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Gulf of Maine Case and the Future of Ocean Boundary Delimitation

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Gulf of Maine Case and the Future of Ocean Boundary Delimitation THE GULF OF MAINE CASE AND THE FUTURE OF OCEAN BOUNDARY DELIMITATION Edward Collins, Jr.* Martin A. Rogoff5* I. INTRODUCTION On October 12, 1984, a Chamber of the International Court of Justice handed down its decision in the Case Concerning the Delimi- tation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.).1 By a vote of four to one, the Chamber described in geodetic lines the course of the single maritime boundary that divides the continental shelf and exclusive fishery zones of Canada and the United States in that area.2 The Chamber's decision ended more than a decade of conflict between the two countries concerning juris- diction over continental shelf and fishery resources in the Georges Bank area.3 * Professor of Political Science, University of Maine. B.A., MA, Marshall Univer- sity; Ph.D., Emory University. ** Professor of Law, University of Maine School of Law. B.A., Cornell University, MA., University of California (Berkeley); LL.B., Yale University. 1. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 LC.J. 246 (Judgment of Oct. 12) [hereinafter cited as Gulf of Maine Case]. See generally Legault & McRae, The Gulf of Maine Case, 22 CAN. Y.B. IT'rL L 267 (1984); Robinson, Colson & Rashkow, Some Perspectives on Adjudicating Before The World Court: The Gulf of Maine Case, 79 Am J. Im'L L 578 (1985). The Gulf of Maine Case represents the first use of a Chamber of the International Court of Jus- tice to resolve an international dispute. Note, InternationalConflict Resolution: The ICJ Chambers and the Gulf of Maine Dispute, 23 VA. J. IWTL L. 463 (1983). For discussions of dispute settlement in the Canadian-American context, see Cohen, Can- ada and the United States: Dispute Settlement and the InternationalJoint Com- mission - Can This Experience be Applied to Law of the Sea Issues?, 8 CASE W. RFs. J. INVr'L L. 69 (1976); Wang, Adjudication of Canada-UnitedStates Disputes, 19 CAN. Y.B. INT'L L 158 (1981). 2. The Chamber was composed of Roberto Ago (Italy), Andr6 Gros (France), Her- man Mosler (Federal Republic of Germany), Stephen Schwebel (United States), and Maxwell Cohen (Canada) as judge ad hoc. Although Judge Schwebel ultimately con- curred in the Chamber's judgment, he would have preferred a line somewhat to the east of that described by the Chamber in the outer portion of the delimitation area. See map 2 at p. 17. Judge Schwebel agreed with the essentials of the Chamber's anal- ysis and reasoning, but differed with the Chamber over the extent of the coast of the Bay of Fundy to be regarded as coasts of the Gulf of Maine area for purposes of calculating proportionality. Gulf of Maine Case, supra note 1, at 354 (Separate Opin- ion of Judge Schwebel). Judge Gros dissented from the judgment of the Chamber. His line, "essentially an equidistance line constructed from mainland basepoints," Gulf of Maine Case, supra note 1, at 387 (Dissenting Opinion of Judge Gros), runs slightly to the east of the Chamber's line in the inner portion of the delimitation area and to the west of the Chamber's line in the outer portion. See map 2 at p. 17. 3. For the background of the dispute, see D. VANDERZwAAG. THE FISH FEuD. THE MAINE LAW REVIEW [Vol. 38:1 The boundary dispute resolved by the Chamber in the Gulf of Maine Case involved overlapping claims to continental shelf and su- perjacent waters in the Gulf of Maine region, extending seaward from the coast to a distance of approximately 200 miles. The dis- puted area covered about forty-two percent of Georges Bank. The location of the boundary has considerable significance for both the United States and Canada because of the known fish yields and the potential oil and gas reserves of the area. Georges Bank is one of the richest fishing grounds in the world, producing about twice as much as the North Sea, four times as much as the Grand Banks, and five times as much as the northeast Arctic. 4 The disputed sector is one of Georges Bank's most productive areas.5 The amount of oil and gas reserves under Georges Bank, in general, and the disputed sector, in particular, will not be known until considerable exploratory drilling and actual development take place. Experienced geologists have made estimates of potential oil and gas reserves, but their accuracy is uncertain, at best.6 Existing estimates do indicate, however, that oil and gas deposits may be substantial.7 The Gulf of Maine encompasses an area of about 36,000 square U.S. AND CANADIAN BOUNDARY Disptrr. (1983); Rhee, Equitable Solutions to the Mar- itime Boundary Dispute Between the United States and Canada in the Gull of Maine, 75 AM. J. INT'L L. 590 (1981); Wang, Canada-United States Fisheries and Maritime Boundary Negotiations: Diplomacy in Deep Water, Vol. XXXVIII(6)/XX- XIX(1) BEHIND THE HEADLINES (1981). 