¹ As a technical matter, the issue is one of accession rather than ratification since the United States is not a signatory of the 1982 United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 397 [LOS Convention]. Nevertheless, throughout this comment, ratification and accession will be used interchangeably.

² LOS Convention, supra note 1.

³ For a detailed study, see Morell, J. B., The Law of the Sea: An Historical Analysis of the 1982 Treaty and Its Rejection by the United States. (London: McFarland and Company, 1992).Google Scholar

⁴ For a detailed study of the US concerns regarding the deep seabed mining regime of the LOS Convention, see Schmidt, M. G., Common Heritage or Common Burden? The United States Position on the Development of a Regime for Deep Sea-Bed Mining in the Laxo of the Sea Convention (Oxford: Clarendon Press, 1989).Google ScholarPubMed See more concisely, Morell, supra note 3 at 96–189.

⁵ Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, (1994), 33 I.L.M. 1309.

⁶ “Message from the President of the United States Transmitting United Nations Convention on the Law of the Sea,” with Annexes, Montego Bay, 10 December 1982 (the convention); and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, (1994), 39 U.S.T., 103d Congress, 2d Session IV (adopted at New York, 28 July 1994 (the agreement) and signed by the United States, subject to ratification, on 29 July 1994).

⁷ See generally Duff, J. A., “A Note on the United States and the Law of the Sea: Looking Back and Moving Forward” (2004) 35 Ocean Development & Int’l L. 195.CrossRefGoogle Scholar

⁸ Senate Executive Report 108–10, Part VII – Text of Resolution of Advice and Consent to Ratification, 2004, S. Cong. Ree. S2712-S2716(11 March 2004) at 16–21. See also Duff, supra note 7 at 214–19.

⁹ Senate Executive Report 108–10, supra note 8. See also Duff, supra note 7 at 206–7 and 214–19. LOS Convention, supra note 1, Article 310 allows states when signing, ratifying, or acceding to the convention to make statements or declarations “provided that such declarations or statements do not purport to exclude or modify the legal effect of the provisions of this Convention in their application to that State.”

¹⁰ For a review of certain of the US Senate “Declarations and Undertakings,” see Song, Y.-H., “Declarations and Statements with Respect to the 1982 UNCLOS: Potential Legal Disputes between the United States and China after U.S. Accession to the Convention” (2005) 36 Ocean Development & Int’l L. 261.CrossRefGoogle Scholar

¹¹ Duff, J. A., “UNCLOS and the United States,” part of “From the Desk of the Editor-in-Chief” (2005) 36 Ocean Development & Int’l L. 317.Google Scholar

¹² Duff, supra note 11 at 317–18.

¹³ During the January 2005 Senate Confirmation Hearings, Secretary of State Condoleeza Rice indicated that the president would like to see the LOS Convention “passed as soon as possible.” See <www.lugar.senate.gov/sfrc/rice_endorsement.html> (20January 2006); and noted in Duff, supra note 11 at 318. Rice also urged the Senate Foreign Relations to revisit the convention and report favourably on accession. See <www.lugar.senate.gov/sfrc/rice_qfa.html> (20 January 2006); and noted in Duff, supra note 11 at 318.

¹⁴ For an overview of Canada and the LOS Convention, see Hage, R., “Canada and the Law of the Sea” (1984) 8 Marine Policy 2 CrossRefGoogle Scholar; and McDorman, XL., “Will Canada Ratify the Law of the Sea Convention?” (1988) 25 San Diego L. Rev. 535.Google Scholar

¹⁵ Johnston, D. M., Canada and the New International Law of the Sea (Toronto: University of Toronto Press, 1985) at 74,Google Scholar notes: “Canada and U.S. negotiators clashed frequently, and sometimes bitterly, over some … issues.”

¹⁶ See Hage, supra 14; and MacEachen, A. J., Foreign Minister of Canada, “Statement by Canada,” 6 December 1982, in UNCLOS III, Official Records, vol. 17 (New York: United Nations, 1984) at 14–16.Google Scholar

¹⁷ Clarkson, S., Canada and the Reagan Challenge: Crisis and Adjustment, 1981–1985 (Toronto: James Lorimer and Company, 1985) at 216 [emphasis in original].Google Scholar

¹⁸ MacEachen, supra note 16 at 16.

