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Some Perspectives on Adjudicating Before the World Court: The Gulf of Maine Case

  • Davis R. Robinson (a1), David A. Colson (a2) and Bruce C. Rashkow (a2)

Extract

On October 12, 1984, a five-member Chamber of the International Court of Justice rendered its decision in the maritime boundary dispute between the United States and Canada in the Gulf of Maine area. The Chamber delimited the continental shelves and 200-nautical-mile fisheries zones by setting one line between the two countries off the East Coast of North America. The Chamber’s Judgment, which under Article 27 of the Statute of the Court is considered as if it were rendered by the full 15-member Court, is likely to attract considerable comment. We will resist the temptation to add our views to that substantive commentary, leaving analysis for the time being to others not so closely associated with the case.

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

2 Art. III of the Treaty of Peace of 1783, 8 Stat. 80, TS No. 104.

3 Annex 17 of the United States Memorial contains a list of 15 treaties or other international agreements concluded between 1818 and 1912 that related to U.S.-Canada East Coast fisheries.

4 Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Seabed of the Continental Shelf, Sept. 28, 1945, 10 Fed. Reg. 12, 303 (1945), 3 C.F.R. 67 (1943-48).

5 With 200 nautical miles considered as the outer limit, the overlapping claims of the parties resulted in a disputed area of 17,650 square nautical miles. Of this area, 5,450 square nautical miles fell within the 100-fathom depth contour of the Georges Bank area.

6 The senior-level negotiators were Lloyd Cutler for the United States and Marcel Cadieux for Canada.

7 Maritime Boundary Settlement Treaty with Canada, TIAS No. 10204, and the Agreement on East Coast Fisheries Resources with Canada, S. Exec. Doc. V, 96th Cong., 1st Sess. (1979). For a further description of the two treaties, see Feldman & Colson, The Maritime Boundaries of the United States, 75 AJIL 729, 760-63 (1981).

8 Giniger, Treaty Delay Snags U.S. Ties to Canada, N.Y. Times, June 15, 1980, at A12, col. 1; Canadian Memorial, 2 Annexes, Ann. 46.

9 De-linkage of the two treaties was accomplished by a message from the President to the Senate requesting the return of the fisheries treaty, a favorable report on the President’s request by the Senate Foreign Relations Committee and the return of the fisheries treaty to the President by Senate resolution.

10 Maritime Boundary Settlement Treaty with Canada, S. Exec. Rep. No. 5, 97th Cong., 1st Sess. (1981). Several additional technical changes were also made.

11 From 1977, and throughout the pendency of the case, the United States and Canada informally agreed not to engage in law enforcement activities against the vessels of the other party in the disputed area.

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

13 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18 (Judgment of Feb. 24).

14 Jiménez de Aréchaga, The Amendments to the Rules of Procedure of the International Court of Justice, 67 AJIL 1 (1973).

15 Statute of the International Court of Justice, Art. 26, para. 2.

16 Jiménez de Aréchaga, supra note 14, at 3.

17 Judge André Gros of France was elected to the Chamber just prior to the expiration of his term of office as a Member of the Court on Feb. 1, 1982. The Statute and Rules of Court permitted him to sit as judge on the Chamber after that date. See Jiménez de Aréchaga, supra note 14, at 4.

18 In fact, the Court appointed a Chamber that included Judge Ruda who stepped aside in favor of Canada’s judge ad hoc.

19 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), Constitution of Chamber, 1982 ICJ Rep. 3 (Order of Jan. 20) (dissenting opinions of Judges Morozov of the Soviet Union and El-Khani of Syria).

20 Jiménez de Aréchaga, supra note 14, at 2-3.

21 For example, one needs only to note the controversy reflected at paragraphs 22-31 of the Judgment in the Tunisia/Libya case, 1982 ICJ Rep. at 37-41.

22 Special Agreement, Annex I to the Maritime Boundary Settlement Treaty, supra note 7, Art. II.

23 Had the question been limited to the continental shelf, for example, Article 6 of the 1958 Convention on the Continental Shelf (15 UST 471, 499 UNTS 311) would, in our view, have played an obviously more important role in the case.

24 The United States did not formally recognize the exclusive economic zone until President Reagan promulgated such a zone on Mar. 10, 1983. Proclamation No. 5030, 48 Fed. Reg. 10,605 (1983).

25 Canadian Memorial, para. 15; Canadian Counter-Memorial, paras. 39-40, 464-465. Presentation of United States Counsel John R. Stevenson, ICJ Doc. C 1/CR 84/24, at 26- 37 (May 9, 1984).

26 See 1974 Digest of United States Practice In International Law 672-73; United States Reply, paras. 237-239.

27 The starting point constituted the most landward point of intersection of the first published boundary claims of both states at the time of notification of their 200-nauticalmile zones in 1976.

28 1968 ICJ Pleadings (1 and 2 North Sea Continental Shelf).

29 The Court requires that 125 copies of each written pleading be filed at the same time as the original certified copies. This requirement puts a premium on reproduction facilities.

30 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). See Colson, The United Kingdom-France Continental Shelf Arbitration, 72 AJIL 95 (1978)

31 The written pleadings in the Tunisia / Libya case were made public at the beginning of oral argument in that case on Sept. 16, 1981, in the midst of our early preparations.

32 Under Article 42 of the Statute, a party before the Court is represented by an Agent.

33 In addition to Mr. Rashkow, the members of that office were LCDR Peter Ward Comfort, U.S. Navy; Mary Wild Ennis; Lt. Neil F. Gitin, U.S. Navy; Ray A. Meyer; and Lt. Brian P. Flanagan, U.S. Coast Guard.

34 We would particularly single out Michael J. Danaher, Richard H. Davis, William Hezlep, Jonathan T. Olson, Sandra Shaw, Robert W. Smith and Robert L. Edwards.

35 The relevant correspondence is found in Annex 15 of the United States Counter- Memorial.

36 See, in particular, Art. 67 of the Rules of Court, reprinted in 73 AJIL 748, 769 (1979).

37 We recall the words of the Court in the North Sea cases where the shelf is said to exist ipso facto and ab initio. 1969 ICJ Rep. at 29.

38 The Judgment in the Tunisia /Libya case provided a sound legal basis in our view for changing the U.S. position. That Judgment rejected natural prolongation in a geological sense and emphasized geographical factors. The Canadians, for their part, cited the Judgment in the Anglo-French case as the legal basis for the 1977 expansion of Canada’s claim, a proposition that the United States contested.

39 Judgment, 1984 ICJ Rep. at 278.

40 We were originally concerned that if we did not use foreign counsel, Canada, which had determined that foreign counsel would participate in its oral presentation, might gain some edge. Our concern was put to rest after consultation with our foreign advisers. We do not believe that the outcome of the case was affected one way or the other by either side’s handling of the question.

41 Nicaragua filed its Application on Apr. 9, 1984 during the midst of Canada’s first-round presentation. Argument was heard on Nicaragua’s request for interim measures on Apr. 25 and 27, 1984 (Nicaragua v. United States of America).

42 We do not believe that the disruption in schedule or the additional time for Canada’s preparation of its second round of oral argument made any difference in the outcome of the case.

* The views expressed by the authors are their own and do not necessarily represent those of the United States Government.

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