Judges BASDETAKT and CXRSEIRO, 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.

text: (Initialled) J. G. G.

text: (Initialled) G.-C.


court: icj

doctype: dom

caseName: Nottebohm (Liechtenstein v. Guatemala)

decisionType: judgment

procedure: Preliminary Objection (including the text of the declaration of Judge Klaestad)

publisher: International Court of Justice

title: Judgment of 18 November 1953

text: I N T E R N A T I O N A L COURT O F JUSTICE

type: rubrik

text: Sovember I 8th General List :

type: stycke

text: YEAR 1953

text: No. 18

text: November 18th, 1953

text: NOTTEBOHM CASE

text: (1,IECHTENSTEIN v. GUATEMALA)

text: PRELIMINARY OBJECTION

text: ]urisdictioîz O/ tlze Court.-Co?tzpzrlsor~~ j~~visdiciio?c arccPtr/i 61' Respondent State b y Drclaratio?~ valid for fixcrl 9erzod.-Efjcct of e x p i r y of this period after filing of Applicatio~~.-Coî<~,t competclzt to adjudicate upo?z challenge to its jurisdictioiz i n accovdn~îce wzth general internatio.nal laev and by vivtzte 'bf -4rticle 36 ( 6 ) of Statute.- Statutory power not confined to puestion whefhrv the dispute i s w i t h i n eategories enurvzerated i n Article 36 (z).-Lapse of Declaration after C O Z L Y ~ has been properly seised does not afject jilvisdictio~z O! Convt.

text: JUDGMENT

text: Present : Presidenf Sir ARNOLD MCNAIR ; Iz7ice-Presideîtt GUER-

text: RERO ; Jz~dges ALVAREZ, BASDEVAXT, HACKWORTH, WINIARSKI, KLAESTXD, BADAWI, READ, HSU MO, LEVI

text: CARNEIRO, ARMAND-'C'GON ; D e p ~ ~ t y - K e g i s t r a r GARNIER-

text: COIGNET.

text: I n the Nottebohm cnsc,

text: the Principality of Lit~hteristein,

text: represented by : 1)r. Erwin H. Loe\venfeld, I,J,.R.,

text: ris Agent,

text: nssisted by : Professor Georges Saust11--Hall. Professor of Iiiteriiational Law of the University of Geneva, SIr. E. Lauterpacht, llembcr of the English Bar,

text: as Coiinsel,

text: the Kepublic of Guatemala,

text: composed as above,

text: adjudicating on the Preliininary Objection of the Go\-criiment of Guatemala,

text: delivers the followilzg Jzldgme~it :

text: On Ijecernber 17tl1, 1951, the Government of the Principality of Liechtenstein filed ail Application instituting proceedings before the Coiirt against the Kepublic of Guatemala. This Application referred t o the Declaration of January 27th, 1947, whereby the Government of Guatemala accepted the compulsory jurisdiction of thch Coiirt in accordance with Article 36 of the Statute ; it also referretl to the Declaration deposited on ïilarch agth, 1950, with the Secr(?tai-y-General of the United Nations, by which the Principality of I>iechtt:nstein became a P a r t y t o the Statute of the Court, and t o the Ileclaration dated lslarch ~ o t h , 1950, and deposited on March zgth, whereby the Government of Liechtenstein accepted the compulsory jurisdiction of the Court in accordance with Article 36 of the Statute. T h e Application stated t h a t >Ir. Friedrich Nottebohm wns a natioiial of Liechtenstein a n d t h a t the (iovernment of Guatemala hnd acted towards his person a n d property in a manner contrary to international law, and submitted the follo\ving claims : "(a) that the Government of Guatçmala has acteci contrary 1:) international law and has jncurred international responsibilitv by the unjustified ctetention, internrnent and exp~ilsion of

text: Mi-. Nottebohm and by the sequestration and confiscation of his property ; (b) that the Go~ernment of Guatemala is bound to restore to 11Ir. ?I'ottebohm his moïable and immovable assets as shown in the list appended to the Note of G July 19j1 (Annex S o . I) ; (c) that the Government of Guatemala is bound to grant full compensation to &Ir. Nottebohm in respect of such property as it is not in a position to restore t o him owing to physical destruction or for other reasons ; ( d ) that the Government of Guatemala is bound to pay full compensation for the use of and profits derived from the sequestrated and confiscated assets and properties as well as for damage, depreciation and other losses sustained in respect of the said assets and properties as the result of or in connection with their seqiiestration or confiscation ; (e) 'chat the Government of Guatemala is boiind to pay full compensation for the unlawful detention and internment of Mr. Nottebohm as well as for preventing him, in a rnailner amounting t o unjustified espulsion, from returning to Guatemala ; (f) that the Court shall determine the amount of compensation due to the Government of the Principality of Liechtenstein under (c), ( d ) and ( e ) above."

