REPLYOF THE
UNITEDSïATESOFAMERICA
RÉPLIQUEDES ÉTATS-UNIS
D'AMÉRIQUE REPLY SUBMIïTED BYTHE
UNITEDSTATES OF AMERICA
INTRODUCTION
1. This Reply isfiled in accordancewith the 27July 1983Order issued
by the Presidentof the Chamber formedto deal withthe Case Concerning
Delimitationof the Maritime Boundaryin the Gulf of Maine Area fixing
12December 1983as the time limit for the filingof Replies bythe United
States of America and by Canada (the "Parties").
2. In accordance with Article 49 of the Rules of Court, the purposeof
this Reply is not merelyto reiterate the Parties' contentions, butto bring
out the major issuesdividingthem '.
3. This Reply is divided into the followingparts:
Part 1is an overviewof this case.
Part II addresses the history of this dispute. It demonstrates that
Canada consistentlyhas adopted unreasonableand inequitable posi-
tionson matters relating to this case.
Part III addresses the fundamental legal difference between the
positionsof the Parties: Canada asks the Court to rule on the basisof
previouslyrejected legal arguments and radically to alter established
law, whereas the United States asks the Court to rule on the basisof
established law,reinforced byrecent trends.
Part IV addresses the difference between the Parties concerning
the relevant circumstances in the Gulf of Maine area and the
application of the equidistance and perpendicular methodsin those
circumstances.
Part V providesa summary of the United States case.
The final part of the Reply setsforth the United States Submissionsto
the Chamber. In addition, there is a two-volume Annex containing
documentary and supplementalanalytical material.
'ThisReplyis notintended to addrese sveryelementof the differencebsetween
the Parties.The fact that an issueis not addressedhereindocs not indicate
concurrence bythe UnitedStates in Canada'sposition withrespectthereto.The
UnitedStatesreservesits rightto address ansuchissue intheoralproceedings. PART1. OVERVIEW
4. The Memorialsand Counter-Memorialsof the Parties have brought
out the central issues before the Court in this case. Canada appears to
agree with the United States that there is a continuum of law pertaining
to the delimitation of al1 maritime boundaries between neighboring
States, as expressedin the Fundamental Rule that maritime boundaries
are to be delimitedin accordancewithequitable principles,taking account
ofthe relevant circumstances,soas to achievean equitable result. In fact,
however,Canada asks this Court tocreate radicallynewand different law
based upon notionsthat the Court and other tribunals previously have
rejected.
5. Canada's objective is to obtain what it regards as "an equitable
division of the resources of the relevant area '".The United States
believesthat the proper functionof the Court is to delimit the maritime
zones appertaining to the Parties in accordance with law, and not to
apportionthe resourcesof the area on the basisof an equitablesharing.
6. Canada asks the Court to disregard the United States coastline
facing Georges Bankat Maine and New Hampshire,and to attribute to
Canada a large part of the continental shelfand fisheries zone that lie
solelyin front of the United States coast. Unfortunately forCanada, there
is no rule or principleof law that authorizes the Court to attribute to one
State a maritime areathat lies solely infrontof the coastofanother State.
7. As a result, Canada, in its efforts to prevail, is forced to rely upon
two notions that the International Court of Justice has rejected as
principles for delimitation between neighboring States: the discarded
notionsof (1)proximityand (2)economic dependenceand relative wealth.
Canada therefore is asking the Court to reconsider, and indeed to
overturn, the principles established in the North Seo Continental Shell'
and Tunisialtibya cases '.
8. In support of this startling stance, Canada contends that the Third
United Nations Conference on the Law of the Sea displaced the
established law of maritime delimitation. Canada argues that a new law
has emerged in which proximityis the basic rule. Distance, in Canada's
'CanadianCounter-Mcmoriap l.ara497.
North Seo ContinentoS lheK JudgmenrI..C.J. Reports1969, p.3.
'ContinentaSl heU(Tunisio/Libyon Arob Jomohiriyo)J,udgment.I.C.J. Reports
1982. p.18.161 REPLYOF THE UNITEDSTATES 377
view, has now become "the principal expression of adjacency and
'".Equally startling is Canada's reliance upon the rejected
appurtenance
notions of economic dependence and relative wealth, notwithstanding the
fact that, under established law as reinforced by recent trends, a coastal
State is entitled to a 200-nautical-mile resource zone regardless of
whether that State uses the resources of the zone.
9. Canada presumably would no1 have embraced these previously
rejected approaches if there were a credible alternative. Canada is forced
to such extremes because the boundary tbat it proposes can be justified
only upon the basis of an application of the equidistance method. The
United States has shown that Canada's application of that method is
inequitable in this case. Thus, Canada asks the Court to delimit a vast
maritime area upon the basis of two isolated, protruding coastal points,
rather than upon the basis of the coasts themselves and the areas in front
of those coasts. As Canada appears to recognize, the Court cannot justify
a boundary that cuts off the United States from significant areas in front
of itsCoastwithout departing radically from established law.
10. In the view of the United States, the principal issue before the
Court is whether well-established rules and principles applicable to the
delimitation of the continental shelf and exclusive fishing zones also are
applicable to the delimitation of this single maritime boundary, or
whether a new law must be fashioned by the Court upon the basis of
previously rejected theories.
II. It is the view of the United States that the Third United Nations
Conference on the Law of the Sea clearly and unequivocally confirmed for
purposes of delimitation the same rules and principles that were estab-
lished previously in international law. The United States further believes
that there is no basis whatsoever for concluding that the Conference
afforded the equidistance method of delimitation a greater role than does
Article 6 of the 1958 Convention on the Continental Shelf. Canada is
asking the Court to disregard these basic truths in favor of discarded
notions in order to gain in perpetuity the right to drill for oil and gas and
to fish in areas that otherwise appertain tothe United States under the es-
tablished principles of maritime boundary delimitation. Canada in effect
is beseeching the Court to accord greater weight to Canada's recent
fishing activity, largely limited to scallops, than to the basic equitable
principle that a delimitation mus1 respect the relationship between the
relevant coasts of the Parties and the maritime areas lying in front of
those coasts. Canada's position utterly disregards not only that basic
1CanadianCounter-Mernorial. para .68378 GULFOF MAINE 171
equitable principle, but also the principles of resource conservation and
management and of dispute minimization. All of these principles will best
be served by a boundary that respects the Northeast Channel, an
important geomorphological feature that marks a division in the marine
environment of the Gulf of Maine area ',including a division of most of
the commercially important fish stocks.
12. With respect to the equitable principle that relevant circumstances
must be taken into account, the United States Mémorial and Counter-
Memorial have shown that al1of the relevant circumstances of this case
support a delimitation that respects the extension of the United States
coastal front at Maine and New Hampshire through the Gulf of Maine
and seaward across Georges Bank and beyond. The Canadian Memorial
and Counter-Memorial disregard the coasts of Maine and New Hamp-
shire; ignore the significance of the Northeast Channel as an important
geomorphological feature, one that marks the only natural boundary in
the Gulf of Maine area; dismiss longstanding United States fishing
interests on Georges Bank; make other assertions unsupported by the
evidence; rnisapply the proportionality test; and engage in colorful but
irrelevant rhetoric.
13. The United States regrets the tone of the Canadian Counter-
Memorial and its many unfair characterirations of United States actions
and positions, and will not reply in kind. The United States must respond,
however, tothe Canadian charge that the United States boundary position
is "expansionist" and "monopolistic". It was Canada, and not the United
States, that pursued a policy of aggressively seeking to expand coastal-
State maritime jurisdiction in the 1960s and 1970s. Moreover, it was
Canada, and not the United States, that chose to expand its claim in the
Gulf of Maine area in the midst of negotiations. Further, contrary to
Canada's assertions, the United States never has accepted an equidistant
line for anyjurisdictional purpose in the Gulf of Maine area. The United
States consistently has treated Georges Bank as within its jurisdiction to
the fullextent permissible under international law.
14. With respect to the charge of monopoly, the United States need
only note that, whereas Canada vigorously has pursued its exclusive
'In this Reply,as in the UnitedStates Memorial[para. 25, n.21 and Counter-
Mernorial[para.16,n. 21"Gulf of Maine" refers to the seabed anbdodyof water
landward ofa hypotheticallinebetweenNantucketIslandand CapeSable.It does
notincludethe Bayof Fundy. "Gulfof MaineBasin"refers to theGulfof Maine,
exceptfor that part of the Scotian Shelfanduperjacentwaters that are in the
Gulfof Maine."Gulf of Maine area" refers tothe broaderarea described inthe
UnitedStatesMemorial and Counter-Memorial, i.e.,"the coasts and geographical
featuresfrornNantucketIsland, Massachusetts, to Cape CansoN,ovaScotia,and
the maritime areas seaward fromthese coasts to the limit of coastal-State
jurisdiction" [United StatesCounter-Memorial. pa16.1181 REPLYOFTHE UNITEDSTATES 379
jurisdiction over the fisheries off its coast, it seeks to share not these
fisheries, but onlythose fisheries off the coast of the United States. The
Canadian position in this regard is predicated upon the erroneous
assumption that it is the duty of the Court to divide the resources within
the area claimed by both Parties. If an area lies within the exclusive
jurisdiction ofa State, jurisdiction overthat area isa matter of legal right,
and doesnot amount to an invidious monopolizationor an improperdenial
of sharing.
15. The United States believesthat the boundary claim of the United
States in the Gulf of Maine area is fullyconsistent withthe Fundamental
Rule that maritime boundaries are to be delimited in accordance with
equitable principles,taking account of the relevant circumstancesin the
area, so as to achieve an equitable result, whereas theCanadian line not
onlyisinconsistentwiththat nile,butseeksradicallyto alterit. PART II.THEHISTORYOFTHE DISPUTEINPROPER
PERSPECTIVE:CANADAHASASSERTEDUNREASONABLE
INTRODUCTION
16. The Canadian Counter-Memorial refers to the United States
boundary position as extravagant ', "monopolistic '". "eccentric "',
.expansionist '",and the latest step in a pattern of "progressive encroach-
ment *"by the United States upon Canada's purported interests. Canada
ignores that the differences between the Parties in this case, and the
difficulties encountered in attempting to resolve those differences, arise
out of the expansive posture that Canada adopted and vigorously has
pursued with respect to al1 of its claims to maritime jurisdiction. An
examination of Canada's arguments reveals that it is Canada that has
raised excessive claims in this case.
'Canadian Counter-Mernorial, paras.26and 44.
'The Canadian Counter-Mernorialis replete with references to"rnonopoly"or
"monopolistic"see.e.g..paras. 17and n.1 thereto, 18,27,48. 87, 242,245, 401.
497, 500. SIS, 519. 523.and 526.
'Canadian Counter-Mernorial.para. 44.
'Canadian Counter-Mernorial, para.227.
'Canadian Counter-Mernorial, para.21. CHAPTER1
MANY OF THE DISAGREEMENTSBETWEENTHE PARTIES IN
THIS CASE ARISEOUT OF, AND REFLECT,THElR DIFFERENT
ATTITUDESCONCERNINGTHE LAWOFTHE SEA
17. The United States and Canada have maintained different ap-
proaches to the law of the sea that date at least to the First United
Nations Conference on the Law of the Sea in 1958.At that lime, Canada
becarne a principal proponent of a broad definition of the continental
shelf, supporting an expansion beyond the traditional outer limit of the
200-meter (100-fathom)-depth contour. Canada was a leading advocate of
extensivefisheriesjurisdiction forcoastal States. Canada also carnpaigned
for straight baselines, for a broad territorial sea, and for extensive
pollution-control jurisdiction. The United States sought 10 limit the
seaward extension of coastal-State jurisdiction and to preserve the
traditional freedoms of the high seas. These abiding differences were
carried forward in the Third United Nations Conference on the Law of
the Sea, and, eventually, in the negotiations that resulted in the failed
1979east Coastfisheries agreement.
SECTION1. TheDifferencesBetweenthePartiesConcerning the Lawof
theSea FirstSurfacedat tbe 1958 Lawof the Sea ConferenceandHave
PlaguedanOtberwiseGenerallyHarmonious Bilateral Relationship
18. In the years following World War II, the United States and
Canada generally have pursued divergent interests regarding the law of
the sea. Canada was one of the first States to propose the concept of a
fishing zone beyond the territorial sea'.Canada,sought to further this
interest at the 1958 Geneva Conference, where it introduced proposais
designed to terminate the traditional foreign fisheries off its co'.At
the Conference, Canada also attacked the traditional use of the 100-
fathom-depth contour as the definition of the continental shelf, and
provoked the debate that ultimately resulted in the addition of the
'Canada'scommentsupon the International Law Commission'sReport on the
Lawof the Sea proposeda 12-nautical-mile contiguosone.". .. but withthe
modificationthat, withinthat zone,the coastalatc should havethe exclusive
rightofregulation and contrlffishing. Rightsoverfisheriesaccordedbycha
zoneshould,intheviewofthe CanadianGovernment,beascompleteasthosethat
are afforded toa coastalstate withinthemitsof territorial wa".U.N. Doc.'
AJCONF. 1315.
'See. e.gU. N.Doc. AJCONF. 131'2.1/ L. 771and Revs.1-3.382 GULFOFMAINE 1141
"exploitability test" to the definition of the continental shelf in interna-
tional law '.
19. The conclusion of the 1958 and 1960 Conferences marked a
turning point in Canada's policy toward the law of the sea. Canada
thereafter reinforced and proceeded even further inits expansive policy.
The then Legal Adviser of Canada's Department of External Affairs
wrote in 1973:
"During the early 50's, Canada had already been among the first
to launch the idea of a flexible approach to the definition of a
coastal State's sovereign rights over the resources of the continental
shelf ...2.
"Because Canada believed that a twelve-mile exclusive fishing
zone would be in its own national interests . .it look the initiative in
1956 to define the concept and waged a remarkable worldwide
campaign to get it accepted from 1958 to the early 60's. Failing to
obrain an internarionallegal endorsementfor such an extension.
Canada went ahead on a unilateral basis '."
..........................
". . the most decisive act in the whole Canadian story over the past
two decades was the placing in 1970 ofnew reservations on Canada S
occeptanceof the compulsoryjurisdicrion of ihe International Court
so as to exclude jurisdicrion over 'disputes arising oui of or
concerningjurisdiction or righis claimed or exercised by Canada in
respecrofihe conservation,managementor exploitaiion of the living
resources of the sea, or in respect of the prevention or control of
'The Summary Records of the Conferencerecord that the Canadian representa-
tive, speakingof the 100-fathom. or200-meter-depthcontour, definition,stated:
"[~Jonvenientthough that approach was, il failcd to take in10account certain
natural geographical featureswhich might occur beyondthat depth." [Summary
Records, 12th Mtg.,19Mar. 1958.para. 32. U. N. Doc.AJCONF. 13JC.4JSR.
12.He proposecian alternate formulain twoparts:
"First, where the continental shelfwas geographically well-defined,the
boundary should be set at its actual edge. Second,where the shelf was ill-
defined, orwhere there was no shelf in a geographicalsense,the boundary
might be set at some precise depth which would besufficient to meet
foreseeablepracticalrequirementsof exploitation."
Ibid..para. 35.
'A. Gotlieb andC. Dalfen,"National Jurisdiction andlnternational Responsibil-
ity:NewCanadian Approachesto International Law", in67 Anrerican Journal of
InrernoiionaL l aw.1973,pp. 229,233.Annex 1.
' Ibid.p. 234.[Emphasisadded.][151 REPLYOFTHE UNITED STATES 383
pollution or contamination of the marine environment in marine
areas adjacent io the coast of Canada: This action made it possible
for the Canadian Governrnent to avoid the necessiiy of seeking
compromise resolurions or agreements. 11was nowfree to art in the
absence of agreement. .."'.
..........................
"It is the unilateral measures . . thai more directly represent the
recent Canadian reorientarion. in that they reflect both a heightened
concern with territorial integrity and, even more significantly, a new
willingness to take rneasures to protect that integrity, even al the
risk4ramatically increased by the International Court of Justice
reservation-ofappearing to iiisregard international legalprecedents
and procedures '."
These words illuminate the historical record portrayed by Canada in its
Memorial and Counter-Memorial. Canada fails therein to point out that,
by the 1960s, it had embarked upon a carefully considered course to
expand its maritime jurisdiction through a program of diplomatic and,
where necessary, unilateral actions.
20. In retrospect, it is clear that the exploration permits pertaining to
Georges Bank issued by Canada beginning in 1964 were but one element
of this broader onslaught. There is a crucial distinction, however. between
the issuance of the oil and gas permits and the other actions bearing on
the law of the sea that were undertaken by the Canadian government in
the 1960s. In the former case. there was neither notification 10, nor
consultation with, the United States government. In al1other cases, action
was taken only after extensive discussion within diplomatic channels.
21. Thus, only after consultations at the level of the President and
Prime Minister' did Canada enact the 1964 Territorial Sea and Fishing
Zones Act <,which provided for straight baselines and for the establish-
ment of a nine-nautical-mile fishing zone beyond the territorial sea. The
subsequent Orders in Council of 1967 and 1969 that promulgated specific
'Gotlieband Dalfen,op.cil.. p. 235.[Emphasisadded.]
Ibid., p. 245. [Emphasisadded.]
'President Kennedy and Prime hlinister Pearson met on 10-11 May 1963 in
Hyannis Port, Massachusetts.Among other issues, they discusseddifferences
between the United States and Canada relating to the law of the sea. The
President reservedthe UnitedStates position with respect to Canada'sproposed
extensionof fisheriesjurisdictionto 12 nautical miles. For the tex1of the joint
communiquéissuedat the closeof this meeting, see UnitedStates Department of
State Bullerin.Vol.XLVIII, No. 1248,27 May 1963,pp.815-817.Annex2.
'Territorial Sea and Fishing ZonesAct (Statutes of Canada 1964-1965,Chap.
22).Canadian Memorial, Annexes,Vol.II, Annex 17.384 GULFOF MAINE il61
straight baselines ',the 1970amendment to the 1964 Territorial Sea and
Fishing Zones Act and the Arctic Waters Pollution Prevention Act ',al1
were enacted by Canada after extensive high-level diplomatic consulta-
tions '.
22. The amended Territorial Sea and Fishing Zones Act extended Can-
ada's territorial sea from three to 12 nautical miles. That 1970 amendment
also authorized the establishment of newfishing zonesin "areas of the sea ad-
jacent to the coast of Canada '". This sweeping authorization initially was
applied to proclaim "fisheries closing lines" for certain bodies of water, the
effect of which wasto create areas of exclusiveCanadian fisheriesjurisdiction
that extended beyond its 12-nautical-mileterritorial sea '.On the east coast.
the areas that Canada unilaterally closed in 1970 were the entire Gulf of St.
Lawrence and the Bay of Fundy '.Subsequently. the same authorization was
invoked by the Canadian Government in 1977 to proclaim its 200-nautical-
mile fisheries zone.
23. Under its Arctic Waters Pollution Prevention Act, Canada, also in
1970, claimed the right to control al1 forms of shipping within a zone
extending 100 nautical miles offshore in the Arctic'. Canada promulgat-
ed this national legislation unilaterally, without regard to international
precedents.
24. Apparently in anticipation of a possible legal challenge by the
United States Canada, again in 1970, substituted a new declaration of
' Canadian Mernorial,Annexes.Vol. II, Annexes20 and 21.The United States
protested the establishmentof these straight haselines. Note fromthe Dept. of
State to Emhassyof Canada, I Nov. 1967;and Note fromthe Dept. of State to
Embassyof Canada, 25 Apr. 1969. Annex 4.
' An Act toAmendthe Territorial Seaand Fishing Zones Act (ReviseS dtatutes of
Canada, 1970, 1st Supp., Chap. 45). Canadian Mernorial, Annexes. Vol. II,
Annex23.
'AnAct to prevent pollutionofareas ofthe arctic waters adjacent tothe mainland
and islandsof the Canadian arctic (RevisedStatutes of Canada, 1970, 1stSupp.,
Chap. 2).Annex 5.
' Houseof Commons~ebates. 16Apr. 1970, p. 5953.Annen3.
'Section 5.1of the Act; para. 21, n. 2,supra.
' Fishing Zonesof Canada (Zones 1,2 and 3)Order, Order in CouncilP.C. 1971-
366. 25 Feb. 1971. TheCanada Gazette. Part II. Vol. 105,No. 5, 10Mar. 1971.
Canadian Mernorial,Annexes,Vol.II, Annex24.
'1971amendmentsto the Canadian ShippingAct extendedCanada'sjurisdiction
overal1vesselsin the newfishingzonesfor purposesof the preventionand wntrol
of marinepollution.
T.H.J. Legault, "Maritime Clairns", in Canadian Perspectiveson Infernarional
Lawand Organirations. 1974,pp. 377. 388. Annex6.
'During the 1960s. senior United States Governrnent officiais made several
proposais offeringto submit differencesbetweenthe United States and Canada
regardingthe lawof the sea to the International Courtof Justice.1171 REPLV OFTHE UNITEDSTATES 385
acceptance of the compulsory jurisdiction of the International Court of
Justice. This revised declaration generally excluded from the jurisdiction
of the Court al1matters relating toCanada's views onthe law of the sea '.
The United States promptly protested Canada's "assertions of claims to
unilateral extension of jurisdiction or sovereignty on the high seas'" and,
notwithstanding Canada's reservation, invited Canada to submit the issue
to the Court. The United States note of 14April 1970stated:
"The views of the United States and those of Canada differ with
regard to the freedom of the high seas. As indicated earlier, the
United States rejects Canada's assertions of unilateral jurisdiction,
and will not recognize their validity. Accordingly, the United States
Government now invites Canada to submit these differences regard-
ing pollution and fisheries jurisdiction to the International Court of
Justice, the forum where disputes of this nature should rightfully be
settled. With regard to Canada's simultaneous reservation to the
compulsory jurisdiction of the Court, the United States Government
must state its disappointment over the Canadian Government's
apparent lack of confidence in the international judicial process, and
the United States Government calls upon that Government to join
with the United States in submitting this dispute to the Court despite
the reservation l."
25. Canada, however, refused to submit its actions to a legal test. In re-
sponse to the United States Note of 14 April 1970,Canada stated:
"The new reservation does not in any way reflect lack of confi-
dence in the Court but takes into account the limitations within
which the Court must operate and the deficiencies of the law which it
must interpret and apply '".
The Canadian government sought to justify this development before its
Parliament by noting that Canada was not prepared to litigate issues
where the law was "inadequate, non-existent or irrelevant '".
SECTION 2. The Parties Maintained Different Attitudes Concerning the
Purposes of the Third United Nations Conference on the Law of the Sea
26. The United States supported the convening of the Third United
Nations Conference on the Law of the Sea in the hope that it would both
'The Declarationby Canada recognizingas compulsorythe jurisdictionof the
Court,dated 7 Apr. 1970,is reprinfedaf Annex 7.
'Note from the Dept. ofState to Embassyof Canada, 14 Apr. 1970.Annex 8.
'Note No. 105from EmbassyofCanada to theDept.ofState, 16Apr. 1970.The
UnitedStatesrespondedinNote from the Depto .fStateto Embassyof Canada.5
May 1970.Annex 8.
'Houseof CommonsDebates,16Apr. 1970, p. 5952.Annex 3.386 GULFOF MAINE il81
arrest the expanding claims of States to maritime jurisdiction and
preserve traditional oceans law, particularly navigational rights and
freedoms, in a changing world. The United States did not view the
Conference as a vehicle for expanding its own coastal-State jurisdiction.
Quite to the contrary, the United States hoped to forestall the expansion
of coastal-State claims beyond the narrowest negotiable limits.
27. The aspirations of many States, including Canada, were different.
They entered the Conference with the express purposes of limiting the
regime of the freedom of the high seas and of legitimizing the expansion
of their coastal-State jurisdiction. In 1974,together with a small group of
other States, Canada introduced at the Conference a working paper that
proposed a 12-nautical-mile territorial sea, a 200-nautical-mile economic
zone, and sovereign rights and jurisdiction over the resources of the
continental margin to its greatest breadth '.In introducing this document,
the Canadian representative stated that "the existing law of the sea was
incomplete, inadequate, and anachronistic", and that "there mus1 be a
radical restructuring of existing law'".
28. By 1975, a basic compromise had been negotiated at the Confer-
ence. The United States and other maritime States accepted the coastal-
resource zone of 200 nautical miles desired by Canada and others, in
return for recognition of the navigational rights and freedoms required by
the United States and other maritime States: a 12-nautical-mile limit
upon the territorial sea, free transit through international Straits, and the
maintenance of high-seas freedoms in the economic zone. The acceptance
of this compromise at the Conference, in turn, led to the acceptance of its
terms in the practice of States. Approximately 16States unilaterally had
declared some type of 200-nautical-mile resource zone by late 1975.
Canada fully supported the growing development.
29. As additional States claimed 200-nautical-mile resource zones,
many United States fishermen and the Congress questioned why the
United States should no1do likewise. The technological development and
the increasing size of the distant-water fishing fleets were threatening the
very existence of certain fishery resources and the economic survival of
the United States fishing industry. The United States Departments of
State and of Defense were of the viewthat the United States should await
the negotiation of an acceptable and comprehensive law of the sea treaty
that, inrer alia, would guarantee navigational rights and provide for
coastal-State resource jurisdiction. Nevertheless, the Congress responded
in April of 1976, enacting the Fishery Conservation and Management
'Third United Nations Conferencoen the Lawof the Sea, OfficiaiRecords, Vol.
II,PP. 81-83,U.N. Doc.A/CONF. 621L.4.
'CornmentsofJ.A. Beesley,Third United Nations Conferenco enthe Lawof the
Sea, Official RecordsVol.1, p.202,para. 57, U.N. Doc.A/CONF. 62/SR. 46.388 GULFOF MAINE Po1
final agreement by 1 December 1977. The goal was to reach a comprehen-
sive settlement of al1these matters before the 1977 modus vivendi expired
on 31 December 1977. Such a goal proved elusive.
32. On 14 October 1977, one day before the special negotiators were
to report tothe President and tothe Prime Minister on the principles of a
comprehensive solution, Canada informed officials of the United States
Department of State of an analysis that Canada had undertaken of the
legal implications of the decision in the Anglo-French Arbitration'.
During this meeting, al a critical juncture in the negotations, Canada for
the first time informed the United States that it intended to abandon its
equidistant line and expand its claim to include another 3,000 square
nautical miles, mostly on Georges Bank'. Moreover, and still during the
course of negotiations, Canada expelled United States fishermen from
Canada's undisputed 200-nautical-mile zone, notwithstanding the more
than 200 years of fishing by the United States within that area.
'Decisions of the Court ofArbitration of 30 June 1977 and 14 March 1978
[hereinafter Decisions].O3 November 1977, Canada sent the United States a
diplomaticnote confirmingthe discussionsthat look place on 14 October 1977.
[NoteNo. GNT-067 fromthe Dept.of ExternalAffairs10Embassyof the United
States; United StatesMcmorial,Anncx 69, Vol. IV.] The note summarizes the
Canadian legal analysis that was presented to United States officials. That
analysisconsistedof two parts. The first was a short statement by Ambassador
Cadieux rationalizingthe Canadian decisionto change itspositionfollowingthe
AngleFrench Arbitration [Annex 9k the sewnd wnsisted of a detailed legal
exposition by Mr. M. D. Copithorne, the Canadian Legal Adviser (thc "14
October 1977 Canadian Legal Statement"), in which, in the words of the
wntemporaneousstatement of Ambassador Cadieux[Annex9b Canada set forth
"the most recent trends in our thinking at the official level...the advice
which islikelytbc availableto Canadian politicalleadersas they maketheir de:
cisionson matters which are within Ourterms of reference". In this Reply. the
UnitedStateswillrefer to certaindetailsofthat 14October 1977Canadian Legal
Statement.
'UnitedStates Memorial.para. 155and Annex69,Vol.IV.The perceptionofthe
United States was that the Canadian action was designedto avoid the thrust of
theAnglo-French Arbitration Award (whichrejected the lcgal theories upon
which the Canadian equidistant linewas predicated), and toleave the original
Canadian equidistant linelocated between the new Canadian position and the
United States positionat the Northeast Channel. The United States recognized
that the Award better supporteda United States claim that Nova Scotia was
entitled to a 12-nautical-mileenclavein the Gulf of Mainen il supported the
expanded Canadian claim.Considerationwasgivento the possibilityof amending
the United States claim al that lime. The United States maintained ils 1976
position, however,and sought toconvinceCanada not to make public its new
positionuring the wntinuing negotiations,which Canada agreed todo for the
lime being.The dccisionof the UnitedStates to moderateits claimswhilethe ne-
gotiationswere still in progress was consistent with the obligationof al1States
under internationallaw to engagein gd-faithnegotiations aimedat narrowing
their difierences.Pl1 REPLYOF THEUNITED STATES 389
In the negotiations, Canada adamantly adhered to the position that it
must obtain under the proposed fishery agreement al1the resources that it
would receive were its extreme and inequitable boundary claim to prevail.
33. The United States approach, on the contrary, was attuned to
traditional methods of conducting fisheries negotiations that predated the
advent of the 200-nautical-mile zone. The United States did not press in
the fishery negotiations for everything to which it believed itself entitled
under its boundary claim. For instance, the United States was prepared to
accept Canadian fishing on Georges Bank for a limited, transitional
period. The rights that the United States was prepared to grant to Canada
for an interim period, however, were not consistent with United States
long-term rights in, and jurisdiction over. Georges Bank. When the
negotiations shifted from a transitional to a permanent agreement,
political support in the United States evaporated. The United States
rejected the 1979 fisheries agreement because the rights to fishery
resources of Georges Bank that the failed agreement would have granted
to Canada were inconsistent with rights accruing to the United States
under the jurisdiction of the 200-nautical-mile resource zone.
34. By the time the Senate conducted hearings on the proposed
agreement in April, 1980,it was widely recognized that the document was
not in consonance with the rights of the United States in the new era of
extended jurisdiction. Indeed, Congress vehemently opposed the proposed
agreement-notwithstanding thet the President's political Party had a
majority in both houses of Congress '.Committee hearings were held in
the face of strong opposition only because of the insistence of Canada l.
35. The following representative statements from United States Sena-
tors are drawn from the 1980 Senate hearings:
Senator Pell of Rhode Island:
"First of al1 1would like to say, 1very much favor the idea of an
East Coast Fisheries Treaty with Canada, as well as a treaty setting
forth the arrangements for a settlement of the maritime boundary in
'The CanadianCounter-Memorialassertsthat there wasa balancebetweenthe
supporters and opponento sf the 1979fisheries agreement in the UnitedStates.
[Para. 390.1 Il is traditional in treaty confirmation andlegislativehearings
conductedby the UnitedStates Congress forboth sidesof an issueto beheard.
Accordingly,a fewsupportersofthe proposedagreement appearedat the hearing.
Whatis significantisthat therewasnotoneSenatorpreparedtospeak,or tovote.
in supportof this agreement. Accordinglyt, ere isno basisto contendthat there
wasanybalancebetweensupportersand opponentsof the agreement.
'Canadaat onelimecharacterized thisissueasthe mostseriousbilateralissuehe-
tweenCanadaand any otherState. CanadianMernorial.Annexes,Vol. IIAnnex
46.390 GULFOF MA~NE I221
the Gulf of Maine area, as long as Our fishermen are treated fairly.
This, 1 think, is not the case with the present treaty.
1am pariicularly pleased that the World Court would be involved
in the boundary settlement as 1 have been long concerned that
governments rely too little on the ICJ [International Court of
Justice], to resolve disputes. Having said this. 1 repeat that 1 am
deeply concerned about the terms of the present fisheries treaty.
. .[Mb own analysis has led me to conclude that the treaty in its
present form is inequitable and should not be approved by the
Senate".
..........................
"ln 1976, the Congress enacted'the fisheries conservation and
Management Act to reduce foreign fishing in a 200-mile zone off Our
shores . . 1 regret to say that this Fisheries Treaty as it now stands
would frustrate the intent of the 1976 law . . '".
Senator Cohen of Maine:
"I have corne to the conclusion that the agreement should not be
approved by the Senate, and ratified by the President, in its present
form '."
Senator Chafee of Rhode Island:
"[Tlhe way to proceed would be to have the boundary defined and
then allocate the management duties. But .. .the only way to resolve
this boundary dispute is by binding arbitration, going to the World
Court. and this requires the consent of both parties. Canada will not
consent without a prior management agreement.
Thus, it appears, there has to be a package deal here. Regretfully,
the package as worked out is no1satisfactory in my judgment '."
Senator Weicker of Connecticut:
"1 consider Canada a great friend of this country and Iabsolutely
insist that it be treated fairly in any negotiations. But 1 also insist
that Ourown fishermen be treated fairly as well.
The east Coast fisheries treaties signed with Canada on March 29,
1979, do not, in my estimation, treat Our fishermen fairly '."
'Hearings Belore the Committee on Foreign Relations. UnitedStates Senate.
96th Congress. 2nd Session. 15 and 17 April 1980. "Maritime Boundary
Settlement Treaty and East Coast Fishery ResourcesAgreement" [hereinalter
"Hearings"b pp. I and 2. Pertinent portions of the hearings are reprinfed of
Annex 10.
Hearings,p.4.
3Hearings,p.8.
Hearings,p.75. [23-241 REPLYOFTHE UNITED STATES 391
36. The then Deputy Secretary of State sought to defend the fisheries
agreement as necessary to prevent harm to "our vitally important bilateral
relationship '".Senator Javits of New York replied as follows:
"We must not confuse the idea that we have to ratify a treaty which
we may not consider a fair treaty just because we are friends. The
Canadians would not do it, and they should not expect us to do it '."
37. Following the Presidential election of 1980, the new Administra-
tion discovered that no New England Senator, Congressman, or state
official would support the proposed fisheries agreement. Canada rejected
every alternative or modification that was proposed2. Therefore. the
President withdrew the agreement from consideration by the Senate. In
United States constitutional practice, this is anunusual step that reflected
a complete lack of political support for the fisheries agreement.
' Hearings.p. 20.
*Asthe Canadian Counter-Mernorialnotes[para.222,n. 651, duringthe periodof
Senate considerationof the fisheries agreement. modificationsIo ils provisions
wereproposedbySenator Kennedyof Massachusettsand othersin orderto garner
United States support for a revised agreement. These proposals. in general.
suggestedthat the agreementbe subject toterrninationafter a periodof years.in
keeping withthe viewthat thepurposeof the fisheriesagreementwas 10providea
transition toexclusivecoastal-State200-nautical-milefisheriesjurisdiction.Cana-
da rejectedihese proposals. CHAPTERII
FR011TIIETRI'MANPROCLAMATION FORWARD T, EUNITED
STA'I'ESCONS1STENTI.YHAS \IAISTAINED THATTHIS MARI-
TIME BOUNDARY MUST BE DETERMINED BY AGREEMENT
IN ACCORDANCEWITH EQUITABLEPRINCIPLES ANDTHAT
GEORGES BANKAPPERTAINS TO THE UNITED STATES;
CANADA'SEFFORTS TOESTABLISHTHIS BOUNDARY
UNILATERALLY HAVE FAILED
38. Canada's argument that it has "rights [in Georges Bank] which
vested '"is extraordinary in view of the history of the dispute and the
applicable international law.
SECTION1. TheTrumanProclamationEstablished That ThisBoundary
Would Be Determined hy Agreement in Accordance with Equitable
Principles
39. In the view of the United States, the present dispute "stems from
the issuance" of the Truman Proclama~ion'. In its Counter-Memorial.
Canada described this United States posi'tion as "fanciful"'. Canada
cannot so easily dismiss the Truman Proclamation, which has been
described by the Court "as the starting point of the positive law on the
subject "'of the continental shelf.
40. The United States issued the Truman Proclamation in 1945 after
notice to, and consultation with, Canada conducted through diplomatic
channels'. There was no protest or other reservation by Canada. The
purpose of the Truman Proclamation was to establish in general terms the
sovereign rights and jurisdiction of the United States over its continental
shelf. The Proclamation stated: "the continental shelf may be regarded as
an extension of the land-mass of the coastal nation and thus
1CanadianMernorial.para.388.
'United StatesMernorial,para.133. The Proclamationisreprinted orUnited
States Mernorial,Annex,Vol.1.
'CanadianCounter-Mernorial, par.92.
'I.C.J. Reports 19pp. 32-33,para. 47.
Draftsof theTrumanProclamationwere providedtothe EmbassyofCanadaon
26Apr. 1945.UnitedStates Memorial,Annex 3,Vol.1.i261 REPLYOF THE UNITED STATES
naturally appurtenant to it "'. The Proclamation dealt specifically with
the continental shelf boundaries of the United States:
"[ijn cases where the continental shelf extends to the shores of
another State, or is shared with an adjacent State, the boundary
shall be derermined6.vthe UnitedStates and the State concerned in
accordancewith equirableprinciples '."
President Truman's Proclamation applied to the Gulf of Maine area.
Accordingly, the official policy of the United States, promulgated at the
highest executive level and without protest by Canada, long has called for
the boundary in this case to be determined by agreement in accordance
with equitable principles.
SECTION 2. The 1958 Geneva Convention on the Continental Shelf
Carried Forward the Principles of the Truman Proclamation
41. The 1958 Geneva Convention on the Continental Shelf' carried
forward the principles of the Truman Proclamation. The United States
unequivocally endorsed the Convention, and signed and ratified it at the
earliest opportunity. These steps were taken with the understanding that
the Convention was consistent with the Truman Proclamation. As both
the United States Depariment of State and the Committee on Foreign
Relations of the United States Senate have stated:
"The Convention should prove specially beneficial to the United
States since it endorses numerous principles which the United States
has been following since they were first enunciated in the 1945
Proclamation of President Truman concerning the continental
shelf'."
42. The International Court of Justice in the North Seo Conrinenral
SheU cases found that the preparatory work of the International Law
Commission and Article 6 of the Continental Shelf Convention reflected
'UnitedStates Memorial,Annex3, Vol. 1.
'UnitedStates Memorial.Annex3. Vol. 1.(Emphasisadded.]
'UnitedStatesMemorial.Annex 5,Vol.1.
'"Answersto Questions ofSenate ForeignRelations Committee Concerning the
Law of the Sea Conventions".prepared by the Dept. of State. 2 Mar. 1960;
"Hearing Beforethe Committeeon ForeignRelations ". UnitedStates Senate,
86th Congress,2ndSession,Execs.J, K. L, M.and N, 20Jan. 1960. P.93;Report
of the Comrnitteeon Foreign Relations ofthe United States Senate, 86th
Congress,2nd Sess.. Exec. Rept. No. 5,accornpanyingthe "Law of the Sea
Convention ", 27Apr. 1960. p. II.Annex 11.394 GULFOF MAINE (271
the two fundamental United States positions established in the Truman
Proclamation:
" ... it is clear that at no time was the notion of equidistance as an
inherent necessity of continental shelf doctrine entertained. Quite a
different outlook was indeed manifested from the start in current
legal thinking. It was, and it really remained to the end, governed by
two beliefs;-namely, first, that no one single method of delimitation
was likely to prove satisfactory in al1 circumstances, and that
delimitation should, therefore, be carried out by agreement (or by
reference to arbitration); and secondly, that it should be effected on
equitable principles. It was in pursuance of the first of these beliefs
that in the draft that emerged as Article 6 of the Geneva Convention,
the Commission gave priority to delimitation by agreement,-and in
pursuance of the second that it introduced the exception in favor of
'special circumstances' "'.
43. Thus, Article 6 of the 1958 Geneva Convention affirmed the
delimitation principle of the Truman Proclamation that boundaries were
to be established by agreement and in accordance with equitable princi-
ples. Since that tirne, the North Sea Continental Shelf cases, the Anglo-
FrenchArbitration, the TunisialLibya case, and the Convention adopted
by the Third United Nations Conference on the Law of the Sea have
reaffirmed this principle. The converse of this principle necessarily is of
equal force: if boundaries must be determined by agreement, it follows
that they cannot be established by unilateral act. As the Court stated:
"The Court, would therefore observe . . that an attempt by a
unilateral act to establish international maritime boundary lines
regardless of the legal position of other States is contrary to
recognized principles of international law, as laid down, inter alia, in
the Geneva Conventions of 1958 on the Law of the Sea . . . which
provide that maritime boundaries should be determined by agree-
ment between the Parties '."
44. In brief, from the Truman Proclamation forward, there has evolved
a continuum of law that is applicable to maritime boundaries in general
and to United States continental shelf boundaries in particular. The
conduct of the Parties must be interpreted in this context, with the result
that Canada's attempt to establish a boundary unilaterally, "even at the
risk ... of appearing to disregard international legal precedents and
procedures'", is not opposable to the United States.
'I.C.J.Reports 1969, pp.35-36, para.55.
*I.C.J.Reports 1982, pp. 66-67, para. 87. (Emphasisin original.]See also
Dissenting OpinionofJudgeGros,p. 155, para.22.
'Gotlieb andDalfen,op.cil.,p. 245. Annex 1. [28-301 REPLYOFTHE UNITEDSTATES 395
SECTION3. Georges Bank Fell within the United States Definition of Its
Continental Shelf at the Time of the Truman Proclamation
45. The press release accompanying the Truman Proclamation de-
scribed the continental shelf of the United States as follows: "submerged
land which is contiguous tothe continent and which is covered by no more
than 100 fathoms (600 feet) of wate'".That description includes al1 of
Georges Bank. Through no stretch of scientific fact is Georges Bank
within the 100-fathom-depth contour contiguous to the coast of Canada'.
46. The definition of the continental shelf from 1945 through 1958did
not include the Northeast Channel and much of the Gulf of Maine Basin,
both of which reach depths of more than 100 fathoms. From 1945 until
the First United Nations Conference on the Law of the Sea, which
brought about general acceptancof a broader definition of the continen-
tal shelf, the only continental shelf boundary that could have existed
under the contemporary definition of the continental shelf would have
confirmed United States jurisdiction over al1of Georges BaSee Figure
@ 1'.In that period, the continental shelf boundary would have been located
somewhere between the international boundary terminus and the 100-
fathom-depth contour. Canada could not have vaulted the Northeast
Channel to claim partions of Georges Bank, none of which is within the
100-fathom-depth contour contiguous to the coast of Canada, and al1 of
which is within the 100-fathom-depth contour contiguous to the coast of
the United States.
'UnitedStates Memorial,Annex 3. Vol. 1.
'The United States doesnot contend that the reference to the 100-fathom-depth
contourin the press releaseaccompanyingthe Truman Proclamation constituteda
specific United States boundary clain the Gulf of Maine area. As the
Proclamation noted,theundariesthemselveswould beestablishedbyagreement
inaccordancewithequitableprinciples.Nonelheless,the descriptionof the United
States continental shelf, towhich Canada did not take exception, would not
countenancea unilateral Canadian claim to any portionof Georges Bank. and
Canada wasplacedon noticein this respect.
@ ' Fig. 1is a compilationof severaldepictionsof the continental shelf asit wasde-
fined from the issuance of the Truman Proclamation until the First United
@ Nations Conferenceon the Lawof the Sea. Fig. IA isa chart of the 100-fathorn-
depth contouinthe Gulfof Maine and adjacentareasprepared fromcurrentdata
@sources. Figs. IB through ID are reproducedfrom authoritativesources.and al1
show the 100-fathom-depth contour as thelimit of the continental shelf,with
Georges Bank entirely within the 100-fathom-depth contour contita the
coast ofthe UnitedStates. The Gulf of Mainearea isenlargedin an inseton Fig.
@ tc. 396 GuLFoFuAlNE (311
SECTION 4. United States Actions Always Have Been Consistent with
the Position That Georges Bank Appertains to the United States
47. When the United States began exploration activities on the outer
continental shelf in the 1960s, it proceeded on the basis that the United
States continental shelf included al1 of Georges Bank '.The Canadian
pleadings, however, use such words as "accepted '", "prolonged accep-
tance'", and "prolonged recognition "' 10 characterize United States
actions with regard to the permits on Georges Bank issued by Canada
beginning in 1964.Canada even suggests that the United States "adhered
to'" an equidistant-line boundary position from 1965 to 1969. These
unfounded assertions then become the primary basis for Canada's accusa-
tion that the United States claim in this case is "expansionist 6".
48. Canada undertook ils permit program without notice 10,or consul-
tation with, the United States, and pursuant to a Canadian statute that
was not applicable on its face to the continental shelf '.In seeking to
establish United States acquiesence. Canada has elected to rely upon an
exchange of correspondence that was instigated by Mr. Luther Hoffman,
a mid-level United States government employee of no diplomatic stand-
ing. Mr. Hoffman clearly indicated to Canadian officials that he had no
authority to act on behalf of the United States with respect to any matters
of international significance, and did not purport soto act.
49. The United States Counter-Memorial sets forth the law of acquies-
cence and estoppel' and the facts associated with Canada's program '.
The Counter-Memorial lists seven reasons why the doctrines of acquies-
cence and estoppel do not bar the United States from contesting Canadian
claims to jurisdiction over a portion of Georges Bank 'O:
- Canada Did Not Assert Clearly and Unambiguously a Mari-
time Boundary Claim in the Gulf of Maine Area in Which the
United States Could Acquiesce;
'UnitedStatesCounter-Mernorial. paras. 100-102.
'Canadian Mernorial, para.214; Canadian Counter-Mernorial. paras. 614 and
719.
'CanadianCounter-Mernorial, para3 . 56.
'CanadianCounter-Mernorial, para. 608.
'CanadianCounter-Mernorial. para. 21.
@ ' CanadianCounter-Mernorialp . ara. 227and Fig. 1.
'Fora legalanalysis ofthe subjectlawby a Canadianwriter, see UnitedStates
Counter-Mernorial.Annex 43, Vol. V. Canada's unilateralisrnin the face of
established internationallawto the contraryisillustratedby ilsstaternentthat it
had "no obligation" togive noticeto the UnitedStates. Canadian Counter-
Mernorial.para. 376.
' UnitedStatesCounter-Mernorial,Part II. ChapterIV.
'United StatesCounter-Mernorial,Part 1,Chapter VII.
'OUnitedStatesCounter-Mernorial,Part III. Chapter1.P2] REPLYOF THE UNITED STATES 397
- Mr. Hoffman, a United States Government Employee, Did
Not Acquiesce in Any Purported Canadian Claim;
- Mr. Hoffman Lacked the Authority to Consent to Any Pur-
ported Canadian Claim;
- The Conduct of the United States Both Before and During the
Relevant Period Was Inconsistent with Consent to Any Pur-
ported Canadian Claim;
- The United States Made Timely Protest of Any Purported
Canadian Claimi
- Canada Did Not Rely to Its Detriment Upon Any Action or
Inaction of the United States;
- Canada's Claim of Acquiescence Ignores the Fisheries and
Other Dimensions of This Case.
50. As a matter of both law and fact, the United States. by ils conduci,
has not consented at any time, either expressly or tacitly, to an equidis-
tant-line boundary in the Gulf of Maine area. Furthermore, Canada's
assertions are contrary to the principle of international law that maritime
boundaries are to be delimited by agreement in accordance with equitable
principles.
51. In 1968, the United States reminded Canada of the interests of the
United States in Georges Bank '.The immediate impetus for this action
were rumors that Canada might begin exploratory drilling for oil and gas
on the Bank. The United States resewed its position and called for a
negotiation of the boundary and for a moratorium on exploratory drilling.
The United States had no plans to open Georges Bank for such drilling at
that time. Canada authorized no drilling, and no negotiations were held.
On 5 November 1969, the United States reaffirmed its interest in
specifically agreeing upon a nioratorium and formally protested the
Canadian permits2. Canada's response rejected the proposed mora-
torium '.
52. In.1970, the Parties held one brief negotiating session concerning
this boundary '.No progress was made, as the Parties had fundamentally
different views. Canada, which by this time had ratified the Continental
'Aide-Memoire from theDept.of State to EmbassyofCanada. 10May 1968,al
UnitedStates Memorial,Annex55. Vol.IV; seealso UnitedStates Memorial,
para. 138;CanadianMemorial,para. 21 1 and Annexes,Vol.III. AnnexII.
'Note from the Dept. ofState to Embassyof Canada, 5 Nov. 1969,at United
States Memorial,Annex 56,Vol.IV.
'Note No. 366 fromEmbassyof Canada to the Dept. ofState, 1 Dec. 1969,at
UnitedStates Memorial,Annex56,Vol. IV.
'UnitedStatesMemorial,para. 143;CanadianMemorial,para. 212. 398 GULFOF MAINE i331
Shelf Convention ',called for an equidistant line, asserting that there were
no special circumstances in the area. The United States maintained that
the boundary should run through the Northeast Channel.
53. Between 1970 and mid-1975, no boundary negotiations were held.
Government officials were preoccupied with the preparations for, and the
first negotiating sessions of, the Third United Nations Conference on the
Law of the Sea. Nevertheless, the actions of the United States during this
period relevant to jurisdictional rights were consistentwith ils view that
the bouiidary should follow the Northeast Channel. These actions includ-
ed the authorization of oil and gas exploration activitiesl and the
enactment of laws and regulations concerning the living resources of the
continental shelf!
54. In the latter parof 1975, the United States undertook preparations
to accelerate ils offshore oil and gas program on Georges Bank. At the
same lime, the outlines of the new 200-nautical-mile fisheries law began
to emerge. The United States Department of State and the Canadian
Department of External Affairs initiated a series of discussions on a
continental shelf boundary for the Gulf of Maine area. These discussions
followed a predictable course. The United States maintained that Article
6 of the Continental Shelf Convention was the controlling law; that the
Northeast Channel, the fishing banks, and the configuration of the Coast
constituted special circumstances; and, that Article6 should be construed
consistently with the Truman Proclamation and with the decision of the
Court in the North Sea Conlinenta1Shelf cases. Canada agreed that
Article6 was the controlling law, but espoused a narrow interpretation of
special circumstances and argued that the United States had the onus of
'It is noteworthythat. when Canada ratified the Continental Shelf Convention
(follawingthe Court's judgment in the North Sea Continental SheU cases), it
propounded a "declaration" to Article 1 that arguably is applicable to this
delimitation.l stated: "the presenceof an accidentalfeaturesuchas a depression
or a channel in a submerged area should not be regarded as constituting an
interruptionin the natural prolongationof the land territory of the coastalState
into andunderthe sea". [UnitedStates Memorial,Annex52,Vol.IV.]The United
States formally responded that this "declaration" was unacceptable. [United
States Memorial, Annex 52,Vol. IV.] The "declaration" would appear to be
contrary to Article 12of the Convention.To the extent Canada intendedthe
"declaration"to havesomemeaningto the delimitationinthe Gulf of Mainearea,
it demonstrates that, six years after its permitogram had begun, Canada
recognizedthat the UnitedStates in nowayhad acquiesced.
'United States Memorial,para. 146.
@ 'United StatesMemorial, paras.144and 145,and Fig. 16. I341 REPLYOF THE UNITED STATES 399
proving them '.Canada maintained that the factors identified by the
Court in the North Sea Conlinenla1 SheUcases were irrelevant. In these
discussions, neither side specified the geographic coordinates of its
boundary position, but the United States reaffirmed its position that
Georges Bank appertained to the United States.
55. By late 1976, no progress had been made toward an agreement
upon a continental shelf boundary, yet both States were about to establish
200-nautical-mile fishing zones. Canada notified the United States that
Canadian law required the geographic coordinates of Canada's claim to
be published in The Canada Gazette. Notwithstanding an appeal by the
United States that this action be delayed in order to avoid exacerbating
the dispute2, Canada, on 1 November 1976, published for the first time
the coordinates of its equidistant-line claim in the Gulf of Maine area '.
56. The United States had hoped to avoid publicly defining a specific
line in the Gulf of Maine area. It believed that the publication of official
claims by the Parties would harden negotiating positions and public
opinion in each State. Canada's precipitous action, however, required a
United States response. On 4 November 1976, the United States pub-
lished in the Federol Regisrer the geographic coordinates of a specific
boundary claim to the continental shelf (and fisheries zone) in the Gulf of
Maine area '.
'Canada'spositionprior to the decisionof the Court of Arbitrationin the Angle
FrenchArbirrarion is set ~~rth in a oublicdocument distributedbv the Canadian
Governmenton 10June 1977.Annex 12.It states:
"[Canada] does not believethat any 'specialcircumstances'exist in the
Gulf ofMaine/Georges Bankarea.. ..
Canada doesnotaccept that therégimeofcustomary, internationallaw.as
defined andappliedby the International Courtof Justice between states not
boundby the ContinentalShelf Convention.is applicable tothe determina-
tionof continentalshelfboundariesbetweenCanada and the USA.Moreover
it doesnot accept the factors identifiedby the InternationalCourt of Justice
as beinglegallyrelevantta the delimitation of the continental shelf boundary
in the North Sea Casesare present inthe Gulf of Maine area."
'The issuewasraisedin a meetingof 15Oct. 1976 betweenthe thcn Secretaryof
State and Secretary of State for External Affairs.
'United States Memorial, para. 150, and Annex 63, Vol. IV; United States
Counter-Memorial.para. 116;Canadian Memorial, para.224,and Annexes.Vol.
II, Annex29.
'UnitedStates Memorial.para. 150,andAnnex64,Vol. IV;Canadian Memorial,
oara. 225.400 GULF OF MAINE 1351
SECTION 5. The Line Adopted by the United States on 4 November 1976
Was a Moderate, Good-Faitb Negotiating Position
57. Canada has called the line adopted by the United States on 4
November 1976 "extreme "' and "arbitrary '".Canada makes this state-
ment irrespective of the fact that the line was fully consistent with the
Truman Proclamation, with Article 6 of the Continental Shelf Conven-
tion, and with the judgment of the Court in the North Sea Continental '
SheUcases, as well as with the geographical facts of this case. Moreover,
the line was far from one of maximum advantage; rather, it was a
moderate position, put forward in an effort to reach agreement with
Canada and to avoid the political and economic disadvantages of a
prolonged boundary dispute.
58. The 1976United States claim generally followedthe line of deepest
water through the Gulf of Maine Basin and the Northeast Channel '.It
was approximately equidistant hetween the 100-fathom-depth contours in
the Gulf of Maine Basin andthe Northeast Channel. In other words, it di-
vided the continental shelves of the Parties as they were defined between
1945 and 1958 '.
59. This 1976 line was based upon the equidistance-special circum-
stances rule of Article 6 of the Continental Shelf Convention. There are
special circumstances in the Gulf of Maine area that render an equidis-
tant line inequitable in this case. Every scholarly examination of the rule
in Article 6 has identified the configuration of the Coastas a potential spe-
cial circumstance '.As the Court previously has demonstrated, an equidis-
tant line may be particularly inequitable in the case of concave or convex
coasts6. In the Gulf of Maine area, there is the additional factor that the
land boundary meets the sea in the corner of the large coastal concavity
that is the Gulf of Maine. There is no doubt, in the view of the United
States, that such a coastal concavity and such a location of the
'CanadianCounter-Memorial, para.26. ,
CanadianCounter-Memorial. para.618.
'Because the line took account of seabed geomorphology,it was less of a
"hydrographie roller coaster" [Canadian Counter-Memorial.para. 4001than
eitherofthe Canadianlines.
'It basbeensuggestedthat a similartechniquewas usedinthe Bayof Biscayde-
limitation.See J. L. de Azcirraga, "EspaRaSuscribe,con Francia e Italia, Dos
Conveniossobre Delimitaciiinde susPlataformas SubmarinasComunes".United
StatesCounter-MernorialA , nnex 10,AppendixA, Vol.IV.
'See. e.g.,I.C.J. Reports 1969,pp. 53-54,para.101(D)[dispositfl;I.C.J. Reports
1982. p. 93, para. 133.8(2)[dispositfl; and p. 55, para. 86; S.W. Boggs,
InternationalBoundaries,1940.p. 188;A.L. Shalowitz,Shore and Sea Bound-
aries. 1962, Vol. 1, para. 2212, n. 55; A.O.Cukwarah, The Settlement of
Boundary DisputesinInternationalLaw,1967,p. 76.
I.C.J. Reports1969,pp. 17-18,para.8. 136-401 REPLYOF THEUNITED STATES 401
land boundary are special circumstances under Article 6 of the
Convention.
60. The 1976 United States line also took account of the fishing banks
in the area and of the Northeast Channel as additional special circum-
stances. That line did not divide the fishing banks and followed the
Northeast Channel. The Northeast Channel is a prominent feature of the
seabed in the area, marking the southwestern limit of the continental shelf
within the 100-fathom-depth contour contiguous to the coast of Canada
and the northeastern limit of that contour contiguous to the coast of the
United States.
61. The 1976 United States line also meets the test of proportionality,
@@ whereas the 1976 Canadian line would not. Figures 2 and 3 '.
62. Even were the proportionality test to be conducted entirely in
Canada's favor, through the use of a restricted test area thatludes al1
the maritime area in front of Canada's primary coast facing the Atlantic
Ocean, the results prove that the 1976United States line was equitable to
Canada, whereas Canada's 1976 line was inequitable to the United
States. The lengths of the United States and Canadian coasts facing the
Gulf of Maine form a ratio of three to one, or 7525. Nonetheless, the
1976Canadian line would leave to Canada 46 percent, or nearly one-half,
of the total maritime area seaward to 200 nautical miles, including a huge
area that lies entirely and solely off the coast of the United StatSee
Annex 99 of the United States Memorial. The 1976 United States line
would leave to Canada more than one-third of this restricted test area, or
over 30 percent more than that to which Canada would be entitled under
a strict coastline-to-aren r'.io
63. For al1 these reasons, the United States line of 4 November 1976
was firmly rooted in the law. It also offered a reasonable settlement in
conceding the following to Canada: (1)a large part of the Gulf of Maine
Basin; (2)one-half of the Northeast Channel; (3) al1of the far southwest-
ern Scotian Shelf; (4)anarea seaward of the Gulf of Maine where Canada
has no coastal front facing the Atlantic Ocean; and (5)a total area out of
proportion toCanada's short southwestern coast of Nova Scotia facing the
Gulf of Maine-al1 irrespective of the fact that this entire area lies in
front of the United States coast and has close historical ties tothe United
States'. The United States made this fair, even generous, offer as an
inducement to Canada to accept and to confirm United States jurisdiction
over Georges Bank, and thereby to avoid further dispute.
'Annex33wntains atechnical descriptioofthe limiis,distances,andareasused
@@ inthe proportionalitytestof F2gand 3.
'SepAnnex 34 forthe technicalbasis fortheseconclusions.
'In leavingto Canadaa large part of the Gulfof MaineBasin,the 1976United
States linewas moregenerous tonada than wouldhavebeena linebasedupon
the applicationofthe equidstancemethodgivinghalfeffecttothesouthwestcoast
@ ofNova Scotiaasa special cireumstanc.eeAnnex 19.402 GULF OF MAINE 1411
SECTION 6. The United States Claim in This Adjudication 1s Nol
Extravagant and 1s Consistent with Prior United States Positions and
International Law
64. In ils Memorial and Counter-Memorial, the United States has
proposed as the boundary a perpendicular to the general direction of the
Coastfrom the starting point agreed upon by the Parties, adjusted to avoid
the splitting of fishing banks. Although this line differs from that
proposed by the United States in 1976, it is consistent with the longstand-
ing United States claim to Georges Bank. Thereare two principal reasons
why the United States chose to assert this adjusted perpendicular line at
the start of judicial proceedings, rather than changing its 1976 claim, as
did Canada, during the course of negotiations.
65. First, in those negotiations, the United States did not espouse as
broad a claim as that to which it believes it islegally entitled. The United
States did not do so because it believed that such a claim only would have
made those negotiations more difficult. As the Court stated in the North
Seo Continental SheUcases:
" . . . the parties are under an obligation to enter into negotiations
with a viewto arriving at an agreement, and not merely to go through
a formal process of negotiation as a sort of prior condition for the
automatic application of a certain method of delimitation in the
absence of agreement; they are under an obligation so ta conduct
themselves that the negotiations are meaningful, which will not be
the case when either of them insists upon its own position without
contemplating any modification of it . . . "'.
66. The restraint practiced by the United States in this regard may be
contrasted with the decision of Canada to expand its claim in the very
midst of negotiations and, indeed, while they were at a critical stage. The
United States formally responded to that decision by stating:
"[the Government of the United States is disappointed that the
Government of Canada would take this step which is inconsistent
with the process the two governments have underway aimed at
narrowing differences in good faith to reach a comprehensive
solution l."
67. If Canada is free to expand its claim during the course of
negotiations, the United States certainly is entitled to reformulate its
position after those negotiations have failed. Indeed, at the time the
United States proclaimed its 1976line, it specifically reserved the right to
propound its full claim in future proceedings. The preamble to the
'I.C.J.Reports 1969.p.47,para. 85.
Note fromthe Dept.ofState to ErnbassyofCanada. 2 Dec. 1977.UnitedStates
Mernorial, Annex 69.Vol. IV. (421 REPLY OF THE UNITED STATES 403
4 November 1976 Federal Register notice contained the formal statement
reproduced below. In its overall import and al1 significant details, this
statement is identical to that contained in Canada's notice of 1 November
1976. Canada relied upon that same statement to justify the expansion of
its claim during the negotiating process.
"The limits of the maritime jurisdiction of the United States as set
forth below are intended to be without prejudice to any negotiations
with Canada or to any positions which may have been or may be
adopted respecting the limits of maritime jurisdiction in such
areas '."
Were the law to restrict the right of a State to modify claims after the
failure of negotiations, when the right to do so had been reserved, parties
to boundary disputes would be encouraged to assert the broadest possible
claims throughout negotiations, rather than to seek to narrow their
differences in pursuit of an agreement. Such a result would contradict the
fundamental rule of law that obligates parties to negotiate in good faith
with a view toward the conclusion of an agreement.
68. The second reason underlying the decision of the United States to
assert a new claim in these proceedings stems from the considerable
development of the law between 1976 and the filing of the Memorials in
this case. When it sought to justify the expansion of its claim during
negotiations, Canada informed the United States:
"The Government of Canada considers that its commitment to the
rule of law implies an obligation to review its policies and positions in
the light of the progressive development and clarification of interna-
tional law through the processes of Treaty-making, codification,
judicial decisions, state practice, and the writings of eminent jurists.
In the absence of a situation of estoppel, States cannot and should not
be bound by positions or policies which, as a consequence of the
clarification or developement of legal norms, no longer conform to
applicable principles and rules of international law. To adopt a
contrary view would not only impede the development of internation-
'41FederalRegisier48619-48620(4Nov. 1976).UnitedStates Memorial,Annex
64, Vol.IV. As Canada'sSecretaryof State forExternalAffairssaid at the time:
"1 am pleasedto note ... that the U.S. Governmenthas mirrored the approach
taken in the [Canadian] Order-in-Council by making it clear in the Federal
Register Noticethat the coordinateslisted therein are without prejudice toany
negotiation with Canada or to any positionswhich may have beenor may he
adopted respecting the limits of maritime jurisdiction in the boundary areas
adjacent to Canada." See Annex 13.When Canada deliveredils formalnoteof 3
November 1977, followingthe 14 Octoher 1977 Canadian Legal Statement,
Canada emphasizedthat ils expanded claimwas derivedfrom its resemationof
rights to assert any future positionthat it mightchoose.UnitedStates Memorial.
Annex69. Vol.IV. 404 GULF OFMAINE [43-441
al law, but would also constitute a serious obstacle to the settlement
of disputes through negotitations and other peaceful means. The
United States Government, I assume, holds similar views '."
Canada's comments in 1977 on the "progressive development and clarifi-
cation" of the law are a propos to the United States proposal for the
adjusted perpendicular line. The decision of the Court of Arbitration in
the Anglo-FrenchArbirrarion, the decision of the Court in the Tunisial
Libya case, and the conclusion of the Third United Nations Conference
on the Law of the Sea al1 occurred after the United States negotiating
position of 4 November 1976 was adopted.
69. These events have contributed significantly to the development of
the relevant law. They demonstrate unmistakably that the 1976 United
States claim, which followed the line of deepest water through theGulf of
Maine Basin and the Northeast Channel, was fair to Canada. These
developments lessened the emphasis on geology and equidistance and
confirmed that boundaries are to be established in accordance with
equitable principles.taking account of the relevant circumstances in the
,area. Once the negotiating phase between the Parties had concluded, it
was appropriate for the United States to take account of these develop-
ments in presenting a formal position before the Court. The United States
believes that, although its prior claim was sound and fully supportable, a
single maritime boundary perpendicular to the Coast, but adjusted so as
not to divide fishing banks, best reflects the law as it has developed by tak-
ing account of the equitable principles and relevant circumstances
applicable to this case.
' Statementof AmbassadorCadieuxof 14October 1977.Annex9. CHAPTER III
CONCLUSION: IN MAKING ITS CLAIMS IN THE GULF OF MAINE
AREA, CANADA HAS SET FORTH LINES THAT ARE
OVERREACHING
70. The Canadian Counter-Memorial expends considerable effort to
characterize the United States as unreasonable and overreaching in this
case. The history of this dispute reveals the contrary.
71. Since the 1958 Law of the Sea Conference, Canada has sought to
expand its coastal jurisdiction in the most straightforward terms. Canada
was one of the first States to propose that the continental shelf be defined
so as to extend beyond the 200-meter-depth contour, and its position on
coastal fisheries hindered agreement on the breadth of the territorialea.
Canada's jurisdictional claims in the Arctic exceed those of any other
State. Canada was an early proponent of the 200-nautical-mile resource
zone at the Third United Nations Conference on the Law of the Sea, and
was perhaps the most assertive of those States seeking a broad definition
of the continental shelf. Indeed, the Conference's formula for defining the
outer edge of the continental margin would give Canada the world's
second largest continental margin beyond 200 nautical miles '.According-
ly, it is hardly surprising that, with regard to the Gulf of Maine area,
Canada consistently has sought to assert and to satisfy its claims on a
strictly unilateral basis and to their maximum extent, as well as to take
advantage of United States restraint.
72. Canada describes the United States claim as extravagant '.and as
"simply a straight line from Point 'A' to the northeast corner of the
triangle'". In fact, the United States has claimed 5,954 square kilometers
less than a line from the starting point tothe corner of the triangle nearest
to Canada. All of the area claimed lies in front of the United States Coast.
Although the United States adopted the regime of 200-nautical-mile
'See D.G. Crosby."Definitionof the ContinentalShelf: Article 76, L. O.S.,
Applicationto CanadianOffshore".Lawof theSea Inst..AnnualConference.24
Jun. 1982,and Commentsof D. Sherwin.Canadian Dept.of Energy. Mines and
Resources,Lawof the Sea Inst.,AnnualConference. 6-9Jan. 1975.Annex 14.
The SovietUnion generallyis regarded ashavingthe largest continentalmargin
beyond 200 nauticalmiles.
'CanadianCounter-Mernorial.para. 44.
'CanadianCounter-Mernorial.para 22. 406 GULF OFMAINE [46-481
resource zones reluctantly, nevertheless, having done so, it now isentitled
to claim those maritime areas that lie off its own coast. Canada, on the
other hand, has claimed 9,076 square kilometers more than a straight line
from the starting point to the corner of the triangle nearest the United
States, notwithstanding that none of the seaward area lies in front of any
@ Canadian coast. See Figure 4. This comparison is but further evidence of
the unreasonable and inequitable nature of Canada's position inthis case. PART III. THE PARTIES ARE IN FUNDAMENTAL DIS-
AGREEMENT REGARDINGTHE LAW APPLICABLE TO
THIS CASE: CANADAASKSTHE COURTTO RULEON THE
BASIS OF PREVIOUSLY REJECTED LEGAL ARGUMENTS
-AND RADICALLYTO ALTERESTABLISHEDLAW,WHERE-
AS THE UNITED STATES ASKSTHE COURTTO RULE ON
THE BASIS OF ESTABLISHED LAW, AS REINFORCED BY
RECENTTRENDS
INTRODUcrION
73. The Parties are in fundamental disagreement regarding the law
applicable to this case. Although Canada purports to accept the estab-
lished law-the Fundamental Rule that maritime boundaries are to be
established in accordance with equitable principles, taking account of the
relevant circumstances in the area, tooduce an equitable solution-
Canada's true position now has emerged in ils Memorial and Counter-
Memorial. Canada invokesprinciples and rules other than those contained
in Article 6 of the Convention on the Continental Shelf and those
established by the relevantjurisprudence of the Courtand of international
arbitral tribunals. Canada urges the Court to set1 this aside and to
promulgate a radically new law of maritime boundary delimitation based
upon previously rejected notions.
74. Canada suggests that a new law of delimitation has emerged from
the introduction of the 200-nautical-mile limit. The Canadian Counter-
Memorial would have the Court pursue "a different conceptual ap-
proach'" and "a reconsideration of ... the essential rationale of the
conclusions reached by the Court in theNorth Sea Conrinenral Sheff
cases'",a rationale that, according to Canada, "no longer holds true'".
In brief, Canada asks the Court to overturn its jurisprudence established
in that andsubsequent decisions, and instead to enunciate a new law,
based upon rejected notions thatl serve Canada's interests in this case.
75. Canada strives to find this new law in the provisions of the
Convention adopted by the Third United Nations Conference on the Law
of the Sea and in the recent trend of States in establishing 200-nautical-
mile resource zones. In the emergence of the exclusive econornic zone,
Canada searches in vain for a rationale for the followingarguments:
'CanadianCounter-Mernorial, par.68.
CanadianCounter-Mernorial,para561.408 GULF OF MAINE 151-521
- that the 200-nautical-mile distance for measuring the outer
limit of the zone has revived the notion of proximity in
delimitation, vesting the equidistancemethod with a preferen-
tial status;
- that economicdependence has hecomea central consideration
in delimitation, requiringan equitable sharing-out of resources
between claimant States; and
- that estahlished continentalshelf doctrine no longer has legal
relevance.
76. Rather than adhering to the Fundamental Rule, as it professesto
do, Canada in fact seeksa full refashioningof the relevant jurisprudence.
In sodoing,Canada misreadsthe applicablecaselaw, misappliesArticle 6
of the Continental Shelf Convention,and misinterprets State practice. It
also asks the Court to do what the Third United Nations Conference on
the Lawof the Sea refused to do-to rewrite the jurisprudence on the de-
limitation of maritime boundaries. CHAPTER 1
CANADAASKSTHE COURTTO OVERTURNESTABLISHED LAW
SECTION 1. Canada Reintroducesthe Notion of Proximity, Seekingto
Enhance the Role of the Equidistance Method BeyondThat Providedin
Article6 of the Continental ShelfConventionor underCustomary Law
-77:Canada relies upon the recent emergence of 200-nautical-mile
resource zones,and the use of distance to define the outer limit of those
zones, as a basis for reviving the proximity argument set forth by
Denmark and the Netherlands in the North Seo Continental SheLfcases.
The Court in that case decisivelyrejected that argument. Nevertheless,
Canada proclaims that proximity to the coast is a "leading testof the
strength of a claim "' and that "[djjstance from the coast, and not
alignmentorjuxtaposition, providesthe essential criterionofadjacency'".
The Canadian thesis is formulated in the final conclusionsof its Counter-
Memorial,as follows:"the singlemaritime boundaryshould leaveto each
Party those areas of the sea that are closestto its c'".t
78. This Canadian viewpoint involvesmore than a radical departure
from existing law. Its adoption would require the Court compieteiy to
overruleand abandon that law.
A. THECOURT AND ARBITRAT LRIBUNALH SAVEREJECTEO PROXIMITY
AS A BASIS FOR DELIMITATION
79. In 1969,the Court expresslyrejected the existenceof "a principle
of proximityinherent in the basic conceptof the continental shelf,causing
everypart of the shelf to appertain to the nearest coastalState and to no
other "'.The Court pointed out that proximity,as a conceptual basis for
delimitation, wassimplya rationalization forthe use of the equidistance
method'. The Arbitral Tribunal in the AngleFrench Arbitration in 1977 -
rejected the notion of proximity inherent in the claim of the United
Kingdomin the Channel Islandsarea. and modifiedthe equidistant linein
the Atlantic region'.In 1982, in the Tunisia/Libya case, the Court did
'CanadianCounter-Mernorial. par 5a.8.
'CanadianCounter-Mernorial. par5a.68.
'CanadianCounter-Mernorial, par7a.29(AX3Xa)
'I.C.J. Reports 196p.33, para.49.
'Ibid.p.36,para.56.
'Decisionsp. 118,para.253 [disposifil]. 1551 REPLYOFTHE UNITEDSTATES 411
Conventionestablishes a delimitation rule.that requires the use of other
methods where equidistance would not be equitable. Article 6 of the
Continental Shelf Conventionaccords even lessweight to an equidistant
line than does Article 12of the Territorial Sea and the ContiguousZone
Convention.The reason for this difference in treatment was noted by the
Court in 1969 when it stated that, in a territorial sea of more narrow
breadth than the continental shelf,the inequitable effectsof the equidis-
tance method "are much lessmarked '".The logicof the Court'steaching
wouldsuggest that, in a 200-nautical-milezone, whichin many areas of
the world extends beyondthe continental margin, equidistanceis entitled
to even lessweight than that afforded by Article 6.
84. The Convention adoptedby the Third United Nations Conference
on the Law of the Sea confirmsthis conclusion bythe distinction it draws
between the delimitation rules applicable to the territorial s'aand those
applicable to the continental shelf and to the exclusiveeconomiczone '.
No reference is made to equidistance in the rule applicable to the
continental shelf.An identicalrule, and not the rule for the territorial sea,
is the rule that the Conventionappliesto the delimitation of the exclusive
economiczone. If the use of distance in describing an outer limit were
seento require an emphasisupon equidistance,the sharp distinctionin the
Conventionbetweenthe rules expresslymade applicable to the territorial
sea,on the one hand, and those madeapplicableto the exclusiveeconomic
zone and the continental shelf, onthe other hand, would be unnecessary.
Moreover, that the new Convention, unlike A.rticle 24 of the 1958
Convention onthe Territorial Sea and the Contiguous Zone,does not
specifythat the territorial sea delimitation rulesapplytothe expanded24-
nautical-mile contiguous zone is further evidencethat the territorial sea
rule was not regarded by the Third Conference as applicable to areas
lying beyondrelatively narrow limits-i.e., beyond 12nautical miles.
85. As zonesof maritime jurisdiction extend farther seaward, greater
care must be taken before the equidistance methodis adopted in whole or
in part. The Court has said that "in the case of concave or convex
coastlines.. . if the equidistance methodisemployed,then the greater the
irregularity and thefurlherfrorn the coastline the area to be delimited,
@the more unreasonable are the results produced"'. Figure 25 of the
'I.C.J.Re~orrs 1969.D. 18.Dara.8.
'Articlc15 of ihc Convcntionadopied by theThirdUnitcdSaiionsConfcrcncc
on the Lawof thcSea lhcrcinaftcrthe 1982Convcntion 1lvirtuallythcsamc as
Article 12 of the 19<8Geneva Conventioo nn the TerritorialSea and the
ContiguousZone.
'Articles74and83ofthe 1982 Convention.
'I.C.J.Reports 1969.p.49,para.89(a).[Emphasis added.], 412 GULFOF MAINE 156-581
@ United States Memorial, reproduied heie as Figure5;is based upon a
diagram that appeared in the pleadings of the Federal Republic of
Germany in theNorth Sea Continental Shelfcases. The Court referred to
@ this diagram with approval'Figure 5 demonstratesthe inequitable result
that may be produced by the extension of an equidistant line to 200
nautical miles from the Coast.This inequitable result is produced when a
delimitation that far seaward is dictated by the position of two isolated
pointson the land territory of two States, and that positionis inconsistent
with the general geographical relationshipof the two States and the area
to be delimited.
86. The second point concerning the effect of the 200-nautical-mile
zoneupon the equidistancemethod is that the developmentof the concept
of the exclusive economiczone at the Third United Nations Conference
onthe Lawof the Sea has notheoretical underpinningthat has revivedthe
notion of proximity. The concept of the exclusiveeconomic zonewas the
subject of prolonged negotiations at the Conference, and its juridical
content was unrelated to the issue of the delimitation of boundaries
between neighboring States. Rather, those negotiations produced the
result that coastal States were affordedthe resource jurisdictionthat they
sought,in return for their recognitionand confirmationof the navigation-
al rights and freedomsthe maritime States wishedto protect.
87. The basic outlines of the exclusive economiczone emerged at the
Third United Nations Conferenceon the Lawof the Sea from agroup or-
ganized by Minister Evensen of Norway prior to the 1975 session.
Delimitation was not a subject of these negotiations,nor wasit suggested
that it should be. The work of this group was incorporated into the
Informal Single Negotiating Text with but slight variations, and only
minor changeswere made thereafter.
88. The proximity argument that Canada has presented never was
considered by this group or by the Conference at large. Canada's
argument ignoresboth the essenceof the exclusiveeconomiczoneand the
reasons for selecting a 200-nautical-mile limit. The theme of the pro-
longed negotiations on the exclusive economic zone was the precise
allocationof rights and duties, not the setting of the limits of that zone.
89. The reasons underlying the adoption of an outer limit of 200
nautical mileshad nothingto do with delimitation. First, such a limit was
regarded as a political necessity for securing a consensusthat would
include important States that previouslyhad made varying claims to 200-
nautical-milezones.Second, a200-nautical-milelimit, withthe exception
of a very fewareas, wouldinclude the entire seaward migratory range of
'I.C.J. Repor1969.pp. 17-18,para.81591 REPLYOF THE UNITEDSTATES 413
fish species for which the coastal State was to exercise exclusive
management responsibility under the text, Le., those species whose life
cycle was limited to coastal waters. Third, a precise, uniform limit was
seen as more convenient for enforcement purposes than separate function-
al limits that would be dependent expressly upon the migratory character-
istics of fish stocks. Fourth, an expansive mileage limit was regarded as
reducing some of the geographical inequity perceived in the uneven
continental margins around the world.
90. It was apparent from the outset of the Third United Nations
Conference on the Law of the Sea that it would be necessary to address
the issue of delimitation separately from al1other issues in order for the
Conference to be able to adopt any form of a Convention '.States were
well aware of the potential effects that any delimitation formula might
have upon their national interests, and each was determined not to be
disadvantaged.
91. At the Second Session of the Conference, in the Spring of 1975,the
Chairman of Committee II, in the course of preparing the delimitation
articles of the Informal Single Negotiating Text, relied upon the precise
language of the Court in the North Sea Continental Shelîcases, and, in
an effort to achieve greater acceptance, added a reference to equidistance
drawn from language in that judgment '.This text became the subject of
great debate at the Conference. Years were devoted to the continual
intercbange of references to relevant circumstances, special circum-
stances, equitable principles, and equidistance. Finally, at virtually the
last hour of the Conference, ils President proposed the formula presently
round in Articles 74 and 83, which, predictably, contained a broadly
phrased tex1that contained no reference to equidistance. Articles 74 and
83 leave intact the body of law concerning maritime delimitation that
existed prior to the Third United Nations Conference on the Law of the
Sea. The reference in these provisions to the Statute of the Court
constitutes an endorsement by the Conference of the existing sources of
international law on the subject of delimitation. The reference does not
constitute acceptance of some hidden transformation of those sources to
F& a discussionof the consideration of delimitation questionbsy the Third
United Nations Conference on the Lawof the Sea, see UnitedStates Counter-
Memorial.paras.205-213.
>Articles6l(l) (and70(1))of the InformalSingle Negotiating Tex, May 1975,
provided:
"1. The delimitationof the exclusive economiczone[continentalshelf]
between adjacent or opposite States shall be effectcd by agreement in
accordance with equitable principles,employing, whereappropriate, the
median or equidistance line, andtaking account of al1 the relevant
circumstances."
U.N. Doc. A/CONF.62/WP.S/Parl II.414 GULF OF MAINE (601
be found in the purported implications of the setting of an outer limit of
200 nautical miles tothe exclusive economic zone. As a result, Articles4
and 83 of the new Convention are further confirmation of existing law,
i.e., that any method or combination of methods may be used in a
delimitation to achieve an equitable solution, and that equidistancedoes
not have a privileged status in relation to other method'.
92. The Canadian argument t'hatthe adoption of the exclusive econom-
ic zone itself, as opposed tothe delimitation provisions, changed the law of
delimitation is, to use words previously used the Court, "an ex postfac-
10 construct '".The Conference rejected repeated efforts to invest the
equidistance method with a preferred status in the delimitation articles. It
never was suggested at the Conference, as Canada has argued in this case,
that the emergence of the 200-nautical-mile zone would buttress the
claims of those States advocating the primacy of the equidistance method
in delimitations of their bilateral boundaries.
SECTION 2. Canada Asserts Mistakenly That a "profound transforma-
tion of the concept of the continental shelf "' Has Taken Place in
InternationalLaw
93. Canada proclaims that the Third United Nations Conference on
the Law of the Sea modified continental shelf doctrine'. The Canadian
argument is an effort to overcome the Court's judgments in theNorth Sea
Continental Shelf cases and the TunisialLibya case. lmplicit in this
argument is the view that (1)the regime of the exclusive economic zone
has superseded the regime of the continental shelf (at least within 200
nautical miles of the coast) and (2)natural prolongation is no longer a
relevantlegal concept.
A. THELEGAL REGIME OF THE CONTINENTA SHLELF REMAINS DISTINCT
FROM THAT OF THE ~~~-NAUTICAL-MILR EESOURCE ZONE
94. Canada was one of the most outspoken and influential of al1 the
States at the Third Law of the Sea Conference in proclaiming the
'See I.C.JReports 1982,p. 79, paras. 11011.As the Court noted:
"ln the new text, any indicationof a specificcriterion whichcould give
guidance to the interested States in their effort io achieve an equitable
solution has been excluded. Emphasisis placed on the equitable solution
which has to he achieved. The principles and rules applicable to the
delimitation of continental shelfas are those which are appropriate to
hring aboutan equitable result.".[I.C.JReports 1982.p. 49, para. 50.1
'I.C.JReports 1969,p. 49,para. 56.
'Canadian Counter-Mernorial,para. 40.
'Canadian Counter-Memorial,para. 460. Canada makes this argumentnotwith-
standingthat the 1982Lawofthe Sea Conventionisnot yet in forcefor anyState,
whereasthe 1958 Geneva Conventionon the ContinentalShelfisin forcehetween
the Parties to this dispute. i611 REPLYOF THE UNITEDSTATES 415
inherent and vested rights of the coastal State over the continental shelf,
from the territorial sea to the most seaward limits of the continental
margin 'Canada insisted that the Convention must expressly confirm this
view. The argument that Canada has set forth in this case-that the
economic zone has superseded the continental shelf-contradicts this
directly, and presumably would not apply to Canada's view of the
continental shelf beyond 200 nautical miles. In any event, Canada is
incorrect in asserting that the 200-nautical-mile zone has eliminated the
legal regime of the continental shelf within that zone.
.
95. The Convention adopted by the Third United Nations Conference
on the Law of the Sea expressly confirms the legal concept of the
continental shelf as traditionally understood. The only significant change
is the addition of more precise limits to replace the indeterminate
"exploitability" criteria of the 1958 Continental Shelf Convention.
96. The definition of the outer edge of the continental shelf proved
troublesome to the Third United Nations Conference on the Law of the
Sea, as it had to the First Conference. States with broad continental
margins, such as Canada l,argued that the entire margin was a natural
prolongation of their land territory over which they had vested sovereign
rights. Such States were not prepared to accept a new 200-nautical-mile
zone that would replace the continental shelf. There were two reasons for
this view: these States would not relinquish jurisdiction over shelf areas
seaward of 200 nautical miles; and, they would not relinquish the
substance of the continental shelf regime either within or beyond 200
nautical miles. These broad margin States insisted-successfully-that
any definition of the legal continental shelf must, in the first instance,
include the entire continental margin from the territorial sea to the outer
edge of the margin.
97. The fact that a geological or geomorphological limit produces
unequal results off different coasts revived the same objections to a purely
physical definition of the continental shelf that were encountered at the
1958 Conference. The decision to include a reference to 200 nautical
miles in the definition of the continental shelf, irrespective of the
character of the seabed areas involved, reflected the need in the negotia-
'Earlyin the Conference,a Canadianrepresentativestated:
"The 200-mile economic zoneconceptwasappropriate to the geographic
situationof mostcountries,but the continental margins os fomecountries
were wider than 200milesand provisionshouldbe madeforthosecountries
tomaintainexisting rights to the edgeotfhe continental margin."
Third United Nations Conferenco enthe Lawofthe Sea, Offici Raecords.Vol.1.
27th Mtg., 3July 1974,Statementof MI. Davis,p. 97, para. 16.
The UnitedStates alsowasregardedas a "broad-margin"State at the Law of
the Sea Conference, although the UnitedStates continental marginbeyond200
nauticalmilesisnotas extensiveas those ofmanybroad-marginStates.416 GULF OFMAINE i621
tions at the Third Conference to accommodate the interests of al1States
concerned. The States with broad continental margins concuried in the
200-nautical-mile reference as a supplement to the physical definition of
the continental shelf, in return for acceptance of the principle that the
continental shelf regime applies to the entire continental margin, both
within and beyond 200 nautical miles from the coast. Once this agreement
was reached, the remainder of the continental shelf negotiations largely
concerned the complex question of the definition of the outer limit of the
continental margin.
98. The legal regime of the continental shelf and the legal regime of
the exclusive economic zone are found in two separate parts of the
Convention adopted by the Third United Nations Conference on the Law
of the Sea '.Article 56 (the basic article on the exclusive economic zone)
makes clear that the coastal State has sovereign rights with respect to the
resources of the seabed and subsoil within 200 nautical miles of the coast.
That same article provides that those sovereign rights "shall be exercised
in accordance with" the articles dealing with the continental shelf '.This
provision was incorporated into the Convention for two reasons: to
accommodate the refusal of the broad-margin States to accept any
articles dealing with the economic zone that would infringe upon a
continuous continental shelf regime from the territorial sea to the outer
edge of the continental margin; and, to avoid any uncertainty regarding
the continued application of existing laws and arrangements with respect
tothe continental shelf. Thus, Article 56 preserves as continental shelf al1
seabed areas between the outer limit of the 12-nautical mile territorialsea
and the outer limit of the exclusive economic zone. Far from superseding
or altering continental shelf doctrine, the seabed of the economic zone is
expressly subject to i'.
99. The entire deliberative process of the Third Conference leads
inexorably to the conclusion that the essential nature of the continental
shelf regime was not modified, although the geographic extent of that
regime was expanded. The advent of the exclusive economic zone was not
'PartV ofthe 1982Convention [Articles55-75ldealswiththeexclusiveeconomic
zone.Part VI of the 1982 Convention[Articles 76-85]dealswith the continental
shelfregime.
l"The rights set outin thisarticlewith respectto the sea-bed andsubsoilshallbe
exercisedinaccordancewithPart VI". Article56(3 )fthe 1982Convention.
'Althoughthe distinctionbetweenthe exclusive economizconeandthe continen-
tal shelfwithi200 nauticalmilesinmanyrespectsisofnopracticalimport,there
are certain significant exceptions.or instance, the fisheries regime of the
economiczonei,ncludingilsprovisionsconcerningmaximumsustainably eieldand
optimum utilization,does not apply to the sedentaryspeciesof the continental
shelf,by virtue of the retention of continental shelf doctrine in the new
Convention.See Article77 ofthe 1982Convention.i631 REPLYOFTHE UNITEDSTATES 417
intended to impair any rights of the coastal State with respect to the
continental shelf, includingthose associated with delimitation '.There is
no basis for contending that the delegations, in negotiating the relation-
ship between the continental shelf and the exclusive economic zone, even
considered the question of delimitation, far from settling it in favor of
equidistance l.The economic zoneis a separate regime superimposed upon
the continental shelf regirne; ites not alter that underlying regime.
B. CANADA MISREAD SHE COURT'S JUDGMENTA SSTHEYCONCERN THE
PRINCIPLE OF NATURAL PROLONGATION
100. In their arguments before the Court, Libya and Tunisia attributed
to the principle of natural prolongation a geological character that
misconstrued the meaning of the Court's judgment in the North Sea
ContinentalShelf cases. The natural prolongation of which the Court
spoke in 1969-one that is "[mbre fundamental than the notion of
proximity "'-xertainly did not mean that delimitation should be based
upon events occurring millions of yearsago, Le.;"the processes and events
which gave rise to . . . features on and beneath the earth's surface"', or
upon the "analysis and classification of minerals, rocks, and foss'".The
Court's rejection of the Libyan and Tunisian arguments based upon
geology has clarified the context in which the Court's discussion of
natural prolongation in 1969 must be understood.
101. The Court's judgment in the Tunisia/Libyacase calls attention to
an important distinction between natural prolongation in its geological
and geornorphological senses, and coastal-front extension, or natural
prolongation in its geographical sense. The Court generally dismissed
geological considerations as irrelevant toelimitation in that case:
"what rnust be taken into account in the delimitation of shelf areas
are the physical circumstances as they are today; that just as it is the
geographical configuration of the present-day coasts, so alsoit is the
present-day sea-bed, which must be considered '".
'Article 56(3)of the 1982 Convention. Moreover, Article 76 of the 1982
Convention(whichdefinesthe outer limitsof the continentalshelflprovides.in
para. 10:"[the provisionsof thisarticlearc without prejudiceIo the question of
delimitationof the continental shelfbetweenStates with oppositeor adjacent
coasts."
'The relationshipbetwccnthe continental shelf andthe economic zon,nd that
betweenthe continentai margin and the 200-nautical-milleimit, were settled
beforethe extensive discussioregitrdingthe articlesondelimitation.
'I.C.J. Reports1969.p.31. para.43;
'I.C.J. Reports1982.p.53. para. 60.
'Ibid..p.54,para.61.418 GULF OF MAINE 1641
With respect to geomorphological features, the Court indicated that there
is a limitation upon "their relevance to determine the division between the
natural prolongations of the two States "'.In order to govern a boundary
delimitation, the geomorphological features must identify "such a marked
disruption or discontinuance of the sea-bed as to constitute an indisput-
able indication of the limits of two separate continental shelves, or two
separate natural prolongations '".
102. The Court reiterated its conclusions of 1969 and 1978' concern-
ing the validity and importance of the principle of coastal-front extension,
or natural prolongation in a geographical sense'. The Court recalled that
"exclusive rights over submarine areas belong to the coastal State", and
that "[tlhe geographic correlation between coast and submerged areas off
the coast is the basis of the coastal State's legal title "'. In support of this
conclusion, the Court noted the statement in its 1969 judgment that the
continental shelf is a legal concept in which "the principle is applied that
the land dominates the sea '".
103. The importance of natural prolongation in its geographical sense,
or coastal-front extension, had been recognized earlier by theCourt in the
North Sea Continental Shelf cases. The Canadian Counter-Memorial,
however, attempts to infer, from the Court's limitation of the principle of
natural prolongation in its geological and geomorphological senses, a
denial of the broader concept of coastal-front extension, or natural
prolongation in its geographical sense'. There is no basis, however, for
such an inference.
