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The Gulf of Maine Case: The Nature of an Equitable Result

  • Jan Schneider (a1)

Extract

Pursuant to the recent four to one Judgment by a Chamber of the International Court of Justice in the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, Canada and the United States are to share Georges Bank. Canada has jurisdiction over approximately one-sixth of the Bank, including the resource-rich “Northeast Peak” and most of the “Northern Edge,” and the United States the remaining area. Since Georges Bank is one of the world’s most productive fishing grounds, and this was consequently a case about fish more than a traditional continental shelf delimitation, the Judgment means that these North American neighbors may have to work out cooperative arrangements for the conservation and management of the shared living resources of Georges Bank. The question naturally arises as to how this outcome was reached, and why it purports to fulfill the fundamental norm of the law of delimitation of maritime boundaries—namely, to achieve an “equitable result.”

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1 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246 (Judgment of Oct. 12), reprinted in 23 ILM 1197 (1984) [hereinafter cited as GOM].

2 In the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18, 59 (Judgment of Feb. 24), reprinted in 21 ILM 225 (1982), the Court set the standard, stressing that it is the equitable character of the result that is predominant. More fully, the Court explained (id.):

Since the Court considers that it is bound to decide the case on the basis of equitable principles, it must first examine what such principles entail. . . . The result of the application of equitable principles must be equitable. This terminology, which is generally used, is not entirely satisfactory because it employs the term equitable to characterize both the result to be achieved and the means to be applied to reach this result. It is, however, the result which is predominant; the principles are subordinate to the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an equitable result.

3 World Court Bars U.S. Claim to Ocean Bank, Wash. Post, Oct. 13, 1984, at A1, col. 1; Little, Ottawa Satisfied as World Court Sets Gulf Boundary, Globe & Mail, Oct. 13, 1984, at 1, col. 5. See also Simpson, How History Is Made, Globe & Mail, Oct. 13, 1984, at 6, col. 1.

4 A New U.S. Border (box and map at 1, col. 1), and Bernstein, , World Court Settles Dispute on U.S.-Canada Boundary, N.Y. Times, Oct. 13, 1984, at 3, col. 5; U.S. Fish Harvest Held Hurt by Court Boundary Decision, N.Y. Times, Oct. 14, 1984, §1, at 38, col. 1; Robbins, , New Englanders Protesting Loss of Fishing Area, N.Y. Times, Oct. 22, 1984, at A1, col. 1; Martin, , Nova Scotia Is Not Overjoyed by Its Fishing Share, N.Y. Times, Oct. 23, 1984, at A2, col. 3. See also Urquhart, , World Court’s Award to Canada of a Sixth of Georges Bank Upsets New Englanders, Wall St. J., Oct. 15, 1984, at 7, col. 1.

5 For discussion, see Nautilus, , Ocean Sci. News, No. 44, Nov. 26, 1984, at 1-3 .

6 Davis R. Robinson, the Agent of the United States, is also the Legal Adviser of the U.S. Department of State. Similarly, the Canadian Agent, Leonard H. J. Legault, Q.C., is the Legal Adviser of the Canadian Department of External Affairs.

Both parties were represented by highly distinguished counsel and advisers too numerous to list here. It might be mentioned, however, that the proceedings were opened on behalf of Canada by the then Minister of Justice and Attorney General of Canada, Mark MacGuigan, P.C., Q.C., M.P.

7 The United States and Canada have not fixed their two maritime boundaries on the West Coast, between Alaska and British Columbia and between British Columbia and Washington, out to 200 miles and beyond. Nor have they agreed on a boundary in the Arctic in the Beaufort Sea area. In addition, if one counts the inner and outer segments of the Gulf of Maine boundary still to be determined, and their dispute concerning sovereignty over Machias Seal Island in the Gulf of Maine, Canada and the United States could be said to have five remaining unresolved maritime boundary issues plus a territorial dispute.

8 The Boundary Treaty, as it entered into force Nov. 20, 1980, is found at TIAS No. 10204. The Boundary Treaty and its annexed Special Agreement are found in the United States Memorial [hereinafter cited as U.S. Mem.], 1 Annexes, Ann. 2, and the latter is reprinted in full in the Canadian Memorial [hereinafter Can. Mem.] at 3-6 and GOM, para. 5.

For the East Coast Fishery Resources Agreement, Mar. 29, 1979, S. Exec. Doc. V, 96th Cong., 1st Sess. (1979), see Can. Mem., 1 Annexes, Ann. 20.

9 Article 1 of the Special Agreement, supra note 8, provided that the question posed was to be submitted “to a Chamber of the International Court of Justice, composed of five persons, to be constituted after consultation with the Parties, pursuant to Article 26(2) and Article 31 of the Statute of the Court and in accordance with this Special Agreement.” See GOM, para. 3.

