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Notre Mer? An Independent Québec's Maritime Claims in the Gulf of St. Lawrence and Beyond

Published online by Cambridge University Press:  09 March 2016

Jeffrey J. Smith
Jeffrey J. Smith*
Affiliation:
Thompson & McConnell, White RockBritish Columbia, Canada
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Summary

The basic fact of Québec as a coastal entity creates interesting questions when considering the implications of its independence. A historical survey of its maritime boundaries further confirms the importance of maritime boundaries for an independent Québec. The author examines Québec's possible claims in the light of recent international law cases and conventions. He also explores the application of various methods of maritime boundary delimitation on (Québec and Canada. Finally, the author explores the possibility of joint sovereignty in the Gulf of St. Lawrence and the application of the condominium concept to Canada and Québec.

Sommaire

Sommaire

La géographie maritime du Québec ouvre des possibilités intéressantes dans le cas de son indépendance du Canada. Un survol historique de ses frontières maritimes révèle clairement l'importance des frontières maritimes pour l'avenir du Québec. L'auteur examine les aspirations du Québec à la lumière de la jurisprudence et des conventions internationales récentes. Ensuite, il évalue l'impact des différentes méthodes de délimitation maritimes pour le Canada et le Québec. Finalement, l'auteur explore la possibilité d'une souveraineté conjointe dans le Golfe du St. Laurent ainsi que l'application du concept de condominium à la situation Canada-Quebec.

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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 35 , 1997 , pp. 113 - 177
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Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 1997 

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References

1 See, e.g., Howard, R., “Quebec Divisible, Chrétien Says,” Globe and Mail (Jan. 30, 1996) A1.Google Scholar

2 See, e.g., Brossard, J., L’accession à la souveraineté et le cas du Québec (Montréal: Les Presses de l’Université de Montréal, 1976).Google Scholar The most comprehensive English language discussion concerning the maritime claims of an independent Québec is found in Charney, Jonathan I., “Maritime Jurisdiction and the Secession of States: The Case of Quebec” (1992) 25 Vand. J. Transnat’l L. 343.Google Scholar

3 “Independence” is applied here neutrally. Quebec might become independent through secession, grant of independence (devolution), or the dissolution of the Canadian federation. For a review of these doctrines, see Jennings, R. Y., The Acquisition of Territory in International Law, 6 ff (Manchester: Manchester Univ. Press, 1963)Google Scholar and Crawford, J., The Creation of States in International Law 9 (Oxford: Clarendon Press, 1979).Google Scholar Consider also Professor Monahan’s use of the phrase “Unilateral Declaration of Independence,” in Monahan, Patrick, “The Law and Politics of Quebec Succession” (1995) 33 Osgoode Hall L.J. 1.CrossRefGoogle Scholar

4 Preliminary predictions about maritime claims in and around the Gulf are depicted in Figures a and 3.

5 Weil, P., The Law of Maritime Delimitation — Reflections (Cambridge: Grotius Press, 1989).Google Scholar Professor Weil writes, at 51–52, that “[m]aritime rights derive from statehood. They are its ‘prolongation,’ ‘extension,’ ‘emanation,’ ‘automatic adjunct.’ They adhere to statehood as his shadow does to man … Whether it is large or small, whether it is endowed with a long coast and a short hinterland or an extensive territory with a short coastline, whether it is a large continental State or a small island State, in every case its statehood gives it the same potential for generating maritime projections under the conditions laid down by international law.”

6 Maritime Delimitation in the Area between Greenland and Jan Mayen, [1993] ICJ Rep. 38 at 74 (para. 80) [hereinafter Greenland-Jan Mayen case]. See also the Continental Shelf (Tunisia v. Libyan ArabJamahiriya) Judgment, [1982] ICJ Rep. 18 at 61 (para. 73) [hereinafter Tunisia-Libya case]: “ [Τ]he coast of the territory of the State is the decisive factor for title to the submarine areas adjacent to it.” And see the Court’s judgment in the Continental Shelf (Libyan Arab Jamahiriya v. Malta), [1985] ICJ Rep. 13 at 30 (para. 27) [hereinafter Libya-Malta case]: “The juridical link between the State’s territorial sovereignty and its rights to certain adjacent maritime expanses is established by means of its coast.”

7 Churchill, R. R. and Lowe, A. V., The Law of the Sea 5–6 (2d ed., Manchester: Manchester University Press, 1988)Google Scholar write that “international custom, as evidenced by a practice generally accepted as law” is composed of two necessary elements: “a general and consistent practice adopted by States” and “the so-called opinio juris — the conviction that the practice is one which is either required or allowed by customary international law.”

8 See ibid, for definitions of these progressive zones of maritime territory and sovereignty.

9 Baselines can be drawn along the mean low water mark of a state’s coast or by straight lines between geographical co-ordinates. For a discussion of baselines see ibid. and see The Law of the Sea, Baselines: National Legislation With Illustrative Maps (New York: UN Office for Ocean Affairs and the Law of the Sea, 1989). Professor Donat Pharand provides a useful summary of Canadian baseline practice in Canada’s Arctic Waters in International Law at 147fr (Cambridge: Cambridge University Press, 1988). See also the Oceans Act, S.C. 1996, c. 31, s. 5.

10 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982 at Montego Bay, in force Nov. 16, 1994, UN Doc. A/CONF. 62/122 (1982) reprinted in (1982) 21 ILM 1245 [hereinafter UNCLOS],

11 Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras: Nicaragua Intervening), Judgment of Sept. 11, 1992, [1992] ICJ Rep. 351 at 380 (para. 28) [hereinafter Gulf of Fonseca case]. Blum, Yehuda Z., Historic Titles in International Law 341–42 (The Hague: Martinus Nijhoff, 1965) stated:CrossRefGoogle Scholar

The term uti posseditis [“as you possess, so you may possess”] should be used with caution in international law. The term is derived from Roman law, in which it was used to denote an edict of the praetor, the purpose of which was to preserve, pending litigation, an existing state of possession of an immovable nec vi, nec dam, nec precario, as between individual claimants. The meaning of this term, when used with regard to international boundaries in Latin America, is somewhat different from that ascribed to it in civil law and is intended to denote permanent rather than temporary possession … In any event, the doctrine of uti posseditis can be considered merely as ‘a principle by which the American Republics have decided to adjust their boundary differences. But in no case has the International Community recognized, as an institution of international law, the principle of uti posseditis … It remains … derogatory to general international law … binding only on those … [who] have, by a convention, expressly agreed to it.’

12 Professor Monahan notes “that the principle uti posseditis has no application to a border or any other territorial dispute between Canada and Quebec. In my view, Quebec’s territorial integrity is not guaranteed under any principle of public international law in the event that it attempts to secede unilaterally from Canada”: Monahan, supra note 3 at 28.

13 See especially Elferink, A. G. O., The Law of Maritime Delimitation: A Case Study of the Russian Federation (London: Martinus Nijhoff, 1995)Google Scholar and Lee Can-field, Jeffrey, “The Independent Baltic States: Maritime Law and Resource Management Issues” (1993) 24 Ocean Dev. & Int’l L. 1.Google Scholar

14 Professor Peter Hogg notes that “[t]he boundaries of a province will be ascertained by reference to the instruments by which the province was initially created or defined, to the terms of union with Canada (where applicable), to any modifications after confederation … and to any judicial decisions on boundaries”: Hogg, P. W., Constitutional Law of Canada, s. 13.3(b)(3d ed, Scarborough: Carswell, 1992).Google Scholar

15 See La Forest, Gérard V., “Canadian Inland Waters of the Atlantic Provinces and the Bay of Fundy Incident,” (1963) Canadian Yearbook of International Law 149 at 150.CrossRefGoogle Scholar

16 de La Fayette, Louise, “The Award in the Canada-France Maritime Boundary Arbitration” (1993) 8 The Int’l J. of Marine and Coastal Law 77,CrossRefGoogle Scholar note 1. See also Morrissette, F., “Le statut du golfe du Saint-Laurent en droit international et en droit interne” (1985) 16 RGD 273 at 295:CrossRefGoogle Scholar “[L]e Traité de Paris de 1763 empêchait les français de pendre poisson à l’intérieur de trois lieues du littoral du golfe du Saint-Laurent.”

17 Poole, A. F. N., “The Boundaries of Canada” (1964) 42 Can. Bar. Rev. 101 at 125Google Scholar (see Figures 1 and 2). For geographic details, see Canadian Hydrographie Services Chart LC 4002.

18 Poole, ibid., 124.

19 (U.K.), 14 Geo. 3, c. 83.

20 Poole, supra note 17 at 121.

21 An Act for the Settlement of Boundaries between the Provinces of Canada and New Brunswick, 1851 (U.K.), 9 & 10 Vic, c. 63. This maritime boundary continues by force of ss. 6, 7 of the British North America Act, 1867 (U.K), 30 & 31 Vic, c. 3. This is one of the earliest maritime boundaries between British colonies and may have been enacted, in part, to regulate fishing in the Bay. See Figure 2.