104. In the North Sea Continental Shelf cases, the Court indicated
that natural prolongation is the continuation or extension seawards of
each State's coastal front. It is "the appurtenance of the shelf to the
countries in front of whose coastlines it lies6". The Court stated:
"... the principle is applied that the land dominates the sea; it is
consequently necessary to examine closely the geographical confîgu-
'I.C.J. Reports1982. p. 57,para. 66.
Aegean Sen ContinentalShelf,Judgment,I.C.J. Reports 1978. p. 36.para. 86.
'In the threeleadingcases,the Court and the Courtof Arbitration foundthat
there were not separate continentalshelvesand that natural prolongationin its
geologicalor geomorphologicaslenseswasirrelevantinthosecases.
'I.C.J. Reports 1982.p. 61,para. 73.
'The CanadianMernorialcornescloserto a properunderstandingin stating that
"[n]aturalprolongation,in its specificallylegalsense,cannot simplybe equated
withgeologyandgeornorphology." [Para.293.1
'I.C.J. Reports1969. p. 51,para. 95.1651 REPLYOF THE UNITEDSTATES 419
ration of the coastlines of the countries whose continental shelves are
to be delimited '."
Canada errs when it discounts this geographical aspect of natural
prolongation. or coastal-front-extensioni,n stating that natural prolonga-
tion has been replaced "from its former central role '" by distance.
105. The Court in the North Sea Continental SheUcases did not relate
the inequitable effects that sometimes may be brought about by the
application of the proximity/equidistance method to the geological or
geomorphological aspects of natural prolongation, so clearly subordinated
by the Court in the Tunisia/Libya case. In fact, the Court's discussion of
equidistance relates that method to the geography of the boundary area.
Although pertinent parts of that judgment previously have been recalled
in the United States Memorial, il is useful to restate certain of them here:
"... the effect of the use of the equidistance method is to pull the line
of the boundary inwards, in the direction of the concavity.. . . The
effect of concavity could of course equally be produced for a country
with a straight coastline if the coasts of adjacent countries protruded
immediately on either side of it. In contrast to this, the effect of
coastal projections, or of convex or outwardly curving coasts such as
are, to a moderate extent, those of Denmark and the Netherlands, is
to cause boundary lines drawn on an equidistance basis to leave the
coast on divergent courses, thus having a widening tendency on the
area of continental shelf off that coast.... It goeswithout saying that
... the equidistance method produces exactly similar effects in the
delimitation of the lateral boundaries of the territorial sea of the
States concerned. However, owing tothe very close proximity of such
waters to the coasts concerned, these effects are much less marked
and may be very slight,-and there are other aspects involved, which
will be considered in their place. It will suffice to mention here that,
for instance, a deviation. from a line drawn perpendicular to the
general direction of the coast, of only 5 kilometres, at a distance of
about 5 kilometres from that coast, will grow into one of over 30 at a
distance of over 100 kilometres '".
..................................................
"It must next be observed that. in certain geographical circum-
stances which are quite frequently met with, the equidistance
'1.C. J. Reports 1969, p. 51,para. 96.In makingthis statement,the Courtwas
speakingof boththe continentalshelfand the contiguouszone-the outerlimitof
whichisdeterminedbydistance.
'CanadianCounter-Memorial.para. 471.
'I.C.J.Reports 1969.pp. 17-18,para. 8.420 GULFOF MAINE i661
method, despite its known advantages, leads unquestionably to
inequity, in the followingsense:
(a) The slightest irregularity in a coastline is automatically magni-
fied by the equidistance line as regards the consequences for the
delimitation of the continental shelf. Thus it has been seen in the
case of concave or convex roastlines that iT the equidisranre
method is employed, rhen the greater rhe irregularity and the
further from the coastline rhe area to be delimired, rhe more
unreasonable are rhe results produced. So great an exaggeration
of the consequences of a natural geographical feature must be
remedied or compensated for as far as possible, being of itself
creative of inequity '."
These conclusions of the Court are unrelated tonatural prolongation in its
geological and geornorphological senses. Rather, they refer expressly to
coastal configuration, Le., to geography.
106. The Court of Arbitration in the AngleFrench Arbitration noted
that there was more to natural prolongation than its geological and
geomorphological aspects '. Following that award, Professor Bowett com-
mented: "it is likely that in the future 'natural prolongation' will be seen
as referring to geographical configurations rather than geological fac-
tors '".Judge ad hoc Jiménezde Aréchaga, in his separate opinion in the
Tunisia/Libya case, advanced a similar geographical conception of natu-
ral prolongation:
". . . 'natural prolongation' is a concept divorced from any geomor-
phological or geological requirement and . . . merely expresses the
continuation or extension seawards of each State's coastal front. It
means that the continuation 05 the territory into and under the sea
has to be based on the actual coastline, as defined by the land
frontiers of the States in question. since it is from the actual coastline
of each State that the land territory continues into andunder the sea.
Consequently, the basic corollary of 'natural prolongation' is the need
to avoid the 'cutting-ofr of areas 'situated directly before that
front''".
'I.C.J. Reports1969.p. 49, para.89.[Emphasisadded.]
Decisions,pp. 51-52.paras.77-79; p.92, para.191;andp. 93.para. 194.
' D. W. Bowett,"The Arbitrationbetweenthe United Kingdomand France
concerning the Continental Shclf Boundaryin the EnglishChannel andSouth-
western Approaches"i,n 1978 BritishYearbwkofInternarional Law. 1979,pp. 1,
15.
' I.C.J. Reports 1982. eparateOpinionofJudgead hocJiménezdeAréchaga,p.
116,para.SB. TheCourt refersto theconrinuarionof the land territoryinroand
underthe seaat I.C.J. Reports 1969p. 31,para.43. i671 REPLv OF THE UNITEDSTATES 42I
107. Except in those rare instances where there are two separate
continental shelves, this geographical aspect of natural prolongation, or
coastal-front extension, lies at the heart of coastal-State jurisdiction over
maritime areas, with respect both to the continental shelf and to fisheries
zones. It expresses the determinative nature of the relationship between
the coastal front and the sea, the basis for al1 entitlement to maritime
areas. This geographical aspect gives rise to the equitable principle that a
boundary must respect the relationship between the coasts of the parties
and the maritime areas in front of those coasts. Contrary to Canada's
position, this relationship, whether termed natural prolongation in its
geographical sense, or coastal-front extension, remains a fundamental
principle of delimitation.
\
SECïION 3. Canada Asserts That the Single Maritime Boundary 1sto Be
Established in Effect upon the Basis of an lmpermissihle ex aequoet bono
Determination by the Court of an Equitable Share of the Resources in the
Boundary Area
108. Canada asserts that "[tlhe essential purpose of the exclusive
economic zone, as the name implies, is an economic one rooted in the
special dependenceof coastal States upon the resources off their coasts '".
On that basis, Canada concludes that "because economic considerations
are central tothe basic purvose of the new forms of maritime jurisdiction
. .. it followsthat a significant and established economicdependence upon
....resour~ ~ --~t~ ~ ~ ~outed area is a factor that should be eiven a s~ecial
weight '". Canada argues that, if the inhabitants along a coastline aie not
dependent upon the adjacent marine resources, that coastline may be
disregarded '.Finally, while openly disavowing the relevance of relative
wealth as a factor in delimitation, Canada nonetheless consistently
invokes suck a consideration in support of its position. Nothing in the law
supports these conclusions or the premises upon which they are founded.
The International Court of Justice, to the contrary, has held that
'Canadian Counter-Mernorial. para. 579. [Emphasa idded.]See also Canadian
Mernorial.para. 31 1,and CanadianCounter-Mernorial.para. 553.
'CanadianCounter-Mernorial.para. 553.
'Forinstance,Canadaargues:
". .. in a case of this nature it ceases to be aop..or.ate to identify the
relevanicoïsts and 10assesstheirirn@rtancc in;ipurcl) yc~irneiric:u.1). in
termi oriheir abçirnciipntial ih~ra;icristics. uiihoui rcgdrd10 ihcirïctual
relianceuponthe resourcesof the area concerned"
Canadian Mernorial.para. 317.Elsewhere,CanadaStates:
". .. geographyin its socio-econornic as wellas physicalaspectsshould
properlyhave a bearing on the identification and treatrnent of the coastal
areas that are relevantIoGeorgesBank.. .".
Canadian Mernorial.para. 369; .seealso Canadian Counter-Mernorial, para.
582.422 GULFOF MAINE 1681
considerations of economic dependence and relative wealth are irrelevant
to the delimitation of maritime boundaries '.
109. It is not economic dependence, but geography alone, that deter-
mines the rights of coastal States to a 200-nautical-mile zone. The
geographical relationship between the coast and the sea, and not economic
dependence, is the basis of title. The existence of the coast, independent of
any economic exploitation, is the sole ground for the recognition of
exclusive jurisdictional rights in the 200-nautical-mile zone. Economic
considerations may not serve as a basis for ignoring a coast that is
otherwise relevant to delimitation, nor may such considerations enhance
the importance of one coast vis-à-vis another.
110. These points may be shown in both positive and negative contexts.
Coastal States are entitled to claim rights over a 200-nautical-mile zone
regardless of wbether their residents previously have exploited, or have
any intention of exploiting in the future, the resources of the zone, or
whether the population depends at al1 on the fishery resources for
nutrition. Conversely, some communities that were relying economically
upon certain fisheries are deprived completely of access to their tradition-
al grounds by the introduction of the exclusive economic zone. The
Convention adopted by the Third United Nations Conference on the Law
of the Sea has not recognized historic or traditional fishing rights, except
as a relevant consideration for the coastal Stateto take into account in the
allocation of any resources that it does not intend to catch'. Indeed, the
Convention does not even contemplate a "phasing-out" period, as had
heen advacated at the Second United Nations Conference on the Law of
the Sea '.
111. The terms of the Convention, like the general principles of
international law relating to the exclusive fishing zone, provide that the
coastline is the starting point for title to, and delimitation of, the exclusive
economic zone. There is no legal authority either for barring or for
favoting the claim of a coastal Stateto such a zone on the basis of the use
that its inhabitants make of the resources of that zone. Certainly, there is
no requirement that the inhabitants must depend upon or otherwise use
those resources for their livelihood in order for the coastal State to be
entitled to a 200-nautical-mile-zone.
'I.C.J.Reports 1982,pp. 77-78.para. 107.
'Article62(3)ofthe 1982Convention.
'Canadaandthe UnitedStatesjointlyoffered twoproposalsat the SecondUnited
Nations Conferenceon the Lawof the Sea. U.N. Doc. A/CONF.19/C.I/L.IO
and A/CONF.IY/L.I 1.Bothof theseproposalswouldhaveestablisheda period
during whichdistant-fishing nations.whosetraditionalfishingrights wereto be
eliminated,couldadjusttheir fishingactivities to thenewjurisdictionalorder.1691 REPLYOF THE UNITEDSTATES 423
112. Considerations of economic dependence and relative wealth can-
not be the basis for a delimitation determinative of sovereign rights and
jurisdiction, because such considerations are variable and speculative. As
the United States said in its Counter-Memorial:
"The adjudication of a boundary between States, whether on land
or at sea, is intended to be a permanent delimitation. To the extent
possible, such an adjudication should consider circumstances that are
stable and predictable. Considerations of economic dependence and
relative national wealth and poverty are variable and speculative. The
facts and the analysis involved in anyuch comparisons are suscepti-
ble to many different interpretations.Moreover, national fortune or
calamity or other circumstances could at any time tilt the scale one
way or the other.Taking such considerations into account is likely to
discourage States from submitting boundary disputes to adjudica-
tion, thereby undermining the peaceful settlement of disputes. As the
Court in the TunisialLi cbseacorrectly concluded, questions of
economic dependence and relative wealth are extraneous and irrele-
vant to the delimitation of a maritime boundary '."
113. It is no answer to assert, as Canada does, that, although "econom-
ic interests in the abstract'" are extraneous to delimitation, economic
dependence associated with established patterns of fishing is central to
delimitation. Such considerations of economic dependence are no less
variable and speculative than the considerations that the Court in the
Tunisia/Li cbsyafound to be extraneous and irrelevant '.Moreover, in
this case, Canada maintains that economic dependence at the regional
and even local level oa State is central to delimitation, not dependence at
the national level, as argued by Tunisia. Such regional and local
economies are, if anything, more variable tban national economies, and
thus predicting the future of such economies is more speculative than
doing so on a national level'.
'United States Counter-Memorial. para.191.
'Canadian Memorial, para.316.
'See United States Counter-Memorial, paras.182.186.
'Evenif ewnomicdependencewererelevant to delimitationofthe singlemaritime
boundary in this case, a proposition that the United States rejects. such
considerationsdo no1supporta Canadian claimto any part of GeorgesBank.The
contributionof fishingon GeorgesBankto employmentand tothe gross domestic
producreither in Canada or in NovaScotia is negligible.[UnitedStates Counter-
Memorial,Annex4. Vol.III. paras. 10-20.1Althouah.in recentyears.this fishing
has beensignificanito a fcwcbmmuniticsin souih&-siNovaScotia.csch of thosé
communiiieshas ~racticalalternatives to fishingon Georges Bank. Virtuallyal1
the scallopsand mostof the groundfishtakeb; Canada fromGeorges~ank are
landed by large, corporate-ownedvessels.Thesevesselsare basedin a handful of
larger ports,primarilyin the Lunenburg-Riverportcomplexcloseto Halifax.more
than 155 nautical miles from any part of GeorgesBank. Il would appear
(foornorecontinuedon nexrpage)424 GULFOF MAINE [~OI
114. As a matter of law, a maritime area is not awarded to a State to
which it does not appertain geographically in order to protect recent
patterns of fishing by that State. To fix boundaries upon the basis of
socio-economic conditions, especially at the regional or local level, would
convert the judicial process into an impermissible apportionment ex aequo
et bono of shares varying from year to year and from generation to
generation, an approach that has been rejected firmly by this Court and
by arbitral tribunais.
SECTION 4. Canada Misapplies Article 6 of the ContinentalShelf
Convention
115. Canada's determination to overturn established law is reilected in
its misapplication of Article 6 of the Continental Shelf Convention.
Although Canada alleges that the United States "discounts the relevance
of Article 6 ... to the present proceedings "', Canada never enunciates
clearly its own view of Article 6. In fact, in light of Canada's emphasis
upon events at the Third United Nations Conference on the Law of the
Sea, it appears that it is Canada that has undewalued the relevance of Ar-
ticle 6 to the present case.
116. The United States set forth its position in its Memorial:
"The United States and Canada are not parties to any Convention
establishing the law applicable, as such, to the question before this
Court. The United States and Canada are parties to the 1958
Convention on the Continental Shelf, and Article 6 of that Conven-
tion is relevant to this proceeding as a source of principles and rules
for delimitation of the continental shelf; however, the Continental
Shelf Convention is not determinative in the delimitation of a single
maritime boundary '."
fooinoie coniinued/rom ihepreviouspage)
ihat thcscvcssclscould switchthcir aciiviiiesto rich Canadian fishinggroundson
thc ScoiianShclfor off Scwfoundlsnd.IUnitedStatcs Counier-Mcmorial.Anncx
4. Vol. III. paras. 25-27and 55-59.]~andingsof groundfishfromGeorgesBank
bysrnallve'sselare concentratedlargelyina handfulof small portslocatedin and
adjacent to CapeSable Island, at the far southwest tipof Nova Scotia. Even in
thosecommunities. landings from GeorgesBankdonot contributesubstantiallyto
the econorny.See Annex 32 for a critique ofCanada's discussionof its "small
vessel" fleet and srnallfish processingplants in southwestNova Scotia. In any
event.alternatives to fishingonGeorgesBankexistinthe econornyofNovaScotia
ai large, including the vast fishing groundsto the north and opportunities
associatedwith NovaScotia'sdevelopingoffshoreoil and gas industry. [United
States Counter-Mernorial,Annex 4, Vol.III, paras. 60-68.1Fora generalrebuttal
of thefactssubrnittedbyCanada in supportof itseconornicdependenceargument,
seeAnnex 31.
'Canadian Counter-Memorial,para. 43.
*UnitedStates Mernorial.para. 165.1711 REPLY OF THE UNITEDSTATES 425
The United States believes that the delimitation in this case should be
consistent with the principles enunciated in Article 6. The United States
does not believe that the emergence of 200-nautical-mile zones in
international law has altered radically the rules of delimitation, as
Canada suggests '.
117. Canada properly interprets Article 6 at one juncture in its
Counter-Memorial:
". . .the true effect of the combined equidistance-special circum-
stances rule in Article 6 is that the equidistance method is to be used
in those cases, and only in those cases, where it produces an equitable
result in the light of the geographical and other circumstances '".
Canada proceeds, however, to afford little credence to either the words or
the spirit of Article6. Its approach to Article 6omits any analysis of the
special circumstances of the Gulf of Maine area, and instead merely
asserts that, in the emergence of the 200-nautical-mile zone, "new
principles '"-"the distance principle '" and the "principle of equali-
ty "'-and economic dependence likewise have emerged. In this fashion,
Canada seeks to elevate the role of equidistance beyond that contemplated
by Article 6.
118. As it previously and properly has been interpreted, Article 6 is not
an inflexible provision that accords any preference to the equidistance
method. Special circumstances are no1 to be construed narrowly, nor is
any onus of proof imposed upon the State claiming that they exist.
Interpretations tothe contrary were found in the rigid arguments set forth
by the Netherlands and Denmark that were rejected by the Court in the
'The United States E.xclusiveEconomic Zone Proclamation of10 March 1983
restatesthe wordsof the Truman Proclamation:
". ..where the maritime boundarywith a neighboringState remains tobe
determined, the boundary ofthe Exclusive EconomicZone shall be deter-
mined by the United States and the State concerned in accordance with
equitahleprinciples".
Proclamation by the President of the United States Establishing the Exclusive
EconomicZone, 10 March 1983. United States Counter-Memorial,Annex 28,
Vol. v.
The Canadian Counter-Memorial,at para. 8 and n. 3 thereto, impliesthat this
Statement may differ from international law. In the United States view, the
Statement is whollyconsistentwith internationallawand thepositionset forth by
the United States in this case.
Canadian Counter-Memorial.para. 551.
'Canadian Memorial,para. 285.
'Canadian Counter-Memorial,Part III, Chapter III, SectionII. A and B.
'Canadian Counter-Memorial.Part III, Chapter III, SectionII.426 GULF OF MAINE 1721
Norrh Sea continental Sheif cases, and in the opposition to the 1958
Convention,in general, by some States. These two factors led the Third
United Nations Conference on the Law of the Sea, from the outset, to
seek a wording different from that of Article 6, irrespectiveof its proper
legal meaning.
119. In the view ofthe United States, the Court of Arbitration in the
Anglo-FrenchArbitration interpreted Article 6 properly. The solediffer-
ence that the Court of Arbitration found between customary law and
Article 6 was that, when Article 6 applies, equidistance "ultimately
possessesan obligatory forcewhich it does not have in the same measure
under the rules of customary law "'.The Court of Arbitration stated:
".. .the combined character of the equidistance-special circum-
stances rule means that the obligation to apply the equidistance
principle is always one qualified by the condition 'unless another
boundary line isjustified by specialcircumstances' '".
120. The decisionin the AngleFrench Arbitration establishedthat: (1)
"the combined 'equidistance-specialcircumstances rule', in effect, gives
particular expression to a general norm that, failing agreement, the
boundary between States abutting on the same continental shelf is to be
determined on equitable principles '";(2)"the rôle of the 'specialcircum-
stances' condition inArticle 6 is to ensure an equitable delimitation '";(3)
the specialcircumstances feature of Article 6 "underlines the full liberty
of the Court in appreciating the geographical and other circumstances
relevant to the determination of the ... boundary l";(4)there is no onus,
or burden of proof, upon the party claiming special circumstances ';(5)
"under Article 6 it is the geographical and other circumstances of any
givencase which indicate and justify the use of the equidistance method
as the means of achieving an equitable solution rather than the inherent
quality of the method as a legal normof delimitation'", and (6)"the rules
of customary law are a relevant and even essential means both for
'Decisionsp . 48, para.70.
'Decisionsp . 48, para.69.
Decisions. p.48, para.68.
'Decisions. pp.48-49, para. 70.173-74) REPLYOFTHE UNITED STATES 427
interpreting and completing the provisions of Article 6 '.As the Court of
Arbitration found: "in the cirïumstances of the ... case. the rules of
customary law lead to much the same result as the provisions of Article
6 '".
'Decisions. p. 50. para. 75. At one lime, Canada fully recognized the correct
effect of theAnglo-FrenchArbitration. At the time Canada notified the United
States of its intention to expand its claim in the Gulf of Maine area. Canada
stated that the Award had:
". ..clarified the scope and application of the principle of 'specialcircum-
stances'and its relation to the principleofequidistance undcr Article6 of the
1958 GenevaConventionon the ContinentalSheK as wellas the scopeand
application of 'equitable principles' and their relation to the principle of
equidistance in customary international law". [Note No. GNT-067 from the
Dept. of External Affairs to Embassy of the United States. 3 Nov. 1977.
United States Mernorial.Annex 69. Vol. IV.]
In the 14October 1977Canadian I.egal Statement, Canada took the positionthat
the AngleFrench Arbitration made clear that thc equidistance method was
subordinate to equitable princi~les.Canada regarded the Court of Arbitrntionas
having equated special circumstances with Guitable principles and as having
refuted'the notion that presumptionsoperate in favor of the equidistance method
or that there was anonus of prkf on the party alleging specialcircumstances.
'Decisions. p. 47. para. 65. CHAPTERII
THEEQUITABLEPRINCIPLES PROPOSED BYTHE UNITED
STATESAREAPPLICABLE IN THISCASE
121. One difference between the Parties regarding the law applicable
to this case concerns the relationship between equitable principles and
relevantcircumstances.
122. Canada acknowledges expressly that it "has emphasized the
indivisibilityofequitable principlesfrom the relevantcircumstancesof the
case "'.As a result, Canada makes no effort to identify equitable
principles as such. Rather, it merely elicits the circumstances that it
argues require resort to the equidistance method, adds the notions of
proximityand claimsof economic dependence,and, not surprisingly,finds
that the resulting mixture confirms its predeterminedviews.
123. The United States maintains that the law requires a more
disciplinedand balanced approach.The United States believesthat, if the
Fundamental Rule requires the application of equitable principles,those
principlesfirst must be identified to providea context in which to assess
the relevant circumstances.The United States has identified and applied
four equitable principlesin this case:
- The boundary must respect the reiationship between the coasts of
the Parties and the maritime areas in front of those coasts;
- The boundary should facilitate resourceconservationand manage-
ment;
- The boundary should minimize the potential for international
disputes;and
- The boundary must take account of the relevant circumstances in
the area.
These four principlesare applicable to the delimitation of the continental
shelf, the 200-nautical-mile resource zone, and the single maritime
boundary in the Gulf of Maine area.
SECTION1. The First UnitedStates Principle:the BoundaryMust
Respect the Relationship Between the Coasts of the Parties and the
MaritimeAreasinFrontof TboseCoasts
124. This equitable principle refersto the relationshipbetweenthe land
and the sea. It is a formulationof the principleof coastal-front extension,
'CanadianCounter-Mernoriap l.ara. 473. t761 REPLYOF THE UNITEDSTATES 429
or of natural prolongation in its geographical sense. Many of the
statements in the Canadian Memorial and Counter-Memorial concerning
the alleged primacy of proximity are at odds with the relationship between
the coasts of the Parties and the maritime areas in front of those coasts.
125. In connection with this first principle, the United States has
identified and discussed in its Memorial and Counter-Memorial three
subsidiary delimitation principles: nonencroachment, proportionality, and
natural prolongation.
A. NONENCROACHMENT
126. Canada does not deny the relevance in this case of the principle of
nonencroachment (which is, in effect, a means of determining whether the
principle of coastal-front extension has been respected). Canada instead
attacks the application of the principle by the United States, on the basis
of arguments that are but other means of advancing an equidistant line.
For example, in its devotion to proximity, Canada States that "non-
encroachment generally precludes any State from exercising jurisdiction
over sea areas that are substantially closer to another Stat'".
127. Canada also maintains that the principle of nonencroachment has
application only to areas "close 10''the Coast? In support, Canada refers
to paragraph 8of the judgment in the Norrh Sea Continental Shelfcases,
where the Court noted that equidistant lines in a situation such as the
North Sea would converge "al a relatively short distance from the
coast '",thereby encroaching upon the extension of the coastal front of the
Federal Republic of Germany. It readily can be seen that this consider-
ation does not diminish the importance of nonencroachment in this case.
The "relatively short distance" involved in the North Sea was approxi-
@) mately 100 nautical miles4. As the United States showed at Figure 28 of
'Canadian Counter-Memorial,para. 485.
'Canadian Counter-Memorial. para. 482.Canada also refers to interventionsal
the 1958Law of the Sea Conferenceby Peru, Lebanon,and Brazil,noted in the
separateopinionof Judge ad hocJiménez de Aréchagian the TunisiafLibyacase.
[Canadian Counter-Memorial,para. 482.1In thoseinterventions, referenceswere
made to areas "close ton the coast. Canada's relianceupon those statements is
misplaced,however,as theywere madeinresponsetoa proposalthat anyonecould
exploreand exploitthe continental shelfbeyondthe territorial Peru,Lebanon,
and Brazil responded to that proposal by stressing the security interest of the
coastal State in installations close to its coast heyond the territorial sea. Their
statements had nothing todo withnonencroachmentas a delimitationprinciple.
'I.C.J. Reporrs 1969. p. 17,para. 8.
'In the Norrh Seo ConrinenralSheU cases, the equidistant lines convergedat
pointA ofthe 1966Denmark-Netherlandsboundary agreement.That point is100
nautical miles from the Federal Republic of Germany-Denmark territorial-sea
boundary terminus, 92 nauticalmiles from the Federal Republicof Germany-
Netherlands territorial-sea boundary terminus, a133 nautical miles from the
Federal Republic'scoastlinein the back of the caastal concavity(measured from
Cuxhaven). 430 GULF OFMAINE 1771
its Counter-Memorial, the point of convergence of two equidistant lines in
a coastal concavitysuch as the Gulfof Maine occurs approximately at the
midwint of the line across the mouth of the concavity. The distances
involved in the Gulf of Maine area are comparable to those inthe North
Sea '.The Court's reference to "close Io" mus1 be understood in its
context. The principle of nonencroachment was violated by the equidistant
lines in the Norrh Seo Conrinenral SheUcases, and necessarily the same
must hold true here'.
128. Canada has proffered no argument that justifies modification of
the principle of nonencroachment. That principle, being equitable in
nature, is not rigid. It is to be applied to avoid "cutting ofr' a coast from
the maritime area lying in front of it. In a coastal concavity such as the
Gulf of Maine, the equidistant line would cut off the seaward extension of
the United States coast at Maine and New Hampshire. The cut-off effect
begins close tothe coast, continues to the closing line of the concavity, and
is further accentuated beyond. Inasmuch as the principle of nonencroach-
ment requires an abatement of the equidistant line close to the coast to
avoid the cut-off effect,it follows a forriori that a more pronounced
abatement of the escalating cut-off effect is required as the boundary
@ proceeds seaward. Figure 5 provides a relevant example. Because of these
considerations, in both the North Sea and the Bay of Biscay, the Parties
terminated the use of the equidistant line well within the coastal
concavity, in accordance with the principle of nonencroachment '.See
00 Figures 31 and 36 of the United States Counter-Memorial.
@ The equidistant lines shownat Fig. 22 of the United States Counter-Memorial
convergeat a point152 nautical miles from the United States-Canada interna-
tional boundary terminus and9 nautical milesfromthe point wherethe Maine-
New Hampshirebordermeets thesea.
'This,geographictruth cannot be distinguishedon the groundsthinthe Norrh
Seo ConrinenialSheUcases, three States were involved,rather than two.As the
Court of Arbitration stated in the Anglo-French Arbirrarion: "[aJthough the
Court'sobservationson this aspectof 'adjacentStates'situationsweredirected to
theparticularcontext ofa concavecoastlineformedbythe adjoining territoriesof
three States, theyeflect an evident geometricaltruth and clearly have a more
generalvalidity."Decisions,p. 55, para. 86.
'In the North Sca, the distance from the coast to thelas1equidistantpointon the
Federal Republic-Dcnmarkboundary is 15.1 per cent of the distance from the
coast to thecndpoint of the boundary. With respect to the Federal Republic-
Netherlands boundary,the correspondingdistanceamountsto 22.6Fr cent ofthe
totallengthof the line. In the Bayof Biscay,the distancefromthe land boundary
10 the las1equidistant point on the agreed continentalshelf boundary is 44 per
centof the distance fromthe land boundary to thepointwherean equidistant line
wouldcrossthe lincacross themouthof the Bay ofBiscay.1781 REPLYOF THE UNITEDSTATES 43 1
B. PR~PORTIONALITY
129. Proportionality is a test of equity that is required by the "funda-
mental principle of ensuring an equitable delimitation '".The proportion-
ality test is also geographical; it is derived from the principle that the
boundary must respect the basic relationship between the land and the
sea. The test is expressed in geographical terms, i.e., in terms of the need
to achieve a reasonable degree of proportionality between the lengths of
the relevant coasts and the relevant maritime areas appertaining to such
coasts. For this reason, non-geographical factors, such as the use of the
area by the parties, the marine environment, and, in particular, socio-
economic considerations, are not relevant to the proportionality test.
Furthermore, because the delimitation of the single maritime boundary
must be equitable and must respect the relationship of the land and sea,
the proportionality test ias applicable tothe single maritime boundary as
it is to the continental shelf and the 200-nautical-mile exclusive fishing
zone.
130. Proportionality is not a method by which the boundary is to be
determined, because any number of lines in the relevant area may meet
the test of proportionality. Rather, the test is applied to a particular result
otherwise determined by the application of the relevant law to the
circumstances of the case. If that result reflects a reasonable proportion
between the relevant coasts and the extent of the area left to each State,
that linethen meets the test and is an equitable solution.
131. For Canada, the proportionality test is not connected with rele-
vant geographical features2.Canada instead has taken the view that
proportionality:
"... transcends the purely geographical dimension and requires that
the area to be allocated to each of the parties should reflect al1 the
relevant circumstances of the case, so that the resulting entitlements
are proportionate in the broadest sense of the word '".
This view, which for Canada includes an economic dimension, has no
basis in the proportionality test that has evolved in the jurisprudence of
the Court and of arbitral tribunals. Indeed, the Canadian view appears to
be but another argument suggesting "a sharing out of resources", or an
impermissible judgment ex aequoet bono.
'I.C.J.Reports 1982. pp.75-76, para.103.
'Canada's statement that the role of the proportionality test"is clearly less
fundamentalwheretitle is basedona specificdistance from thecoast"[Canadian
Counter-Memorial,para. 188.1implicitlyacknowledgesthat a rule of proximity
oftenwould producedisproportionaleresults. Thisstatementisfurtherevidenceof
Canada's rejectionof the traditionalprinciplesof delimitation.
'CanadianCounter-Memorial. para .87.432 GULFOFMAINE t791
C. NATURALPROLONGATION
132. The distinction between natural prolongation in its geological and
geomorphological senses and natural prolongation in its geograr hical
sense, or coastal-front extension, already has been discussed. Canada
disregards this latter aspect of natural prolongation. The Parties agree
that there is not so significant a disruption in the continental shelf in the
Gulf of Maine area as to identify separate natural prolongations in a
geologicalor geomorphological sense '.Both Parties also recognize that, in
the words of the Tunisia/Libya case, "geomorphological configurations of
the sea-bed ... may be taken into account for the delimitation, as relevant
circumstancescharacterizing the area '". In the view ofthe United States,
the Northeast Channel is such a geomorphological configuration.
SECTION 2. The Second United States Principle: theBoundarySbould
FacilitateResource Conservation andManagement
133 The facilitation of resource conservation and management is an
equitable principle applicable in this case. This principle is in consonance
with the underlying purposes of both the continental shelf and the 200-
nautical-mile fisheries zone. In application of this principle, the United
States believes that the "single maritime boundary should avoid, whenev-
er possible, dividing between two governments the responsibility for
conserving and managing a resource '".
134. Canada's focus upon economic dependence causes it both to
misconstrue the United States arguments concerning resource conserva-
tion and management and to misinterpret the law bearing upon these
issues. Canada attacks the principle proposed by the United States,
stating that "[t]he recent evolution of the principles of coastal State
jurisdiction over fisheriescompletely undercuts the premises of the United
States argument "'. In Canada's view, the "essential purpose of the
extended zones lies in coastal State dependence '".Canada asserts:
"The 'equitable principles' advanced by the United States are
defective in their failure to give any recognition to [the] factor of
'CanadianCounter-Memorial.para. 168;UnitedStatesCounter-Mernorial, para.
35. At the sarne tirne, Canada inconsistentlyintirnates that there rnay be
discontinuitiesin the shelfSee.e.g.,Canadian Counter-Memorial,para. 171.
Annex 27 to thisReplyisa critiqueofCanada'sanalysisofthegeologyinthe Gulf
ofMaincarea.
'CanadianMernorial.para. 310; I.C.J.Reports1982.p. 58. para. 68.
'UnitedStates Mernorial,para. 247.
'CanadianCounter-Mernorial. para .13.
'CanadianCounter-Mernorial.para. 510.[sol REPLYOF THEUNITED STATES 433
present and future economic dependence-the main reason why the
extension of coastal State fisheriesjurisdiction wasadopted ... in the
first place'".
A coastal State's entitlement to a 200-nautical-mile resource zone,
however, is not determined by the degree of economic dependence it may
have upon the resources of the area2. Rather, it is determined by the
relationship of the coast to the maritime areas in front of the coast.
135. Canada objects to the equitable principle of resource conservation
and management on other grounds. Canada asserts that the United States
position is: (1)"monopolistic"; (2)"misconceived ... for the simple reason
that the law provides a quite different solution 10the problem of shared
natural resources '";(3) not supported by stock management practices; (4)
unworkable because of the complexity of nature; and, (5) no1in keeping
with the practice of the United States, Canada, and otherStates.Each of
these Canadian arguments is unfounded.
136. First, Canada assumes that, as a matter of law, jurisdiction over
the resources of Georges Bank already is shared. Canada argues that
international law "simply assumes the existence of transboundary natural
resources and prescribes international cooperation in their manage-
ment "'. That is in fact one of the very issues before the Court. It is for the
Court to determine a boundary, and thereby the respective jurisdictions of
the Parties, based upon principles and rules of law. Some boundaries in
the Gulf of Maine area would facilitate resource conservation and
management, whereas others would hinder that goal. To suggest that the
Court should seek to facilitate resource conservation and management has
nothing to do with "monopoly ".
137. Second, Canada argues that conservation and management by
agreement, where al1 Parties have a veto, is a better method for
conserving and managing resources than management of unit stocks by a
single State. Canada's denial that the Law of the Sea Conference sought
to unify responsibility for management of an entire stock in a single
State, where possible, rings hollow. The provisions regarding anadromous
and càtadromous species are clear examples of the intentions of the
'CanadianCounter-Mernorial. para5 . 11.
'Canada's emphasisuponeconomicdependencein fact is inconsistentwith the
principleof conservationand management. Acceptanceof Canada's arguments
regarding therole that its recent fishingactivitiesshouldplay in this boundary
delimitationwellmightencourageStatesor their nationals toexpandtheirfishing
effortsin order to enhancetheir positionin subsequentnegotiationsor adjudica-
tions.The objectivesof restraint inherentin the principleof conservationthereby
would be defeated.
'Canadian Counter-Mernorial. para. 501.
'CanadianCounler-Mernorial.para. 502.434 GULF OF MAINE [811
Conference '.Canada seeks to support its denial by citing the exceptions
to the general rule of unilateral coastal-State management found in the
Convention '.
138. Canada's argument overlooks the fact that the extension of
fisheries jurisdiction to 200 nautical miles and the development of the
exclusive economic zone constituted in part a response to the difficulties
engendered by joint management of resources. These difficulties are
documented by Canadian working papers submitted at the Conference '.
'Anadromous species are dealt with in Article 66 of the 1982 Convention.and
catadromous spcciesare dealt with in Article 67 of the 1982Convention.
'Canadian Counter-Memorial, para. 514. Canada's argument against "single-
State management" is based upon two articles of the 1982 Convention.Article 63
of the 1982 Convention, upon whichCanada relies, can be described onlyas a
standard hortatory provision calling for cooperation in the management of
transboundary resources. The operative language of both paragraphs of that
provision contains the phrase "shall seek ... to agree upon the measures
necessary". Similarly, Article 61, para. 2, according to Canada, "providcs for
cooperation betweenthe coastal State and competent international organizations,
'whether subregional.regional or global' ". [Canadian Counter-Memorial, para.
514.1The Canadian Counter-Memorial fails to note that this provisois preceded
by the words "as appropriate", making it a matter of discretion for the coastal
State. Only in such wordsand circumstances does the Conventionadopted by the
Third United Nations Conference on the Law of the Sea cal1for cooperation in
fisheries conservationand management.
'An early Canadian working paper for the Law of the Sea Conference defended
the need to concentrate authority in the coastal State:
"ln the view of the Delegation of Canada, the coastal state should
have the authority Io determine the allowable yield for the various
stocksof coastal speciesfalling under its management ... If is because
international experience has demonstrated the difficulry of reaching
consensusonparticular measures neededonthe basis of scienrificdora
that iiis proposed that the coastal state should have authority ro
imposea decision where consensusis not possible. "
WorkingPaper on Management of the LivingResources of the Seo. submjtted by
Canada, Report of the Committee on the Peaceful Usesof the Sea-Bed and the
Ocean Flmr Beyondthe Limits of National Jurisdiction. pp. 169-170,U.N. Doc.
AJAC. 1381 SC. IIJL.8. [Hereinafter Canadian Working Paper.] (Emphasis
added.] United States Memorial, Annex91, Vol. IV. Canada advocated a greater
rolefor single-State management than the Conferencewasprepared to accept. For
example. Canada proposed that coastal-State exclusive fishery jurisdiction be
extended Io coverthe entire range of "straddling stock",whichoccur both in the
exclusiveeconomic zoneand in areas beyond,as well as immediately adjacent to
it:
"The existingICNT article dealing with this subject already recognizesthat
the coastal state concerned and the States fishing for such stocks in the
(loofnotecontinued on nexr page)1821 REPLY OFTHE UNITED STATES 435
The new Law of the Sea Convention sets forth a general rule of exclusive
management of fisheries by a single State whenever possible. Regional
organizations are accorded a subordinate and advisory role with respect to
conservation '.and no role at al1 with respect to allocation'.Even in the
case of highly migratory, anadromous, and catadromous species, and
stocks that range beyond the limits of coastal-State jurisdiction, the
Convention calls for the identification of a single State that logically can
exercise primary management authority-as in the case of anadromous
and catadromous species-where it is possible to do so. Far from
confirming a preference for joint management, a basic theme of the
exclusive economic zone is management by a single State wherever
possible.
139. Third, in its Memorial and Counter-Mernorial. Canada attacks
the very concept of stock management, although the practice of managing
fisheries by stocks has been recognized and applied for many years.
Canada repeatedly has advocated in international fora the principle of
stock management. For example, in the recent Law of the Sea Confer-
ence, Canada stated:
"(1Stocks should bemanaged as individual units.
Few species form homogeneous mixtures of individuals throughout
the species' range. Rather these individuals tend to be grouped into
separate populations or stocks, often associated with particular
oceanographic features, such as current systems or distinct shelf
areas, with little interchange between the separate groups. Each
group will have its own particular set of biological characteristics
such as growth rate or niortality rate, dependent on its genetic
makeup and the environment which it inhabits. Each will respond to
foortnotecontinuedfrom thepreviouspage)
adjacent area are to consult with a view to agreeing upon the measures
necessaryfortheconsemationofthesestraddlingstocksinthe adjacentarea.
However.,giventhe serious conservationproblems which havealready begun
to emerge. as a result af either nonexistent or indeclive management
controls,t is necessary to review the adequacy afthis approaWorking
PaperSubmittedbythe DelegationsofArgentina andCanada,"TheSpecial
Case of FishStockswhich occurboth withinthe ExclusiveEconomic Zone
and in an Area beyondand immeditely adjacent toit", submittedat the
SecondPart ofNinth Sessonof UNCLOSIII, Geneva,1980,p. 3.[Ernphasis
added.] UnitedStates Mernorial,Annex 91,Vol.IV.
'See Article 61 of the1982Convention.
'See Article 62 ofthe 1982Convention.1841 REPLY OF THEUNITED STATES 437
143. Fifth, Canada raises a number of minor points concerning State
practice that are designed to obscure the importance of the principle of re-
source conservation and management. In Figures 39 and 40 of its
Counter-Memorial, Canada depicts applications that carry the principle
to an extreme. In addition to the fact that Canada furnishes no scientific
support for these figures, there is no evidence that the distributions of the
resources shown are associated with a clearly defined feature such as a
fishing bank. Indeed, Canada provides examples that have nothing in
common with the Gulf of Maine area. In the cases cited by Canada, there
are no geomorphological or oceanographic features that would promote
the formation of separate stocks naturally divided from one another '.
Furthermore, the stock boundaries illustrated by Canada would conflict
with, rather than conform to. boundaries that respect the seaward
extension of the coastal fronts of the parties concerned '.
144. In its Memorial and Counter-Memorial, Canada recalls successes
in resource conservation and management by agreement, in particular
between the United States and Canada. Canada purports to discern "a
community of interest between coastal Statesthat makes their differences
far easier to reconcile than the deeply rooted conflicts between distant-
water and coastal States '". In the case of Georges Bank, however, a
recent and heavily subsidized Canadian fishing industry catches stocks
'The continental shelf seaward of the Rio de la Plata is relatively broad and
without significant breaks in its trend along the wast. [Canadian Counter-
Memorial,Fig. 39A.lThe sameis true of the wast of West Africa inthe area off
Moroccoand Mauritania.[Canadian Counter-Memorial,Fig. 40B.lSimilarly, the
shelf off Senegal and Guinea-Bissauis essentially unbroken in its bathymetry
beyond the islands, and the region has no well-definedphysical or biological
boundaries.There are nojuxtaposedcurrent systemsor other featuresthat would
tend to promote the developmentof separate stocks in the immediate region.
[Canadian Counter-Mernorial, Fig. 39B.l Similarly, the Persian Gulf has no
features that would promote the development of separate stocks. [Canadian
Counter-Memorial,Fig. 40A.l
' Figures39 and 40 of the CanadianCounter-Memorialthus missthe point.They
showstocksthat are transboundaryinrelationto theland boundary and the coastal
'frontsof the States concerned.By wntrast, in the Gulf of Maine area, most
wmmercially important stockswouldnot be transboundaryin relationto the land
boundary and itsextensioninto the sea, werethe boundary torespectthe coastal
fronts of the Parties in the manner proposedby the United States. These stocks
would betransboundary, however, in relation to the boundary proposed by
Canada.
'Canadian Counter-Memorial. para. 508.To the entent that coastalStates share
the goalsof reducingthe catchesof distant-waterfieets,increasing theirown,and
ensuringlong-termconservation,Canada'spoint is correct. Nevertheless, alloca-
tion betweencoastalStates remainsa problem.Their respectivedesiresto advance
their ownfishingand managementgoalsoftenmay be in direct confiict.That has
been refiected in the historyof the Parties' fishing activitieson the east Coastof
North America.438 GULFOF MAINE i851
that historically have been caught by United States fishermen, and
disposesof that catch in United States markets. There is nocommunityof
interest reflectedin sucha situation. It is,quite to the contrary, a situation
fraught with resentment and potential discord.
145. Moreover,eventhe WestCoastsalmon fishery,perhaps oneof the
hetter examples of fishery cooperation between the United States and
Canada, demonstratesvividlythe difficulties incurredin managingshared
stocks. Most of the salmon stocks in Oregon, Washington, British
Columbia, and southeast Alaska follow migratory patterns that enahle
them to be caught by the fishermen of both States. Under the Fraser
River Convention ',the salmon stocksthat spawn in the Fraser River in
Canada have been managed cooperativelysince 1930.The Fraser River
Convention has been one of the most successfulof international fishery
agreements. Nevertheless, because of the common-pool nature of the
resource and the difficulties of joint management, even the Fraser River
Conventionhas fallenshort ofachievingoptimumproduction.Canada has
not agreed to the construction.of salmon enhancement facilities because,
under the terms of the Convention,United States fishermenwould share
the increase in the harvest. Canada, it may be noted, recently has
threatened to withdraw from the Convention '.Furthermore, the other
salmon stocksin the regionare not subject to cooperativemanagement. In
the absenceof agreement, increased salmon productionachieved through
conservation measures, costly salmon hatcheries, or other enhancement
programs undertaken hy oneState,may be harvested by fishermenof the
other State. As a result, the implementation of such programs has been
discouraged,and the stocks increasinglyare being depleted;many are in
danger of extinction. Both Parties recognize the decline of the resource
and the urgent need for an agreement. In fact, the Parties have sought to
negotiatesuchan agreement for 20 years.In recent years,there havebeen
biannual negotiationsinvolvingdelegationsofover50 members from each
Party, as well as numerous smaller meetings. The inability, thus far, to
reach an agreement, notwithstandingthe goodfaith and enormousefforts
of each side, is compellingevidenceof the difficulty of reaching agree-
ment on conservationprograms that involvethe distribution of resources
betweenthe fishermenof different States.
146. Canada's useof such terms as "cooperation" and "monopolistic"
obscures the essential point. Some degree of cooperation between neigh-
boring States is, of course, essentialon matters of resource conservation.
'Conventionfor the Protection. Preservation anE dxtensionof the Sockeye
Salmon Fisherieisnthe Fraser River, League of Nations TreatyriesVol. 184,
p. 305.
Aide-MemoirefromEmbassyof Canadato the Dept.of State, 7 Mar. 1983;
Aide-Memoire from the Dept.of State to Embassyof Canada. 8 Apr. 1983.
Annex 15.440 GULFOFMAINE 1871
150. Adopting the Canadian line would entitle Canada to conduct oil
andgas developmentonthe northeastern portionofGeorgesBank.As was
stated in Annex 2 of the United States Counter-Memorial:
"In the event oil were discharged into the water column in the
. course of hydrocarbon developmenton the northeastern portion of
Georges Bank, itwouldbe transported in the circulation pattern over
the Bank beforeit dissipated. Becausethe larvae of fish and shellfish
are particularly susceptible to damage from ail, and because the
northeastern portionofGeorges Bankisa major spawning groundfor
important commercial stocksthat range over the entire Bank, the
GeorgesBank stocksas a whole would bedamaged by a dischargeof
oil during spawningseason on the northeastern portion of the Bank.
Furthermore, oil wouldbe assimilatedinto the sedimentson Georges
Bank, and wouldcontinue to harm adult organisms, such as lobster
and scallops, that live on the seabed. Due to the pattern in which
water circulates over Georges Bank and the direction of the prevail-
ing winds, it ishighly unlikely that oil discharged into the water
columnabovethe northeastern portion ofthe Bankeither wouldcross
the Northeast Channel to the Scotian Shelfor reach the coastsin the
Gulf of Maine area '".
Even the prospect of pollution on Georges Bank causedby Canadian oil
and gas activitieswouldcause tensions,and were such pollutionto occur,
it would create a serious bilateral dispute that could not readily be
resolved.
151. The consenration and management of the fish resources in the
Gulf of Maine area have been particularly contentious and emotional
issuesfor the United States and Canada. If the boundary linewereto cut
through most of the commercially important stocks in the area, then
either United States fishingin its waters or Canadian fishingin its waters
wouldaffect the abundance of fish in the other State's portionof Georges
Bank. The management of the Georges Bank fisheries would remain
forevera potential sourceof disputesbetweenthe two States.
152. The Canadian posture regarding the developmentofthe lawofthe
sea also is relevant in this respect. Pursuant to Article II, paragr1,hof
the Special Agreement, the single maritime boundary delimits coastal-
State jurisdiction for al1 purposes under international law, present and
future. The history of United States activities relating to Georges Bank,
when compared with that of Canada, supports the conclusion that the
United States should not be required to accept the possibility of a
progressiveexpansionof Canadian restrictions upon United States mari-
time and other activitieson and overany part of Georges Bank.
'UnitedStatesCounter-MernoriaA l,nnex2, Vol.IB,para. 23.1881 REPLYOF THE UNITEDSTATES 44 1
153. History is replete with examplesof conflictcreated by boundaries
that do not reflect traditional activities or that divide natural resources.
Any legal system that allocates areas into separate geographical units
inevitably will work best if it minimizes the situations in which local
autonomy and discretion are conferred in principle but cannot work in
fact. In some cases, joint or cooperativegovernanceis the only available
choice;however,the emergenceof the regimesof the continentalshelfand
the exclusive economic zoneimplies in principle and reflects in fact a
preference for localautonomy to the extent possible.
154. When there is a choice, and when it is otherwise equitableto do
so, surely a boundary that would minimize international disputes should
be chosenoveronethai wouldmake them certain.
SECTION 4. The Fourth United States Principle: the Boundary Must
Take Accountof the RelevantCircumstancesin the Area
155. The United States and Canada are in general agreement that the
relevantcircumstancesin the area must be taken into account.There are,
however,fundamental differences between the Parties as to the relevant
circumstances and the equitable boundary solution indicated by such
circumstances. As is shownin the United States Memorial and Counter-
Memorial,as wellas in Sections 1, 2, and 3 of this Chapter, Canada has
ignoredor misappliedthe circumstancesrelevant to the applicationof the
first three equitable principles. In particular, Canada has ignored or
misapplied, as is shown in the United States Memorial and Counter-
Memorial, relevantcircumstances relating to the geographical circum-
stances and the position of the Northeast Channel as an important
geomorphologicalfeature, one that marks a natural boundary in the Gulf
of Maine area. Canada also has ignored or misapplied other relevant
circumstances in the Gulf of Maine area. Canada's misapplicationof the
relevant circumstancesis discussedfurther in Part IV hereinafter, and in
Annexes20 through 30 to this Reply.PARTIV.THE EQUIDISTANT LINE, AS WELLAS CANADA'S
LINE,WOULD IGNORE THE RELEVANT CIRCUMSTANCES IN
THE GULFOF MAINE AREA,WHEREASTHE METHODOF
APPLYING AN ADJUSTEDPERPENDICULARTO THE CENERAL
DIRECTIONOF THE COASTTAKESSUCH CIRCUMSTANCES
INTOACCOUNT
INTRODUCTION
156. This Part of the United States Reply contains fivechapters. The
first chapter examines the relevant geographical circumstances in this
case. It showsthat Canada has misreador ignoredimportant geographical
circumstances in the Gulf of Maine area. The second chapter evaluates
the Canadian argument that equidistanceis an appropriate method in this
casebecause there is a "balance" in the relevant geographical circum-
stances of the two States. This evaluation revealsthat the geographical
configurationsupon which Canada has focusedare not "in balance", but
that there is a geographical balance between the coastal fronts of the
Parties on eitherde of the land boundary in relation to the Atlantic
Ocean at Maine and New Hampshire and from Cape Sable to Cape
Canso.The third chapter examinesthe equidistancemethod inthe light of
Canada's contentions concerningthe relevant circumstances.The equidis-
tant line, and perforce Canada's modifiedequidistant line, onceagain are
shown to produce an inequitable delimitation in this case. The fourth
chapter reviews the reasons why the method of applying an adjusted
perpendicular to the general direction of the Coastproduces an equitable
result in the circumstancesof this case. the proportionality testis
examined and applied to the single maritime boundary in the Gulf of
Maine area, confirming that the adjusted perpendicular lineproposedby
the United States producesan equitable result, whereas the line proposed
hy Canada wouldnot. CHAPTER I
CANADAMISREADS OR IGNORES THE RELEVANT GEOGRAPHICAL
CIRCUMSTANCES IN THE GULF OF MAINE AREA
157. Canada's description of the location of the land boundary and the
geographical relationship between the Parties, of the general direction of the
coast, of the coastal configuration, and of the other special geographical
features of the Gulf of Maine area does not comport with the actual, and
thus the legally relevant, geographical facts.
SECTION 1. The Location of the Land Boundary in the Far Northern
Corner of the Gulf of Maine
158. The equitable character of any proposed solution depends in large
part upon the geographical relationship of the Parties. The location of the
land boundary is the starting point for identifying that relations'.In the
Gulf of Mainearea, the land boundary meets the sea in the far northern cor-
ner of the coastal concavity thatis the Gulf of Maine.
159. In its Counter-Mernorial, Canada characterizes this proposition as a
"geographical riddle '".In the 14 October 1977 Canadian Legal Statement,
however, Canada described the international boundary terminus as very
nearly in the corner of the rectangle that Canada then acknowledged was
formed by the configuration of the coasts. That statement recognized that
the Canadian coast from the international boundary terminus to Cape Sable
was represented by a straight line connecting those points, including a
closing line across the mouth of the Bay of Fundy. Canada thus would
appear previously to have solved its own "geographical riddle".
160. Both the Gulf of Maine and Georges Bank lie south of the land
boundary and in front of the United States coast. In the Gulf of Maine area,
Canada lies to the northeast of the United States'. This is confirmed
'See United States Memorial. paras. 284 and 285; United States Counter-
Mernorial.paras. 291-295.See also I.C.J. Reports 1982.p. 64, para. 81.
'Canadian Counter-Mernorial,para. 89.
'The United States and Canada are adjacent States on the North American
continent.Canada generallyis northof the UnitedStates. Canadaargues.however,
that, at leastin the Gulfof Mainearea, it lies tothe eastof the UnitedStates.To
support itsview.Canada focusesattentionupona single152-kilometersegmentof
the land boundary between Maine and New Brunswick.[Canadian Counter-
Memorial,para. 84. See olso Canadian Memorial, para. 18.) That segment.
however, no1 only is more than 110 kilometers from the sea, but also is an
aberration in terms of direction-both in the Gulf of Maine area and in the
macrogeographical relationshipbetween the Parties. [United States Counter-
Memorial,para. 29,n. 1.1 444 GULF OFMAINE 194961
by both Parties' descriptions of the general direction of the coast. It is also
confirmed by the general direction of the land boundary over its final 110-
kilometer segment. This segment followsthe St. Croix River to where the
land boundary reaches the sea at Passamaquoddy Bay. That general
direction has a bearing of approximately 151 degrees, indicating that the
land boundary reaches the sea in a direction that is very nearly
@ perpendicular to the general direction of the coas'.Figure 6.
161. In light of the southwest-to-northeast geographical relationship of
the Parties in the Gulf of Maine area, it is reasonable to expect that a
boundary extending 200 nautical miles from the coast would terminate at
a point that isgenerally to the southeast of the international boundary
terminus. That is the case with respect to the adjusted perpendicular line
proposed by the United States. Variations of a few degrees might be
justified by the relevant circumstances in the area, but one would not ,
expect the end of the 200-nautical-mile boundary to be due south of the
international boundary terminus. That, however, would be the result
achieved by the Canadian line. The equidistancemethod produces such an
inequitable result in this case for two reasons: first, the international
boundary terminus is located in the far northern corner of the Gulf of
Maine concavity; and, second, one side of the Gulf of Maine concavity,
the short, southwestern-facing coast of Nova Scotia, lies at a right angle
to the general direction of theAtlantic coast of the Parties, protruding
south of the international boundary terminus, and thereby causing the
equidistant line to swing out across, andcut off', the coastal front of the
United States.
SECTION 2. The General Direction of the Coast in the Gulf of Maine
Area
162. The general direction of the coast identifies the coastal frpnts of
the Parties. The United States and Canada do not differ radically with re-
gard to the direction of the wast in the Gulf of Maine area. Canada
acknowledges that the coast "has a general northeast to southwest
'This azimuthwascalculated usingthe followingcoordinatevaluestaken from
SpecialReport No. 3of the InternationalBoundary Commission ,evised Data
/rom ihe Source ofSt. Croix Riverdo the Atlantic Oceanand Maintenance on
this Sectionfrom1925 to 1961,1962:
Initial Monumentat the sourceof the St. Croix River, MonumenNt o.1-
45O56'36.229"N6 ,7O46'54.467"W;
Point where St. Croix River meets Passamaquoddy Bay (T.P.1)-
45"04'27.978"N6,7"05'42.417"W.
Distance alonga gecdesic=110.5kilometers,alonga rhumb= 110.5kilometers;
initialgeodesicazimuth= 150.7",rhumblineazimuth= 151.0°.1971 REPLYOFTHE UNITEDSTATES 445
orientation "'. Canada asserts that this direction is 67 degrees'; the
United States position isthat a correct analysis of the facts leads to an-
imuth of 54 degrees'. The primary consideration is that each Party has
acknowledged that there is a general direction of the coast that can be de-
termined4 within the relevant area.
SECTION 3. The Coastal Concavity That 1s the Gulf ofMaine
163. Canada ignores the Iwo most important geographical circum-
stances in this case: the concavity that is the Gulf of Maineand the land
boundary, which meets the sea in the far northern corner of that
concavity. The United States submits that it is impossible for the
delimitation in this case to ignore these critical circumstances, because
the boundary must begin in the corner of the concavity, extend through
the concavity to its mouth, and then proceed seaward from the
concavity.
164. In its Counter-Memorial, Canada acknowledges that the Gulf
of Maine "constitutes one of the four major embayments or concavities
along theNorth American coast '".As previously noted, Canada, in the
14 October 1977 Canadian Legal Statement, described the area in
which the delimitation is to take place as a rectangle, with the land
boundary specifically located in one corner of that rectangle. In the
analysis in its Counter-Memorial. however, Canada ignores the concav-
ity of the Gulf of Maine itself and focuses upon certain concavities and
convexities of far less significance. Canada advances as legally relevant
to delimitation (1) the Bay of Fundy, which is not in the area in which
the delimitation is to take place, and (2) Cape Cod and Nantucket
Island, which are located far from the international boundary terminus.
At the same time, Canada chooses to ignore not only the Gulf of Maine
itself, but also the primary coastal front of the United States at Maine
and New Hampshire.
'CanadianMemorial.para. 19.
'CanadianCounter-Memorial,para.94.
'Paras. 91 and 92 of the Canadian Counter-Mcmorialraise certain questions
concerningthe depictionof directionon the charts that the United States has
presented in this case. Annex 35 wntains a critique of Canada's discussion
regardingthe technicaluseofrhumblincsandgeodeticlinesbythe Partiesinthis
case.
'As Canada notes:"the determinationof the general directionof the coast is a
question ofinterpretation..." [Canadian~oun'er-~emorial,para. 961,and"[tJhe
differencebetweenthe Canadianand UnitedStatesa~~..achestothe determina-
tionofthe general directionofthecoastsispartlya functionofscale".[Ibip.ra.
97.1
'CanadianCounter-Memorial,para.116. 446 GULF OFMAINE (981
SECTION 4. The Fishing Banks and the NortheasChannel
165. Georges Bank and the banks on the Scotian Shelf are located
entirely within the relevant ar'.Marine scientists have studied these
banks, and the living and non-living resources associated wthem, in
detail for many years. They are well-known, clearly defined features that
constitute special or relevant circumstances in this case.
166. The Northeast Channel also is a special feature, dividing the
Scotian Shelf from Georges Bank and connecting the continental slope
with the Gulf of Maine Basin. It is neither the deepest nor the widest
"trench" in the world, and il is smaller than the Laurentian Channel.
Nevertheless, in comparison to the surrounding seabed in the Gulf of
Maine area, it is a prominent feature. It is not a mere "wrinkle of
geomorphology '",as Canada alleges. Furthermore, it lies perpendicular
tothe general direction of the coast in the area in which the delimitation is
to take place. It coincides with many of the lines that the Parties have
used for various purposes in the Gulf of Maine '.Thus, the Northeast
Channel is distinguishable from seabed features-sucas the Hurd Deep
or the Tripolitanian Furrow-that have been considered in other cases.
The United States believes that the Northeast Channel is a special and
unusual geomorphological feature, one that marks a natural boundary in
the marine environment, and a relevant circumstance that must be taken
into account in this delimitat'.n
167. International law recognizes that natural features may constitute
maritime boundaries wbere those features serve some function that relates
to the interests of the Parties in the area. The International Law
Commission, and the International Court of Justice in theNorth Sea
ContinentalSheU cases and theTunisialLibya case, as well as the Court
of Arbitration in theAnglo-French Arbitraiion, have recognized that
geomorphological features have a role to play in maritime boundary
'Canada's assertionthat the Scotian Shelf, except for that portion off the
southwesternoast of Nova Scotia, is irrelevant to this case [Canadian Counter-
Memorial, para.731only highlights the arbitrary and inequitable nature of
Canada'sposition.Canada argues that it is entitled toa share of GeorgesBank
simplybecauseCanadian fishermen,primarilyfrom Lunenburg,located some82
nautical miles northeast of Cage Sable, fish on Georges Bank, which is 155
nautical milesfrom Lunenburg. On thisbasis. Canada argues that then
coastline betweenCape Sable and Lunenburgis relevant. Nonetheless.Canada
deniesthat theCourtmay wnsider the maritimearea seawardfromLunenburgas
part of the relevantarea for the determinationof relevant circumstances.
'Canadian Counter-Memorial. para.. Annex 26 to this Reply is a critique of
Canada'sanalysisof the gwmorphology of theGulf of Mainearea.
a@@ 'See United States Memorial, Figs. 8-9 and 13-15; United States Counter-
@a- @ emorial,Figs. 14-18.
'UnitedStates Memorial, paras.37-40,50, and 51.199-1001 REPLYOFTHE UNITEDSTATES 447
delimitation '. Similarly, the decision of the Arbitrai Tribunal in the
Grisbadarna case took account of such features when it altered the
boundary to avoid a division of the Grisbadarna fishing bank'. Further-
more, in the Anglo-Nonvegian Fisheries case, Norway's system of
straight baselines was upheld in part because it was deemed necessary to
confirm Norway's jurisdiction over fishing banks'. More recently, the
Parties tothe Convention on the Conservation of Antarctic Marine Living
Resources used a natural feature to delimit the area subject to that
Convention '.
168, Accordingly, under international law, the question no longer is
whether natural features in the marine environment may be used in
delimiting maritime boundaries, but whether such features are to be
found in the area to be delimited, and the weight, if any, that should be
afforded thoçe features in the delimitation. In this case, such special
features are present. Moreover, they are entitled to great weight in the
balancing of the relevant circumstances because, unlike socio-economic
considerations, they are permanent. Their importance is highlighted by
the fact that they likewise are relevant to the delimitation of both the
continental shelf and the 200-nautical-mile fisheries zone.
' 1953 Y.B. Int'lL. Cornrn.. Vol. II,p. 216; I.C.J. Reports 1969.p. 54, para.
lOl(D~2~disposit~; I.C.J. Reports 1982. p. 58, para. 68; andDecisions.p. 63.
para. 108.
'Grisbadarna. Hague Cl. Rep. (Scott), 1916.p. 129 [42nd Whereas]. United
States Mernorial,Annex 4,Vol. 1.
'Fisheries.Judgment, I.C.J. Reports 1951.p. 142.'
'United StatesCounter-Mernorial, para3 . 15,n. 1. CHAPTER II
THE POSITION OF THE LAND BOUNDARYIN THE FAR NORTH-
ERN CORNEROF THE GULF OF MAINE, ANDTHE POSITION OF
THE NOVA SCOTIA PENINSULA, CREATE GEOGRAPHICAL
IMBALANCESINTHIS CASE
169. The Canadian Counter-Memorial argues on behalf of the concept
of geographical "balance", apparently to support the proposition that
equidistanceis the appropriate method of delimitation when geography is
"in balance "'.The Canadian Counter-Memorial appears to say that, if
the geographical features on either side of the land boundary are
comparable, their effects upon the quidistant line likewise will be
comparable, and no inequity will result from the use of the equidistance
method. Regardlessof the merits of Canada's theory, an examination of
the relevant geography and of Canada's assertions shows that each
comparisonthat Canada has made in attempting to showbalance proves,
to the contrary, that there is a clear imbalance. Canada in fact overlooks
the one element of geographical balance in this case-the Parties' coasts
on either side of the land boundary at Maine and New Hampshire and
from Cape Sable to Cape Canso that are comparable, or "balanced", in
relation tothe Atlantic Ocean.
170. Canada's main assertion with regard to "balance" isas follows:
"The geographical relationshipof the Parties to the Gulf of Maine
area in general and to Georges Bank in particular is marked by an
overall balance. Each Party has a roughly equal length of coastline
bordering on the Gulf of Maine, and each has a major concaveand a
major convexfeature on its coast: on the Canadian side, the Bay of
Fundy and the Nova Scotia peninsula, andon the United States side,
the concavityin the northwestcorner of the Gulf and the convexityof
southeastern Massachusetfs.As additional elements of balance, the
Fundy coasts of New Brunswick and Nova Scotia andthe coasts of
Maine and New Hampshire al1face the innermostpart of the Gulf of
Maine; the coast of Nova Scotia and the coast of Massachusetts face
each other from oppositesidesof the Gulf; and to seaward, the coast
of Nova Scotia and the coasts of Massachusetts and Rhode Island
face the Atlantic Ocean on either side of Cape Sable and of Cape
Cod and Nantucket '."
.
'CanadianCounter-MernoriaP l,art II, ChaptII,Section2.
CanadianCounter-Mernoriap l,ara65.fi021 REPLY OF THE UNITED STATES 449
This Canadian description of the geographical circumstances of the Gulf
of Maine area does not withstand analysis.
171. The basis of Canada's clairned "balance" is the alleged compara-
bility of the respective coastal lengths of the United States and Canada
"bordering" the Gulf of Maine. This assertion would be significant only if
the coastlines of the Bay of Fundy in fact were part of the Canadian coast
facing the Gulf of Maine; however, the Canadian coasts in the Bay of
Fundy face only each other. They form a bay over which the United
States makes no claim of jurisdiction. The Bay of Fundy is a separate
marine feature from the Gulf of Maine, regarded as such by the
International Hydrographic Organization '.Its water and seabed apper-
tain to the bordering coastlines of New Brunswick antl Nova Scotia. The
Gulf of Maine is no1 a marine area that appertains to the coasts
surrounding the Bay of Fundy. The Bay of Fundy is not included within,
but rather is outside, the area in which the delimitation in this case is to
take place. Thus, any calculations of coastal lengtb in the Gulf of Maine
area must exclude the Canadian coastlines in the Bay of Fundy. It then
can be seen that the coastlines of the Parties facing upon the Gulf of
Maine are not in balance. Indeed, approximately three-quarters of the
coastline facing upon the Gulf of Maine is United States territory '.
172. Canada next asserts that there is a comparability between the
concavity in the coast al the Bay of Fundy and that "in the northwest cor-
ner of the Gulf'-presumably in the vicinity of the New England coast
between Gloucester, Massachusetts, and Portland, Maine. A glance at the
map shows that there is no measure of comparability or balance in either
size or shape between these coastal configurations.
173. Similarly, Canada asserts that there is "a major convex feature"
on the coast of each Party: the Nova Scotia peninsula and "southeastern
Massachusetts". The United States welcomes Canada's acknowledgment
that the Nova Scotia peninsula is a major convex feature. The feature to
which Canada compares this peninsula, however, presurnably the United
States coast between Boston and New Bedford, is barely convex in
comparison to Nova Scotia. There is also a major difference in relative lo-
cation. The Nova Scotia peninsula protrudes south of the international
boundary terminus, causing the equidistant line to encroach upon the
-
'See UnitedStatesCounter-Memorial,para. 17,n. 2. and Annex II.Vol.V.
'A simplified UnitedStates coastline measured in straight lines frorn the
international boundary terminuso CapeAnn(210 nauticalmiles)and fromCape
Annto Nantucket Island(84 nauticalmiles)total294 nauticalmilesinlength.A
correspondingsirnplifiedCanadiancoastline.the straightlinebetweenCapeSable
and the international boundary terminus referretdo in the 14 October 1977
CanadianLegalStatement,measures 100 nauticalmilesin length.The coastline
lengths thereforeare in a United States-to-Canada ratio of 75:25. For the
technicalbasisforthesemeasurements, see Annex 34.450 GULFOF MAINE il031
extension seaward of the primary coastal front of the United States.
Southeastern Massachusetts is located far from the international bound-
ary terminus, and does not cause the equidistant line to extend across the
Canadian coast. Therefore,with respectto this third point as well,there is
not the "balance" that Canada seeksto create.
174. Canada purports to establish yet another measure of "balance"
when it asserts that "the Fundy coasts of New Brunswick and Nova
Scotia and the coasts of Maine and New Hampshire al1 face the
innermostpart of the Gulf of Maine". These coasts, however,are entirely
dissimilar: the Canadian coasts in the Bay of Fundy face each other and
are located outside the area in which the delimitation is to take place,
whereas the primary coastal frontof the United States faces not onlythe
Gulf of Maine, but the Atlantic Ocean as well. This attempt represents
but one further instanceof Canada's cornparisonof "unlike withunlike".
175. Canada attempts ta buttress its notionof "balance" bycomparing
the eastern coast of Massachusetts with the southwestern-facing coastof
the Nova Scotia peninsula. Althoughthese coastal frontsare of approxi-
mately equal lengths. Canada ignores that they are two inward-facing
coasts located within a coastal concavity,and that there is an intervening
and longer primary United States coastline located between them at
Maine and New Hampshirethat faces the Atlantic Ocean.
176. Canada asserts that "both the concavityand the convexity onthe
Canadian side are more pronounced than the corresponding features on
the United States side "'. Canada concludes nonetheless that the "net
result isthat ... there is an overall balance'". The convexity "on the
Canadian side"-Nova Scotia-in fact has a far "more pronounced
effectuponthe equidistant linethan doessoutheastern Massachusetts,the
convexity onthe coast of the United States describedby Canada, thereby
inequitably tilting the use of the equidistance methodin Canada's favor.
Furthermore, Canada's "more pronounced" concavity,the Bayof Fundy,
is ouisidethe area in whichthe delimitationis totake placeand has noef-
fect whatsoever uponthe equidistant line.
177. Finally, Canada attempts to find a balance in that the United
States coastline southwestof Cape Cod and Nantucket Island, and the
Canadian coastline northeast of Cape Sable, "face the Atlantic Ocean".
With this proposition, Canada ignores the coasts of Maine and New
Hampshire, which are recessed in the coastal concavity, butwhich also
face the Atlantic Ocean.
178. Accordingly,the Canadian line of reasoning that adds up to an
overall balance is without foundation. Furthermore, Canada'sdiscussion
'CanadianCounter-Memoriap l.ara118.
'CanadianCounter-Mernoriap l.ara118. [Ernphasisinoriginal.]Iio41 REPLY OFTHE UNITEDSTATES 451
of the geography of the Gulf of Maine area ignores the location of the
land boundary, the Gulf of Maine itself, and ils effect upon the
equidistant line. Becausethe Gulf of Maine is a coastal concavitylocated
entirely south of the international boundary terminus, the equidistant line
cuts across the United States coast, not the Canadian coast. Canada's
discussion also ignores the fact that the coasts of the Parties are not
balanced in relation to the Gulf of Maine or to Georges Bank because
these features are south of the land boundary and lie in front of the
primary United States coast at Maine and New Hampshire, but not in
Frontof the primary Canadian coast from Cape Sable to Cape Canso.
179. In brief, both Parties, in the Gulf of Maine area, have long,
Atlantic-facing coastal frontsof roughly equal lengths: the Maine-New
Hampshire coast and the Nova Scotia coast from Cape Sable to Cape
Canso.The Parties also have approximatelyequal lengthsof coastal front
Facingeach other across the interior of the Gulf of Maine. These are the
coasts frorn Cape Ann to Nantucket and frornthe international boundary
terminus to Cape Sable. An equitable boundary willafford these compa-
rable coastlines comparable treatment. It is this element of balance that
should be the Focusof attention. Each State is entitled to a comparable
seaward extension of its primary coastal front into the Atlantic Ocean.
The short secondary Canadian coast of southwestern Nova Scotiathat
facesthe Gulf of Maine disruptsthe balance that otherwisewouldexist in
the extensionseawardof the primary coastal fronts of the Parties into the
Atlantic Ocean. Canada'suseof the equidistance methodin the concavity
that is the Gulf of Maine woulddeny the United States primary coastal
front the extensionto which it isentitled. 452 GULFOF MAINE [1051
CHAPTER III
IN THE GEOGRAPHICAL CONFIGURATIONOF THE GULF OF
MAINE AREA, THE EQUIDISTANT LINE AND CANADAS LlNE
PRODUCE AN INEQUITABLESOLUTION
SECTION 1. Both the Equidistant Line and Canada's Line Are Inequita-
ble Because They Cut Off the Seaward Extension of the United States
Coast at Maine and NewHampshire
180. The United States has shown that the equidistant line, and a
fortiori the modified equidistant line proposed by.Canada, are not in
accord with equitable principles in the Gulf of Maine area '.These lines
cut off the extension of the United States coastal front into the Atlantic
Ocean, thereby allocating a large area seaward of the Gulf of Maine to
Canada, when infact Canada has nocoastal front whatsoeverfacing that
area '.
181. The Court described the cut-off effect in its judgment in the
North Sea ContinentalSheU cases '.The Court expresslyassociated that
effect with the application of the equidistance rnethod in coastaloncav-
ities*. The Court of Arbitration in the Anglo-French Arbitration has
affirmed these geographicaltruths, and their applicabilityto delimitations
involvingtwo States as wellas to those involvingthree States '.
182. The applicability and relevance to the present case of the 1969
judgment is not merely a matter of searching that decisionfor apt words
or broad propositions that might support a party's position. The impor-
tance of tjat judgment to this case is that, beyond its proclamation of
general rules and principles of international law, the very essenceof the
Court's decisionis fully applicable here. Canada recognizesthe implica-
tions of the decision in the North Sen Continental SheU cases when it
calls upon the Court to reconsiderits "essential rational6".
'UnitedStatesMemorial,paras. 268-276, and 305-331;UnitedStatesCounter-
Memorial,Part III.Chapter III.
@ 2See United States Memorial,Fip. 31 [reprintedai United States Counter-
MemorialF , ig.1.
'I.C.J.Reports1969. p. 49,para.89.TheCourtalsodiscussedthecut-offeffect
inthe Tunisia/Libyacase,I.C.J.Reports1982. p.62,para.76.
'I.C.J.Reports1969, p.49,para. 89.
DecisionsP. 54,para.84; andp. 55,para.86.
'CanadianCounter-Mernoriap l,ara561.i1061 REPLYOFTHE UNITEDSTATES 453
183. In its 1969 decision, the Court rejected the equidistant line
because it wouldunduly curtail the continental shelf area to be attributed
properly tothe coastal front of the Federal Republicof Germany. In the
present case, there is a similar geographical situation before the Court.
The coast of the Federal Republic of Germany, like that of the United
States at Maine and New Hampshire, is in the back of a large coastal
concavity facingthe opensea. In this case, however,the potential inequity
is not identical, but more severe.
184. There are three important differencesbetweenthe coastal concav-
ity in the Gulf of Maine area and that considered in the North Sea
ContinentalSheU cases. All three distinctions render equidistance even
more inequitable and inappropriate in this case. First, the primary coast
facing the mouth of the concavityin the Gulf of Maine area-the United
States coast at Maine and New Hampshire-is longer than the corre-
spondingcoast in the North Sea. Second, the lateral coasts in the North
Sea form obtuse angles with the primary coast, whereas in this case the
lateral coasts lie at right angles to the primary coast. Both of these
differences mean that an equidistant line that starts at the international
boundary terminus in the right-angle corner of the concavitywouldswing
out more sharply and farther across the primary coast of the United
States-than would an equidistant line across the German coast in the
North Sea. Thus, the cut-off effect of the equidistant line is more
aggravated in this case. Third, unlike the Netherlands and Denmark,
Canada has another, much longer coast facing the relevant maritime
area-the primary coast from Cape Sable to Cape Canso that faces the
Atlantic Ocean and that already has receivedits full entitlement.
185. The Canadian claim, which is basedupon the relationshipof only
two protruding coastal points, one on the Massachusetts coast and the
other on the Nova Scotia coast, is contrary to the very crux of the
reasoning underlying the Court's 1969decision. In that case, the Court
addressed the needtoabate the cut-off effect producedby the extensionof
the lateral coasts of Denmark and the Netherlands upon the equidistant
line.These lateral coasts bear a geographicalrelationshiproughly compa-
rable to that of Massachusetts and Nova Scotia in this case. The Court
accepted the thesis that neither the longer distance from the German
coast to the maritime area in dispute nor, conversely,the proximityof the
Danish and Dutch coasts to that area, constituted a valid reason for
depriving the coastal front of the Federal Republic of Germany, the
coastal front facing the maritime area in dispute, from its extension into
the sea. The Court expressed this thesis with the phrase "natural
prolongation"-i.e., natural prolongation in its geographical sense, or
coastal-front extension.
186. Canada's argument that the equidistant line should be adopted
because that part of Georges Bank claimedby Canada generallyis closer454 GULF OF MAINE [1071
to Nova Scotia than it is tothe coast of the United States is unsound. The
Court addressed the identical argument in the Norlh Sea Continental
SheU cases and categorically rejected it'. The Court stated that "the
question of which parts of the continental shelf 'adjacent IO'a coastline
bordering more than one State fall within the appurtenance of which of
them, remains to this extent an open one, not to be determined on a basis
exclusively of proximity '".
187. Canada further argues that the size of Nova Scotia requires that
it be given full effect in the construction of an equidistant-line boundary.
Size, however, is not determinative in considering the effects of a coastal
concavity upon the course of an equidistant line. If the southwest tip of
Nova Scotia receives full effect under an equidistance formula, the far
larger state of Maine receives no effect, a result that clearly would be
inequitable. Irrespective of the size of Denmark and the Netherlands,
each received far less than the area it would have been allocated by a full-
effect equidistant line. Spain is nearly ten times the size of Nova Scotia,
yet it received less area under its boundary with France in the Bay of Bis-
cay than an equidistant line would have provided '.
188. The Court, as well as State practice, thus have rejected the use of
the equidistance method in geographical configurations similar to that
found in this case-a concavity in the coast, with both lateral coasts and a
seaward-facing coastal front. The legal basis for the Court's conclusion,
which gave paramount rights tothe primaryseaward-facing coastal front
rather than to the secondary lateral coasts in the concavity, is fully
applicable to the Gulf of Maine area. The Court held:
"More fundamental than the notion of proximity appears to be the
principle-constantly relied upon by al1 the Parties-of the natural
-
'I.C.J. Reports 1969,pp. 29-30, para.40.
'Ibid., p. 30, para. 42; quoted with approvalin the Anrlo-FrenchArbirrorion.a1
Decisions.p. 52,para. 80.
'Canada miscomprehendsthe issue when it argues that Nova Scotia is a large
geographical feature, and to disregardit in any measure is Io refashionnature.
The issue is not oneof sizebut of location and theeffect uponan equidistantline.
If the cffectof a geographicalfeature uponan equidistantlinedistortsthe overall
geographical relationshipbetweenthe IwoStates, to discountor abate that effect
does not refashion, but respects,nature. In the Anglo-French.Arbitrarion.the
Court of Arbitration foundthat il was"the presenceof the Channel Islandsclose
to the French coast ... [that constituted] a circumstance creativeof inequity
[Decisions.p.94,para. 197;emphasisaddedf;and, that it was"theposirion of the
Scilly lsles west-south-westof the Cornish peninsula ... [that constituted] a
'specialcircumstance' ". [Decisions.p. 114, para. 245; emphasis added.]The
effectsof these features upon the equidistant line thereforewerediswunted or
abated in order to achieveanequitablesolution.[108-1Io] REPLY OF THEUNITEDSTATES 455
prolongation or continuation of the land territory or domain, or land
sovereignty of the coastal State, into and under the high seas ...'".
The Court indicated that this principle-natural prolongation in its
geographical sense, or coastal-front extension-constitutes the basis for
the entitlement of a coastal State to a maritime area '.The Court
recognized "the appurtenance of the shelf to the countries in front of
whose coastlines it lies'".
189. In reaching its decision, the Court in 1969 had before il various
maps and diagrams, including certain illustrations of areas other than that
under consideration '.Those maps and diagrams illustrated the inequita-
ble results that would be produced in concave geographical configurations
should the equidistant line be applied. As was noted in the United States
Memorial, one of those illustrations, reproduced at Figure 24 in the
United States Memorial and here at Figure 7, depicted the Gulf of Maine
area.
190. In its 1969 judgment, the Court expressly took account of the
maps and diagrams before it, as reflected in the followingstatement of the
Court concerning the use of equidistance in a coastal concavity:
"[ir would however be ignoring realities if it were not noted at the
same time that the use of this method, partly for the reasons given in
paragraph 8 above and partly for reasons that are best appreciatedby
rderence to the many maps and diagramsfurnished by 60th sides in
the course of the written and oral proceedings. can under certain
circumstances produce results that appear on the face of them to be
extraordinary. unnatural or unreasonable '."
In paragraph 59 of its judgment, the Couit once again referred expressly
to these maps and diagrams in stûting:
''As was convincingly demonstrated in the maps and diagrams
furnished by the Parties. and as has been noted in paragraph 8, the
distorting effect of lateral equidistance lines under certain conditions
of coastal configuration are nevertheless comparatively small within
the limits of territorial waters, but produce their maximum effect in
the localities where the main continental shelf areas lie further out'."
'I.C.J.Reports 1969, p. 31.para. 43.
'I.C.J.Reports 1969. p. 51.para. 95. [Emphasisadded.]
'These Figuresare reproduced in the UnitedStates Memorialat Figs. 21-23
'I.C.J.Reports 1969. p. 23,para. 24. [Emphasisadded.]
'Ibid.,p.37, para.59. [Emphasis added.] 456 GULF OFMAINE [lil]
191. The Court discarded the equidistance method in the geographical
setting of the North Sea Continental Shelfcases for reasons that apply
with equal force to this case:
".. .the use of the equidistance method wouldfrequently causeareas
which are the natural prolongation or extension of the territory of
one State to be attributed to another, when the configuration of the
latter's Coastmakes the equidistance line swingout laterally across
the former'scoastal front, cutting it off from areas situated directly
before that front"'.
This is a perfect descriptionof the "extraordinary, unnatural, or unrea-
sonable'" effect that the equidistant line or Canada's linewould have
were it to beapplied in the Gulf of Maine area.
SECTION2. CanadaMisappliestheDecisionof theCourtof Arbitration
intheAnglo-French Arbitrarion
192. Canada asseris that "the geographical situation in the outer part
of the Gulf of Maine area is analogous to that in the Atlantic region '"
consideredby the Court of Arbitration in the Anglo-French Arbitration.
The analogy to be drawnbetween thetwo cases is notthe one describedby
Canada in its Counter-Memorial. Rather, as Canada recognizedin the 14
October 1977 Canadian Legal Statement, the outer part of the Gulf of
Maine area, like the Atlantic region, lies off, rather than between, the
coasts of the two States.
@ 193. Figure 14 of the Canadian Counter-Memorial consists of small
charts of the Gulf of Maine area and of the Atlantic regioninvolvedin the
AngleFrench Arbitralion. Although Canada characterizes these areas as
analogous, and they are in some respectsas noted above,they in fact are
more fundamentally dissirnilar,As eventhe Canadian charts show,in this
case there is a common land boundary, whereas in the Anglo-French
Arbitration there was not.
194. Canada's presentationof these charts revealsits misunderstanding
of the Anglo-FrenchArbitration. As Canada recognizesin paragraph 144
of its Counter-Mernorial, the Court of Arbitration concluded that the
French and English coasts facing eachother across the Channel did not
abut the continental shelf in the Atlantic region.Rather, the coasts facing
the Atlantic in the boundaryarea, whatevertheir configuration,werethose
that the Court of Arbitration foundabutted the shelfto be delimitedin the
@ Atlantic region'. Nonetheless, Canada suggests in Figure 14A of its
'I.C.J.Reports1969. pp.31-32,para.44.[Ernphasisadded.]
Ibid.p.23,para.24.
'CanadianCounter-Mernoriap l,ara148.
'Decisionsp. 110,para.233. [l12-1141 REPLYOFTHEUNITEDSTATES 457
Counter-Memorial that the French and British coasts facing the English
Channel abut the Atlantic shelf. This inaccurate premisepermits Canada
@ to argue, as it does in Figure 14B,that the United States and Canadian
coasts facingeach other across the Gulf of Maine also abut the Atlantic
shelf,while ignoringthe onecoast that doesfacethe AtlanticOcean in the
area in which the delimitation is to take place in this case-the coast of
Maine and New Hampshire al the back of the concavitythat is the Gulf
of Maine.
195. In its Memorial and Counter-Memorial. Canada repeatedlydisre-
gards the coastline of the United States at Maine and New Hampshire.
That coastline faces directly upon the area to be delimited, both within
and seaward of the Gulf of Maine. The existence of that United States
coastline, which has no counterpart in the French and British coastlines
east of Finistèreand Cornwall,meansthat the Gulf of Mainearea andthe
Atlantic regionin the Anglo-FrenchArbitration are no1analogousin this
respect.
196. In the Anglo-French Arbitrarion, the equidistance method was
applied in the English Channel Westof the Channel Islands. As a result,
the boundary in the outer region beyond the facing coasts started at
approximatelythe midpointof the closinglineacross the EnglishChannel
betweenthe tip of Finistèreand the tip of Cornwall. Since there was no
Britishor French coastline acrossthe English Channel facing the area to
be delimited, and since there was as a result no common landboundary,
the continental shelf boundary in the Atlantic region was determined on
the basisof the relationshipof the actual French and British coastsfacing
the Atlantic. These methods, while appropriate in the Anglo-French
Arbitration, would not beappropriate in the vastly different geographical
circumstancesof the Gulf of Maine area.
197. If the coastal configuration in the Anglo-French Arbitration in
fact were analogousto the Gulf of Maine area, there would be aFrench
coastline across what is the English Channel, with a land boundary
betweenthe twoStates located in the corner of the resulting "concavity",
@ in the vicinity of southeast Cornwall. See Figure 8. The United States
submits that, were the geographical situationof France and the United
Kingdom as described above, the decision in the Anglo-FrenchArbitra-
tion would have been different. In keeping with both the North Sea
Continental Shelf cases and State practice, the boundary would have
respected the extension of the French coastal front at the back of the
concavityinto the Atlantic Ocean. In such a case,the boundary would not
have extended from the land boundary across the concavity between
Finistèreand Cornwall to the midpoint on the closing line,nor wouldthe
seaward direction of the frontier have been determined solely by the
locationof the mostseaward, protruding pointson the twocoasts. Rather,458 GULFOF MAINE [Il51
the boundary wouldhave taken account of the positionof the land boundary
and the primary coastal front of France facing the area to bedelimited, with
the result that, as is the case in the Bay of Biscay,and as should be the case
here, the boundary seaward ofthe concavitywould no1start in the midpoint
of the closing line across the mouth of the concavity. It would start instead
al a point more closely related to the location of the land boundary and to
the lengths of the respective coasts facing the area to be delimited.
SECTION 3. The Geographical Relationship of the Parties 1s That of
Adjacent States; the Coasts of the Parties Are Geographically Adjacent in
Relation to the Area Seaward of the Gulf of Maine
198. It is generally acknowledged that the equidistant line is more
likely to produce an inequitable delimitation in an adjacent relationship
than it is in an opposite relationship'. Even in opposite situations,
however, equidistance may produce a markedly inequitable result, e.g.,
the case of the Channel Islands in the AngleFrench Arbitrafion. The
general proposition that equidistance bears a greater measure of propriety
in an opposite relationship, however, may induce a State promoting the
use of equidistance to search for oppositeness in virtually al1geographical
configurations '.
199. Canada's approach to this issue has been inconsistent. Canada
took the position in the 14 October 1977 Canadian Legal Statement that
the boundary was a lateral line between adjacent coasts where it left the
coasts behind as it extended into the Atlantic Ocean; that Statement
recognized that in the area seaward of the Gulf of Maine, in the vicinity
of Georges Bank, the area to be delimited was one of lateral rather than
opposite coasts. In its Memorial, however, Canada shifted its view,stating
that the outer area is "a hybrid situation where elements of oppositeness
and adjacency are both in play '".Subsequently, in itsCounter-Memorial,
Canada changed positions yet again and states that the coastal relation-
ship is "predominantly opposite across most of Georges Bank'". To add
even furtherto the inconsistency, Canada argues in its Counter-Memorial
'I.C.J. Reports1969. pp.36-37, paras.57-59;I.C.J. Reporrs 1982. p. 88.para.
126;Decisions .p. 54-55,paras.85-86; andp. 58, para.95.
'Such characterizationsaredesignedto assigna particular geographical situation
to a predetermined classification. hichin turn is designedta compela preor-
dained delimitation method.Thus, the characterization ofthe geographical
relationshipbccomesan obliquerneansof encouraging or discouraging the useof
the equidistance method. Unfortunately,such characterizationscan distort and
oversimplifthedclimitationprocess.It isthe equitahlenessofthe application ofa
particularrnethodtoa specificgeographical situationthat isimportant.
'CanadianMernorial.para. 343.
'Canadian Counter-Mcrnorial, para. 113; see also para.682, which states in
pertinent part: "[tpe relationship of thewasts.. .vis-à-vis the area to bc
delimitedispredominantlyoneofoppositeness." 1116-1181 REPLY OF THE UNITED STATES 459
that "[tpe geographical relation of these coasts to the outer area is
analogous to the relationship of the coasts of Finistèreand Cornwall tothe
'Atlantic region'", which the Court of Arbitration considered to be a
situation of geographicaldjacency '.
200. Canada's geometrical diagrams devoted to this issue generally are
irrelevant to the geographical situation in the Gulf of Maine area. Indeed,
they seem to be designed to convince the Court of Arbitration in the
Anglo-French Arbitrafion that it should overturn ils finding that the
Atlanticregion constituted an area that was off, rather than between, the
coasts of the Parties in that case.
@' 201. Figure 10 of the Canadian Counter-Memorial, which introduces
the concept of a "zone of oppositeness", has no bearing upon the
geometrical relationships of the coasts in the Gulf of Maine area. This is
so because, once again, the wasts of Maine and New Hampshire
@ conspicuously are absent from Canada's diagram. Canada's Figure 10
@ does not portray the geometry of a coastal concavity. Figure 9 of this
@ Reply corrects this deficiency in Figure 10 by adding a rectangle that
corresponds to the location of Maine and New Hampshire at the back of
the concavity in the geography of this case.
@ 202. Canada asserts with regard to its Figure 10 that, if the angle
formed by a point located beyond the confines of the Coasttogether with
points A and B(the protruding points on the lateral sides of the concavity)
is lessthan 90 degrees. the geographical relationship is adjacent, and,
conversely, if the angle is more than 90 degrees, the relationship is
opposite.
203. If Canada's test is applied to a diagram that represents the
geography of the Gulf of Maine concavity, Canada's points C andD in its
so-called "zoneof oppositeness" infact form angles of lessn 90 degrees
'CanadianCounter-Memorial, para.146.
