¹ For a summary of the dispute, see Keenleyside, H.L. and Brown, G.S., Canada and the United States 171–89 (rev. ed., New York, 1952).Google Scholar

² The territory of Alaska was ceded by Russia to the United States by treaty of March 30, 1867 (hereinafter referred to as “treaty of cession”); see Proceedings of the Alaska Boundary Tribunal, Vol. a, at 17 (Washington, 1904, Senate Doc. 162) (hereinafter referred to as Proceedings).

³ Treaty between the United States and Great Britain, signed at Washington, January 24, 1903; Proceedings, Vol. 2, at 1; also in Treaties and Agreements affecting Canada in force between His Majesty and the United States of America with Subsidiary Documents, 1814–1935, at 149–52 (1927).

⁴ Treaty between Great Britain and Russia, signed at St. Petersburg, February 16/28, 1825: Proceedings, Vol. 2, at 12; 12 Brit, and For. State Papers 38 (1824–25) (hereinafter referred to as the “1835 treaty”).

⁵ Decision of the Alaska boundary tribunal, October 20, 1903: Proceedings, Vol. 1 (Part 1), at 29.

⁶ See annexed map.

⁷ Classen, H.G., Thrust and Counterthrust: The Genesis of the Canada-United States Boundary 348–50 (Don Mills, Ontario, 1965).Google Scholar

⁸ See line AB on annexed map.

⁹ Documents on Canada’s External Relations, Vol. 1, 1909–18, at 384–85 (Department of External Affairs, 1967).

¹⁰ Ibid.

¹¹ Note Verbale, enclosed in letter of James Bryce, British ambassador to the United States, to Governor-General for the Dominion of Canada, April 30, 1909: ibid., 387–88 (Doc. 528).

¹² Order in Council, July 6, 1909, enclosed in letter of Administrator to Colonial Secretary, July 13, 1909: ibid., 400–5 (Doc. 533).

¹³ Ibid., 405.

¹⁴ The boundary line in the Strait of Juan de Fuca had been established by the Treaty of Oregon between Great Britain and the United States in 1846 and disputes over the exact position of the line in Haro Strait settled by arbitration. See 5 Foreign Relations of the United States, 1872, Part 2.

¹⁵ See infra 217–20.

¹⁶ Classen, op. cit. supra note 7, Ch. V; Penlington, N., The Alaska Boundary Dispute: A Critical Reappraisal (Toronto, 1972).Google Scholar

¹⁷ The views of the Law Officers are summarized in a letter from the Colonial Secretary to the Governor-General for the Dominion of Canada, February 10, 1910, 1910: Documents on Canada’s External Relations, op. cit. supra note 9, at 412–14 (Doc. 538).

¹⁸ Ibid., 412.

¹⁹ Ibid., 442–45 (Doc. 564).

²⁰ Letter of Colonial Secretary to Governor-General for the Dominion of Canada, August 7, 1914; ibid., 445 (Doc. 565).

²¹ Subsequent discussions between Canada and the United States are dealt with infra 220–21.

²² Territorial Sea and Fishing Zones Act, R.S.C. 1970, c. T-7.

²³ Fishing Zones of Canada (Zones 1, 2, and 3) Order, P.C. 1971–366, February 25, 1971, S.O.R./71–81.

²⁴ “Canadian Practice in International Law during 1973 as Reflected Mainly in Correspondence and Statements of the Department of External Affairs,” (1974) 12 Canadian Yearbook of International Law 279.

²⁵ “Arrest Rekindles Limits Dispute,” National Fisherman, Vol. 51, N0. 7 (1970), at 15-A.

²⁶ Proceedings, Vol. 2, at 25.

²⁷ Letter of the British Foreign Secretary, the Marquis of Londonderry, to the Russian Foreign Minister, Count Lieven, January 18, 1822: Proceedings, Vol. 2, at 104.

