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The Canada-France Maritime Boundary Case: Drawing a Line Around St. Pierre and Miquelon

Published online by Cambridge University Press:  27 February 2017

Ted L. McDorman
Ted L. McDorman*
Affiliation:
University of Victoria, Canada
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Extract

Saint Pierre and Miquelon are two very small islands. Saint Pierre is ten square miles and Miquelon is 83 square miles. The total population for both islands is 5,800. Those islands are only 15 miles off the mouth of Fortune Bay in Newfoundland.

It can hardly be serious that anyone should think France would have a claim for 22,000 square miles or do anything like that under international law.

So mocked the Honorable John Crosbie in the Canadian House of Commons in 1982 before he became the Canadian government minister with responsibility for the Canada-France negotiations respecting St. Pierre and Miquelon.

Type
Research Article
Information
American Journal of International Law , Volume 84 , Issue 1 , January 1990 , pp. 157 - 189
Copyright
Copyright © American Society of International Law 1990

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References

1 Crosbie, Remarks, [1982] 15 Can. Parl. Deb., H.C., 32d Pari., 1st Sess. 17,265.

2 Agreement Establishing a Court of Arbitration for the Purpose of Carrying out the Delimitation of Maritime Areas between France and Canada, Mar. 30, 1989, reprinted in 29 ILM 1 (1990) [hereinafter Compromis]. The members of the tribunal are Eduardo Jimenez de Aréchaga, President; Professor Gaetano Arangio-Ruiz; Professor Oscar Schachter; Professor Prosper Weil, the French appointee; and Allan Gotlieb, the Canadian appointee.

The Agreement stipulates that the memorials are to be submitted to the tribunal by June 1, 1990, and the countermemorials no later than Feb. 1, 1991. The time periods, however, can be extended. Oral argument will be heard in New York at a time to be mutually agreed upon. A decision can be expected in late 1991 or early 1992.

3 It has become customary to refer to the Canadian position (that St. Pierre and Miquelon are only entitled to a 12-nautical-mile zone) as enclaving the islands and this shorthand will be used in this article. Enclaving has been applied in the past where islands of one state were located near the coast of another state and their use in constructing an equidistance or median line would not result in an acceptable solution. The islands were not used to construct the principal maritime boundary between the states but were given a maritime zone within the adjacent state’s maritime zone. The Canadian proposal for St. Pierre and Miquelon would not be enclaving in this sense. However, its result would be a French enclave in Canadian waters.

4 The relevance of state practice and past adjudications to a tribunal’s delimitation of a maritime boundary is questionable. It has been argued that past tribunals have not put much weight on derivative arguments or analogies, focusing rather on the particular situation before them. D. Johnston, The Theory and History of Ocean Boundary-Making 210 (1988). However, in presenting legal argument, the parties can be expected to rely on state practice and past adjudications to support their positions.

5 Definitive Treaty of Peace, Feb. 10, 1763, France-Great Britain-Spain, 1 Brit. & Foreign St. Papers 422, 645, 42 Parry’s TS 279.

6 See Canada-France Arbitration on the Dispute Concerning Filleting within the Gulf of St. Lawrence, award of July 17, 1986, paras. 7–9, reprinted in French in 90 Revue Générale de Droit International Public [RGDIP] 713 (1986), and 17 Revue Générale de Droit [RGD] 831 (1987) [hereinafter La Bretagne Award].

7 Agreement on Their Mutual Fishing Relations, Mar. 27, 1972, Canada-France, para. 4 [hereinafter 1972 Agreement], reprinted in United Nations, National Legislation and Treaties Relating to the Law of the Sea 570, UN Doc. ST/LEG/SER.B/16, UN Sales No. E/F.74.V.2 (1974), and U.S. Dep’t of State, Office of the Geographer, Limits in the Seas, No. 57 (1974) [hereinafter Limits in the Seas].

8 See Johnson, Canadian Foreign Policy and Fisheries, in Canadian Foreign Policy and the Law of the Sea 52, 68–69 (B. Johnson & M. Zacher eds. 1977).

9 1972 Agreement, supra note 7, Art. 3.

10 Id., Art. 4.

11 In 1964 Canada put in place a 9-nautical-mile fishing zone in addition to the traditional 3-nautical-mile territorial sea. In 1970 the fishing zone was subsumed by a 12-nautical-mile territorial sea. Territorial Seas and Fishing Zones Act, Can. Rev. Stat. ch. T-7 (1970), amended by ch. 45, §3(1) (1st Supp. 1970).

12 1972 Agreement, supra note 7, Art. 2.

13 On the competing oil and gas claims, see Day, Maritime Boundaries, Jurisdictional Disputes, and Offshore Hydrocarbon Exploration in Eastern Canada, 23 J. Can. Stud. 60, 69–70 (1988). See also Symmons, The Canadian 200-Mile Fishery Limit and the Delimitation of Maritime Zones Around St. Pierre and Miquelon, 12 Ottawa L. Rev. 145, 149 (1980).

14 1972 Agreement, supra note 7, Art. 8. This article refers to the boundary as defined in the annex to the Agreement. The boundary is based primarily, but not exclusively, upon equidistance. The northern termination point of the boundary, which is not based on equidistance, is 12.85 nautical miles from the Newfoundland shore and 14.5 nautical miles from the tip of the island of Miquelon. For the annex, a map of the boundary and analysis, see Limits in the Seas, No. 57, supra note 7. See also Symmons, supra note 13, at 148–49.