The application of the Act and the nature of the Bay of Chaleur as internal waters were affirmed in Mowat v. McFee (1880), 5 S.C.R. 66. “Under the [1851 Act], regulating the boundary line between old Canada and New Brunswick, the whole of the Bay of Chaleurs is within the present boundaries of the Provinces of Quebec and New Brunswick, and within the Dominion of Canada and the operation of the Fisheries Act … Therefore the act of drifting for salmon in the Bay of Chaleurs, although that drifting may have been more than three miles from either shore of New Brunswick or of Quebec abutting on the Bay, is a drifting in Canadian waters.”

See also United States-Great Britain, In the Matter of the North Atlantic Coast Fisheries (1910), 4 A.J.I.L. 948 at 984. Jonathan Charney notes this decision “probably fixes the provincial boundary at the closing line described as ‘the line under international law the Light at Birch Point on Mescon Island to Macquereau Point Light’”: “The Offshore Jurisdiction of the States of the United States and the Provinces of Canada — A Comparison” (1983) 12 Ocean Dev. & Int’l L. J. 301 at 330.

22 (U.K), 49 Geo. 3, c. 27. The Act was intended primarily to establish Newfoundland’s courts.

23 (U.K), 6 Geo. 4, c. 59.

24 This was affirmed in the Newfoundland Act, 1809.

25 1840 (U.K), 3 & 4 Vic, c. 35, s. 60. Poole, supra note 17 at 124 notes, erroneously, that the Magdalen Islands were added to P.E.I, in 1840. This Act, apparently never repealed by the Imperial Parliament, is likely spent. In any event, the British North America Act, 1871 (U.K), 34 & 35 Vic, c. 28, s. 3 permits the federal government to alter provincial boundaries only with the consent of an affected province.

26 See Brun, H., Le Territoire du Québec 233 (Ville de Québec: Les Presses de l’Université Laval, 1974):Google Scholar “Canadian law obliges us to conclude that the territory of Quebec in 1867 terminated at the coast. Quebec did not enter Confederation seized with a territorial sea … its territory terminated at the low water mark. Nothing, definitively, allows us to think differently” [translation with notes omitted]. It should be noted that Quebec did possess certain waters now defined as “internal” and “inland,” such as those within harbours and estuaries.

In 1867 the legal concept of exclusive territorial waters was in its infancy, although international law generally recognized zones of sovereignty adjacent to a coast. The Territorial Waters Jurisdiction Act, 1878 (U.K.), 41 & 42 Vic, c. 73 enacted the “cannonshot principle” of a territorial sea. See Churchill and Lowe, supra note 7 at 59 ff.

27 Linteau, P., Durocher, R., and Robert, J., Quebec: A History (1867–1929) (Toronto: James Lorimer & Co., 1983) 387,Google Scholar note “[t]he colonization movement con-tinued to open up new areas of Quebec after 1896.”

28 See An Act Respecting the North-western, Northern and North-eastern boundaries of the Province of Quebec, SC 1898, c. 3. The requirements of the British North America Act, 1871, supra note 25, for provincial consent to boundary modifications are noted in the 1898 Act.

29 An Act to Extend the Boundaries of the Province of Quebec, S.C. 1912, c. 45.

30 See In re Labrador Boundary, [1927] 2 D.L.R. 401, 137 L.T.R. 187. P. Linteau et al, supra note 27 at 8 remark that “[t]he Privy Council decision is still a subject of debate, and Quebec wants to reopen the case.”

31 P. Linteau et al, ibid., 8, write in respect of Quebec’s changing territory that “[i]t should be stressed that all these additions to or subtractions from the territory of Quebec were imposed by outside governments, in London and in Ottawa; in other words, Quebec has never really had control over the formation of its territory. In addition, it is clear that in some cases the central government hesitated seriously before allowing Quebec’s borders to be extended … The question of Labrador also shows the federal government’s reticence about extending Quebec’s borders; in 1927 it was Ottawa’s responsibility to protect the interests of Quebec and Canada against the claims of Newfoundland, at that time still a separate dominion.”

32 1931 (U.K.), 22 Geo. 4, c. 4, s. 3: “It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial application.”

33 Newfoundland Act, 1949 (U.K.), 12–13 Geo. 6, c. 22.

34 Prime Minister Louis St. Laurent announced shortly before Newfoundland’s union with Canada that “[w]e intend to contend, and hope to be able to get acquiescence in the contention that the waters west of Newfoundland constituting the Gulf of St Lawrence shall become an inland sea. We hope that, with Newfoundland as part of Canadian territory, the Gulf of St. Lawrence west of Newfoundland will all become territorial waters of Canada”: House of Commons Debates (Feb. 8, 1949) at 368.

This was affirmed by the Diefenbaker government (House of Commons Debates (Nov. 14, 1957) at 1168-9) and by the Trudeau government (House of Commons Debates (Mar. 7, 1975) at 3884). The nature of the Gulf as an historic bay is discussed below.

35 The Canadian regimes of internal and inland waters must be distinguished. “Internal waters,” landward of maritime baselines, are defined in the Oceans Act, S.C. 1996, c. 31, s. 6.

The Canada Shipping Act, R.S.C. 1985, c. S-9, defines “inland” waters as including the St. Lawrence River estuary west of a “straight line drawn (a) from Cap des Rosiers to West Point Anticosti Island, and (b) from Anticosti Island to the north shore of the St. Lawrence River along the meridian of longitude sixty-three degrees west.” These two closing lines are shown in Figure 2.

36 Hogg, Constitutional Law of Canada, supra note 14 at s. 13.3 (b). See also In Re Provincial Fisheries, [1897] 26 S.C.R 444 at 444: “The beds of public harbours not granted before confederation are the property of the Dominion of Canada … The beds of all other waters not so granted belong to the respective provinces in which they are situate, without any distinction between the various classes of waters.” Sir Henry Strong C.J. states, at 514: “At the time of confederation the beds of all lakes, rivers, public harbours and other waters within the territorial limits of the several provinces which had not been granted by the Crown were vested in the Crown as representing the provinces respectively.”

37 La Forest, G. V., “Les droits de propriété du Québec sur ses eaux,” in Brossard, J. et al, Le Territoire Québécois 105 at 150 (Montréal: Les Presses de l’Université de Montréal, 1970).Google Scholar

38 S.C. 1964, c. 22. Section 3 provides that the territorial sea of Canada extended 3 nautical miles seaward of baselines defined in s. 5. The Act was a consolida-tion of amendments to the Customs Act, S.C. 1936, c. 30, which defined Canadian waters for customs purposes.

39 Jonathan Charney wrote in 1983 that “[t]he question of provincial jurisdiction in the adjacent seas of Canada appears to be an open political question and perhaps even an open legal question for all the provinces except, perhaps, British Columbia": “The Offshore Jurisdiction of the States of the United States and the Provinces of Canada — A Comparison,” supra note 21 at 306. Professor Charney compares Canadian provincial maritime claims with American seaward boundary delimitation practice under the Submerged Lands Act, 43 USC, ss. 1301–14 (1953).

40 See especially Charney, supra note 2 at 397.

Paul Evans notes that “[t]he final decision of this Conference was to reaffirm the Premiers’ position of provincial responsibility for the mineral rights and possible oil and gas deposits on the Continental Shelf. In order to strengthen their case, the Premiers drew up a map, outlining the extent of each province’s ownership. In order to secure their position on ownership with the federal government, they decided to involve the other provinces, (except Alberta and Saskatchewan). Each of these provinces would recognize each other’s offshore claim. (The Atlantic Provinces secured the agreement of Manitoba and Ontario in this way by supporting the [interprovincial] division of Hudson Bay)”: Report on Atlantic/Maritime Interprovincial Cooperation Between 1950 and 1971 100 (Halifax: Dalhousie Univ., Apr. 1985). See also Charney, supra note 21 at 330.

41 Charney, supra note 2 at 397.

42 Professor Charney, ibid., 398 concludes that “the maritime provinces and Québec appear to agree generally on the location of the boundaries between their maritime claims in the Gulf of SL Lawrence area. [However,] this agreement has questionable legal status because Canada has never legislatively implemented the agreement Furthermore, the Canadian government denies the provinces jurisdiction over most, if not all, of the area of interest.”

43 Ibid., 398, note 213. See Figure 1.

44 The equidistant lines in the Gulf of St. Lawrence between Québec and the three Maritime provinces were drawn from prominent geographic features.

45 The 1977 agreement was styled “Memorandum of Understanding in Respect of the Administration and Management of Mineral Resources Offshore of the Maritime Provinces.”

46 Charney, supra note 2 at 397. The 1977 agreement was concluded only between Nova Scotia, New Brunswick, Prince Edward Island, and the federal government.

See also Harrison, Rowland, “The Offshore Mineral Resources Agreement in the Maritime Provinces” (1978) 4 Dalhousie L.J. 245:Google Scholar “In summary, the [1977] Understanding sets aside the competing claims to jurisdiction by Canada on the one hand and the Provinces on the other; provides that the Federal Parliament and the provincial legislatures will be asked to implement an administrative and management regime by joint legislative action; provides for the joint constitution of a Maritime Offshore Resources Board to issue rights in respect of off-shore mineral resources … and evidences the agreement of the parties that direct revenues… will be shared on the basis of 25 per cent to Canada and 75 per cent to the adjacent province, subject to a regional revenue sharing pool.”

