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Delimitation of the Maritime Areas between Canada and France

Published online by Cambridge University Press:  27 February 2017

Keith Highet
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Type
International Decisions
Information
American Journal of International Law , Volume 87 , Issue 3 , July 1993 , pp. 452 - 464
Copyright
Copyright © American Society of International Law 1993

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References

1 The court of arbitration was composed of five arbitrators: Eduardo Jiménez de Arechaga, President; Oscar Schachter; Gaetano Arangio-Ruiz; Prosper Weil (selected by France); and Allan E. Gotlieb (selected by Canada). The tribunal met in New York from July 29 to August 23, 1991. See Decision in Case concerning Delimitation of Maritime Areas, 31 ILM 1145, 1156, para. 6 (1992) [hereinafter Decision]. For the technical report of Commander Peter Beazley, see id. at 1178; and for the dissenting opinions of Mr. Gotlieb and Professor Weil, see id. at 1181 and 1197, respectively [hereinafter Gotlieb Dissent, Weil Dissent]. See also Addendum to Report No. 1-2 (Case Concerning the Delimitation of the Maritime Areas Between Canada and the French Republic, Decision of the Court of Arbitration for the Delimitation of Maritime Areas Between Canada and France), in International Maritime Boundaries 399 (Jonathan I. Charney & Lewis M. Alexander eds., 1993) [hereinafter Charney & Alexander].

2 As stated by the tribunal:

The area within which the delimitation is to take place lies south of the Canadian island of Newfoundland, and east of the Canadian island of Cape Breton and the coast of mainland Nova Scotia. The coasts are indented by numerous bays and have many small islands and islets lying off them. To the east and south the area is open to the Atlantic Ocean.

Decision, para. 18, 31 ILM at 1159.

3 In the language of the compromis: “The Court shall establish a single delimitation which shall govern all rights and jurisdiction which the Parties may exercise under international law in these maritime areas.” Id., para. 1, 31 ILM at 1152 (emphasis added). This would of course include any fisheries zones, exclusive economic zones as proclaimed, continental shelf, and any other rights that might exist from time to time in those “maritime areas.”

4 The ratios produced for coastal length to maritime area ranged from 15.3:1 (id., para. 33, 31 ILM at 1162) and 16.4:1 (id., para. 93, 31 ILM at 1176), to 21:1 as claimed by Canada (para. 33, supra).

5 Case concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, 18 R.I.A.A. 3 (1977 & 1978) [hereinafter UK-France arbitration].

6 It held that the “situation of the Channel Islands is substantially different from the present one, because of the proximity of the English coast. The Channel Islands were seen by the Court as an incidental feature in a delimitation between two mainland, and approximately commensurate, coasts.” Decision, para. 42, 31 ILM at 1164.

7 Id., para. 49, 31 ILM at 1165.

8 Id., para. 51, 31 ILM at 1165.

9 Id., para. 52, 31 ILM at 1166. The reference to “semi-independent State” is somewhat mystifying (as is also the status of such an entity in international law). Could it be a veiled reference to an island such as Greenland, which features most significantly in the pending delimitation between Denmark and Norway and is a semiautonomous, self-governing entity that is not fully independent of Denmark and is therefore not a sovereign state?

10 Id., para. 46, 31 ILM at 1164. In a key sentence, the tribunal underscored the proposition that “[g]eographical features are at the heart of the delimitation process.” Id., para. 24, 31 ILM at 1160. After analyzing in detail the geographical context of the case, the court of arbitration also arrived at the conclusion that “Saint Pierre and Miquelon are laterally aligned with the south coast of New foundland, so that the prevailing and overall relationship is one of adjacency.” Id., para. 35, 31 ILM at 1162 (emphasis added).

