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Adjudication of Canada-United States Disputes

Published online by Cambridge University Press:  09 March 2016

Erik B. Wang
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 19 , 1982 , pp. 158 - 228
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1982

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References

1 Report and Recommendations of the American and Canadian Bar Association Joint Working Group on the Settlement of International Disputes between Canada and the United States, March 20, 1979. T. Bradbrooke Smith, Q.C., W.C. Graham, Q.C. and Professor J. G. Castel represented the Canadian Bar Association, with Professor G. Alexandrowicz acting as Canadian rapporteur, and Henry T. King, Jr., Gerald Aksen, Professor Don Wallace, and Arthur T. Downey represented the American Bar Association, with Professor Louis B. Sohn acting as United States rapporteur.

2 The two bar associations also approved a draft treaty on a regime of equal access and remedy in cases of transfrontier pollution, not discussed here.

3 However, in the view of the group, the system of adjudication proposed is “more than fully consistent with the fundamentals of the two Governments’ present relationship.”

4 Standing Senate Commitee on Foreign Affairs, Report on Canada-United States Relations Vol. I, at 63 (1975).

5 Cadieux, Marcel, Sixth Annual Conference of the Canadian Council on International Law, Ottawa, October 21, 1977 Google Scholar; proceedings published in 1 Canada-United States L.J. 19 (1978).

6 See, for example, Sohn, L. B., “The Function of International Arbitration Today” 108 Recueil des Cours 1 (1963)Google Scholar; Report of the Committee on the Charter of the United Nations on the Gradual Extension of the Compulsory Jurisdiction of the International Court of Justice (L. B. Sohn, rapporteur), International Law Association, Report of the Fifty-first Conference, at 65 (Tokyo, 1964); “Step-by-Step Acceptance of the Jurisdiction of the International Court of Justice,” Proceedings of Annual Meeting of the American Society of International Law, 1964, at 131; Report of the Committee on the Changing Role of Arbitration in the Settlement of International Disputes L. B. Sohn, rapporteur), International Law Association, Report of the Fifty-second Conference, at 322 (Helsinki, 1966); “Settlement of Disputes Relating to the Interpretation and Application of Treaties,” 150 Recueil des Cours 197 (1976).

7 Lauterpacht questioned whether there was any distinction between arbitration and adjudication on the basis of an allegedly greater recourse to “equity” in arbitration. The Function of Law in the International Community 380–82 (1933). Similarly Manley, O. Hudson considered any distinction as obsolete or impractical: International Tribunals: Past and Future 100 (1944)Google Scholar. See also remarks of Charles B. Bourne, Sixth Annual Conference of the Canadian Council of International Law, supra note 5, at 155.

8 For example, in the Minquiers and Ecrehos (1953) and the North Sea Continental Shelf (1969) cases before the ICJ, the parties by special agreement framed the questions to be decided by the Court.

9 Report, para. 372.

10 McRae, D. M., “Adjudication of the Maritime Boundary in the Gulf of Maine,” 17 Canadian Yearbook of International Law 295 (1979)Google Scholar. Judge Jiménez de Aréchaga, describing the new rules of procedure, noted that the parties had been accorded a “decisive influence” on the composition of a chamber: “the Court must always proceed to an election of the members of the Chamber by secret ballot, thus retaining ultimate control over the composition of any Chamber. However, from a practical point of view, it is difficult to conceive that in normal circumstances those Members who have been suggested by the parties would not be elected. For that it would be necessary for a majority of the Members of the Court to decide to disregard the expressed wishes of the parties. This would be highly unlikely since it would simply result in compelling the parties to resort to an outside arbitral tribunal or even to abandon their intention to seek a judicial settlement of the dispute.” “The Amendments to the Rules of Procedure of the International Court of Justice,” 67 Am. J. Int’l L. 1, at 3 (1973).

11 Canada declared in 1960 that it considered itself bound by the 1899 Convention: “Canada has decided to support actively the Permanent Court of Arbitration, and our Ambassador in the Hague is representing Canada on its Administrative Council. Forty-four other countries are members of the Court which was established in 1899 for the settlement of disputes between States.…” Press Release of the Department of External Affairs, August 19, 1960. The Canadian financial contribution to the Court, based on annual assessments, has been in the order of approximately $7,000 per year in recent years. The United States ratified the 1899 Convention on April 7, 1900 with a reservation stating, inter alia, that nothing in the Convention shall “be construed to imply a relinquishment by the United States of America of its traditional attitude toward purely American questions.” This reservation, which seems redundant in light of the purely optional nature of the proceedings contemplated under the Convention, was clearly a forerunner of the Connally amendment

12 A list of the twenty-five cases is included in Rapport du Conseil Administratif de la Cour Permanente d’Arbitrage sur les travaux de la Cour, sur le fonctionnement des services administratifs et sur les dépenses de l’exercise 1980 (La Haye, 1981). For a comprehensive review of the role of the Court see François, M. J. P. A., “La Cour Permanente d’Arbitrage, Son Origine, Sa Jurisprudence, Son Avenir,” 87 Recueil des Cours 461 (1955)Google Scholar. See also Copithorne, M. D., “The Permanent Court of Arbitration and the Election of Members of the International Court of Justice,” 16 Canadian Yearbook of International Law 315 (1978).Google Scholar

13 Treaties and Agreements Affecting Canada in Force between His Majesty and the United States of America, 1814–1925, 297 (Ottawa, 1927).