²⁸ Letter of U.S. Secretary of State, John Quincy Adams, to Russian ambassador to the United States, the Chevalier de Poletica, January 30, 1822: Proceedings, Vol. 2, at 32.

²⁹ Later Governor-General of the Province of Canada.

³⁰ Letter of Canning to Bagot, January 15, 1824: Proceedings, Vol. 2, at 144.

³¹ Proceedings, Vol. 2, at 8 (hereinafter referred to as the “1824 treaty”).

³² Though representations were made on several occasions by the United States, this provision was never renewed: Proceedings, Vol. 2, at 232–50.

³³ See supra note 4.

³⁴ Articles III and IV of the treaty provided as follows:

III. The line of demarcation between the possessions of the high contracting Parties, upon the coast of the continent, and the islands of America to the North-west, shall be drawn in the manner following:

Commencing from the southernmost point of the island called Prince of Wales Island, which point lies in the parallel of 54 degrees 40 minutes, north latitude, and between the 131st and the 133d degree of west longitude (Meridian of Greenwich), the said line shall ascend to the north along the channel called Portland Channel, as far as the point of the continent where it strikes the 56th degree of north latitude; from this last-mentioned point, the line of demarcation shall follow the summit of the mountains situated parallel to the coast, as far as the point of intersection of the 141st degree of west longitude (of the same meridian); and, finally, from the said point of intersection, the said meridian line of the 141st degree, in its prolongation as far as the Frozen Ocean, shall form the limit between the Russian and British Possessions on the continent of America to the Northwest.

IV. With reference to the line of demarcation laid down in the preceding article it is understood:

First. That the island called Prince of Wales Island shall belong wholly to Russia.

Second. That whenever the summit of the mountains which extend in a direction parallel to the coast, from the 56th degree of north latitude to the point of intersection of the 141st degree of west longitude, shall prove to be at the distance of more than 10 marine leagues from the ocean, the limit between the British Possessions and the line of coast which is to belong to Russia, as above mentioned, shall be formed by a line parallel to the windings of the coast, and which shall never exceed the distance of 10 marine leagues therefrom.

³⁵ See the case of the Dryad, infra 197–98.

³⁶ Treaty of Commerce and Navigation between Great Britain and Russia, 1843, Article XII: Proceedings, Vol. 2, at 17; 5 Martens, N.R.G., 8, 12.

³⁷ Treaty of Commerce and Navigation between Great Britain and Russia, 1859, Article XIX: Proceedings, Vol. 2, at 17; 16 Martens, N.R.G., Pt. 2, at 490, 498.

³⁸ Treaty of cession, supra note 2.

³⁹ Penlington, op. cit. supra note 16, at 17–20.

⁴⁰ In March 1872 the Legislative Assembly of the province of British Columbia passed a resolution noting “recent discoveries in the northern part of British Columbia ”and drawing the attention of the federal government to “necessity of some action being taken at an early date to have the boundary line properly defined”: Proceedings, Vol. 3 (Part II), at 223.

⁴¹ Supra note 3.

⁴² Letter of G. Canning to S. Canning, December 8, 1824: Proceedings, Vol. 3 (Part II), 155–59, at 158.

⁴³ Penlington, op. cit. supra note 16, at 10.

⁴⁴ Report on the Location of the British Alaskan Boundary under the Anglo-Russian Convention of 1835, by Col. D. R. Cameron, R.A., C.M.G., Colonial Office, September 1886, at 8.

⁴⁵ Classen, op. cit. supra note 7, at 290.

⁴⁶ Letter of Bagot to G. Canning, March 17, 1824: Proceedings, Vol. 2, 15357, at 156.

⁴⁷ It might be argued that the settlement of the territorial question would have been the face-saving device sought by Russia. However, this was not seen necessary in the case of the negotiations with the Americans.

⁴⁸ Letter of U.S. ambassador to Russia, Henry Middleton, to Secretary of State Adams, April 7, 1824: Proceedings, Vol. 2, 69–92, at 73.

