Case concerning the delimitation of continental shelf between the United Kingdom

of Great Britain and Northern Ireland, and the French Republic

Facts:

Article 6 of the 1958 Continental Shelf Convention states:

Article 6

1. Where the same continental shelf is adjacent to the territories of two

or more States whose coasts are opposite each other, the boundary of the
continental shelf appertaining to such States shall be determined by
agreement between them. In the absence of agreement, and unless another
boundary line is justified by special circumstances, the boundary is the
median line, every point of which is equidistant from the nearest points of
the baselines from which the breadth of the territorial sea of each State
is measured.

2. Where the same continental shelf is adjacent to the territories of two

adjacent States, the boundary of the continental shelf shall be determined
by agreement between them. In the absence of agreement, and unless another
boundary line is justified by special circumstances, the boundary shall be
determined by application of the principle of equidistance from the nearest
points of the baselines from which the breadth of the territorial sea of
each State is measured.

3. In delimiting the boundaries of the continental shelf, any lines which

are drawn in accordance with the principles set out in paragraphs 1 and 2
of this article should be defined with reference to charts and geographical
features as they exist at a particular date, and reference should be made
to fixed permanent identifiable points on the land.

France made reservations regarding the 1958 Continental Shelf Convention. The UK
made objections to those reservations made by France.

Due to the developments in customary law by the works of the Third Conference of
the Law of the Sea, France wishes to apply the new custom. France argues that
because of both countries reservations to the 1958 Convention, the Convention did
not enter into force between them. France also argues that, even if it was in force
between them, Article 6 is not applicable. France further argues that, even if Article
6 is applicable, there are special circumstances that prohibit recourse to the
equidistance principle.

The UK opposes the arguments of France stating the applicability of the

equidistance principle.
Issue:

Whether or not the equidistance principle under Article 6 of the 1958 Continental
Shelf Convention is applicable to the continental shelves of the UK and France.

Held:

No, it is not applicable alone because it is a part of a single rule: the equidistant-
special circumstances rule.

First, regarding the entry into force of the 1958 Convention between the two States,
it is indeed in force between them. Neither at the time of the formulation of Frances
reservations on accession to the 1958 Convention nor at the time of the formulation
of the UKs objections on those reservations (nor subsequently), did there exist any
rule of international law establishing a presumption (still less an irrebbutable
presumption) that, in relation to a treaty containing no provisions regarding
reservations, an objection to a reservation precluded entry into force of the treaty
as between the reserving and the objecting States.

Now on the issue, the Court said:

Article 6 does not formulate the equidistance principle and special

circumstance as two separate rules. The rule there stated in each of the two cases
is a single one, a combined equidistance-special circumstances rule

The Court does not overlook that under Article 6 the equidistance principle
ultimately possesses an obligatory force which does not have in the same measure
under the rules of customary law, for Article 6 makes the application of the
equidistance principle a matter of treaty obligation for Parties to the Convention.
But the combined character of the equidistance-special circumstances principle is
always one qualified by the condition unless another boundary line is justified by
special circumstances

In a situation, where custom develops after a treaty, the rule is not clear.
The logical rule perhaps should be that the later custom, being the
expression of a later will, should prevail. But such an approach would
militate against the certainty of treaties. In practice, however, an attempt
is made to keep the treaty alive by efforts at reconciling a treaty with the
developing custom.