Ga

INDIVIDUAL OPINION OF JUDGE LEVI CARNEIRO
{ Translation ]

Having voted in favour of the operative clause of the Judgment
and accepted all the reasons in support thereof, T venture to add a
few observations which have decisively influenced my personal
vote. These observations relate to circumstances of a general
character which, in my view, explain, confirm, co-ordinate and
lend value to the acts of occupation which occurred at irregular
intervals throughout the centuries and are not all sufficientiv
significant if taken individually.

2. Criterion for the decision.—In this Opinion I have confined
myself to the following rules which were laid down by the Permanent
Court of International Justice in the case concerning the Legal
Status of Eastern Greenland :

(a ) the elements necessary to establish a valid title to sovereignty
are “the intention and will to exercise such sovereignty and the
manifestation of State activity” (pp. 46 and 63) ;

(b) in many cases international jurisprudence “has been satisfied
with very little in the w ay of the actual exercise of sovereign
rights, provided that the other State could not make out a superior
claim. This is particularly true in the case of claims to sovereignty
over areas in thinly populated or unsettled countries” -(p. 46) ;

(c) it is the criterion of the Court in each individual case which
decides whether sovereign rights have been displayed and exercised
“to an extent sufficient to constitute a valid title to sovereignty”

(pp. 63-64).

3. Pref of the Channel Islands —Whilst not disputing the
occupation of the Channel Islands as a whole in the eleventh
century by the Duke of Normandy, King of England, the French
Government contends that this occupation was a consequence of
the grant made in 933 by King Raoul to William Longsword ;
that the fief of the Islands was thus constituted and that the Duke
of Normandy, King of England, became a vassal of the King of
France ; and that the Duke and King on several occasions rendered
the homage owed by him in this capacity. The United Kingdom
Government rejects these contentions on the ground that the
islands were conquered in 916 by the Normans ; that the fief was
limited to the continental portion of Normandy ; that the homage
due in respcet of this fief was merely nominal and was rendered
solely having regard to the convenience or political interest of the
vassal.

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 86

We do not possess the instrument of the alleged grant in fee to
William Longsword ; it is not known whether this instrument
included the Channel Islands ; it has not been possible to define
the exact scope of the homage allegedly rendered by the King of
England to the King of France. The French Government has
relied on a passage in Flodoard to the effect that the King gave
to the Duke “tervram Brittonam in ora maritima sitam”, but it
would appear that the only correct translation of this expression
is ““Breton territory sited along the coast’’, that is mainland territory
bordering on the sea, but not islands. The French Government
has challenged the assertion that the Islands were conquered by
the Normans, on the ground that they “were added to the other
fiefs’. But it has not shown how this alleged addition was made.
I consider it more plausible that the Islands were conquered by
the powerful Norman warriors.

It must be recognized, furthermore, that the vassalage of a
king was necessarily exceptional and limited: Philip Augustus
himself proclaimed in 1185 that “the King must do fealty to
no-one” (Henri Regnault, Manuel d'Histoire du Droit français,
p. 102). The suggestion that the King of England was obliged to
do fealty to the King of France seems even less probable having
regard to the fact that the power of the King of France at that
time was considerably reduced (Pierre Gaxotte, Histoire des Fran-
cats, Vol. I, pp. 126, 324-325), whereas the authority of the Princes,
Dukes and Counts in some forty feudal States was increasing. In
the great fiefs, the authority of the King of France was at that
time “purely nominal” (Glasson, Histoire du Droit et des Insti-
tutions de la France, tome IV, p. 487). Several domains kept to
the very end “their right of soverecgniy”’ (italics supplied) (Glasson,
op. cit.). The Duke of Normandy in particular was a “real sovereign”
(idem). Even on the continental territory of France, the powers
of the Duke were not limited : he declared war and made peace,
minted money, and was ‘‘the sole great judge in his Duchy” (op. czt.,
pp. 504-507, 508). Rollo had already founded ‘a State which was
practically independent’’, “under suzerainty that was completely
nominal” (idem, p. 497) ; “the Duke of Normandy was one of the
most absolute sovereigns of the Middle Ages” dem, pp. 497-408).

In these circumstances I am unable to accept the view that the
Duke of Normandy, having become King of England, and having
retained the Channel Islands when the King of France drove
him out of Continental Normandy, humbly remained subject to
the suzerainty of his adversary. The same considerations make
it impossible for me to suppose that the suzerainty of the King
of France extended to the Channel Islands, all the more so since
he did not conquer them as a whole at the beginning of the
thirteenth century when he conquered Continental Normandy.
Sound authority may be found for my opinion. For example,
Selden, cited by Calvo, has written as follows:

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 87

“When Kings John and Henry III lost Normandy, the Islands
of Jersey, Guernsey and the other adjacent islands continued to
remain under English sovereignty.’ (Italics supplied.) (Calvo, Le
Droit international, 1870, Vol. I, p. 325.)

It is true that some authors state that the King of England
retained the Islands ‘pur foi et hommage du roi de France” ; the
Reply itself has cited such authors (para. 121 and note 68). But in
1200 King John of England (Annexes A 8 and 9 to British Memorial)
granted the Islands to Piers des Préaux without alluding in any
way to the alleged suzerainty of the King of France. There is
a further valid indication disproving the existence of this suzerainty
in respect of the Islands; the King of England is said to have
refused to recognize the vassalage alleged by the King of France ;
he is said to have refused to render the homage demanded. For
this reason the Court of France confiscated his lands in 1202.
The feudal link—in so far as it existed and without extending,
in my opinion, to the Islands—was then severed ; this is common
ground between the Parties. (Oral Arguments.)

4. The period of the Treaties —The strife between France and
England which broke out after this decision of the Court of France
extended beyond the thirteenth century and into the second half of
the fifteenth century. The interruptions became longer and longer
and peace treaties were ultimately concluded. In respect of this
period, authentic documents are available. The Parties have sub-
mitted these texts and have debated the matter of their interpreta-
tion, but the literal interpretation is very doubtful. It is a well-known
fact that cases brought before tribunals are always more or less
doubtful and it is clearly because of these doubts that the Parties
ask for a judicial interpretation, When a text is not clear, the
circumstances in which a treaty was signed and the subsequent
facts relating to its application must provide a sound basis for
the interpretation. In the present case, the interpretation may
also be based on other circumstances.

5. Bases of interpretation.—The treaties and other ancient
documents with regard to which there has been lengthy argument
have given rise to different interpretations. It is my view that
the interpretation must be based on the adequate criterion in
each particular case; I nevertheless consider that some bases
may be found for this interpretation.

The first is the historical moment ; a peace treaty which is the
result of a war and a decisive military victory probably favours
the victor.

A further factor in the present case is the continuous and keen
interest shown by England in the Channel Islands, in contrast to
a certain indifference or a much less lively and assiduous interest
shown by France, at least after a certain period. A French geo-
grapher, Elisée Reclus, has written: “Jersey, Guernsey and the

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 88

neighbouring lands are therefore a very precious possession for
Great Britain”. (Italics supplied.) (Nouvelle Géographie universelle,
ed. 1881, Vol. 11, p. 640.) And it may be readily understood why
England’s interest has always been more vigilant and why she
has been more uncompromising in respect of France. The conflict
of interests which gave rise to the fierce strife between 1202 and
1360, and even thereafter, became less acute when England ceased
to dominate Continental Normandy in the fifteenth century and
France renounced her attempt to conquer the Channel Islands.

