Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) - Judgment of the Chamber

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INTÈENATION C AO URT OF JUSTICE

Peace Palace, 2517 KJ The Hague. Tel. 92 44 41. Cables: Intercourt. The Hague

Telex 32323

unofficial
for ~mmediaterelease

No. 84/35
12 October 1984

Delimitation of the Maritime Boundary in the
Gulf of Maine Area
((:anadalUnited States of America)

Judgment of the Chamber

The following information is made available to the press by the
Registry of the International Court of Justice:

Today, 12 October 1984, the Chamber of the Court constituted in the

case concerning Delimitation of the Maritime Boundary in the Gulf of Maine
Area (canadal~nited States of America) del ivered it s Judgment ,

The Chamber decides by four votes to one:

1That the course of the single maritime boundary that divides

the continental. shelf and the exclusive fisheries zones of Canada
and the United States of America in the Area referred to in the
Special Agreement concluded by those two States on 29 March 1979
shall be defined by geodetic lines connecting the points with the
following CO-ordinates:

Latitude North Longitude West

(For the location of these points see Annex 2, Map 4.)

The votes were cast as follows:

IN FAVOUR: Pr--ident Ago; Judges Mosler and Schwebel, Judge ad hoc Cohen;

AGAINST: Judge Gros,

The.. . The Chamber was composed as follows: President Ago, Judges Gros,
Mosler, Schwebel, Judge ad hoc Cohen.

Judge Schwebel appended a separate opinion and Judge Gros a
dissenting opinion to the Judgment.

In these opinions the Judges concerned state and explain the

positions they adopted in regard to certain points dealt with in
the Judgment, A brief summary of these opinions may be found in Annex 1
hereto.

The printed text of the Judgment and of the separate and dissenting
opinions will become available in a few weeks' time, (Orders and
enquiries should be addressed to the Distribution and Sales Section,
Office of the United Nations, 1211 Geneva 10; the Sales Section, v

United Nations, New York, N,Y, 10017; or any appropriately specialized
bookshop,)

An analysis of the Judgment is given below, followed by the text of
the operative paragaph, The analysis has been prepared by the Registry

for the use of the press and in no way involves the responsibility of the
Court, It cannot be quoted against the actual text of the Judgment, of
which it does not constitute an interpretation,

Maps taken £rom the Judgment are also reproduced herewith in

Annex 2 for the convenience of readers. Their only function is to
provide simple illustrations of the corresponding passages in the
Registry's analysis.---The Special. Agreement.-----.--..--- Chaiiiber's JurisSf--ion (paras. 1.-27--

AEter reçapitulating the various stages in the proceedings and settirrg out the
forma1 submrssion of the Yarties (paras. 1-13), the Chamber takes note of thc
provisions of the Special Agreement by which the case was brought before it. Uridei-

Article II, paragraph 1, of that Special Agreement, it was:

"requested to decide, in accordance with the principles and rules of
international law applicable in the matter as between the Parties, the
following question:

What is the course of the single maritime boundary that divides the
continental shelf and fisheries zones of Canada and the United States of
America from a point in latitude 44011112"N, longitude 67016'46"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

400N, longitude 67OW; latitude 40°N, longitude 65OW; latitude 420N,
longitude 65OW?"

(For the location of the star3ting-point and terminal area of the delimitation, see
Ann. 2, Map No. 1.)

The Chamber notes that the Special Agreement imposes no limitation on its
jurisdiction other than that resulting from the terms of this question, and that
the rights of third States in the marine and submarine areas to which the case
related could not in any way be affected by the delimitation. It also notes Lhat,

the case having been submitted by special agreement, no preliminary question of
jurisdiction arose. The only initial problem that might theoretically arise is
whether and to what extent the Chamber is obliged to adhere to the terms of the
Special Agreement as regards t.he starting-point of the line to be drawn - called
point A - and the triangular area within which that line is to terminate. Noting

the reasons for the Parties' c:hoice of the point and area in question, the Chamber
sees a decisive consideration for not adopting any other starting-point or terminal
area in the fact that, under international law, mutual agreement between States
concerned is the preferred procedure for establishing a maritime delimitation;
since Canada and the United States of America had by mutual agreement taken a step

towards the solution of their dispute which must not be disregarded, the Chamber
must, in performing the task conferred upon it, conform to the terms by which the
Parties have defined it.

