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The Canadian Contribution to the Concept of a Fishing Zone in International Law

Published online by Cambridge University Press:  09 March 2016

A.E. Gotlieb
A.E. Gotlieb*
Affiliation:
Department of External Affairs
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Extract

On July 23, 1964, an act respecting the Territorial Sea and Fishing Zones of Canada was proclaimed by the Governor-in-Council and came into effect. It is a milestone in the history of Canada's attempts to gain greater protection of its interests in its adjacent shores; it does not mark the end of her international efforts but it constitutes a major stride forward in this direction. The Act has three chief effects: for the first time the breadth of the territorial seas of Canada is, for general purposes, defined at three miles; the straight baseline system is made applicable to the Canadian coastline; and a fishing limit is established extending twelve miles from the baselines from which the territorial sea is measured (nine miles from the outer limits of the territorial sea).

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 2 , 1964 , pp. 55 - 76
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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 1964

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References

1 Statutes of Canada, 1964, 13 Eliz. II, c. 22.

2 See the statement of Secretary of State for External Affairs on July 8, 1964, H.C. Deb. (Can.), 1964, at 5208. Canada has never issued official maps showing, for general purposes, the measurement or extent of her territorial seas, although such maps have been issued for custom purposes pursuant to the Customs Act, 1937, R.S.C. 1952, c. 58, s. 2 (i)(iv) as amended by S.C. 1953–54, c. 3; S.C. 1955, c. 32; S.C. 1958, c. 26. In its Reply to the Questionnaire circulated for the Hague Codification Conference 1930, Point IV(a), Basis of Discussion (6), Canada said that the baseline for the calculation of the breadth of territorial waters is the line of low-water mark following the sinuosities of the coast. (For reference to Reply, see 11, below.) Prior to their amendment by the Territorial Sea & Fisheries Zone Act, certain Canadian statutes referred, in either a general or specific manner, to the delimitation of territorial waters limits but these definitions were, of course, applicable only for the purposes of the statute. Examples were: s. 9(1) (b) of Coastal Fisheries Protection Act which referred to “the coasts, bays, creeks, or harbours of Canada.” More specific was s. 420(1) of the Canadian Criminal Code which referred to “the sea adjacent to the coast of Canada, and within three nautical miles of ordinary low water mark.” (This seems to be the sole direct reference in Canadian Statutes to the low-water mark principle.) S. 2(b) of the Customs Act defined “Canadian waters” as (in part) “including the marginal sea within three marine miles of the base lines on the coast of Canada, determined in accordance with international law and practice; subject, however, to the following provisions : (1) Canadian waters shall not extend beyond the limits of exclusion recommended in the North Atlantic Fisheries Award, answer to Question V....” This part of the Hague Award of September 7, 1910, stated that (except for bays, concerning which a different rule was laid down) “the three marine miles are to be measured following the sinuosities of the coast.” The Foreign Enlistment Act, 1937, R.S.C. 1952, c. 124, also refers to Canadian waters as defined in the Customs Act. These portions of the Coastal Fisheries Protection Act, the Customs Acts, the Criminal Code, and other Statutes were amended by the’ Territorial Sea and Fisheries Zone Act so as to make them consistent with the general provisions of the new Act referring to the territorial sea, fishing limits, and baselines. (See sections 7 to 12 of the Act.)

3 The convention respecting fisheries, boundary, and the restoration of slaves between His Majesty and the United States, signed at London, October 20, 1818; entered into force January 30, 1819 (8 U.S. Stat. 248; T.S. 112; I Malloy 631), required United States nationals to remain outside the three-mile limit except off the south and west coasts of Newfoundland and the Labrador coast.

4 For references see Morin, , “Les eaux territoriales du Canada au regard du Droit international,” (1963) 1 Canadian Yearbook of International Law 82, 93–45Google Scholar

5 For example, the Customs Act, S.C. 1883, 46 Vict. c. 12, later re-enacted in R.S.C. 1906, c. 48.

6 I Edw. VIII, c. 30, R.S.C. 1952, c. 58.

7 Although Britain had in the 18th and 19th centuries claimed jurisdiction beyond three miles for customs purposes in the “Hovering Acts” from 1736 to 1853, these were repealed by the Customs Consolidation Act, 1876 (39 & 40 Vict., c. 36, s. 179.)

8 For a discussion, particularly in relation to legislation in the 1920’s against smuggling, see First Report of the Special Rapporteur on the Regime of the High Seas, A/CN 4/17, para. 88, 89 (March 17, 1950).