In the diplomatic correspondence which was exchanged in the
nineteenth century concerning the present dispute, a number of
unequivocal expressions may be found to suggest a certain indif-
ference on the part of France. In a Note dated December r5th, 1886
(Annex A 41 to British Memorial), the French Ambassador sub-
mitted to the Foreign Office the titles which, to use his words,
“would permit France to establish her authority over the Ecrehos” ;
he added that the French authorities “have in mind no purpose
of a kind to cause concern to Her Majesty’s Government’’. The
French Government made a number of significant proposals: it
rejected a decision on sovereignty (A 64); it proposed the neutrali-
zation of the islets (A 64) ; it suggested compensations in other parts
of the world (A 71-72). It is to be noted that during the present
proceedings the French Government stated in its Counter-Memorial
that “‘the disputed areas cannot be declared to be capable of
appropriation by one Party to the exclusion of the other and
consequently the status quo must be maintained’’. In 1819 the
French Minister of Marine went so far as to acknowledge that .
the Minquiers were a British possession. That Government appears
to have merely desired the continuation of the joint position
which it considered had been established by the Convention of 1830.

Several references have been made to the Minquiers and the
Ecrehos by the French Government which suggest that they are
practically of no value. Victor Hugo’s definition of the Minquiers :
“a desolation in a barren waste” has been repeated more than
once (Oral Arguments). Reference has once been made to his
words : “There is nothing to be found there except shipwreck.”
The Counter-Memorial has stated that “three above-water islets
in the Ecrehos group and one islet in the Minquiers group are
habitable during the summer, although there are no springs’.
With reference to the small dimensions of the rocks, it was said
that on the Minquiers ‘not a single blade of grass is to be found”,
and, as regards the Ecrehos, “nothing can be grown there and
habitation is difficult’? (Oral Arguments). The region of the
islets has been described by the French Government as ‘an
arm of the sea sown with reefs’’, and the Counsel for the United
Kingdom Government expressed his surprise at this (Oral Argu-

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 89

ments). It is true that the French Agent nevertheless referred,
in addition to the interests of fishermen, to the “fundamental”
importance of a project in connection with the Minquiers, which
‘would double France’s present electrical output” (Oral Arguments).
This is a recent project and this magnificent undertaking may
not be immediately realized. In any case, J am of opinion that
these interests may be taken into. consideration (see Conclusion
No. 23).

On the other hand, the attitude of the British Government has
always been to assert full and exclusive sovereignty, without
restriction or concession of any kind.

Accordingly, it is my view that England has not left the Channel
Islands as a whole in the hands of France, particularly when
England had just conquered France by force of arms. This could
not even have followed from an inconceivable oversight.

Despite the uncertainties of the more ancient facts, some bases
may also be found for an exact interpretation of the instruments.
The French Government has sought to rely on the argument that
whenever some of the Channel Islands are mentioned, all the
others are excluded : in such cases the enumerations are asserted
to be exhaustive. In my opinion such references are almost
invariably given “as examples”, a view which is warranted by
earlier historical facts and confirmed by subsequent facts. It
is admitted in the Counter-Memorial that none of the ancient
diplomatic instruments relating to the Channel Islands gives a
complete enumeration. This is the case for the Treaty of Picquigny
of 1475 (Rejoinder). Why? Obviously because, having regard
to the “natural unity” of the archipelago which they constitute,
it was not necessary to enumerate the islands, for it would
have been almost impossible to do so. In other words, whenever
some of the islands were mentioned, particularly the main
islands—or those which were then regarded as the main islands—it
was to be assumed that the provision also covered the other
islands which were not listed but which were included in the
same archipelago.

6. The Treaty of Lambeth or the “Draft Agreement” of 1217
which terminated the strife which followed the Judgment of 1202
confirmed the English naval victories of Damme and Sandwich,
as well as the failure of French attempts to take the Channel
Islands. The terms of this Treaty and the historical moment at
which it was concluded justify the view that all the Channel
Islands were occupied by the English at that time. Following the
naval victories, certain significant facts which are contemporaneous
with the Treaty confirm English domination (Oral Arguments).
I shall merely refer to the proclamation of the autonomy of
the islands (Reports of 1199-1216, Annex A 154 to British Memorial)
in which even the protection of the ports is recommended, having
particular regard to the proximity of the King of France and other

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enemies. The French Government has admitted that this Treaty
provides for the “‘restoration’’ of several islands to the King of
England, but it has merely inferred therefrom that the islands were
not in his possession at that time (Oral Arguments). This inference
is acceptable : there were islands which were not in the possession
of the King of England ; but these islands were “restored” to him.
The English obtained complete domination over the islands.

Reference has been made to the instruments providing for the
implementation of the restoration, which had been agreed upon
in the Treaty by the same English admiral who had commanded
the English fleet at the Battle of Sandwich. He was appointed
Warden of the islands and subsequently replaced in this office
by one of his nephews. (Memorial, Nos. 23-24.)

Counsel for the United Kingdom Government has quoted two
French historians who defined the scope of this Treaty : a Professor
from Caen has stated that the islands “‘were detached from Nor-
mandy in fact in 1204, in law by the Treaty of 1217’’. (Oral Argu-
ments.)

The only impressive argument that has been raised against this
Treaty is the contention that the Dauphin Louis acted ‘‘in his own
name, not having been delegated to do so by his father, King
Philip Augustus’ (Oral Arguments). I find it difficult to con-
sider as no more than a mere personal adventure the Dauphin’s
expedition, which went as far as London in an effort, to use the
words of the French Government, “to repeat the exploit of Wiliam
the Conqueror’. Having been unsuccessful in this enterprise, the
Dauphin signed the Treaty of Lambeth with King Henry III of
England ; he subsequently became King of France as Louis VIII.
He was bound to abide by his undertaking. For his part, King
Henry III of England retook the main or ‘‘the majority of the
Norman islands’ in the admission of the French Government
(Counter-Memorial and Rejoinder). Why should he not have retaken
all the islands? Why should he have left some of them under
French domination ?

It should also be noted that the United Kingdom does not even
contend that the Treaty of Lambeth re-established the feudal link
which had been severed more than fifty years before : the United
Kingdom Government attributes this effect to the Treaty of Paris.
It may therefore be said that after the Treaty of Lambeth all the
Channel Islands were under English domination, without vassalage
of any kind.

7. The Treaty of Abbeuille-Paris.—Tt is common ground between
the Parties that the Treaty of Paris of 1259 is very important
(Oral Arguments). The French Government actually purports to
find its original title in that Treaty ; it has asserted (Oral Argu-
ments) that its original title was “renewed and strengthened” by
the Treaty of 1259. It then goes on to say that its tenth century

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) gI

title was incorporated in the Treaty of 1259, ‘‘a treaty of frontiers,
a treaty of boundaries” (Oral Arguments). Some of its remarks
would appear to justify a claim to full ownership, not merely
to suzerainty, of certain of the Channel Islands, but not of the
Channel Islands as a whole. France has, however, preferred to rely
throughout on her alleged suzerainty.