'Inspeakingofthe Britishand Frenchcoastlinesabuttingthe continental shelf to
bcdelimited,the Courtof Arbitrationstated:
". ..although separatedbysome100 milesofsea, theirgwgraphicalrelation
to eachother vis-b-vis.thecontinental shelf tobe delimitedisoneof lateral
rather than oppositecoasts".
Decisions.p. 110,para. 233. Elsewhcret.he Court of Arbitrationstated:
". ..inthe Atlanticregionthe situatgeographicallisoneoftwolaterally
relatcd coasts,abutting on the same continentalshelf whichextendsfrom
thema greatdistance seawards intthe AtlanticOcean".
Decisions,p. 113,para. 241.[Emphasisinoriginal.] 460 GULFOF MAINE il191
between point B and point X, located in the middle of the coast at the
@ back of the concavity. See Figure 9. Thus, what is "opposite" under the
@rationale of Canada's Figure 10 in reality is "adjacent" when the facts of
this case aretaken into account.
204. Boundaries must be decided by facts and not by geometrical
games. The geographical facts are before the Court. The coasts of the
Parties are adjacent, by definition, because they share a land boundary.
The Gulf of Maine area lies off, not between, the coasts of the United
Statesand Canada. Seaward of the hypothetical closing lineoftheGulf of
Maine from Nantucket lsland to Cape Sable, the area in which the
delimitation is to take place lies in front of thest of the United States
alone, and not in front of any coast of Canada. Whatever label may be af-
fixed to the coasts in question. whether opposite or adjacent, the
equidistant line, and aforriori the Canadian line, are inequitable in this
case,because they encroach upon the extension of the primary United
States coastal front.
SECïION 4. State Practice Does Not Reflect the Use of Quidistance in
Geographical Circumstances Similar to Those in the Gulf of Maine Area
205. The United States Counter-Memorial demonstrates that the
equidistant line and the equidistance method were not used as the
principal basis for delimitation in the geographical circumstances of the
North Sea and the Bay of Biscay '.In each case, the equidistant lines were
terminated well within the coastal concavity, primarily because an
equidistant line wouldproduce an increasingly inequitable delimitation as
it extended through, and seaward of. a coastal concavity '.
206. Canada has argued that because the United States has used
equidistance in other cases, it must do so here'. That argument, of course,
'UnitedStatesCounter-Memorial,Part III, ChapterIII. Section8.
@ 'Fig. 31 of the United States Counter-Memorial depicts an equidistant-line
segment inthe Gulfof Maine. drawnbyanalogyto theuseofequidistancein the
agreed NorthSea continental shclfboundariesbetween theFederal Republicof
Gtrmany and Denmark and the Netherlands:.Fig. 36 of the United States
Counler-Memorialdepicts an equidistant-line segmen in the Gulf of Maine.
drawn by analogy 10the use of the equidistancemethodin the Bay of Biscay
continentalshelfboundarybetweenFrance andSpain.
'CanadianCounter-Memorial. paras 6.42-644. 11201 REPLYOFTHE UNITEDSTATES 46I
contradicts a basic premise of delimitation: that each boundary situation
must be evaluated in the light of the circumstances of that case '.
207. Canada's reference to the other United States-Canada maritime
boundaries', where the United States believes equidistant lines produce
equitable solutions, is more telling in confirming that Canada does not
always find equidistance to be the appropriate method in other cases.
Moreover, agreements between the United States and other States to use
the equidistance method in certain geographical circumstances are not
material to the geographical truths of this case. In this respect, the
Canadian Counter-Memorial conveniently culs short an explanation in a
law review article of United States practice with regard to equidistance'.
The pertinent quotation reads in full:
"Although the U.S. maritime boundary position is based on the
concept of 'equitable principles,' the boundaries that have been
negotiated to date generally have been based on the equidistance
method to one degree or another, giving fulleffect to islands. This ap-
proach has been adopted, not because the equidistance method has
any special merit, but because its application in the particular
circumstances served U.S. interests and the interests of Our treaty
partners. Equidisiance is only a convenient technical method that
may be practical for identifying a line to serve as a boundary if it is
readily acceptable to both sides. Thus, it is not surprising that in U.S.
and international practice the maritime boundaries easiest to settle
are frequently delimited with reference to the equidistance method.
More complex or disputed boundaries are generally settled or decided
by giving effect to other methodologies '."
'In the TunisiafLibya case, the Courtstated:
"It is clear that what is reasonable and equitablein any given case must
dependon its particular circumstances."
........................ ....... . ... .......
"Clearly each continentalshelf case in dispute should be consideredand
judged on its ownmerits. havingregard to its peculiarcircumstances ...".
[I.C.J. Reports1982. p. 60. para. 72;and p. 92, para. 132Seeois0I.C,J. Reports
1969. p. 50. para. 93.1 The Court or Arbitration stated that. undcr eiiher
customary internationallawor Article6 of the ContinentalShelf Convention, "il
is the geographical situationwhich indicates the applicablemethodof delimita-
tion".[Decisiam. p. 56.para. 87.)
'Canadian Counter-Memorial, para. 643.
'Canadian Counter-Memorial. para. 642.
'M.B. Feldman and D.A Colson, "The Maritime Boundarics of the United
States", in 75ArnericanJournolo/lnrernorional Law, No. 4, 1981,pp.729.749-
750:Canadian Counter-Memorial, para. 642,n. 39.and Annexes,Vol.V, Annex
109. 462 GULFOF MAINE [1211
208. Canada also has misread United States dornestic practice'.
Annex 9 to the United States Counter-Mernorial explained that equidis-
tant lineshavebeen usedinfrequently in domesticUnited States practice,
and that situations analogous to the Gulf of Maine area have been
delimited in a rnanner consistentwith the United States position in this
case.
209. Canada notesin its Counter-Memorial that the United States and
Mexicoused the equidistance method in delimiting their boundary in the
@Gulf of Mexico.Figure 35A of the Canadian Counter-Memorial. repro-
@ duced here as Figure 10A, merits study. In that case, the use of
equidistance in a large coastal concavity producedan equitable delimita-
tion because of the location of the land boundary between the United
States and Mexico.
210. In the Gulf of Mexico,the land boundary doesnot meet the seain
a corner of the concavity, noron one of its lateral coasts; rather, it meets
the sea in the middleof the primary coastline facingthe mouth of the con-
cavity. This location of the land boundary in the Gulf of Mexico thus
correspondsto that depicted hypothetically inthe Gulf of Maine area by
@ line II in Figure 22 of the United States Counter-Memorial, reproduced
@ here as Figure 10B.If the land boundary in the Gulf of Maine area met
the sea at approximately PenobscotBay, in the middle of the coastline
facing the mouth of the concavity,as does the land boundary in the Gulf
of Mexico, an equidistant line might then reflect the geographical
relationshipof the coastsof the Partiesand the sea. The land boundary in
the Gulf of Maine area, however,is located elsewhere, inthe fat northern
corner of the area in which the delimitation isto take place.
211. Similar geographical circumstances were addressed in the North
Sea and in the Bay of Biscay. Contrary to Canada's argument, the
applicationof the equidistancemethoddoes not conform to State practice
in situations such as that found in the Gulf of Maine area, and the
Canadian line wouldnot producean equitable solutionin this case.
SECTION5. BoththeEquidistantLineandCanada'sLineDisregardthe
NortheastChannel, the OnlNyaturalBoundaryintheMarineEnvironment
intheGulfof MaineArea
212. Neither the equidistant line, nor Canada's modified equidistant
line, takes account of relevant circumstances of the marine environment.
Bothlinesignorewater depth, topography,and other characteristics ofthe
marineenvironment, includingthe distribution of fishstocks.Consequent-
ly, both linesdisregard the only natural boundary in the marine environ-
ment in the Gulf of Maine area, the Northeast Channel.
'CanadianCounter-Mernorial.para.44.464 GULFOF MAINE 11271
B. THE SCIENTIFI CATA CONFIRM THE EXISTENCE OF THREE SEPARATE
AND IDENT~F~AB LECEANOGRAPH AN~C ECOLOGICAL REGIMES IN THE
GULF OF MAINEAREA
215. The Northeast Channel is not only a natural geomorphological
boundary '. As the United States has shown, it also marks a natural
division in the water column between separate and identifiable oceano-
graphic and ecological regimes. There are in fact three such regimes in
the Gulf of Maine area, each with a different pattern of water circulation,
temperature, salinity, density, vertical stratification, and tidal action
every level of the food chain (phytoplankton, zooplankton, and benthos),
separate ecological communities have developed within these regimes'.
Canada attempts to obscure the existence of the separate and identifiable
regimes by focusing upon similarities among these regimes and upon
differences between the Gulf of Maine area as a whole and otherareas.
Canada fails to discuss, however, the important differences within the
Gulf of Maine area that define the three regimes. For example, Canada
emphasizes the differences in ternperature between the Gulf of Maine
area as a whole and the regions beyond, but belittles the significant
temperature differences that exist among the threeeparate and identifi-
able oceanographic regimes within the Gulf of Maine area itself4.
Similarly, Canada finds a "single, integrated tidal regime" in the area-
which is certainly correct, since the entire North Atlantic Ocean responds
tothe moon's gravitational pull-but ignores the important differences in
the tidal movement in each of the three regimes that result from the
interaction of tide and geomorphology '. In discussing the ecology,
Canada uses data on the distribution of benthos and fish selectively in an
effort to rnake the marine environment in the area appear uniform and
thereby to obscure the division of the area into three separate and
identifiable ecological regimes
'Annex 26 to this Reply is a critique of the analysisin the Canadian Counter-
Mernorialof the geomorphologyin the Gulf of Mainearea.
'United States Counter-Mernorial,Annex 1,Vol.IA, paras. 11-40.
'UnitedStates Memorial,paras. 47-51; UnitedStates Counter-Mernorial.Annex
1,Vol.IA, paras. 41-51.
'Canadian Counter-Mernorial,para.184. The ternperature differences among
regimesare discussedin the United States Counter-Mernorial,Annex 1,Vol.IA,
paras. 18-21. Annex25 to this Reply is a critique of Canada's discussionof
ternperature and salinitydata. ,
'Canadian Counter-Mernorial, para.186. The differencein tidal movernentsis
discussedinthe UnitedStates Counter-Mernorial.Annex 1,Vol.IA, paras. 38-40.
'Annexes 23 and 24 are critiques of the analyses in the Canadian Counter-
Mernorialof data relating to the distribution of fish speciesand benthos in the
Gulfof Mainearea.1128-1321 REPLYOFTHE UNITEDSTATES 465
216. The ocean is constantly in flux, but the oceanographic processes
repeat themselves year after year. Patterns of water circulation and
mixing, temperature, and salinity remain essentially the same. In the Gulf
of Maine area, they are influenced by the peculiar geomorphological
features. The distribution patterns of the flora and fauna that are
dependent upon these oceanographic processes likewise basically repeat
themselves from year to year. Thus, Canada misses the point when it
criticizes the satellite image in the United States Memorial as merely a
"snapshot of a highly complex and variable ocean system at a given
instant "'.
' 217. Figure 6 of the United States Memorial, which is the subject of
Canada's criticism, shows the phytoplankton concentration on 14 June
1979. In fact, this "snapshot" illustrates the pattern of phytoplankton
production for the middle of every year, not for 1979 alone. Figure 12
demonstrates the remarkable annual consistency of the marine environ-
ment by showing satellite images of phytoplankton in June or July of four
different years from 1979 to 1983 '.In al1four images. the Georges Bank
regime is clearly distinguishable from the regimes of the Gulf of Maine
Basin and the Scotian Shelf. In June and July, high phytoplankton
production occurs on Georges Bank and Nantucket Shoals, on the
southwestern tip of the Scotian Shelf, and on the well-mixed areas along
the Coast. To complete the picture, Figure 13 shows the annual cycle of
phytoplankton production through a series of 12 satellite images (one for
each month of the year)'. Together these images show how the marine
environment moves through predictable annual cycles '.
'Canadian Counter-Memorial. para.194.
'Theseimagesare for 7 July 1979,26July 1980,11July 1981,and 30June 1983.
Unfortunately. itis no1possiblcto obtain imagesfor preciselythe same day and
hour for each year,ecauseclouds frequentlypreventthe satellitefromobtaining
a satisfactory image, andbecause,rince late 1982, the satellitehas not collected
data on as regulara basisas previously.There isnoimagefor 1982 inthis Figure,
becauseal1images from June and July of 1982were obscuredby clouds.These
imagesal1weretaken within the period from the end of June ta the end of July,
and they show the repetitivenessof the natural phenomena.Canada noted that
satellite images do "not distinguish between suspendedmud or silt and chloro-
phyll". [Canadian Counter-Memorial, para.194.1As the UnitedStates noted in
Annex 1 to its Counter-Memorial, this distinctiononlyoccurs inshorc. wherethe
presence of other pigments may exaggerate the abundance of phytoplankton.
[UnitedStates Counter-Memorial,Annex 1,Vol.IA, para. 45, n. 2.1
'23 Jan. 1979,4 Feb. 1979,22 Mar. 1979,25 Apr. 1979.7 May 1979,14June
1979,7 July 1979,31 Aug. 1979, 17Sep. 1979,19 Oct. 1979.3 Nov. 1978, 12
Dec. 1979. The November image is from 1978. because al1 images from
Novemberof 1979 wereobscuredby clouds.
'Similar satelliteimagesof temperaturefor four consecutiveJunes andfor the 12
monthsof the year are found in Annex25 to this Reply. 466 . GULF OF MAINE 11331
C. THENORTHEASC THANNEL SEPARATE M OSTCOMMERCIALL IYPOR-
TANT FISHSTOCK SN THE GULF OF MAINEAREA
218. The United Stateshas demonstrated that the Northeast Channel
separates stocks of 12 of the 16 commercially most important species in
the Gulf of Maine area ', and that both the equidistant line and the
Canadian line would slice through, rather than between, these 12
important stocks2. The United States also has demonstrated that the
management of transboundary stocks by agreement between States is
inherently difficult, often unsuccessful, and potentially productive of
disputes'. A boundary that uses the Northeast Channel would facilitate
effective fishery conservation and management in the area, whereas a
boundary across Georges Bank would impede such efforts.
219. Canada is not in a position reasonably to arguethat the Northeast
Channel is not a natural boundary. For over 50 years, under NACFI,
ICNAF, and NAFO, in its own domestic fishery management program,
and.even as reflected in materials deposited by Canada with the Court,
Canada has recognized, and its fishery scientists have helped to prove,
that the Northeast Channel does indeed separate most of the commercial-
Iy important fish stocks in the area'. Nonetheless, in its Memorial and
Counter-Memorial, Canada attempts to disclaim what for decades it has
accepted and incorporated into its own practice.
220. First, Canada attacks the concept of a stock, calling it an
"'abstract'"term of "misplaced concreteness" that il1fits the "untidy"
world of nature's realitiesThese statements are contradicted by Cana-
da's eloquent advocacy of the concept of a stock at the Third United
Nations Conference on the Law of the Sea and by Canada's extensive
reliance upon the stock concept in its international and domestic manage-
ment programs. Annex 20 to this Reply iecalls some of Canada's past
affirmations that the concept of a stock is an importanireality, that stocks
must be managed as units, and that the areas inhabited by coastal stocks
are usually well-define'.
@) UnitedStates Mernorial,par55 and Fig7; UnitedStates Counter-Memorial.
Annex 1,Vol.IA,paras.76-99.
@ 'United States Memorial, paras318 and 323, and Fig.36; United States
Counter-Mernorial.PartIIChapter III, Secti7.
'SeeUnitedStatesCounter-Mernorial,PartIIIChapter IIISection7.
'United StatesCounter-Mernorial.para.45, n. 3, and Annex 1, Vol. IA.
AppendicesA-H.
'CanadianCounter-Mernorial, para.09 and210.(Emphasisinoriginal.]
'As Annex 20 dernonstrates,the concept ofa stockis generallyrecognizedas a
practical and effectivforpurposesof fishery management.il341 REPLYOF THEUNITED STATES 467
221. Second, Canada confuses the issue of stock separation by intro-
ducing irrelevant assertions regarding species distribution and biomass
aggregates. The Canadian Counter-Memorial states that "[sjtudies of the
limits of distribution of commercially important species provide no
support" for the theory that the Northeast Channel is a natural boundary
between Georges Bank stocks a'nd Scotian Shelf stocks'. Canada's
assertions concerning species distribution, which often are incorrect',
have nothing to do with fishery management. Herring, for example, exist
on both Georges Bank and the Scotian Shelf, and throughout most of the
North Atlantic. Nevertheless, because the herring stocks are separate, the
harvest of Georges Bank herring does not affect the abundance of Scotian
Shelf herring, and vice versa. In fact, overfishing largely destroyed the
Georges Bank herring stock in the 1970%while the Scotian Shelf stocks
remained commercially viable '.
222. Canada's data concerning "aggregate biomass distribution" are
similarly irrelevant'. The United States agrees that groundfish are
abundant throughout the Gulf of Maine area, including on both the
Scotian Shelfand Georges Bank, although, as Canada itself has illustrat-
ed in Figure 24 of its Counter-Mernorial, there are concentrations of
groundfish on the northeast tip of Georges Bank and a relative scarcity of
groundfish in the Northeast Channel. The abundance of a particular
species on both Georges Bank and the Scotian Shelf does not of itself
indicate whether there is one stock or several. There are a wide range of
scientifically accepted tests to identify separate stocks. The United States
has indicated in its Counter-Memorial the tests by which the existence of
separate stocks on Georges Bank and the Scotian Shelf has been
determined '.
223. Third, Canada often confuses the exception with the rule. For
practical, fishery management purposes, stocks may be defined as sepa-
rate if the fishing of one stock does not affect the abundance of the other.
Thus, the hawest of an occasional stray fish, the intermingling of lawae,
or the intermingling of stocks at various times during their life cycles, does
not affect their status as separate stocks, provided that the harvest of one
stock does not affect materially the harvest of the other stock. As stated
by Dr. John Gulland, a British fishery scientist whose works have been
'CanadianCounter-Mernorialp , ara200.
'See Annex 23.Totheextentthat therangesofsomespecjesdoendintheGulfof
Mainearea, this occursat the Northeast Channel, andnot at the Great South
Channel. UnitedStatesCounter-Memorial.Annex 1,Vol.IA, paras. 104-113.
'United States Counter-Memorial.Annex 1,Vol.IA,para. 82.
'CanadianCounter-Mernorial. paras 225 and 226,and Fig. 24.
'United StatesCounter-Mernorial,Annex 1,Vol.IA, para. 75, and Table B. p.
97. 468 GULF OFMAINE il351
cited by Canada in this case ',"[a] group of fish can be treated as a unit
stock if theresults of assessments and other population studiesin which it
is treated as a unit stock do not diverge sign~cantly from the real
situation'."
224. The United States examined 16 commercially important species
and established that the Northeast Channel limits the range of stocks of
12 of these species'. Although Canada previously has recognized a
division at the Northeast Channel for 11 of these 12 species ',it now
contends that the Channel separates stocks of only one of the 12 species,
yellowtail flounder'. Canada seeks to support its contentions with a
discussion of the cod, herring,.scallop, and lobster stocks in the Gulf of
Maine area 6.Annex 21 to this. Reply reveals that, at several points,
Canada based its arguments for each of those species upon a misreading
of the materials cited'. The Annex also explains how Canada has
confused the exception with the rule, as in the following example
concerning lobster.
225. The Canadian Counter-Memorial cites a study involving the
tagging and release of 28,226 lobster in the area off Port Maitland, Nova
Scotia, over a period of 35 yearsO.According to the study,some 14,000 of
the lobster were recaptured. A reading of the study discloses, however,
that, of these, 80.8 percent were recaptured inside the area in which they
were released, 95.4 per cent were recaptured within 18.5kilometers of the
release area, and 4.1 per cent were recaptured farther away, mostly
inshore. As the study records, only two adventurous lobster, out of the
14,000recaptured, were found on Georges Bank. For fishery managers,
these facts confirm the existence of separate stocks: i.e, that lobster
fishing off Port Maitland will not affect the abundance of lobster on
Georges Bank or along the Coast of Maine. Canada, however, has
presented a chart in the Annexes to its Counter-Memorial with arrows
drawn to the 30 most far-flung of the 14,000 recaptured lobster,
'CanadianCounter-Mernorial,para.414,n. 98.
'J.A.Gulland, Guidelinesfor Fishery Management, 1974,p. 2.[Emphasisadded.]
Annex17.
@'United States Mernorial, paras.55-57 and Fig. 7; United States Counter-
@-@ Memarial,Annex1,Vol.IA,paras. 76-103and Figs.29-50.
'In this regard,ee UnitedStatesCounter-Memorial.para. 45and n. 3.
'CanadianCounter-Mernorial. para2 . 12(g).
CanadianCounter-Mernorial, paras2 .13-224.
'Annex21containsa critiqueof the analysisin the CanadianCounter-Mernorial
of the stock divisionofcod, herring,scallops,and lobsterin the Gulfof Maine
area.
@ 'Canadian Counter-Mernorial. AnnexesV , ol1,para. 131(b)and Fig. 41. This
study,"Movementsof Tagged Lobster Released offPort Maitland,NovaScotia,
1944-1980".byA. Campbell,isdiscussedin Annex21. il361 REPLY OFTHE UNITED STATES 469
purporting to demonstrate "extensive migration ... throughout the Gulf
of Maine area "'.In fact, these 30 lobster constitute only two-tenths of
one per cent (0.002) of the tag returns.
226. Fourth, in its Counter-Memorial. Canada introduces 12 addition-
al but irrelevant species, which are examined in Annex 22 to this Reply.
All 12 are of minor commercial importance in the area in dispute in this
case. Seven of the 12 would range across any potential boundary. Both
Atlantic salmon and American shad, for example, migrate throughout the
area. Moreover, they are harvested inshore and not, to any significant
degree, in the disputed area on Georges Bank. Atlantic salmon, in fact,
are the subject of a separate multinational Convention that prohibits
harvesting beyond 12 nautical miles from the territorial sea baselines '.
Stocks of the five remaining additional species divide naturally at the
Northeast Channel. Furthermore, Canada does not include in ils list other
speciesthai are commercially as important as its 12 additional species and
that are separated at the Northeast Channel '.
227. The extent to which the Northeast Channel is a natural boundary
for fishery stocks may besumniarized as follows:
(a) there are approximately 16 commercially important species in the *
Gulf of Maine area ';
(b) the Northeast Channel separates stocks of 12 of these commercially
important species ',whereas the equidistant line and the Canadian
line would cut through the Georges Bank stocks of these 12, and, in-
deed, of al1 16 commercially important species6;
@ 'CanadianCounter-MernorialA, nnexes,Vol1,Fig.41.[Ernphasisadded.]
'Conventionfor the Conservationof Salmonin the North Atlantic Ocean, Art.
[ratified by Canada, the European EconomicCommunity,Iceland, Norway, and
the United States.]
'These omitted speciesare summer flounder,windowpaneflounder,ocean put,
tilefish,wolffish,winter skate,little skate. and bluefish.Annex22.
'See United States Mernorial, paras. 55-57; United States Counter-Memorial,
Annex 1,Vol. IA.
@ 'United States Mernorial,para. 55 and Fig. 7; United States Counter-Memorial.
Annex 1,Vol.IA, paras. 76-99.These 12commerciallyimportantspeciesare:cod,
herring, haddock,silverhake, red hake, white hake, redfish,owtailflounder,
seascallops,lobster, cusk, and longfinsquid. The Northeast Channel represents
the northeastern limit of distribution for thelongfinsquid. There is a stock of
longfinsquidon GeorgesBank, butnoneon the Scotian Shelf.Thus, for longfin
squid, the Northeast Channel representsa stock boundary, but not a stock
division.
@ 'United States Mernorial, paras.318and 323,and Fig. 36. 470 GULF OF MAINE il371
(c) there are four commercially important species 'that are not separat-
ed naturally al the Northeast Channel, nor at the Canadian line, nor
at the equidistant line-stocks of these species range across any line
of delimitation in this case2;
(d) Canada lists 12 additional species ',which are of minor commercial
significance in the area; seven of these 12 additional species are
migratory, and stocks of these seven will range across any line of
delimitation ';
(e) the Northeast Channel separates concentrations of the remaining
five of the additional 12 species ',whereas the equidistant line and
the Canadian line would cul through concentrations of these five
species;
(0 concentrations of at least seven other species of comparable com-
mercial significance to Canada's 12 additional species are separated
naturally al the Northeast Channel l;the equidistant line and the
Canadian line would cut through concentrations of these seven
species.
SECTION6. Both the Equidistant Line and Canada's Line Disregard the
Predominant Interest of the United States in Georges Bank
228. In ils Memorial and Counter-Mernorial, the United States has
documented important United States fisheries on Georges Bank that have
flourished since the early 19th century '.Canada cannot credibly deny the
existence of these United States fisheries, but in its pleadings has sought
tocreate established historical Canadian fisheries on Georges Bank, when
in fact no significant fishery existed until recently.
'Theseare mackerel,pollock,argentine, andshortfinsquid.
@@'United States Mernorial, para. 56, andFigs.7 and 36.
'Canada liststhese additional 12speciesin Vol.1of the Annexesto itsCounter-
Memorial,at para. 121,n. 12.
'These are bluefin tuna, Atlantic Salmon, swordfish, spiny dogfish, alewife,
Arnericanshad, andsaury. See Annex22.
'These are winter flounder, American plaice, butterfish, goosefish,and witch
flounder.See Annex22.
'These are sumrnerflounder, windowpaneflounder, oceanpout, tilefish, winter
skate, little skate, and bluefish.See Annex22.
'United States Mernorial, paras.59-88;United States Counter-Mernorial, paras.
61-76.Annex 28 to this Reply is a critique of Canada'sanalysisof the historical
and recent fishingactivitiesof UnitedStates fishermenon Georges Bank.il381 REPLYOF THE UNITEDSTATES 47I
229. As the United States has stated, Georges Bank was fished "almost
exclusively" by the United States prior to the 1950s '.The United States
acknowledges that fishermen of other States, including Canada, may have
fished occasionally on Georges Bank >. This conclusion is confirmed by
Canada's Counter-Memorial. After combing al1 available evidence,
searchingthrough decades of newspapers, and canvassing the Nova Scotia
fishing community, Canada has been able to demonstrate only that, upto
1950, approximately 85 Canadian vessels visited Georges Bank at one
time or another l.Annex 29 examines in more detail the evidence adduced
by Canada.
230. Although Canada began to keep statistics of its fisheries in 1867, it
can offer no statistical evidence of the purported Canadian fishing on
Georges Bank during this period. In 1950, Canada was able to supply
ICNAF with records dating as far back as 1869 of Canadian catches in
Subarea 3 (off Newfoundland) and Subarea 4 (off Nova Scotia), but
Canada produced no records of any catches from Subarea 5 (off New
England)'. Although the definitive studies of the Northwest Atlantic
fishery prior to 1950, written by both United States and Canadian
historians, al1 recognize the importance of the United States fisheries on
Georges Bank, none makes any mention of a Canadian fishery on Georges
Bank '.Nor does Mr. F.W. Wallace, Canada's leading fishery editor in the
first half of the twentieth century, mention Georges Bank in his review of
the Canadian Atlantic fisheries 6.Had there been the Canadian Georges
Bank fisheries that Canada has described in its Memorial and Counter-
'United States Mernorial, paras.60.79; United States Counter-Mernorial. paras.
58-66.See Annex28.
United States Mernorial,para. 298;United States Counter-Mernorial, para. 64.
'Thesevesselsdid not alwayscorneto fish.For exarnple,Canada assertsthat the
fishingschoonerGrace andRuby fished extensivelyon GeorgesBankduring the
1920s.This vessel, however, foundits way into United States law booksas a
srnuggler.This notorious caseis discussedin P.C. Jessup,The Law of Territorial
Waters and Maritime Jurisdiction. 1927,pp. 242-247.See Annex 29,A Critique
of the Evidencein the Canadian Counter-Mernorial Regarding Canada'sHistori-
cal FishingActivitieson GeorgesBank.al AppendixB.
'United States Mernorial,Annex 46, Vol. III; United States Counter-Mernorial,
para. 61.
'See C.B. Goode, The Fisheries and Fishery Industries of the United Stares,
1887;R. McFarland, A History of New EnglandFisheries. 1911;R. Grant, The
CanadianAtlantic Fishery, 1931;H.A. Innis, The Cod Fisheries:A History of an
InternationalEconomy. 1940;E.A. Ackerrnan,New England'sFishingIndustry,
1941; and S.E. Morison, The Maritime History of Massachusetts: 1783-1860,
1979.All of these workspreviouslyhave been depositedwith the Court pursuant
to Article 5q2) of the Rulesof Court.
See United States Counter-Mernorial, paras. 64-66. 472 GULF OF MAINE 11391
Memorial ',they surely would have found a place, along with Canada's
other fisheries, in the history books and in the records supplied by Canada
to ICNAF.
231. Canada hegan sustained fishing on Georges Bank on a small scale
in the 1950s. TheCanadian fishery did not become significant until the
1960s, at about the time that other foreign fleets arrived on Georges
Bank. Third-State fishing became subject to United States jurisdiction
with the establishment of 200-nautical-mile fishing zones. Canada's
fishing on Georges Bank has outlasted third-State fishing there only
hecause of Canada's boundary claim. Even since 1950, and notwithstand-
ing the recent Canadian fishery, the United States never relinquished its
predominant interest in the Georges Bank fisheries, as evidenced both by
catch statistics'and by the history of the Parties' activities under
ICNAF'. In the lCNAF Panel for Subarea 5, which included Georges
Bank, the United States provided the leadership, conducted most of the
research and enforcement, proposed most of the management measures,
and received the preponderance of allocations based upon coastal-State
preference. Canada, by contrast, assumed the leadership role and concen-
trated its resources in the areas of its predominant interest, ICNAF
Subareas 3 (off Newfoundland) and 4 (off Nova Scotia).
B. AGREEMENTC SONCLUDED BY THE PARTIES CONFIRM THE PREDOMI-
NANT ~NTEREST OF THE UNITEDSTATES INGEORGEB SANK
232. In its Memorial and Counter-Memorial, the United States docu-
mented its dominant role in the Georges Bank area in charting and
surveying, in providing other aids to navigation, in conducting scientific
research and search and rescue operations, and in undertaking defense
responsibiliti'.Significantly, whenever the Parties concluded an agree-
ment allocating responsibilities in the Gulf of Maine area, they divided
responsibility in the vicinity of the Northeast Channel'The United
States does not contend that the lines that are displayed in its Memorial
evidence Canadian acquiescence in United States jurisdiction, or that the
lines were intended to be maritime boundaries for purposes of marine
'ln its Counter-Mernori. anadaclairnsthat UnitedStates"dominance"of the
Georges Bank fishery "isargely a myth of its own fabrication". Canadian
Counter-Mernorial, para.324.The factsindicatethat suchrhetoricismoreaptly
applicable tothe descriptionof the purported historical fiof Canada
containedintheCanadianCounter-Mernorial.ee Annex29.
@@ 'United StatesCounter-Mernorial.Figs.9 and 10.
'United StatesCounter-Mernorial,Annex3,VolII.
'United StatesMernorial.paras.102-132.Annex30 to thisReplycorrects factual
errorsintheCanadianCounter-Mernorial concerningdefense responsibilities.
@a@ 'United StatesMernorial, Figs.8,9, 13, and 14; United States Counter-
a@-@ Mernorial,Figs.14, 15,16,and 17. ~401 REPLYOF THE UNITEDSTATES 473
resources. The lines do indicate. however, that the Parties understood that
the Georges Bank area was linked more intimately to the United States
than to Canada, at least for the specific purposes involved.
233. The "lines" that Canada has presented to the Court were never
@ the subject of agreement between the Parties. For example, Figure 53 of
the Canadian Counter-Memorial shows a division between United States
offshore petroleum leases and Canadian offshore oil and gas exploration
permits approximately along the middle of Georges Bank. This Figure,
however, does not tell the full story of the Parties' activities. United States
permits for seismic research covered the whole of the Bank, and consider-
able research was conducted pursuant to these permits. The United States
scheduled lease sales included tracts located in the disputed area, but, as
an act of restraint, the United States withdrew these tracts pending
negotiation and, subsequently, adjudication, of the boundary. For its part,
Canada waived the work requirements that normally would apply to ils
permits; as a result, no significant work, and no drilling, have been
conducted pursuant to these permits. Accordingly, there is no "line" that
has divided the Parties' continental shelf activities, such as that in the
TunisialLibya case '.
'In the Tunisia/Libya case, the Court found that each Party independentlyhad
chosenroughlythe same line tobund the area in whichit issuedail concessions;
that each Party authorized exploration activitiesup to that line; and thatls
were drilled without interference and,for a time, withoutprotest by the other.
[I.C.J.Reports 1982,pp. 83-84,para. 117.1Canada'sequidistantlinemoreclosely
corresponds tobth the "ZV 4S0 north-east" line claimed by Tunisia and the
northward line claimedby Libya under its petroleum law to be a continuation
seawards ofthe last segmentof the land frontier.The Tunisianand Libyanlines,
likeCanada's line,were not agreed upon,but wereestablishedonly by unilateral
action; they thereforewere held nottobe opposableto the other Party. [I.C.J.
Reports 1982. p. 66, para. 87; p. 68, para. 90; and p. 69, para. 92.1Asthe Court
explained, "an attempt by a unilateral act to establish international maritime
boundary lines regardless of the legal position of other States is contrary to
recognizedprinciplesof international law.".[I.C.J. Reports 1982. p. 66.para.
87.1 CHAPTER IV
IN THE CIRCUMSTANCES OF THIS CASE, A LINE FROM THE
AGREED STARTING POINT GENERALLY PERPENDICULAR TO
THE GENERALDIRECTION OF THE COAST,BUT ADJUSTED TO
PRESERVE THE INTEGRITY OF SEPARATE AND IDENTIFIABLE
FISHING BANKS,IS CONSISTENT WITH THE SPECIAL AGREE-
MENT AND PRODUCES AN EQUITABLE SOLUTION
234. In the Gulf of Maine area, proper application ofa perpendicular
to the general directionof the coast willensure that a delimitation in this
case does not cut off the extension of the primary coastal front of either
the United States or Canada into the sea.
235. This chapter addresses four separate points raised by Canada: (1)
whether the use of the perpendicular method andthe United States claim
in this case are consistent with the Special Agreement between the
Parties; (2)whether the use of a perpendicular isa lawful and appropriate
method for the delimitation of this and other singlemaritime boundaries;
(3) whether the method of applying a perpendicular to the general
direction of the coast respects the coastal fronts of the Parties; and (4)
whether the applicationof a perpendicular can be adjusted soas equitably
to take account of the special circumstances in this case.
SECTION 1. Tbe Perpendicular Method and the UnitedStates ClaimAre
Consistentwith the Special Agreement
236. Canada asserts that the Special Agreement pursuant to whichthis
case has been brought before the Court precludes the application of a
perpendicular to the general direction of the coast. In raising this
argument, Canada attributes to various provisionsof the Special Agree-
ment meanings that, if accurate, would refiect prior United States
acceptanceof the very Canadian positionsthat goto the merits of this dis-
pute '.No such acceptance ever occurred or was intended.The Special
Agreement is, in the wordsof Canada, the "procedural device l" by which
the Parties brought this case beforethe Court. Had the intent or the effect
of that Agreement been to prejudice the merits of this case, the Party
adversely affectedmost certainly would nothave ratified it.
'CanadianCounter-Mernoriap l.aras87, 88,106,and 647
'CanadianCounter-Mernoriap l,ara.61. i1421 REPLYOF THEUNITED STATES 475
A. THE STARTIN COINT
237. Under the Special Agreement, the Court isto begin the delimita-
tion of the single maritime boundary al the starting point set forth in
Article II of that Agreement. Canada states that the Parties "have thus
recognized that it is the opposite coasts of Maine and Grand Manan
lsland and of Maine and Nova Scotia that should control the course of the
line . . . Canada also asserts that the relation between the starting point
and the international boundary terminus "reflects the common view of the
Parties ... that the boundary inside the Gulf of Maine itself should run in
a generally southwesterly direction '". To the extent these statements
purport to represent United States intentions or views. they are incorrect.
That Canada sees fit to assert a common view when clearly no such view
could have existed under the circumstances is, to borrow a phrase from
the Canadian Counter-Mernorial, "tendentious in the extreme '".
238. The starting point is located at the initial intersection of the 1976
claims of the Parties seaward of Machias Seal Island. The United States
and Canada dispute sovereigniy over Machias Seal lsland (and North
Rock)'. lnasmuch as no agreement was reached to subinit that particular
dispute to the Court, the Parties specifically formulated the question to be
presented to the Court so as no1 to prejudice their respective views
concerning sovereignty over Machias Seal lsland and North Rock.
239. The position of the starting point bears no relationship whalever to
the direction of the boundary that the Court is to delimit inthis case or to
the coastlines that influence that delimitation. The most that can be said
concerning the Special Agreement in this regard is that the United States
has conceded to Canada that the delimitation is to begin 32 nautical miles
to the United States side of the land boundary '. By virtue of the location
of the starting point and the application of the perpendicular from that
point. the boundary proposed by the United States already grants to
Canada's secondary coastal front facing the Gulf of Maine much of that
part of the southwestern Scotian Shelf that also liesin front of the United
States Coast.
'Canadian Counter-Memorial. para.647.
'Canadian Counter-Memorial. para.88.
'Canadian Counter-Memorial.para. 31.
'The United States formallyproposedon 27June 1973to submit this sovereignty
dispute to bindingsettlement beforc the Court[DigesrofUniredSraies Pracrice
in Inrernorional Law. Depi. of State. 1973, pp. 465-67.1Canada rejected the
proposal.[See Aide-Memoirefrom Embassyof Canada to the Dept.of Siate. 4
Jan. 1974:and Aide-Memoirefromthe Dept. ofState to Ernbassy ofCanada, 22
Apr. 1974.Annex 18. See also Digrsrof UniredSrarcsPracricein lnrernafional
Law, Dept.of State, 1974.pp.672and 673.1No aspectof this casemay prejudice
the sovereigntyof the UnitedStates over MachiasSeal lsland and North Rock.
'United Staies Counter-Memorial. para.395.476 GULF OF MAINE 11431
B. THETRIANGLE
240. Canada is also off the mark concerning the negotiation and
meaning of the triangle referred to in Article II of the Special Agreement.
Canada states in ils Counter-Memorial:
". . . the triangle was constructed so as to include three points: the
two points where the Canadian and United States claims (as they
stood al that time of signature of the Special Agreement) intersect
the outer limits of the Parties' 200-mile zones, and the point at which
the outer limits of these zones intersect each other'".
241. In fact, the purpose of the triangle was to avoid the question of the
definition of theouter edge of the continental margin. The Parties did not
agree on the extent of the margin and decided not to place that question
before the Court. Furthermore, Canada's claim that the boundary
proposed by the United States does not intersect the 200-nautical-mile
limit within the trianglei is irrelevant under the terms of the Special
Agreement. There is no relationship between the triangle and the 200-
nautical-mile limit.
242. There is no requirement in the Special Agreement that the Court
fully delimit the 200-nautical-mile limit of either Party. Both Parties have
stated that no point in the triangle is entitled to greater weight than any
other '.There are many points in the triangle at which the Court could
terminate this delimitation where neither State's 200-nautical-mile zone
would be delimited fully. For instance, were the Court to end its
delimitation at any point on the hypotenuse of the triangle between the
claims of the Parties, neither State's 200-nautical-mile zone would be
delimited completely. Further negotiations between the Parties would be
required to complete the final step of extending the line determined by the
Court to a distance of 200 nautical miles and then beyond to the edge of
the continental margin '.
'CanadianCounter-Memorial,para. 23.
'CanadianCounter-Mernorial,para. 24.
'The CanadianMemorial,at para. 12,states:
"TheCourt. ..mayfixtheseaward terminalpoint. ..at anypointinthe tri-
angle.... There is no other significancein the use of this deviceor in the
configuration ofthe triangle itself; it was chosensimplyas a convenient.
neutral techniquethataccomplishesthe task of indicatingclearlywherethe
adjudicatedboundaryista end."
See alsoUnitedStates Memorial,para. 4, n. 1.
'The Court referredto thismatter in a letterof 18Dec. 1981transmitted to the
Agentsof the Parties.The Agents respondedto the Court's questionisn a letter
dated 6Jan. 1982.See paras.7 and8ofthe Orderof20January 1982inthis case.
I.C.J. Reports 1982pp. 3,4-8. [1441 REPLYOFTHE UNITEDSTATES 477
C. THE "GREYAREA"
243. Canada also overlooks the fact that the Parties provided a means
in the Special Agreement for denling with the issue of the so-called "grey
@ area" (seeFigure 43 of the Canadian Counter-Memorial), as well as with
other issues that may arise in extending the boundary seaward of the point
where the Court ends its delimitation. By Ariicle VI1 of the Special
Agreement, the Parties are required to attempt to settle between them-
selves questions concerning the delimitation of the boundary farther
seaward, following the decision of this Court'.Should they fail to agree,
either Party may submit such questions to this Court under the terms of
the Special Agreement.
244. Canada appears to raise the "grey area" issue in another attempt
to support an equidistant line. Any iateral boundary delimiting the 200-
nautical-mile zone that is not a precise equidistant line will create an
area-Canada's "grey aream-that is within 200 nautical miles of the
Coast of one Party and beyond 200 nautical miles of the other, and that is
not attributed to either State by that boundary. Indeed, inasmuch as
Canada itself has not proposed a strict equidistant line, but rather a
modified equidistant line. a "grey area" would exist were its claim to
prevail in this case. A "grey area" also will exist if the United States
claim prevails.'
245. The international community long has recognized the question of
the "grey area". The same argument that Canada has advanced was
raised by Norway in the Grisbadarna case2, but was rejected by the
'ArticleII of the Special Agreementisspecificin submittingthe questionof ''the
courseof the singlemaritime boundary" tothe Court. [Emphasis addcd.] Article
VI1ismoregeneral inproviding fornegotiationsbetwecnthe Parties followingthe
decisionof the Chamber "directed towardreaching agreemenonextension of the
maritime boundary as far seaward as the Parties may consider desirable".
[Emphasisadded.] All relevantissuesmay be addressedin such negotiations.and
are not foreclosedinany way, conlrary to the suggestional para. 573 of the
Canadian Counter-Memorial.In particular. the Special Agreementdoes not, as
Canada might be understoodto intimate, preclude any particularsolutionto the
"grey area" issuethatis at that stage satisfactory toboth sides.The Parties will
have every reason to seek ta maximize the advantapes. and Io minimize the
disadvantages, to each of them in the course of such negotiations. It may,
moreover.be of considerable importance toboth Parties in these negotiations to
considerthe entent,if any,of their obligations to thirdStates in the "grey area".
'Norway argued for the application of equidistancein theCrisbadarna case.
[Norwegian Memorial (Germanversion),pp. 12and 13.1The NorwegianMemori-
al notedthat, by usingthe equidistancemcthod,the terminal pointof the lineof
divisioncoincidedwith the wint of intersection ofthe two arcs that form the
southernmostlimitof the ~widishterritorialrcaand the northcrnmostIimitof the
Sorwcpianterrilorial se3.whercasthe course ofa dividing line.diffcrcntfromthe
footno~econfinuedon nexfpage) 478 GULFOF MAINE 11451
@Arbitral Tribunal. As Canada has shown at Figure 44 of ils Counter-
Memorial, S. W. Boggs, then Geographer of the United States Depart-
ment of State, dealt with this issue in connection with the use of the
equidistance method in the territorial sea. The issue of the "grey area",
which essentially is one of precision and geographical "tidiness", was no1
enough to deter Boggs, or othersthat followed him, from concluding that
application of the equidistance method gives rise to inequitable solutions.
If the application of the equidistance method achieves an inequitable
result, a different delimitation method must be employed and any "grey
area" dealt with separately by the Parties.
SECTION 2. An Adjusted Perpendicular to the General Direction of the
Coast 1san Appropriate Method for the Delimitation of a Single Maritime
Boundary in Complex Geographical Circumstances Such As Those in the
Gulf of Maine Area
246. Canada's criticisms of the application of a perpendicular to the
general direction of the coast in this case are essentially twofold. First,
Canada asserts that the general direction of the coast is difficult to
determine'. Second, Canada asserts that the complex geographical
situation in the Gulf of Maine area makes it inappropriate to apply a
perpendicular Neither assertion is valid.
247. With respect to the first point, Canada nonetheless was able to
overcome the difficulties that it otherwise cited and has claimed that the
general direction of the coast in the Gulf of Maine area is 67 degrees. The
United States finds the most reasonable and correct azimuth of that
general direction to be 54 degrees. Thus, both Parties believe that the
general direction of the coast in the relevant area can be determined.
248. The determination of the general direction of the coast, although
necessarily involving a degree of subjectivity, is within the Court's
competence. The Court specifically identified such a general direction in
the TunisialLibya case'. It also called for such determinations in the
Norih Sea Conrinenial SheUcases4. The award in the Grisbadarna case
roornoreconrinuedfrom thepreviouspage)
equidistantline,would leavean areaof theopenseanotbelongingto eitherState.
Swedenrepliedto the argumentin ils Counter-Mernorial[Gerrnantext, p. 31IL
pointingout that the Arbitral Tribunalhad to decidethe courseof the boundary
betweenthe twoStates, and no1the extentof therespectiveterritorialseasor the
endpoints forthe outer lirnits of such territorial seas. [Ibid., p. 312.1For full
citations to the pleadings in the Grisbadarna decision, see United States
Mernorial,p. 104,n.2.
'CanadianCounter-Mernorial, para. 94.
'CanadianCounter-Memorial, paras. 646 and 647.
'I.C.J. Reports1982.p. 71.para. 120.
'I.C.J. Reports 1969,p. 53, para. 98. 1461 REPLYOF THE UNITEDSTATES 479
is based upon such a finding '.In the Anglo-Norwegian Fisheries case ',
and subsequently in Article 4 of the Convention on the Territorial Sea and
the Contiguous Zone ',the concept of the general direction of the coast
became an important element in the straight-baseline method.
249. The general direction of the coast reflects the geographical
relationship between States. A perpendicular to that general directioii,
drawn from the international boundary terminus, normally will indicate
the area that lies in front of the coast of each State.The application of a
perpendicular to the general direction of the coast therefore is associated
closely with coastal fronts and their extension into the sea.
250. The United States disagrees with Canada's argument that this
method cannot be applied in complex geographical circumstances. Quite
to the contrary, because the perpendicular method takes account of the
general geographical relationship of States, it has the benefit of simplify-
ing complex geographical situations. For instance, even were Canada\
proposed general direction of 67 degrees to be adopted, the resulting
perpendicular to the general direction of the coast would respect more
accurately and equitably the coastal fronts of the Parties than would
Canada's application of the equidistance method'. Notwithstanding
Canada's assertions, the advantage that the perpendicular method enjoys
over the equidistance method is precisely its equitableness under the
geographical facts of this case. The method is based upon the general
geographical relationships of the coasts, rather than upon the arbitrarr
location of two isolated, protruding points on the respective coastlines of
the Parties.
SECTION 3. There Are Primaryand SecondaryCoastal Frontsin the
Gulfof MaineArea
251. Canada criticizes the use by the United States of the terms
"primary" and "secondary" coastal fronts '. Canada's criticism is based
upon the proposition that al1 coasts should be treated equally in their
entitlement to maritime jurisdiction. Canada's formulation amounts to no
more than yet another rationale to favor equidistance. As a general
principle, comparable coasts are entitled to comparable treatment, but not
'Hague CI. Rep. (Scott),1916.p. 129[41stWhereas]. UnitedStates Mernorial,
Annex 4, Vol.1.
'I.C.JReports 1951. pp. 140-142.
'UnitedStates Mernorial,Annex 5.Vol.1.
@ For a chart showingthe perpendicularlineif the general directionof the coast
were deterrninedto be 67 degrees.rathcr than 54 degrees.see United States
Counter-MernorialA. nnex12.Vol. V.
'CanadianCounter-Memorial.paras.98-101. 480 GULF OFMAINE il471
al1 coasts are comparable. As the Court of Arbitration stated in the
AngleFrench Arbitration:
"Just as it is not the function of equity in the delimitation of the con-
tinental shelf completely to refashion geography, so it is also not the
function of equity to create a situation of complete equity where
nature and geography have established an inequity. Equity does not.
therefore. cal1for coasts. the relarion of which to the continental
sheifis not equal, to be treateas having completely equal dfects '."
The United States and Canadian coasts facing the Gulf of Maine are no1
equal. They are not of similar lengths and are not in the same position rel-
ative to the area seaward of the Gulf of Maine.
252. The concept of primary and secondary coastal fronts is implicit in
the Court's decision in the North Seo ContinentalSheifcases. In a coastal
concavity such as the Gulf of Maine, the lateral coasts of the concavity
face inward. In this case, thecoast at the back of the concavity, that of
Maine and New Hampshire, faces the mouth of the Gulf of Maine and
fronts outward toward the open Atlantic Ocean, in the same orientation as
the coastlines of the Partiesutside the concavity. The coasts that face the
open sea are the primary coastal fronts of the Parties. The lateral coasts of
the concavity, not facing the open sea, do not have the same relevance or
relationship to the area seaward of the Gulf of Maine. All of the Court's
teachings to the effect that "the configuration of the latter's coast makes
the equidistanceline swing out laterally across the former's coastal front,
cutting it of'"otherwise are without meaning.
253. Canada's introduction of the concept of "radial extensions" con-
fuses proximity with the coastal fronts of the Parties. The concept is
inconsistent with the oral argument of Professor Jaenicke before the Court
in the North Seo Continental Sheifcases, where he described the coastal
front as extending into the sea in a direction perpendicular to the coastal
@ front'. See, e.g.. United States Memorial, Figure 31; and United States
@ Counter-Memorial, Figure 23. Canada identifies the concept of radial
~ecisions,p.116,para. 249. [Emphasisadded.]Similarly,the Court hasstated:
"Equity doesno1necessarily implyequality.Therecan neverhe any question
of completelyrefashioningnature, and equityoes no1require that a State
without accessto the sea shouldbe allotted anarea of continental shelf.
morethan there cauldbe a question of rendering the situationofa State with
an extensivecaastlinesimilar tothat of a State with a restricted coastline."
I.C.J. Report1969, pp. 49-50,para. 91.
'I.C.J. Report1969. pp. 31-32,para. 44.
I.C.J. Pleadings.North Seo ContinentalSheK Vol.II, p. 40. [148-1501 REPLYOFTHE UNITEDSTATES 481
@ extensionsin Figure 15of its Counter-~emorial: "[tpe radial extensionof
coastal State jurisdiction in accordance with the distance principleas the
@ legal basis of title." Figure 15 represents nothing morethan arcs that
@ converge alongan equidistant line. In fact, Figure 15 clearly illustrates
the operationof the cut-off effect causedby the equidistance method.The
projectionof the coast of the United States (green)iscut off bythe lateral
projection of the southwest coast of Nova Scotia (red). Consistent with
@ Canada's position, Figure 15 does not even acknowledgethe overlap of
projectionsof the primary and secondary coastal frontsthat occursin the
Gulf of Maine.As appliedby Canada, this theoryof "radial extensions"is
simplyanother Canadian depictionof the equidistance method.
254. Canada stretches its concept of "radial extensions" evenfurther,
however,whenit asserts that the "seaward extensionofa coastal State in-
cludesal1waters within 200 nautical milesof its coast, and al1such areas
must prima facie be considered legally adjacent or appurtenant to that
State "'. This broad proposition overstates the issue in the context of
delimitation. Pursuant to that theory, such maritime areas as Roseway
Bank, LaHave Bank, German Bank, BrownsBank,and the Bayof Fundy
@ are "legally adjacent or appurtenant" to the United States. Figure 14.
255. The issue in a delimitation is the manner in which the boundary
should be drawn in areas where the seaward extensionsof coastal fronts
may oveÏlap. Where the land boundary meets the sea in a corner of a
coastal concavity, both jurisprudence and State practice have concluded
that an equidistant line should not be used, because a secondary coastal
front of one State causes such a line to swing out across the primary
coastal front of another Stateand to cut that primary coast off from the
maritime areas lying in front of it.
SECTION 4. The Perpendicular Method 1s Easily Adjusted to Take
Account ofRelevantCircumstances
256. Applicationofa perpendicularto the generaldirectionofthe coast
in the Gulfof Maine area is flexibleand does not suffer the mathematical
rigiditiesof the equidistancemethod. There is a range in determining the
general direction of the coast-athe difference between the Parties in
this respect suggests.There is also a capacity for flexibilityin modifying
the direction of the perpendicular a degree or two, as did the Arbitral
Tribunal in the Grisbadarna case to avoid splitting the Grisbadarna
fishing bank. Adjustments also can be made along the course of the
perpendicular line, as reflected in the boundary proposedby the United
States.
'CanadianCounter-Memoriapl.ara563. 482 GULFOf MAINE [151-1521
257. The adjusted perpendicular line prowsed by the United States
takes account of fishing banks and of the Northeast Channel. These
features dominate the maritime area in which the delimitation is to take
place. They are special and relevant circumstances that must be consid-
ered in producing an quitable solution. The United States line avoids
crossing German Bank and Browns Bank through the use of a series of
step-like turns. It is oriented parallel to the general direction of the
Northeast Channel along its northeastern edge.
258. Canada finds the United States claim tobe "totally divorced from
its putative origin as a perpendicular tothe general direction of the coast"
and tobe a line of "wandering perpendiculars"'.Canada's rhetoric aside,
any method or combination of methods may be used that produces a result
in accordance with equitable principles. The adjusted perpendicular line is
an equitable solution based upon the application of equitable principles
and takes account of special and relevant circumstances, elements that are
utterly lacking in the quidistantline and the modified equidistant line
proposed by Canada.
259. In the Gulf of Maine area, the perpendicular method leaves to
Canada areas within the Gulf of Maine where the extension of the
primary coastal front of the United States overlaps with the extension of
the short secondary coastal front of Canada. Seaward of the Gulf of
Maine, because of the application of the equitable principles relating to
resource conservation and management, the minimization of international
disputes, and relevant circumstances, the adjusted perpendicular line
leavesto Canada areas that do not lie in front of any part of the Canadian
coast. In avoiding a line across the ScotianShelf, the adjusted perpendicu-
lar line facilitates resource conservation and management and minimizes
the potential for disputes between the Parties concerning issues of
fisheries management and allocation as well as oil and gas development
and its environmental consequences. The line takes account of the marine
environment in not dividing the separate and identifiable ecological
regime of the Scotian Shelf, and it recognizes the historical fishing
activities of the Parties.nally, the adjusted perpendicular line reflects
the special features of the area, viz., the fishing banks and the Northeast
Channel. Neither the equidistant line nor Canada's proposed line has any
of these merits.
'Canadian Counter-Memorial.para. 654. Canada's criticismwouldseemto be
directedat thesteplike turns in the boundaryproposedby the United States.
Such a techniquehas beenused in State practicSee.e.g.,Lirnils in the Seas,
United States Dept. ofState, No.79,Continental ShelfBoundary:Colombia-
Panama,UnitedStates Memorial,Annex82, Vol.IV. See alsothe NACFI and
@ ICNAF linesthroughthe NortheastChannel. UnitedStates Memorial,Figs. 8
@@a and 9;UnitedStatesCounter-Memorial.Figs.14and 15. CHAPTER V
APPLICATION OFTHE PROPORTIONALITY TEST TO THE DE-
LIMITATION OFTHE SINGLE MARITIME BOUNDARYIN THE
GULF OF MAINE AREA CONFIRMS THAT, ALTHOUGH THE
ADJUSTED PERPENDICULAR LINE PRODUCES AN EQUITABLE
SOLUTION, THE CANADIANLINE WOULD NOT
260. When applied in the Gulf of Maine area, the proportionality test
confirms that the equidistant line and Canada's line would produce
inequitable results. This inequity reveals itself in the calculation of the
ratio betweenthe lengths of the relevantcoasts and the maritime areas in
front of thosecoasts. Conversely,the proportionalitytest, whenappliedto
the boundary proposed bythe United States, or to any boundary that
permits the United States coastal front its proper seaward extension,
confirmsthat such a linewouldproduceno disproportionor inequity.
261. In this chapter, the United States discussesthe criteria that, in its
view, must be applied in formulating an equitable proportionality test.
The United States applied these criteria to the proportionality testsit
proposedin its Memorial and Counter-Memorial '.
SECTION 1. The Area in Which the Proportionality Test 1s to Be
AppliedIs Not Indeterminate,as Canada Suggests
262. In Canada's view, the proportionality test shouldbe avoidedin
open-ended situations, where its application is likely to be "complicated
and contentious'". Canada arguesthat the Gulf of Maine area isch a
situation-tooindeterminate to permit the Court to calculate the ratio
betweenrelevant offshoreareas and coastlin'.
263. Rarely, if ever,hasnature providedsituations where theareas and
coasts relevant to proportionality may be identified with precision and
withoutdisagreement. Forexample,in the Tunisia/Libyacase, there were
no precise criteria available to determine the relevant coasts or, contrary
to Canada's assertions', the seaward limitsof the relevant area. Never-
theless,the Court wasableto apply the proportionality test.In doing so, it
recognizedthe need to make reasonable choicesconcerning the limitsof
@@ 'UnitedStates Memorial,Figs.34 and 35;UnitedStates Counter-Memorial.
@O Figs.24and 25.
'CanadianCounter-Memoriap l,ara490.
'CanadianCounter-Mernoriapl.ara491.
'CanadianCounter-Memoriap l,ara489.484 GULFOF MAINE 1541
the coasts and of the area. The lack of fixed criteria was not an
insurmountable obstacle:
"Since . . . the essential aspect of the criterion of proportionality is
simply that one must compare like with like, the exact method of
drawing the outer boundaries is not critical, provided the same
approach is adopted to each of the two coasts '."
264. In brief, the Court made the necessary determinations in light of
the relevant circumstances of the area and respecting the requirement
that it should compare "iike with like'". In so doing, the Court
experimented with alternate techniques '. The same cornmonsense ap-
proach will enable the Court to apply the proportionality test in the Gulf
of Maine area.
SECTION2. The Bay of Fundy andIts Coast ShouldNot Be lncludedin
theCaleulationsfor theProportionalityTest
265. A major consideration in the application of proportionality in the
Gulf of Maine area is the treatment to be afforded the Bay of Fundy. If
the lengths of the coastlines and the maritime areas internal to the Bay of
Fundy are not counted, and the Canadian coastline is depicted by a line
connecting the international boundary terminus to Cape Sable, as the
United States believes is quitable in this case (and as Canada itself
advocated in forming the rectangle to which it made reference in the 14
October 1977 Canadian Legal Statement), the equidistant line, as well as
the Canadian line, fails any reasonable test of proportionality.
266. The area to be delimited, together with the nature and function of
the proportionality test, dictate that the coasts and waters of the Bay of
Fundy not be included within the test. The coasts inside the Bay of Fundy
are irrelevant to the proportionality test,ecause they bear no relation to
the area to be delimited. They do not face upon the area in which the de-
limitation is to take place. The area to be delimited in no sense appertains
to the coasts of the Bay of Fundy '.
'I.C.J.Reports 1982,p. 91,para. 130.
'Ibid.pp.75, 76,and 91,paras. 103, 104,and 130.
Ibid.,p. 91,para. 131.
'Canada longhas maintainedaninchoateclaimthat theBayof Fundy constitutes
Canadian "historie"or "internaï' waters.In 1971,Canadaclosedoffthe Bayto
foreign fishermenhy the use of the noveltechniquein international practiceof
"fisheryclosinglines".[CanadianMemorial,para. 224,n. 27,and Annexes,Vol.
11.Annex24. See L.H.J. Legault. "MaritimeClaims",in CanadianPerspectives
on InfernolionaLaw and Organirafionr. 1974,pp.377,383-384,and387.Annex
6.1The UnitedStatesalways hasreservedits positionin thisrespect. [iss] REPLY OF THE UNITED STATES 485
267. Inclusion of the Bay of Fundy, the coasts of which face only each
other and not the area in which the delimitation is to take place, would
distort dramatically any calculations of proportionality, because its long
coasts and relatively small water area would affect materially the ratio of
coast-to-water in the area '.Including the lengths of the coasts on the Bay
of Fundy, instead of the length of the closing line across the mouth of the
Bay, may increase the calculated length of the Canadian coast twofold or
even threefold, depending upon the test area '. This increase in length of
coastline is not balanced by the addition to the calculation of the water
area of the Bay of Fundy. For example, the area of the Bay of Fundy in-
creases by only seven per cent the sea area appertaining to Canada in
@Figure 51A of the Canadian Counter-Memorial, while inclusion of the
Fundy coasts increases the Canadian coastline length by 93 per cent.
268. A bay is entitled to no greater seaward maritime jurisdiction than
would be the case were the bay land territory rather than sea '.Therefore,
forpurposes of determining the appropriate area of maritime jurisdiction
outside the Bay of Fundy, it is equitable to proceed as though the Bay of
Fundy were not a body of water, but the land territory of Canada. This is
precisely the effect that is achieved by drawing a line across the mouth of
the Bay between the international boundary terminus and Cape Sable.
269. lncluding the lengths of the coasts interna1 to the Bay of Fundy
for purposes of proportionality would allow Canada, in effect, to include
'This illustratesa mathematical rule that is important Io the applicationof the
oro~ortionalitvtest. Increasinethe lenethofa State's coastlinethat ismeasuredin
. . - -
relation to a givenoffshorearea, or dccreasing theamount of a State's offshore
area that is measuredin relation10a givencoast, willdistort the ratio to thead-
vantage of that State. Such a step will underrepresent the offshore area
appertaining tothat State's coast in comparisonto the coast-Io-arearatio of the
other State. For this reason.the limitsof the Masisand area Io Lxtested mus1be
determinedwith care and with regard forthe needto comparelikewith like.
'The straight-linegeodeticdistance from the international boundary terminus to
Cam Sable is 100 nautical miles. Whenthe coast aroundthe Bay of Fundy to
cab Sable is measured,however,as Canada has done,the distancebecomes 258
nauticalmiles.or morethan Iwoand one-half timeslonger.If the testarea extends
to Lunenburg, asCanada has suggested. thestraigbt-linedistance increasesfrom
183 nautical miles witha straight line across themouth of the Bay of Fundy to
341 nautical milesincludi. .he lengthsof the coasts of theBay.
'For example,international law permits the use of low-tide elevationsto extend
the limitsof the territorial seaonlywhentheyare locatedadjacentto the land ter-
ritory of a State within the breadth of the territorial sea, not when they are
adjacent to an artificial closing line across a bay or other body of water.
Conventionon the Territorial Sea and the ContiguousZone, Article 11. United
States Memorial,Annex 5, Vol.1. See nlso UniredSraresv. Louisinna,394 U.S.
11 (1969).486 GULF OF MAINE [1561
within the proportionality testthe same coastal frontthree times. Canada
has one coastalfront facing ont0 the Atlantic Ocean in the Gulf of Maine
area, from Cape Sable to Cape Canso. Thiscoast isentitled to, and under
the boundary proposedby the United States will receive,its full seaward
extension of maritime jurisdiction. Because Nova Scotia is a peninsula,
there are two other Canadian coasts, parallel to, but landward of, the
primary coastal frontof Canada fromCape Sable to Cape Canso. Canada
isentitled onlyto one measureof maritimejurisdiction in the Atlantic, not
three. It would be beyond reason, for example, to suggest that the
presenceof the two parallel coasts in the Bayof Fundy entitles Canada to
claim a 600-nautical-mileexclusive economic zone in the Atlantic Ocean.
Nevertheless, includingthe coasts of the Bayof Fundy in the proportion-
ality test produces a similarly illogical and highly inequitable.result: it
would permit Canada, in effect, to count the same coastal front three
times in the Gulf of Maine area.
SECTION 3. Ceographical ConsiderationsShould Deterniine the Limits
of the RelevantCoasts
270. The Parties disagree on the northeastern and southwestern limits
of the coasts that are to be included in the proportionality testarea. The
United States has used the coasts fromNantucket to a pointapproximate-
ly 14 nautical miles northeast of Halifax. These limits were chosen to
encompassthe geographicatfeatures bearing on the delimitation, the Gulf
of Maine and that part of the Nova Scotia peninsula south of the
Chignecto Isthmus. Canada has contended that the test area should
includeaual portionsof the Atlantic-facing coastsof the Parties oneither
side of the Gulf of Maine, and has included the coasts from Cape Cod to
Long Island and from Cape Sable to Lunenburg. The United States
submitsthat oneof Canada's arguments in this regard, i.e., that the coasts
with "economic links"10 Georges Bank should be included, must be
rejected for the reasonsdiscussedin Part III of this Reply. Canada's other
statements that these coasts must be included in order "to compare like
with like "',and because "the Gulf of Maine itself constitutes the axis on
whichthe test area must be balanced '",reveal the same false assumption
that underlies much of Canada's case, i.e., that the coasts of Maine and
New Hampshire do not existfor purposesof the delimitation in this case.
271. The Gulf of Maine cannot be the "axis" of balance, because the
Parties are not balanced in relation to the Gulf. Most of the Gulf lies on
the United States side of the international boundary and, as the name
suggests,in front of the coast of Maine. Furthermore, the United States
'CanadianCounter-Mernoriap l.ara.672.
'CanadianCountcr-Mernorial, para6 .72. Canada's"axis" of balanceis none
otherthanCanada's own line. 11571 REPLY OFTHEUNITEDSTATES 487
coastline facing the Gulf of Maine is three times longer than the
Canadian coastline facing the Gulf '.
272. In brief, there is no reason to include the coast southwest of
Nantucket, nor is there any reason to construct the test area around
Canada's predetermined "axis". There are, however, guidelines for the
Court to use. Because basic issues of this case concern the manner in
which the concavity of the Gulf of Maine affects an equidistant line and
whether comparable coasts of the Parties are to receive comparable
treatment, it is sensible to include within the test area the coasts in the
Gulf of Maine, from Nantucket around to Cape Sable (using a Bay of
Fundy closing line), and as much of the Atlantic-facing primary coast of
Nova Scotia as is necessary to "compare like with like".
SECTION 4. The Lengths of the Coasts May Be Measured hy Straight
Lines or Along the Sinuosities of the Coasts
273. In the Tunisia/Libyacase, the Court calculated the proportionali-
ty test by measuring the coasts both along the sinuosities of the coasts and
by straight lines1. The United States has provided calculations based
upon each method '.
274: Canada also has measured the coasts along straight lines. Except
for the treatment of the Bay of Fundy, the straight lines used by Canada
and the United States do not differ significantly. Thus, once the relevant
coasts are determined, their lengths may be measured without difficulty.
SECTION 5. The Area Lsndward of the Starting Point May Be Disre-
garded for Purposes of the Proportionality Test
275. The Parties requested the Court to delimit the boundary begin-
ning at the starting point specified in Article II of theial Agreement,
rather than at the terminus of the international boundary. As was noted
previously, landward of the starting point lie Machias Seal Island and
North Rock, the sovereignty of which the Parties dispute. The United
States bas excluded this maritime area from its proportionality tests,
because there is no agreed boundary for this area and because the issue is
'If Canada wishesto comparecoasts of approximatelyequal lengths, thetest
wouldhavetoextendfromNantucketIslandto Cape Canso.Straight linesdrawn
from Nantucket to Cape Ann, from CapeAnn to the international boundary
terminus, fromthe international boundary terminus to Cape Sable, and from ,
Cape Sable to Cape Canso.wouldmeasure 294 nautical milesfor the United
States and 332 nautical miles for Canada. This test as a result wouldinclude
generallyequal lengths of Atlantic-facing coastal froasellas approximately
cquallengthsoflateralcoastalfronlfacing across theGulfof Maine.
'I.C.JReports 1982.p. 91, para. 131.
@@>United States Memorial,Figs. 34 and 35; United States Counter-Memorial,
@O Figs.24and 25. 488 GULF OF MAINE [158l
not before the Court. The area is not large enough to affect materially the
results of any appropriate test. At the same time, the United States did in-
clude the lengths of the coasts landward of the starting point, because
such coasts do affect the delimitation of the seaward areas.
276. Canada has included the maritime area landward of the starting
point in its proportionality testsnada has divided this area arbitrarily
by a straight line connecting the international boundary terminus to the
starting point. With the understanding that such a line is without
prejudice either to United States sovereignty overachias Seal Island
and North Rock or to the direction of the boundary from the starting
point, this technique is also acceptable to the United States. The results of
the proportionality test remain much the same whether the area is
excluded, as isdone by the United States, or included and divided by a
straight line, as isne by Canada.
SECTION6. The Seaward Limits of the Test Area May Be Defined by
the 200-Nautical-Mile Limit or by Depth Contours of the Seabed
277. In the North Sea, the area to be included in the pr~portionalit~
test conveniently was limited by the continental shelf boundaries of the
Parties with Norway and the United Kingdom. In the Gulf of Maine area,
as in theTunisialLibyacase, the Court must determine the seaward limits
of the test area by othereans. The Parties have suggested four possible
limits: a straight line drawn between two points located 200 nautical miles
off the Coastof each Party',the 1000-fathom-depth contour ',the limits
of the 200-nautical-mile zone', or the triangle described in Articlef
the Special Agreement '.Each of the first three of these limits satisfies the
requirement that one must compare "like with like", but use of the
triangle wouldviolate this requirement.
@@ 278. Figures 34and 35in the United States Memorial define the seaward
limits of the test area by drawing a straight line between two points on the
200-nautical-mile limit of each Party. This reflects the maritime jurisdiction
of the Parties, including, in particular, the area off the primary coastal
front of Canada northeast of Cape Sable, which extends far into the
Atlantic. Because an equitable delimitation should allow comparable
coasts of the Parties comparable seaward extensions, the proportionality
test should compare under each of the boundary proposais the seaward
@@ ' CanadianCounter-Mernorial,Figs.51and 52.
@@ 'United StatesMernorial,Figs.34and 35.
@@ 'United StatesCounter-Mernorial,Figs.24and 25.
'United StatesMemorial,Annex 99.Vol.V; CanadianCounter-Mernorial.Fig.
@ 51.
@ ' CanadianCounter-Mernorial.Fig. 52. [1591 REPLYOF THE UNITEDSTATES 489
extension of the maritime jurisdiction of the Atlantic-facing coast of Nova
Scotia with that of Maine and New Hampshire'.
279. Canada has suggested the use of the outer limit of the 200-
nautical-mile zone as a possibleseaward limit of the test area. The United
States has used the 1000-fathom-depth contour. The United Statesnds
either method acceptable. In the geographical situation in the Gulf of
Maine area, each of these methods, properly applied, would include
enough of the seaward extensions of the respective primary coastal fronts
of the Parties to compare like with like.
280. The triangle depicted at Figure 52 of the Canadian Counter-
@
Memorial does not permit an accurate evaluation of the effects of the
proposed boundary lines. First, the triangle does not reflect the relevant
geographical circumstances, as required by the proportionality test;
merely a "procedural devicel" invented by the Parties for other reasons.
Moreover, the triangleails to compare like with like and, in so doing, dis-
@ torts the test in Canada's favor. As Figure 52 of the Canadian Counter-
Memorial demonstrates, the use of the trianglecludes large maritime
areas that lie in front of the Canadian coast. At the same time, it includes
maritime areas that lie in front of parts of the United States coast that are
not included in Canada's calculations of coastline length. Use of the
triangle todefine the outer limit of the proportionality test therefore
greatly underestimates the offshore area pertaining to the Nova Scotia
coast in relation to that pertaining to the United States coast.
SECTION 7. Perpendiculars to the General Direction of the Coast Should
Define the Lateral Limits of the Test Area
281. The United States has defined the lateral limits of its proportion-
ality test by the use of perpendiculars tothe general direction of the coast
at a bearing of4 degrees. Defining the test area in such fashion is both
@) 'This test area, at Figs.34and 35of the UnitedStates Memorial,includesareas
beyond200 nauticalmiles,whichCanada contendsare extraneous.Becausethis
case inevitablywill affect the delimitationof the areas beyond the triangle,
however,it isappropriate torewgnizethe fullmeasureof NovaSwtia'sseaward
extensioninto the Atlantic and the fullinequity of the cul-off effect of an
equidistantlineonthe primarywastal frontofthe UnitedStates. Canadaobjects
that the northernendpointextendsfarther than 200nauticalmiles fromthe Nova
Scotia mainland, andthat it extendsfarther from the Canadiancoast than the
southern endpointextendsfromthe UnitedStates coast.Thesecharacteristicsare
. not arbitrary, however,as they areedby the actualgeographicalsituation,
viz., that Canada'sjurisdictionoff Nova Swtia is thrust seaward by offshore
islandsand by itsprotrusion relativeto thewast of Maine andNewHampshire,
whichliesat the backof the wncavityof the Gulfof Maine.
'CanadianCounter-Memorial,para.611. 490 GULF OF MAINE LI601
feasibleand proper.The Partiesagreethat a generaldirection ofthe coast
may be determined ', although they have not agreed upon the precise
azimuth. A line perpendicular to the general direction of the wast
appropriately divides the maritime area appertaining to one segment of
coast from the maritime area appertaining to the contiguous segmentof
wast '.
282. Canada suggeststhat the test area shouldbe limited hy meridians
and parallels.The Court previouslyfoundthat techniqueto be appropriate
in the geographicalsituation present inthe TunisialLibya case,where the
meridian was roughly perpendicular to the east-west direction of the
Libyan coast, and the parallel was roughlyperpendicular to the general
north-south direction of the relevant portion of the Tunisian coast.
Meridians and parallels, however,bear nosuch convenientrelationshipto
the geographyof the Gulf of Maine area, where the general direction of
the coast extends roughly from southwest to northeast. The use of
meridians and parallels would distort the test in Canada's favor by
excludingmost of the seaward extension of the Atlantic-facing coastline
of Nova Scotia.
SECTION 8. The AdjusteciPerpendicular Line Achievesa Proportionate
Delimitation, Whereas the Equidistant Line and the Canadian Line
WouldNot
283. Any reasonablyformulated proportionality testwillconfirm that,
hecauseof the concavityof the Gulf of Maine, the equidistant line, and a
fortiori the Canadian line, wouldcut off the coast of the United States at
Maine and New Hampshire from the maritime area in front of that coast
and wouldresult in a disproportionateand inequitable delimitation. Fully
three-quarters of the coastlinethat borders the Gulf of Maine is a part of
the United States. An equitable delimitation willrespect that ratio inside
the Gulf and leave the United States an even larger part of the area
seaward of the Gulf, so as to allowcomparable treatment of the primary
coastal front of the United States with the primary coastal front of Nova
Scotia facing the Atlantic Ocean from Cape Sable to Cape Canso. Any
delimitation that accords comparable treatment to the Atlantic-facing
coasts of the Parties will achieve a reasonable degree of proportionality
CanadianMemorial,para. 19 andFig. 7.
@) 'In Fig.51ofilsCounter-MemoriaC l.anadadefinesilstestareabyuseofa per-
pendiculartothe general directiontfewast,whichCanadaassertstohe 67de-
grees.The significanceof the issue forthis purposeis that the greater the
inclination otfherpendicularms arkingthe northern ansouthernlaterallimits,
and the farther southward theyswing,the smaller bewmes the Canadian
maritimejurisdictionthat isincludedin thetestarea and the larecomesthe
UnitedStates maritimejurisdictionthat isincluded.Ifan inclinasouthofthe
properperpendicularis used,this willunderestimatethe trueratioof Canada's
coast-10-searea,thusdistorting theteinCanada'sfavor. [161-1621 REPLYOFTHE UNITEDSTATES 491
between the lengths of the Parties' coasts and the maritime areas in front
@@of those coasts, as shown by Figures 34 and 35 of the United States
@@Mernorial, and Figures 24 and 25 of the United States Counter-
Mernorial '.
'Annex33containsa technical descriptionof the limits,distances, andareas used
in thesefigura. PARTV. CONCLUSION
284. The Canadian claim to the northeastern portion of Georges Bank
is, in the view of the United States, based upon two unacceptable
propositions:
(1) the rejected notion of proximity has supersededthe established
principles of maritime boundary delimitation and requires a radical
refashioningof the applicable law;and
(2) a delimitation in this case must give primacy to Canada's recent
fisheryon Georges Bankevenat the expenseof the relevant facts and the
established law.
285. The first propositionmust be rejected as a matter of law, for al1
the reasons previously given by the Court and arbitral tribunals and
confirmed by the Third United Nations Conference on the Law of the
Sea. There is no support for Canada's positionregarding proximity in the
case law relating to the continental shelf and exclusive fishingzones, in
State practice, or in the text or negotiating historyof the 1982Convention
on the Law of the Sea. In particular, application in this case of the
equidistance method as proposedhy Canada would produce even greater
inequitable effects than those that prompted the Court to reject that
method in the North Sea Continental Shelfcases.
286. The second propositionmust also be rejected as a matter of law.
For purposesof delimitation of a maritime boundary between neighboring
States, a recent and limited fishing activity does not override (a) the
fundamental relationship between the coasts of those States and the
maritime areas in front of those coasts; (b) the equitable principles of
resource conservationand dispute minimization, whichcal1for a bound-
ary that respects the Northeast Channel; and, (c)the traditional activities
of the Parties and their nationals in theea.
287. The United States claim to the continental shelf and fishery
resourcesof Georges Bank is basedupon the equitable principles that this
Court and arbitral tribunals consistently have appliedin the delimitation
of maritime boundaries. That claim is consistent with State practice in
similar geographical circumstances and is reinforced by the trends
witnessedat the Third United Nations Conferenceon the Law of the Sea.
The adjusted perpendicularline proposedby the United States reflects the
union of geography, geomorphology,ecology,oceanography, and fishing
activitiesthat are at the heart of the facts of this case.
288. In the view of the United States, the most significant facts
governing this case are: (1) with the land frontier in the far northern(1611 REPLYOF THE UNITED STATES 493
cornerof the concavitythat is the Gulf of Maine, al1of Georges Bank lies
in front of the United States coast at Maine and New Hampshire and no
part of Georges Banklies in front of any Canadian coast; (2)the United
States coast facing the Gulf of Maine is three times longer than the
relevant Canadian coast; and, (3) the Northeast Channel, the only
significant geomorphologicalfeature in the area, marks a natural bound-
ary in the marine environment of the Gulf of Maine area, one that
separates most of the commercially important fish stocks and that is
recognizedby the Parties for purposesof fisheriesmanagement and other
responsibilities.
289. An adjusted perpendicuiar to the general direction of the coast
that takes into account the location of the land boundary, theNortheast
Channel, and the integrity of the separate fishing banks in the area, is an
equitable boundary that riotonly gives fulleffect to the relevant facts in
the Gulf of Maine area, but also cornports with the four established
principlesof law that the United States has identifiedas being applicable
in this case and, more generally, with the Fundamental Rule that
maritime boundary delimitations are to be based uponequitable princi-
ples, taking account of the relevant circumstances, so as to produce an
equitable solution. The adjusted perpendicular line proposed by the
United States respects the extensioninto the Atlantic Ocean ofCanada's
primary coastal front from Cape Sable to Cape Canso and gives
appropriate recognition to the short, secondary southwestern coastof
Nova Scotia that faces solelythe Gulf of Maine. With that appropriate
recognition, the United States then is entitled to the extension into the
Atlantic Ocean of its primary coastal front at Maine and New
Hampshire.
290. All the relevant legal principlesand the enduring facts of this case
supportthe singlemaritime boundary proposedby the United States. SUBMISSIONS
In view of the facts set forth in the United States Mernorial, Counter-
Mernorial, and this Reply,the statement of the law contained in the
United States Memorial, Counter-Mernorial. and this Reply. and the
application of the law to the facts as stated in the United States
Mernorial,Counter-Memorial, and this Reply;
Considering that the Special Agreement between the Parties requests
the Court, in accordance with the principlesand rulesof international law
applicablein the matter as betweenthe Parties, to decidethe courseof the
single maritime boundary that divides the continental shelf and fisheries
zones of the United States of America and Canada frorn a point in
latitude 44°11'12"N, longitude 67'16'46"W to a point to be determined
by this Court within an area bounded by straight lines connecting the
followingsets of coordinates: latitude 40°N, longitude 67"W; latitude
40°N, longitude65"W; latitude 42ON.longitude 6S0W;
May it please the Court. on behalf of the United States of Arnerica, to
adjudge and declare:
A. Concerningthe applicablelaw
1. That delimitation of a single maritime boundary requires the
application of equitable principles. taking into account the relevant
circurnstances inthe area, to produce an equitable solution;
2. That the equitable principlesto be applied in this casenclude:
a) The principlesthat the delimitation respectthe relationship
betweenthe relevant coastsof the Parties and the maritime areas
lyingin front ofthosecoasts, including nonencroachment,propor-
tionality, and, where appropriate, natural prolongation;
b) The principle that the delimitation facilitate conservation
and management of the natural resourcesof the area;
c) The principle that the delimitation minimize the potential
for disputes between the Parties; and
d) The principle that the delimitation take account of the
relevant circumstances in the area;
3. That the quidistance method is not obligatory on the Parties or
preferred, either by treatyor as a rule ofcustomary internationallaw,and
that any method or combination of methods of delimitation may be used
that producesan equitable solution.11661 REPLYOF THE UNITEDSTATES 495
B. Concerningthe RelevantCircumstancesto be Taken into Account
1. That the relevant geographical circumstances in the area
include:
a) The broad geographical relationshipof the Parties as adja-
cent States;
b) The general northeastern direction of the east coast of
North America, both within the Gulf of Maine and seaward of
the Gulf;
c) The location of the international boundary terminus in the
northern corner of the Gulf of Maine;
d) The radical changes in the direction of theCanadian coast
beginning at the Chignecto Isthmus, 147 miles northeast of the
international boundary terminus;
e) The protrusion of the Nova Scotia peninsula 100 nautical
miles southeast of the international boundaryterminus, creating
a short Canadian coastline perpendicularto the general direction
of the coast, and across from the international boundary
terminus;
f)The concavityin the coast created by the combinationofthe
protrusionof the Nova Scotia peninsulaand the curvature of the
New England coast;
g) The relative length of the relevant coastlinesof the Parties;
and
h) The Northeast Channel, Georges Bank, and BrownsBank
and German Bank onthe Scotian Shelf, as specialfeatures;
2. That the relevant environmental circumstances in the area
include:
a) The three separate and identifiable ecological regimes
associated, respectively,with the Gulf of Maine Basin, Georges
Bank,and the Scotian Shelf;and
b) The Northeast Channel as the natural boundary dividing
not onlyseparate and identifiable ecologicalregimes of Georges
Bank and the Scotian Shelf, but also most of the commercially
important fish stocks associatedwith each such regime;
3. That the relevant circumstances in the area relating to the
predominant interest of the United States as evidenced by the
aaivities ofthe Paniesand theirnationalsinclude:
a) The longer and larger extent of fishing by United States
fishermen since before the United States becamean independent
country;496 GULF OFMAINE 11671
b) The soledevelopment,and, until recently, the almost exclu-
sivedomination of the Georges Bank fisheriesby United States
iishermen; and
c) The exerciseby the United States and its nationals for more
than 200 years of the responsibility foraids to navigation,search
and rescue,defense,scientific research,and fisheriesconservation
and management.
C. Concerning the Delimitation
1. That the applicationof equitableprinciplestaking into account
the relevant circumstances in the area to produce an equitable
solutionis best accomplishedby a single maritime boundary that is
perpendicular to the general direction of the Coastin the Gulf of
Maine area, commencing at the starting point for delimitation
specifiedin Article II of the Special Agreement and proceedinginto
the triangle described in that Article, but adjusted during its course
to avoid dividingGerman Bank and Browns Bank, both of which
wouldbe left intbeir entirety to Canada;
2. That the boundary should consist of geodetic lines connecting
the followinggeographiccoordinates: ,
Latitude (North) Longitude(West)
a.)44°11'12"
b.) 43"29'06"
c.) 43"19'30
d.) 43°00'00
e.) 42"57'13"
f.) 42O28'48"
p.) 42O34'24"
h.) 4Z015'45"
i.) 4Z022'23"
j.)41°56'21"
k.) 41"58'24"
(Signed)
DAVIS R. ROBINSON
Agent of the United States
of AmericaANNEXES TOTHEREPLYOFTHE
UNITED STATESOFAMERICA
Volume1
D~CUMENTA ANNEXETOTHEREPLY
Aooex 1
[Norreproduced]498 GULFOFMAINE
UNITESTATEDSEPARTME NFSTATEBULLETI NOL.XLVIII,NO.1248,
27MAY 1963,PP815-817 tglsl ANNEXES TO REPLY OFTHEUNITEDSTATES 499
President Kennedy and Prime Minister Pearson
of Canada Hold Talks
Fo21mcing isthe test of a joint cornnunipile President and the Prime hlinister empliasired
iaaued on Nay II by P~esidenthénnedy and the vital importance of continental secunty to
Prime Ninister Lester B. Pearaon of Caneda the safet? of the free aorlù and ffirmed their
at the close of their meetings of Byannis Port, mutual interest in ensuring that bilateral de-
Naas.,Nay 10-11. fensearrangements aremade aseffectireaspas
sibleand wntinuallv imnrored and ada~ted ta
WhiteUoY%c Drclrtbilr(Uyannl.31iis.I dit31.7 11 . .
During the past tao dngs the President and ,t ehsnfiingcircums~lnzej and changing roles.
the Prime Alinister have met together in this Tho Prinie Yinister canfirmcdhisgorernmentJ
historic Stnte ahereso many of the currents of intention io iniliaùiicus~iuiiaiih the Kniir~l
the national life of the two wuntries have min- States Governrnent lendiiigwithout delop ta-
gled from enrlytimes. wards the fulfilment of Canada's existing de-
2. 3lr. Pearson'svisittoMr.Kennedy'sfam- fense commitments in North America and
Europe,consistent aith Canadian parliamen-
ily home tookplace in the atmospliereof infor- tary pmcedures.
mality and friendliness which marks so many 6. President Kennedy and Prime lfinister
of the relationsbetaeen thepeopleaf theUnited Pmn reaüirmedthedesireof the twoGovem-
States and Canada. There ans no agenda for
the talks. It ans taken for grnnted thnt ang ments to cwperate in a rntional use of the
matier of mutual interest could be hnklg continent's murces; oil, gns, electrieistra-
discussed in a spirit of goodrill and urider- tegic metals and minerais, and the use of each
standing. other'sindustrial cnpacity for defensepurposes
3. In this community on the Atlantic ses- in the defense production.sharing pragrams.
The t<rocountries nlsostand to gain by sharing
board, the Prime Minister and the Presidentre- advances in scienceand technology ahich ean
affirmedtheir faith in the North Atlantic Al- add to the vanety und richness of life in North
lianceand their conviction that, building upon Americaand inthelarger world.
the present foundations, a true wmmunily of 7. The President and the Prime Minister
the Atlantic peoples aiIl one day be dized.
They noted that questions which would bo un- stressed the interestof both countries in the
der discussionat the forthcoming NATO Alin- balance of paymonts betaeen them and with
içterinl Meeting in Ottaaa aould gire both the rest of the aorld. The Prime Minider
countries an oppartunity to denionstmte their draw pnrticular attention to the large United
States sumlus in the balance of current nav-
belief in theAtlanticconcept. menta aith Canadn and nated the impo&n&
4. Their Governments will continue to do of allowin- for this fact in determin-nn the an-
everything pmible to eliminate causesof dan- propriate policiesto bofolloaed by eaeh coun-
geraus tensions and to bring about peaceful
solutions. In this tsskt,he7 will continue to t It ans a-ai that both Governments
support the role of the United Nations, andto shouldalaays deal in apositiveand emperative
make every effort to aehieve pmgreds in the mannei with developments atiectinp -hair in-
negotiations on nuclear testasnddissrmammt. ternational tradeand paymonte.
6. In the face of continuing danger%,the 8. The Prime Minister and the PrPsident i8171 ANNEXESTOREPLYOFTHEUNKED STATES SOI
strersad the importnnee of caeh country shoa- expeeted thst there will be alrnost continuous
ing regard for the ~ieas of theother alicrn atti- exchanges of riews during that period as aork
tudes difier. For this piirpoui ttiry nm arnng- progresses in miring mnny niatien of con-
hg for more frequent coiisiiltntion 01 nll lorels eem to the twu countriee. Then, in the latter
in or<lerthrt tlie iiiteiiti<iiisof e:icli(;<ireniipnrt of tlic ycnr. ~iia.tings will he hcld of the
may be fully appreciated by tlia other, and Joint Cnltinet-levcl (hniinitt~o on Tmde and
misuriderstmdiiigs mny ha aroiùed. Eroaornic Affnim RN~ 0x11)ef~iise.
16. These pn,lirninnv disctissiunsbet\~ernthe 17.The k'riiiio Aliiiistcr anr~lic Prcsidcnt
Prmident and the Prime DIinistrr aiIl lead Io s look forirliril Ir pcr.io<lof prrtii.ulnrlj active
good deal of ndditianiil setivitg for the two and productirn rmpmxtion betireen the two
Gorernnients orer tlie next fea monlhs. It is countrieç.502 GULFOFMAINE
HOUS EFCOMMO N SCANAD A,BATON THE hIX1CWATER SOLLUTION
~EVEN~TONBILL,6APRIL1970PP.5952-5953
[Nooreproduced] ANNEXESTO REPLY OF THE UNITED STATES 503
Annex 4
FROMTHE UNITED STATED SEPARTME NFTSTATETO EMBASS YF THEUNITED
STATES ,TTAWA D,ATED2 NOVEMBE 1967
NOTE FROMTHE SECRFTAR OF STAT EO EMBASS YFCANADA,
DATE]2>5APRIL1969
SUMMARYOFTHENOTEFROMTHEUNITED STATESDEPARTMENTOFSTATETOEMBASSY
OF CANADA, DATED1NOVEMBER 1967
1. Followingis substance tex1note given Canadian Ambassador Ritcbieby
Under Secretary Rostow Nov.1:
QTEDept.. .refento Note Verbaleof External Affairsof Oct. 11,1967
handed to US EmbassyOttawa Oct.25,1967 concerningestablishmentby
GOC of straightbaseline systemfordelineation of Canada's territorialsea
and contiguous fishing zone. In this connection, Dept. noted statement
made by Paul Martin, Sec.State, ExternalAffairs,before External Afîairs
Committee of House on Oct.26,and Order of Governor-General in Coun-
cilthis subject issued Oct. 26.
AsGOC aware USG considersaction of Canada without leaal iustifica-
tion. It isviewof USthat announced linesare. in important anarubrtantial
rcspccts,contrary to established principles of international Lawofthe Sea.
