1 Hodgson & Smith, , Boundary Issues Created by Extended National Marine Jurisdiction, 69 Geographical Rev. 423, 426 (1979)Google Scholar.

2 Ibid.

3 See Oxman, , The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980), 75 AJIL 211, 231 (1981)Google Scholar.

4 Convention on the Territorial Sea and the Contiguous Zone, done April 29, 1958, 15 UST 1606, TIAS No. 5639, 516 UNTS 205. The United States has traditionally claimed a 3-nautical mile territorial sea since the earliest days of the Republic. See U.S. v. Postal, 589 F.2d 862, 869 (5th Cir. 1980) (citing cases); Public Notice 358, 37 Fed. Reg. 11,906 (1972); and, generally, 43 U.S.C. §1301(a)(2).

5 The breadth of the contiguous zone is specifically limited by Article 24 of the Convention on the Territorial Sea and Contiguous Zone. Ibid. See also 19 U.S.C. §§1581(a) and 1401(j).

6 The Fishery Conservation and Management Act, 16 U.S.C. §1801 et seq.

7 Convention on the Continental Shelf, done April 29, 1958, 15 UST 471, TIAS No. 5578, 499 UNTS 311. See the Outer Continental Shelf Lands Act, as amended, 43 U.S.C. §1331 et seq., as amended by Pub. L. No. 95–372 (Sept. 18, 1978).

8 Supra note 4, Arts. 3, 4, 7, 8, and 11.

9 43 U.S.C. §1301 et seq.

10 Congress has left the final determination of the baseline to the Executive and the courts. The Supreme Court has determined that in application of the Submerged Lands Act (43 U.S.C. §1301 et seq.) the provisions of the Convention on the Territorial Sea and Contiguous Zone should govern. See, e.g., U.S. v. California, 381 U.S. 139, 165 (1965); and U.S. v. Louisiana, 394 U.S. 11, 16, 34 (1969). However, it remains open to the parties to litigation under the Submerged Lands Act to stipulate, for purposes of that Act, a different baseline which does not purport to apply the provisions of the Convention.

11 Proclamation No. 2667, Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 10 Fed. Reg. 12,303 (1945), 3 C.F.R. 67 (1943–1948), 13 Dept. State Bull. 485 (1945).

12 Ibid.

13 43 U.S.C. § 1331(a).

14 Supra note 7, Art. 2.

15 Id., Art. 1. An interesting development of the Third United Nations Conference on the Law of the Sea is the fact that the conference has dropped the so-called exploitability test and opted for distance and sediment depth tests to determine the outer edge of the continental margin. See Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/Rev,3 and Add.l and Corrs. 1–6 (1980), Art. 76; and Oxman, supra note 3, at 227–33.

16 Supra note 11.

17 2 Foreign Relations of the United States, 1945, at 1499, 1502. The Governments of Canada, Mexico, the United Kingdom, and the Soviet Union were so notified. (See Dooman memorandum, id. at 1510.)

18 Treaty Concerning the Boundary Line in Passamaquoddy Bay, done May 21, 1910, United States-Great Britain, 36 Stat. 2477, TS No. 551, 12 Bevans 341. The boundary line established by the Treaty of Passamaquoddy did not entirely delimit the territorial sea. This was finally accomplished by Article III of the 1925 Convention to regulate the level of the Lake of the Woods, done Feb. 24, 1925, United States–Great Britain, 44 Stat. 2108, TS No. 721, 6 Bevans 7.

19 See 1 Moore, J., A Digest of International Law 750 (1906)Google Scholar.

20 Oregon Treaty, done June 15, 1846, United States-Great Britain, 9 Stat. 869, TS No. 120, 12 Bevans 95.

21 Northwest Water Boundary Protocol, done March 10, 1873, United States-Great Britain, 18 Stat. 369, TS No. 135, 12 Bevans 190. For a history of the dispute, see 1 Moore, J., History and Digest of the International Arbitrations to Which the United States Has Been a Party 196–236 (1898)Google Scholar.

