lNTERNATIONACOURTOFJUSTICE
PLEADINGSORAL ARGUMENTS, DOCUMENTS
CASE CONCERNING DELIMITATION
OF THE MARITIME BOUNDARY
IN THE GULF OF MAINE AREA
(CANADA/UNITED STATESOFAMERICA)
VOLUME III
Counter-MernofCanada
COUR INTERNATIONADE JUSTICE
MÉMOIRES.PLAIDOIRIEETDOCUMENTS
AFFAIRE DE LA DÉLIMITATTON
DE LA FRONTIÈRE MARITIME
DANS LA RÉGION DU GOLFE DU MAINE
VOLUME III
Contre-mémoduCanada INTERNATIONAL COURTFJUSTICE
PLEADINGS,ORALARGUMENTS, DOCUMENTS
CASECONCERNINGDELIMITATION
OFTHE MARITIMEBOUNDARY
IN THE GULFOF MAINE AREA
(CANADAIUNITED STATESOFAMERICA)
VOLUMEIII
Counter-Memorlf Canada
COUR INTERNATIONALEJUSTICE
MÉMOIRES,PLAIDOIRIESETDOCUMENTS
AFFAIRE DE LA DÉLIMITATION
DE LA FRONTIÈRE MARITIME
DANS LA RÉGION DU GOLFEDU MAINE
VOLUMEIII
Contre-mémoduCanada The caseconcerning Delimitalionof theMarilimeBoundaryin theGulfof
MaineArea, enteredon the Court's General List on 25 November 1981under
number 67, was the subject of a Judgment delivered on 12October 1984by
the Chamber wnstituted by the Order madeby the Court on 20January 1982
(Delimitationofthe MaritimeBoundaryin theGulfof MaineArea,Judgment.
I.CJ.Reporrs 1984,p. 246).
The pleadings and oral arguments in the caseare being published in the
following order:
Volume 1. SpecialAgreement:Memorial of Canada.
Volume II. Memorial of the United Statesof America.
Volume III. Counter-Memorial of Canada.
Volume IV. Counter-Mcmorial of thc United Statesof America.
Volumc V. Repliesof Canada andthe United Statesof America.
Volume VI. ~ommencemeniof Oral Areuments.
Volume VII. Conclusion of Oral ~r~uhents: Documents submitted to the
Court after closureof the written proceedings:orrespondence.
Volume VIII. Maps,charts and illustrations.
Canadafiled ifs Dleadinnsboth inEn~lishand in French.Althounh Canada
hastwo official languagesronly the ~nglish text of thosc documeni is repro-
duced on the ensuing pagesof thesevolumes, as Canada has infonned the
Reaistrvthat the En-lish iext should beseenasauthoritative for the.Du.oses
of rnte&retation.
Certain pleadings and documents of this edition are reproduced photo-
-.aohicallv from the orininal orinted text.
In addicon to thenoGa1 continuous pagination,thc Volumesfeatureon the
inncr margin of pagesa bracketedindication of the original pagination of the
Memorials. the Counter-Memorials. the Reoliesand certain Annexes.
Inintcrnal rcfcrences,bold ~omannume;als(in thetext or in themargin)arc
usedto refer to Volumesof this edition: if they are immediately followebya
oaaereference.this relatesto thenewoaeinaticn of thevolumein auestion.On
ihëother hand; the pagenumbcrswhictare precededby a reference10oneof
the pleading relate to the original pagination of that document and accord-
in-.v refer6 the bracketedoa2nation of thedocumentin auestion.
The main mapsand charis Ge reproducedin aseparatevolume (Vol. VIII),
with a renumbering, indicated by ringed numerals, that is also added in the
marain in Volumes 1-VI1 wherever wrres~ondine references aDDear: the
absenceof such marginal referencemeansthat thcmap or illustrit/on isnot
reproducedin the presentedition.
Ncither the..vo-nr.~h-nor the oresentationmaybe usedfor the ~. .oseof
interpretingthe texts reproduced.
L'affaire dela Délimitatiodelafr0ntièremaritimedansla région dugolfedu
Maine, inscrite au rôle général e la Cour sousle numéro67 le 25novembre
1981,a faitl'objet d'un arrêtrendu le 12octobre 1984par la Chambre consti-
tuéepar ordonnancedela Cour du 20janvier 1982(Délimitation delafrontière
maritimedansla région dugolfe duMaine, anér.CJJ. Recueil1984.p. 246).Vlll GULF OF MAINE - GOLFE DU MAINE
Les piècesde procédure écriteet les plaidoiries relatives à cette affaire sont
publiéesdans l'ordre suivant:
Volume 1. Compromis; mémoiredu Canada.
Volume II. Mémoiredes Etats-Unis d'Amérique.
Volume III. Contre-mémoire du Canada.
Volume IV. Contre-mémoiredes Etats-Unis d'Amérique.
Volume V. Répliquesdu Canada et des Etats-Unis d'Amérique.
Volume VI. Débutde la procédure orale.
Volume VII. Suite et fin de la procédure orale; documents présentés àla Cour
après la fin de la procédure écrite; correspondance.
Volume VIII. Cartes et illustrations.
Le Canada üdéposéses pieces de procédure écriteen anglais et en franqais.
Bien que le Canada ait deux langues officielles, seul le texte anglais de ses ecri.
tures est'reoroduit dans les volumes ci-dessus. le Canada avant fait savoir au
Griffe que; en cas d'interpretation. c'étaitle texte anglais qui devait faire foi.
Certaines pieces de la présenteédition sont photographiéesd'aprésleur texte
outre leu; pagination continue habituelle, les volumes comportent. entre
crochets sur le bord intérieurdes pages, l'indication de la pagination originale
des mémoires.des contre-mémoires~des réplique. . de certaines de leus an-
nexes.