USdoes not recoenizcvaliditv ofoumorted linesand reservesa-1rinhü of
USand ils natiods in waters in {ueition. UNQUOTE
The Secretary of State presents his compliments to His Excellency the
Ambass~dor o-~Canad~ ~nd has the honor to refer to the announcement on
April5.1969 of the Canadian ~inister of Fishcriesth; the Canadian Govern-
ment will(ashonly estdblish funher heddland to headland basclinesfor areas
on the east and weit coasts of Canada(blseek amendment of the Temto-
rial Sea and Fishing Zones An of canadiof1964to permit the drawing of
"fisheries closinglines" cnclosingCanadian coastal watersas exclusivcCana-
dian fishingzones without affening the limitsof the interna1watersand tenito-
rial seaclaimcd by Canada.
ThcSecretaryofStatealso refersto the Noie Verbalegivcnto HisExcellency
the AmbassadorofCandda on November 1,1967in response toa Note Verbale
of thc Canadian Department of Extcrnal AfTairson Onobcr 25, 1967which
concerned theestablishment by the Government of Canada of straight basc-
liner for areas of the east Coastof Canada. The Department of State Note Ver-
bale set forth the position ofthe United StatesGovernmcnt that the anion of
Canada was withoui legal justilication. that thc haselincs announced by
Canada were, in important and substantial respects,rary to established504 GULFOF MAINE
~rinci~lesof the international law of the sea, that the United States did not
;ecogiize the validityofthepurported lines,and that the United Statesreserved
al1rightsof the United Sratesand of iü nationals in the waters inquestion.This
position, which the UnitedStatesGovernment continues to hold, wasreiterated
verbally to Canadian Counselor of Embassy Runvash on November 4, 1968
rogetherwitha requestthat if,despitc thc positionofthe United Statcs.Canada
decided to draw additional baselines, the United States would be consulted
well in advance of any such decision and would be Vven an opportunity to
comment on the baselinesconcerned before their announcement.
The Government of the UnitedStareswishestoexpress itsdisappointment in
being givenonlya fewhours advance notice ofthe announcement bythe Cana-
dian Minister of Fisherieson April 5, 1969and no opportunity 10 comment
uoon it.The United Stateshooes iwillbeaiven ano~oortunitv IOcommenton
any baselines Canada plans io draw pursÜant10thai announcement. Ir would
appreciatc receiving theircographical coordinates in sufiicient tirne before
their intended announcement to allow proper study and discussion with the
annronriate Canadian authorities.
.~itk respen ;;the intention of canada to amend iü Territorial Seaand Fish-
ina ZonesActto permitthe drawinp.of fisheries closinnlines,the United States
algowishesto exbressregret it wasalso onlv eivena fëw hours advance notice
of this proposal &d no Gportunity to conkcon it.The United Stateshopes it
willbeconsulted reaardinn the ~rovisionsofthe ~ro~osedamending legislation
and eivenan o~noriunitvïo commenton itbefoie iiis submittedtoPariiament.
6e ~ecreta&of tat wéishesto state the concern of the United StatesGov-
emment that measures such as those seeminglyenvisaged by the Government
of Canada,could do serious harm to multilateral efforts to preservefreedom of
the high seas as a fundamental tenet of international law.
Department of State
Washington, D.C. April25, 1969. ANNEXES TOREPLYOFTHE UNITESTATES 505
Annex 5
AN ACT TOPREVEN F'OLLUTION OAREA SFTHE ARCTICWATERA SDJACENT
PREVENTIOANCT)
[Nor reproduced]GULFOF MAINE
Annex 6i3771 ANNEXE SO REPLY OFTHE UNITED STATES 507
L.H.J. LEGAULT. 15lMaritime Claims
This chapter attempts a brief review of Canada's maritime claimsand their cvolu-
tion from the colonial period to the present. The intention is no1to give a history
of those claims or an analysis of thcir lcgal merits; rather il is proposcd to examine
Canada'sclaims to cither maritime sovereignty orjurisdiction(or both) in the light
of the factors which have determined both the claims themselves and the ~olicies
adopted inseeking to advancc them.
Fisheries have occupied an important place in Canada's economic history and
foreignrelations from the colonial periodo the present. Fishing, and not the fur
trade, is Canada's oldest primary industry. The first treaty negotiated by Canada
in its own right was the International Pacific Halibut Convention with the United
States in 1923(uhich, houcvcr. required ratification b) the British governmcnt.
corninaas 11did thrcc ycsrs bcfore thc Imuenal Conference of 1926had acccpted
the eqial status of the-dominionsand the hother country).' Canada is a member
ofnineinternational fisheries commissions established under various international
conventions,'and in the twoyears from April 1970to March 1972Canadaentered
into nine new bilateral agreements rclated to fisheries.'
Self-cvidentthoughit maybe, ilisimponant toemphasize that Canada's maritime
claims from.the outset have been related10 the use and protection of the living
resources of the sea off its coasts. Despite the relative dccline in the importance
of commercial fishing to Canada's cconomy. and despite the fact that the annual
cost of government services for the fisheries ranges from 25 to 35 percent of the
gross value ofcommercial fisheryproduction on the Atlantic Coast. fishing is still
of vital importance to Canada's coastal provinces in both social and cconomic
ternis.' The resource orientation of Canada's maritime policy remains strong, and
hasbeenbroadened with technological development to include offshore mineral as
wellaslivingresources. In addition. environmental concerns. which are intimately
relatedtotheprotectionof livingresources.have recently assumtd equal or greater
importance.
BRITISH INFLUENCE
The basic Canadian concem for the protection of coastal resource intcrests has
ken a decisive factor in thc evoluti'n of Canadian manrime claims. lndccd the
historyofthoseciaimsmay bedcscribedas king inlarge pan the rcsult ofthe intcr-
playbctuecn Canada's preoccupation with coastal rcsource intcrests and the dif.
fcrcntand wider range of mantimc intcrcsts ofGreat Britain and the United States.
'Theopinionsexprcssedhcrearc solelymine.508 GULFOFMAINE 13781
Ifisone oftheanomaliesof history that Canada's maritimedaims inrome cases
rest onearlier Britishclaimsbut that. on the other hand. the advancement ofCana-
.-..-
dianclaimswas for a long periodcircumscrikd and reslricted (but alsoProtected)
by British policy.ïhis intic notonlyfor the period whcn Britainilselfias largel;
responsible for Canada's maritime policybut alro to some extent for pan of the
period followingtheachievement ofcanadian autonomy inexternal afïairs. Forthe
legal heritage Canada acquired from Britain includedthe British view of the law
ofthe sea, and ifsinfluence,as weUas the influenceof the other links with Britain.
remained meat inthedeterminationof Canadian wlicy. Nevertheless. diver~ences ~~
between ;he vicws of the two countries in maritime matfers appeared evenkefore
1926and were to widen thereaf~er.~
Notable examples of extensive early British claims 10maritime areas adjacent
to the Canadian Coastinclude ~udson~a~ and Strait. Conception Bay iandothcr
bays of Newfoundland). the Bay of Fundy. and the Gulfof St Lawrence. Englirh
claimsto sovereigntyofthe seaon theoth;rside ofthe Atlanticgoback to the tenth
c~ntury,~and similarambitions inNonh Americanwaters wereevidenl intheearly
colonial period. And from the early 1700sto the early 1800swhen, as a result of
naval intcrests. Britain was attem.tin- to establish the freedom of the seas and
restrict Iothree milesthe marginalklt, the British were at the samc limeclaiming
increasingly widecustoms jurisdiction to protect their fiscal interests that were
being prejudicedby smugglingactivities.7
As Professor Morin points out. the factors that influenced Britainto restrict its
claimsoff its own (metropolitan) coasts do not ap..ar to have been as decisive IO
ilsclaimsinthe colonies.at least inthe earlicr period.' Fullsovereignty ovcr Hud.
son Bay and Strait was claimed by both Britain and France. and the 're\torati~n'
of British sovercigntyover these waters *as recognized by France in the Treaty
of Utrecht of 1713.9The British claimtoConception Bay(and other bays of Neu.
foundland)dates back to at lcast 1819and was upheld by the Privy Councll inthe
1877case of Direrf -~ C-blr Co.o~n. v ,heAn~lo-Am-riranTele~ro~htrCo-.
pany.'P SimilarlyBritainasserted sovereigntyover the waters ofthe Bayof Fundy
in the cighteenth and nineteenth centunes " Britain (and earlier France) in the
eiahtecn!hcenluryalsoclaimedtL hawGrelce: hSeTreaty ofpans of 1763
would seem 10indicate that both countriès then acknowledged that these waters
werc 'national'and that access to the fisheriestherein was aprivilegeto begranted
by the territorial ~overeign.'~
AfterTrafalgar.however, British policyemphasizedthefreedomofthe highseas
and resisted claims to 'domination'beyond the three-mile marginalsea. This pro-
cers culminalcd in the Customs Con~olidationAct of 1876aftei u h~ch.acïordlng
toColombos. 'theinvanable practicc ofCiredi Bnrainhas bccn Ioupholdthcthrcc-
mile distance.'"
The effects of the new British policyfor Canada were soon fell. Nevertheless.
British influenceremained imponant for aconriderablc pcricd In 1930th~answers
ofbolhcanadaand Bntain IOthe que~tionnairecirculatedpnorto the HagueCodifi-
cationConference reflectedthe sameapproach tothe lawofthe sea(wi1hÏheexcep
tion. however, that Canada listed 'geographic'as weUas historic bays as king
exemptfromthe ten-milebaseline nile)." Ifwasnotuntilthe yearsfollowingWorld
War IIthat the divergences between the respective maritime policier of the twot3791 ANNEXESTO REPLYOFTHEUNITEDSTATES 509
countries were to lead them to quite opposite stands on issues of coastaljurisdic-
lion.
UNITED STATES INFLUENCE
AsCanada's neighbour. and ultimately as the world's leading maritimepower, the
interests and policies of the United States have provided the other important
element in the interplay of factors which have influenced Canada's maritime
claims. Shortly after attaining independence the United States espoused the doc-
trine of the three-mile limit for 'exclusive pretensions 10the sea.' although the
United Stateshas not considered il inconsistent withthat position 10claimcertain
rights of jurisdiction and control beyond that limit." However, whilc king in
essential agreement on this ..oroach. the United Statesand Britain .on~-.h~ ~ ~ ~
Canada)nevertheless became involved ina century-long conflictover the Atlantic
fisheriesof BritishNonh America. AftertheWarofIndependence, thenew Ameri-
canrepublic wasanxiousto preserve forits nationalsthe samerighttofish inBritish
North American waters which they had enjoyed as British subjects. This led to a
series of disputes and treaties culminating in the 1910 North Atlantic Coast
FisheriesArbitration heardbefore the permanent Coun at the Hagueand revolving
aboutthe intcrpretation and av~licationofaniclc Iofthe Coniention of20 Octokr
1818between ri taiand thiÜnited States.
In ils decision the court upheld the right of the United States to common enjoy-
mentofthe inshorefisheriesalongcerlain areasofthe CanadianAtlanticcoast pur-
suant 10the 1818Convention, aiwe~ as the right of the British Io regulate those
fisheries in a reasonable and eauilable manner. For those areas of the Canadian
coast in which the United tace undesr the 1818Convention had renounced ils
'liberty'to fish.the cour! decided that the lineofexclusion shoube i/three miles
from a straight line drawn across the entrances to bays at the place where they
ceased to have the configurationand characteristics of a bay. and i1 in al1other
cases. three milesfrom the sinuosities of the coast. The findingsof the courtwere
substantially incorporated in the Treaty of Washington of 1912.together with the
court'srecommendation that, in every baynot specificallyprovidedfor. theclosing
line should be drawn in the part nearest the entrance al the first point where the
width did no1exceed ten miles. (The 1912treaty did no1deal with Hudson Bayor
delimit the bays of ~ewfoundland.)~~
The decision inthe Nonh AtlanticCoast Fisheries Arbitration isoffundamental
importance inthe histoiy of Canada's maritimeclaims. It may be seenboth as hav-
ingsubstantially recognized the principal Canadian claimsat issue inthe case and
as havingconiïrmed the limitations upon them vis àvis the United States. And it .
markedthe end ofa bitter controversv withthe United Statesover the North Atlan-
ticfisheries(a result which in the longrun may have ken assisted by the fact that
United States fishermen graduaUybegan to lose interest in those fisheries). It did
not. howcver. completely lay to resl the underlying diaerences of views on
maritime policywhichcontinued sporadicallytotrouble the othenvise harmonious
fisheriesrelations of the two countries on the Westcoastand appeared at the 1958
Law of the Sea Conference.
One of the early problems to apgear in fisheriesrelations on the Westcoastwas510 GULF OF MAINE i3801
the Bering Seafur sealcontroversy. In this caseil wasa United Statesclaim rathcr
thanacanadian onewhich precipitated thedispute. Somelime aftcrthe acquisition
of Alaska the United States sought Io put an end Io .lan-c sealinnin the Alaskan
portion ofthc Bering~ca,on thegroundsof urgentconservationncids, whiledow-
ing American nationals Io take sealson the Bcring Seaislands. These attcmpts to
stop pelagic sealing were resisted by Canada in the name of frccdom of the high
seas.andCanadianvesselswcrc renularlv arrestedfor violatinn United Statessea-
ling regulations. An arbitral tribunaiwas istablished to rcsolveÏhe dispute in 1892.
In the light of later devclopments the arguments put fonvard in support of the
United States and Canadian positions arc particularly fascinating. The United
States claimed apropeny nght in the fur sealsbasedona vital terntonal Iink with
their place of onain and orobable return nie United Statesalso arguedthe nght
- .
of seU.protection or seif-defenceagainstactivities threatening the extinction of an
~ndustrvvital io the economic Iife of the nation. The British. on behalfof Canada.
dcnicd ihcsc claims and assertcdthe right of al1Statesto fish on the high seas.The
tribunal uoheld the British.Canadian casein decidin-that the United Srnieshadno
rightofprotection or property in thefur sealsoutside thethrce-mile limit andcould
not re-ulate the fisher. a-ainst fore-nn nationals."
Some years after the Bering Seaarbilration. in 1911.a Convention respecting
Mcasuresfor the Prcservation and Protection of the Fur Sealsin the North Pacific
Oceanwassignedby Britain, the United States,Russia, andJapan. This treaty (ul-
timately repl.&ed by the 1957IntenmConventionon theConservationofthe Nonh
Pacific Fur Seals)uas the first of a scncs of remarkable bilateral and multilateral
conventions for the fisheries of the north Pacific. What is significant about these
conventions is that desvite difiiculties and vroblems. someofwhich uersist to this
day. Canadaand the ~nited Stateswere able to woik out unusually~co-operative
andinnovative arrangementsfor theconductofimportant Westcoastfisheries. This
isduc wrhavs in part to theparallel intercsts ofthe Iwo countries in somcimportant
aspectsof the de;elopmenÏand exploitation of the fisheriesconcerned - for exam-
vle. the vrinciole of abstention.
- ~erhais themost troublesomefactor in the Pacificfisheriesrelationsof Canada
andthe United Stateshasbeen thequestion ofcanadian claimsto sovereiantyover
thewatersof Dixon Entrancc and ~ecate Strait. Canadahasregardedthelin; fixed
bv the 1903Alaska Boundarv Award (the A-B line) asconstitutine the international
-
maritime boundary in thesewaters, knning froi Cape Muzon. Alaska (point A),
almost duc east to what the tribunal decided was themouth of the Portland Canal
(point B).The Canadianposition hasbeenthat the waters, and not only the lands.
lvin~ southof the A-B line (comorisineall the waters of Dixon Entrance andHecate
~trayt)are Canadianwaters. In this way the Unites States' Dall Island and Prince
of Wales Islandwould Lxdeprived of pan of the territorial seawhich would nor-
mally appertain to them in the absenceof an agreementor other disposition Io the
contrary. This view, however, was no! supponed by the British. and in 1910the
law officers of the crown in London dismissedthe Canadianclaim asbeing unjus-
tificd under international law or by treaty rights.
The United Statesposiiion hasbeenthai the 'A-B Iine' divides only ihe land ter-
ritorics of the two countries and no1their territorial waters, although in the Cana.
dian view this position was advanced by the United States only some years afrer[3a11 ANNEXES TOREPLY OFTHEUNITEDSTATES 511
the 1903award. United Statesfishcrmcn throughout the century havefished in the
watersof both Dixon Entrance and Hecate Strait UV Io three miles from the Cana-
dianshore.In addition. theextcnt of'canàdian watirs' in Dixon Entrance andHec-
ate Strait was temporarily restricted for customs purposeswithout 'forcgoing any
Canadianrights in respectof the waters thus restricted."Wevenheless,although
Canada hasno1enforced ils fisheries re~ulations aa-inst United States nationals
(nor ils customs regulations againstforeign nationalsgenerally) beyond three miles
from shore in ~ccaic Strait and Di~on ~ntrancc. the Canadiangovcrnmcnt rince
the 1890shasmaintaincd that thesc arc Canadianwaters. Incidents haveoccuncd
from time to lime to keep the issue alive.I9
In summary. it can be seenthat Canadian fisheries claims. andthe underlying
claims IO sovereignty ovcr wide areasof the sea, came into conflict with United
States fishina interests shonly after the United Stateswon ils indewndence. That
conflict hasken a thread that hasintermittently woven ils way inand out of the
otherwise a-nerallv harmonious vattcrn of fisheries relations betwecn the two
countries up 10the present.
In addition. asthe United Statesattained to prominence asa world powcr. and
especially as a naval power. fisheries relations becamecomplicated by strategic
c-ns-derations. United States securitv interests have beenseenasdemandinuth-
maximimfreedom and rangefor Amcrican warshipsandaircraft and,asacorollary.
the minimum assertion by Statesof coastaljurisdiction beyond threc miles. In the
wakeof unilateral claims madebyother States(especiallyof Latin America) follow-
ing the equally unilateral 1945Truman Proclamations on the continental shclf and
on fishenesconseriaiion. the United Stateshasbeenconcernedwith the phcnom-
enon of so-called 'cicepingjunsdiction' and ils possible effects on the mobility of
ils nuclcar submarines.'0 As an ally of the United States in NATO and NORAD.
Canadahassharcd the concern oflhe United States for Nonh American security.
but that common concern hasno1meantidenticalviewson maritime policy andhas
not prevented the two countnes from taking quite opposite positions on issuesof
coastaliurisdiction."
POSTWAR DEVELOPMENTS
In the yearsfollowing the end of the World War IICanada. likemany other smaller
andyoungerpowers. becamcincreasingly preoccupiedwith thequestion ofextend-
ing its jurisdiction over coastal fisheries. Foreign fishing activities off both the
Atlantic andPacificcoastswere expandingrapidly andgaveriseIo scriousconcern.
Numerousprccedents wcre set ofunilater~l clair& to marifime sovcreignty orjuris-
dictionout 10twelve miles and well beyond following the Truman Proclamations
on thecontinentalshelfand on fishing. As acondition ofthe entry of Newfoundland
inIo Confederation the Canadian novernment anreed to apvly the hcadland-
10-headlandrule for the measuremcntof the territorial water;along the coasts of
the new province. With the fundamental change in circumstances brought about
in the~uüof ~t Lawrence with ~ewfoundland'ientry into~onfederation. Canada
(following themuch earlicr British Icadl announcedits intentionIO claim and seek
acquiescince in the claim that the gulf should become an 'inland sea.' The 1951
Anglo-Nonvegian Fisheries case. which upheld Norway's application of the512 GULF OF MA~NE 13821
straidt baseline system for the measurement of the territorial sea alonn its Coast.
was -&n by the govemment as having important implications for the-canadian
coastline and as be-nn..o~licable to 'manv Dans of the Canadian shores.'"
This, then. was the immediate background to the 1958and 1960Conferences on
the Law of theSea. Canada. in common with many other slates. wanted greater
protection forts coastal fisheries. Unlike some other slates, however. il was no1
prepared to claimthat protection unilaterally, and the govemment madeclear that
its intention was to ~ek multilateralagreement on 'territorial waters.' Outof con-
cem for the security interests so heavily emphasized by Britain and the United
States. and taking in10account that the basic Canadian intcrest lay in resources
rather than exteniions of sovereignty. Canada propowd ai UNe~encral Asscm-
blv in 1956aformula wherebv a fishinnzonecould be established bevond the tradi-
tion from sovereignty had its roots, of course. in both British and United States
practice. Neither Britain nor the UnitedStates. however. was prepared to go1
the wav withCanadaat the 1958conference. The United States introduced itsown
proposal for a six-mileterritorial sea (thus abandoning the three-mile limit before
Canada) and a six-milecontiguous fishing zone in which 'traditionalts' would
be recognized in perpetuity. Britain for ils pan proposed a six-mileterritorial sea
which was ineffect athree-mile territorial nia with an additionalthree-mile fishing
zone. Accordingly Canada convened ifsown proposal Io the six-plus-sixformula
but. inthe facefopposition fromthe United s;ates. Britain,ran thcuses.,and
others. wasunable toobtain the necessarv two-thirds maioritv. At the I%Oconfer-
ence the United Statcs and Britain ultim~telysupponed a siightly modifiedcom-
promise version of the Canadian six-blui-six formula. which failed bv oneIOote
obtain two-thirds approval."
The failure of the 1958and 1960Conferences on the Law of the Sea to resolve
the question of the territorial sea and fishing limits marked an important turning
point in the evolution of Canada's maritime policyand maritimeclaims. Until that
point Canada had generally followed the path of negotiation. arbitration, and bila-
teral and multilateral agreement in respect of ils claims. That path was not aban-
doned inthe vears followi-athe 1958and 1W conferences. but a further element
was added or al least reinforced: unilateralism. In effect Canada then dipped in10
one of the 'two parallel streams' of the history of the law of the sea as described
by Lauterpacht; namely. the unilateral assumption of protective jurisdiction for
specialpurposcs within zoncscontiguoustothe~temtorialsca.'. ~h;s phcnomenon
-whow origins and attempted suppression owc so much 10 British and United
States practic- was 10become an essential clcmcnt in Canadian law of the sea
policy.without, however.cntircldisplacingthetraditionbasiccmohasis on bila-
teraand multilateral agreements. - .
1%4 LEGlSLATlON
Mer I%Othe Canadian governmcnt made one more attcmpt to finda multilatcral
solution to the coastal fishenes problcm which the 1958and I960confercnccs had
failcdto provide Despitcthe fa/lureai Gencva. Canadajoined with Britainincan-
vassingcountries around the uorld ioaskthemtojoin ina multilateraltreaty bascdi3831 ANNEXESTO REPLYOF THE UNITEDSTATES 513
on thc six-olus-sixformula. This effortwas su~wrted bvmorethan fonv countrics
but no1bythe United States. and socame ti.nothing: Accordingly. by 1963the
Canadian eovernment haddecided thatthe orotcctionofCanada'srerourcen seces-
sitatcd th; establishment of a fishingzoni without awaiting international agree-
ment." Abill Io this effect was introduced in mid-1%4.
The 1964Tenitorial Seaand FishingZonesActprovidedthe firstgeneralpumiose
definition of ihe breadth of the canadian territorial sea. retaining the traditional
thrcc-mile limit." Itmade the straight baseline system applicableto the Canadian
coasts (wilh implcmentation of thi~-~rovisionleft Io the governor incouncil). And
it established a nine-mile fishingzone contiguous Iothc three-mile temtonal sea.
B~orderincouncilthc fishingv;sselsofthe UnitedStates were allowedtocontinue
tofishinthe continuousfishinnzonesonboth the eastand wcst coasts.and the fish-
.ingvesselsof France. Britain.Ponugal. Spain, Italy, Norway, and Denmarkon the
east coast. pending the conclusion of negotiations undcr way with each of these
countrie~.~'Itwasmadeclear that France andthe us. theonly twocounlnes having
treat. r-ehtstofish inCanadianwatcrs. wouldbcallowed tocontinue theiractivitics
in the areas concerned. subject to agreed arrangements and conservation regula-
lions. but that the traditional fishingpractices of thc othcr countries namcd in the
order in council would bc subject to phasing-out arrangement^.^"
Somethrec years latcr. in~ctober 1967,thefirst listofgeographicalco-ordinates
of ooints for the establishment of strainht baselines wasissucd by the governor in
c~;ncil.'~ That list established straight baselines for the measurcmeniof the ter-
ritorialseaalonethe coast of Labrador andthe eastern and southerncoastsof New-
foundland. A secondlistwas issuedin 1%9establishingstraightbaselincsalongthe
eastcrn and southern coasts of Nova Scotia and the western coasts of Vancouver
Island and the Ouecn Charlotte Island~.'~
These variou; mcasures left unrcsolved questions associated with romc of
Canada's major claims IOmaritimc sovcrcignty orjurisdiclion. namely the claims
relating to the Bay of Fundy. thc Gulf of5 ~awrence. and Dixon Entrance and
Hecate Slrait. al1areas for which no baselincs wcrc promulgatcdin 1967and 1%9
(together with Hudson Bay and Strait and the w&rs ofthe Canadian Arctic
archipelago).The Canadianclaimto DixonEntrance andHecate Strait has already
been discussed. It has alsobeen notcd that in 1949thc Canadian govcmmeni had
announced ils intention to claimthc Gulf ofSt Lawrence as an 'inlandsea.' As for
the Bay ofFundy. it came into prominence inNovember 1962when the Canadian
orime minister madeclear inthe Hcux ofCommons thatthis bayconstituted Cana-
dian interna1waters and that Soviet trawlers which had ken sighted there would
be reauested to leave."
At about this same timc. howevcr. yet another claim began to cmergc. that to
O.ee~ ~h-rlotte Sound on the Pacificcoast. This claim. which had no ao..rent
antecedent in British or Canadian practice, was suggested in a bricf submitted to
the Canadian government by the Fisheries Council of Canada in Ianuary 1%3."
The Fisheries Council recommcnded that straight baselines be drawn. inter alia,
acrors thccntranccsto QuccnCharlotie ~ound.~ixon Entrance.Hccate Strait. the
Bavof Fundv.andtheGuUofSi Lawrence. Althounhthc~ovemment had indicated
thai itwouldaccept the council's recommendatio& as th; basis of ils negotiations
with other countries." these areas. as already noted. were no1included among 514 GULFOF MAINE 13841
those covered in the 1%7and 1%9orders incouncil. However. in announcing the
promulgation of the 1969baselines to the Houx of Commons on 4June 1969 the
' secretary of state for external affairsdeclared that the government would deal with
these 'gaps' by an amendment to the Territorial Sea and Fishing Zones Act that
would oermit them to be enclosed within 'fisheries clos -n^lines' without affec-ine
the limits of Canada's interna1waters and territorial sea."
1970 LEGISLATION
It was against this background that the Canadian government introduced two bills
before parliament in April 1970:the Bill to amend the Territorial Seaand Fishing
Zones Act. and the Arctic Waters Pollution Revention Bill. These received royal
asscnt on26Junc 1970.withthe latter providingoncofthc rareexamples ofan item
of legislaiion king unanimoualy appruved by parliament " Il is with the introduc-
tion of these statutes that new. environmenlal concerns come Io assume equal if
no1greater prominence than resource interests as theessentialfoundation ofCana-
dia" maritime policy.
The amended Territorial Sea and Fishing Zones Act extendedCanada's temtor-
ial sea from three to twelve miles. thus bhnging Canadian practice into line with
that of the now revalent international ~ractice and. incidentallv. eliminatine
. .
Canada's former nine-mile contiguous fishing zone. ~he act also authorized the
establishment of new fishing zones in 'areas of the sea adjacent to the Coast of
Canada.' New fishingzones have since ken created within 'fishenes closing lines'
established across the entrances to thebodiesofwater no1enclosed within territor-
ial sea baselines by the 1967and 1969orders in council. that is. the Bay of Fundy.
the Gulf of St Lawrence, Dixon Entrante-Hecate Strait, and Queen Charlotte
Sound." Subsequently. amendments Io the Canada Shipping Act extended
Canada's jurisdiction over both Canadian and foreign vessels in these newly
created fishing zones for the further purposes of prevention and control of marine
pollution.''
The Arctic Waters Pollution Revention Act added two new dimensions to the
international law doctrine of innocent passage. First. il posited that a passage
threatening the environmental integrity of the coastal state couldno1be regarded
as innocent. Second, itimplied the applicability ofthe doctrine ofinnocent passage
(whichtraditionally applies onlyto the territorial seaincontradistinction to thedoc-
trine of freedom of navigation which applies to the high seas) independent of any
claim of sovereignty. Thus, the legislation was another manifestation of the func-
tional approach whereby a particular form of jurisdiction, rather than full
sovereignty, isclaimed and exercised for special pu&ses. Under th=terms of the
legislation, the watersfthe Arctic archipelago, and the Northwesl Passage invar-
ticular. arc open to shipping subject to the necessary conditions for the pruiection
of thc ccological balance of Canada'r Arcltc islands and the adiaccnl marine cnbi-
ronment. ~ommercially owned shipping entering waters designated by the Cana-
dian government as shipping safety control zones is required to meet Canadian
design. construction, equip&cnt. manning, and navigation safety standards. These
zones extend up 10a hundred miles offshore. Ship and cargo owners are obliaed
Io provide proof of financial responsibility and are liablefor pollution damagei3851 ANNEXES TO REPLYOFTHE UNITED STATES 515
causedbv them: this liabilitv will be limited bv order in council but doesnotdc~end
upon proof of fault or nc&ence. The legislation also extends to land-based
activities which could affect the Arctic waters. andto exoloration andcxoloitation
of the mineral resources of Canada's Arctic continental shelf."
Whilc siresring the functionîl approach undcrlying the Arctic watcrs Icgislation
and the fisheries pro\ irions ofthc amendedterrilorial sealegislation. the Canadian
government was careful to point out that the establishment of pollution control
zones in the Arctic waters and exclusive fishing zones in other bodies of watcr,
could not be construed as king inconsistent with or asan abandonmcntof claims
10sovereignty over the Arctic waters or suchother special bodies of water asthe
GulfofSt Lawrence. Thc 1910Nonh AilanticCoast FishenesArbitration wascited
asauthonty forthe view thatastatemay. whileclaimingsovcrcigntyoverthe whole
ofa seaarea.exercise only somuch of its sovereignpowers over al1or pan of that
areaas itdeemsdesirablewithout therebv or..udi-inaits-laim 10full sovereiant~.-.
With the introductionofthese IWO itemsoflegislation.ihe Canadiangovernment
also submitted a new declaration of acceotanceof the comoulsorv iuris,i.tion of
the International Court of Justice. The new declaration containcd a reservation
excluding from thejurisdiction of the coun 'disputes arising out of or concerning
iurisdictionor riphtsclaimed orexercised by Canadain respectofthc conservation.
-
managementor exploitation of the living resourcesof the sea,orin respectof the
orevention or control of oollution or contamination of the marine environment in
marine areas adjacent to the Coastof Canada."O The government indicated that
while remainingallachcd tothe rule of law and mai"tainingitsrespect for the Inter-
national Coun of Justice. it was not prepared to litigate on vital issueswhere the
law was 'inadequate. non-existent or inelcvant' or did no1provide a firm basisfor
decision." Ministers also oointed out that the new reservation did no1apply Io~ ~ ~
claims to maritimesorereignry suchas.for instance,the extension of the lenitorial
sea10twelve miles."
The amendedTerritorial Scaand Fishing ZonesAct andthe Arctic Waters Poilu-
lion Prevention Act mct uith a prompt respon5efrom the United Statcs andled 10
u hst may bc one of the more acerbic exchangesin the history of diplomalic com-
munications between the two countrics. (The 1964icnitonal sca legislation hîd
al50 arouscd public objections b) the United States. andCanad~angovernment
spukesmcndid no! misstheopponunit) to point out. in introducingthc 1970Icgisl~.
lion. thît the Cnitcd Statcshadadoptedanine.mile contiguous fishing zonein 1966
aftcr having cxprcssed disagreement uith the samcaction by Canadain 19M.l"
In a pres, relcasc giving the substanceof its official note IOthe Canadiango\crn.
ment. the L'nitrd Siatcs dcclarcd th;it international lau provided no basis for thcse
'unilatcr~l extensions of iunsdictions on the hi-h scas' and ihat the United StJtes
could 'neither accept nor acquicscc in the assertion of suchjurisdiction.' Concern
was exoressedthat this action bv Canadawould be taken as a orecedent in other
pans oithe world for 'other unila~erÿlinfringements of thefreedomofthe scas'and
for claims to excrcisejurisdiction for other purposes. 'some reasonable andsome
nor. but al1equally invalid according to international law.' with thc rcsult that
'merchant shipping would bescvcrel~restnctcd. and navalmobtliry uould bc scri-
ously~eopard~zcd In its rcply theCanadiangovernment madeclear that ilcould
.. .
not accept the United c ta teg;ovcmmcnt's views conccrning the Arctic watcrs516 GULFOF MAINE i3861
legislationand the amcndments to the Territorial Sea and Fishing Zones Act. and
itcited UnitedStates precedents with respectto theexcrciv ofjuridiction beyond
a three-hile territorial sea as indicatingthat the United States itxUdid not adhere
to thcse views in practice. The canadian reply characterizcd the Arctic waters
lcaislationar a lawiulextension of a Iimitedform ofjurisdiction 10meet panicular
dingcrs and thus as being of a different order from-'unilateral interfer&cer with
the freedom of thehi& seas such as. for exam~le. the atomic tests carried out by
the us and othcr stat&.' The Canadian note w;nt on to stress the inadcquacies if
international law withrespect to the protection of the marineenvironment and the
conservation of fisherics resources, and declared that the Canadian government
wasnotor.oa.cd toabdicateitsown reswnsibilities inthex matters whilcawaitinp -
the gradualdevelopmentofinternationallaw. The note alsoemphasized the impr-
tance of state practice in the development of customary international law andjus-
tified the Arctic waters legislation as being based on the 'overriding right of self-
defenceofcoastal states toprotect themselves againstgrowingthrcats 10theirenvi-
ronment.' Finally. the note argued that traditional concepts of the law of the sca
were panicularl; irrelevant to the uniquecharacteristics if the Arctic manne envi-
ronmcnt and reaffirmed the Canadian oosition that the waters of the Arctic
archipelago. and the Nonhwest Passage inpanicular, are not highseas but Cana-
dian water~:~ 1Followinnthis exchanne a furfher aresr rclease was issued bv the
Depanment of tat otelË December 1~70cxpress~ngtheUnitedStates'objcciions
to the Canadian government announcement of the establishment of 'firheriesclos-
inglines' inthe GuUofSt Lawrence. Bay ofFundy. DixonEntrance~HecateStrait.
and Queen Charlotte Sound.)46
The nea-tiations bep-n in 1964 withresocct to the traditional fish. .practices
of Britain. Norway. Denmark, France. Portugal.Spain. and Italy. and with respect
Io the treatv fishincrichts of France. had not ken concluded whcn the amended
Territorial~caand FishingZones ~ct was introduced in 1970.The Canadiangov- .
ernment indicated. howevcr, that the new legislation would help10bring these
negoliations to an end, while reaffirmingils intention to respect the treaty rights
of the United States and France." Indced. an agreement had already bcen con-
cluded withthe United Statcsallowingthe fishermenofboth countries to continue,
on a reciprocal basis. the commercial fishcrics uhich they had carried out up 10
thrce miles ORthe coasts of the othcr country prior Io the first establishment of
exclusive fishing zones by either Canada or the United Stat~s:~ Subsequently.
agreements were also concludcd with Britain. Denmark. Norway. and Ponugal
conccrning thcir traditional fishingpractices in the Gulf of SI Laurence and the
outer ninemilesofthe territonal seaoffcanada's cast coast: an agreement uasalso
signed with France concerning ils treaty fishingnghts."
The agreements with Britain.Dcnmark. Norwav. and Ponuaal provided for the
gradual phasing out of the traditional fishericsof {hcsecouni&s in the east coast
areas concerncd. with the latest terminal date king beforc the end of the prewnl
decade. The agreement with France provided for the termination of fishing
activilics by metroplitan French trawlcrs in these same areas but allowed con-
tinucd fishinaby a limited numbcr of St Pierrc and Miquelon vessels, subjcct 10
reciprocal tr;atment for Canadian vessels in the waters offthe coast of the French
islands; this same agreement also fixed the territorial sea dividing line betwecnt3871 ANNEXESTO REPLYOFTHE UNITEDSTATES 517
Newfoundland and St Pierre and Miquelon(but not the continental shelf boundary
southof the Ftench islands). The fishcriesphasing-outagreementwithNonvay was
accompanied by aseparatc agreement on Nonvegian scalingoperations whichpro-
videdforconservation mcasures toensure theprotection ofseal stocksinthe nonh-
WestAtlantic and allowed Nomegian sealingoperations inthe Canadian territorial
sea on the east coast on an occasional and strictly regulated basis and subject to
termination by 1978if so desired. With regard to Spanish fishing praclices. the
ncgotiation of an agreement look somewhat longer; that agreement is generally
similarto those dealingwithtraditional fishingpractices ofothercountries butcon-
tains anumberof svecialprovisions. No announcement hasbeenmadeabout wssi-
blenegotiationswithItaly;that country appears. inanyevent, to havediscontinued
its traditional fishingpractices off Canada's east coast.
PRESENT STATUS OF CLAlMS
Nenfot~ndlandBays
All of the bays on the south and east coasts of Newfoundland have now ken
cnclosed within the straight basclinc system and so constitute interna1waters of
Canada. Anew order incouncilwas issued on9May 1972revokingorders incoun-
cil [1%7] P.C. 2025and [1%91P.C. 1109and reissuing essentially the same geo-
graphic co-ordinales as had ken included in the latter orders with cenain minor
~v;sions rcspecting the use of low.tide elevations as haselines for measunng the
brcadth ofthe tenitonal sca.'OIn addition. the new order incorporates the lerritor-
ial sea dividing linebetween Newfoundland and St Pierre and~iquelon recently
ncnotiated with France and establishes strainht basclines for Fortune and Con-
naGrc Bays on the south coast of ~cwfoundland (which hadnot been covered by
the earlier orders in c~uncil).~'
Bay of Fundy
Thisarea has now ken established as an exclusivefishingzone bya'fisheries clos-
ing line'drawn from Whipple Point,Nova Scotia. to Gamet Rock, then to Yellow
Ledge. MachiasSeallslandand North Rock. and thencealong Grand MananIsland
to theCanadaIUnited States boundary inGrand Manan Channel. Withinthis arca.
Canadaalso cxcrcixs comprehensive ami-pollutionauthority over al1vessels pur.
suant to the 1971amendments to the Canada Shippin..ct.-That the assenion of
these specialjurisdictions is not inconsistent with Canada's historic claim Io the
Bayof Fundy was emphasized in statements by govcrnmcnt ministers referring Io
the pnnciple established by the 1910North Atlantic Coast Fisheries Arbitration.
In any event, even if the territorialea in the Bay of Fundy were Io be mcasured
from the sinuosities of the coast, the entire bay (with the exception of a smallarea
that could be re-rdcd as a 'hinV~~-~s enclave' assimilated Io the territorial sea
entirely surrounding if) would fall under Canadian sovereignty with the adoption
of the twelvc-milelimit. It isperhaps imporiant to note that the territonai sea. and
hence Canadian fisheriesjurisdiction. extends bcyond the 'fisheriesclosing line'
drawn across the entrance to the bay.(3891 ANNEXESTO REPLYOF THEUN~TEDSTATES 519
bctween rhc regimeof intemal watersand the regimeof the territorial sea.'" (For
afurtherdiscussion ofquestions relatingto the Arcticwaterssee the sevarate chav-
ter by Professor har rand.)
Hudson Bay and Strair
No straight bascline(or 'fisheriesclosingline')has ken drawnacross the entrance
of Hudson Strait undcr the 1964or 1970Icgislation. However. a 1906amendmcnt
to the Fisheries Act made clcar that 'Hudson Bay is wholly tcmtorial water of
Canada.'" and an order in council of 18December 1937 establisheda territorial
waters bascline across the eastern cntrance 10Hudson Strait. from Button Island
Io Resolution Island." There wouldappear 10 bc nodoubt that ihis clairn isfirmly
established in both law and practicc.
CONTlNENTAL SHELF CLAIMS
In addition to the traditional fishcricsclaimsalrcady discussed. Canada's attention
rince World War iihas been increasingly drawn towards the potcntial mineral
wealth of the scabed adjacent 10ils shores. In hisreport tothe Houre ofCommons
on Canada's participation in the 1958Law of the Sea Conference. the Ministcrof
Northcrn Affairs and National Resourccs. Mr Hamilton, stressed the 'particular
significanccto Canada' of the Convention on the Contincntal Shelfand indicated
that it could have 'conscquenccs of far-rcaching importance to Canada in the
dcvelovmcnt of undcnvater oil and rnineralrcsources.'" Sinccthat lime. the vacc
ofcxpiorationactiviiies inCanada~soffshoreareas has incrcascd rapidly. lnasiatc-
ment 10 thc Housc of Commons on 9 March 1970the hlinisier of Encrg). Mines
and Resources. Mr Grcene. noted that oil and gas permits had ken issued. sorne
a1devths as areat as twelve lhousand fcet. for 'more than half the total area of
canada's continental margin.' whichhe described as comprisinga total areaof 1.5
million sauare miles."
Canadian policy with respect Io the development of an intcmational regime for
ihe rcsourcesofthe seabedandoceanfloorbevond the limitsofnational iurisdiciion
isdiscussed inaseparate chaplcr. Whatisofintcrest fromthe pointofvicw ofCana-
dian maritimcclaiks is the canadian positionon the limitsof national jurisdiction.
bearing in mindthe elastic definitionof ihcsc limits in the 1958Convention on the
Contincntal Shclf (ic. theIWO hundred mctrc isobath or. beyond. 10the limitsof
explo~iability).Whilc itiscstablishcd docirine that Canada Iikccvcry othcr coastal
stateenj~~s~xclusivesovereignrightsinrcspectofthe expimationand exploitation
of its continental shclf. diffcrcnccs of vicws cxirt as 10how far out these nghts
extend under cxistinglaw and how farout they should extend under the new legal
reairneundcr discussion inthe Unitcd Nations. Onthisqucstion the Canadianpsi-
tiin har becn dcscnbcd as king foundedon both the provisionsofthc Continental
ShclfConvcntionand thedecisionofthe lntcmationalCourtofJusticeinIhcNorIh
Sea ConlinentalShel/cases. Canada'sclaimtothe 'submerged continentalmargin'
has ken reiteratcd on a numbcr of occasions and the margin has ken defined as
consisting of the 'continental shclfand slope and at lcast pan of the rise.'" It is
understood that the part of the rise inquestion is that part overlyingthe slopc. On520 GULF OF MAINE [3901
this basis'canada's continental sheif wouldextend only a few milesoff the Queen
Charlotte Islands and. if Fiemish Cav is included. more that four hundred miles
offshore due east of Newfoundland.
Of equal interest is the Canadian view of the nature as well as the gcographic
extent of the coastal state'sjunsdiction. The interpretative declaration appcnded
to Canada's ratificationofthe Seabed Ams ~ontrol Treaty isof particul&signifi-
cance in this regard." The declaration enunciates Canada's view that: a I the
Seabed Ams ~o"trol Treatycannot be interpretcd as allowingstates 10placenon-
orohibited (ie. conventional) weawns on the seabed and ocean floor beyond the
iimitsofnatio~aljurisd bi;yondotn(juri,icallimitsof thecontinen~alshelfl,
or to use this areafor anvthina but oeacefuloumoses: b1the treatvcannot be intcr-
preted as allowingany state other than th; coastal state 10 non-prohibited
weapons on ils continental shelf: andcI the treatycannot be interpreted as inany
way restricting the right of the coastal siate to carry out inspection and rcmoval
of any weapons or installations on ~tsconiinental ~helf.~~
While ilis beyond the scope of this chaptcr todcal withqucstions relaii10 the
delimitation of canada's continental she~boundarics wiih neighbouringStates. il
shouldbe noted that the needforsuchdelimitaiionarixs inrespect of the following
areas: withthe United States. inthe Beaufon Sea. inthe regionsof DixonEntrancc
and Juan de Fuca Strait. and in the Guifof Maine: with France. Inthe area souih-
wardsof St Pierreand Miquelon(the territorial seaboundary between St Pierreand
Miauelon and Newfoundland alreadv havinnbeen delimited as noted above): and
finaily. with Denmark. in the area b;tween~reenland and nonhern Canada.
CONCLUSION
Canada's maritimeclaims may well be amongthe largest in the world. embracing
as they do such vast expanses as Hudson Bay and the Gulf of St Lawrence. They
have their oriains in resourcc interests, gcography. and in history. many of them
dating back tothe British colonialpc"od They have occasioned differences uith
some of Canada's closest friends and allies and cspccially the United States. par-
ticularly in recent years when an ad ah felt ob&d ti advance and prote$ ifs
interests by unilateral action. II is imponant, however, Io look behind the con-
troversial tenn 'unilateralism' for aproper understanding of Canada's actions.
Tobee"n with.Canadadid nottake unilateralaction without havina-adeexhaus-
tive multilateral effons over a period of many years to secure what it considered
to beils legitimateinterertr. ~hc background to Canada's unilaieral ventures \ras
uell dcscribed by Scnator Robichaudinthe Senateon 10Junc 1970inthe follouing
tenns:
Thcrc[multilatcrallefforls1believe.havefailcdlargclybecausethe majormaritime
rtatcshaveken ri-idandinflexiblintheirvicws.Thcyhavetw oftcnconfuscdnational
interestrwithinternationalirnpcrativAr.a resulttherehardevelopedwhalhasken
callcdthc'tyranny'ofthe traditionalconceptofthefrccdomofthewas.AlthoughWrne
concersionrhavcbeenmadetotheintcrcstsofthenewcrstatcsandthenewnecdsarising
from devclopingtechnology.rhcseconcessionshavcken tw modest,thcyhavecorne
tw late.and thcyhavehadtw manystringsatla~hed.~'13911 ANNEXES TO REPLYOFTHE UNITED STATES 521
Another important consideration Io be taken into account in assessingCanada's
actions is therolc of state vractice in the devclovment of intcrnational law. On this
questionthe Canadian view was succinctly cxprcswd in a slatement to the United
Nations General Assembly on 4 December 1970:
Thecontcmporary intcrnational lawofthc xa comprisesbothconventionalandcustom-
ary law. Conventionalor multilalcral trcaty law must,ofcourse. bedcvclopedprimarily
by multilatcral action. drauinasnrccrsary uponprinciplcsof customaryintcrnational
lau. Thur multilalcral convcntionsoftcn consi3tof bothacodificationofcxisting pnnci.
plcr of international lau and progrcqsiuedc%elopmcntof new principlcr. Curtomary
intemaiional lawir.ofcourrc.dcri\cdpnfrm amnstytc praciicc.that irtosay. unila-
ieral aciion by \anou, siatcr. alihougilficqucnlly diaws in ium upon ihc prinriplcs
embadicdinbilatcraland Iimitcd multilaicraltrcaticr. Law.makingtreaticsofien becomc
acccptcdassuchno1by vinue ofthcnrstatus as trcaticr. butihroughagradualacccptancc
bvrtatcrofthc .rin.ivlc. ihcv.avdoun . Unilatcralirmcamcdtoancatrrmcandbawd
upondiffering or conflicting principlcscould producecomplctc chaos.Unilateral action
whcn taken along parallcl liner and baxd "pan rimilar principlcs can lcad ta new
rcgionalandperhapsevenunivcrralrulcoflaw. Similarly.agrccmcnt bytheinternational
commvnity reachcdthrougha muliilatcral approachcanproducecffcctivc mlcs of law,
whilc doctrinaire inrirtcnuwn thc multilateral approacasthc only legitimatcmcans
ofdcvclaping the law canleadto thc situation which has prevailedsinccthe failurc of
thc two GcnevaLaw of the Sca ConfcrcnccsIo rcachagreementuponthebrcadihof the
territorialca and firhing
Finally, it is important 10note that Canada has sought to accommodate as much
as possible the i&rcsts of other countrics affectcd by Canada's unilateral initia-
tives. ofien al the cos1of severc domcslic wlitical criticism. This accommodation
of the intercstsof other countries has led. first ofall. 10restrictions on the qualita-
tive scow of the Canadian claims Thus they have bccn Iimitcd generally to cxlcn-
sions offunctional jurisdiclion for special p"rposes and cannot be said 1; have had
any significant impact on frccdom of navigation rcsponsibly exercised. By way of
further accommodation. Canada has no1 sought to terminate unilaterally either
lreatv fishin- -ahtsor traditional fishi-.vractices:theformer have becomc the sub-
ject ifncwar~angements and the latterare king phascd out gradually and by agree-
ment.
It is, of course. to the 1951Anglo-Nonveginn Fisheri~s case that Canada owes
therecognition of the straight baseline system which Canadahasused toits advan-
tage. Canada. howevcr. has no1simply ignored the other pnnciple established by
that same case, namely that the delimitation of sea areas 'cannot bc dependent
mcrely upon the will of the coastal slatc as expres~d in its municipal law.' Much
the same point was made by Prime Minister Tmdeau in the Housc of Commons
in October 1969:
Mcmbership in a communiiy ..imwxr - and ..o~erl. - ccrlain limitations onthe
activitics ofal1members.For lhis rcawin. whilc not lowcring Ourguardor abandoning
Ourv. .r interests. Canadamur1not avwa..10live bv double standards.We cannot
al theramecimethat WC arcurgingother countriesIoadhereto rcgimesdesigncdfor the522 GULFOF MAINE i3921
orderlyconductof internationalactivities.purruepoliciesinconsistentwiththat ordcr
simplykcausc to do roina aven instanceapwarsktotoourbricfadvantage.Law,
~.
beit municipalorinternational.iscompo~dofrcstraints. lfwirclyconstmcdthcycon-
tributeIothefrccdomandthewcU-kin.ofindividualsandofrtatcs. Neithcrstater nor
individualsshouldfeelfreetopickandchoasc.toaccept orrcjcct.thelawrthatmayfor
the momentk attractiveto thcm.+'
This rec-nnition ofthe restraints imvosed uwn states bv law remainsan im~ortant
elemcnt in the Canadian approach to the law of the sea and. in panicular, to the
ThirdConferenceontheLawoftheScasc 1 974dul edafoawasinstrumental
in bnnging about agreement on theUN resolution calling for this conference and
Canada has played aleading role in the prcparations for the conference within the
United Nations Seabed Committeel4
In these preparations Canada has sought to devise a new way ofapproachingthe
problems of the law of the sea and to establish new ground for an accommodation
in theincreasingly sharp conflict between coastal interests, on the one hand, and
flagor distant-water interests on the other. To this end Canada has advanced the
concepts of 'custodianship' and 'delegation ofpowers' as vehicles for the develop-
ment ofthe futurelaw ofthe sea. Theessence oft.e o.licv summarized inthe terms
'custodianship' and 'delegationof powers' is simplebut nevenheless offundamen-
ta1 imponance: first, the primary or priority interests of the coastal state in al1
activities inareas ofthe seaadjacent to its shores must be reflected in international
la*; second. much ofthe administrationofthe lawofthe future must be 'delegated'
to the coastalstate and mubebased on resource management and cn\ironmcntal
management concepts; third. the basis for an accommod3tion bctween conflicting
interests in the uses of the sea mus1lie in a better balance betneen the rights and
consequent rcsponsibilitiesof states. andhencethecoastal state mustc~ercise both
ils cxist-na sove-.inn ~oucrs and ils future 'dcleeatcd' ouwcrs not onl\ in ils oun
interests but as 'custodian' of vital community interests in the uses of the sea. on
the basis of internationally agreed principlesis end.
This Canadian policy, and the twin concepts in which il has been encaosulated.
applies10thewhile range ofissuesofthe law.ofthe sea. Whereacquired wèll-estab-
lished rinhts are concerned. as in the case of the coastal state's sovereianty over
the territorial sea or its exclusive sovereign rights oter the continental ihclf. the
notion ofcustodianshipmplicsthat thecoastal state must exerci5ethosc rights u iih
due regard tu the shaied interest of al1states in, for instance. iniocencpassage
through the territorial sea and freedom of navination in the suceriacent waters of
thecontinentalshclf Fromthis point ofvicth~notionofcust~di~n~hi~ hdsa self.
denyina eKect. it highlights the limitations alrcady inhereni in \arious rccoanized
fonns of maritime s&e;eignty andjurisdiction under traditional law. and pr&ents
them as positive dutiesowed by the coastal state to the international community.
Where new or extended rights are sought to be acquired,uch as anti-pollution
authority in areas adiacent to the territorial sea. custodian. -. rides oieevback on
the conceptofdelegation of powers (which, of course. does not apply to sovereign
powers already acquired). Thus.on theone hand the concept ofdelegation of pow.
ers isacquisitive inetTccland serbes asalcgalfiction(ksi senseof that termi
under which legilimale aspirationsofthe coastal state can k satisfied; on the otheri3931 ANNEXES TO REPLYOFTHE UNITED STATES 523
hand ialsocarries with it the self-denyingaspects of custodianship and hencedoes
no! open the door to unbridledarbitrary action by the coastal state. The idea, of
course. is that Statesshould no1claim benefits without accepling corresponding
obligations. (The concepts of custodianship and delegation of powers can. of
course. beapplied evcn to the right offlag states to navigate thc high seas,which
-~o-~~~a~s~ ~~tail cenain dulies and resrmnsibilities.) That somestatesmav claim
the obligations in order to gain accessto the benefits in no way detracts from the
essential objective of balancingrights and resp~nsibilitics.~'
It is wonh noting that the concept of custodianship is fundamental to perhaps
the mort imporiani;niiiati\e u hich canada hascvcr takcn in itsdomesric manlime
le-islatiun. the Arctic H'aterr Pollution Re\cntion Act. In discussingthe alterna.
tivc approaches available with respect to the pollution of Arctic waters, Prime
Minister Trudeau described Canadian wlicy in terms which aptly describe what
is mcant by custodianship:
To clarcoff those[Arctic] warcrsandio dcnypassage 10 alforeignvcssclsinthenamc
of Canadianrovereignty. as rornceommeniatorshavesuggcstedw . ouldbe as sensclers
asplacingbarricrsacrorrthecntrance 10Halifax andVancouverharbourr ...On the
otherhand.if wewereto acl in somcmisguidcdspiritof intcrnalionalphilanlhropyby
dcclarinnthatal1comcrswcrcwclcornewithoutIctor hindrancc.wewouldbeactingin
dcfauliofcanada'sobligationsna1jus1 10Canadiansbuttoal1ofthc world ...Forlhcsc
rcasonr ...Canadarenardsherrclf as rcrwnrible 10al1mankindforthe~culiar ccologi-
cal balanceihatnowcxistssoprecariouslyin thewater.iccandlandarcarof theArctic
archipclag~.'~
Theseconceptsofcustodianship anddelegationofpowers underlie Canada'spol-
icy in responseto new demands for funher extensions of Canada'sfisheriesjuris-
diction. For. the old Canadianclaims having beeneffectively secured. new claims
are beinavressedupon the government,by the Fisheries Council of Canadawhich
1, nou ;ceking to haie esiablished Canada's ounership of the non-sedentary
svecirr inhabitinp. thc waters aboic the Canadian contincntal shelf" Houever.
rather thanasscningsuch aclaim toownership.Canada is prcssingforinternational
a-recrnenton theconceot that the coastal state hasa special interest in and special
rcsponsibility for the conservationand managementof the living resourcesof the
seaadjacent to its coastsbeyond its territorial seaand exclusive fishing zones. The
Canadian approach distinguishes between coastal, anadromous, and oceanic
socciesand the managem-ntsvstemsto be devised for eachof these. With regard
tocoastal specics- that is, thefree-swimmingor non-sedentaryspeciesthat inhabit
the relatively shallow waters adjacent to the Coast - Canada has proposed a
resource manageme"1 system under which the coastal state would assume the
responsibility. and be 'delegated' the requircd powers, for thcir conservationand
managementas'custodian' for the international community. Under this systemthe
coaslil statewould not havetheexclusive right 10cxploit thenon-sedentary species
of ils continental shclf. It would. however, obtain preferen!ial rights andapreferen-
tial share- which could be asmuch as 100percent insome cases - in the harvest
of thosestocksofrranicular imwrtance to the coastalpopulation. The coastalstate
would. morcovcr; havethe clear authority to rcgula1ea"d control the exploitation524 GULFOF MAINE 13941
ofcoas,Lal species on the basisofinternationally agreedprinciples. subjectto review
of the exercise of ihai authoritv . .v an international tribunal intheevcntof -i-autes
=- -
with other statcs. This approach, in essence. would more clearly define the special
interest of the coastal state already recognized in the 1958 Geneva Convention on
Fishing and the Conservation of the Living Resources of the High Seas, and would
give if efiect in a practical. workable way while retaining the necessary safeguards
against unreasonable action.68
Can~da - and indeedthe international community as a wholc - isenteringa new
phase in the hisiory ofmaniimeclaimandcounter.claim. Canada is bringingiothis
ne* ph~se an approach which remains foundcd on naiional inlerests inthe proiec-
lion ofcoastal rcsources and the coasial environmeni Ai the samc lime. houevcr.
Canada briner IO the preparations for Third Law of the Seaconference an imagina-
tive. cotisii.sctive approach which recoanizes that there are limits 10 what can or
should be dnne hy unilateral action; that beyond the nccessary accommodation
betwçen various national intercsts there are overridinn international interests that
musi be secured; andthat 10 the old concept of frecdok of the seas ihere musi be
ÿ!li?d conceots of rational. resoonsiblc manaaem-nt no1 onlv of marine resources
but of the marinc environment as a whole. 11is now more than ever essential thai
a new irrder be develooed for the seas and oceans of the world before- c~ ~s~
annrchy, and conflict iake over Britannia's oldjob of mling the waves. In the end.
ii isimly in international agreement that an abiding solution can be round for the
problems underlying the maritime claims of Canada and other countries.
1 J-Y W,rrin. '1.~5eaux e~iorialer du Relations krween the Two Couniries
Chnada au rcgard du Droit international' (Otrawa. 27March 1972).
Ii-xirill.Con. Y.Int'lL. 86. vi Exchange of Noter klwren the
: Cano& Ycnrbook (197&1)651. GovcrnmcnrofCanodnand thc Guvcm-
i iAgrecmcni ktwern the Government ol men! afihe United Kingdom conceming
Canada and the Covcrnrncni of Den Firbeticr Rclsiionr bctwccn the Two
mark concrming Firhericr Rclaiiont Counltiei. (Ottawa. 27March 1972).
heiucen the TwoCounlricr (Ottawa. 27 viiAgreement bciwcen the Govemmeni of
\larch 19721. Canada and the Govcrnment of the
iiAfrccmrnt klwccnCanadaand Francs Unitcd Statesof Amctica on Rcciprocal
onihcir Mutual Firhing Relations 101. Firhing Rivilegcr in ccnain arenr OS
iawa.77March 1972). lhcir Coostr (Ottawa,24 Apnl 1970).
iii Exchange of Noter bctwren tbr viiiAgreement bctween the Govemmeni of
<jovcmmcntofCanadaindthc Goucm, Canada and the Govcrnmcnt of the
mcni ot Nowny conruiuting an Agrce u.r.s.l. oCo-apraiion in Firhetier in
mentwith rcspct io Nowegian Fishine the Northeartem Pacihc Ocean ORthe
hnaicei OS the Atlanlic Coarl of Coari ofCanada(Morcow. 22lanuary
ianadr !Ollawn. Il 1111)1971). 19711.
ii Agrccmcn: bclwrcn CheGovcmmcni of ix Agreement klwecn the Go~cmmeni
Canadaand ihe GovcrnrncntofNowsy of Canada and the Goremment of the
on Edingand theConwiuation ofSeal u.s.r.l oiR%irionalnilei of Naviw
Stocks in the Nonheart Atlantic (0i. (ion and Firherier Saleiy in the
Iswa.Il luly 1971). Nonhsarlrm Poici6c Ocean off the
r Exchange of Note, bctwecn the Coaii ofCanada(Morcow. 22lanuaiy
GorcmmeniofCanndnandthe Govcm. 1971).
ment of Ponugal concerninp Firheries 4 See W.C. Mackenzie. Firhery Problrrnsint3951 ANNEXES TO REPLY OF THE UNITED STATES 525
theAtlantiROY~IICCIp.reparedfor thecon-
plrgic waling by itr own nntionalr ai the
ferenceconecrning Canada-us. Law of the lime of the fursealdispute.
SenRoblems. Univcnity of Toronto. 15-17 18 Co~da Goz~fe vol 71. 1929.A pralama-
Jvnc 1971. lion. datcd 29 Jsnuary 1938. Io Canadian
5 Morin. supra note 1. ai 06. I4Jd. Order in Couneil. 1193P.C.no 3139.
6 C.J.Colombr.lnrrrnario~ILowofthrS~a 19 For a ment official rtatement theCana-
(6th rev ed. 1967)48. disn positionsecthe riatement by Alben
7 SeeW.E. Masterson, Jurirdicrion in Margi- BCchad. parliamentary aecretary to the
no; Scnr (1929). minirtcrofjurticc. CanadH.C.Drbarrr. 20
8 Morin. supra note 1.a 91. Septsmkr 1971. 8013.
9 G. Chalmer.. cd. A Collrcrion of Traiitr 20 See E.D. Brown. Armr Contml in Hydro-
brrwrcn Grcoi Briioin and Othrr Powrrr spore: kgal Asprc~ (1971)W: alro I.A.
(1790)VOL i. 37941. Knaurr.FoclorsIMurncingo U.S.Position
10 N. MacKcnzicand L.H. Laing.edr.Canoda inA Fururr Law ofthe ScoConfcrrncr.Law
and th< Low of Narionr (1938)8&91. of the SeaInstitutc, Occarional Papr no10
II Morin.supra note 1. si IW5; J.-G. Caaal. (19711;L.S. Ratincr. 'United StatOEesn
Policy: An Analysir' (1971): Journal of
Inirrnorionol Low. Chi& or Int~rpr~trd
and Applicd in Canodo (1%513468. Maritimr Low and Cornmcrcr; ssomewhat
12 L. HertrlctA ColIrcrion of Trtatier dnd unonhodor miliiary vicw. nt kart for the
Convtntionr and Rtciprocol Regulorions time. ir given by G.E. CarliuseNauy. in
'Three-Mile Limit: Obolete Concept'
brivrrn Glror Bririiiand Forrign Powm
(18401vol 8,23940. (1967).O.S. Nova; Inriirure Procecdingr
13 Colombes, rupro mie 6. al 94. 25-33.
14 For teitdCanadian Rcply to the Question. 21 See statement by the Honournble Mitchell
nairerce L.N.DOC C 74(8)L(39(aX1929)v. Sharp.wcrctaryof rtatc for exteml flairs.
This dinèrcnee ktween the Canadian and on introduction of the Arctic Waters Pollu-
British rcplicr ir brought outannunpub tionRevention BiU.inCanada.~.cI>rbatrr,
lirhed repon preparcd by Dean G.F. Cunir 16 April 1970. 5952: 'Secutiiy factoarc
for the povernment of Canadain l9?4. vital to sr wellPI10otherr. It is beeaurc
15 See P.C. Jcrrup. The Law of Teniroriai wc rhaic the concem 10head OR develop
Waars and Marltimr Jurirdiciion (1921) mentr underirableforsommonintereslr ihat
4w. wearkolhcirtater toadoptaflexibleattitude
16 Ibid,363-82; D.M. lohnrton. The Intrrno- whichirreiponsive tonew oeedrandspcial
rionalLow ofFishrrirr(1965)19U2050C 5;ar- circumrtsnccr. and that we wrk theewp
tel.supra note II. at 2%304.u?-9. craiion of oihcr rtatcr andoKcr thcm ours.'
17 Sec L. Oppnheim. IntrrnoiionolLaw,. 22 SecA.E. Gotlieb. 'The CsnadianConiribu-
"011.499, Johnston.rupro noir 16.20s-IO; tion toihcConecplafaFirhingZone inInter-
British and ForeignSroo Poprrr 11892-93) national Law' (19641.Can. Y.B. Int'l L.
val ~xxxv. 1158-67. It it înothcr,of the 58-62.
anomalies of history that the righl of self- 23 Ibid. 6+71; ue alroTh<Law of rhr Sa: A
defencerhould have been oneof the major CoMdionProporol (lW21,and Canada. H.C.
arguments invoked by Canada againrt the Debates. 2s luly 1958,2678-85.
United Statrr. and rejscted by the United 24 SeeH. Lau1erpacht:Sovereignty Ove. Sub
States.in the exchangeof communications marine Arcar' (1950).27Brii. Y.B. InrL.
ktwecn the two countrics in rerpct of -7.
Canada's1970Arctic Waters Pollution Re- 25 Canada. H.C. I>rbarcs.30 Jnnuary 1%3.
vention Act. The analogies klwecn the 3261;Canada. H.C.D<barcr. 20 May 1964.
United Statcr position in the fursealdispute YWIO; ue alro Gotliebsupro note 22. at
andthecanadian poiition~n thecuncnicon 7L5
troreiryw~thDenmarkovcr h,ghuarfishing 26 1964. Can .c 22
foi Ailantir dmon arcobvious Onedire, 21 CanadianOrdrr in Council. 119611 P c no
rnceoffundamrntnilmponinsc.howrvrr .ai 1112
tha Canadahai rtcrntl) put uvrm mnnç. 28 Clnad4 wc I>rhlrr. 20 May 1964.
<ion$ an il< awn A<lsnw vlmon fishng MW12
cffon crrn lnoisirrntonnlwstoi whcirss 19 Ca~ldlan Oidcr inCouncxl 11%n r c no
the UnntedSiater did na forbidothcr than 202s[3g7] ANNEXES TO REPLY OFTHE UNITED STATES 527
men! foi lnlcrnrlional Pesccand10cAmeri- 68 Se sutcmcnrr bY h A.W.H. Ncedkr.
unSociety ofInlemaiional Law.and heldin dcpury reprcrenlative of Canada Io the
Septcmkr 1971: 'The delepiion by the United Natioei Commitice on the Pescchil
inlemlional communily of auihoriiyIO the Urcroflhe Srakdand OcesnFlmr hyond
CO~IIBIIlaleto act asenviranmrntal"cur- the Limits of National Juridiction.Sub
todian" overaponion of theoccan adjacent Commitlce ilGeneva.6Aupurt 1971andby
to itr own coartr. curiently ruggertcd by Mr1.A. Bcerley.le$alAdvirertotheDc~an-
rome.could beprcdicstedonthe thsaryofan mentof Extemal Amirr andReprerenirtivc
international community intcreit. although of Canadato the United Nalionr Cornmittee
in practical facl ils proponcntr are undrr- on the Praceful User d the Seakd and
rtandably more likclIok motivaicd by an Occan Floor kyond the Limiir of Nalional
inlcrcrl in self-protectionthan in proieciing Juri$diction. Sub-CammittccilNcwYork.
th< comm~nily allarge.' 15March 1972.
67 SecRcrolulion. adoptcdal the 1972Annual
Meeting. in Firhtrics CovncilofConodo
Bullrrin(1972111.528 CULFOFMAINE
Annex7
DECLARATIONBCANAD AECOGNlZlNG COMPULSO THYJURISDICTION
THE TERNA NAT CIOUROF JUSTICNCONFORM~N WlTHARTICL36,
PARAGRA2P,OFTHESTATUTOFTHEINTERNATIOCNAULRTFJUSTICE,
NEWYORK7,APRIL1970,72UNTS 64
[Noorreproduced] ANNEXES TO REPLYOFTHE UNITED STATES
NOTE FROM THE SECREIAR OF STATETO EMBASS OF CANADA,
DATED14APR~L 1970
NOTE NO. 105 FROM EMBASS YF CANADA TOTHE UNITEDSTATES DEPARTMENT
OFSTATED , ATED16APRIL1970
NOTE FROMTHE SECRETARYOF STA~ TO EMBASSYOFCANADA, DATED 14APRIL1970
The Secretaw of State oresentshis comoliments to His Excellenw the
Ambassadorof.~anada and has the honor to inform him of the viewsof the
United StatesCovernment regardingcertainlegislation recentlyintroduced by
his Covernment in the Houseof Commons.
LastweektheCanadian Government introduced in the Houseof Commons
twobills dealingwith pollution in theArctic. fishcrics andthelimitsofthe terri-
torial sea.one-of the bills seeksto assertunilateral and exclusiveCanadian
jurisdiction for thepurposeof pollutioncontrol in Arctic watersupto 100miles
from everypoint of Canadianwastal terriiory abovethe60thparallel. Thc sec-
ond bill seeksto authorize the establishmentof a 12-mileterritorial seaOIT
Canada'scoasü.and alsoto establishexclusiveCanadian fishing zonesin cer-
tain areasof thehigh seasbeyond 12miles.
Itisthe view of the United Statesthat theseassertionsof claimsto unilateral
extensionofjurisdiction or sovcreigntyonthehighasarewithout foundation
in international law. The United Stateswill neitheracceptnor acquiescein the
assenionofsuch iurisdiction. Accordinnlv. the United Stateswill bereauiredto
takelawful andGpropriate stepstoprotic heintegrity of itsposition on these
manen.
If Canada had the rieht to claim and exercise exclusive vollution and
resourcesjurisdiction on ïhe highseas.othercountries could assérttheright to
exercisejurisdiction for other purposes.somereasonableand somefrivolous.
but al1eaually invalid according to international law. The result would be
aoarchyÔntheseas.Merchant shTppingwould beseverelyrestricted andnaval
mobility would be seriously jeopardized. Thepotential for international dis-
puteis obvious.
The United StatesGovernment reereü that the Canadian Government has
scenfitIOextendiü territorial seato Ï2milesinadvanceof international agree-
ment on the subject.The United Statesregardsthe watersbeyond the 3-mile
limit ashigh seasin which the usualfreedomsof the seaarenuaranteedunder
long estÿbjishedand universally acceptedprinciples of intekational law. The
United Statesmust.therefore,reserviürightsand thoseof its nationalsin the
watersin auestion,
The ~n.ited States has long sought international solutions to problems
involviitg the high seas.The United Stiscurrently looking toward the con.
clusionof anewinternational treatydealing with thelimit ofthe territorial sea,530 GULFOFMAINE
freedom oftransit throueh and overinternational straits and definine meferen-
tial fishing rights for coastal states on the high seas. The Unitedtaies is also
deeply wncerned over oil pollution of the seas. In this connenion, the United
States las1wintersiened two international conventions establishina the rieht of
a coastai state to taie preventiveanti-pollution measuresagainst vësse~sin the
high seds,and slso imposingstrict liabilityupon the owners of ves,els respon-
sible for pollution. These conventions were concluded under United Nations
auspicesal Brusseis,and ihe United StatesGovernment regretfullynotesthat of
the forty-sevencountries participating in the conference,Canada cast the only
negative vote against the liabilityconvention,despite the eiïorts of the United
States to persuade her ta join construni\,ely in the endeavor.
The United StatesGovcrnment isnirrently seekingnew international means
for wntrolline oollution on the hi~h seac ~oreiver. the United States is
acutelyawareoithe peculiar ewlogi&l nature of the~rkc rcgion.and the po-
iential dangers of ail pollution in that area. The Arcticisa region important to
al1nationcin ils uniaue environment. ils increasine sinnifiZance ai a world
trade rouie and as a &rce of natural résources.TheÜnzed States believes the
watersand iceofthe Arnic heyond national iurisdinion should besubject to an
international reeime orotectine their ~-~~t~.oth livinnand non-livine.To this
end, the UnitedState; intends;hortly to ask other interested statestojrotnin an
international conferencc designed to establish, by agreement. such a regime.
The United StatesGovernment would be oieascd if the Canadian Government
wereto join in such a conference.
The viewsofthe United Statesand those of Canada differ with regardta the
freedom of the hieh seas. As indicated earlier. the United States reiects
Canada's asser1ion;of unilateral jurisdinion. and willnot recognizethei;val-
idity. Accordingly,the United States Government now invites Canada to sub-
mit these differences reeardine ~ollution and fisheries iurisdiction to the
International Court of ~Gtice, th orum wheredisputes oithis nature should
rightfully be settled. With regard to Canada's simultaneous reservation to ihe
compulsoryjurisdiction of theCoun, the United StatesGovernmeni muststate
its disappointment over the Canadian Government's apparent lack of confi.
dence in the international judicial process,and the United StatesGovemment
calls uoon that aovernment 10 ioin withthe UnitedStatesin submittine this dis-
=-.. .. ~~~-~-~ ~ ~~-nite the rëservation.
The historyof ~niied~tates-canadian relations isunique in worldaffairsfor
ils closencss and coooerdtion. Iiis the hooe of the United States that. in this
spirit, the United taies andCanada mayContinue 10share the benefits of cul-
ture and technology,and 10resolve theirdifferencesamicdbly.and withmutual
undentanding.
14April 1970
Washington, D.C
NOTE NO. 105 FROM EMBASSYOF CANADATO THE UNITED STATESDEPARTMENTOF
STATE,DATED 16 APRtL 1970
No. 105
The Ambassador of Canada presents his wmpliments to The Honourable
the Secretary of State and has the honour to refer 10the Secretam's Note of
April 14 oudining the viewsof the Government of the United ~tat& regarding ANNEXESTO REPLYOF THE UNITEDSTATES 531
certain leeislation recentlv introduced bv the Canadian Government in the
House of Eommons. It wilibe recalledthai one ofthese Bills,namelythe Arctic
Waters Pollution Prevention Bill,isintended to protect the delicate emlogical
balance of the Canadian Arcticbv lavine down anti-oollution measures. while
the second Billisintended to extind canada's territorial sea from3to 12miles
and to provide for the subsequent establishment by the Government of new
fisheri& zones
The Canadian Government isunableto accept the viewsof the United States
Government çoncerning these measures and regrets that the United States is
notprepared to acceptoÏ acquiesceinthem.TheCanadian Governmentcannot
accept in particular the viewthat the proposed measures are "without founda-
lion in international law". For tnany years, large numhers of States have
asserted various forms of limited iurisdiction bevond their territorial sea over
marine areas adjacent[O their coalts. The~anadkn Government notesthnt the
position of the United States Government is that the waters beyond 3 3-mile
iimitare hieh seasand that no Statehasa rieht to exercise exclusive~ollutionor
resources Grisdiction on the high seas biyond a 3-mile territori'alsea. The
Canadian Government does not accept this view which indeed the United
States itself does no1adhere io in oractice. For examole. as earlv as 1790.ai a
lime whenthe international nom corthe breadth ofthéierritoriaisca waswith-
out question three miles, the United States claimed jurisdiction up to twelve
miles for customs oumoses and enacted a~oro~riate enforcementieeislation.
This legislation waso;iginally applicable only Covesselsbound for rhë United
Statesbut wasextended in 1922Ioapply 10 al1vcsscls.and isstillinforce.Since
1935.the United States has claimed the authoritv to extend customs enforce-
menlactivities rü Farout to senas 62miles,in clear contradiction of applicable
International Law. In 1964.the United States established exclusive fisheries
iurisdiction bevond its 3-mile territorial sea extendine out to 12miles from
khore. and the-united States has jus1 passed analogois lcgislation asserting
exclusivepollution coniroljurisdinion beyond its3-mileterritorial seaand up
The Canadian Government reserves to iüelf the same rights as the United
States has asserted to determine for itself how bestto protect itsvitalinterests,
includin-.in oarticular its national securitv. It isthe further viewof the Cana-
dian Government that a danger to the ehvironment of a State constitutcs a
threat to ilssecuriiy.Thus, the proposed Canadian Arcticwaterspollution pre-
vent legislationconstitutes a lawfulextension ofa limited form ofjurisdiction
to meet particular dangers, and is of a different order from unilaterial interfer-
ences with the freedom of the high seas such as, for example, the atomic tests
carried out bvthe UnitedStatcsand other Stateswhich,howevernecessarythey
may be,havéappropriated to theirown use vastareas of the high seasand con-
stituted grave perils to those who would wish to utilize such areas during the
period of the test blast.The most recent example of such a test bythe United
Statesand its conseouencesforthe freedom of the hieh seas.aswasoointed out
by somegovernmenk at thiitlime, occurred in~ctoger, 1969,when'theUnited
States warned awavshio~inewithina SO.milesradiusofthetest itwasconduct-
ine at Anchitka ~siand:?hëorooosed anti-oollution leeislation.the orooosed
fikeries protection legislati& and the prop'osed12-milesterritorial &a Gnsti-
tute a tbreat tono State and a peril to no one.
The Canadian Government draws to the attention of the United StatesGov-
ernment that it isa wellestablished principle of international lawthat custom-
ary international law is develo~ed by State practice. Recent and important
inilances of such state practice on theiaw of the sea are, for example,thTN-532 GULFOFMAINE
man Proclamation of 1945oroclaimineUnited Statesiurisdiction overthe con-
tinental shelf and the uniliteral estabishment in 196kby the United States of
exclusivefishing zones. Ovenvhelming evidence that international law can be
and isdeveloped by Stareprdnice liesin the fan that in 1958,al the time of the
fint ofthe recentfailuresof the international communityroreachagreementon
the breadth of the territorial sea, somc 14Sratesclaimed a 12-mileterritorial
sea. whereas bv 1970some 45 states have established a 12-mileterritorial sea
and 57States haveestablished a territorial scaof 12milesor more. Indeed, th;
3-mileterritorial sea. now claimed by onlv 24countries. was itself established
bv,State oraclice.
The ~Aited lat tesovernment isawareof the major effortsmade byCanada
a1the 1958and 1960Geneva Law of the Sea Conferences to bring about an
aereed nile of law o~~the breadth of the territorial sea and on theireadth of -~
cgntiguous zones for the exerciseof various othertypes of limitedjurisdinion.
The United States Government is aware also that subsequent to the failurc of
the 1958and 1960conferencesCanada joined with otheriountries in a further
extensive and vigorous multilateral campaign to bring about agreement on
these questions, and that these efforts failed because the United States ulti-
matelv declined to oarticioate in them. havine delaved its decision bv nearlv a
yeîr during whi~h'~eriociCanada and man; othir memben of thélntcrna.
tional Community deferred raking alrernativcaction. The United States Gov-
ernment willrecall also thdt when in 1964Canada passed legislationestablish.
ing a 9-mile contiguous fishing zone, the United Statesobjened 10 it, only to
followsuittwo years later,thereby confirming itsacquiescenceinboth thesub-
stance and the manner of Canada's anion. The United States Government is
aware also from discussions betwcenCanada and the UniredStates from time
ro time over the lasi ten yean of the scrious concern of Canada over the unre.
soived anestions of the breadth of the territorial sea and the riahts of coastal
states ro assert limited fonns of jurisdiction beyond the terriioÏial sea for the
purposeof protening their vitalinrerests.Withrespect 10rheArnic Waters Pol-
lution Revention Bill,the Unired Statcs willreall the strenuous efforts of the
Canadian Delegation ai rhe November, 1969 lntergovernmental Maritime
Consultative Organiration Conferencc in Bmssels 10 hring about international
aereement on effectiveoollution oreventionmeasures.andis awarehowfar the
r&ultsofrhatconftren&efellsho;r of effective forcoastal states.The
Canadian Government issurprised and disappointed, inlightof thescdevelop-
ments. that ihe United States Government should have seen fit 10 portray
Canada's ncgative voteat the Bmsscl'sConference as a vote against pollution
control, when it is wellknown by al1rhoseconcerned rhat it was intended as a
demonstration of Canada's disappointment al how littlc the conference wds
prepared 10 do to meei the urgent problems of the protenion of the world's
marine environmentand to requirc adequate compensation for damage.
It is wellknown thatCanada takes second place to no nation in pressing for
multilateral solutions to oroblems of internaiional law. and that Canadchas
repeatedly and consistenily shown ils good faith by ii continuing efforts to
produce agrced rules of law. The Canadian Government is, however, deter-
mined to fulfil iü fundamental resoonsibilitiesto the Canadian oeoole and to
the international community for the protenion of Canada's offshore marine
environmenrand ils living -esources,and the pr. .scd legislationisdirecredto
these ends.
Canadian Government has long been concerned about the inadequacies of
international law infailingto givethe necessary protection 10 the marine envi-
ronment and to ensure the coisenation of fisheries resources. The proposed ANNEXESTO REPLY OFTHE UNITED STATS 533
anti-vollution legislation is based on the overridina ri& of self-defense of
coasial statesIO protect themselves againstgravethrëats-to thcir environment.
Traditional principles of international law wncerning pollution of the sea are
based in the main on ensurina freedom of navigation to shivvinn states. which
arc nowengagedinthe large Gale carriagc of ozand oiher Gcnsal polluiants.
Such traditional concepts are of Iittleor no relevanceanywhere in the world if
thev can be cited. as is the case in the Secretarv of Slate'snote. as vrecludinp.
act;on bya coastal stateto protectthis environment.Such conceptsarc particc
larly irrclevdnt, however, to an area having the unique characteristiçs of the
Arctic,wheretbere is an intimate relationship between the sea, the ice and the
land. and wheretheoermanent defilement ofthe ~nvir~ ~ ~ ~ ~uld ~ ~ ~u~ ~nd
resuit in the destmciion of the wholc species.Il isidle,moreover,in the viéwof
the Canadian Governmeni iotnlk of freedomofthe highseas withrespectto an
area. large varts of whichare wvered with icethrouehout the vear. oiher oarts
ofwhichaie covercd withicefor mort ofcach year.and whercihe l'ocalinhabi-
tank use the frozen sea as an extension of the land IOtravel over it by dogsled
and snowmobile far more than thev can use it as water. While the canadian
Governmeni is detcrmined to open.up the Northwest Passage IO safe naviga-
tion, itcannot accept the suggcstion that the Northwesi Passage wnstitutes
high seas. In these &cumstances the Canadian Government isBot prepared
to await the gradua1development of international law, eitber by other states
through their slate practice nor through the possible development of mles of
law through multilateral treaties. The Canadian Government has repeatedly
made clear tbat it isfully prepared to participate activelyin multilateral action
aimed at producing agreed safetyand anti-pollution standards and the protec-
tion of the livin- resources of the sea. but it is no.vre.ared to abditate in the
meantime its own primary responsibilitiesconccrningthese questions.
With resuccttothe Billwhich wouldauthorize the establishmentofa 12-mile
territorial Seaoff Canada's wasts, the Canadian Government notes that the
United States "regardsthe watersbeyond the 3-mile limit as high seas in which
usual freedoms ofthe sea are guaranteed under long establishedand universally
accepted principlesof international law". In lightof the largenumber of coastal
states nowclaiminga territorial seaof 12milesor more,the Canadian Govern-
ment queries the existenceof "univenally accepted principles of international
law" concemine the status of the 3-mileterritorial sea and the area bevond.
Indced, it is thë\,iew of the Canndian Govcrnmcnt that receni efiorts of the
United Statesdirectedtowards a mle of lawon the ieniiorial sca. rightsof pas-
sanc.and fisheries iurisdiction vrovider ihc best cvidenceof the validitvof the
Canadian position-on ihis quc'stion.The Canadian Governmeni is akare of
United Stares interesr in ensuring freedom of transi! through international
Straits.but reiectsanvsumestion that the Northwest Passageissuch an interna-
tionalstrait. jhe widesGad interest in opening up the forthwest Passage to
commercial shipping and the well.known commitment of the Canadian Gov.
ernment Io this end are themselvesamvle roof that ithas notheretoforebeen
possible to utilize the Northwest passageas a route for shipping. The North-
WestPassage has not attained the status of an international strait by custom-
ary usage nor has it been defined as such by wnventional international law.
The Canadian Government reiteratesils determination to open up the North-
WestPassage to safe navigation for the shipping of al1nations subject, how-
ever.to necessarvconditions reauired to orotectthe delicateecolonicalbalance
of[s;cj~ïnadian~rctic. TheCinadian C'overnmentispuuled byThereferencc
in the Secretaryof State'snoie io the United StatesGovernment's"disappoini-
ment overthc Canadian Govcrnment'sapparent lackof wnfidence inthe intcr-536 GULFOF MAINE
coastal state in a zone of the hinh seas which does no1extend bevond twelve
miles [rom the coast or approi>riatc baselines. This is clearly siated in the
United Nations Convention on the Territorial Sca and the Contiguous Zone.
The recent amendments to the United States Federal Water PollutionControl
Actexplicitly referto the criteria of that Convention.
The United States strongly supportcd the efforü of the United Nations 10
codifvthe law of the sea. sianed and ratified the four United Nations Conven-
tionson the Law of the'se;, and has taken no action inconsistent with those
Conventions. If neither sought nor obtained recognition of any coastal state
iurisdiction over navination in a zoneof the hieh seas extendinn bevond twelve
hiles. The 1935 legisration referred to by the-~overnment of-~anada in faa
explicitlylimitsthccustoms watersof the United Statestotwclvenautiwl miles
from the coast. Iü orovisions with respectto vesselshoverinn on the hinh seas
withinfiftymilesbiyond customs watersand engaged in liqÜorsmugglGginto
the United Statesare inapposite: they haveno1inanyevcntbeen enforcedsincc
the 1958United Nations Conferenceon the Law ofthe Sea.The establishment
of an exclusivefisheries zone in 1966extending to twelve milesfrom the coast
was consistent with the position taken at the United Nations Conferencesby
nearly everystate attending, including Canada, and followed similar action
agreement on such action by nearly al1 other maritime nations, including
Canada.
The Government of Canada has also referred to the United States nuclear
test at Amchitka.Thistest wasconducted ina manner consistentwiththe treaty
obligations of the United States and international law. The United Nations
issuëd no orohibition of navigation on the hieh seas; the fortv-ein.t-h-ur
suspension'ofinnocent passagëwithin the threermileterritorial sea surround-
ing Amchitka was in accordancc with the provisions of the United Nations
Convention on thcTerritorial Seaand the Contiguous Zone. In issuinga warn-
ingof the testto vesselson the highseas inthe area. the United Statesconsiders
that it wasacting in furtherdnce of iü obligations to other nations and interna-
tional shiooine.The United Nations Conventiononthe Hiah Seasreauires that
the freed8r;isof the high seas be exerrised wiihreasonab~ëre~ard to'rheintrr-
esü of othcr statcsintheir exerciseofthc freedomsofthe high seas.The United
States considersthat this standard was fullysatisfied.
Althoueh freauent reference is made to ~ ~~1~45Truman Proclamation on
the ~onti&ntal Shelftojustify a variety ofunilaterdlactions, the United tat tes
must point out that it did not in 1945or thereafier receiveany obiection from
anv oiher state re-ai~ ~ ~the Tniman Proclamation. Unlike ihe waters of the
h<hseas,Ïhenaturai rGources of the scabed and subsoil of the continental
shelf beyondthe territorial sea had not beenthe subjectofdeveloped orinciples
of intemational law or extensive leeal studv or discussion. Such orecedeil as
did exist tended to support the u>nGpts ofthe Truman Proclam~tion.Never-
theless,the Tniman Proclamation wasfollowedby extensiveand unreasonable
assertions of soverei-,tvor .urisdictionoverthe IÏinhseasbvsomestateswhich
wereclcarlyin contravention of applicable princiGes of in;ernational law and
whichresultcd in international dispute. It isthis exocrience in particular which
convincesthe United Statesthat unilateral action,ëspecially aÏa time when so
many channels for international action have been developed,is unwarranted
and unwise.
The United StatesGovemment isdeenlvconcerned al the possible~receden-
tial effeat of Canada's action in takinitiese unilateral proiective mcasures in
the presentcircumstanccs.That concernprompted the United Statesto suggest,
in the Senetary of State's note of April 14, 1970,that Canada ioin with the ANNEXES TO REPLY OF THEUNITEDSTATES 537
United States insubmining thesejurisdictional dilïcrenccs 10the lntcrnational
Court of Justice.The United States is pariicularlv wncerned with the implica-
tion in the Canadian Note-~~a~ ~~~~ ~Ïernationai Cou~ ~of J~ ~ ~e c~nn; oer-
form an adjudicatory function when in the view of one of the panies to'the
dispute,the international law relevant to the dispute is "deficient". The Coun,
as a judicial body expresslywnstituted to rcsolvedisputes berweennations, is
fully capable of applying and dcveloping the law in terms of contemporaiy
problems.Accordinaly,the United Statesreiterates its invitationto the Govern.
ment of Canada to j& with the Governmentof the United Statesissubmitting
these questions ta the Court.
At the same time, it should be clearly understood that submission of these
issues to the Court has no direct relation to the convening of an international
conference on the protection of the Arnic environment or to the resultsof that
conference.The Government of the United Stateswelwmes the interest of the
Government of Canada in such an international conference and once again
notes with pleasure the Prime Minister'sproposals in this regard. The United
States believes that such a wnference should be wnvened at the earliest pos-
sible lime with a view taachievingearlyagrecmenton appropriate mcasuresIo
protect the Arctic environment. Such a conferencc would bewnvcncd for the
purpose of creatingnewtreaty lawand therefore wouldnot need to await deci-
sions by the Court on the validity of unilateral protective measuresor to take
such decisions into account.
The United States Governmenr aarees that the international wnference on
protection of the Arcticenvironmeni should be limited to mattcrs properly of
international wncern. The government of the United States does not believe
th31differina viewsregardinp.the unilatcral enactment of the protective mea-
sures proposid by the Caoadyan Governmentshould prevent the achievement
of international agreementon effective,permanent measuresto protectthe Arc-
tic environment.
The oroblem ofoceanoollution knowsnoboundaries. Oilsoilledonthe hieh
seas hindreds or thousands of miles away can be washed O; shoreby unpre-
dictable currents and winds. The problem cannot be resolved effectively hy
unilateral stateaction: such action willinevitablvlead to conflictine assertions
of jurisdiaion and standards of regulation, whëreas the dangers if pollution
cal1for the highest degree of woperation between nations and a siandardized
a..roach to rieularion and wntrol.
Forthese re&ons, the United Stateshasstronglysupported. and continuesto
support, elïorts at international agrecment to protect the ocean environment
and the adjacent wastlines. The United StatesGovernment willgive urgentand
serious consideration to the adoption by international agreementof standards
and mcarurcr dcsigncd to protect the Arcticenvironment.
Department of State,
Washington, D.C., May 5, 1970.538 GULF OF MAINE
Aooex 9
STATEMEN BT ~BASSAWR CADIEUX L.EGAL D~SCUSS~O CO NCERNlNG
14OCTOBER 1977
As a state Canada has long been a oromoter of the mle of law because it
offers the best hope for securrng rightsànd intercsts in the international areas.
It is. therefore, not by accident that Canada, over the ycan, kas consistently
suooorted the develooment of a coherent and comorehensive reaime of inter-
nai;onal law and soughr earnestly to ensure that it; policies anZanions con-
rom to the established and cmcrging noms of applicable international law.
Nor is it sumrisine that in the oresent decade two Under-Secretaries of the
Department 8f ~xcmal Affain have at one time also served as Legal Advisen
to this Department.