9 For example, Belgium claimed customs jurisdiction up to ten miles in 1852 and Argentina up to twelve miles in 1864. Imperial Russia claimed a customs zone of 12 miles in 1909. France fixed a limit of supervision at twenty kilometres in 1817. See Colombos, , International Law of the Sea 116 et seq. (4th ed. 1961).Google Scholar

10 By Morin op. cit. supra note 5, at 97. See Basis of Discussion no. 5, League of Nations Document C. 351, M. 145 1930 V. The Canadian Reply to the Questionnaire circulated by the Preparatory Committee of Experts was that “claims by foreign states to exercise rights, except over their own ships, outside their territorial waters are not admitted.” (Answer to Basis of Discussion 11(d). The Reply was sent in a letter of May 27, 1929—see C. 74(a), M. 39(a) — 1929 V).

11 For text of Canadian Reply to Basis of Discussion no. 3 and 4 on the breadth of the territorial sea, see C. 74(a), M. 39(a) 1929 V. For text of Canadian intervention, see Acts of the Hague Codification Conference, Vol. Ill, at 123 (1930) (C. 351, M. 145. 1930 V).

12 At the 1958 Conference on the Law of the Sea. It is now contained in Article 24 of the Convention on the Territorial Sea & Contiguous Zone. (A/Conf. 13/L. 52 of April 28, 1958).

13 See infra note 40.

14 Presidential Proclamation 2667 of September 28, 1945, on the Continental Shelf and Presidential Proclamation No. 2668 concerning the “Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas.”

15 See McDougal, M.S. & Burke, W.T., The Public Order of the Oceans 967 (Yale University Press, 1962).Google Scholar

16 See U.N. Document A/Conf. 19/4 of February 8, i960 (Synoptical table concerning the breadth and juridical status of the territorial sea and adjacent zones).

17 See McDougal & Burke, op. cit. supra note 15. The United States sent notes to several states indicating non-recognition of such jurisdiction over its nationals, vessels, or aircraft. See Laws & Regulations on the Regime of the High Seas, (St./Leg/Ser. B/I) 1951, vol. 1, at 7 (note to Chile), at 17 (note to Peru), at 300 (note to El Salvador).

18 In 1957, Cambodia claimed sovereignty over the waters of its continental shelf to a depth of fifty metres. Ceylon, by Proclamation of December 20, 1957) claimed the right to establish conservation zones over areas one hundred miles distant from the limits of the territorial sea. India claimed a similar zone for conservation purposes. (See A/Conf. 19/4, at 7).

19 In the area off Canada’s east coast covered by the International Commission for the Northwest Atlantic Fisheries (ICNAF) from the years 1952 to 1961 cod fishing rose from a total catch of 1017 thousand metric tons (round fish) in 1952 to 1304 thousand metric tons; haddock from 152.7 thousand to 179.4 thousand; redfish from 102.4 thousand to 225.9 thousand; halibut from 3365 metric tons to 5843 metric tons. (ICNAF Statisticed Bulletin, Vol. 11, 1961). Off the west coast lie important fisheries for salmon, halibut, herring, trawl-caught groundfish, and crab. Prior to World War II, only Canada and the United States participated in these fisheries. Since that time there has been a substantial increase in fishing in the Pacific areas. A large portion occurs outside the 12-mile limit and several treaties of a conservation character have been entered into by the countries concerned. But there has been a steady and strong demand for many years for exclusion of foreign fishing up to 12 miles.

20 Res. 374 (IV) of December 6, 1949 (A/125t, p. 66).

21 Report of ILG covering work of its eighth session, 1958, Doc. A/3159, Art. 3 of the ILG’s draft.

22 See H.C. Deb. (Can.), 1949, Vol. I, at 240 (statement of Mr. Nowlan,M.p.).

23 See H.C. Deb. (Can.), 1946, Vol. V, at 5219. In Canada, in March 1946 and 1947 the United Fishermen and Allied Workers’ Union passed resolutions referring to the Truman Proclamation asking the Canadian government “to proclaim a similar assumption of responsibility of regulations and control of our offshore fisheries.” (For reference see note 33, infra.)

24 See H.C. Deb. (Can.), 1951, Vol. IV, at 4008; H.C. Deb. (Can.), 1954, Vol. V, at 4524; H.C. Deb. (Can.), 1956, Vol. II, at 1756.

25 R.S.C. 1952, c. 119, amended i960— 1 Eliz. II c. 23.

26 See Statement of Chairman Canadian Delegation, The Honourable George Drew, p.c., to 1958 Conference on Law of the Sea, March 17, 1958, A/Conf. 13/39, at 52.