The Chamber notes that thiere are profound differences between the case before
it and other delimitation cases previously brought before the Court in that -(a) the

Chamber is requested to draw the line of delimitation itself and not merely to
undertake a task preliminary to the determination of a line, and -(b) the
delimitation requested does not relate exclusively to the continental shelf but to
both the shelf and the exclusive fishing zone, the delimitation to be by a single
boundary. With regard to -(b), the Chamber is of the view that there is certainly

no rule of international law, or any material impossibility, to prevent it from
deterrnining such a line.

II. The.. .II. The delimitation area (paras. 28-59)

The Chainber finds it indispensable Ço define with greater precision the
geographical area - "the Gulf of Maine area" - within which the delimitation has to
be carried out. It notes that tlie Gulf of Flaine properly so called is a broad

indentation in the eastern coast of the North-herican continent, having roughly
the shape of an elongated rectangle whose short sides are made up mainly by the
coasts of Massachusetts in the West and Nova Scotia in the east, whose long
landward side is made up by the coast of Maine from Cape Elizabeth to the terminus
of the international boundary between the United States and Canada, and whose

fourth, Atlantic side would be an imaginary line, between Nantucket and Cape Sable,
agreed by the Parties to be the "closing line" of the Gulf of Maine.

The Chamber emphasizes the quasi-parallel direction of the opposite coasts of
Massachusetts and Nova Scotia. It points out that Lhe reference to "long" and

"short" sides is not to be interpreted as an espousal of the idea of distinguishing
"primary" and "secondary" coastal fronts. The latter distinction is merely the
expression of a human value judgment, which is necessarily subjective and may Vary
on the basis of the same facts, depending on the ends in view. It points out, with
reference to certain arguments put forward by the Parties, that geographical facts
i_
are the result of natural phenomena and can only be taken as they are.

The delimitation, the Chamber observes, is not limited to the Gulf of Maine
but comprises, beyond the Gulf closing line, another maritime expanse including the
whole of the Georges Bank, the main focus of the dispute. The Chamber rejects

however the arguments of the Parties tending to involve coasts other than those
directly surrounding the Gulf so as to extend the delimitation area to expanses
which have in fact nothing to do with it.

After noting that it has up to this point based itself on aspects inherent in

physical geography, the Chamber goes on to consider the geological and
geomorphological characteristics of the area. It notes that the Parties are in
agreement that geological factors are not significant and finds that, given the
unity and uniformity of the sea-bed, there are no geomorphological reasons for
distinguishing between the respective natural prolongations of the United States

and Canadian coasts in the continental shelf of the delimitation area: even the
Northeast Channel, which is the most prominent feature, does not have the
characteristics of a real trough dividing two geomorphologically distinct units.

As regards another component element of the delimitation area, the "water w

column", the Chamber notes that while Canada emphasized its character of overall
unity, the United States invoked the existence of three distinct ecological régimes
separated by natural boundaries the most important of which consisted of the
Northeast Channel; the Chamber, however, is not convinced of the possibility of
discerning, in so fluctuating an environment as the waters of the ocean, any

natural boundaries capable of serving as a basis for carrying out a delimitation of
the kind requested.

III. Oripins and development of the dispute (paras. 60-78)

Beginning with a reference to the Truman Proclamations of 1945, the Chamber
sumanarizes the origins and development of the dispute, which first materialized in
the 1960s in relation to the continental shelf, as soon as petroleum exploration
had begun on either side, more particularly in certain locations on Georges Bank.
In 1976-1977 certain events occurred which added to the continental shelf dimensiont ha[ cif the ;datet's nrd t hcir ' i4 ,!/, re::r,crr'ces,fqr botil States ?rorceded to
institut e an exclusive 2l)OmiZl c ii r;hsr:f zone off their coasts and adopted
regul a t ioris specifyirlg LIie ILrni ts ~IP t-112zone and conE inental shelf t hey cl airned.
In Pts aecoiint of the negotiatJoiis vi~lch evenrually led tc~ the refereizce of Lhe

clispirte io t."ir Court, the ChamLc- ~iotes that ir1 1976 the United States adçrp~cd a
line lirniring both the continentnt siieLf and the fi~hfng zones and the adoption by
Canada of a first Zine in 1976 (Lm. 2, Map No. 2).