The Government of Canada considers that itscommitment to the mle of law
implies an obligation to review ils policics and positions in the light ofthe pro-
gressive developmeni and clarification of international law through the pro-
cesses ofTreaiv-makine-.codification..iudicial dccisions. state nractice. and the
writings of emincnt jurists. In the absence of a situation of estoppcl. Statescan-
not and should not be bound by positions or policics which, as a consequence
of the clarification or develooment of leeal noms. no longer conform to-aonli-
cable principles and rules of ~ntcrnationil law.~oado~i :contravview wild
noi only impede the development of international law, but would also consti-
tute a serious obstacle to the settlement of disputes through negotiation and
-~~~~~r~~c~~~~~~~~~~~~-
The Unitcd States' Government. I assume. holds similar views. Your actions
with respect to continental shclf delimitarion in the Gulf of Mainc/Georges
Rank area are evidence of your approach to these mattcrs. As you know,
Canada issued oil and ga5pcrmitr on Georges Bank up to rhe equidistancc line
in 1964/65.?he resoonsible USA oNicials were wcll aware of what we did and
they acceptcd the p;inciple ofcquidistance as a method of delimitation and did
not question the validity of the Canadian pemits. I do not proposetoaddress
now the question of whether an estoppel was created by the USA actions and
statemenk at that time. as vou are alrëadv aware of our Üosition onthis maiter.
It was only in ~ovember i969, following the decision 8f the ICI in the North
Sea ContinentalShelfcases, that the USA Government indicatedthat it did not
acceot the aoolication of the eauidistance orinciole to the Gulf of Maine/
~co;~es ~aik'area. In rhe bilatkal discussions wiich look place in 1970and
anain in 197976. ir became clear that the USA noaition in the Gulfof Maine/
Georees Bank a~earested essentiallv on the USA intemretation of that ICJ
decisron and on the clarification anilor development of the applicable inter-
national law which, it helieved, this decision reoresented.
Many govemments have eagerly awaited the recent Award of the Anglo-
French Court of Arbitrdtion on the Dclimitation of the Continenral Shelf and
have given ihdt decision careful study. As the fint iudicial decision on contin-
ental ihelf delimitation rendered between oarties tothe 1958Genevacontinen-
tal Shelf Convention, its relevance to mariiime bounddry delimitation berween
Our rwo countrics is obvious. We on the Canadian side have wnsulred with ANNEXES TO REPLYOF THE UNITED STATES 539
eminent international jurists familaiar [siclwith the case.We areof the view
that it would be most useful for both Canada and the USA to review their
respectivepositions in the light of this signal Award. We havealrcady wrried
out suchareviewwith respectto theGulf of Maine/Georges Bankareaandarc
stilin the Drocessof assessinnthe impact of the Award on the other Canada/
USA marihme boundaiy are&. rodai. wc would like to haveasfull and frank
anexchangeof viewsaslime allows on the relevanceof the Award 10thc Gulf
of Mainc area.and leavethediscussionof theothcr areasfor alaier meetinn.1
think ihatitwiil bc usefulto youandmayhelpournegotiations ifyou areaware
of the most recenttrendsin Ourihinking at the oNicial leveland of theadvicc
which islikely to bc availableto Canadian polirical leadersasthey maketheir
decirions on matterswhich arewithin Ouriermsof reference.WChopeio profit
additionally if you will reciprocatc andouiline to us how you intcrpret recent
developments inthe relevantmles of international law. Our respectiveleaders
will alsoappreciatehaving information on our respectivepositions.540 GULF OF MAINE
Annex10
MARITIM BOUNDAR SETTLEMETNRTEATYND EASTCOASTFISHERY
RESOURCE AGREEMEN HT: RINGBEFORETHCOMMITT ENEFOREIGN
RELATIONSUNITEDSTATESSENATE9, THCONGRES2S, DSESSIOP,.1-9,
18-2AND 74-76(15-1hRlL 1980)(STATEMENOFSSENATO RLL,SENATOR
COHENS ,ENATOCRHAFEED,EPun SECRETAROYSTATECHRISTOPH ERD
SENATOW REICKER)
[Nat reproduced]
Annex11
COMMI~T EEFOREIGNRELATIONU S, ITSTATESSENATE8,6~~CONGRESS,
NDSESSIONR,H>RT ON THCONVENTIO NNTHE LAWOF THESEA,
EXECUTIV REPORTNO.5, DATED27&ML 1960
HEARIN GFFORETHCOUMITTE O[ FOH~.IGR~ELATIONS. IISTATES
Sr~~ri, 86~~CONGKES2Su,n St:sONoEurcLTivtJ,K.L,M AND N
(THE1958LAW OFTHESEACOIVENTIO~S 20,JASLARY1960PP.82-93
[Nat reproduced] ANNEXESTO REPLYOFTHEUNITEDSTATES 541
Background
The subject of continental shelf delimitation has becn under discussion
betweenthe Canadian and USAGovernmenü since 1970.but thesediscussions
have notas yet led to agreed Settlements.The extensionby both countries earl-
ier this vear of fisheriesiurisdiction to 200mileshas created an ureent -eed~to~ ~ ~-
settle thé outstanding is;uesof maritime boundary delimitationbetwcenthem.
The four areas in which the question of Canada/USA maritime boundaries
must he addressed are in the Gulf of Maine/Georges Bank area, scaward of
Juan de Fuca Strait, seawardof Dixon Entrance. and in the Beaufort Sea.
Canadian and USAfishermen have iraditionallv fished on the hinh seas off
theCo~s~ ~ ~ ~thercountrv and, ~ ~ ~ .ursuanttoreckrocal~ ~ ~e-entc- in~ ~as ~ ~ ~ ~
falling under the other country's jurisdiction. In order to prevent a dislocation
of these fisheries and 10 oromote the mutuallv beneficial develooment of the
marine resources in the boundary areas, il isnëcessary ta negotiaie a new fish-
eries relationship which will take awunt of the realities of the 200-miles
regime and, at the same time, reflect the unique and longstanding tradition of
friendship and cooperation which has characterized Canada/USA fisheries
relations.
ApplicableInternational LAW
Sinceboth Canadaand the United Statesare oarties to the 1958GenevaCon-
vention on the Continental Shelf,Article 6 of the Convention isthe applicable
mle of lawforthe determinaiion oicontinental shelfboundaries betweenthcm.
Article 6of the Convention providesthat continenlal shelfboundaries "shallbe
determined by agreement.. . In the absence of agreement, and unless another
boundary lineisjustified by special circumstances,the boundary isthe median
(equidistance) line ..."
Since the reeime of 2ûû-milesfisherv zones is new. there is relativelvlittle
established leial guidance with resp;ct to the delimitation of such'zones
between adjacent or opposite states. However,it is assumed that, for oractical
reasons. inmost instances states will adoot the same boundaries for iisheries
jurisdigion as forcontinental shelfjurisdiction.
USAPosition
The United States hastaken the position that the mle laid down in the 1958
Geneva Continental Shelf Convention must be intemreted in the linht of the
1969decisionofthe International Court ofJustice inthe North Seacontinental
Shelf Cases.The United Statesmaintains that a maritimeboundary in the Gulf542 GULFOF MAINE
of Maine area should reflect "spccial circumstances" which iialleges exirt in
the area and, spetifically, ihat a maritime boundary in accordance with "equi-
table principles" should allocate al1of Georges Bank 10the United States. In
the viewof the United States.the concaviiy of the New England coastline and
the wnvexity of the Nova Swtian coastline causes an equidistant line to be
"oulled toward the United Statescoasiline.therebvcreaiinn a houndaw ihat is
iot in accordance with "equitable principles''.AIS&the ~Gted States believes
that the geological,geomorphological,and ecologicalnature of Georges Bank
indicates that it is physically and legally the "natural prolongation" of the
United States and that a boundary in accordance with "equitable principles"
should reflect this alleged fact. An important point of the United States argu-
ment is that the proportional relationship betwcen the lengths of the relevant
coastlinesshould be reflectedin the area to be delimited.
CanadianPosition
The Government ofCanada isof the viewthat, as both Canada and the USA
are oarties to the 1958Geneva Convention on the Continental Shelf.thev are
bound to settletheir continental shelfboundaries in accordance with.the con-
ventional regime and, in particular, with the equidistance-special circum-
stances mle Set out in ~rticle 6. Since it does no1believe thil anv "soecial
circumstances" exist in the Gulf of Maine/Georges Bankarea, it holds that the
boundary should he deiermined by the applicdiion of the equidistance prin-
ciple.
Canada docs not accepi that the regimeof customary, internaiional law. as
defined and applied by the International Court of Justice betwccn Statesno1
hound by the Continental ShelfConvention, isapplicableto the deiermination
of continental shclr boundaries bctwcen Canada and the USA. Moreover it
docs no1accept the fanon identified by the International Court of Justice as
being Iegallyrelevant to the delimitation of the continental shelf boundary in
the North SeaCases arc prcscnt inthe Gulfof Mainearea. In pariicular. itdoes
no1believcthat the geology,geomorphology.and ecology ofthe area show that
Geornes Bankisthe "natural orolonaaiion" of ihc USA.IIbelievesthat models
haselon a proportional relaiionshii betwcen the length of coastlines and the
areato bc delimiied can be consimcted accordingto varyingniteria and can be
used 10suooort the oositions of both aovernments. It mai&ins chatthe wast-
line of ~8<a ~cotiamust be accordeddue weight in the delimitation of mari-
time boundaries and that the wncavity of the coast in that area is amply
wmoensated bv the oeninsula and islands orotmdina seaward of Massachu-
setts'in the are; of cape Cod. Thus, cven ii the regimeof cusiomary interna-
tional law based on "cquitablc principles" as defincd by the International
Coun of Justice wcre applicable in the Gulf of Maine area - a proposition
whichthe Government of Canada does no1accept - Cdnlidaisof ihe viewthai
the most equitablc mcans for determining the boundary would be ihrough the
application of the principle of equidistance.
Canadian oficials ~re~ ~ ~~ ~~ ~ ~ ~at Canada's leeal oo-it~on is strene-
thened by the Fa'?that is has exerksed juriidiction over the continental sh2f
through the issues ofoil and güs permits up to the linc ofequidistancc daiing
from 1964.In 1965,thcre was an exchange of letters betwcen Canadian and
USAofficials inwhicha USAofficial. incffect.indicatcd tacitagreementto the
equidistance line as the continental shelf boundary between the two countries.
.4ithough the USAgovernment was aware of the Canadian permits, itdid no1
formallyindicate its dissent until 1969. USArejected the validity ofCanadian exploraiion permiis
forany part ofGeorges Rankand proposed negotiationson
delimitationof thecontinental shelf.
Canîda/USA ralksin whichCanada claimed equidisiance
boundarv and USAaraued for boundary following North-
.-..
USAinformed Canada that the Depariment of the Interior
would be calling for oil and gas nominations inthe Gulf of
Maine are3includingthat part of Georges Rankclaimed hy
Canada. and thar the United States Geological Survey
would becondunina drilline.-.eraiions. Canada protested
proposed ~~~actioÏn.
Canada protested promulgation by USA under Bartlett
Au of sedentary species fisheries limits (Le. "lobster
limits")nimingthroughtheNortheast Channel.
December, 1975- Canada/USA talks in which both sides elaborated their
May, 1976 respectivelegalposition ontheGulf of Maineboundary.
July, 1976 Canada/USA talks which were broadened to include
(a) delimitation of fisheries zone as well as continental
shelf, and (b) al1 four maritime boundaries, i.e. in the
Gulf of Maine, seaward of Juan de Fuca Strait, seaward
ofDixon Entrance, and in the Beaufort Sea.
September, 1976 Canada/USA talks focusingon resourcearrangements.
November 1,1976 Canada published proposed Order-in-Council extending
fisheries jurisdiction to00 miles on Atlantic and Pacific
coasts. Proposed Order included coordinates of fisheries
zone, plus clause stating that coordinates were without
prejudice toboundaries negotiations.
November4.1976 State Department published Notice in U.S. FederalRegis-
terstating it did not accept al1of the Canadian coordinates
and settingout wordinates ofits continental shelfand pro-
oosed fisheries iurisdiction. Coordinates werewithoutpre-
judice to boundaries negotiations.
December, 1976 Canada fomally advised USAthat a number of ils coordi-
nateswerenotacceptableto Canada
January 1,1977 Canadian 200-mires fisheries zone came in10 effect.
Canada exercised unilateralforhearance in the exercise of
iü jurisdiction against USAfishermen.
Febmary 24,1977 Signature of Canada/USA interim fisheries agreement for
1977 following Prirnç MinistcrTmdeau's visit 10Washing-
ton.
March 1,1977 USA200-milesfisherieszonecameintoefîect.
SinceMarch I Canada and USA have applied provisions of interim fish-
eries agreement on a provisional basis, pending Congres-
sionallegislationratifyingthe agreement. ANNEXESTO REPLYOF THE UNITED STATES 545
Aooex 13
"EXTENSIO NFFISHERIE ZONE*' N,OTESFOR ASTATEME NYTTHESECRFTARY
OFSTATE FOR EXTERNA AFTAIR H,EHONORABL DEONJAMIESO NN,THE
House OFCOMMONO S, TAWA 1,9NOVEMBE 1976
Istated in the House on November 5, 1976,that 1would be reponing on my
recentialkin Paris regardingCanada/France fisheries questions. Ipropose to
do that todav but fint 1thinkit would be usefulto review-ina moreeeneial wav
dcvelopmeks relating to the implementation ofour 200milefisher'ies.one.
The decision to extend our fisheries zoneson the Atlantic and Pacificcodsü
was taken in linht of the ureent need to hall the raoid deoletion of Ourfish
siocksand arresÏthe declinelofour inshore fisheries industry,a situation which
had reached crisis proportions. Thc urgent nature of this problem required us
to take anion before conclusionofthe Lawofthe SeaConference wherefisher-
ies questions are among the manv matters being discussed. Nevertheless the
new extcnded jurisdiction is in coiifomity with the consensus emergingat the
Law of the Sea Conference. The ~rinciole is now fimlv embodied in the
Revised SingleNegotiating Text th& a coktaalstate has thésovereign right to
managethe livingresources of the seas in a 200milezone adjacent to itsshore-
line.The main features of the new Canadian regimearebased on the relevant
provisions of the RSNT.
A number of countries have enacted, or are soon to enact, 200 mile zones
includine Mexico. Nonvav. Denmark. France. the U.K.. and the U.S.A.Most
recently,ïhe ~ore&n ~inisten of the Nine akeed taEuropean Economic
Community 200mile fisheries zone should be in place as of January 1. 1977.
Alt~~etherihereare now some50states whichhave already,or willsoon estab-
lish extended fisheries zonesbeyond 12miles,and in manycases,as far as 200
miles.
Thus from the standooint of both emereine treatv law and cumulative state
pranice thereis a souid basis in internatronal law-for the anion Canada has
taken to protect the living resourcesin watersconiiguous to its shoreline.
canada has not onlv acted in accordance with emernine international law
but hasalso madeevej eiïori to take in10account ihe iiteFestsof those states
directly affected by Ourextended jurisdiction. Wehave beenconscious of the
need to avoid disvutes with other countries stemmine from.our new fisheries
management regime.Forihis reason.Cdnada has laken a numberofsteps inter-
nütionally,aimed at achieving a smooth transitionto our new200milejurisdic-
lion regime.
Our fint priority was to obtain agreement within ICNAFon fishing quotas
for the calendar year 1977which wouldcorrespond to Canadian requirements
within thc 200 mile zone. At Canada's insistence. total allowable catches of
stock have been set lcvelslowenoughIo ensure r~huildin~of threatened spe-
ciesovcra period of iime.There willbe a turther meeting ofICNAF in Decem-
ber in spain to deal with the quotas on a Fewremaining;tocks.
The Commission, al Our urging, is in the process of examining the role it
might play in future. We have givenrmal notice of Canada's intentionto
withdraw from the Convention. as has the U.S.A.1am hooeful, however.that
ICNAF can makethe neccssaryadjustment to Canada's eiclusive jurisdiction,
management and enforcement in the 200milezone,and that newarrangements546 GULF OF MA~NE
will preservethe longtradition of international cooperation,particularly in the
~ ~ ~ ~ -~~~~~ ~fic research.which hasnrownun within the Commission.Onthis
basis Canadacould continue to @aya full and anive part in the work of the
Commission. After the Decembcr meeting,we will be in a better position to
assesswhat Ourattitude toward ICNAF should befor the cominn vear.
Our next priority wasto negoriatebilateral agreementswith thosecountries
which together accountfor almost90%of theforeign fishing operationsoffour
coasts.fie Government-hasnow concluded an intensive round of bilateral
negotiations,and fisheriesagreementsarenow in placewith Norway, U.S.S.R.,
Poland,Spainand Portugal.Theseagreementssetout thetermsandconditions
that Canada will apply in permitting foreign fishermen, under Canadian
managementand control, to harvestcertain stockssurplus10Ourneeds.
In addition we have required the submissionof ïishing programsfrom al1
membersofICNAF who wishto fish offour coastsin 1977.This information is
essentialin order to ensurethat theseprojened fishing operations arc com-
patible with thequotas establishedby ICNAF with Canadian concurrence.
The orohlemsonthePacificcoast arenolessimnortant andwearetakinn the
stepswhich weconsider necessary10ensurethat 'Canadianjurisdinion inour
ncw Pacific zoneiseffective.Our recentbilateral agreementswith the U.S.S.R.
and Poland coverthe Pacific coastand we areenëaein-- - inconsultations with
oiher countries that havepreviously ïished there.
Thc Government will also take earlyanion to promulgate ancxtcnded fish-
erieszonein theArnic. Thereisnoforeign commercialfishing in watersoffthe
CanadianArnic coastnor aretheredepletedstocksrcquiring urgent conserva-
tion measures.However.the Government isfully alive to theneedto safeguard
the fishing intcrestsof the Inuit and 10provide for the future developmentof
fisheriesin theArcticarea. ConsequentlytheGnvcrnment hasdecidedto bring
inio force a200mile fisherieszonein the Arnic hy March 1,1977.
1haveoutlined the stem we havetaken to ensuÏea smoothtransition to the
200 milejurisdinion regi;ne.The responsehasbcenencouraging.Nationsfish-
ing offour coasts haveshownawillingnessto adapi ta theFansof the resource
crkis andto the new legalregimewhich Canada iihringing in.
1 now wish to draw your attention to an important aspectof the notice of
Order-In-Council tabled by my colleague,the Minister of Fisheries and the
Environment.on November2.namelv.theaeonra~hiccoordinatesdefininn the
fishing zones'in which canada wili be ëxe&s(ng jurisdinion. If memxers
agree.I would bepreparedto table mapsprcparedby theCanadian Hydrogra- '
phic Serviceillustrating the newzonesasprescribedby the coordinatesin the
Order-ln-Council. Thcsc coordinates raise maritime houndary implications
with neighbouringcountries.TheOrder-ln-Council makesexpressreference 10
boundarv delimitation talks with the U.S.. Franceand Denmark and affirms
thüt thc imii, of theCanadianfishing zonesasdefined in thc Order are.'with-
OUI preiudice to any negotiationsrespectingthe limits of maritime jurisdiction
The United StatesGovcrnmeni has responded to the publication of the
0rder.h-Council by issuingin the form oïa Noticc in their FederalRegisrerof
November 4, 1976.alis1of coordinatesdefining thelateral limils of ilsprospec-
tive fisheries zone, as well as ils continental shelf in the arcas adjacent to
Canada.In anumberof areastheselinesdifferfrom thecanadian coordinates.
Wedo notacceptthcselinesandwearesoinformingthe United StatesGovern.
ment through diplomatic channels.I am pleasedto note howeverthat theU.S.
Governmenthasmirrored theapproachtakenin theOrder-In-Council by mak-
ing itclear in the t'ederal Reg~strrNotice that the coordinaies thercin are ANNEXESTO REPLYOF THE UNITED STATES 547
without prejudice to any negotiation with Canada or to any positions which
mayhave beenor maybeadopted respectingthelimits of maritimejurisdiction
inthe boundary areasadjacentto Canada.
Durine mv visit to France.1had theoccasion10discusswith the FrenchFor-
eign~i~st~rour plan5for extensionofjurisdiction by~anuaryI in thearea off
Oureastcoast.At that lime precisely,on Novembcr 3.the EuropeanCommu-
nitv officiallv announcedthedecision takenbv al1memberwutÏtries to extend
thAr jurisdiftion over fisheriesto 200milesbi January 1,1977.While the new
managementregimewill be decided by the Community, the determination of
the exactareasCobebroueht under exfendediurisdiction. of course.continues
to belongto theindividuarmember countrics,and the malterof delimitation of
watersofïSt. Pierreand Miquelon remainsaquestion for Canadaand France
to work out. What 1panicularly uished to underline in Pans,and my French
colleaguewasquick to respond favourably, relates to the urgentneedfor both
Our countries to put in place by the end of this year interim arrangementsin
waterscloseto the Frenchislands. Sucharrangementswould avoid coniiining
lishencs regulations,on matterssuchasenforcementand licensing. I am wn-
rident that as a result of those discussionsin Pans,both sideshavea kecncr
appreciation of the necessityof early agreementon thesearrangemenü.
Interim arrangementsareespeciallynecessaryin theabsenceofagreedmari-
time boundanesoiïthe coastsof the Frenchislandsof St.Rerre and Miquelon.
While France hasgiveniüelfenabling legislation to extendjurisdinion ofïany
of its coasts,thcre has beenno indication to date by Franceof its intentions
regardingtheareaoff St.PierreandMiquelon. In thepreambleto the Order-ln-
Council extending jurisdiction, we clearly indicated that the establishmentof
an extended fishingzone isnot intendedto prejudice ongoingconsultationson
the delimitation of waterswith France,and this matter is also bcing pursued.
Another important factor in Ourfisheries relationswith France isthat thebi-
lateral fisheries agreementconcluded in 1972grants certain rights to French
vessels.and in ~articular. to vesselsre~istercdin St.Pierreand Miauelon. in the
areasthatarenow undercanadian juÏisdinion. that is,in Our12m'ileteiitorial
seaand in theGulf. Theserighrs, a hich areno1modificd by thecrcation of our
new zones. were nranted in exchanae for the abandonment bv France of
important treaty r&hts in extensiveareai dating back to the time of French
settlementin the area.Similar rights weregranted to Canadian vessclsoiï the
coastof St. Pierreand Miauelon. We havemadevcrv clear to the Frenchthat
therightsgrantedto their ;esselsby thisagreementaréexclusiveto France,and
cannot in any way beclaimed or exercisedby other membersof the European
~ ~
Community.
The 1972bilateral agreement also refen to the possibility of extension by
either country.In Article 2,the AgreementStatesthat eachwuntry will, in the
event of a modification of the areasunder ifs iurisdidion. undertake on the
basisof reciprocity to recognize theright of nGionals of the other country to
continue to fish in themodified areas.undermlesand regulationsto bcapplied
by the country having jurisdiction, including, in ouÏview, regulatiois on
quotas,licensing andenforcement.548 GULFOFMAINE
D. SHERWI"NC, OMMENTA RYF.,T.CHRISTYR,.,A.CUNGAN J,R.,
J.K.GAMBL JR,.H. G. KNIGHTNDE.MILES ,DS.,LAWOFTHESEA
PP193-197
[Not reproduced] ANNEXESTO REPLYOF THEUNITEDSTATES 549
AIDE-MÉMOI RROM EMBASS OYFCANAD AO THEUNITED STATES
DEPARTME NFTSTATED, ATED7 MARCH 1983
AIDE-MÉMOIREFROM EMBASSYOF CANADA TO THE UNITED STATESDEPARTMENTOF
STATE,DATED 7 MARCH 1983
Canadian Embassy Ambassadedu Canada
Canadian and U.S. negotiators initialled a draft Pacific Salmon Treaty in
Febmary. 1983.In presentingl10the Government of Canada and the Govern-
mentofthe United States,they expressedthe viewthat itrepresented "a fairand
balanced accord whichwill permit both Panies to ovcrcome severeconserva-
tion problems and provide opponunities to increase production through
enhancement",
The Canadian authorities have notedthe press release issued by the Gover-
nor of Alaskaon Febmary 21indicatingthat he wasnot prepared toendorse the
draft Treatvand that hescallinn forfurther nenotiations.Suchviewsare no1
limitedto the United States.lmpoÏtant elemofthe Canadian fishingindus-
trv have indicated their o~position Io the dmft Treaty.
-11isnow upto the canadian and U.S.Governmen&todecide whether10pro-
ceed withthe draft Trcaty, on the basis of their own perceptions of the balance
of advantages and disadvantages it may ofler. In any event, however,so far as
the Government of Canada is concerned. tstaruouocannnt be maintained.
The Canadian authorities believe that iiwill be difiicult to continue the pro-
gress that has been made in the regulation of intercepting fisheries on an in-
formal basis over the past Iwo years, in anticipation of the conclusion of the
Treaty.The followingpoints, in particular, should be noted:
(1) Although theCanadian authorities would stillseek to develop cooperative
arrangements to rebuild depressed chinook stocks.ould be unreason-
able to expect them to take the necessary measures in the sport and com-
mercial fisheries without corresponding action in Alaska.Chinook conser-
vation is a matter of serious concern to both sides. as evidenced by U.S.
Senate Resolution455of October 1,1982.
(2) Canadian hatcheries on the Westcoast of VancouverIsland are wntribut-
ing increasing numbers of chinook Salmon to Aiaskan fisheries, with
reduced benefits to Canadian fishermen: Canada would be oblinedIo con-
siderconducting thesehatcheries to the production ofcoho salmon.
(3) The situation on the transboundary rivers,notably the Yukon, Stikine and
Taku. would be esoeciallv difficult. The Canadian authorities. while
remaining responsive to c&servation needs, would have no choice but to
havea vigorousfishing presenceon theserivers.
(4) With respectto Fraser Riversockeyeand pink mns, it maybe expectedthat
Canada would increase its catches outside the Convention Area, particu-
larlyforpinksalmon in 1983.550 GULF OFMAINE
(5) Finallv. with renard to the Fraser River. Canada shares with the USA the
desireio ensure-lransitionarrangementsthat takc into account the achicve-
mentsofthe present SalmonCommission.Considering the vcryweaksock-
cvc nin exnected in 1984.Canada would wish the Salmon Commission to
wntinue 10regulatcthe hshcrics in the Convention Area during that year.
The Canadian authorities, however,cannot seethe continuation of present
arrangements bevond the 1984season. outside the wider framework of
coopëration enviSagedinthe present draft~reat~.
Washington, D.C
March 7, 1983.
The Denartment refersto vour Aide-Mémoireof March 7. 1983.concemine
the ~reatf between the ~ovérnmentof the United States of ~merica and the
Government of Canada concemina Pacificsalmon.
The Department wishcsto assurétheGovernmentofCanada that the United
StatesGovernment believesa treaty hctwecnour two Govemments isessential
if the Pacificsalmon rcsource, which interminalesand is suhien to harvest hy
fishennen of both countries. isto he saved from destmction. fhe United States
Govemment believesthe principles embodied in the proposed treaty provide a
foundation to heain correctinathe severeconservationproblemsand to encour-
aee increased saïmon oroduciion
-ln reviewing the pr6posed treaty, thc Department notes several points that
could hc well scrvcd by further elaboralion or clarification. This might also
helo allav the concems of affened United States interests with various treatv
provisio&. Tothisend, wesuggestthat officialsof ourgovemments meetin the
very near future to explore these issues.
Department of State
Washington, D.C. April8, 1983. 551
ANNEXESTO REPLYOF THEUNITEDSTATES
Annex16
INTERNATIONAHYDROGRAP BUICAUCHAR TPECIFCAT~ONSOF THE
I.H.O.;SECTI4W, HYDROGRAP ANYNAVIGATION AILS1979, P4-1
AND4-12
[Norreproduced]
1.A.GULLANDCUIDEL~NESFOF~SHER YANAGEMEF NT. AND
[Nolrepmduced]552 GULF OF MAINE
Annex18
AIDE-MEMOI RROM EMBASS YFCANAD AO THEUNITED STATES
DEPARTMENT OF STATED, ATED4 JANUAR1Y974
AIDE-MEMOIRE FROMTHE UNITED STATEDSEPARTME NFTSTATETO EMBASSY
OF CANADA D,ATED22 APRIL1974
NDE-MEMOI FROMEMBASSYOF CANADATO THE UNITED STATESDEPARTMENTOF
STATE, DATE4 JANUARY 1974
The Canadian Govemmenthas the honour to referto the United StatesAide-
Mémoireof June 28, 1973,including the text ofa draft treaty on United States-
Canada territorial disputes.
The Canadian Govemment isconsciousof the difficultieswhichhave arisen
in recent yearsin respect of the waters situated in the vici"iiy of Machias Scal
Island and North Rock inthe Gulf of Maine area and of the A-B Line in the
Dixon Entrance area. Mindful ofthe lone tradition of friendshi~and coooera-
lion which has characterized the relati&s bctwcen Canada and the ~iited
States and anxious to resolve any ouuianding disputes through appropriare
~roccdurcs. the Canadian Govemment wishcs to reiierate ils readiness to
ingage in meaningful consultations, or negotiaiions where appropriate, with
regard to anyohlcms whichthe United Statesauthorities mightwishto raise.
The Canadian Govemment also recoanizes that in some &es il mav be
appropriate to submit certain 10third party adjudicati&n an
acceptableprocedure for the successfulsettlemenlof disputes.
Bcforc Canada could envisage refera1 to third party adjudication in any
matter,imus1he satisiïed that al1efforts have beenmade to reach a solution
through normal bilateral consultations or negotiations and that iü position
would nothe oreiudiced bv the vervterms of aÏnvanreement to adiudicate.
The ~nited'states proposal to sibmit to adjudication the quest:on of which
of the parties is the lawful sovereign of Machias Seal Island and Norrh Rock
wouldof itself out Canada's loncstandine unauestioned title into auestion.
There is no evidence to support any Unitat telim to sovereignty over
these islands and indeed the only evidence that the United States has ever
asserted such a claim aooean to-be the recent United States alleeation that
there is a dispute of kind in relation to the status of the islands which
ought to be resolved.Canada has long-cxercisedundisputed sovcrcigntyovcr
thescislandsand the factihai Canada at the sametimc hasexernsed restraint in
dealing with intmsions of United States fishing vesselsinto Canadian waters
surrounding the islands cannot and mus1no1be constmed as implying that
Canada has eveninformallyagrccd not io attempt to exercisejurisdiction over
United Statesfishing vesselsinthat arca. Such an implicationwould. ofcourse,
make it more difficult to continue to exercisesimilar rcstraint in the future.
In the proposed United States draft trcaty, Canada would also bc called
upon, in idvance of adjudication,to agree that the two islands in quesiion will
he "disregarded in delimiting the respective maritimejurisdiction of the pan-
ies,including their ~es~ectivërightsin the natural resourcesof the continental ANNEXESTO REPLYOF THE UNITEDSTATES 553
shelr'. Such a provision would demand an outright concession on the part of
Canada while althe samelime im~l.c~~ ~ ~ ~ectineon the validitv,~the~Uni~ed
Statesclaim to sovereignty. Inany eveni,canada; rovereigntyoverthe islands
isa material factorto be taken into account inthe nea-tiation ofthe continental
shelf betweenthe two countries.
Inthese circumstances,the Canadian Government isnotprepared Ioagrecto
adiudication regarding the status of Machias Seal lsland and North Rock.
to the ofthe status of the "A-B Line",il has been the long-stand-
ing Canadian position that this line constitutes a maritime boundary between
thetwo countries. Nevertheless,this area maylend itselfto somewhat different
treatment than Machias Seal Island and North Rock. nie Canadian Govern-
mentis prepared to consider the entire maner inthe light ofthe legislativemea-
suresadopted and the practicesmaintained bythe twoparties, as wellason the
basis of international law as it hasdeveiooed over the vean.
In conclusion,the Canadian ~overnm;nt would sukest that it maybe desir-
able to have early consultations with a new to develo~ing practical arrange-
menu for the pu&se of minimizingincidentsthat have occurred from tirne-to
lime to the extent that such arrangements maybe appropriate.
Washington, D.C.
January 4,1974.
AIDE-MÉMOIREFROMTHE UNITEDSTATESDEPARTMENTOF STATETO EMBASSYOF
CANADA, DATED 22 APRIL 1974
nie Deoartment of State refers to its aide-memoire to the Embassv of
Canada oi~une 28,1973,proposing negotiation of a treaty betweenthe ~hted
States and Canada to submit to adjudication disputes regarding sovereignty
over Machias Seal Island and North Rock inthe Gulf ~ ~Ma~ne. and re~ardine
the st&s of the A-B Linein the DG Entrante, and to canada's repl;to th;
proposal, dated January 4, 1974.
nie Deoartment notes with disaooointment the Government of Canada's
unwillin~ess to negotiate a treaty i;oviding for the peaceful adjudication of
these disputes. Regarding thestatus of MachiasSeal lsland and North Rock in
the Gulf of Maine, the UnitedStates cannot sharetheGovemment of Canada's
viewthat Canada's title to these islands is"unquestioned. The unsetilcd issue
of sovereignty over Machias Seal Island and North Rock has been noted by
United Statesand Canadian officials for a number of yean, and thcrefore the
United Statescannot agreewithCanada that there isnodispute with respect 10
these islands. Accordingly,the United States reservcsits position with respect
to this issue.The United States also notes the Governmentof Canada's appar-
ent unwillingncssat this lime to submit to adjudication the status of the A-B
Line.and similarlymus1reserveitr position with respectto this issue.
However.the Department notes [heGovemmentof Canada's exoressedwil-
lingness "10 consider the entire matter" of the A-B Line"in light oithe legisla-
tive measuresadopted and the prdnices maintained bythe two parties. as well
ason the hasis of international law as il has deveiooed over thekean"
The Department also notesCanada's cxpression~f interestin;arty consulta-
tions to develop "practical arrangements for the puruose of minimizing inci-
dents ...-.haveÔc&rred fr6mtirneto lime to the extentthat sucharraneements
maybe appropriate". nie ~epartm&Ï of Stateiscqually desirous ofsich con-
sultations to consider possible meansto improvethe present informal arrange-ments to minimizethe likelihood of unfortunate incidents in both of the areas
under consideration. It is suggesied that the proposed meeting between the
LegalAdvisen of the Department of Statcand of the Departrneni of Extemal
Affain would ~rovidean a~~ro~riatefomm to ex~lorethese auestions and to
consider the eitire mattcr &"nieiiled boundary irsues wiih a iiew to develop.
ing meanssatisfactory to bath Parties10 resolvcsuch issues.
Department of State
Washington, D.C., April22, 1974. ANNEXES TO REPLYOF THE UNITED STATES 555
Annex19
@ FIGUREAPPLICATION OF THE EQUIDIMETHOD GIVING"HALFEFFECT"
TO THE SOUTI~WFSTCOAS TFNOVASCOTIA VolumeII
ANALYTIC ALNEXETO THREPLY ri] ANNEXESTO REPLY OFTHE UNITED STATES 557
Aooex20
ACRITIQU OF THEANALYS NS'THECANADIA CNOUNTER-MEMO OF IHL
CONCEF OF ASTOCK
1. A "stock" is a community of fish or shellfish that, under normal
circumstances, is capable of maintaining itself without immigration from
other communities of the same species. This concept is fundamental to
fishery science and management. On the one hand, each stock mustbe
managed as a unit, because fishing a stock in part of its range will affect
the abundance of that stock throughout ils range. On the other hand,
separate stocks of the same species may be managed independently,
because fishing one stockwillnot affect the abundance of the other stock.
2. In its Memorial, Canada defines stocks as "relatively discrete
populations that show limited exchange (in the genetic sense) with
wntiguous populations "',and acknowledgesthe existence of "relatively
discrete stocks on Georges Bank2". Nevertheless, in its Counter-
Memorial, Canada implies that "stock" is an " 'abstracr"'concept of
" 'misplaced concreteness" that il1fits the "untidy" worldof natu'.
3. Notwithstanding Canada's disclaimers, the conceptof a''stoc isk"
practical one that is critical to fishery management precisely because it
doescorrespondto biologicalrealities. Indeed,the conceptis fundamental
to Canada's own fishery management theory and practice. both interna-
tional and domestic.
4. Canada itself has promoted the incorporation of the concept of a
stock into international law. A working paper distributed at the Third
United Nations Conference on the Law of the Sea by the delegations of
Argentina and Canada stated that "[flishstocksare singlebiologicalunits
and must be managed as such'". That paper was concerned with the
problem of stocks that straddle the 200-nautical-mile resource zoneof a
State and the areas outside and adjacent to the zone. At the Conference,
. .
'CanadianMemorial,para. 103.n. 23.
'CanadianMemorial.para. 103.[Emphasisinoriginal;citatiomitted.]
'CanadianCounter-Menorial,paras.209-211.[Emphasisinoriginal.]
'WorkingPaperSubmitted bythe Delegationsof Argentina andCanada,"The
SpecialCaseofFishStockswhichoccurboth withintheExclusive Economic Zone
and inan Areabeyondand immediately adjacenttoil"submittedattheSecond
Part of the NinthSessionof UNCLOS IIIGeneva,1980,[hereinafterJoint
Workin gaperb p.1.UnitedStatesMemorial.Annex91,Vol.IV.558 GULF OFMAINE 121
Canada argued that, because the consistent management of a stock
throughout its range was socritical to fishery conservation,wastal8tate
fishery jurisdiction should be extended beyond the exclusive economic
zone where necessaryto include the entire range of the straddling stock.
The Joint WorkingPaper related conservation problems tothe conceptof
a stock:
"The fundamental point is that the fish stock which occurs both
within the EEZ of a coastal State and the high seas beyond and
immediately adjacent to it is a single biologicalunit. Experienceoff
the coasts of countries where these fish stocksoccur has demonstrat-
ed that overfishingof such resources in the seas beyondthe economic
zone will result in drastic reductions of the biomass of the stocks,
and, accordingly,of the yield bothwithin the coastal state's EEZ and
in the high seas adjacent to this zone.
.........................................................
"Application of a different management regime inside and outside
200 miles to a single stock inevitably resultsin depletion.
.........................................................
"Conservation considerations alone then make it imperative that
stocksoccurring both withinthe ExclusiveEconomicZone and in the
seas beyond and immediately adjacent to its [sic] be treated as a
single management unit and, through ensuring wnsistency of sound
conservation measures for the stock throughout its entire range,
guarantee the existenceof a stable productive resource"'.
5. Canada also submitted to the Third Law of the Sea Conference a
"Working Paper on Management of the Living Resources of the Sea",
which discussedseveral"scientific principles", includingthe principlethat
"stocks should be managed as individual units l".The paper explains the
concept of a stock and its significance to fishery management.It is also
noteworthy, in light of the contrary assertions in the Canadian Counter-
Memorial, that the paper explains that the areas inhabited by coastal
stocks "are usuallywell-defined":
"Few species form homogeneous mixturesof individuals through-
out the species' range.Rather these individuals tend to be grouped
intoseparatepopulationsor stocks.den associatedwithparticular
oceanographic features, such as currentsystems or distinct sheU
areas, with little interchangebetween the separate groups. Each
group will have its own particular set of biological characteristics
JointWorkingPape r. . 1-3
> WorkingPapr on Managementof the LivingResourccsofthe Sca,submittcd
byCanada,RcwrtoftheCommitteeonthePeacefulUsesoftheSea-Bcdandthe
&an FloorËeyond the Limitsof National Jurisdiction[,hereinafCanadian
WorkingPaperb pp. 164, 172-173,U.N. Dac. A/AC. 138/SC.11/1.8.United
States Memonal,Annex 91,Vol.IV. A ANNEXES To REPLYOF THE UNITEDSTATES 559
such as growth rate or mortality rate, dependent on its genetic
makeup and the environment which it inhabits. Each willrespond to
fishing pressure in a different way, depending on the size of the
particular stock and its unique characteristics. Management proce-
dures should be designed to take account of the varying characteris-
tics of each stock.
"The areas inhabi~ed bj~such siocks will Vary in size, bui for
coasial species are usually well-ddned. For some stocks, the
distribution may extend to coastal waters of several adjacent States;
for others the distribution willbe confinedto the adjacent waters of a
single state. In any case, the stock must be managed as a whole if
management is to be effective"'.
Mr. J. A. Beesley,a Canadian representative to the Seabed Committee,
aiso noted that fish stocks inhabit well-definedareas. His statement has
been summarized as follows:
"In exercising its managementauthority, the coastal State would
have to take account of certain biological principles. Firstly, each
population within a species had its unique characteristics and, with
the exceptionof large pelagic speciesand marine mammals, normally
inhabited well-definedareas ln.
6. In part as a result of Canada's effective advocacy,the concept of
stocks became an integral part of the Convention adopted by the Third
United Nations Conference on the Law of the Sea. For example, Article
63directs States to seekto agree upon management measures forstocks-
not species-that range through two or more exclusiveewnomic zones
and for stocks that straddle an exclusive ewnomic zone and the sea
beyond. Other articles dealing with anadromous stocks, catadrornous
species, and highly migratory species also are designed to promote
consistencyinconservation measures for each stock throughout itsrange >.
7. The 1982Lawof the Sea Conventionisnot the only international in-
strument to recognize the concept of a stock. So, too, does the 1958
Geneva Conventionon Fishingand Conservationof the LivingResources
of the High Seas'. Although Canada is not a Party to that Convention,
'CanadianWorkingPaper. pp. 172and 173.[Ernphasisadded.]
'United Nations Cornmitteoenthe PeacefulUsesofthe Sea-bedandtheOcean
Fioor Beyondthe Lirnits of NationalJurisdiction, U.N.Doc. A/AC.138/
SC.II/SR.25.
-
'UnitedNationsConvention ontheLawofthe Sea, Article64.66, and 67.
'Articles3, 4, 5.and 12 referto"stock"or"stocks".Thetex1ofthe Convention
isreprinredaf UnitedStatesMernorial.Annex 5, Vol.1.560 GULFOFMAINE [41
Canada has become a party to a number of other international agree-
ments that use the concept of a stock '.
8. The concept of a stock was already well-accepted during the period
of the North American Council on Fishery Investigations (NACFI), which
began its work in 1921. Much of the Council's work concerned the
identification of separate fish stock'.Indeed, tagging studies and lawae
studies wnfirmed the existence of separate'and distinct codand haddock
stocks on Georges Bank and the Scotian Shelf. These studies provided a
biological basis for the division of statistical areas along the Northeast
Channel.
9. Many of the management measures accepted by Canada as a
member of the International Convention for the Northwest Atlantic
Fisheries (ICNAF) were based upon the concept of a stock and the
existence of discrete stocks. The United States Counter-Memorial con-
tains a list of the ICNAF actions that explicitly or implicitly rewgnized
separate Georges Bank stocks '.
10. The stock concept also has been indispensable to the work of
ICNAF's successor organization, the Northwest Atlantic Fishing Organi-
zation (NAFO). Dr. Wilfred Templeman, a leading fisheries scientist
from Newfouodland, presented the keynote paper to a recent NAFO
Stock Discrimination Symposium. He defined the term as follows: "[a]
marine fish stock is a recognizable population unit for management
purposes ...'".
'Amongthe Conventionsto whichCanada becameparty that incorporatethe
conceptof a stockare: the InternationalConvention forthe Northwest Atlantic
Fisheries,8 Feb. 1949,UnitcdStates Memorial,Annex45, Vol. III;Protocolof
28 December 1956 to the Convention forthe Protection, Preservation, and
Extensionof the SockcycSalmon Fisheries in the Fraser River System, 290
U.N.T.S. 103;Protocol Amendintghe InternationalConvention forthe HighSeas
Fisheriesof thc North Pacific Ocean, 25 Apr. 1978, depositedby the United
Statespursuant to Article 5q2) of the Rules of Court; Convention onFuture
Multilateral Cooperationin the Northwest AtlanticFisheries, 24 Oct. 1978,
Cauadian Memorial,Annex 9,Vol. I;Protocolof 29 March 1979 Amendingthe
Conventionfor the Preservationofthc Halibut Fisheryof the Northern Pacific
Ocean andBeringSea,depositedbytheUnitedStatespursuanttoArticle5q2)of
the Rulesof Court; andConvention forthe ConservationofSalmonin the North
Atlantic Ocean,Mar. 1982,depositedbythe UnitedStates pursuanttoArticle50
(2)ofthc RulesofCourt.
'NACFI Proceedings, Nos.1-111(,1921-1930,1931-1933,1934-1936)D . eposited
withtheCourtinwnnectionwiththeUnitedStatesMemorialpursuantto Article
5q2) ofthe Rulesof Court.
'UnitedStates Counter-Memorial.AnncxIA,TabsA-H.
'NAFO SCR Doc. 82/1X/79, Ser. No. N585, p.'6. Depositcdby the United
Statespursuantto Article5W2)of thc RulesofCourt. 151 ANNEXES To REPLY OF THEUNITEDSTATES 561
11. Within NAFO, as it had within ICNAF, Canada promotes man-
agement on the basis of the concept of a stock. For example, at the NAFO
Annual Meeting in September, 1983, Canada proposed quotas for ten .
stocks of fish ',including two stocks each for several species, and these
were adopted by the Commission '. Thus, NAFO management measures
for 1984 will be predicated upon the existence of separate stocks, as
indeed they have been in al1other years.
12. The concept of a stock bas been fundamental to Canada's domestic
management practices. For example, Canada's Task Force on Atlantic
Fisheries noted that "each stock can be managed independently, because
fish from one stock do not mix with those of another '".The Task Force
refers throughout its report to specific stocks, and much of its data, such
as catch data, deals with separate stocks '.To organize its data, the Task
Force used the NAFO statistical areas (formerly the ICNAF Subareas),
because "they made sense to us and had the advantage offollowing the
boundaries offish stocks and of statistical collection area'".
13. The Task Force also commented upon the problem of stocks that
straddle the 200-nautical-mile zone and the areas beyond, and the need to
manage such stocks throughout their range:
"The core of the current international allocations problem, from a
Canadian perspective, is the susceptibility to over-fishing of ground-
fish outside the 200-mile limit. Fish stocks outside 200 miles on the
Grand Banks and Flemish Cap are regulated by the Northwest
Atlantic Fisheries Organization (NAFO). While Canada has a major
Sayin howthese stocks will be managed by NAFO, countries that are
not members of NAFO (e.g., Spain) can and do carry out fishing
operations beyond 200 miles without regard to internationally accept-
'"Canadian Proposalofquotaallocations", Preliminary Repoo rtf the 5thAnnual
Meeting of the NAFO Fisheries Commissionp , . 20.Depositedby the United
States pursuantto Article5q2) of the Rulesof Court.
>ThePress Notice for the 5thAnnual Meetingstated that "[ojnthe basisof the
scientificdviceprovidedbythe ScientificCouncilfromils meetinginJune 1983.
agreement was reached on conservationand management measùresfor 1984
regarding total allowable catches (TAC'S)and allocations for certain fish
stocks ...". These includedseparate stocks ofcod, of redfish,and of American
plaice.PressNotice, Preliminary Reportofthe 5thAnnualMeetingofthe NAFO
Fisheries Commissionp , p. 17-18.Deposited by the United States pursuant to
Article5q2) of the Rulesof Court.
'Task Forceon Atlantic Fisheries; Navigating Troubled Waters:A New Policy
for Atlantic Fisheriesthe 'KirbyReport'b1982, p. 366.[hereinafterThe Kirby
Report.]Deposited withthe Court inconnectionwiththe UnitedStates Counter-
Memorialpursuantto Article5q2) of the Rulesof Court.
' TheKirby Report, p. 24.
' The KirbyReport, p. 27.[Emphasisadded.]'562 OULFOF MAINE i61
ed conservation measures, resulting in over-fishing of these stocks
(whichon the Grand Banks extend inside the 200-mile zoneas well) '."
The Task Force discussion of straddling stocks is also of interest because it
highlights some of the difficulties of fishery conservation by agreement, in
particular, that of reaching agreement upon the economic issue of allocat-
ing a scarce resource'.
14. Canada's 1983 Atlantic Groundfish Management Plan confirms the
importance of the concept of a stock. As described in Fisherman's
Information, a handbook distributed by the Canadian Department of
Fisheries and Oceans, the Plan sets total allowable catches and domestic
and foreign fishing quotas for 14stocks of cod,including separate stocks
in Subareas 5Y and 52 on Georges Bank; 3 stocks of haddock, including a
separate stock in Subarea 5; and a number of separate stocks of redfish,
various flounders, and other species'. A number of Canadian fishery
regulations thdt explicitly or irnplicitly recognize stock divisionsoccurring
at the Northeast Channel have been listed previously in the United States
Counter-Mernorial'.
15. In its Counter-Memorial. Canada misinterprets the concept of a
stock in support of its incorrect accusation that the United States has
rejected stock management '.As correctly explained in the joint Canadian
and Argentine law of the sea working paper quoted above, the concept of a
stock requires "consistency of. .. conservation measures for the stock
throughout its entire range.. .'"This principle has been incorporated into
the Fishery Conservation and Management Act of the United States, which
requires that:
"To the extent practicable, an individual stock of fish shall be
managed as a unit throughout its range, and interrelated stocks shall
be managed as a unit or in close coordination '."
'The Kirby Report.p. 197.
The Kirby Reporf.pp. 197-205.
'Atlantic Fisheries Service,Deptof Fisheriesand OceansFisherman's Informa-
tion-1983.pp. 30-35.Depositedby the UnitedStates pursuantto Article5q2) of
the RulesofCourt.
'United StatesCounter-Memorial,Annex 1,Appendices A-Dand F-H.
'CanadianCounter-Mernorial.para.229.
Joint WorkingPaper. para.4, n.supra.
' Fishery Conservation and ManagemA enctt of 1976,18 U.S.C. sec. 1851(aX3).
UnitedStatesMemorial,Annex8,Vol. 1.Canada'ssuggestionthat theUnitedStates
management system requires"conservationby agreement"is inaccurate. [Canadian
Counter-Memorial. paras. 230233.1 Under United States law, the Secretaryof
Commercehasthe authorityto imposeconsistent management measuo rnsfisheries
that crms different jurisdicwsithinthe UnitedStates.[Fishery Conservatindn
Management Act,16 U.S.C. secs. 1854(0and 1856.1No such ullimatearbiter is
available toimposesolutionsupon tor moreStatesfishingthesamestocks;hence,
international fisheriescmanagedeffectivelyonlybyagreement.i71 ANNEXESTO REPLYOFTHE UNITEDSTATES 563
16. On Georges Bank,the stocks of various groundfish speciesare so
interrelated that they cannot be caught and allocated independently of
one another, and therefore must be managed as a unit. Accordingly,the
United States Interim Fishery Management Plan for Atlantic Groundfish
doesnot manage this "complexof stocks" through individual stockquotas,
whichhave been tried and found to be ineffective.Rather, the Plan usesa
combination of measures: minimum meshsizes, minimum fish sizes,and
closed areas '.These regulations apply to vessels fishing a number of
speciesthroughout a certain area, which may be large enoughto embrace
severalstocksof certain species.Nevertheless, the Plan faithfully respects
the conceptof a stock,and the dictates of United States law,becauseeach
stock issubject to consistent management measures throughout its entire
range '.
17. In brief, the conceptofa stockiswell-establishedin fisheryscience.
Precisely because it does correspond to biological realities, the stock
concept has becomea powerful,indispensabletooloffisherymanagement.
Notwithstanding the resewations expressed in the Canadian Counter-
Memorial, Canada's domestic and international fishery management
practices demonstrate that Canada, too, recognizes the reality and the
importance of the conceptof a stock.
'NewEnglandFishcryManagement CounciIln ,terimFishery Management Plan
5q2)toftheRulesofCourt.Theintroductionpoofthe Plantouchedoffa debatehe-
tween Canada and the United States involvingdifferent thwries of fishery
managementand disagreements betweenfisheryscientistsover the effcct of
variousmanagement options.
'Of wurse, the Plan cannotnowcnsurewnsistencyof management measures
throughout the rangoefthesestocks,becauseit docsnotwntrolCanadianvessels
Statespendingtheresolutionofthiscase.of the restraintexercisedby the United ACRITIQU OF THEANALYS ISTHE CANADIA COUNTER-MEMO RISLOCK
DIVISIONSINTHEGULF OF MAINE AREA
INTRODUCTION
1. In its Memorial and Counter-Memorial. the United States demon-
strated that separate stocks of 12 of the 16commercially most important
fish andshellfisspeciesin the Gulf of Maine area are associated with
Georges Bank, and that they are separated by the Northeast Channel
from other stocks of theme species'.In its Counter-Memorial. Canada
generally disputes the divisions of these 12 species but analyzes only four
of them:cod, herring, sea scallops, and lobsl.A review of Canada's
analysis ofthese four species, however, confirms that the Northeast
Channel marks a division between Georges Bank stocks and Scotian Shelf
stocks of most of the commercially importantcies in the Gulf of Maine
area.
SECTION 1. Cod
2. In its Memorial, Canada acknowledged that cod was one of the
species for which aseparate Georges Bank stock had been identified'.
Indeed, Canada identified this stock as a "resident" one, as distinguished
from "migrant species that concentrate [on Georges Bank]ring part of
their life histories or on aasonal basis"'. In its Counter-Memorial.
@@ 'United States Memorial,paras. 55 and 57, andFigs. 7 and 36; United States
@@-a Counter-Memorial.Annex I.Vol.IA, paras.76-99,and Figs. 32,35. 37.38.39,
40,42.43,44,45, and 46.In an attachmenttothe letterof20January 1983tothe
Registrarfromthe Agentof the UnitedStates, whichwassubmittedresponse
to the letter of 15December 1982from the Agentof Canada, theUnitedStates
showed that the Canadian Memorial and documentsdeposited in connection
therewithwereinagreementwiththe UnitedStatestha11ofthese 12speciesare
dividednaturallyat the NortheastChannSee UnitedStates Counter-Memori-
al, para.4[p.371,n.3,and Annex15,VolV.
CanadianCounter-Memorial,paras.213.224.
'CanadianMernorial.para. 103.
'Canadian Memorial,para. 106. , . 121 ANNEXES To REPLY OF THEUNITED STATES 565
Canada retreats from this position, claiming that the description in its
Mernorial of a resident Georges Bank stock of cod "relates to the
spawning period only "'.
3. The discussion of cod in the Canadian Counter-Mernorial and
Volume 1of the Annexes thereto 'purports to rely upona 1963article hy
the fishery scientisJ.P. Wise3. Wise based his article upon a tagging
experirnent of such inconsiderable nurnbers (fewer than 600 cod tagged on
Georges Bank, only 225 tagged on Browns Bank, and a total of only 135
recaptured) that it is incapable of supporting any scientifically defensihle
conclusions'.In any event, this article provides little support for the new
position regarding cod that Canada has adopted in ils Counter-Mernorial.
inasmuch as the author concludes that:
'lïjish tagged on Georges Bank ore most often coughton Georges
Bonk, but frequently turn up on Browns Bank and to the eastward in
following surnmers. Fish tagged on Browns Bank ore coughtmainly
on Browns Bonk, but also to the eostward in following
surnmers ...'".
As will be discussed hereinafter, other Canadian researchers, not cited by
Canada, have found a rnarked separation between the cd stocks of
Georges Bank and those of Browns Bank.
4. Annex 1tothe United States Counter-Memorial described the three
separate stocks of cd on Georges Bank, in the Gulf of Maine Basin, and
on the Scotian Shelf 6.The United States furnished evidence that these
are separate stocks, including illustrations of separate spawning grounds,
different growth curves, and separate larval distributions'. The United
States established that the identification ofese stocks also was support-
ed by studies of rneristics, tagging studies, parasite work, distribution
patterns, and abundance trends '.
'Canadian Counter-Mcmorial. para.201. In fact. spawningaggregationsare a
very important element in the formation of unit stocks.See United States
Counter-Memorial.Annex 1, Vol.IA, paras.66-73.
'Canadian Counter-Mcmorial, paras.214-216;and Annexes.Vol. 1,paras. 141
and 142.
J.P.Wise,"CodGroupsinthe NewEnglandArea", in FisheryBullefin.Vol.63.
No. 1,1963,pp. 189-203.Depositedwiththe CourtbyCanadainconnectionwith
ils Counter-Memorialpursuantto Article5q2) of the RulesofCourt.
'Other tagging studies in which many morecod were tagged and recaptured
dernonstratemore clearlythe separatenessofthe GeorgesBankcodstockfromthe
BrownsBank cod stockSee para. 6.iftira.
'Wise.op. cit.p. 200.[Emphasisadded.]
'United States Counter-Memorial,Annex 1,Vol.IA.paras. 76-78.
@ 'United States Counter-Memorial,Annex 1,Vol.IA, Figs.29. 30. and 31. and
para.77.
'United StatesCounler-Mernorial.Annex 1.vol. IA, Table B. p. 97. and para.
76.566 GULFOF MAINE i31
5. A Canadian fishery authority, G. M. Hare, in a work Canada has
submitted to the Court, identified the same cod stocks as those identified
in the United States Memorial, viz., separate stocks for Georges Bank, for
Browns and LaHave Banks (on the Scotian Shelî), and for the Gulf of
Maine Basin '.Hare also noted that ICNAF assessed the abundance of
the Georges Bank stock with reference to ICNAF Division 52, the Gulf of
Maine Basin stock with reference to Division 5Y, and the Browns-LaHave
Banks stock with reference to Division 4X l.
6. In the International Commission for the Northwest ~tlantic Fisher-
ies (ICNAF) and elsewhere, Canada wnsistentlyhas treated cd stocks as
separated from each other at the Northeast Channel and has proposed
regulatory measures based upon this stock separation'. Canadian re-
searchers also have acknowledged on many occasions the separateness of
the cd stock on Georges Bank from those on the Scotian Shelf, as
refiected in the following examples:
(i) D.J. Scarratt, in his 1982 atlas, summarized "the general status
and 1980 TACS [Total Allowable Catches] for various commercial
cod stocks", describing the Browns Bank stock as "depressed", with
a 16,000-ton TAC in 1980, and the Georges Bank stock as "stable",
with a 35,000-ton TAC ';
(ii)W.R. Martin, in a paper specifically prepared for the ICNAF
Annual Meeting in 1953, stated: "The deep-wafer Fundian [North-
east] Channel between Georges and Browns Banks and the still
deeper Laurentian Channel between St; Pierre Bank and Banquereau
are barriers tothe movement of cod "':
'G.M. Hare,Atlas of the Major AtlanticCoastFishand InvertebrateResources
Adjacentto the Canada-UnitedStates BoundaryAreas. Canadian Dept. ofthe
Environment, Fisheries andMarine Service,Tech. Rpt. No. 681, 1977, p. 1.
Depositedwiththe Court by Canada inconnectionwithits Memorialpursuantto
Article50(2)of the Rulesof Court.
'Ibid.
'United StatesCounter-Mernorial.Annex 1, Vol.IA, para. 78,and Appendix A,
listing ICNAF actions and Canadian Atlantic Fisheries Scientific Advisory
Committee(CAFSAC)actionstreating Md in Subareas4 and 5 as separatefrom
eachother.
'D.J .carratt, ed., CanadianAtlantic O//shoreFisheryAtlas. CanadianSpecial
Publicationof Fishericsand AquaticSciences47 (Rev.).1982,p. 49. [Emphasis
added.] Depositedwith the Court by the United States in connectionwith ils
Counter-MemorialpursuantIoArticle5q2) of the Rulesof Court.Scarratt listed
a more northern Scotian Shelf cod stock, that of Banquereau-SableIsland. as
"rebuilding"witha 60,000-tonTAC in the mid-1980s.
'W.R. Martin, "Identificationof MajorGroundfish Stocks inSubarea 4 of the
NorthwestAtlanticConventionArea", inICNAFAnnualProceedings.Vol. 3,
(hotnote continuedon nexfpage)c41 ANNEXESTO REPLYOF THE UNITEDSTATES 567
(iii). A. McKenzie reported that, of the more than 2,200 returns
from some 21,000 cd tagged in the Bay of Fundy and along the
Canadian Atlantic coast, only II were retrieved Westof the North-
eastChannel, i.e., on Georges Bank and in the Gulf of Maine Basin ';
(iv)F. D. McCracken reported that, of 757 fiih recaptured from a
tagging experirnent conducted near Lockeport (on the Atlantic coast
of Nova Scotia) in which 1,804 cod were tagged, only seven'were
recaptured Westof the Northeast Channel ';
(v) R. G. Halliday noted that another Canadian scientist, W.
Templeman, had concluded that "cod on Brown'sand LaHave banks
probably forrn a separate spawning stock from those on Georges
Bank'". Halliday further noted that tagging experiments, combined
with results of vertebral counts and parasitological studies, indicate
that little mixing occurs between these stocks'.
SECTION2. Herring
7. In its Memorial, Canada recognized that a separate stock of herring
was identified with and maintained on Georges Bank'. Canada also
noted that, to the extent that the Georges Bank herring stock ranged
beyod Georges Bank, there was "more mixing between stocks across the
Great South Channel than across the Northeast Channel l".As was the
case with cd, the Canadian Counter-Memorial retreats from the
discussion of herring found in the Canadian Memorial. In its Counter-
Memorial, Canada claims that its earlier statements related "to the
lfootnorecontinued/rom thepreviouspoge)
Part 4, 1953.p. 57. [Emphasisadded.]Depositedwith the Court by the United
States in connectionwithils Counter-Memorialpursuant to Article5q2) of the
Rulesof Court. In the samepaper. Martinalsodiscussedhaddock,anotherofthe
12 mostcommerciallyimportantspecicsin the area, whosestock divisional the
Northeast Channel Canadanow appearstoquestion.[CanadianCounter-Memori-
al. para. 212(fj:and Annexes thereto, Vol. 1, para. 140.1Martin noted that
"[hbddockare morerestrictedto bottomthan cod and for thisreasonSubarea4
haddockare even moresharply separatedfrom those in Subareas 3 and 5 than
notedabovefor cod".Ibid..p. 59.Of the Browns Bankhaddockstock.he noted
that "[tpis populationdifferssharply from thatof Gwrges Bankto the Westand
LaHaveBank to the east"Ibid.
'R.A. McKenzie,"Atlantic CodTaggingoffthe SouthernCanadian Mainland,
Fisheries ResearchBoardof Canada, BulletinNo. 105,1956,p.69.
'F.D. McCracken, "'Codand Haddock Togging oJ7Lockeporr. N.S.' :isheries
ResearchBoardof Canada. Progress Reportsof the AtlanticCoastStations,No.
64, 1956,pp. Il and 12.
'R.G. Halliday."A PreliminaryReporton an Assessmentof the OffshoreCod
Stockin ICNAF Div.4X". ICNAF Res.Doc.71/12, 1971,p. 1.
'Ibid.
'Canadian Memorial,para.103.
lbid. 568 GULFOF MAINE 151
spawning period only '". Canada's discussionof herring plays down the
significance of the separation of herring stocks that occurs at the
Northeast Channel, emphasizing instead the fact that individuals from
different stocks may intermingle during non-spawningperiods '.
8. In Annex 1to its Counter-Memorial, the United States showedthat
herring frorn Georges Bank, the Gulf of Maine Basin, and the Scotian
Shelf are divided into separate stocks associated with each of these
features'. The United States also showed that the herring stock on
Georges Bank has different characteristics from the herring stockson the
Scotian Shelf'. The United States provided evidence that these are
separate stocks, including illustrationsof their separate spawning grounds
and lamal distributions, and noted that the identification of these stocks
was supported by studies of meristics, tagging studies, parasite work,
growth studies, biochemical research, distributionpatterns, and abun-
dance trends '.
9. Canada historically has recognizedand acted upon the herring stock
divisionthat occurs at theNortheast Channel. Appendix Bof Annex 1 to
the United States Counter-Memorial listed, as evidence of Canadian
acceptance of the separation between Georges Bank and Scotian Shelf
herring stocks, ICNAF and CAFSAC actions in which the herring stocks
in Subareas 4 and 5 were treated separately. Canadian fishery scientists
also have recognizedthe Northeast Channel as a herring stock division.
Thus, the Canadian scientist Hare noted that there is: (1)a Nova Scotia
herring stock cornplex,which migrates between lCNAF Subareas 4X and
4W; (2) a separate Gulf of Maine Basin stock of herring; and, (3) a
separate Georges Bank stock, with its "major spawning area" on "the
northern edgeof the bank", and whichwinters "far to the westward,south
of Cape Cod 6".
10. By quoting selectively from a statement by a United States
representative at an lCNAF meeting, the Canadian Counter-Memorial
implies that the United States does not believe that the Northeast
Channel separates herring stocks. The Canadian quote of that statement
is as follows:
" '... eflecrive management schemes for herring must. when
applied to the migratory range of various herring stocks, be designed
'CanadianCounter-Mernorial.para2 .01.
'CanadianCounter-Mernoriap l,aras.201,217,and 218T . he factthatstocksrnay
interrningleocsnotprecludetheexistenceofseparatestocks. See UnitedStates
Counter-MernorialA , nnex 1,Vol.IA,para. 65, n.4.
'UnitedStatesCounter-MernorialA , nnex1,Vol. IA.para.79.
'Ibid.
@) 'UnitedStatesCounter-MernorialA . nnex1,Vol. IA, Figs. 3033. and 34;Table
B, p.97;andparas.79-82.
Hare, op. cil.. 6. [61 ANNEXESTO REPLYOFTHE UNITEDSTATES 569
for the various stocks and not be unduly limited by the rather
arbitrary divisionswithin ConventionSubareas "'.
The omission of the remainder of that statement leaves the impression
that the United States did not believe that it was appropriate to apply
ICNAF divisionsIo herring. The full statement, however, leavesno doubt
that the United States believes that there are separate herring stocks
associated with the Swtian Shelf, Georges Bank', and the Gulf of Maine
Basin, and that these stocks should not be subdivided further. The
statement by the United States representativecontinued:
"[flor example. it would seem that the herring stock oJ.7southern
Nova Scotia whichappears to overlapDivisions 4Xand 4W couldbe
most tffectively managedas a unit. A related problem is posed by
the extensionof the GeorgesBank stock into Subarea 6 '".
Accordingly,the United States went on to suggest:
"... a catch quota for adult herring in Subarea 5Y, a quota for the
'Georges Bank' stock that in fact is fished in Subarea 5Z and
Subarea 6,and a quota for the stock in 4XW '".
II. Other ICNAF documents relating to this pericd indicate that
Canada recognized the separation between Georges Bank and Scotian
Shelf herring stocks.Thus, Canada accepted the resultsof a report by the
Standing Committee on Research and Statistics (STACRES) as il
affected the Nova Scotia (Division4Xa-4Wb)herring stock, includingthe
statement in that report that "the juvenile fisheriesof NovaScotia do not
in any way affect recruitment to either the Gulf of Maine stock or the
Georges Bank stock'". Furthermore, during this same pericd, ICNAF
Panels 4 and 5 recommended adraft resolution relating to proposais for
the conservation of herring stocks prompted by the knowledge"that the
'CanadianCounter-Memorial. para2 .18.[Emphasisby Canada.]Quotingfiom
SpecialCommission Meetingon Herring-January-February 1972.Conservation
ofHerring, Memorandum by the United StatesICNAFSerialNo. 2680.Spec.
Mtg. Comm.Doc.7211.CanadianCounter-MemorialA , nnexes,Vol.IV.Annex
18.As the quotation indicates. tenitedStates addressedarbitrarydivisions
"within"no1"bctween".subareas.
'As wasnoted previouslyt,hisstockmigratesseasonally alothesouthernNew
Englandshelf.UnitedStatesCounter-MemorialA , nnex1. Vol.IA.para.81.and
@ Fig.35.
'SpecialCommission Meetingon Herring-January-February 1972.Conserva-
tionofHerring.Memorandumby the United States ICNAFSerialNo. 2680.
Spcc.Mtg.Comm. Doc.7211.[Emphasisadded.]
' Ibid.
'SpecialMeetingon Herring-January-February 1972,CanadianProposalsfor
theNovaScotiaStock(Div.4x0-4Wb). ICNAFSerialNo.2728,ProceedingN s o.
3,App.1.Dcpositedwiththe Courtby the UnitedStatesin connection withits
MemorialpursuantIoArticle5q2)oftheRulesofCourt. 570 GULFOFMAINE 171
stock of herring found on Georges Bank (Division 52 of Subarea 5)
migrates westward and southward into an area designated by the
Commission as Statistical Area 6 and is exploited there '".
12. A.W.H. Needler was the head of the Canadian delegation at these
proceedings. In June of 1979, he described the early regulation of the
herring stocks by ICNAF as follows:
"ICNAF got the authority, the mandate, to recommend national
allocations to governments in December 1971.. ..Within six weeks,
ICNAF had, for the first time, established quotas, total allowable
catches, and national allocations in the multination fishery. It had
never been done before, and this was for the three large [Georges
Bank, Gulf of Maine Basin, and Scotian Shelfl herring stocks"'.
13. By stating that these herring stocks intermingle, Canada implies
that the separate Georges Bank, Gulf of Maine Basin, and Scotian Shelf
herring stocks do not exis'Canada furnishes no support for its statement
that the herring stocks intermingle. In Volume 1of the Annexes to its
Counter-Memorial. Canada relies upon a work by the Canadian fishery
scientisW.T. Stobo in stating that "herring tagged at the entrance to the
Bay of Fundy have demonstrated extensive southwest movement into the
Gulf of Maine, beyond Cape Cod, and also northward to Cape Breton "'.
@Canada accompanies this statement witb Figure 53 in Volume 1 of the
@ Annexes to its Counter Memorial, reproduced here as Figure IA. In this
illustration, Canada portrays six arrows crossinghe Gulf of Maine Basin
southwestward from Nova Scotia and one arrow rounding the tip of Nova
Scotia and proceeding northeastward along the Scotian Shelf. The
taggicg upon which this figure is based was conducted in the Bay of
Fundy and off southwestern Nova Scotia. In all, 343 herring
'Special Meetingon Herring-January-February 1972,ResoluiionRelating to
1972 Proposalsfor the Conservation ofHerring Stocks in Subareas 4 and 5.
ICNAFSerialNo. 2729,ProceedingsNo.4, App.V.Depositedwiththe Courtby
the UnitedStates inconnectionwithits MemorialpursuanttoArticle5q2) of the
Rulesof Court.
'Annual Meeting-June 1979S.torement by Dr. A. W. H. Needler (CanadaJ.
ICNAF Serial No. 5520, ProceedingsNo. 7, App. IV. [Emphasisadded.] Dr.
Needler'swmmentsonthisoccasionattest to Canadianrecognitionofthe division
al the Northeast Channelof morethan just the herringstocks.Hecontinued:
"Within sixmonths,ICNAF did the samefora scoreor soof groundfish
stocks. In 1973.less than 18 months after it had the authority, ICNAF
extendedthissystemtoalmost al1the stockswhichare subjecttointernation-
al fishingW.
Ibid.
'Canadiao Counter-Memorial.paras.201, 217,and 218.
'Canadian Counter-Memorial.Annexes,Vol. 1,para. 139, citingtW.T. Stobo.
Movementsof Herring Taggedin the BayofFundy -Update.ICNAF Res. Doc.
76/V1/48, Serial No. 3834, 1976.Deposited with the Court by Canada in
,connectionwith its Counter-Memorialpursuant to Article 5q2) of the Rulesof
Court. [8-101 ANNEXESTO REPLYOFTHE UNITEDSTATES 571
tags were retrieved'.Canada does not mention, nor doesCanada's Figure
@ 53 reflect, that the preponderance(200) ofthe herring were recaptured in
the same area in which they were tagged'. Another 64 tags, also
disregarded in Canada's presentation, were recovered largely off New
Brunswick, with afew of these retrieved alongthe Maine Coasteast of
Mount Desert Rock '. Fifty-four herring travelled along the southwestern
tip of Nova Scotia, then northeastward along the Scotian Shelf, and were
recaptured off Cape Breton'. These 54 herring are represented in
@Canada's Figure 53 by one arrow extending northeastward. The six
arrows that Canada has drawn across the Gulf of Maine Basin reflect
only 25 recaptures out of a total of 343'.Only one of these 25 recaptures,
or lessthan 0.3 percent of the total recaptured,was from Georges Bank6.
@See Figure 1B. This tagging study thus confirms the existence of a
separate stock of herring identified with Georges Bank. separated from
the herring stocks on the Scotian Shelf by the Northeast Channel.
14. Subsequent to the article relied upon by Canada, Stobo published
another review of herring tagging studies from 1973 through 1981, in
which 1,488 tagged herring were recaptured after release off southwest
Nova Scotia '.Almost 94.4 per cent of the herring were recaptured from
the Scotian Shelf and Bay of FundyC Fewer than 5.6 per cent were
recaptured in the western portionof the Gulf of Maine Basin, and only
two herring, or 0.001 per cent of those tagged, were recaptured on
Georges Bank '.
15. In brief, there is little evidence of herring migrations across the
Northeast Channel between Georges Bank and the Scotian Shelf, but
there is a definite connection, recognizedby Canadian and United States
scientists and previouslyacknowledged by Canada itself 'O,between the
herring on Georges Bank and those found on Nantucket Shoals and the
southern New England shelf.
'Stobo,1976 op. cilp. 2.Table1.
Stobo, 1976 op. citp. 2,Table1;andpp.10-15.Figs.Sa-cand6a-c.
'Ibid.
'Ibid.
'Stobo,1976 op. cilp. 2.Table 1.
'Stobo, 1976 op. cilp. II,Fig.5b.
'W. T. Stobo. ScientiJlc Council Meeting-lune 1983. Report d the Ad hoc
WorkingCroup on Herring Tagging. NAFOSerialNo.N723.NAFOSCS Doc.
83/V1/18,1983.Figs.7.8, 15,and20.
'Ibid. Becauseof the way in whichthe data werereportedin the study. this
includesa fewrecapturesfromalongthe Mainewast eastofMount DesertRock.
'Stobo. 1983 op. cilFigs.7,8. 15.and20.
'OParas.7,9.and I1,supra. 572 GULF OF MNNE [Ill
SECTION 3. Scallops
16. In its Memorial, Canada stated that "[wpile it is not possible to
state definitely that there is a discrete Georges Bank scallop stock,there
are well identified discontinuitiesin the wncentrations of scallops in the
Gulf of Maine area", and that "[f)Jllowingthe pattern of these areas of
concentration, major fisheries for scallopshave developed on Gwrges
Bank proper, in the Great South Channel-Nantucket Shoals area, and in
the waters off southwest Nova Swtia '". Elsewhere in its Memorial,
Canada described Georges Bankas offering a "habitat" for " 'resident'
stocks" of a number of species, including scallops l. In its Counter-
Memorial, Canada continues to recognize scallopsas one of a number of
species that "form separate stocks or aggregations on Georges Bank',".
Nevertheless, by emphasizing the possibility that larvae from one bed
eventually maysettle in another bed, without explainingthe significance
of that fact', the presentation in the Canadian Counter-Memorial
obscures the fact that the scallops on Gwrges Bank are virtually
stationary, that they are associated with Georges Bank alone, and that
there is a diswntinuity at the Northeast Channel. What Canada fails to
note is that, although larval drift connects the various scallop beds on
Georges Bank. because of the pattern in which water circulates through
the Gulf of Maine area, there is no larval drift between the Swtian Shelf
and Georges Bank '.
17. In its Memorial, the United States described a division at the
Northeast Channel between the scallopsof the Swtian Shelf and those of
Georges Bank 6.As a result of this break, fishing for scallopson Gwrges
Bank, and management measures relating thereto, do not affect mainte-
nance of the scallops on the Scotian Shelf '. In Annex 1 to its Counter-
Memorial, the United States also described the wnnection, through the
drift of pelagic Iarvae.among al1of the scallop bedsof Georges Bank (Le.,
on the northern edge and northeast peak, the southeast part, and the
Great South Channel),and between thosescallop beds andthe beds on the
southern New England shelf '.
18. Nothing in the Canadian Counter-Memorial or its Annexes refutes
the division at the Northeast Channel between scallop beds, the inter-
relationshipsof the scallopbedson Georges Bank, orthe connectionof the
'CanadianMernorial.para. 104.
'CanadianMernorial,para. 106.
'CanadianCounter-Mernoriaip.ara.212(f).
'CanadianCounter-Mernorial,para 221.
'United StatesCounter-MernorialA , nnex 1,Vol.IA.paras. 94 and 95.
i@ +UnitedStatesMernorial,para.55,and Figs.7and 36.
'Ibid.
'UnitedStatesCounter-MernorialA . nnex 1.Vol.IA,paras. 94 and 95. Il2] ANNEXESTO REPLY OFTHE UNITEDSTATES 573
Georges Bank beds with the beds to the southwest '.The Canadian
presentation simply draws attention to United States acknowledgment
that scalloplamae drift in the water before theysettle to the seabed'To
this end, Canada quotes from the United States Final Environmental
Impact Statement as it relates to the United States Fishery Management
Plan for Atlantic sea scallops:
"'There are no observed biologicaldifferences that would lead to a
separation of stocks within the area regulated by this management
plan ... consideringthe longpelagic phase of the larvae ...'"'.
Canada neglects to add, however, that the "area regulated by this
management plan" was the United States Fishery ConservationZone off
the North Atlantic States. which extends northeastward only to the
Northeast Channel4. This quotation thus supports the United States
descriptionof the connectionsamong the scallop beds on GeorgesBank;it
does not reflect a connection betweenthe scallopson Georges Bankand
those on the Scotian Shelf. In view of the pattern in which water
circulates through the area, passing from the Scotian Shelf and the
Northeast Channel round the Gulf of Maine Basin before doubling back
around Georges Bank '. scallop larvae from the Scotian Shelf will not
reach Georges Bank, whereaslarvae from the beds on Georges Bank will
circulate in the Georges Bank gyre and will, to some extent, drift
southwestward alongthe southern New England shelf.
SECTION 4. Lobster
19. In its Memorial and Counter-Memorial, the United States de-
scribed the separate stocks of lobster associated with Georges Bankand
BrownsBank 6.In his atlas on major Atlantic coast fish and invertebrate ,
resources,discussed above with respect to cod and herring, the Canadian
authority Hare depicts separate lobster concentrations on Browns Bank
'CanadianCounter-Memorial. paras2.21and 222; andAnnexa, Vol. 1. para.
145.
'CanadianCounter-Memorial. para2.21;andAnnexa. Vol. 1.para. 145.
'CanadianCounter-Mernorialp.ara. 221.[Emphasisadded.]
'See the descriptionof a "ManagerncntUnit". inFishery ManagementPlan.
Final EnvironmentalImpact Statement. RegulatoryImpact Reviewfor Atlantic
Seo Scallops (Placopecun magellanicus).preparedby Ncw EnglandFishery
Management Counciiln , consultationwiththemid-AtlanticFisheryManagement
Counciland SouthAtlanticFisheryManagement CounciJla .n. 1982.. 1.
@ 'See.UnitedStatesMernorial. Fig5..
@@6United States Mernorial.para. 55. and Figs. 7 and 36; and UnitedStates
Counter-MernorialA, nnex1.Vol.IA.para.97. 574 GULF OF MAINE 1131
and Georges Bank '.The Canadian Memorial does not address the stock
structure of lobster. In its Counter-Memorial, however, Canada denies
that the Northeast Channel is located between separate stocks of lobster,
and goes so far as to claim that the Channel is an important area of
concentration for Iobster'.By ils presentation of data concerning lobster
concentrations, as well as the results of tagging studies, the Canadian
Counter-Memorial and Volume 1 of the Annexes thereto obscures the
separation that occurs at the Northeast Channel.
@ 20. A comparison of Figure 40 in Volume 1 of the Annexes to the
Canadian Counter-Memorial, reproduced here as Figure 2, with the
original figures from which it was derived, found in a study by the
@ Canadian scientists Staskoand Pye and reproduced here as Figures 3 and
@4 ',reveals major discrepancies. The two original figures show separate
concentrations of fishing effort on the slopesof Browns Bank and Georges
Bank, separated by the Northeast Channel. The Canadian representation
@of this data in Figure 40 nonetheless implies that these separate areas are
continuous, thereby extending across the Northeast Channel from Browns
Bank to Georges Bank '.
21. Canada also refers to tagging studies to buttress ils assertions that
GeorgesBank lobster and Browns Bank lobster, and, indeed, al1lobster in
the Gulfof Maine area, are of one stock'.In fact, these and other tagging
studies confirm the separation of Georges Bank lobster from
'Hare,op. rit.p.8.
'Canadian Counter-Memorial.para. ZIZ(aXii).
'A. B. Stasko and R. W. Pye, Canadian Offshore inbsfer Fishery Trends.
CAFSAC Res. Doc.80156, 1980,pp. 10-11,Figs. 2 and 3. Depositedwith the
Court byCanada inconnectionwithilsCounter-Mernorialpursuantto Article50
@(2)of the RulesofCourt.Dottedareasin Fig. 3 indicate theCanadianlobsterfish-
inglocations frorn1973to 1979.The commercialcatchpereffortisshownin Fig.
@ 4. Becauseof the mannerin whichthe data are presentedin Fig.4, numbers
showingthe data foreach yearfrom 1973to 1979-appear acrossthe Northeast
Channel. Thisdoes not mean that the lobsterwere caught in the Northeast
Channel.The lobster catchesshownin Fig.4 were madein the dorredareasin
Fig.3and theshadedareas in Fig.4.
'This article alsopointsout that there are populationdifferencesbetweenthe
GeorgesBank(CorsairCanyon)andBrownsBanklobster:the catchperuniteffort
on Browns Bank iisncreasing'whereasthe catper uniteffortonGeorgesBankis
decreasinp.Staskoand Pye,Canadian OffshoreLobsrerFishery Trends. op.cii..
pp. 1-4.Suchdifferencesare evidenceof the lackof interdependencebetweenthe
twostocksof lobster.In a separatework,the sameauthorsnote anotherindicium
of the independenceof these twostocks:the differencein their meansize.A.B.
Stasko and R.W. Pye, Geographical Sire Differences in Canadian Offshore
Lobsters.CAFSACRes.Doc.80157,1980,pp. 1-12.
'Canadian Counter-Memorial, para.224.and Annexes.Vol. 1.para.131 (b). [14-24] ANNEXESTO REPLYOFTHEUNITEDSTATES 575
Scotian Shelf lobster. Canada refers to a Canadian study in which 28,226
tagged lobster were released offPort Maitland, NovaScotia,overa period
of more than 35years '.Over 50 percent of these wererecaptured '.Most
(80.8 per cent) of the lobster were recaptured within the area in which
they were released, and an additional 14.6 per cent were recaptured
within 18.5 kilometers of the release area '.Only 4.1 per cent were
recaptured 18.5kilometers or niore from the Nova Scotia fishingarea in
which they were released '. The few lobster (0.2 per cent of the total
recaptured) that moved 74 kilometersor more were recaptured mainly in
the inshorefisheries of the Bay of Fundy and the Gulf of Maine '.The
lobster moved principally to the northeast and to the southeast along the
coast'.Only Iwo lobster, of the more than 14,000 recaptured, were
recaptured on Georges Bank '.
@ 22. Figure 41 in Volume 1of the Annexes to the Canadian Counter-
Memorial, reproduced here as Figure 5, is redrawn from a figure in
Campbell's article6. The Canadian figure purports to show "extensive
migrations [of lobster] from Port Maitland, Nova Scotia, throughout the
Gulf of Maine area". In fact, the figure illustrates the migration of only
30 of the more than 14.000 lobster that were recapture'.The author of
the original study noted in the caption to his figure a fact ignored by
Canada: over a period of more than 35 years, with the exceptionof one
site', only one lobster was recaptured at each of the distant recapture
@ sites. The original figure is reproduced here as Figure 6.
23. Figure 42 in Volume 1 of the Annexes to Canada's Counter-
@ Memorial is similar to Figure 41. II purports to show lobster tag returns.
based upon "unpublished Canadian Department of Fisheriesand Oceans
data" that Canada has failed to provide to the Court or to the United
6J States. As such, it can only be assumed that Figure 42 has no more
@ support than does Figure 41.
Canadian Counter-Memorial,Annexes.Vol. 1. para. 131(b): A. Campbell,
Movemencs of TaggedLobsfersReleased df PorcMaifland, NovaScocia.1944-
80. CanadianTech.Rpt.ofFisheriesandAquaticSciences,No.1136.1982,p. iii.
Depositedwith the Court by Canadain connectionwithits Counter-Memorial
pursuanttoArticle50(2)ofthe RulesofCourt.
Ibid., p. 4.
'Ibid.. piii.
'Ibid.
'Ibid..p.5. Fig.6.
'Ibid.
'Campbell, op.cil.p.5.Fia.6;p.I1.Table4,bstingthe30recaptures;and p.iii,
fortotalnumberrecaptured.
'At that onesite.wolobsterwererecapturedoverthe35-yearperiod.576 GULF OF MAiNE 1251
24. In short, the tagging studies relied upon by Canada confirm that
lobster are generally recaptured close to the areas in which they are
released. Extensive migration is the exception. rather than the rule '.To
the extent that lobster from Georges Bank canyons migrate, the move-
ment is primarily tothe shallower areas of the Bank during the spring and
early summer, with a retreat to the deeper water of the canyonsoccurring
in the late summer and fall '.
25. Finally, in Volume 1 of the Annexes to its Counter-Memorial,
Canada proffers a "hypothesis" that lobster within the Gulf of Maine
area form a unit stock '.As support for this hypothesis, Canada cites an
article thatdeals with lobster in the Canadian maritime region (off Nova
Scotia, New Brunswick, and Prince Edward Island). That article con-
cludes that the region is wmprised of three general lobster stock areas: (1)
the wes- ~ - ~ ~ ~mes. includine the Bav of Fundv and off southwestern
Nova Scotia; (2)off the eastern &ast of Nova ~co6a; and (3)the southern
Gulf of St. Lawrence4. As the authors noted, this study did not address
the lobster populations of the Gulf of Maine Basin or Georges Bank:
"Although some of our analyses included Newfoundland, Quebec
and Maine, the main discussion is centered around lobster popula-
tions off New Brunswick, Nova Scotia and P.E.I. (Prince Edward
Island] '."
The paper, therefore, does not support Canada's hypothesis that lobster
within the Gulf of Maine area form a unit stock 6.
'As the United States discuued in Annex 1to its Counter-Memorial [para.75,
and Table B.p. 97b taggingstudiesare a factorin the identificationof separate
fishandshellfishstocks. Nonethelesst.he fact that individualmembersofa stock
are found to havestrayed fromthe area associatedwiththe stockdoesnotnegate
the separateexistence ofthat stock.
'See. Hare. op.cil.p.8; and UnitedStatesCounter-Memorial.Annex 1, Voll.A,
para. 97.
'CanadianCounter-Memorial.Annexes,Vol.1,para. 131(b).n. 22.
'A. Campbell andR.K. Mohn,"The Questfor LobsterStock Boundariesin the
Canadian Maritimes".NAFO SCR Doc.82/IX/107. 1982,p. 1.Depositedwith
the CourtbyCanada inconnectionwithits Counter-Mernorial pursuantto Article
50 (2)ofthe Rulesof Court.
' Ibid.p. 3.
'The otherpapcrwithwhichCanada attempts to supportilshypothesisthat there
unit lobster stock to support thesc hypotheses.Canadian Counter-Mernorial.
Annexes,Vol. 1.para. 131(b),n.22.G.C. Harding. K. F. Drinkwater,and W.P.
Vau. "Factors Influencingthe Sire of AmericanLobster (Homarusamericanus)
StocksAlongthe AtlanticCoastof NovaScotia, Gulfof St. Lawrence.and Gulf
of Maine: a New Synthesis", in CanadianJournal N Fisheriesand Aquatic
Sciences.Vol. 40, 1983.pp. 168-184.Depositedwith the Court by Canada in
connectionwith its Counter-Memorial pursuant to Article 50(2)of the Rulesof
Court.1261 ANNEXESTO REPLY OFTHE UNITEDSTATES 577
26. Canada's hypothesis is contradicted directly by the tagging studies
discussed above and by those referred to in Annex 1 IO the United States
Counter-Memorial ',as well as by other studies by Canadian authorities '.
For instance, in a 1980 work, the Canadian scientist A.B Stasko reviewed
the results of a 1975study in which 4,304 lobster were tagged on the Sco-
tian Shelf'. Stasko noted that most of the recaptured lobster had not
moved far: 80 per cent of the lobster were recaptured less than 37
kilometers (20 nautical miles) from the release point '.Commenting upon
the results of tagging conducted from 1972through 1975 in the vicinity of
northeastern Georges Bank and Browns Bank, in which 1.935lobster were
tagged, the author mentioned only one occurrence in which a lobster
moved between BrownsBank and Georges Bank '.
'UnitedStatesCounter-Mernorial.Annex1,Vol.IA.para. 97 Forexample. ina
stud..dem.tcd bvthe UnitedStates uiih itsCountcr-Mernoriallin uhich 1.326
lobstcrwcrctaggid on GeorgesBankand the continentalshelfio the southwest
(from CorsairCanyonon GeorgesBankto Hudson Canyonoff LongIsland)and
945wererecaptured,nonc ofthe tagged lobsterwasrecaptured northeastof the
Northeast Channel orin the Gulf of Maine Basin.J.R. Uzmann.R.A. Cmper.
Homarus americanus.gronthe Southern NewEnglandContinentalShelf",Nation-
al Oceanic and Atmospheric Administration. Tech. Rpt.. National Marine
Fisheries Service.SSRF-705,1977. pp. Iand 7. Fig. 3.
'Stasko and Pye. commentingin a 1980 work upona lobster tagging study
conductedin 1975. notedthat, of 363 lobster recaptured out otfhe 4.260lobster
tagged on the Scotian Shelf.only six lobster. or 1.7 per cent of the total
recaptured. movedfrom the Scotian Shelf to GeorgesBank. Stasko and Pye.
GeographicalSire Differencesin CanadianWshore Lobsrers.op.cil.. p.4.
'A.B. Stasko. "Tagging and Lobster Movementsin Canada", Canadian Tech.
Rpt.of Fisheries and Aquatic Sciences N,o.932. 1980,p. 147.
'Ibid.
'Ibid.578 GULF OF MAINE [Il
Annex22
A c~lllUVEOF TllCAVAI.YS IVTHE CANADIA COUSTER-MFMOR OITHE 12
St't~lEsIHATCA~AI>P AROPOSE 1S ADO TO THE16SPECIEISDtNTlFlE DY THE
UVIIFD STATF ASS <:OIIMERCIALLIYPORTAKT
INTRODUCTION
1. In its Counter-Memorial and Volume 1 of the Annexes thereto,
Canada suggests that an additional 12 species should be included in the
list, compiled by the United States, of the 16 fish species that are
commercially important in the Gulf of Maine area'.Canada's suggestion
is unfounded in view of the established patterns of fishing in the Gulf of
Maine area.
2. As the United States indicated in its Memorial and Counter-
Memorial, although over 200 species of fish are found in the Gulf of
Maine area, most of these species are of little or no commercial
importance1. In contrast to many parts of the world where "pelagic"
species (those, such as tuna, that live in open waters) are the primary focus
of commercial fishing, most of the fishing in the Gulf of Mainearea is for
bottom-dwelling species-the "groundfish", or "demersaï' fish. Of the 16
fish and invertehrate species of major commercialimportance in the area,
10 'are groundfish, four are invertebrates (including scallops and lobster,
which are bottom-dwelling), and only twoof the fish species (herring and
mackerel) are pelagic. Because of their commercial importance, consider-
able fisheries resear'has been conducted into al116species, and certain
of them are theobject of directed fisheri'.The commercial importance
of these 16 species traditionally has been recognized by the Parties in the
International Commission for the Northwest Atlantic Fisheries (ICNAF)
and in their respective domestic management systems6.
