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Equitable Solutions to the Maritime Boundary Dispute Between the United States and Canada in the Gulf of Maine

Published online by Cambridge University Press:  27 February 2017

Sang-Myon Rhee
Sang-Myon Rhee*
Affiliation:
Harvard Law School
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Extract

The United States and Canada agreed, by the Boundary Settlement Treaty of March 29, 1979, to submit their decade-long dispute over the maritime boundary in the Gulf of Maine area to a Chamber of the International Court of Justice (ICJ) or to an ad hoc court of arbitration. The treaty, however, has not yet taken effect because the interrelated Fisheries Agreement, which was concluded on the same day and was to take effect simultaneously, was Unilaterally scrapped by the United States Government on March 6, 1981, on grounds of its allegedly unfair and inflexible provisions. On April 29, the United States Senate unanimously adopted a resolution supporting the Government's position to delink the two treaties and to settle the maritime boundary problem first by a third-party procedure. Whether or not a new fisheries agreement is concluded in the near future, it is expected that the maritime boundary dispute will ultimately be resolved by binding third-party settlement. The purpose of this article is to examine the legal position taken by each Government regarding the maritime boundary issues, and to suggest equitable principles that should govern their resolution.

Type
Research Article
Information
American Journal of International Law , Volume 75 , Issue 3 , July 1981 , pp. 590 - 628
Copyright
Copyright © The American Society of International Law 1981

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Footnotes

*

The author acknowledges his gratitude to Lewis M. Alexander, Richard R. Baxter, Gille Breton, Soon-Ae Chun, Jerome A. Cohen, David Colson, Albert M. Craig, David Crestin, Daniel Finn, Roger D. Fisher, Leo Gross, Robert Hodgson, Stephen Leahy, Robert Merner, Fred Paine, M. J. Peterson, Louis B. Sohn, Tim Stratford, and others for their help with this article. The views expressed herein are the author’s own.

References

1 The Gulf of Maine covers approximately 25,000 square miles and has an average depth of 150 meters. A major feature in the area is Georges Bank, long a famous fishing ground, now an area of oil and gas potential. Shaped like an oval, Georges Bank is about 180 miles long and 90 miles wide, with an area of approximately 12,000 square miles. To the northeast, Georges Bank is separated from Browns Bank by the Northeast Channel or Fundian Channel, about 240 meters deep; to the southwest, the shallower Great South Channel, about 80 meters deep, lies between the Bank and Cape Cod. Most of Georges Bank is 30 to 80 meters deep. For more geographical information, see generally S. Apollonio, The Gulf of Maine passim (1979).

2 The territorial sea boundary starts at a designated point in the mouth of the St. Croix River, passes in a southwesterly direction between the U.S. coast of Maine and the Canadian Deer and Campobello Islands to a fixed point in the Grand Manan Channel, and then moves southwesterly through the middle of the Channel until it meets a point where the distance from the nearest base points becomes 3 miles. See Treaty concerning the Canadian International Boundary, April 11, 1908, 35 Stat. 2003, TS No. 497, 12 Bevans 297. See also Treaty concerning the Boundary Line in Passamaquoddy Bay, May 21, 1910, 36 Stat. 2477, TS No. 551, 12 Bevans 341; Treaty in regard to the Boundary between the United States and Canada, Feb. 24, 1925, 44 Stat. 212, TS No. 720, 6 Bevans 7.

3 See Presidential Proclamation No. 2667, Sept. 28, 1945, 59 Stat. 884, 10 Fed. Reg. 12,303 (1945). Before issuing the Proclamation, the United States Government contacted the Governments of Canada, Mexico, the United Kingdom, and the Soviet Union; however, there was no challenge from any country. See 4 M. Whiteman, Digest of International Law 753 (1965). The purpose of the “equitable principles” was to encourage states to reach an agreement based on “a sense of fairness” by employing the most appropriate method or methods “case by case” in the area concerned. Interviews with Prof. W. Bishop, who participated in the preparation of the Truman Proclamation, June 13, 1979, and April 22, 1981.

4 See Canadian Dep’t of External Affairs, Canadian View of the Gulf of Maine/Georges Bank Boundary Line, Press Release, June 10, 1977.

5 [1969] ICJ Rep. 3.

6 Id., para. 101(c)(1).

7 The U.S. Department of State issued a public notice on Feb. 12, 1970 concerning its position with respect to the Georges Bank continental shelf, which it had already expressed to Canada in a diplomatic note of Nov. 5, 1969:

[T]he U.S. Government has refrained from authorizing geologic exploration or mineral exploration in the area of the Georges Bank continental shelf. Pending agreement on the delimitation of the continental shelf in the Gulf of Maine, the U.S. Government does not acquiesce in or recognize the validity of permits or other authorizations issued by the Government of Canada to explore or exploit the natural resources of any part of the Georges Bank continental shelf, and reserves its rights and those of its nationals in that area.

See 35 Fed. Reg. 3301 (1970).

8 The average estimate of recoverable hydrocarbon deposits on Georges Bank as a whole is 0.9 billion barrels, and 4.4 trillion cubic feet of gas, based on the United States Geological Survey. Of this, about 7 to 10% might be deposited in the disputed northeastern third of Georges Bank. See U.S. Geological Survey, North Atlantic District, Georges Bank Monitor 2 (No. 1, July 1980). Because of the possible environmental impact upon fisheries, not all of the oil and gas would be recoverable. Hydrocarbon reserves in the undisputed U.S. zone of Georges Bank relating to the Outer Continental Shelf (OCS) Sale No. 42 are estimated to be 123 million barrels of oil and 870 billion cubic feet of natural gas, having a net value of$588 million. See U.S. Dep’t of Commerce, National Oceanic and Atmospheric Administration, Georges Bank Marine Sanctuary Paper 24–49, reprinted in U.S. Dep’t of the Interior, Final Supplement to Environmental Statement, OCS Sale No. 42, at 515–20 (1979). Based on the adjusted value of 1978 landings of $167 million, the value of the fisheries of Georges Bank over the next 20 years would be estimated at $3.34 billion. Ibid. Comparing this figure with the net value of the hydrocarbon deposits, which are likely to be exhausted in one generation, it is fair to conclude that the renewable fisheries resources are much more valuable than the hydrocarbon deposits in Georges Bank.

