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From Sea to Seabed: The Single Maritime Boundary in the Gulf of Maine Case

Published online by Cambridge University Press:  27 February 2017

L. H. Legault  and
Blair Hankey
L. H. Legault
Affiliation:
Department of External Affairs
Blair Hankey
Affiliation:
United States Trade and Economic Relations Division, Department of External Affairs
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Extract

Three decisions on maritime boundaries in a period of 9 months during 1984-1985 have doubled the body of case law on the delimitation of ocean space. The cases decided by international tribunals prior to 1984 applied only to the continental shelf. The waters overlying the shelf were either part of the high seas or, if subject to coastal state jurisdiction, were left undivided as between neighboring coastal states. However, two of the decisions rendered last year—the decision by a Chamber of the International Court of Justice in the Gulf of Maine case and the one by an ad hoc arbitral tribunal in the Guinea/Guinea-Bissau case—constituted the first judicial determinations of boundaries that divide jurisdiction over both the continental shelf and the water column beyond the territorial sea. The decision by the International Court of Justice in the Libya/Malta Continental Shelf case represented the fourth in a line of cases delimiting the continental shelf alone.

Type
Research Article
Information
American Journal of International Law , Volume 79 , Issue 4 , October 1985 , pp. 961 - 991
Copyright
Copyright © American Society of International Law 1985

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References

1 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 ICJ Rep. 246 (Judgment of Oct. 12) (given by the Chamber constituted by the Order made by the International Court of Justice on Jan. 20, 1982) [hereinafter referred to as Gulf of Maine case]; and Tribunal arbitral pour la délimitation de la frontière maritime (Guinée/Guinée-Bissau), award of Feb. 14, 1985.

2 Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ Rep. 13 (Judgment of June 3) [hereinafter referred to as the Libya/Malta case].

3 Opened for signature Dec. 10, 1982, reprinted in United Nations, the Law of the Sea: United Nations Convention on the Law of the Sea (UN Pub. Sales No. E.83.V.5).

4 North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Judgment of Feb. 20) [hereinafter referred to as the North Sea cases]; Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision of 30 June 1977, 18 R. Int’l Arb. Awards 3, 18 ILM 397 (1979) [hereinafter referred to as the Anglo-French award]; and Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18 (Judgment of Feb. 24) [hereinafter referred to as the Tunisia/Libya case].

5 1984 ICJ Rep. at 267, para. 27.

6 For a summary of the Canadian and United States arguments, see Schneider, The Gulf of Maine Cose: The Nature of an Equitable Result, 79 AJIL 539, 548–58 (1985)Google Scholar.

7 The United States approach would have led to the adoption of a set of four specific equitable principles purportedly derived from the case law on continental shelf, territorial sea and land boundary delimitation and the new law of the sea developed at the Third United Nations Conference on the Law of the Sea and in recent state practice with regard to the exclusive economic zone. These principles were:

  • (a) . . . that the delimitation respect the relationship between the relevant coasts of the Parties and the maritime areas lying in front of those coasts, including non-encroachment, proportionality, and, where appropriate, natural prolongation;

  • (b) . . . that the delimitation facilitate conservation and management of the natural resources of the area;

  • (c) . . . that the delimitation minimize the potential for disputes between the Parties; and

  • (d) . . . that the delimitation take account of the relevant circumstances of the area.

United States Memorial [hereinafter cited as U.S. Mem.] at 231, Submissions, para. A.2.

Canada, for its part, set forth five propositions as fundamental to the application of equitable principles:

  • (a) Equitable principles must be identified and applied on the basis of the applicable law.

  • (b) The boundary should respect the basis of coastal State title.

  • (c) The boundary should respect the basic purposes of the rights and jurisdiction in issue.

  • (d) The boundary should take account of the legally relevant circumstances.

  • (e) The result of the application of equitable principles must itself be equitable in light of all the relevant circumstances.

Canadian Counter-Memorial [hereinafter cited as Can. C.-Mem.] at 227, para. 545; Canadian Reply at 18, para. 427.

In the context of these legal considerations generally applicable to all maritime delimitations, Canada identified three principles that it claimed would lead to an equitable result in this case:

  • (a) In the geographical and other circumstances of this case, the boundary should leave to each Party the areas of the sea that are closest to its coast, provided that due account is taken of the distorting effects of particular geographical features in the relevant area.