'CanadianCounter-Mernorial.para.12; and Annexes,ol.1,para. 121,and n.12.
UnitedStates Mernorial,para. 52;and UnitedStates Counter-Mernorial.Annex
1, Vol.IA,para. 52.
'These are: Atlanticod, haddock,silver hake, red hake, white hake, redfish,
yellowtailflounder,pollock,argentine, andcusk.
United StatesCounter-Memorial,Annex 1,Vol.IA,paras. 76-99.
'A directedfisherysa fisherydesignedspecificallyto catcha particularspecies.
'United StatesCounter-Memorial.Annex 1, Vol.IA, para. 75, and Appendices
A-H; fora generaldiscussionofUnitedStates initiativeswithinICNAF designed
10 impose stricter regulatorymntrols upon these spciesee United States
Counter-Mernorial.Annex3, Vol.II, paras.23-62. 121 ANXEXESTO REPLY OF THE UNITEDSTATES 579
3. The distributions of stocks of four of the 16 species-mackerel.
pollock, argeniine, and shortfin (Illex)squid-are such ihai these species
will be "transboundary" stocks irrespective of the delimiiation ofthe Gulf
remaining 12, or fully three-quarters of these commercially importanthe
species, are divided naturally at the Northeast Channel and therefore could
best be managed if the delimitation were to respect that natural boundary '.
By contrast, should the boundary to be delimited cul across Georges Bank
and thereby through stocks of these species, these 12 would become
transboundary stocks and, as with the other four necessarily transboundary
stocks mentioned above, would require joint management. As previously
discussed by the United States, joint conservation and management of a
stock is inherently difficultl.This difficulty is compounded as the number
of stocks that require joint management increases '.
4. Although Canada does not dispute the commercial importance of the
16 specics identifiedby the United States, il would include with those 16
spe&es 12 additional skcies. Canada asserts that nine of these 12are also
commercially important, and that three are of recreational importance'.
The additional 12 species that Canada regards as "important" in fact are
generally of minor commercial importance in the Gulf of Maine area,
especially to Canada '.Because of their lack of commercial importance.
Furthermore, seven of nethese species only migrate through the area, without
being harvested, and thus management of these seven will not be affected
'UnitedStatesCounier-Memorial,Annex 1,Vol.IA,paras. 76-99.
'UnitedStatesCounter-Memorial. paras3 .49-368.
' UnitedStatesCounter-Memorial. para. 368.
'CanadianCounler-Memorial.Annexes.Vol. 1.para. 121.n. 12.In a numberof
instances,Canada indiscriminately combines ils three "recreational"species with
"commercially important". See.le.g.,CanadianCounter-Memorial,Annexes.Vol.as
1.para. 121.
'Based upon catch statistics compiled by the Northwest Atlantic Fifieries
Organization (NAFO), in 1982, 301,920 metric tons(m.[.)of the 16 species
recognizedby the Partiesas commercially importantin the Gulf of Mainearea
were caught by al1States on GeorgesBank and in the Gulf of Maine Basin.
[NAFO Secretariat, Provisional Nominal Catches in the Northwest Atlantic.
1982, NAFO SCS Doc. 83/1X/22, (hereinafterNAFO, Provisional Nominal
Catches). 1983,pp. 12-45.Throughout thisAnnex,Subareas5Zeand 5Yareused
to estimateGwrges Bankand Gulfof MaineBasinlandings.]This isan average
of 18.870m.[.perspecies.Bycontrast,in 1982,only-43.385 m.1.of the additional
specicsproposedbyCanada werecaughtbyal1Stateson GeorgesBankand inthe
Gulf of MaineBasin.[NAFO,Provisional NominalCaiches,pp. 16-37.]Thisis
catchofthe 12additional speciesrwnsistedof three speciesthat dividenaturallyat
the Northeast Channel.ThesespecieswereAmericanplaice(15.180m.[.),winter
flounder (10.265m.1.).and witchflounder (5,008m.1.).(Ibid.,pp.16, 17.and 19.1
Thus. these three species accounted for 30,453m.t., or 70 per cent of the
combinedcatchof the 12additional speciesproposedbyCanada.580 GULF OF MAINE 131
by this delimitation. The remaining five species divide naturally at the
Northeast Channel. Concentrations of these fivespecieswould be transected
by a delimitation that cul across Georges Bank '.Should the need arise to
conserveand manage these species,they would be benefitted by a delimita-
lion that generally respects the Channel.
SECTION 1. The Migratory Species upon Which Canada Has Focused
Migrate Through the Gulf of Maine Area and Are Not Caught There in
Signiîïcant Numbers
A. BLUEFIN TUNA.
S. Bluefintuna are highly migratory and range from offNewfoundland to
the Gulf of Mexico '.Bluefin tuna do no1spawn in the Gulf of Maine area
tuna are regulated under the International Convention forthe Conservationn
of Atlantic Tunas, to whichboth Canada and the United States are Parties '.
B. ATLANTIC SALMON
6. Atlantic salmon are highly migratory and range to the north well
beyond the Gulf of Maine area, indeed, as far as Greenland. They are
anadromous species that spawn in rivers. Atlantic salmon normally are not
found on Georges Bank or in the Gulf of Maine Basin '.They are regulated
under the new North Atlantic Salmon Convention, to which both Canada
and the United States are Parties6.
'It isnoteworthythat severalotherspeciesthat, byCanada's standards,shouldbe
lisled as commerciallyimportant in.the area in fact are excludedby Canada.
Thesespeciesare the summerflounder,windowpaneflounder.oceanput. tilefish,
skates (winterand little),and bluefish. Each ofthese speciesexhibitsa distinct
distributional break at the Northeast Channel. See. e.g..United States (the
tration) groundfishtrawl-surveydata, providedon a regular basis to Canadian
fishery authoritiesover the years. Canada included some ofthese data in the
Annexes 10ils Memorial.CanadianMernorial,Annexes.Vol.IV,Annex2.
'Canada devotesan entire figure to this point in the Annexes to itsCounter-
Memorial.CanadianCounter-Memorial, AnnexesV , ol.1,Fig. 36.
'Forexample,in 1982,Canadalandednobluefintuna from GeorgesBankor the
Gulf of MaineBasin,and the UnitedStates landed2,935m.t. frornthoseareas.
NAFO, ProvisionolNominal Catches. p. 29.
'673U.N.T.S.63.TheotherPartiesto theConventionare: Angola.Benin,Brazil,
Cape Verde.Cuba. France, Gabon.Ghana. lvoryCoast.Japan. Korea.Morocco.
Portugal. Senegal, South Africa. Spain, and the Union of Soviet Socialist
Republics.
'For example.in 1982, neitherCanada nor the United States landed Atlantic
salmon from GeorgesBankor frornthe Gulfof MaineBasin.NAFO, Provisionol
Nominal Catches, p. 32.
'Convention forthe Conservationof Salmonin the North ~tlanîic Ocean. Mar.
1982,Art.2. [Ratifiedby Canada. theEuropeanEconomicCommunity.Iceland.
Norway. andthe UnitedStates.] 141 ANNEXESTO REPLYOFTHE UNITEDSTATES 581
C. SWORDFISH
7. Swordfish are highly migratory and range from off Newfoundland
to the Gulf of Mexico '.Swordfish do not spawn in the Gulf of Maine
area. Although there is a swordfish fishery within the area to be
delimited, it is an extremely limited one2.
8. Spiny dogfish are migratory and range from southern Labrador to
off Florida. They bear their young primarily in the middle Atlantic waters
and only occasionally in theGulf of Maine area 'They are not fished, ex-
cept incidentally, in thearea to be delimited '.
9. Alewife range from Newfoundland and the southern Gulf of St.
Lawrence to North Carolina. They spawn in rivers and, like other
anadromous species, their unit-stocks should be defined by their river of
origin.since the most intensive fishing occurs there. Alewife are not fished
for in the area IObe delimited in this case, albeit alewife occasionally may
be caught '.
F. AMER~CA SNHAD
10. American shad range from the Gulf of St. Lawrence to Florida 6.
They spawn in rivers and, as is the case with salmon and alewives, unit-
stocks of shad should be defined by their river of origin. American shad
are not fished in the area to be delimited '.
'Canada devolcsan entire figure to demonstrating thispoint.Canadian Counter-
Memorial,Annexes.Vol.1,Fig. 35.
'For example,in 1982.Canada landedone metricton of swordfish from Georges
Bankand nonefrom theGulfof MaineBasin;this representedonly0.1percent of
Canada's total landings of swordfish in the Northwest Atlantic Ocean. The
United States landed 702m.1.of swordfish fromthose areas. NAFO. Provisional
Nominal Catches, p. 28.
'Spinydogfish donotspawn(layeggs);theiryoungare bornas fullyformedyoung
lish
'Forexample,in 1982.Canada landednospinydogfishfrom GeorgesBankor the
Gulf of Maine Basin.and the United States landed 2,994 m.t. from thoseareas.
NAFO, ProvisionalNominal Catches.p. 37.
'Forexample,in 1982.Canada landednoalewifefromGeorgesBank orthe Gulf
of Maine Basin. and the United States landed 4,183 m.1. from those areas.
NAFO, ProvisionalNominal Catches.p. 30.
Canada devotestwofiguresin Volume1of the Annexesto ils Counter-Memorial
to demonstrationsof the migratorynature of shad.Canadian Counter-Memorial,
Annexes,Vol. 1.Figs. 37and 38.
'For example,in 1982,Canada landed no Americanshad fromGeorgesBankor
the Gulf of Maine Basin,and the United States landed only 25m.t. from those
areas. NAFO. ProvisionalNominal Catches.p. 31.582 CULFOF MAINE 151
11. Saury is an oceanic.pelagicspeciesthat for mostof its life is found
in the surface waters of the opensea beyondthe continentalshelf between
Cape Hatteras and Newfoundland. Saury are found on the continental
shelf from the late spring to the early autumn when the waters abovethe
shelf are relativelywarm. Saury do not spawn in the Gulf of Maine area.
They are not generally fished on Georges Bank or in the Gulf of Maine
Basin '.
SECTION 2. The Additional Five Species upon Which Canada Has
FocuseciAre Naturally Dividedat the Northeast Channel
12. In its Counter-Memorial. Canada acknowledgedthat the North-
east Channel divides separate stocks of winter flounder '.As the United
States discussedin Annex 1to its Counter-Memorial, the winter flounder
is a member of the yellowtail-ocean pout association'. This group is
relatively abundant on Georges Bank and southwest to southern New
England and beyond;separate stocksare found on certain of the banks of
the Scotian Shelf. This species, harvested as a by-catch, is of minor
commercial importancein the area '.
B. AMERICAP NLAICE
13. As the United States noted in Annex 1 to its Counter-Mernorial,
the American plaice is a member of the same group of speciesas herring,
cod, and haddock. Each of these specieshas stockson Georges Bank that
are separated by the Northeast Channel from stocksof the same species
on the Scotian Shelf. Figure 26 in Annex 1to the United States Counter-
Memorial, which is based upon groundfish trawl-suwey data, illustrates
the break in the distribution of American plaice that occurs at the
Northeast Channel. Canada's own Figure 48. in Volume1of the Annexes
to its Counter-Memorial, which showsthe biomassdistribution of Ameri-
can plaice, also confirms this break in distribution occurring at the
'Forexample,in 1982, neitherCanadanorthe UnitedStateslanded saury from
GeorgesBankor fromthe Gulfof Maine Basin.NAFO. ProvisionalNominal
Catches. p. 30.Sauryislistedunder"PelagicFish(NS)[Non-Specified]."
'"Forthe remainingtwospecies (yellowtailfloundeand winterflounder)stocks
are in fact dividedby the NortheastChannel." CanadianCounter-Memorial,
para. 212(g).Emphasisinoriginal.]
'UnitedStatesCounter-MemorialA . nnex1. Vol.IA,paras. 53 and54,and Fig.
23.
'For example,in 1982.Canada landedonly 19 m.1.of winterflounder from
GeorgesBankand nonefromthe Gulfof MaineBasin,and the UnitedStates
landed 10,246m.1.fromthoseareas.NAFO. ProvisionalNominal Catches,p. 19. 161 ANNEXESTO REPLY OFTHE UNITED STATES 583
Northeast Channel. This species, harvested as a by-catch, is of minor
commercial importance in the area '.
14. In Volume 1 of the Annexes to its Counter-Memorial, Canada
acknowledges that butterfish have a distribution similar to that of longfin
squid, and that the Northeast Channel represents the northeastern limit of
that distribution'. Annex 1 to the United States Counter-Memorial
presents data that confirms that the Northeast Channel is a barrieIOthis
species'. This species is notfished, except incidentally, in the area to be
delimited '.
15. Goosefish move very little, and only seasonally, on Georges Bank,
in the Gulf of Maine Basin, and on the Scotian Shelf. This pattern
suggests that there may be separate local stocks of goosefish in these
areas. Groundfish trawl-suwey data show a pronounced break in the
distribution of goosefish occurring at the Northeast Channel. This species
isof minor commercial importance in the area and is not the object of a
directed fishery'.
E. WITCH FLOUNDER
16. Groundfish trawl-survey data show a distinct break in the distribu-
tion of witch flounder that occurs at the Northeast Channel. Canada's
own Figure 49, in Volume 1 of the Annexes to its Counter-Memorial,
which shows the biomass distribution of witch flounder, confirms this
division at the Northeast Channel. ICNAF recognized a separation
between the witch flounder of Subareas 4 and 5, which are divided by a
line that runs through the Northeast Channel. The Canadian scientist
D.J .carratt has described a break in the fishing areas for this species at
lFor example,in 1982,Canada landed only 27 m.t. of Arnericanplaice frorn
GeorgesBank and none from the Gulf of Maine Basin,and the UnitedStates
landed15.153 rn.1.fromthoseareas.NAFO.ProvisionalNominalCarches.p. 16.
'Canadian Counter-Mernorial,Annexes.Vol. 1,para. 132.See also Canadian
Mernorial,para. 100.whereinCanadaacknowledgesthat the Northeast Channel
isthe northern limit of distribuforthe longfinsquid.
'United States Counter-Mernorial.Annex1,Vol. IA,para. 59.and Fig.27.
'Forexample.in 1982.Canada landednobutterfish from Georges Bankor from
the Gulfof MaineBasin,and the UnitedStates landedonly 459m.t. fromthose
areas. NAFO. ProvisionalNominalCarches,p. 27.
'For example,in 1982.Canada landed only one metricton of goosefishfrom
GeorgesBank and none from the Gulf of MaineBasin,and the UnitedStates
landed only1,620 m.1.fromthoseareas. NAFO, ProvisionalNominalCarches. p.
20.584 GuLFoF MINE r-~i
the Northeast Channel '.Although no stock studies on the witch flounder
in the Gulf of Maine area have been conducted, studies conducted on
populations of witch flounder located farther to the north have revealed
the existence of separate stocks '.This species, hawested as a by-catch, is
of minor commercial importance in the area '.
'D.J. Scarratt.cd.,CanadianAflanric OflshoreFisheryAilas. Canadian Special
Publicationof Fisheriesand AquaticSciences47(Rev.).1982,p. 70. Healsonotes
that theCanadian witch flounder fisheryis most important in the watersto the
northeast, in NAFO Subareas 2 and 3.Ibid., p.71.
'Stock differentiation studies for Newfoundlandand Gulf of St. Lawrencewitch
flounder reveal several discrete stocksin these areas. some with little spatial
separation.In Tact.Iwoseparatestocksare foundalong theEsquimannChannel of
the Gulf of St. Lawrence. W.R. Boweringand R.K. Misra. "Comparisionsof,
Witch Floundcr (Clyprocephaluscynoglossus) Stocks of the Newfoundland-
Labrador Area, Bascd upon a New Multivariate AnalysisMethod for Meristic
Characters". in Canadian Journal af Fisheries andAquafic Sciences, Vol. 39,
1982,pp. 564-570;and D.J. Fairbairn, "Which Witch is Which? A Study of the
Stock Structure of Witch Flounder (Clyp~ocephaluscynoglossus) in the New-
foundlandRegion", in CanadianJournal af Fisheries andAquafic Sciences. Vol.
38, 1981.pp. 782-794.
'For example. in 1982. Canada landed onlv five metric tonsof witch flounder
fromceorges Bankand four from the(iulf oi MaineBasin.and the UnitedStates
landcd4.999 m.!. fromthoseareas. NAFO. ProvisionalNominal C'archesp . 17. cil ANNEXESTO REPLYOF THEUNITEDSTATES 585
Annex23
A CRITIQU OETHEANALYSI SNTHECANADIA COUNTER-MEMO ofIHL
DISTRIBUT IFNISHSPECIE SNTHEGULF OfMAIN E REA
INTRODUCTION
1. The United States has demonstrated that fish species are not
distributed evenlythroughout the Gulf of Maine a'Each species has
environmental preferences,such as those for a certain temperature and
depth, that dictate the pattern of distribution for that species.The three
ecological regimes of the area-associaterespectively with Georges
Bank, the Gulf of Maine Basin, and the Scotian Shelf-havdifferent
environmental characteristics, and the fish species are distributed in
accordance with their responses to those character'.For example,
somespeciescongregateon Georges Bankand on the hanksof the Scotian
Shelf (e.g.,BrownsBank),whereasothers congregate in the deeper waters
of the Gulf of Maine Basin. Distribution charts of a particular species,or
of a number of species with similar environmentalneeds, calibrated to
differentiate between abundance and chance occurrence of the species,
confirm the existence in the Gulf of Maine area of three separate and
identifiable ecologicalregi'.Such charts also confirm that there is a
division,located at the Northeast Channel, betweenthe ecologicalregime
of the Swtian Shelf and that of Georges Bank.
2. In wntrast to the United States presentation of species data, the
Canadian Counter-Memorial presents species distribution charts that
imply that fish speciesin general are distributed evenly throughout the
Gulf of Mainearea'.Thesecharts alsoimplythat, to the extent that there
isa species boundaryin thearea between Long Island (offNew York)and
Cape Canso (at the northeastern end of Nova Scotia), it occurs at the
Great South Channel4. Because of fundamental flaws in Canada's
methodology,thqe charts depict inaccurately the distribution of species
-_ in the Gulf of Maine area. Thedata in the charts are assembledin such a
,mariner that it is impossible to discern the distribution patterns of
individual species or the areas in which a species abounds and those in
'UnitedStatcsCountcr-Mernoril,nncx1,Vol.IA,paras.52-64.
See Figs.23through27,UnitedStatcsCountcr-Mcrnoril,nnex1,Vol.IA.
@@ ' CanadianCounter-Mernorial,ig20 and22.
@@ 'CanadianCountcr-Mernorial,ig20 and21. 586 GULFOFMAINE [2]
which it is found onlyrarely. First, a grid pattern issuperimposedover the
marine areas in the charts. with someof the squares colored to indicate
the occurrence of one or more species.This methodology conveys the
impression that each colored square reflects the even andrelatively
abundant distribution of one or more species. In fact, under Canada's
methodology, a square wuld be colored if only a single representative
from one of eightspecies-i.e., one fish-has been recorded in the large
area covered by one square: between 295 and 300 square nautical miles.
Second, the speciesillustrated in the three charts are combined in such a
manner that the natural divisions in the distributions of the species are
concealed. The distributions of fish species with dissimilar preferences
(e.g., deep water and shallow water) are combined. Consequently, areas
are wlored completely,with no indication wherethe distribution of oneof
the speciesends and the other begins.
@-a SECTION 1. Canadian Figures20, 21,and 22 Imore the Densityof the
Speeies Distributions They Purport to IUustrate
- 3. Figures20,2l, and 22 of the Canadian Counter-Memorialpurport to
showspeciesdistributions. Inal1three figures.the marine areas are divided
into squaresof between295and 300square nautical miles.Bycontrast, the
groundfishtrawl-sumeydata that the United States assumeswerethe basis
forthesefigures'are reported for areas that average0.004square nautical
miles. These data are frequently aggregated, includingby Canada', for
areas that are between74and 75square nautical miles-viz., areas that are
@-a one-quarter the size of the squares in Figures 20 through 22 of the
Canadian Counter-Memorial. By using larger squares in ils Counter-
Memorial, Canada is able to depict species distributions over expansive
areas uponthe basisof but a singleoccurrenceof an individual fish.
4. In Canadian Figures 20 through 22. squares that are coloina
light shade reflect that representatives from oneto three specieshavebeen
recorded within that square; those in a medium shade reflect that
representatives from four tofive species have ken recorded within that
square; and, squares of a dark shade indicate that representatives fromsix
to eight species have been recorded within that square. Accordingly, a
darkly shaded area may indicate nothing more than that six fish-one
from each of six species-havbeenfound in an area of between 295 and
300 square nautical miles. A lightly shaded area may indicate nothing
more than that one individual fish hasbeen found in an area of between
295 and 300square nautical miles. Twosquares alongsideeach other and
AtmosphericAdministratiohasprovidedils groundiishtrawl-suweydata on aand
regularbasistoanadianfisheryauthoritiesoverthe years.Canada included
someofthesedataintheAnnexestoitsMemorial.CanadianMemorial.Annexes.
Vol.IV,Annex2.
CanadianMemorial.Annexes.Vol.IV,Annex 2. 131 ANNEXESToREPLYOFTHEUNITEDSTATES 587
of the same shade may not have contained the same combination of
@@ species.Furthermore, the apparent boundary, in Figures 20and 21,at the
Great South Channel. reflects nothing more than that at least one
additional species(four insteadof three) occurson oneor the other sideof
the Great South Channel. In other words,as a result of the methodology
adopted by Canada, as fewas four or fiveindividualfish-one for each of
the squares spanning the continental shelf in the vicinity of the Great
South Channel-would be sufficient to produce on the figure the
appearance of a species boundaryat that point.
@-a SECTION 2. Canadian Figures20,21, and22 CombineDistributionData
for DissimilarSpecies,TberebyObscuringthe Difiereucesin the Distribu-
tion of Fih Species
@ A. CANADIAF NIGURE20
@ ,5. In Figur20, Canada combines a number of species, the distribu-
tionsof whichare determined by different environmentalpreferenccs.The
figure, which purports to illustrate the distribution of "northern" species,
combines the following:three species (redfish, argentine, and cusk) that
concentrate in the Gulf of Maine Basin and the basins of the Scotian
Shelf, but that avoid Georges ';four species(American plaice, wd,
haddock, and pollock)that migrate seasonally on and off Gwrges Bank
and the Swtian Shell;and, one species (white hake)that also migrates
seasonally, but in a pattern oppositefrom that of the other '.ur species
@Figure 20 therefore combines species that wncentrate in the Gulf of
Maine Basin with species that wncentrate on Georges Bank and the
Scotian Shelf during part of the ycar. In this manner, the Canadian
presentation obscuresthe differences amongthe three ecologicalregimcs
of the area reflected in the distribution of each of these species.
6. Canada also fails in Fi20rto distinguish betweenwarm-season
and cold-season distributions. As noted above, five of the eight species
portrayed in Figure 20 migrate seasonally. Seasonal distributional plots
for these specieswouldreflect the difference betweenthe Gulf of Maine
'Thescspies avoidGwrgesBankbccauscthcyprcfcrdccpcrcoolerwatcrsof
relativelyconstanttcmpcraturc.For furthcrdistributionalinformationon these
@@ and similarspicsecUnitedStatwCountcr-Mcmoria, nncx1,Vol.IA,para.
56,andFigs25,40, 45and49.
'Thescspics migratcscasonallyin searchof relativclywld watcr,avoidingthe
shallowcrhankwatcrsinthcwarmseason.Forfurthcrdistributionalinformation
ontheseandsimilarspiesseeUnitedStatesCountcr-Memoril.nnex1,Vol.
@@ IA, para57and 58,andFigs26,32.37,and48.
'Thus, this spcciw avoidsGwrges Bank in thc wlder season.For furthcr
distributionalinformationonthis and similarcUnitedStatesCounter-
@ Memonal,Annex 1.Vol.IA.para55,andFigs24and 39. 588 GULFOFMAINE [41
Basinand the shallower watersof Georges Bank andof the Swtian Shelf.
In showing annual, rather than seasonal, distributions for those species
that migrate seasonally,Canada further blurs the ecologicalsubdivisions
of therea.
@ B. CANADIA N IGUR E1
@ 7.F.igure 21 purports to show that the distribution of "southern"
species ends midway along Georges Bank forat least one species,and at
theGreat South Channel for at least four species.This impressionresults
in part from the failure of Fi21to refiect that three of tbese species
(bluefish,summer flounder, and hutterfish) are found onGeorges Bankal1
the way to the northeastern tip of the Ba'.Moreover, Canada has
omitted altogether from this figure four other southern species that
normallyare groupedwith these three speciesand that alsoare distribut-
ed along Georges Bankto its northeastern tip, viz., the longfinsquid, the
northern sea robin, the fourspot flounder, and the spotted hake. Had
Canada portrayed accurately the data relating to these "southern"
species,the northeastern limit of these species would not be depicted at
the Great South Channel, nor midway along Georges Bank.The actual
distributional pattern of this group of species, includingtheir occurrence
throughout Georges Bank, isshownin Figure 27of Anne1to the United
States Counter-Memorial.
8. Canada also has omitted from its depiction of "southern" species
another group of species that are essentially southern in orientation, but
that are found in the Gulf of Maine area. This group includesocean pout,
longhorned sculpin, winter flounder, windowpane flounder,little skate,
winter skate, sea raven, cunner, and yellowtail fll.As was noted
previously in Annex 1 to the United States Counter-Memorial. these
species are relatively abundant and evenlydistrihuted on Georges Bank
and southwest to southern New England and beyond,but they occur less
frequently, and in more restricted localities,on the Scoti'Onceelf
again, had Canada included distributional patterns for these species in
@ Figure 21, the northeastern limits of the "southern" speciesthat are found
in the Gulf of Maine area wouldnot have appeared, as they do in Figure
21, in the vicinity of the Great South Channel or midway along Georges
Bank.
'The NortheastFisheriesCentergroundfishtrawl-sdata(seepara.3,n. 1,
suera)establishesthat thesethreesoeciesare foundon the nortpartofrn
CiArpesBank.
'Canadalabelstheyellowtailunderasa "wide-ranging" speesdincludesit
@ in Figur22,discusseinfra.
'United StatesCounter-Memoria, nnex1,Vol.IA, para53and 54,and Fig.
23. 9. The fiveother speciesthat were includedin Canada's Figure 21 are
@
southern speciesthat migrate from the Gulf of Maine and the southern
New England region during the wlder months of the year, to the extent
that they may have reachedthat far to the north in the summer(e.g.,men-
haden and weakfish).Except for the hay scallop,which remains virtually
fixed to the seabed, these other species retreat far southward in the
winter. Furthermorc, as is reflected in Figure 21 hy the dark red band
along the southern New England wast, the bay scallop, weakfish, and
menhaden are nearshore coastal species that only rarely are found more
than severalmiles from shore(the hay scallopis an estuarine '.ecies)
10. In summary, Canada's depictionof "southern species" inits Figure
@ 21omitsat least 13speciesthat havea southern orientation, whereas itin-
cludes five speciesthat, alheit of southern orientation, rarely enter the
Gulf of Maine area.
C. CANADIAF NIGURE 22
@
@ 11. Figure 22of Canada's Counter-Memorial. whichpurports to depict
the distribution of "wide-ranging" species, obscuresthe mlogical divi-
sions within the Gulf of Maine area by wmbining an extraordinary
assortment of speciesthat have very diffcrent environmental preferences.
Although two of these species in fact are "wide-ranging:', the others
cluster to varying degrees on the Swtian Shelf, Georges Bank, the
southern New England Shelf. or in the Gulf of Maine Basin, depending
upon their environmental preferencw. As a result of this haphazard
wmhination of species, virtually the entire Gulf of Maine area is shaded
with dark green squares in Figure 22.
@ 12. Figure 22 shows the distribution of two speciekmackerand
Illex (shortfin)squid-tindeed are distributed throughout the area at
some point during the y'.The figure also purports to reflect, however,
distributional information forsea scallops,which livein beds and scarcely
move. No reasonable wmparison may bedrawn bctwcen mackerel and
Illex squid, which are wide-ranging species, and scallops, which are
virtually sedentary. Figure 22 alsoimplies that sea scallopsare found in
the center of the Gulf of Maine Basin and in the Northeast Channel,
when in fact there are no scallop heds in thos'.A wmparison of
Canadadocsnotprovidca mmparablcfigureshowingnorthernspeciesthat are
foundontheSMtianShelf.butthat rarelyarcprcitheGulfofMaineBasin
or on GeorgesBank,suchas theGreenlandhalibutand thecaSeeiUnitcd
StatesCounter-Mernorl,nnex1.Vol.IA,para61.
'SeeUnitedStatesCountcr-Mcmoria, nnc1,Vol.IA,paras62and63.
@ 'SeeUnitedStatesCountcr-Mernorl.nnex1,Vol.IA,Fig43. 590 GULFOFMAINE 161
@ Figure 43 with Figure 50 of Annex 1 to the United States Counter-
Memorial demonstrates that it is irrational to combinein the same figure
distributional plots for migratory and local species.
13. Canada also has included lobsterdata in the compilationof Figure
@ 22. Although lobster are found throughout the area, it.is misleading to
characterize them as wide-rangingin the same senseas mackeIllex.
A number of articles cited by Canada relating to lobster indicate that,
although a very few individual lobsters occasionally travelgreat distances,
80 to 95 percent of al1lobster moveonly within a relativelysm'.l area
14. Together with these two wide-ranging species and two relatively
@ stationary ones, Canada has included in Figure 22 distributional data for
the yellowtail flounder. Figure 42 of Annex 1 to the United States
Counter-Memorial shows that this species:(1) concentrates on Georges
Bank and the southern New England Shelf;(2)does notconcentrate in the
center of the Gulf of Maine Basin;and, (3)clusters on the Scotian Shelf in
those areas where conditionsare suitable.
@ 15. Canada next has added to Figure 22 distributions for redhake and
silver hake, twospeciesthat are membersof a groupof speciesthat prefer
relatively warm water, migrating seasonallyin response to temperature
@@changes. As can be seen in Figures 38 and 39 of Annex 1 to the United
States Counter-Memorial, these species are not distributed evenly
throughout the Gulf of Maine area. Rather, they are abundant on the
seaward edge of Georges Bank and on the southern New England shelf,
but are found in less abundance and are distributed unevenlyin the Gulf
of Maine Basin and on the Scotian Shelf.
16. Finally, Canada adds to Figure 22 distributional information for
@ herring, which is essentially a northern species that prefers colder water
and that movesseasonallyin responseto temperature changes. As can be
@ seen,in Figure 35 of Annex 1 to the United States Counter-Memorial,
herring cluster along the Atlantic Coastof Nova Scotia, around the e$ge
of the Gulf of Maine Basin, and on Georges Bank, with a seasonal
movementsouthwestward alongthe southern New England shelf. Herring
are normally grouped withcod, haddock, pollock, and American plaice,
al1 of which have similar environmental preferences'. There is no
@apparent reason to include the latter four species in Figure 20, which
depicts the distribution of "northern species", but to include herring in
@ Figure 22 as a "wide-ranging species".
'SeeAnnex21, paras, 21 and 22, discussingA. Campbell'son lobster
taggingMovemenls ofTagged LobsfersReleaseoff Parr Mairland, Nova
Scoria.944-80CanadianTech. Rpt. of Fisheriesand Aquatic Sci, o.sN
1136,1982.Onl4.1percentoftherecapturedlobster rmorethan18.5km
fromthearea inwhichtheyweretagged.
'SeeUnitedStatesCounter-Memoria, nne1,Vol.IA, Fi26. i71 ANNEXESTOREPLYOFTHE UNITED STATES 59I
17. As a result of the grouping of dissimilar species, the distribution
@patterns depictedin Figure 22 cover virtually the entire Gulf of Maine
area, asefiected in the near continuousshadingof dark green squares.By
wntrast, individual distributional plots of the speciesportrayed in Figure
22 confirm the ecological divisionsof the area.
CONCLUSION
18. In summary, Figures 20, 21, and 22 in the Canadian Counter-
- Memorial contribute virtually nothing to an understanding of species
distributions in the Gulf of Maine area. By contrast, standard distribution
charts for the species portrayed in the Canadian figures confirm the
differencesamong the three ecologicalesof the Gulf of Maine area,
and demonstrate that there is a natural ecological division betweenthe
regime of the Scotian Shelf and that of Georges Bank located at the
Northeast Channel.
19. Furthermore, it must be noted that, regardless of whether a species
isdistributed throughout the Gulf of Maine area, there are subpopulations
within manyspeciesthat are best managed and wnserved separately. The
United States has demonstrated that stocksof 12of the 16commercially
important species found in the Gulf of Maine area are separated by the
Northeast Channel'Standard distribution charts for the species in the
Gulf of Maine area confirm that separation, whereasian Figures
@-a 20. 21, and 22 obscure it.
@O' UnitedStatesMemorial,paras.55andandFigs.7and36and UnitedStates
@a- C@ounter-Mernori. nnex1,VoIA.paras.76-98and Figs.335,37.3839.
40.42,43. 44and 45.A stockof one of these 12,longfinsquid.is foundon
GeorgesBank.butno1on the ScotianShelf.[UnitedStatesMernorial,para. 55,
n.1;and UnitedStatesCountcr-Merno, nnex1Vol.IA.para.99and Fig.
a@-@ 46.C1anadianFigs.20through22purporttoshowthespeciesdistroftheons
other11speciesthat havea stockscparationat the Northeasbutno1nel
the distribuofthe longfinsquid. 592 GULFOF MAINE [Il
Annex24
A CRITIQU OF THEANALYS INTHE CANADIA COUNTER-MEMO RFITLE
DISTRIBUTI OFNBENTHO ISTHE GULF OFMAINE Am
1. The presentation of benthic distribution data in the Canadian
Counter-Memorial and in Volume 1 of its Annexes thereto implies that
there are no ecological divisionsin the Gulf of Mainearea northeast of the
Great South Channel '. A straightforwardscientific presentation of
benthic data confirms that in fact there are threete and identifiable
ecological regimes inthe Gulf of Maine area, and that there is a division
at the Northeast Channel between the ecological regime of the Scotian
Shelf and that of Georges Bank.
SECTION1. Canada Relies upon Inappropriate Sources and Methodolo-
gies in Depicting the Distribution of Benthos
2. Canada's presentation of benthic distribution data implies inaccu-
rately that benthos are distributed evenly throughout the Gulf of Maine
area, and that those species that reach their limits of distribution in the
area do so at the Great South Channel. This inaccurate implication arises
a-@ from three fundamental flaws that are reflected in Figures 25 through 30
of Volume 1of the Annexes to the Canadian Counter-Memorial.
3. First, Canada has developed these figures from works that contain
nothing more than verbal descriptions of general geographic areas
in which benthic species are found '. In so doing, Canada ignores
'Benthosare bottom-dwellingorganismsthat are an important element in the
foodchainof the marineenvironment.
'Canada citesK.L. Gosner.Guide IOIdentiticatiofMarine and Esruarine
Invertebrates. Cape Hatteras to the Bay of Fu1971, asthe source of its
-@ distributional depictions in Figs. 25 thr30.This work does not plot
distributional informationon charts. The expressed goalof the workto
assis1the readerto identifyvariousspeciesof benthos.The northernlimitof the
area that isthe subjectofthe worke Bayof Fundy.andeach speciesis givena
letter identificationto indicate,in a general fashion.wherethe speciesis found.
For example,the lett"B indicatesthat a speciesis foundbetweenthe Bayof
Fundy andCapeCod.[P. 25.]Thus,a speciesthat wasfoundgenerallyinthe Gulf
of Maine Basin.but not elsewhereon the continentalshelf,wouldhavethe same
distributionalclassificationas a speciesthat wasabundanton GeorgesBankand
footnote continuedon nexr page) [21 ANNEXESTO REPLYOFTHE UNITEDSTATES 593
specific distributional plots for these benthicorganisms that are contained
in standard scientific works'.
4. Second, in Figures 25 through 30 of Volume 1of the Annexes to its
-
Counter-Memorial, Canada uses bars to depict ils benthic distribution
data, rather than charts, which are the traditional scientific method for
illustrating species distribution'The use of these bars makes it impossi-
ble todetermine whether a species is found in the Gulf of Maine Basin re-
gime, or whether it is found in the Georges Bank regime and the
southwestern tip of the Scotian Shelf regime (including Browns Bank and
German Bank); nor dothe bars reflect the relative density of distribution
of the species in any particularregion '.
(lootnotecontinuedfrom the previouspage
Browns Bank.but not in the Gulf of Maine Basinor inthc Northeast Channel.
Canada has wnvertcd these simple letter identifications intothe bars shown in
.@ Figs. 25 through 30 of Vol. 1of the AnnexesIo ils Counter-Memorial.The other
work citcd by Canada as a sourcefor its benthic figuresis R.L. Wigley,"Benthic
lnvertcbratesof the New EnglandFishingBanks".inUndenvaterNaturalist. Vol.
5. No. 1. 1968.pp. 8-13.This article simply provideslists of benthic organisms
found in the Gulf of Maine area. It docs no1includc any distributional plots of
theseorganisms.
'See. e.g.. R.B. Theroux and R.L. Wigley,Distribution and Abundanceaf East
Coast Bivalve Mollusks Based onSpecimem in the National Marine Fisheries
Service WaadsHole Collection. NationalOceanic and Atmospheric Administra-
tion (N.O.A.A.) Technical Report National Marine Fisheries Servi(e .M.F.S.)
SSRF-786, 1983;and A.B. Williamsand R.L. Wigley.Distribution afDecapod
Crustacea Wf Northeostern UnitedStates Based onSpecimemat the Northeast
Fisheries Center, Woods Hole. Massachusetts. N.O.A.A. Technical Report
N.M.F.S. Circular 407, 1977.
'The scientificallymoreaccurate and hencethe traditional methodof illustrating
the eweraohic distributionof a swcies is throuah charts showinabath the area in
whichthe speciesis foundand the frequencyofappearancc. ~hiiis the methodof
illustration that the Unitcd States uscd to show fish specicsdistributions.[See
Figs. 23 through 27.Annex 1,Vol.IA. United States Countcr-Memorial.]This is
also the standard method forillustrating the distribution of benthic species.[See
Therouxand Wigley,op. cil., pp. 69-128;and Williamsand Wiglcy,op. cil., pp.
16-44.lThismethodof presentationclucidatesthe interactionofa specieswiththe
aalogical regimes of the area. For examplc, for many species.there are dense
clusterson the banks,suchas Gwrges Bankand Browns Bank.with breaksin the
distributionat the Northeast Channel andin the dcepwatersof the Gulfof Maine
Basin.Canada doesnot providedistributioncharts for benthos.whichwouldhave
wnfirmed the existenceof separate and identifiablewlogical rcgimeswithinthc
Gulf of Maine area.
'In the two instancesin which the Unitcd States used bar charts [UnitedStates
@@ Mernorial. Figs. 7 and 361,the bars representcdthe range of stocks infishable
quantities. Acwrdingly, the ban did not rcflcct thc cxceptionalappearanceof an
individualmemberof a stock beyondthe normal rangeof that stock. 594 GULFOF MAINE 131
5. Finally, contrary to accepted scientific practice, Canada, in 26
instances, usesa singlebar to illustrate the distribution of an entire genus
(related but different species)rather than those of individual speciesthat
make up the genus. Thus, in situations where members of one species
cluster on banks, such as Georges Bankand BrownsBank, and members
of another species withinthe same group (genus)cluster in deeper waters,
such as the Gulf of Maine Basin or the Northeast Channel, Canada
portrays the distribution of the group (genus)as uniform throughout the
@ area. Well over one-half of the distributional bars in Canada's Figure 25
represent the distributions of genera rather than of individual species.
@ Similarly. 29 per cent of the bars in Figure 26.42 per cent of the bars in
@@ Figure 27,and 12percent of the bainFigure 28depict the distributions
of genera.
- 6. In each instance, the bars used by Canada in Figures 2530hrough
inaccurately illustrate distributions of benthos. As is shown in the nine
examples discussed hereinafter, published distributional plots for each of
the species portrayed by Canada confirm the existence of the three
separate and identifiable ecological regimes associated withthe Scotian
Shelf, the Gulf of Maine Basin,and Georges Bank,respectively.
SECTION 2.Cornparisonktween the Canadian Presentation of ûenthic
Distribution Data and Published Charts of Benthic Distribution Data for
@ A. CANADIAF NIGURE 25
7. Canada portrays the spider crab Hyas coarcrofus as having an even
distribution from the Laurentian Channel toh of Cape Hatter'.In
fact, as is shown in Figure 1, reproduced here from the work of Williams
and Wigley',the distribution of this spider crab is not uniform through-
out the Gulf of Maine area. Rather, its distribution confirms that the
ecological regimesof Georges Bank and the Scotian Shelf are separated
from each other by the Northeast Channel. This crab clusters.on Browns
Bank and German Bank, around'the perimeter of the Gulf of Maine
Basin, on the northeastern end of Georges Bank. and along the slope of
the southern New England continental shelf:The existence of the three
regimes wouldbe confirmedas well by an examination of the distribution
@of any of the other species portrayed in Canada's Figure 25.
@ B. CANADIAF NIGURE 26
8. Canada portrays an even distribution for the shrimp Crangon
seplemspinosis, which lives on sandy bottoms, from the Laurentian
@ 'CanadianCounter-Memorial. nnexes,Vo1Fig.25.
'Williamand Wiglcyop. cilp.25. [4-141 ANNEXESTO REPLYOF THE UNITED STATES 595
Channel to south of Cape Hatteras '.In fact, as is shownin Figure 2, re-
produced here from the work of Williams and Wigley ',this shrimp is
abundant in the Gulf of Maine area on Georges Bank'and Nantucket
Shoals and on the southern New England shelf, but its abundance drops
off sharply to the northeast of the Northeast Channel.
9. This differentiation among the ecological regimes isrevealed even
more sharply in the distribution of the bivalve Astarte castanea.which
@Canada also portrays in Figure 26 as distributed evenly from the
Laurentian Channel to south of Cape Hatteras. Figure3,reproducedhere
from the workof Theroux and Wigley 'showsthat, in the Gulf of Maine
area, this bivalve is distributed evenly on Georges Bankand on the
southern New England shelf, but that it is not found in the Northeast
Channel, nor, except incidentally, inthe Gulf of Maine Basin.
@ 10. Canada also portrays in Figure 26 the distribution of the hermit
crab Pagurusacadianusas extending fromthe Laurentian Channel tothe
@ Great South Channel. As is shownin Figure 4. however,reproducedhere
from the work ofWilliamsand Wigley ',this hermit crab, whichis also la-
belled by Canada as a "northern" species,is abundant in the Gulf of
Maine area on Georges Bank and the shelf to the southwest, but is not
found in abundance to the northeast. There is a marked decrease in the
density of this hermit crab at the Northeast Channel, and the Georges
Bank'regime isclearly distinguished fromthe regimeof the Gulf of Maine
Basin and from that of the Scotian Shelf. The existenceof these three re-
gimes would be confirmed as well byan examination of the remainder of
@ the speciesportrayed in Canada's Figure 26.
II. Canada portrays the bivalve Venericardia(=Cyclocardia)borealis
as a "northern" species distributed evenly fromthe Laurentian Channel
to south of Cape Hatteras'.Figure 5, reprcduced here from the work of
Theroux and Wigley 6,showsthat, in the Gulf of Maine area, this bivalve
in fact is wncentrated on Georges Bankand along the southern New
England shelf,around the rim of the Gulf of Maine Basin,and on Browns
Bank.This distribution showsa distinct gap at the Northeast Channel and
differentiates the three ecological regimesof therea. The existence of
these three regimes wouldbe confirmedas wellby an examination of the
@distribution of any of the species portrayed in Canada's Figure27.
@ CanadianCounter-MemorialA . nnexes.Vol1,Fig.26.
'Williamsand Wigley .p. cit..20.
'Therouxand Wigley,op. ci?p. 73.Fig.II.
'Williamsand Wigley,op. citp.30.
@ 'CanadianCounter-MernorialA. nnexes,Vol1,Fig.27.
Therouxand Wigley,op. cilp. 86.Fig.38. 596 GULFOF MAINE 1151
12. Canada portrays the bivalve Modiolaria (Musculus) discors as a
"northern" speciesdistributed evenly from the Laurentian Channel to
south of Cape Hatteras'.As is shown in Figur6, however.reproduced
here from Theroux and Wigley ',in the Gulf of Maine area this mussel
actually is concentrated on the northern edge of Georges Bank, around
the perimeter of the Gulf of Maine Basin, and on German Bank and
BrownsBank on the Scotian Shelf. This figure confirmsthe break in the
distribution of this speciesat the Northeast Channel.
@ 13. Figure 28 also portrays the shrimp Pandalus borealis as a "north-
ern" species, in this case one that is distributed evenly from the
Laurentian Channel to the Great South Channel. Figure 7, reproduced
here from Williams and Wigley',showsthat, in the Gulf of Maine area,
this shrimp is abundant in the Gulf of Maine Basinand is found oc-y
casionally in the deeper waters on the Scotian Shelf, in the Northeast
Channel, and along the continental slopeon the seaward edgeof Georges
Bank. An examination of the distribution of any of the other species
@ portrayed in Canada's Figure28 similarly wouldconfirm the differences
between the ecological regime of the Gulf of Maine Basin and those of
Georges Bank andthe Scotian Shelf.
@ E. CANADIAF NIGURE 29
14. Canada portrays the ocean quahog Arctica islandica as a "north-
ern" speciesdistributed evenlyfrom the Laurentian Channel to south of
Cape Hatteras '.Figure 8, however,reproduced here fromTheroux and
Wigley ',demonstrates that, in the Gulf of Maine area, this bivalve is
found in clusters on Georges Bank, along the southern New England
shelf, and around the periphery of the Gulf of Maine Basin. This
distribution does not extend to any significant degree intothe Northeast
Channel or ont0 Browns Bank or German Bank. The differentiation
among the three ecological regimes would be confirmed as well by an
examination of the distribution of any of the other species portrayed in
@ Canada's Figure 29.
@ 'Canadian Counter-Memorial,Annexes,Vol1.Fig. 28. K.L.Gosncr.whom
Canada cites as sourceforthis figure,ledthisa"Virginianspecies.and
nota "boreal",or "northern",spccies.Gosner,opp.299.
Theroux andWigley.op. cil.,100,Fig.65.
'Williamsand Wigley,op.it.p. 34.
@ 'CanadianCounter-MemorialA. nnexes,Vol.1,Fi29.Canadaalsoportraysthe
@ distributionofthesamebivalvein F27.
'TherouxandWigley,op.cil.p.71,Fig.8. (16-24) ANNEXESTO REPLYOF THEUNITEDSTATES 597
@ F. CANADIAF NIGURE 30
15. In Figure 30, Canada again depicts the purported distributions of a
@
number of species that are illustrated in the figures described ab'.e
Canada adds several other species to this figure. including,e.g., the rock
crab, orCancerirroratus,which Canada portrays as a "northern" species
distributed evenly from the Laurentian Channel to south of Cape
Hatteras. As Figure 9,reproduced here from Williamsand Wigley ',
shows, however,in the Gulf of Maine area,.this crab is distributed widely
on Georges Bank and the continental shelf to the southwest. It is found
only rarely on the southwestern endof the Scotian Shelf. Its distribution
illustrates the distinction betweenthe Georges Bank regime andose of
the Gulf of Maine Basin and the Scotian Shelf, the role of the Northeast
Channel as an ecologicalbarrier, and the connection betweenthe Georges
Bank regime and the ecology of the southern New England shelf. The
differentiation among the three ecological regimeswouldbe confirmed as
well by an examination of the distribution of any of the other species
@ portrayed in Canada's Figure 30.
CONCLUSION
@@ 16. In summary, in Figures 25 through 30 of Volume1of the Annexes
toits Counter-Memorial, Canada impliesthat most benthosin the Gulf of
Maine area are northern species distributed evenly from the Laurentian
Channel at least as far to the southwest as the Great South Channel. To
the contrary. evena cursory glance at the actual distributional patterns of
a number of the species that Canada purports to portray shows that the
reality is very different. The distributional patterns of benthos only serve
to confirm the existence of three separate and identifiable ecological
regimes associated with Georges Bank,the Scotian Shelf, and the Gulf of
Maine Basin.
@ ' CanadianCaunter-Mernorial~.nnex&.Vol.1.Fig.30.Thesespeciesincludethe
spidercrabHyascoarcrarus ,nd thebivalvVenericardia boreall.ustratedin
@@ CanadianFigs.25and 27.respectively,ndin Figs1and 5,above.
'Williamsand Wigley .p.citp. 18. 598 GULF OFMAINE 111
A CRITIQUOFTHZ ANALYS IITHE CANADIA COUNTER-MEMO ORFIHL
PHYSICAOLCUNOGRAP HFTHE GULFOF MAIN E REA:EMPERATUREAND
SALINITY
INTRODUCTION
1. As the United States showed inAnnex 1 to its Counter-Memorial.
the separate and identifiable oceanographic regimes associatedwith the
ScotianShelf, the Gulf of Maine Basin,and Georges Bankare character-
ized by different temperatures and sal'.The analysis contained in
Volume 1 of the Annexes to the Canadian Counter-Memorial obscures
these distinctions. Canada describésan oceanographic uniformity in the
Gulf of Maine area and contrasts it with the oceanography of regions
adjacent and beyond, notwithstanding that the oceanography of those
regions is irrelevant to this delimitation. To the extent that Canada
acknowledges that there are variations within the oceanography of the
Gulf of Maine area, it impliesthat such variations are unpredictable and
arbitrary. Careful scrutiny of the figures with which Canada supports
these views, however, only confirms the differences among the three
oceanographic regimesof the area. In addition, morestraightforward and
logical presentations of temperature and salinity data illustrate these
differences evenmore clearly.
SECTION1. SigniiicanceofSlopeWater
@ 2.Canada's portrayal of temperatures and salininFigure 13 and
@ its depiction of temperatures in Figure 14,of Volume 1of the Annexes to
its Counter-Memorial. purport to show that the differences among the
temperatures and salinities of the three separate and identifiable regimes
of the Gulf of Maine area are not as significant as the differences between
those regimesas a wholeand the water abovethe continental she'. slope
'UnitedStatesCounter-Memoria. nne1.Vol.IA,paras9-37.
'Canada assensthat 'Ytpemeaningfultemperaturedilfere...found...
betweenal1surfacewateronthewntinentalshelfof theGulfof Mainearea and
the waters further offshoreabovethe wntinental slope."[CanadianCounter-
Mcmorial,para184.Canadadoesnotexplaininwhatrespects thisdifferentialis
"meaningful"[See alCanadianCounter-Memorial. nnexes.Vol.1,p54.1 12-41 ANNEXESTO REPLYOFTHE UNITEDSTATES 599
Canada's assertions to the contrary notwithstanding,the more substantial
differences between the water masses above the continental shelf and
those abovethe continental slopedo not diminish the critical significance
of the differencesamong the regimes withinthe Gulf of Maine area. The
slopewater is important becauseof its effect uponthe water ofthe Gulf of
Maine Basin and Georges Bank. The influx of slope water through the
Northeast Channel causes the significant differences betweenthese two
water massesand the Scotian Shelf water mass '.
@ SECTION 2. Canadian Figure 13
3. Figure 13 in Volume I of the Annexes to Canada's Counter-
Memorial is a confusing combination of six temperature and salinity
diagrams. The original from which this figure was redrawn appears in an
article that focuses upon the water in the Gulf of Maine Basin'.The
original figure, whichsuperimposesrhreeseparate diagrams for the Gulf
of Maine Basin over one each for the Scotian Shelf, GeorgesBank, and
the continental slope,was designedby the authors specificallyto showthe
dynamics of the water in the Gulf of Maine Basin. The combination, in
both the original figureand Canada's redrawing,of sixdiagrams obscures
the differences between the separate regimes of the Scotian Shelf and
Georges Bank.
4. The temperature and salinity differencesbetweenthe Scotian Shelf
water mass and the Georges Bankwater masscan be seenmore clearly in
@ Figure 1of this Annex. which reproducesthe two relevantdiagrams from
O@ Canadian Figure 13. As Figure 1demonstrates. the Georges Bank water
mass reaches temperatures about five degrees centigrade greater than
those on the Scotian Shelf. Similarly, much of the water mass over the
Scotian Shelf is considerablylesssaline than that overGeorges Bank-as
much as nearly one full part-per-thousand. As the United States noted in
'See UnitedStatesCounter-MernorialA, nne1,Vol.IA,paras.9-37,and 114-
125.Although Canadaavoidsa discussionof the importance of the Northeast
Channelto the marineenvironrnentof thearea. Canadarecognizesthat slope
waier enters the GuloffMaineasinthrough the Northeast Chaninlsufficient
volumeto replace the deep waterf the Basineveryyear. [Canadian Counter-
Memorial.Annexes.Vol. 1para.50.1AstheUnitedStatesnotedinAnnex Itoits
Counter-Memorial. thereaterpart of the wanetheGulfofMaineBasin(60to
70percent annually)enters theBasininthis manner [p.21. eorges Bank wa-
terisa mixture of this water and surfacewaterenteringthe Basinfrom the
Scotian Shelf.bid.para. 13.1
T.S. HopkinsandN.Garfield."Gulfof Maine IntermediatWe atcr",inJournal
o/Marine Research,Vol. 37. No1,1979.pp. 103-139. epositedwiththeCourt
byCanadainconnectionwithits Counter-Memoria plursuantto Artic5q2 ) f
thc RulesofCourt. 600 GULF OF MAINE [SI
Annex 1 to its Counter-Memorial, differences of this magnitude have
profound effects upon the oceanography and ecology of each regime '.
@ 5. Figure 13 fails to distinguish between those temperature and
salinity values that are frequently encountered in each regime, and
extremetemperature and salinityvalues that are rarely encountered. As
a result, the figure indicates that there isa greater similarity between
the water masses of the Scotian Shelf regime and the Georges Bank
regime than exists in fact.
@ 6. Similarly, Canada's Figure 13 obscures the differences between
the two regimes by combining data reflecting nearly an entire year
without distinguishing between seasons. Thus, were the Georges Bank
and Scotian Shelf water masses each to have the same temperature and
salinityat different times of the year, the two "envelopes" would be
port;ayed in the figure as overlapping, although there was no coinci-
dence of temperature and salinity in the regimes at the time the data
were gathered.
7. In Annex 1 to its Counter-Memorial, the United States, in order to
illustrate the differences in temperature and salinity between the Scotian
Shelf water mass andthe Georges Bank water mass, charted the average
'UnitedStates Counter-Memorial,Annex 1, Vol.IA. paras. 18,22, 26, and 27.
Differenccsin temperature and other physical environmental factorss,uch as
water currents and salinity. affect marine organismisn al1their life stages. T.
Laevastuand M. L. Hayes, Fisheries Oceanography andEcology, 1982,pp.4-38.
Forexample,thedifferencesingrowthrates noted inTable B(p.97)ofAnnex1to
the United States Counter-Memorial, for different stocksof cod, herring.
haddock,silvcrhake. red hake, redfish,yellowtailflounder,and scallops,can be
attributed largely to differencesin temperature among the regimesSee also
UnitedStates Counter-Memorial,Annex 1,Vol.IA, Fig. 29;C.C.Taylor,"Cod
Growth and Temperature".in Journal du Conseil,International Council fotrhe
Exploration ofthe Seas (I.C.E.S.), Vol. XXIII, No. 3, 1958, pp. 366-370.
Temperatureand salinity also affecnter aliathe durationof the egg andlamal
stagesof marine organisms andthe rangeof distributionof marine organisms.R.
Laskerand K.Sherman,eds.. The Early Life History ofFish: Recent Studiin.
Rapports et ProcPs-Verbauxdes Réunions, I.C.E.S., Vol. 178, 1981,pp. 30-40.
200,312-313,345-348,393-394.401,409-415,460466. and 553-559;B.L.OIIa,
A.L. Studholme,A.J. Bejda,and C. Samet,"Role of Temperaturein Triggering
Migratory Behavior ofthe Adult Tautog Toufogo onifis Under Laboratory
Conditions",in Marine Biology,Vol.59. 1980. pp. 23-30;Laevastu andHayes.
op. cilpp.4-38;S.B.Brandtand V.A.Wadley, "Thermal fronta ssecotonesand
zoogeographicbarriersinmarineandfreshwatersystems",ProceedingsEmlogical
Society of Australia, Vol. 11, 1981, pp. 13-26; and J.J. Magnuson, C.L.
Harrington.D.J. Stewart.and G.N. Herbst,"Responsesof macrofaunato short-
term dynamicsof a Gulf Stream front on the continentalshelf', in Coastal
Upwelling.Coastal and Estuarine SciencesVol.1. 1981.pp.441-448. t61 ANNEXESTO REPLYOF THE UNITEDSTATES 601
water wlumn densities'for theGulf of Maine area in each of the fourdif-
ferent seasonsof the yea'.In each season,the Swtian Shelf regime was
shown to be different from the Georges Bank regime, with the two
regimesseparated from each other by the Northeast Channel.
8. The difference betweenthe Georges Bank water mass and the other
water masses of the Gulf of Maine area is acknowledgedin the article
@ from which Canada derived its Figure 13:
"The water over Georges Bank defines a distinct water mass by
reason of its homogeneityand lowseasonalvariance in salini'."
Elsewherein the samearticle, Hopkinsand Garfieldnotethat the "separate
water mass" of GeorgesBank"commonlydoesnot extendoff the Bank '."
@ SECTION3. Canadian Figures 14and 15
9. Figure 14 of Volume 1 of the Annexes to the Canadian Counter-
@
Memorial displayssurfacetemperatures for the Swtian Shelf, the Gulf of
Maine Basin, and Georges Bank. Figure 15of the same volumedisplays
summer and winter vertical temperature structures fora number of points
in the Gulf of Maine area, includingGeorges Bankand BrownsBank.
10. The temperature data in bath figuresare presentedon such a small
scale that it is difficult to perceivethe differencesin temperatures among
@ the three regimes. In Figure 14f,ivedegreescentigradeare representedby
9116th~of an inch (1.4 centimeters),and in Figure 15, the scale is even
. smaller-20 degrees centigrade are displayedover less than one inch (2.5
centimeters).
II. Notwithstanding its small scale, Figure 14 shows that the three
@
oceanographic regimesof the Scotian Shelf (includingBrowns Bank),the
Gulf of Maine Basin,and Georges Bank, havedifferent surface tempera-
tures throughout the year and different annual cycles. For example, the
differences betweensurfacetemperatures over GeorgesBank and Browns
Bankare evident during al1but three monthsof the year (late June to ear-
ly September), and even during those months, the temperatures are not
'Thedensity of twaterisa functionofbothitstemperature and salinity.
'UnitedStates~ounter-~emorial.Annex 1Vol.IA, Fig.14.
'HopkinsandGarfield,op. cilp.135.
'Ibid.p.110.Theauthorsalso notethat,althoughboththeSwtianShelf water
and theslopewaterwere"input watmasses" 10theGulfofMaineBasin,the in-
putof theScotian Shelfwaterisonly"incidental",whereastheinputoftheslope
wateris"necessary"to the vertical circulation (overturnndixing)of the
watersin the Gulf of MaineBasinIbid.,p. 135.ee UnitedStates Counter-
Memorial.Annex 1,Vol.IA,paras.117-122. 602 GULF OF MAINE VI
identical. The temperature differences can be seen even more clearly if
@@ the figure isenlarged. Figure 2 reproduces,fromCanadian Figure 14.the
annual cyclesfor the surface waters of the western Scotian Shelf, Browns
Bank, Gulf of Maine Basin, and Georges Bank, but expands the scale
twofold.
12. Although the diminutive scale in Figure 15makes it impossibleto
estimate temperatures precisely,the figure nonethelessdemonstrates that
the water over BrownsBank (as well as that over other points shownfor
the Scotian Shelf)is noticeablycolder in the winter and summer than the
water overGeorges Bank.
13. Temperature data can be displayed in a manner that makes its
@ evaluation simpler and more accurate. In Figure IIC of Annex 1 to its
Counter-Memorial, the United States reproduces a satellite image of
surface temperatures in the Gulf of Maine area taken on 14 June 1979,
superimposed with temperature gradients to indicate the places where
surface temperatures change markedly over a short distance. The three
oceanographic regimes are distinguished readily from oneanother in this
figure. This pattern is not a momentary occurrence, as can be seen in
Figure 3, which reproduces satellite images of surface temperatures and
temperature gradients for a day in June in fourconsecutiveyear'.Figure
3 shows the predictability and repetitiveness of the marine environment
from year to year. In each case. an examination of the temperature
gradients reveals that Georges Bank stands out as separate and distinct
from the Gulf of Maine Basin and the Scotian Shelf. The surface
temperatures followan annual cycleeach year..This cycleis illustrated in
Figure 4, which shows satellite images of surface temperatures and
gradients for the 12months of the year'.
14. Forty years of surface-temperature data reveal both the significant
differences among the regimes and the annual repetitiveness withineach
regime. Figure 5 displays 40 years (1941-1980)of temperature data for
the uppermost 150meters of the water wlumn overthe Scotian Shelf, the
Gulf of Maine Basin, and Georges Bank'. Within each regime, the
'Thesescenesare for 13 June 1979,17June 1980.29June 1981.and 21 Junc
1982.
'Eightof thesescenesare for 1982.The other fourare from 1979and 1980
becausethe available1982imagesforthesemonthswereobscuredbyclouds.The
specificdatesforthesescenesare: 28Jan. 19821 Feb.1982,19Mar. 1982,19
Apr. 1982,7May 19791 . 3June 19792 July 1982.30Aug. 1982.19Sep.1982.
10Oct. 1980,8Nov.1982,12Da. 1979.
'These data are from filesof the National OceanographiDcata Center.Thc
averagetemperatureasregivenfortheuppermost150metersof water.except for
areasthat donotreachthat depth. 18-161 ANNEXESTO REPLYOF THE UNITEDSTATES 603
annual cycles are clear. For example, over Georges Bank for these 40
years, the cold months of the year are depictinFigure 5 in two shades
of medium blue (Iwoto six degrees centigrade),and the warm months in
three shades of green (sixo 12 degrees centigrade), changing toyellow
and red (12 degrees centigrade and above). A comparison between the
Georges Bank and Scotian Shelf regimes reveals that the Scotian Shelf
regime isconsistently coolerthan the Georges Bank regime, with a longer
cold season characterized by extensive dark blue patches (less than two
degrees centigrade), and a shorter and coolersummer season reflected in
considerably less yellow and red (temperaturesabove 12 degrees centi-
grade) than that for Georges Bank.The Gulf of Maine Basin regime is
different from each of these other two regimes, as shown by fewer
extrema in temperature (no temperatures below two degrees centigrade
and none above 14).
15. Although the Canadian Counter-Memorial focuses almost exclu-
sively upon surface temperatures. bottom temperatures are at least as
important, andperhaps more so, to the marine ecologyof the area. Most
of the commercial speciesin thearea are groundfish and benthos(scallops
and lobster),which liveon or nearthe seabed rather than near the sea sur-
@ face. The United States. in Figure 10 of Annex 1 to its Counter-
Memorial, charted the results derived fromcollecting samples of bottom
temperatures for 40 years. That figure also shows the clear distinctions
among the oceanographic regimesof Georges Bank, the Gulf of Maine
Basin. and the Scotian Shelf.604 GULF OF MAINE [il
Aonex26
ACRITIQU O FTHEANALYS IITHECANADIA CNOUNTER-MEMO OFIHEL
GEOMORPHOL I~THE GULF OFMAIN E REA
1. The gwmorphology of the seahed in the Gulf of Maine area differs
from the deep geology of that area in one respect that is particularly
important for this case. The seahed may be measured, suweyed, and
othenvise studied by a variety of means, including much more direct
methods of observation than are available for suhsurfacc stmctures. As
such, the location and dimensions of particular features, as well as
differences in the composition and shape of the seabed itself, mbc
determined with a significantlygreater degree of certainty.
2. The Canadian Counter-Memorial appears to lose sight of this
distinctionin asserting that the United States Memorial is inconsistentin
simultaneously acknowledgingthe wntinuous geologicalstructure of the
continental shelf in the Gulf of Maine area, while suggesting that a
"separation", as it istenned hy Canada, doesin fact 'Aseach of the
United States pleadings has made clear, the United States does not
maintain that the Northeast Channel is a feature of such marked
disruption in the seabed as to constitute an indisputable indication of two
separate continental shelves.Nevertheless, the Northeast Channel is the
only significant break in the surfacf the shelf in the Gulf of Maine
area.
3. The Canadian Counter-Memorial resorts to the same notion of
"affinities" that is advanced with regard to the deep geologyof the area.
In this instance, although Canada also makes the claim that Gwrges
Bank is a "detached offshore bank'", it argues that, "to the extent" that
Georges Bankbears gwmorphological affinitiesto any other part of the
shelf, they are with the Scotian Shelf to the north'.As is discussed
hereinafter, Gwrges Bank is not a "detached hank", and Canada's notion
of surficial affinities between Gwrges Bank and the Scotian Shelf is
incorrect, as in fact is demonstrated by severalof the graphics profferedin
Volume1of the Annexesto the Canadian Counter-Memorial. Indeed, the
'CanadianCounter-Memorial,para171.
CanadianCounter-Memorial,para175;see alsCanadianMemorial,para.23.
'CanadianCounter-Memonalp ,aras.170and 175;sec alsCanadianCounter-
Memorial,Annexes,Vol.1.paras21-30.121 ANNEXES TO REPLYOFTHE UNITEDSTATES 605
Northeast Channel does "separate" the non-glacially eroded shelf of
Georges Bank southwestto New York fromthe extensivelyeroded shelfof
the Gulf of Maine Basin and the Scotian Shelf.
4. The first part of the Canadian argument, that Georges Bank is a
"detached offshorebank", is based upon a propositionthat ignores even
the most readily observable physical evidence.That Canadian proposition
is that the Northeast Channel and the Great South Channel are
sufficiently alike in terms of geomorphology so as to "separate" Georges
Bank, to a similar extent at both ends, from the adjacent shelf '.As
Canada then proceeds to argue, Georges Bank itself, as the "'picture'
framed by the two channels", isthe "true" relevant circumstance in the
area '.
5. In response, the United States initially notes that the pleadings of
both Parties amply demonstrate that, even inthe simplest terms of depth
and gradients, the two channels differ markedly '. As Figure 6 of the
United States .Counter-Memorial graphically shows, the Canadian Hy-
drographic Service,in its chart of the continental margin of eastern North
America, certainly dŒs not considerthe twochannels to be alike: onlythe
Northeast Channel appears on this official Canadian chart. As one can
see by viewingthis and other charts of the margin, there is an essentially
smooth continental shelf extending from New York along the entire
length of Georges Bank, wherethe eye immediately isdrawn to the only
interruption in the surface of the shelf that cuts acrossthe entire width of
that shelf,the Northeast Channel.
6. The Canadian Counter-Memorial also attempts to denigrate the
significanceof the Northeast Channel by its assertions that the Gulf of
Maine area is virtually a "featureless plain4", with the Northeast
Channel a mere "wrinkle of geomorphology "', and that none of the
seabed features is discemible except with the aid of extensive vertical
exaggeration 6.There are two principal responsesto this contention.First,
the argument missesthe point, for in the actual environmentof the Gulf
of Maine, the Northeast Channel is readily discemible,and as a result its
location and dimensions havebeen plotted accurately on charts and other
graphics countless times over. The use of bathymetric contours to define
such features in graphic form shouldhardly provokeany difficulties;such
contours are the standard means by which navigators and others locate
'CanadianCounter-Mcrnoriap l.ara. 175.
'CanadianCounter-Mernoriap l.ara. 175.
'UnitedStatesMernorial,para.31;UnitedStatesCounter-Mernorial. para3 s.7-
40;CanadianMernorial,para. 23.
'CanadianCounter-Mernoriap l.ara. 176.
'CanadianCounter-Mernoriap l,ara.28.
'CanadianCounter-Mernoriap l,ara. 176. 606 GULFOF MAINE R
seabed features, and indeed, Georges Bank itself, which Canada has
termed the "tme" relevant circumstance in the area, is defined by means
of these same bathymetric contours. The second point isthat it is curious,
if not inexplicable,that Canada should findthe use of vertical exaggera-
tion misleading. In its Memorial, Canada did not hesitate to use vertical
exaggeration in Figure 12 to illustrate the continental shelf, explaining
that "such visual aids are necessary to permit appreciation of this
wntinuous and important physiographic feature '".Furthermore, in Fig-
@ ure 18 of its Counter-Memorial, Canada used a vertical exaggeration
multiple of 70 in order to illustrate its point. Therefore,it is clear that the
importanceof physiographicfeatures, includingthe Northeast Channel, is
not lessened by the use of methods of illustrating these features and
demonstrating that very importance, methodsthat are widely accepted,
includingby Canada.
7. Canada also attempts to buttress its cornparison of the Northeast
Channel and the Great South Channel with a discussion that suggests
that the two channels have undergonea common historical development.
Although the United States and Canada both have discussedthe fluvial
and glacial history of the two channels, their respective approaches are
quite different. The United States, in Annex 5 to its Counter-Memorial.
demonstrated that the very different glacial activitythat occurred in each
of the channels is reflected today in the very different size and shape of
thosechanqels. Much of the Canadian discussionof the history of the two
channels, however, bears little relationship to the shape of the seabed
today. Ra'ther,it is merelya description of howthe Great South Channel
long ago was much deeper than it is today, and includesonly cryptic
references to the subsequent glacial activitythat Sincehas obliterated al1
but the seismic traces of most of these ancestral features. Accordingly,
these eventsbear no relationship to the shape of the seabed today, butin-
stead reflect precisely the type of history that the Court found to be
irrelevant in the Tunisia/Libyacase '.
8. To the extent that Canada does address that part of the glacial
histories of the Northeast Channel and the Great South Channel that is
reflected in the seabed today, its discussionand accompanying grapbics
are inconsistent, even contradictory. Canada contends that the glacidl
processes "scouredthe area of the Great South Channel '",and caused
the "cutting [of]theGreat SouthChanneland Northeast Channel "'.This
account is incorrect; moreover,it does not coincide with the pertinent
illustration. That figure, Figure 2 in Canada's Annex', shows that the
'CanadianMernorial,para.66.
'I.C.J. Reports 1982,p53-54,para. 61.
'CanadianMernorial,para.71.[Citationornitted.)
' CanadianCounter-MernoriaA l.nnexes,Vol.1,para. 18.
'CanadianCountcr-MernoriaA l,nnexes,Vol.1,Fig.2. 141 ANNEXES To REPLY OFTHE UNITEDSTATES 607
most recent, and thus the most significant, glacier advanced tothe sea
along the Scotian Shelf and through the Northeast Channel, but that it
did not advance across the area of the Great South Channel, nor, indeed.
most of Georges Bank.In fact, it is Figure 2, which wasderived from the
same source as Figure 3 in Annex 5 to the United States Counter-
Memorial. that isthe accurate rendition of this glacial activity, andnot
the textual description presented by Canada. It was only the Northeast
Channel, and not the Great South Channel or the rest of Georges Bank,
that was scoured by this glacialadvance, and this is reflected in the shape
and compositionof these features today.
9. Although it has raised the argument that Georges Bank is a
"detached" bank, Canada also claims that there are certain geomorpho-
logical"affinities" betweenthe Bank and the Scotian Shelf.One aspect of
this argument is Canada's division of the East Coast Continental Shelf
into "four broad physiographicprovinces "'.As wasoutlined in the United
States Counter-Memorial, it is possibleto divide this shelf into provinces
that reflect both the shape and the composition of the seabed. The
Canadian approach, however,is too simplistic, designedto showthat "the
only significantgeomorphologicaldifferentiation '"isfound in the vicinity
of the Great South Channel. Canada's division is based upon the
preliminary and elementary criterion of whether or not the shelf is
"glaciated "'. Although Canada makes reference to the "scoured surface
of the entire seabed fromthe Scotian Shelf as far south as the Cape Cod-
Nantucket Shoals-Great South Channel area"', there is no attempt to
address fully and consistently the next logical means of differentiation:
that of distinguishing betweenthe different types of glaciation, erosionor
deposition.
10. In this regard. the United States previouslyhas demonstrated that
the continental shelf al1the way from New York to Newfoundland is a
glaciated shelf'.The United States then proceeded,however,to refinethe
analysis, and to show that a distinct boundary between the part of this
shelf that was ercded by the glacier and the part that was not erodedislo-
cated along the northern edge of Georges Bank and through the
Northeast Channel '.Figure 5 of Annex 5 to the United States Counter-
Memorial alsoshowsthe pattern of this glacialerosionand that of the gla-
cial outwash that formed much of Georges Bank and Nantucket Shoals.
As wasmentione earlier, Canada refers to a "scoured seabed" through-
out the Gulf of Pla.ine area, thereby suggestingthat this entire area was
'CanadianMemori1,para.67;CanadianCounter-Memorialp.ara. 177.
>CanadianCounterMemorial,para. 177.
'CanadianCountcr Mernoriap l,ara. 177.
'CanadianCounter-MernorialA . nnexes,Vol1,para.2.
'UnitedStatesCounter-MemorialA , nnex5,Vol.IV.para. 4.
'UnitedStatesCounter-MernorialA . nnex 5,Vol.IV,paras.5-10,and 13.608 GULFOF MAINE [SI
glacially eroded. Once again it is difficult to reconcile Canada's textual
description withthe illustration offered in supportof that text. Figure 2 in
volume 1 of the Annexes to the Canadian Counter-Memorial indicates
that the glacier advanced to,but not across. Georges Bankand the shelf
to the southwest asfar as New York,clearly supporting the United States
characterization of the shelf from New York tothe Northeast Channel as
composed largely of materials deposited by the front of the ice sheet.
There isno "geomorphological differentiation" in the vicinityof the Great
South Channel reflected on this map; there is, however,a geomorphologi-
cal boundary in the vicinity of the Northeast Channel, representing, in
part, the limits of that glacial advance.
11. Canada's notion of geomorphologicalaffinities stems in part from a
purported continuity in sediment compositionthat, acwrding to Canada,
"extend[s]in a broad band fromthe Scotian Shelf across Georges Bank '".
Specifically,Canada claims that the distribution of mud, sand, and gravel
"showsa continuity in the pattern of sedimentdistribution throughout the
Gulf of Maine area ... '".Canada's analysis is flawed, however,and its
presentation features the same inconsistency betweentext and accompa-
nying graphics that has undermined severalof its other arguments.
12. Canada's use of mud, sand, and gravel distribution patterns is a
primitive method that oversimplifiesthe difficult task of determining the
density and originsof sediments. Thesepatterns of distribution apparently
are based upon measurements of the grain size of sediments retrieved
from isolated sample locationson the continental shelf. The various grain
sizes are grouped loosely as either mud (fine),sand (medium), or gravel
(coarse). It is impossibleto determine from this method the "depositing
agent", or means by which these sediments were depositedon the shelf,
i.e., glacial outwash, glacial till, or fluvial deposition. Accordingly,the
mapping of these patterns is of questionable significance,and is of little
assistance in determining the geomorphologicalorigins and compositionof
the shelf.
13. Quite apart from the primitive nature of Canada's analysis of
sediments in the Gulf of Maine area, it is noteworthy that the figures
proffered in Volume1of the Annexesto the Canadian Counter-Memorial
in support of that analysis are more supportive of a geomorphological
division at the Northeast Channel than at the Great South Channel.
Figure 5, which purports to depict the distribution of mud, showsthat any
"affinities" in the area are principally between the Gulf of Maine Basin
and the Scotian Shelf, and between Georges Bankand the shelf farther to
the southwest, in keeping with the geomorphological provinces as de-
scribed by the United States. The distribution of sand depictedon Figure
'canadian Counter-Memorial.para .79.[Citationomitted.]
'CanadianCounter-MemorialA , nnexes,Vol.1,para.22. 161 ANNEXES TO REPLYOFTHE UNITEDSTATES 609
6 showsa significant break in an otherwise continuousheavy concentra-
tion of sand (from more than 80 per cent to 20 per cent or Iess)occurring
in the vicinity of the Northeast Channel. Finally, Figure 7 shows heavy
concentrations of grave1throughout the Scotian Shelf, but only in a few
isolated areas on Georges Bank, as was described earlier by the United
States '.
'UnitedStatesMernorial,para. 33. GULFOFMAINE [Il
ACRITIQU OF THEANALYS IITUE CANADIA CNOUNTER-MEMO OF IHL
GEOWG N THE GULF OFMAIN EREA
1. The discussion in the Canadian Counter-Memorial relating to the
gwlogical setting in the Gulf of Maine area introduces a gwlogical
argument in10 this case in the face of Canada's otherwise unequivocal
acknowlcdgment that the geologicalstructure of the continental shelf is
"a single.continuous, uninterrupted featur'".
2. It initially appears that the Parties are in agreement with respect to
the irrelevance of gwlogy to the delimitation in this case1. Indeed,
Canada draws an analogy between the continental margin in the Gulf of
Maine area and that under consideration by the Court in the TunisialLi-
bya case 'As il relates to the geologicalstructure. this analogyholdstrue:
there are no separate geological prolongationspresent in the Gulf of
Maine area. Irrespective of this common ground, however. Canada
proceedsto argue that,
"... ro the extent that Georges Bankexhibits particular affinities to
the geological structure of any area of the continuous margin of
which it forms a part, these affinities are with areas to the north and
northeast'".
Moreover,Canada characterizes the New England Seamount Chain as a
feature "that disturbs the structural integrity of the basement block and
extends seaward off Cape Cod in the vicinity of the Great South
Channel "'.
3. The discussion of geology in the Canadian Counter-Memorial,
apparently an attempt to reserve a geologicalargument should the need
later arise. is contradictory on itiface. The geologicalstructure through-
out the Gulf of Maine area iscontinuousand uninterrupted, as each of the
Parties has acknowledged. It necessarily follows that there can be no
basement feature, whether the New England Seamount Chain or any
'CanadianCounter-Mernorial,para1.68.
'UnitedStatesCounter-Mernorial.para.5;CanadianCounter.Mernorialp.aras
168 and171.
'CanadianCounter-Mernoriap l.ara171.
'CanadianCounter-Mernorial.para1.71.[Ernphasisadded.]
'CanadianCounter-Mernorial.para1.71.[Citation ornitted.] 121 ANNEXESTO REPLVOFTHEUNITEDSTATES 61 1
other, that can, as Canada asserts, disturb the very integrity of that
structure. Such a disturbance would render the shelf diswntinuous and
interrupted.
4. Apart from the logical flaws underlyingthe Canadian approach to
geology, the facts do not support that approach. As was discussed in
Annex 5 to the United States Counter-Memorial, the New England
Seamount Chain does not disrupt the essential wntinuity and northeast-
ward trend of the geologicalstructure of the continental she'.Moreover,
there is no wmpelling or even persuasive evidence to support the
speculation of a few scientists, a proposition seizedupon by Canada, that
the Seamount Chain is wnnected, in the form of a "belt of seismicity",
with the White Mountain intrusives of the mainland United States and
Canada.
5. The Canadian Counter-Memorial raises the spectre of another
possible argument that would contradict Canada's express acknowledg-
ment that the deep geology inthe Gulf of Maine area is continuous and
uninterrupted. The Counter-Memorial reiterates and expands upon the
description in the Canadian Memorial of the Yarmouth arch and the
Georges Bankbasin and Scotian basin '.The Yarmouth arch, an uplifted,
ridge-like structure, is described as a basement structure that extends
transversely beneath the Northeast Channel to the southeastern part of
Georges Bank'. The .arch is said to separate partially the low-lying,
sediment-filledGeorges Bankand Swtian basins, with the Swtian basin
thereby also extendingbeneath the southeastern part of Georges Bank'.
The apparent intent of the Canadian discussion is to suggest that the
Yarmouth arch and this "extension" of the Swtian basin represent a
geological prolongation of Canada that reaches the basement beneath
Georges Bank.
6. In response, it first mus1be noted that the precise descriptions,as
@ wellas the exact depictionof basement features found in Figure 16of the
Canadian Counter-Memorial, can neither be supported nor challenged
unequivocally in the light of the data currently available. Each of the
features discussed lies far beneath the seabed, wvered with many
kilometersof overlying, hardened sedimentary rock. The indirect seismic
techniquesby wbich tbese features are studied,and, jus1as important, the
varying interpretations that geologists reasonably have drawn from the
necessarily inwmplete data wllected by these techniques, means tbat
geologistsare able to inferonlythe hroad outlinesand interrelationshipsof
thesebasementfeatures. Although deepdrillingiscapableof adding to the
'UnitedStats Counter-MernoriaA l.nnex5, Vol.IV,paras. 28and 29.
'CanadianMernorialp , ara80.
'CanadianMernorial,para. 80;see alsoCanadianCounter-Mernoriap l.ara. 173.
'CanadianMernorialp , ara80;CanadianCounter-Mernoriap l.ara173. 612 GULFOF MAINE 131
sophisticationof the analysis, the drilling conducted onGwrges Bank by
United States oilwmpaniw has taken place in areas of undisputedUnited
Statesjurisdiction.Furthermore,therehasbeennodrillingconducîedpursu-
ant toCanadian authorizationanywhereon GeorgesBank.
7. The conclusions that may be derived from information currently
. availableconcerningthe basement features describedby Canada confirm
tliat they representneither a disruptionin the geologicalcontinuityof the
area, nor a gwlogical "extension" of Canada beneath the edgeof Georges
Bank.It appearsfromthe availabledata that the Yarmoutharch is,by way
of illustration,uch like a ridge that protrudes, to some extent, into a
surrounding, sediment-filled"valley", representing the Gearges Bank ba-
sin. Nevertheless,it is clear that, despitethe projectionof the arch into the
basin, the basement structure remains essentially a continuous series of
interconnectedbasins that extends the length of tbe east coast continental
margin. Furthermore, virtually al1of the layers of sedimentary rock that
comprisethe shelfin the Gulfof Maine area extenduninterrupted overand
across the deeply buried Yarmouth arch'. Although gwlogists have
assignedvariousareas of the basin structurc such namesas "Gwrges Bank
basin", "Baltimore Canyontrougb", and "Scotian basin", these are simply
forconvenience,and, in fact, havenot beenusedconsistentlyto describethe
same areas '.These labels do not accord any weight to the suggestionof
Canada that the part ofthis continuousbasinstructurethat liesbeneaththe
southeastern tip of Georges Bank bearsany peculiar "affinities" to the
gwlogicalstructure of theCanadian margin alone.
8. The oblique contention of Canada that Gwrges Bank exhibits
affinities with the geological structure to the northeast also has been
discussed in Annex 5 to the United States Counter-Memorial. It was
noted there that similarities among various basement rocks are wmmon-
place throughout the eastern continental margin ofNorth America, as is
tobe expectedofa continuousgwlogicalstructure '.The trend ofthe deep
gwlogical stnictures in the Gulf of Maine area is parallel to the general
directionofthe coastline,and thus nodirectional trend or "affinities" may
beassignedarbitrarily betweensimilaritiesin rocktypes at any two points
within that structure.
9. In summary, notwithstanding the assertions and suggestionsto the
contrary that appear in certain parts of the Canadian pleadings,the deep
geological structure of the Gulf of Maine area is continuous and
uninterrupted.
'Canadabasacknowledgcd thisfactinits Mernorial.t para.80.
Compare, for exarnple,'the descriptionsof the Scotian basin by Canadian
geologistcontaincdin the articlk discusscdin par27of Annex 5,Vol.IV.of
theUnitcdStatesCounter-Mernoriaw l.iththedescriptionandgraphicdepictions
of thatasinwntaincdintheCanadianMernorialandCounter-Mernorial.
'UnitcdStatesCounter-MernoriaA l,nnex 5,Vol.IV, para.21. 111 ANNEXESTO REPLYOF THE UNITED STATES 613
Anoex28
ACRITIQU OF THEANALYS IITHE CANADIA CNOUNTER-MEMO OF HEL
HISTORIC AND RECEN T CTIVITIOFUNITED STATE FISHERM ENNGEORGES
BANK
Introduction
1. In ils Memorial and Counter-Memorial. the United States demon-
strated that United States fishermen began fishing on Georges Bankover
150yearsagoand since have fishedthere continually,and that they fished
there to the virtual exclusionof fishermen fromCanada and other States
until the 1950s.
2. In its Counter-Memorial. Canada attempts not onlyto establish that
Canadian fishing activities on Georges Bankhave deep historical roots,
but also to diminish the significance of the historical activities of the
United States fishermenand to belittle their morerecent activities. Asthe
United States demonstrates in Annex 29 to its Reply, the evidence that
Canada has introduced regarding its historical fishing activities on
Georges Bank establishes at most that, prior to the 1950s, Canadian
fishermen visited Georges Bank onlyoccasionally. Canada's assertions
regarding United States fishing activitiesare also unfounded.
3. Canada disparages the significance of United States fishing on
Georges Bank in the 19thcentury by calling into question the origin
and extent of those activities. Canada impliesthat the early United States
fisheries on Georges Bank were an incidental and unimportant part of
much larger fisheries scattered throughout the Northwest Atlantic
Ocean ',and that, inany event, the Georges Bank fisheries were limitedto
the western part of the Ban'Canada portrays the activities of United
States fishermen in the 20th century as the remnants of a purportedly
declining indust',in comparison to what is allegedbeoan expanding
Canadian industry'.
4. The origins of the contemporary United States fisheries on Georges
Bankdateto the early part of the 19thcentury and include virtuallyevery
stock of commercial importance on Georges Bank. The United States
alone was respnnsible forthe discovery ofeach ofthe major fisheries, from
the groundfish fisheryin the early 19th century, through the swordfish
'CanadianCounter-Mernorialp.aras.322-327.
'CanadianCounter-Mernorialp.ara.327.
'CanadianCounter-Mernorial.par2.58.275-276, a330-331
'CanadianCounter-Mernorial,par2.57.322. and 355.614 GULF OF MAINE Pl
fishery and the more recently developed scallop fishery in the 1930s. to
the offshore lobster fishery in the 1960s. The fishing industry of New
England has always been a significant part of the economy of the area and
has been expanding rapidly, no1 "declining", since the extension of
exclusive fisheries jurisdiction by the United States in 1977 '.
SECTION1. Groundfish Fishery
5. The first sustained fishery onGeorgesBank was a groundfish fishery
for fresh halibut. United States fisherman exploited the fresh halibut
fishery on Georges Bank between 1828 and 1848 '.This fishery supplied
nearly al1the halibut landed by New England vessels during this period,
and was conducted in the deeper water on the northeastern part of the
Bank '. Most of the fishing vessels engaged in this fishery were from
Gloucester, Massachusetts, and from Maine, although some came from as
far south as New London, Connecticut '.
6. Changes in consumer preferences for fresh fish and the proximity of
Georges Bank to the principal New England iishing ports led to expanded
fishing activity on Georges Bank. By the middle of the 19th century,
Georges Bank sustained a level of fishing and related activities commen-
surate with its status as the larges1and richest fishing ground adjacent to
the Coastof the United States.
'Sincethe UnitedStatesextended itsfisheriesjurisdictionto200naulicalmilesin
March, 1977the UnitedStates fishingindustryin general, and theNew England
industryin particular,has grownrapidlyandvigorously.In 1976,therewere 783
vessels in the New England fleet, of which 66 were larger than 150 gross
registeredtons(GRT).In 1981.therewere 1,278vessels.ofwhich178werelarger
than 150GRT.Thetotal number ofvesselsthusgrew63pcrcent.Thenumberof
largevessels,Le.,thosecapableof fishingyear-roundonGeorgesBank. grew170
percent. [Datacalculatedonthe basisof AppendixA to thisAnnex.]Thisgrowth
in the sizeof the fleet has not been accompaniedby any substantial changein
ownership patterns. Unlike the situation in Canada, where ownershipof the
offshorefleet is concentratedin a fewlarge firms.the great majorityof United
Statesoffshorevesselsare ownedby individuals.
'G.B. Goode, The Fisheriesand Fishery Industriesof the United States, 1887,
Sec.V,Vol. 1,p. 32. UnitedStatesMemorial.Annex 18,Vol.II.Thereare reports
of fishingon GeorgesBank by fishermenfrom Marblehead, Massachusettsa ,s
earlyas the 18th century.
'Goode,op. cil.Sec.V,Vol.1,pp.4, and29-35.DepositedwiththeCourt incon-
nectionwiththe UnitedStates Memorial pursuantto Article5q2) ofthe Rulesof
Court.
'Goode,op. cil.Sec. 5,Vol.1.pp.34,and 38-39.UnitedStates Memorial,Annex
18,Vol.Il;and UnitedStates Counter-Memorial.Annex23.Vol.V. i31 ANNEXESTO REPLYOF THE UNITEDSTATES 615
7. With the sudden decline in the abundance of halibut on Georges
Bank in 1849 and 1850, the majority of those fishing on the Bank began
to fish for cod to supply the expanding fresh fish market. Shortly
thereafter, United States fishermen expanded the fishery to include fresh
haddock, which consumers preferred over cod. During the winter and
spring, the fresh groundfish fishery was conducted on the "Winter Fishing
Ground, located on the eastern part of Georges Bank '.To this day, the
winter groundfish fishery on the northeastern portion of Georges Bank
remains one of the mainstays of the New England fishing industry.
During otherparts of the year, the groundfish fishery was more dispersed,
covering al1of Georges Bank, as well as nearby Browns Bank, Seal Island
Ground, and German Bank. Canada's assertion to the contrary notwith-
standing ',many vessels fished on the eastern portion of Georges Bank
during the summer as well as the winter. Goode notes that many vessels
fished in midsummer in 25to 40 fathomseast of the main Georges Shoal,
gradually working their way to deeper waters >.
8. Together with the expansion of the fresh groundfish fishery begin-
ning in the 1850s. aseparate United States fishing fleet on Georges Bank
evolved. By 1879, the Georges Bank fleet, based primarily in Gloucester,
was distinct, with respect to its activity and its size, from the United
States fleet thatfished the more northerly banks. The "Georges Fleet", as
the former was called, is documented in several bistorical works that
previously have been deposited with the Court ': The "Georges Fleet"
restricted its activities to Georges Bank and its vicinity, and did not fish
'Goode, op. citSec. V, Vol.1, p. 189.UnitedStates Memorial,Annex 18,Vol.
II. AsGoodeStates:
"During[February.March,April]the favoritefishing groundisuponthat
portionof the Bank which lieseast of theshoals... this beingcalled the
'winter fishiground'".