S'agissant des renvois, les chiffres romains gras (dans le texte ou dans la
marge) indiquent le volume de la présente édition:s'ils sont immédiatement
suivTsiparuni r2férencede page. cétteréférincerenvoie a la nouvelle pagina-
tion du volume concerné. En re\anche. les numérosde page qui sont prtcédés
de I'indication d'une oicce de orocédurevisent la osgination originale de ladite
pièceet reniaient donc i la piginarion entre croiheis de la piècementionnée.
Les principales cartes sont reproduites dans un volume séparé (Vlll) ou elles
ont reçu un numérotage nouveau indiqué par un chiffre cerclé.Dans les vo-
lumes 1 àVII. les renvois aux cart~ ~~t illustrations du volume Vlll sont oortés~
en margeselon cenouveau numérotage, et l'absence de tout renvoi àla présente
éditionsignifie qu'une carte ou illustration n'est pas reproduite.
Ni la ,.oo-ra.hie ni la.oré-entation ne sauraient étreutiliséesaux fins de I'in-
terprétatioodes textes reproduits. CONTENTS -TABLE DES MATIÈRES
Couoter-Memorialof Canada - Contre-mémoire du Canada
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . .
The newUnited Statesline . . . . . . . . . . . . .. . . .
Proclamation ofan exclusiveeconomiczone bythe United States . .
Chapter 1. Briefreviewof theCanadian position . . . . . . . . .
Chapter II. General assessmeniofthe UnitedStatesMernorial . . .
Introduction . . . . . . . . . .
Seunreasonable claim that bears no relationshiu to the relevant cir-
cumstancesorto the history of thedispute . . . . . . . . . .
Section II. The United States Mernorial reduces equity 10 a matter
ofadministrativewnvenience . . . . . . . . . . . .. . .
Section III. The United States Memorial seeks to refashion geo-
graphy . . . . . . . , , . . . . . . , . . . . . . . .
Section IV. The United States Memorial misconstnies the legal
zonesin issue,andthe legalbasisofmaritimejurisdictionure of. .e.
SectionV. The United States Memorial divorces equitable princi-
plesfrominternational law . . . . . . . . .. . . . . . .
Section VI. The United States Memorial relies upon a precedent
that is not a ~recedentand a method that the Memorial does no1
apply .........................
Sefonns of coooeration that are fundamental to international order
Conclusion . . . . . . . . . . . . . . . . . . . . . . .
PART Il. RELEVAN CTIRCUMSTANCE . S. . . . . . . . . . . . . .
Chapter 1. Pointsofagreement . . . . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . .
Section 1. nie objectofthe dispute . . . . . . . . . . . . .
Section II. Geography . .. . . . . . . .. . . . . . . .
Section IV. Theconduct ofthe Parties ... . .. . . . .. . . . . . .
SectionV. Thecontinental shelf . . . . .. . . . . . . . . .
Conclusion . . . . . . . . . . . . . . . . . . . . . ..
Chapter II. Geography . . . . . . . . . . . . . . . . . . .
Section 1. The particular geographical situation in the Gulf of
Maine area is relevant to the delimitation: extraneous macro-
geographicalfactorsare not . . . . . .'. . . . . . . . .
' A. Definition ofthe relevantarea . . . . . . . . . . . . . GULFOF MNNE -GOLFE VU MAINE
Page
............ 30
C..The land boundaryic.................. 31
1. of theterritories ofthe Parti............ejuxtaposition
2. The international boundary terminus and the point of
commencementofthe singlemaritimeboundary ....
D .Thegeneral direction ofthe coasts ...........
1. Arbitrarypoints and parallellines.........
2. The falsehierarchyof coasts ............
Sethe coasts ofthe Partiesxhibitanoverallbalance in their confi-
guration.length and predominantlyoppositerelationship ...
A .Oppositeor adjacent coasts ..............
B .The generalconfiguration ofthe coasts .........
I. Concavityand convexity ..............
2. The sectorscomprisingtheGulf of Mainearea .....
3. Theinnennostsector ...............
C . lncidental specialfeatures: Cape Cod and Nantucket ...
D . Lengthofthe coastsintherelevant area .........
Section 11. Georges Bank isadjacent 10the coasts of Nova Scotia
and Massachusetts that abut the outer area; eastem Georges
Bankavv..tains to the coastof NovaScotia .........
A .The coastsabutting theouterarea ............
B . Distance and proximity: the geographical bais and implica-
tionsof thesourceoftitle ...............
C . Geographicallinks ..................
1. Physicalgeography ................
2. Human geography ................
Conclusion .......................
Chapter III.nie offshoreenvironment .............
Introduction .......................
Section . The continental shelf in the Gulf of Maine area consti-
tutes a single natural prolongation with particular geological
aff'initiesto thenorthea.................
A . Subsurfacestructures.................
B . Hydrocarbonpools .................
Section I. Gcorges Bank is a topographic fcaturc dcfincd by the
Great South Channel and the Northeast Channel and exhibiting
particular affinities to thenorthea............
A . Geomorphological features ..............
B. ThedefinitionofGeorges Bank ............
Section II. Georges Bank is part of an integrated oceanographic
systemwithparticularaffinitiesto the noriheast.......
A. Currents,temperature and salinity ...........
B. Influence ofthe Bayof Fundy .............
C. Fronts .......................XII GULFOF MAINE -GOLFE DU MAINE
Page
Section III. The United States Memorial relies upon extraneous
ewnomicconsiderations . . . . . . . . . . . . . . . . . 102
A. United States contentions regarding national wealth in
RSOUTWS . . . . . . . . . . . . . . . . . . . . . .