⁴⁹ There were no United States settlements north of that line, anyway.

⁵⁰ Letter of Middleton to Adams, op. cit. supra note 48, at 73.

⁵¹ In fact the treaty finally concluded provided a ten-year period of access to the coast to the Americans.

⁵² These conclusions are based on an analysis of all the travaux préparatoires and documentary evidence made available to the Alaska boundary tribunal.

⁵³ Appendix to the Case of His Majesty’s Government before the Alaska Boundary Tribunal, Vol. I, at 55. The italics in this and subsequent quotations are added.

⁵⁴ Ibid., 56.

⁵⁵ Ibid., 5.

⁵⁶ Ibid., 87.

⁵⁷ Ibid., 94.

⁵⁸ Ibid., 103.

⁵⁹ Ibid., 115–16.

⁶⁰ Ibid., 124.

⁶¹ Ibid., 571.

⁶² Ibid., 71.

⁶³ Ibid., 105.

⁶⁴ Ibid.

⁶⁵ Ibid., 106.

⁶⁶ Ibid., 133.

⁶⁷ Supra note 48.

⁶⁸ Ibid., 83.

⁶⁹ Ibid., 74.

⁷⁰ Middleton appears to have assumed that on the expiry of the special right in the treaty the more general right of states to access to unoccupied places on the coast would revive: Proceedings, Vol. 2, at 78–79.

⁷¹ Letter of Canning, G. to Bagot, July 12, 1834: Proceedings, Vol. 3 (Part II), at 121.Google Scholar

⁷² Letter of Bagot to Canning, G., August 12, 1824: Proceedings, Vol. 3 (Part II), 130–35, at 130.Google Scholar

⁷³ Supra note 42, at 158.

⁷⁴ Letter of S. Canning to Canning, G., April 3, 1825: Proceedings, Vol. 3 (Part II), at 181–82.Google Scholar

⁷⁵ Ibid., 182.

⁷⁶ Oddly enough this conclusion was suggested by United States counsel, Elder, Samuel J., in his oral submissions to the North Atlantic Coast Fisheries Arbitration, Proceedings of the North Atlantic Coast Fisheries Arbitration, Vol. 10, at 1504 (Washington, Government Printing Office, 1912),Google Scholar where he said: Of course it was recognised, and it was not in dispute, that the object of this [the 1835] treaty between Great Britain and Russia was to leave a belt which was immune from traffic and British access to the sea along that shore, whereby the Hudson Bay Company in particular and British subjects in general could not get down to trade with the Alaska Indians in furs, and interfere with the rights of the Russian Fur Company. (Italics added.)

Though it was true that the purpose of the treaty was to protect the trading position of the Russian company, this was certainly not done by prohibiting navigation. Elder’s interpretation, though perhaps indicative of the U.S. attitude, is not consistent with the actual terms of the treaty.

⁷⁷ Stratford Canning further reported that Nesselrode stated that if the question of marine jurisdiction for fishing arose, he would not refuse to join in making the declaration, proposed by Canning, that jurisdiction extended to one league from the shore, “on being satisfied that the general rule under the law of nations was such as we proposed”: supra note 42, at 182.

⁷⁸ For support for this view, see Lord Alverstone’s opinion attached to the award of the Alaska boundary tribunal: supra note 5, at 36–48.

⁷⁹ Supra note 9, at 413.

⁸⁰ Ibid., 444.

⁸¹ Classen, op. cit. supra note 7, at 294–96.

⁸² Proceedings, Vol. 2, at 267–315.

⁸³ Agreement between the Hudson’s Bay Company and the Russian-American Company respecting certain commercial arrangements, February 6, 1839: Proceedings, Vol. 3, at 209–12.

⁸⁴ See Appendix to the Case of the United States before the Tribunal Convened at London under the Provisions of the Treaty between the United States of America and Great Britain concluded January 24, 1903, at 250 (Washington, Government Printing Office, 1903) (hereinafter referred to as Appendix, United States Case).