11 Id., paras. 53–55, 31 ILM at 1166.

12 Admittedly, the wolf of equidistance was cloaked in the sheep’s clothing of equity, France arguing that “the potential line resulting from the application of Article 6 [of the Geneva Convention on the Continental Shelf, Apr. 29, 1958, 15 UST 471, 499 UNTS 311], which refers to equidistance, is an element that must be taken into account in determining the equitable character of the line to be drawn.” Decision, para. 39, 31 ILM at 1163 (emphasis added).

13 The tribunal acknowledged, however, that

[t]he Parties are in agreement with respect to the fundamental norm to be applied in this case, which requires the delimitation to be effected in accordance with equitable principles, or equitable criteria, taking account of all the relevant circumstances, in order to achieve an equitable result. … However, the Parties disagree with respect to the principles or criteria that should govern the equitable decision of this dispute, placing their emphasis on different principles or criteria.

Decision, para. 38, 31 ILM at 1163.

14 Id., paras. 68–69, 31 ILM at 1170. See also United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 33, reprinted in Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983).

15 Decision, para. 70, 31 ILM at 1170.

16 Weil Dissent, supra note 1, paras. 2, 8, 31 ILM at 1197, 1199; see also id. n.2, 31 ILM at 1198.

17 Decision, para. 73, 31 ILM at 1171; see also Gotlieb Dissent, supra note 1, para. 44, 31 ILM at 1190 (citing this as an “unacceptable” conclusion).

18 Decision, paras. 75–82, esp. para. 79, 31 ILM at 1171–73 (“This Court is not competent to carry out a delimitation which affects the rights of a Party which is not before it.” (Emphasis added)). This determination of course assumes and implies that “the international community, represented by organs entrusted with the administration and protection of the international sea-bed Area (the sea bed beyond national jurisdiction) that has been declared to be the common heritage of mankind” (id., para. 78, 31 ILM at 1172), is in existence as a legal entity capable of being a “party.” This also creates interesting implications for the United Nations Convention on the Law of the Sea, as yet not in effect. The court of arbitration could equally well have held that since its terms of reference only empowered it to draw a single line of delimitation, and since the exclusive economic zone could under no circumstance have extended beyond 200 nautical miles, it lacked any jurisdiction or power to draw a “single line” beyond that limit and thus could not indicate any entitlement to continental shelf alone beyond it.

19 Id., paras. 84, 87, 31 ILM at 1173, 1174.

20 Id., para. 93, 31 ILM at 1176.

21 It should be noted that Professor Weil resisted the role and designation as “national arbitrator,” ruling against France on at least several issues.

22 The issues relating to areas and coastal lengths are dealt with in detail in Gotlieb Dissent, supra note 1, paras. 5–37, 31 ILM at 1181–88.

23 Id., para. 2, 31 ILM at 1181.

24 Id., para. 39, 31 ILM at 1189.

25 Id., para. 42, 31 ILM at 1190.

26 Id., 31 ILM at 1190.

27 Id., para. 40, 31 ILM at 1189.

28 Continental Shelf (Tunis./Libyan Arab Jamahiriya), 1982 ICJ Rep. 18 (Feb. 24).

29 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246 (Oct. 12).

30 Gotlieb Dissent, supra note 1, para. 45, 31 ILM at 1191. He continued to suggest that “if there were to be a stand-alone corridor solution account should be taken of the Cape Breton coast by adjusting the corridor to reduce its total area by at least one half.” Id., 31 ILM at 1191.

31 Id., para. 41, 31 ILM at 1189.

32 Decision, para. 59, 31 ILM at 1167.

39 Weil Dissent, supra note 1, para. 15, 31 ILM at 1202.

34 Id., para. 2, 31 ILM at 1197 (quoting Gulf of Maine, 1984 ICJ Rep. at 278, para. 59).

35 Id., para. 8, 31 ILM at 1199.

36 Id., paras. 9–15, 31 ILM at 1199–1202.

37 Id., paras. 16–19, 31 ILM at 1202–03.

38 Id., para. 11, 31 ILM at 1200.

39 Id., para. 12, 31 ILM at 1201.

40 Id., para. 17, 31 ILM at 1203.

41 Id., para. 18, 31 ILM at 1203.

42 Id., para. 19, 31 ILM at 1203.

43 Id., 31 ILM at 1203.

44 Id., para. 23, 31 ILM at 1205.

45 Id., para. 34, 31 ILM at 1211 (quoting Decision, para. 84, 31 ILM at 1173, quoting in turn Gulf of Maine, 1984 ICJ Rep. at 342, para. 237).

