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Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine A.Rea (Canada/United States of America)

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Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine A.Rea (Canada/United States of America) INTERNATIONAL COURT OF JUSTICE PLEADINGS, ORAL ARGUMENTS, DOCUMENTS CASE CONCERNING DELIMITATION OF THE MARITIME BOUNDARY IN THE GULF OF MAINE A.REA (CANADA/UNITED STATES OF AMERICA) VOLUME I Special Agreement; Memorîal of Canada COUR INTERNATIONALE DE JUSTICE MÉMOIRES, PLAIDOIRIES ET DOCUMENTS AFFAIRE DE LA DÉLIMITATION .DE LA FRONTIÈRE MARITIME DANS LA. RÉGION DU GOLFE DU MAINE (CANADA/ÉTATS-UNIS D'AMÉRIQUE) VOLUME l Compromis; mémoire du Canada MEMORIAL OF CANADA MÉMOIRE DU CANADA [1-6] MEMORIAL OF CANADA 29 SPECIAL AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA TO SlJBMIT TO A CHAMBER OF THE INTERNATIONAL COURT OF JUSTICE THE DELIMITATION OF THE MARITIME 80UNDARY IN THE ÛULF OF MAINE AREA [See supra, pp. 10-16] [7-11] 31 MEMORIAL SUBMITTED BY CANADA INTRODUCTION 1. This Memorial is filed in accordance with the Court's Order of J February 19821, as varied by an Order of 28 July 19822 extending to 27 September 1982 the time-Jimit for the filing of the Memorials of both Parties in this case, whîch was brought before the Court on 25 November 1981 by the notification of a Special Agreement. The Dispute 2. The subject of this dispute is the course of the single maritime boundary dividing the continental shelf and fishing zones of Canada and the United States in the Gulf of Maine area. The dispute centres primarily on the rich fishing grounds and potential hydrocarbon resources of Georges Bank, a large detached bank seaward of the Gulf of Maine, off the coasts of Nova Scotîa and Massachusetts. 3. The maritime boundary daims of the Parties, as they stood upon the conclusion of the Special Agreement on 29 March 1979, are 0 illustrated in Figure 1. Point "A" in this illustration, where the two daims first intersect, is situated at 44" 11' 12" N, 67° 16' 46" W and is the point at which the adjudicated boundary is to begin in accordance with the question set out in Article li of the Special Agreement. From Point "A" to Point "B", the second point of intersection, there is an area of just over 1,000 square nautical miles between the two lines that has not been claimed by either Party. The United States has exercised fisheries jurisdiction over this unclaimed area since 1977, pending establishment 3 of the maritime boundary • 4. Figure 2 shows the two claimed lines with the addition of 0 bathymetric features that illustrate certain contours of Georges Bank. It will be noted that this Bank lies at some distance to seaward of Point "B", where the two claimed lines diverge to create a broad area of ocean space that is subject to competing daims by the Parties. Beyond Point "B", the nearest distance between the United States claimed line and Canadian- land is 62 nautical miles; the nearest distance between the Canadian claimed line and United States land is 94 nautical miles. 1 /.C.J. Reports 1982, p. 15. ' l.C.J. Reports 1982, p. 557. J See ~Maritime Boundaries Between the United States and Canada". United States Department of State, Public Notice No. 506. Published in Federal RRgis1er, Vol. 41, No. 214, 4 Nov. 1976, p. 48620. This notice contained in its Footnote l the following state­ menl: "In view of the fact that the claimed boundaries published by the United States and Canada would leave an unclaimed area within the Gulf of Maine, the United States will exercise its fisheries management jurisdiction to the Canadian-claimed line w herc that lîne îs situated eastward of the United States-claimed line, until such time as a permanent maritime boundary with Canada is established in the Gulf of Maine." See Annexes to the Memorial Submitted by Canada, Vol. Il, Annex 30. 32 GULF OF MAINE [12-14] 00 5. The daims illustrated in bath Figures / and 2 are those that were defined and published by the Parties in connection with the creation of their 200-mile fishing zones, in circumstances explained in paragraphs 223 to 245 of this Memorial. These daims, however, are applicable to the continental shelf as well. 6. Figure 3 shows how the Canadian line has been constructed. It 0 is an equidistance line on which every point is an equal distance from 4 basepoints on the coasts of the two Parties • The landward portion of the line is controlled throughout by the nearest point of land on each coast, including a number of off-lying islands and low-tide elevations. In its outer reaches, however, for reasons which are fully explained in para­ graphs 342 to 356, a basepoint located at the north end of Cape Cod Canal bas been used instead of the attenuated coastal projection of Cape Cod and the offlying islands of Nantucket and Martha 's Vineyard. 