¹ For example, the jurisdictional dispute between Canada and the United States concerning the delimitation of the maritime boundary in the Gulf of Maine area, submitted to a Chamber of the International Court of Justice by a Special Agreement between the Parties of Mar. 29, 1979: [1984] I.C.J. Rep. 246. Discussions on the remaining Canada/U.S. boundary differences, principally off the Strait of Juan de Fuca and Dixon Entrance, and in the Beaufort Sea, were put aside pending resolution of the Gulf of Maine boundary. The Canada–Denmark maritime boundary in the Davis Strait was settled by agreement in 1974 (Canada Treaty Series 1974, No. 9), although disagreement remains about sovereignty over Hans Island. Negotiations are continuing on the location of the Canada-France maritime boundary offshore Newfoundland and the French islands of St. Pierre and Miquelon.

² [1967] S.C.R. 792 (cited hereafter as the 1967 British Columbia Reference).

³ Nor did the 1967 B.C. Reference end all jurisdictional disputes on the west coast. The ownership of the bed of the waters between Vancouver Island and the mainland and in the Strait of Juan de Fuca remained at issue until the Supreme Court’s decision in Re Attorney General of Canada and Attorney General of British Columbia et al. (Reference re Ownership of the Bed of the Strait of Georgia and Related Areas) (1984), 8 D.L.R. (4th) 161. In 1976, the Court of Appeal of British Columbia decided, on a reference to it by the British Columbia government, that the bed of the waters between Vancouver Island and the mainland and in the Strait of Juan de Fuca were within the boundaries of British Columbia at the date of Union in 1871. The Supreme Court of Canada, on appeal, confirmed that decision in May 1984.

⁴ The Globe and Mail, Toronto, May 6, 1981. The Prime Minister’s offer was followed by discussions with both Newfoundland and Nova Scotia. The discussions with Nova Scotia resulted in an agreement of Mar. 2, 1982, on revenue sharing and resource management. The agreement entails concurrent legislation by parliament and the provincial legislature in order to ensure that uniform arrangements are in place in respect of the exploration and exploitation of seabed resources off Nova Scotia, so that the same regime will be applicable whichever level of government should have legal jurisdiction. See the Canada-Nova Scotia Oil and Gas Agreement Act, 32–33 Eliz. II, c. 29 (1984), and the Canada-Nova Scotia Oil and Gas Agreement (Nova Scotia) Act, S.N.S. 1984, c. 2, for the federal and provincial statutes. Following the conclusion of the Atlantic Accord between the government of Newfoundland and the government of Canada on Feb. n, 1985, similarly structured legislation will also be required.

⁵ This Reference was itself prompted, in part, by the arguments addressed to the Federal Court of Appeal in Re Seafarers’ International Union and Croshie Offshore Services Ltd. (1982), 135 D.L.R. (3d) 485. This was an appeal under s. 28 of the Federal Court Act from a decision of the Canada Labour Relations Board, [1981] 2 Can. Lab. Rel. Bd. R. 38, that the Newfoundland Labour Relations Board had jurisdiction over workers on offshore supply vessels. The Newfoundland Board had taken jurisdiction on the ground that offshore mineral resources belonged to Newfoundland; that the servicing of drilling rigs was an essential part of the exploration of the continental shelf; and that the labour relations of employees of vessels servicing drilling rigs in the offshore consequently fell within provincial jurisdiction: [1980] 2 Can. Lab. Rel. Bd. R. 7, at 14, 15. Although the Federal Court of Appeal eventually decided in favour of federal jurisdiction on the basis of the “navigation and shipping” power, s. 91(10) of the Constitution Act, 1867, the Attorney General of Canada, agreeing with the Newfoundland Board’s characterization of the operation of the supply vessels as intimately connected with the operation of the drilling rigs, argued that a decision as to jurisdiction over the resources in question was required.