46 Id., 31 ILM at 1211. “[T]he Decision (paras. 83 and 84),” he continued, “like the Gulf of Maine Judgment before it, is to some extent hiding behind its own shadow.” Id., 31 ILM at 1211.

47 Id., para. 39, 31 ILM at 1214.

48 Id., para. 41, 31 ILM at 1214–15.

49 Id., para. 42, 31 ILM at 1215. His reasoning for the latter point—that the tribunal inherently lacked jurisdictional power to go further than 200 nautical miles, since it was determining a boundary for other regimes as well as for the continental shelf—appears to be more cogent than the reasoning adopted by the court of arbitration. See text at and note 18 supra.

50 Weil Dissent, supra note 1, paras. 45, 46, 31 ILM at 1216, 1216–17.

51 Id., paras. 46–48, 31 ILM at 1217–18.

52 Id., para. 48, 31 ILM at 1217–18. This idea may be dealt with again in the pending decision of the International Court of Justice in Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.) (judgment expected on June 14, 1993).

53 Id., para. 48, 31 ILM at 1218. Professor Weil asserted:

A coast is a coast, whether of an island or a continent; and an island coast is a coast, whether it belongs to an independent island State or to an island dependent on another State. The concept of an island is moreover itself somewhat relative; after all, as the Court observes, Newfoundland is equally an island (para. 52).

Id., 31 ILM at 1218.

54 Id., para. 20, 31 ILM at 1204.

55 Id., para. 24, 31 ILM at 1206–07.

56 Id., para. 25, 31 ILM at 1207.

57 Id., para. 24, 31 ILM at 1206 (emphasis added).

58 Decision, para. 63, 31 ILM at 1168–69; Weil Dissent, supra note 1, para. 25, 31 ILM at 1207.

59 Decision, paras. 48–52, 31 ILM at 1165–66.

60 Id., paras. 46–47, 31 ILM at 1164–65; Weil Dissent, supra note 1, para. 41, 31 ILM at 1214–15.

61 Decision, para. 66, 31 ILM at 1169.

62 Id., para. 68, 31 ILM at 1170.

63 Id., para. 69, 31 ILM at 1170.

64 Id., 31 ILM at 1170.

65 1982 ICJ Rep. at 59, para. 70:

The result of the application of equitable principles must be equitable. This terminology … is not entirely satisfactory because it employs the term equitable to characterize both the result to be achieved and the means to be applied to reach this result. It is, however, the result which is predominant; the principles are subordinate to the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an equitable result. It is not every such principle which is in itself equitable; it may acquire this quality by reference to the equitableness of the solution.

66 Weil Dissent, supra note 1, paras. 9–14, 31 ILM at 1199–1202.

67 Id., para. 15, 31 ILM at 1202.

68 Decision, para. 70, 31 ILM at 1170.

69 The measurement of the breadth of the “coastal front,” however, was made explicit as being between the easternmost point of St. Pierre and the westernmost point of Miquelon. Id., para. 71, 31 ILM at 1170–71.