I do not regard the Treaty of Paris as a treaty of frontiers. To
do so would be to fall into the very error which we have been
warned against : an instrument must not be appraised in the light
of concepts which are not contemporaneous with it. The Treaty
of Paris is a treaty of peace ; it contains no provisions on frontiers
and establishes no boundaries. In the opinion of the French Govern-
ment, it re-established the homage due by the King of England
to the King of France by virtue of the feudal link which the Judg-
ment of 1202 had severed. How can it be argued that as a result
of this fact the territories of the fief were incorporated in the
Kingdom of France when these territories formerly belonged to
England ? No territorial alteration of any kind can have resulted
from this mere fact: the personal link of vassalage alone was
re-established.

The Treaty of Paris contains no express reference to the Ecrehos
or the Minquiers, or even to the Channel Islands in general. The
only provisions which might be relevant to the present dispute
are Articles 4, 6 and 7, which are reproduced in Annex A I to the
Memorial.

Doubts as to the interpretation of this Treaty arose immediately
after its signature and were revived during the proceedings before
this Court. The United Kingdom Government has asserted that
by this Treaty King Henry III of England renounced all his claims
to Continental Normandy ; that after the Treaty, France having
delayed or refused to implement the restoration of certain territories,
a meeting was held at Périgueux in 1311 to resolve these differ-
ences ; that France then asserted claims to the islands adjoining
Normandy and to other lands ; that England rejected these claims
and continued to possess the Channel Islands (Memorial, para. 18).

According to the Counter-Memorial, the King of England renounc-
ed Normandy and other lands in favour of the King of France,
thus impliedly recognizing the validity of the Judgment of 1202;
on the other hand, it is said to follow from Article 4 that the
Duchy of Guyenne and various neighbouring regions were leit,
or returned as fiefs, to the King of England, who had to pay homage
in respect of them to the King of France. Homage, it is asserted,
was rendered in respect of all the islands subject to the King of
France which were in the hands of the King of England, including
the Channel Islands, which were situated ‘‘on this side of the
English sea” and which previously were a part of the Duchy of
Normandy (p. 197).

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 02

In paragraph 129 of its Reply, the United Kingdom Government
‘contends that the King of England acknowledged the suzerainty
of the King of France over his possessions in France and over
the islands which he held off Aunis and Saintonge, but that it
“appears improbable’ that the Channel Islands were included
among the islands to which the Treaty refers; in any case, this
homage is said to have been merely nominal and for a very short
time. In the Rejoinder, the French Government asserts that in this,
as in the subsequent treaties, ‘‘there is never any question of any
islands but those in the possession of the King of England”. The
‘discussion on this point continued throughout the oral proceedings
and could go on indefinitely as long as it is directed to the obscure
wording of the Treaty.

It is clear from the debate that France claims that the suzerainty
of the King of France was re-established in respect of the Channel
Islands (Oral Arguments} ; on the other hand, the United Kingdom
considers that the fealty was re-established only in respect of
Aquitaine and its islands, not in respect of the Channel Islands
(Oral Arguments).

Neither Party has succeeded in fully proving its own interpre-
tation of the Treaty: it may well be that both interpretations
are justified by the text of the Treaty. From the-terms of the
Treaty themselves, it is not possible to ascertain with certainty
which were the islands “‘possessed’”’ by England. In order to deter-
mine which islands were under French suzerainty, it is necessary
to consider the situation which existed before the Treaty was
signed, as well as the manner in which the Treaty was carried out.
An authoritative and impartial historian, David Jayne Hill, has
pointed out that by this Treaty the King of England received
the islands of Normandy in fee (A History of Diplomacy, Vol. I,
p. 388). In the present proceedings the United Kingdom has cited
another well-known author, Besnier, who wrote as follows :

“The King of France .... definitively acquired the sovereignty
of Continental Normandy, but the King of England continued to
hold the islands by faith and homage of the King of France” (Reply,
para. 121).

Which islands? Those of the Channel? In the same
sense, J. Havet (Reply). David J. Hill relates the Treaty of
Paris to the defeat of King Henry III of England in 1242
and to a desire for peace on the part of King Louis IX of
France. Louis is accordingly said to have given Henry, in addition
to his heritage in Aquitaine, “the Norman islands in fee to the
Crown of France”. The King of France is alleged to have said
thereafter: “Henry was not my vassal but he has voluntarily
become one.” The peoples of the two nations continued to be
discontented : the English complained of ‘the new vassalage”
and the French complained of the fact that the English continued

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 93

to have a foothold on the Continent (of. czt., I, pp. 388-389). The
scope of this suzerainty was questioned after the Treaty of Paris
and even after the Treaty of 1303 (idem, Vol. II, pp. 7-8).

When the Treaty of Paris was signed, in contrast to the position
at the time of the Treaty of Lambeth, France was victorious and
strong, stronger than England, which had been vanquished and
divided. Nevertheless, France did not take the Channel Islands
back from England; Louis IX, Saint Louis, “Vhomme juste”,
went even further by returning to him the lands of Aquitaine,
being content to subject the King of England to his vassalage,
even in respect of the Channel Islands, which the latter ‘‘con-
tinued” to occupy.

The Treaty of Paris thus confirmed the Treaty of Lambeth,
although it may well have established (or re-established, if it
existed at the beginning of the thirteenth century) French suze-
rainty over the Channel Islands.

It is conceivable that thenceforth the islands, as a fief, were
subject to the King of France but in such a way that they continued
to be occupied by England without England having acknowledged
this vassalage. There is no evidence to show, nor any indication
to suggest, that England acknowledged this vassalage in express
terms. And if such vassalage had actually existed, England might
have been expected to seek to rid herself of it as soon as possible.

8. The Treaty of Brétigny-Calais.—It is proper to recall, as an
element in the interpretation of the Treaty of Calais, that it was
signed at the beginning of the Hundred Years War and after the
great English naval victory at Sluys in 1340 and a land victory
at Poitiers in 1356, when King John the Good of France was taken
prisoner by the English. Before the Treaty of Calais, a secret
agreement was signed by the Royal prisoner in 1359, which provided
for the restoration to the English Crown of all the Duchy of Nor-
mandy (Memorial, para. 19) ‘with all the cities, castles, dioceses,
lands, regions and places lying within the Duchy itself”. The
French Government is quite right when it points out (Counter-
Memorial, Part III, I, III) that this secret agreement was never
ratified. But in my view it is not right in adding that the same
agreement “produced no effects”, for one of the effects was the
Treaty of Calais, although the latter restricted the scope of the
agreement, having regard to new developments. Although the Treaty
of Calais did not restore to England, as the secret agreement had
done, “‘all the Duchy of Normandy’’—1.e. Continental Normandy—
it did nevertheless confirm in general terms the English possession
of the islands, as had been done in the Treaties of 1217 and 1259.
A very significant indication of this fact may be found in the
absence of any express reference to the islands when the secret
agreement refers to ‘cities, castles, dioceses, lands, regions and
places”. The purpose of the French attacks at the beginning of the

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 94

Hundred Years War was to retake the Channel Islands ; this is a
fact which should not be forgotten.