  • (b) The boundary should allow for the maintenance of established patterns of fishing that are of vital importance to coastal communities within the relevant area.

  • (c) The boundary should respect the indicia of what the Parties themselves have considered equitable as revealed by their conduct.

Can. C.-Mem. at 252–53, para. 608.

8 1984 ICJ Rep. at 299, para. 111.

9 Id. at 299–300, para. 112.

10 Id. at 301–03, paras. 119–125.

11 Id. at 303, para. 124.

12 Can. C.-Mem. at 230–31, paras. 555–556:

There is a close correlation between the basis of coastal State title and the law applicable to the delimitation of maritime zones. It was precisely for this reason that the Court in 1969 made natural prolongation the point of departure for the principle of delimitation it adopted. More generally, the question as to which State has the stronger title is central to the evaluation of competing claims between opposite or adjacent States, and this question can be addressed only in terms of the basis upon which the law attributes to coastal States title to maritime areas.

Developments in the law of the sea have made distance from the coast the decisive factor in the definition of coastal State title to offshore zones. The most fundamental characteristic of coastal State title to an exclusive economic zone is that it is the same for all coastal States. It is a spatial concept that operates independently of any physical criteria other than simple proximity to the coast. Not only does the 200-mile distance criterion constitute the sole basis of coastal State title to the exclusive economic zone or 200-mile fishing zone, but it has now been accepted also as a sufficient basis of continental shelf jurisdiction within that distance from the coast. It has become the central factor in giving precise content to the principle of appurtenance and to the maxim that the land dominates the sea.

13 North Sea cases, 1969 ICJ Rep. at 31, para. 43.

14 1982 ICJ Rep. at 48, para. 48.

15 Can. C.-Mem. at 230–33, paras. 555–563.

16 1984 ICJ Rep. at 296, para. 103.

17 Id. (emphasis in original).

18 Id. at 297, para. 106.

19 Tunisia/Libya case, 1982 ICJ Rep. at 59–60, paras. 70–71. See also North Sea cases, 1969 ICJ Rep. at 49, para. 90; and at 50, para. 92.

20 1969 ICJ Rep. at 50–51, paras. 93–94.

21 1982 ICJ Rep. at 60–61, para. 72.

22 1984 ICJ Rep. at 312, para. 157.

23 Id. at 278, para. 59; at 312–13, paras. 156–158; at 326, para. 191; and at 328, paras. 197–198.

24 Id. at 326, para. 191.

25 Id. at 312, para. 156.

26 Id., para. 157.

27 Id., para. 156.

28 Id., para. 157.

29 In the Anglo-French arbitration, the British urged the tribunal to take account of the size, economic importance and political status of the Channel Islands. The tribunal held that these considerations “may properly be taken into account in balancing the equities in the region.” Anglo-French award, supra note 4, para. 187. In the Tunisia /Libya case, both parties raised arguments based on economic factors. See 1982 ICJ Rep. at 77, para. 106. While rejecting the relevance of economic factors of the kind raised by the parties, the Court left open the possibility of admitting the relevance of economic factors related to the exploration of resources in the area to be delimited: “As to the presence of oil wells in the area to be delimited, it may, depending on the facts, be an element to be taken into account in the process of weighing all relevant factors to achieve an equitable result.” Id. at 77–78, para. 107.

30 Can. C.-Mem. at 195–96, para. 469.

31 Id.

32 Id.

33 1984 ICJ Rep. at 273, para. 44.

34 Id. at 275, para. 47.

35 Id. at 277, para. 54.

36 Id.

37 Id., para. 55. See also id. at 276–77, paras. 53 and 56.

38 Id. at 277, para. 56.

39 Id. at 278, para. 59.

40 Id.

41 Id. See also id. at 342, para. 237.

42 Id. at 278, para. 59.

43 Id. at 341–42, para. 235. See also id. at 278, para. 58.

44 Id. at 342, para. 235.

45 Id., para. 236.

46 Id., para. 237.

47 Id. at 343, para. 238.

48 Id.

49 Id. at 342, para. 237. The very high level of the presumption against the relevance of economic data is indicated by the Chamber’s conclusion that “nothing less than a decision which would have assigned the whole of Georges Bank to one of the Parties might possibly have entailed serious economic repercussions for the other.” Id. at 343, para. 238. The Chamber thereby implies that only if geographical factors and criteria had produced a line allocating the whole of the object of the dispute to one of the parties would it have been permitted in law, to adjust the boundary to take account of the economic equities.

