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National Jurisdiction and International Responsibility: New Canadian Approaches to International Law†

Published online by Cambridge University Press:  28 March 2017

Allan Gotlieb  and
Charles Dalfen
Allan Gotlieb
Affiliation:
Government of Canada
Charles Dalfen
Affiliation:
University of Toronto, Faculty of Law
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Extract

It is the purpose of this paper to describe Canadian approaches toward international law, as they have evolved in recent years, particularly in relation to activities in outer space and “ocean space” made possible by new technological developments. It is intended to demonstrate both the similarities and the dissimilarities in these new approaches as compared with those followed by Canada in the past. Not within the scope of this study are questions about the validity of a particular point of view expressed by Canada, the extent to which new positions are well founded in the traditional concepts of international law, whether precedents for particular concepts are or are not correctly interpreted by Canada spokesmen and negotiators. What we are setting out to do is to observe and describe new Canadian attitudes toward international law and to evaluate their significance. History has not yet allowed us the privilege of a perspective in time. We plead this defense for the errors we may make in both interpretation and evaluation.

Type
Research Article
Information
American Journal of International Law , Volume 67 , Issue 2 , April 1973 , pp. 229 - 258
Copyright
Copyright © American Society of International Law 1973

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Footnotes

†

Portions of this paper were presented by Allan Gotlieb at the Second Annual Conference of the Canadian Council on International Law on October 13, 1972. The views expressed in the paper are his personal ones and do not necessarily reflect the policies or opinions of the Department of Communications or of the Government of Canada.

The authors wish to express their thanks to Allan Torobin, International Arrangements Officer, of the Department of Communications for his valuable research assistance in preparing this paper.

References

1 See, for example, Dobbell, Peter C., Canada’s Search for New Roles: Foreign Policy in the Trudeau Era (1972)Google Scholar; Thomson, D. C and Swanson, R. F., Canadian Foreign Policy: Options and Perspectives (1971)Google Scholar; Thordarson, Bruce, Trudeau and Foreign Policy: A Study In Decision-Making (1972)Google Scholar. See also Granatstein, J. J. and Smiley, D., Full circle in foreign policy: two views, 3 Canadian Forum, 16–19 Google Scholar; Head, Ivan L., The Foreign Policy of The New Canada, 50 Foreign Affairs 237 (1972)CrossRefGoogle Scholar; Holsti, K. J., 29 Behind the Headlines (Aug. 1970)Google Scholar; also testimony of Holsti, K. J. in Minutes of Proceedings of the Standing Committee on External Affairs and National Defence, House of Commons, (Cdn.), 3rd Sess., 28th Pari., Jan. 19, 1971 Google Scholar.

2 See, for example, Thordarson, supra note 1, at 1–4.

3 Canada Department of External Affairs, Foreign Policy for Canadians (6 booklets), (1970) [hereinafter cited as “White Paper”].

4 “Policy statement by the Prime Minister—Canada and the World,” May 29, 1968.

5 Cf. Transcript of interview en route from Leningrad to Ottawa, May 28, 1971, quoted in DOBELL, supra note 1, at 147, where the Prime Minister is quoted as saying that Canada is not “trying to determine external events; we are just trying to make sure that our foreign policy helps our national policy.”

6 “White Paper,” general booklet, supra note 3, at 32.

7 Ibid., 16.

8 The perplexity of this dual approach generally in state practice has been the subject of much comment. Thus Julius Stone: “. . . it must remain a constant source of perplexity to distinguish departures from existing rules of international law which are merely outrageous breaches, from those which manifest inchoate legal change. But this is a perplexity with which, regrettably, we must learn to live.” Stone, What Price Effectiveness? International, Law in the Twentieth Century, (Leo Gross ed. 1969), 160 at 165, also in 1956 Phoc. Amer. Soc. of Int. Law 198 at 203.

9 Gotlieb, Allan E., Recent Developments concerning the Exploration and Exploitation of the Ocean Floor. 15 McGill L. J., 260 at 266 (1969)Google Scholar.