9 See United Nations, Multilateral Treaties in Respect of Which the Secretary-General Performs Depositary Functions 452, UN Doc. ST/LEG/SER.D/8 (1975).

10 Id. at 455.

11 Fishery Conservation and Management Act of 1976, 16 U.S.C. §1801 (1976) [hereinafter cited as FCMA].

12 Both parties broadened the issues not only in the Gulf of Maine but also in the other three pertinent areas: the Beaufort Sea between Alaska and the Yukon, the Dixon Entrance between Alaska and British Columbia, and the Strait of Juan de Fuca between the state of Washington and British Columbia.

13 See Order-in-Council P.C. 1977–1, 110 Can. Gaz., Extra No. 101 (Nov. 1, 1976), reprinted in 15 ILM 1372 (1976). See also FCMA, supra note 11.

14 See U.S. Dep’t of State, Pub. No. 506, Maritime Boundaries Between the United States and Canada, reprinted in 41 Fed. Reg. 48, 619 (1976).

15 The International Convention for the Northwest Atlantic Fisheries, signed Feb. 8, 1949, 1 UST 477, TIAS No. 2089 [hereinafter cited as ICNAF], regulated fisheries in the area bounded by the northeast coast of the United States, the east coast of Canada, the west coast of Greenland, and two lines: one running south from a point off the southern tip of Greenland, and the other running east from a point off the east coast of New Jersey. Because of conflicts with the FCMA, supra note 11, which regulates the 200–mile fishery zone, the United States withdrew from ICNAF on Dec. 31, 1976. However, Canada remained a member primarily because of its interests in the Grand Bank fisheries beyond its 200–mile fishery zone. See 75 Dep’t State Bull. 103, 146 (1976); 76 id. at 95 (1977).

16 The tiny granite islets have passed unnoticed by the public. They are located about 10 miles southeast of Maine and about 11 miles southwest of Grand Manan Island, New Brunswick. Although the Canadians have maintained a lighthouse there for the past 140 years, it has been reported that fishing grounds around the islets are worked by American lobstermen. See Ward, K., International Boundary Ill-Defined Since 1783; Tiny Island May Prove U.S. Canada Friction Point, Christian Science Monitor, Sept. 27, 1976, at 20Google Scholar, cols. 1–4.

17 On March 1, 1977, when the 200–mile exclusive fishery zone took effect, the U.S. Government stated its position with regard to this unclaimed area:

In view of the fact that the claimed limits of fishery jurisdiction published by the United States and Canada would leave an unclaimed area within the Gulf of Maine, the United States will exercise its fishery management jurisdiction to the Canadian claimed line where that line is situated eastward of the United States claimed line, until such time as a permanent maritime boundary with Canada is established in the Gulf of Maine.

See 42 Fed. Reg. 12,940 (1977). In contrast, Canada has so far taken no comparable action with respect to this “unclaimed area.”

18 See 76 Dep’t State Bull. 274 (1977). See also Message from the President of the United States Transmitting a Proposed Reciprocal Fisheries Agreement Between the Government of the United States and the Government of Canada, H. R. Exec. Doc. No. 95–90, 95th Cong., IstSess. (1977).

19 See Canadian Dep’t of External Affairs, Joint Report by the Chief Negotiators on the Canada-United States Maritime Boundaries and Related Resource Issues, Communiqué No. L–l at 1, Attachment at 2 (Oct. 21, 1977).

20 Id., Attachment at 4–5.

21 See Canadian Dep’t of External Affairs, Canada/USA Interim Reciprocal Fisheries Agreement, Communiqué No. 39 at 2 (April 12, 1978).

22 See 78 Dep’t State Bull. 38 (1978). See also Canadian Dep’t of Oceans and Maritime Affairs, Some Facts about the Canada/United States East Coast Fisheries Agreement 5 (Dec. 1, 1979).

23 See 112 Can. Gaz., Extra No. 79, pt. I (Sept. 15, 1978), reprinted in 112 id., No. 38, pt. I, at 5772–74 (Sept. 23, 1978).

24 The United Kingdom of Great Britain and Northern Ireland and the French Republic, Delimitation of the Continental Shelf Decision of 30 June 1977, Cmnd. 7438 (1978), reproduced in 18 ILM 397 (1979) [hereinafter cited as 1977 Award].

25 Maintaining that its policy and practice should conform with evolving legal principles of delimitation of maritime boundaries between states, Canada held that “certain projections of the United States’ coast have a distorting effect on the placement of the equidistance line and, therefore, constitute ‘special circumstances’ under international law.” See Communiqué No. 39, note 21 supra.

26 The United States “considered the claim to be without merit” and asserted that “any attempt by Canadians to fish beyond the initial Canadian claim would meet with United States enforcement action.” See U.S. Dep’t of State, File No. P78 016–2316, reprinted in 73 AJIL 132 (1979). See also 78 Dep’t State Bull. 43 (1978).

27 See Canadian Dep’t of External Affairs, Canada/USA Maritime Boundary Negotiations: A Chronology 4–5 (1979).

28 Agreement Between the Government of the United States and the Government of Canada on East Coast Fishery Resources, Message from the President of the United States Transmitting the Agreement on East Coast Fishery Resources with Canada, S. Exec. Doc. V, 96th Cong., 1st Sess. (1979), reprinted in 9 New Directions in the Law of the Sea 157 (eds. Nordquist, M. & Simmons, K., 1980)Google Scholar [hereinafter cited as Fisheries Agreement].

29 Treaty Between the Government of the United States and the Government of Canada to Submit to Binding Dispute Settlement the Delimitation of the Maritime Boundary in the Gulf of Maine Area, Message from the President of the United States Transmitting the Maritime Boundary Settlement Treaty with Canada, S. Exec. Doc. U, 96th Cong., 1st Sess. (1979), reprinted in 9 New Directions, supra note 28, at 167 [hereinafter cited as Boundary Settlement Treaty].