⁶ P.C. 1982–1509, May 19, 1982. More specifically, the federal government’s reference requested that the Supreme Court determine which level of government has jurisdiction over “the area offshore Newfoundland approximately 320 kilometres (170 nautical miles) east-south-east of St. John’s, Newfoundland, bounded by 46°3′ north latitude and 47°00′ north latitude and by 48°30′ west longitude and 49° west longitude.” This area includes the Hibernia and Ben Nevis fields, which are the areas currently considered to contain economically exploitable petroleum reserves.

⁷ See Reference re Mineral and Other Natural Resources of the Continental Shelf Appurtenant to the Province of Newfoundland (1983), 145 D.L.R. (3d) 9. Of particular note for the issues addressed in this paper, the Court found that in 1949 “there were rights to the resources of the continental shelf under international law exercisable by coastal States, including Newfoundland,” but that to be effective in municipal law a claim to such rights had to be asserted and that Newfoundland had not done so: ibid., 40.

⁸ Ibid., 41.

⁹ (1984), 5 D.L.R. (4th) 385.

¹⁰ Terms of Union of Newfoundland with Canada, Newfoundland Act, 12–13 Geo. VI, c. 22 (U.K.). Term 37 provides that “all lands, mines, minerals and royalties belonging to Newfoundland at the time of Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the Province of Newfoundland, subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same.”

¹¹ (1984), 5 D.L.R. (4th) 385, at 410–18.

¹² Corbett, , “The Consent of States and the Sources of the Law of Nations,” (1925) 6 Br. Yb. Int’l L. 20, at 29–30.Google Scholar Emphasis added.

¹³ North Sea Continental Shelf cases, Judgment, [1969] I.C.J. Rep. 3, at 32.

¹⁴ 10 Fed. Reg. 12303.

¹⁵ United States, Annual Report of the Secretary of the Interior, 1945, pp. vi, ix–x.

¹⁶ Text in Whiteman, , Digest of International Law, vol. 4, at 755 (1965). Emphasis added.Google Scholar

¹⁷ Hackworth, , Digest of International Law, vol. 2, at 680 (1941).Google Scholar

¹⁸ Whiteman, supra note 16, at 764.

¹⁹ See the U.S. reservation against the Argentinian decrees of 1944 and 1946, made in a Note dated July 2, 1948 (ibid., 793). Similar reservations were made against the claims of Chile, Peru, and El Salvador (ibid., 796–802).

²⁰ Vallat, , “The Continental Shelf,” (1946) 23 Br. Yb. Int’l L. 333, at 337.Google Scholar

²¹ Borchard, , “Resources of the Continental Shelf,” (1946) 40 Am. J. Int’l L. 53 CrossRefGoogle Scholar; and see Bingham, , “The Continental Shelf and the Marginal Belt,” (1946) 40 Am. J. Int’l L. 173 Google Scholar, approving the policy but with little discussion of its legal basis. So, too, Young, , “Recent Developments on the Continental Shelf,” (1948) 42 Am. J. Int’l L. 849.CrossRefGoogle Scholar

²² Waldock, , “Legal Claims to the Continental Shelf,” (1951) 36 Trans. Grotius Soc. 115, at 128.Google Scholar

²³ United Nations Legislative Series, Laws and Regulations on the Regime of the High Seas, vol. I, at 13 (19З1); ST/LEG/SER.B/1.

²⁴ Ibid., 3.

²⁵ Ibid., 15.

²⁶ Ibid., 6.

²⁷ Ibid., 16.

²⁸ Ibid., 9.

²⁹ See generally Whiteman, supra note 16, at 793–812.

³⁰ United Nations Legislative Series, supra note 23, at 82.

³¹ Ibid., 23–30. The Proclamations are: Abu Dhabi, June 10, 1949; Ajman, June 20, 1949; Bahrein, June 5, 1949; Dubai, June 14, 1949; Kuwait, June 12, 1949; Qatar, June 8, 1949; Ras al Khaimah, June 17, 1949 j Sharjah, June 16, 1949; Umm al Qaiwan, June 20, 1949.

