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The St. Pierre and Miquelon Maritime Boundary Case and the Relevance of Ancient Treaties

  • Charles V. Cole (a1)

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1 Decision of the Court of Arbitration of June 10, 1992; dissenting opinion, para. 60.

2 Dissenting opinion, para. 1.

3 France argued that international tribunals had demonstrated reluctance to consider the historical aspects of a dispute, citing the Minquiers and Ecrehos case, [1953] ICJ Rep. 47, and the Western Sahara case, [1975] ICJ Rep. 12, in support of this thesis. Canada pointed out that both of these cases demonstrated the contrary.

4 Agreement between Canada and France on their Mutual Fishing Relations, Mar. 27, 1972, Can. T.S. 1979, No. 37, Art. 8 and annex. The boundary established in 1972 between the coast of St. Pierre and Miquelon and the mainland coast of Newfoundland (a distance of approximately nine nautical miles) was a compromise between the French “mid-channel line” and the strict equidistance line proposed by Canada. The “mid-channel line” can be traced to the “middle of the channel” fishery limit specified in the British and French Declarations accompanying the Treaty of Versailles, Sept. 3, 1783. See Canadian Memorial, paras. 253–57.

5 The general implications of the decision are discussed in Hornby, and Hughes, , “L’affaire de la délimitation maritime Canada/France,” 30 Can. Y.B. Int’l L. 341 (1992).

6 Treaty of Paris, Feb. 10, 1763, Art. 6.

7 Treaty of Versailles, Sept. 3, 1783. The Treaty of Utrecht, Mar. 31/Apr. 11, 1713, had provided in Art. 13 that “[t]he island called Newfoundland, with the adjacent islands, shall from this time forward belong of right wholly to Britain . . . .” St. Pierre and Miquelon fell within the description of “adjacent islands.”

8 Canadian Memorial, para. 435.

9 Ibid., para 438. It is of interest that Art. 2 of the 1972 Fisheries Agreement provided for reciprocal fishing rights for the nationals of both Canada and France in the event of a modification of their territorial sea and fishing zones. Canada argued that it was envisaged that the French extension would not exceed 12 miles.

10 Canadian Counter-Memorial, paras. 537–38.

11 See generally Canadian Memorial, para. 304 et seq.

12 Discussion of the treaties is to be found in: Canadian Memorial, paras. 216–34, 430–38; Canadian Counter-Memorial, paras. 164–69, 182, 533–38; Transcript of the 1991 Hearing: Aug. 1, 308–53; Aug. 6, 503-15; Aug. 7, 654–79; Aug-13. 985–88; Aug. 14, 1070–84; Aug. 19, 1168–79. France has declined to make its written pleadings public. The oral hearings were open to the public.

13 They were captured by a British fleet in 1793, restored to France in 1802 (Arts. 3 and 15 of the Treaty of Amiens), reoccupied by the British on the reopening of hostilities, and restored by the treaties of Paris of May 30, 1815 (Art. 8) and Nov. 20, 1815 (Art. 11).

14 British note of Oct. 30, 1815, quoted in McNair, A.D., Law of Treaties, 699 (1961). The note was addressed by Lord Bathurst to John Quincy Adams, the United States representative in London.

15 Moore, J.B., A Digest of International Law, vol. 5, 383 (1906).

16 The opinions are reprinted in McNair, supra note 14, at 523–26.

17 Ibid., 523.

18 Ibid., 450–51.

19 (1823), 21 U.S. 464. Extracted in Hudson, M.O., Cases on International Law, 910 (2nd ed., 1936).

20 (1830), 1 Russ. and My. 666.

21 Art. 4 ceded St. Pierre and Miquelon to France, Art. 5 adjusted the limits of the “French Shore,” and Art. 6 confirmed the French fishery in the Gulf of St. Lawrence in conformity with Art. 5 of the Treaty of Paris, 1763: Consolidated Treaty Series, ed. and annotated by Clive Parry, vol. 48 (1781–83), 487 (1969).

22 Convention Respecting Newfoundland and West and Central Africa, London, Apr. 8, 1904, ratified Dec. 8, 1904: Brit. TS. 1905, No. 5.

23 Supra note 4.

24 Art. 1.

25 de la Morandière, Charles, Histoire de la pêche française de la morue dans l’amèrique septentrionale, vol. 2, 81 (1962). It is significant that, in spite of extensive efforts by Canadian researchers, no evidence was found that might have brought the survival of the restrictions into question. This research included access to originals or copies of original documents in the British, Canadian, and French archives. In addition, contemporary accounts of the negotiations concerning the ancient treaties and numerous scholarly works were examined. A substantial collection of this documentation is to be found in the annexes to the written pleadings or filed separately with the Court. These documents are referred to in the Canadian Counter-Memorial.

26 McNair, supra note 14, at 491.

27 Memorandum by W. Hall received Mar. 12, 1894 (London: Public Record Office), Foreign Office 414, Confidential Prints, North America, vol. 123, 91–92. A copy is available in the National Archives of Canada, Ottawa, Microfilm No. B-2407. Also reproduced in Canadian Memorial, para. 230.