text: Piirsuaiit t o ,irticle 40, paragraph 2 , of t h e S t a t u t e , t h e Application \vas coinmunicated t o t h e Government of Guatemala a n d , pursuant t o paragraph 3 of t h e same Article, other Members of t h e United Nations a s well a s non-member States entitled t o appear before t h e Court were informed of it. T h e G u a t e n ~ a l a ? i Declaration of J a n u a r - 27th, 1947, \vas i n the follokving t e r m s :

text: [Translation jrom tlze Spa~zislz j

text: "The Go\rerriment of Guatemala declareç that, iii accordance with Article 36 (ii) and (iii) of the Çtatute of the International Court of Justice, it recognizes as compulsory, i p s o facto and without special agreement, in relation to any other State acceptiiig the same obligation, aiid for a period of five years, the jiiristliction of the Court in al1 l e p l disputes. This c1eclar:~tion docs not cover the dispiite bethi~een England and Guatemala conccrning the restoration of the territory of lklize, which the Govrrnmeilt of Guateinala would, as it has proposed, agree to submit to the jiidgment of the Court, if the case were deci<ieci cx eqrto c.t b o t ~ o , in :iccordance with Article 3S (ii) of t!ic sait1 Statiitc.

text: T h e Declaration of 1,icchtcnstciil of March ~ o t h , 1950, \vas i n tht, follon7ing terms :

text: "The Go\,ernment of the Principality of Liechtenstein, duly authorized by His Serene Highness, the reigning Prince François Joseph I I , in accordance with the Order of the Diet of the Principalit;; of Liechtenstein dated 9th lirirch rq-io, which caille into force on 10th Jlarcl? 1950, declares by these presents t h a t the Principality oi Liechtenstein recognizes as compulsory ipso incto and ivitliout special agreement in rei.tion io any other Çtate accepting the snme obligation, the jurisdiction of the International Court of Justice in al1 disputes coilcerniriç : ('a) t!ie interpretation of a irenty ; l b ) a n y question of international la\! : (c) tiie existence of any fact n-liicli, if rctaùlished, woulci coi?st.itate ;i breach of an intii:.r.ntional obiigation ; ici) tlic i-ia.ture aiid estent of the :e!-~aration to be niac!i- foiiiic breach of an international ohligatioii.

text: 1 tie present Declai-ation, .ivhich is niade untic:- Article 3h of the Ytatute of^ the Internationai Court of jiisticii, silaIl tnke effect from the date on \?-hich t!ie Principality beco~nes a Party t o the Statut? ;!ni! shall t a l x effe:.! 2s long ac th? I.jeclarsiic~ri has 1101 been rel.oi;ed suhjcct to one year's noticr.

text: On beliaif o: the I;o\.èi-riiii:;nt of the Principaiity i ) f Ï~ic~ciztenii:~in : Head of :.~o\.crriincii~,

text: (Cigfzen'j .:. I'I~IcK."

text: \Vithi11 tiic îii!iic -iiiriit fised 5 y ordi.r of .j;inuary zbtii, rr) j 2 . wiiicii $vas estcncleti by Order of >furcil ;i h, a g j z , t h e Go\.ernrncnt nf Liccl~tcnstein 5lcil its Jlèrnuria:. ,% coinrririnication signed by cXc Ministzr for Foreign \ff:i!!-': of C;iiatc.mriia. datcil S e p t e m b e i q i h , 1952, u n d addressed t o t h e PI-esii!cn~ of ~ h e Court. \\-as rccc~i:,cd in tiic iiL3=i:';r>- o n S ~ p t e m ber 1 j l l i . 195.2, bcfoïc the c x p i ï s of :he ti~ile-iln?:? iised !,>7 t h ?

text: Order :)f 3iarçli /::il, 1952, for tiie filing (;f t h c ic?uritc.i--Jleino:-irLI

text: of th{, (I(:.,:irniiicnt of (;uaternaia. This d o c i i ~ i l c ~ i t , ; ~ f t r r ïcferring tc t!ic iiiia'ic~nialaii Declaration of j a n i r x r - 2 7 t h , 1q47, arid t certain 3otc.s csclianged between ~ l i i ~ ';finistri- for ForL>igji Mi"i.ir~

text: of (;ua;cmala and the Secrctai-iat of i-licl B7i;:red Sail:!ns, \\hicl:

text: r e l a t d to thr d a t e of t h e e n t r y iiito farce of th? said Ilcci:~rrttioii, set o u t the iolloxving contentions :

text: "((1) That the Republic of Guatemala recognized the conipulsor~jilrisdiction of the Court, but not in a n absolute and genera! form, since this would 11a.i.e inlplied ai: indefinite submission to the dctrirnent of its so.i.ereignty and iiot in accordrince with

text: 7 its interest, if by reason of unforeseen circumstances the international situâtion cllanged ; (b) î l i a t it accepted this recognition for a period sufficiently long to enable it, during this period, to elucidate and settle legal disputes which had arisen or which might arise, and sufficiently short to al-oid the indefinite prolongation of a judgment or the submission of future questions, the genesis and circunlstances of ~vliicli could not be foreseen and would affect future goverilments and perhaps future generations of Guatemalans ;

text: (c) That during the period of five years which began on January 27th, 1917, and expired on January 26tl1, 1952, as u p to the present date there has not existed and does not exist any legal dispute, since Guatemala has not entered into any lawsuit contesting any claim ; (d) That the time-limit provided for in its Declaration of January 27th; 1947, expired with the last hour of January 26t11, 19j2, and that from this moment the International Court of Justice has no jurisdiction to treat, elucidate or decide cases which would affect Guatemala, except if Guatemala prolongs the duration of its declaration, submits itself by depositing a new declaration with the Çecretary-General of the United Nations, or signs a special protocol of submission with any other interested Çtate ; j e ) That in the absenct- of these last conditions, the Government of Guatemala 13, iiiucli to its regret, unable for the moment to appear hefore the International Court of Justice 111 any given case."

text: T h e above-mentioned cornnlunication then arguod t h a t t h e power conferred o n t h é Court by Article 36, pâragraph 6, of i t s S t a t u t e , t o determine disputes relating t o its ju:-isdiction, was applicable only t o questions a s t o whether a giX*.en dispute fell w i t h i ~ i t h e categories enumerated in paragraph 2 of t h a t Article, a n d went on t o make t h e following statements :

text: jTrunslatio7z from the Spanish]

text: "1. 'I'hat the Govei-nrnerit of the licpublic of Guaten2iiin 1:as taken note of the cl2iim prescritecl I)y the Government of the Priricipnlity of Liechtenstein on s u p p o s ~ d official acts to the alleged detriment of Mr. Iiederico Kottebohrn. II. That this Ministry is quite willing to begin negotiationç with the Government of the said Principality, ~vitli a T'~ew . ' t o arriving a t an amicable solution, eitl-ier ir? the sense of a direct settlement, an arbitration, or judicial çcttlemeiit, with r; preference for the last ~nentioned by means of the High Tribunal presided o17er by Your Excellency. III. That in the present circumstances, since the jurisdictioii of the International Court of Justice in relation to Guatemala has terminated and because it woiiid be contrary to ilie domestic laws of tIiat couiitr;-, ml; Go\.eminent is unable t o appear r.nd t o contest the claim which has beeiî made. Il'-. T h a t as a consequeiice, it caiinot, for the time being, a p ~ o i n t an Agent in ille case iii question. 1-. T h a t the attitude of Guatemala is not one of default or of \,olui~tai.!- absence, b u t , on the conti-arp. is based on great respect for tlic domestic laxvs in force in oui- country- a n d t h e need for enforcing tliern, and for tlic ternis of t h e S t a t u t c of the Court and of t h e Giiatemalan cleclnration of Januai-'- 27tli. 1(]4/, formulated in accorclancc ~ r i t l i the said Statute. 1.1. 'Tliat in no cas? should al1 or an>- part of this Note be coilsiclcrcd a s a :-:1,1!. :iffirmati\-e or negcitir.?, or a default or 1-o1untnr~- ;~bscnce. biit as a sratcment of ils inability t o appear bcfort. this High 'Tribunal.