47 Charney, supra note 21 at 329. Conclusion of the agreements was contrary to the “expansionistic” aims of Quebec during the preceding decade. It is likely that they were part of a larger effort to clarify and even limit the seaward boundaries of the provinces. Charney adds at 329: “I understand that Quebec along with Manitoba and Ontario have submitted several proposals to the federal government seeking a political decision to extend their northern boundaries to the middle of James and Hudson Bays.”

48 Reference Re Off-Shore Mineral Rights of B.C., [ 1967] S.C.R 792, (sub nom. Reference Re Ownership of Off-shore Mineral Rights) (1968), 65 D.L.R. (2d) 353 [hereinafter Re Offshore Mineral Rights of B.C. cited to S.C.R.]; Reference Re the Seabed and Subsoil of the Continental Shelf Offshore Newfoundland, [1984] 1 S.C.R. 86,5 D.L.R. (4th) 385 [hereinafter Newfoundland Reference cited to D.L.R.]; Reference Re Ownership of the Bed of the Strait of Georgia and Related Areas, [1984] 1 S.C.R. 388 (sub nom. A.G. Can. v. A.G. B.C. et al.), [1984] 4 W.W.R. 289 [hereinafter Georgia Strait Reference cited to S.C.R.].

49 This is referred to as the doctrine in R. v. Keyn ( 1876), 2 Ex. D. 63 (hereinafter Franconia case). The court held that the territory of the realm, absent express extension, terminated at the low water mark about the United Kingdom’s shores. The refusal of the court to find British sovereignty over a three mile coastal sea resulted in the enactment of the Territorial Waters Jurisdiction Act, 1878, supra note 26.

50 Re Offshore Mineral Rights of BC, supra note 48 at 814.

51 In 1970, Canada extended its territorial sea to 12 nautical miles. See An Act to Amend the Territorial Sea and Fishing Zones Act, R.S.C. 1970, c. 45, s. 3 and Territorial Sea and Fishing Zones Act, R.S.C. 1985, c. T-8. See now the Oceans Act, S.C. 1996, c. 31.

52 Re Offshore Mineral Rights of B.C., supra note 48 at 816–17.

53 Newfoundland Reference, supra note 48 at 390.

54 Ross Hornby notes that Newfoundland was “the province with perhaps the strongest claim to jurisdiction over the offshore”: Hornby, R., “The Canadian Laws Offshore Application Act: The Legislative Incorporation of Rights over the Continental Shelf” (1991) Canadian Yearbook of International Law 55 at 356.Google Scholar

The Newfoundland Court of Appeal determined earlier that Newfoundland had continuing jurisdiction over a territorial sea and continental shelf: Reference Re Mineral and Other Natural Resources of the Continental Shelf (1983), 145 D.L.R. (3d) 9 (Nfld. C.A.). The claim to a territorial sea was not raised on subsequent appeal to the Supreme Court of Canada.

55 Geneva Convention on the Continental Shelf, Apr. 29, 1958, 499 UNTS 311, ND 1 at 101 (CIF, June 10, 1964).

56 Constitution Act, 1982 being Schedule Β to the Canada Act (U.K.), 1982, c. 11. Scholarly comment on the decision in Newfoundland Reference, supra note 48, supports the reasoning of the Court. “This characterization is surely correct The right to explore and exploit the natural resources of the continental shelf is in substance a right to exercise a limited sovereignty over a new territory. As such it is a form of annexation, one of the classic incidents of external sovereignty”: Sullivan, R. E., “Interpreting the Territorial Limitations on the Provinces” (1985) 7 Supreme Court L. Rev. 511 at 523.Google Scholar See also Moull, W. D., “Newfoundland Resources: The Supreme Court Strikes Again” (1985) 7 Supreme Court L. Rev. 419.Google Scholar

57 Georgia Strait Reference, supra note 48 at 391. This area includes the Strait of Juan de Fuca, Haro Strait, Georgia Strait, and Johnstone Strait. See Canadian Hydro-graphic Service Charts 3000 and 3001. In a similar Australian context, see New South Wales v. The Commonwealth (Australian Seas and Submerged Lands Case) (l975), 50 A.L.J.R. 218, 135 C.L.R. 337 (Aust H.C.).

58 In Georgia Strait Reference, ibid, at 451, Wilson, J.Google Scholar argued in dissent that the 1846 Oregon boundary treaty did not define seabed sovereignty to justify a departure from the common law presumption that a colony’s territory is limited to the low water mark at its coast, as the Court held earlier in Re Offshore Mineral Rights of B.C., supra note 48.

59 See Moull, supra note 56 at 428. See also Finkle, P. and Lucas, A., “The Concept of the British Columbia Inland Marine Zone” (1990) 24 U.B.C. L. Rev. 37 at 52:Google Scholar “The fact that the Supreme Court of Canada did not go further to clearly establish the right to an inland marine zone for all coastal provinces regardless of their historic circumstances raises the prospect of further litigation to defend such claims. This is unfortunate because the concept [of a provincial maritime area], if it had been fully vindicated, would have been a convenient means to place the provinces on an equal footing with regard to their maritime claims without legislation.”

60 See Charney, supra note 2 at 401–25 for a description of Québec’s present boundaries in James Bay, Hudson Bay, and the Hudson Strait.

61 An independent Quebec might argue that, before the 1713 Treaty of Utrecht and the 1763 Royal Proclamation, New France had been seized solely of the waters in the Gulf of St. Lawrence and that a measure of historic title thus remains. Such reasoning would be tenuous, since the right, if it ever existed (and it did not in respect of submarine resources), would have been extinguished by passage of time.

62 S.C. 1996, c. 31 (CIF, Jan. 31, 1997). The Act repeals the Canadian Laws Offshore Application Act and the Territorial Sea and Fishing Zones Act. The Territorial Sea and Fishing Zones Regulations continue to apply.

63 See supra note 45 and accompanying text. See especially McDorman, T. L., “Canadian Offshore Oil and Gas: Jurisdiction and Management Issues in the 1980s and Beyond,” in McRae, D. and Munro, G., eds., Canadian Oceans Policy: National Strategies and The New Law of The Sea 39 (Vancouver: UBC Press, 1989).Google Scholar

64 S.N.S. 1986, c. 37.

65 S.C. 1988, c. 28. Preceding these legislative arrangements was an agreement in 1982 between the federal government and the government of Nova Scotia for oil and gas resource management and revenue sharing. Jonathan Charney notes that the agreement used, in part, a map delimiting the Gulf of St. Lawrence that is markedly similar to the one agreed upon in 1964. See Charney, supra note 2 at 398. The Act provides specifically for continental shelf delimitation between Nova Scotia and other provinces.

66 S.N. 1986, c. 37.

67 S.C. 1987, c. 3. See also the Hibernia Development Act, S.C. 1990, c. 41.

68 Charney, supra note 2 at 398. See also Figure 2.

69 S.C. 1990, c. 44 (CIF, Feb. 4, 1991. Section 7 was to CIF by order of Governor-in-Council).

70 R. Hornby, supra note 54 at 355–56.

71 Supra note 62.

72 Section 3 of the Act, supra note 69, also codified the judgment of the Supreme Court of Canada in Re Offshore Mineral Rights of B.C. and Newfoundland Reference, supra note 48.

73 See now s. 20 of the Oceans Act, supra note 62.

74 See 43 U.S.C., ss. 1331-34 (1953) and Continental Shelf Act, 1964 (U.K.), c. 29.

75 See s. 5 of the Oceans Act, supra note 62, which provides for baselines encompassing historic waters including, impliedly, those of the Gulf of St. Lawrence. The Act also permits the Minister of Foreign Affairs to issue a certificate as conclusive evidence that historic waters are internal to Canada. The first such certificate, issued in 1991 under the former Canadian Laws Offshore Application Act, stated that the waters of the Gulf of St. Lawrence were internal waters. See especially Hornby, supra note 54 at 360. Professor Morrissette reviews the previous uncertain application of Canadian law within the Gulf of St.Lawrence, in “La statut du golfe du Saint-Laurent en droit international et en droit interne” (1985) 16 R.G.D. 273.Google Scholar See also R. c. Paul Frank Watson, Cour de la sessions de la paix, Province de Québec, District de Gaspé, n° 110-01-000306-83.

76 See Oceans Act, supra note 62, s. 9. This section is in effect with the arrival of the Hibernia platform at its ocean drilling site in June 1997. In addition to the Hibernia Project, two other oilfields are under study off Newfoundland: Jang, B., “Oil Projects Put Spotlight on Newfoundland,” Globe and Mail (Dec. 27, 1996)Google Scholar B1.

77 Supra note 62.

78 Hornby, supra note 54 at 368.

79 Pursuant to s. 2(2) (c) of the Act, supra note 69.

80 Hornby, supra note 54 at 368. Further, at 369: “The Act provides no guidance to the Governor in Council on when to exercise this power to abandon equidistance. One plausible situation would be where the equidistance method would produce inequitable results in a delimitation between sovereign states effected in accordance with principles of international law.”