15 See regulations under the Territorial Sea and Fishing Zones Act, supra note 11, as amended: Fishing Zones of Canada (Zones 1, 2 and 3) Order, 18 Consolidated Regulations of Canada, ch. 1547 (1977); Fishing Zones of Canada (Zones 4 and 5) Order, id., ch. 1548; and Fishing Zones of Canada (Zone 6) Order, id., ch. 1549.

16 Law No. 76-655 of July 16, 1976, regarding the Economic Zone off the Coasts of the Territory of the Republic, 1976 J.O. 4299. By Decree No. 77-169 of Feb. 25, 1977, 1977 J.O. 1102, the 200-nautical-mile zone applied off the coasts of St. Pierre and Miquelon. The legislation is reprinted in R. Smith, Exclusive Economic Zone Claims: An Analysis and Primary Documents 147 (1986). See Symmons, supra note 13, at 153–54.

17 See Symmons, supra note 13, at 153; and Tom Siddon, Minister of Fisheries and Oceans, Remarks, [1987] 3 Can. Parl. Deb., H.C., 33d Parl., 2d Sess. 2808–09.

18 In 1979 the Venture gas field was discovered near Sable Island off the coast of Nova Scotia. Also in 1979, the Hibernia oil field off the coast of Newfoundland was discovered. Approximately 50 significant discoveries of oil and gas have been made in the East Coast offshore area.

19 See Day, supra note 13, at 71.

20 Id.

21 On France’s energy position, see generally N. Lucas, Western European Energy Policies 1–62 (1985); and Giraud, Energy in France, in 8 Ann. Rev. Energy 185 (1983).

22 Aquarone, French Marine Policy in the 1970s and 1980s, 19 Ocean Dev. & Int’l L. 267, 276(1988).

23 Donald Jamieson, Secretary of State for External Affairs, Remarks, [1976] 1 Can. Parl. Deb., H.C., 30th Pari., 2d Sess. 793.

24 A moratorium on exploration had apparently been in place since 1966, with a defined moratorium zone that included the entire disputed area. See Day, supra note 13, at 70–71.

25 Gordon, A little bit of France wants to go a long way, Halifax Chron.-Herald, Oct. 22, 1983, at 33.

26 Id.; and Gordon, France’s explanation disputed, Halifax Chron.-Herald, Oct. 17, 1983, at 1, 2.

27 The 1984 agreement, which has not been made public, was referred to by Siddon, supra note 17, at 2809–10.

28 Established under the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, Oct. 24, 1978, 21 O.J. Eur. Comm. (No. L 378) 1 (1978), reprinted in New Directions in the Law of the Sea, Binder 3, No. P.2 (K. Simmonds ed. 1986).

29 Siddon, supra note 17, at 2810.

30 Sheppard, No new fish pact without more fish, France insists, Victoria Times-Colonist, Feb. 11, 1987, at A8.

31 These were the quotas set for 1987. Canada reacted strongly when they were announced. See text at note 42 infra.

In 1988 Canada again established the French quota in the disputed zone at 6,400 M.T. While France announced its intent to harvest 28,000 M.T. of cod, its actual catch was estimated at between 12,000 and 18,000 M.T., an indication of the state of the cod stock. Canadian Press, St. John’s, Cod war heats up as French trawlers head for Canada, Toronto Globe & Mail, Jan. 4, 1989, at A1, A2.

The NAFO scientific council noted that the 3Ps area has been overfished and advised that the total allowable catch for 1989 in 3Ps should be only 20,500 M.T., half the previous quota. Greenspan, Fish talks with France to resume, Toronto Globe & Mail, May 27, 1988, at A1, A2. Despite the European Economic Community’s challenge of the scientific council’s conclusions, the conclusions were adopted by NAFO in September 1988. Canada reduced the quota for cod in 3Ps for 1989 to 35,400 M.T., which included 5,500 M.T. for France. As in 1988, no allocation of the quota to France was made. See text at note 43 infra. France set its 1989 quota for the disputed waters at 26,000 M.T. Binkley, French decision on cod quota “irresponsible,” Victoria Times-Colonist, Jan. 19, 1989, at A10.

32 La Bretagne Award, supra note 6, para. 12. On the quotas established for French vessels in undisputed Canadian waters, see Pharand, The Cod War Between Canada and France, 18 RGD 627, 632–35 (1987). The existence of quotas for French fishing vessels in undisputed Canadian waters was further complicated by the 1981 Agreement on Fisheries between the European Economic Community and the Government of Canada, 24 O.J. Eur. Comm. (No. L 379) 59 (1981), reprinted in 21 ILM 33 (1982). In 1987, the last year of the Agreement, France’s share of the EEC quota for cod was 1,545 M.T. Siddon, supra note 17, at 2811.

33 La Bretagne Award, supra note 6. See Burke, A Comment on the “La Bretagne” Award of July 17, 1986: The Arbitration Between Canada and France, 25 San Diego L. Rev. 495 (1988); Arbour, La Sentence arbitrate du 17 juillet 1986 concernant le filetage de poisson dans les eaux du golfe du Saint-Laurent, 17 RGD 813 (1986); Arbour, L’Affaire du chalutier-usine “La Bretagne” ou les droits de l’Etat côder dans sa zone économique exclusive, 24 Can. Y.B. Int’l L. 61 (1986); Colliard, Le Differend Franco-Canadien sur le “Filetage” dans le Golfe du Saint-Laurent, 92 RGDIP 273 (1988); and McDorman, French Fishing Rights in Canadian Waters: The 1986 “La Bretagne” Arbitration, 4 Int’l J. Estuarine & Coastal L. 52 (1989).