text: 1.11. T1:nt t1:c cc?~iipetyni orgails cf m y Go\-criiinerit are nt prcsen? studying the dcsirat~ility and tlic ternis of a new declaration of siibriiissioii ir: conforinity \vitfi t h e said .\rticlc 36, paragri;:)lis (ii) and ( i i i ) . uf tlics 5:atutt. of the International Court of justice. l r l i i . 'fliat in it5 case and as soon a s this iie~v (leclarazion of subrr~issioi~ is clcfiiiiti~ly ap:~r«\.ed bj. tkic competc:nr orzans (1: 5,tate \vit11 a \.ic,n. to ;icci.pting tlic co~ripulsory jlirisdictiori of i-lic Cour?, it -,\-ill iininecliatel\- (id>(j~it this decl-ïrntion \ ~ i t l i tiic i;cc:-c~ar~--C;c~i-~ci-$~l of t h c Vniteci Kations in order that it sli:~ll scr\.c a norm for jurisdictioii in rrl:ition t o (;u:iti.:iiala a n d other Sicitcs, on 3 basis of reciproci1:-, so iiii- a s ilcl\- tlisl~utcs. ai- \\ ell a s t!ioi;:. if an>-, \.ihicli were ~ v a i t i n ~ be ciea!! witii or (lecideil on Janc2r-j- z/tl!, I q j Z ; are concerncd. 1 1 . .-ln«, f~ii.ill\ . rliat riotnit!!~taiiàing rlic foregoing xnd \vliile foriiicl::lLirig tiie dcc1,i~- :iioli 1-efc!-i-cc1 ti, iii tii'c forcg!iiig subp ; ~ r a g i ; ? p l ~ s l . I I and i 111, this hlinistrp is pc,rfectiy willing t o c o i ~ s i c l ~ ~ r . in agrecincn! wit'ri a n y otlicxr inter-&cd s t a t é , tlic ternls of a spccinl ;)rotocol si~i?rnittiiig t o tiic Court a n y inattc:- in conti-ox-crsy \\-liicli ni,;' fail \~:itliiii t!ie cas% set out iii .Article 36, pciragraplis (ii) aixl jiii;; vf the 5t;i'inte of tlic Inte;-nntiorial Court cf Justice."

text: By O r d e r of Rlarch 21st, 1953, thcl Court !ixed :L tiiiie-limit for t h e ~ > r c s e n t a t i o ~ z by t h e Go\-ernment of T,icchter~stcin cif a ~ v r i t t c ~ i s t a t e ~ n e r i : of t h e i r o b s e r v a t i o n s iii ri:gard i o t h c a ' u o v c ~ - f i ~ ~ ~ n t i o ~ ~ e d commnnicatioii of the Government of G u a t e m a l a . T h i s s t a t e m r n t , which w a s filed on h f a y 21st, 19j3. t h a t is within t l : ~ tiiliv-limit so fixed, s u b i n i t t e d t h e follo\virig conclusions :

text: "(A) I t inust be a m a t t e r for consideration by tlic Court ~vlietliei' t h e corninunication of the Governinent oi Guatt.mnl;i of t h e 9 t h (ieptember 1952 co~istitutes :i i"rcliminar'- Objection witliiii the meaning of Rule 02 of the Iiules of the Court or ci refusal, aniounting t o a default. to plead before the Court. O

text: S O T T E B O H N C;\SE ( J V D G ~ I E K T O F 18 XI 53) I I f

text: (B) The present obserl-ations of the Go\-ernment of Liechtenstein are based on the assumption that the cornmiinicatioii of tliz 9th September 19 52 constitutes a Preliminarg- Objection t ( j the jurisdiction of the Court. This as:~uinption is adopted xithou: prejudice to the right of the Go\-ernment of Liechtenstein to involce the provisions of Article j 3 of the Statute of the Court. (C) The terms of the Declaration made by Guatemala on the 27th January 1917, in accordance \vit11 & h i c l e 36 (ii) and (iii) of the Statute of the International Court of Justice and submitting to the jurisdiction of the Coirrt for a period of five years, are sufficient to confer jurisdiction upon the Court to llear and determine any case in mlrich proceedings n-en. instituted prior to midnight, the zbth Janiiary 19jz. (D) The International Court of Justice !las the competence. iii accordance bot11 with .\rticle 36 (vi) of the Statute and with general principles of international lau-. to determine questions relating to its own jurisdiction. (E) The alleged incapacity (which is not admitted) of the Go\-ernment of Giiatemala under the laws of Guatemala to appear in the present ease nfter the 27th January I q j z , in no way affects either the obligations of that Goverilment under intel-national ian: or the jurisdiction of the Court.

text: (FI ,4ccordingly, the (;O\-crrinient of Liecl~tenstein recluest the Court to assume ju:i.;dir:tio~i 01-er the questions rniscd by the Go~,ernnicnt of Idiecliteristein in their :ipplicatio~i of tilt, iotli December Ig-jI, a ~ ~ d to reject the co~iti-;iïy corite~~tions l o f the Go\-ernment of Guatcniala."

text: .ifter the filiiig of t h e n-:-ittcn s t n t c i n e ~ i t of rlie obscrv:itioiis of t h e Government c)E Liechtenstein. t l ~ issu;, 1-aised ir, t h e Guaterna!arr commu:iication of September 9 t h n-as rt?:~.d!. for hca.ring.