⁸⁵ Ibid., 249.

⁸⁶ Ibid., 20–21.

⁸⁷ When the United States claimed exclusive jurisdiction to hunt fur seals in the Bering Sea beyond the three-mile territorial sea, its claim was emphatically denied: see Award of the Tribunal in the Bering Sea Seal Fishery Arbitration, August 15, 1893, in 85 Brit. & For. State Papers 1158.

⁸⁸ Appendix, United States Case, 522–23.

⁸⁹ Memorandum on the Boundary between Canada and Alaska showing the Contention of the Canadian Government in Respect Thereto, 1899, at 27 and 30 (printed for the use of the Colonial Office; Confidential, Canada, North American, No. 187. Colonial Office, October 1899).

⁹⁰ Report on the Location of the British-Alaskan Boundary under the Anglo-Russian Convention of 1835, by Colonel, D.R. Cameron, R.A., C.M.G. Colonial Office, September 1886, (North America 119), 8–9.Google Scholar

⁹¹ Appendix, United States Case, 340.

⁹² Ibid., 457.

⁹³ Ibid., 478–79.

⁹⁴ Supra note 87, at 1160–61.

⁹⁵ Treaties and Agreements Affecting Canada in Force between His Majesty and the United States of America with Subsidiary Documents, 1814–1935, at 95–96 (1927).

⁹⁶ Proceedings, Vol. 5 (Part IV), 3, at 6.

⁹⁷ Letter of the Marquis of Lansdowne to Lord Pauncefote, February 5, 1902, ibid., 7 at 8.

⁹⁸ Ibid., 9.

⁹⁹ These questions, together with another four questions relating to the line from the Portland Channel north, were embodied in Article IV of the Treaty of 1903, supra note 3.

¹⁰⁰ It was not in fact until some time after 1825 that it was realized that Dall Island was separate from Prince of Wales Island.

¹⁰¹ Proceedings, Vol. 3 (Part I), at 65.

¹⁰² Proceedings, Vol. 1 (Part II), at 104.

¹⁰³ Proceedings, Vol. 4 (Part III), at 15.

¹⁰⁴ Proceedings, Vol. 5 (Part I), at 54–56.

¹⁰⁵ parallel 54°40ʹ coincided exactly with the entrance point in the channel contended for by the United States as Portland Channel.

¹⁰⁶ Proceedings, Vol. 5 (Part I), at 55.

¹⁰⁷ Proceedings, Vol. 5 (Part II), at 33.

¹⁰⁸ Proceedings, Vol. 6 at 350–484.

¹⁰⁹ ibid., 427 (italics added). Earlier Mr. Watson had indicated that if the line did not ascend from Cape Muzon to 50°40ʹ, then the United States would gain an extra 1200 feet of territory. In the context he could have been referring only to an area of sea.

¹¹⁰ See, for example, Proceedings, Vol. 6, at 91 (Taylor) and 719 (Dickinson).

¹¹¹ Proceedings, Vol. 4 (Part III), at 19.

¹¹² Idem.

¹¹³ Proceedings, Vol. 7, at 522.

¹¹⁴ Proceedings, Vol. 4 (Part I), at 31.

¹¹⁵ Ibid., 32.

¹¹⁶ Idem, (italics added.)

¹¹⁷ Proceedings of the North Atlantic Coast Fisheries Arbitration, 12 vols. (Washington, Government Printing Office, 1912).

¹¹⁸ Ibid., Vol. 12, at 1501–5.

¹¹⁹ It is important to note that the tribunal in that case rejected the United States’ narrow interpretation of the rule relating to sovereignty over bays.

¹²⁰ Op. cit. supra note 117, Vol. 10, at 1094.

¹²¹ Idem.

¹²¹ Ibid., 418.

¹²² Ibid., 1094–95.

¹²³ Supra note 9, at 402.

¹²⁴ Ibid. 418

¹²⁵ Ibid., 384–85.