The Chamber takes note of the respective delimitation lines now proposed by

each Party (Ann. 2, Map No. 3). The Canadian line, described like that of 1976 as
an equidiçtance line, is one coristructed almost entirely from the nearest points of
the baselines from which the breadth of the territorial sea is measured. Those
points happen to be exclusively islands, rocks or low-tide elevations, yet the

basepoints on the Massachusetts coast which had initially been chosen for the 1976
line have been shifted westward so that the new line no longer takes account of the
protrusion formed by Cape Cod and Nantucket Island and is accordingly displaced
West. The line proposed by the United States is a perpendicular to the general
direction of the coast from tlhe starting-point agreed upon by the Parties, adjusted

to avoid the splitting of fislling banks. Tt differs from the "Northeast Channel
line" adopted in 1976 which, according to its authors, had been based upon the
"equidistance/special circumstances" rule of Article 6 of the 1958 Geneva
Convention. The Chamber notes that the two successive lines put forward by Canada
were both drawn primarily with the continental shelf in mind, whereas the

United States lines were both drawn up initially on the basis of different
considerations though both trczated the fishery régime as essential.

IV. The applicable principles and rules of international law (paras. 79-112)

After observing that the terms "principles and rules" really convey one and
the same idea, the Chamber stresses that a distinction has to be made between such
principles or rules and what, rather, are equitable criteria or practical methods
for ensuring that a particular situation is dealt with in accordance with those

principles and rules. Of its nature, customary international law can only provide
a few basic legal principles s:erving as guidelines and cannot be expected also to
specify the equitable criteria to be applied or the practical methods to be
followed. The same may however not be true of international treaty law.

To determine the principles and rules of international law governing maritime
delimitation, the Chamber begins by examining the Geneva Convention of
29 April 1958 on the Continental Shelf, which has been ratified by both the Parties
to the case, who both also recognize that it is in force between them. In
particular the Chamber examines Article 6, paragraphs 1 and 2, f rom which a

principle of international law may be deduced to the effect that any delimitation
of a continental shelf effected unilaterally by one State regardless of the views
of the other State or States concerned is not opposable to those States. To this
principle may conceivably be added a latent rule that any agreement or other,

equivalent solution should involve the application of equitable criteria. The
Chamber goes on to consider the bearing on the problem of various judicial
decisions and to comment upon the work of the Third United Nations Conference on
the Law of the Sea, noting that certain provisions concerning the continental shelf
and the exclusive economic zone were, in the Convention of 1982, adopted without

any objections and may be regarded as consonant at present with general
international law on the question. As rzgasds the respect1 .e i~c?itions OF the Parties in the light of those
findirigs, the Chambcr IIOL~S llieir agreeinci:! as Co the existerice of a fundamental
IIO~II of 1~1Lernatioilal Iriw <-+!lii.ig [or a single or?rit_lme boundary to be deterniined
in accordance with the appiicable Law, in conformity wi th equitable principles,

havinç regard to al1 releviirit cirt:iimstai~ces, in order ts achieve an equitable
result. However, there 1s nu longer agreemenL between the Parties when each
separately seeks to ascertaJn whettier international law might alço contain other
mandatory rules in the same field. The Chamber rejects the Canadian argument from
geographical adjacency to the effect that a rule exists whereby a State any part of

whose coasts is less distant from the zones to be attributed than those of the
other State concerned would be entitled to have the zones recognized as its own.
The Chamber also finds unacceptable the distinction made by the United States
between "primary" and "secondary" coasts and the consequent preferential
relationship said to exist between the "principal" coasts and the maritime and
submarine areas situated frontally before them.

In concluding this part of its considerations, the Chamber sets out a more
precise reformulation of the fundamental nom acknowledged by the Parties:

"No maritime delimitation between States with opposite or adjacent

coasts may be effected unilaterally by one of those States. Such
delimitation must be sought and effected by means of an agreement,
following negotiations conducted in good faith and with the genuine
intention of achieving a positive result. Where, however, such agreement
cannot be achieved, delimitation should be effected by recourse to a

third party possessing the necessary competence.

In either case, delimitation is to be effected by the application of
equitable criteria and by the use of practical methods capable of
ensuring, with regard to the geographic configuration of the area and

other relevant circumstances, an equitable result." (Para. 112.)

