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Court of Arbitration for the Delimitation of Maritime Areas between Canada and France: Decision in Case concerning Delimitation of Maritime Areas(St. Pierre and Miquelon)*

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[Reproduced from the text provided by the Canadian Department of Justice. The Illustrative Map is reproduced from Canadian Government News Release No. 119, June 10, 1992. The Content Summary was prepared for International Legal Materials by Ted McDorman, Faculty of Law, University of Victoria, British Columbia, Canada. The Agreement between Canada and France establishing the Court of Arbitration, done at Paris and Toronto, March 30, 1989, is reproduced at 29 I.L.M. 1 (1990). The Agreement of the same date regarding interim fish quotas in disputed waters for the adjudication period appears at 29 I.L.M. 7 (1990).]

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* (1) Articles 1 and 2 of the Agreement provide: “Article 1. The Government of France renounces the privileges established to its advantage in fishery matters by the Convention signed at London, on April 8, 1904, between the United Kingdom and France. The present agreement supersedes all previous treaty provisions relating to fishing by French nationals off the Atlantic coast of Canada.

Article 2. In return, the Canadian Government undertakes in the event of a modification to the juridical regime relating to the waters situated beyond the present limits of the territorial sea and fishing zones of Canada on the Atlantic coast, to recognize the right of French nationals to fish in these waters subject to possible measures for the conservation of resources, including the establishment of quotas. The French Government undertakes for its part to grant reciprocity to Canadian nationals off the coast of Saint Pierre and Miquelon.”

1 The quotations referenced at footnotes 5 and 29 (Gulf of Maine), and the wordings of the references themselves, could not be verified because the documents in question were unavailable. In the case of footnote 5 the words quoted could not be found in paragraph 151 of the original edition of the Canadian Memorial.

2 It would seem that the words referenced by footnotes 21 and 22 are not actual quotations.

3 The quotations from Judge Bedjaoui's article (footnotes 24, 25 and 26) are our translations from the French.

4 The quotation referenced at footnote 43 could not be found at paragraph 103 or elsewhere in the source document. It is noted that the footnote begins “Cf. …“

1 Gulf of Maine. I.C.J. Reports 1984. p. 278, para. 59.

2 I use this botanical terminology, instead of the division into two sectors which appears in the Decision (paras. 66 et seq.) because the division in question does not correspond to the distinction between the northern portion above the corridor and the corridor itself. In the Decision, it is only the western portion of the cap of the mushroom which is described as the first sector (or western sector). The second sector is defined to include the south and southeast but in reality it covers essentially the south (ie the corridor); the southeast is dealt with only in the last sentence of paragraph 71, which describes the small segment of the line connecting the eastern apex of the corridor to point 1 of the 1972 delimitation. It will be seen that this distinction between two sectors does not correspond to the one which I am making, for the the purposes of my argument, between the cap and the stem of the mushroom. I may add that, contrary to what appears to be indicated in paragraph 66 of the Decision, the two sectors specified by this Court do not coincide with those which France had proposed and which corresponded respectively to the western segment of the line of equidistance claimed by France starting from point 9, and to the eastern segment of the same line, starting from point 1.

3 Para. 200 - The English and French texts of the 1977 Franco-British Decision have been published in United Nations Reports of International Arbitral Awards, Vol. XVIII, pp. 3 et seq, for the English text, pp. 130 et seq. for the French text. All references here will be to paragraphs.

4 I.C.J. Reports 1984. p. 270, paras. 36-37.

5 Memorial of Canada, para. 151, I.C.J, Pleadings, Oral Arguments, Documents, Gulf of Maine, Vol. III, p. 54.

6 Fisheries case, I.C.J. Reports 1951. p. 129.

7 In the case of right-angled coasts such as those of Saint Pierre and Miquelon, the projection perpendicular to the coastal fronts would, after all, lead to absurd results, since it would leave outside the jurisdiction of the coastal State a broad area situated outside the two frontal projections: this was demonstrated in a striking manner by Canada in the Gulf of Maine case (Counter- Memorial of Canada, para. 565, I.C.J., Pleadings. Oral Arguments, Documents, Vol. III, p. 213 and Vol. VIII, Figure 70).

8 Fishing Zones of Canada (Zones 4 and 5) Order, Annexes to the Memorial of Canada. Vol. I, p. 394. Unless otherwise indicated all italics have been added.

9 I.C.J. Reports 1985. p. 26, para. 21.

10 Ibid.

11 I.C.J. Reports 1985, p. 45, para. 58.

12 Para. 101.

13 I.C.J. Reports 1984, p. 323, para. 185.

14 I.C.J. Reports 1985, pp. 43 et seq., paras. 55 et seq. - cf. joint Separate Opinion of Judges Ruda, Bedjaoui and Jiménez de Aréchaga, op. cit., pp. 82 et seq.

15 OP.cit¨ pp.45-46, para. 58.

16 The International Court stated clearly that whereas “any given set of basepoints will generate only one possible equidistance line” it often occurs that “the identification of the relevant coasts and the relevant areas is so much at large that virtually any variant could be chosen” in the search for proportionality (op. cit¨ p. 24, para. 19 and p. 53, para. 74).

17 Op. cit., p. 49, para. 66. The International Court, it is true, seems more restrictive in that respect than the Decision, since it limits consideration of coastal lengths as a relevant circumstance to the use of a median line, whereas it states that the proportionality test ex post may be used in relation to any method (Ibid.).