30 See Special Agreement Between the Government of die United States of America and die Government of Canada to Submit to a Chamber of the International Court of Justice die Delimitation of the Maritime Boundary in die Gulf of Maine Area, S. Exec. Doc. U, supra note 29, reprinted in 9 New Directions, supra note 28, at 169 (1980) [hereinafter cited as Special Agreement].

31 See Agreement Between die Government of die United States of America and the Government of Canada to Submit to a Court of Arbitration the Delimitation of the Maritime Boundary in the Gulf of Maine Area, S. Exec Doc. U, supra note 29, reprinted in 9 New Directions, supra note 28, at 173 [hereinafter cited as Arbitration Agreement].

32 See Boundary Settlement Treaty, supra note 29, Arts. I—III.

33 See Rules of Court, International Court of Justice, Acts and Documents Concerning the Organization of the Court, NO. 2, Art. 26 (1972), reprinted in 67 AJIL 195 (1973).

34 See Boundary Settlement Treaty, supra note 29, Art. II.

35 See generally Maritime Boundary Settlement Treaty with Canada: Hearings Before the Senate Comm. on Foreign Relations on S. Exec. Doc. U, 97th Cong., 1st Sess. (1981) (Statement of Mark B. Feldman) [hereinafter cited as 1981 Senate Hearings].

36 See generally Hudson, M. O., International Tribunals 100 (1944)Google Scholar. See also Sohn, , The Function of International Arbitration Today, 108 Recueil des Cours 21–23 (1963 I)Google Scholar.

37 See Fisheries Agreement, supra note 28, Arts. II-XVII, Anns. A-D.

38 Id., Arts. II, IV, VII, IX, XII, XIII, XVIII, and XIX.

39 Id., Arts. II-IV.

40 Id., Art. IX.

41 See, e.g., Rhee, U.S.-Canadian Agreement on East Coast Fisheries, in 1 Proc. Second Symposium on Coastal and Ocean Management (Coastal Zone ‘80) 345–64 (American Society of Civil Engineers, ed. Edge, B. L., 1980Google Scholar). See also Rhee, , The Application of Equitable Principles to Resolve the United States-Canada Dispute Over East Coast Fisheries, 21 Harv. Int’l L.J. 667 (1980)Google Scholar.

42 In contrast with the United States, where Senate approval is a necessary precondition for ratification of a treaty, the Canadian legislative branch does not have such power. Later, the Canadian House of Commons supported the cabinet’s approval of the agreements with the United States. See 124 Parl. Deb., H. C. (Can.) 321 (1980).

43 See Maritime Boundary Settlement Treaty and East Coast Fishery Resources Agreement: Hearings Before the Senate Comm. On Foreign Relations, 96th Cong., 2d Sess. (1980) [hereinafter cited as 1980 Senate Hearings].

44 See Fishery Conservation and Management Act: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 96th Cong., 1st Sess. (1979) [hereinafter cited as 1979 House Hearings].

45 See generally H. R. Subcomm. on Fisheries and Wildlife Conservation and the Environment of the Comm. on Merchant Marine and Fisheries, 96th Cong., 2d Sess., Oversight report on the U.S.-Canada East Coast Fishery Agreement and Boundary Treaty 18–21 (Comm. Print 1980) [hereinafter cited as 1980 HOUSE Rep.]. Opponents of the Fisheries Agreement asserted that the entitlement for fish stocks was generally unfair to the United States. For example, the shares for fish stocks in the Georges Bank area (5Ze)—including scallops: Canada, 73.35%, United States, 26.65%; cod: Canada, 17%, United States, 83%; haddock: Canada, 21%, United States 79%; and after 6 years, herring: Canada, 33.33%, United States, 66.67%—were unfair to the United States because if there is a split decision in the boundary settlement, Canada would have less than one-sixth of Georges Bank or one-eighth of the Georges Bank area (5Ze). See 1980 Senate Hearings, supra note 43, at 172–73. They particularly complained about the 26.65% entitlement to scallops in Georges Bank, because this share, based on historical averages from 1965 to 1977, did not take into account U.S. scallopers’ interests in Georges Bank before 1965 and accorded too much weight to the Canadian interest in the Bank, which had begun only in the early 1960’s. They also pointed out that the average failed to take into account that in recent years the U.S. share had risen from 26.9% in 1977 to 40% in 1979. See 1979 House Hearings, supra note 44, at 54–60 and 146. See also 1980 Senate Hearings, supra note 43, at 56–58 and 200–18.

46 1979 House Hearings, supra note 44, at 56 and 59; 1980 House Rep., supra note 45, at 2 -4 and 13–14; 1980 Senate Hearings, supra note 43, at 15–16, 49–53, 6.1–62, and 103–05.

47 See Senate Comm. on Foreign Relations, Report on the Maritime Boundary Settlement Treaty with Canada, S. Exec. Rep. No. 97–5, 97th Cong., 1st Sess. 2 (1981) [hereinafter cited as 1981 Senate Rep.].

48 Ibid.

49 Ibid.

50 Id. at 8.

51 See Senate Approves Treaty on Sea Border with Canada, N. Y. Times, April 30, 1981, at A9, cols. 1–2.

52 See Reagan Removes Canada Fishing Treaty From Senate on Eve of Trip to Canada, Wall St. J., March 9, 1981, at 30, cols. 1–3.

53 See Statement of M. B. Feldman, supra note 35, at 20.

54 See sources cited at notes 23 and 24, and text of note 25 supra.

55 1979 House Hearings, supra note 44, at 5, 20, 25–26, 43, and 145; 1980 House Rep., supra note 45, at 2 and 13–14; 1980 Senate Hearings, supra note 43, at 15, 24–25, 28, 29, 30–31, 53–54, 61–62, and 172.

56 1979 House Hearings at 59–60; 1980 House Rep. at 13–14; 1980 Senate Hearings at 35 and 61–62. See also Canadian Dep’t of Oceans and Maritime Affairs, Some Questions and Answers Concerning the Canada-U.S.A. East Coast Fisheries Agreement 1–3 (Dec. 1, 1979).