¹⁹ Clarkson, supra note 17 at 216.

²⁰ MacEachen, supra note 16.

²¹ “Canada Calls for American Reversal at Law of the Sea,” Halifax Mail-Star, 7 December 1982, at 2; and “Sign Sea Pact, MacEachen Urges U.S.,” Globe and Mail, 7 December 1982, at 17. See also Beesley, J. A., “International Political Context of the LOS Negotiations,” in Juda, L., ed., The United Stales without the Law of the Sea Treaty: Opportunities and Costs (Wakefield, RI: Times Press, 1983), 11.Google Scholar The author was the former ambassador of Canada to UNCLOS.

²² The evolution of Canada as an independent state is complicated. Prior to 1867, there were a collection of British colonies under the United Kingdom. In 1867, a number of these colonies combined to form Canada, but the United Kingdom retained the authority to conduct foreign affairs on behalf of Canada. Precisely when, between 1919 and 1931, Canada “disconnected” from the United Kingdom is uncertain, but, by 1931, it was a legal certainty that Canada was an independent state on the world stage.

²³ For example, the 1846 Treaty Establishing the Boundary in the Territory on the Northwest Coast of America Lying Westward of the Rocky Mountains (Oregon Treaty), reprinted in Parry, C., ed., Consolidated Treaty Series, vol. 100 (Dobbs Ferry, NY: Oceana Publications, 1969), 39,Google Scholar created the maritime boundary between Vancouver Island and the state of Washington. A disagreement about the interpretation of one part of the Oregon Treaty regarding the maritime boundary was resolved through an arbitration with the Emperor of Germany siding with the United States. See the 1872 Award of the Emperor of Germany under the XXXLVth Article of the Treaty of May 8, 1871 Giving the Islands of San Juan to the United States, reprinted in Haswell, J. H., ed., United States Treaties and Conventions, 1776–1889 (Washington, DC: US Government Printing Office, 1889), 494.Google Scholar

²⁴ Commencing in 1971, Canada and the United States began negotiation of a replacement treaty for the 1930 Convention for the Protection, Preservation and Extension of the Sockeye Salmon Fishery in the Fraser River System, 8 U.S.T. 1058. An agreement was reached in 1982, but, due to opposition from Alaska, the agreement was never considered by the US Senate. See Shepard, M. and Argue, A. W., The 1985 Pacific Salmon Treaty: Sharing Conservation Burdens and Benefits (Vancouver: UBC Press, 2005) at 53–76 Google Scholar; and Jensen, T. C., “The United States-Canada Pacific Salmon Interception Treaty: An Historical and Legal Overview” (1986) 16 Envtl. L. 363 at 380–96,Google Scholar in particular at 395, where Canada was described as being “literally outraged” by the Senate actions on the 1982 Pacific salmon agreement.

²⁵ See VanderZwaag, D. L., The Fish Feud: The U.S. and Canadian Boundary Dispute (Lexington, MA: Lexington Books, 1983) at 1–35 and 89–112.Google Scholar Like the 1982 Pacific salmon agreement, the 1979 east coast fisheries agreement was withdrawn from the consideration of the US Senate because of opposition from certain US fishing interests.

²⁶ See generally Johnston, D. M., The Theory and History of Ocean Boundary-Making (Montreal: McGill-Queen’s University Press, 1988) at 178–81.Google Scholar

²⁷ The west coast issue involved tanker traffic through the Strait of Juan de Fuca between Vancouver Island and Washington State. On the east coast, the issue involved a possible oil refinery in northern Maine and passage through Canada’s Head Harbour Passage. See Carroll, J. E., Environmental Diplomacy: An Examination and a Prospective of Canada-U.S. Transboundary Environmental Relations (Ann Arbour: University of Michigan Press, 1983) at 62–79.Google Scholar

²⁸ Treaty Concerning Pacific Salmon, 99 Stat. 7, Can. TS. 1985 No.7 [Pacific Salmon Treaty]. See generally Shepard and Argue, supra note 24.