18 OP. cit¨ pp. 53-55, paras. 74-75. The International Court of Justice thus endorsed the cautious approach of the 1977 Franco-British Court of Arbitration, which had held that verification of the absence of disproportionate effects did not require any “nice calculations” (paras. 27 and 250). This cautious approach was also endorsed by the joint Separate Opinion in Libya/Malta, which held that proportionality should not be considered as “a strict mathematical exercise” ánd urged that “care must be taken not to express it blindly as the mechanical arithmetical ratio” (OP.cit¨ p. 88, para. 31). Similar caution can be observed in the 1985 Guinea/Guinea-Bissau Arbitration decision, which held that “the rule of proportionality is not a mechanical rule based only on figures reflecting the length of the coastline” (para. 120). The French text of the Guinea/Guinea-Bissau Decision has been reproduced in Revue générale de droit international public. Vol. 89, 1985, pp. 484 et seq. An unofficial English translation has been published in International Legal Materials. Vol. 25, 1986, pp. 255 et seq. and in International Law Reports, Vol.77, pp.636 et seq. All references here are to paragraphs.

19 As indicated in the Decision (para. 33) Canada used a ratio of coastline lengths of 21.4:1. France (whose position the Decision somewhat strangely omits to mention) used a ratio of coastline lengths of 6.5:1. This is a measure of the extent of the uncertainty.

20 15.3:1 for the ratio of coastline lengths; 16.4:1 for that of the areas attributed.

21 Oda, Dissenting Opinion, Tunisia/Libya, I.C.J. Reports 1982. p. 255, para. 155.

22 Gros, Dissenting Opinion, Gulf of Maine. I.C.J. Reports 1984, p. 388, para. 47.

23 I.C.J. Reports 1985. p. 39, para. 45.

24 Bedjaoui, “L' «éniqme» des «principes équitables» dans le droit de la délimitation maritime”. Revista Española de Derecho Internacional. Vol. XLII (1990), pp. 367 et seq¨ p. 378.

25 Op. cit., p. 384.

26 Bedjaoui, op.cit., p. 369 and 378.

27 Para. 245

28 Jiménez de Aréchaga. Separate Opinion Tunisia/Libva. I.C.J. Reports 1982. p. 119, para. 69, p. 121, paras. 72 and 75.

29 I.C.J. Pleadings, Oral Arguments, Documents, Gulf of Maine, Vol. VII, p. 266.

30 I.C.J. Reports 1985, p. 42, para. 51.

31 Paras. 92 and 124.

32 I.C.J.Reports 1984, p. 340, para. 232.

33 Para. 188.

34 The authors of the Separate Opinion in the Libya/Malta case felt that equity in that case ought to have led the Court to adopt “a line dividing into two equal parts the disputed area, that is to say, the area claimed by both Parties, lying between the Maltese strict equidistance line to the south and the line of strict proportionality advocated by Libya to the north”. Furthermore, they added: “However, had the Court actually proceeded to an equal division of that disputed area between the. Parties, it might have appeared to have, so to speak, split the difference between the claims … It is admittedly beyond question that the Court, expected as it is to take law alone as the basis of its findings, has no power to effect compromises. But it is no less evident that, where special circumstances dictate equal division as a solution, the Court may not abnegate that solution, for by doing so it would be abandoning that very basis of law” (I.C.J. Reports 1985, p. 90, paras, 35-37).

35 North Sea Continental Shelf Cases. ICJ Reports. 1969, p. 21, para. 17.

36 Para. 249.

37 I.C.J. Reports 1984. p. 267, para. 27.

38 Libya/Malta, I.C.J. Reports 1985, pp. 35-36, paras. 39-40.

39 Libya/Malta, I.C.J. Reports 1985. p. 41, para. 49.

40 Para. 119.

41 Libva/Malta,I.C.J. Reports 1985. p. 83, para. 21.

42 Op.cit¨ p.43, para. 54.

43 Cf. Guinea/Guinea-Bissau, para. 103.

44 I.C.J., Pleadings, Oral Arguments and Documents, North Sea Continental Shelf cases, Vol. II, p. 29.

45 Thus conceived, the theory of special geographical circumstances constitutes the transposition into customary maritime delimitation law of the concept of special circumstances developed by the International Law Commission in the context of the treaty law of Article 6. Although the terminology is different, the idea is the same, with one exception: whereas the theory of special circumstances in Article 6 concerns the adjustment of an equidistance line, the theory of special geographical circumstances applies to any line, regardless of the method used to draw it.

46 The problem of the effect of the political status of islands had already arisen in Libya/Malta, but in a different form. In Libya/Malta it was the extension to island States of the adjustment until then applied to dependent islands which was at issue. Here the question discussed was a different one and in certain respects the opposite: it was whether the dependent status of the islands should entail a reduction of their maritime rights (para. 48).

47 Barcelona Traction. I.C.J. Reports 1970. p. 48, para. 93.

* [Reproduced from the text provided by the Canadian Department of Justice. The Illustrative Map is reproduced from Canadian Government News Release No. 119, June 10, 1992. The Content Summary was prepared for International Legal Materials by Ted McDorman, Faculty of Law, University of Victoria, British Columbia, Canada. The Agreement between Canada and France establishing the Court of Arbitration, done at Paris and Toronto, March 30, 1989, is reproduced at 29 I.L.M. 1 (1990). The Agreement of the same date regarding interim fish quotas in disputed waters for the adjudication period appears at 29 I.L.M. 7 (1990).]

Court of Arbitration for the Delimitation of Maritime Areas between Canada and France: Decision in Case concerning Delimitation of Maritime Areas(St. Pierre and Miquelon)*

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