14 Willoughby, William R., The Joint Organizations of Canada and the United States 29 (1979)Google Scholar. For historical background see also the 1978–79 Report of the International Joint Commission, 70 years of Accomplishment.

15 For formal United States reasons for rejecting the Commission’s report, see 1934 Foreign Relations of the United States 894–95. Willoughby states: “It goes without saying that the American Section must never again be permitted to become what a Department of State official once called ’a dumping ground for outworn political talent’,” supra note 14, at 36 and 63–64.

16 Dinwoodie, D. H., “The Politics of International Pollution Control: The Trail Smelter Case,” 27 Int. J. 219, at 230 (1972).CrossRefGoogle Scholar

17 For discussion of the role of the IJC see, particularly, by Maxwell Cohen, Q.C., Canadian Chairman of the International Joint Commission, 1974-79, “Canadian-US Treaty Relations: Trends and Future Problems” in Deener, David, ed., Canada-United States Treaty Relations 185 (1963)Google Scholar; “The International Joint Commission United States-Canada,” Proceedings of the 68th Annual Meeting of the A.S.I.L. 236 (1974); Testimony before the Standing Senate Committee on Foreign Affairs, Proceedings of February 18, 1975; “The Régime of Boundary Waters: The Canadian-United States Experience,” 146 Recueil des Cours 221 (1975), and “Canada and the U.S.: Dispute Settlement and the IJC: Can This Experience Be Applied to Law of the Sea Issues?” 8 Case Western Reserve J. Int’l L. 69-80 (1976).

18 House of Commons Debates, April 17, 1972, at 1348. Prime Minister Trudeau reported to the House that Canada had proposed “very forcefully” to the United States that the matter be referred to the International Joint Commission. See also statements by External Affairs Minister Mitchell Sharp in the House on June 8, 1972 (ibid., at 2955), and June 19, 1972 (ibid., at 3245).

19 C.T.S., 1964 No. 2.

20 U.N. Doc. A/5694, May 1, 1964, Report of the Secretary General on Methods of Fact-Finding, 30. A precursor of the Bryan treaties also remained a dead letter. The Anglo-American Arbitration Treaty of August 3, 1911 provided for a joint high commission of inquiry. It was never ratified owing to opposition by the United States Senate (104 British and Foreign State Papers 308).

21 Supra, note 13 at 463.

22 Treaty signed at Washington, September 6, 1940 (C.T.S., 1941 No. 9), listed in United States, Department of State, Treaties in Force on January 1, 1980, at 32.

23 Subject to a reservation excluding from conciliation and adjudication, inter alia, “disputes concerning questions which by international law are solely within the domestic jurisdiction of States.” Similar reservations were entered by the United Kingdom and other Commonwealth countries. The General Act is perhaps noteworthy from a Canadian viewpoint in that it was the first time Canada agreed to submit questions of interpretation or application of a treaty to binding arbitration. Article 41 of the General Act reads:

Disputes relating to the interpretation or application of the present General Act, including those concerning the classification of disputes and the scope of reservations, shall be submitted to the Permanent Court of International Justice.

24 In each of these three cases the respondent — India, France, and Turkey, respectively — indicated that it considered the Act to be no longer in force as a result of the dissolution of the League of Nations. To put the matter beyond doubt, the United Kingdom in a letter to the UN Secretary General of February 8, 1974 gave notice of its denunciation of the Act, “in so far as it might be considered as still in force.” Canada has to date taken no action to denounce the Act. The Act, originally printed in C.T.S., 1931 No. 4, is listed in Canada Treaty Series 1928-64, Ottawa, 14 (1966). Canada continues to be listed among the States which have acceded to it — see Multilateral Treaties in Respect of which the Secretary General Performs Depository Functions, as at December 31, 1979, St/Leg./Ser. D/13, at 671. See also Merrills, J. G., “The International Court of Justice and the General Act of 1928,” 39 Camb. L.J. 137 (1980).CrossRefGoogle Scholar

25 This reservation was for the purpose of excluding legal claims not from belligerents, but from neutrals.

26 The circumstances of this reservation, which throws important light on Canadian attitudes towards adjudication, are discussed infra. On this and other reservations contained in the Canadian declaration see Macdonald, R. St. J., “The New Canadian Declaration of Acceptance of the Compulsory Jurisdiction of the International Court of Justice,” 8 Canadian Yearbook of International Law 3 (1970).Google Scholar

27 Resolution 1262 (XIII) of October 23, 1958.

28 Baxter, Richard R. in Mosler , H.and Bernhardt, R. (eds.), Judicial Settlement of International Disputes 177 (Max Planck Institute, 1974)Google Scholar. For other treaties relating to compulsory jurisdiction, see League of Nations: Systematic Survey of the Arbitration Conventions Deposited with the League (2nd ed., 1927) and United Nations: Systematic Survey of Treaties for the Pacific Settlement of International Disputes, 1928-48 (1949).