²⁹ Gulf of Maine Case ( Canada and the United States), [ 1984] I.C.J. Rep. 246 [Gulf of Maine].

³⁰ Kirsch, P. and Fraser, D., “The Law of the Sea Preparatory Commission after Six Years: Review and Prospects” (1988) 26 Can. Y.B. Int’l L. 119 at 122.Google Scholar

³¹ The 1982 Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules of the Deep Sea Bed, (1982) 21 I.L.M. 950 (France, Germany, the United Kingdom, and the United States); the 1984 Provisional Understanding Regarding Deep Seabed Matters, (1984), 23 I.L.M. 1365 (Belgium, France, Germany, Italy, Japan, the Netherlands, the United Kingdom, and the United States); and the 1987 Agreement on the Resolution of Practical Problems with Respect to Deep Seabed Mining Areas, including an Exchange of Notes between the United States and Other States on This Matter, (1987), 26 I.L.M. 1502 (Canada, Belgium, Italy, Netherlands, and the Soviet Union). See generally Churchill, R. R. and Lowe, A. V., The Law of the Sea, 3rd edition (Manchester: Manchester University Press, 1999) at 232–34.Google Scholar

³² See “Memorandum from Foreign Affairs,” 6 August 1987, excerpted in part in (1988) 26 Can. Y.B. Int’l L. 320.

³³ See Riddell-Dixon, E., Canada and the International Seabed (Montreal: McGill-Queen’s University Press, 1989) at 3–4 Google Scholar and more generally on Canada’s role in the negotiation of the deep seabed regime of the LOS Convention. See also Johnston, supra note 15 at 13–17; and Hage, supra note 14 at g-12. Hage comments: “In perhaps no other part of the law of the sea negotiations was the Canadian position as controversial and misunderstood as it was with regard to seabed mining” (at 9).

³⁴ The Preparatory Commission was created by Resolution I of UNCLOS to prepare the technical rules for the Part XI deep seabed mining regime. See generally Kirsch and Fraser, supra note 30.

³⁵ “Memorandum from Foreign Affairs,” 7 November 1989, excerpted in part in (1990) 28 Can. Y.B. Int’l L. 486. For a more detailed articulation of many of these same points, see Kirsch and Fraser, supra note 30 at 149–50.

³⁶ Riddell-Dixon, supra note 33 at 180.

³⁷ See the exchange between J.A. Beesley and B. Hoyle, deputy director, Office of Ocean Law and Policy, U.S. State Department, injuda, supra note 21 at 139–43.

³⁸ See Taylor, G. D., “The Collapse of the Northern Cod Fishery: A Historical Perspective” (1995) 18 Dalhousie L.J. 13 Google Scholar; and Charles, A. T., “The Atlantic Canadian Groundfishery: Roots of a Collapse” (1995) 18 Dalhousie L.J. 65.Google Scholar

³⁹ Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, (1995) 34 I.L.M. 1542 [Fish Stocks Agreement].

⁴⁰ See Fauteux, P., “The Canadian Legal Initiative on High Seas Fishing” (1993) Y.B. Int’l Envtl. L. 51 Google Scholar; and Rayfuse, R. et al. “Australia and Canada in Regional Fisheries Organizations: Implementing the United Nations Fish Stocks Agreement” (2003) 6 Dalhousie LJ. 47.Google Scholar

⁴¹ McDorman, T. L., “Canada Ratifies the 1982 United Nations Convention on the Law of the Sea: At Last” (2004) 35 Ocean Development & Int’l L. 103 at 104.CrossRefGoogle Scholar

⁴² Regarding Canada and the United Nations, see Welsh, J., Home, in the World: Canada’s Global Vision for the Twenty-First Century (Toronto: Harper Collins, 2004) at 208–15Google Scholar; and Heinbecker, P., “The UN in the Twenty-First Century,” in Carment, D., Osier Hampson, F.; and Hillmer, N., eds., Setting Priorities Straight: Canada among Nations 2004 (Montreal: McGill-Queen’s University Press, 2005) at 255–58.Google Scholar

⁴³ Canada, Canada’s International Policy Statement: A Role of Pride and Influence, in the World – Overview (Ottawa: Government of Canada, 2005) at 27.