³² United Kingdom Treaty Series, No. 10(1942), Cmd. 6400.

³³ Ibid. Emphasis added.

³⁴ Waldock, supra note 22, at 131.

³⁵ Vallat, supra note 20, at 334. See also Mouton, , “The Continental Shelf,” [1954] 1 Recueil des Cours 343, at 368.Google Scholar

³⁶ United Kingdom, Statutory Rules and Orders, 1942, vol. 1, at 919. And see the Trinidad and Tobago Submarine (Oil Mining) Regulations, May 22, 1945, based upon the title acquired under this annexation Order.

³⁷ United Kingdom, Statutory Instruments, 1948, vol. 1, part I, at 250.

³⁸ United Kingdom, Parliamentary Debates (Hansard), 5th series, vol. 459, 1948, at 230.

³⁹ United Kingdom, Statutory Instruments, 1948, vol. 1, part II, at 1664.

⁴⁰ United Nations Legislative Series, supra note 23, at 32.

⁴¹ Yearbook of the International Law Commission, vol. II, at 50 (1950), cited hereafter as I.L.C. Yb.

⁴² Ibid. See also his Second Report: I.L.C. Yb., vol. II, at 100 (1951).

⁴³ See I.L.C. Yb., vol. I, at sis et seq. (1950). In particular see the views of Amado (at 315, sso), Brierly (at 230), Cordova (at 230), Hudson (at 214), Scelle (at 220), Spiropoulos (at 215, 220), and Yèpes (at 215, 217). And see again Spiropoulos at 220: “there was no rule of international law. They were faced with a vacuum.”

⁴⁴ I.L.C. Yb., vol. II, at 51–52 (1950).

⁴⁵ I.L.C. Yb., vol. I, at 212 et seq. (1950) especially at 218–23, 227, 230 (“a principle on which future law might be based”), 234.

⁴⁶ Ibid., 231.

⁴⁷ Ibid., 234.

⁴⁸ Ibid.

⁴⁹ I.L.C. Yb., vol. II, at 142 (1951).

⁵⁰ I.L.C. Yb., vol. II, at 298 (1956).

⁵¹ Ibid.

⁵² See particularly United Nations Conference on the Law of the Sea, Summary Records of the Fourth Committee, 1958.

⁵³ Ibid., 12. See also the views of France (at 2, 22), Sweden (at 3), China (at 4), Norway (at 4), Uruguay (at 5), Greece (at 5–6), Spain (at 7), Federal Republic of Germany (at 8), Colombia (at 9), Peru (at 10), Lebanon (at 14), Japan (at 14), Italy (at 16), Monaco (at 18), Bulgaria (at 23), El Salvador (at 24).

⁵⁴ Ibid. Argentina (at 3), Philippines (at 8), Yugoslavia (at 11), Ceylon (at 13), Mexico (at 14), Portugal (at 15), Chile (at 16), Israel (at 16–17), United States (at 19), USSR (at 20), Cuba (at 25), Venezuela (at 21), Australia (at 28).

⁵⁵ Ibid., 16. The reference to 1952 was probably a mistake. There was a Presidential Proclamation in 1947 and a Supreme Resolution of Apr. 11, 1953.

⁵⁶ United Nations Conference on the Law of the Sea, Report of the Fourth Committee, 1958, at 74–75. The proposal was adopted by 41 votes to 7, with 12 abstentions.

⁵⁷ Ibid., 74.

⁵⁸ Ibid.

⁵⁹ Hurst, “Whose Is the Bed of the Sea?,” (1923–24) 4 Br. Yb. Int’l L. 34, at 43.

⁶⁰ For a more detailed description of these special cases, see Fulton, , The Sovereignty of the Sea 697–98 (1911).Google Scholar

⁶¹ Oppenheim, , International Law, 7th ed. by Lauterpacht, , 568 (1948).Google Scholar

⁶² Vallat, supra note 20, at 334.