57 1979 House Hearings at 19; 1980 Senate Hearings at 25 and 172.

58 1979 House Hearings at 12, 14–15, 41, and 44; 1980 Senate Hearings at 33 and 45.

59 See, e.g., 1980 Senate Hearings at 172.

60 1979 House Hearings at 19; 1980 Senate Hearings at 25.

61 1979 House Hearings at 19–20; 1980 Senate Hearings at 42,98, and 116. See also U.S. Department of State, Background and Analysis: East Coast Maritime Boundary and Fisheries Treaties with Canada 6–8 (March 28, 1979).

62 1979 House Hearings at 59–60; 1980 House Rep. at 13–14; 1980 Senate Hearings at 35 and 61–62. See also Canadian Dep’t of Oceans and Maritime Affairs, supra note 56, at 1–3.

63 [1969] ICJ Rep. 3, para. 97.

64 See note 8 supra.

65 See 1981 Senate Rep., supra note 47, at 1–2.

66 See Draft Convention on the Law of the Sea, UN Doc. A/CONF.62/WP.10/Rev.3, and Add.1 and Corrs. 1–6 (1980), Arts. 74(3) and 83(3), reprinted in 19 ILM 1131 (1980).

67 Ibid.

68 See 1981 Senate Rep., supra note 47, at 4.

69 See North Sea Continental Shelf cases, [1969] ICJ Rep. 3; Anglo-French Continental Shelf 1977 Award, supra note 24. See also the 1978 Special Agreement relating to the pending Tunisia-Libya Continental Shelf case at the ICJ, reprinted in 18 ILM 51 (1979).

70 See Special Agreement, supra note 30, Art. II. See also Arbitration Agreement, supra note 31, Art. II.

71 In the North Sea Continental Shelf cases ([1969] ICJ Rep. 3), the parties asked the Court to indicate the principles and rules of international law in order flexibly to determine the continental shelf boundaries later by negotiations. However, in the Anglo-French Continental Shelf arbitration (1977), supra note 24, the tribunal was asked to decide the course of the boundary. After reviewing the 1977 award, the United Kingdom alleged that there were errors in the depiction of the boundaries: first, in the Channel Islands area, because of the selection of certain base points in the United Kingdom’s disfavor; second, in the Atlantic region, because of the differences caused by the scale distortions between the rhumb line drawn by the tribunal as the straight line on a Mercator chart and die geodetic line, which the United Kingdom preferred, drawn on the surface of die earth. In a second decision in 1978, reprinted in 18 ILM 462 (1979), the tribunal accepted the argument of the United Kingdom relating to the base points in the Channel Islands area, and rectified the course of the boundary. In the Atlantic region, however, the tribunal rejected the United Kingdom’s allegation, not because it had practical or theoretical reasons for preferring the rhumb line, but because equitable considerations had already been correctly taken into account by employing the half-effect method of delimitation relating to the Stilly Isles.

In order to avoid another round of disputes over the interpretation of the decision of the Court, as in the 1978 Anglo-French award, the United States and Canada arranged sophisticated plans. Two maps—Canadian Hydrographic Service Chart No. 4003, and United States National Ocean Survey Chart No. 13006—were designated for the depiction of the geodetic boundary line on the basis of the 1927 North American Datum. The Court, including any technical experts, is to consult with the parties as may be necessary concerning any common computer programs of the parties for technical calculations. Special Agreement, supra note 30, Arts. II and IV.

72 This point is located about 21 miles from the disputed islet of Machias Seal. See provisions cited in note 70 supra.

73 It is not certain why the parties requested that the Court determine the boundary line up to a certain point in the designated triangle instead of, e.g., up to the 200–mile limit, or the 1,000–meter isobath. See provisions cited in note 70 supra.

74 Since the United States still maintains its traditional position of a 3–mile territorial sea, while Canada claims a 12–mile limit, this short boundary to be delimited may or may not be called a territorial sea boundary. See note 16supra. The rules for the delimitation of the territorial sea are slightly different from those for the continental shelf/exclusive economic zone. Compare Art. 12, Geneva Convention on the Territorial Sea, infra note 80, with Art. 6, Geneva Convention on the Continental Shelf, infra note 78. Compare also Art. 15 with Arts. 74/83 of the Draft Convention on the Law of the Sea, supra note 66.

75 The continental margin in the Gulf of Maine area extends into the Atlantic about 110 miles beyond the 200–mile limit. According to Article 76 of die Draft Convention on the Law of the Sea, the outer edge of the continental margin will be established “by straight lines not exceeding 60 nautical miles,” connecting either “the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of die shortest distance from such point to the foot of the continental slope,” or “fixed points not more than 50 nautical miles from the foot of the continental slope.” However, the fixed points shall not exceed either 350 miles from the baselines from which the breadth of the territorial sea is measured, or 100 miles from the 2,500–meter isobath. See Draft Convention on the Law of the Sea, supra note 66, Art. 76, Ann. II.

76 See Special Agreement, supra note 30, Art. VII. See also Arbitration Agreement, supra note 31, Art. XIII.

77 See provisions cited in note 70 supra.

78 See 499 UNTS 311, 15 UST 471, TIAS No. 5578.

79 Article 7(5) of the Convention provides that “[t]he principles of geographical demarcation as defined in Article 12 of the Convention on the Territorial Sea and the Contiguous Zone shall be adopted when coasts of different States are involved.” See 559 UNTS 285, 17 UST 139, TIAS No. 5969.

80 Article 12(1) of the Convention on the Territorial Sea and the Contiguous Zone provides:

Where the coasts of two States are opposite or adjacent to each other, neither of the States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured The provisions of this paragraph shall not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance with this provision.

See 516 UNTS 205, 15 UST 1606, TIAS No. 5639.

81 See generally UN Doc. A!CN.4/SR.69(1950),reprinted in [1950] 1 Y.B. Int’l L.Comm’n232– 34; UN Doc. A/CN.4/SR.115–16 (1951), [1951] 1 Y.B. Int’l L. Comm’n 285–94. See also Report of the International Law Commission on its 3d session, UN Doc. A/CN.4/SER.A/1951, [1951] 2 Y.B. Int’l L. Comm’n 143.