By way of comparison, international legal principles in the setting of a domestic boundary were applied by the United States Supreme Court in Texas v. Louisiana, 426 U.S. 465 (1976).

81 Supra note 62. “[T]his section shall not be interpreted as providing a basis for any claim, by or on behalf of a province, in respect of any interest in or legislative jurisdiction over any area of the sea”: see also s. 9(2).

82 The condition precedent to the exercise of maritime sovereignty is statehood, the classic incidents of which are a permanent population, defined territorial expanse, an existing government, and a capacity to enter into relations with other states. These principles are embodied in the Montevideo Convention of 1933, Art. l, 165 LNTS 19. See also Crawford, J., The Creation of States in International Law 36 ff (Oxford: Clarendon Press, 1979)Google Scholar and Dugard, J., Recognition and the United Nations 127 (Cambridge: Grotius Publications, 1987).Google Scholar

The criterion of “effective independence” from a central government should also be added, otherwise all Canadian provinces might be recognizable as sovereign states under customary international law: Crawford, ibid., 232.

83 North Sea Continental Shelf (Federal Republic of Germany/Denmark and Federal Republic of Germany/Netherlands) [1969] ICJ Rep. 3; 41 ILR 29 [hereinafter North Sea Continental Shelf cases cited to ICJ Rep.].

84 Brossard, supra note 2. Interestingly, Brossard notes, at 503, that Québec might also seek an adjustment of the Gulf’s 1964 interprovincial marine boundary (“ligne de partage”), stating that certain commentators “have judged that it favours … New Brunswick and Prince Edward Island to the detriment of Quebec” [translation].

85 The debate over the territory with which Québec would remain seized upon independence focused first upon Aboriginal lands in the northern reaches of the province. The debate has shifted recently to partition of areas within the province that might choose to remain with Canada. Should there be any consideration of partition of the littoral areas around the Gulf, possibly allowing more of its maritime area proper to remain within Canada, it should be noted that the electoral areas of Québec around the Gulf of St Lawrence indicated a strong desire for secession in the October 1995 sovereignty referendum. See Winsor, H., “Poll Results Challenge Old Notions,” Globe and Mail (Nov. 1, 1995)Google Scholar A5. If only from a spatial perspective, it would benefit the federal government if the Magdalen Islands could be partitioned from an independent Québec.

86 Charney, supra note a at 355–66. This reasoning heightens the requirement for a pre-independence negotiation of boundaries, as noted by Brossard, supra note 2. Professor Charney concludes that “the doctrine [of uti posseditis] might deny the new state the full complement of maritime zones.” Enhancing Canada’s claim to all waters of the Gulf of St. Lawrence is the de fado shift of its internal waters boundary line from the mouth of the St. Lawrence River to the Gulf closing line across the Cabot Strait. See Figure a and Canadian Hydro-graphic Services Charts LC 4001 and 4002.

While a different legal and geographical context, it should be noted that the People’s Republic of China continues to claim sovereignty over maritime areas adjacent to the Island of Taiwan. See “Declaration of the Government of the People’s Republic of China on China’s Territorial Sea 4 September 1958” in The Law of the Sea, supra note 9 at 104.

87 Crawford, supra note 82 at 48. Further, “A new State formed by secession from a metropolitan State will have to demonstrate substantial independence, both formal and real, before it will be regarded as definitively created”: ibid., 58–53.

88 See generally ibid., 48–76 for a discussion of the requisites of independent statehood.

89 Ibid., 397. This view is supported by Jonathan Charney in the situation of Québec, supra note 2 at 426: “The law of the sea reflects a strong policy in favour of the right of coastal states to the normal complement of maritime zones, subject to appropriate boundaries.”

90 See, e.g., Canfield, J. L., “The Independent Baltic States: Maritime Law and Resource Management Issues” (1993) 24 Ocean Dev. & Int’l L. 291.Google Scholar Churchill and Lowe, supra note 7 at 68, note the operation of customary international law in providing at least a territorial sea to a coastal state: “The notion of a territorial sea automatically appurtenant to coastal States, which has been expressed by the Permanent Court of Arbitration in the Grisbadarna case as early as 1909, is also implicit in both the 1958 Territorial Sea Convention … and the Law of the Sea Convention … It follows, therefore, that international law should lay down a minimum breadth for the territorial sea … The time may come, however, when customary international law moves beyond the Law of the Sea Convention and regards twelve miles not merely as the maximum, but as the minimum, mandatory limit for the territorial sea” [emphasis in original].

91 Supra note 6 at 57 (para. 43). “[T]he two lines [delimiting the EEZ and the continental shelf, respectively], even if coincident in location, stem from different strands of the applicable law, the location of the one being derived from the 1958 Convention, and the location of the other being derived from customary law.”

The customary nature of continental shelf and EEZ rights was affirmed by the Court of Arbitration in the St. Pierre and Miquelon case, infra note 129. See Figure 2. See also Vasciannie, S. C., Land-Locked and Geographically Disadvantaged States in the International Law of the Sea 68 (Oxford: Clarendon Press, 1990):Google Scholar “Even on the basis of a very cursory review, it can be established that the EEZ concept is now firmly enshrined in customary international law … coastal State proclamations in favour of the EEZ and similar zones have grown to the point where States without exclusive jurisdiction and sovereign rights over maritime fisheries beyond the twelve-mile territorial sea find themselves in a highly exceptional situation” [citation omitted].

92 Supra note 10.

93 Canada was an initial proponent of UNCLOS and is a state signatory. Alan MacEachern, Canada’s minister for external affairs at the time, stated to the I ith session of the Third United Nations Conference of the Law of the Sea on Dec. 6, 1982: “The Convention sets out a broad range of new rights and responsibilities. If States arbitrarily select those they will recognize or deny, we will not only see the end of our dreams of a universal comprehensive conven-tion on the law of the sea but perhaps the end of any prospect for global cooperation on issues that touch the lives of all mankind … The United Nations Convention on the Law of the Sea, and that alone, provides a firm basis for the peaceful conduct of ocean affairs for the years to come”: Third United Nations Conference on the Law of the Sea Official Records: Vol. XVII (New York: UN, 1984) at 16 (para. 74).

94 Vienna Convention on the Law of Treaties, May 23, 1969, (1980) UKTS 58, reprinted in Reuter, P., Introduction to the Law of Treaties (London: Pinter Publishers, 1989).Google Scholar

95 Art 18, ibid. at 169 further requires that “a state is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

  • (a) it has signed the treaty … subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

  • (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treatyand provided that such entry into force is not unduly delayed.”

96 Reuter, supra note 94 at 87 (para. 173).

97 Aug. 23, 1978.

98 Reuter, supra note 94 at 87 (para. 172).

99 UNCLOS, supra note 10. See also Art 5 “Normal baseline” and Art. 7 “Straight baselines.”

100 Art. 15 further reads: “[This] provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.”

101 See also UNCLOS Arts. 55 and 56. Canada now claims an EEZ in place of an “Exclusive Fishery Zone.” See Oceans Act, supra note 62, s. 13.

102 See especially Greenland-Jan Mayen case, supra note 6 at 79 (para, 90): “In the view of the Court, the delimitation now to be described, whereby the position of the delimitation lines for the two categories of marine spaces is identical, constitutes, in the circumstances of this case, a proper application both of the law applicable to the continental shelf and of that applicable to the fishery zones.” In a separate concurring opinion, Judge Oda, vice president of the Court, expressed concern over delimiting two separate maritime areas into a single boundary: “One cannot presuppose a single delimitation line for two separate and independent régimes, the exclusive Economie zone and the continental shelf, although the possibility of an eventual coincidence of the two lines may not be excluded”: ibid., 109 (para. 70).

103 Supra note 10. Further, Article 77(2) and (3) provides that such rights are “exclusive” and that they “do not depend on occupation, effective or notional, or on any express proclamation.” As well, Art. 83(1) requires delimitation of the continental shelf in accordance with equitable principles.

The Court in the North Sea Continental Shelf cases (1969), ICJ Rep. 3 at 23 held that “ [t] he rights of the coastal state in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short there is here an inherent right.”

104 Geneva Convention on the Continental Shelf, supra note 55. Canada ratified the Convention on Feb. 6, 1970.

105 Canada has affirmed UNCLOS’s role in international maritime law by declaring in 1994 that it would ratify the Convention. See House of Commons Debates (Mar. 15, 1994) at 2255.

106 L. A. Willis has written that “[t]here are no legally preferred methods” of maritime boundary making: “From Precedent to Precedent: The Triumph of Pragmatism in the Law of Maritime Boundaries” (1986) 24 Canadian Yearbook of International Law 1 at 48. It is submitted that more certain principles have emerged in three judgments rendered in 1992–93. Jonathan Charney writes that, as a result of these judgments, “[t]he Court is now in a position to make further contributions that will promote greater consistency and certainty in these matters”: “Progress in International Maritime Boundary Delimitation Law” (1994) 88 A.J.I.L. 227 at 256.