V. The equitable criteria and practical methods applicable to the delimitation
(paras. 113-163)

Turning to the question of the criteria and methods which are capable of
ensuring an equitable result and whose application is prescribed by the above norm,
the Chamber is of the view that they must be looked for not in customary
international law but in positive international law, and in that connection it
examines those provided for by the 1958 Convention on the Continental Shelf, in

Article 6 (median line in the case of opposite coasts, lateral equidistance line in
the case of adjacent coasts). The Chamber points out that a treaty obligation
concerning the delimitation of the continental shelf cannot be extended so as to
apply to the superjacent waters and, after rejecting the Canadian argument that the
combined equidistance/special-circumstancr ule has become a rule of general

international law, finds that Article 6, while in force between the Parties, does
not entai1 either for them or for the Chamber any legal obligation to apply its
provisions to the present delimitation.

The Chamber next turns to the question whether any obligation of that kind can
have resulted £rom the conduct of the Parties and whether the conduct of one of

them might not have constituted an acquiescence in the application of a specific
method or resulted in a modus vivendi with regard to a line corresponding to suchan application. Deüling iirsL ~ith a Canadian argument that the conduct of the
United States had evinced a form of consent to the application of the equidistance
method, especially in the Georges Bank sector, the Chamber finds that reliance on
acquiescence or estoppel is niot warranted in the circumstances and ttiat ~11e condiict
of the Parties does not prove the exisLence of any such modus vivendi. As for the

argument of the United States based on Canada's failure to react to the Truman
Proclamation, that amounted to claimlng that delimitation must be effected in
accordance with equitable principles; consequently, the United States position on
that point merely referred back to the "fundamental nom" acknowledged by both
Parties. On the basis of that analysis, the Chamber concludes that the Parties, in

the current state of the law governing relations between them, are not bound, under
a rule of treaty law or other rule, to apply certain criteria or certain methods
for the establishment of the single maritime boundary, and that the Chamber is not
so bound either.

Regarding possible criteria, the Chamber does not consider that it would be
useful to undertake a more or less complete enumeration in the abstract of those
that might be theoretically conceivable, or an evaluation of their greater or
lesser degree of equity. It also notes, in regard to the practical methods, that
none would intrinsically brin,g greater justice or be of greater practical
usefulness
than others, and that there must be willingness to adopt a combination
of different methods whenever circumstances so require.

VI. The criteria and methods proposed by the Parties and the lines resulting frorn
their application to the delimitation (paras. 164-189)

Once the dispute had taken on its present dual dimension (first the
continental shelf and subsequczntly fisheries) both Parties took care to specify and
publish their respective claiins, proposing the application of very different
criteria and the use of very different practical methods. Each had successively

proposed two delimitation lines (Ann. 2, Maps Nos. 2 and 3).

The United States had first proposed, in 1976, a criterion attaching
determinative value to the natural, especially ecological, factors of the area.
Its line corresponded approxirnately to the line of the greatest depths, leaving

German Bank to Canada and Georges Bank to the United States. The Chamber considerç
that this line, inspired as it was by the objective of distributing fishery
resources in accordance with a "natural" criterion, was too biased towards one
aspect (fisheries) to be consildered as equitable in relation to the overall
problem. In 1982 the United States proposed a second line with the general

direction of the coast as its central idea, the criterion applied being that of the
frontal projection of the primary coastal front. This application resulted in a
perpendicular to the general direction of the coastline, ad justed however to take
account of various relevant c~~rcumstances, in particular such ecological
circumstances as the existence of fishing banks. The Chamber considers it almost

an essential condition for the use of such a method that the boundary to be drawn
should concern two countries ~rhose territories lie successively along a more or
less rectilinear coast, for a certain distance at least. But it would be difficult
to imagine a case less conduci.ve to the application of that method than the Gulf of
Maine case. The circumstances would moreover entai1 so many adjustments that the

character of the method would be completely distorted. As for the Canadian proposals, the Chamber considers together the two lines

proposed respectively in 1976 and 1977, as they are essentially based on the same
criterion, that of the equal division of disputed areas - and the same method --
equidistance. Canada described the first line as a strict equidistance line, and
the second as an equidistance line corrected on account of the special circumstance
formed by the protrusion of Nantucket Island and the Cape Cod peninsula, alleged to

be geographical anomalies that Canada is entitled to discount, so that its
delimitation line is displaced towards the West. The Chamber notes that in the
case before it the difference in the lengths of the two States' coastlines within
the delimitation area is particularly marked and would constitute a valid ground
for making a correction even if this factor in itself furnished neither a criterion
nor a method of delimitation. Furthermore, the Canadian line appears to neglect

the difference between two situations clearly distinguished by the 1958 Convention,
namely that of adjacent coasts and that of opposite coasts, and fails to take
account of the fact that the relationship of lateral adjacency between, on the one
hand, part of the coast of Nova Scotia and its prolongation across the opening of
the Bay of Fundy and, on the other hand, the coast of Maine, gives way to a

relationship of frontal opposition between the other relevant part of the coast of
Nova Scotia and the coast of Massachusetts. The Canadian line fails to allow for
this new relationship, which is nevertheless the most characteristic feature of the
objective situation in the context of which the delimitation is to be effected. W