10 Special Agreement, supra note 8, Art. II(1). Point A was at lat. 44°11′12″ N, long. 67°16′46″ W. The triangle was determined by straight lines connecting the following sets of points: lat. 40° N, long. 67° W; lat. 40° N, long. 65° W; lat. 42° N, long. 65° W. See GOM, para. 15.

11 Special Agreement, supra note 8, Art. III(1). See GOM, para. 16.

12 Special Agreement, supra note 8, Art. II(4). See GOM, para. 16.

13 See ICJ Doc. C 1/CR 84/24, at 61-62 (May 9, 1984). Hereinafter these documents of the oral proceedings will be referred to simply by the Court’s identification; as the year is included in that identification, it will not be repeated.

14 See Special Agreement, supra note 8, Art. VI.

15 Id., Art. II(3). Commander Beazley is an expert hydrographer who served on the UK delegation to the Third United Nations Conference on the Law of the Sea. See GOM, para. 8. He was present during most of the oral proceedings in the Gulf of Maine case and was available for subsequent consultations with the Chamber. A Technical Report by Commander Beazley is appended to the Judgment of the Chamber.

16 See C 1/CR 84/17, at 61-76 (Apr. 19). See also GOM, para. 10.

17 See supra text at note 11.

18 U.S. Mem. at 3. All references to pleadings herein are to page numbers of the original pleadings.

19 North Sea Continental Shelf Cases (FRG/Den.; FRG/Ice.), 1969 ICJ Rep. 3 (Judgment of Feb. 20).

20 1982 ICJ Rep. 18.

21 Convention on the Continental Shelf, done Apr. 29, 1958, 15 UST 471, TIAS No. 5578, 499 UNTS 311. See GOM, paras. 84-90, 116-125, 167.

22 Article 6 of the Continental Shelf Convention, id., provides in pertinent part:

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.

23 Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Decisions of 30 June 1977 and 14 March 1978, 18 R. Int’l Arb. Awards 3, 18 ILM 397 (1979).

24 The United States and Canada agreed early on that the notional or hypothetical closing line for the Gulf of Maine should be drawn from Nantucket Island to Cape Sable. See, e.g., U.S. Mem. at 19 n.2, 173; United States Counter-Memorial [hereinafter cited as U.S. C.-Mem.] at 13 n.2, 21 n.2, 22 n.1, 184 and figs. 21, 36 and 38; United States Reply [hereinafter U.S. Rep.] at 119; Canadian Counter-Memorial [hereinafter Can. C.-Mem.] at 50-52, 297, figs. 12 and 51; Canadian Reply [hereinafter Can. Rep.] at 61. When specifically asked by Judge Mosler about the appropriateness of this closing line, C 1/CR 84/17, at 71 (Apr. 19), both parties continued to adhere to it. See C 1/CR 84/20, at 34-35 (May 4); C 1/CR 84/25, at 8, 62-63 (May 10). See also C 1/CR 84/1 , at 76 (Apr. 2); C 1/CR 84/2, at 56 (Apr. 3); C 1/CR 84/11, at 19 (Apr. 12).

The Chamber accepted this closing line as the boundary between the inner, or true Gulf of Maine zone, and the outer, or Atlantic zone, of the delimitation. See GOM, para. 33.

25 C 1/CR 84/17, at 62 (Apr. 19), quoted in GOM, para. 161.

26 U.S. Mem. at 139. Canada used a virtually identical formula: “in accordance with equitable principles, taking account of all the relevant circumstances, in order to achieve an equitable result.” Can. Mem. at 119. See also GOM, paras. 98-99. For present purposes, there can be left to metaphysics the difference between an “equitable solution” and an “equitable result.”

27 Fishery Conservation and Management Act of 1976, Pub. L. No. 94-265, 90 Stat. 331 (codified at 16 U.S.C. §1801 et seq. (1982)). The Magnuson Act is found at U.S. Mem., 1 Annexes, Ann. 8. It came into effect on Mar. 1, 1977.

28 Proposed Fishing Zones of Canada (Zones 4 and 5) Order, 110 Can. Gaz., pt. 1, Extra, No. 101 (Nov. 1, 1976). The Canadian Order-in-Council is found at Can. Mem., 2 Annexes, Ann. 29. The Canadian 200-mile fishing zone actually came into being before that of the United States, on Jan. 1, 1977. See note 30 infra.

29 Maritime Boundaries of the United States and Canada, 41 Fed. Reg. 18, 619 (1976). This notice is found at U.S. Mem., 4 Annexes, Ann. 64.

30 112 Can. Gaz., Extra, No. 79 (Sept. 15, 1978), found at Can. Mem., 2 Annexes, Ann. 41.

31 Exclusive Economic Zone of the United States of America, Proc. No. 5030, Mar. 10, 1983, 48 Fed. Reg. 10,605 (1983). The U.S. proclamation, and accompanying Statement by the President, Fact Sheet and Sketch Map, are found at Can. C.-Mem.( 4 Annexes, Ann. I. Canadian Note No. 160 on the subject of the U.S. declaration of an EEZ is found at id., Ann. 2.