27 Statement of Mr. Green, M.P. in H.C. Deb. (Can.), 1956, Vol. VII, at 6700.

28 H.C. Deb. (Can.), 1949, Vol. I, at 379.

29 Memorandum relating to questions raised by Newfoundland Delegation (December 11, 1948), at 8 (King’s Printer, Ottawa).

30 On July 30, 1956; see, H.G. Deb. (Can.), 1956, Vol. VII, at 6702.

31 See H.C. Deb. (Can.), 1953, Vol. II, at 1485–9. In an address before the Pacific Northwest Regional Meeting of the American Society of International Law in June 1956, President N. A. M. Mackenzie of the University of British Columbia observed that “[g]reat agitation has been taking place in Canada for the redrawing of baselines.... Since the decision of the International Court of Justice demands have been made that the same system of establishing baselines be used on [both the Atlantic and Pacific] coasts....” See Institute of International Affairs, University of Washington, Seattle, Bulletin No. 12, Part 2, June 1956, at 19, 20.

32 See, for example, references to statements in the House of Commons cited by President Mackenzie in the statement referred to in note 31 supra.

33 See submission of United Fishermen and Allied Workers’ Union, June 21, 1963, to Minister of Fisheries. Subsequently, this union urged adoption of a twelve-mile territorial sea. See Minutes and Proceedings No. 3 House of Commons Standing Committee on Marine & Fisheries, June 18, 1964, at 133.

34 H.C. Deb. (Can.), 1952–53, Vol. V, at 4738–9.

35 H.C. Deb. (Can.), 1956, Vol. VII, at 6702–3.

36 Ibid., 7528.

37 Mr. Lucien Cardin, M.P.

38 Official Records of UNGA, 11th Session 1956, at 68.

39 U.N. Doc. A/CN 4/90, at 34–5, reproduced in H.C. Deb. (Can.), 1957–58, Vol. II, at 1653–1656.

40 Art. 66 of their final draft. See doc. A/3154 covering work of ILC at its eighth session 1956. The 1958 Conference added control for infringement of immigration regulations (see Article 24 of the Convention on the Territorial Sea and Contiguous Zone, A/Coni. 13/L. 52 of April 28, 1958).

41 Op. cit. supra note 38, at 67.

42 Off. Rec. of 6th Committee, 13th session, at 161. The i960 Conference was convened by G.A. resolution 1307 (XIII). Off. Rec. 13th session, suplt. No. 18 (A/4090), at 54–55.

43 A/Conf. 13/C. I/L 77/Rev. ι. Sir Gerald Fitzmaurice, in “The Territorial Sea and the Contiguous Zone,” (1959) 8 Int’l & Comp. L.Q. 73, 119 suggests differences between a fishing limit (the rights claimed are exclusive) and the contiguous zone (the rights are for the control necessary for preventing infringement of customs, fiscal, and immigration and sanitary regulations). The Canadian proposal, in its later revision, and all subsequent proposals relating to fishing limits, combined provisions on the territorial sea and fishing zones into one article. For a critique of Fitzmaurice’s views on the nature of a state’s rights in its contiguous zone, see Oda, , “The Concept of the Contiguous Zone,” (1962) 11 Int’l & Comp. L.Q. 131–153.CrossRefGoogle Scholar

44 See reference, supra note 38.

45 Statement of March 17, 1958. Summary contained in A/Conf./3/39 (Off. Rec. of U.N. Conf. on Law of Sea, Vol. Ill, at 51–3. Verbatim text in Government of Canada “Statements & Speeches,” No. 58–9.).

46 See The Law of the Sea: A Canadian Proposal, pamphlet published by Canadian government in December 1959, at 16. McDougal and Burke, in The Public Order of the Oceans (see supra note 15) maintain (at p. 548) that “an additional six-mile exclusive fishing area can scarcely be regarded as supported by any available evidence of a scientific nature, either biological or economic.” The authors do not appear to give sufficient weight to the fact that there are a variety of factors — economic, social and political — which have led many states to proclaim 12 miles (in one form or another) for exclusive fishing. The protection of in-shore fisheries from gear-damage, the administrative advantages from the point of view of regulation, the economic interest of the coastal communities in increasing their share of the catch — these are all factors which must be taken into account. Furthermore, the “scientific” conception behind both the United States and Canadian proposals at the Geneva Conferences had much in common. The difference was that the United States wished to deal with foreign fishing in the zone by a provision in their proposed rule of law while Canada maintained that this should be dealt with in multilateral or bilateral agreements.