82 See Francois, Second Report on the Regime of the Territorial Sea, UN Doc. A/CN.4/61/ Add.1, Annex, at 6 –7 (1953).

83 See International Law Commission, Report on its 5th session, UN Doc. A/CN.4/ SER.A/ 1953/Add.1 (1953), [1953] 2 Y.B. Int’l L. Comm’n 216.

84 See note 74supra. See also UN Doc. A/CN.4/SR.205, at 13–14 (1953); UN Doc. A/CN.4/ SR.236, at 7–9 (1953).

85 See 6 UN Conference on the Law of the Sea, Official Records 96–98 (1958), UN Doc. A/CONF. 13/42 (1958).

86 For agreements between opposite states, see, e.g., Finland/Soviet Union Agreement of May 5, 1967, U.S. Dep’t of State, Office of the Geographer, Limits in the Seas, No. 56 [hereinafter cited as LIS]; Norway/United Kingdom Agreement of March 10, 1965, LIS No. 10 Revised; Netherlands/United Kingdom Agreement of Oct. 6, 1965, ibid.; Denmark/Norway Agreement of Dec. 8, 1965, ibid. For agreements between adjacent states, see,e.g., German Democratic Republic/Poland Agreement of Oct. 29, 1968, LIS No. 65; Norway/Sweden Agreement of July 24, 1968, LIS No. 2; Finland/Soviet Union Agreement of May 20,1965, LIS No. 71; Norway/Soviet Union Agreement of Feb. 15, 1957, LIS No. 17.

87 Lateral sea boundaries delimited between states not mutually bound by the 1958 Convention:

This tendency to disregard the equidistance method has even appeared in agreements between parties to the 1958 Geneva Convention. For example, in the Malaysia/Thailand Agreement of December 21, 1971, a lateral boundary in the northern part of the Malacca Strait was established for a distance of 89.32 miles without applying equidistance at all. See LIS, supra note 86, No. 81.

88 See, e.g., Christy, F. T. Jr., & Herfindahl, H., A Hypothetical Division of the Sea Floor, a map prepared for the Law of the Sea Institute, 1967Google Scholar, reprinted in Friedmann, W. , The Future of the Oceans 4–5 (1971)Google Scholar.

89 [1969] ICJ Rep. 3.

90 Id., paras. 24, 45–46, 82–83, and 89.

91 Id., para. 101(C)(1).

92 Id., paras. 96 and 101(D)(1).

93 Id., paras. 95 and 101(D)(2).

94 Id., paras. 97 and 101(D)(2).

95 Id., paras. 98 and 101(D)(3).

96 Id., paras. 55 and 92.

97 Id., para. 93.

98 See 1977 Award, supra note 24. The court of arbitration stated in paragraph 68 that the equidistance principle and “special circumstances” are not “separate rules” but a “single one, a combined equidistance-special circumstances rule.”

99 For travaux préparatoires of Article 6 of the Convention on the Continental Shelf, see generally UN Docs. A/CN.4/SR.201, SR.204, SR.205, and SR.236 (1953); [1953] 1 Y. B. Int’l L. Comm’n 125–35 and 355–56; see also UN Doc. A/CONF.13/C.4/SR.31 (1958); 6 UN Conference on the Law of the Sea, Official Records 91–98 (1958). For the interpretation of Article 6 by the ICJ in the North Sea Continental Shelf cases, see [1969] ICJ Rep. 3, paras. 47–56.

100 See 1977 Award, supra note 24, para. 68.

101 Id., para. 75.

102 Ibid.

103 At the outset of the discussions of Negotiating Group 7 at the spring session of 1978 in Geneva, the proequidistance group of 22 states proposed the following draft: “The delimitation of the Exclusive Economic Zone [Continental Shelf ] between adjacent or opposite States shall be effected by agreement employing, as a general principle, the median or equidistance line, taking into account any special circumstances where this is justified.” See Conf. Doc. NG7/2 (May 1, 1978).

The proequity group of 29 states in turn proposed the following draft: “The delimitation of the economic zone or continental shelf between adjacent or/and [sic] opposite States shall be effected by agreement, in accordance with equitable principles taking into account all relevant circumstances and employing any methods, where appropriate, to lead to an equitable solution.” See Conf. Doc. NG7/10 (April 20, 1978).

For subsequent developments, see generally Working Papers of Negotiating Group 7, Conf. Docs. NG7/1–45 (April 19, 1978–Aug. 22, 1979).

104 See UN Press Release, Sea/422, Sept. 2, 1980, at 18–19.

105 See Draft Convention on the Law of the Sea, supra note 66, Arts. 74 and 83.

106 See note 103 supra. See oho Report of the Chairman on the Work of Negotiating Group 7, UN Doc. A/CONF.62/L.47 (1980).

107 Interview with the Hon. Andrés Aguilar, Chairman of the Second Committee of UNCLOS III, at his special lecture at the Harvard International Law Society, Nov. 12, 1980.

108 See Draft Convention, note 66 supra, Arts. 74, 83, 298, and 309.

109 See note 103 supra and Report of the Chairman, note 106 supra.

110 See U.S. Dep’t of State, Maritime Negotiations with Canada: The Gulf of Maine Area, File Pol 33–51, at 5 (May 17, 1977).

111 See Canadian View of the Gulf of Maine/Georges Bank Boundary Line, supra note 4.

112 Ibid.

113 See Maritime Negotiations with Canada, note 110 supra.

114 See Canadian View, note A11 supra.

115 Ibid.

116 See 1977 Award, supra note 24, paras. 243–51.

117 See 112 Can. Gaz., Extra No. 79, pt. I (1978), note 23 supra.

118 Id.

119 See File No. P78 016–2316, note 26 supra.

120 Ibid. On March 6, 1981, the U.S. Government, upon scrapping the Fisheries Agreement, announced its willingness to allow the Canadians to fish in the expanded area, provided that Canada accepts the U.S. proposal to first settle the maritime boundary dispute. The United States made clear that it would not recognize any legal basis for the expanded claim. See generally 1981 Senate Rep., supra note 47, at 1–2.