B. United Statescontentions renardina Stateactivities . . ..
C. United Statescontentions regardingmarketpower . . . . .
D. United Statescontentions regardinggovernmcnt assistance
Section IV. Canada's presence on Georges Bank reilects a vital
dependence; the United Stateshas no comparabledependence .
SectionV. The Canadian claim respects the interests of both
Canadaand the United States:the United Statesclaim doesnot .
A. Fishinginterests . . . . . . . . . . . .. . . . . . .
B. Human interests . . . . . . . . . . . . . . . . . . .
Conclusion . . . . . . . . . . . . . . . . . .. . . . .
Chapter V. Thehistoryofthe Georges Bankfishery . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . .
Section 1. The United States fishery has been in decline for fifty
yean . . . . . . . . . . . . . . . . . . . . . . . . .
Section II. The Canadian fishery has gr.wn from deep historical
mots...... ...................
A. The early development of the Canadian fishery on Georges
B. The evolution of the contemporary Canadian fishery on . . . .
Georges Bank . . . . . . . . . . . . . . . . . . . .
1. The swordfish fishery . . . . . . . . .. . . . . .
2. Theoriginsofthe scallop fishery . . . . . . . .. . .
3. The resurgenceofthe offshoregroundfish fishery . . . .
Conclusion . . . . . . .. . . . . . . . . . . . . . . .
Chapter VI. The conduct ofthe Parties . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . .
Section II. The United Stateshas acauiesced in and recoenized the .
Canadian equidistance claim and its conduct has Geated an
esto. .l infavourof Canada . . . . . . . . . . .. . . .
A. Theexerciseofcontinentalshelfjurisdiction bythe Parties .
1. Pennits . . . . . . . . . . . . . . . . . .. . .
2. The irrelevance of the remaining continental shelfactivi-
ties referredto bvthe United States . . .. . . . . . .
B. Communications between the Parties respecting activities on
thecontinental shelfinthe Gulf of Mainearea . . . . . . .
Section III. The conduct of the Parties indicates the equitable
nature of Canada'sclaim . . . . . . . . . . . . . . . . .
A. The diplomatic history of the continental shelf in the Gulf of
Mainearea . . . . . . . , . . . . . . . . . . . . .
B. The 1979Agreementon EastCoast Fishery Resources . . .
C. Thediplomatic historyofthe claims . . . . . . . . . . . Page
I. Theoriginsofthe dispute .............. 146
2. TheCanadian claim ................ 147
3. TheUnited States claims ............ 149
Section IV. The conduct of the Parties is fully consistent with
Canada's claimin al1otherrespects ............
A. The institutional history of international fisheries manage-
ment in theGulfof Maine area .............
I. The development of multilateral fisheries agreements for
theGulf of Mainearea ...............
2. Thehistory and purpose ofthe areas delineated under mul-
tilateralfisheriesagreements ............
8. Fisheries research before the extension of coastal State fish-
eriesjurisdictio...................
C. Management. conservation and enforcement hefore the
extensionofcoastalStatefisheriesjurisdiction ......
SectionV . The United Stateshas invoked irrelevantState activities
insupport of itsclaim ..................
A . The regionalcartographical recordinhistorical perspectiv.
B. Assistanceto navigation................
C Cooperation indefence ................
Conclusion .......................
PART III.THE LAWAPPLICAB LOEASINGLM E ARITIM BOUNDARY ...
Chapter 1. The conceptofthe singlemaritimeboundary ......
Introduction .......................
Section 1. The sinele maritime boundarv conceDtis rooted in the
donrine ofthe eiclusive economiczo~e ...........
Section II.Thedistinguishingfcatures of the singlemaritime houn-
darv have im~ortanl conseauences for the law of maritime deli
mitation.....................
Conclusion .......................
Chapter II. Equitahleprinciples inthe United StatesMemorial ...
Introduction .......................
Section 1.Coastal geography. non.encroachment. proportionality
and natural prolongation .................
A . ïhe Parties agreethat natural prolongation isinapplicable as
aprincipleofdelimitationin thepresent case .......
B. The UnitedStatesdistorts the conceptof non-encroachment .
C . Proportionality iatest of equity.not a subsidiaryprinciple of
appurtenance ...............
D. factorst..................omitsfundamental geographical
Section II.The falseprinciple of "single-Statemanagement" ...
A . The United Statesmisappliestheprinciple ofconservation .
I.The conservationof continentalshelfresources .....
3. General international law on shared or transhoundary
resources ....................XIV GULF OF MAINE . GOLFE DU MAINE
Page
B. The United States misusesthe general interest in dispute pre-
vention .......................
1. A prescrip~ionfor incquityand confiid ........
2. Relianceupon falseanalogies ............
Seweighingthe relevantcircumstancessn............orselectingand
Conclusion .......................
Chapter III. Equitableprinciples on the basis ofthe applicable la.
Introduction .......................
Section1. Equitable principles must be identified and applied on
the basisoftheapplicable law ...............
A. Article6 oftheConvention onthe Continental Shelf ....
B. Sources of law respecting the exclusive economic zone and
the 200-milefishingzone ...............
Section I.nie boundary should respect the basis of coastal State
title .........................
A .The distance principle and its relationship to natural prolon-
gation and non-encroachment .............
B. nie concreteimplicationsof thedistanceprinciple .....
I. Theradialprojection ofthe wasts ..........
2. nie point ofintersectionof neighbouring zones ....
3. The extension of a singlemaritime boundary beyond 200
milesfromthe wastof eitherParty ..........
C .nie principle ofequalitywithinthe sameorder ......
Section II.The boundary should respectthe basic purposes of the
rights andjurisdiction in iss...............
Section IV.nie boundary should take account of legally relevant
circumstances .....................
A .General principles ..................
B. Specificcategoriesoffactualcircumstances .......
1. nie historyofthe fishery..............