29 C.T.S., 1944 No. 36, Art. 84.

30 This right of appeal was exercised by India in Appeal Relating to the Jurisdiction of the ICAO Council [1972] I.C.J. Rep. 1.

31 C.T.S., 1951 No. 7. Under the agreement any dispute between ICAO and Canada concerning its interpretation or application “shall be referred for final decision to a Tribunal of three arbitrators.” There is also provision for requesting an advisory opinion of the ICJ “on any legal question arising in the course of the arbitral proceedings.”

32 British Treaty Series, 1924 No. 22. This convention of January 23, 1924 provided in Art. 4 for a “joint report” by two persons in the event of a dispute.

33 Supra, note 19. Art. 16 provides, in the first instance, for reference by either party of “differences arising under the Treaty” to the International Joint Commission for binding decision. If the IJC does not render a decision within three months or within such other period as may be agreed, either party may then submit the difference to binding arbitration by a three-member tribunal. If either party has failed to appoint its member or they are unable to agree on a chairman either may request the President of the International Court of Justice to appoint the member or members. Alternatively, the two parties may agree to refer their differences to the International Court of Justice.

34 C.T.S., 1966 No. 2. This procedure also involves a three-member tribunal but it is not strictly speaking binding: “The Contracting Parties shall use their best efforts consistent with national law to put into effect any decision or award of the arbitral tribunal” (Art. 15 (c)).

35 C.T.S., 1974 No. 16. The compromissory clause is identical to Art. 15 of the 1966 Air Transport Agreement.

36 C.T.S., 1977 No. 29. Art. 9 provides for a decision binding upon the parties by majority of a three-member ad hoc tribunal. The arbitration may be initiated by either party and failure of a reluctant litigant to appoint his arbitrator or to agree upon the third arbitrator may be overcome by a request to the President of the ICJ to appoint such arbitrator.

37 See McMahon, J. F. and Akehurst, Michael, “Settlement of Disputes in Special Fields,” in International Disputes: The Legal Aspects, Report of a Study Group of the David Davies Memorial Institute of International Studies, 211, at 237–40 (1972)Google Scholar. The General Agreement on Tariffs and Trade (G.A.T.T.) is noteworthy in this respect. Article 23(2) provides that in the event of a dispute relating to the Agreement the matter may be referred to the Contracting Parties who “shall promptly investigate any matter so referred to them and shall make appropriate recommendations to the contracting parties which they consider to be concerned, or give a ruling on the matter, as appropriate.” Under this article the practice has evolved of establishing a third-party panel to hear disputes. While not binding on the parties to a dispute the ruling of a panel may in fact have considerable influence and impact since the governing body of G.A.T.T. may on this basis authorize the suspension of obligations or concessions under the Agreement. It is established G.A.T.T. practice that any contracting party has a right to a panel. To put the matter beyond doubt, however, Canada and the United States have agreed, in an exchange of letters of April 12, 1979 between the Heads of their delegations to the Multilateral Trade Negotiations in Geneva, to support a request for the establishment of a panel by the other country, without prejudice to the substance of the issue.

38 A voluminous body of literature on the case is cited and extracted in Munro, John A., Issues in Canadian History — The Alaska Boundary Dispute (1970)Google Scholar. See also Keenleyside, Hugh L., Canada and the United States (1929)Google Scholar, Penlington, Norman, The Alaska Boundary Dispute: A Critical Reappraisal (1972)Google Scholar, and Bourne, C. B. and McRae, D. M., “Maritime Jurisdiction in the Dixon Entrance: The Alaska Boundary Re-Examined,” 14 Canadian Yearbook of International Law 175 (1976)Google Scholar. A further reminder that the case is not only of historical interest to some Canadians was the recent tabling of two private member’s Bills in the House of Commons by Mr. Jim Fulton, M.P. (Skeena), calling for rejection of the 1903 award and the reopening of negotiations on the land boundary, while reaffirming Canada’s claim to the “А-B Line” as the maritime boundary. Bills C-244 and C-408 received first reading in the House on May 2, 1980.

39 One informed Canadian commentator characterized the Canadian legal claim as “absurd”: “there is no doubt whatever that the United States was right when it claimed that the treaty [of 1825] had conceded to Russia, and thus to the United States, an unbroken strip of mainland coast....” Classen, H. George, Thrust and Counterthrust 350–51 (1965)Google Scholar. A Canadian jurist, formerly a judge on the ICJ, stated: “For more than a century most Canadians have thought that Canadian interests were sacrificed on the altar of broader imperial diplomatic considerations in the negotiations and arbitrations which determined the Maine boundary, the Oregon dispute, and the Alaskan Panhandle. But this almost universal opinion was unrealistic and without legal foundation. It was based on the assumption that Great Britain ought to have been willing to sacrifice British lives and treasure to maintain tenuous claims to what was then regarded as useless wilderness. It was based on the view that extreme Canadian claims were right.” Read, John E., The Rule on the International Plane 15–16 (1961)Google Scholar. The award of two islands in the Portland Canal area to the United States, was, however, open to criticism as arbitrary, since this diversion of the boundary had not been addressed in any of the pleadings of the parties. See the testimony of Joseph Pope cited in Munro, supra note 38, at 76.