See alsoGoode. op. citSec. III,Vol.1,pp. 74 and 75. UnitedStates Counter-
@ Memorial,Fig. 11 and Annex21,Vol.IV, formapsdepictingthe WinterFishing
Ground.
'Canada assertsthat, with the exceptionof the wintercd fishingon the eastern
portionofthe Bank."at al1other timesof the year thefishingiieet concentratedin
the westernpart of GeorgesBank".CanadianCounter-Memorial,para. 327.
'Goode, op. cil.Sec. V, Vol.1,p. 234. Deposited witCourt in connectionwith
UnitedStates Memorialpursuantto Article5q2) of the RulesofCourt.
'In particular, Goode dividesthe New England codfisheryinto four separate
categories.Goodedevotesan entire chapterto the GeorgesBankcodfishery[Sec.
V, Vol.1.pp. 187-198,UnitedStates Memorial,Annex 18,Vol.II.]Canada has
not submittedin evidenceany document indicating the existence oafCanadian
GeorgesBankiieet in the 19thcentury.616 GULF OF MAINE 141
off the Atlantic Coast of Canada or in the Gulf of St. Lawrence. As
Goodereports:
"ln 1879 there were one hundred and four Gloucester vessels
constantly employed in the Georges's fishery, manyof them making
over a dozen trips each, and forty-eight other Gloucester vessels
followedthe fishery a part of the season, the entire fleet aggregating
one thousand trips and landing 23,144,000 poundsof codfish and
995,000 poundsof fresh halibut.
In 1880the Gloucester George's fleetaggregated one hundred and
sixty-three vessels,one hundred and seven of them engaging exclu-
sivelyin that fishery, whilethe others wereemployedfor a part of the
year in other fisheries. The fleet made one thousand four hundred
and thirty trips, and landed 27,000,511 poundsof ccdfish and
1,125,450 poundsof fresh halibut.
In 1881 the fleet was the same size as in 1880, the catch
aggregating 22,510,000 poundsof cod and 1,087,400poundsof fresh
halibut '".
Over the last half of the 19th century and the early 20th century, this
same United States "Georges Fleet" grewto form the foundation(or the
present United States Gwrges Bank groundfish fleet.
9. The Canadian Counter-Memorial asserts that, in the late 19th
century, the New England fisheries beganto decline '.Although a decline
did occur, it was limited to the other major branch of the New England
fishing industry, the saltcod fishery on the Grand Banks and Western
Bank'. There was no such decline in the fresh fish fishery on Georges
Bank. Although the salt-cd fishery at one time was similar in size and
importance to the Georges Bank fresh fish fishery,it employedan entirely
different fleet. This fleet consistedof larger boats, called "Bankers", and
used different methods and equipment from those of the Georges Bank
fleet. Moreover,as the Grand Banks and Western Bank fleet declined,
fishermen from NewEngland consolidated their efforts on Georges Bank
and other fishing groundscloser to home. In 1888,the Grand Banks and
Western Bank salt-cod fleet consisted of 399 vessels, whilethe Georges
Bank and inshorefleets consistedof 284 vessels.During the first decade of
the 20th century, the Georges Bank and inshore fleets grew
'Goode.op.cit.Sec.V. Vol.1,p. 188;UnitedStatesMernorialA, nnex18.Vol.II;
see also H. A.lnnis,The Cod Fisheries:A Hisiory ofan InternaiionalEconomy,
1940,p. 330. Deposited with the Court in wnnection with the UnitedStates
MernorialpursuanttoArticle5q2)ofthe RulesofCourt.
Canadian Counter-Mernorialp.aras.323-331.
'Gode, op.ciiSec.V,Vol.1, pp.123-187. 151 ANNEXES To REPLi' OFTHE UNITEDSTATES 617
t6 372 vessels,whilethe fleet fishingthe Grand Banksand Western Bank
off Canada experienceda precipitousdecline to 50vessels '.
10. The consolidationof United States fishing effort on Georges Bank
continued over the first fewdecadesoEthe 20th century. The introduction
of the steam-poweredtrawler, as well as improvementsjn processingand
overland transportation that expanded the markets for fresh f$h, precipi-
tated a major increase in the Georges Back catch by United States
fishermen during the early 20th century'.In 1904, the year prior ta the
introduction of the steam trawler, the United States catch from Georges
Bank was a reported 23,888,metric tons'. By 1929, the United States
catch had increased to 159,253metric tons4. Although haddock was most
sought during this period,other speciesfoundon GeorgesBank, including
cod, hake;mackerel, and pollock, continued to be of commercial impor-
tance. As Ruth Grant wrote in 1934, "Georges Bank was the most
important [United States] fishing area, furnishing 42 percent of the fish
landed by vesselsover fivetons'".
11. Between 1931 and 1935,the New England,groundfish îïshery on
Georges Bank suffered its first major setback when the catches of
haddock dropped markedly from the very high levelsof the late 1920s 6.
As a result, the United States intensified its reseaich into the fish stocks
of Georges Bank 6.By 1936,catches ha4 returned to m&e normal leveis.
@ Figure 12 of the United States Counter-Memorial reproduces mam. of
that period that show the sizes and location of United States cod and
haddock catches in 1936,depicting extensivefishing activitiesof United
States fishing vesselson the .northeastern portion of Georges Bank.
Groundfish landings in the United States from Georges Bank declined
slightly during World War II, but rose to.beyond prewar levelsimmedi-
ately followingthe war'.In the late 1940s;the increasedawarenessonthe
part of the United States of the importance 06 the stocks on Georges
'R. McFarland,A Historyofthe NewEnglandFisheries.1911, pp.281and 282.
Deposited witthhe CourtinconnectiowiththeUnitedStatesMernoriapl ursuant
. to Article5q2) of the Rulesof Court.UnitedStates fisherrnenwithdrewfrorn
thesenorthernwaterspartlyinresponsetotheincreaseinthemarketforlreshfish
in the UnitedStatesand partlyin response tothe longdiplornaticcontroversy
betweenthe UnitedStates and Canadaregardingthe rightsand privilegesof
UnitedStatesvesselsfishinginwatersoffCanada.
'UnitedStatesMernorial,paras.73-75;seealsoUnitedStatesCounter-Mernori-
@ al, Fig9.
'United StatesCounter-Mernorial. nnex17, VolV.
'United StatesCounter-MernoriaAl,nnex 17, ol.V.
'R.F. Grant,TheCanadianAtlanticFishery.1934, p.120.
UnitedStatesCounter-MernoriaA l,nnex3, VolII.para.9.
@ 'UnitedStatesCounter-MernorialF,ig.9. 618 GULF OFMAINE (61
Bank. first prompted by the decline of the haddock stocksin the early
1930s. led the United States to take the initiative in establishing the
International Commission for the Northwest Atlantic Fisheries
(ICNAF) '.
12. During the 1950s, landings by United States fishermen from
Georges Bank remained largely stable. Nevertheless, in response to the
increasing threat of depletion of the stocks, and at the request of the
United States. ICNAF began regulating the fisheries in the area. The
firstmeasure was the impositionof mesh-sizeregulations on the Subarea
5 haddock fishery in 1951.Subsequently,these regulations were expanded
and refined so as to apply to other stocks(i.e.,cd and flounder)and other
subareas '.
13. The 1960sbrought the most severechangesthat the Georges Bank
fisheries hadundergone in the morethan onehundred yearssincetheir in-
ception. The incursionof large foreign fleetsinto the area precipitated an
unyieldingthreat ofoverfishingof the stocks. Between1960and 1965,the
United States maintained its historic annual catch levelon Georges Bank
of approximately 100,000 metric tons '.By 1965,however;the total catch
ofother States on Georges Bank roseto a multipleof nearly six times that
United States catch'. The effect of this dramatic escalation in fishing
activity onGeorges Bank wasmorepronounced forthe United States than
for other States fishing on Georges Bank. Unlike Canadian fishermen,
United States fishermen lackednearby alternate fishing grounds for the
stocks of cod and haddock that they traditionally had fished on Georges
Bank. When the combined United States and foreign catch reached its
peak in the mid-19605, these and other stocks that were important to
United States fishermen had declinedto dangerously low levels. During
the late 1960sand early 1970s. United States initiatives within ICNAF
resulted in tighter regulatory controls that helpedto alleviatepartially the
overfishing problem'. Nevertheless, by the early 1970s, when most of
these measures became effective, the Georges Bank stocksalready had
been damaged severely.
14. The Canadian Memorial and Counter-Memorial imply that
catches during the perid 1969 through 1978 are representative of the
more recent catch levelsofthe Parties on the northeastern part of Georges
'For a detaileddiscussionof the UnitedStates role in the establishmentof
ICNAF, seeUnitedStatesCounter-MernoriaA l.nnex3,Vol. 11.paras.10-13.
'Fora discussionof the application oICNAFregulatoryrneasuresto Gwrgcs
Bank. seeUnitedStatesCountcr-MernorialA , nnex 3,Vol.II. paras27-32.43,
and45-62,andAnnex 1,Vol.IA,AppendixA-1.
@ 'See UnitedStatesCounter-MernorialF .ig.9.
'United StatesCounter-MernorialA . nnex1, Vol.IA. AppendixA-1;Anncx 3.
VOLII, paras. 49-62.
'UnitedStatesCounter-Mernoria l.55,TableA(1965catches).171 ANNEXES To REPLY ofTHE UNITED STATES 619
Bank. This is simply not the case. During the first half of the 1970s, not
only did United States fishermen continue to endure the effects of
overfishing hy the foreign fleets, but they were most affected by the
regulatory measures that were imposed by ICNAF to reverse these
effects. These factors caused United States groundfish landings from
Georges Bank to decline to levels far helow those of previous or
subsequent years.
15. Haddock catch levels provide the clearest example of this situation.
Between 1950 and 1966, annual United States landings of haddock from
Georges Bank had ranged between 36,000 and 52,000 metric tons. By
1968, when the overfishing of the early 1960s had taken its toll, the
United States catch dropped to 24,000 metric tons. In 1969, ICNAF for
the first time prohibited fishing for haddock on the eastern part of
Georges Bank during the annual spawning season '.In 1970, the United
Statescatch for the entire Bank fell to 8,000 metric tons'.In addition to
closing areas to fishing, a quota eventually was set upon the combined
total catch of haddock hy al1 memher States3. This overall quota was
12,000 metric tons, or approximately 28 per cent of the average yearly
catch of the United States for the years 1950 through 1966. In 1971, at
the request of the United States, ICNAF lowered the total catch quota for
Georges Bank haddock to 6,000 metric tons for the 1972fishing year '.At
the 1973 Annual Meeting of ICNAF, pursuant to a United States
proposal, theSubarea 5 haddock quota was set at zero. This zero quota on
Georges Bank haddock remained in effect through 1976, the final year of
United States participation in ICNAF'. In 1977 and 1978, the United
States imposed haddock quotas of 6,200 metric tons and 8,000
'ICNAF Starisrical Bulletins,1968and 1970.United States Memorial,Annex
47,Vol.III.
'ICNAF AnnualProceedings, 1969,hoceedings No. 16,Item 3,and Appendix
II. Deposited withCourtinconnectionwiththe UnitedStatesMemorialpursuant
toArticle5q2) of the Rulesof Court.
'For amoredetaileddiscussionof theseUnitedStates initiativesas theyaffected
GeorgesBank, seeUnitedStates Counter-Mernorial,Annex 3,Vol.II, paras.23-
62.
'ICNAF Proceedings, 1971,hoceedings No. 13,Item 7 andAppendix1.United
StatesCounter-Memorial,Annex 3,Vol.II, TableB-22.
'The incidentalcatchofhaddockalsowasstrictly regulatedduringthisperiod.At
the lCNAF AnnualMeetingin 1975,the total incidentalcatch of al1States was
setat 6,000metrictons;this totalwasthenallocatedamongthe memberStates as
follows:United States-4,450 metrictons;Canada-1,200 metrictons;Spain-
300metrictons;and,al1others-50 metrictons. ICNAF Proceedings, 1974-1975,
p.220,Item 10,iii.Deposited withthe Courtinconnectionwiththe UnitedStates
Memorialpursuantto ArticleSq2)of the RulesofCourt. 620 GULFOF MAINE [8-101
metric tons '.Including as it does these years of strict regulatory control,
the period from 1969through 1978 can in no way be called representative
of thehistorical activities of United States fishermen on Georges Bank.
16. Since 1978, United States groundfish landings from Georges Bank
have continued to grow. They have increased 30 per cent in the period
from 1978 through 1982 '.This growth in landings was made possible by
the rewvery of the stocks, and by a simultaneous increase in the size of
the New England fleet, both ofwhich have occurred since the extension of
@ fisheries jurisdiction to 200 nautical mile'.Figure 1 shows the extent to
which the New England groundfish catch is concentrated on Georges
Bank, particularly its northeastern portion.
SECTION2. SwordfishFishery
17. AsCanada would appear to acknowledge, the swordfish fishery on
Georges Bank was developed by New England fishermen during the 19th
century '.Swordfishing vessels from New England normally would follow
the fish along the outer edge of GeorgesBank during the summerand fall
months ',as they moved in their annual migration from the Carribbean
to the waters off thecoast of Atlantic Canada. Vessels from Connecticut,
Rhode Island, and Massachusetts engaged in this fishery as early as
1823, and, by 1879, there were 41 vessels employed in this
'42 Federal Register29876(10June 1977);43 Federal Register28503(30June
1977).Depositedwiththe Court pursuantta Article5q2) of theRulesof Court.
'These calculationsare based upon NAFO SCS Dac. 83/1X/22 for 1982,and
ICNAF Stafistical BulletinVol. 28, for 1978.Deposited withthe Court in
connectionwiththe UnitedStates MemorialpursuanttoArticle5W2)ofthe Rules
of Court.
'The turnabout in the fortunesof the New England groundfishindustry is
inconsistentwithCanadianassertionsthat the NewEnglandfishingindustryisin
"decline".[Canadian Counter-Memorial. para2 .75.1Appendix A documents the
increase in the size of the New England fleet since 1976. In fact, it is the
Canadian groundfish industrythat is currently in an economic"crisis". [Task
Force onAtlantic Fisheries,Navigating Troubled Waters (the "Kirby Report"),
inconnectionwiththe UnitedStates Counter-Memorialpursuantto Article5q2)rt -
of the Rules of Court.] AppendixB to this Annex,contains recent newspaper .
reports of efforts underwaby the federal andprovincialgovernmentsof Canada
to restore the groundfish industryto economicviability.AppendixC addresses
Canadian argumentsthat their groundfish industry haslowercoststhan thai of
NewEngland.[Canadian Counter-Memorial. paras2 .76and 277.1
'CanadianCounter-Memorial.Annexes.Vol.II, para. 60.
'Goode. op.citSec. V, Vol.1,p. 317. Deposited withthe Court by the United
States in connectionwith its Memorialpursuant to Article 50(2)of the Rulesof
Court.1111 ANNEXES TO REPLYOF THE UNITED STATES 621.
fishery '.United States vesselshave continued to fish for swordfish off the
entire Atlantic coast of the United States and Canada, including on
Georges Bank, until the present. In recent years, swordfish landings from
Georges Bank have been almost exclusively by the United States. In 1982,
the United States landed 701 metric tons of swordfish from Georges
Bank, whereas Canada landed only one metric ton '.
SECTION 3. The Scallop Fishery
18. Another dimension was added to the United States Georges Bank
fishery when New England fishermen developed the offshore scallop
fishery on Georges Bank in the 1930s'. This fishery expanded rapidly
during the 1940s and 1950s, engaging vessels from Maine and from New
Bedford,.Massachusetts. The expansion of the scallop fishery largely was
responsible for the development of New Bedford into an important
modern fishing port '.
19. The first Canadian scallop trip to Georges Bank, which took place
some 15 years after the inception of the United States Georges Bank
scallop fishery, was undertaken by Canadian fishermen who had learned
of the fishery while working aboard United States fishing vessels '.It was
not until the 1950s. however, that Canadian fishermen began sustained
activity on the scallop beds of Georges Bank. Even then, Canada's scallop
landings from Georges Bank were insignificant. Canada did not even
report scallop landings from Georges Bank to ICNAF until 1954 6.In the
late 1950s and early 1960s. Canadian scallop catches on Georges Bank,
'Good~,~op.citS.,ec. V, Vol.1,p. 317. Dcpositcd withthe Court hy the Unitcd
States in connectionwithils Memorialpursuantto Article5q2) of the Rulesof
Court.
Subareag5Zeforthe yean 1978-1982wcrc2.842mctrictons.binedfOfmthis,thc United
States landed2,660mctrictons,or 94per cent. CanadianrelianceuponGwrges
Bank as a source of swordfish since mercury contaminationrcgulationswere
relaxcdin 1979 [Canadian Countcr-MemorialA , nnexes,Vol.II, para. 1851has
ban quitcsmall.Only2.9 percsnt ofCanadianlandingsinthe period1979-1982
came fromSubarea 5Ze. In 1982,only onemetricton waslandedby Canadian
vesselsfrom Gwrges Bank. Calculationsare bascd upon ICNAF and NAFO
Sfafisfical Bulletinr. for 1978-1980;dcpositcdwith the Court by thc United
Statespursuantto Article5q2) of the Rulesof Court:NAFOStatisricalBulletin
for 1981:anduwn NAFO SCS Doc.8311Xl22.for 1982.
'United~tates~~emorial,para. 82; unitcd States Counter-Memorial. paras. 72
and 73;and Anncx7, Vol.IV, paras. 24-27.
'United StatesMemorial, para.82; UnitcdStatcs Counter-Memorial, paras. 72
and 73;and Anncx 7. Vol.IV.paras.24-27.
'N. Bourne.Scallops and the Wshore Fishery 'd the Maritimes, 1964,p. 21.
DcpositcdhyCanadawithits Mcmorialpursuantto Article5q2) of thc Rulesof
Court.
'UnitedStatesCounter-Memorial, paras6 .3-74. 622 GULF OFMAINE 112-141
especially on the northern edge and the northeast peak, rose dramatical-
ly'.The scallop fleets of both nations were able to fish together on the
northern edge and northeast peak until around 1965 as a result of an
unusual abundance of scallops entering the fishery in 1959 '.In the mid-
1960s. vessels from both fleets moved south to ha~est an unusually large
abundance of scallops on the mid-Atlantic beds. By 1968. the Canadian
vessels that had moved south rejoined the remainder of the Canadian fleet
on Georges Bank, although the abundance and average size of scallops
there had fallen dramatically '.Some United States scallopers continued
to fish the mid-Atlantic beds, while others converted to groundfishing,
and many others went out of business. Only a few continued to fish the de-
pleted resource on eastern Georges Bank'.
20. Beginning in the late 1970s. and continuing to the present, United
States scallop vessels have increased substantially their landings from
Georges Bank, in particular from the northern edge and the northeast
@ peak *.Figure 26 of the Canadian Counter-Memorial shows the United
@ 'United States Counter-Memorial.Fig. 10.
'J.F. Caddy and E.I. Lord, "High Priceof Scallop Landings Conceals Decliin
Offshore Stocks", Fisheries of Canada, Dept. of the Environment, May-June
1971,Vol.23.No. 5, p. 4. United States Counter-Memorial,Annex 19.Vol.V.
'United States Counter-Memorial, para. 74. Contrary to Canadian assertions
[Canadian Counter-Memorial. para.2581,the mid-Atlantic beds wereneither
"overfishedby the United States", nor did they represent "a major traditional
source ofupplyin the United States".The mid-Atlanticbedswerefishedby boih
States whenabundanceswereunusuallyhighinthe mid-1960s.and continue tobe
fished today, when their productivity.has returned to more normal levels, by
United States vessels basedin the mid-Atlantic States. The "major traditional
source of supply in the United States" has been and remains GeorgesBank,
especiallythe mostproductivebedsfoundon the northern edgeandtlie northeast
peak of the Bank.
'The fishing practices of the Canadian ileet of some 70 large vesselson the
eastern GeorgesBankbeds inthe late 1960sand early 1970sledscientiststo warn
that the resourcewas beingdamaged. [J.F. Caddy and E.I. Lord, "High Priceof
ScallopsLandings Conceals Declinein OffshoreStocks". in FisheriesofCanada,
Dept.of the Environment. May-June1971,Vol. 23,No. 5, UnitedStates Counter-
Memorial, Annex 19,Vol. V.1Becauseof the desire to maintain employmentin
the scallop ileet when other fisherieswere in a serious decline [United States
Counter-Memorial, Annex 4,Vol. III. AppendixD, para. 41,Canada refusedto
accept conservation measures adoptedby ICNAF that Canada itself had earlier
proposed.[ICNAF. Proceedingsof the 22nd Annual Meeting. No. 7.App. IV.]
Canada has been careful in describing ICNAF scallop conservation efforts,
stating that scallops "were never regulated by ICNAF". [Canadian Counter-
Memorial,para. 430.1This statement is technically correct.but obscures thefact
that it wasCanada that preventedsuch regulationsfromtaking effectin 1972.
'Canada catls this return of the United States ileet to its traditional grounds
"transitory andopportunistic". [Canadian Counter-Memorial, para.259.1These
terms moreaccuratelydescribethe suddenincursionofthe Canadian scallop ileet
into thefully utilized scallop fisheryon Georges Bank in the early 1960s.[See
United States Counter-Memorial.para. 74.1 1151 ANNEXES TO REPLYOFTHE UNITEDSTATES 623
States scallop catch on Georges Bank only during the unrepresentative
@ period of 1969 through 1978. Figure 2, however, showsthe extent to
which the United States scallopcatch on Georges Bankwasconcentrated
in the northeastern portionof the Bank,both in the early stagesof the Ca-
nadian fishery and in 1981,followingthe return of the United States fleet
to its traditional grounds.
SECTION 4. The Lobster Fishery
21. The most recent fisherythat has been developedon Georges Bank
is the offshore lobster fishery,located principallyalong the seaward slope
of Georges Bank. This fiçhery was first developed by United States
fishermen in the 1960s'.United States fishermen today land 95 per cent
of the lobster taken from Georges Bank, whereas Canadian fishermen
land fiveper cen'.
SECTION 5. Conclusion
22. The United States discoveredand developedal1the major fisheries
on Georges Bank.By contrast, Canada has submitted no evidencethat it
participated in the discoveryor early developmentof any of the principal
fisheries.With the exceptionof the halibut fishery, al1the United States
fisherieshave continued to prosper and to grow to the present day.
23. With respect to the groundfish fishery,the evidence that Canada
has submitted establishesonly that, by the latter part of the 19thcentury,
Georges Bank was visitedoccasionally by Canadian fishermen '.During
that same period, the United States already had developedan entire fleet
speciallyadapted for and devotedto the Georges Bank groundfishfishery.
Today, as then, the United States groundfish fuhery on Georges Bankis
far larger than that of Canad'.
24. As regards swordfish, the United States developed the swordfish
fishery on Georges Bank.The United States swordfish fisheryon Georges
Bank remains the predominant onetoday.
25. Concerning scallops, it was not until 1954 that Canadian scallop
fishermen began significantfishing activities on Georges Bank. Although
'UnitedStatesCounter-MemorialA. nnex7,Vol.IV.para.29.
'In 1982, UniteStateslandingsoflobsterfromGeorgesBank were3,636 metric
tons, wheres anadalandedonly 175mctrictons.[NAFOSCSDoc.83/1X/22.]
'SeeAnnex29tothisRcply.
' In 1982,totalUnitcdStatesgroundfish landiromGeorgesBankwere94,110
metrictons, whereasCanadianlandingswere29.399metrictons.[NAFO SCS
@ Doc.83/1X/22.]UnitedStatesCounter-MernorialF.ig.9. 624 GULF OF MAINE 1161
Canada harvested more scallops from Georges Bank than did the United
States during the late 1960s and early 1970s. in recent years the United
States has begun to reassertits historical dominace in this fishe'.
26. Finally, the'lobster fishery located along the seaward slope of
Georges Bank also was developed by United States fishermen in the
1960s. This fishery is still conducted principally by United States
fishermen.
27. As both the historical and recent data make clear, the United
States historically has dominated. and today continues to dominate, the
fisheries of Georges Bank. Canada's activities on Georges Bank are of far
more recent origin and smaller extent than those of the United States.
@ ' United States Counter-Memorial. Fig. 10. In 1982, United States scallop
landings(convertedIo meat weight)from Subdivision5Ze totalled6.526 metric
tons,whereasCanada landed4.307metrictons.[NAFOSCSDoc.83/1X/22.] ANNEXES TO REPLY OF THE UNITED STATES 625
Appendix to Aune28
NUMBE RFUNITEDSTATEFSISHINVESSELBYMAJOR PORTT, ONNAGCELASS,
ANDYEAR (1965-1981):MAIN, EWHAMPSHIRME, SSACHUSETR~S,E
ISLANDN,EWJERSEYM, ARYLAADNDVIRGINIA
(Source: Computer data base maintained by the National Marine Fisheries
Service,United States Dept. of Commerce.)
[Norreproduced]
AppeodixBto Anne28
RECENTNEWSPAPE RRTICLECONCERNING THCONDITIO OF THECANADIAN
ATLANTIRCSHINGINDUSTR Y,DSTEPSBEINGTAKENBY THENATIONA LND
PROVINCIA GOVERNMEN TOTSSSISTHATINDUSTRY:
C. No~wooo, "QUOTREMAINS THISSUFORSMALD LRAGGERS",
THE SOU'WESTE 1S,EPTEMB1R83,P2
[UNATTRIBUTE "D],CENTWSUREH SEIGHTEN UNCERTAINTY",
THE SOU'WESTE1RS,EPTEMB1R83,P.2
[UNATIRIBUTE"DF]I,SHEP:ATIENNEEEDED", ALIFAXHRONICLE-HERALD,
30 SEPTEMBE1R83
F. MCMAHON ", ADNESF,RUSTRATIINTHE FISHININDUSTRYH",ALIFAX
CHRONICLE-HER2 A7DC, TOBR983P.7
F. MCMAHON , EWFOUNDLAND-TD YEPEFEARED"H,ALIFAX
CHRONICLE-HER3 ALD. TOBE1983
[UNATTRIBUTED"FISHINFORANSWERSH ",ALIFAXHRONICLE-HERALD,
2 NOVEMBE 1983
H.T. SHEA",FISHERIS:.S. MAKCOUNTER-PROPOSA HS",IFAX
CHRONICLE-HERA 1LDO, VEMB1983
[UNATTRIBUTE "D],STRUCTURIBNLLINTRODUCED TH,SOU'WESTER,
15N~VEMBE 1983P.4
[Norreproduced] AppendixC to Annex28
THE CANADIA "LNOWE ROST "RGUMENI
1. Canada asserts that "[wjith the higher paid opportunitiesopen to
labour in eastern Massachusetts, and particularly in Boston, this area
could beexpectedto experiencedifficulty in maintaining extensive fishing
operationsin competition withregionssuch as southwestNova Scotia that
do not have equivalent alternative economicopportunities".As a result
of lower labor costs, Canada argues, southwest Nova Scotia is the
"rational economicbase "',as compared with eastern Massachusetts, for
the exploitation of the northeastern portion of Georges Bank.
2. Canada has provided no evidence to support its contention that
employment opportunities of the lype relevant for Jshermen will be
greater in New England than in Nova Scotia. On the contrary, it is in
Nova Scotia that substantial growth in employment related to offshore
petroleum and natural gas is expectedin the comingyears. much of which
willinvolveskillsrelevant for fishingindustry employe'.
3.More importantly, the calculation of relative cost between two
industries. andthus the deiermination of which is the more economically
efficient, includesfar more than a simple comparisonof labor costs.The
principal issues that must be addressed in calculating relative costs
between two industries are:, ,
a. If the two industries studied do not produce exactly the same
products, howis output to be measured?
b. If costsare measured by adding expenditureson various inputs,
how is the cost of the services providedby capital equipment tobe de-
termined? Are government subsidies forcapital investment and
equipment depreciation and maintenance accounted for properly?
How can consistency be maintained in comparisons between indus-
tries and States?
c. If costs are measured by deducting extraordinary profits from
revenues, how are ordinary profits (which equal cos1of services of
ownedcapital equipment)determined?
'CanadianCounter-Mernoriap l.ara276.
'UnitedStatesCounter-MemorialA, nnex4.Vol.IIIpara.64.[21 ANNEXESTO REPLYOFTHE UNITED STATES 627
d. If the two industries are subject to different taxstructures and
programs, how should the effects of these programs be treated in
calculating costs? ,
4. With regard to the first issue, to the extent that the two industries
both deliver their products (Le., processed fish)to the United States
market, the prices prevailing in that market provide a means for
comparing the products. Hence,the most appropriate measure of output
for purposes of comparing the industries is the value in United States
dollarsof industry products.It must he noted, however,that, if the twoin-
dustries produce different combinations of products (as between scallops,
fresh fish, andfrozen fish),calculations based uponvalue in United States
dollars of total product may obscure variations in relative costs for
different sub-products.
5. With respect to the measurement of costs, neither Canadian nor
United States regional industrial statistics provide a gwd basis for
determining the value of capital invested in the industries or servicecost
of capital. Consequently, a major critical component of costs is poorly
determined. Differences in non-capital costs in the two industries are
likely to reflect in large part differences in the degree of capitalization of
the industries. It would be erronwus to conclude that the industry with
loweroperating (non-capital)costs hasloweroverall costs,sincethe lower
operating costsmay beachievedby greater capitalization, implyinghigher
capital service wsts. Further, input price differences are an unreliable
indicator of overall wsts differences, inasmuch as the productivity of the
inputs may not 'be the same. For example, fishermen or processing
workers may differin skill level.When industry products differin mixor
quality, input pricesare particularly unreliable indicatorsof the difference
in overall costs.
6. Concerning taxes and subsidies,there is no absolute rule with
respect to whether these factors should be included in the computationof
costs.Some componentsof taxes are in effect fees forservicesused by the
industries, such as marine research, harbor maintenance, and the trans-
portation system, and should be treated as wsts. Other taxes and
subsidies, the purpose of which is to generate government revenue or
support operations of the industry, provide penalities or rewards, which
make measured relative costs an unreliable indicator of the relative
economic efficiencyof the industries. Therefore, the net effect of such
taxes and subsidies should be removed from costs. Furthermore, the
effects of subsidies shouldbe removed even if the subsidies do notappear
directly in industry accounts;e.g., seasonal unemployment insurancethat
makes workers availableat lower wagesthan wouldotherwisebe required
to attract them to the industry, or boatyard subsidiesthat make bats
available at reduced cost, should be readjusted for by computing costs as
they would be without these programs.628 GULF OF MAINE i31
7. In light of the complexities involvedand the lack of precise data
concerning several of the important variables, the United States has not
attempted to calculatethe relative efficienciesof the New England and
Nova Scotia industries. Nor, apparently for much the same reasons, has
Canada, although it isCanada that has raised this argument. Preliminary
estimates made by the United States indicate, however,that the Canadian
industry has higher coststhan the United States industry.
8. Canada also implies that its purported cost advantage and the
membership of both Canada and the United States in the General
Agreement on Tariffs and Trade (G.A.T.T.) and the Organization for
Economic Cooperation and Development (O.E.C.D.) combineto support
the Canadian boundary claim'. In fact, the G.A.T.T. is intended to
promote trade among States in order to achieve efficient specialization
within their economies. In no respect does it address jurisdiction over
resources, nor does it suggest that resources that otherwise would fall
within the jurisdiction of one State should be awarded toanother in order
to promote economic efficiency.The O.E.C.D. is a forum for economic
policy coordination among western induftrialized States and provides
economic research and statistical services. Like the G.A.T.T., it has no
bearing upon the delimitation of boundaries orthe allocation of resources.
'CanadianCounter-Mernorial,para .77. [Il ANNEXESTO REPLYOFTHEUNITEDSTATES 629
Annex29
INTRODUCTION
1. The Canadian Counter-Memorial asserts that Canadian fishermen
have maintained a significant level of activity on Georges Bankdating
from the mid-19th century. Canada's newly discoveredhistoric fisheries
on Georges Bank are at odds with al1of the authoritative historiesof the
fisheries of the Northwest Atlantic Ocean and are inconsistent with
information chat Canada provided to the International Commission for
the Northwest Atlantic Fisheries(ICNAR in 1952and 1953 '.
2. The United States and Canada have submitted to the Court several
wmprehensive historical texts, by both United States and Canadian
authors, who treat in great detail the development both of the Georges
Bank fisheries and of the Nova Scotia and New England fishing
industries2.These works discuss the development of the United States
fisheries on Georges Bank during the 19th and early 20th centuries.
Similarly, these works discuss the developmentof Canada's fisheries on
the inshoregrounds of Nova Scotia. on the offshore banksof the Scotian
Shelf, in the Gulf of St. Lawrence, and on the Grand Banks of
Newfoundland. None of these works includes more than a passing
reference to any Canadian fishing on Georges Bank. Typical of such
references is that of Thomas Knight, in Shore and Deep Sea Fisheries of
Nova Scoria, which merely includes GeorgesBank withina list of fishing
grounds of the Northwest Atlantic Ocean'. The leading Canadian
'ICNAF Stalistical Bulletin.1952,Part 1,pp. 10-25[hereinafterICNAF Star.
Bull./,UnitedStates Mernorial,Annex46. Vol. III; ICNAF Sfot. Bull.,1953,
Part 1,pp.10, 11.16.and 17.UnitedStatesMemorial. Anne4 x7,Vol.III.
'S.E. Morison , Maritime History ofMassachuseits.1974; H.AI.nnis.TheCod
Fisheries: A History of an Internalional Economy. 1940;C.B. Goode, The
Fisheries and Fishingndusrriesofthe UnitedStates. 1887;T.F.Knight. Shore
and Deep Sea Fisheries of Nova Scotia; R.F. Grant. The Canadian Atlantic
Fishery. 1934; E.A. Ackerrnan, New EnglandS Fishing Industry. 1941;R.
McFarland. A Hisiory ofthe New EnglandFisheries. 1911.
'Knight, Shore and Deep Sea Fisheries of Nova Scoriapp.2 and 4. Canadian
Counter-MemorialA , nnexes.Vol.IV.Annex63.630 GULF OFMAINE k21
fishingjournal in the first half of the 20th century is similarly devoidof
references to Canadian fishing on Georges Bank. Frederick William
Wallace, editor of the Canadian Fisherman. published a comprehensive
article in 1945 entitled "Thirty Years Progress in Canada's Fishing
Industry 1914-1944 '".At no point in that article does Mr. Wallace
mention a Canadian fishery on Georges Bank. All of these works have
been deposited by either the United States or Canada in accordance with
the Rules of Court. It is unlikely that al1 of these historians could
mistakenly haveoverlookedany significant Canadian fishery on Georges
Bank.
3. Part 1of the ICNAF Statistical Bulletifor 1952wntains a report
entitled "Long Term Developmentof Fishing in the Convention Area".
This report, as noted in the United States Memorial', describes the
developmentof the fisheries in the ICNAF Convention Area on the part
of each ICNAF member State. It is noteworthy, even conspicuous,that
the descriptionof the developmentof Canada's fisheries,which was based
uponinformation submitted to ICNAF byCanada, contains no references
to Canadian landings in Subarea 5 (the Georges Bank-New England
Subarea). These tacts are reaffirmed by Part 4 of the ICNAF Second
Annual Report, which includes Canadian landings statistics from Subar-
eas 3 and 4 dating from 1869,but noCanadian landings fromSubarea 5 '.
The ICNAF Statistical Bulletinfor 1953features a similar report on the
long-term developmentof fishing in the ConventionArea. As in the 1952
report, there is no mentionof Canadian landingson Georges Bankduring
the years 1910through 1950'.
4. The detailed landing statistics forthe fishingyear 1952,contained in
Part 2 of the 1952 ICNAF Statistical Bulletinindicate that Canada did
not fishin Subarea 5 during 1952'. Canada did report landings for1953
in Subdivision 5y of Subarea 5. which includesthe Gulf of Maine, but
'See discussioofWallace'sarticleat UnitedStatesCounter-Mernoriapl,ara.66;
pertinentparts of the article are found at United States Counter-Mernorial,
Annex7,Vol.IV,paras. 11-14,and Appendix A.
'UnitedStatesMemorial,para.79.andAnnex46.Vol.III.
'ICNAF. SecondAnnuol Report. 1951-52,UnitedStates Counter-Memorial,
Annex16,Vol. V.
ICNAF Stat. Bull., 1952.pp. 10-12,UnitedStatesMernorial,Annex46, Vol.
III;and ICNAFStat. Bull., 1953.pp.IO and II,UnitedStatesMernorial.Annex
47. Vol.III.
'ICNAFStar. Bull., 1952,Part2. p.27.UnitedStatesMernorialA , nnex46.Vol.
111. 131 ANNEXESTO REPLYOFTHE UNITED STATES 63 1
only the United States reported landings from Georges Bank'. In this
regard, the 1953 Srarisiical Bullerinnotes that al1landings for Subarea 5
were known and accounted for with respect to the fishing year 1953 '.
Canada did not report to ICNAF any landings from Georges Bank until
1954 '.
5. The absence of any reference to Canadian activity on Georges Bank
before 1954 in either the ICNAF reports or the authoritative histories
supports the statement of Dr. Wilbert Chapman, the United States
representative at the 1949 ICNAF negotiating conference, that the
Georges Bank fishery was at that time, and historically had been, "almost
exclusively" a United States fishery '.
6. The "history" portrayed in the Canadian Counter-Memorial and in
Volume II of the Annexes thereto ignores both the sources cited by the
United States Memorial and the information that Canada submitted to
ICNAF in the early 1950s. Canada attempts to establish, on the basis of
isolated events and conjecture, a significant historicalanadian fishery on
Georges Bank prior to 1950. Volume II of the Annexes Io the Canadian
Counter-Memorial incorporates the results of an extraordinary effort to
wllect any trace of an express or implied reference to Canadian activity
on Georges Bank prior to 1950. The Canadian Annex weaves unrelated
newspaper articles, historical references to Georges Bank, anecdotal
references to Canadian fishermen and vessels, and selective summaries of
statements apparently made by Canadian fishermen. Although this
Annex describes in great detail certain fishing methods, individual fishing
vessels, and the legacy of fishing in many Nova Swtia families, it fails to
take the necessary step of comparing Canadian activity on Georges Bank
to such activity elsewhere in the North Atlantic and to the activities of
United States fishermen on Georges Bank during the pertinent period.
Rather, Canada's account implies that Canadian fishermen actively
'ICNAFSral. Bull.. 1953,p. 21.IJnitedStates Memorial.Annex 47. Vol.III.Of
the total landings foral1of Subarea 5 in 1953. UnitedStates landingswere
155.239.5metrictons, whereasCanadianlandingswereonly 76.4 metrictons, or
about 0.05 pr cent of unit& States landings. Moreover,Canada's reported
landings were al1 from Subdivision5Y. Subdivision5Y includesthe Gulf of
Maine,but ildoesnotincludeGeorgesBank.Foradepictionofthesubdivisionsof
Subarea 5. seeUnitedStates Counter-Memorial,Ainex 3, Vol. II.Figs.2 and 3.
ICNAFSlar. Bull..1953,p. 9. Depositedwiththe Courtin wnnectionwiththe
UnitedStates MemorialpursuantIoArticle5q2) ofthe RulesofCourt.
'UnitedStates Memorial,para. 80.
'For the full text of Dr. Chapman's statement. see International Northwest
AtlanticFisheriesConference,Washington,D.C..26Jan. 1949, DOC/5. Minutes
of the SecondSession, 27Jan. 1949;United StatesCounter-Memorial,Annex3,
Vol. II,p. 5, n. 1,and Canadian Memorial, Annexes, Vol. II, Annex 12, 1,
pp. 266-273.632 GULF OF MAINE f41
pursued a fishery on Georges Bank, by means of references to isolated
reports of individual Canadian vessels fishing on Georges Bank. For
example, in reference to the period from 1910 to 1945,the Canadian
historical Annex describes the activities of several fishing vessels that
were reported to have fishedon Georges Bank at selected intervalsduring
the period. These vesselsare linked to GeorgesBank by a compilation of
cross references toa few scattered newspaper articles and statements by
Canadian fishermen.The references identifya total of some 85vessels for
the entire period. At most, the evidence indicates that the vessels
occasionallymay have visitedGeorges Bank during some part of the 35-
year period.
7. In brief, Canada's historical account demonstrates nothing more
than that, prior to 1954, someCanadian fishermen occasionallyvisited
Georges Bank, a fact that the United States never had denied. The
Canadian account is in no way inconsistent with the United States
characterization of its own fisheries on Georges Bank as "almost exclu-
sive" prior to the 1950s.
SECTION 1. The Purported Nineteenth Century Canadian Fisheries on
Georges Bank
8. The Canadian Counter-Memorial refers to "clear evidence" that
Canadian fishing vessels "frequented" Georges Bank during the 19th
century, and asserts that the "clarity" and "probative value" of that
evidencecannot be doubted '.A reviewof this evidence,however, reveals
that it is hardly "clear"; on the contrary, it is at best attenuated and
ambiguous. even when considered in a light most favorable to Canada.
Specifically,Canada relies upon referencesto Georges Bank in two works
by Thomas Knight, and the testimony of a witness before the Halifax
Commission, andin isolated references ina fewnewspaperarticles '.
9. In ils Counter-Mernorial, the United States discussed the signifi-
cance of references to Georges Bank by Thomas Knight '.These works
contain an extensive reviewof the fishing industry of Nova Scotia in the
late 1860s.The references to Georges Bank,which appear in the opening
pagesof each of Knight'sworks,are not specificdiscussionsof a Canadian
fishery on the Bank, as Canada implies. Rather, Georges Bank is
'CanadianCountcr-Memorialp ,ara.340.andnotesthereto.
'CanadianCounter-Memorialp .aras.339 and 340.
'UnitedStatesCounter-MemorialA . nnex7,Vol.IV, paras.5-7.Knightproduced
two works:Shore and Deep Seo Fisheries of Nova Scoria and Report on the
Fisherieaf Nova Scotia.Thesecondworkis merelya summaryofthe firstand
longerone. Thereferences toGeorgesBank intheearlypagesofeachare almost
identical.Bothworks have beendepositedbyCanadapursuant 10 Article5q2) of
theRulesofCourt. [SI ANNEXESTO HEPLYOFTHE UNITEDSTATES 633
mentioned in a wmprehensive list of the various fishing grounds in the
Northwest Atlantic Ocean. Furthermore, no mention whatsoeveris made
of Georges Bank in a detailed analysis by Knight of the Nova Scotia
fishingindustry, whichdescribesthe fishinggroundsfrequentedbyvessels
from each county of Nova Scotia '.
10. The other principal source upon whichCanada relies to establish
that Canadian fishermen regularly fished on Georges Bank during the
19th century is the testimony of a Canadian witness before the Halifax
Commission '.As was noted in the United States Memorial, the Halifax
Commissiondid not address specifically the fishing activities of United
States and Canadian fishermen on Georges Bank'. The witness, a
Canadian fisherman. described the extensive United States fisheries on
the offshore banks and his own career aboard United States vessels.In
responseto a question, he stated that he had seen a Western fleet (vessels
from the western part of Nova Scotia) using trawl lineson Georges Bank.
The witness added, however,that he doubted the need for Canadians to
fish in American waters, hecauseof the abundance of mackerel fishingin
the inshore waters of Nova Scotia. He also recounted that, to his
knowledge,the best cod fishingwaswithin 15or 20 milesofCape Sable '.
11. The only other evidence submitted by Canada that purports to
relate to 19thcentury Canadian fishing activityon Georges Bankwnsists
of newspaper and magazine articles. In many instances, however, they
bear no relationship 10 fishing on Georges Bank. For example, the
Canadian Counter-Memorial States:
"... in Pubnicoalone-one of the closestports to eastern Georges
Bank-more than 60 vesselswere making week-long fishingtrips to
the banks in 1883 '".
The statement impliesthat 60 vesselsfromPubnico were fishing regularly
on Georges Bank in 1883. The document proffered in support of this
statement is a "Letter to the Editor" of the Yarmouth Herald of 10
March 1881 6.This letter, however,is in no respect related to Canadian
fishing on Georges Bank.The letter instead expresses support for a
'Knight,ShoreandDeepSeoFisheries&NovaScoria.pp.5-21.
'CanadianCounter-Mernoriap l.ara.339,andAnnexes.Vol. IIparas.19and 20.
'UnitedStatesMemorial,para.72.
'D&umentsandProceedings drhe HalilaxCommission af1877. UnitedStates
Houseof Representatives. 45tC hongrcss.2d Session,ExecutiveDoc. No. 89,
TestimonyofJohnNicholson.British (Canadian),WitnessNo. 22.Vol. 1,pp.643-
648.Deposited by CanadapursuanttoArticle5q2)ofthe RulesofCourt.
'CanadianCounter-Memorial, para3.38.[Citationomitted.]
'The citationin the CanadianCounter-Mernoriaflor this statementleads the
reader10 a similar statementt AnnexIIthereto.para. 18.and.inturn.toa "Let-
tertotheEditor" of the YarmouH therald.dated 10Mar.1881. p.2,at Annexes,
vol. IV,Annex64,p. 392,oftheCanadianCounter-Memorial.634 GULF OF MAINE i61
petition for the erection of a lighthouse at the entrance to the harbor of
Pubnico, and notes that some 60 Canadian vesselsand many American
vesselscalled regularly at Pubnico '.
12. At other points in its description of its 19th century fishing
activities,Canada impliesthat, in viewof the proximity of Georges Bank
to certain Nova Scotia fishing communities,vesselsfrom those ports must
have fishedon Georges Bank2.As was demonstrated in the United States
Counter-Memorial3 with respect to similar suggestions raised in the
Canadian Memorial', such unwarranted assumptions are inferior substi-
tutes for specific, major historical discussions orstatistics relating to a
Canadian fishery on Georges Bank, neither of which Canada has
prcduced.
SECTION 2.The Purported Canadian FisheriesDuringthe Period
1910 through 1945
13. The evidence submitted by Canada to support its version of
Canadian fishing activities during the early 20th century is no more
persuasive than that discussed in the preceding section. This evidence
consists of a collection of newspaper and magazine articles, colorful
anecdotal accounts of fishing by Canadian fishermen, and occasional
references to officialpublications.
14. From these attenuated sources, Canada has produced several
accounts of individual fishing trips to Georges Bank. Canada thereby
implies that these isolated and unrelated activities are representive of
much more extensive fishingactivity on the part of Canada. The recourse
to this recitation of isolated events merelywnfirms that there is no direct
evidenceof a significantCanadian fisheryonGeorges Bank.Evenwereal1
the evidence presented by Canada regarding Canadian activity in the
early 20th century to be accepted as accurate, it would demonstrate
nothing more than seasonal and sporadic fishing prior to the 1950s,
generallyby individualCanadian vessels.
15. Colorful tales of life "before the mast", often acwmpanied by a
photograph of a Nova Scotia fishing vessel,comprise a great deal of the
historical presentation in the Canadian Counter-Memorial. Accouits of
the activities of these vessels are drawn from newspaper articles and
'"LettertotheEditor"of the YarmouthHerald. dated 10Mar. 1881,Canadian
Counter-MernoriaA l, nnexes,Vol.IV,Annex 64.
'CanadianCounter-MernoriaA l. nnexes,Vol.II, para22 and 24.
'UnitedStatesCounter-MernoriaA l.nnex7, Vol.IV,para.8.
'CanadianMernorialp , ara182. i71 ANNEXESTO REPLYOFTHE UNITEDSTATES 635
occasionally from the mention of the vessel in one or more of the so-called
Statutory Declarations deposited by Canada. Once again, it is implied
that many of these vessels conducted extensive fishing operations on
Georges Bank.
16. Among the fishing vessels that worked out of Yarmouth, Nova
Scotia, during the 1920s, Canada has drawn attention to the schooner
Crace and Ruby and ils exploits on Georges Bank '.The United States
does not deny that the Croce and Ruby frequented the waters off of New
England during that period. There is, however, some question as to the
type of activity in which the vessel engaged. In February of 1922, the
same Crace ond Ruby was seized by the United States Coast Guard for il-
legally smuggling liquor into Gloucester, Massachusetts2. At the time of
the seizure, the vessel was under the command of one of three captains
mentioned by Canada '.
17. Canada has submitted 65 "Statutory Declarations" by fishermen
from southwest Nova Scotia to support the proposition that Canadian
fishermen fished extensively on Georges Bank during the period from
1910 through 1945'. These documents establish at most only the
occasional presence of Canadian fishing vessels on Georges Bank '.
18. Canada has submitted a number of articles from newspapers and
other periodicals to support the proposition that Canadian vessels fre-
quented Georges Bank during the first half of the 20th century. As with
'CanadianCountcr-Memorial,Annexes. Val. II, paras. 41-45.
'283 Fed. 475(1922).AppendixA. Theoutcomeof the seizureof the Crace and
Ruby is a landmarkcase in internationallaw regardingjurisdictionovervessels
beyondthe territorialsea. Fora discussionof the cassee P.C.Jessup, The Law.
o/Terriforial Watersand Maririme Jurisdicfion.1927.pp.242-247.AppcndixB.
'D. Crouse, Winds of Change. [undatedl pp. 9 and 10. Depositedby Canada
pursuantto Article5q2) of the Rulesof Court.See also Jessup,op. cirpp.279-
315(Chapter VI, The LiquorTreaties).It is impossible todetermine thenumber
of the Canadian iishingvesselsreported by Canada to have iished on Georges
Bank during the 1920s(theera of nationalprohibitionin the UnitedStates) that
were illegallysmuggling liquor.Nevertheless,the evidenceis clear that such
smugglingwasan important enterpriseformanyCanadianfishermenduringthis
period.
'The UnitedStates is unawareof the Canadianstatutory provisionunderwhich
thesedocumentswereproduced.
'The United States objects to these Statutory Declarationsfor the following
reasons:(1)theyare onlysummariesof interviewsconductedbyrepresentatives01
Canada for the purposeof this proceeding,and subsequentlysworn to by the
personwho gave the interview, often many montha sfter the interview;(2) the
United States has had no opportunity to examine the individualswho were
interviewed;and, (3)the interviewscontain accounts of activitiesor eventsnot
personallyobservedbythe individuals interviewed.636 GULFOFMAINE [al
the materials discussed above,these articles, albeit interesting depictions
of the Canadian fishing industry, establish no more than an occasional
visit byCanadian vesselsto Georges Bank. Moreover,manyof the articles
do not evenpertain to Canadian activityon Georges Bank,but instead are
concerned with such topics as wrecks, transfers of vessels, wmmunity
news,and the fishingindustry in general. There are a fewarticles that re-
port landings by Canadian vessels from Georges Bank.It is noteworthy
that, except forthese reports, the sourceof fish landed normallyis not re-
ported in the Canadian newspaper articles.Rather than establishing that
Canadian vesselsregularly fished on Georges Bank,these articles suggest
that Canadian fishingon Georges Bank was sorare as to be newsworthy.
19. The Canadian Counter-Memorial attempts to demonstrate that a
significant Canadian fishery also existed on Georges Bank in the late
1920s by reference to a Royal Commission of Inquiry that "found"
Gwrges Bank to beamong the "principal fishing grounds"used byvessels
from the Atlantic ports of Canada '.This so-called "finding" is in fact
another comprehensive referenceto the fishing groundsof the Northwest
Atlantic Ocean similar to that contained in the work of Thomas Knight.
This is the only specificreference toa Canadian fisheryon Georges Bank
appearing in the entire report. Furthermore, in describing the aggregate
levelof Canadian activityonthe fishingbanks listed, the report specifical-
lyexcludesGeorges Bankfrom its calculations 'The report doesacknowl-
edge, however,that Georges Bank was "the mostimportant and largest
fishing ground nearthe wast of the United States '".
20. Canada also finds significantthe fact that, in 1919,official United
States statistics reported that Canadian vesselslanded 454metric tons of
fish from Georges Bankin United States ports '.Nevertheless, the same
statistics showthat the United States landed some 23,000metric tons of
fish from Georges Bankduring the same year - an approximate multiple
of 50over the Canadian catch.
21. These relative levels of United States and Canadian catches are
hardly surprising, inasmuch as, prior to the beginning of the scallop
fishery, Georges Bank wasof only minor interest to Canadian fishermen.
During the first half of the 20th century, Canadians fished primarily to
the north and east of Georges Bank, on the fishing grounds off Nova
'CanadianCounter-Mernoriap l,ara.344.
Report c$ the Royal CommissionInvestigafingthe Fisheries ofthe Maritime
Provinces andMagdalen Islands [hereinafterRoyal Commission], 1928, p.8.
Depositedby CanadapursuanttoArticle 5qZ )ftheRulesofCourt.
'Royal Commissionp .. 8.
'CanadianCounter-Mernoriap l.ara.341. [91 ANNEXESTO REPLYOFTHE UNITED STATES 637
Scotia, off Newfoundland, and in the Gulf of St. Lawrence. The United
States has discussed these other Canadian fisheries in some detail in its
Memorial and Counter-Memorial '.As the Canadian historian Ruth F.
Grant wrote in 1934:
"The most important Canadian cod fishing groundsare the Grand
Banks of Newfoundland, the Gulf of St. Lawrence, and the inshore
waters and fishing banks adjacent to the coast of Nova Scotia.
Until recent years the cod was the most valuable fish taken by
Canadian Atlantic fishermen, but recently it has been exceeded in
value by the lobster'".
Grant subsequently points outthat, in the counties of far southwest Nova
Scotia, lobster caught in inshore waters accounted for a higher dollar
value of the landings than did groundfish'.
22. The absence of any significant Canadian interest in Georges Bank
prior to the 1950sissupported by al1of the availableevidence.There is no
question that Canadian fishermen wereaware of and occasionallyvisited
Georges Bankduring the late 19th and early 20th centuries. Nevertheless,
Canada did not have any fisheryon Georges Bankduring that periodthat
was in any measure comparable to the United States fisheries.
23. The Canadian Counter-Memorial portrays "deep historical roots"
for the contemporary Canadian fishingon Georges Bank4that have gone
unnoticed by such eminent chroniclers of the Northwest Atlantic fisheries
as George Brown Goode, Ruth F. Grant, Raymond McFarland, Samuel
Eliot Morison, Harold A. Innis, and E.A. Ackerman, as well as by
Frederick William Wallace. editor of The Canadian Fisherman, and the
'UnitedStates Memorial.paras. 72-78;UnitedStatesCounter-Memorialp,aras.
58-66.
'R.F. Grant, The ConadionAflonlicFishery. 1934,p. 3. DepositedbyCanada
pursuanttoArticle5q2)ofthe RulesofCourt.
'The followingcomparativevalues ofthe codand lobsterindustriesappearin
Grant, op. cilp. 29:
Lobstcrlndustry CodFishery
MarketedValues
(ShippedinShell (Dried,smoked.
andCanned) and fresh)
NOVASCOTIA
COUNTIES
Shelburne ...................442.967 212,000
Yarmouth ...................348.899 64.360
Digby .........................91,439 59.300
'CanadianCounter-Memorial.para3 .34.638 GULF OFMAINE 1101
International Commission for the Northwest Atlantic Fisheries. The
record before the Court establishes that Canadian fishing activity on
Georges Bankprior to 1950 wasoccasional andof suchslight significance
that it was overshadowed completelyhy the more lucrative Canadian
fisheries in the Bay of Fundy, along the coast of Nova Scotia, on the
inshore and offshore groundson the Scotian Shelf, in the Gulf of St.
Lawrence, andoff Newfoundland.ANNEXESTO REPLYOF THE UNITESTATES 639
AppeodixA toAnnex29640 GUOFMAINE
NATIOREPORSRSTEM-WISTATSERIES
THE
FEDERA RLEPORTER
WITH KEY-NUMBER ANNOTATIONS
VOLUME 283
PERMANENTEDITION
CASES ARGAND DETERMINED
m-
CIRCUIT COURTS OF APPEALS AND DISTRICT COURTS
OF TOF APPEALS OFHEDISTRICTE COURT
OF COLUMBIA
NOVEMBER-DECEMBER,1922
ST.PAUL
WEST PUBLISHING CO.
1923i4751 ANNEXESTO REPLYOF THE UNITED STATES 641
at certain specified times. There was no apportionment, in the contact,
of the purchase price as ktwcen the manufacture, transportation, de-.
livery, or installation promised by tlie plaintiff.It was agrced that the
title to the chairs should not Dass to defendant. but should remain in
plaintiff until full paymcnt thirefor in cash. %hese and other provi-
sions and circunistances plainly indicate that the contract was intended
by the parties to be, and thcrefore mut be held to be, entire. and, as it
caniiot al1stand, it inust al1 fall.
lt results that the motion for a nelv trial must be denied, and such
an order will be cntercd.
THE GRACE AND RUBY (iwO cases).
(DistrictCourt, U..Alns8nchusetts. Seytember 18, 1922.)
Nos. 2182,21S3.
4. CusAomforelgn iessel, Iying outside the thrce-mile limit, whlch dellvered a
pnrt of her cnrKoof lii~uors,rvhich were controhnnd. in the nighttirnM.
n motorhont, In whlch It was taken ashore wlth the assistance of her
bmnll hont and part of her crew. held subject Io forfelture under Rev.
St j 2874 (Camp. St. j 5565).
2. Customsduilas -l2l-Act mayansiltuta dlfferantoffenses.
Unlndiug a vessel in the nishttimc. ln violation of Rev. St. 8 28ï2,
287.1(Comp.St M 533. WG5). 1snu lcss an ouense under enld aectlons
buse, helng wlthout a permit, lt isabo an offense under section 26C7
(seciion6555).
3. Admiralty e=s23-Has jurisdlctlon of offandlnpkrslpn vessel ielred oublde
lnreo-mileIlmit. .
The fact- tbst a foreigi resscl. whlch haù vlolated the lawa of the
prive a court of tlie Unlted Swtw of Jurlsdlctlon of the otlense under a
Ilbel Bledafter she bad been brouzht lntoport
4. lnternatlonalIrw-5-Forelgn vosselsIncontactwitbshorerilbloct10 ielzure.
Foreign vessels. hoverlng nlwnys more than three mllcs from aliorotor
the purpose of srniirgllt~g.whleh hure becn In eoutnct xvlth the ahore by'
thelr own hoah nrid erews, und bave thereby nssisted in amii~gllng.ore
subject to srfriirc.
Libel by the United States apjnst the schooner Gncc and Ruby.
On exceptions to libel for Iacli of lurisdiction.Overriiled.
Charles P. Curtis, Asst. U. S. Atty., of Boston, Mass.
Daniel A. Sliea, of Boston, Mass., for claimant Swecney.
MORTON, District Judge. These are libels for the forfeiture of
the schooner Grace and Riiùy for smuggling liquor in violation of aRev.
St. §$2872,2874 (Coinp. St. $5 55@,5565). and the National Prohibi-
tion Act (41 Stat.305). Tliey were tieard upon exceptions to the li-
bels, raising solely the question of jurisdiction. The facts are settled
by stipulation of tlie parties. Those essential to a decision may be
br'elly stated as follows:
(~he Grace aiid Thby was a British vessel owned and regiatered in
Yarmoiith, Nova Scotia, and cominaiid~xi by one Ross, a British subject.
Slie sailed from tlie Bahrinia Islands, British West Indies. with a St.
-For othorcisoiice sami lopKEY-NÜYIBER inil1 Kq-Number.0 Dlgailk Index-642 GULF OF MAINE 14761
John, N. R.,clearance, on February 10, 19î2, having a cargo of liquor,
part of which was owiied by one Sullivan, of Saleni, Mass., who was
six miles off Gloucester, Mass., where Sullivan was set on shore and
the schooner stood off and on. keeping always more than three. miles
from land. Two days later Sullivan came out to her in motorhat
Wilkin II, owned in Gloucester and manned by two men, to bring pro-
visions to theclioonerand to take on shore part of her cargo. At tliat
tiii,e the schooneyas about ten miles from the nearest land.) About
8,000bottles of whisky and some other liquors were there transferred
from the Grace and Ruh into the motorboat and taken to shore at
night. Three rnembers Ol the crew of the schooner, as well as Sulli-
van, went in the Wilkin II,and a dory beloiiging to the schooner was
towed along, presumablyfor use in landing tlie liquor, or to enable the
men to return to ce schwner after the liquor was landed. The at-
tempt to land the Iiauor was discovered bv revenue officers.and Wilkin
II and her cargo wéreseized.
/ 'Tlienext day the revenue cutter Tamoa was ordered to findthe Grace
and Ruby and.hring her into port. T\;O days later, on February 23d.
she discovered the schooner, and after some show of reçistarice on her
schooneri\vas seized and brought into the port of Boston by the Tampa.
At the time of the seizure the Grace and Huby was about four miles
from the nearest land. Shehad oii board the balance of her cargo of
Lquor. Her mastcr is no way assented to the seizure. After the
schooner was brought into Boston the Dresent libels were filed. a war-
rant for her arre3 is ued, aiid she &as taken into custodi by the
United States niarshal.
-5 1 From the agree facts it is clearly inferable that the master of
the d race and Ruby k new that she was enpged in an enterprise for-
hidden by the laws of the United States; that he knew her cargo was
contraband; that she was lying off the coast beyond the three-mile
limit. but within thefour-leaeue limit. for the oiiro-se~o~ ~iavine her
cargo taken.asliore in other bzats; and that hef8re'lrer seizure part of
her cargo had heen transferred to Wilkin II for the purpose, as lier
master knew, of being smuggled into this country, with the assistance
of the schooner's crewand boat. There is nothing to suggest any in-
tent on his part, if tlpt he material, that the Grace and I<uby herself
as appears she never did. She was hovering on the Coastfor the pur-d so far
pose of landing contraband goods, and had nctulilly sent, at night, a
part of her cargo ashore, with her boat and three of her men to assirt
in landing it..
[Tl Wliile the question is not free frotn douht, and no decisionupon
the point has corneto my riotice,it seeiiis to me that this action on her
part,coiistituted an unlawful unlading by the Grace and Ruby at night
withiii the territorial limits of the United States, in violation of Rev.
St. § 2872.2874: See 1 Wheaton, Criminal Lnw (11th Ed.) $5 324,
330, !41, for a discussion of tlie principles involved and a collection of
cases.? The act of unlading, although bekiniiing beyond the three-mile
limit, continuediitil the liquor was landed, and the schooner wàs ac- Id771 ANNEXESTO REPLYOF THE UNITEDSTATES 643
tively assisting in it by means of her small boat and thrce of her crew
who were on the motorboat for that purpose.-LIt was none the less an
unlawful unlading, within the section referred to,because by the trans-
fer to the motorboat .an offense was committed under section 2867,
which reiidered the motorboat and liquor liable to seizure and forfei-
ture, and tlie persons who aided ana assisted liable to a penalty for so
doing. The two classes of offenses are siibstantially different. 1 am
aware that tliere has been a diffcrence of judicial opinion about the
scope of these sections. See U. S. v. Tlie Hiinter (1806) Fed. Cas.
No. 15428; The Iiidustry, Fed. Cas. No. 7028 (1812); The Betsy,
Fed. Cas. No.. 1365; Tlie Harmony, Fed. Cas. No. 6051; The Active,
Fed. Cas. No. 33. 1 follow the opinion of Mr. Justice Story. both
because it is the law of this circuit and because it seems tome to be the
sounder view.
[3]}..Thecase, then, is that the Grace and Riby. having violated our
law and laid herself liable to forfeiture under it if she could be reach-
ed. was forcibly taken four miles off the Coastby an executive depart-
ment of the government and brought within Our jurisdiction. ,The
present questioii is whetlier on such facts tliis court has jurisdiction of
a libd brought by the governmcnt for the forfeiture of the vessel. It
is to be noticed that the schooner is held in these proceedings on th@
arrest made by the marshal under the warrant that was issued on the
filing of the libels, and not under the seizure made by the cutter, when
the schooner was taken and brought into Boston.' M'hether she could
have ken seized beyond the tliree-mile limit for an offense committed
wholly beyond thnt linut is not the present question.
The high seas are the terri:ory of no nation; no nation can extend
its laws over theni; they are free to the vessels of al1cauntries. But
this hns been thought not to niean tliat a nation'is powerless against
vessels offending agaitist its laws which remain just outside the thrn-
mile limit. lt has ben snid:
"It cun p~vlde by statrlteor otherniiinlclunlregulatlonfor thc bclzurund
wnt8:rsailjnrcnito lte masts.ifre~&iilnblisÏ~*rssm forSnItepri-porpmlecclone
sinù tllrelll:~r~t:ll01uIW 1u$v8. It Id OU tI11~TOUU~ thnt Lhefour.I~o@e
Ilrnltrsiulill~liog ILor.$1. D 2bli7ICuitipJl. 1L'sj?i)lnregard 10uolading
reats.
"fis [a nnilon'elpower to secureltaelt from lnjurp mny certalnly beex;
ercised Lierondtlie lirnlteofItsterritorr. Thcaemenus do not ap
wnr fo be Ilmitoù williln any certatn marked boundarleswhlcliremnlnthe
vexe and L.irnssforelann Iaivfulwmmerce.foreign nationshas willeresist thelr
exemlse. If Uie~ are such us are reusooal~lenrid necessarv to -e. -. .-.lr
ln\ve<romvlolnfion.thes dl1 be eubmltted to." &furshnu,.O ...murch v.
Hobbart, 2 Cranch.187, 23P236.
See, too, Manchester v. Massachusetts; 139 U. S. 240, 258, 11 Sup.
Ct. 559, 35 L. Ed. 159.
Tliese expressions have beeii auestioiied by writers on international
law, and are perliaps not entirely 'consistentwith vietvswhich have been
expressed by our State Department.? But Church v. Hubbart has
1See Dana'snote lOY on wliat 1snow Rev. St. / 2967,in Whenton,In-
ternatlonnl LoW, 8 179. ln whlch,nftcr dlscuaelngChun'h v. Uubhart and644 GULFOF MAINE 14781
never been overmled, and 1am bound by it until the law is clearly set-
tlcd othenvise. Morcover. the orinci~le there stated seems to me
such a sensible and practicai rule ior dealing rvith cases like the prese?t
that it ought to be followed until it is authoritatkely repudiated. This
is riot to acsert a right generallof seardi and seiziire on the high seas,
but onlv a limited ~ower, exercised in the watersadjacent to our coasts,
over vesels whidhave broken our laws.
The inere fact, therefore, that the Grace and Ruby was beyond the
three-mile litnit, does no! of itself make the seizure uiilawful and es-
tablisli a lack of jiirisdiction.
[4] As to the seizure :
Tlte line betwveenterritorial waters am the high seas 1s not'like the
boundary between us and a foreign power. There miist be, it seems tu
me. a certsin width of debatable waters adjacent to our coasts. Hpw
far our authority shallbe esteiided into them for tlie seizure of foreign
vessels which have broken our laws is a matter for the political depart-
ments of the government rather thnn for the courts to determiiie.
It. is a question betwecn governinents; reciprocal rights and 0th
matters may be involved. In re Cooper, 143 U. S. 472, 503. 12 Slip.
Ct.453,36 L. Ed. 232; The Kodiak (D. C.) 53 Féd. 126, 130. In the
case of The Cagliari, Dr. Taiss advised the Sardininn government that :
"in ordinnry cases. where n merchnnt shlp ha8 ben seired on the hkh
mas, the sovereignwhosc flnghns heen violiitedwnlrtg bis privllege.consider-
in&!the offPndlngship to hure ncted wlth ninln 6des towards the other stnte
toihl8\proteçtIOn."ln ?.mit$. and ta hare cnnscqueutlyforfeited nny just claim
He considercd the revenue regulations of maiiy states authorizirig
visit and seizure beyond their waters to he eiiforcesble at the peril of
such states,and to rest on tlie express or tacit permission of the states
other enas, he concludes "* that the principle1% settled thnt mu-
nicipnl seizurtg cannot be macle for any piirpnse beyond territorial waters.
It1s slso aettled that the linlit of thcse wnters 1s. In the nhsoneeof trenry,
the marine league or the cannon shot." Whut Mr. Drinasays is qiioteù with
npprnvnl In Moore'sInternatiounl Iaw Digest. the lntest wnrkol nuthority
Dnna's position eeems to accord wlth tlint tnken hy our State Vepnrtrnent.
In a lctter hy &Ir.Fish. Secretnrs of Sttite, to Sir Eilwurd Thorntou. British
Aiinluter.Jnnuary22, 1675,hlr. FIsh sngs: "We hnve nlways iinderstood nnd
nserted that pursuant to piibllc Inw. no natlon can riahtlully cinim jiiris-
diction nt sen beyond a marine league from Its const." Se1 nloore's Digest
of internntionnl I;aw731, O151. See.alen. lctter by Nr. fiuchnnnn. Smelary
of Rtnte. to Bfr. Oromptou, Hritlrh hliniater, Aiig~ist10,18B. Id. p.730.
And hfr. Evnrts. Seeretnry of Stnte. in n Ictter dnted Aiigust 11, lSW, ttohlr.
in regard to visltatlou wltliln tour lenwcs of the cnnsf snys: 'This II)not
domll~lonorer the Feawhcre tlwse vesselanro vlsitcd, but domliilonover thls
coinmorcewith lis, Ils vehlcles and carcoca, evcn while at sen. It carries no
assertion of dominion,territorial 2nd in invltum. but over voluntary triii
prub'ese and hy Ita owii elcetion."
Xone of Uiesecommuo~cotioiis,however, rclsted to sessels commlttlng.un-
frlendly or hostile actsngainst the country on whose consts they were hover-
In€. In TheCarlo Alberta (Wheaton,Intemntionnl hw 16thEng. Ed.1P. 171).
Inniled enemleaon oFrench soi1 sud aftcrwurds put lnto a French Dort Ln
dlstresa id791 ANNEXESTO REPLY OFTHE UNITED STATES 645
whose vessels may be seized. 1 hfwre's Internat. Law Digest, pp. 729,
, "".
It seems to me that this was surh a case. The Grnce and Ruhy had
comrnitted an offense against olir law, if my view as 10 the unlading is
right, and was lying just outside the three-mile lirnit for purposes relat-
ing to her unlawful act. In directing that she be seized there and
brousht into the country to answer for her offense, 1 am not prepared
to say that the Treasiiry Departmefit exceeded its pover.
An order rnay be entered, overruling the exceptions to cach libel al-
leging lack of lurisdiction.
UNITED STATES v. RAILWAY EMPLOYEEÇ' DEPARTMENT OF AMERI-
CAN FEDERATION OF LABOR et al.
(Dlstrlct Court.N. D. Illii~ola. ED. September 23, 1922.)
Xo. 2043.
1. Monopolisa -24(1)-United Statea Û=rlZô-United Slatos may malntaln blll
to ealoln unlawlul consplracy among atrlkara In reslralnt of trnds.
The Unlted Sintes may mnltitain a blll in the publlc hterest to enjoln
an unlawful ronvnirncv or mmbluation In reatrnlnt of trnde nmong Strik-
Ing raiiway emplb,-eei both uuùcr Its penernl equlty jurlsdlction &id un-
der Sherman Act. ~. 1. 4 (Comp. 8t. ~~ 8820. 8923).
2. Monopollca ~I2(2)Slatule prohlbitr comblnatlon of sllher labor or ciplta1
to secure actlon essantlnlly obstru~tlng frflow of oommsrce.
The Sherman Act (Cbrnp. Si. IfgR2?-?82. ? .274IO) problhlts ang com-
hination whatever. whether of lnbor or npltsl. to seeure action ahlch es.
sentinlly obstrncts the free flow of comrnenP betmeen the States.
3. Inlunetion @-101(2)-0ne relylng on statuts rolatlve to Iibor dlaPute8 must
brlnp hlmaelf wllhln il1 th0 Ilmltatlonr conlalned In th0 rlilutr.
One relylng on the exmptlon to the'power of n federal Mnrt Of equlty
td gise Injunctive rellef Uoder geueml princlplce of qulty jorisdlctlon,
crented hy Clayton Act, 6 20 (Comp. St. 1 12434, relative to nisea be
tween employers and emplogees. etc., muet brlng hlmsolf althln nll the
-~-ltntione b~ wblcü the excentlon in bed-ed abont
lnluncllon -101(2)-Mono~ollea -24(1)4ult by flovernment not wlthla
itatute ia to InlunctlonIn lnbor dl~putsa:
ClnytoiiAct 120 (Cornp. Yt. 124%). prohlbltlng hJunetlona ln cases
between eniployere and employees. etc., lnvolrlng or mwlog out of a dis-
"?-.- --- --ln-- terms or m-i--.... -..- emnlovment. unlem necessArv to
prevent lrreparnble~lnjur~, etc.. and pTOv1~lnËthai no auch restral;ilni
order or hjunctlon 6hnll Rroblblt certain acts. dops not apply to a ault
bv the Unlted States ln Uie oubllc loterest to enjoh an unlawlul con-
splmcg or comblnatlon & rceimlut of tmde.
5. InJunctlon -101 (Z)-Slatuto doea not lopalll8 aoh In lnbor dispute. whsn
dons In furtherincs of cOn8nlracy.
Claytan Act, O 20 (Com11.Si. f1?43d), provldlng that no rcstmlnlng or-
der or lnjunctlon Ln 0 CnSebelwccn on emPloYer aud einployees, etc.. rihall
prohiblt nny person frO1n termlnatlng Bny relatlon of employmeut, cene
be consldercdpevlolntlons of nny federal law, does not mnke tne nctslIqwd-
fled Imyune from piinl8hment, when done In hirtheranm of nn unlaw-
hi1 or crimlnal consplrnc~.
Olhel eïrra ssrme top10 &KEY-N'IMBER ID il1Kor-NumberedOIKCsU biIndexe.646 GULFOF MAINE
AppeodixB toAooex29 ANNEXESTOREPLYOFTHE UNITEDSTATES
THE LAW OF
TERRITORIALWATERS
AND
MARITIMEJURISDICTION
?lie Nature and Extent of Civil and
CriminalJuridiction in Marginal Seas
as Evidendby
Decivionsof National and InternationalCourts,
Statuts,Treaties, State Papen,IVriterand
GeneralPrinciplesof IiiternLaw,nal
with
Commentariesand a Proposed Code
PH11,IP C. JESSUY, 1,L.R.. PH.D.
AuiriMmbwf01Iih.Bofth. Dbia/Cdumbiaw&y
FammlyArrir(on1Ioth' SoliciforgSa11rlmimf
G. A. JENNINGS CO., INC.
NEW YORK
1927648 GULF OF MAINE i2421
stntcù thc principlc devclopcd al~ot*c~ that the potverof a littoral
ytatc to esercise jurisdiction in suc11cases as tiiose no\v under
discussion, is iiot liniited hy the csitct bouiidnries of its terri-
tory. in tliîs conncction he saiù: "lt docs not follow, honever,
tliat tliis Governnient is entirely t\~itIioiit potver to proteet
itsclf from tlic abuses eomrnitted by Iiovcriiig vesscls. There
niay bc sucli n direct couiiection bct\vccn the operation of the
vcssel aiid the violation of the Iatvs prescribed by the territorial
sorcrcign as to justify seizure cvcn outsidc tlie tliree-riiileiimit.
Tliis iiiay he illustratcd bg tlic casc of 'hot pursiiit' nliere the
vcssel lias coininittcd ail offensc against tliosc lntvs !rithin ter-
ritorial waters and is cauglit mliile trgiiig to escape. The prao-
ticc wliich pcrniits tlie followiiig and sciaiirc of n foreign vesscl
wliich 11utsto sen in order to avoicl clctcntion for violation of
t,lie ltras of the Stiitc wliosc tv~itcrsit IIIciitcreil, is bnsed on
the priiiciplc oE ncccssity for tlic 'clFcctivc ;idiriiiiistration of
jiisticc.' (IVrstl~rke,l'art 1, p. 177.) Anil tliis cstciision of the
right of the territorial Statc \\-as votcù i~rianiniouslqby the
Institut2 of International Lntv in 18'54.
"Another casc is one \vliere the liovering vessel, aitiiough
lying outside the three-mile limit, conimuriicates with the shore
by its owii hoats in violation of the territorial law. Thus,Lord
Salishiiry snid, aith reslirct to the British schooncr Araunah,
that lIer nlajcsty's Governmciit werc 'of opinion tliat. even
if the Arairnah nt the tinie of the sciziire were herself
oiitsiclc tlie tliree-mil? territorial Iimit, the fact tliat she \vas
by means of her boals, corrying on fishiiig within Russian
upaters without the prescrihed liccnsc warrantcd her seiz-
tire und confiscation nccording to the princililes of muni-
cipal Inw rcgulating the use of tliosc waters.' A case similar
to tliis \vas tliat of tlic Croce and Huby. (238 Fed. 475)."'
The Grace and Ruby.
Tliis ciisc of tlie Grare aild Itrrby, <leciclcdhy tlic District
Coiirt of AInssacliiisrtts on Srptrnibcr IR, ln!?'>,wns one nt the
first in wliich tlic Aiiicric;in coiirts wcrc callcd iipoii in conncc-
tion wi1.htlic proliihitiori latvs to nnnlyze tlie nature of this
b8uprn ClialilrII, pnges7.7-iG
a Op.cil.pp. iv.-v.i2431 ANNEXESTO REPLYOF THE UNITEDSTATES 649
extra-territoriiil jiirisdictioii of the Unitcd States under iiiter-
national law.'
The (;nzee and liiiby vas a Britisl! vesscl owned and rng-
istcred iii Nova Scotia rrnd eommauded hy a British suhject.
Slie rinilc(lfroiii tlie 1lnli;iiii:i'Isliiiiciswitli a elc;irrince for St.
John's, N. B., on Fchruary 10, 1922, witli a cargo of licluor
partly owiied hy an Aineriean citizen resicling in Salem, hInssn-
cliusctts wlio wns on bo;ir<l(Inring the voyiige. The vesse1pro-
eccded directly froiii the 13aliamiisto a point abolit six miles
off Gloiiccstcr, M;i~acliiisctts, ~vlicre the Ainericnii went on
shore. The ship rcizained liovcring off tliis point of the toast,
always Becping more tliaii three miles from land. Two days
later the Anierican retiirned in a Cloncester motor-boat, tal<irig
to the scliooiier, \i.liicli was then tcn iniles from tlie
nearcst laiid, and eairyiiig back to the shore somc 8,000 hottles
of liquor. III addition to the iiien wlio Iiad tome oiit from shore
in the motor-hoilt, tliree niembcrs of the crcw of the sehooncr
nindc tlic trip, toming a dory heloiiging to tlie scliooncr, ~'liich
dory was presiimably intended for use in lancling the liqiior
aiid to permit the rcturn of the sailors to the scliooner. The
motor-boat and Iier erew were seized by revenue officers. The
nest day the rcrentie cutter Tanlpa was ordercd to find the
Cracc and Ricby and hring Iier into port. This was accomplished
two days Iater, although tlic cutter mas eompellcd to display
force to overcome a show of resistnnce on the sehooner's part.
At tlie tiiiic of tlicsrizure tlie Graceund lltrby wns abolit four
niilcs from the iicaiest land, t,liat is, outside the territorial
watcrs of tlic IJiiited States and t,lierefore on tlie high sens. The
IJnited Strites filcd lihels for Ille forfeiture of the schooncr for
siiiiigcliii:. liqiior in violrition of Reviscd Stntiitrs, Scct,ion2872,
2374: and tlic Nntinnnl 1'roliil)itionAct.O
7As enrlicr <IceirionFR8 rcndercil in theenue of U.S. v. nengochca,
et oc., (1022 C. Ci 4. 5th) 270 lied. 637. In this ense the Cuhati
lisliing relioaiier 1:eîrnplivaa liclil to have heen lawiiilly aeired inarc
tlinn tlirro Iiiit lrss tlinli t\vclsiORnitlie Floridn Coast. She interidcd
to land liquor tliraugh :hamaIIlr~sniiù failcd to prodinca. manifc.at.The
uld li99 "horering art" was decnicù valid hy tlic roiirt on the basis of
Chtwch o. IIuhbnrt (2 Cr. 187; 2 L. Ed. 240) and a Irjiigacquiesccnco
ù).foreip pov<.rl!rtnents.
sConip. Stnt. See. 5563, 5505.Tlieee provisions dcnl with unlawful
unliidii~of carp. Tliey a.cr.rcpealed and supplnntcù by The Tarili Act
of l92? (42 Stat. 8S8).
D .il Stsit. 305.650 GULF OF MAINE 1.2441
The case was heard upon exception to the libels raising solcl?
the question of jurisdiction.
The Court orerruled the exceptions, coucluding that the
United States had jurisdiction in the preniiscs. The Court de-
eided that althougli the master of the Urace and Uitby Imcwof
the project to violatc the laws of the United States, there mas
nevcr any intention of briuging the ship itsclf witliin American
territorial waters. The Court concludcd also that tlieactions of
the @ruceand Ruby conatituted an unlamful unlading at night
within the territorial limits of the United States in violation
of the laws rcferred to in the libel. District J~idge IIorton said:
"The act of unlading, althoiigli begiin beyond thc three-inile
limit, continued until the liquor was landed, and the schooner
was activcly assisting in it by means of her small boat, and
tliree of her crew, ~vliowerc on t,hc motor-boat for tliat pur-
pose." The Court pointed out tliat the schooner was hcld on tbe
arrcst made by the niarshal under 'the warrant tliat \vas issucd
aftcr the filing of the libels and not on thc seisure mntle by
the cutter on thc high seas, and that tliereforc thc qiiestion
whetlier shc muld hnve hcen seizcd ùeyond the threc-mile limit
for an offense coinmitted wholly heyond thnt limit \vas iiot in
issue. In asserting that the seizure wns valid neverthcltw., Judge
Morton relied principally upon Cliicf Justice hlarsliall's de-
cision in the cnse of Chttrch.u. R~bbart,'~ although he admitted
that thia decision had bec11questioned by writers on intcr-
national law. The Court stated that it wns not asscrting a
right generally of search and seizure on the high seas, "but
only a limited power exercised in the waters adjacent to our
Coast over vessela which have brokcn our laws." The Coiirt be-
lieved that itwas for the political departments of the govcrn-
ment. rnther than for thc courts to determinc how for the
aiithority of the United States should he extended for such pur-
poses. The jiidge considered that the case mas similar to that
dccided hy Twiss in the case of the Ca~liari.~'
An appenl was taken to the Siipreme Court under the old
10 (180.1) 2 Crnneh187; L Ed. 240. Curioilsly enaugli. the aamejudgc,
in n laterCRK rcli(11on tlw BO~~~$VImPt~rary rnac ol Iioar r. Ilimcfy, 4
Crancli211; 2 1.Ed. OOR;sce Thc YnrjorieE. Boehman (I!WT>4) P. (2d)
405; in/raChnptcrVII, p.334.
111 Moore'aDigcat,p.720; sec avpm Chaptcr 11, p05. ANNEXES TO REPLYOFTHEUNITEDSTATES 651
(2451
practice, but failcd hecaiise the order appealed froin was in
intcrlocutory aiid not final forn~.'~
It is to he iioted tliat the Court's decision is based krgely upon
tlictlicory nilvniiecd by Sccrctary IIiighes in justi(icntion of
the scizure. Ncvcrthrlcss, iiirelyiiig upon the cilse of Chureh
v. IIubburr, aii(1in layiiig a biirdeii of diseretion on the polit-
ical departiiieiit, tlie Court seeiiis to he snpporting a certain
right of jurisdietion over tlie Iiigh sens, wliereas the Uepart-
nient of State, iu relying upon the caîe oE the Araunuh, pro-
ceeded eiitirely iipon the tlieory of constructive presence of tlie
Iiovrring ressel \vitliiii territorial waters tlirough the mediuni
of tlie ship's owii sinnll boats. Secretary Iiughes invoked this
'doctrine, howcver, mercly as one of the applications of the basic
prineiple of direct conneetion hetween the ship and the acts
whicli occurred within territorial liniits.
Tlie British Goreriiiiieiit was not iircrmred to aeqiiiesce in
tliis view. On 1)eceiuber 30, 1922, the British Amhassador ad-
ilressed a note to the Seeretary of State in the following terms:
"On September 27th last a statrnient, purporting to be offi-
cially inspired, appeared in the daily prcss to the gcneral ef-
fcct tliat tlie United States Goveriiment Iiad dccided to restraiu
prohibition ciiforeeiiieiiofficiaisfrom seizing, outside the tliree-
iiiile liniit of territorial waters, foreign vessels \vliich are siis-
I)ccted of beiiig rngugecl in the smuggling of liqiior. Accord-
iiig to the same st:itciiieiit, Iiowvcr, tliis ruling did not npply
to the senrcliin:., 1)cyoniltlic thr~e-niilc liniit, of ships wliich
were known to be in contact witli the shore, siicli as the run-
iiiirp of siiiall craft oï the sliip to sornc point on the land.
"From scnii-officia1corrcspondenee which has since passed be-
tween us in regard to indiridual British vessels arrested oiitside
territorial waters on the charge of liquor smuggling it appears
tliat the United Statcs Oovernment are in fact acting on the prin-
ciple defincd above. The majority of siieh vessels eithcr have,
through your kind intervention. already heen released or else are
in process of beiiig restored to their owners. The only exceptions
to tliisule appear to have been made in the case of vessels, not-
ably the 'Orace and Ruby,' in respect of which a charge has
been lodg~d of having been in commi~nicationwith the shore by
means of tlie ship's small boats.
12Not reporteùbefore the Suprelne Court.652 GULF OF MAINE [2Ml
"Iii ordcr to avoid tlie possibility ,of any misunderstanding,
1 aiu dcsircd by my Govcrnnieiit to m:ilte it clenr that His
IIujcsty'~ Goveriiiiieiit arc iiiiablc to acc~uicscciii wlint they
uiiderstiind to he the ruliiig of the United States Government,
naiiicly, tliat forcign vcsst~lsniny be sciec[l oiitside tlie tliree-
iiiilc liiiiit if it. c:iii be sliowii tlint tliey Iiavo establislied conlaet
with tlie shore for illegal purposes by nieans of their own sinsll
boats. hIy Governmeiit niust reservc lhcir right to lodge a pro-
test in any iiidividual case in wliich action may be taiien by
the llnited States Governinent unàer this ri~ling."'~
To tliis note Seerctnry IIughes replicd on January 18, 1923,
GS f0ll0\\.~:
"1 have tlie Iionor to state thnt consideratioii has been given
to tlie statemcnts containcd in your note and tlie concliisioii
has bccn rzached tliat tlic Government of tlie United States
sliould a<lliercto the ~~ositioiiit lins previously taken that for-
eign vessels outsitle the three-iiiile liniit may be seiïeù when it
is establislied thnt tliey are iiing tlicir smnll boats in illeznl
operntioiis witliiii tlic tliree-niile limit of tlie United States. This
coriclusion is supportecl by tlie position talcen hy the Rrit,isli
Governmcnt in tlic case of tlie British Columbian schooiier
ARhllNAll, tvliich wlis srized ORCoplicr Island, by the Ri~sriüii
aiitlioritiriii1S88,bri:niise it ril)pc.nrc(ltlint.iiiembcrs of tlie crew
of the scliooiier xvercillegally tnking seals in nering Sen by ineans
of ennoes olierciteiihet~~rentlic schooner and the land, and it wns
affirmed tliat two of the eanoes were witliin hnlf n mile of the
shore. Lord Salisbury stated that Her Ilajcsty's Government lvere
'of opinion tlint, evcn if Ille ARAUN:III nt. tlie time of tlie
seizure mns herself 'outside tlie three-mile territorial limit, the
fnct that s1ie was, by mrans of her boats, carryingon fisliin:
nitliin Rrissinn \vntcrs mitlioiit the prcscribed license w:irrantcd
her seizure and eonfiseation aecording to the provisions of the
miinicipal la~vrcgiilating Ille use of thosc waters.' (Volume 82,
British ancl Foreign State Pal~crs, page 1058.)
"1 iiiny add tlint it is not iinderstood on what grounds the
~lccisioii of 15s Majesty's Government in this matter was
reached, in viem of the position talcen by Lord Saiisbury in tlie
ARAITNAII case and the stntement iii your note No. 781 of
October 13, 1922, tlint his Mnjcsty's Qoveriimcnt 'are desiroiis
1331s. records, UcpnrtiiiciStata; Pressrelease, Fcbruary20,1921.12471 ANNEXESTO REPLYOFTHE UNITEDSTATES 653
of assisting the üriitt:d St:ites Coveriimcnt to the bcst of thcir
ability in tlic suppression of tlie traffic aiid in the'prcveiilion of
tlie abuse of the I3ritisli flag bythosr engageil in it.' " '4
The Case of the Henry L. Marshall.
The secoiid ciisc of iiiil~ortancc to coinc bcforc tlie Ainerican
coiirts involved diffci.ciit Iiiit nnulogoiis principles, wliirli wcre
tliiis suitininrized hy Secretary Huglies:
"It \vil1 he noted tlial iii the case of thc Ar.ui~nu1~ il w:w tlie
rescl lierself tlint n.;is <lceincù siibject to sciziire oiitside tlie
three-mile liiiiit, aiid iiot siiiiply lier srnall boats, and tliis was
inanilcstly ùecaiise of tlic direct conneetion Letweeii tlie conduct
of the vesse1 niid tlie violation of tlic law of tlre t<!rritory. It
iiiay Leurgeil \vit11forcc tlint tliis l)rincil~lc should not be limitecl
to the case of tlie use by llie vesse1 of lier omn bonts;where
slie is noiie tlic icss i!ll'ectively rngagcd, althougli iisiiig otlier
boats, in tlie illegal iritro(1iiction of lier ctirgo into the com-
nierce of tlie territor).." '$
Tlie case to \vliich tlie Secretary referred was tbat of tlie
fle~iry 12. illarskoll." Tliis sliil~ lind oiigiiially been ai, Amer-
ieaii vesscl owiied ùy an Aiucricnn nnriicd hlcCoy, who proved to
ba one of tlic itiost :i<:i.i\.c iiii(I iiilcrrstiiig clinrnctvrs in tlie
entirc field of liqiior iiuportntions froiii hovcriiig vcsscls. It
as :Ill iii tlic (:ov~riiiiii~iit.'sbric€ tliat AIeCoy desirnl to
tr;~irsir~i'III.sliili 111I%rilisli ri~:.istry jiior<lci.to scciirc tlic pro-
tection or the Ilritisli 11;ixiii Iiis riim-sniiiggliiig rictivities. It
-1s :ilil t1:t .\lc(:«g iii effcct rriiiniiic(l tlie netiial olvncr
aiid tliat lic coiitrollc~l tlii: iiiovrinciits of tlic shili. On a voynge
prcvioiis to tlie oiir iliiriiig \i'liicli tlic sliip xvns seizr<l hg the
Uiiitrd Stutes it ~il)lw:ire<lt.liot the vesse1 Iiud sniled îrom Nas-
sail \rit11 a clii.yo oî liqiior ~vliicli\vas taken to a point nenr
i+318.recol~its, I)qinrtii!riitoi Stntc: Press releasc Yeb. 20. 1927. The
statriiiriitsof Lord SttIi01ntr.in Ilne .4munah case are b~lievrd to have
eaiiatituti.da i~oiiiplrtcrlicck iilioitlie 1,t.oti.of 1Lc IlrilisliOoveriiiiicnt.