34 La Bretagne Award, supra note 6, para. 21.

35 Id., paras. 58, 61 and 63.

36 Canadian Department of External Affairs, Note Verbale No. 026 to France (Jan. 27, 1987) (unofficial trans.).

57 French Ministry of Foreign Affairs to Canadian Embassy, response to the Canadian Note Verbale of Jan. 27, 1987 (unofficial trans.). Regarding the quotas agreed upon in January 1987 and the legitimacy of the French protests of Canada’s unilateral establishment of quotas, see Pharand, supra note 32, at 635–36.

38 Agreed Record of Canada-France of 27 January 1987 (unofficial trans.). See generally Pharand, supra note 32, at 635–38.

39 Earlier in the 1980s, it was France that had sought to adjudicate the issue and Canada that had pursued negotiations. Allan J. MacEachen, Secretary of State for External Affairs, Remarks, [1983] 21 Can. Parl. Deb., H.C., 32d Parl., 1st Sess. 24,212; MacDonald, Pepin wants negotiated solution, Halifax Chron.-Herald, Oct. 1, 1983, at 3; and Meek, Canada makes new offer in boundary dispute, Halifax Chron.-Herald, May 10, 1984, at 3.

40 Annex to Agreed Record, supra note 38 (unofficial trans.).

41 Siddon, supra note 17, at 2810; and Siddon, Remarks, Can. Parl., H.C., Minutes of Proceedings and Evidence of the Standing Committee on Fisheries and Oceans, No. 12, Mar. 31, 1987, at 12 [hereinafter Fisheries Comm. Minutes].

42 Canadian Press, Ottawa, Ports closed to French fishermen, Toronto Globe & Mail, Mar. 18, 1987, at A1, A2. See also Siddon, in Fisheries Comm. Minutes, supra note 41, at 12.

43 Fraser, France breaks off fishing negotiations, Toronto Globe & Mail, Oct. 10, 1987, at A6.

44 Canadian Press, St. John’s, Crew, politicians jailed after arrest of trawler in island fishing protest, Toronto Globe & Mail, Apr. 16, 1988, at A1, A2.

45 Howard & Fisher, France recalls its ambassador in fishing row, Toronto Globe & Mail, Apr. 18, 1988, at A1, A2.

46 Canadian Press, French vessel seizes Canadian trawler, Toronto Globe & Mail, May 6, 1988, at A1, A5. See Joe Clark, Secretary of State for External Affairs, Remarks, [1988] Can. Parl. Deb., H.C., 33d Parl., 2d Sess. 15,207–10 (May 6) and 15,255–58 (May 9). See also Peter Meyboom, Deputy Minister of Fisheries and Oceans, and Bob Applebaum, Acting Assistant Deputy, International, Minister of Fisheries and Oceans, Remarks, Fisheries Comm. Minutes, supra note 41, No. 38, May 17, 1988, at 5–7.

The vessel in question was a small fishing boat from Newfoundland that traditionally had been allowed to fish in the waters close to St. Pierre and Miquelon, just as small vessels from the French islands could fish undisturbed near the coast of Newfoundland. The Canadian Government undertook to pay the legal expenses of the Newfoundland fishermen. The French court found the ship’s captain guilty but assessed no penalty. The situation then returned to normal, i.e., small vessels could fish in the waters of both St. Pierre and Miquelon and Newfoundland.

47 Reuters, Paris, Fishing row almost cut tie to Canada, Rocard states, Toronto Globe & Mail, May 30, 1988, at A9.

48 Uruguayan to mediate fish dispute, Toronto Globe & Mail, Nov. 3, 1988 (nat’l ed.); Canadian Press, Ottawa, Deadline extended for fishing mediator, Toronto Globe & Mail, Feb. 17, 1989, at A5.

49 Agreement relating to Fisheries for the Years 1989–91, Mar. 30, 1989, France-Canada; Canadian Note Verbale No. 220 to France (Mar. 30, 1989); and French Note Verbale to Canada (Mar. 30, 1989) (documents released by Canadian Dep’ts of External Affairs and Fisheries and Oceans).

In undisputed Canadian waters, the French quota for cod for 1989 was 11,450 M.T. Of this, 4,000 M.T. was for St. Pierre and Miquelon fishermen in the Gulf of St. Lawrence and 2,950 M.T. was northern cod. Newfoundland attaches great importance to the northern cod stock and has been opposed to allocating France a quota from this stock. When negotiation of the January 1987 agreement first publicly raised the possibility of a trade-off of northern cod for an agreement to adjudicate, the Newfoundland government strongly protested, going so far as to convene a provincial premiers’ meeting on the issue. Canadian Press, Toronto, Premiers ask PCs to review fish deal, Victoria Times-Colonist, Feb. 10, 1987, at A2. The northern cod quota for French vessels is to be reduced if, as has happened, the Canadian quota for northern cod decreases. See Canadian Press, St. John’s, Cod quota cuts hit big fish firms, Toronto Globe & Mail, Feb. 9, 1989, at B1, B7. Canada has noted that these allocations exceed Canada’s legal obligations under the 1972 Canada-France Agreement and were made “solely to facilitate” the boundary agreement. France categorically rejects these Canadian statements, taking the view that the allocations are an application of the 1972 Agreement.

In the disputed area, the two countries have agreed to disagree about quotas. France announced a unilateral quota for the disputed area of 15,600 M.T. for 1989, 15,100 M.T. for 1990, and 14,600 M.T. for 1991. Canada reaffirmed that these quotas have no legal basis and constitute overfishing, which France rejects.