40 Corbett, Percy E.: “Our interest in [the Alaska Boundary case] lies in its classic demonstration of the use of arbitral forms not for the purpose of obtaining an impartial decision on points of difference, but as a means of enabling one side to surrender without a politically costly loss of face.” Law in Diplomacy 156 (1959)Google Scholar.

41 It is an interesting reflection of the tempo of government at that time that the Prime Minister was able to absent himself from Ottawa in 1893 during the four months the tribunal sat in Paris.

42 Quoted by Stacey, C. P., 2 Canada and the Age of Conflict 153 (1982)Google Scholar.

43 Corbett, Percy E., The Settlement of Canadian-American Disputes 5 (1937).Google Scholar

44 Stuyt, A. M., Survey of International Arbitrations, 1794–1970 (1972)Google Scholar. Certain arbitrations listed in Stuyt (#2, 3, and 222) have been omitted from Annex A because they may be regarded essentially as an extension of diplomatic negotiations by means of joint commission; the dividing line between an arbitral function and a negotiating or conciliation function may, however, be very thin in the case of some of the other Canada-United States arbitrations listed by Stuyt. Joint commissions which began as an extension of negotiation by other means gradually took on a life of their own, seeking “just” solutions founded in principle and precedent and not merely the expedient compromises that might normally satisfy negotiators. At the point where the commissions went beyond compromise to law-making they became tribunals worthy of being considered in the company of other tribunals of a more clearly defined judicial nature. In some cases Stuyt declines to make a designation as to which party “won” the arbitration.

45 Supra note 43, at 4. An American assessment of the pattern of outcome of high-level conflicts between Canada and the United States through negotiations leads to broadly similar conclusions. See Nye, Joseph S., “Transnational Relations and Interstate Conflicts: An Empirical Analysis,” 28 Int. Org., 961 (1974).CrossRefGoogle Scholar

46 In the 1917 Gulf of Fonseca case (El Salvador v. Nicaragua), the Court based itself on the decision of the North Atlantic Fisheries case, and in particular on the views of Dr. Drago, the Argentinian judge. This approach was also followed by the International Court of Justice in the 1951 Anglo-Norwegian Fisheries case, which took into account not only geographical factors but also economic, social, and historical criteria, including the “vital needs” of the coastal population. In this light the North Atlantic Fisheries case may be seen as perhaps the first of a succession of judgments reflecting a trend of extended coastal state jurisdiction over adjacent marine areas, reversing the trend reflected in the Behring Sea arbitration where extended American claims were rejected by the tribunal. “The Cayuga Indians case may be regarded as the nearest approach among arbitral awards to a locus classicus concerning the place of equity in international jurisprudence,” Jenks, C. W., The Prospects of International Adjudication 366 (1964)Google Scholar. The Trail Smelter case is widely cited in relation to the international law of transboundary pollution.

47 The King of the Netherlands case is sometimes cited as an example of insufficiency or obscurity of the applicable law giving rise to the doctrine of “excès de pouvoir” or non liquet; see Munkman, A. L. W., “Adjudication and Adjustment: International Judicial Decision and the Settlement of Territorial and Boundary Disputes” 46 B.Y.I.L. 1, at 18 (1975)Google Scholar. Two other cases may be considered borderline rejections: the United States Congress failed to approve the financial damages fixed in the aftermath of the 1893 Behring Sea arbitration, and the American government rejected the (advisory) recommendations of the International Joint Commission in the 1932 Trail Smelter reference. However, in each case there was substantial acceptance after a further period of negotiations and renewed reference to third party decision.

48 See Nicholson, Norman L., The Boundaries of the Canadian Confederation (1979).Google Scholar

49 Lapradelle, , II Recueil des Arbitrages Internationaux 519 (1923).Google Scholar

50 C.T.S., 1951 No. 35.

51 Referring to the numbers assigned to the cases in Annexes A and B, the cases may be divided into the following predominant categories: questions of interpretation or application of treaties — nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 12, 14, 15, 16, and 17; questions of quantum of damages or benefits — nos. 7, 11, 13, and 18; questions of national or customary international law — 19 and 20.

52 C.T.S., 1935 No. 20, Art. 4. It may be noted that the compromis in the Trail Smelter case did not specifically ask the tribunal to decide whether the damage caused to American farmers gave rise to legal liability on the part of Canada or the smelting company. It merely asked the tribunal whether damage was caused by the smelter and “if so, what indemnity should be paid therefor?” The tribunal evidently considered that this question was implied and proceeded to answer it in much-cited terms:

under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.… Considering the circumstances of the case, the Tribunal holds that the Dominion of Canada is responsible in international law for the conduct of the Trail Smelter. (3 U.N.R.I.A.A. 1938 at 1965)