⁶³ Ibid., 335.

⁶⁴ Borchard, supra note 21, at 60.

⁶⁵ The three possible bases Borchard” suggested were “(I) the theory of sovereignty over the shallow soil and subsoil as an extension of the land; (2) the theory of terra nullius … implying the acquisition of property by effective occupation …; and (3) the theory that all or part of the Gulf of Paria is so shallow that the two States are justified in claiming it for themselves. …” Ibid., 62–63.

⁶⁶ I.L.C. Yb., vol. II, at 97 (1950).

⁶⁷ Ibid., 113.

⁶⁸ See Report of the Forty–Fourth Conference of the International Law Association, Copenhagen, 133–34 (1950). The statement merits citation in full:

• (I).

  (I). The Conference affirms that the following principles are existing international law.

• (1)

  (1) Control and jurisdiction over the sea–bed and sub–soil of the continental shelf inside territorial waters vest ipso jure in the coastal state.

• (2)

  (2) Control and jurisdiction over the sea–bed and subsoil of the continental shelf outside territorial waters can* be vested in the coastal state by effective occupation, insofar as the continental shelf does not extend to the territorial waters of another state and is not shared with an adjacent state….

• II.

  II. The Conference, in order to provide a reasonable and equitable solution of the problems connected with the sea–bed and its subsoil, suggests that international law should be developed in the following directions:

• (1)

  (1) The “continental shelf” should be defined as that part of the sea–bed (and its subsoil) which underlies a water depth not exceeding 200 metres, with the proviso that it should be open to a coastal state to prove that its continental shelf, as a result of exceptional geological conditions, underlies greater depths.

• (2)

  (2) Control and jurisdiction by the coastal state (or states) over the seabed and subsoil of the continental shelf outside territorial waters — subject to the principles set out under I(3) (4) and (5) above — should be recognized as vested in it (or them) ipso jure, i.e. even in the absence of a proclamation….⁶⁸

^* It is not the intention of the Committee that affirmation of this principle should be interpreted as a rejection of the possibility that control and jurisdiction over the sea-bed and subsoil of the continental shelf outside territorial waters vest ipso jure in the coastal state or that they can be vested in the coastal state by a proclamation to this effect (see sub. II-2).

⁶⁹ See the list given at ibid., 127–31.

⁷⁰ Ibid., 131.

⁷¹ Waldock, supra note 22, at 146.

⁷² Ibid., 139, 147.

⁷³ I.L.C. Yb., vol. II, at 142 (1951).

⁷⁴ Lauterpacht, , “Sovereignty over Submarine Areas,” (1950) 27 Br. Yb. Int’l L. 376.Google Scholar

⁷⁵ Flouret, , Plataforma Submarina (1952).Google Scholar

⁷⁶ Azcarraga, , La Plataforma Submarina y el Derecho Internacional (1952).Google Scholar

⁷⁷ Ferron, , L’Evolution du régime juridique en haute mer (1951).Google Scholar

⁷⁸ Lauterpacht, supra note 74, at 424.

⁷⁹ Oppenheim, supra note 61, at 577–78.

⁸⁰ Petroleum Development (Trucial Coast) Ltd. v. The Sheikh of Abu Dhabi, Award of Lord Asquith of Bishopstone, Aug. 1951. Text in (1952) 1 Int’l & Comp. L.Q. 247, cited hereafter as Abu Dhabi Arbitration.

⁸¹ Mouton, supra note 35, at 423–36.

⁸² See Scelle, , Le Plateau continental en droit international (1955)Google Scholar. For Gidel’s view, see Report of the International Bar Association (Madrid, 1952).

⁸³ I.L.C. Yb., vol. II, at 142 (1951).

⁸⁴ (1951) 18 Int’l L. Rep. 161, at 162, cited hereafter as Qatar Arbitration.

⁸⁵ United Nations Legislative Series, supra note 23, at 27.