VII. The criteria and methods held by the Chamber to be applicable. Line resulting
£rom their application to the delimitation (paras. 190-229)

The Chamber considers that, having regard to al1 those considerations, it must
put forward its own solution independently of the Parties. It must exclude

criteria which, however equitable they may appear in themselves, are not suited to
the delimitation of both of the two objects in respect of which the delimitation is
requested - the continental shelf and the fishery zones. Inevitably, criteria will
be preferred which, by their more neutral character, are best suited for use in a
multi-purpose delimitation. The Chamber feels bound to turn in the present case to

criteria more especially derived from geography, and it is inevitable that its
basic choice should favour the criterion whereby one should aim at an equal
division of areas where the maritime projections of the coasts of the States
between which delimitation is to be effected converge and overlap. However, some
corrections must be made to certain effects of applying that criterion that might
be unreasonable, so that the concurrent use of auxiliary criteria may appear
ri
indispensable. As regards the practical methods to be used for giving effect to
the criteria indicated, the Chamber considers that, like the criteria themselves,
they must be basically founded upon geography and be as suitable for the
delimitation of the sea-bed and subsoil as to that of the superjacent waters and
their living resources. In the outcome, theref ore, only geometrical methods will

serve .

Turning to the concrete choice of the methods it considers appropriate for
implementing the equitable criteria it has decided to apply, the Chamber notes that
the coastal configuration of the Gulf of Maine excludes any possibility of the
boundary's being formed by a basically unidirectional line, given the change of

situation noted in the geography of the Gulf. It is only in the northeastern
sector of the Gulf that the prevailing relationship of the coasts of the

United States...U~zitcd 'itate:: ancf Cdn~da if ciritt i tateral adjacency. In the sector çLoscsL to the
cloçing LLne, it is one of opposif-eneçs. In the Charnber'ç view it is therefoïe
ohvious ti-iat, between poinl li.an~l the line £rom Nantucket to Cape Sable, i.e.
within the limits of tl~s Gulf of Nairir ptopcr., the delinitniion lirre muse coinprise
two segrrierit.s,

In the case of the --rst segment, the one closest to the international
boundary terminus, there 1s no special circumstance to militate against the
division into, as far as possible, equal parts of the overlapping created by the
lateral superimposition of the maritime projections of the two States' coasts.
Rejecting the employment of a lateral equidistance line on account of the

disadvantages it is found to entail, the Chamber follows the method of drawing,
from point A, two perpendiculars to the two basic coastal lines, namely the line
from Cape Elizabeth to the international boundary termninus and the line running
thence t-O Cape Sable. At point A, those two perpendiculars form an acute angle of
2780. It is the bisector of this angle which is prescribed for the first sector of

the delimitation line (Ann. 2, Map No. 4).

In turning to the second segment, the Chamber proceeds by two stages. First,
it decides the method to be employed in view of the quasi-parallelism between the
coasts of Nova Scotia and ~assachLsetts. As these a;e opPosite coasts, the

application of a geometrical method can only result in the drawing of a median
delimitation line approximately parallel to them. The Chamber finds, however,
that, while a median line would be perfectly legitimate if the international
boundary ended in the very middle of the coast at the back of the Gulf, in the
actual circumstances where it is situated at the northeastern corner of the

rectangle which geometrically represents the shape of the Gulf, the use of a median
line would result in an unreasonable effect, in that it would give Canada the same
overall maritime projection in the delimitation area as if the entire eastern part
of the coast of Maine belonge~d to Canada instead of the United States. That being
so, the Chamber finds a second stage necessary, in which it corrects the median

line to take account of the undeniably important circumstance of the difference in
length between the two States' coastlines abutting on the delimitation area. As
the total length of the United States coastlines on the Gulf is approximately
284 nautical miles, and that of the Canadian coasts (including part of the coast of
the Bay of Fundy) is approximately 206 nautical miles, the ratio of the coastlines
is 1.38 to 1. However, a further correction is necessitated by the presence of