However, the question of liability was virtually predetermined by the language of the compromis and the tribunal would have been entitled to limit itself to a consideration of quantum of damages and measures to reduce future pollution. A comparable approach was adopted in the compromis of 1871 in the Alabama Claims case (U.S. v. Great Britain), which set out specific rules to be applied by the tribunal, imposing a high standard of responsibility on Britain and virtually limiting the tribunal to the question of quantum of damages. See Wetter, J. Gillis, I The International Arbitral Process: Public and Private 27–172 (1979).Google Scholar

53 C.T.S., 1966 No. 22, Art. 2. See also Lillich, R. B., “The Gut Dam Claims Agreement with Canada,” 59 A.J.I.L. 892 (1965)Google Scholar and Re, Edward D., “International Claims Adjudication: The United States-Canadian Agreement,” 17 Buffalo L. Rev. 125 (1967)Google Scholar. The Gut Dam compromis, unlike the Trail Smelter, posed the question as to whether there was legal liability.

54 See Lauterpacht, H., Private Law Sources and Analogies of International Law, with Special Reference to International Arbitration (1927)Google Scholar, and Falk, Richard A., The Role of Domestic Courts in the International Legal Order (1964).Google Scholar

55 Special Agreement between the Government of Canada and the Government of 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, March 29, 1979, Art. 2.

56 For an illuminating discussion of different approaches to the theory and practice of compromise by international tribunals, see Munkman, supra note 47.

57 Moore, , 7 Digest of International Law, 59 (1906).Google Scholar

58 See Classen, supra note 39, at 273–81. The Americans, sensing that their claim was the stronger of the two extreme claims, were anxious to avoid compromise and insisted that the arbitrator be given a choice only of the two extremes. The 1846 treaty provided that the boundary line ran “through the middle of the channel which separates the continent from Vancouver’s Island,” but there were more than two channels which might fit this description. An earlier attempt by the British to have the dispute settled by arbitration proved abortive. The Stanley-Johnson Treaty of January 14, 1869 would have referred the dispute to the President of the Swiss Confederation with latitude to determine a compromise line: “If such Sovereign or State should be unable to ascertain and determine that precise line intended by the words of the Treaty, it is agreed that it shall be left to such Sovereign or State to determine upon some line which, in the opinion of such Sovereign or State, will furnish an equitable solution of the difficulty.” The treaty was subject to ratification. The United States Senate declined to give its consent in the face of opposition to the broad mandate, which was subsequently renegotiated in the treaty of 1871 in terms acceptable to the Senate.

59 For a detailed review of international practice and doctrine on the role of national judges see Rosenne, Shabtai, “The Composition of the Court,” in Leo Gross (ed.), I The Future of the International Court of Justice 377, at 400–15 (1976)Google Scholar. While noting arguments to the contrary, Rosenne concludes that national or ad hoc judges play a positive role: “It has always been our view that the institution of judges ad hoc as the Statute of the Court sets it forth [Art. 31] is essential to the good functioning of the Court” ibid., 407. See also Rosenne, , The Law and Practice of the International Court, Vol. I, at 204, Vol. II, at 939 (1965)Google Scholar. Leo Gross, on the other hand, leans to the view that the practice of appointing national judges is objectionable but impossible to abolish at the present time. He would encourage the “enlightened practice” of appointing non-nationals as judges ad hoc. “The International Court of Justice: Consideration of Requirements for Enhancing Its Role in the International Legal Order,” 65 A.J.I.L. 253 (1971). Franck, Thomas M. is similarly critical of the practice: “This is like a sport, which in lieu of enforced rules, allows each side an equal number of foul plays,” The Structure of Impartiality 253 (1968)Google Scholar. Views may differ on the effect which national judges may have on the judicial process within the tribunal. Their contribution may be adversarial or conciliatory depending on a variety of circumstances, including the personalities of the judges concerned. Sohn suggests: “when there are three neutral members the influence of the national members is minimized, as the independent arbitrators may decide without the agreement of either national arbitrator” — “Settlement of Disputes Relating to the Interpretation and Application of Treaties,” supra note 6, at 268. Only in two cases before the ICJ — Frontier Lands (Belgium v. The Netherlands) and Temple of Preah Vihear (Cambodia v. Thailand) — did neither side appoint a judge ad hoc. The Beagle Channel arbitration (Argentina v. Chile) is another exception to the trend of including national judges. See Mangoldt, Hans Von, “Arbitration and Conciliation” in Judicial Settlement of International Disputes, supra note 28, at 523–33.Google Scholar

60 Testimony of Mark B. Feldman, Acting Legal Advisor, U.S. State Department, before the Committee on Foreign Relations, United States Senate, March 18, 1981. The Canadian government announced on November 20, 1981, that it intended to nominate Maxwell Cohen, Professor Emeritus of the Faculty of Law, McGill University, and formerly Canadian Chairman of the International Joint Commission, to be judge ad hoc in the Gulf of Maine case (Department of External Affairs Communiqué No. 112, November 20, 1981). In conformity with the wishes of the two parties the Court elected a chamber consisting of André Gros (France), Herman Mosler elected a chamber consisting of André Gros (France), Hermann Mosler (FRG), Roberto Ago (Italy), and Stephen Schwebel (U.S.) together with Maxwell Cohen as judge ad hoc : Government of Canada News Releases No. 6/82 of January 26, 1982 and No. 7/82 of January 29, 1982. The Court decided by eleven votes to two (Judges Morozov and El-Khani dissenting) to accede to the request of the two governments to form a special chamber (Court Order of January 20, 1982).