4. UNITED STATES DEPARTMENT OF THE INTERIOR, FINAL SUPPLEMENT TO ENVIRON- MENTAL STATEMENT, O.C.S. SALE. No. 42, at 113 (1979) [hereinafter cited as U.S. DEP'T OF THE INTERIOR, FINAL SUPPLEMENT]. For a succinct description of the hydrological features that cause this high level of productivity, see id. at 108-13. The annual fish harvest from Georges Bank has averaged 500,000 metric tons, and the maximum sus- tainable yield estimates for the bank total about 420,000 metric tons, worth about $229 million. Id. at 113-14. Based on the value of 1978 landings, the worth of the fisheries of the bank over the next twenty years is estimated at $3.34 billion. For tables showing estimates of United States and Canadian catches harvested in the dis- puted sector or boundary region, see UNITED STATES DEPARTMENT OF STATE, UNITED STATES-CANADA EAST COAST FISHERY RESOURCES AGREEMENT DATA SUMMARY, Table II, at 1-7 (1979). 5. Canada in the Gulf of Maine Case presented statistics from the International Commission for the Northwest Atlantic Fisheries indicating the total Canadian and U.S. catches in metric tons for the period 1969-1978 in each of six sectors of Georges Bank and surrounding areas. Memorial of Canada (Can. v. U.S.), 1982 I.C.J. Plead- ings 63-71 (Memorial dated Sept. 27, 1982) [hereinafter cited as Canadian Memorial]. The two sectors in the disputed area yielded 93% of the scallop catch for the entire Georges Bank, 79% of the Bank's pollock, and 71% of its cod. Annexes to Memorial of Canada (Can. v. U.S.), 1982 I.C.J. Pleadings 51-71 (Annexes dated Sept. 27, 1982). 6. W. AHERN, OIL AND THE OUTER COASTAL SHELF: THE GEORGES BANK CASE 9 (1973). 7. Estimates used by the United States Department of the Interior for lease sale #42, which does not include the disputed sector, are 123 million barrels of oil and 870 billion cubic feet of natural gas, with a 1979 value of about $558 million. U.S. DEP'T OF THE INTERIOR, FINAL SUPPLEMENT, supra note 4, at 517-19. 1986] GULF OF MAINE CASE miles (90,000 square kilometers). Shaped roughly like an "elongated rectangle," s the gulf is flanked on the north, northeast, and west by mainland, mostly that of the United States. About seventy percent of the perimeter of the gulf faces the land and only about thirty percent faces the open North Atlantic Ocean.' Georges Bank, "the main focus of the dispute," 10 lies seaward of the gulf, outside its closing lines, but well within the delimitation area.' The continental shelf that lies off the eastern coast of the United States and Canada extends from the Gulf of Mexico to the tip of Labrador and is of similar geological structure throughout its great length, 2 and the ge- omorphology of the entire shelf is characterized by "unity and uni- formity."' s Likewise, the great mass of water belonging to the delim- itation area possesses the same character of unity and uniformity." The precise location of the northeastern maritime boundary be- tween the United States and Canada has been an unsettled question for most of the period since the United States became an indepen- dent nation. Controversy developed almost immediately following American independence, and it was not until 1925 that agreement was finally reached delimiting the territorial waters of the two na- tions.15 Later developments in the international law of the sea al- 8. Gulf of Maine Case, supra note 1, at 268. 9. To sum up, the Gulf of Maine takes the form of a large, roughly rectangu- lar indentation, bordered on three sides by land-except where the contigu- ous bays of Cape Cod/Massachusetts lie along the western side, and the Bay of Fundy opens out at the inner end of the eastern side-and on the fourth side open to the Atlantic Ocean. Id. at 270. 10. Id. at 272. 11. For a description of the physical geography of the delimitation area, see id.at 267-70. 12. Mills, Eastern Canada's Offshore Resources and Boundaries: A Study in Po- litical Geography, 6 J. CAN. STuniEs 36, 40 (1971). See Gulf of Maine Case, supra note 1, at 273 ("[T]he geological structure of the strata underlying the whole of the continental shelf of North America, including the Gulf of Maine area, is essentially continuous."). 13. Gulf of Maine Case, supra note 1, at 273. "According to generally accepted scientific findings, this shelf is a single continuous, uniform and uninterrupted phys- iographical structure ...
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