7. The Canadian line allocates Jess than half of Georges Bank to Canada. The United States line, on the other hand, would allocate the entire Bank to the United States. That line appears to follow certain superficial features of the seabed topography, proceeding from basin ta basin in the Gulf of Maine itself and hooking around the northeastern rim of Georges Bank. lt then crosses over a sill near the edge of the physical continental shelf and extends beyond that point to where it meets a short segment of an arc that defines the seaward limit of the 200- mile fishing zone as claimed by the United States. 8. The present dispute, whose evolution is more fully outlined in Part I, Chapter IV, first began to emerge in the context of the continental shelf. Both Canada and the United States are parties to the 1958 Conti­ nental Shelf Convention. Canada first issued offshore oil and gas explora­ tory permits for the Gulf of Maine area in the mid- l 960s. The eq uidis· tance method which Canada applied in issuing these permits was accepted by the United States authorities with respect ta this area, and the permits remained in effect without challenge for a substantîal period of time. The United States, however, ultimately changed its position and took issue with the jurisdiction exercised by Canada. Late in 1969 the United States "reserved" its position in regard to the area that is now in © dispute and had formally claimed it by the mid-l 970s. Figure 4 depicts the outstanding continental shelf hydrocarbon permits and leases granted by Canada and the United States. Canadian permits are shown in blue, United States leases in green. 9. The dispute took on a new dimension in 1977 when the two Parties extended their fisheries jurisdiction to 200 nautical miles in accordance with the consensus reached at the Third United Nations Con­ ference on the Law of the Sea. The 200-mile zone established by each Party at that time gives effect to the essential provisions negotiated at the Conference with respect to the conservation and utilization of the living • These basepoints are described in paragraphs 334-341 and 352-356. {15-16] MEMORIAL OF CANADA 33 resources of the exclusive economic zone5• The manner in which the sea­ ward limits of these zones have been established is depicted in Figure 5. © Both Canada and the United States have used arcs of circles for this pur­ pose, drawn with a radius of 200 miles from contrai points on the coast. © Figure 5 also shows the location of these contrai points, as well as the arcs defining the seaward limit of each zone; those of Canada are depicted in red and those of the United States in black. 10. Beginning in 1969, a number of attempts were made to settle this dispute through negotiations, first in its initial phase and later in îts current form encompassing both the continental shelf and the 200-mile fishing zones of the Parties. These attempts were unsuccessful. Accord­ ingly, on 29 March 1979, the Parties signed a treaty providing for the judicial seulement of the dispute. The treaty originally formed part of a broader seulement that included a permanent agreement on the manage­ ment and equitable sharing of the living resources of the Gulf of Maine area: the Agreement on East Coast Fishery Resources, also signed on 29 March 1979. The original intention, reflected in the provisions of both instruments, was that the boundary adjudication treaty and the fisheries agreement would enter into force together or not at all. The United States, however, failed to ratify the fisheries agreement. lt was with­ drawn from the United States Senate by President Reagan in early 1981. Canada subsequently agreed to ratify the adjudication treaty despite its separation from the fisheries agreement by the unilateral action of the United States. Instruments of ratification of the treaty, amended in order to omit any reference to the fisheries agreement and to make certain other technical changes, were exchanged on .20 N ovember 1981 and the Special Agreement annexed to the treaty was duly notified to the Court on 25 November 1981. 1 The Question Before the Court 11. Under Article II of the Special Agreement the Court is requested to decide, in accordance with the principles and rules of inter­ national law applicable in the mauer as between the Parties - ". the course of the single maritime boundary that div-ides the continental shelf and fisheries zones of Canada and the United States of America from a point in latitude 44° 11' 12" N, longitude 67° 16' 46" W to a point to be determined by the Chamber within an area bounded by straight lines connecting the following sets of geographic coordinates: latitude 40° N, longitude 67° W; latitude 40° N, longitude 65° W; latitude 42° N, longitude 65° W".
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