50 Id. at 230, para. 114.

51 Id. at 303, para. 126.

52 Id. at 304, para. 128.

53 Id. at 304–10, paras. 129–148.

54 Id. at 310, para. 149.

55 Id., para. 150.

56 Id. at 311, para. 152.

57 Id. at 326, para. 192.

58 Id., para. 193 (emphasis added). See also Dissenting Opinion of Judge Gros, id. at 363, para. 6.

59 ICJ Doc. C I/CR 84/17, at 62 (Apr. 19, 1984) [hereinafter these documents of the oral proceedings will be referred to simply by the Court’s identification; as the year is included in that identification, it will not be repeated]. See also 1984 ICJ Rep. at 314-15, para. 161.

60 For Canada’s reply, see statement by L. H. Legault, Agent and Counsel for Canada, C I/CR 84/22, at 34-39 (May 5). For the U.S. reply, see statement by John R. Stevenson, Counsel for the United States, C I/CR 84/24, at 19–26 (May 9). For the Court’s summary of the parties’ replies, see 1984 ICJ Rep. at 314–15, para. 161:

In its reply, the United States noted that in such circumstances there appeared to be no legal grounds to be invoked a priori for preferring one or another method, and that the applicable principles and relevant circumstances should be considered as an integrated whole. In the view of the United States, circumstances relevant to the functional effectiveness of a boundary relating to both the water column and the sea-bed should be given greater weight than circumstances relating to only one of them. Canada expressed the opinion that preference as to method should depend on the degree of relevance to be attached to a given factor in relation to the delimitation of all or any part of the boundary. It explained that such degree might differ in each of the two areas under consideration: the Gulf of Maine itself, as far seaward as the Cape Sable-Nantucket closing line, and the outer area that includes Georges Bank. It concluded that preference as to method should be dictated by the relevant circumstances of each of the two areas.

61 1984 ICJ Rep. at 326, para. 193.

62 Id.

63 Id. at 327, para. 194.

64 Id., para. 195.

65 Id., para. 194.

66 Id., para. 195.

67 Id. at 275, para. 47.

68 Anglo-French award, supra note 4, paras. 107-108. See also id. at paras. 191, 194.

69 1982 ICJ Rep. at 57–58, paras. 66–67. See also id. at 46–47, paras. 43–44.

70 1984 ICJ Rep. at 277, para. 54.

71 Id. at 278, para. 59; at 339, para. 230; at 340, para. 232; and at 342, paras. 235 and 237.

72 Id. at 278, para. 59.

73 Id. at 339–40, para. 230; at 340, para. 232; and at 342, para. 237.

74 Id. at 344, para. 241.

75 Id. at 307–12, paras. 137–154.

76 Article II(1), Special Agreement Between the Government of Canada and the Government of the United States of America to Submit to a Chamber of the International Court of Justice the Delimitation of the Maritime Boundary in the Gulf of Maine Area, signed Mar. 29, 1979, entered into force as amended, Nov. 20, 1981, annex to TIAS No. 10204, reprinted in 20 ILM 1378 (1981), and Canadian Memorial [hereinafter cited as Can. Mem.] at 3.

77 Article III(1) of the Special Agreement, id., reads: “South and west of the maritime boundary to be determined in accordance with this Special Agreement Canada shall not, and north and east of said maritime boundary the United States shall not, claim or exercise sovereign rights or jurisdiction for any purpose over the waters or seabed and subsoil.”

78 1984 ICJ Rep. at 267, para. 26.

79 Exclusive Economic Zone of the United States of America, Proc. No. 5030, Mar. 10, 1983, 48 Fed. Reg. 10,605(1983).

80 Can. C.-Mem. at 2, para. 7. See also Can. Mem. at 18 n.7.

81 1984 ICJ Rep. at 326, para. 192.

82 Id., para. 193.

83 Id. at 327, para. 194.

84 One exception should be noted. The Chamber makes one reference to “a single boundary for two different jurisdictions.” Id. at 267, para. 27.