⁴⁴ The linkage among all of the treaties noted below is made in Murphy, J. F., The United States and the Rule of Law in International Affairs (Cambridge: Cambridge University Press, 2004) at 367.CrossRefGoogle Scholar

⁴⁵ Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, (1997), 36 I.L.M. 1507 [Landmines Convention]. The United States has not joined the Landmines Convention “because its terms would have required us to give up a needed military capability.” See “New United States Policy on Landmines: Reducing Humanitarian Risk and Saving Lives of United States Soldiers,” 27 February 2004, <www.state.g0v/t/pm/rls/fs/30044.htm> (20 January 2006). See also Murphy, supra note 44 at 218–19.

⁴⁶ Rome Statute on the International Criminal Court, (1998) 37 I.L.M. ggg. Regarding the United States and the International Criminal Court (ICC), see <www.state.gov/t/pm/rls/fs/2002/23426.htm> (20January 2006). See Murphy, supra note 44 at 317–18, where he notes: “It is clear … that a major reason for the US opposition is its concern that its military personnel and government officials will be subject to politically motivated prosecutions.” There has also been strong opposition to the ICC expressed by the US Congress.

⁴⁷ Kyoto Protocol to the United Nations Framework Convention on Climate Change, (1998) 37 I.L.M. 22. In an unusual resolution, the US Senate in 1997 by a vote of ninety-five to zero indicated its opposition to the Kyoto Protocol prior to its finalization. Nevertheless, the United States signed the Kyoto Protocol in 1998. The Kyoto Protocol has not been sent to the Senate for consideration. See Murphy, supra note 44 at 338–41.

⁴⁸ Convention on Biological Diversity, 1760 U.N.T.S. 79 [CBD]. The United States is a signatory to the convention. The US presidency sent the convention to the US Senate. The Senate has taken no action regarding the CBD since 1994. See also Murphy, supra note 44 at 341–44.

⁴⁹ Comprehensive Nuclear Test Ban Treaty, (1996) 35 I.L.M. 1439. The United States signed the treaty, but, by a vote of fifty-one to forty-eight, the US Senate rejected the treaty. See Murphy, supra note 44 at 208–9.

⁵⁰ Canada elected not to participate with the United States and United Kingdom respecting Iraq. See generally Welsh, supra note 42 at 38–47.

⁵¹ See discussion in notes 24–25 and 47–49 in this article.

⁵² Van Ert, G., Using International Law in Canadian Courts (The Hague: Kluwer Law International, 2002) at 66–74.Google Scholar

⁵³ See “Canada Ratification Practice, April 2002 Memorandum from the Legal Bureau,” reprinted in (2002) 40 Can. Y.B. Int’l L. 490.

⁵⁴ Canada, House of Commons, Debates, 6 November 2003 at 1455.

⁵⁵ Both Canada and the United States established 200-nautical-mile fishing zones in 1977. In the United States, this was done through the Fishery Conservation and Management Act (renamed the Magnuson Fishery Conservation and Management Act), 90 Stat. 331, L. 94-265. Canada established a 200-nautical-mile fishing zone on the east and west coast on 1 January 1977 through the Fishing Zones of Canada (Zones 4 and 5) Order, (1978) 18 Consolidated Regulations of Canada, Ch. 1548. For the Arctic, the 200-nautical-mile fishing zone came on 1 March 1977. Fishing Zones of Canada (Zone 6) Order, (1978) 18 Consolidated Regulations of Canada, Ch. 1549.

⁵⁶ In 1945, the United States through the Truman Proclamation on the “Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf made known its claim regarding the continental shelf. This was followed in 1953 with the Outer Continental Shelf Lands Act, 67 Stat. 462, L. 83–212. See Hollick, A. L., U.S. Foreign Policy and the Law of the Sea (Princeton: Princeton University Press, 1981) at 19–22, 28–61, and 114–17.CrossRefGoogle Scholar Canada made no sweeping continental shelf claim, although it did issue oil and gas permits in the 1960s for large tracts of offshore areas. See Buzan, B. G. and Middlemiss, D. W., “Canadian Foreign Policy and the Exploitation of the Seabed,” in Johnson, B. and Zacher, M. W., eds., Canadian Foreign Policy and the Law of the Sea (Vancouver: UBC Press, 1977), 3 at 6 and 9.Google Scholar Only in 1970 did Canada legislate a definition of its continental shelf in section 3 of the Oil and Gas Production and Conservation Act, R.S.C. 1970 (1s1. Supp.), c. O-4.