32 U.S. Mem. at 179. The two terms are not the same. The last major segment of the land boundary between Maine and New Brunswick is a line running directly north/south along long. 67°47′ W. From the terminal point of this “due north” line, the boundary takes a south-by-southeasterly direction along the course of the St. Croix River, between U.S. and Canadian islands in Passamaquoddy Bay, and then down the Grand Manan Channel to the international boundary terminus at a point equidistant (3 miles) from both coasts. See GOM, para. 30.

33 See U.S. Mem. at 140-47, 213; U.S. C.-Mem. at 269; U.S. Rep. at 75-88, 165; C 1/CR 84/26, at 68 (May 11).

34 This claim of “dominance” was maintained by the United States from beginning to end of the proceedings. See, e.g., U.S. Mem. at 81-82:

No State questioned United States’ jurisdiction and control over the continental shelf of the Gulf of Maine Basin and Georges Bank until the 1960s. Through that long period, all activities in this area—fishing, charting and surveying, scientific research, and defense—evidenced the complete dominance of the United States over it.

This same claim was still put forward during the oral proceedings, C 1/CR 84/10, at 60-61 (Apr. 12):

In this case, the United States predominant interest in a large number of both resource and resource-related activities outweighs Canada’s recent interest in a scallop fishery on Georges Bank. In addition, the conduct of the Parties, taken as a whole, indicates that Canada’s challenges to the United States predominant interest in Georges Bank and the area south of the Northeast Channel have been both relatively recent and relatively limited.

35 See, e.g., U.S. Mem. at 191-92 and fig. 31; U.S. C.-Mem. at 184-93 and fig. 23; U.S. Rep. at 105-11; C 1/CR 84/11, at 49-66 (Apr. 12).

36 The United States claimed that the general direction of the coast in the relevant area, like the general direction of the East Coast of North America, is along an azimuth of approximately 54°. See, e.g., U.S. Mem. at 170 and fig. 26; U.S. C.-Mem. at 17-18 and fig. 3; U.S. Rep. at 96-97; C 1/CR 84/11, at 22-24 (Apr. 12). While contending that a macrogeographical general direction is irrelevant, Canada noted that the North American coast changes its general direction in the vicinity of Long Island, and that the macro-geographical general direction from Long Island to Cape Race is approximately 67°. See, e.g., Can. C.-Mem. at 40-41 and figs. 6 and 7.

On the distinction between “primary” and “secondary” coasts, see, e.g., U.S. Mem. at 19-20, 173-74; U.S. C.-Mem. at 23-25, 184-93; U.S. Rep. at 106-08, 146-48; C 1/CR 84/11, at 26-27 (Apr. 12). See also supra note 35.

37 On the U.S. claim that the general direction of the coast is 54° and the proper azimuth, therefore, 144°, see supra note 36; see also U.S. Mem. at 179 and fig. 28. The United States contended that this direction is confirmed by the direction of the last segment of the Maine- New Brunswick boundary, which was said to reach the sea at a bearing of approximately 151°. U.S. Rep. at 93-94 and fig. 6.

38 See U.S. Mem., fig. 31, repeated as U.S. C.-Mem., fig. 23 and U.S. Oral Proceedings, fig. 30.

39 1969 ICJ Rep. at 51, quoted in Tunisia/Libya case, 1982 ICJ Rep. at 61, and cited in, e.g., U.S. Mem. at 128, 140; U.S. C.-Mem. at 110, 136, 183, 189, 190, 265; U.S. Rep. at 64-65; C 1/CR 84/9, at 61-66 (Apr. 11); C 1/CR 84/24, at 48 (May 9).

40 1969 ICJ Rep. at 51, cited in U.S. Rep. at 108. See also 1969 ICJ Rep. at 32-33, quoted in U.S. Mem. at 140; U.S. C.-Mem. at 139; U.S. Rep. at 66; C 1/CR 84/11, at 32 (Apr. 12).

41 See U.S. Mem. at 117-20, 142-43; U.S. C.-Mem. at 217-26; U.S. Rep. at 79-88; C 1/CR 84/10, at 16-21 (Apr. 12); C 1/CR 84/15, at 5-71 (Apr. 18); C 1/CR 84/16, at 5- 32 (Apr. 18); C 1/CR 84/17, at 6-50 (Apr. 19); C 1/CR 84/26, at 16-45 (May 11).

42 See U.S. Mem. at 27-39; U.S. C.-Mem. at 37-45, 197-206; U.S. Rep. at 121-37; C 1/CR 84/10, at 45-55 (Apr. 12). See also sources cited supra note 41.

43 U.S. Rep. at 81, 82.

44 Id. at 82.

45 These regimes were said to be those of the Gulf of Maine Basin, Georges Bank and the Scotian Shelf. See U.S. Mem. at 27 et seq.; U.S. C.-Mem., Ann. 1; U.S. Rep. at 127. See also sources cited supra notes 41, 42.