¹²⁶ Ibid., 401–5.

¹²⁷ Supra, at note 123.

¹²⁸ Ibid., 442–45.

¹²⁹ Ibid., 412.

¹³⁰ Ibid., 404, 405. See also ibid., 445.

¹³¹ Ibid., 400–1, 405.

¹³² Referred to in a letter from W. A. Found, Canadian Director of Fisheries, to J. D. Craig, of the Canadian Section, International Boundary Commission, dated June 10, 1926, with a memorandum attached.

¹³³ R.S.C. 1970, c. T-7, amended by R.S.C. 1970, 1st Supp., c. 45.

¹³⁴ Supra note 23. The Order in Council establishing the zones came into force on May 10, 1971, sixty days after its publication in the Canada Gaiette.

¹³⁵ Digest of United States Practice in International Law, 1973, ed. Arthur W., Rovine (1974), 465–67.Google Scholar

¹³⁶ Ibid., 466.

¹³⁷ Digest of United States Practice in International Law, 1974, ed. Rovine, Arthur W. (1975), 672–73.Google Scholar

¹³⁸ Supra note 9, at 403.

¹³⁹ The claim of the two countries was recognized in the North Atlantic Coast Fisheries Arbitration where the tribunal said: “By a convention between the United Kingdom and the United States in 1846, the two countries assumed ownership over waters in Fuca Straits at distances from the shore as great as 17 miles,” op. cit. supra note 92, Vol. 1, at 121.

¹⁴⁰ Supra note 9, at 414 (Doc. 412).

¹⁴¹ Ibid., 443.

¹⁴² In 1890 the British international lawyer Hall, , in International Law (3rd. 1890), wrote at 156:Google Scholar

… while on the one hand it may be doubted whether any state would now seriously assert a right of property over broad straits or gulfs of considerable size and wide entrance, there is on the other hand nothing in the conditions of valid maritime occupation to prevent the establishment of a claim either to basins of considerable area, if approached by narrow entrances such as those of the Zuider Zee, or to large gulfs which, in proportion to the width of their mouths, are deeply into the land, even when so large as Delaware Bay, or still more to small bays, such as that of Cancale.

¹⁴³ See MacGibbon, , “The Scope of Acquiescence in International Law,” (1954) 31 British Yearbook of International Law 143–86Google Scholar; “Customary International Law and Acquiescence,” (1957) 33 British Yearbook of International Law 115-45; “Estoppel in International Law, ”(1958) 7 International and Comparative Law Quarterly 468-513. Also, Bowett, , “Estoppel before International Tribunals and Its Relation to Acquiescence,” (1957) 33 British Yearbook of International Law 176–202.Google Scholar

¹⁴⁴ Anglo-American Fisheries Case (United Kingdom v. Norway), [1951] I.C.J. Rep. 116; Temple of Prear Vihear Case (Cambodia v. Thailand), [1962] I.C.J. Rep. 6.

¹⁴⁵ MacGibbon, , “The Scope of Acquiescence in International Law,” supra note 143 at 182.Google Scholar

¹⁴⁶ Bowett, supra note 143, at 201.

¹⁴⁷ Ibid., 195–97.

¹⁴⁸ Ibid., 196.

¹⁴⁹ North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark, Federal Republic of Germany v. Netherlands), [1969] I.C.J. Rep. 3; Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1974] I.C.J. Rep. 3.

¹⁵⁰ North Sea Continental Shelf Cases, supra note 149, at 47.

¹⁵¹ Ibid., 49.

¹⁵² Fisheries Jurisdiction Case, supra note 149, at 33.

¹⁵³ These comments are directed only to the settlement of the boundary in Dixon Entrance. If the broader question of delimitation of the boundary between potential economic zones of Canada and the United States were considered, attention would also have to be turned to the Geneva Convention on the Continental Shelf, Article 6. Whether the Convention remains in this form after the Law of the Sea Conference concludes is uncertain.