text: The Court, lia\-i~ig taken iiiro account the dc,clared intention of t h e Parties t o seek a settlcmci:! of t h t i r d i s l ~ u t ~ y bj. n:gotiatio~i, but iiot having been informed t h a t siich iiébc~tiatioii hac! ac11ii.ved ail? result, fisetl a htyaring for Xovern11c.r r otii. 1953, in order t o nl!omt h e Particis t o subniit their a r g u m e ~ i t ~ . This decisioil \y35 11::tified t o t h e t\vo Go\-criiments. On i\;o\.eniber ()th, t h e d a y before th:. hearin,~;, rlie C1:arsé d ' a f faires u t Guatemala in Paris trans:ni::t~d :O t h e lCcgisti-!. ;t inessagt,. addresst\ci t o the Cuiirt b y the llinister for Foreign ;lffairs of Guatemala. I n this message, tlic Court \v:ts requcsti,d t o postponr t h c oral procccdings t o a later dntc a n d , furtlii~rinorc, in t h e cveiit of t h e postponenient not being grantlxd, t o confine its decisi011 c:scliisively t o t h e objection lodged by Guatemala. At the hearing of November ~ o t h , 1953, t h e d a t e originaily fixed, which t h e Court did not consider it proper t o change., the Government of Liechtenstein was represented b y its -\gent, assisted b y Counsel ; tl-ie Governnient of (iuatemala \vas not represc,iitcd.

text: -At this sitting, the Court heard Dr. Loen-enfeld, Agent, a n d Professor Sauser-Hall. Counsel, on behalf of the Government of Liechtenstein. At the end of their argument, the Agent said t h a t he \\-ould maintain the conclusions contained in the statement of May ~ r s t , 19j3, and that a n additional conclusion would be filed with the Registry in nriting. That conclusion mras as follo\fs :

text: " ( G ) The Go\-el-ilmerit of Liecliteristein i-eserve their rigiit to in\.oke, slioiild the necesrity arise, the provisions of -4rticle 53 of the Stntiltc of the Court in relation to the merits of the present dispute."

text: By challenging, in its communication of September gth, 1952, the jurisdiction of the Court t o deal with the claim \\,hich \vas the s ~ b j e c t of the ,Applicatio~i filed by the Government of Liechtenstein and by refraining in consequence from presenting a Counter- Memorial, the Government of Guatemala has raised a Preliminary Objection as it has recognized in its message of November 9th, 1953.

text: The Court Iîas, for the present, t o examine only this Preliminary Objection, and this Judgment \vil1 be concerned with it alone. I n its communication of September g t h , 1952, the GoTiernment of (;ua.temala set forth the considerations of fact and of !a\v on \vhich it based this Objection. The Objection \\-as discussed by the Governmeni of 1,iechtensteiri ir: its Observations and in the argurnerits of its .Agent and Counsel a t the heariiig on Xovember ~ o t h , 1953.

text: I n its communication of September gth, 1952, the Go\-ernment of Guatemala d r c ~ v attention t o the fact that the Declaration 1))- n-hich it accepted the conîpulsory jurisdiction of the Court had, in accordance with what \vas stated therein, ceased t o be in force after January 26th, 19j2 ; it stated t h a t it therefore considered t h a t the Court had no jurisdiction t o deal with the case brougl~t before i t by Liechtençteiri. The Go\-ernmeilt of Liechtenstein requests the Court t o adjildicate n p n this challenge of its jurisdiction. I t contends t h a t the Court is empon-ered to do so hi. -Article 36, paragraph 6, of the Statut?, \vhich provides that :

text: "In the el-ent of a dispute as to wliethcr the Court has lurisclictioii. the matter shall be settled by the decision of the Court."

text: The Government of Guatemala, for its part, after stating t h a t i t originally contemplated aslting the Court to adjiidicate upon this point, added, in its communication of September 9th, 1952, that it had come t o the conclusioi~ that this course n-ould not be practicable since it n-ould be contrarg- t o the Statute.

text: S O T T E B O H l I CASE ( J U D G ~ I E S T O F 18 XI 5 3 ) 119 The Government of Guatemala indeed considers that paragraph 6 of Article 36 only relates to disputes concerning jurisdiction in respect of the application of paragraph 2 of that Article, and that it is therefore confined to disputes for the solution of which it is necessary to ascertain whether the claim falls within one of the categories enuinerated under letters a , b, c and d of that paragraph. But, it is pointed out by the Government of Guatemala, the question lvhich must be decided a t this stage is not whether the claim of Liechtenstein falls within one of these categories, but rather whether the expiry of the Declara~ion by which Guatemala accepted the compulsory jurisdiction of the Court has put an end to the Court's jurisdiction t o deal v-ith the claim of Liechtenstein. Paragraph 6 of Article 36 is drafted in the broadest terms ; there is nothing in it to indicate the restriction lvhich the Government of Guatemala seeks to introduce by means of an interpretation.