46 U.S. Mem. at 36 and fig. 7, 206 and fig. 36; U.S. C.-Mem. at 217-21; U.S. Rep. at 133; C 1/CR 84/13, at 59 (Apr. 16); C 1/CR 84/14, at 5-9 (Apr. 16); C 1/CR 84/17, at 15-22 (Apr. 19). According to the United States, the 16 species are: *silver hake, *herring, mackerel, *haddock, *cod, pollock, *longfin squid, *red hake, *yellowtail flounder, shortfin squid, argentine, *redfish, *scallops, *white hake, *lobster and *cusk (* identifies species claimed by the United States to break at the Northeast Channel).

47 U.S. Mem. at 35-39, 206. See also sources cited supra notes 42, 45-46.

48 U.S. Rep. at 87.

49 Id. at 88.

50 Id. at 93-132. See also U.S. Mem. at 11-25 et seq.; U.S. C.-Mem. at 13-14, 183-206. At the stage of the oral proceedings, the United States separated out the following as additional relevant geographic circumstances: (1) the relationship of the parties’ coasts to one another; (2) the comparability of the parties’ coasts in relation to one another and in relation to the land boundary; and (3) the relationship of the Bay of Fundy to the relevant area, to the area in which the delimitation takes place and to the proportionality test area. C 1/CR 84/11, at 19 et seq. (Apr. 12). See also C 1/CR 84/25, at 6-28 (May 10).

51 U.S. Rep. at 122-32. See also U.S. Mem. at 20-23; U.S. C.-Mem. at 28-29.

52 U.S. Mem. at 63-87 and figs. 12-16. See also U.S. Rep. at 139-40; C 1/CR 84/10, at 50 (Apr. 12). The “lobster line” was a creature of the U.S. Bartlett Act, Pub. L. No. 88- 308, 78 Stat. 194 (formerly codified at 16 U.S.C. §§1081-1085 (1964)); the United States enforced this line for a period of less than 15 months, but not against Canadian fishermen.

53 See U.S. Rep. at 25-47; C 1/CR 84/9, at 13-18 (Apr. 11). The Truman Proclamation, 3 C.F.R. 67 (1943-48), and its accompanying press release are reprinted at U.S. Mem., 1 Annexes, Ann. 3. The United States did not contend that the reference in the press release to the 100-fathom depth contour constituted a U.S. boundary claim in the Gulf of Maine area. As the proclamation itself noted, the boundaries themselves would be established by agreement in accordance with equitable principles. Rather, the United States contended that the description of the U.S. continental shelf in the press release would not countenance a unilateral claim by Canada to any portion of Georges Bank, and Canada was put on notice of this. U.S. Rep. at 23 n.2; see also C 1/CR 84/9, supra, at 14.

54 C 1/CR 84/24, at 19 (May 9). See generally id. at 19-23. See also GOM, para. 161.

55 C 1/CR 84/24, at 20 (May 9).

56 The question appears at C 1/CR 84/17, at 68 (Apr. 19). The U.S. reply is found at C 1/CR 84/24, at 10 (May 9). See generally id. at 10-19.

57 Although acknowledging that “Article 6 would, of course, govern a delimitation between the Parties to that convention if the delimitation related only to the continental shelf,” the United States maintained that “because the law relating to a single maritime boundary that also delimits fisheries or economic zones must be identified and applied in this case, the Continental Shelf Convention is not binding as a matter of treaty law.” C 1/CR 84/24, at 11 (May 9).

58 Id. at 13.

59 U.S. Rep. at 13. See generally id. at 13-23.

60 Can. C.-Mem. at 227; Can. Rep. at 18. Canada also put forward three specific principles claimed to lead to an equitable result in this case:

(a) In the geographical and other circumstances of this case, the boundary should leave to each Party the areas of the sea that are closest to its coast, provided that due account is taken of the distorting effects of particular geographical features in the relevant area.

(b) The boundary should allow for the maintenance of established patterns of fishing that are of vital importance to coastal communities within the relevant area.

(c) The boundary should respect the indicia of what the Parties themselves have considered equitable as revealed by their conduct.

Can. C.-Mem. at 252-53; C 1/CR 84/1, at 42 (Apr. 2).

61 Fisheries Jurisdiction Case (FRG v. Ice.), Merits, 1974 ICJ Rep. 175, 202 (Judgment of July 25). See also Can. Mem. at 122; Can. C.-Mem. at 227; Can. Rep. at 18.

62 C 1/CR 84/17, at 68 (Apr. 19); see generally id. at 34-39. See also GOM, para. 161.

63 While Article 6 was as a matter of treaty law applicable only to the continental shelf, Canada reminded the Chamber that its equidistance-special circumstances rule had been described as a “particular expression of a general norm,” and claimed that the conduct of both parties with respect to their fisheries zones indicated a shared assumption that the principles of Article 6 would apply to their delimitation as well. C 1/CR 84/17, at 35-36 (Apr. 19).