50 See Siddon, supra note 17, at 2774 and 2776; and Keuning, Canada-France agreement called a trade-off, Halifax Chron.-Herald, Apr. 4, 1989, at 8. The quotas granted to France in Canadian waters are viewed as being inconsistent with conservation and will result in overfishing. Cox, Ottawa agrees overfishing is part of deal with France, Toronto Globe & Mail, Apr. 4, 1989, at A1, A2.

51 Gorham, Ottawa paid “high price” for deal with France—industry spokesman, Halifax Chron.-Herald, Apr. 1, 1989, at 1, 2; and Cleroux & Cox, Canada-France cod deal greeted with outrage by Newfoundlanders, Toronto Globe & Mail, Apr. 1, 1989, at A1, A2.

52 See A. P. Blaustein, France, French Overseas Territories, Saint-Pierre and Miquelon, in 1 Constitutions of Dependencies and Special Sovereignties (A. P. Blaustein & P. M. Blaustein eds. 1987).

53 See R. Churchill, EEC Fisheries Law 66 and 72 (1987).

54 Compromis, supra note 2, Art. 2(1).

55 Canada has not declared an exclusive economic zone, although through sectoral legislation Canada exercises almost all the rights provided for by the exclusive economic zone regime. On France’s exclusive economic zone, see supra note 16.

56 Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ Rep. 13, 33, para. 33 (Judgment of June 3) [hereinafter Libya/Malta].

57 Special Agreement for the Submission to the International Court of Justice of Difference, May 23, 1976, Libya-Malta, reprinted in 21 ILM 971 (1982), and Libya/Malta, 1985 ICJ Rep. at 16, para. 2.

58 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246 (Judgment of Oct. 12) [hereinafter Gulf of Maine].

59 Case concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Decisions of 30 June 1977 and 14 Mar. 1978, 18 R. Int’l Arb. Awards 3, reprinted in 18 ILM 397 (1979) [hereinafter Anglo-French Award].

60 Tribunal arbitral pour la délimitation de la frontière maritime (Guinea/Guinea-Bissau), reprinted in 25 ILM 251 (1986) (Award of Feb. 14, 1985) (trans.).

61 Libya/Malta, 1985 ICJ Rep. at 23–24, para. 19.

62 Agreement Implementing Article III of the Special Agreement and the Judgement of the International Court of Justice, Malta-Libyan Arab Jamahiriya, Nov. 10, 1986, reprinted in 1 Mediterranean Continental Shelf 117 (U. Leanza & L. Sico eds. 1988).

63 On the resolutive versus the facilitative role that can be assigned an adjudicative body, see D. Johnston, supra note 4, at 29 and 237–38.

64 Arbitration Agreement, July 10, 1975, France-United Kingdom, Art. 2(1), reproduced in Anglo-French Award, supra note 59, para. 1.

65 Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen, Report and Recommendations to the Governments of Iceland and Norway, reprinted in 20 ILM 797 (1981); Agreement on the Continental Shelf between Iceland and Jan Mayen, done Oct. 22, 1982, Iceland-Norway, reprinted in 21 ILM 1222 (1982). See Richardson, Jan Mayen in Perspective, 82 AJIL 443 (1988). See generally Churchill, Maritime Delimitation in the Jan Mayen Area, 9 Marine Pol’y 16 (1985).

66 In 1972 joint management of the hydrocarbon resources of the disputed zone was suggested in exchange for the renunciation of French claims beyond a 12-nautical-mile territorial sea. The suggestion was contained in the “relevé des conclusions” (summary of conclusions) signed by the two countries in May 1972. The document has never been made public, but its purported contents were revealed in Parliament by John Crosbie, supra note 1, at 17,265; and prior to that in the French arguments in the Anglo-French arbitration. See notes 155–56 infra. The relevé des conclusions was not an agreement since it was ultimately rejected by Canada. Mark MacGuigan, Secretary of State for External Affairs, Can. Parl., H.C., Minutes of Proceedings and Evidence of the Standing Committee on External Affairs and National Defense, No. 69, May 4, 1982, at 12–13; see further text at notes 188–89 infra.

In 1984 it was reported that Canada had proposed a comprehensive package involving joint fisheries management and resource sharing in the disputed zone. Meek, Canada makes new offer in boundary dispute, Halifax Chron.-Herald, May 10, 1984, at 3.

67 See note 66 supra.

68 Apr. 29, 1958, 15 UST 471, TIAS No. 5578, 499 UNTS 311.

69 Article 6 provides that equidistance is to be employed unless there are special circumstances that would make an equidistance line inequitable. Gulf of Maine, 1984 ICJ Rep. at 300–01, para. 115. In the Anglo-French arbitration, Article 6 was interpreted in such a way that equidistance and special circumstances were given the same weight rather than primary weight to equidistance. Anglo-French Award, supra note 59, para. 70. See generally 1 E. Brown, Sea-Bed Energy and Mineral Resources and the Law of the Sea, at 1.6 15–20 and 27–37 (1984); and D. Johnston, supra note 4, at 134–35.

70 Gulf of Maine, 1984 ICJ Rep. at 301–02, paras. 118–19.

71 Libya/Malta, 1985 ICJ Rep. at 35, para. 39.

72 See McDorman, The Libya-Malta Case: Opposite States Confront the Court, 24 Can. Y.B. Int’l L. 335, 361 (1986).

73 Special Agreement [to send the boundary dispute to the International Court], Mar. 29, 1979, Canada-United States, Art. II, quoted in Gulf of Maine, 1984 ICJ Rep. at 253, para. 5.