The lengthy Canadian Memorials and Counter-Memorials filed before the Arbitration Court in the Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States), [1984] ICJ Rep. 246 are typical of the arguments submitted by parties in a maritime boundary adjudication.

107 The Adriatic, Baltic, and Black Seas are examples of semi-enclosed seas that have been delimited by negotiation. Their delimitation is discussed infra notes 117–24 and accompanying text.

108 Paul Bravender-Coyle notes that “there is an emerging general rule for the delimitation of maritime boundaries between littoral states, and that customary international law is slowly evolving towards this formula”: “The Emerging Legal Principles and Equitable Criteria Governing the Delimitation of Maritime Boundaries between States” (1988) 19 Ocean Dev. & Int’I L. 171.

The ICJ appears to have considered the unsetded state of opinio juris in the Greenland-Jan Mayen case, supra note 6 at 63 (para. 58): “A court called upon to give a judgment declaratory of the delimitation of a maritime boundary, and a fortiori a court called upon to effect a delimitation, will therefore have to determine the relative weight to be accorded to different considerations in each case; to this end, it will consult not only ‘the circumstances of the case’ but also previous decided cases and the practice of States. In this respect, the Court recalls the need, referred to in the Libya/Malta Case, for ‘consistency and a degree of predictability’” [parenthetical note omitted].

109 Charney, J. I., “Progress in International Maritime Boundary Delimitation Law.” supra note 106 at 228.Google Scholar

110 Jagota, S. P. summarizes ocean boundary agreements in Maritime Boundary 121ff (Dordrecht: Martinus Nijhoff, 1985).CrossRefGoogle Scholar

111 Professor Phillip Saunders sums up the problem of a geographically oriented approach to boundary delimitation in writing that “ [t]he result… is a body of law which is oriented to spatial rather than functional aspects of delimitation … If there is a fundamental lesson for other states in the Gulf of Maine Case, it may simply be the unsuitability of litigation for the full resolution of similar disputes”: “The Gulf of Maine Boundary Decision: International Adjudication and Regional Marine Management” (1985) 1 Int’l. Insights 1 at 5–6.

112 Supra note 10. Art. 122 defines an “enclosed or semi-enclosed sea” to include a gulf “surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive Economie zones of two or more coastal States.” Art. 123 provides that “States bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights” with particular attention to living resources, marine environmental protection, scientific research, and multilateral relations.

113 “The predominant feature of Canada’s bilateral maritime boundary practice has been the failure of negotiations to resolve outstanding disputes and the willingness of Canada to utilize adjudication to draw bilateral maritime boundaries”: McDorman, T. L., Canada’s Ocean Limits and Boundaries: An Overview 24 (Victoria: Univ. of Victoria Faculty of Law, 1995)Google Scholar [unpublished]. See also Cairns, Alan C., Looking into the Abyss: The Need for a Plan C, CD. Howe Institute Commentary 96 at 3 (Toronto: CD. Howe Institute, 1997):Google Scholar “Federalists may not be able to keep Quebec in Canada; if Quebec goes, Canadians and their governments in the rest of Canada (ROC) may mismanage the terms of secession, making more difficult a subsequent harmonious coexistence with an independent Quebec.”

114 Specifically by the 1992 judgment of the ICJ in the Gulf of Fonseca case, supra note 11.

115 An equidistant boundary is defined as “[a] line composed of relatively short segments connecting points that are equidistant from the normal baselines, or from claimed (or assumed) baselines from which the breadth of the territorial sea is measured. This is sometimes called a median line”: Charney, J. I. and Alexander, L. M., eds., International Maritime Boundaries 19 (Dordrecht: Martinus Nijhoff, 1993).Google Scholar Two equidistance lines between Québec and Canada in the Gulf of St. Lawrence are shown in Figure 2. The northern line indicates a simplified equidistance line that discounts fully any effect of the Magdalen Islands. The southern line conforms to the division agreed upon by the Atlantic premiers in 1964, giving full effect to the Magdalen Islands.

116 Agreement between the Government of Canada and the Government of the Kingdom of Denmark Relating to the Delimitation of the Continental Shelf between Greenland and Canada, Dec. 17, 1973, Can. T.S. 1974 No. 9 (CIF, Mar. 13, 1974 ). Art I reads: ‘ ‘The dividing line in the area between Greenland and the Canadian Arctic Islands, established for the purpose of each Party’s exploration and exploitation of the natural resources of that part of the continental shelf… is a median line which has been determined and adjusted by mutual agreement.” The delimitation is in accordance with Art. 6 of the Geneva Convention on the Continental Shelf, supra note 55.

117 See Protocol between the Government of the Union of Soviet Socialist Republics and the Government of the Republic of Turkey Concerning the Establishment of the Maritime Boundary between Soviet and Turkish Territorial Waters in the Black Sea, Apr. 17, 1973 in The Law of the Sea: Maritime Boundary Agreements (1970–1984) 191 (New York: UN Office for Ocean Affairs and the Law of the Sea, 1987).

118 Agreement between Italy and Yugoslavia Concerning the Delimitation of the Continental Shelf between the Two Countries in the Adriatic Sea, Jan. 8, 1968 in Maritime Boundary Agreements (1970–84), ibid., 186. The equidistance line was modified to account for certain islands near the middle of the Adriatic Sea. Islands close to the Dalmatian Coast of Yugoslavia were given full effect in the generation of baselines. With the dissolution of the former Yugoslav Republic, the present status of this agreement is unknown.

119 Elferink, supra note 13 at 373.

120 The application of equidistance is synonymous with the drawing of a median line.

121 Jonathan Charney notes that “[j]udgments of the International Court of Justice (ICJ) and awards of ad hoc arbitration panels carry special weight in international maritime boundary law … Negotiated settlements, however, should be more influential since, in theory, a principal source of maritime boundary law ought to be customary international law grounded upon state practice as represented by the many various elements. But this practice does not seem to be very instructive and, thus, is less influential than the adjudications”: Charney, supra note 106 at 227–28.

122 Legault, L. and Hankey, B., “Method, Oppositeness and Adjacency, and Proportionality in Maritime Boundary Delimitation,” in Charney, J. I. and Alexander, L. M., eds., International Maritime Boundaries, supra note 115, 203Google Scholar at 215.

123 Supra note 6. The ICJ wrote in the Greenland-Jan Mayen case, at 66 (para. 64), that “[p]rima facie, a median line delimitation between opposite coasts results in general in an equitable solution, particularly if the coasts in question are nearly parallel.” This statement follows the reasoning of the Court in the North Sea Continental Shelf cases that an equitable solution between opposite coasts can often be achieved by use of an equidistant line: supra note 83 at 36 (para. 37).

124 Legault and Hankey, supra note 122 at 215 note that equidistance was used in 89 per cent of 62 instances of opposing state boundary delimitation. One-half followed a strict equidistance line (as in the Black Sea between Turkey and Russia) and one-half used a modified equidistance line (as in the Adriatic Sea between Italy and the former Yugoslav Republic).

125 Supra note 122 at 215. In this category, 86 per cent of bilateral agreements use equidistance “for a substantial portion of the boundary”: ibid., 216.

126 Tunisia-Libya case, supra note 6 at 79 (para. 110). See also Guinea/Guinea Bissau Maritime Boundary Arbitration (1985), [1986] 25 ILM 251, where the adjacent coastlines of the parties projected into the Atlantic Ocean in a convex manner. The delimitation line chosen was a perpendicular drawn outward from the general direction of the coasts of six African states.

127 Delimitation of the Maritime Boundary in the Gulf of Maine Area Judgment (Canada v. United States), [1984] ICJ Rep. 246 [hereinafter Gulf of Maine case]. The boundary consists of three segments: a modified equidistant line between Maine and Nova Scotia at the entrance to the Bay of Fundy, a short median line between the opposing coastal fronts of Cape Cod and Cape Sable, and a perpendicular drawn outward from the closing line of the Gulf of Maine.

128 “It is now commonplace that every maritime delimitation is a unicum and can be determined only in the light of the factors particular to each case”: Evans, M. D., “Less Than an Ocean Apart The St Pierre and Miquelon and Jan Mayen Islands and The Delimitation of Maritime Zones,” (1993), 43 ICLQ 678 at 690.CrossRefGoogle Scholar

129 Supra note 6. See also Case Concerning the Delimitation of the Maritime Areas Between Canada and France (1992), 31 ILM 1149 [hereinafter St. Pierre and Miquelon case]. See also Figure 2.

130 Gulf of Maine casc, supra note 127. See especially paragraphs 208 to 221 of the judgment, justifying the drawing of the northern two segments of the delimitation line.

131 Supra note 83.

132 Miyoshi, Masahiro, Considerations of Equity in the Settlement of Territorial and Boundary Disputes 13 (Dordrecht: Martinus Nijhoff, 1993)Google Scholar [endnote omitted].