text: Paragraph 6 of Article 36 merely adopted, in respect of the Ccurt, a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right t o decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction. This principle was expressly recognized in ,\rticles 48 and 73 of the Hague Conventions of July zgth, 1899, and October 18th, 1907, for the Pacific Settlement of International Disputes, to which Guatemala became a Party. The Rapporteur of the Convention of 1899 had emphasized the necessity of this principle, presented by him as being "of the very essence of the arbitral function and one of the inherent requirements for the exercise of this function". This principle has been frequently applied and a t times expressly stated. This principle, which is accepted by general international la\\- in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjndicating on a particular dispute, but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the Cnited Nations. Consequently, the Court has not hesitated to adjudicate on the question of its own jurisdiction in cases in which the dispute which had arisen in this respect went beyond the interpretation and application of paragraph z of Article 36. In the Corfu Channel case (Judgment of rlpril gth, 1949, I . C . J. Reports 1949, pp. 23-26 and 36), the Court adjudicated on a dispute as to whether it had jurisdiction to assess the amount of compensation, a dispute which related to the interpretation of a Special Xgreemcnt ; in the ;\inha-

text: S O T T E B O H l I C A S E ( J C L ) G ~ I E S T O F 18 X I 53) 1 2 0

text: tielos case (Judgment of JulJ7 ~ s t , 19j2, 1. C. J. R e p o ~ t s 1gj2, p. 2S), the Court adjudicated upon a dispute as to its jurisdiction lvhich related to the interpretation of a jurisdictional clause embodied in a treaty ; in both cases the dispute as to the Court's jurisdiction related to paragraph I and not to paragraph 2 of Article 36. Article 36, paragraph 6, suffices to invest the Court with power to adjudicate on its jurisdiction in the present case. But even if this were not the case, the Court, "n~hose fuilction is to decide in accordance with international latv such disputes as are submitted to it" (Article 38, paragraph 1, of the Statute), should follow in this connection what is laid down by general international law. The judicial character of the Court and the rule of general international law referred to above are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case. Consequently, the Court must ascertain and decide ivhether the expirj- on January 26th, 19 j 2 , of the Declaration by \\-hich Guatemala accepted the compulsory jurisdiction of the Court has had the effect of depriving the Court of its jurisdiction to adjudicate on the claim stated in the Application, of which it was seised on Ikcember 17th, 1951, by the Government of Liechtenstein.

text: The Application tvas filed in the Xegistry of the Court on December 17th, 1951. At the time of its filing, the Declarations of acceptance of the compulsory jurisdiction of the Court by Guatemala and Dy Liechtenstein were both in force. Article 36 of the Stat'ute and these Declarations determined the law governing the Application. In accordance with these Declarations, the Application was filed in sufficient time validly to effect the seisin of the Court under Articles 36 and 4c of the Statute and -4rticle 32 of the Rules. The Governinent of Guatemala has stated that, in conformity with what was said in its Declaration of acceptaiice of the compulsory jurisdiction of the Court, the efiect of that L)eclaration came to an end on January 26th, 1952. I t draws the coilclusion that after that date the Court ceased to have jurisdiction to deal with a dispute afiecting Guatemala and, coilsequentlg., to deal n-ith the dispute which was the subject of the Application filed on bclialf of the Government of Liechtenstein or1 December 17th. 1951. The latter Government does not contest the espiry of the Declaratioc of Guatemala but it does contest that the Court has, by reason thereof, become incompetent to deal with the dispute of which it had been seised. Guatemala is here putting fortvard a new interpretation of the effect attaching to the limited period (of five years) for which in 1947 it accepted the compulsory jurisdiction of the Coiirt. I t is new, in the first place, in the sense that it had never before advanced