10 J. A. Yogis, Canadian Fisheries and International Law in R. St. John Macdonald et al., Canadian Perspectives on International Law and Organization (not yet published).

11 Gotlieb, A. E., The Canadian contribution to the concept of a fishing zone in International Law, 1964 Canadian Y. B. of International Law, 55 at 63 Google Scholar thereinafter cited as “Fishing Zone”].

12 1 H. C DEB. (Can.) 1963, at 621.

13 R.S.C 1970, c. T-7.

14 Gotlieb, “Fishing Zone” supra note 11, 71–73.

15 Ibid., 75–76. Countries possessing treaty rights or claiming “traditional rights” to fish in Canadian waters were allowed, pending negotiations, to continue to fish within the 12-mile fishing zone pursuant to Orders-in-Council under the Coastal Fisheries Protection Act (S.C. 1953, 1–2 Eliz. II, c. 15, s. 4 ) : P.C. 1964–1112 of July 17, 1964.

16 While in 1967 a series of straight baselines were drawn along the coasts of Labrador and Newfoundland, it was only in 1969 that a further series were drawn off the coasts of Nova Scotia, Vancouver Island, and the Queen Charlotte Islands. It was not until 1970 that the government by way of Order-in-Council drew “fisheries closing lines” across the entrances to the Gulf of St. Lawrence, the Bay of Fundy, Queen Charlotte Sound, and Dixon-Entrance Hecate Strait (104 Canada Gazette, No. 52, Dec. 26, 1970). 10 ILM 438 (1971).

17 As set out in Art. 4 of the Convention on the Territorial Sea and the Contiguous Zone (15 UST 1606; TIAS 5639; 516 UNTS 205); and see Anglo-Norwegian Fisheries case [1951] ICJ Rep. 116.

18 Text of reservation reproduced in 1970 Canadian Y. B. of International Law, 34; also in 9 ILM 598 (1970).

19 See for example, Canada and The U.N. “1945 to 1965” (1966).

20 Dalfen, Charles M., “Space Assessment 1972—Arrangements and Prospects for Cooperation” AIAA Paper No. 72–740, July 1972, at 5.Google Scholar

21 UNCPUOS meeting, October 1968, UN Docs. A/AC.105/PV.55, at 62–70 (Sweden) and A/AC.105/PV.58, at 31–32 (Canada).

22 General Statement made May 2, 1972 by D. M. Miller, Head of Canadian Delegation, 11th Session of Legal Sub-Committee of UNCPUOS.

23 For example, at the eighth session of the UNCPUOS, June 9-JuIy 4, 1969.

24 UN Doc. A/AC.105/101 at 18 et seq.

25 On Canada’s efforts at the 1969 Brussels Conference to achieve greater international responsibility, see Green, L. C., International Law and Canada’s Oil Pollution Legislation, 50 Oregon L. Rev. 462 at 472–76 (1971)Google Scholar; Legault, L. H. J., The Freedom of the Seas: A License to Pollute? 21 U. of Toronto L. J. 211 at 211–19 (1971)CrossRefGoogle Scholar. On Canada’s position at Stockholm, see “Background Information on the Stockholm Conference on the Human Environment,” Department of the Environment, Ottawa, June 21, 1972, also H. C. Deb (Can.) June 21, 1972, at 3333.

26 For Canadian position on direct broadcast satellites, see three Canada-Sweden Working Papers to UN Working Group on Direct Broadcast Satellites, UN Docs. A/AC. 105/49, A/AC.105/59 and A/AC.105/WG.3/L.1, passim. See esp. the last at paras. 35–38.

27 Draft Note from the Canadian Ambassador to the Secretary of State of the United States of America, signed May 15, 1971; Diplomatic Note, paragraph 2.

28 For details see “Legal Problems Associated with Ocean Data Acquisition Systems,” Inergovernmental Oceanographic Commission Technical Series, No. 5, UNESCO, 1969.