121 Interview with David Colson, Assistant Legal Adviser, U.S. Dep’t of State, May 11, 1981.

122 See generally UN Docs. A/CN.4/SR.204 and SR.205 (1953); [1953] 1 Y.B. Int’l L. Comm’n 125–35 (1953).

123 [1969] ICJ Rep. 3, paras. 53 and 55.

124 But see 1977 Award, supra note 24, paras. 68–75.

125 See id., para. 70.

126 See [1969] ICJ Rep. 3, para. 8. See also 2 ICJ Pleadings 29–30 (1968).

127 See sources cited in note 122 supra.

128 See Baxter, R. R., Treaties and Custom, 129 Recueil des Cours 25, 99–101 (1970 I)Google Scholar.

129 See 1977 Award, supra note 24, paras. 68–75.

130 See sources cited in note 23 supra.

131 See text and source cited at note 110 supra.

132 See sources cited at notes 23 and 121 supra.

133 See [1969] ICJ Rep. 3, paras. 98 and 101(D)(3). See also 1977 Award, supra note 24, paras. 99–102, 220, 231, 246, and 250.

134 See Dep’t of State File Pol 33–51, note 110 supra.

135 See sources cited in note 23 supra.

136 See Canadian Press Release, note 111 supra.

137 See Multilateral Treaties, note 9 supra, at 452.

138 The United States responded to the Canadian declaration as follows:

The Government of the United States does not find acceptable the declaration made by the Government of Canada with respect to Article 1 of the Convention on the Continental Shelf. The United States considers that Convention to be in force and applicable between it and Canada, but that such application does not in any manner constitute any concurrence by the United States in the substance of the declaration.

Id. at 455.

139 Article 19 stipulates that “[a] State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty. . . .” The United States may also argue that its objection of July 16, 1970 to the Canadian declaration simply left the matter in dispute between the two countries in light of the language of Article 21(3) of the Convention, which provides that “[w]hen a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.” See generally Convention on the Law of Treaties, done at Vienna, May 23, 1969, UN Doc. A/CONF.39/27, Arts. 19–23, reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

140 Article 12(1) of the Continental Shelf Convention, supra note 78, provides that “[a]t the time of signature, ratification or accession, any State may make reservations to Articles of the Convention other than Articles 1 to 3 inclusive.”

141 See sources cited in notes 23 and 111 supra.

142 For the convenience of analysis, the roughly semicircular Gulf area inside the hypothetical Gulf closing line between Cape Cod and Nova Scotia drawn by discounting islands shall be called the “inner area,” and the “outer area”—comprising the major feature of Georges Bank in the middle, Browns Bank near Nova Scotia, and Nantucket Shoal near Cape Cod—roughly resembling another half of die circle shall be called die “outer area of major interest.” The area to be delimited by the Court is within the 200–mile limit. The dimension of the 200–mile zone may be calculated by forming two hypothetical lines perpendicular to and constructed at both ends of the Gulf closing line. The area to be delimited will be further extended up to the limit of the continental margin.

143 The ratio of the lengths of the coasdines may be arguable. If the hypothetical closing line of the Bay of Fundy is not taken into account, then the ratio would be approximately 4 to 1. In measuring the lengths of die coastlines in the Gulf of Maine, it seems fair to discount the Canadian coastlines in the Bay of Fundy and to recognize the hypothetical Bay closing line as a part of the Canadian coastal frontage, not only because substantial areas of die Bay have been either incorporated into the internal waters by drawing straight baselines, or engulfed by the expansion of the territorial sea from 3 to 12 miles, but also because Canada has exercised exclusive fishing jurisdiction since late 1970 by drawing fisheries closing lines in the mouth of the Bay. See The Territorial Sea and Fishing Zones Act (1964), [1970] Can. Rev. Stat. C. T–7 ; Canadian Government Notice Establishing Fishing Zones, 104 Can. Gaz. 1, No. 52 (Dec. 26, 1970). See also Statement of Canadian Minister of Fisheries and Forestry on the Promulgation of Fisheries Closing Lines, 115 Parl. Deb., H.C. (Can.) 2244–45, No. 50 (Dec. 18, 1970); U.S. Statement on Canadian Fisheries Closing Lines Announcement, Dep’t of State Press Release No. 357, Dec. 18, 1970.

144 See sources cited in note 133 supra.

145 The sole reason for the birth of the thalweg doctrine developed since the beginning of the 19th century was to preserve equal rights of access to the main channel of navigation. The thalweg doctrine has been applied in principle in navigable rivers, and also in a few territorial sea boundaries, where international navigation was the prime interest. See Treaty between the Principal Allied and Associated Powers, and Denmark, with regard to Slesvig, July 5, 1920, 113 Brit. Foreign & St. Papers 465 (1920). See also Convention between Finland and Russia Concerning the Maintenance of River Channels and the Regulation of Fishing on Water Courses forming Part of the Frontier, Oct. 28, 1922, 19 LNTS 193. See also Territorial Sea Boundary Agreement between Johore and Singapore, Oct. 19, 1927, 18 & 19 Geo. 5, ch. 23, at 182, 184 (1928), Art. 1.