28 Canadian Memorial, para. 231.

29 Canadian Memorial, para. 231. See memorandum by W. Hall received Aug. 18, i8g4 (London: Public Record Office), Foreign Office 414, Confidential Prints, North America, vol. 124, 13–14. A copy is available in the National Archives of Canada, Ottawa, Microfilm No. B-2407. It is reprinted in the annexes to the Canadian Memorial, Vol. II, Annex N-18.

30 Canadian Counter-Memorial, para. 168. H. Bertram Cox to the Foreign Office, Jan. 17, 1907 (London: Public Record Office), Colonial Office 880, vol. 19, 28. A copy is available in National Archives of Canada, Ottawa, Microfilm No. B-3955.

31 Transcript of the Hearing, Aug. 7, 1991, 669.

32 Law of the Sea Talks with France, Second Round, Paris, July 20-21, 1964, annex 42 to the Canadian Memorial submitted to the Arbitral Tribunal in “Dispute Concerning Filleting within the Gulf of St. Lawrence,” Arbitral Tribunal Established by Agreement of Oct. 23, 1985. The decision of the Tribunal, of July 17, ig86, is known as the La Bretagne Award.

33 The La Bretagne Tribunal accepted the Canadian minutes of the 1964 and 1971 meetings. There seems to be no French record of the meetings: La Bretagne Award, para. 57.

34 H.C. Debates, Apr. 26, 1972, at 1646–47.

35 H.C. Debates, Apr. 30, 1931, at 1122. This reminder of the restrictions was no doubt reassuring to the Canadian public. Little more than a generation later, the continental shelf issue would come to the fore, to be followed a few years later by the maritime boundary crisis. Ultimately the unprecedented strains in Canada-France relations emphasized the need for rationalized management of the cod fishery and made arbitration of the maritime boundary inevitable.

36 Decision of the Arbitral Tribunal, June 10, 1992, paras. 53–55.

37 In Judge Weil’s view. “Any conflict between Canada and France is particularly lamentable and I welcome the fact that this Court should have seen fit to contribute to put French-Canadian relations back on the road to friendship and co-operation”: dissenting opinion, para. 52.

38 The dissatisfaction of the inhabitants of St. Pierre and Miquelon with the decision was underlined in January 1993 by the sending of two fishing vessels to fish illegally in Canadian waters. The vessels with politicians and journalists on board were quickly seized by Canadian fishing patrol officers and taken to St. John’s. The demonstration was mounted to protest the sharp cut in Canadian fishery quotas given to St. Pierre and Miquelon pursuant to the 1972 Can-ada-France Fisheries Agreement. The quota reductions were necessitated by the decline in fish stocks (cod) that has been experienced in recent years off Canada’s Atlantic coast. See Ottawa Citizen, Jan. 8, 9, 15, and 16, 1993. This decline led to the announcement by Fisheries Minister Ross Reid in late August 1993 of closure of most of what remained of the cod fishery following the closure in 1992 of cod fishing off eastern Newfoundland and quota cuts imposed to save fish stocks devastated by overfishing and climate change. It was estimated that the two closures would cost the jobs of 42,000 people: Ottawa Citizen, Sept. 1, 1993.

39 In the Tunisia-Libya Continental Shelf case, [1982] ICJRep. 18,Judge Jimenez de Arechaga stated in a separate opinion (para. 24) : “Equity here is nothing other than the taking into account of a complex of historical and geographical circumstances the consideration of which does not diminish justice but, on the contrary, enriches it.” See also de Arechaga, Jimenez, “The Conception of Equity in Maritime Delimitation,” in International Law at the Time of its Codification, Essays in Honour of Roberto Ago (Milan: Guiffre, 1987).

40 Canadian Memorial, paras. 324–47.

41 Judge Gotlieb used the word “relevant” in referring to St. Pierre and Miquelon: dissenting opinion, para. 60.

42 Tunisia-Libya case, supra note 39, at 76–77.

43 See essay by Jimenez de Arechaga, supra note 39, at 232.

44 Canada’s concern about a naval presence is reflected in Art. 7 of the 1972 Canada-France Fisheries Agreement, which provides that “[t]he French patrol vessel which usually accompanies the French fishing fleet may continue to exercise its functions of assistance in the Gulf of St. Lawrence.”

* Although the writer was a legal adviser to the arbitration team representing Canada, this note was written in his personal capacity and does not necessarily represent the views of the Canadian government. The author expresses appreciation for the views of Professor Luigi Condorelli, Director, Public International Law, Faculty of Law, University of Geneva, on an earlier version of this paper. Professor Condorelli, one of Canada's Counsel in the arbitration, made the main ancient treaty arguments for Canada during the oral proceedings. The assistance of M. E. J. Cooper on technical aspects of the Court's decision is also gratefully acknowledged.

The St. Pierre and Miquelon Maritime Boundary Case and the Relevance of Ancient Treaties

  • Charles V. Cole (a1)

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