Seal Island off Nova Scotia. The Chamber considers that it would be excessive to
consider the coastline of Nov,li Scotia as displaced in a southwesterly direction by
the entire distance between Seal Island and that coast, and therefore considers it
appropriate to attribute half effect to the island. Taking that into account, the
ratio to be applied to determine the position of the corrected median line on a

line across the Gulf between ithe points where the coasts of Nova Scotia and
Massachusetts are closest (i.e. a line £rom the tip of Cape Cod to Chebogue Point)
becomes 1.32 to 1. The second segment of the delimitation will therefore
correspond to the median line as thus corrected, from its intersection with the
bisector drawn from point A (first segment) to the point where it reaches the

closing line of the Gulf (Ann. 2, Map No. 4).

As for the third segment of the delimitation, relating to that part of the
delimitation area lying outsitie the Gulf of Maine, this portion of the line 1s

situated...situated throughouL iLç lengeh in the open ocean. It appears obvious Lhat the mosî
appropriate geometrical metbod Cor this seginenL is the drawing of a perpendicular
to the closing line of the Giilf. One advantage of this metf~od is to give the final
segment of the line prac~ically Ilie same orientation as that given by both Parties
to the final portion of the respective lines they envisaged. As for the exact

point on the closing line from wliich the perpendiculnr should be drawn seawards, it
will coincide with the intersection of that line with the corrected median line.
Starting from that point, the third segment crosses Georges Bank between points on
the 100-fathom depth line wiLh the following CO-ordinates:

The terminus of this final segment will be situated within the triangle defined by
the Special Agreement and coincide with the last point it reaches within the
overlapping of the respective 200-mile zones claimed by the two States.

VIII. Verification of the equitable character of the result (paras. 230-24-1)

Having drawn the delimitation line requested by the Parties, the final task of

the Chamber is to verify whether the result obtained can be considered as
intrinsically equitable in the light of al1 the circumstances. While such
verification is not absolutely necessary where the first two segments of the line
are concerned, since the Chamber's guiding parameters were provided by geography,
the situation is different as regards the third segment, which is the one of

greatest concern to the Parties on account of the presence in the area it traverses
of Georges Bank, the principal stake in the proceedings on account of the potential
resources of its subsoil and the economic importance of its fisheries.

In the eyes of the United States, the decisive factor lies in the fishing
carried on by the United States and its nationals ever since the country's

independence and even before, activities which they are held to have been alone in
pursuing over the greater part of that period, and which were accompanied by other
maritime activities concerning navigational assistance, rescue, research, defence,
etc. Canada laid greater emphasis on the socio-economic aspects, concentrating on
the recent past, especially the last 15 years, and presenting as an equitable

principle the idea that a single maritime boundary should ensure the maintenance of
the existing structures of fishing which, according to it, were of vital importance *
to the coastal communities of the area.

The Chamber explains why it cannot subscribe to these contentions and finds

that it is clearly out of the question to consider the respective scale of
activities in the domain of fishing or petroleum exploitation as an equitable
criterion to be applied in determining the delimitation line. What the Chamber
would regard as a legitimate scruple lies rather in concern lest, unexpectedly, the
overall result should appear radically inequitable as entailing disastrous
repercussions on the subsistence and economic development of the populations

concerned. It considers that there is no reason to fear any such danger in the
present case on account of the Chamber1s choice of delimitation line or, more
especially, the course of its third segment, and concludes that the overall result
of the delimitation is equitable. Noting the long tradition of friendly and
fruitful CO-operation in maritime matters between Canada and the United States, the

Chamber considers that the Parties will be able to surmount any difficulties and
take the right steps to ensure the positive development of their activities in the
important domains concerned. For these reascjiis, the Chamber renders the decision couclied in the foPlowing
ternis :

AL--ative provisions of the Chamber's Judgment

by four votes to one,

DECIDES

That the course of the single maritime boundary that divides the
continental shelf and the exclusive fisheries zones of Canada and the

United States of America in the Area referred to in the Special Agreement
concluded by those two States on 29 March 1979 shall be defined by geodetic
lines connecting the points with the following CO-ordinates:

Latitude North Longitude West

IN FAVOUR: President Ago; Judges Mosler and Schwebel, Judge ad hoc Cohen;

AGAINST : Judge Gros. "

*

(For the location of the CO-ordinates given above, see Ann. 2, Map No. 4.) Annex 1 to press communiqué - .34/35

