Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) - The Court forms a chamber to deal with the case submitted by Canada and the United States

OF JUSTICE

CaMes: Intercourt, Tha Hague
Peace Palace, 2517 KJ The Hague. Tel. 92 44 41.
Telex 32323

uns[ficial
for immedia ts rrslease

Last Comuniqué in 1981 NO. 82/1
series was pio. 81/16 26 January 1982

The Court forms a chmber t;~ ueal with the case submitted
-by Canada and the United States

The following in:Cormatiori is nade avaiiable to the press by the
Registry of the International Court of'Justice:

Canada and the United States have submitted to a specidly formed
chamber of the International Court of Justice a longstanding dispute
over the bouncary scparating the fishery zones and continental shelf

areas of the two coun-t;ries off tlie Atlantic coast in the Gulf of Maine.
This chamber has now i~een constituted by an Order of the Court.

It is the first time in the hiatory of the Ccurt that the parties
to a dispute have made use of the possibilities, enbodied in the Statute
and Rules of the Court;, of sending their case to
chamber instead of the
full Court.

Details of the process by which the chmLber has been created are
given below.

On 25 Novernber 1981 the Gcvcrment of Canada ,WC?the Government of
the United States had notified to the Registry a Special Agreement,

concluded by them on 29 biarch 197g9 and having entered into force on
20 November 1981, by whicki they submittec? to a chamber of the Court a
question as to the course of the maritime boundary dividing the
continental slielf and Ïisheries zones 03 the tvro Pnrt,ies in the Gulf of
Maine area.

The Special Agreement provided for the submission of the dispute to

a five-neniber chmber to be constituted after consultation with t'rie
Parties, pursuant to Article 26, paragraph 2, and Article 31 of the
Statute of the Court. Shese are respectively the Articles providing for
the establishment of a chnmber ' O deal with a particular case and the
right of a Party, when there is no judgc of its nationality upon the

bench, to choos? s judge ad hoc to sit in the case. The Parties were cluly consulted, and the Court had already been
notified in a letter f'rom the Parties accompanying the submission of

the case that, since the Court did not include upon the bench a judge
of Cznadian nationality, the Governient of Cana& intended to choose
a judge ad hoc.

Following a decision in principle -to accede to the Parties' request

to form the special chmber, and ari election kield on 15 January 1982,
the Court
J
- composed as follows: Acting President Elias; Judges Forster, Gros,
Lachs, !4orozov, Nagendra Singh, Ruda, Mosler, Oda, kgo, Sette-Camara,
El-Khani and Schwebel -

adopted, on 20 January 1982, by 11 votes to 2, ari Order whereby it duly
constituted a special chamber to deal with the delimitation of the naritirne
boundary between Canada and the United States in the Gulf of Maine area,
with the co!~position having resulted from the above-mentioned election:

Judges Gros, Ruda, Mosler, /,go and Schwebel. Tne Order notes that, in
application of Article 31, paragraph 4, of the Statutè of the Court, the
Acting President had requestea Judge Ruda to give place In due.course to
the judge ad hoc to be chosen by Canada, and thstt Judge Ruda had indicated
his readiness to do so.

Judge Oda appended a deciüration to the Order of 20 January 1982.

Judges Morozov and El-Khani voted egainst the Order zs a whole and
appended dissenting opinions givins their reasons. Annex to Comnuniqué No. 8211

Sumary of the declaration appended to the Order

Judge Oda indicated thst, while he voted in favour of the Order, it
should have been made .known that the Court, for reasons best known to
itself, had approved the comaosition of -the Chmber entirely ir, accordance
with the latest wishes of the Parties.

Summary of disisentin-: opinions appended to the Order

In his 6issenting opi:lioil, Juàge Morozov stressed that in substance
the Special Agreement betwcen the United ~tzs of America snd Canada

clearly took as point ol departure the erroneous presmption that,
contrary to Article 26, paragraph 2, of the Statute, the Parties who
presented a request to create a Cllaniber for consideration of a particular
case might not merely choose whzt should be the number of the members of
the Chamber, but also formally decide 2nd propose the nmes of judges who

should be selected by secl-et ballot, and even prcscnt those
proposals to the Court in the form of Roze kind of "ultimatumf'.

In that situation, the sovereign right of the Court to carry out the
election independently of the wishes of the Parties, -DY secret ballot in

accordance with the provisions of the Statute and Rules of Court, became
in substance meaningless.

From his point of view, the matter could have been successfully
settled by the Court in February 7982 in its new composition.

Judge El-Khani voted against the Ordcr. 2nd stated in his dissenting
opinion that in hLs opinion the imposition of an unduly close time-limit
for the Chamber's formation and of it particular composition rendered the
Court no longer n~aster of its o?.n acts, deprived it of its freedom of

choice and was an obstacle to the proper administration of justice.
Furthemore it diminished the prestige of' the Court and was harnful to its
dignity as the principal judicial organ of the LJnited Nations. It reçulted
in its regionalization,by depriving :t of its basic and essential
characteristic c>f uiiiversalj.ty, and produceà the indirect result of two

judges of t5e sme riationality acting in the name of the Court, one in the
Chamber and the other in the Court, vhich did not correspond to the Statute.
On those grounds he found that it :uzht not to constitute n precedent,
as it would be a dangerous courst to fullo~~r in the future.