text: 13 it. I n particular, ~ v h e n on ,iugust 6th, 1947, it indicated t o t h e Secretary-General of the United Nations that its Declaration was t o be regarded as having come into force on the previous January 27th, i t said nothing with regard t o the effect which might attach to the expiry of the period in respect of which the Declaration was made. This interpretation is new also in the sense that it appears never before t o have been advanced and, indeed, Guatemala has cited no authority in support of it. The P e r ~ n a n e n t Court of International Justice \vas on occasion confronted with a situation not unlike the present one, but i t was never alleged by a n interested party t h a t the expiry of the period in respect of which a Declaration of acceptance of compulsory jurisdiction had been made, involved the removal from the Court's list of a case brought before the Court before the expiry of t h a t period. This arose in the Losinger case a n d in the Phosphates in Pllorocco case, bvhere the Parties confined themselves t o raising other objections t o the jurisdiction and against admissibility. The attitude of certain States in those cases does not, however, absolve the Court from the d u t y of examining ~vhether the interpretation put for\\-ard is in fact a proper construction of the clause by which Guatemala limited the effect of its Declaration of January 27th, 1947, t o a period of five years. I n the Ileclaration which the Government of Guatemala deposited with the Secretariat of the United Nations on August 27th, 1952, a copy of which appeared in that Government's communication t o the Court of September gth, 1952, it is said t h a t "it \vas the definite intention of the Government of Guatemala t h a t on the expiry of the period of five years during which it submitted to the compulsory jurisdiction of the Court, this submission should end automatically". The Declaration of Guatemala of J anuary 27th, 1947, makes it clear that this submission was t o endure for a period of five years. There can be no doubt that a n Application filed after the expiry of this period would not have the effect of legally seising the Court. But neither in its Declaration nor in any other way did Guatemala then indicate t h a t the time-limit provided for in its Declaration meant that the expiry of the period ~vould deprive the Court of jurisdiction to deal with cases of which it had been previously seised. This interpretütion appeared for the iirst time in the communications of Augusr 27th and September gth, 1952. I n the latter, the Go\-ernment of Guatemala referred to the definition given by the law of Guatemala to the word "jurisdiction", n a ~ n e l y "the power of admiiiistering justice", and it drew the conclusion that, since Guatemala had accepted the jurisdiction of the Court for a period ending on January 26th, 1952, the Court, after that date, no longer had the power of administering justice with reference t o Guatemala. The Court is not conccrned with defining the meaning of the word "jiirisdiction" in general. I n the present case, it must determine the scope and meaning of the Declaration made by Guatemala on the basis of Article 36, paragraph 2, a Declaration which, together with that provision and with the corresponding Declaration b y Liechtenstein, contains the law governing the question under consideration. ilrticle 36 determines the cases in respect of which the Court shall have jurisdiction. I t indicates tl-iat the Court call deal with cases referred to it by agreement of the parties ; and it determines the field of application of xvhat has come to be called t h e compulsory jurisdiction of the Court. The characteristic of this compulsory jurisdiction is that it results from a previous agreement which makes it possible to seise the Court of a dispute without a Special Agreement, and that in respect of disputes subject t o it, the Court may be seised by means of an Application by one of the parties. Paragraph 2 of Article 36 refers t o the subject-matter oi comp~zlsory jurisdiction, the principle and application of krhich i t governs in conjunction with Articles 32 to 3 j of the Rules. It makes use, as do the 1)eclarations relating to it, of the words "compulsory" and "jurisdiction", and the structure of the text is suf-icient to show that of these two words the first is the more important. The purpose of Article 36, paragraph 2 , and of the Declarations relating thereto, is to regulate the seising of the Court : under the system of the Statute the seising of the Court by meails of an Application is not i$so facto open to al1 States parties t o the Statute, it is only open t o the estent defined in the applicable Declarations. This being so, the lapse of a Declaration b y reason of the expiry, before the filing of the Application, of the period fixed therein makeç it impossible to invoke that Declaration in order t o seise the Court.

text: r p

text: l h e seising of the Court is thus dominated by the Declarations emanating from the parties when recourse is had to the co~llpulsory jurisdiction in accordance \vit11 Article 36, paragraph 2 . B u t the seising of the Court is one thing, the administration of justice is another. The latter is governed by the Çtatute, and by the Rules which the Court has drawn up by virtue of the powers conferred upon it by Article 30 of the Statute. Once the Court has been regularly seised, the Court must exercise its powers, as these are defined in the Statute. After that, the expiry of the period fised for Gne of the Declarations on ~vhich the ,\-plication n-as founded is an event which is unrelated to the exercise of the poners ronferred on the Court by the Statute, which the Coiirt inust exercise whenever it has been regularly seised and xvhcnever it has not been shown, on some other ground, that it lacks jurisdiction or that the claim is inadmissible. At the time when the Application \vas filed, the Declarations of Guatemala and of Liechtenstein were both in force. The regularity of the seising of the Court by this Application has not been disputed. The subsequent lapse of the Declaration of Guatemala, by reason of the expiry of the period for which it was subscribed, cannot invalidate the -4pplication if the latter was regular : consequently, the lapse of the Declaration cannot deprij-e the Court of the jurisdiction which resulted from the combined application of Article 36 of the Statute and the two Declarations. When an Application is filed a t a time when the law in force between the parties entails the compulsorj7 jurisdiction of the Court -which \vas the case between Guatemala and Liechtenstein on Decembér 17111, ~ g j r - t h e filing of the Application is merely the condition required to enable the clause of compulsory jurisdiction to producc its effects in respect of the claim advanced in the Xpplication. Once this condition has been satisfied, the Court must deal with the ciaim ; it has jurisdiction to deal u ~ i t h al1 its aspects, whether they relate to jiirisdiction, to admissibility or to the merits. An estrinsic fact such as the subsequent lapse of the Declaration, by reason of tkc espiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established.