Sununary of Opinions appended to the
- -
Judment of the Chamber

Separate Opinion by Juidge Schwebel

Judge Schwebel voted for the Chamber's Judgment because he
agreed with the essentials of its analysis and reasoning and found

the resultant line of delimitation to be "not inequitable". In his
view, the Chamber was right to exclude both the claims of Canada and
of the United States, not with a view towards "splitting the

difference" between them but because those claims were insufficiently
grounded in law and equity. It was right - contrary to the
United States position - to divide Georges Bank between the

United States and Canada. However, Judge Schwebel maintained that
the line of delimitation drawn by the Chamber was open to challenge.

The line was corirectly based on dividing the areas of
overlapping United States and Canadian jurisdiction eqiially, subject,
however, to a critical adjustment designed to take account of the

fact that the bulk of the Gulf of Maine is bordered by territory of
the United States. In Judge Schwebel's view, the adjustment applied
by the Chamber was inadequate, because it treated the lengths of the

coasts of the Bay of Fundy up to the limit of Canadian territorial
waters as part of the Gulf of Maine. In his opinion, only that
portion of the Bay of Fundy which faces the Gulf of Maine should have
been included in that calculation of proportionality. Had that been

done, the delimitatioin line would have been shifted towards
Nova Scotia so as to i3~~0rd the United States a significantly larger
zone. Nevertheless, Judge Schwebel acknowledged that the equitable

considerations which Led the Chamber and him to differing conclusions
on this key issue were open to more than one interpretation.Dissenting Opinion by Judge Gros

Judge Gros points out that the case-law took a new turning when the

International Court of Justice gave its Judgment on 24 February 1987 in
the case concerning the Continental Shelf ('runisia/~ib~ail Arab
Jamahiriya). That Judgment brought to an end the sitiiation result inp,

from the 1958 Convention on the Continental Shelf as it had heen
previously interpreted by the Court, in its 1969 Judgment on the
North Sea Continental Shelf , and by the Anglo-Frerich Court of Arbi t-rat.ioii

in its Decision of 1977.

This new turning, confi rmt4 by Che Chnmbe r' s Judgment , amouiii~rl to

exclusive reliance on the work of the Third Conference of the W
United Nations on the Law of ihe Sea, but this Conferonce produced
agreement plus equity as its prescription for maritime delimitation, a

solution which Judge Gros considers very feeble.

In the eyes of Judge Gros, moreover, a vague conception of equity

which departs from the firmly controlled erliiily of 1969 and 1977 has nlso
resulted in a departure from tlie way international lrgal disputes ~ised to
be ad judicated - he has in mi nd the way courts nf +.qui ty t>mcrgpd in

England. The Chamber's reasoning logically irnplies, lie corisicle rs, t 1i~i
there is no longer any legal rule goverriing inaritiinc cic~limitation
because the principles re1ic.d on by the Cli,tinber, thi. methods ernp1oyc.d 10

put thein into practice, and i-ht corrections in,-itleto itie wliule process,
transform ihe entire operat ion, accordi iig to .Jiidgc> Gros, i iito an c>xiBrri 5r.
wherein it will henceforth be open to ç.;ich jiidq*. to rlcxci(ic ;it Iiis

discretion what is eqiiitable.

Without going so Ear as ~o maintain th;il t-lie lin,, tlr,iwri by [lit.

Chamber is inequitable, Judgcl Gros ask~ whc3ther it h~.: renl ly bcc.11
demonstrated to be more equitahle liar ri .iiiy ofttic. otlic~r lines consider~(1 W
in the course of the proccedinys. Annex 2 to presscomanuniqu 8é4/35

The maps incorporated in the present Judgment were prepared on the
basis of documents submitted to the Court by the Parties, and their
sole -ur-ose is to pro~vide a visual illustration of the relevant
paragraphs of the Judgment .Limits of fishery zones and continental shelf claimed by the Parties,
at 1 March 1977

(see paras. 68-70)

United States line -, --------- -

Canadian line ,. , ., ,, ., ., ., ., .- .- MAP No. 4

DelimitationLine drawnby the chamberDelimitation linesproposedby the Partiesbeforethe Chamber
(seeparas. 71, 77-78)

United Statesline , - -.- - - - - - -
Canadian Line ---. -. -. - .-. -. - .-.Ligne de délimitation tracée par la chambre.

Delimitation line drawn by the Chamber.