22 Convention Concerning the Cession of Alaska, done March 30, 1867, United States-Russia, 15 Stat. 539, TS No. 301, 11 Bevans 1216.

23 Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary between the United States and Mexico, done Nov. 23, 1970, United States-Mexico, 23 UST 371, TIAS No. 7313.

24 See 16 U.S.C. §§1091–94 and 16 U.S.C. §§1081–86, repealed by the Fishery Conservation and Management Act, 16 U.S.C. §1801 et seq.

25 See generally Speech of Secretary of State Kissinger before the American Bar Association at Montreal, Aug. 11, 1975, 73 Dept. State Bull. 353–62 (1975). A major reason for the United States encouragement and involvement in the negotiations at the Third United Nations Law of the Sea Conference concerned the U.S. interest in stemming the tide and stabilizing the expansion of coastal state jurisdiction. See President Nixon’s report to Congress of Feb. 18, 1970, U.S. Foreign Policy for the 1970’s, 62 id. at 273, 314 (1970); and Statement by Under Secretary of State Richardson before the Special Subcommittee on Outer Continental Shelf of the Senate Committee on Interior and Insular Affairs, May 27, 1970, in id. at 738–41.

26 16 U.S.C. §§1811–12.

27 16 U.S.C. §§1821(a) and (c), 1822, 1824, and 1853.

28 The extension of Mexican fisheries jurisdiction was announced on Feb. 6, 1976 (Decree adding to Article 27 of the Political Constitution of the United Mexican States in order to establish an exclusive economic zone situated beyond the limits of the territorial sea). Diario Official (Feb. 6, 1976). It became effective on June 7, 1976. The extension of Canadian fisheries jurisdiction was announced on Nov. 1, 1976 (see 110 Can. Gaz., Extra No. 101 (Nov. 1, 1976)). It became effective on Jan. 1, 1977 (111 id., Extra (Jan. 1, 1977)).

29 16 U.S.C. §1822(d).

30 Report of the Committee of Conference on H.R. 200, H.R. Rep. NO. 94–948, 94th Cong., 2d Sess. 46(1976).

31 Smith, , The Maritime Boundaries of the United States, 71 Geographical Rev. 395 (1981)CrossRefGoogle Scholar.

32 The limits of the fishery conservation zone were set forth in the Federal Register on March 7, 1977. 42 Fed. Reg. 12,937–40 (1977). Successive notices have corrected errors or made modifications in the original notice. Id. at 24,134; 43 id. at 8606 (1978); 44 id. at 74,956 (1979).

33 Supra note 28.

34 Supra note 22.

35 48 U.S.C. §1681 (1976).

36 The Fishery Conservation and Management Act did not establish a fishery conservation zone off the coast of the Trust Territory of the Pacific Islands because the leadership of the Trust Territory expressed its opposition to the U.S. Government. However, the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (ibid.) provides that the President shall determine and proclaim a date within 180 days after the Covenant and Constitution of the Northern Mariana Islands have been approved upon which certain laws applicable to Guam and that are applicable to the several states shall become applicable to the Northern Mariana Islands. The Fishery Conservation and Management Act (16 U.S.C. §1801 et seq.) is one such law. By presidential proclamation of Oct. 24, 1977, this law and other such laws became applicable to the Northern Mariana Islands on Jan. 9, 1978. See 43 Fed. Reg. 1658 (1978). See also 48 U.S.C. §1681.

37 In the Pacific Ocean the fishery conservation zone was not established from 25 disputed islands. Care was taken in establishing the fishery conservation zone from undisputed islands not to prejudice the U.S. claim to a disputed island or to exacerbate the dispute related to such an island. Since 1977, the United States Government has negotiated treaties with Tuvalu, Kiribati, the Cook Islands, and New Zealand on behalf of Tokelau which, if given advice and consent by the Senate and if ratified by the United States, will effectively renounce the U.S. claim to these 25 disputed islands.