2. Stateactivities..................
SectionV .nie result of the application of equitable principles
must itself be equitable in the light of al1the relevant circum-
stances ........................
Conclusion .......................
PARTIV . THE COURSE OF THE SINGLE MARITIME BOUNDARY A: EQUI-
TABLEbULT ONTHE BASIS OF E ER NATION AWL ........
Chapter 1.nie UnitedStatesmethods and the United Stateslines . .
Introduction .......................
Selinen ..........................tes accepls the equidistance
Section I. 1976-1982: the United States adopts the "Northeast
Channel line" .....................
Section 11. 1982: the United States proposes the "adjusted per-
pendicular line" .................... xv
Pare
A .The perpendicular method is a particular application of the
equidistance principle; il is unsuitable for use in wmplex
geographicalsituations ................
I. Ends and means: the promotion of equality by equal
anglesand equaldistances .............
2. ïhelimitationsofalineofconsta ..t... aring
B . Law and State practice confirm the limited utility of the per-
pendicular method ..................
1. Jurisprudence ..................
2. The International LawCommission .........
4. United Statespractice................
C . Agreement preclude the application of the perpendicular
method inthiscase ..................
D. The United Statesmisappliesthe perpendicularmethod . .
E . The United Statesline does not take account of the "relevant
circumstances" nor accord with the "equitable principlcs"
idcntified inthe United States Mcmoria.........
GF. The UnitedStatesmisapplies theproportionality tes....
Conclusion .......................
Chapter II. TheCanadian method and the Canadian line .....
Introduction .......................
Section 1.The Canadian method combines an objectivetechnique
for reflecti.e wastal....mnhv with recoa.ized ~rocedures for
ensuring anequitable result................
Section I. The Canadian l.........ctsthe geographicalsituation in
the Gulf of Mainearea
k The innerarea ....................
1. Thewune ofthe line ................
2. Non-encroachment ................
B. ïhe outer area....................
1. The courseofthe line ...............
2. Non-encroachment ................
C. Thegeneral configuration ofthe coasts .........
Section II. The Canadian linetakesaccount of al1the relevant cir-
cumstances ......................
Conclusion .......................
Chapter III.Testsofequity .................
Introduction .......................
Section 1.The Canadian line produces a proportionate result: the
United Statesinedoesno1 ................
A . Roportionality as a measure of the effect of particular fea-
tures ona delimitation ................XVI GULF OF MAINE - GOLFEDU MAINE
Page
B. Proportionality as a comparison of costal lengths and sea
areas ....................... 263
Section II. The Canadian line is confinned as equitable when
tested against the conductofthe Parties: the United States line is
not ..........................
Conclusion . . . . . . . . .. . . . . . . . . . . . . .
Chapter IV. An equitable result in the light of the Special Agreement
andof the historyofthe dispute . . . .. . . . . , , , . . .
PART V. SUMMAR O FPRINCIPC AOLNCLUSIONS . . . . . . . . . . .
A. Theapplicable law . . . . . . . . . . . . . . . . . . . .
B. Therelevantcircumstances . . . . . . . . . . . . . . . .
C. Thenature ofthe result pursuant tothe UnitedStatesproposal . .
D. Thenature ofthe resultpursuant tothe Canadian line . . . . .
PART VI. SUBMI~SION . . . . . . . . . . . . . . . . . . . . .
Annaes 10theCounrer-MemoriaolfCanada
Geology, oceanography and fish distributions (Vol. 1)
ChaGulf ofMaineareaement. . . .e . . . ..nd . .mo. . . . . . th. . .
Section II. ThegeomorphologyoftheGulfof Maine area. . . .. . . .
A. The physicalnature of the Atlanticcontinental margin . . .
B. The physiographic provincesof the Atlanticcontinental shelf
C. fluvial crosion and glaciation ofthe Atlanticcontinental shelf
northeast ofthe Great SouthChannelarea . . . . . . . .
1. Ruvial action andthe neation ofearlydrainage systems .
2. Theonset and clïects of glaciation . . . . . . . . . .
3. Thenature of the channëls flankingGeorges Bank . . .
D. Similarities in the continental shelf sediment in the Gulf of
- Maine area . . . . . . . . . . . . . . . . . . . .
E. Distributionof Sandwavesand similar bedfonns: continuity
fromnortheastto southwest . . . . . . . . . . . . . .
SeBankarea. Su. . . . . .olo. .o. . . .ulf. . . .ne. . . .s . . .
B. Hydrocarbon playson GeorgesBank . . . .. . .. . . ., . . . ..
Section IV. Conclusion . . . . . . . . . . . . . . . . . .
Chapter II. Major elements of the physical oceanographic régimeof
theGulfof Mainearea . . . . . . . . . . . . . . . . . . .
Section II. Other currents and water characteristics of the north-
westAtlantic . . . .. . . . . . . . . . . . . . . . . .
Section III. Factors alïecting the currents of the Scotian Shelf and
the Gulfof Mainearea . . . . . . . . . . . . . . . . . .
Section IV. The pattern ofsurface curreots on GeorgesBank . . . Page
Section V. Differencesbetweensubsurfaceand surfacecurrents . 293
SectionVI . The influence of freshwater discharge from northem
sources ........................
Section VI1. Temperature. salinityand watermassrelationships .
Section VI11. Tidesand tidalcurrents ............
Section IX. Fronts ..................
Section X. Properties of self-containedness within an overall con-
Section XIr.The impact of vanability and exchange on so-called
"perfect pictures" ....................
Section XII. Conclusion ................
Chapter III. Major elements of the biological oceanographic régime
of theGulf of Mainearea ..................
Section 1.Introduction ..................
Section 11.Broad features and factors controlling the distribution
ofmarineorganisms inthe Northwest Atlantic ........
Section III.Plant plankton on Georges Bank represent the boreal
(northem) assemblage ..................