The absence of the reference is clear evidence that the islands
were already English. If this were not so, England would certainly
not have lost this opportunity—at least, in the secret agreement
with its prisoner—to obtain the domain of the Channel Islands.
With very significant emphasis, the Treaty stipulates that the
King of England shall have and shall hold all the other islands
which he already holds. It must be recognized that England
dominated, and continued to dominate, the islands as a whole,
and that she continued to possess them. ‘‘In any event the islands
had remained faithful to John Lackland in 1204, and the Treaty of
Brétigny (1360) was to confirm their loss by France in express
terms. Henceforth the French sought to re-conquer them solely
by force of arms.” (Perrot, Deux expéditions insulaires françaises,

p. 5.)

The Treaty of Calais even ceded to the King of England—as is
acknowledged by France (Oral Arguments) —‘‘in full sovereignty”?,
several provinces and towns—Calais, Ponthieu, Poitou, Saintonge,
Guyenne. How could it possibly have reserved the suzerainty
of France over the islands which England already possessed ?
The process of the disintegration of feudalism was already quite
advanced. I do not believe that reference was ever made again
to homage by the King of England to the King of France. The
French Government (Oral Arguments) has indicated only that
such homage existed until the year 1200.

I incline to the view that if, against the will of England, the
Treaty of Paris had re-established the suzerainty of the King of
France over the Channel Islands, the Treaty of Calais would have
extinguished that suzerainty. This view is supported by all the
circumstances attendant upon the historical moment when the
Treaty was concluded—already referred to above—as well as
by the text of the Treaty of Calais itself.

9. Other treaties Subsequent treaties—the Treaty of Troyes of
1420, the “Truce of London” of 1471, the Treaties of Picquigny-
Amiens of 1475, and of Etaples of 1492, as well as the commercial
agreements of 1606 and 1665—have been analyzed by the Parties,
who did not consider that any modification of the pre-existing
situation resulted from the provisions of these treaties (Oral
Arguments).

It seems to me that further circumstantial evidence may be
found in the Treaty of Troyes of 1420 in support of the construction
placed on the older treaties. Article 22 of the Treaty of Troyes
provided that when King Henry VI should become King of France,
“the Duchy of Normandy and also the other places and each of
them” conquered by him in the Kingdom of France, should be
under the jurisdiction of the Crown of France. This could not

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 95

apply to the Channel Islands, because these had not been conquered
by King Henry. Furthermore, it is a fact that shortly before that
date France had been defeated by England, which then conquered
Continental Normandy.

It is nevertheless stated in the Counter-Memorial that : “It may
be said that the Treaty of Troyes annulled the Treaty of Calais and
re-established the unity of the Kingdom of France” (Part II, LIT).
This would be a strong argument. But France has not relied upon
it; she continued to invoke the Treaty of Calais (Rejoinder,
Section I, I, C; Oral Aruments) ; she admitted that the argument was
unsound. The Treaty of Troyes did not have this effect ; the Channel
Islands did not pass under the jurisdiction of the Crown of France.
Why did they not do so? Because, as I have already pointed out, the
Channel Islands had not been conquered by King Henry VI: they
were already under English domination and remained thereunder.

Accordingly, the occupation of the Channel Islands by England,
which had been acknowledged and legalized, became definitive
and incontestable. Attempts to retake them were renewed until
the sixteenth century. But no effort was made to re-establish the
suzerainty which had lapsed at the latest in 1360.

10. Suzerainty alone.—lf the contentions of the French Govern-
ment were admitted, what would have been the situation? At
most the King of France would have had suzerainty over the
islands occupied by England. Even if it were agreed that the
homage due in respect of such suzerainty was not purely nominal
but had been regularly rendered, could it be concluded that
this suzerainty was transformed into sovereignty ? The answer
to this question is related to the demise of the feudal system.

11. The transformation of suzerainty.—The feudal system disap-
peared slowly but by a continuous process. It disappeared gradually
in certain countries and in certain regions without leaving any
important traces in modern public law.

In private law, when relations are involved between individuals
or between a State and one of its nationals, it may be admitted
that the fief did not disappear completely without leaving any
trace, but rather became an emphyteusis, suzerainty having
become eminent or direct domain, or sovereignty. We are here
concerned with ascertaining the consequences of the disappearance
of feudalism, of the fief, of suzerainty and vassalage, when the
vassal, as in our particular case, was a king and the suzerain
was another king.

With particular reference to the Minquiers, the French Govern-
ment has asserted that ‘‘the feudal suzerainty of the King of
France was ipso facto transformed into modern sovereignty”.
(Oral Arguments.) Was the suzerainty of a king over another
king transformed into sovereignty over the territory of the
extinguished fief ? Even when the fief was situated on the territory

52
MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO} 96

of the State of the vassal king ? Even when the vassal king was
a powerful enemy of the suzerain king ? My reply is in the negative.
In such a case the concept of national sovereignty destroys all
the effects and traces of the former suzerainty. In such a case,
when sovereignty is established, ‘political feudalism” disappears.

How can it be argued that once any personal link which may
have existed between the King of England and the King of France
was severed, the latter should have obtained sovereingty over
the soil of England ? How is it conceivable that, by the sole fact
that suzerainty was abolished, the so-called vassal, the King of
England, freed of ail personal duties in respect of the King of
France, should have lost to his former suzerain the attributes of
the exercise of sovereignty over the Channel Islands, the competence
to carry out administrative acts, collect dues and taxes, etc. ? How
is it conceivable that all these attributes should be vested in the
King of France ? Here again, my answer is in the negative. Even
mere nominal homage which may have been owed by the Duke of
Normandy to the King of France, and which I believe was never
rendered in respect of the islands, could no longer be required,
even if it had ever been due. Even admitting that French suze-
rainty existed in respect of the Channel Islands belonging to the
Dukes of Normandy, such suzerainty would have been completely
abolished without leaving a trace.

Even within the Kingdom, it was only by force of arms that the
Kings of France, from Philip Augustus onwards, began to dominate
the feudal lords and ultimately made them subject to their sovereign
authority. Louis XI reduced a number of feudal lords to complete
obedience. This was the reaction against the feudal lords. Military
victory, and not the former suzerainty, became the title to domina-
tion.

As regards Normandy, Philip Augustus conquered Continental
Normandy and drove the English therefrom, by force of arms
rather than by the execution of a judicial decision. But it has not
been proved that Philip Augustus also conquered the Channel
Islands: on the contrary, the treaties prove that these islands as a
whole remained under English domination. In these islands, for
more than a century, neither forfeiture nor the disappearance of
feudalism, nor military victory, disturbed English domination,
the union of the islands with England and the establishment of
English sovereignty. The disappearance of feudalism removed the
restriction which might hypothetically have attached to this
domination.

Furthermore, it must not be forgotten that ‘‘vassals exercised
all the rights of sovereignty” (Laurent, La féodalité et l’Église,

. 617).
P Accordingly, it is my view that while the French original title—
which rested at most on an unproved and doubtful suzerainty
said to have been accepted against the will of the vassal and not to

53
MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 97

have been respected by him—while this title was disappearing and
becoming extinct, the English original title—resting on what was
probably unconditional conquest by the Normans—was growing
stronger, becoming consolidated, and finding a legal basis as a
result of the successive treaties and the almost uninterrupted
occupation of the Channel Islands as a whole, and, finally, of the
assertion of national sovereignty when political feudalism dis-
appeared.