29 See for example, Bilder, Richard B., The Canadian Arctic Waters Pollution Prevention Act: New Stresses on the Law of the Sea, 69 Mich. L. Rev. 1 at 5 (1970–71)Google Scholar; Prime Minister’s Remarks to the Annual Meeting of the Canadian Press, Toronto, April 15, 1970.

30 UN Docs. A/AC.105/C.2/10; A/AC.105/94, at 4.

31 Canadian statement at UNCPUOS, New York, Sept. 2, 1971. UN Doc. A/AC.105/ PV.99 at 39–44.

32 Cf. supra note 24.

33 The adopted text of the Convention on International Liability for Damage caused by Space Objects is contained in UN Doc. A/AC.105/94 of July 8, 1971; also in 10 ILM 965 (1971).

34 Canadian proposal to Legal Sub-Committee, 8th session, 1969.

35 Supra note 31, at 22.

36 Canadian statement of September 7, 1972 at 15th UNCPUOS session.

37 Convention on Civil Liability for Oil Pollution Damage, Brussels (opened for signature Nov, 29, 1969); 64 AJIL 481 (1970); 9 ILM 45 (1970).

38 Convention on Intervention on the High Seas in cases of Oil Pollution, Brussels, (opened for signature Nov. 29, 1969); 64 AJIL 471 (1970); 9 ILM 25 (1970).

39 Legault, supra note 25, at 215.

40 Ibid., 214–15. In addition, Canada succeeded in having the coastal state’s Lability for damage caused by its preventive measures limited to the extent that such damage is attributable to measures exceeding what was reasonably necessary to prevent or minimize pollution damage. On the other hand, Canada did not succeed in obtaining a provision which would have permitted claims against a coastal state for excessive and unreasonable preventive measures to be offset against claims against the ship for pollution damage when the parties to the two claims were the same.

41 Thus, for example, the Convention on Intervention on the High Seas (supra note 38), at Art. I(1) provides that states parties “may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences.” (Emphasis added).

42 Hereinafter Arctic Act. 18–19 Eliz. 2, c. 47 (Can. 1970). See for example Bilder, supra note 29, at 2–5, 23–25; Cohen, Maxwell, The Arctic and the National Interest in 26 Int. Journal 68 et seq. (1970)Google Scholar; Dobell, supra note 1, at 69–70; Forget, Claude, Pollution and Territorial Sovereignty in the Arctic, in Hugh Innis et al. International Involvement 40 (1972)Google Scholar; Head, supra note 1, at 242, Thordarson, supra note 1, at 186; Trudeau, Speech to the Annual Assembly of Canadian Press, April 15, 1970 in 1970 Canadian Y. B. of International Law 213–14 (1970).

43 Arctic Act, §12 and regulations thereunder.

44 See reference in supra note 18.

45 Canada has relied very heavily on an extrapolation of the principle in the Trial Smelter Arbitration case (U.S. v. Canada, 3 U.N.R.LA.A. (1941), 1905) that under international law no state has the right to use or permit the use of its territory in such a manner as to cause injury in or to the territory of another when the case is of serious consequence and the injury is established by clear and convincing evidence.

46 “Text of Canadian Proposals Accepted Unanimously in a Plenary Session of the U.N. Conference on the Human Environment on the 14th of June, 1972.” [Hereinafter cited as “Proposals.”].

47 For statement of objectives, see Canadian Working Paper on the Preservation of the Marine Environment, Department of External Affairs, Aug. 18, 1972, at 23 [hereinafter cited as ‘Taper”].

48 “Proposals,” Principle No. 2.

49 Ibid., Principle No. 7.

50 Canada has also been working with other countries to develop a convention to forbid dumping into the sea of certain toxic substances carried in ships (Convention on the Dumping of Waste at Sea 11 ILM 1291 (1972).) The jurisdictional aspects of the draft convention may provide a basis for accommodation between flag states and coastal states, enabling both to enforce the convention against offending parties, though the final decision on the question of enforcement jurisdiction is being left to the Law of the Sea Conference.

