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Adjudication of the Maritime Boundary in the Gulf of Maine

Published online by Cambridge University Press:  09 March 2016

D.M. McRae
D.M. McRae*
Affiliation:
Faculty of Law, University of British Columbia
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Extract

On March 29, 1979 Canada and the United States signed a treaty to submit their dispute over the maritime boundary in the Gulf of Maine to binding settlement. The event is worthy of note not only because it is the first occasion since the North Atlantic Coast Fisheries Arbitration, in 1910, that the two countries have submitted a dispute over their offshore jurisdiction to third party settlement but also because it constitutes the first reference by any state of a question to a chamber of the International Court of Justice. However, this reference to the Court is only conditional and the parties have provided for the possible removal of the case from the Court and for its submission to an ad hoc court of arbitration. Thus, as well as providing a further opportunity for an international tribunal to consider the law relating to the delimitation of maritime boundaries, the treaty raises some interesting questions about recourse to a chamber of the International Court of Justice.

Type
Notes and Comments
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 17 , 1980 , pp. 292 - 303
Copyright
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 1980

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References

1 The text of the treaty was kindly provided by the Department of External Affairs.

2 11 R.I.A.A. 167 (1910).

3 The International Court will also have the opportunity to consider this area of law in the case submitted by Tunisia and Libya over the delimitation of their boundary on the continental shelf. See Special Agreement between the Republic of Tunisia and the Socialist People’s Libyan Arab Jamahiriya for the Submission of the Question of the Continental Shelf between the Two Countries to the International Court of Justice, November 25, 1978, in 18 Int’l. Leg. Mat. 49 (1979).

4 There has been a longstanding dispute between the two states over the ownership of Machias Seal Island and North Rock at the entrance to the Bay of Fundy.

5 Beauchamp, , Crommelin, , and Thompson, , “Jurisdictional Problems in Canada’s Off-Shore,” 11 Alberta L. Rev. 431 (1973)Google Scholar; Logan, , Canada, the United States and the Third Law of the Sea Conference 55–56 (1974)Google Scholar; Feulner, , “Delimitation of Continental Shelf Jurisdiction between States: The Effect of Physical Irregularities in the Natural Continental Shelf,” 17 Va. J. Int’l L. 77, 89–105 (1976)Google Scholar; Swan, , “That Gulf of Maine Dispute: Canada and the United States Delimit the Atlantic Continental Shelf,” 10 Natural Resources Lawyer 405 (1977)Google Scholar; Editorial, “Boundary Delimitation in the Economic Zone: The Gulf of Maine Dispute,” 30 Maine L. Rev. 207 (1979).

6 The other boundaries at issue were on the Pacific coast of North America (off the Strait of Juan de Fuca and off Dixon Entrance) and in the Beaufort Sea. Since the boundary within Dixon Entrance has also been in dispute between the parties this too has entered into the negotiations.

7 Agreements on some of the fishery stocks on the Pacific coast were also concluded.

8 See Article 4 of the treaty.

9 Multilateral Treaties in Respect of which the Secretary-General Performs Depository Functions, ST/LEG/SERJD/9, at 12 (1976). On its face the reservation might be seen to cover the delimitation of boundaries in so far as it has an effect on living resources, although one commentator has stated that the reservation “does not appear to cover disputes over territorial limits”: see MacDonald, , “The New Canadian Declaration of Acceptance of the Compulsory Jurisdiction of the International Court of Justice,” 8 Canadian Yearbook of International Law 3, at 34 (1970).Google Scholar

10 Canadian Practice in International Law, 1970, 9 Canadian Yearbook of International Law 276, 287–94 (1971).

11 Digest of United States Practice in International Law, 1973, ed. Rovine, Arthur W. (1974) at 465–67Google Scholar; ibid., 1974, ed. Arthur W. Rovine (1975), at 672–73.

12 In the past the United States also has shown little enthusiasm for recourse to the International Court of Justice, and the “Connally amendment” embodied in the United States reservation to its acceptance of the compulsory jurisdiction of the International Court of Justice constitutes a formidable barrier to contentious proceedings involving the United States.

13 In many respects this agreement is identical to the special agreement submitting the matter to a chamber of the Court. The agreement providing for a court of arbitration (hereafter the “arbitration agreement”) provides the method of constitution of the court of arbitration and for the appointment of a registrar.

14 This option to terminate must be exercised within two months of the right to do so arising.

15 Article 26(1) provides for the constitution of chambers to deal with particular categories of cases, such as labour cases and cases relating to transport and communications. Article 29 of the Statute provides for the creation of chambers of summary procedure.

16 Acts and Documents Concerning the Organization of the Court 54 (2d ed. 1947); see also Rosenne, ed., Documents on the International Court of Justice 93 (1974).Google Scholar

17 Hambro, , “Will the Revised Rules of Court Lead to Greater Willingness on the Part of Prospective Clients,” in Gross, ed., The Future of the International Court of Justice, Vol. 1, at 365, 366 (1976).Google Scholar

18 Adopted May 10, 1972. Acts and Documents Concerning the Organization of the Court No. 2 ( 1972), see Rosenne op. cit. supra note 16, at 93.

19 Article 76(3) of the Rules, which deals with the procedure before chambers, provides that the President of the Court “shall ascertain the views of the parties as to the composition of the Chamber.”

20 Rosenne, , “The 1973 Revision of the Rules of the International Court of Justice,” 8 Israel L. Rev. 197, 212 (1973).Google Scholar

21 Hambro, op. cit. supra note 17, at 369.

22 Arechaga, , “The Amendments to the Rules of Procedure of the International Court of Justice,” 67 Am. J. Int’l L. 1, 3 (1973)CrossRefGoogle Scholar; Rosenne op. cit. supra note 18, at 212; Hambro, op. cit. supra note 17, at 368–69.