12. Geographical data.—T accept the following observation of
the French Government :

“The juridical analysis which a court has to undertake always
involves a previous examination of the geographical data, in cases
which raise the question of territorial competence. International
law attached very great importance to these factors in the Court’s
Judgment on the Norwegian Fisheries in 1951...” (Oral Arguments.)

In its Rejoinder the French Government had already indicated
the importance of this aspect of the present question :

‘.. these islands, lying in a French bay, which have become English
[italics supplied] because a French baron, a Duke of Normandy,
conquered England in 1066. For in the ultimate analysis this is
the somewhat piquant first cause of this trick of fate, which is
completely at odds with the geographical data.”

From this point of view, the source of the first observation is to
be found in the very remote separation of certain of the islands
from the Continent: Jersey is said to have been separated from
the Continent perhaps in the year 709 (Oral Arguments). This
consideration, which is based on a hypothesis, can obviously have
no bearing on the present situation, whose origins are to be found
in a period at least two centuries later. If the argument that
“the archipelago, taken as a whole, represents a dismemberment
of the mainland” (Oral Arguments) were to be taken into consider-
ation, it might be contended that this whole now belongs to France.
Likewise, another observation of the French Government, to the
effect that the islands are situated in a bay bordered by French
soil, does not appear in my view to contribute to a solution of
the present dispute, because obviously most of the islands in that
bay, or the more important of them, are under English sovereignty.

There is, however, another observation which I regard as an
interesting one: whilst stressing the fact that ‘‘the archipelago,
taken as a whole, represents a dismemberment of the mainland”’
(Oral Arguments), the French Government asserts that ‘the
natural unity” of the archipelago “did exist before the thirteenth
century” and that “at that period the chance of arms and the
will of kings rent asunder what nature had joined together” (Oral
Arguments).

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 98

Shortly before asserting this proposition, the French Govern-
ment stated that the Channel Islands constitute a group of islands
which seems to present a certain natural unity, so that it might
be said that the State to which the principal islands belong should
also possess sovereignty over the islands whose territorial status
is uncertain (Oral Arguments).

13. Natural unity —But the French Government does not agree
that reference should be made to this “natural unity” after the
thirteenth century. It claims to have acquired the Channel Islands
through their incorporation ‘as a whole” in the Duchy of Nor-
mandy (Oral Arguments). At that period the islands formed a
single complete whole with Normandy (Oral Arguments) ; later,
in 1259, they are said to have been divided ‘into two groups”
(Oral Arguments). “A part of the archipelago” was assigned to
the King of France, ‘another part” to the King of England (Oral
Arguments). We know one of these groups: it is still the Anglo-
Norman archipelago. The other group is made up of the Chausey
Islands, to which France claims that the Minquiers and the Ecrehos
must be attached. The dismemberment of the Chausey from the
archipelago has been admitted. I do not consider that this dis-
memberment involved the disappearance of the “natural unity”
of the archipelago. The archipelago formed by all the other islands
continued to exist. What it was necessary to prove was that the
Minquiers and the Ecrehos were also detached at the same time
as the Chausey or later, and once more attached to the Continent.
It was necessary to invalidate the very reasonable presumption that
they continued to be attached to the archipelago. In my opinion,
the burden of proving this was on France, and France has not
discharged this burden. The French Government claims that
there has been a “dismemberment .... of a great number of
islands’”—the Chausey group, Mont-Saint-Michel, Tombelaine, the
island of Bréhat, “to mention only a few of them” (Oral Argu-
ments), which became and remained French. No other islands,
except Cezambre, are cited. They are certainly a part of the
“cluster of islands, islets and rocks” to which reference has
been made (Oral Arguments}. All this does not, in my view,
constitute ‘‘a very large number of islands’’, or even ‘‘the greater
part of the islands’ (Oral Arguments). These small islands may
not even have been a part of the archipelago ; or else they had
already been detached from it, and continued to be so detached.

History is said to have been at odds with geography. But if the
dismemberment only involved the Chausey and even if it extended
to other lesser islands, the archipelago would nevertheless have
included and would still include almost all the islands, all the more
important islands which are described in all maps and geography
books as ‘‘Anglo-Norman archipelago” or “Anglo-Norman islands”,

55
MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 99

r “Channel Islands”. This archipelago, which still bears this name
to-day, with its natural unity almost intact, is indisputably English.

Any exceptions which historical facts may have made to this rule
should be accepted restrictively. The United Kingdom acknowl-
edges one exception : the Chausey. As regards the disputed islets
in the present case, it was necessary to prove that they also consti-
tuted an exception. The evidence adduced points the other way.

In my opinion, the French argument is based on an inversion
of the “‘geopraphical data’ when these are set out in the following
terms : “‘.... their [the Ecrehos and the Minquiers] membership of
an archipelago which the accidents of history alone have separated
in part from France....’’ (Oral Arguments).

In my opinion this constitutes a recognition that these islets
were then a part of the archipelago, even though they may no
longer be a part thereof to-day. But since the archipelago is detached
from France, not partially but almost entirely (on the view that it
was formerly attached to France), it has kept “its natural unity”
and the Ecrehos and the Minquiers remain incorporated therein.
The burden of proving that the Ecrehos and the Minquiers are no
longer a part of the archipelago and that historical facts have
detached them from the “natural unity’ of the islands was on
France. France has not discharged this burden ; she considers that
it was for the United Kingdom to provide direct evidence of its
sovereignty over these two groups. It seems to me that it is for
the Party interested in restricting the application of an established
rule or of a recognized fact to prove that such a restriction is valid.
In my opinion, the facts proved justify the presumption which I
have stated above.

The union of the islands with the Continent is a geological
hypothesis having no further consequences. The union of the
islands with Continental Normandy is a political fact, having no
further consequences. But the unity of the archipelago continues
to be recognized as an undisputed fact to-day.

Just as a State which has occupied the coast or an important
part of an island is deemed to have occupied the island as a
whole, the occupation of the principal islands of an archipelago
must also be deemed to include the occupation of islets and rocks
in the same archipelago, which have not been actually occupied
by another State.

As has been noted in the Reply (para. 118), the ‘‘natural unity’
of the archipelago also explains the terms of a number of treaties
and other instruments which mention a few of the principal
islands in order to designate the archipelago as a whole. This
method of referring to a whole by merely mentioning one of its
parts is common procedure. The “natural unity” of the archipelago
could not be broken and has not been broken; nor has it been
disregarded.

,

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 100

The mention of the principal islands was sufficient to designate
the archipelago as a whole. But there have also been very frequent
references to islands adjacent” to other islands or lands indicated.
An example of this may be found in respect of Jersey in the
Treaty of Calais of 1360 (Annex A 2 to British Memorial).
Likewise, in the fourteenth century, in an instrument confirming
a Warden of the principal islands (Oral Arguments), in a Petition
of the fifteenth century to Pope Sixtus IV (Memorial, para. 34),
as well as in such modern documents as the Regulations of
July 22nd, 1843 (Article XVIII), the Convention of January 2nd,
1859 (Article XVIII), the Convention of November 11th, 1867
(Article 38) and the Report of the French Experts of 1886.