133 Supra note 83 at 53 (para. 101). Two schools of thought have considered the application of the Continental Shelf Convention. The first, exemplified by Professor Prosper Weil of France, contends that delimitation is to commence with the drawing of an equidistant or median line and is only then to account for equitable considerations in its adjustment. The opposing school argues that all principles have equal weight in a delimitation, with equidistance having no special status. The latter won the day in the drafting of UNCLOS EEZ and continental shelf provisions, with Arts. 74 and 83 reading “[t]he delimitation of the [EEZ and continental shelf] between states with opposite or adjacent coasts shall be effected on the basis of international law, as reflected in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.”

134 Supra note 6 at 57–79 (paras. 44-90). Note also the separate opinion of Judge Oda, ibid., 108 (para. 70): “In the absence of an agreement between the States concerned, one cannot presuppose a single delimitation for two separate and independent régimes, the exclusive Economie zone and the continental shelf, although the possibility of an eventual coincidence of the two lines may not be included.”

On the trend towards a single maritime boundary for EEZs and continental shelves, see Oxman, B. H., “Political, Strategic, and Historic Considerations” in Charney, J. I. and Alexander, L. M., eds., supra note 115 at 35Google Scholar and Charney, supra note 106 at 246.

135 “The sine qua non of a delimitation is the basic and often unarticulated premise that there must be an area over which each party in dispute claims sole jurisdiction”: Evans, M. D., Relevant Circumstances and Maritime Delimitation 64 (Oxford: Clarendon Press, 1989).Google Scholar Evans identifies three components of a maritime area for consideration: (1) “Area for the delimitation” — the area through which the delimitation will be made; (2) “The relevant coasts” — generally, the coastline fronting upon the relevant area; and (3) “The relevant framework” — “just as coasts outside the delimitation area influence the delimitation, features and factors derived from a wider area also influence it”: ibid., 68.

136 See Figures 1 and 2, and Canadian Charts LC 4001 and 4002.

137 Hypothetical closing baselines within the Gulf are shown in Figure 2. The maritime “boundary” in the Bay of Chaleur and the St Lawrence River inland waters closing lines would also be considered. See Figure 2.

Baselines may be used as a matter of customary international law to close “juridical bays” (and rivers) with mouths less than 24 nautical miles in width. See Westerman, G. S., The Juridical Bay (New York: Oxford Univ. Press, 1987)Google Scholar and Art. 7, “Straight Baselines,” UNCLOS, supra note 10.

Baselines to smooth the coasts of an independent Québec and the Canadian maritime provinces abutting the Gulf would be drawn at this stage. Two such baselines, the Gulf closing lines for the (former) Canadian EFZ, already exist and are depicted on Canadian Charts LC 4001 and 4002. Baselines enclosing internal waters must follow the general direction of the coast to be consistent with international practice. It is possible that Canada might choose to close Northumberland Strait between P.E.I, and Nova Scotia with the use of baselines. Such a suggestion was advanced by the arbitral tribunal in the North Atlantic Coast Fisheries Arbitration Case of 1910 (Proceedings: Washington, 1912). Professor La Forest once remarked that “under [the rule of straight baselines] Canada could easily claim the Northumberland Strait as inland waters”: supra note 15 at 169. Application of this Canadian practice might allow Québec to draw straight baselines enclosing the Magdalen Islands and the Cartier Strait north of Anticosti Island.

138 This would tend to bring a juridical analysis closer to the initial use of an equidistance line proposed by the ICJ in the Greenland-jan Mayen case, supra note 6 at 66 (para. 64ft]. R. R. Churchill remarks that “[t]he court decided that what it should do, in the case of both a continental shelf and a fishery zone boundary, was to start with the median line as the provisional boundary and then see whether such a line required any adjustment in the light of special circumstances (as regards the continental shelf boundary) or relevant circumstances (as regards the fishery zone boundary), with the aim in each of these being to reach an equitable result”: “The Greenland-jan Mayen Case and its Significance for the International Law of Maritime Boundary Delimitation” (1994) 9 Int’l J. of Coastal and Marine Law 1 at 8.

139 UNCLOS, supra note 10 at Art. 70 provides for the “Right of Geographically Disadvantaged States.” A geographically disadvantaged state is defined, in Art. 70(a), to include “coastal States, including States bordering upon enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive Economie zones of other States in the subregion or region for adequate supplies of fish for the nutritional purposes of their populations or parts thereof, and coastal States which can claim no exclusive Economie zones of their own.” No similar provision exists for a confined continental shelf. So defined, an independent Quebec would have to demonstrate limited access to the fishery in the Gulf of St Lawrence to justify greater access to other resources within and without the Gulf.

S. C. Vasciannie remarks that “[t]he case for special privileges for GDS [Geographically Disadvantaged States] seems even less cogent than that of their land-locked allies. More particularly, the GDS do not have the problem of access to the sea and its resources which may be used to suggest that non-coastal States should be preferentially treated. Instead … these States claim to be disadvantaged primarily because they have limited coastlines or do not stand to benefit significantly from extended zones of national jurisdiction. In this situation, it seems quite difficult for them to maintain that they face problems of nature which entitle them to special treatment. They may be less fortunately endowed with coastal resources than most States, but at the same time some of them have natural resources, climatic conditions, or advantages of location which could be said to compensate them for their maritime problems. Conversely, some coastal states may well experience greater overall difficulties with nature than the GDS. In other words, it is reasonable to assume that the GDS cannot discharge the onus of proof required to justify preferential treatment in the furtherance of equality” [citations omitted, emphasis added]: Land-Lacked and Geographically Disadvantaged States in the International Law of the Sea 32–33 (Oxford: Clarendon Press, 1990).

140 The tacit agreement of the parties preceding the Tunisia-Libya case, supra note 6 was considered by the ICJ in setting the continental shelf boundary in the Mediterranean Sea. Each state had accepted the issuance by the other of petroleum concessions and control over sponge banks off the coast

141 See text at note 148–53.

142 See text at note 15–62.

143 See Figure 2.

144 The historic waters status of the Gulf of St. Lawrence is considered later. See text at note 174.

145 “The main application of the equitable doctrine of the thalweg is in situations where the preservation of equal access and navigational rights are of prime importance, in the sense that equal division of the surface of the water is far less significant than the mutual ability to navigate along the navigable channel, where large vessels can travel. The equitable doctrine of the thalweg is prima facie applicable to, and has, in fact, been applied by states and tribunals to, the delimitation of maritime boundaries in bays, in the territorial sea, including straits, and even in the continental shelf’: P. Bravender-Coyle, supra note 108 at 180.

146 Consider Professor Charney’s view: “Due to the configuration, the small area, and the nature of the coastline, the equidistant line would be appropriate. It could be argued that the equidistant line or an adjustment thereof should not be used because of the presence of three islands in the Gulf [the Magdalens, P.E.I, and Anticosti]. However, Anticosti and Prince Edward Island do not present a strong case for the use of a line other than equidistance. They are relatively large islands, close to the shore and well integrated therein. The projection to the east from Newfoundland containing Cape St. George might also suggest an inequitable situation, but it is countervailed by Anticosti Island near the Quebec shore”: supra note a at 399–400.

147 Whatever the view held on the structure of the delimitation process, geographic considerations as defined above play a decisive role in judicially decided, i.e., legally mandated delimitations. According to one view, the delimitation decision is a unique and global operation whereby all the equities of the case are balanced up … According to another view, the delimitation process begins with a starting point in which the equidistant line serves as a first stage. This is followed in a second stage by a possible adjustment of the provisional equidistant line in order to achieve an equitable result. According to this view, geography fulfils its positive function in the first stage, and its negative (corrective function) in the second stage, when it gives rise to the definitive delimitation.” Weil, P., “Geographic considerations in Maritime Delimitations,” in Charney, J. I. and Alexander, L. M., eds., International Maritime Boundaries, supra note 115 at 120.Google Scholar

148 Supra note 6 at 61 (para. 51).

149 See text at note 114–28.

150 Supra note 65.

151 See Schedule I to the Act, ibid.

152 Consider, e.g., Pictou Island in Northumberland Strait and St. Paul Island in Cabot Strait.

153 Two equidistant lines are shown in Figure 2. The northern line is a simplified line that disregards the distorting effect of the Magdalen Islands entirely. The southern portion of the second line gives full effect to the Islands.

154 See supra note 40 and accompanying text.

155 Supra notes 6 and 129, respectively.

156 Supra note 10.

157 This area is based on the proposed baselines discussed above.

158 Paul Bravender-Coyle identifies six equitable concepts to correct the effect of geographic distortions in maritime boundary making: (1) tout l’effet; (2) quid pro quo; (3) n’en tenant aucun compte simpliciter; (4) demi-effect; (5) n’en tenant aucun compte pour une partie; and (6) enclavement: supra note 108 at 188.

159 Supra note 129 and note 6, respectively.

160 The Magdalen Islands are about 120 nautical miles from the closest point on the Québec mainland at the Gaspé Peninsula.

161 The reasoning of the Chamber of the ICJ in the Gulf of Maine case, supra note 127 at 327 (para. 196) is notable. “[The Chamber] also has in mind the … criterion — it too being of an auxiliary nature — involving the necessity of granting some effect, however limited, to the presence of a geographical feature such as an island or group of small islands lying off a coast, when strict application of the basic criterion might entail giving them full effect, or, alternatively, no effect.”