text: On tlic point here examined, the Governineiit of Guatemala has referred in its communication of September gth, 1952, to certain provisions in the laws of that country. The Goverilment of Liechtenstein has made use of this in order to contend that the lam-s of Guatemala cannot take precedence over the rules of international lalv which arc applicable to this case. The Court does not consider that Liechtenstein in this connection has given a correct interpretation of the view of Guatemala on this point. In the opinion of the Court, the Government of Guatemala, on the premise that the Court lacked jurisdiction in an absolute manner, meant that, b'j reason of the Court's lack of jurisdiction, the 1au.s of Guatemala did not authorize that Government to be represented before a court which had no power to adjudicate. The Court does not consider it necessary t o asccrtain what tlic laws of Gu:itc.mala provide in this connection. I t wil! confine itself to stating that, once its jurisdiction has been established by the present jiidgment with binding force on the Parties, the dificulty, in xvhich the (;o~~csnment of Guatemala coiisidered that it had been placed, will be removed and there \vil1 be nothing to prevent that Governmeilt from being represented bcforï the Court in accordancc with the provisions of the Statute and Iiules. This is, inoreover, what that Government apl)e:lrs to have admitted in its communication of September gth, 1952. S o . 2 2 , I I I , where the Mlnister for Foreign Affairs stated :

text: " - y

text: 1 hat i n the present circunistanccs, since the jurisdictioii nf the Court in relation to Guatemala hns terminated and bccause it would 1)e contrary to the doinestic laws of that couritr!-, ni" Go\.errinie~it is iinnblc t o appear- aiid to contest tlic claim \vliicli lins 1,ecn maclc." I G

text: This interpretation is confirmed by the final sentence in the message of November gth, I 9 j 3 , which reads a s follows :

text: [Translation]

text: "ln case negative decisioil Court on objectio~l proposed, Guatemala reserves right to be represented dispute and raise further objections."

text: The Court has come t o the conclusion that the expiry on January 26th, 1952, of the five-year period for which the Government of Guatemala subscribed to a Declaration accepting the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute, does not affect an? jurisdiction which the Court may have t o deal with the claim presented in the Application of which it was seised on December 17th, 1951, b y the Government of the Principalitp of Liechtenstein ; the Court will ilow accordingly resume the proceedings on the merits and fix time-limits for the further Pleadings.

text: For these reasoilç.

text: unanimously ,

text: rejects the Preliminary Objection presented by the Government of the Republic of Guatemala ;

text: resuines the proceedings on the merits ;

text: and fixes the followiilg time-limits for the rest of the procedure :

text: for the Iiling of the Counter-Memorial of the Governinent of Guatemala, January zoth, 1954 ; for the filing of the Reply of the Government of Liechtenstein, February z j t h , 1954 ; for the filing of the Rejoinder of the Government of Guatemala, April ~ o t h , 1954.

text: Done in French and English, the French text being authoritative, a t the Peace Palace, The Hague, this eighteenth 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 Governments of the Principality of Liechtenstein and of the Republic of Guatemala, respectively.

text: (Siggzed) ARXOLD D. M C ~ A I R , President.

text: ( S i g n e d ) GARXIER-COIGNET, Deputy-Registrar.

text: Judge KLAESTAD declares that he has voted for the rejection of the Preliminary Objection of Guatemala on the ground, undisputed by the Parties, that the jurisdiction of the Court existed a t the moment when the Application of Liechtenstein was filed. The fact that the Declaration by which Guatemala accepted the compulsory jurisdiction of the Court expired some time after the filing of that Application, can have no effect as regards the Court's jurisdiction to deal with and decide the merits of the present dispute-a jurisdiction which was definitively established by the filing of the Application. With regard to the allegations of the Government of Guatemala that provisions of its national law prevent that Government and its officiais from appearing before the Court, it suffices to Say that such national provisions cannot be invoked against rules of international law.

title: Nottebohm (Liechtenstein v. Guatemala)

type: avgorande