Reference was made to the “islands of Jersey” in a Grant of
1216 (Memorial, para. 5). Reference is made to “Acrehowe ....
de Iereseye” in a Letter of Protection of 1337 (Annex A 17 to
British Memorial). In respect of this document the French
Agent has argued that the Latin word ‘‘de’’ must not be translated
by the preposition “of” (de), but rather by the expression “‘on
behalf of” (“pour le compte de’), “concerning” (“au sujet de”)
(Oral Arguments), and he referred to the use of dictionaries.
One of the best dictionaries, the one by Benoist and Goetzer, gives
a considerable number of meanings for the word, including the
meaning : ‘sur’, “touchant’, “quant à”, “relativement”. But the
first meaning given, and the principal one, the most common
one, is ‘‘de, hors de, venant de, issu de”. And an explanation is
given to the effect that the word “expresses the fact that an
object is separated from another to which it was attached”
(‘exprime qu'un objet est séparé d'un autre auquel il était rattaché”).
It is precisely in this sense that the expression was used in the
words ‘‘Acrehowe .... de Iereseye”. If any other meaning were
attributed to the word, the phrase would be incomprehensible ;
it has moreover been shown that it was used at the same time
with this meaning in other instances.

The references to ‘‘dependencies” or ‘‘adjacent islands’’ are
evidence that other islets or rocks were included in the designation
of Jersey. It has not been proved that the Ecrehos and the Minquiers
were so included, nor that they were excluded therefrom. But it
is clear that it could only have been these islets and rocks to which
allusion was made. This consideration corroborates the evidence
which has been assembled and justifies the acts of occupation and
administration which the Jersey authorities have exercised and
still exercise on the Ecrehos and the Minquiers.

The argument based on “‘dependency”’ has also been invoked by
the French Government, which relies on the fact that the Minquiers
are approximately equidistant from Jersey and the Chausey ;
the Minquiers are said to be a “dependency”’ of the Chausey. But
this does not appear to be a valid argument, for in a Judgment
of July 28th, 1772, the Council of the King of France designated

57
MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) rol

by name the fifty-three islets included in the Chausey group ;
the Minquiers are not mentioned therein; nor are any of the
Minquiers islets. (Gibon, pp. 294 ef sgg.) Other documents and
considerations support the conclusion deduced from this observation.
The Ecrehos and the Minquiers were regarded as attached to
Jersey and not to the Chausey. And this is an important considera-
tion, because the Ecrehos and the Minquiers have rarely been
designated individually ; they are either included in the archipelago
as a whole, or treated as a dependency of another principal island,
ie. Jersey.

14. Proximity of the Continent.—Apart from events of secondary
importance, successive wars and the temporary military occupation
of one or a number of islands, it may be said that history has not
in fact been at odds with geography. My view is rather that histo-
rical facts have been influenced by the “geographical data” ; these
facts have even confirmed a geographical criterion for the dis-
crimination of the Channel Islands.

This criterion was that of territorial proximity. The islands that
were close to the Continent, the islands that were closest to the
French coast, became French, not by reason of the very ancient
geological fact that they were separated from the mainland (Oral
Arguments), but as a necessary consequence of historical facts.
The islands which were furthest removed from the coast remained
English. This has been acknowledged by the French Government,
when it said that in the thirteenth century the King of England
did not retain other islands ‘‘closer to the Continent” (Counter-
Memorial, Part III, I, I) and that after the Treaty of Calais, the
King of France “continues to remain the master of the islands close
to the coast, which depend on it” (Annex A 2 to British Memorial ;
Counter-Memorial, Part III, I, III). The King is said to have kept
“a group of islands which are generally small .... close to the
French coast’? (Oral Arguments). The French Government has
not indicated what characterized the islands “close to the coast”
or “to the mainland’. It has not stated what distance from
the coast constituted “proximity”. It referred also to “‘depen-
dency” .... “dependency on the coast’—which is rather vague.
That Government has also stated, and rightly so, that ‘the
claim that the archipelago constituted a natural unity can only
be given its full meaning by taking into consideration the
proximity of the coast of the mainland’. (Oral Arguments.) But
it has referred to no instrument or document in which the Min-
quiers of the Ecrehos were regarded as dependencies of the coast
or of the Chausey. Of course, the proximity of the coast of the
mainland must be taken into consideration, but the natural
unity of the archipelago must also be considered at the same
time. What we have here are two “geographical data” which
complement each other. As is stated by the French Government

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 102

itself (Oral Arguments), the Minquiers and the Ecrehos are closer
to Jersey than to the mainland. They must be regarded as attached
to Jersey rather than to the mainland. They must be included in
the archipelago. These islets were, and continue to be, a part of its
“natural unity”’. It is for this reason that they remained English,
as did the archipelago itself.

15. Historical facts—Moreover, the criterion of continental
proximity is perfectly rational. I can readily understand why it has
been adopted, or rather, why it has prevailed up to a certain point.
It has not been the result of any abstract doctrinal trend, or of any
preferred theory ; it has resulted from historical events and from
force of arms. After they had lost Continental Normandy and the
islands of the Atlantic Ocean, the English were obliged to keep the
Channel Islands in the interests of their own territorial defence.
The conquest by Normandy in 1066 was a warning. England went
even further, by keeping Aquitaine until the fifteenth century,
seeking to re-conquer Continental Normandy and occupying it,
at least in part, in the same period, for more than thirty years. It
is clear that England has always shown the greatest interest in the
Channel Islands. Counsel for the United Kingdom has stated—a fact
which has not been challenged—that since 1204 these islands were
not given in fee (save in two exceptional cases) but were governed
by a Warden, who was an administrative official of the Crown.
One of these exceptions is significant because, in 1254, a fief was
granted to the King’s son, who later became Edward I (Oral
Arguments for September 21st, 1953; List of Wardens from 1204-
1373, Annex A 158 to British Memorial). In 1226 the King proclaimed
the autonomy of the Channel Islands, which is still in force at the
present day, and granted them a charter of liberties (Memorial,
para. 26). The autonomy of the islands is the political expression
of the natural unity of the archipelago. And this unity had already
been recognized by the declaration of the neutrality of the islands
made by Louis XI and Pope Sixtus IV.

The military victories of the English and their naval power
allowed them to secure the domination of these islands generally.
It seems inconceivable to me that England, having an important
interest in the Channel Islands and full domination over the sea,
and possessing all the principal islands, should not, without some
special reason, have conquered and retained the Ecrehos and the
Minquiers or, rather, that she should have left them to France.
A principle of British policy was at stake: Great Britain claimed
ownership of the sea which separated that country from France
(Calvo, Droit international public, ed. 1806, I, pp. 473-476). This
principle was rejected (Oral Arguments), and France objected ‘to
the Channel being called the ‘British Channel’ ”. This is quite true,
and yet even the French continued to call the Channel Islands
““Anglo-Norman islands’ and even “English islands”.

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 103

16. The definitive situation.—The principle of the limitation of
territorial waters may have been questionable at that time, but
the development of history has led to a situation which confirms
that principle, perhaps by anticipation. The same consideration
which prevented English domination of some of the islands which
were definitively subject to the French domain might have
prevented English domination over the Ecrehos and the Minquiers.

But the determining cause which in my opinion explains the
fact that England did not have domination over all the Channel
Islands is the proximity of the French coast.