38 16 U.S.C. §1811.

39 Supra note 32.

40 UN Charter, Art. 2(1) and (3).

41 [1969] ICJ Rep. 3, paras. 85 and 86.

42 16 U.S.C. 11822(d).

43 Article IV, section 3, cl. 3 of the Constitution provides that “the Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” But this clause has never been construed as precluding the President and the Senate from determining the boundaries of the United States by treaty. See, e.g., Florida Treaty with Spain of 1819, 8 Stat. 252; Webster-Ashburton Treaty, Aug. 9, 1842, United States-Great Britain, 8 Stat. 572, TS No. 119; Convention for the Solution of the Chamizal Problem, Aug. 29, 1963, United States-Mexico, TIAS No. 5515, 15 UST 21, 505 UNTS 185; Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as tne International Boundary between the United States and Mexico, supra note 23.

44 It is well established that the President is the sole organ for communication with a foreign state (U.S. v. Curtiss-Wright, 299 U.S. 304 (1936)); the Executive holds the view that Congress cannot instruct the President in the exercise of that authority. See President Ford’s statement upon signing into law the Fishery Conservation and Management Act expressing concern that certain provisions “encroach upon the exclusive province of the Executive relative to matters under international negotiation.” 12 Weekly Comp. of Pres. Docs. 644 (April 19, 1976).

45 2 Hyde, C., International Law 1, 416 (1922)Google Scholar; 5 J. Moore, supra note 19, at 210, 214; Crandall, S., Treaties, Their Making and Enforcement 112–14 (2d ed. 1916)Google Scholar; 5 Hackworth, G., Digest of International Law 390–94 (1943)Google Scholar; 14 Whiteman, M., Digest of International Law 245 (1970)Google Scholar.

46 See Exchange of Notes Between the United States and Great Britain, Oct. 20, 1899, Fixing Provisional Boundary Line Between Canada and the Territory of Alaska about the Head of Lynn Canal, 12 Bevans 251; modus vivendi as to the boundary line in the Stickine River, Foreign Relations of the United States, 1878, at 339, 346. And, see generally Administration Responses to Additional Questions Submitted for the Record by Senator Javits, S. Exec. Rep. No. 96–49, 96th Cong., 2d Sess. (1980).

47 See note 28 supra.

48 The Treaty on Maritime Boundaries Between the United States of America and the United Mexican States, S. Exec. Doc. F, 96th Cong., 1st Sess. (1979). See also infra text accompanying notes 59–65.

49 The Agreement of Nov. 24, 1976 does not contain a specific termination provision and therefore its unilateral termination would be governed by customary international law. See generally Administration Responses, supra note 46.

50 Maritime Boundary Agreement Between the United States of America and the Republic of Cuba, S. Exec. Doc. H, 96th Cong., 1st Sess. (1979). See text accompanying notes 69–70 infra.

51 Ibid. There has been much discussion lately of the President’s power to apply treaties provisionally before they are ratified. From the constitutional perspective, this authority is only a particular instance of the President’s general power to make executive agreements based on his sole constitutional authority where all the commitments in such an agreement are within his constitutional power to perform without legislation. Provisional application of treaties should not be confused with the different obligation of a treaty signatory not to defeat the object and purpose of a treaty prior to ratification. Compare Article 18 with Article 25 of the Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969). See also Restatement of the Foreign Relations Law of the United States (Revised), Tent. Draft No. 1, at 110, 116 (1980).

52 See supra notes 28 and 32.

53 United States-Canadian Reciprocal Fisheries Agreement, Feb. 24, 1977, United States-Canada, 28 UST 5571, TIAS No. 8648. See H.R. Rep. NO. 9 5 – 193, 95th Cong., 1st Sess. (1977).

54 See supra note 28.

55 41 Fed. Reg. 18,619–20 (1976).

56 See Maritime Boundary Settlement Treaty and East Coast Fisheries Resources Agreement: Hearings Before the Senate Comm. on Foreign Relations, 96th Cong., 2d Sess. 22 (1980) (statement of Philip M. Klutznick).