74 This formulation of law was proposed by both Libya and Malta and accepted by the International Court in Libya/Malta, 1985 ICJ Rep. at 31, para. 29, and 38, para. 45. The formulation of the fundamental norm in Gulf of Maine was: “delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result.” 1984 ICJ Rep. at 300, para. 112.

75 On “factor analysis” and boundary delimitation, see Charney, Ocean Boundaries Between Nations: A Theory For Progress, 78 AJIL 582 (1984); see also Charney, The Delimitation of Ocean Boundaries, 18 Ocean Dev. & Int’l LJ. 497, 507–21 (1987).

Maritime boundary delimitation law has frequently been criticized for vagueness and the uncertainty of its application in a given situation. Much of the criticism is directed at adjudicative decisions that do not provide clear guidance for the settlement of future disputes. As has been argued elsewhere, these criticisms are misdirected since an inflexible rule would not encourage boundary settlements; rather, it would encourage states to avoid negotiation and third-party dispute settlement where application of arbitrary rules would have unacceptable results. See McDorman, supra note 72, at 362–64; and D. Johnston, supra note 4, at 246.

76 Moreover, an equitable result is what a tribunal is directed to consider by the delimitation provisions, Articles 74 and 83 of the 1982 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122, reprintedin United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983), 21 ILM 1261 (1982) [hereinafter LOS Convention]. Article 74(1) states: “The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” For an insightful discussion of these two provisions, see D. Johnston, supra note 4, at 164–65 and 243–45.

77 D. Johnston, supra note 4, at 144, 210 and 245–46. On the debate respecting equity and ex aequo et bono, see id. at 246–47 and the comments in note 75 supra. Past adjudicators have denied that their decisions were made on the basis of ex aequo et bono. Libya/Malta, 1985 ICJ Rep. at 39, para. 45; see also McDorman, supra note 72, at 346–48.

78 In the Libya I Malta case, the Court determined the equitableness of the line by noting that “no evident disproportion” existed because of the decision. 1985 ICJ Rep. at 55, para. 75. In the Gulf of Maine case, the Chamber reviewed the equitableness of its line by considering whether the result would “entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned.” 1984 ICJ Rep. at 342, para. 237.

79 LOS Convention, supra note 76, Art. 121. See generally C. Symmons, The Maritime Zones of Islands in International Law 1–151 (1979).

The 1981 Iceland-Norway Conciliation Commission took the view that Article 121 represents customary international law. Conciliation Commission, supra note 65, at 803. It is questionable whether there is international consensus on the differentiation made in Article 121 between islands and rocks, the former of which are entitled to the full array of maritime zones, and the latter to only a 12-nautical-mile territorial sea. See generally Van Dyke & Brooks, Uninhabited Islands: Their Impact on the Ownership of the Ocean’s Resources, 12 Ocean Dev. & Int’l L. 265 (1983).

80 See Symmons, supra note 13, at 151.

81 Gordon, supra note 25, at 33.

82 Siddon, supra note 17.

83 See McDorman, supra note 72, at 357–59; and McDorman, Saunders & VanderZwaag, The Gulf of Maine Boundary: Dropping Anchor or Setting a Course?, 9 Marine Pol’y 90, 100 (1985) (for a discussion of this important aspect of the two cases).

84 Libya/Malta, 1985 ICJ Rep. at 52, para. 73.

85 Gulf of Maine, 1984 ICJ Rep. at 336–37, para. 222.

86 This is consistent with the emphasis a tribunal is to give an equitable result. See text at notes 76–78 supra.

87 Libya/Malta, 1985 ICJ Rep. at 46, para. 61.

88 Id. at 47, para. 62.

89 Gulf of Maine, 1984 ICJ Rep. at 312–13, para. 157.

90 Id. at 327, para. 195. On geographical characterization in this case, see McDorman, Saunders & VanderZwaag, supra note 83, at 94–95 and 100.

91 Gulf of Maine, 1984 ICJ Rep. at 312, para. 157.

92 Id. at 327, para. 196.

93 Libya/Malta, 1985 ICJ Rep. at 39–40, para. 46.

94 Gulf of Maine, 1984 ICJ Rep. at 333–34, para. 216.

95 Id. at 312–13, para. 157.

96 Libya/Malta, 1985 ICJ Rep. at 39, para. 46.

97 Both the People’s Republic of China and the Republic of China have claimed islands far distant from their shores in the South China Sea. Closer states have also laid claim to all or some of the Spratly Islands. See K. Kittichaisaree, The Law of the Sea and Maritime Bound Ary Delimitation in South-East Asia 141–44 (1987); M. Samuels, Contest for the South China Sea (1982).

98 Treaty relating to the Submarine Areas of the Gulf of Paria, Feb. 26, 1942, United Kingdom-Venezuela, 205 LNTS 121, reprinted in Limits in the Seas, supra note 7, No. 11 (1970).

99 Jagota, S., Maritime Boundary 101 (1985)Google Scholar.

100 Prescott, J. R. V., The Maritime Political Boundaries of the World 345 (1985)Google Scholar. See W. Edeson & J.-F. Pulvenis, The Legal Regime of Fisheries in the Carib Bean Region 106–07 (1983).

101 Agreement regarding the Delimitation of the Continental Shelf in the Great Channel between Great Nicobar Island and Sumatra, Aug. 8, 1974, India-Indonesia, reprinted in Limits in the Seas, supra note 7, No. 62 (1975).

102 Agreement on the Delimitation of the Seabed Boundary between the Two Countries in the Andaman Sea, June 22, 1978, Thailand-India, reprinted in id., No. 93 (1981).