85 Id. at 327, para. 194.

86 Johnston, D. & Gold, E. The Economic Zone in the Law of the Sea: Survey, Analysis and Appraisal of Current Trends 1–8 (Law of the Sea Institute Occasional Paper No. 17, 1973)Google Scholar; Gulf of Maine case, Dissenting Opinion of Judge Oda, 1984 ICJ Rep. 211–34, paras. 89–140; Wodie, Les Intérêts économiques et le droit de la mer, 80 Revue Générale

De Droit International Public [RGDIP] 738, 744–61 (1976).

87 UN Convention on the Law of the Sea, supra note 3, Arts. 56, 61–67.

88 1984 ICJ Rep. at 269, para. 103.

89 UN Convention on the Law of the Sea, supra note 3, Art. 57.

90 Tunisia/Libya case, 1982 ICJ Rep. at 48, paras. 47–48.

91 Judge Gros appears to recognize that the Chamber’s approach is consistent with the new law of the sea when he states:

Having changed the law on such areas [beyond the territorial sea], States cannot retain those features which once gave point to the work done in studying the special fishery interest and economic dependence of certain sectors of a population. The entire bases of reasoning have altered; the coastal State wanted exclusive jurisdiction over the sea-bed and subsoil, then over the water column, and it has obtained what it wanted; but the resources are not the legal cause of the exclusive zone, they have been removed outside the problem: the existence of mineral or living resources is not taken into account. A continental shelf without resources and an almost empty sea offer no obstacle to the appropriation of the continental shelf and of a fishery zone. The notion of economic dependence can no longer be invoked as a determining factor. . . .

1984 ICJ Rep. at 371, para. 17 (emphasis added).

92 Id. at 373, para. 19.

93 Id. at 375, para. 22. See also id. at 374, para. 21.

94 Id. at 369, para. 14.

95 Id., para. 15.

96 Id. at 367, para. 12.

97 3 Gidel, G. , Le Droit International Public de La Mer 498–501 (1934)Google Scholar.

98 Scelle, Plateau continental et droit international, 59 RGDIP 5, 59 (1955)Google Scholar (as translated by the authors).

99 Id. at 52.

100 Id. at 15.

101 Id. at 52.

102 1 O’connell, D. The International Law of the Sea 467 (1982)Google Scholar. O’Connell argues that “[t]he doctrine of the continental shelf has been relegated at the Third Law of the Sea Conference to playing the minor and ancillary role of expanding the exclusive rights of coastal States over the seabed, in a relatively few cases, to distances beyond the 200 miles of the EEZ.” Id.

103 In support of integration, see id. at 467, 579; Wodie, supra note 86, at 762–63. For arguments that the two regimes coexist within the 200-mile limit, see Extavour, E. The Exclusive Economic Zone 221–28 (1979)Google Scholar; Caflisch, Les Zones maritimes sous juridiction nationale, lews limites et leur délimitation, 84 RGDIP 68, 98 (1980)Google Scholar.

104 Tunisia/Libya case, Separate Opinion of Judge Jiménez de Aréchaga, 1982 ICJ Rep. at 115, para. 55; Separate Opinion of Judge Oda, id. at 233–34, para. 129; and at 249, para. 146.

105 Article 76 in part VI of the Convention defines the continental shelf of the coastal state as comprising:

the sea-bed or subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baseline from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

106 Art. 31(1), Vienna Convention on the Law of Treaties, UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969).

107 Id.

108 According to one commentator, the ambiguity in the text of the Convention concerning the regime within 200 miles can be explained by the difficulty for the wide-margin states “de prétendre que des fonds marins sis au-delà de la limite de 200 milles forment le ‘prolongement naturel’ du territoire de l’Etat côder s’ils étaient séparés de la mer territoriale de cet Etat par un espace de 188 milles.” Caflisch, supra note 103, at 98.

109 North Sea cases, 1969 ICJ Rep. at 3.1, para. 43 (emphasis added).

110 UN Convention on the Law of the Sea, supra note 3, Art. 82.

111 1969 ICJ Rep. at 31, para. 43.

112 While at least the most essential provisions of parts V and VI of the Convention have very probably become part of customary international law by the time of writing, or will become so in the not too distant future, it is not feasible in this paper to undertake an examination of state practice and official statements to demonstrate the requisite elements of usus and opinio juris sive necessitatis.