64 Convention on the Law of the Sea, done Dec. 10, 1982, reprinted in United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea (UN Pub. No. E.83.V.5). Article 74, on delimitation of the exclusive economic zone, and Article 83, on delimitation of the continental shelf, provide identically in paragraph 1 that delimitation “shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” See Can. Mem. at 122-23.

65 See Can. Mem. at 123-27, 131-34; Can. C.-Mem. at 229-30; Can. Rep. at 24-25, 119- 22; C 1/CR 84/3, at 33-72 (Apr. 4); C 1/CR 84/20, at 41-79 (May 4).

66 See Can. Mem. at 126-27; Can. C.-Mem. at 230-33; Can. Rep. at 25-27; C 1/CR 84/1, at 61-70 (Apr. 2); C 1/CR 84/18, at 19-20 (May 3).

67 See Can. C.-Mem. at 62-63, 201, 233-42; Can. Rep. at 29; C 1/CR 84/6, at 64-71 (Apr. 6); C 1/CR 84/18, at 54 (May 3); C 1/CR 84/19, at 58-63 (May 4).

68 See Can. Mem. at 59-82; Can. C.-Mem. at 118-24, 242-46; Can. Rep. at 119-34; C 1/CR 84/1, at 43-44, 61-70 (Apr. 2); C 1/CR 84/18, at 18-24 (May 3).

69 See Can. Mem. at 83-91; Can. C.-Mem. at 126-41; Can. Rep. at 134-38.

70 See Can. Rep. at 41-64. See also Can. Mem. at 21-36; Can. C.-Mem. at 29-67; C 1/CR 84/2, at 36-46 (Apr. 3).

71 See Can. Rep. at 65-84. See also Can. Mem. at 37-58; Can. C.-Mem. at 68-99; C 1/CR 84/4, at 5-48 (Apr. 4).

72 See Can. Rep. at 55-64 and figs. 10 and 11. See also Can. Mem. at 27-36 and fig. 10, showing the “coastal wings”; Can. C.-Mem. at 100-25; C 1/CR 84/2, at 40 (Apr. 3); C 1/ CR 84/3, at 23-24 (Apr. 4).

73 See Can. Mem. at 109-15, 135-36; Can. C.-Mem. at 155-60; Can. Rep. at 105-07; C 1/CR 84/2, at 15-16 (Apr. 3); C 1/CR 84/5, at 19-20 (Apr. 5).

74 See Can. Mem. at 92-99 and fig. 31, 159-72 and fig. 35; Can. C.-Mem. at 143-48 and figs. 31-32; Can. Rep. at 88-98; C 1/CR 84/4, at 49-74 (Apr. 4); C 1/CR 84/5, at 30- 52 (Apr. 5); C 1/CR 84/21, at 5-19, 35-45 (May 5). See also U.S. Mem. at 82-83; U.S. C.-Mem. at 95-101; U.S. Rep. at 31-32.

75 See U.S. Mem. at 60. See also sources cited supra note 74.

76 U.S. Mem. at 58. These claims were later reiterated and expanded. Letter from the Agent of the United States to the Registrar of the Court, Jan. 27, 1984.

77 Aide-mémoire from the United States to Canada, Nov. 5, 1984, Can. Mem., 3 Annexes, Ann. 13. See also sources cited supra note 74.

78 The “BLM line” was so called after the U.S. Bureau of Land Management. The BLM, within the Department of the Interior, was responsible for U.S. continental shelf policy at the time. On the BLM line, see Can. Rep. at 85-86 et seq.; C 1/CR 84/5, at 35-36 et seq. (Apr. 5); C 1/CR 84/24, at 39-41 (May 5). Compare C 1/CR 84/14, at 26-31 (Apr. 16); C 1/CR 84/23, at 59-62 (May 9).

79 The second equidistance line was a “mainland-to-mainland” equidistance line, using a base point on Cape Cod (and, therefore, not really “mainland”) but disregarding both Seal Island and Cape Sable Island in Nova Scotia. Canada contended that this line was used by more than 55 U.S. oil companies as the northeast boundary of their proposed surveys in applying to the United States Geological Survey for permits, and that the permits were issued as requested. See C 1/CR 84/5, at 33-36 (Apr. 5).

80 See Can. Mem. at 12, 105-06, 143-46 and fig. 33; Can. C.-Mem. at 48, 55-56, 287- 89, 290, 296; Can. Rep. at 52-54, 58-59, 163; C 1/CR 84/2, at 69-70 (Apr. 3).

81 See note 74 supra and accompanying text.

82 See Can. Mem. at 159-80; Can. C.-Mem. at 152-55; Can. Rep. at 84-98; C 1/CR 84/4, at 49-74 (Apr. 4); C 1/CR 84/21, at 5-19 (May 5).