⁵⁷ See North Sea Continental Shelf Cases, [1969] l.C.J. Rep. 3 at 23; and LOS Convention, supra note 1, Articles 76(1) and 77(1)-(3). See also McDorman, T. L., “The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World” (2002) 17 Int’l J. Marine and Coastal L. 301 at 305.Google Scholar

⁵⁸ LOS Convention, supra note 1, Article 76 and see discussion in notes 72–74. See generally United Nations, Division of Ocean Affairs and the Law of the Sea, Office of Legal Affairs, The Law of the Sea: Definition of the Continental Shelf (New York: United Nations, 1993) at 49; Cook, J. and Carleton, CM., eds., Continental Shelf Limits: The Scientific and Ilegal Interface (New York: Oxford University Press, 2000) at 363 Google Scholar; and Prescott, V. and Schofield, C., The Maritime Political Boundaries of the World, 2nd edition (Leiden: Martinus Nijhoff, 2005) at 183–214.Google Scholar

⁵⁹ McDorman, supra note 41 at 106–7.

⁶⁰ Ibid at 108.

⁶¹ Galdorisi, G. V. and Vienna, K. R., Beyond the Law of the Sea: New Directions for U.S. Oceans Policy (London: Praeger, 1997) at 27,Google Scholar refer to preserving navigation and overflight freedoms against the creeping jurisdiction of coastal States as “the paramount concern” of the United States at the beginning of the negotiations of the LOS Convention. Note also Murphy, supra note 44 at 229–33.

⁶² Churchill and Lowe, supra note 31 at 110-13, where they state: “[A] general right of transit passage may not yet have become established in customary international law,” although they allow that in particular international straits “a customary law right akin to transit passage does exist.”

⁶³ Murphy, supra note 44 at 241 notes:

Perhaps the most salient argument made by those opposing ratification is that the United States already enjoys the benefits the Convention would provide while avoiding the burdens being a party would entail. Specifically, the opponents argue, the United States already benefits from the navigational and overflight provisions of the Convention because they have become part of the corpus of customary international law … Similarly, the opponents contend, the United States currently benefits fully from the Convention’s provisions on coastal state’s control over natural resources, since the declarations on its territorial sea, contiguous zone, exclusive economic zone and continental shelf have gone unchallenged.

⁶⁴ See Canada, House of Commons, supra note 54.

⁶⁵ See generally Rothwell, D. R., “Building on the Strengths and Addressing the Challenges: The Role of Law of the Sea Institutions” (2004) 35 Ocean Development & Int’l L. 131.CrossRefGoogle Scholar

⁶⁶ LOS Convention, supra note 1, Annex VI on “Statute of the International Tribunal for the Law of the Sea.”

⁶⁷ Ibid., Annex II on “Commission on the Limits of the Continental Shelf.”

⁶⁸ Ibid., Articles 156–85 and also Annex IV on “Statute of the Enterprise.”

⁶⁹ For a recent review of the history and operation of the International Seabed Authority (ISA), see Antrim, C. L., “Mineral Resources of Stateless Space: Les-sons from the Deep Seabed” (2005) 59(1) J. Int’l Aff. 55.Google Scholar

⁷⁰ See the ITLOS website at <http://www.itlos.org> (20 January 2006). See also McDorman, T. L., “An Overview of International Fisheries Disputes and the International Tribunal for the Law of the Sea (ITLOS)” (2002) 40 Can. Y.B. Int’l L. 119.Google Scholar

⁷¹ More generally on Canada and the US interests in the dispute settlement regime in the LOS Convention, see notes 109–12 in this article.

⁷² See the material set out in note 58.

⁷³ See North Sea Continental Shelf Cases, supra note 57 and LOS Convention, supra note 1, Articles 76(1) and 77(1)–(9).

⁷⁴ McDorman, supra note 57 at 305–24.