47 For an account of the work of the 1958 Conference, see Fitzmaurice, op. cit. supra note 43.

48 For an account of the 1960 Conference, see Bowett, , “Second U.N. Conference on the Law of the Sea,” (1960) 9 Int’l & Comp. L.Q. 415.CrossRefGoogle Scholar

49 Point III, Basis of Discussion no. 4 (Observation) League of Nations document C. 73, M. 38 1928 V.

50 (1928) Annuaire of the Institute, 758 (Art. 12).

51 See Francois’ first report (A/CN 4/17, art. 20, para. 90, and second report A/CN 4/42, paras. 119, 120 (April 10, 1951 ). See also statement of Francois at the 3rd session of the Commission in 1951 (Yearbook of ILC, 1951, at 316). See, further, A/CN 4/60 of February 19, 1953, para. 4 of commentary on art. 4 on Contiguous Zones.

52 A/3159, para. 5 of commentary on Article 66.

53 A/CN 4/77, at 5 (Article 4). The coastal state would have had the right, under the proposal, to issue regulations designed solely to protect the resources of the sea.

54 The Special Rapporteur seemed to have thought in 195a that the Canadian legislation prohibiting large trawlers from entering twelve miles off parts of Canada’s east coast (see note 25, supra) was a fishing zone for general purposes. See Yearbook of ILC, 1952, Vol. I, at 166 (fourth session).

55 See, for example, Lebanon Decree 1104 of November 14, 1921 (U.N. Legislative Series, Laws and Regulations of the Regime of the Territorial Sea (St./Leg/Ser. B/6), at 524) ; Yugoslavia, General Act on Maritime Fishing, January 23, 1950, ibid., 613.

56 See Boggs, , “National Claims in Adjacent Seas,” (1951) 41 Geographical Review 185–209.CrossRefGoogle Scholar Examples are Argentina (1907), Brazil (1938), Colombia (1923), Lebanon (1921), Morocco (1924), Spain (1909–30), Vietnam (1936). For text of laws, see op. cit. supra note 55. These countries have listed fishing limits beyond their territorial seas in U.N. Synoptical Table (A/Conf. 19/4 of February 8, 1960). A somewhat larger list was given by the Special Rapporteur in A/CN 4/42 of April 10, 1951 (para. 120) based on information supplied from governments (including Ecuador, Mexico, Libya, Syria, and Portugal).

57 In addition to the states listed in note 56, these are Cambodia, Ceylon, Dominican Republic, Iceland, India, Korea, Thailand, Tunisia, Yugoslavia. Ceylon and India have also made claims for conservation purposes. (See A/Conf. 19/4, February 8, 1960). A more restricted list is contained in Bardonnet, , “La largeur de la mer territoriale,” (1962) 66 Revue Générale de Droit International Public 32, 117.Google Scholar

58 See statement in Riesenfeld, , Protection of Coastal Fisheries under International Law 3 Google Scholar (Carnegie Endowment for International Peace, Washington, 1942) : “The fishing question has been the focal point of the whole problem of territorial waters from its very beginning.”

59 For a statement after the 1958 Conference on the security reasons for United States opposition to an extension of the territorial sea to 12 miles, see Dean, , “Freedom of the Seas,” (1958) Foreign Affairs 83,CrossRefGoogle Scholar and Dean, , “The Second Geneva Conference on the Law of the Sea: The Fight for the Freedom of the Seas,” (1960) 58 Am. J. Int’l. L. 751.CrossRefGoogle Scholar

60 The Canadian position prior to submission of the joint proposal was not that there should be no arrangements for dealing with foreign fishing operations but that these should be dealt with, because of differing conditions affecting different countries, in bilateral or multilateral agreements among the countries concerned rather than in the new rule of law itself. (See statement of Canadian delegation of April 8, 1960 A/Conf. 19/8, at 122). (See also The Law of the Sea: A Canadian Proposal, supra note 46, at 17).

61 A/Conf. 13/C. 1/L. 134 April 1, 1958.

61 A/Conf. 13/C. 1/L. 77 Rev. 3, April 17, 1958.

63 A/Conf. 13/C. 1/L. 159 Rev. 1 of April 17, Rev. 2 April 19, 1958.

64 See supra note 42.

65 A/Conf. 19/C. 1/L. 3.

66 A/Conf. 19/L. 11.

67 The Canadian Statement on April 8, 1960 (see supra note 60) explained that the ten-year period was what Canada believed to be the maximum figure which could possibly be approved by states preferring the original Canadian proposal and at the same time the minimum period acceptable to those preferring the original United States proposal. See A/Conf. 19/8, at 123.