61 See, for example, Jenks, W., The Prospects of International Adjudication (1964)Google Scholar; H. Mosler and R. Bernhardt (eds.), Judicial Settlement of International Disputes, supra note 28; and Leo Gross (ed.), The Future of the International Court of Justice, supra note 59.

62 32 B.Y.I.L. 244 (1955–56).

63 See Merrills, J. G., “The Optional Clause Today,” 50 B.Y.I.L. 87 (1979).Google Scholar

64 It was ironic that Canada, having advocated a “victim-oriented” approach, became the first “victim” of damage by a space object under the Convention when the Soviet satellite, Cosmos 954, disintegrated over Canadian territory on January 24, 1978. Canada’s claims, based primarily on the Liability Convention, were settled through negotiations resulting in agreement on April 2, 1981 providing for payment of $3 million to Canada by the Soviet Union. Canada had originally requested compensation of slightly over $6 million.

65 Letter of August 14, 1970, UN GAOR Agenda item 96, Annex, A/8042, Adds, 1 and 2. For a detailed account of the United Nations review and of the issues discussed, see Steinberger, Helmut, “The International Court of Justice,” in Judicial Settlement of International Disputes Google Scholar, supra note 28, at 193.

66 Res. 3232 (XXIX), November 22, 1974. The following operative paragraphs are also of interest:

  • (2)

    (2) Draws the attention of States to the advantage of inserting in treaties, in cases considered possible and appropriate, clauses providing for the submission of disputes, which may arise from the interpretation or application of such treaties, to the International Court of Justice;

  • (3)

    (3) Calls upon States to keep under review the possibility of identifying cases in which use can be made of the International Court of Justice;

  • (4)

    (4) Draws the attention of States to the possibility of making use of chambers as provided in Articles 26 and 29 of the Statute of the International Court of Justice and in the Rules of Court, including those which would deal with particular categories of cases.

67 UN Doc. A/8382, September 15, 1971, Report of the Secretary General, Review of the Role of the International Court of Justice, para. 393. For further replies of governments, see A/8747, August 24, 1972.

68 Wang, E. B., Canada-United States Fisheries and Maritime Boundary Negotiations: Diplomacy in Deep Water, 38 (6) XXXIX (I) Behind the Headlines, 26 (1982).Google Scholar

69 A/8382, para. 139.

70 Ibid., paras. 130, 131.

71 Ibid., para. 191.

72 Ibid., para. 18.

73 Ibid., para. 380. See also para. 234.

74 In his separate opinion in the Aegean Sea Continental Shelf case, Judge Lachs stressed the importance of this aspect, citing para. 6 of Resolution 3232 ([1978] I.C.J. Rep. ι at 52).

75 A/8382, para. 46.

76 [1958] I.C.J. Rep. 1 at 118 (1959). See also Lauterpacht’s, separate opinion in the Norwegian Loans case, [1957] I.C.J. Rep. 8 at 34–66Google Scholar. For a critical American comment, see Briggs, H. W., “Towards the Rule of Law? United States Refusal to Submit to Arbitration or Conciliation the Interhandel Case,” 51 A.J.I.L. 517 (1957).Google Scholar

77 Jenks, supra note 46, at 24. Jenks describes the recurring debate over the wisdom of the Connally amendment in the following terms (at page 100) :

The hesitation to accept compulsory jurisdiction still manifested by an influential segment of opinion in the United States reflects a long tradition, particularly strong in the Senate of the United States, in which frequent recourse to international adjudication and reluctance to accept a binding obligation to adjudicate in advance of the emergence and definition of the issue to be adjudicated have repeatedly qualified each other. Another strong body of opinion in the United States favours the acceptance of compulsory jurisdiction and the future of United States policy on the subject must therefore be regarded as uncertain and by no means lacking in elements of hopefulness and progress.

Among the extensive literature on United States attitudes towards the Court see also: Briggs, H. W., “Reservations to the Acceptance of the Compulsory Jurisdiction of the International Court of Justice,” 93 Recueil des Cours 223 (1958)Google Scholar; Fleming, D. F., The United States and the World Court 1920–1966 (1968)Google Scholar; Address by Rogers, William P., Secretary of State, Proceedings of the 64th Annual Meeting of the A.S.I.L., 285 (1970)Google Scholar; Jessup, P. C., “The Development of a US Approach toward the ICJ,” 5 Vand. J. Trans. L. 1 (1971)Google Scholar; U.S. Senate, Committee on Foreign Relations, Hearings on “Strengthening the International Court of Justice,” 93rd Congress, Ist Session (1973); Sohn, L. B., “Senate Resolutions Relating to the International Court of Justice,” 69 A.J.I.L. 92 (1975)Google Scholar; Rovine, Arthur W., “The National Interest and the World Court,” in Leo Gross (ed.), The Future of the International Court of Justice, supra note 59, at 313.Google Scholar