113 UN Convention on the Law of the Sea, supra note 3, Art. 76.

114 Id., Arts. 76 and 82. It is noteworthy that the coastal state must submit to an international commission information on the limits of its outer continental shelf. The commission makes recommendations to the coastal state on these outer limits.

115 Dissenting Opinion of Judge Gros, 1984 ICJ Rep. 367–77, paras. 12–26.

116 See, e.g., statement by Prof. Prosper Weil, Counsel for Canada, C 1/CR 84/6, at 13 (Apr. 6).

117 Conservation Law Foundation v. Andrus, 617 S.2d 296 (1st Cir.), 623 S.2d 712 (1st Cir. 1979); Massachusetts v. Andrus, 594 S.2d 872 (1st Cir. 1979).

118 1982 ICJ Rep. at 232, para. 126. Judge Evensen in his dissenting opinion stated that it seemed “reasonable” that the lines dividing the exclusive economic zone and the continental shelf should “coincide.” Id. at 296, para. 15. He also referred to the “obvious advisability of having identical lines of delimitation for the continental shelf and the 200-mile Exclusive Economic Zone.” Id. at 319, Conclusions.

119 An example is the Treaty Between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area Between the Two Countries, Including the Area Known as the Torres Strait, and Related Matters; reprinted in 18 ILM 291 (1979).

120 See Agreement Between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, Feb. 5, 1974, reprinted in U.S. Dep’t of State, Office of the Geographer, International Boundary Study, Series A, Limits in the Seas, No. 75 (1977). Article XXVIII of the Agreement provides: “Nothing in this Agreement shall be regarded as determining the question of sovereign rights over all or any portion of the Joint Development Zone or as prejudicing the positions of the respective Parties with respect to the delimitation of the continental shelf.”

121 See Agreement Between Norway and Iceland on the Continental Shelf in the Area between Iceland and Jan Mayen, done Oct. 22, 1981 (entered into force June 2, 1982), reprinted in 21 ILM 1222 (1982). This Agreement established a continental shelf boundary coinciding with the exclusive economic zone boundary already established between the two countries, as well as a permanent joint exploitation zone for continental shelf resources in the area of the Jan Mayen Ridge. See also the Agreement Between Canada and the United States of America on East Coast Fishery Resources, signed Mar. 29, 1979, S. Exec. Doc. V, 96th Cong., 1st Sess. (1979). This Agreement, withdrawn by President Reagan from Senate consideration on Mar. 6, 1981, provided for the joint management, conservation and exploitation of fishery resources in the Gulf of Maine/Georges Bank area, on a permanent basis, irrespective of and without prejudice to the determination by the International Court of Justice of a single maritime boundary dividing the continental shelf and fishing zones of the two countries.

122 See, e.g., the Common Fisheries Policy of the European Economic Community.

123 The Japan/Korea Joint Exploitation Zone established pursuant to the Agreement cited in note 120 supra, and the abortive Canada/U.S. East Coast Fishery Agreement, supra note 121, contain detailed rules for joint exploitation, as well as institutional arrangements and dispute settlement procedures. The Australia/Papua New Guinea Agreement, supra note 119, and the Norway/Iceland Agreement, supra note 121, provide only a very general framework, leaving the details of administration to be worked out by the two Governments. While the Norway/Iceland Agreement provides for compulsory arbitration of disputes (Art. 9), the Australia/ Papua New Guinea Agreement provides that disputes shall be settled by “consultation or negotiation” (Art. 19).

124 Can. C.–Mem. at 237–42, paras. 570–576.

125 This figure was calculated from the information contained in the Analytical Table in Canadian Reply, 1 Annexes at 21–34.

126 U.S. Mem. at 101, para. 165.

127 Canadian Reply at 144, para. 330. See also Can. Mem. at 120, paras. 281–282, and Can. C.-Mem. at 228–29, paras. 547–551.

128 1984 ICJ Rep. at 301, para. 119.

129 This could happen where a continental shelf boundary has been established on the basis of geological or geomorphological criteria, and an equidistance or other line based on criteria derived from the coastal geography would allocate a larger area to one of the parties.

130 Gulf of Maine case, 1984 ICJ Rep. at 301, para. 119.