57 Treaty on Maritime Boundaries Between the United States and the United Mexican States, done May 4, 1978, supra note 48; Maritime Boundary Treaty Between the United States of America and the Republic of Venezuela, done March 28, 1978, United States-Venezuela, TIAS No. 9890; Maritime Boundary Agreement Between the United States of America and the Republic of Cuba, done Dec. 16, 1977, supra note 50; Treaty Between the United States of America and the Cook Islands On Friendship and Delimitation of the Maritime Boundary Between the United States of America and the Cook Islands, done June 11, 1980, S. Exec. Doc. P, 96th Cong., 2d Sess. (1980); Treaty Between the United States of America and New Zealand on the Delimitation of the Maritime Boundary Between the United States of America and Tokelau, done Dec. 2, 1980, Treaty Doc. No. 97–5, 9 7 – 1 ; Treaty Between the Government of the United States of America and the Government of Canada to Submit to Binding Dispute Settlement the Delimitation of the Maritime Boundary in the Gulf of Maine Area, done March 29, 1979, as amended.

58 TIAS No. 9890, Art. IV.

59 Treaty of Peace, Friendship, Limits, and Settlement, done Feb. 2, 1848, United States-Mexico, 9 Stat. 922, TS No. 207, 9 Bevans 791.

60 The Arbitral Convention and Supplemental Protocol between the United States and Mexico and the award signed June 15, 1911, together with the dissenting and individual opinions, and certain correspondence in the Chamizal case, are set forth in Foreign Relations of the United States, 1911, at 565–605. See also 1 G. Hackworth, supra note 45, at 411–17, 441–42 (1940).

61 Convention for the Solution of the Chamizal Problem, supra note 43.

62 Supra note 23.

63 Article 121 of the Draft Convention on the Law of the Sea (supra note 15) creates a distinction between rocks that cannot sustain human habitation or economic life of their own and islands. Rocks are not entitled to an exclusive economic zone. U.S. officials concluded, on the basis of information provided by Mexico that the Mexican island in question, Arecife Alacrán, was capable of meeting the island test.

64 Approximately 18,000 square nautical miles. See testimony of Mark B. Feldman, S. Exec. Rep. 96–49, supra note 46.

65 Department of Interior Press Release, July 16, 1976, relative to OCS Lease-Sale No. 48, reprinted in 41 Fed. Reg. 29,440 (1976).

66 See text accompanying notes 47–49 supra.

67 S. Exec. Rep. 96–49, supra note 46.

68 126 Cong. Rec. S12.711 (daily ed. Sept. 16, 1980).

69 Much of the Cuban straight baseline system (decreed in 1977) meets the criteria for straight baselines, including that they be established in the general direction of the coast and in areas where the coast is deeply indented or cut into. (See Art. 4, Territorial Sea and Contiguous Zone Convention, supra note 4.) However, the United States questioned the utilization of straight baselines in the area affecting a U.S.-Cuban equidistance line since the coast in the relevant area is relatively smooth.

70 See text accompanying notes 50–51 supra.

71 Supra note 57.

72 Supra note 32.

73 Venezuela-Netherlands Antilles Maritime Boundary Treaty, signed March 31, 1978. The outcome of the Venezuelan-Netherlands negotiations was of course known when the U.S.-Venezuela Maritime Boundary Treaty was signed on March 28, 1978.

74 The International Court of Justice in the North Sea Continental Shelf cases ([1969] ICJ Rep. 3) and the tribunal in the Anglo-French Continental Shelf arbitration (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]) have made clear that maritime delimitation between two states cannot prejudice the interests of third states in the area. See also the Judgment of April 14, 1981 of the International Court of Justice concerning the Application by Malta for Permission to Intervene in the Case Concerning the Continental Shelf between Libya and Tunisia ([1981] ICJ Rep. 3).