The only islands which might be regarded as included in the
Anglo-Norman archipelago and which were ‘‘dismembered” from
the archipelago and placed under French domination, are the
Chausey which are situated outside the strict belt of French
territorial waters. But the Chausey are closer to the French main-
land than all the other islands, even Alderney, which is indisputably
English, and even the Ecrehos and the Minquiers. There was
considerable alternation in the domination of the Chausey : one
writer is alleged to have said that they ought to have remained
English and the date of their definitive possession by France
has been debated.

The French Agent has cited other islands. The Mont-Saint-
Michel is linked to the mainland ; Tombelaine, according to French
chart No. x, is situated in the ‘‘sands and rocks uncovering at
low water”; Bréhat and Cezambre (cited in the Oral Arguments)
are indisputably situated in French territorial waters. They could
only be French. Like the Chausey they remained French. All
the other islands are British, including therefore the Ecrehos
and the Minquiers.

17. The grant of Piers des Préaux.—There has been very learned
argument upon the question whether the grant by Piers des
Préaux was really in frankalmoin and whether, therefore, it
extinguished the rights of the grantor. I do not consider it necessary
to decide these questions. Whatever view one may have, the
principal question is not whether Piers des Préaux retained his
rights on the island, but simply whether or not the Duke of
Normandy retained his. In its Rejoinder (Part I, Section I, II, A, 1°),
the French Government has accepted the irrefutable rule that
none may grant more than he possesses and that Government
has acknowledged that the Duke retained his rights.

It is true that the French Government goes on to say that the
King of France succeeded the Duke, by the conquest of Nor-
mandy in 1204, and became the overlord of the island of Ecrehos.
This brings us back to another question which has already
been dealt with and settled: the King of France was not the
lord of the islands, the Judgment of 1202 did not relate to the

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 104

islands. The conquest of Continental Normandy did not affect
the situation in any way. There is no evidence to show that the
conquest extended to the islands, or, in particular, to the Ecrehos
and the Minquiers. |

There are certain other considerations to the same effect which
I regard as relevant :

(a) Piers des Préaux could not, without the consent of the
lord, effect the dismemberment of a part of the islands which
King John had granted him in fee. It matters little that the island
of Ecrehos was of no value, as stated by the French Government.
And it is easy to discern the importance of the grant if, as is alleged
by the French Government, it had the effect of transferring to
the King of France the ownership of the island which belonged
to the King of England. In such circumstances the grant would
have been a nullity.

(0) In the “acknowledgment of his fiefs” made by Piers des
Préaux to King Philip of France after the surrender of Rouen in
1204, there is no reference to the Ecrehos (Oral Arguments).

{c) Two years later, in 1206, the King of England restored to
Piers des Préaux the lands which he held in England and he stated
with regard to the islands that the King would ‘do his pleasure”
(Annex A 11 to British Memorial). There is no restriction resulting
from the grant to the Abbey of Val-Richer.

18. Acts of occupation.—The origin of the occupation of the
islands by the English being clearly defined and the circumstances
confirming that occupation being acknowledged, the acts carried
out during this occupation, although they are scattered in time,
bear witness to the continuity of that occupation and reflect the
“slow evolution” of the process whereby sovereignty is established.

I need only add a few complementary observations to the analysis

given in the Judgment.

19. Visits of fishermen.—The most assiduous and most numerous
visitors were fishermen. The French Government has said that
after 1839 ‘it allowed British fishermen to go peacefully to the
Ecrehos and the Minquiers’ (Oral Arguments). The English
Government has never permitted Frenchmen to frequent the
islets.

I quite agree that in certain cases, and in certain circumstances,
the presence of private persons who are nationals of a given State
may signify or entail occupation by that State. Sovereignty is
exercised over persons who recognize that sovereignty. I have in
mind the fact that the limits of the Portuguese and Spanish posses-
sions in South America, which had been strictly laid down in the
Treaty of Tordesilhas, were exceeded by persons from Brazil in
search of gold and emeralds, and that, although these persons were
frequently disappointed in their expectations and their ranks

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 105

decimated by fever, they achieved the wir possedetis for Brazil
and greatly increased her territory.

Such individual actions are particularly important in respect of
territories situated at the border of two countries which both
claim sovereignty in that region.

On the Ecrehos and the Minquiers, English fishermen have
always been more numerous, much more numerous, than French
fishermen. References to English houses on the islets are quite
frequent and go back to ancient dates (Annexes A 51, A 54, A 61,
A 64 to British Memorial). These persons came from Jersey and
certainly from other islands close by. A further and more significant
fact is that the French were pushed back by the English. And ‘‘on
several occasions” the French Ministry of Marine stated it had
“requested our fishermen not to create incidents with the English
fishermen” (Oral Arguments).

But the most important consideration is not the mere going
into the territorial waters of the Minquiers and the Ecrehos. The
most important matter is the actual settling on the islets. But I
consider that the French never remained there. The French Gov-
ernment has sought to explain this fact by referring to prevailing
winds and currents (Oral Arguments). Whatever may have been
the cause, the fact gives rise to certain consequences.

An attempt has been made, without success, to show that the
1839 Convention gave the French “not only a right to fish around
the Minquiers and the Ecrehos, but also a right to go ashore on the
islets and to settle there” (Oral Arguments). But it has not been
said that they landed there frequently, or even less, that they
actually settled there in any numbers.

20. Maps.—It is necessary to say something on the evidence
supplied by maps. I know that such evidence is not always decisive
in the settlement of legal questions relating to territorial sovereignty.
It may however constitute proof of the fact that the occupation
or exercise of sovereignty was well known. The Parties have
admitted this and have based certain contentions on documents
of this kind. The United Kingdom Government has cited the map
by Stieler, editions of 1905 and 1932, which show the disputed
islets as British. The French Agent has submitted several other
maps (Oral Arguments); some of these regard the Ecrehos as
British but make no reference to the Minquiers. Still other maps
omit both groups, or in some cases show the Ecrehos as falling
outside the British zone. A searching and specialized study
would be required in order to decide which of the contending
views in respect of maps should prevail. At any rate, maps do not
constitute a sufficiently important contribution to enable a decision
to be based on them. I shall not take the evidence of maps into
consideration.

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MINQUIERS AND ECREHOS (INDIV. OPIN. M. LEVI CARNEIRO) 106

21. French protesis.—By fixing the “critical date’’ in the year
1839, and by stating that very few documents have come down
from the Middle Ages by reason of the destruction of a substantial
portion of the Norman archives (Oral Arguments) and that the
more ancient documents have disappeared, that they were fre-
quently very badly drafted, or may even never have existed at all,
the French Government has sought to reduce considerably the
volume of evidence upon which the Court may base its decision.
Nevertheless, that same Government did not fail to consider acts
subsequent to 1839, as the proceedings progressed, or to invoke
them in support of its case. Such acts are much more numerous
and more significant on the English side than on the French side.
The French Government has invoked the protests which it made
against several such acts. And since these protests were not
made against the most important of these acts, the French Govern-
ment has sought to explain this on the ground that the protests
were solely directed against acts which did not signify an
exercise of sovereignty because, according to its interpretation,
both States were authorized to carry out such acts by the
Convention of 1839. This interpretation has been rejected by
the Court in its Judgment. There can consequently no longer be
any excuse for the failure of the French Government to protest
against the acts by which the British Government exercised sover-
eignty over the disputed islets. The French protests were even
inadequate and ineffective in respect of British acts of another
order. The words of the Permanent Court of International Justice
in the Eastern Greenland case (p. 62) may be repeated here:
the character of the acts of the British Government is not altered
by the protests which, from time to time, were made by the French
Government.