51 “Paper,” 10–11.

52 Speech of J. A. Beesley to 1st Committee of UNGA quoted in part in 1971 Canadian Y. B. of International Law, 276–78.

53 Idem.

54 See for example: Henkin, Louis, Arctic Anti-Pollution: Does Canada Make—or Break—International Law?, 65 AJIL 131, 136 (1971)Google Scholar; Bilder, supra note 29, at 30.

55 Yogis, supra note 10, at 1–2.

56 Fur Seals Treaty of 1911 in Treaties and Agreements Affecting Canada in force between His Majesty and the United States of America, 1814–1925, 391 (1927); TS 564; 5 AJIL Supp. 267 (1911).

57 Treaty between Canada and the United States of America for Securing the Preservation of the Halibut Fishery of the North Pacific Ocean, signed March 2, 1923, ratified October 21, 1924. Treaties and Agreements Affecting Canada in force between His Majesty and the United States of America . . . 1814–1925, 505 (1927); TS 701; 43 Stat. 1841.

58 Convention between His Majesty and the United States of America for the Protection, Preservation and Extension of the Sockeye Fisheries in the Fraser River System, signed May 26, 1930, ratified July 28, 1937, 1937 Can. T.S. No. 13; 50 Stat. 1355; TS 918; 6 Bevans 41; 184 LNTS 305.

59 Northwest Atlantic Fisheries Convention signed February 8, 1949, in force July 3, 1950, 1950 Can. T.S. No. 10; 1 UST 477; TIAS 2089; 157 UNTS 157.

60 International Convention for the High Seas Fisheries of the North Pacific Ocean, signed May 9, 1952; in force June 12, 1953, 1953 Can. T.S. No. 3; 4 UST 380; TIAS 2786; 205 UNTS 65.

61 UN Doc. A/Conf.13/L.54 (See A/Conf.13/38, p. 139); 52 AJIL 851 (1958).

62 Yogis, supra note 10, at 13, 20,

63 Discussed at length in Gotlieb, “Fishing Zone,” 64–71.

64 This formula proposed a six-mile territorial sea and a further six-mile exclusive fishing zone. UN Doc. A/Conf.13/C.l/L.77 Rev. 3, April 17, 1958.

65 R.S.C. 1970, c. T-7.

66 Statutes of Canada 1964–65, c. 22, §§3–5.

67 Statutes of Canada 1969–70, c. 68.

68 Ibid., 4; Cf. the effect of the 12-mile limit on straits formerly considered international, but which Canada’s action would render internal when they are less than 24 miles across (e.g. the Northwest Passage). In these cases the innocent passage rule which Canada also seeks to redefine in the light of previously unforeseen technological threats (e.g. oil pollution) would apply rather than that of unrestricted passage as obtains on the high seas. See for example: Some Examples of Current Issues of International Law of Particular Importance to Canada, Department of External Affairs Legal Division, June 10, 1970 at 14–15; statements of J. A. Beesley, Seabed Committee, March 24, 1971, at 9, August 10, 1972, at 15; Canadian note to U.S., April 16, 1970, quoted in 1971 Canadian Y. B. of International Law, 289 at 292.

69 The five countries in question are the United Kingdom, Denmark, Norway, Portugal, and Spain. A sixth country, France, has been granted certain rights reciprocal to those enjoyed by Canada off St. Pierre and Miquelon. Under a more general agreement, subject to renewal in 1973, the United States is allowed to fish in the same areas, to the same extent, and for the same species (with specific exceptions in the agreement) as it has traditionally done.

70 This concept was referred to, for example, by May, A. W., Alternate Canadian representative to the UN Seabed Committee (Preparatory Committee for the Third Law of the Sea Conference) Sub-Committee II, in a statement of March 28, 1972 Google Scholar.