Section IV. Zooolankton on Georges.Bank also show a northem
orientation ......................
SectionV . Benthic animals on Georges Bank are dominated by
SectionVIn.sFactors affecting the rate of growth of biomass on
Georges Bank .....................
Section VI1. Oil in the marine environment: the nsk to the Nova
Scotiacoast ......................
Section VI11. Conclusion .................
Chapter IV .Distributions of commercial fish and invertebrate spe-
ciesinthe Gulfof Mainearea .. : .............
Section l.Introduction ..................
Section II.Limitsofdistributions of fishand invertebratespecies .
A . Biogeographicpronnces ...............
B . Commerciallyimportant species ........
Section II. Stockstructures,distributions and migrations ....
A . Stockstmctures ...................
B . Stockdistributionsand migrations ...........
1. Seven migratory species not listed in the United States
Memorial ....................
2. Speciesthat are listed in the United States Memorial and
fivesimilarunlisted species ........
Section IV. Biomassdistribution ..............
Section V. Conclusion ..................
Glossary .........................
A history of the Canadian fishenes in the Georges Bank area (Carman
Bickerton, Associate Professor of History. Carleton University.
Ottawa. 1983)(Vol .II)
Section II.The southwest Nova Swtia fleet and the Georges
Bankfisheries inthe nineteenth century ........... Page
Section III.Digbyandthe riseofthefreshand winterfisheries . . 337
Appendix1 . The southwest Nova Swtia vesse1 and boat fishenes
AppendixII1./Canadian fishennen whoservedon United Statesvessels
and lost their lives in the Gloucester fishenes: 1891-1900and
I9W-1916 ........................
Glossary .........................
State activities(V.III)
Reface ..........................
Chapter 1. The Canadian regulatory régimegovemingthedisposition
and administration ofinteresü in oiland gas..........
Section . Introduction ..................
Section I. Historyof Canadian oil and gasexploration in the Gulf
of Maine-Geor~esBankarea ...............
Section II. ~e Canadian regulatoryrkgime .........
A. The Canada OilandGosLondRegulations1 :961-1977 ...
1. Exploratorylicences ...............
2. Exploratorypermits ................
3. Oiland gasleases .................
4. Reportingrequirements ..............
B. The canada OilandGasLondRegulations:1977-1982 ...
C The 1982Canada Oiland GosAct ............
D .Applicabilitytotheoffshore ..............
Section IV.Comparison with the oil and gas régimein the United
States .........................
...........
B .UnitedStatesactivitieson the eastcoastcontinental shelf . .
SectionV .Conclusion ..................
Chapter II .Rotection of themarineenvironment ........
Section . Introduction ..................
Section I. The framework of the Canadian environmental proteo
tion régime ......................
A .TheCanada Oiland Gas LandsAdministration ......
B .The roleofother govemment departmenü ........
C .The EnvironmentalAssessmentand Renew Process ....
1. The EnvironmentalAssessmentand Reviewpanels ...
Section II. Canada's tradition and practice in protecting the
marineenvironment ...................
A .Thenorth .....................
B .The Atlanticregion ..................
1. The EnvironmentalAssessmentand ReviewRocess inthe
AtlanticRegion .................
2. nie BaselineStudiesRomam and otherstudies ....
Section IV. Conclusion .... Page
Chapter III. Charting theGulf of Mainearea ..........
Section 1.Introduction ..................
Section 11.Chartina.durina.the s.venteenth and eixhteenth cen-
turies ..........................
A. Charting beforeSouthack ...............
B. Charting bySouthackand DesBarres ..........
1. nie Southackcharts ................
2. The DesBarrescharts .............
C. Chartingat theendoftheeighteenthcentury .......
Section III.Thenineteenthcentury .............
A. Charting by Hurd and Lockwood ............
B. nie useof chaw byfishermen .............
CD. Thesurveysof Owenand Shortland...............
E. TheUnited States wast survey ..............
Section IV. Rivatechart publishen in thenineteenthcentury . .
Section V. nie twentieth-centurychaning of theGulfof Mainearea
Section VI. niematic ma~sand chans of theGulfof Mainearea .
SectionVI1 . Conclusion ...............
Chapter IV .Cooperationin defence ...........
Section l.Introduction ...............
Section Il.WorldWar II ..............
Section III.Joint Canada-United Statesdefencesince 1945
Section IV. Conclusion ...............
Chapter V .Aidsto navigationintheGulf of Mainearea ...
Section 1.Introduction ...............
Section Il.Radioaids ................
A. DECCA and LORANposition-fixingsystems ...
B. Other beaconsand radar ............
C . Weatherforecasting ..............
Section IV. Conclusionres.......................
Donrrneniar...wndicesto Chaoter 1
Appendix . Canadian legislation relevant to the regulatory régime
and nas(Docse .1to 5)ti...................on of interests inl
en en 2. Unixted Siates legislation relevant to the regulatory
régime governingthe disposition and administration ofnlerests
inoil and nas(Docs.l and 2) ........
Appendix3 . -~aPs illustratingseismic surveysconducted by Cana-
dian licenseesand permitteesin theGulf of Maine-Georges Bank
area, 1965-1979 .....................
Ao.wherethe UnitedStaiesreserved ilsrighrsin November 19g9 a. .s
Appendu . Copy of the Canadian Covernmenl "Monthly Oil and
Gas Re~orl" for Mav 1964announcinn .he issuanceand location
of canadian oiland gaspermits ..............XX GULF OF MAINE-GOLFE DU MAINE
Page
DonimentaryAppendices toChapter II
Appendix6. Letters of 17 April 1970 and 8 May 1970, from
D. G. Crosby,Chief, ResonrceAdministration Division,Depart-
ment of Energy, Mines and Resnurcesto Dr. M. N. A. Peterson,
Chief Scientist Deepsea Drillin- F'r-.ect.Scr.-~s Institute of
Oceanography .....................