78 For text of United States-Iran arbitration agreement, see 75 A.J.I.L. 422 (1981).

79 Mackay, R. A. (ed.), Newfoundland: Economic, Diplomatic and Strategic Studies, 386, 400 (1946)Google Scholar. For a comprehensive collection of treaties signed by the United States but not ratified by the Senate, see Wiktor, C. L., Unperfected Treaties of the United States of America, 1776–1976 (1976).Google Scholar

80 Reid, Escott, “Canada and the Creation of the North Atlantic Alliance, 1948–1949,” in Fry, M. G. (ed.), Freedom and Change: Essays in Honour of Lester B. Pearson 113 (1975).Google Scholar

81 Bishop, W. W. and Myers, D. P., “Unwarranted Extension of Connally-Amendment Thinking,” 55 A.J.I.L. 135 (1961).Google Scholar

82 C.T.S., 1953 No. 2. Art. 28 provided for the establishment of an arbitral tribunal composed of eight permanent members. The tribunal was authorized to “apply the generally accepted rules of international law” in the interpretation of the Agreement.

83 The Court held that there was no legal impediment preventing the Canadian government from protecting Barcelona Traction. [1970] I.C.J. Rep. 1, at 44. The absence of a jurisdictional link between Canada and Spain, according to the Court, did not entail non-existence of a right to exercise diplomatic protection by other means. Judge Lachs added: “the existence of this right [Canada’s right of protection] is an essential premise of the Court’s reasoning, and that its importance is emphasized by the seriousness of the claim and the particular nature of the unlawful acts, with which it charges certain authorities of the respondent State.” Ibid., at 53. That this right was purely nominal and illusory was apparent from the record of earlier, unproductive representations made by Canada to the Spanish government and confirmed by subsequent developments. The empty shells of the underlying companies in Toronto were finally dissolved in December 1980 under the provisions of the Canada Business Corporations Act. For a vivid account of the protracted and costly proceedings before the Court in this case, which is sometimes held out as a classic example of the perils of international adjudication, see Brooks, John, “Annals of Finance (Juan March),” The New Yorker, May 21, 1979 and May 28, 1979.Google Scholar

84 House of Commons Debates, March 26, 1968, at 8059.

85 See Bourne and McRae, supra note 38, at 217.

86 R. St. J. Macdonald, Senate of Canada, Proceedings of the Standing Senate Committee on Foreign Affairs, April 29, 1975 at 12:8. The United States note of June 27, 1973 proposing adjudication and the Canadian reply of January 4, 1974 appear in Rovine (ed.), Digest of United States Practice in International Law, 1973, at 465–67 and ibid., 1974, at 672–73. The Canadian position on sovereignty over the island is set out in “Canadian Practice in International Law during 1973 as Reflected Mainly in Public Correspondence and Statements of the Department of External Affairs,” 12 Canadian Yearbook of International Law 279 (1974).

87 House of Commons Debates, April 8, 1970, at 5623. A few days later, the Secretary of State for External Affairs, Mitchell Sharp, stated: “Even with the new reservation, Canada’s acceptance of the compulsory jurisdiction is much broader than that of many other countries. It does not in any way reflect a lack of confidence in the court but takes into account the limitations within which the court must operate and the deficiencies of the law which it must interpret and apply. Moreover, it may be revoked and Canada’s acceptance of the compulsory jurisdiction may again be broadened at such time as those deficiencies are made good. In the interval, Canada stands prepared to appear before the court where the court is in a position to exercise its proper function and render a decision either for or against us. Such is the case, for instance, with respect to our bill on the 12-mile territorial sea. Our readiness to submit to the international judicial process remains general in scope and is subject only to certain limited and clearly defined exceptions rather than to a general exception which can be defined at will so as to include any particular matter.” Ibid., April 16, 1979, at 5952.

88 State Department statement of April 15, 1970. See also statement by United States Secretary of State Rogers of April 25, 1970, Department of State Bulletin, Vol. LXII, No. 1612, May 18, 1970.

89 See, for example, Macdonald, R. St. J., Morris, G. L., and Johnston, D. M., “The Canadian Initiative to Establish a Maritime Zone for Environmental Protection: Its Significance for Multilateral Development of International Law,” 21 Univ. of Tor. L.J. 247 (1971)CrossRefGoogle Scholar; Henkin, L., “Arctic Anti-Pollution: Does Canada Make — or Break — International Law?” 65 A.J.I.L. 131 (1971)Google Scholar, and M’Gonigle, L. M. and Zacher, M. W., “Canadian Foreign Policy and the Control of Marine Pollution,” in Johnson, and Zacher, (eds.), Canadian Foreign Policy and the Law of the Sea 100 (1977).Google Scholar

90 Franck points out that the one objection is essentially a variation of the other, and that they both involve not the inherent quality of the dispute itself but a subjective or highly “political” assessment by the potential litigant as to where its interests lie. The Structure of Impartiality, supra note 59, at 178–81. For two Canadian viewpoints, see Dalfen, C. M., “The World Court in Idle Splendour: The Basis of States’ Attitudes,” 23, Int. J. 124 (1967–68)CrossRefGoogle Scholar and Riekhoff, H. V., Sigler, J. H., and Tomlin, B. W., Canadian-U.S. Relations: Policy Environments, Issues, and Prospects 100 (1979)Google Scholar. For other assessments of the main reasons for mistrust of adjudication see, for example, Jean Salmon in Max Planck Proceedings, supra note 28, at 165–67: SirFitzmaurice, Gerald, “Enlargement of the Contentious Jurisdiction of the Court,” in 2 The Future of the International Court of Justice, supra note 59, at 463–70Google Scholar; and Arthur W. Rovine, “The National Interest and the World Court,” supra note 77, at 313.