⁷⁵ See “Statement of the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work of the Commission,” Doc. CLCS/42 (14 September 2004) at para. 17. See also the letter from the United States to the Commission of 25 October 2004. Both of these documents are available at <http://www.un.org/Depts/los/clcs_new/clcs_home.htm> (20 January 2006).

⁷⁶ See the website of the United Nations, Division of Ocean Affairs and Law of the Sea, respecting the state parties of the LOS Convention at <http://www.un.org/Depts/los/meeting_states_parties/meeting_states_parties.htm> (20 January 2006).

⁷⁷ Treves, T., “The General Assembly and the Meeting of States Parties in the Implementation of the LOS Convention,” in Oude Elferink, A. G., ed., Stability and Change in the Law of the Sea: The Role of the LOS Convention (Leiden: Martinus Nijhoff, 2005), 55 at 55–58, 62–65, and 68–74.Google Scholar

⁷⁸ Fish Stocks Agreement, supra note 39.

⁷⁹ LOS Convention, supra note 1, Article 155.

⁸⁰ Ibid., Article 312.

⁸¹ See generally Freestone, D. and Oude Elferink, A. G., “Flexibility and Innovation in the Law of the Sea – Will the LOS Convention Amendment Procedures Ever Be Used?” in Oude Elferink, supra note 77 at 169–221.Google Scholar

⁸² Duff, supra note 7 at 205–6. The detail of this opposition will not be discussed here. See, however, Bandow, Doug, “Don’t Resurrect the Law of the Sea Treaty,” Policy Analysis, no. 552, 13 October 2005.Google Scholar

⁸³ See notes 38–40 and notes 98-103 in this article.

⁸⁴ McDorman, supranote 41 at 110.

⁸⁵ Ibid, at 106–8. Given the legal/political nature of Article 82 on revenue-sharing, it is asserted that this provision only creates an obligation on state parties to the LOS Convention and not on non-state parties. One should not under-estimate, however, the political importance of the revenue-sharing obligation. In 1980, Canada expressed concerns that the revenue-sharing formula (specifically the rate) “could make it uneconomic for Canada to explore and exploit its continental margin.” “Statement of the Delegation of Canada,” 2 April 1980, in UNCLOS III, Official Records, vol. 13 (New York: United Nations, 1982) at 102.

The internal Canadian issue is whether the responsibility for the revenues, should production outside 200 nautical miles take place (most likely adjacent to Newfoundland and Labrador), would be with the federal government or with the province of Newfoundland and Labrador. This issue arises since, although the Supreme Court of Canada has determined that the federal government has exclusive constitutional authority over the adjacent shelf area (Re: the Continental Shelf Offshore Newfoundland, [1984] 1 S.C.R. 86), through a 1985 Canada-Newfoundland Agreement (referred to as the Atlantic Accord) there is a complex joint and cooperative management and benefit-sharing structure for the hydrocarbon resources in the continental shelf adjacent to Newfoundland and Labrador.

⁸⁶ McDorman, supra note 41 at 111.

⁸⁷ Canada, Canada’s International Policy Statement: A Role of Pride and Influence in the World – Defence (Ottawa: Government of Canada, 2005) at 21.

⁸⁸ See Canada, Securing an Open Society: Canada’s National Security Policy (Ottawa: Government of Canada, 2004) at 37-9. See generally J.J. Sokolsky, “Guarding the Continental Coasts: United States Maritime Homeland Security and Canada” (2005) 6(1) Institute for Research on Policy Matters 67.

⁸⁹ Securing an Open Society, supra note 88 at 39:

Canada and the United States will work more closely to protect and defend our coasts and our territorial waters. Given that we share responsibility for our contiguous waters, we will work with the United States to pursue enhanced marine security cooperation, including encouraging mutually high and compatible rules, standards and operations, among other measures.