In no case did the French protest produce as effective a result
as that of the British Government in the case, mentioned in the
Judgment, of the construction of a house on the Minquiers by
a French national. As regards the Ecrehos, no protests were
made after 1888 for sixty years. The French Government has
sought to explain the absence of protests by relying on two
grounds which must now be considered. According to the first,
it was “impossible” for France to “keep the United Kingdom
Government continually under surveillance’ (Rejoinder, Part I,
Section II, Sub-Section I). Such an impossibility is quite under-
standable, but that was not the question. All that was required
of the French Government was that it should have kept the islets
under surveillance, just as the British Government had done, a
surveillance which had permitted the latter Government, as I have
already pointed out, to cause the construction of a house to be
stopped immediately. Failure to exercise such surveillance and
ignorance of what was going on on the islets indicate that France
was not exercising sovereignty in that area.

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The second ground on which the French Government seeks to
rely relates to the very important matter of the rating of houses
on the Ecrehos bv the Jersey authorities. The French Government
has not chosen to apply to this matter the justification referred
to above, and it has stated (Rejoinder, Part I, Section II, Sub-
Section I): ‘that these measures were carried out in Jersey and
did not give rise to any important or overt act in the territory
under dispute”. It might be said, according to the foregoing
justification, that even if the payment of taxes had been carried
out on the islets, the French Government would have been una-
ware of this fact because it was ‘impossible for it to keep the
United Kingdom Government continually under surveillance”.
Indeed, the levying of taxes must necessarily have given rise to
acts of authority on the islets themselves. But what is more
important is the contrast between the attitude of the Jersey tax
authorities and that of the French Government, or of some of its
administrative departments, which never attempted to obtain any
fiscal contribution from the disputed islets. They did not do so,
nor—so far as I am aware—did they ever attempt to do so.

The action of the British Government on the islets became
more continuous and more intensive. The French Government
then asks the Court : “Should we, on our side, have resorted to force
and war? For this is not a negligible point in the period which runs
from approximately 1875 to 1904... The relations between our two
countries were not what they are to-day.... Should we therefore
have made a greater demand ; should we have defied the British
Government, and provoked a breaking off of relations because of the
Minquiers and the Ecrehos ? It was sufficient to protest on paper....”’

It is impossible to say too much in praise of the French Govern-
ment for not having resorted to force and war, but if there were
other more important disputes between the two countries, the
same considerations which restrained the French Government
should also have restrained the British Government, yet while
the latter acted and continued to exercise its sovereignty, the
French Government was satisfied to make a “‘paper’’ protest.
Could it not have done anything else ? It could have, and it ought
to have, unless I am mistaken, proposed arbitration; all the
more so since the two States were bound by the Treaty of
October 14th, 1903, which provided for the settlement by the
Permanent Court of Arbitration of all legal disputes or disputes
involving the interpretation of a treaty.

The French Government has referred to the arbitral award in
the Chamizal case and has cited the following passage : ‘‘In private
law, the interruption of prescription is effected by a suit but in
dealings between nations this is, of course, impossible, unless and
until an international tribunal is established for such purposes.”
(Oral Arguments.) This award was made in 1911 and relates to
facts in the period 1848-1895. At that time there was no inter-

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national court. The award makes such a course contingent upon
the existence of such a tribunal: “wntil an international tribunal
is established....”. But such a tribunal has now been created
and has existed for many years. Why did France not at least
propose that the dispute should be referred to this tribunal, as
England has done, after more than half a century of intermittent
and fruitless discussion? The failure to make such a proposal
deprives the claim of much of its force ; it may even render it
obsolete.

Without dwelling on this matter, which in my opinion is obviously
an important one, I consider that the action of the Court might
easily be restricted or even nullified if disputes were allowed to
be prolonged indefinitely without good reason and if an attempt
were not made to obtain the Court’s decisive intervention but
preference were given to mere periodical and ineffectual “paper”
protests. This state of affairs would be incompatible with the
régime under which the rights of each State would be specified and
guaranteed.

22. Two further pieces of evidence.—The position which was
achieved in the second half of the nineteenth century became
definitive. It has been very well described by two famous French-
men.

The first of these is Victor Hugo. The French Government has
cited his novel Les Travailleurs de la Mer, written around 1866,
when Victor Hugo lived at Guernsey. In the introduction to this
book the following words also deserve to be quoted, and I have
myself italicized some of them : ‘‘The Channel Islands are pieces of
France that have fallen into the sea and have been gathered up by
England” (p. XXI). “The archipelago is made up of four islands ....
without mentioning the islets” (p. XXI). “Facing France, the inden-
tation of the Jersey coast at St. Aubin seems like the opening of
a hive towards which these two scattered but separate groups, the
Grelets and the Minquiers, appear to swarm” (p. XXV). Hugo
noted that the local population were Normans and that they had
not forgotten that it was Normandy that had conquered England.
He might have said that there was no English domination but
rather union with England. He also pointed out that the English
called the archipelago the ‘‘Norman islands’ and that the
French called them “English islands’? and Hugo himself called
them ‘îles de la Manche” or, in English, “Channel Islands”.

The other piece of evidence is supplied by the famous geographer,
Elisée Reclus. I shall take the liberty of changing the order of the
words in his proposition (Nouvelle Géographie universelle, ed. 1881,
Vol. II, p. 639), without altering their meaning, using the same
words as he did, some of which I have italicized : ‘‘Jersey, Guernsey,
Alderney and neighbouring archipelagos’, those lands which ‘the
English call the Channel Islands”, belong ‘‘politically to Great

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Britain” although they are ‘‘a natural dependency of French
Normandy”’.

23. Conclusion.—I should like to add two clarifications to the
operative clause of the Judgment.

The first relates to the possibility of appropriating the islets :
I would refer to “present or future appropriation”. The extent to
which the rocks are “capable” of appropriation is unspecified and
the Court cannot determine this point. It is a matter which cannot
be fixed in advance. Who could have foreseen in the not too distant
past that France would some day plan to utilize tidal power at
the Minquiers for the production of electrical energy ?

The purpose of the second clarification is to safeguard :

(a) The exercise of fishery rights in the waters of the Ecrehos
and the Minquiers, in accordance with the Agreement of Janu-
ary 30th, 1951 (Annex A 23 to British Memorial), signed by the
representatives of France and the United Kingdom and negotiated
by them at the same time as the Special Agreement of January 29th,
1950. The present Judgment in no way affects that Agreement.

(0) The possibility of English co-operation in carrying out the
French Government’s project for the production of electrical
energy by means of works in the Minquiers region, in accordance
with the declaration made by the British representative with the
authorization of his Government (Oral Arguments). I am willing to
believe that no judge nowadays can blindly follow the obsolete
rule fiat justitia, pereai mundus (Ripert, La règle morale dans les
Obligations civiles, passim). Still less can we be bound by such a
tule in the field of international law whose principles, as it has
been said, may represent the consecration of the former natural
law. And I would have been pleased to place on record the generous
declarations of the representative of the British Government.

(Signed) Levi CARNEIRO.

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