103 Agreement on the Delimitation of the Maritime Boundary in the Andaman Sea, in the Coco Channel and in the Bay of Bengal, Dec. 23, 1986, Burma-India, United Nations, Law of the Sea Bull., No. 10, November 1987, at 105. See K. Kittichaisaree, supra note 97, at 95–96 and 123–24.

104 Agreement relating to the Delimitation of the Continental Shelf between Greenland and Canada, Dec. 17, 1973, Canada-Denmark, 1974 Can. TS, No. 9, reprinted in Limits in the Seas, supra note 7, No. 72 (1976).

105 Agreement between Norway and Denmark (Faeroes), June 15, 1979, reprinted in Gulf of Maine Case, Reply submitted by Canada, 1 Annex 603 (1983); cited by S. Jagota, supra note 99, at 115 and 340.

106 Treaty on Friendship and Delimitation of the Maritime Boundary between the United States and the Cook Islands, June 11, 1980, United States-Cook Islands, TIAS No. 10,774; and Treaty on the Delimitation of the Maritime Boundary between Tokelau and the United States, Dec. 2, 1980, TIAS No. 10,775, reprinted in Limits in the Seas, supra note 7, No. 100 (1983).

107 Accord de délimitation des zones économiques (Réunion), Apr. 2, 1980, France-Mauritius, J.O.July 19, 1980, at 1830, 1980 Recueil des Traites No. 37, reprinted in Limits in the Seas, supra note 7, No. 95 (1982).

108 Convention de delimitation (Martinique), Mar. 4, 1981, France-St. Lucia, J.O. May 21, 1981, at 1608, reprinted in 85 RGDIP 654 (1981).

109 Convention de delimitation maritime (New Caledonia), Jan. 4, 1982, France-Australia, J.O. Feb. 15, 1983, at 562, 1983 Recueil des Traites No. 3(8). See also J. R. V. Prescott, Australia’s Maritime Boundaries 124 (1985).

110 See Prescott, Maritime Boundaries and Issues in the Southwest Pacific Ocean, in Ocean Boundary Making: Regional Issues and Developments 268, 291 (D. M. Johnston & P. M. Saunders eds. 1988) [hereinafter Johnston & Saunders].

111 Convention relative à la délimitation des zones économiques (Wallis-Futuna Islands), Jan. 11, 1980, France-Tonga, J.O. Apr. 19, 1980, at 987, 1980 Recueil des Traités No. 18.

112 Traité de délimitation (Martinique), July 17, 1980, France-Venezuela, J.O. Mar. 16, 1983, at 782, 1983 Recueil des Traités No. 6(13). See Nweihed, Delimitation Principles and Problems in the Caribbean, in Maritime Issues in the Caribbean 19, 40 (F. Jhabvala ed. 1983).

113 See supra note 65.

114 Treaty of Delimitation, Mar. 31, 1978, Venezuela-Netherlands, 1978 Tractatenblad van het Koninkrijk der Nederlanden, No. 61, reprinted in Limits in the Seas, supra note 7, No. 105 (1986).

115 See Rolston & McDorman, Maritime Boundary Making in the Arctic Regwn, in Johnston & Saunders, supra note 110, at 16, 32–37.

116 On the ocean interests of these small islands, see de Jong, Extension of the Territorial Sea of the Kingdom of the Netherlands, 30 Neth. Int’l L. Rev. 129, 137–39 (1983).

117 See supra note 114.

118 Kingdom of the Netherlands, Explanatory Memorandum to the Bill of Approval of the 1978 Delimitation Treaty between the Kingdom of the Netherlands and Venezuela, reprinted in 10 Neth. Y.B. Int’l L. 367, 370 (1979).

119 J. R. V. Prescott, supra note 100, at 344–45.

120 Kingdom of the Netherlands, supra note 118, at 370–71.

121 Nweihed, supra note 112, at 40. A similar argument was advanced by Libya but rejected by the International Court. Libya/Malta, 1985 ICJ Rep. at 40–41, para. 49.

122 Nweihed, supra note 112, at 40.

123 Kingdom of the Netherlands, supra note 118, at 370.

124 The status and effect that should be given Aves Island has been highly controversial. See Nelson, The Delimitation of Maritime Boundaries in the Eastern Caribbean, in A New Law of the Sea for the Caribbean 27, 39–44 (E. Gold ed. 1988).

125 Treaty concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, Dec. 18, 1978, Australia-Papua New Guinea (entered into force Feb. 22, 1985), reprinted in 18 ILM 291 (1979).

126 See Burmester, The Torres Strait Treaty: Ocean Boundary Delimitation by Agreement, 76 AJIL 321, 336–37 (1982).

127 Torres Strait Treaty, supra note 125, Art. 10(3); see Burmester, supra note 126, at 330–32.

128 Burmester, supra note 126, at 323–24.

129 Agreement relating to the Delimitation of the Continental Shelf between the Two Countries, Aug. 20, 1971, Italy-Tunisia (entered into force Dec. 6, 1978), reprinted in Limits in the Seas, supra note 7, No. 89 (1980).

130 J. R. V. Prescott, supra note 100, at 302.

131 The Greek and Turkish continental shelf dispute is documented in 2 Mediterranean Continental Shelf, supra note 62, at 1515. See also D. Bowett, The Legal Regime of Islands in International Law 249–81 (1979).