70 Id., para. 73, 31 ILM at 1171.

71 Id., 31 ILM at 1171.

72 Weil Dissent, supra note 1, para. 29, 31 ILM at 1208–09 (quoting UK-France arbitration, supra note 5, at 114, para. 245). Professor Weil concluded by adding: “Can this be a reasonable and equitable solution? What injustices are committed in the name of equity!” Id., 31 ILM at 1209. Moreover, Professor Weil suggested that it would “have been simple to avoid a return to the completely arbitrary,” and said that “[a]ll the relevant circumstances appeared to be converging toward a single one, and all the equitable principles appeared to be uniting into one: the reasonable distance of the delimitation line from each coastline.” Id., para. 30, 31 ILM at 1209.

73 Id., para. 33, 31 ILM at 1210 (emphasis added).

74 Decision, para. 68, 31 ILM at 1169–70.

75 See generally Weil Dissent, supra note 1, paras. 39–48, 31 ILM at 1214–18.

76 See Prosper Weil, Perspectives du Droit de la Délimitation Maritime (1988), translated as The Law of Maritime Delimitation—Reflections (1989).

77 Even if for the wrong reasons: see notes 18 and 49 supra.

78 Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), 1992 ICJ Rep. 351 (Sept. 11).

79 Of course, it must be understood that Honduras is far from receiving the benefit of any such corridor, since no actual delimitation has been agreed.

80 See Maritime Delimitation Agreement, Aug. 22, 1985, Fr.-Monaco, in Charney & Alexander, supra note 1, Report No. 8-3, at 1581.

81 See Treaty Concerning the Establishment of the Republic of Cyprus, Ann. A, Aug. 16, 1960, Cyprus-UK, in Charney & Alexander, supra note 1, Report No. 8-1, at 1559.

82 See Agreement on Maritime Delimitation, Dec. 23, 1988, Dominica-Fr., in Charney & Alexander, supra note 1, Report No. 2-15, at 705.

83 See Delimitation Agreement, Dec. 15, 1978, Neth. (Antilles)-Venez., in Charney & Alexander, supra note 1, Report No. 2-12, at 615.

84 Weil Dissent, supra note 1, para. 29, 31 ILM at 1209.

85 Decision, para. 85, 31 ILM at 1173. The importance of the size of the area controlled by each party therefore relates more to establishing overall quotas than to the right to fish in any given area. It should be noted that the same freedom of reciprocal fishing applies in the delimitations mentioned in notes 80 and 81 supra, between France and Monaco and between the United Kingdom and Cyprus.

86 Such as the single maritime boundary crossing Georges Bank, resulting from the decision of the Chamber in the Gulf of Maine case, now referred to routinely as “the Hague Line” in weather reports of the U.S. National Oceanic and Atmospheric Administration.

87 This portion of the decision could be read as indicating that the dependent status of islands has no effect on entitlement. Yet the tribunal treated both Newfoundland and St. Pierre and Miquelon as islands, and did not distinguish between them on the basis of political status. Decision, paras. 48–52, 31 ILM at 1165–66; see also text at note 9 supra.

88 1992 ICJ Rep. at 607, para. 418.

89 See Agreement Relating to the Delimitation of the Continental Shelf between the Two Countries, Dec. 6, 1978, It.-Tunis., in Charney & Alexander, supra note 1, Report No. 8-6, at 1611.

90 Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.) (judgment expected on June 14, 1993).

91 The author participated in the presentation of Norway’s case in this proceeding.

92 Decision, para. 47, 31 ILM at 1165.

93 Id., 31 ILM at 1165.

94 Id., para. 79, 31 ILM at 1172.

95 See comment supra note 18.

96 Decision, paras. 75, 78, 31 ILM at 1171, 1172.

97 Id., para. 93, 31 ILM at 1176.

98 Id., paras. 92–93, 31 ILM at 1175–76.

99 Id., para. 45, 31 ILM at 1164.

100 See Weil Dissent, supra note 1, paras. 9–15, 31 ILM at 1199–1202.

101 This was a Canadian argument. See id., para. 44, 31 ILM at 1216 (characterizing the tribunal’s ruling as being consistent with both Libya/Malta and Guinea/Guinea-Bissau).