83 Letters from the U.S. Bureau of Land Management to the Canadian Department of Northern Affairs and National Resources, Apr. 1, 1965 and May 14, 1965 and letter from the U.S. Embassy in Ottawa to the Canadian Department of Mines and Technical Surveys, Aug. 16, 1966, Can. Mem., 3 Annexes, Anns. 1, 4 and 7; U.S. Mem., 4 Annexes, Anns. 53 and 54. See note 74 supra and accompanying text.

84 GOM, Dissenting Opinion of Judge Gros [hereinafter cited as Gros Dissent], para. 2.

85 U.S. C.-Mem. at 13-16, 27-28, 37-39, 47-48, 77-78; Can. C.-Mem. at 25-28.

86 See note 26 supra and accompanying text.

87 See note 39 supra and accompanying text. See also Can. Mem. at 122, 129-30, 151-52; Can. C.-Mem. at 33, 231; Can. Rep. at 6, 33-34, 55-64, 139; C 1/CR 84/1, at 63 (Apr. 2).

88 U.S. Mem. at 19; Can. Mem. at 137.

89 See supra note 24.

90 Compare U.S. Mem. at 19; with id. at 192-201; U.S. C.-Mem. at 196-97 and figs. 24 and 25; U.S. Rep. at 37-40 and figs. 2 and 3. See also Can. Rep. at 45-47 and figs. 4 and 5.

91 U.S. Mem. at 20, 24; U.S. Rep. at 122. Compare Can. Mem. at 37, 47.

92 See U.S. Mem. at 20-24; Can. Mem. at 24-25, 47.

93 See U.S. Mem. at 41-56; U.S. C.-Mem. at 48-63; U.S. Rep. at 137-39. Compare Can. Mem. at 83-89; Can. C.-Mem. at 126-41; Can. Rep. at 105-08, 122-26. See also C 1/CR 84/5, at 9-19 (Apr. 5); C 1/CR 84/13, at 9, 17-23 (Apr. 16); C 1/CR 84/21, at 20-24 (May 5); C 1/CR 84/23, at 43-51 (May 9).

94 See U.S. C.-Mem., 3 Annexes, Ann. 4, App. B at 2-3, tables 1 and 2. Accord Can. Rep. at 128.

95 See note 8 supra and accompanying text.

96 See note 21 supra and accompanying text.

97 See U.S. Mem. at 83; U.S. C.-Mem. at 95-101; U.S. Rep. at 32; C 1/CR 84/14, at 16- 46 (Apr. 16); C 1/CR 84/23, at 21-25 (May 9). Compare Can. Mem. at 92-93; Can. C.Mem, at 143-45; Can. Rep. at 86-94; C 1/CR 84/4, at 49-74 (Apr. 4); C 1/CR 84/5, at 33-52 (Apr. 5); C 1/CR 84/21, at 5-19, 35-45 (May 5).

98 At the beginning of the Canadian Reply (pp. 10-14), an attempt was made at a comprehensive identification of these issues, and the present summary will draw on the Canadian discussion. See Art. 49(2) of the Rules of Court, reprinted in 73 AJIL 748, 764 (1979). Although the United States did not draw up its own comparable express list, its oral presentation recognized and addressed most of the same issues (although there were, of course, a significant number of instances in which the presentations of the two parties were like the proverbial ships passing in the night).

99 In the Tunisia/Libya Continental Shelf case, 1982 ICJ Rep. at 58, the Court denned its task as “to apply equitable principles as part of international law, and to balance up the various considerations which it regards as relevant in order to produce an equitable result.”

100 Compare supra text at notes 35-40 with text at notes 66-67.

101 See supra text at notes 32, 36-37. Even if the U.S. view of the importance of the general direction of the North Atlantic coast were accepted, the parties could not agree on what that direction is. See supra note 36.

102 More specifically, the United States contended that the United States and Canada are “adjacent States across the entire North American Continent,” that “[t]he broad relationship of the coasts of the Parties within the Gulf of Maine is that of adjacent States,” and that “the relationship of the United States and Canadian coasts is also adjacent seaward of the Gulf of Maine.” U.S. Mem. at 169. See also U.S. C.-Mem. at 18-22; U.S. Rep. at 115-19. Canada responded that the first point, while technically accurate, was either “meaningless or misleading” in the context of maritime delimitation, that the relationship of the parties within the Gulf of Maine is “predominantly one of oppositeness,” and that the situation in the outer area is “less clear-cut” and is “a complex one that combines elements of both oppositeness and adjacency, in varying degree.” Can. C.-Mem. at 44, 45. See also Can. Mem. at 142-43; Can. Rep. at 48-54.

103 See supra text at note 80.

104 See U.S. Mem. at 14; see also id. at 20, 173-74; U.S. C.-Mem. at 25 n.2; U.S. Rep. at 94. Compare Can. C.-Mem. at 55-56; Can. Rep. at 52-54 and fig. 9. Nova Scotia has a landmass 38.4 times that of Cape Cod and its off-lying islands. Can. Rep. at 54.