132 D. Johnston, supra note 4, at 159.

133 C. Symmons, supra note 79, at 90; J. R. V. Prescott, supra note 100, at 306.

134 J. R. V. Prescott, supra note 100, at 331–33. South Africa has made it clear that it will apply a 200-nautical-mile zone for each of the islands and also a 200-nautical-mile zone for Walvis Bay. South Africa would obtain about 7% of the offshore zone that would otherwise go to Namibia. South Africa’s claim to the islands is challenged. See R. Moorsom, Exploiting the Sea 74–75 (1984). See generally on the sovereignty issue Partington, Walvis Bay and the Penguin Islands: The Validity of South Africa’s Claims to Sovereignty, 16 Denver J. Int’l L. & Pol’y 247(1988).

135 J. R. V. Prescott, supra note 100, at 333; Underwood, Ocean Boundaries and Resource Development in West Africa, in Johnston & Saunders, supra note 110, at 229, 253.

136 See generally C. Mitchell & E. Gold, Fisheries Development in Dominica (1982).

137 Libya/Malta, 1985 ICJ Rep. at 38, para. 44.

138 Id. at 47, para. 63, and 56, para. 77.

139 See Continental Shelf (Tunisia/Libyan Arabjamahiriya), 1982 ICJ Rep. 18, 79, para. 110 (Judgment of Feb. 24) [hereinafter Tunisia/Libya].

140 Libya/Malta, 1985 ICJ Rep. at 38, para. 44.

141 Id. at 33, para. 34.

142 Id. at 35, para. 39.

143 See McDorman, supra note 72, at 351. Note again, 1985 ICJ Rep. at 56, para. 77, and 47, para. 63, where the Court emphatically rejected equidistance as a legal requirement.

144 Libya/Malta, 1985 ICJ Rep. at 51, para. 70. This point had previously been made in the North Sea Continental Shelf cases (FRG/Den; FRG/Neth.), 1969 ICJ Rep. 3, 49, para. 89 (Judgment of Feb. 20). It was also commented upon in the Anglo-French Award, supra note 59, para. 95. The tribunal noted that the presence of the Scilly Isles off the coast of England enabled the United Kingdom, by use of equidistance, to claim approximately 4,000 square miles more than if the Scillies did not exist. Id., para. 243. See Beazley, Maritime Boundaries: A Geographical and Technical Perspective, in The UN Convention on the Law of the Sea: Impact and Implementation 319, 325–27 (19 L. Sea Inst. Proc., E. D. Brown & R. R. Churchill eds. 1987).

145 Libya/Malta, 1985 ICJ Rep. at 42, paras. 52–53.

146 The islands are fully described in Anglo-French Award, supra note 59, paras. 6–7.

147 Id., para. 87.

148 Id., para. 168.

149 Id., para. 150.

150 Id., para. 202.

151 Id., para. 187.

152 The tribunal took the view that it was not competent to draw these lines. Id., paras. 19–22.

153 Id., para. 161; on proportionality, see para. 166.

154 Id., para. 198.

155 Id., para. 177; see also supra note 66.

156 Anglo-French Award, supra note 59, para. 159.

157 See supra note 66.

158 Anglo-French Award, supra note 59, para. 200.

159 Id., para. 196.

160 Id., para. 159.

161 A detailed analysis that applies the Anglo-French reasoning to St. Pierre and Miquelon has been done by Symmons, supra note 13, at 158–162; and Rigaldies, L’Affaire de la délimitation du plateau continental entre la République francaise et le Royaume-Uni de Grande-Bretagne et d’Irlande du Nord, 106 Journal du Droit International 506 (1979).

162 The determination of the relevant coastline and its length has been a consideration in all the recent ICJ decisions. See, e.g., Libya/Malta, 1985 ICJ Rep. at 50, para. 68; and Gulf of Maine, 1984 ICJ Rep. at 335–37, paras. 221–22.

163 Libya/Malta, 1985 ICJ Rep. at 45, para. 58.

164 Gulf of Maine, 1984 ICJ Rep. at 312–13, para. 157.

165 Libya/Malta, 1985 ICJ Rep. at 39–40, para. 46.

166 Id. at 44, para. 57.

167 Willis, From Precedent to Precedent: The Triumph of Pragmatism in the Law of Maritime Boundaries, 24 Can. Y.B. Int’l L. 3, 44 (1986). Mr. Willis, a Canadian government lawyer, was centrally involved in the Gulf of Maine case and is currently involved in the Canada-France dispute. More generally on proportionality, see Beazley, supra note 144, at 320–25.

168 See McDorman, supra note 72, at 354–56.

169 Libya/Malta, 1985 ICJ Rep. at 50, para. 68. This was consistent with the treatment of disproportionality in the Gulf of Maine case. 1984 ICJ Rep. at 334–35, para. 218.

170 Libya/Malta, 1985 ICJ Rep. at 50, para. 68.

171 See, e.g., Tunisia/Libya, 1982 ICJ Rep. at 91, para. 131.

172 Libya/Malta, 1985 ICJ Rep. at 55, para. 75.

173 See, e.g., Tunisia/Libya, 1982 ICJ Rep. at 77–78, paras. 106–07.

174 Gulf of Maine, 1984 ICJ Rep. at 342, para. 237.

175 Anglo-French Award, supra note 59, paras. 197–98.

176 McDorman, supra note 72, at 361. See the excellent paper on this subject by Sharma, The Relevance of Economic Factors to the Law of Maritime Delimitation between Neighboring States, in 19 L. Sea Inst. Proc, supra note 144, at 248.

177 Approximately 40% of St. Pierre and Miquelon’s work force is employed by the fishery and the fishery is worth about $10 million to the economy. Canadian Press, Paris, Paris supports island fishermen, Toronto Globe & Mail, Jan. 26, 1989.