91 Rovine, op. cit. supra note 77, at 317.

92 Address by Prime Minister Trudeau, April 15, 1970. Jennings, R. Y. commented: “Now this may not seem to be exactly calculated to win friends and influence people in The Hague. But one can see what Mr. Trudeau means. It is a question of the way customary law tends to be made in these times of quick change. Some of the major advances have been the consequence of unilateral action by one government going to the frontiers of the existing law. So in effect the Canadian Prime Minister is saying we are engaged in making new and better law; do not test it at too early a stage against the old law.” Judicial Settlement of International Disputes, supra note 28, at 42.Google ScholarPubMed

93 Gotlieb, A. E., “Canadian Diplomatic Initiatives: The Law of the Sea,” in Fry (ed.), op. cit. supra note 80, at 146 Google Scholar. See also Gotlieb, and Dalfen, , “National Jurisdiction and International Responsibility: New Canadian Approaches to International Law,” 67 A.J.I.L. 229 (1973).Google Scholar

94 “if we want to have law we shall have to recognize that it is by its nature a conservative force, we shall have to accept a bias, and a strong bias, in favour of the status quo.” Brierly, J. L., “International Law: Some Conditions of Its Progress,” 22 Int. Affairs, 358 (1946).CrossRefGoogle Scholar

95 See Bindschedler, Max Planck Proceedings, supra note 28, at 143.

96 Statement by External Affairs Minister Allan J. MacEachen at the first plenary debate on dispute settlement procedures at the Law of the Sea Conference, New York, April 12, 1976. UNCLOS, Official Records, Vol. 5, at 50. Presumably the Law of the Sea Convention would have to be excluded from the ambit of the CBA/ABA treaty if the parties wished to preserve these features.

97 Corbett, supra note 43, at 13.

98 See L. H. Legault, Minutes of Proceedings and Evidence of the Standing Committee on Fisheries and Forestry, May 29, 1981, at 35:10: “Fisheries pressures and, in the very near future, in my opinion, hydrocarbon pressures are going to make it absolutely imperative that we put a boundary in place.” See also C. C. Emanuelli, “Modes de Règlement des Différends entre le Canada et les États-Unis en Matière de Frontières et de Ressources Maritimes,” supra note 5, at 36.

99 CBA/ABA Report, 63.

100 It Would be unrealistic, however, to assume that the court would be left with little discretion. Matters of treaty interpretation, like matters of statutory interpretation in domestic courts, often call for subjective judgments on which reasonable persons may differ. It is also noteworthy that while Canada is a party to the Vienna Convention on the Law of Treaties, the United States is not yet a party, again due to reservations by the United States Senate. On rules of treaty interpretation, some of which have generated lively controversy, see, for example, Lauterpacht, H., “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties,” 26 B.Y.I.L. 46 (1949)Google Scholar; McNair, , The Law of Treaties (1961)Google Scholar; McDougal, , Lasswell, , and Miller, , The Interpretation of Agreements and World Public Order (1967)Google Scholar; and Falk, R. A., The Status of law in International Society 342 (1970).Google Scholar

101 Article 4 of the Boundary Waters Treaty provides:

It is further agreed that the waters herein defined as boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other.

The CBA/ABA report cites this provision as an example of a treaty provision “which may no longer be properly given strict legal effect” or which the two parties may wish to exclude from the scope of a compulsory jurisdiction treaty.

102 For a discussion of the justiciability of disputes see Mangoldt, Von, “Arbitration and Conciliation” in Judicial Settlement of International Disputes, supra note 28, at 489–523 Google Scholar, including references to literature on the subject at 507, note 387. See also Merrills, J. G., “The Justiciability of International Disputes,” 47 Can. Bar Rev. 241 (1969)Google Scholar, Weissberg, G., “The Role of the International Court of Justice in the United Nations System: The First Quarter Century,” in The Future of the International Court of Justice, supra note 59, at 131 and 166–67Google Scholar, Brownlie, I., “The Justiciability of Disputes and Issues in International Relations,” 42 B.Y.I.L. 123 (1967).Google Scholar

103 See cases cited in Sohn, “Settlement of Disputes Relating to the Interpretation and Application of Treaties,” supra note 6, and comment at 240, 256.

104 Rovine, “The National Interest and the World Court,” supra note 77, at 318.

105 Jennings, R. Y., “The Proper Reach of Territorial Jurisdiction: A Case Study of Divergent Attitudes,” 2 Georgia J.I. & C.L. 35 (1972).Google Scholar