75 Treaty with Venezuela, supra note 57, Art. II.

76 See Letter of the Secretary of State to the President Transmitting the Treaty, Aug. 25, 1980, S. Exec. Doc. P, supra note 57.

77 The renunciation of U.S. claims to 25 small disputed islands in the far Pacific has been dealt with as a bipartisan matter since the Nixon administration.

78 See Letter of the Secretary, supra note 76.

79 See Smith, supra note 31.

80 The maritime boundary with the Cook Islands is an equidistance line that uses all islands as base points. It is 566.4 nautical miles in length and consists of 24 segments. The equidistance line has not been simplified.

81 See 48 U.S.C. §1662.

82 See Treaty with New Zealand, supra note 57. The maritime boundary with Tokelau is 318 nautical miles in length and consists of 7 segments. It is a simplified equidistance line; the initial calculations use all islands as base points.

83 See the Anglo-French 1977 Award, supra note 74, para. 97:

84 41 Fed. Reg. 18,619 (1976).

85 110 Can. Gaz., Extra No. 101 (Nov. 1, 1976). The United States and Canada do maintain different positions concerning the maritime boundary within Dixon Entrance off southeastern Alaska.

86 The essence of Canada’s position is that the line established by the 1825 Treaty to divide British and Russian possessions in North America (12 Brit. Foreign & St. Papers 38), and incorporated into the 1867 Convention on the Cession of Alaska (supra note 22), divides the maritime jurisdiction of the United States and Canada. The relevant language from Article I of the 1867 Convention is “the said meridian line of the 141st degree, in its prolongation as far as the Frozen ocean” (emphasis added). The United States takes this language to mean that the 141st meridian boundary stops at the coast.

87 Supra note 32.

88 The position taken by the United States was protested by the Government of the Bahamas. In dealing with neighboring states on maritime boundary issues, political and economic factors must be taken into account and considered together with the maximum legal claim that might be espoused. From the U.S. point of view, the fisheries enforcement limit over the Blake Plateau is a reasonable way of protecting U.S. options without staking out a maximum position.

89 Convention on the Cession of Alaska, supra note 22, Art. I.

90 Edict of the Presidium of the USSR Supreme Soviet, Dec. 10, 1976, Temporary Measures for the Protection of Living Resources and Regulation of Fisheries in Areas Adjacent to the USSR Coast, reprinted in 15 ILM 1381 (1976).

91 Convention on the Continental Shelf, supra note 7, Art. 2.

92 Treaty Relating to Traditional Fishing Activities in the Virgin Islands, done June 24, 1977, TIAS No. 9140. This Treaty expired by its terms on Dec. 31, 1978. A treaty similar in all respects has been submitted to the Senate for advice and consent to ratification. The Reciprocal Fisheries Agreement Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, 1979, with Agreed Minute, done March 27, 1979, S. Exec. Doc. L, 96th Cong., 2d Sess. (1979).

93 The preamble states: “Recalling that the two Governments have a common approach based on the principle of equidistance regarding the limits of fishery jurisdiction as between the United States and British Virgin Islands. . . .”A strict equidistance line has 100 turning or terminal points over 154 nautical miles. It seems reasonable to simplify such a boundary.

94 Flanagan Island, due east of St. John.

95 Boundaries remain to be negotiated by the United States with Japan, Kiribati, Tonga, Western Samoa, New Zealand on behalf of Niue, the Marshall Islands, and the Federated States of Micronesia.

96 Between 1950 and 1960 the foreign catch on Georges Bank rose from virtually 0 to about 12%. By 1972 the figures had reversed, with foreign fishermen taking 89.6% of the catch.

See generally Senate Comm. on Commerce, 94th Cong., 2nd Sess., A Legislative History of the Fishery Conservation and Management Act, 1976, at 669 (Comm. Print 1976).

97 Id. at 1081; see Senate Hearings, supra note 56, at 10.

98 Legislative History, supra note 96, at 1085; see Senate Hearings, supra note 56, at 23.

99 110 Can. Gaz., Extra No. 101 (Nov. 1, 1976).