71 Statement by Beesley, J. A., representative of Canada to the UN Seabed Committee (Preparatory Committee for the Third Law of the Sea Conference), Sub-Committee II, March 15, 1972 Google Scholar.

72 Working paper submitted by Canada to the Seabed Committee, Sub-Committee II, July 26, 1972: “Management of the Living Resources of the Sea.” Statement by Needier, A. W. H., deputy-representative of Canada, Seabed Committee, Sub-Committee II, July 28, 1972.Google Scholar Beesley statement see supra note 71.

73 As distinct from particular sedentary resources such as sponges, pearls, etc. where certain rules have in fact been developed.

74 The 1958 Geneva Convention on the Continental Shelf, Arts. 1, 2: UN Doc. A/Conf.13/38, A/Conf.13/L.55, April 28, 1958; 52 AJIL 858 (1958).

75 Gotlieb, Recent Developments, supra note 9, at 272–77.

76 See Beesley, , The Law of the Sea Conference: factors behind Canada’s stand, International Perspectives, July/Aug. 1972 Google Scholar (Dept. of External Affairs) 28 at 29 [Hereinafter cited as “Factors”].

77 For example, statement by Beesley, J. A., representative of Canada to UN Seabed Committee, Plenary Session Geneva, August 10, 1972 Google Scholar: “To our delegation at least it seems likely that the precise definition will have to be based on a combination of criteria such as distance and geomorphological factors. This appears to us to be the only solution which would adequately reflect existing law and the acquired rights of states, the need for the early establishment of a regime and machinery applicable to the area beyond national jurisdiction, and thus considerations of equity in terms of both contribution and benefits.”

78 Instrument of Ratification submitted Feb. 6, 1970 with effect as of March 8, 1970.

79 The basis for such an approach is discussed in Gotlieb . . . Recent Developments, supra note 9, at 266, 274.

80 The Netherlands proposal can be found in UN Doc. A/AC.138/SC.1/L.9, March 21, 1972. For the U.S. proposal, made by President Nixon on May 23, 1970, see 62 Dept. State Bull. 737 (1970); also in 9 ILM 806 (1970).

81 See statement of Crosby, D. G., Alternate Canadian representative to UN Seabed Committee (Preparatory Committee for the Third Law of the Sea Conference), Sub-Committee I, March 23, 1972, at 5–8.Google Scholar

82 See statement of J. A. Beesley of Aug. 5, 1971 at 9 where the notion is expressed that since coastal states enjoy special rights and privileges in regard to continental shelf resources, they ought to recognize some duty towards the international community as a whole, and particularly developing countries to contribute to them at least some of the benefits from the rights and privileges enjoyed by coastal states.

83 International Seabed Regime and Machinery Working Paper submitted by Delegation of Canada to the Seabed Committee, Aug. 24, 1971, UN Doc. A/AC.138/59.

84 Statement of A. W. May to Seabed Committee, Sub-Committee III, Aug. 7, 1972; Canadian working paper on marine scientific research principles, UN Doc. A/AC.138/SC.III/L.18 of July 25, 1972; Statement by Beesley, J. A., Canadian representative to UN Preparatory Committee for the Third Law of the Sea Conference, Plenary Sess., Aug. 5, 1971, at 9 Google Scholar.

86 Statement by J. A. Beesley referred to in supra note 84 at 9. Cf. UN Doc. referred to in id., principle 9.

86 UN Doc. referred to in note 84, 1st preambular principle, principles 7 and 8.

87 Ibid., principle 11.

88 Ibid., principle 14, marine scientific research principles.

89 See Dobell, supra note 1, at 76.

90 Cf. Wolfgang Friedmann, Oliver J. Lissitzyn, Richard Puch, 1972 Supplement to International Law, Cases and Materials, at 92.

91 Cf. Crosby, supra note 81, at 6–8.

92 See Beesley, “Factors,” supra note 76, at 29.