146 Despite the separation between Georges Bank and Browns Bank on the surface along the Northeast Channel, the precoastal-plain history of Georges Bank and the Gulf of Maine is inferred to be similar to that of coastal New England and Nova Scotia. During Cretaceous, Tertiary, and possibly Jurassic times, the deposition of coastal-plain sediments took place, resulting eventually in a sedimentary wedge 3 to 9 kilometers thick. It was mainly during the Pliocene epoch that a major episode of subarial exposure and erosion took place, which formed the general shape of the present Gulf of Maine. Streams eroded the inner part of the coastal-plain wedge, forming an interior lowland in the Gulf of Maine, and carving Georges Bank into its cuesta form. The Northeast Channel and the Great Southeast Channel were the water gaps for streams draining the interior lowland. However, in the subsequent Pleistocene epoch, continental glaciers eventually advanced across the interior lowland and as far as the northern edge of Georges Bank. During the glacial movement, submarine slump or landslides occurred along the northern slope of Georges Bank, depositing outwash materials in the Northeast Channel. Later, Georges Bank was submerged by the postglacial rise in sea level. See generally Austin, et al., Geology of New England Passive Margin, 64 Am. A. Pet. Geol. Bull. 501 (1980); Ballard, & Ellis, , Continental Slope and the Upper Rise off Western Nova Scotia and Georges Bank, 61 id. 1483 (1977)Google Scholar; Ballard, & Sørensen, , The Preglacial Structure of Georges Bank and the Northeast Channel, Gulf of Maine, 52 id. 494 (1968)Google Scholar; Emery, & Uchupi, , The Structure of Georges Bank, 3 Marine Ecology 349 (1965)Google Scholar; Oldale, , Geophysical Observations on the Northern Parts of Georges Bank and Adjacent Basins in the Gulf of Maine, 58 Am. A. Pet. Geol. Bull. 2411 (1974)Google Scholar; Schutz, & Grover, , Geology of Georges Bank Basin, 58 id. 1159 (1974)Google Scholar.

147 A majority of the fish stocks of Georges Bank are associated with the Virginia faunal grouping, whereas the stocks of Browns Bank are linked with the Boreal faunal grouping.

148 See ICNAF, note 15 supra.

149 See, e.g., 1977 Award, supra note 24, para. 191.

150 See Agreement between Norway and the United Kingdom Relating to the Delimitation of the Continental Shelf, Oct. 3, 1965, 551 UNTS 214, LIS, supra note 86, No. 10 Revised. 151 See Agreement between Denmark and Norway Relating the the Delimitation of the Continental Shelf, Dec. 8, 1965, 634 UNTS 71, LIS, supra note 86, No. 10 Revised.

152 See Agreement between Australia and Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, Supplementary to the Agreement of 18 May 1971, Oct. 9, 1972, United Nations, Naticnal Legislation and Treaties Relating to the Law of the Sea, UN Doc. ST/LEG/SER.B/18, at 441 (1976), LIS, supra note 86, No. 87.

153 See Agreement between the Republic of Korea and Japan Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, Jan. 30, 1974, LIS, supra note 86, No. 75, 4 New Directions (eds. R. Churchill & M. Nordquist, 1975), supra note 28, at 117.

154 See [1969] ICJ Rep. 3, paras. 20, 46, and 101 (C)(1).

155 See 1977 Award, supra note 24, paras. 207, 210, 221, and 251–55.

156 [1969] ICJ Rep. 3, paras. 96, 98, and 101(D)(3).

157 See 1977 Award, supra note 24, paras. 98–101.

158 See [1969] ICJ Rep. 3, paras. 20, 88, and 91.

159 See, e.g., Friedmann, , The North Sea Continental Shelf Cases-A Critique, 64 AJIL 229, 234 (1970)Google Scholar.

160 See 1977 Award, supra note 24, para. 78.

161 Id., paras. 78 and 101. See also [1969] ICJ Rep. 3, para. 20.

162 [1969] ICJ Rep. 3, para. 96.

163 As to the applicability of the principle of natural prolongation, see text at notes 149–53 supra. The unity of deposits, though the very object of the legal regime of the maritime extension, is not in itself a principle or a criterion of delimitation; it is not anything more than “a factual element which it is reasonable to take into account in the course of the negotiations for a delimitation.” See [1969] ICJ Rep. 3, para. 97.The problem of a common deposit straddling a boundary was once regarded as a hard-core issue, but now it is resolved one way or another by the development of the method of unitization. In the joint report of Oct. 15, 1977, the United States and Canada already agreed in principle on the unitization plan by establishing a shared access zone in the boundary area. See Joint Report, note 19 supra, Attachment II.

164 See note 143 supra.

165 See [1969] ICJ Rep. 3, para. 24.

166 See id., para. 90.

167 See US, supra note 86, No. 83, UN Doc. ST/LEG/SER.B/19, at 445–50 (1980), Verträge und Deklarationen Über Den Festlandsockel 156 (G. Rüster ed. 1975).

168 Interview with the late Robert Hodgson, Geographer, U.S. Department of State, June 29, 1979. See LIS, supra note 86, No. 83, at 10–15. This method was cited by France in the Anglo- French Continental Shelf arbitration. See 1977 Award, supra note 24, para. 220.

169 See note 143 supra.

170 See note 17 supra.

171 See note 145 supra.

172 France and Spain used the term “delimitation” instead of “apportionment.”

173 See Grisbadarna Case (Norway v. Sweden), Hague Ct. Rep. (Scott) 121 (Perm. Ct. Arb. 1909), reprinted in 4 AJIL 226 (1910); for the original French version, see Hague Ct. Rep. (Scott) 487, 11 R. Int’l Arb. Awards 155.

174 The tribunal declared the applicable principle as follows:

[W]e shall be acting much more in accord with the ideas of the seventeenth century and with the notion of law prevailing at that time if we admit that the automatic division of the territory in question must have taken place according to the general direction of the land territory of which the maritime territory constituted an appurtenance, and if we consequently apply this same rule at the present time in order to arrive at a just and lawful determination of the boundary. . . . . . .

. . . . . . [Consequently, the automatic dividing line of 1658 should be determined (or, what is exactly the same thing expressed in other words), the delimitation should be made today by tracing a line perpendicularly to the general direction of the coast, while taking into account the necessity of indicating the boundary in a clear and unmistakable manner, thus facilitating its observation by the interested parties as far as possible.

See 4 AJIL at 232 (1910).

175 Id. at 233.

176 See text at note 168 supra.

177 In the U.S. Senate hearings, several senators and panelists said informally that the maritime boundary matter might be settled on the principle of splitting the difference. See, e.g., 1980 Senate Hearings, supra note 43, at 98 (remarks of Senator Muskie and Mr. D. Bergson).

178 A question will arise as to whether the Court is precluded from giving such an area to the United States, solely because it has been claimed only by Canada. The answer seems to be negative. Such a delimitation would not necessarily mean an unfair decision giving a party more than it claims, because in this case each party is competing on the basis of legal principles rather than over any title to the submerged land. In the delimitation by lex propria motu, particularly owing to the inappropriate claims by the parties, the Court should be allowed to employ any legitimate method or methods it deems proper.