Appendix7. Extracts frnmthe Oil and Gas Production and Conser-
vation Act, RevisedSramtes of Canada 1970, Chap. 0-4, and
Sfamtesof Canada 198@81-82C , hap. 81 ..........
Appendix8. Chat illustrating the typical Canada Oil and Gas
Lands Administration (COGLA) an~rnvals process for a fixed
published in Canada Gazette,Part II, Vol. 113,No. 3,14 ~ebja
1979 .........................
Auwndix IO. Excerots from ïhe Financial Post. 1 March 1969.
.page 3, "Seabed ôil Disaster Unlikely in canada", and page 6;
the Editnrial Page, "Howtn Prntecta Beach ........
A..endixII. Excemts from the Fisheries Act. RevisedStatutes of
Canada 1970, chip. F-14,asamended ............
Appendir12. Documents relatingto the Environmenial Assessrnent
and Renewnfthe Beaufort Sea ProiectfVocs. Iand21 ....
Appendix13. Documents relating to ~nvironmental ksessment
and Reviewofthe SableIsland Prnject(Dom. I and 2) .....
AppendirII. G. Miron,"The Outer Continental Shelf - Managing
(or Mismanaging) its Resources", Journal of MaritimeLaw and
Commerce,Vol.2,1971,pp. 267-277excerpted ........
DonimentaryAppendicesto ChapterIII
AppendixI5. The Velasco Map, 1610,Public Archives of Canada,
National Map Collection,NMC 14038 ...........
Appendix16. The WilliamAlexanderMap, 1623,PublicArchivesof
Canada, National Map Collection, NMC 15589,original in the
LandeCollection,National LibraryofCanada ........
Appendix17. The John Thornton Map, 1677,Public Archives of
Canada, National Map Collection,NMC 6608 ........
Appendixl8. The Herman Mnll Map, 1715, Public Archives of
Appendirl9. The Henry Popple Map, 1733, Public Archives of
Canada, National Map Collection,C-118235 ........
Appendir20. The DesBarres Chart of Part of the Coast of Nova
Scotia, 1778,Public Archives of Canada, National Map Cnllec-
tion,C-118237 .....................
Appendir2I. Correspondence between the United States chart
publisher Edmund Blunt and Admiral Beaufort of the British
Hydrographic Off~ce, 1832-1839 ..............
Appendix22. The Aaron Arrowsmith Chart, 1800,Public Archives
ofCanada, National Map Collection,C-118228 .......
Appendix23. The Hnrd Chart of the Bay of Fundy, 1824,British XXI
Page
HydrographicOffice, 1824,PublicArchivesof Canada, National
Map Collection,NMC-24856 ............... 399
Appendix24. The Lockwood Chart of Part of the Coast of Nova
Scotia, 1829,British Hydrographic Office, 1829,PublicArchives
of Canada, National Map Collection,NMC-24855 ......
Appendix25. Lockwood'sdescription of the Coast of Nova Scotia,
1818,PublicArchivesofCanada, PACI-1045 ........
Appendix26. The British-Canadian Deep-Sea Chart of the Gulf of
Maine Area,includingGeorges Bank, 1834(Docs.Iand 2) ...
Appendix27. The British-Canadian Deep-Sea Chart of the Gulf of
Maine Area, including Georges Bank, 1861, British Hydro-
graphie Office, 1861,Public Archivesof Canada, National Map
Collection,NMC-19995 .................
Appendix28.Correspondence between the New Brunswick
hydrographer and statesman William Fitzwilliam Owen and
Admiral Beaufort of the British Hydrographic Ofice wnceming
newsurveys in theGulfof MaineArea, 1842-1847 ......
Appendix29.The United States Coast Survey Chart No. 2, 1858,
SurveyoftheCoast ofthe United States, 1858 ........
Appendix30.The Noriechart, 1835,J. W. Norie, 1835 .....
Appendix31.The Principal Canadian Fishing Banks, 1920 and
1932,Ottawa, Department of the Interior,1920,PublicArchives
ofcanada, National Map Collection, NMC-20682 ......
Appendix32.The Royal Commission Map of Principal Canadian
FishingBanks,1928 ...................
Appendix33. TheClose Chart, 1929 .............
Appendix34,Index of Canadian Hydrographic Senice Natural
Resource Maps of the Gulf of Maine Area, 1980,Ottawa,Cana-
dian Hydrographic Service,1980 .............
DonrmentayAppendicetsoChapter IV
Appendix35.The Canada-United States Commitment to Joint
Defenceof North America, 1940(Docs.Iand 2) .......
Appendix36. The Canada-United States Military Allianceof World
War II (excerpt from C. P. Stacey, "Twenty-one Years of Cana-
dian-American MilitaryCooperation", in D. Deener, ed., Cuna-
dian-UnitedStutes TreatyRelationsC, ollegeHill,North Carolina,
Duke UniversityPress, 1963,pp. 103-104) ..........
Appendix37.The Canada-United States Joint Defence Plans,
1940-1942 (Docs. Iand 2) ................
Appendix38. The Canada-United States Joint Command Stmcture
on the High Seas, 1942(excerpt from Col. Stanley W. Duuban,
Militarv Relations b--ne~ ~the United States andCanada.
1939-1b45,~~ashin~lon,Office of the chier of Miliiary ~istoj;
United StatesDepartmeni ofthe Amy. 1959,p. 110) .....
Appendix39.The Defence of North Atlantic Convoys, 1942-1943
(Docs. Ito 3)......................
Appendix40. The United States Relinquishment of North Atlantic
Trade ConvoyOperationalControl, 1943(Docs. Iand 2) ....