⁹⁰ See the US Department of State website respecting the Proliferation Security Initiative at <http://www.state.gov/t/np/ci03go/htm> (20 January 2006); and the Canadian Department of Foreign Affairs website at <http:www.dfait-maeci.gc.ca/arms/psioverview-en.asp> (20 January 2006). See generally Byers, M., “Policing the High Seas: The Proliferation Security Initiative” (2004) 98 Am. J. Int’l L. 526.CrossRefGoogle Scholar

⁹¹ Canada and the United States have overlapping offshore claims in the Beaufort Sea (Alaska-Yukon); in and seaward of the Dixon Entrance (Alaska and British Columbia); seaward of the Juan de Fuca Strait (Washington State and British Columbia); and in two areas on the east coast, one around the disputed island of Machais-Seal Island and the other seaward of the so-called Hague line ( Gulf of Maine, supra note 29). For an excellent overview, see Gray, D. H., “Canada’s Unresolved Maritime Boundaries” (1994) 48 Geomatica 131.Google Scholar

⁹² Gulf of Maine, supra note 29.

⁹³ The 1999 agreement concerns salmon management and harvesting and replaces the expired Annex IV under the 1985 Pacific Salmon Treaty, supra note 28. Regarding the 1999 Annex IV, see the website of the Pacific Salmon Commission at <http://www.psc.org> (20 January 2006). See generally McDorman, T. L., “The 1999 Canada-United States Pacific Salmon Agreement: Resolved and Unresolved Issues” (2000) 15 J. Envtl. L. & Litigation 1.Google Scholar

⁹⁴ See generally Elliot-Meisel, E. B., Arctic Diplomacy: Canada and the United States in the Northwest Passage (New York: Peter Lang, 1998)Google Scholar; Griffiths, F., ed., Politics of the Northwest Passage (Montreal: McGill-Queen’s University Press, 1987)Google Scholar; and Pharand, D., Northwest Passage: Arctic Straits (Dordrecht: Martinus Nijhoff, 1984).Google Scholar

⁹⁵ Agreement on Arctic Cooperation, njanuary 1988, (1989) 28 I.L.M. 141.Paragraph 3 provides: “The Government of the United States pledges that all navigation by US icebreakers within waters claimed by Canada to be internal will be undertaken with the consent of the Government of Canada.” This is followed by Paragraph 4, which reads in part: “Nothing in this agreement of cooperation … nor any practice thereunder affects the respective positions of the Governments of the United States and Canada on the Law of the Sea in this or other maritime areas.”

⁹⁶ See Griffiths, F., “The Shipping News: Canada’s Arctic Sovereignty Not on Thinning Ice” (2003) 58 Int’l J. 258 Google Scholar; Huebert, R., “The Shipping News Part II: How Canada’s Arctic Sovereignty Is on Thinning Ice” (2003) 58 Int’l J. 295 Google Scholar; and Griffiths, F., “Pathetic Fallacy: That Canada’s Arctic Sovereignty Is on Thinning Ice” (2004) 11 Can. Foreign Pol’y 1.CrossRefGoogle Scholar

⁹⁷ US Senate, “Declarations and Undertakings,” in Senate Executive Report 10810, supra note 8 at section 3(3) (D).

⁹⁸ This is clearly articulated in Canada’s International Policy Statement — Overview, supra note 43 at 19.

⁹⁹ See notes 38–41 and 83–84 in this article.

¹⁰⁰ for a colorful recitation of the seizing of the Spanish vessel Estai, see Harris, M., Lament for an Ocean (Toronto: McClelland and Stewart, 1998) at 1–38.Google Scholar A more scholarly and insightful discussion is provided by Saunders, RM., “Jurisdiction and Principle in the Implementation of the Law of the Sea: The Case of Straddling Stocks,” in Carmody, C., Iwasawa, Y., and Rhodes, S., eds., Trilateral Perspectives on International Legal Issues: Conflict and Coherence (Washington, DC: American Society of International Law, 2003) at 382–93.Google Scholar

¹⁰¹ Convention on Future Multilateral Cooperation in the Northwest Atlantic (1978) is available on the website of the Northwest Atlantic Fisheries Organization at <http://www.nafo.org> (20 January 2006).

¹⁰² Fish Stocks Agreement, supra note 39.