100 41 Fed. Reg. 18,619 (1976). See also text accompanying notes 84–86 supra.

101 Supra note 53.

102 Article 6(2) of the Continental Shelf Convention states:

103 [1969] ICJ Rep. 3, para. 101.

104 Id., para. 55.

105 1977 Award, supra note 74, para. 75.

106 Id., para. 194.

107 Id., paras. 243–45.

108 Id., para. 68.

109 Id., para. 70.

110 Ibid.

111 Id., para. 86.

112 See 112 Can. Gaz., Extra No. 79 (Sept. 15, 1978).

113 Dep’t of State File No. P78 0160–2316, reprinted in 73 AJIL 132 (1979).

114 One view of the appropriate result is expressed in Sang-Myon Rhee’s article in the last issue of this Journal, Equitable Solutions to the Maritime Boundary Dispute Between the United States and Canada in the Gulf of Maine, 75 AJIL 590 (1981). While some of the analysis is consistent with the U.S. view, notably the emphasis on the geographic configuration of the coast of the Gulf of Maine and the criterion of coastal proportionality, much of it is not. We are not in a position to develop the U.S. case in the present article but feel obliged to advise the reader that there is no basis for Dr. Rhee’s assumption that the United States “would probably accept” the line that he regards as equitable (text at n.187). Among other objections to such a simplistic “split the difference” solution, it does not satisfy the criterion of coastal proportionality and cannot be justified as effecting an equitable allocation of resources. We do not know what information the author has concerning the geomorphology and ecology of the Georges Bank; in our view, the differences between Georges and Browns Bank are substantial and highly relevant.

Further, Rhee seeks to justify his line on the basis that it “would reduce a possible disparity between the maritime boundary settlement and the allocation of fisheries resources provided for in the Fisheries Agreement” (text above n.191). This analysis appears to be predicated upon the mistaken assumption that the United States and Canada would agree upon some alternative resembling that Agreement. However, the United States rejected the Fisheries Agreement because it viewed the allocation of resources effected by it as inequitable. A disposition cannot be portrayed as in accordance with equitable principles on the basis that it corresponds to a proposed agreement rejected by one of the parties.

115 See generally Senate Hearings, supra note 56.

116 S. Exec. Rep. NO. 97–5, 97th Cong., 1st Sess. (1981).

117 Article I of the Treaty establishes the parties’ agreement to submit the dispute to a Chamber of the International Court of Justice on the terms specified in the Special Agreement annexed to the Treaty. Article II provides that if a Chamber of the International Court of Justice is not constituted in accordance with the Special Agreement by the end of 6 months following the entry into force of the Treaty, either party may terminate the Special Agreement, whereupon the Arbitration Agreement, also annexed to the Treaty, automatically enters into force. Article III further provides that either party may terminate the Special Agreement if a vacancy on the Chamber is not filled to the satisfaction of the parties. In that case also the Arbitration Agreement automatically enters into force. Article IV as amended provides that the Treaty shall enter into force on the date of exchange of instruments of ratification (without reference to the Fisheries Agreement).

118 Article I of the Special Agreement also makes reference to Articles 26(2) and 31 of the Statute of the International Court of Justice.

119 See Art. 17(2) of the Rules of Court, International Court of Justice, Acts and Documents Concerning the Organization of the Court, No. 4 (1978).

120 Article IV of the Special Agreement asks the Chamber, and obligates the parties, to utilize certain technical provisions which are intended to avoid errors in the computation of the maritime boundary established by the Chamber. The parties have sought to avoid the sort of controversy that arose in the Anglo-French case and required the arbitral tribunal to address itself to questions raised by the United Kingdom concerning the 1977 Award, supra note 74. See the Decision of 14 March 1978 of the Court of Arbitration on the Delimitation of the Continental Shelf between the United Kingdom and France, reprinted in 18 ILM 462 (1979).