Appendix41. The Canada-United States Basic Security Plan, 1946
(excerpt from James Eayrs, "ln Defence of Canada", in Peace-XXll GULFOFMAINE-GOLFE DU MAINE
Page
makinnandDetemenceV . ol. III. Toronto. Univenitv of Toronto
Press,i972,pp.381-388) ................... , ~ ~
Appendix42. The Canada-United StatesJoint Defence Policy, 1946
(Docs. Iand 2) .....................
Appendix43. Post-WarCooperation in Defence(excerpts from ïhe
NewYorkïïmes,13Febmary 1947,pp. 1and 17) .......
Appendix44.The North American Air Defence Agreements
(NORAD), 1958and 1981(Docs. l to 3) ...........
Donrmentary AppendicetsoChapterY
Appendix45.The Loran-C Position-Fixing System in the Gulf of
Maine Area (excerpt from Noies on the Useof Loran-CCharts,
Ottawa, Canadian Hydrographic SeMce, Department of Fisher-
iesand Oceans, 1982) ..................
Appendix46.Canadian Marine Weather Forecasting Regions in
the Gulf of Maine Area(excerptsfrom RadioAidstoManneNavi-
gation, Ottawa, Canadian Coast Guard, Telecommunications
and ElectronicsBranch,Department ofTransport, 1982) ....
A..endix47. Canada-United States Exchanee of Meteoroloeical
Information (excerptfrom Second Report of the ~eteorological
Officeof Canada, January 1873) ..............
Appendix4h Weather Forecasting Over the High Seas (excerpt
from Twelfth Annual Report of the Canadian Meteorological
Sewice,Toronto, January 1883) ..............
Appendix49. Excerptsfromthe Convention of the World Meteoro-
logical Organization, Washington, 1 I October 1947, Canada
TreatySeries,1947,No. 34 ................
Appendix50. Excerptsfrom the Convention on International Civil
Aviation,ICA0 doc.: 7300/6,sixth edition, 1980 .......
Appendix51. International Civil AviationOrganizationSearch and
Rescue Provisions (Docs. I to 3) ..............
Appendix52. ~xcerpis(romthe internation Colnvention on Mari-
timeSearchand Rescue.signcdnt Hamburg.27April1979 ...
Certification ..................
Documents - Annexes 1-71(Vol.IV)
Anna 1. Documents relating to the establishment of an exclusive
economiczone bythe UnitedStates(Docs. 1to4) ........
Anna 2. Canadian diplomatic note No. 160of 26April1983 (without
attachent) .......................
Annex3. Excemt from G. Kaeckenbeeck. InternationalRivers.Gro-
tius Society 'publications, No. 1, London, Sweet and ~axwell
Limited, 1918.p.32 ....................
Annex4. Excerptfrom H. B. Bigelow,"Fishes of the Gulf of Maine",
BulletinoftheUnitedStates BureauofFisheries,VoX l. L,Part 1,1924,
p.7 ...........................
Anna 5. Excemt from R. Hartshnrne. "The Nature ~f ~~ ~-~~hv: A
Criiical ~urvé~of Current Thought in ihc Lighiof the Past",Annais ~
ofthe AssociatronofAmericanGeo~raphers V,ol.XXIX. Nos. 3 and
4,1939,pp. 296-302 ...........:..... CONTENTS -TABLE DESMATIZRES
Annex6. R. D. Hodeson and E. J. Coooer. "The Technical Delimita-
rion of a Mod~rnË~uidistant Boundaj". Oman Der~lopmentand
Internat~onaliawJourna~ Vol.3,1976, pp.361-388 .......
Annex 7. Excerot from F. P. She~ard anH.R Wanless. Our Chann-
ing~omtline;, NewYork,~c~raw-~ill, 1971,p.7 . : ...
AnnaS. Excerpt from L. H. King and B. MacLean, Gealogyof the
ScotianShell;GeologicalSurveyof Canada Paper74-32,pp.4-6 . .
Annex 9. Excerpt from G. B. Fader, L.H. King and B. MacLean, Sur-
ficial GeologyoftheEastern GulfofMaineond BayofFundy,Geolog.
icalSurvevofCanada Paoer76-17, PO.1-4 ...........
Annex10. Éxccrpt from C: J. R ~d&ett, "Tidal Influences on the
PhysicalOceanography ofthe Bayof Fundy and Gulf of Maine". in
G. Dabom. cd., FundyTdal Power and the Environment,Wolfville,
Acadia UniversityInstitute, 1977,pp. 101-11.........
Anna II. Excerptfrom R E.Sheridan. "AtlanticContinental Margin
of North America". inC. A.Burkand C. L.Drake.eds..nie Geolonv
of Continental ~ar~ins, New York, springer-verla& 1974,
Anna 12. Excemt. from E. Uchuoi. Atlantic ContinentalShelf and
Slape of the UnitedStates- ~hjs~ogra~h~U, nited States ~epart-
ment of the Interior, Geological Survey Professional Paper 529-C.
Washinmon.Govcrnment PrintinnOfïice. 1968. DD. C3and C5 . .
Anna 13. Excerpt from H. B. Bigaow, ''~h~siciiOceanography of
the Gulf of Maine", Bulletinofthe UnitedStates BureauofFisheries,
Vol.XL,Part11,1924,pp.S18an .d5.19......
Anna 14. Excerpt from Final Envimnmental Statement. Proposed
1977Outer Continental ShelfOiland Gos Leare Sale Ofshore the
North Atlantic States. Vol. 1. OCS Sale No. 42, United States
Department of the Interior. Bureau of Land Management, Wash-
ington.Government PrintingONtce, 1977,p.345 ........
Anna 15. Excemt from L.M. Dickie,"Penoectives on Fisheries Bio-
logy and lmpiications for Management; Journal of the Fuheries
Research BoardofCanada, Vol.36,1979,~.839 .........