¹⁰³ Recent discussions within Canada refer to “custodial management” as a manner of dealing with fishing activities and resources beyond Canada’s 200-nautical-mile zone on the east coast. The June 2005 report of the Advisory Panel on Straddling Stocks, “Breaking New Ground: An Action Plan for Rebuilding The Grand Banks Fisheries,” noted that while custodial management “has widespread support in Newfoundland and Labrador, and in other parts of Canada, it is not a well-defined nor understood notion. Its interpretation varies with its various proponents, including federal and provincial representatives, a variety of public and private institutions, industry participants, and members of the public” (at 60–61 ). The report notes that:

[a]ny form of a custodial management regime, as propose to date, involves Canada exercising the same types of management rights on the adjacent high seas as it exercises in its EEZ. The idea that Canada would enforce these decisions outside its own 200 mile EEZ is particularly difficult to envisage, given the jealously guarded principle of flag state en-forcement. In any case, the international community and international law do not accept any of these types of expanded coastal state rights.

Short of unilateral action (which would be hotly disputed), the adoption of a custodial management approach to straddling stocks is not possible unless advances in interna-tional law either reduce the extent of the high seas or remove flag slate authority over a country’s vessels when they are fishing in the regulatory area of an RFMO. Neither of these changes is in the immediate offing (at 70—1).

¹⁰⁴ In October 2005, the International Maritime Organization (IMO) adopted a protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, which will update this 1988 treaty by broadening the list of offences made unlawful to include offences such as transporting weapons or equipment that could be used for weapons of mass destruction and introducing provisions on boarding where there are reasonable grounds to suspect a vessel is engaged in the commission of an offence under the convention. See “Revised Treaties to Address Unlawful Acts at Sea Adopted at Conference,” from the news section of the IMO website at <http://www.imo.org> (20 January 2006).

¹⁰⁵ Respecting the work of IMO in this area, see generally Boisson, R, Safety at Sea: Policies, Regulations and International Law (Paris: Bureau Veritas, 1999) at 536.Google Scholar See also the marine pollution section of the IMO website, supra note 104.

¹⁰⁶ See International Plan of Action to Deter, Prevent and Eliminate Illegal, Unreported and Unregulated Fishing, adopted by the Food and Agriculture Organization (FAO) in 2001, <http://www.fao.org/DOCREP/005/Y3274E/y3274eo4.htm> (20 January 2006). More generally, see Edeson, W., “The International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument” (2001) 16 Int’l J. Marine & Coastal L. 603.CrossRefGoogle Scholar

¹⁰⁷ See generally Sydnes, A. K., “Regional Fishery Organizations: How and Why Organization Diversity Matters” (2001) 32 Ocean Development & Int’l L. 349.CrossRefGoogle Scholar

¹⁰⁸ CBD, supra note 48. See the marine and coastal diversity section of the website for the CBD at <http://www.biodiv.org> (20 January 2006).

¹⁰⁹ Most recently in the 1984 Gulf of Maine case, supra note 29, before the International Court of Justice.

¹¹⁰ Murphy, supra note 44 at 350–51.

¹¹¹ Ibid, at 242.

¹¹² While Canada accepts the compulsory adjudicative jurisdiction of the International Court of Justice (ICJ) under Article 36(2) of the Statute of the International Court of Justice, Canada amended its declaration of acceptance in 1970 to exclude disputes regarding Canada’s then-novel Arctic legislation. This “exception” was subsequently removed in 1985.

In 1994, Canada again altered its declaration of acceptance to exclude enforcement of national laws relating to certain foreign fishing activities adjacent to Canada’s east coast 200-nautical-mile zone. Following the Canadian arrest of the Spanish trawler Estai, the ICJ determined that as a result of the Canadian exclusion in its declaration that the court did not have jurisdiction to hear the merits of the dispute brought by Spain. Fisheries Jurisdiction Case (Spain v. Canada), Jurisdiction, [1998] I.C.J. Rep. 432.

There is a much more limited opportunity to avoid the compulsory dispute settlement provisions of the LOS Convention. The subject matter that is or can be excluded from compulsory dispute settlement is set out in Articles 297 and 298. Canada has made use of the opportunity to exclude permitted subject matter from the compulsory dispute settlement regime of the LOS Convention. Note McDorman, supra note 41 at 106.

¹¹³ McDorman, supra note 41 at 108–9 anu see also McDorman, supra note 14 at 570–74.