179 See note 177 supra.

180 [1969] ICJ Rep. 3, paras. 85(b), 90, and 92.

181 See 1977 Award, supra note 24, para. 84.

182 See text at note 105 supra.

183 See, e.g., Grisbadarna arbitration, Hague Ct. Rep. (Scott) 121, 4 AJIL 226 (1910).

184 See, e.g., continental shelf delimitation between France and Spain, UN Doc. ST/LEG/ SER.B/19, at 445–50 (1980). The doctrine of proportionality was respected in the recent decision by the Assistant Administrator for Coastal Zone Management, National Oceanic and Atmospheric Administration (NOAA), with respect to the interstate continental shelf boundary dispute between Mississippi and Louisiana. In accordance with the Coastal Energy Impact Program, under section 308 of the Coastal Zone Management Act of 1972, Pub. L. No. 92–583, §308, 86 Stat. 1280 (1972), as amended by section 7 of the Coastal Zone Management Act Amendments of 1976, Pub. L. No. 94–370, 90 Stat. 1013 (1976) (codified at 16 U.S.C. §1456a (1979)), and section 5 of the Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. No. 95–372, 92 Stat. 629, 43 U.S.C. §§1801 et seq., the Assistant Administrator established the lateral boundary line in 1979 by halving the distance between the eastern coastline of Louisiana and an equidistance line between the two coasts, so that the boundary line would divide the area in accordance with the ratio of the relative lengths of the two coastlines. See Robert W. Knecht, Assistant Administrator for Coastal Zone Management, NOAA, U.S. Dep’t of Commerce, Establishment of the Mississippi/Louisiana Coastal Energy Impact Program Delimitation Line (1979). Both states challenged the decision and filed court suits. See State of Mississippi v. Secretary, U.S. Dep’t of Commerce, et al., Civil Action File No. J79–0634(R) (S.D. Miss.); see also State of Louisiana v. Luther Hodges, Jr., et al., Civil Action No. 79–4936 (E.D. La.).

185 See Special Agreement, supra note 30, Art. VII. See also Arbitration Agreement, supra note 31, Arts XII, XIII.

186 See Some Facts About the Canadian/United States East Coast Fisheries Agreement, supra note 22, at 2–3 .

187 See, e.g., 1980 Senate Hearings, supra note 43, at 170 (letter from Mr. Simms to Senator Church, April 3, 1980) and at 172 (letter from Mr. Stinson to Senator Muskie, April 15, 1980).

188 See Library of Congress, Congressional Research Service, Response to Questions on the Impact of the U.S.-Canadian Fisheries Treaty (A Report from Mr. Zinn to Senator Cohen, Nov. 27, 1979), reprinted in id. at 218.

189 This does not necessarily mean that the equidistance method should be applied to the entire “inner area.” It is desirable that the equidistance line be turned oceanward somewhere in the central area of the Gulf before it “protrudes” into the “outer area.” The division between the “inner area” and the “outer area” is relative in the particular situation. There may be a blurred area between the two. This division, which would generally coincide with that between “opposite” and “adjacent” situations, would be useful particularly in the bay or Gulf area where the “opposite” situation is mixed with the “adjacent” in varying degrees. This concurrent method was used in the Grisbadarna arbitration. The tribunal employed the median line method in the “inner area” and the line perpendicular to the general direction of the coast in the “outer area.” See note 173 supra, passim.

190 It appears that the line claimed by the United States in the north does not represent the main channel of navigation between the two countries. The thalweg doctrine or the mid-channel principle was originally propounded for the mutual preservation of the equal right and access of navigation mostly in navigable rivers. See note 145 supra. It is therefore unreasonable to apply the mid-channel principle to the northern corner of the Gulf where there is, as a matter of fact, no main channel of navigation.

191 It is expected that it will take at least 3 years from the time of die exchange of ratification instruments of the Boundary Settlement Treaty to die final determination of the boundary by die Court. In the North Sea Continental Shelf cases, it took about 2 years: dip special agreement entered into force on Feb. 2, 1967, and the ICJ rendered its judgment on Feb. 20, 1969. In the Anglo-French Continental Shelf arbitration, it also took about 2 years: the arbitration agreement entered into force on July 10, 1975, and the court of arbitration rendered its decision on June 30, 1977. As to the likely length of die proceedings relating to the United States-Canadian maritime boundary delimitation in the Gulf of Maine area, Professor L. B. Sohn observed:

While the United States-Canadian agreement only specifies two time-limits—7 months for the memorials and 6 months for counter-memorials—it provides for further pleadings if the Chamber of the International Court of Justice (or the Arbitration Court) finds them to be necessary. Normally, two additional time-limits, of 3 months at least, are provided for replies and rejoinders. One has to allow also 3 months for the parties’ preparations for the oral hearings and die hearings themselves, as well as 3 months for the preparation of the judgment. The minimum total under this agreement is thus likely to be about 25 months.

Considering the possible extension of lime limits in preparing for briefs, he concluded diat it would take at least 3 years. See letter from Professor L. B. Sohn to Senator E. M. Kennedy, Sept. 20, 1979, reprinted in 1980 Senate Hearings, supra note 43, at 104–05.

192 This is the author’s tentative denomination. A unitization plan was originally propounded for the cooperative division of the common pool of oil and gas deposits straddling the boundary in order to avoid die economic waste resulting from competitive drilling between neighbors. This method has also been suggested as applicable mutatis mutandis in the allocation of underground waters. See, e.g., Trelease, , Legal Solutions to Groundwater Problems—A General Overview, 11 Pacific L.J. 863, 868–69 (1980)Google Scholar. By the same token, it is desirable that the unitization method be utilized for the efficient management of fishery resources between states. For the economic value of die cooperative management of common resources, see, e.g., Friedman, A. E., The Economics of the Common Pool: Property Rights in Exhaustible Resources, 18 UCLA L. Rev. 885 (1971)Google Scholar.