Iiitliisron!ieeti<ii iec ~(utctxirtitii IveliaIlf tltr llritiahQovernment inadc
in the House oi Coriinioiis,Al,i'i311 ,U"3; Parl. Deli. (Coriiinans)6th Ser.,
V. 103, col. OC$. I:or o fiirtlirr cxl>osition of .Jiidgc 3lurton's virws eni-
plinsi?ing the ideî of eoiist.riii:tiI,rra!nre. rireIiirdr~isioii Ilitliecave of
The ~Uorjone E. Ruelin#ui,,4 17.('il) 403,qiioted iafi-aCh:iliti,rVJI, p. 334.
16 Op. ci!. rupru. iiiitc4, 13.r.
1s (18?i?, S. 1).,N. Y.) ?Sü Fed. 200.654 GULFOF MAINE [Il
Annex30
A CRITIQU OF THE DISCUSSIO INME CANADIA CNOUNTER-MEMO R ITLE
DEFENSA ECTIVITI ESTHE PARTIE ISTHE GULF OFMAINE AREA
1. The purpose of this Annex is to respond to three arguments that
Canada has raised in response to the demonstration in the United States
Memorial and Counter-Mernorial that the United States has assumcd
primary responsibility for the defense of most of the Gulf of Maine
2. The Canadian Counter-Memorial implies that the United States did
not wntribute in World War II to the defense of the Gulf of Maine area
prior to "the end of 194'". This implication is inaccurate. In October,
1939, the United States joincd in the Dcclarations of Panama',which
announced sea safety zones and issued a warning to belligerents not to
operate West of 60" West longitude. Pursuant to the Declaration, the
United States established and maintained a neutrality patrol.inning
in August, 1941, the United States Navy eswrted convoys from North
America to Iceland. In September, 1941, the United States assumed
strategic wntrol over the Western Atlantic, an arrangement in which
Canada wncurred '.
3. Canada also argues that the "United States contribution to joint
wnvoy [defense]essentially was limited to 1942.In this regard, Canada
States inwrrectly that, in April, 1943, at the Atlantic Convoy Conference,
'United States Mernorial, paras. 131-132;United States Counter-Mernorial.
paras. 103-106.
'CanadianCounter-Mernorial.Annexes.Vol.III,para. 97.
'DcclarationsAdoptedbythe Meeting ofthe ForeignMinistersof therican
Republicsat Panama, 3 Oct. 1939,Charles Bcvans.cd.Trearies and Orher
Inter~tio~l Agreementafthe UnitedSfatesafAmerica:1776-1949,Vol. , pp.
604-610.AppendixA.
'Under the dcfensc plan known as ABC-1. and its succasor plan ABC-22,
strategicresponsibilityforthe Atlanticwasdividedintothrccarcas:Great Britain
wasresponsiblefortheastem Atlantic,the UnitedStateswasresponsibleforthe
western Atlantic. and Canada "could assume responsibilityfor the strategic
directionof forcesin s... areas as might bedeiïnedbyjoint US.-Canadian
agrmrnents".[S.W. DziubanMilitary Relariom betweenfhe UnitedStoresand
Ca~da: 1939-1945,1959,pp. 65, 105;depositedby Canada pursuantto Article
5q2) ofthe RulesofCourt.]
'CanadianCounter-Mernorial.para448. 121 ANNEXESTO REPLY OFTHE UNITEDSTATES 655
the United States "relinquished al1responsibility for trade convoyson the
northern routes between North America and Europe"'. The United
States agreed at that time that Canadian and British forces would be
responsible for thephysical protection of mercantile convoys, but retained
responsibility for the physical protection of troop convoys and warship
formations2. Moreover, the United States retained strategic contml and
responsibility for al1convoyssouth and Westof the Change of Operational
Control (CHOP) line '.
4. Canada also maintains that the CHOP line is "little more" than the
point at which ships at sea would change radio frequencies for routing and
weather information ',and that the line was an "insignificant feature of
the war effort'". On the contrary, in response to the need to move men
and materiel across the Atlantic Ocean as quickly and as safely as
possible, the CHOP line was devised "to define exactly the American and
Britishareas of responsibility for the control of transoceanic convoy and
ship movements 6".
6. The United States acknowledges and respects the fact that Canada
has been allied with the United States in the defense of the North
American continent, pursuant to which Canada has shared responsibilities
for, and has made valuable contributions to, the defense of the Gulf of
Maine area. Nevertheless, Canada's contributions are not inconsistent
with the longstanding and wmprehensive assumption by the United
States of strategic responsibility for the defense of most of the Gulf of
Maine area '.
7. The United States does not maintain that its activities in the Gulf of
Maine area have created rights associated with an historic title to that
area. Rather, the United States believes that such activities and agree-
ments "reflectmutual understanding[s] of. .. respective responsihilities in
the area ... inconsistent with a Canadian' claim to jurisdiction over any
part of Gwrges Bank '".
'CanadianCounter-Mcmorial.Annexes,Vol. IIIpara. 95.
'Telegram from Commander-in-Chief,United States Atlantic Reet, to Naval
ServiceHeadquartersofCanada, dated24Apr. 1943.Appendix B.
@ 'tbid S.ee also United States Memoriûl, Fig. 14; United States Counter-
icsMernorial,Fig. 17.
O 'CanadianCounter-Mernorial.Annexes.Vol.III, para. 101.
'CanadianCounter-McrnorialA , nnexes,Vol.Ill, para. 102.
'Headquartersofthe Commander-in-ChiefU , nitedStates FleetandCommander,
Tenth Flcct,"Historyof Convoyand Routing", UnitedStalcsNavyDept..1945.
p.38.AppendixC.
'Although Canadanotes its wntributions during the Cuban (International)
MissileCrisisof 1962,it fails to mentionthat, under the wmbincd wmmand
stmcture, United States military officersexercisedstrategic wntrol over thuse
Canadian forcesdeployedin the Gulf of Maine area. This exerciscof strategic
II.rol and responsibilityrallelsthe situationof the PartiesduringWorldWar
'UnitedStates Counter-Memorial,para. 106.656 GULF OFMAINE
AppendixA toAnnex30
DECUR*TIONS hOF'TED BY THEMEEIING OF THEFOREIGNMINISTER SF ~-E
AMERICAR ~EPUBLIC SIPANAMA 3.OCIOBER 1939.CHAHLFR SFVANS E,l).,
TRFATIEAND OTHER 1NTER.VATIOSAAGREEHEM SF THE UNITED STATEOF
A.WERI~A: 1776-1949VOL.3.PP.604-610
[Nol repmduced]ANNEXESTO REPLYOFTHE UNITEDSTATES 657
Appendix BtoAnnex30 658 GULFOFMAINE
lmwnrnioa
UDIC*nCurmrrwoerrrrorniicruicruminurirruion
KNIGHT 241708 NCR 1896
#nirOIMC~W~-~C~T~HID~IIAIuIDErurumm nrnirrriico ntcmuu-
~ L D Inu --oir ruoc an nn UI
TU1
C;i4INCHIY FOLLOY INC PARTICLILARS:
?;?.4%BAPH 1 - THC BTATEUiNT THAT THE CANADIAY CCYF3K-
TO 7-2 : I ;.:;'FLILC;iit?S:;Silil>liFOR "THIS
t lTL 12?t%Ql:';U :.CL*"
PAGE1 OF 2
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Sm- b4 *.. *I -- . a..---r-a- -- P- (Q-r-cw ANNEXESTOREPLYOFTHEUNITEDSTATES 659
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UDICLTn uruisuionnrrrotmiïirui~~rm n rinnuroii
2417$8. YCR 1.896 YkX 2 FINAL
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FCnEE MILL BE ;(iTH3RhWH FXDV )r:,hTH16TLANT1C SUE-
MARI:1E i!,.rSARE!S NO1 ci,rSEcT. i.HlLE TiiE PhRTICIPkil3N
,.,. OF s!,:5ED :THTEE ~fRlc.~Fr 1.3 c:sTlr!.Ei: EL'iIbXLaF ih:
? ! T :t(tfACi TUT CCUE :&i 7ED STATES ES::C?l
rE::iiS ;nE TO '". r:,,E TC i!5;CT ?:iE SF,T;E.ii FC?:.ZS GULF OF MAINE
AppendixC tn Annex JO
"HISTORY OF CONVOY AND ROUTING"H , EADQUARTE RFTHE
COMMANDER-IN-CHU IENFI,TEDSTATESFLEET AND COMMANDET RE,NTHFLEET,
UNITED STATEN SAVYDEPARTMEN WTA, SHINGTOD N.C., 1939-1945,P.38
Principal North Atlantic and Mid Atlantic Convoys'
Cosuoitie(~EnemyAnionic
eips Escons
Fr per Sunk Sunkm
Advins Convoyr Ships Conwy &eO~ts Convoy in CA' Strox. Darnaxed
1942 253 7,882 31 1,547 6.1 127
1943 299 12,745 43 2,481 8.3 126 49 20
1944 380 18,856 50 3,070 8.1 15 3 II
1945" 202 8,514 42 & 5.6 -7 O 5
Total 1,134 47,997 33 8,233 7.3 275 91 53
" NonhAilaniicTradcCun\oy ~ .k, UGS.OT.L7, CU and ATconuo),andrciumingc<~un.
a-rpublirhcinihc )carly eunsumm~ricarppcdnngtn CS Flccihii-SubmannctBuIlriin,.
111>6.120.123. 124.1
SailinpnorioVE.
lncludinesmas.
Source: 1.
2. CHOP Linesof theAtlantic
1. In order to define exanly the American and British areas of responsibility
for the control of transocednic convoy and ship movements (as distinguished
irom strategic conirol of wanhips), the North and South Atlantic oceani habe
been diiided roughly in half. The dividing line is known ar "CHOP" (Change
of Operational Control). The estimatcd date and hour of crossing the line is
cstahlished bv a dead reckoninp.lotand is staied in the sai- -n relenram. Thc
divening authority on rhe oth& ;ide of thc linc assumes control on that day,
regardlcss of estimated position. If the hour was no! stared in the -ailinn rele-
gramcontrol changed at noon G.C.T.
- 2. The CHOP line in the South Atlantic was originally set and h- remained
along the 26th meridian south of 00"-35N'.
3. North of the Eauator. however. there have been four chanees since the
fimi line was adoptcd on I July 1942.Originally proposed in BÜSRA a few
monihs previous, it closely correspondcd to thc Nonh Atlantic stratcgic control
Iine and ran southaard alonp.the 10thmendian [O65 N. ihencc bv rhumb line
10 the 26thmeridian 53 N,&d thence southward alo& the 2&h meridian,
except between 43 N and 20 N where il followed the 40th meridian. (App. E.)
4. The first change of 28 Julv was a sliaht one. merelv movine the above
rhumb line westward soas to miet the 26thmeridian at 5?N. instead of 53 N.
5. On 12 November 1942 the second change moved the chop line for al1
movements exclusive of troop convoys and independent troop ships (for which
the line of 28July applied until I April 1943)westward to the 35thmeridian as
far south as 50 N, thence by rhumb line 1043 N, 40 W,southward again along
the 40th meridian to 20 N, and thence by rhumb lin1000-35 N, 26 W.I3gl ANNEXESTO REPLY OFTHE UNITEDSTATES 661
6. Rie nextchange,efinive I April 1943wasagainto the westwardto facili-
tate till further the British and Canadian control of the extreme Nonhwest
Atlantic. and increased the total area of Britishcontrol 10its maximum limits.
Now the line ran from Greenland along the 47th meridian 10 29 N, and thence
again.. .662 GULFOFMAINE Il1
Anoex 31
ACRITIQU OF THEARGUMEN ITSHE CANADU NOUW~R-M~MORIAL
CONCERNINGïHE PURPORTE ECONOM DEPENDEN OFNOVA SCOTI UAPON
GEORGE BANK
1. Canada restsmuch of its case upon the argument that the ewnomy
ofNova Swtia isdependentupon its Georges BankIisheriesand wouldbe
devastated by their loss. The argument bears no legal relevance to the
delimitation in this case', but is intended instead to appeal to the
emotions. Canada seeks to impose upon the Court the responsibilityfor
creating "upheaval and socialdistr'"and "calamitous declin"'for in
effect setting "simultaneous fires" through 130villages and towns', and
for causing dozensof them to "cease to e'".Fortunately, the spectres
raised hy such fervid rhetoric are without foundation. The facts reveal
that the Georges Bank fisheries are critical neither to the ewnomy of
Nova Swtia as a wholenor to its fishing industry, and that the ewnomy
of Nova Swtia, as well as its fishing industry, readily wuld adjust were
the Court to wnfirm United States jurisdiction overGeorges B6.k
2. The Canadian pleadings exaggerate the economic importance to
Canada of its fisherieson GeorgesBank.One meansbywhich Canada re-
peatedly wnveys this exaggerated impression is to blur the distinction
between"the fishery"as a wholeand its Georges Bank fisheries.Another
is to compare "the fishery" as a whole only to parts of the economy.
Canada nevermeasures the significanceof its Georges Bank fisheriesto
the entire ewnomy of Canada or even to that of Nova Scotia '.The
'UnitedStates~ounter-Mernoria,aras. 159-191;UnitedStatesReply,paras.
106-114.
CanadianCounter-Mernorial.ara.309.
'CanadianCountcr-Mernorial,ara.314.
'CanadianCounter-Mernorial,ara.309.
'CanadianMernorial,para. 172.
'Canadaprofesses torcewiththeUnitedStates thatconsideratsf"relative
wcalth"are irrelevantto boundarydelimitation. [Canadian Counter-Mernorial,
para. 286.1Canadanonethclessirnpliesthat Nova Scotia is irnpoverishedin
relationo New England.[CanadianCounter-Mernoria,aras.273, 274, 276,
300,and305.1Infact,thestandardoflivingin NovaScotiamparableto stan-
dardsof livingin the rest of Canada and in westerntrializcdnationsin
general.[UnitedStatesCounter-Mernorl.nne4, Vol.III, para.44.1
'United StatesCounter-Mernorl.nncx4,Vol.III, paras.10-28.664 GULF OF MAINE i31
1987 '.These expected increases far exceed Canada's Georges Bank catch
in both volume and value '.
5. In the event that United States jurisdiction over Georges Bank is
confirmed, there will be a shift of Canadian fishing effort from Georges
Bank to other fisheries. This transition will be manageable, not only
because of the abundant alternate fishery resources, but also because
approximately one-half of the groundfish and nearly al1 of the scallops
taken on Georges Bank by Canadian fishermen are caught by large
offshore vessels, as opposed tothe "small-vessel" fieet '.These large, long-
range, corporate-owned vessels inherently are more adaptable than small-
er vessels, in terms of the number of fishing grounds they can exploit and,
for the offshore scallopers, their ability to modify their gearto fish for new
species. Canada already plans to invest at least $190 million
'Task Force on Atlantic Fisheries,Navigoting Troubled Worers [the "Kirby
Report"], Ministry of Supplyand Services ofCanada, 1982.p. 23. Depositedby
the United States in wnnection with its Coun:er-Memorialpursuant to Article
5q2) of the Rulesof Court.
'The estimated increasein groundfish catches from1981 to 1987 is 321,000
metric tons,which wouldbe valuedat Can.$108.786,900at 1981prices.[Derived
from United States Counter-Memorial,Annex 4. Appendix E, Table 17.1This
substantial increasemay be compared to Canada's 1981 Georges Bank catch,
whichconsistedof 20,391mdric tonsof groundfish, 8,013 metric tonsof scallops
(meat weight).and 26 metric tonsof swordfish.The estimated increasc of ovcr
Can.$100,000,000in landed value may bc wmparcd to the value of Canada's
1980GeorgesBank total catch. which isestimatedby the United States to have
been just over S50,000.000in 1980 Canadian dollars. [UnitedStates Counter-
Memorial,Annex4, Appendix E,Table 7.1
'Allanric Business. Atlantic Canada's leading business magazine.reccntly ex-
plainedthe distinctionbctwcenthe twoflccts:
"The Canadian Atlantic Coast fishcry is scen as having twodistinctive
mmponents. The inshore fishery is labor intensive, scasonal. uses some
28,000small vessels.and is scattered. mostlycatching lobster or cod.The
offshore industry is capital intensive,using large vessels. iswncentrated,
fishes year round, and catchesmost groundfish, herring, and scallopsT. he
Americans claim that the Canadian flcet is subsidized because the big
Canadian bats are built by governmentshipyardsreccivingsubsidies.
Theoffshoreflet is 100percentwmpany-owned,with92percentof those
belongingto four wmpanies. These same wmpanies and about eight other
smalleroncsownmostof the 600processingplants andmaintain marketing
links inNew England."
D. Francis, "The U. S. Vicw: Free Tradc Looms". in Atlantic Business.Aug.,
1983,pp. 15-16.AppendixA. [dl ANNEXESTO REPLYOFTHE UNITEDSTATES 665
(Canadian) in the east Coast fisheries over the next five years ',some of
which could be used to facilitate the transition to other fisheries for both
large and small vessels.
6. Confirmation of United States jurisdiction over Georges Bank will
not affect significantly Canada's groundfish fleet. In 1980, Georges Bank
groundfish accounted for only 9.5 per cent of the groundfish landed in
Nova Scotia and 3.4 per cent of the groundfish landed in Atlantic
Canada '.Three-quarters of Canada's Georges Bank groundfish harvest
was caught by the large vessels of the offshore fleet '.The small-boat fleet
in Nova Scotia, consisting of "small offshore" vessels and numerous
inshore vessels, makes little use of Georges Bank'.
7. A shift from Georges Bank to other fisheries will involve primarily
Canada's offshore scallop fleet, consisting of about 70 large vessels,'
which accounts for about 80 per cent by value of Canada's Georges Bank
catch 6. This fleet lands most of its catch in the Lunenburg-Riverport
complex, the base for 52 of these vessels', with the remainder going to a
handful of other ports '.In recent years, Canada's offshore scallopers have
not confined their activities to the Georges Bank stocks: 45 per cent of
their 1982 catch came from other areas9. Moreover, Canada's large
'R. Surette, "Fishery casts for new relationship:will itbe war. or economic
accord?". in Atlantic Business.Aug., 1983, p.26. AppendixB. See also Annex
28, AppendixB, containing recentnewspaperreports of im~endinglarge invest-
ment by the federaland provincialgovernmentsin the fishingindustry.
'In 1980,Canadian vesselscaught 24,946 metric tons of groundfishon Georges
Bank. The total groundfishcatch was 736,284metric tons for Atlantic Canada
and 261,627 metrictons forNovaSwtia.
'According tothe Canadian Memorial,"[m)sst ...groundfish landingshavebeen
taken bylarge offshoretrawlers".[para. 130.lThe UnitedStates estimatesthat. in
1980, largevessels(over 65feet)landed 18,839metric tonsof the total of24,946
metric tons of groundfish cêughtby Canadian vessels onGeorges Bank. [See
Annex 32 to this Reply,Annex A.]
See United States Reply, Annex32.A Critiqueof the Analysisin the Canadian
Counter-Memorial Relating tothe Significanceof Georges Bank to the "Small
Vessel"Fleet and the Small Fish ProcessingPlantsof NovaScotia.
'Canadian Memorial,para. 157.
The United States estimates that scallopsaccounted for 82.4 percent of the
value ofCanada'sGeorgesBank landings by valueduring the period 1977-1980.
United States Counter-Memorial.Annex4, Vol. 111,para. 25. n.7.
'Canadian Counter-Memorial,para. 314.
aUnited States Counter-Memorial.Annex4. Vol.III. para. 2 and Fig. 7.
'The calculation is based uponNAFO SCS Doc. 83/1X/22, "Provisional
Nominal Catches in the Northwest Atlantic. 1982". In 1980, 39 per cent of
Canada's sea scallop catch came from other areas. [Calculalion based upan
NAFO Statistical Bullerifor 1980;deposited with the Court by the United
States in connectionwith its Counter-Memorialpursuant to Article 5qZ) of the
Rules of Court.] In 1981,the figure was 26 per cent. [Calculation based upon
NAFO Statistical Bulletifor 1981.1666 GULF OFMMNE [SI
scallop vessels were designed to be adaptable to other fisheries '. Freed
from government restrictions, theywuld be converted to fish for other
species.
8. Labor and capital that inthe past have been devotedto the Georges
Bank fisheriesneed not be confined to the fishing industry in the future.
There are other opportunities in Nova Scotia's diverse and expanding
economy '. Indicative of this diversity isthat, in 1980,theentire fishing
industry of Nova Scotia accounted for less than 5.4 per cent of employ-
ment in the Province, and 5.3 per cent of the Province'sgross domestic
product '.The developingoffshore petroleum industryalone will generate
thousands of jobs in the next few years, and perhaps couldeven create a
shortage of fishermen '.Moreover,the federal and provincial governments
can assist the private sector to reinvestcapital and labor in other areas of
the economy.
9. Confirmation of United States jurisdiction over Georges Bank will
require some change in parts of Canada's fishing industry, butnone that
would be extraordinary. Catches rise and fall, currencies fluctuate,
technology advances,'and market conditions change constantly. The
Canadian Atlantic fishing industry has existedin this climate of constant
change for many decades. The arriva1 of the distant-water fleets, for
example,precipitated substantial changes in Canada's fishing industry,as
did the subsequent extensionof fisheriesjurisdiction. Whereasthe United
States lacks alternate marketable fisheries resourcesoff of New England,
Canada nowhas begunto developan enormousnewfishery forits northern
codstock. Compared to these developments,a shift by Canada from its
fisherieson GeorgesBank to other fisheries(or,indeed,to other industries)
will be neither unusual nor "calamitous", especiallyfor an industry that
has significant untapped resources immediately availableto it '.
'UnitedStatesCounter-MemorialA , nnex4,Vol.III, para.59.
'UnitedStatesCounter-MemorialA , nnex4,Vol.III.
'United StatesCounter-Memorial..ie- 4 and6.
'United States Counter-MemorialA . nnex 4.Vol.III. naras. 60-64.A recent
study commissioned bythe offshoreoilindustryindicatkihat some60 percentof
offshore fishermeanreinterestedn workinnintheoffshoreailandpasindustrv. A
Study of the Potential Soci~Economic Ëlfects upon the Nova icotia Fisiring
Industry/rom OffshorePetroleum Development, NORDCO,Ltd., 1983,Table
4.32,p. 110.
'Severalother States whosefleetsweredisplacedin recent yearshad no such
alternativesavailable.Theexperiencesof the WestGerman andBritishdistant-
water fleets demonstrate theeffects sufferedby States that lackedalternate
fisheries resourceassa resultoftheextensionofastal-Statefisberiesjurisdiction
to 200nauticalmiles:
"... at thecloseof1980. [Bremerhavenw ] asnolongera veryactivefishing
port. Many West German factory trawlers had already been sold to
developingnationsor refitted for offshoeilsuweying,and nearlyal1the
lfootnotecontinuedon next page) ANNEXES IO REPLY OFTHE UNITED STATES
lfoornoreconiinued?romrhepreviouspage)
large fresh-fishSterntrawlers that once madea specialtyof fast trips to
Icelandhadban laid up or soldfor scrap.Today the situation isevenrnorc
disheartening for German fishermen. From a peak of slightly over one
hundredships.the WestGerrnan distantwaterneel nowcountsonly twenly.
eight....An estimated2.600WestGerman distantwaterfishermenarenow
retiredor working ashore.
.............................................
... [a] dozenshipsare al1that is left. o&rationally speaking,of the British
distant waterfleet... In February of 1980,the Hull FishingVesselOwners
Association,the port authority that operatedal1of the city's fishing docks
and associatedservices.declareditself in liquidation. Sincethen Hull, once
Europe's busiest fishing port and the principal basefor Britain's distant
water ileel. has been notable mainly as a graveyard for long-idled and
rustingtrawlers. Exceptfor theoccasionalunloadingof a foreign trawler.the
Albert and SI. Andrew'sdockareasarea deadand ghostlyplace".
W.W. Warner, Disranr Worer.1983,pp. 310-13.AppendixC.668 GULFOFMAINE
AppeodixAto Aooex31
D.F.FRANCI "THEU.S.VIEWF:REETRADELQOMSA ",TLANTICUSINESS,
Auûus~,1983,PP14-16
[Nolreproduced] ANNEXESTO REPLYOFTHE UNITEDSTATES 669
Appendix Bto Aonex31
R.SURETTE ",FISHERYCASTS FOR NEWREUTIONSHIPA ",TLANTICBUSINESS,
AUGUST1 ,983, PP.25-32
FisheryCas6 for NewRelationship
Wll irbe war,or economicaccord?
Attheheart of commercialrelationshetween the Atlantic Provincesand New
Eneland - oast. oresent and future. is fish: hundreds of thousands of tons of
fisKthat entirs thl. United States annually via the legendary Boston market.
Il is the lifeblood of Atlantic Canada's fishery. About 60 percent of the
region'sexports no there and forrroundfish the orooortion is SOoercent. worth
aboui halfa bill& dollars. But Cheseexports aie n'otentirely.wélcome.
The resuli isa fractious rclationship between the two regions, with the poten-
tial for even more troubleasAtlantic Canada attemots to exoand its American
sales io handlc the growing norihem cod stock. ~owever, ihe situation is not
cntirely negstive and lhere are those who foresce coopcration beiween ihefish-
ine.industries of Atlantic Canada and New Enaland to mutual advaniane.
in the oast. whenever the movement of ila an tCianadian fish 16 New
~n~landAn into rough waters it was becausc of widcrkconomic proiectionism
that had only marainally to do with fish. The iradc iariffs imposed after the
Civil War and Worid W.& ~ ~ ~e~ ~ ~nicularlv harsh. a~ ~ ~rticularlv devastat-
kg for rhc~aritimes. and thcre iavc heen ;thers. Most icceni was'the 10per
cent U.S. surcharac added in 1970to al1imoorts - a move which sent Canada
scunying to ~uroie in search of new mark;:, for fish as wellas otherproducts,
under a policy called the "Third Option".
Protectionism is aaain a factor but the root of current trade tension is some-
thing peculiar to th; fish trade itself, the 200-mile offshore economic zones
declared hy both countries in 1977.The claims overlapped on Georges Bank. A
set of storm-tossed negotiations led to agreement in~l979 on a joint fishery
management scheme for the disputed zone. While the negotiations were going
on the two countries banned each other's fishermen from their respective
waters. American fishermen blockaded the Yarmouth-Maine ferries which
cany a largc pari of the Canadian fish and some American swordfishcnnen
were arrested hy Canadian authorities on minor pretexü.
The American fishcrmen were against the management agreement and suc-
ceeded in having it killed in the U.S. Senaie. The question ofjurisdiction ovcr
ihc disputed noriheast part of Georges Bank is now hcfore the World Court in
The Hague, which is expected to renderjudgement next year.
The 200-mile limits altered the economics of fishinc! for both sides. New
England fishermen saw the possihility of supplying mo;e of their own market.
At the same time Canadian fishermen gained access to more fish and the prime
lace to seIl it was the United tat tes.-Deso ctnsiderahle effort (some of it
;uccçssful)to expand sales to oihercount&s, ihe Canadian - mcan'innmostly
AilaniicCanadian - share of the U.S.groundfish market rosc from 30percent
in 1977 1037 percent in 1981.The puhlicity attendant upon the 200-milezones670 GULF OF MNNE
and the oceans generallyincrcased fish wnsumption, making il a more prized
wmmoditvand somethine more worth fiehtine over.
~ca~weile the processlof~tlantic ~anada'sIpenetrationintothe U.S.market
isno1finished.The northern wd stocksoff Labrador areexpened to eapand by
50ner ce.~~~-~m~ ~ ~ ~orelevellineoff in a few vears.The United Statesseems
1; 6; the only place to seIlthis fisK.especiallynowthat the Canada-European
Economic Community treaty, which was to increase groundfish sales to
Euroo. .~~ come~~art overthescalhunt and the failureof the EEC to oDenils
markets as much aiforeseen.
Canadian expansion into the U.S. market mbs hard against New England
fishemen-~~~ ~ ~~ ~~cton of the roce es sine industrv. "fiev have the feelinn
that it undersells the ~merican p&uct and Bringsth; overail prie down ana
that it'sunfair". says Douglas Marshall,eaecutivedirector of the New England
Re~io~-l~ ~ ~eries Co~ncil. What'sseen as "unfair". of course. is eovernment
support for the Canadian industri On that basis, the New ~igl&d industry
has managed to have the U.S. Department of Commerce launch yet another
inquiry into whether the Canadian product is unfairly subsidized - the third
such reviewin recent years.The others found no reason to impose wunte~ail-
ing duties.
Atthe same lime a U.S.law. whichtook effect Mav15.contrnls the number
ofscallop "meats" per pound that can be imported. it's effect on the $88-mil-
lion(as of 1982)scallop industry is stillunknown, but it'sno1likelyto be good.
niisis an irritant rather than amaior issue. but for loe Casev. owner of Casev
~eafoodsLtd.in Digbyand a ~ova~wtia MLA, itillustratesihe essentiaiprob-
lemon the Canadian side."Allofa sudden", he says,"you facethe stark reality
that laws-~n ~ ~ ~ ~ in the U.S.ov~r~which wehaveno wnwoi. Butthev are
the custorner.That puts a fellowin a veryprecarious situation."
However.the U.S. market is enormous and, precarious or not. the anempt
willbe made to seIlmore Atlantic Provinceseroundfish there. The KirbvTask
Force report points outjus1how largeit is: aihift of onc-tenth of a percintage
point per year for five years in U.S.wnsumer demand toward fish and away
?rommeai~ ~ ~d~son UV anv forkeen increase in Canadian eroundfish: four-
tenths of a point wokd'také up the entire world'sexpected yncreaseof about
15percent (a quaner of which isexpected to be from Atlantic Canada).
Kirbv laidout a vlan Io ex~and sales: imoroved aualitv. a diversification of
the matket base,genericadv&tising, the lic4sing of éxpo;iersaccordingIocer-
tain criteria and the creation of a government-industryAtlantic FisheriesMar-
ketine-C-~~cil to carrv out and itÏÏoroveuoon the oronram
Asfar asthe New ~k~landersarêwnceked. hobev;r, the Kirbyreport may
add to the problem. Michael Kirby presented his report to American industry
representatives in Boston in March. Says Douglas Marshall: "Our people al1
listened to the Kirby report and, let me tell you,there was a considerable
amount of cynicism.because il didn't seem likemuch of a change in terms of
how the wholc thine affects us. If anvihinn this incredible effort to anually
expand the market &uld make things&ors; for somc American fishing inter-
esü." Kirbyhas said there would be no new suhsidies"but at the same lime he
mentioned-theincredible amount of newmoneythat isgoingto he spent in the
fisheries".
Interdependence
About $190-million isto be spent over the next five years as a result of the
report - not counting furthersums that mightgo intothe restmcturing of the ANNEXESTO REPLY OFTHE UNITEDSTATES 671
five financially depleted East Coast companies. MI. Marshall waswilling to
admit, however.that notal1of that money need be considered an "unfair sub-
sidv". In fact neneric advertisinn bv Canadiansfor fish on the American mar-
ke<if itsucceeded in making p&pfe there eatmore fish, would helpAmerican
fishermen as well.
It is also oossible that monevment to u~nradeaualitv on the Canadian side
would have'the same effect,béciuseAm&rcan fiiheken are trying to dothe
same thina. Since the market doesn't differentiate Canadian from American
fish. esoesallv fresh fish. there is an advantane i..dninn cert-.n thi,ns iointlv.
am els sonan economistat the ~niverssy of Maine at Orono, is a strong
believerin cross-border cooperationIn fan he believesthe fresh fish market
should be integrated.Wehaveto eventuallylook al ilas a singlemarketwith a
singlesourceof supply.Yourfortunes and ours inthat market aretiedtogether.
Theproduct comingin has 10be consistent." But there'sno signofsuch cooper-
wanisto setup willmakethat impossible."lt willcreatetwodifferent marketing
systems", he says.
Mr. Wilson'sareoccuoation with the fresh fish market is somethinn that
should be emphasued. FOI the New England fishermen, a large pan ortheir
problem withthe Atlantic Provinceshas todo withthissector. Most fishlanded
bv NewEneland fishermen issold freshatdocksideauctions.mainlvat Boston.
~loucesterand New Bedford.The Canadian produn arrivesby truik at BOS~OR
and isbought in truckload lots by broken on a sectionof the wharfapan from
the main auction.Often the truch willaooear in the morninn. beforethe boats
come in. 60th the timingand the volum; of canadian fresh Kshaggravatesthe
Americanfishermen whoseeit ascausingglu&,and depressingthe ever-fluctu-
ating auction prices. II was fresh fishthe fishermen wanted to stop when they
tried to blockade the Nova Swtia ferries in 1978.
The fish mostly originales in Western Nova Scotia.Processon like Casey
Fisheries are in teleohone and telex contact wilh their U.S.hroken evervdav.
"Somctimcsthe tel;xes are flyingal1over the place", saysJoe Casey. ''12sjuit
like a stock market." Sellingfresh has its risks. since the market situation may
chanee in the 12houn or more iltakes at~ck 10netto Boston."Somedavs vou
sendïhe stuff up there and they don't wantto sepil", he says.'.Otherda$ iour
phone is ringing off the hook withorders."
Therisks are offsetbytheattractions. Freshfish ismore profitable. Thereare
no freezingor inventorycosts- which have keptprofit margins forthe frozen
product down for some three years now. The U.S. fresh market has been
exoandine too. whichiswhat noithe Nova Scotianrocessorsmoreinterested in
One of the oddities ofe fresh fishtrade isthat some NovaScotia fish makingle.
ils waythrough Boston is finally retailed in Montreal and Toronto.
The total percentageof Atlantic Provinces'groundfish sold fresh isnot high.
Hard figuresare hard to comc bybut itseems10be in the rangeof about 10per
=ni. h an irritant to the Americans,however,thiisconsiderable. And in the
end the irritation could cause harm to Canadian fishmarketsgenerally.AsOur
Federal Govemmcnt ponden whatto do about the Kirbyrecommendationson
marketing.it would dowellto consider the Americanfishing industry'swishto
atleast work together to even out the bumpy parts of the fresh trade.
James Wilson says that if American fishermen had their way they would
probably ban Canadian imports altonether. Butaa deeoer level,he saysthe^
Lcalizechatthe Canadian produn is needed10 coverseasonal and othei short-
fallsiokeep themarketfunctioning.Thereis,too, hcsaysa basicdesireto wop.672 GULFOF MAINE
erate withthe Atlantic Provincesfisheryfor mutual advantaae. al least in some
parts of the industw. An examole of this are olans to~~et uo ~ ~ ~ ~ ~ ~~tion
i~aine fishermen iesent the iomination of'Boston) andrcanadian supplien
willbeinvitcdto participate. There1sa recognition. Mr. Wilson savs.thatCana-
dian volumes would add substance to sucri an auction and help it challenge
Boston.
As far as cooperation on fisheries matters generally is wncemed, there is
none at the moment and hasn't beensincethe U.S.Senate ~i~led the 1979fish ~-~~
management agreement.Douglas Marshall believesa newslart willbe made as
soon asthe WorldCourt decides on Georges Bank.Thcre willbe a need at chat
point to work out a new manaeement icheme for cross-countw mieratorv
itocksand thingsgenerally mightgo on (romthere. "0ncelhe bouldary~ssuc~;s
settled you'rc going to see a willingness to negoliate and dcal n bit more on
issuesthat righi now nobody wantsio touch", he says.
The bulk of AtlanticCanada's hoped-for expansion willbe in groundfish in
its various frozen forms, plus some saltfish. An enormous expansion has
already occurred,Canada now beingthe world'sleadingseafoodexporter, sell-
ing $1.6-billionworth of product in 1981,52 per cent of which wentto the
United States. In some segmentsCanada'sshare of the U.S.market rose spec-
tacularly between 1977and 1981.Filletswentfrom41to60 percent and blocks
(which are processed into fish sticksand the like)from 21to 34 percent.
The non-fresh forms do not directly compete with American fishermen,
althoueh fishermen there have their eve on those markets too as their own
industb r.xpands. Thcy are inccnsed, MI. Marshall said.that a Companylikr
Gonon's, ouned byGeneral Mills, itsGloucesier, Mass.plant oneofthe largest
in the United States. "buvs notone stick of American fish. Thev usemostlv ~,
Icelandic fish, as wellas ;orne Canadian.
Yet even if there were no resistance at al1from American fishermen,Cana-
dian expansion is by no means somethingthat can be taken for granted. Extra
sales will have to be fought for in the face of changing paltems of U.S. con-
sumption and retailing.
Canada's place in the U.S.imoort market is overthe broad middle ranne -
the ~candikvians supply the best quality product. the South meri if ans.
Koreans and othen the won1and Canada is in the middle. Atlantic Provinces
exporten have followedwhat is known as a "volume strategy",sellinggood to
middling quality fish in10market segments which are generally more on the
lookout forlowprices than forgoodquality.Canadian processors would liketo
crack the high-quality market where Icelandic fish sells for 20 to 30 cents a
pound more than averageCanadian prices. However,there is a dilemma here.
The Icelandic quality hasbeen achievedat such acos1that Kirbypointsout that
they haven't made any money on U.S.sales since 1975.In fact they have been
losing for severalyean now.
NewEnglandLink
Nevenheless, Kirby points out that the U.S. market is full of specialized
"niches" - "white tablecloth restaurants. "checkered tablecloth restaurants.~~~-
franchised restaurants. school lunch progiams. plant cafeterias. various retaii
and institutional segmentsand so on. lnstead ofjust onloading fish in bulk,the
marketing -pp..ach should become more s~eciaiized.the revort savs.
Ian Langlands, vice-president of ~atioial Sea &oduns Ltd. of Halifax,
echoes the sentiment. Asfat as National Seaisconcemed, he says,ifis strivine
more and more to tailor ils products not only accordingto, but in anticipation ANNEXESTO REPLYOFTHEUNITED STATES 673
of,consumerdemand.The Atlantic Provincesindustry,he says,has to maintain
its oosition as the stroneest exporter to the United States."We have to build a
cusiomer-supplier relatronship'which isn'tquite so much of a commodityrela-
tionship."
He noints out that one of National Sea'smaior markets - the suoermarket
chaini - is becoming harder 10 crack. ~u~erm~rkets,trying to keeidown the
hiah wsts of their frozen food sections. are reducina the numben of brands
they stock.With computerized checkoutsthe dailypeÏformance of the produci
can be checked, and the competition 10 get on the shelvesis intensifying. "You
mightbuy your way in by promising a big ad campaign or you mightget in on
logic,but in the end the consumer must buy yourproducl or the wmputer will
toss il out."
National Sea has a plant in Rockland, Maine,and has recently bought the
40-million pound-a-year Booth Fisheries plant at Portsmouth, New Hamp-
shire,from Consolidated Foods of Chicago.This willbecome its New England
headquarten. It also has a largeplant in Tampa, Fla. "We'llbe doing our food
seMce out of Rockland and retailoroducls out of Portsmouth. savsMI.Lane-
lands. The product is mosrlyso~d'throu~hregional hrokers, w'hiihis thc way
frozenfood rnovesinthe US., althnugh National Seaalso doesdeals withüor-
ton'sand other large concems and dies some dealing directly withinstitutions
and chains.
Fishery Products Ltd. of St. John's has a plant in Danvers, Mass., and the
LakeGroup of St.John'shas one in Boston.The onlyother Canadian fishcom-
pany operating inthe U.S.is B.C.Packen Ltd.whichhas a plant inthe LosAn-
aeles area. Theseolants al1compete withand seIlto the U.S.giants of the trade
Whichare more f&uardly integrated in10the retailand food rervicçssecton -
Gonon's, Mrs. Paul'sKitchen (Carnphell'bSoup) and Stouffer's(Nestle).
Political Romance
Relations with NewEngland with regard to the fishery necessarily focus on
groundfish, worth over $500-milliona year in export value. The U.S. market
also takes a couple of hundred million dollars worth ofhellfish(scallops and
lobster orimarilv) and hemna. But these do not oresent the same challenaes
and frikions, excePt, of cou& for scallops. whichare the cause of much dis-
pute on Georges Hank.Butscallops. lobsterand herringstocks areeither harely
stavina where thev are in terms of auantity or are declinina. Shellfish are also
findine readv maikets in Eurooe. unlikeeioundfish. -
~hzher tLeAtlantic canaaian move & further expand in the United States
willraise tensions tothe point of sparking newdisputes ishard to tell. In politi-
cal terms.the American hsherv isa "romantic indüstrv". asJames Wilsonouts
il. ~ishemien "have cloutout if to theirn;mbers". Willthey finally
succced inshutting thedoor to sorneCanadian irnports? Or willthings muddle
on through. with Canada tailoring iü policies to avoid countervailing dulies?
In the words of Douglas Marshall, "Canada ha agrecd go\,ernrnent-to-go\,-
ernmcnt 10stop doing certain things by wayof subsidy.This has alwaysbeen a
sort of reareuard actio:thevdo iustenoueh to avoidthe tariffbeine imoosed."
Or willthck bc somesortof>cti&cooper~tion betweenthetwo indi~tries.~er-
haps to mutual advanrage? That is something theCanadian industry and gov-
emment should investieite. The oresent anne; ofAmerican fishermen. wheiher
based on faci or fanta&, can dicanadian-exports no good if it isallowed to
penist. GULFOFWNE
AppendiC to Anne31
W.W. WARNER,DISTANWTATER 1,77PP310-313
[Not reproduced] [Il ANNEXESTO REPLYOF THE UNITEDSTATES 675
Annex32
1. In its Memorial and Counter-Memorial. Canada has argued that
landings of groundfish from Georges Bank are critical to the small-vesse1
fleet and to the small fish processing plants in southwest Nova Scotia ',
particularly far southwest Nova Scotia. Canada has defined southwest
Nova Scotia to include the five counties of Lunenburg, Queens, Shel-
burne, Yarmouth, and Digby '.Canada has defined far southwest Nova
Scotia to include three of those counties: Shelburne, Yarmouth, and
@ Digby '.Figure 1.
2. In its Counter-Memorial, the United States analyzed the extent to
which Georges Bank contributed to the groundfish landings of Canada's
small-vesse1fleet4. Following the practice of Canada, these vessels were
divided into a "small offshore" fleet and an "inshorew-fleet '. In its
analysis, the United States assumed that al1 small vessels fishing on
Georges Bank were located in far southwest Nova Scotia 6.The United
States estimated that each "small offshore" vesse1that fished on Georges
Bank during the period 1977 through 1980 twk an annual average of
between 5.7 and 13.1 metric tons of groundfish from Georges Bank'.
'Canadian Mernorial.paras. 143-148;Canadian Counter-Mernorial. paras.255-
262,298, 306, 307,and 315;and Annexes,Vol.II. Canadiansrnallvesselsdo not
harvst significantquantitiesofscallopsonGeorgesBank.UnitedStatesCounter-
Memorial.Annex 4,Vol.III. para. 27,n. 1.
'CanadianMernorial,Fig. II. p. 33.
'Canadian Mernorial,para. 144.
'United States Counter-Mernorial,Annex 4. Vol.III. Appendix C.
'Canadian Mernorial,para.148;and Annexes,Vol.IV,Annex 5,p.90;Canadian
Counter-Mernorial. paras.255. 256. 261,306, and 315; and Annexes.Vol. II,
paras. 176and 177.Canada, however,oftenblursthe distinctionbetween "small
offshore"vesselsandinshorevesselsbyreferringmoregenerallyto srnallvesselsor
to srnallboats.Canadian Counter-Mernorial. paras.255-257,261,298.307,and
315;and Annexes.Vol.Il, paras. 173-178.
'This assurnptionwasbaseduponthe smallsizeand short range ofthosevessels
and the distanceto GeorgesBankfromthe portsofsouthwestNovaScotia.
'United States Counter-Memorial,Annex4, Vol.III. Appendix C,para. 3.676 GULF OF MAINE 12-41
Each of these vesselslands a total of several hundred tonsof groundfish
annually '. Further, the United States calculated that, in that same
period, the inshore fleet took in the aggregate only 2.9 per cent of its
groundfish landings from Georges Bank,an amount equal to only oneper
cent of the total landingsofgroundfishin far southwest NovaSwtia '.
3. The United States has reviewed its assumption regarding the
locationof the Canadian small vesselsthat fish on Georges Bank andits
estimates regarding the importance of these landings to these vessels in
the the light of the additional data included in the Canadian Counter-
Mernorial. The data provided inthe Canadian Memorial and Counter-
Mernorial, although fragmentary and incomplete ',when combined with
other data available to the United States, confirms that: (1) groundfish
landings from Georges Bankby Canadian small vesselsare concentrated
in far southwest NovaScotia, principallyin the area of Cape Sable Island;
(2) the small vesselsof far southwest Nova Scotia, even those based on
Cape Sable Island, do not rely significantly upon landings from Georges
Bank; and, (3) the small fish processingplants of southwest Nova Scotia
do not rely significantlyupon landings from GeorgesBank.
SECTION 1. Landingsfrom Georges Bankby SmaUVesselsAre Conceu-
trated in Far SouthwestNovaScotia, Principallyon Cape Sable Island
4. On the basis of the additional data provided in the Canadian
Counter-Memorial, it is now possible to determine the distribution of
groundfish landings from Georges Bankin southwest NovaScotia. These
data show that two of the 12 Fisheries Districts that are located in
southwest Nova Scotia, Districts 26 and 32, account for most of the
landings of groundfish from Georges Bank by bth large and small
vessels. In 1980, they accounted for 64.2 per cent of those landings'.
AppendixA.
5. District 26accountsfor the largest share of the estimated groundfish
landings fromGwrges Bank by al1vessels.In 1980,District 26 accounted
'UnitedStatesCounter-MemorialA . nnex4,Vol.III, para.22,n.4.
'UnitedStatesCounter-MemorialA . nnex4,Vol.III, AppendixC,para. 4.
'Inordertoanalyzecompletely theCanadianassertionswncerningthereliance of
particularcategoricsofvesselsorparticularcornmuniticupongroundfishlanded
fromGwrgesBank, itwouldbeneccssarytohavedatashowingthe totallandings
ofcachspeciesbyeachcategoryofverscland in eachcommunityfromcvecyarea
fished,fora priod of sevcrayean. Onlysomeofthesedata haveken provided
byCanada.
'The United Statcs has focusedits analysisupon 1980hause moredata are
availahleforthat yearthanforanyother.Dl ANNEXESTO REPLYOFTHEUNITEDSTATES 677
for an estimated 9,638 metric tons, or 38.6 per cent, of these landings'.
Appendix A.
6. The remaining landings of groundfish caught on Georges Bank are
distributed among the other 11 Fisheries Districts of southwest Nova
Scotia. By far, thelargest share of those groundfish are landed in District
32 (Cape Sable Island and the mainland immediately adjacent thereto) in
far southwest Nova Scotia. In 1980, District 32 accounted for 6,391
metric tons, or 41.7 per cent, of al1 Georges Bank groundfish landed in
Nova Scotia outside of District 26. Morwver, District 32 accounts for
most of the Iandings of groundfish from Georges Bank by small vesselsin
southwest Nova Scotia. In 1980, District 32 accounted for more than
three-quarters of the groundfish landed from Georges Bank by al1small
vessels'.Canada's suggestion to the contrary notwithstanding ',Fisheries
District 32 is not typical, in this regard, of any other part of far southwest
Nova Scotia '.
SECTION 2. The Srnail Vessels of Southwest Nova Scotia Do Not Rely
Significantly upon Georges Bank
A. "SMALL OFFSHORE V ESSELS
7. The "small offshore" fieet as defined by Canada consists of vessels
larger than 25.5 gross registered tons (GRT) in displacement but shorter
than 65 feet in length '.The number of "small offshore" vesselslocated
outside of far southwest Nova Scotia that fish on Georges Bank appearsto
be negligible6.According to the data provided by Canada, during the
'AI1of the groundfishfromGwrges Banklandedin District 26 werecaught hy
large.wrporatc-owncd.offshoretrawlers.Theselandings,however.wmpriseonly
a small partof that District'stotal groundfishlandings fromreas.Appcndix
B.Morwver.theyrepresent anevensmallerpart of thc valueof total landingsof
al1 species in the District. AppendixC. This is bccause most of the large,
corporate-ownedscallopvesselsalso are located in District 26. United States
Counter-Memorial. Annex 4, Vol. III,para. 26; Canadian Counter-Memorial,
Annexes,Vol.II, para. 147.
'In 1980,FishcriesDistrict32 acwunted for 75.5per cent of the GeorgesBank
groundfishlandedinsouthwestNovaSwtia bysmallvesselsand 76.4per centof
suchlandingsin far southwestNovaSwtia. Appendix A.
'Canadian Counter-Mcmorial,para. 315.
'In 1980,District 32acwunted for 58.9 per cent of thegroundfishcaught on
Gwrges Bankby al1"small offshore"vesselsand 100per cent of the groundfish
caughtbyal1inshorevcssclsthcre.
'CanadianMemonal,Annexes,Vol.IV, Annex5, P. 90.
'The "smalloffshore"vcssclsoutsideofCarsouthwestNovaScotialookonly74of
the 3,648metrictonslandedby al1"smalloffshore"vesselsfromGwrges Bank.
TableA.678 GULF OF MAINE 151
years 1978 through 1980, there were approximately 300 "small
offshore" vessels based in far southwest Nova Scotia '.
8. Only one-quarter of the "small offshore" vessels based in far
southwest Nova Scotia reported that they had made even a single
voyage to Georges Bank. Even fewer reported landing groundfish from
Georges Bank. In 1978, 72 "small offshore" vessels based in far
southwest Nova Scotia reported making at least one voyage to Georges
Bank, but only 60 reported any landings '.In 1979, the comparable
figures were 83 making at least one trip and 71 reporting landings l,
and, in 1980, 69 vessels made at least one trip and 56 reported
landings '.On average, for the period 1978 through 1980, some 60 of
the approximately 300 "small offshore" vessels based in far southwest
Nova Scotia, or only about 20 per cent, reported that they had caught
any groundfish on Georges Bank.
9. The total groundfish catch taken from Georges Bank in 1980 by
al1"small offshore" vessels based in southwest Nova Scotia was 3,648
metric tons ', which represented only 2.6 per cent of the total
groundfish landed by al1vessels in southwest Nova Scotia '.In al1but
two of the Districts in southwest Nova Scotia, groundfish landings by
"small offshore" vessels from Georges Bank account for between O
and 5 percent of the total landings of groundfish '.Indeed, in 1981, of
the approximately 60 "small offshore" vessels in far southwest Nova
'CanadianMemorial,Annexcs,Vol.IV, Annex34,p. 189.
'CalculationsbascduponCanadianCounter-Memorial.Annexes,Vol.IV, Annex
34, p.189;andCanadianCounter-Memorial.Annexes,Vol.11,Table 12.
' Amendix A. The actual landingshy the "small offshore" flcct fromGwrges
Bank may bceven smaller. Captains of thesc vessels mayhave misreported
catchestaken in Subdivision4X as taken in Subdivision52 in order to avoid
Canadianquota restrictions.Canadianpressreportsindicatethat "[the draggers
will continueto fishcod in 4Xbut say it was caught on Gwrges Bank. Since
Gwrges Bankis the centreof an internationalboundarydispute,DFO [Depart-
mcntsof Fisheriesand Occans]willprobablycloseits cyeson thismis-reporting,
andeverythingwillbchunky-dory."SeeSou'wesrer.1Aug. 1983.p. 2.Appendix
E.
'AppendixB. As Canada hasnot providcdthe data relatingto the total landings
of the "smalloffshore"flcctinarcasotherthan Subdivisi52. it isnot possible
tocalculatethe contributionofGeorgesBank tothe total landingsofthcsevcsscls.
'Only inFisheriesDistricts32 and 33, locatedin far southwcstNovaScotia, do
the groundfishlandingsby"smalloffshore"vesselsfromGwrgesBankcontribute
more than 5 per cent. In thwe districts, in 1980,landingsfrom Gwrges Bank
contributcd only 9.1 and 11.4pcr cent respectively,to the total landingsof
groundfish.AppendicesA and B. 171 ANNEXESTO REPLYOF THEUNITED STATES 679
Scotia that fished on Georges Bank, Canada has identified only two as
relying exclusively upon Georges Bank for groundfish '.
10. The inshore fleet, which is made up of vessels under 25.5 GRT ',is
numerically the largest fleet in Nova Scotia. There are approximately
6,500 inshore vessels located in Nova Scotia, of which some 3,000 are in
southwest Nova Scotia and over 2,000 in far southwest Nova Scotia'.
Canada nonetheless reports that the inshore vessels of far southwest Nova
Scotia made only 579 trips to Georges Bank in 1980'. Consequently, at
most, only 579 of the more than 2,000 inshore vessels in far southwest
Nova Scotia fished on the Bank that year. In al1 likelihood, however,
many vessels made more than one such trip, and thus far fewer than 579
of them fished on Georges Bank '.These 579 trips resulted in total
landings of only 2,459 metric tons of groundfish from Georges Bank in
19806. This catch represented no more than 6.8 per cent of the total
groundfish landings in 1980 by inshore vessels in southwest Nova Scotia '
and only 1.8 per cent of the total groundfish landings by al1 vessels in
southwest Nova Scotia. Appendix B.
-
'Canadian Counter-Memorial. AnnexesV , ol.II, para. 175.
'Canadian Memorial, para. 148.
'Nova Scoria Fisheries Ailas. Nova Scotia Dept. of Fisheries, 1982p , p. 20-21.
Depositedwith the Court hy the United States in connection withits Counter-
Memorialpursuant to Article 5q2) of the Rulesof Court.
'Canadian ~ounter-~emorial, Annexes, Vol. IV, Annex 30. Canada did not
kgin to record catches in offshoreareas by inshoreboats until 1980.[Canadian
Counter-Memorial. AnnexesV , ol.II, para. 177.1Canada has madeavailahledata
onlyfor that year and for 1981.
'Becauseof the limited fuel and fish-storagecapacities of these vessels,they
usuallymaketrips lastingno longerthan a fewdays. Assumingthat mostvessels
made multiple trips to GeorgesBank, the numher of vessels involvedwould be
substantiallyreduced. For example,if each vesse1made only 10 trips during the
1980 summer fishing scason, less than 60 inshore vessels wouldhave fished on
GeorgesBank.
Canadian Counter-Memorial.Annexes,Vol.IV, Annex30.
'Landingsof groundfishin southwestNova Scotia in 1980 frominshorewaters
amounted to 33,489 metric tons[AppcndixDl. Added ta landings from Gwrge's
Bank,this amountsto 35,948metrictons.Evenif it isassumedthat there wereno
landingsof groundfish from any other offshore area (e.g.,BrownsBank),Georges
Banklandingsof2,459metric tonsstillwouldhaveaccounted foronly6.8pcr cent
of total groundfish landings.680 GULFOF MAINE i81
11. Canada asserts that the small vessels of Cape Sable Island are
particularly dependent upon Georges Bank '.Nevertheless, Canada has
failed to suhstantiate the extent to which the small vessels that land
groundfish from Georges Bank in District 32 (or, for that matter, that
land them elsewhere in southwest Nova Scotia) rely upon Georges Bank
as opposed toother grounds. There were 39 "small offshore" vessels hased
in District 32 in 1980 l.Of these, nearly one-half did not fish on Georges
Bank at al1 ', and, as Canada States, only two vessels of this class relied
"exclusively upon this ground" in 1981 '.
12. Canada also has failed to furnish evidence from which to conclude
that the inshore vessels on Cape Sable Island rely significantly upon
groundfish caught on Georges Bank. In 1980, the inshore vessels of
District 32,which were the only vesselsof that type in Canada toland any
groundfish from Georges Bank', landed only 2,459 metric tons'. In that
same year, these vessels landed 12,176 metric tons of groundfish from
inshore waters6. Even were it to be assumed that they landed no
groundfish at al1 from offshore'grounds other than Georges Bank, the
Georges Bank landings would bave amounted to only 16.8 per cent of the
total groundfish landings of these vessels '.In terms of value, the reliance
of this fleet upon Georges Bank is even smaller. In 1980, the value of al1
'CanadianCounter-Memorial. para3 . 15.
'CanadianCounter-Memorial. Annexes ,ol.IV, Annex34,p. 189.
'Canadian Counter-Memorial,Annexes,Vol.II, para. 175.It is not clear from
the Canadianstatementthat thesetwovessels relied exclusively upo groundllsh
caught on GeorgesBank,or fishedfor otherspecieseither on GeorgesBankor
elsewhere.
'Total landingsofgroundfish fromGwrges Bank byinshorevesselsfor 1980were
2.459 metric tons. [Canadian Counter-MemoriaA l,nnexes,Vol. II,para. 177.1
CanadianCounter-Memorial. Annexes V,ol.IV,Annex30,gives1980District 32
groundfish landings from Georges Bank byinshorevesselsas 2,459.3metric tons.
Allowingfor roundingerrors,it is clear that the entirecatch of groundfish from
GwrgesBank hy inshorevesselsin 1980waslandedin District 32 alone.
'AppendixA.
"ppendix D.
'Total landingsundoubtedlydid includseomelandings from other offshorbeanks,
suchas the muchcloserGermanand BrownsBanks.Suchlandingswouldreduce
the percentageevenfurther, but informationconcerningthese landingshas not
beenprovidedbyCanada. ANNEXESTO REPLYOF THE UNITED STATES 681
inshore landings in District 32 was $14,629,674 '.The groundfish landed
from Georges Bank by inshore vessels was valued at $1,228,148 '.The
value of those landings amounted only to 7.7 per cent of the total '.
SECTION 2. The Small Fish Processing Plants of Soutbwest Nova Scotia
Do Not Rely Significantly upon Georges Bank
13. Canada also suggests that landings of groundfish from Georges
Bank make a significant contribution to the operations of the small fish
processing plants in southwest Nova Scotia, and especially those in far
southwest Nova Scotia '.Canada has not provided theCourt with the data
necessary to calculate the actual contribution of those groundfish to the
operations of these plants. In the absence of these data, the United States
assumes thatthe groundfish processed by the many small plants located in
the smallports of southwest Nova Scotia is that landed by the small
vessels that alsooperate out of these ports.
14. Groundfish landings from Georges Bank by small vesselscontribut-
ed only 4.4 per cent to total groundfish landings in southwest Nova Scotia
and 8.4 per cent to total groundfish landings in far southwest Nova
Scotia '.There is thus no basis to conclude that groundfish from Georges
Bank is vital to the survival of any of the small fish processing plants of
'Landings from inshore waters of groundfish were valucd al 1980 Can.S
6,238,991,Landingsof lobsterfrom inshorewaters werevalucdal 1980 Cari.$
7,662,020.Landingsof "other" spies frominshorewaterswerevalucdat 1980
Can.S728,663.Thevcsselsof theinshorefieetof CapeSableIslandare designcd
primarily forinshorelohsteringin the winter months.whenthe scasonisopen in
that area.[Fislierman'sIdormation-1982. Fisheriesand OccansCanada. p.46;
depositedwith the Court by the UnitedStates in conncctionwith ils Counter-
Memorialpursuantto Article5q2) of the Rulesof Court.]The summer fisheries
forgroundfishand"other" speciesarecarriedoutlargelyfromthcsesamcvcssels,
hencethe landingsof the fieetas a wholcincludeal1threespeciesgroups.
'The total valueof al1groundfishlandcdin District32 in 1980was 1980Cam$
11,025,382.[AppendixD.]Total groundfishlandings wcrc 22,075 mctric tons,for
an average priceof 1980Can3499.45 per metricton. GeorgesBanklandingsby
inshorevessclswcre 2,459 mctric tons. which,whenmultiplicdby the average
price,yields1980 Cari.$1,228,147.50.
'This calculationassumesthal therc wereno landingsby inshorcvcssclsof any
speciesfrom offshoregroundsotherthan groundfishfromGeorgesBank.
'Canadian Counter-Mcmorial,paras. 294, 308, 309,and 315.
'Appendix B.682 GULFOF MAINE [Io]
southwest Nova Smtia ',especially in view of the availability of ample
and easily accessible alternate sources of groundfish for both the largeand
srnall-vesse1ficets of southwest Nova Smtia '.
'The United States cstimates that, even on Cape Sable Island, small vessels
land4 from GeorgesBank only 20.9 per cent of the 1980groundfish landings.
[AppendixB.]This calls into questionthc accuracy of Canada'sunsubstantiated
reportsthat, "[OPthe 20orso fish plants(somevery small),mosl report that the
bulk dtheir fishwmes fromGewrges Bank", andof its speculativeassertionthat
"[pjrobablyat lcast half of thc total workforceengagedin fish processingwould
losctheirjobs." [CanadianCounter-Memorial. para.315; emphasisadded.]
' UnitedStates Counter-Memorial.Annex4, para. 58. ANNEXESTOREPLYOFTHEUNITEDSTATES 683
AppndixAtoAnoex32
D1sTRIBuTIoN OF1980GEORGEBANKGROUNDFICSHTCHWïTHIN
SOUTHWE N OVASCOTIAYVESSELATEGOR (ANDIN GNMETRI CONS)
[Norreproduced]
AppendBto Annex32
[Norreproduced]
AppodiC tnAnoex32
[~Voreproduced]684 GULFOFMNNE
AppendixDtoAuuex32
NOVASCOTI hSHORE,OFF~HOR AEDTOTALLAKDING BSDISTRICFOR 1980
(VOLUME~hMETRIT ONSV, ALCENCAN.$1980)
(Source:ComputerdabasemaintainedbytheDept.ofFisheriesandOceans,
Canada.)
[Nolreproduced]
AppeodixEtoAmex 32
[Nolreproduced] ANNEXESTO REPLYOFTHE UNITEDSTATES
Annex33
A TECHNICADESCRlF'IONTHELIMIIS; ISTANENDhEAS USEDIN THE
@@ PRO~RTIONAL ~TYDEPICTE ATFIGURE3SAND35OFTHEUNITEDTATES
0 O MEMORIAFIG,RE24AND25OFTHEUNITEDTATECOUNTER-MEMO ANDIAL,
~GURES2 AND3OFTHEUNITEDTATERSEPLY
@.@
1. This Annexwnsists of three parts:
-Part 1 is a technical descriptionof Figures 34 and 35 of the
@@ United States Memorial;
-Part IIis a technical descriptionof Figures 24 and 25 of the
@@
United States Counter-Memorial;
@@ -Part 111is a technical descriptionof Figures 2 and 3 of the
United States Reply.
PART 1
2. Identical inner, lateral, and outer limits were used in the United
States Memorialto applythe proportionality testto the adjusted perpen-
@ dicular line proposed by the United States (Figure 34) and to the
@ equidistantline (Figure35).
3.The United States wastline was measured alongthe sinuositiesof
thewast, generally followingthe low-water line.Straight-line segments
were measured fromthe southeasternmost pointof Cape Cod to the
northernmostpoint of MonomoyIsland and fromthe southernmost point
of MonomoyIsland to'the northeasternmostpoint of Nantucket Island.
The total United States wastline employing thismethodis approximately
1,063 nautical miles. The followingcharts, produced by the National686 GULF OF MAINE 121
Ocean Service, United States Department of Commerce, were used (al1
charts have a scale of 1:80,000):
CHART NUMBER
4. The Canadian coastline was measured along the sinuosities of the
coast,'followingthe low-water line, from a point'northeast of Halifax ' to
Cape St. Marys. A straight-line measurement was made from Cape St.
Marys to the international boundary terminus. The total Canadian
coastline employing thismethod is approximately692 nautical miles.The
followingcharts, produced by the United States Defense MappingAgency
Hydrographic/TopogrC aepnti, were used:
CHART NUMBER SCALE
United States-to-Canada Coastline Length Ratio: 1,063:692=61:39
SECTION 2. Limits for the Proportionality Test
5. lnner Limits: Coastlines described above.
Lateral Limits:Perpendiculars(l44O)to the general directionof the Coast
(549 drawn fromNantucket Islandand froma point northeastof Halifax '.
This point is dciermineby extending the perpendicular io the gencrnl direction
of the coasi draun from the Chirncctu Isihmus to ihc p31whish 11intcrçeci
ihc Ailaniic scîbudrd oNOV~ Sc0113The gcogrîphical cuurdinaies of this poini
are a~proximaicly 14°37'S.'630 17'W.as deiermined uiih referencetu Canadian
"hart ~L/C 4003; 20 April 1979 edition. and the Carerreerof Canada (Nova
Scotia. 1979).p. 40.. . , .
'Seen. 1. supra. . I31 ANNEXESTO REPLYOFTHE UNITEDSTATES 687
Outer Limit:Straight line connecting points on the lateral limits 200
nautical miles from the respective coastlines.
SECTION 3. Area lncludein the Proportionality Test
6. The area enclosed by the above limits is approximately 118,018
square nautical mile',as measured on Canadian chart L/C 4003,
edition of 20 April 1979.The followingarea calculations were made on
this chart:
@ Figure 34: The division of this area by the adjusted perpendicular
line proposedby the United States (insquare nautical miles):
UnitedStates=73,857
Canada=44,161
United States-to-Canada Area Ratio=73.857:44,161=63:37
@ Figure35: The divisionof this area by the equidistant line (insquare
nautical miles):
United States=42,821
Canada=75,197
United States-to-Canada Area Ratio=42,821:75,197=36:64
PART II
7. Identical inner, lateral, and outer limits were used in the United
States Counter-Memorial to apply the proportionality test to both the
@ adjusted perpendicular line proposedby tlie United States (Figure 24)and
O to the Canadian line (Figure 25).
SECTION 1. Coastline Lengths
8. The coastline lengths (in nautical miles) were measured in the
followingmanner:
A. United States Coastline
International boundary terminus toCape Ann 210
Cape Ann to NantucketIsland - 84
Total 294
'This area omits"ExcludcdArea'!,whichisdefinbytwolinesdrawnfrom
theagreedstartingpoint-one perpenditothegeneral direcoftheCoast.
the other parallel to the generaldirectionof the coast-to the respective
coastlincs. 688 GULF OFMAINE 141
B. Canadian Coastline
Internationalboundary terminus to Cape Sable 100
Cape Sable to a point northeast of Halif'x - 125
Total 225
United States-to-Canada Coastline Length Ratio=294:225=57:43
SECTION 2. Limits for the ProportionalityTest
9. Inner Limits: Straight lines connecting the points described in
Section 1.
Lateral Limits: Perpendiculars (144") to the general direction of the
wast (54O)drawn from Nantucket Island and from a point northeast
of Halifax '.
Outer Limit: 1000-fathom-depth contour as depicted on Canadian
chart L/C 4003, edition of 20 April 1979.
SECTION 3.Area Includedin the Proportionality Test
10. The area enclosed by the above limits is approximately 57,881
square nautical miles2, as measured on Canadian chart L/C 4003,
edition of 20 April 1979. The following area calculations were made
on this chart:
Figure 24:The division of this area by the adjusted perpendicular
@
line proposedby the United States (insquare nautical miles):
United States=35,912
Canada= 21,969
United States-to-Canada Area Ratio=35,912:21,969=62:38
@) Figure 25: The divisionof this area by the Canadian line (in square
nautical miles):
United States=24,208
Canada= 33,673
United States-to-Canada Area Ratio=24,208:33,673=42:58
PART III
11. Identical inner, lateral. and outer limits are used in the United
States Reply to apply the proportionality testto the line proposedby the
@@ United States in 1976(Figure2)and to the 1976Canadian line (Figure3).
'Seep.2.n. 1.supra.
'Seep.3,n. 1,supra. [SI ANNEXESTO REPLYOF THEUNITED STATES 689
SECTION1. Coastiine Lengths
12. The coastline lengths (in nautical miles) were measured in the
followingmanner:
A. United States Coastline
International boundary terminusto Cape Ann 210
Cape Ann to Nantucket Island - 84
Total 294
B. Canadian Coastline
International boundary terminusto Cape Sable 1O0
Cape Sable to a point northeast of Hali'ax - 125
Total 225
United States-to-Canada Coastline Lengthatio=294:225=57:43
SECTION 2.Limitsfor theProportionaiity Test
13. Inner Limits:Straight linesconnectingthe points describedabove.
Lateral Limits:Perpendiculars(144O)to the general directionof the Coast
(549 drawnfromNantucket Island andfroma pointnortheastof Halifax '.
Outer Limit: 1000-fathom-depth contour as depicted on Canadian
chart L/C 4003, editionof 20 April 1979.
SECTION 3.Area Included intheF'roportioasiityTest
14. The area enclosed by the above limits is approximately 57,881
square nautical miles'.as measurcd on Canadian chart L/C 4003, cdition
of 20 April 1979.The followingarea calculations weremadeon thischart:
Figure 2: The divisionof this area by the lineproposedby the United
@ States in1976(insquare nautical miles):
United States=31,181
Canada=26,700
United States-to-Canada Area Ratio=31,18 1:26,700= 54:46
@ Figure 3: The division of this area by the 1976 Canadian line (in
square nautical miles):
United States=26,037
Canada=31,844
United States-to-Canada Area Ratio=26,037:31,844=45:55
'Secp. 2,n.1, supra.
'See p.3. n. 1.supra. Annex34
TLCIISICA~KFORWATIOVASSOCIAT E'TH THEAPPI.ICATIOF THE
~OWRTIOYALII 1TESTIV THEKESTRI ClAREA LIMITE BYTHECOASTLIVES
BETWEEN NANTUCK ILAND AND CAPESABLE
1. This Annex consistsof fivetables and one figure.
2. Table A indicates the results achievedwhen the proportionality test
is applied to the claims set forth by the Parties in 1976in an area defined
as follows:the outer limit is the 200-nautical-mile limitas measured from
the respective national baselines;the lateral limits are perpendiculars to
the general directionof the coast drawn from Nantucket Island and Cape
Sable; and, the coastline is measuredby fivealternate methods.
3. Table B indicates the results achievedwhen the proportionality test
is appliedto the claims set forth by the Parties in 1976,in an area defined
as follows:the outer limit is the 1,000-fathom-depthcontour; the lateral
limits are perpendiculars to the general directionof the coast drawn from
Nantucket Island and Cape Sable; and, the coastline is measured by five
alternate methcds.
4. Table C describes thearea calculations reflectedin Tables A and B.
5.Table D describes fivealternative methcds for measuring the length
of the coastline between Nantucket Island and Cape Sable.
6. Table E lists the coastal points used in the five alternate methods
employed inmeasuring the coastline betweenNantucket Island and Cape
Sable.
7. Figure 1: "United States and Canadian Coastal Points Referred to
@
in This Annex for the Purpose of Measuring the Coastline Between
Nantucket Island and Cape Sable under the Proportionality Test". This
figure depictsthe coastal points referinTableE of this Annex. ANNEXESTO REPLVOF THE UNITEDSTATES
TABLE A
UNITED STATES-TO-CANADA
PROPORTIONAllTY RATIOS
Lateral Limits: Perpendicular (144O) to the General
Direction of the Coast (54O)at Nan-
tucket Island and at Cape Sable, Nova
Swtia.
Outer Limit: 200 nautical miles measured from the
wastlines.
UnitedStates: Canada
Divisionof Area
Coastüne 1976 . 1976
Coastline Length United States Canadian
Method ' Ratio ' Claim' , Claim '
1. Single-line 71:29 57:43 4753
5. buidistant basepoint-
line 70:30 61:39 52:48
'A description of the wastline methodology and the distances involvedis
providedin Table D of this Annex.
'A description of the area measurements is provided inTable c of this
Annex. GULFOFMAINE [31
TABLE B ,..
UNITEDSTATESTO-CANADA -
PROPORTIONALITYRATIOS
Lateral Limits: Perpendicular (144O)to the General
Direction of the Coast (54O)at Nan-
tucket Island and at Cape Sable, Nova
Scotia.
Outer Limit: 1000-Fathom-DepthContour.
UnitedStates:Canada
Divisionof Area
Coastline 1976 1976
Coastline Length UnitedStates Canadian
Metbod ' Ratio ' Claim ' Claim '
1. Single-line 71:29 67:33 53:47
5. Equidistantbasepoint-
line 70:30 73:27 5941
'A descriptionof the coastline methodologand the distancesinvolvedis
providedin Table D of this Annex.
'A descriptionof the area measurementsis providedin Tab1e.Cof this
Annex. ANNEXESTO REPLYOFTHEUNITEDSTATES 693
TABLEC
AREACALCULATIONS
All area measurements were calculated on Canadian chart L/C-
4003, 20 April 1979 edition. Becausethe scale of the chart changes at
each parallelof latitude, thefollowingscaleswereusedin the givenareas:
Area ofchart Scale
South of 40°N
40°N to 42ON
42ONto 44"N
North of 44ON
All areas are in square nautical miles and rounded tothe nearest 50
square nautical miles. GULFOFMAINE
CALCULATIONSFOR TABLE A
United States:Canada
Divisionof Area
1976 1976
Coastline United States Claim CanadianClaim
Method (Total Ares)' potal Area) '
1. Single-line 31,850 : 24,100 28,300 : 31,350
57:43 = 1.32:l 4753 = 0.90:l
(55,950) (59,650)
5. Equidistant basepoint-
line 36,950 :23,500 33,350 : 30,800
61:39 = 1.57:l 5248 = 1.08.1
(60,450) (64,150)
'There arc diffcrenttotal areas for the two claimsbecauseuse of the 200
nautical-mile limiats the outerlimitfor theproportionatest raiscsthe "grey
area" issue(whichmay be dealt with by the PartiesundcrArticle VI1 of the
SwcialAgreement) S.eeUnitedStatesReply,paras.243-245. ANNEXESTO REPLY OFTHE UNITED STATES
CALCULATIONS FORTABLE B
UnitedStates:Canada
Divisionof Area
1976 1976
Coastline Total UnitedStates Canadien
Method Ares Claim Claim
1. Single-line 34,300 23,150 :11,150 18,050: 16,250
67:33= 2.08:l 53:45= 1.11:l
4. Twelvelthreeline
5. Equidistant
basepoint-line 38,900 GULF OFMAINE 17]
TABLE D
COASTLINE LENGTHS
For purposesof the proportionality test, simplifiedcoastlines may be
used to measure the coastline length. Five alternate methcds of simplify-
ing the coastline betweenNantucket Island and Cape Sable are described
hereinafter.
All distances are in nautical milescalculated on gecdetic lines, using
the 1866 Clarke spheroid and 1927 North American datum. Letters and
@ numbers in parentheses refer to symbols depictedon Figure 1.
1. Single-linecoastline Length
United States:
International boundary terminus (A)
to Nantucket Island (V) = 249
Canada:
International boundary terminus (A)
to Cape Sable (15) = 100
Ratio: 249:lOO = 71:29 = 2.49:l
2. Two/one-line coastline
United States:
International boundary terminus (A)
to Cape Ann (P) = 210
Cape Ann (P)to Nantucket Island (V) = 84
Total 294
Canada:
lnternational boundary terminus (A)
to Cape Sable (15) = 100
Ratio: 294:100 = 75:25 = 2.94:l[al ANNEXESTO REPLYOFTHE UNITED STATES
3. Three-hieconsthe
United States:
International boundaryterminus(A)
to Cap Elizabeth(N)
Cape Elizabeth(N) to Cape Ann (P)
Cape Ann (P)to Nantucket Island(V)
Total
Canada:
International boundaryterminus(A)
to Whipple Point(8)
WhipplePoint (8)to Cape Fourchu(10)
Cape Fourchu(10)to Cape Sable (15)
Total
Ratio: 307:101 = 75:25 = 3.04:l
United States:'
International boundaryterminus(A)
to Great Wass Island(H)
Great Wass Island(H)to Mount Desert
Island(1)
Mount Desert Island (Dto Marshall
. .
Point(L)
Marshall Point (L)to Cape Elizabeth (N)
Cape Elizabeth (N)to Portsmouth (O)
Portsmouth (0) to Cave Ann ,P.
Cape Ann (P)to os t(Q)n
Boston(Q)to Scituate (R)
Scituate (R) to Plymout(S)
Plymouth(S) toCape Cod(Provincetown-T)
Cape Cod(Provincetown-T)to Cape Cod
(Nauset Beach-U)
Cape Cod(Nauset Beach-U)to Nantucket
Island (V)
Total
Canada:
Canadian threeline wastline
described inpara. 3, supra
Total
Ratio: 345:101 = 77:23 = 3.42:l698 GULF OMAINE
5. EquidiitantBasepointcoastline
United States:
Sail Rock(B)to unnarnedPeninsula(C)
Unnamed Peninsula(C)to LongPoint (D)
Long Point(D)to North Rock (E)
North Rock(E)to Machias Seal Island (F)
Machias Seal Island (F)to Machias
Seal Island(G)
Machias Seal Island (G)to Mount Desert
. .
Mount Desert Rock(J)to Mount Desert
RockIK)
~&t ~iert Rock(K)to Matinicus
Rock(M)
Matinicus Rock (M) to Ca~e Cod (Nauset
Beach-U) . .
CaIsland(V)auset Beach-U) to Nantucket
Canada:
Grand Manan Island(1)to Grand Manan
Island (2) . .
Grand Manan Island (2)to Grand Manan
Island 13)
Grand ma sland (3)to Grand Manan
Island (4)
Grand Manan Island (4)to Grand Manan
Island(5) . .
Grand Manan Island (5)to Grand Manan
Island(6)
Grand m ah a Iland(6)to Yellow
Ledge(7) . .
YellowLedge (7)to Gull Rock(9)
Gull Rock(9)to Cape Fourchu(10)
Cave Fourchu(10)to Gannet RockIl 1)
ann nock(1l)to DevilsLimb (12)'
DevilsLimb (12)to Seal Island (13)
Seal Island(13)to Seal Island (14)
Seal Island (14)to CapeSable (15)
Total
Ratio: 269:114 = 70:30 = 2.36:l (111 ANNEXES TO REPOFTHEUNITED STATES
TABLE E
COASTAL POINTS
This tablélists the coastal points that were used to measure the coastlinein the five
alternate methods presentedin Table D. This list includes:the geographic coordinates
for each basepoint. the source from which the coordinate values werederived, and the
@) letter or number symbolthat depicts the basepoint on Figure 1of this Annex.
UNITED STATES COASTALPOINTS
LetterjNumber GeographicalLocation
@) on Figure 1 Name Coordinates Source'
A International 44" 46'35."346N U.S.-Canada
boundary terminus 66O54'11."253W Agreemént
B Sail Rock, Me. 44' 48'.73N NOS 13325,
66O56'.77W 1lth ed.,
1 May 1982
C Unnamed.Peninsula, 44O41'.37N NOS 13325,
. Me. 67O08'.25W 1Ith ed..
1 May 1982
D Long Point, Me. 44O40'.10N NOS 13325,
67OOY.22W 1ith ed.,
I May 1982
E North Rock , e. 44O32'.25N NOS 13325,
67O05'.17W 1Ith ed..
1 May 1'982
F Machias Seal 44' 30'.40N NOS 13325,
Island, Me. 67' 05'.63W i lth ed.,
1May 1982
G Machias Seal 44O29'.97N NOS 13325,
Island, Me. 67O06'.08W 1lth ed.,
1May 1982
'NOS refers to charts produced by the National Ocean Service, United States
Department of Commerce. Letter/Number GeographicalLocation
@ on Figur1 Name Coordinates Source
H Great Wass 44" 26'.98N
NOS 13325,
Island,Me. 67O34'.77W IIth ed.,
IMay 1982
MountDesert 44" 13'.30N NOS 13312,
Island, Me. 68O2O1.3OW 17thed.,
2 May 1981
Mount Desert 43O58'.18N NOS 13312,
Rock.Me. 68" 07'.53W 17thed.,
2 May 1981
Mount Desert 43O5g1.03N NOS 13312,
Rock.Me. 68O07'.62W 17thed.,
2 May 1981
Marshall Point, 43O5S1.00N NOS 13302,
Me. 69O1S1.6OW 14thed.,
26 Feb. 1983
MatinicusRock, 43O46'.95N NOS 13302,
Me. 68O5I1.32W 14th ed.,
26 Feb. 1983
Cape Elizabeth, 43O33'.90N NOS 13288,
Me. 70° 1If.8OW 27th ed.,
12 Feb. 1983
Portsmouth, N.H. 43O04'.52N NOS 13286,
70° 40'.00W 23rded.,
9 Apr. 1983
CapeAnn, Ma. 42O34'.76N NOS 13278,
70° 39'.65W 19thed.,
5 Mar. 1983
Boston,Ma. 42O21'.47N NOS 13267,
70° 59'.19W 22nded.,
17 Oct. 1981
Scituate, Ma. 42O12'.20N NOS 13267,
70° 42'.80W 22nd ed.,
17Oct. 1981
Plymouth.Ma. 42O00'.2SN NOS 13246,
70" 36'.00W 26th ed.,
17July 1982
Cape Cod 42O04'.75N NOS 13246,
(Provincetown, Ma.) 70° 10'.00W 26thed.,
17July 1982 (131 ANNEXESToREPLYOFTHuNlTE DTATES 701
Letter/Number GeographicalLocation
@ on Figure1 Name Coordinates Source
U CapeCod 41 48'.60N . NOS 13246.
(NausetBeach,Ma.) 69" 56'.00W 26th ed.,
17July 1982
V Nantucket 41 16'.70N NOS 13237,
Island.Ma. 69O57'.70W 30thed.,
18June1983 702 GULF OFMAINE
CANADIANCOASTALPOINTS
LetterlNumber CeographicalLocation
@ on Figure 1 , Name Coordinates Source
A International 44' 46'35".346N US.-Canada
hu.idary !ermirus 66O54'11".253W Agreement
1 Grand Manan Island 44O45'.62N The Canada
66O50'.10W Gazette.
Part 1,
26 Dec. 1970'
2 Grand Manan Island 44O44'.17N
The Canada
66" 51'.18W Gazette.
Part1,
26 Dec. 1970
3 Grand Manan Island 44" 43'.38N The Conada
66O51'.87W Gazette,
Part1,
26 Dec. 1970
4 Grand Manan Island 44O43'.18N The Canada
66' 51'.87W Gozette.
Part1,
26 Dec. 1970
5 Grand Manan Island 44O39'.68N The Canada
66O53'.45W Gozette.
Part 1,
26 Dec. 1970
6 Grand Manan Island 44" 39'.45N The Canada
66O53'.53W Gozette,
Part 1,
26 Dec. 1970
7 YellowLedge 44' 29'.02N The Canoda
66O51'.08W Gazette,
Part1,
26 Dec. 1970
8 ~hipple Point 44' 14'.20N The Canada
66' 23'.80W Gazette.
Part II,
9 May 1972 '
9 GullRock The Canada
Gazette.
Part11,
9 May 1972
'Thecoordinateslistedin TheCanadaGozette.which usecondsofar,havebeenconvertedto
dccimalfractionsofminutesofarc. 115-161 ANNEXESTOREPLYOFTHEUNITEDSTATES
Letter/Number CeographicalLocation
@) on Figure 1 Name Coordinates Source
10 Cape Fourchu 43O47'.97N The Canada
66" 10'.23W Gazette,
Part 11,
9 May 1972
II Gannet Rock 43O38'.43N The Canada
66" 08'.98W Gazette.
Part II,
9 May 1972
DevilsLimb The Canada
Gazette.
Part II,
9 May 1972
Seal Island The Canada
Gazette.
Part 11,
9 May 1972
The Canada
Seal Island
Gaze fie.
Part II,
9 May 1972
Cape Sable The Canada
Gaze fie,
Part II,
9 May 1972 704 GULFOF MAINE [Il
Annex35
A DISCUSSI OFNTHEUSE OF RHUML BINES NDGEODETL ICINEIN THISCASE
1. The purpose of this Annex is to respond to the statements in the
Canadian Counter-Memorial that the United States has acted contrary to
the expressterms of the Special Agreement through its use of charts that
depict rhumb lines, rather than geodetic lines. to show'the general
direction of the was'Not only is Canada mistaken in its interpretation
of the Special Agreement, but it is inconsistent in raising such an
assertion,inasmuch as Canada itself has used rhumb linesin its Memorial
and Counter-Memorial.
2. A rhumb line isa line that crossessuccesmeridiansat a constant
angle: On a Mercator map projection, a rhumb line is a straight line. On
other map projections, it is cuwed. A geodetic line (also known as a
geodesic)is the shortest distance betweenany two pointson the surface of
a spheroid.A geodetic line changes direction continuouslyas it crosses
successivemeridians, unlessit isdrawn alongthe Equator. On a Mercator
projection,a geodeticline iscuwed unlessit isdrawn alongthe Equator or
along a meridian, whereas on certain other projections, including a
Lambert Conformal projection,it appears ta be strai'.t
3.In criticizing the use of rhumb lines in the United States Memorial,
Canada cites Article IV of the Special Agreement. Article IV States in
pertinent part that:
"...the Parties in their presentationstothe Chamber shall .t..ize
the followingtechnical provisions:
.......................................
(b)All straight lines shall be geodeti'".nes
The United States doesnot interpret this part of the Special Agreement to
require the use of geodetic lines in every chart used by the Parties to
present their cases. but only to require that the boundaries proposed by
the Parties consist of geodetic lines. Such an interpretation is consistent
CanadianCounter-Memorialp.ara.91.
a 'For instance,Fig7of the CanadianMemorialdcpim thegeneral directofn
thecoastby straightlineson a Lambert Conformlrojection.Tho&straight
lins approximatearcsofgreatcircla, whichinturnapproximategmdlina.
'Smial Agreement.ArticlIV. 121 ANNEXESTO REPLYOFTHE UNITEDSTATES 705
with other provisionsof the Special Agreement that request the Chamber
to "describe the course of the maritime boundary in terms of geodetic
lines'"and to depict the boundary on charts "in accordance withArticle
IV "'.
4. This interpretation of Article IV also is suggested by the history of
the negotiation of the Special Agreement, which took place followingthe
decision of 14 March 1978 of the Court of Arbitration in the Angle
French Arbilration'. That decision concerned, in part, a disagreement
relating to the use of rhumb lines or geodeticlines in applying the Court
of Arbitration's decisionof 30 June 1977. In negotiating the terms of the
Special Agreement, the Parties sought to ensure that similar disagree-
ments did not arise in this case and that the final boundary to be
determined by the Court would be described in as precise a manner as
possible.
5. The United States, therefore, believes that it has satisfied the
requirements of Article IV by proposing that "the boundary should
consistof geodeticlines'" connectingcertain geographic coordinates.
6. Article IV of the Special Agreement was not intendedto hinder the
clear and concise presentation of the Parties' cases tothe Court. For
example,the general directionof the coast must be describedin terms of a
line that maintains a constant direction. Thiscan he achievedonly by use
of a rhumb line. Thus, the United States depicts straight lines on a
Mercator projection (rhumb lines) to illustrate this aspect of the case.
@Figure 7 of the Canadian Memorial, however, uses geodetic liiles to
illustrate general directionsof the coast. Canada describes the line that
passesthrough the Gulf of Maine area as havinga course of 67 degrees '.
This reasonably leads one tobelievethat, throughout its course, the line
maintains a constant bearing of 67 degrees, which technically is not
possible.As the United States noted in its Counter-Memorial ',Canada's
67-degree direction actually is an average of a number of different
directions along Canada's line from Long Island to Cape Race. These
directions range from 61 to 74 degrees. In'the Cape Cod-to-Cape Sable
~pdial Agreement,Article Il(2).
'Decisionof the Court of Arbitration of 14 March 1978 Concerningthe
Arbitration Betwecnthe United Kingdornof Great Britain and Northern
lrelandandthe FrenchRepublicon the Delimitationofthe Continental Shelf.
'United StatesMernorial.ubrnisions, p.215;UnitedStatesCounter-Mcmorial,
Subrnissions,. 21.
. @ ' CanadianCounter-Mernorialp.ara. 94; Fig.6.
'UnitedStatesCounter-Mernoriap l.ara.22,n. 1. 706 GULF OF MAINE 131
portion of the line, the directions range between 63 and 65 degrees.
Accordingly, for purposes of precision and clarity of presentation, a
rhumb line better illustrates a line of direction.
7. In most of its Memorial and Counter-Memorial. Canada itself has
shownrhumb linesrather than geodeticlines.Of the 99 maps producedby
Canada in its pleadings, 68 are on a Mercator projection, sevenare on a
Lambert Conformal projection, and 24 are unidentified. All of the
straightlines on the Mercator projection mapsare, by definition, rhumb
@ lines,not geodeticlines. For example, Figure 7 of the Canadian Counter-
Memorial depictsthe general direction of the coast between Casco Bay
and the Chignecto Isthmus not with a geodetic linebut with a rhumb
@ line.At Figure5 of its Counter-Memorial. Canada showsan "extensionof
the final azimuth of the international bound'". As this is a straight
line depicting a constant compass direction on a Mercator projection, it
also is a rhumb line, not a geodetic line'. An additional example is the
chart included in the pocket part of the Canadian Memorial. It is a
Mercator projection upon which are shown straight, or rhumb lines.
Canada'sownpractice thus confirmsthat Article IVshouldbe interpreted
as it has been by the United States, and tLat it should not be interpreted
in the excessivelyrestrictive manner suggested by Canada in its Counter-
Memorial.
8. The United States does not believethat any material distortion has
been created by either Party through the use of rhumb lines in its
presentations to the Court. Considerations of scale must be taken into
account. Lines depicted upon the small, page-size charts used by the
Partks in this case will appear to be essentially identical regardlessof
whether they are rhumb lines or geodetic lines. The United States will
continueto explainany calculation based upon line distances or directions
in order to prevent any possibleconfusion.
@ 'Fic.7 ofthe CanadianCounter-MemoriaflollowsimmediatelyuponCanada's
cnticismsofthe UnitedStatesMemorialin thisregaSee CanadianCounlcr-
@ Memorial. Fi6. andparas.91-94.
@ 'This figure,in whichCanadadepictsa general direction, immediycccdes
Canada's criticoftheUnitedStatesMemorialinthis regard.
'In fact, the initialgeodetic azimuthbetweenthe final two points on the
internationalboundaryis4O42'(measuredfromsouth),whichcorrespondsto
214O42('mcasuredfrom north. ydefinition,thisazimuth chas ntinuously,
evenalongthefinalsegmentoftheinternationalboundary,whichis2,383meters
in Icngth.SeeSwcial ReportNo. 3 of the InternationalBoundaryCommission,
RevisedDalofrom the Sourceof thSt.CroixRiverto theAllanlicOceanand
Maintenanceon rhir~ectionfro" 192101961.1962.p. 496.Turningpoint14
is44°47'38.819"N..66053'09.5 5urnW:a Point 15 (Terminus) is ANNEXESTO REPLYOF THE UNITEDSTATES
707
1,the undersigned, Davis R. Robinson,Agent of the United States of
America, hereby certify that each document included in the Reply or
Annexes submitted by the United States of America is an accurate
transcription, reproduction,or representation.
(Signed)
DAVIS R. ROBINSON
Aeent of the United States
-
of America
Reply of the United States of America