멩끼에 및 에크레호島 事件 = A Legal Study of the Minquiers and Ecrehos Case

다국어 초록 (Multilingual Abstract)

The Minquiers and Ecrehos case was brought before the International Court of Justice in 1951 by France and the United Kingdom, and the Court rendered Judgement on November 17, 1953.

(Facts)
From the geographical situations of the lslands concerend, we can find some conclusive facts as fol-lows : (1) The Minquiers are situated nearedr to Iles Chausey (Which belogs to France) than to Jersey (Which is English territory), (2) The Ecrehos are nearer to Jersey than to France. One of the rocks of the Ecrehos lies within the territorial waters of Jersey, (3) In both groups of Islands, there are islets and rocks to be capable of appropriation in international law, (4) The importance of the groups of an economic nature including fishing rights than strategical one, (5) As a sufficient amount of historical remains of both Parties are found on the groups, they should be carefully studied in legal sense.
With regard to the Minquiers and Ecrehos, both Parties delivered voluminous amount of historical evidences. Namely, before the Court, the British Government presented considerable amount of direct evidences such as the exercise of jurisdiction, local administration and legislation, e.g. criminal procee-dings, levying of taxes on houses, registration of fishing boats, contracts of sale regarding real property and inquest of corpse, while the French goverment stressed indirect evidences such as the feudal of ecclesiatical links in Middle Ages between the mainland and the groups of islands disputed. But the Court attached probative value the direct evidences of the United Kingdom.

(Legal issues)
Bothe Parties asserted their sovereign rights over the islets and rocks of the Minquiers and Ecrehos groups. To decide this question, the Court had to find which Party produced more convincing proof of the title to the groups. Under these conditions, the main legal issues involved in the present case which requested by both Parties may be shaped as follows :
(1) What is the "critical date?" And when is the date in the present case?
(2) To which Party the original or ancient title to the Minquiers and Ecrehos belongs respectively?
(3) If it is taken for granted that the original title belongs to France(or the United Kingdom), did France maintain her title until the critical date, or did France(or the United Kingdm) lose her title and did the United Kingdom (or France acquire it?)
(4) And if the status of both Parties are uncertain to decide to which party the original title belongs, which Parth really did aquire the original title before the critical date?

(Judgement)
Examining the eviences on titles invoked by both Parties, the Court found that neither of them suc-ceed in proving her orginal or ancient title and subsequent maintenance by effective possession. Accor-dingly, the Court have paid great attention to the various acts of sovereignty on which the so-called "doctrine of consolidation" may be based on. The Court attached the most probative value to the exer-cise of jurisdiction and local administration and to the legislation. So the court concluded that "the so-vereignty over the islets and rocks of the Minquiers and Ecrehos groups belongs to the United."

(Significance of the Judgement)
The judgment wasupheld unanimously by the Court. In addition, the amicable attitude toward the settlement of dispute between the Parties might well be highly estimated. It is really desirable for the international community to seek the reasonable way of settling controversies by "judicial" means toge-ther with "diplomatic" means at the same tiem for the final and amicable settlement of disputes.
The most important criteria in territorial disputes seems to be the principle of effective possession. This doctrine has been frequently relied on in the several cases such as the Palmas Islands case, the Eastern Greenl and case, the Minquiers and Ecrehos case and the Preah Vihear case, etc. As to the pending issue of Tokdo problem. Japan alleged her title to Tokdo islands on the basis of effective posse-ssion over the islands and the relative strength of evidence thereon. Because the territory problem bet-ween Korea and Japan is stated clearly in the Cairo Declaration and the Peace Treaty with Japan, it is truly a dangerous way of thinking to apply generally a certain international theory such as doctrine of effective possession to the spe-ific cases without considering particular situations of the disputed area.

목차 (Table of Contents)

• Ⅰ. 事 實
• Ⅱ. 判 決
• Ⅲ. 硏 究
• 參考文獻
• Resume