162 See especially the discussion by the Court in the Tunisia-Libya case, supra note 6 at 74–75 (para. 128). The Kerkennah Islands near the Tunisian coast were given “some effect” while the Island of Jerba was disregarded. Consider also the “half effect” accorded to Canada’s Seal Island in the Gulf of Maine case, supra note 127 at 94–95 (para. 222).

163 The Anglo-French Continental Shelf case, in which the Channel Islands of the United Kingdom were isolated within a circle of territorial sea to the south of the Anglo-French continental shelf boundary in the English Channel, is a classic application of enclaving: Delimitation of the Continental Shelf, Decision of June 30, 1977 (U.K. v. France), [1979] 54 ILR, 18 ILM 398.

164 Legaultand Hankey, supra note 122 at 212. The authors cite agreements that create enclaves and semi-enclaves.

165 Supra note 129 at para. 69. The Court was clearly concerned with encroachment of the St. Pierre and Miquelon Islands into a Canadian coastal projection: “A reasonable and equitable solution for the western sector would be to grant to St. Pierre and Miquelon an additional twelve nautical miles from the limit of its territorial sea, for its exclusive Economie zone.” Delimitation of a hypothetical territorial sea/contiguous zone, with partial enclavement, creating a 24 nautical mile radius EEZ about the Magdalen Islands is shown in Figure 3.

166 Supra note 127 at 334–37 (paras. 217–22). Canada had reservations about the use of proportionality as an “auxiliary criterion” in the Gulf of Maine case.

167 Supra note 129 and supra note 6, respectively. The Court wrote in the Greenland-Jan Mayen case, at 69 (para. 69) that “it follows that, in light of the disparity of the coastal lengths, the median line should be adjusted or shifted in such a way as to effect a delimitation closer to the coast of Jan Mayen. It should, however, be made clear that taking account of the disparity of coastal lengths does not mean a direct and mathematical application of the relationship between the length of the coastal front of eastern Greenland and that of Jan Mayen.” In the St. Pierre and Miquelon case, France claimed a proportionality of Canadian to French coastal fronts of 6.5:1. Canada claimed a ratio of 21.4:1. The Court decided upon a ratio of 16.4:1: id. at para. 93. Malcolm Evans remarked “[t]he demonstration of a proportionality verified by reference to so malleable a set of figures shows nothing but the capacity of the Court to produce whatever result it wished”: “Less Than An Ocean Apart: The St Pierre and Miquelon and Jan Mayen Islands and the Delimitation of Maritime Zones” (1993) 43 I.C.L.Q. 678 at 688.

168 Charney, J. I., “The Delimitation of Ocean Boundaries” (1987) 18 Ocean Dev. and Int’l L. 497 at 515.CrossRefGoogle Scholar

169 See generally the hypothetical baselines in Figure 2. A further smoothing of coastal profiles in the Gulf of St. Lawrence before proportion distances were measured would likely be undertaken to account for deeply indented areas, akin to the process in the St. Pierre and Miquelon case, supra note 129 at 175 (paras. 92–93).

170 Professor Weil is outspoken against the use of proportionality: “Theoretically unjustifiable, impossible to put into practice, the test of proportionality is, moreover, useless. Conceived basically as a warning signal for detecting an inequitable deviation in the line of equidistance caused by a minor geographical feature, unreasonable disproportion between areas and coastal lengths can, as we shall see, today be replaced by a simpler indicator, the proximity of the equidistance line to the coast of the parties”: supra note 5 at 244. Cf. Paul Bravender-Coyle: “ [I]n every case in which an equitable solution is sought, the juridical concept of proportionality, as the handmaiden of equity, must be employed in order to determine whether the proposed delimitation is in fact equitable. Proportionality is, therefore, the golden metewand of equity”: supra note 108 at 185.

171 Johnston, Douglas M. and Valencia, Mark J., in Padfic Ocean Boundary Problems: Status and Solutions 24 (Dordrecht: Martinus Nijhoff, 1991)Google Scholar suggest that a “spectrum of diplomatic options” is possible in resolving maritime boundary disputes, as follows: (i) disagreement; (ii) designation of an area in dispute; (iii) limited cooperation in designated area; (iv) access for specified purpose(s); (v) preliminary joint undertaking; (vi) development contemplating production; (vii) sharing of specified state services; (viii) uni-sectorial joint ocean management; and (ix) integrated joint ocean management.

Professor Donald McRae outlines two departures from maritime boundary making: “These are the agreement to separate the continental shelf and water boundaries, and the negotiation of joint management regimes in lieu of establishing a boundary … Both the approach of separate boundaries and joint management of development regimes offer more flexibility to states in the settlement of boundary area problems. Yet they are not without difficulty; they require the resolution of competing claims to apply civil and criminal jurisdiction and to apply environmental and fiscal regulations. They may require collaboration by non-state operating entities which have never had to cooperate before. Although these difficulties are great, they are not insurmountable. They require, however, a reorientation in thinking about the resolution of boundary problems, and an acceptance of the idea that neither state will be sovereign over the area in question” [footnote omitted]: “Canada and the Delimitation of Boundaries,” in McRae, D. and Munro, G., eds., Canadian Oceans Policy: National Strategies and the New Law of the Sea 145 at 158 (Vancouver: UBC Press, 1989).Google Scholar

172 See, e.g., “Treaty Proposal: Sovereigntist Plan for Partnership with Canada,” Globe and Mail (Oct. 31, 1995) A2. The proposed partnership agreement was agreed to, and publicly released, by leading figures of the Québecois sovereigntist movement on June 12,1995. The treaty plan was silent on maritime issues, although it implied a limited cooperation. “[T]he two member States will be free to make agreements in any other area of common interest, such as: … transportation (to facilitate, for example … inland navigation policies) [and] environmental protection (in order to set objectives in such areas as cross border-pollution …).”

173 Consider possible joint activities such as fishing, environmental monitoring and protection, shipping traffic control, navigational aids, marine pilotage, icebreaking, meteorological services, search and rescue, naval exercises, and hydrocarbon exploration.

174 See the remarks of Prime Minister St. Laurent, supra note 34. See also La Forest, supra note 15 at 160 ff. The nature of historic waters was defined by the ICJ in the Anglo-Norwegian Fisheries case, [1951] ICJ Rep. 116 at 130. “By ‘historic waters’ are usually meant waters that are treated as internal waters but which would not have that character if it were not for the existence of an historic tide. The United Kingdom Government refers to the notion of historic titles both in respect of territorial waters and internal waters, considering such titles, in both cases, as derogations from general international law. In its opinion, Norway can justify the claim that these waters are territorial or internal on the ground that she has exercised the necessary jurisdiction over them for a long period without opposition from other States, a kind of possessio longi temporis, with the result that her jurisdiction over these waters must now be recognized although it constitutes a derogation from the rules in force. Norwegian sovereignty over these waters would constitute an exception, historic titles justifying situations which would otherwise be in conflict with international law.”

175 See Herman, Lawrence L., “Proof of Offshore Territorial Claims in Canada” (1982) 7 Dalhousie L.J. 3 at 7.Google Scholar Cf. Morrisette, supra note 16 at 313 (para. 84): “In sum, by virtue of international law, the Gulf of St. Lawrence will be considered, in my opinion, as high seas or an EEZ outside of a 12 nautical mile territorial sea upon baselines which existed prior to the Territorial Sea and Fühing Zones Act of 1964 [translation, footnote omitted].

176 UNCLOS, supra note 10 makes no provision for historic waters. See Art. 10, “Bays.” The requirements for such claims have diminished with the increase in the extent of the territorial sea, such that a “juridical bay” results where the total length of a closing line drawn across its mouth is less than 24 nautical miles or where the “semi-circle” test is satisfied. See especially Westerman, G. S., The Juridical Bay (New York: Oxford Univ. Press, 1987).Google Scholar See also Churchill and Lowe, supra note 7 at 33 ff. Judge Shigeru Oda, vice-president of the ICJ has called the doctrine of historic waters “practically a redundancy”: Gulf of Fonseca case, supra note 11 at 756 (para. 44 of his dissenting opinion). “[B]ut by now, most bays known as ‘historic bays,’ such as Delaware Bay, Chesapeake Bay, the Bristol Channel, have become, as I already stated above, ordinary bays because of the new rule of the 24-mile closing line”: ibid., 755 (para. 43).

177 See especially Yehuda Z. Blum, supra note 11 at 259: “It would therefore appear that the geographical factor, as well as the Economie considerations and the elements of national defence and other vital interests of the coastal State, are relevant in the establishment of an historic title to the extent that they indicate the degree of consent accorded to historic claims by the nadons affected by such national pretensions; in the case of a maritime historic claim, ‘the nations affected’ are the entire international community. See also Churchill and Lowe, supra note 7 at 36.

O’Connell, D. P., in The International Law of the Sea, Vol. 1 417 (Oxford: Clarendon Press, 1982)Google Scholar describes the historic waters doctrine as “essentially a doctrine of exception to the standard rules for delimitation of maritime territory … [which] can be thoroughly examined only in the light of the specific circumstances of each case.”