178 As has been noted, Canada effectively suspended this treaty to put pressure on France to resolve the boundary dispute.

179 1972 Agreement, supra note 7, Art. 4.

180 This was the position taken by Professor Donat Pharand, the dissenting arbitrator in the La Bretagne Award, supra note 6, Dissenting Opinion, para. 90.

181 Siddon, supra note 17, at 2810.

182 Id.

183 France’s insistence at the Third United Nations Conference on the Law of the Sea that distant islands be entitled to extended zones has been seen as designed to ensure that French fishermen would have a place to fish when traditional areas were closed because of 200-nautical-mile zones. It has been estimated that 75% of French landings in 1975 came from waters now within other countries’ 200-nautical-mile zones. The relatively small French fishing community has significant political clout, which largely explains the French Government’s posture on foreign fishing issues. See Aquarone, supra note 22, at 270 and 276.

In January 1989, a severe dispute arose between metropolitan France and St. Pierre fishing interests when two trawlers from metropolitan France were scheduled to fish in the disputed waters. The French Government acceded to the islanders’ position that only one trawler be permitted to fish in the zone. In response, the owner of the unwanted trawler and the vessel’s home community staged protests, blockaded the home port and occupied government buildings. The protests and threats that the unwanted trawler would indeed fish in the disputed area ended when the French Government agreed to compensate the affected parties for fish not caught. Canadian Press, St. Malo, Angry French plug port in protest, Victoria Times-Colonist, Jan. 28, 1989, at A3; id., Cod war trawler recalled, Victoria Times-Colonist, Jan. 29, 1989, at A1, A2.

184 Fraser, Paris halts fish talks; Canadians are blamed, Toronto Globe & Mail, Sept. 13, 1988, at A1, A2.

185 Canadian Press, St. John’s, St-Pierre-Miquelon protest ends after Paris pledge on trawlers, Toronto Globe & Mail, Jan. 6, 1989, at A4. The French division of the 1988 quota was 64% for St. Pierre and Miquelon vessels and 36% for metropolitan French vessels. The 1989 quota of 26,000 M.T. was supposed to be divided into 79% for St. Pierre and Miquelon and 21% for metropolitan France. Binkley, supra note 31.

186 Ross & McLaren, St-Pierre business joins row over fish, Toronto Globe & Mail, Feb. 12, 1987, at A1, A2.

187 Canadian Press, St. Pierre, Residents of French islands savour victory, Toronto Globe & Mail, Jan. 20, 1989, at A4. See supra note 183. It has been suggested that the French Government’s agreement to two freezer trawlers for the disputed zone was designed to pressure Canada on the boundary dispute and the suspended 1972 Agreement, which allowed French vessels to fish in undisputed Canadian waters. St. Pierre 1, Armada 0, Halifax Chron.-Herald, Jan. 23, 1989, at 6 (editorial).

188 See supra note 66.

189 See text at notes 155–60 supra.

190 See Johnson, supra note 8, at 72–73.

191 See LOS Convention, supra note 76, Arts. 56, 61–73. The Convention is not yet in force and the detailed fishery provisions, according to the 1986 Canada-France La Bretagne Award, supra note 6, paras. 52 and 53, have not yet emerged as part of customary international law. The dissenting member of the panel, Professor Pharand, took the contrary view. Id., Dissenting Opinion, para. 11. See generally on this arbitration and the LOS Convention, Burke, supra note 33, at 517–26.

192 See D. Johnston, The International Law of Fisheries, at LVIII–LX and LXIV–LXXV (1987).

193 Although in a different situation, the United States argued that a boundary across Georges Bank in the Gulf of Maine would lead to difficulties in managing the living resources of the area. This argument was rejected by the Chamber. Gulf of Maine, 1984 ICJ Rep. at 276–77, paras. 51–56, 319, paras. 172 and 174, and 343–44, para. 240.

194 Ross & McLaren, supra note 186; and Canadian Press, St. Pierre, Fishermen set to confront French ship, Toronto Globe & Mail, Jan. 18, 1989, at A4.

195 France is heavily dependent on imported oil (almost 100%) and gas (almost 85%). See supra note 21.

196 If the role of the tribunal were to facilitate the reaching of boundary arrangements between Canada and France, having the tribunal recommend (or impose) a narrow French fishing zone around St. Pierre and Miquelon and a joint development zone for hydrocarbons in the disputed area would appear to be consistent with the needs and interests of both countries. But the tribunal has been given the task of resolving the dispute by constructing a single maritime boundary. See text at notes 64–67 supra. On the facilitative and consultative roles of an adjudicative body, see D. Johnston, supra note 4, at 29–30, 243–44, 281–84.

Tribunals have been known to stray from their terms of reference. It could be argued that this situation is one where a departure from the terms of reference might be justified because of the apparent political and economic equitableness of a narrow fishing zone and a joint hydrocarbon zone.

197 Libya/Malta, 1985 ICJ Rep. at 51–52, para. 72.

198 Anglo-French Award, supra note 59, para. 158.

199 Id., para. 186.

200 Id., para. 171.

201 Kingdom of the Netherlands, supra note 118, at 369. In the mid-1980s, Aruba did acquire a new status within the Dutch Kingdom as a transitional stage toward independence. See Kingdom of the Netherlands, Explanatory Memorandum respecting a 1985 bill concerning the establishment of a maritime frontier between the Netherlands Antilles and Aruba, reprinted in 17 Neth. Y.B. Int’l L. 128 (1986).

202 The Channel Islands are not listed in Annex IV.

203 See supra note 14.