105 See supra text at notes 42, 45-47.

106 See note 46 supra and accompanying text.

107 U.S. Mem. at 144, 121. See also, e.g., id. at 175-76, 201, 206.

108 Dr. Edwards has had a distinguished career in the field of fisheries management, including as Special Assistant to the Assistant Administrator of Fisheries, U.S. National Oceanic and Atmospheric Administration (NOAA). He is currently director of a research laboratory at the Northeast Fisheries Center, National Marine Fisheries Service, NOAA, U.S. Department of Commerce. He and two colleagues authored the Environmental Annex to the U.S. Counter-Memorial (Ann. 1).

109 C 1/CR 84/15, at 8-71 (Apr. 18).

110 Cross-examination of the U.S. expert, C 1/CR 84/16, at 5-32 (Apr. 18), was conducted by Yves Fortier, Q.C., past President of the Canadian Bar Association.

111 In the course of his examination in chief, Dr. Edwards had discussed haddock, cod, herring, yellowtail flounder, scallops and lobster. Cross-examination dealt with longfin squid, cusk, white hake and redfish. See supra note 46.

112 C 1/CR 84/16, at 31 (Apr. 18). The quotation is from an article written by Dr. Edwards in 1978, entitled North Atlantic Fisheries: Recent Changes in Population and Outlook. The United States said that it did not find Dr. Edwards’s statement, in its full context, inconsistent with his testimony. See C 1/CR 84/26, at 31 (May 11).

113 Can. Rep. at 81-82.

114 Unfortunately, the parties use slightly different and confusing terminology. Basically, it seems that Canadian “permits,” like U.S. “leases,” confer long-term, exclusive continental shelf rights. U.S. geophysical survey “permits,” like Canadian exploratory “licenses,” grant nonexclusive authorization to do exploratory work in offshore areas; they both expire annually. For discussion, see Can. Rep. at 99; C 1/CR 84/5, at 31-32 (Apr. 5).

115 On the Canadian permits, see supra text at notes 74-75. The United States issued a “call for nominations” for tracts on Georges Bank in 1975, but did not actually hold a lease sale until 1979. Since the northeast portion of Georges Bank was already in dispute by 1976, quite properly, the United States withdrew the tracts in the disputed area from the proposed sale that year. For discussion, see U.S. Mem. at 84-86; Can. Mem. at 99.

116 See supra text at notes 76-79.

117 See supra note 8 and accompanying text; text at note 95.

118 For the Canadian view, see supra text at note 53. For the U.S. rejection of this argument, see U.S. C.-Mem. at 214-17; C 1/CR 84/14, at 46-73 (Apr. 16); C 1/CR 84/23, at 65-74 (May 9).

119 The figure of up to 30,000 square nautical miles represents the difference between the U.S. claim as revised at the Memorial stage and the Canadian claim in the area within the 200-mile arcs used for the fisheries or economic zones of the parties. As regards subsequent delimitation, not involved in this case, of the continental shelves of the parties beyond 200 miles, there may be up to another 20,000 or so square nautical miles at issue. These mileage figures are obviously approximate, and they also vary depending on what is used as the outer limit of the disputed area.

120 U.S. Mem. at 192-201 and figs. 34 and 35. The lines were drawn on a Mercator projection. The end points of these “perpendicular” lines were connected by a “straight” line, and the fourth or inner boundary of this test area consisted of a line from Nantucket across to Cape Cod, then a trace following the sinuosities of the New England coast to the vicinity of the Canadian border, followed by a closing line across the mouth of the Bay of Fundy, and then a trace of the Canadian coast from Yarmouth around to the point beyond Halifax.

121 Figure 34 of the U.S. Memorial applied this proportionality test to the U.S. “adjusted perpendicular” line; it found a ratio, if the area were to be delimited by this line, of United States:Canada, 63:37. Figure 35 applied the same test to “the equidistant line,” resulting in a ratio of United States:Canada, 36:64.

122 Figure 24 of the U.S. Counter-Memorial applied this modified test to the U.S. “adjusted perpendicular line,” resulting in a ratio of United States:Canada, 62:38. Figure 25 applied the same test to “the Canadian line,” resulting in a ratio of United States:Canada, 42:58.

In the U.S. Reply, the proportionality test developed in the Counter-Memorial was used again. Figure 2 applied it to “the line proposed by the United States in 1976,” resulting in a ratio of United States:Canada, 54:46. Figure 3 applied the test to “the 1976 Canadian line,” resulting in a ratio of United States:Canada, 45:55.

123 Can. C.-Mem. at 294-300. See also Can. Mem. at 152-55; Can. Rep. at 159-63.

124 Canadian Proportionality Test A in figure 51 of the Canadian Counter-Memorial resulted in area ratios for the Canadian and U.S. lines respectively of Canada:United States, 42:58 and 19:81.