23 Baxter, , “Two Cheers for International Adjudication,” 65 A.B.A. Journal 1185, 1189 (1980)Google Scholar; “… the parties can secure a chamber, composed in accordance with their desires almost as if the court were a panel of arbitrators.”

24 In his article, Judge Arechaga, op. cit. supra note 22, at 2, indicates that the amendment to the rules was a response to the suggestion that “recourse to ad hoc Chambers would prove more attractive to potential litigants if the election of their members were to be based on a consensus between the Court and the parties.” He also points out (ibid., 3) that the terms of Article 31 (4) of the Statute of the Court, which is equally applicable to the formation of chambers, “is sufficiently broad to permit the parties to select jointly two ad hoc judges.” This, in fact, is what the special agreement has provided (Article 2).

25 Hyde, , “A Special Chamber of the International Court of Justice: An Alternative to Ad Hoc Arbitration,” 62 Am. J. Int’l L. 439, 440 (1968).CrossRefGoogle Scholar

26 Arechaga, op. cit. supra note 20, at 3, points out that all expenses relating to the constitution and proceedings of the chamber are part of the budget of the Court and hence of the United Nations. For other advantages of the chambers procedure see Hambro, op. cit. supra note 17, at 368.

27 Reflecting the nature of procedure before the International Court, the chamber is “requested to decide.” The arbitration agreement provides that the Court of Arbitration “shall decide.”

28 United Kingdom of Great Britain and Northern Ireland and the French Republic: Delimitation of the Continental Shelf, Decision of the Court of Arbitration of June 30, 1977, in 18 Int’l. Leg. Mat. 397 (1979).

29 United Kingdom of Great Britain and Northern Ireland and the French Republic: Delimitation of the Continental Shelf, Decision of the Court of Arbitration of March 14, 1978, in 18 Int’l. Leg. Mat. 46a (1978). See also, Colson, , “The United Kingdom-France Continental Shelf Arbitration: Interpretive Decision of March 1978,” 73 Am. J. Int’l L. 112 (1980).Google Scholar

30 Arbitration Agreement between the French Republic and the United Kingdom, July 10, 1975, [1975] Grt. Brt. T.S. No. 137, Cmd. 6280, Article 9(1).

31 Article 4 of each agreement also sets out technical provisions relating to such matters as the establishment of geographic coordinates on the 1927 North American Datum, the drawing of straight and curved lines, the reconciliation of the parties’ differing nautical symbols on charts, and the use of computer programs, which are to be observed by the parties in their presentations and by the tribunal.

32 The special agreement which requests the chamber to decide the issue “in accordance with the principles and rules of international law” might be compared with the special agreement between Tunisia and Libya, supra note 3. There the parties have requested the Court to decide what principles and rules of international law may be applied to the delimitation of the area of the continental shelf in question, taking into account “equitable principles and the relevant circumstances which characterize the area, as well as the recent trends admitted at the Law of the Sea Conference” (Article 1).

33 So far neither state has made an express claim to an “exclusive economic zone” within the meaning of Articles 55 and 56 of the I.C.N.T. Rev. 1. Nevertheless, it is clear that the boundary to be drawn would also be the boundary for any exclusive economic zone to be claimed in the future. Article 3 of both the special agreement and the arbitration agreement provides that neither party will “claim or exercise sovereign rights or jurisdiction for any purpose over the waters or seabed and subsoil” on the other party’s side of the boundary.

34 499 U.N.T.S. 311.

35 A/CONF.62/WP.io/Rev. 1, April 28, 1979. Article 74 of the text and Article 83 provide identical rules for the delimitation of the exclusive economic zone, which includes fisheries jurisdiction and the delimitation of the continental shelf respectively.

36 [1969] I.C.J. Rep. 4.

37 See McRae, , “Delimitation of the Continental Shelf between the United Kingdom and France: The Channel Arbitration,” 15 Canadian Yearbook of International Law 173, 182–85 (1977).Google Scholar

38 In this regard it might be appropriate to enquire whether the reasoning of the International Court in the Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1974] I.C.J. Rep. 1, has any relevance.

39 The matter is not resolved by treating the areas as exclusive economic zones for the problem is inherent in Articles 76 and 84 of the I.C.N.T. as well. Though the rules for delimitation in these articles are identical, the “equitable” considerations in the case of the exclusive economic zone may differ from those in the case of the continental shelf, resulting in differing boundaries.

40 Supra note 27, Article 9(4).

41 Article 3(2) of both agreements provides that nothing in them is to affect the position of either party “with respect to the legal nature and seaward extent of the continental shelf, of fisheries jurisdiction, or of sovereign rights or jurisdiction for any purpose under international law.”

42 The arbitration agreement provides for the contingency that the ad hoc Court of Arbitration would be unable to reconvene to consider the seaward extension of the boundary. In these circumstances the President of the International Court of Justice is, “after consultation with the Parties,” to select five persons to constitute a court of arbitration. It is interesting to note that the parties have not retained in this provision the control over the composition of the tribunal that the treaty and the agreements elsewhere assiduously preserve. Perhaps they considered this eventuality too remote to constitute any real concern.

43 Report and Recommendations of the American and Canadian Bar Associations Joint Working Group on the Settlement of International Disputes, March 20, 1979, Intergovernmental Arbitration, Article 1; Compulsory Jurisdiction.