Minquiers and Ecrehos (France/United Kingdom)

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

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title of the Kings of France in respect of the Channel Islands could to-day produce no legal effect, unless it had been replaced by another title valid according to the law of the time of replacement.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,

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.

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.

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

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)

(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".

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 :

"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."

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.

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.

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 :

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

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

These various clauses indicate that there are islands or islets which are dependencies of such Channel Islands as are enumerated ; but no evidence is produced showing that it was the intention of the contracting Parties to include the Ecrehos and Minquiers groups within the terms "British Islands" or "dependencies" or, on the other hand, to exclude the groups from these terms.

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

It has already been mentioned that the Charter of 1200 of the English King, whereby he granted the fief of the Channel Islands to Piers des Préaux, and the Charter of 1203, whereby the latter in turn granted the Ecrehos 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

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

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 :

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, &

omnium antecessorum meorum, insulam de Escrehou integre, ad

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).]

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

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:

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

"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."

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

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.

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.

The object of the Quo Warranto proceedings of 1309 mentioned

above was to enquire into the property and revenue of the English King. These proceedings, which were numerous, took the form of calling upon 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.

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:

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

Both Parties have invoked this Act, but its text is ambiguous. It may signify a ban on traffic from France 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.

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.

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".

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.

*

* *

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.

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

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

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.

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

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.

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.

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

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

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".

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.

For these reasons,

unanimously,

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

Done in English and French, the English text being authoritative, 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.

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

Vice-President.

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

Deputy-Registrar.

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

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.

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.

(Initialled) J. G. G.

(Initialled) G.-C.