178 “In 1971 Canada drew fishery closing lines across the mouths of the Bay of Fundy, Gulf of St. Lawrence and Queen Charlotte Sound. The fishery closing line was a Canadian invention which has not been emulated by other states. The purpose of the fishery closing lines was to delineate Canadian near-shore waters from which foreign fishing vessels were to be excluded. Waters landward of the fishery closing lines were described as fishing zones … On the east coast, the effect of the fishery closing lines was to delineate the historic waters of the Bay of Fundy and the Gulf of St Lawrence, hence the fishery closing lines are the functional equivalent of straight baselines” [citations omitted, emphasis added]: McDorman, supra note 113 at 7.

The locations of fishery closing lines in the Strait of Belle Isle and Cabot Strait are still depicted on Canadian Charts LC 4001 and 4002. The ambiguous position of territorial sea limits near these straits should be noted.

179 Supra notes 62 and 69. The status of the Gulf was raised in the House of Commons in 1979 through questions about protests over the seal hunt put to the Minister of Fisheries, the Honourable Roméo LeBlanc (as he was then). “I have searched the Fisheries Act very carefully and found that there is no way the act would give me the power to stop a vessel from sailing on the Gulf of St. Lawrence”: House of Commons Debates (Mar. 8, 1979) at 3943. Cf. application of the Coastal Fisheries Protection Act, R.S.C. 1985, c. C-33 and its regulations.

180 Ibid. Ross Hornby notes that “ [s]uch certificates will be particularly useful with respect to areas where the extent of Canada’s internal waters claims have not been clarified by the creation of straight baselines, such as, in the Gulf of St. Lawrence or Dixon Entrance”: supra note 54 at 360. Aside from its declaratory function, the Act has an equal effect to apply Canadian federal and provincial laws into an Economie zone and especially to marine installations and structures.

181 Hornby, supra note 54 at 361.

182 Supra note 62 at s. 5(3).

183 UNCLOS, supra note 10 at Art. 7(1).

184 Ibid., Art. 7(3). Vietnam and Myanmar have departed markedly from this requirement. See The Law of the Sea, supra note 9.

185 por a summary of Canadian baselines see The Law of the Sea, supra note 9 at 69. Professor Donat Pharand concludes that “[t]he practice of States in general and that of four of the five Arctic States in particular reflect a liberal interpretation of the geographic requirements for the applicability of straight baselines and lend strong support to the baselines drawn around the Canadian Arctic Archipelago”: Pharand, supra note 9 at 178.

186 Approximately 40 and 58 nautical miles, respectively.

187 Professor La Forest wrote in 1963 that “lines closing off the Gulf of St. Lawrence could be drawn to follow the general direction of the coast … Equally, the intimate relationship between the gulf and the land areas surrounding it are immediately evident. And there are important Economie interests involved; the gulf is the chief means of communication between the Province of Newfoundland and the rest of Canada, and the fisheries therein have long been the main source of livelihood for many of the inhabitants of the four Adantic provinces": La Forest, supra note 15 at 171.

188 Churchill and Lowe discuss the unique nature of historic bays bounded by more than one state. “The normal rule of customary international law in relation to such bays would appear to be that, unlike bays governed by article 7 of the Territorial Sea Convention and article 10 of the Law of the Sea Convention, or historic bays, they cannot be closed by a line drawn across their mouth. Instead the baseline is constituted by the low water mark around the shores of the bay. The matter, however, is not free from controversy. Exceptionally, it may be possible for the riparian States to show that the position is different by reason of historic tide. Such is the case with the Gulf of Fonseca”: supra note 7 at 38.

189 Gulf of Fonseca case, supra note 11 at 754–55 (para. 41 of the dissenting opinion of Judge Oda). Y. Z. Blum adds, supra note 11 at 310, that “even [an agreement between states] to ‘close’ a multinational bay is not sufficient to achieve this legal effect unless such measure receives the recognition, or at least the acquiescence, of other States” [footnote omitted]. A “maritime condominium” was defined by the ICJ in the Gulf of Fonseca case, ibid., paras. 399–401 as “’co-ownership,’ to describe … the legal result where … States jointly inherited by succession waters which for nearly three centuries had been under the single sway of the State from which they were the heirs; and in which waters there were no maritime administrative boundaries at the time of inheritance.” The court added, at para. 410, that such a historic bay requires a defined closing line.

190 The Gulf of Aqaba measures about 96 miles in length and varies in width from 5.75 miles at its entrance in the Strait of Tiran to as much as 14.5 miles. Israel and Jordan are located at its head, with 6 mile and 3.5 mile long bordering coasdines, respectively. Egypt and Saudi Arabia form the western and eastern shores of the Gulf.

191 See El Baradei, M., “The Egyptian-Israeli Peace Treaty and Access to the Gulf of Aqaba: A New Legal Regime” (1982) 76 AJ.I.L. 532.Google Scholar

192 Canada supported the general international view, expressed by France, that “ the Gulf of Aqaba, by reason pardy of its breadth and parüy of the fact that its shores belong to four different states, constitutes international waters” [citation omitted]. Blum, supra note 11 at 276–77.

193 See generally Gross, L., “The Geneva Conference on the Law of the Sea and the Right of Innocent Passage through the Gulf of Aqaba” (1959) 53 AJ.I.L. 564.Google Scholar

194 News Conference Statement (Feb. 19, 1957) 36 Department of State Bulletin 404 (Jan.-June, 1957). See Gross, ibid. at 570, and Blum, supra note 11 at 309.

195 The role of the United States will feature prominendy, not least because of its interests in the St. Lawrence Seaway.

196 Supra note 11.

197 The Gulf is approximately 20 nautical miles wide at its mouth and about 30 miles in diameter. On the geographic nature of the Gulf see the Gulf of Fonseca case, supra note 11 at 588 (para. 383).

198 Ibid., 589 (para. 385).

199 An English language translation of the Spanish judgment appears in (1917) 11 A.J.I.L. 674. The Court of Justice held that “[t]he legal status of the Gulf of Fonseca having been recognised by this Court to be that of a historic bay possessed of the characteristics of a closed sea, the three riparian states of el Salvador, Honduras and Nicaragua are, therefore, recognized as co-owners of its waters.” Ibid., para. 716.

200 See the adjudication of the land boundary dispute between El Salvador and Honduras in [1992] ICJ Rep. 351 at 380–553 (paras. 27–322).

201 See Nicaraguan Intervention Judgment, [1990] ICJ Rep. at 137 (para. 105). For comment on this case, see Scobbie, Iain “The ICJ and the Gulf of Fonseca” (1994) 18 Marine Policy 249 at 261.CrossRefGoogle Scholar

202 Gulf of Fonseca case, supra note 11 at paras. 404–420.

203 Scobbie, supra note got at 262. See also Blum, supra note 11 at 279. See especially the dissenting opinion of Vice-President Judge Oda, supra note 11 at 732 ff. In his review of historical bays, he found that a “pluri-State bay” could not be other than international waters. He continued (at 745–46 (para. 24)) “It may be concluded that the simple outcome of this study of the development of the law of the sea is that there did not and still does not (or, even, cannot) exist any such concept as a ‘pluri-State bay’ the waters of which are internal waters. It is not surprising that no rule covering such a pluri-State bay has ever been presented in international law. The very concept of ‘internal waters,’ which only appeared — under the term of ‘inland waters’ — in parallel with the fixing of the limit of the territorial waters (sea), implies, as a norm, the enclosure or semi-enclosure of the waters concerned within the embrace of a given jurisdiction. This element of embracement is absent or disappears when the shores of a geographical bay are so divided up between States as to render the criteria and rationale of a legal bay incapable of fulfillment. This is implicitly confirmed by the absence of any provision concerning the delimitation or division of internal waters either in the 1958 or the 1982 Conventions; the internal waters of one State cannot abut the internal waters of another State.”

204 Supra note 11 at 605 (para. 412).

205 The Gulf of Fonseca has been characterized by some as more a “vital bay” than one which is historic. This is consistent with the reasoning of the Central American Court of Justice in its 1917 decision: “It is necessary to specify the characteristics proper thereto from the threefold point of view of history, geography and the vital interests of the surrounding states”: (1917) 11 A.J.I.L. 674 at 700.

206 The majority decision of the ICJ in the Gulf of Fonseca case is notable. “Given that there is a condominium of the waters of the Gulf, it follows that there is a tri-partite presence at the closing line of the Gulf and that Honduras is not locked out from rights in respect of the ocean waters outside the bay. This also seems equitable … Since the legal situation on the landward side of the closing line is one of joint sovereignty, it follows that all three of the joint sovereigns must have entitlement outside the closing line to territorial sea, continental shelf and exclusive Economie zone,” supra note 11 at 607–8 (paras. 418–20). The court left the issue of the delimitation of external maritime zones for future consideration by the parties.

207 Supra note 11 at 599–600 (para. 401). Judge Oda took emphatic exception to the ICJ’s adoption of the 1917 decision of the Central American Court of Justice. See his dissenting opinion, ibid., 751 (para. 35) ff.