125 The inner side of the area was in both cases composed of straight baselines from Nantucket to Cape Ann, on to Cape Elizabeth, from there to Cape Maringouin in the vicinity of the Chignecto Isthmus, across to Cape Split, southwest to a point near Digby, on to Cape St. Marys, Cape Sable and Lunenburg. Proportionality Test B in figure 52 of the Canadian Counter-Memorial resulted in area ratios for the Canadian and U.S. lines of Canada:United States, 39:61 and 18:82.

126 Can. C.-Mem. at 300-02 and fig. 53. Figure 53 showed the offshore oil and gas exploratory permits in the Gulf of Maine area as depicted in the U.S. National Oceanic and Atmospheric Administration, Eastern United States Coastal and Ocean Zones Data Atlas (1980). Outstanding U.S. leases, and Canadian permits are divided by an equidistance line on Georges Bank. See supra text at notes 74-75, 81-83, 97, 114-15.

127 Can. C.-Mem. at 300-02 and fig. 54. Canada did a computer analysis of catch “entitlements” or allocations to each party under the 1979 East Coast Fishery Resources Agreement for 13 species. Lines were then computed dividing the biomass of each species in accordance with the allocations in the agreement, the species were weighed in proportion to their potential yield and commercial value, and a composite line was computed dividing the complex of species in question according to the allocations contained in the agreement. The composite line that resulted was very close to the Canadian claim (a few miles to the northeast).

128 GOM, paras. 20-23.

129 1982 ICJ Rep. 18 and 1969 ICJ Rep. 3.

130 GOM, paras. 24-25.

131 Id., para. 27.

132 Id., paras. 28-35.

133 Id., para. 36.

134 Id., para. 41.

135 Id., para. 44.

136 Id., paras. 45, 46.

137 Id., para. 54.

138 Id., para. 59.

139 Id., para. 69.

140 Id., paras. 70-78.

141 Id., para. 70.

142 Id., para. 78.

143 Id., paras. 84-90.

144 Id., paras. 91-93.

145 Id., paras. 94-96.

146 Id., paras. 102-107.

147 Id., para. 108.

148 Id., para. 109. The Chamber gave some other examples of false “principles” advanced by the parties as rules of law, such as Canada’s idea that a single maritime boundary should ensure the preservation of existing fishing patterns, or the idea advocated by the United States that a boundary should make it possible to ensure the optimum conservation and management of living resources and at the same time reduce the potential for future disputes between the parties.

149 Id., para. 112.

150 Id., para. 118.

151 Id., paras. 119-125.

152 Id., paras. 128-152.

153 Id., para. 138.

154 Id., para. 153.

155 Id., para. 167.

156 Id., para. 168.

157 Id., para. 177.

158 Id., paras. 184-186.

159 Id., para. 194.

160 Id., para. 195.

161 Id., para. 197; see also para. 195.

162 Id., paras. 195-201.

163 Id., paras. 202-205.

164 Id., para. 207.

165 See also id., paras. 209-214.

166 Id., para. 214.

167 Id., para. 217.

168 The Chamber included the coast of the Bay of Fundy to that point where there ceased to be any waters more than 12 miles from a low-water line. In using coasts on both sides of the Bay of Fundy, the Chamber rejected a U.S. argument that parallel coasts should not be double-counted. See id., para. 221.

169 A technical report of the expert, Commander Beazley, supra note 15, is annexed to the Judgment of the Chamber. It demonstrates how these and other calculations were made and points located.

170 Such a line reaches from the tip of Cape Cod to Chebogue Point. See GOM, para. 223.

171 See also id., paras. 214-223.

172 Id., para. 224.

173 See also id., paras. 224-229.

174 Id., para. 230.

175 Id., paras. 230-231.

176 Id., paras. 233-234.

177 Id., para. 235.

178 Id., para. 237.

179 Id.

180 Id., para. 238.

181 Id., para. 240.

182 According to Judge Schwebel, this would include the coast of New Brunswick from the international border as far as Point Lepreau and, at most, St. John, together with the length of a closing line running from one of those points to Brier Island, Nova Scotia.

183 GOM, Gros Dissent, para. 3 et seq.

184 Id., para. 27.

185 Id., para. 38.

186 Id.

187 Id., para. 45. For the construction of the Gros equidistance line, Canada’s Cape Brier, Tuscet and Cape Sable Islands and the U.S. Great Wass, Mount Desert and Vinalhaven Islands were all treated as part of the mainland. No account was taken of Nantucket or the other islands and islets south of Cape Cod, or of Seal Island off Nova Scotia. Id. Judge Gros’s line crosses Georges Bank about 14½ miles west of the Chamber’s line. Id.

188 Id., para. 47.

189 Id.

* The author served as a legal adviser to Canada during the Gulf of Maine proceedings. The views expressed in this article, however, are solely her own and do not necessarily reflect Canadian views.

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