⁸⁶ Qatar Arbitration, supra note 84, at 163.

⁸⁷ Abu Dhabi Arbitration, supra note 80.

⁸⁸ Ibid., 248.

⁸⁹ Ibid., 249, 251.

⁹⁰ Ibid., 254.

⁹¹ Ibid., 256.

⁹² Ibid.

⁹³ Ibid., 257.

⁹⁴ Ibid., 259.

⁹⁵ [1969] I.G.J. Rep. 3.

⁹⁶ Ibid., 22.

⁹⁷ I.C.J. Pleadings, North Sea Continental Shelf cases, vol. I: Reply of the Federal Republic of Germany, at 393, 402; Common Rejoinder of Denmark and The Netherlands, at 462, 465.

⁹⁸ Ibid., Memorial, at 56. Emphasis added.

⁹⁹ Ibid., Reply, at 393. Emphasis added.

¹⁰⁰ Ibid., Reply, at 409.

¹⁰¹ Ibid., Counter–Memorial of Denmark, at 183. Emphasis added.

¹⁰² Ibid., Common Rejoinder of Denmark and The Netherlands, at 511. That 1958 was the earliest possible date seems even clearer in the quotation from the speech by Counsel for the two kingdoms cited in the declaration appended to the judgment of Judge Sir Muhammad Zafrullah Khan, North Sea Continental Shelf cases, supra note 95, at 55.

¹⁰³ Ibid., at 22. See also similar terminology at 29 and 31.

¹⁰⁴ Ibid., 51.

¹⁰⁵ Ibid., 31.

¹⁰⁶ Ibid., 32.

¹⁰⁷ Ibid., 39.

¹⁰⁸ Ibid., 51.

¹⁰⁹ Ibid., 100, 106.

¹¹⁰ 97.

¹¹¹ Ibid., 171, 172, 176.

¹¹² Ibid., 245–47.

¹¹³ Ibid., 41.

¹¹⁴ [1951] I.C.J. Rep. 116, at 131.

¹¹⁵ Colombian-Peruvian Asylum case, [1950] I.C.J. Rep. 266, at 276–77. Similarly, in the Case Concerning Right of Passage over Indian Territory (Merits): [1960] I.C.J. Rep. 6, at 40.

¹¹⁶ I.L.C. Yb., vol. II, at 26 (1950).

¹¹⁷ Supra note 95, at 42.

¹¹⁸ Ibid., 44.

¹¹⁹ Ibid., 105.

¹²⁰ [1982] I.C.J. Rep. 18.

¹²¹ I.C.J. Pleadings, Continental Shelf (Tunisian/Libyan Arab Jamahiriya): Tunisian Memorial, vol. 1, at para. 6.05. Emphasis added.

¹²² Ibid., Libyan Counter–Memorial, vol. 1, at para. 291.

¹²³ Supra note 120, at 43.

¹²⁴ Ibid., 123. Emphasis added.

¹²⁵ Ibid., 173.

¹²⁶ Ibid., 178.

¹²⁷ Ibid., 182.

¹²⁸ Ibid., 247.

¹²⁹ Ibid., 191.

¹³⁰ [1984] I.C.J. Rep. 246.

¹³¹ I.C.J. Pleadings, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America): Canadian Memorial, para. 287.

¹³² Ibid., para. 292.

¹³³ Ibid., United States Memorial, para. 200.

¹³⁴ Ibid.

¹³⁵ Ibid., para. 202.

¹³⁶ Ibid., para. 203.

¹³⁷ Ibid., paras. 208–9.

¹³⁸ Ibid., United States Reply, paras. 40, 44.

¹³⁹ Ibid., para. 41.

¹⁴⁰ Supra note 130, at 293.

¹⁴¹ Ibid., 296.

¹⁴² The dissenting opinion of Judge Gros states that the continental shelf concept was codified by the 1958 Convention, but does not deal with the question at what time prior to that it would have become customary law: ibid., 364.