68 Cited supra note 62.

69 Cited supra note 63.

70 A/Conf. 13/L. 30.

71 A/Conf. 13/L. 34.

72 A/Conf. 19/C. 1/L. 1.

73 A/Conf. 19/C. 1/L. 2 Rev. 1. The 18 co-sponsors were Mexico, Venezuela, Iran, Indonesia, Philippines, Iraq, Saudi Arabia, Jordan, Lebanon, U.A.R., Libya, Tunisia, Morocco, Ghana, Burma, Sudan, Ethiopia, Yemen.

74 A/Conf. 19/L. 9.

75 A/Conf. 19/L. 11.

76 For a survey of the voting and text of the proposals at the two conferences, see ODA, “Extent of the Territorial Sea,” (1962) 6 Japanese Annual of International Law 7.

77 See, for example, statement of United States delegate after the failure of the Canadian-United States proposal at the 1960 Conference that “[I]n his Government’s view there was no obligation on the part of the states adhering to the three-mile rule to recognize claims of other states to a greater breadth” (1960, Off. Records, at 34).

78 Jennings, , “Recent Developments in the International Law Commission: Its Relation to the Sources of International Law,” (1964) 13 Int’l & Comp. L.Q. 385, 391.CrossRefGoogle Scholar

79 See Standing Committee on Marine & Fisheries, Minutes of Proceedings & Evidence No. 3, June 18, 1964, at 145–148.

80 Ibid. A bill to extend British fishery limits was introduced in the British House of Commons on June 2, 1964, and has now come into effect.

81 Exchange of Notes Settling Fisheries Dispute between Government of United Kingdom and Government of Iceland, Reykjavik, March 11, 1961, British Treaty Series No. 17, 1961.

82 Fishery Agreement between Government of United Kingdom and Government of Norway, Oslo, November 17, 1960; ratifications exchanged, March 3, 1961. See British Treaty Series No. 25 (1961).

83 Exchange of Notes between the Government of United Kingdom and Government of Denmark, Copenhagen, April 27, 1959, British Treaty Series No. 55, 1959.

84 Final Act signed March 2, 1964. The states were Austria, Belgium, Denmark, France, Federal Republic of Germany, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, and Britain.

85 Art. 3.

86 Arts. 2 & 9.

87 See comment of Jessup, “The Law of the Sea Around U.S.,” (1961) 55 Am. J. Int’l. L. 104, 108: “Perhaps a multiplicity of bilateral or regional arrangements will set a pattern and demonstrate their advantages.”

88 Statement of Secretary of State for External Affairs, on second reading of Bill on the Territorial Sea & Fishing Zones, H.G. Deb. (Can.), May 20, 1964, at 3410.

89 H.C. Deb. (Can.), 1960, Vol. IV, at 4709; H.C. Deb. (Can.), 1962–63, Vol. II, at 1699; H.C. Deb. (Can.), 1962–63, Vol. Ill, at 3261. See also Statement of Secretary of State for External Affairs before Senate Standing Committee on Banking & Commerce, May 7, 1964, at 9. (Compare comment of Jessup op. cit. supra note 87, at 108: “It does not seem to have been thought that the fifty-four states which voted for the United States-Canadian proposal might now proceed to ratify a multilateral convention embodying its terms.”

90 H.C. Deb. (Can.), 1963, Vol. I, at 621.

91 Bill S–17.

92 See Reports of the Senate Standing Committee on Banking and Commerce (no. ι of May 7, 1964 and no. 2 of May 13) and minutes of Proceedings & Evidence of the Standing Committee on Marine & Fisheries. There are six reports covering nine meetings on April 30, June 4, 9, 11, 15, 18, 22, 30 and July 2.

93 H.C. Deb. (Can.), May ao, 1964, at 3410.

94 Ibid., 3411.

95 See supra note 3.

96 Convention between the United Kingdom and France respecting Newfoundland and West and Central Africa, signed at London April 8, 1904. Ratifications exchanged December 8, 1904.

97 H.C. Deb. (Can.), May 20, 1964, at 3411.

98 S.C. 1953, 1–2 Eliz. II, c. 15, s. 4. See P.C. 1964 — 1112 of July 17, 1964.

99 Statement of Secretary of State for External Affairs on Third Reading of the Bill, H.C. Deb. (Can.), July 8, 1964, at 5209.

100 The Secretary of State for External Affairs and Minister of Fisheries replied that enactment of the baselines in the Bill would have hindered negotiations and that, as the Bill would provide a legal basis for the international achievement of Canadian aims, its adoption would be a material factor in negotiations under way. See Minutes of Proceedings & Evidence of the Standing Committee on Marine & Fisheries, No. 1, at 33–4 (meeting of June 9, 1964).