Anna 16. Excerpt from J. P. Wise and k C. Jensen, "Stocks of the
Important Commercial Species of Fish ofthe ICNAF Convention
Area", lCNAF Annual Meeting - 30 May-l June 1960,Serial
No.743 (D.c.3).Document No.25, p.I ............
Anna 17. Excerpt fromJ. P.Wise,"Cod Groups in the New England
Area", FisheryBulletin,Vol.63,No. 1,1963,p.20........
Anna 18. SpecialCommissionMeetingon Herring,January-February
1972.~Con--r~ationof Herrin~.Memorandumbv the UnitedStates.:
Annex19. Spdll NCommusionMeeting onHerring. January-February
1972.Conwrvarionof Herrine. Memorandum bv Canada ICNAF
seriil ~0.2685, spei ~tg.CG~. DOC. 72/2 :.........
Anna2O. Excerpis from Fishery Management Plan. Enal Envimn-
mental Imwct Statement.Rearlntorv Imwct ReviewforAtlanticSeo
~cnllo~s(~Ï~u>~ectemn igelianicusj, pr;pared bythéNew England
Fishcry Management Council in consultation with Mid-Atlantic
Fisherv Manaeement Countil and South Atlantic FishervManane-
ment ~ouncil,~anuary 1982,p. 6,and Table333.3,p.60 .. .XXlV GULFOFMAINE-GOLFE DU MAINE
Page
Anna 21. Excernts from Drafi EnvironmentalImoact Stntementon
theAgreement btween the ~nitedStatesand carha &Ë@st Coast
FishervResourcesW. ashington, United States Department of State.
~~rili980,~~. 103and ioP . ; .......-....... 1
Anna 22. Excerptfrom M. D. Grosslein and S.H. Clark, Distribution
of SelectedFrhSpeciesandStafusof Major Fisheriesin theNorthwest
between the United States and Canada, July 1976,United Statesns
National Marine Fisheries Service, Northeast Fisheries Center,
Woods Hole. Massachusetts. Laboratorv Reference No--.6-12.
1976,p.53 .........................
Anna 23. Except from Interim FisheryManagementPlanfor Atlantic
Groundfrrh Saunus.Massachusetts. New Ene-and Fishe-,Manaee-
ment~ouncil, 38~eptember 1981,p. I ...........
Annex24. Excerpt from CalendarYear1981.Report ontheImplemen-
tation of theMognusonFisheryConservationand~ana~ementAct of
1976,United States Department of Commerce, National Oceanic
and Atmospheric Administration, National Marine Fisheries Ser-
vice.Washineton. Govemment Rintine Office. 1982...~75- ....
~nnL25. ~xc&t from Pacflc ~rherman.May 1'957p ,p. 13-14...
Annex26. Excerptfrom ïheFi.hennenS Newr,Oder 1978 ....
AnnManagement", Publicationsin Fisherie-itNewSeries,Vol.V, 197iv
pp. Ill-114 .......................
Anna 28. Excerpt from Northwest Atlantic Fisheries Organization,
StaristicalBulletin,Vol.30,1980,p..............
Annex29. Statistics respecli-z licensed vessels in southwest Nova
Scotia .........................
Annex30. Statistics respecting vessels less than 14 metres in length
and which displace lessthan 25.5gross registered tons in Fisheries
District 32.......................
Annex31. D. Russell, "Rebel Waters",BostonMagazine,December
1981 ..........................
Anna 32. Excerntsfrom S.Sedeewick.C. Collins and S.Olsen. Com-
mercialfishini Fanlilies ~ee& rn ho dIeland.Coastal ~esources
Center, University of Rhode Island, Marine Technical Report 80,
~nnex jj;canadian catch statistics,1979-198..........
Annex34. Statisticsrespeclingthe offshore fisheryof the small-vesse1
fieetofsouthwest Nova Swiia ...... ; ........
Annex35. StatisticsrespectingUnited Stateslandings .......
Anna 36. Statistics on average employment inwme in Nova Scotia
and Massachusetts, 1980(Docs.1to 3) ............
Annex37. Excerpt from S. Olsen, ed., Fishingand Petrolnim Interac-
tions on GeorgesBank, Energy Rogram Technical Report 77-1,
Boston,New England RegionalCommission, 1977,p.94 .....
Anna 38. Excerpt from MassachusettsFisheries:A Reportof the200
Mile FisheriesWorkCroup,Boston, Commonwealth of Massachu-
setts,977,pp. 1-24 ....................
AnnWhole, but Nor Othenvise Repared or Resewed,from Canada,r Nor xxv
Page
United StatesInternational Trade Commission. USlTC Publication
1066,May 1980.pp. 1andAl-A7 .............. 428
Annex40. Exccmt from Com~troller General of the United States.
Report to the ~on~ress,ïh;~.~. FishingIndustry - Presenfcondi:
tionand FutureofMarine Fisheries,United StatesGeneral Accoun-
tingoffice, 1976,coverpage ................
Annex41. Excerpt from FisheriesStatisticr of the UnitedStates 1976,
Statistical Digest No. 70, Washington, US Department of Com-
merce, National Oceanicand Atmospheric Administration,1980,
0.7 ...........................
Annex 41 Excerptfrom AnnualStotisticol Revrewof ConadionFrçher-
les.1955-1976.Vol.9.Ottawa. De~artmentof Fisheriesand Oceans.
Table 15,p.49 ......................
Anna43. Excerpt from W. L. Liswm, ed., ïhe Energy Decade,
[email protected] Statistical and GeographyChronicle,Cambridge, Bal-
lingerPublishingCompany, 1982,p.415 ...........
Anna 44. R. V.Guido and M. F.Morrone, "nie Michelin Decision:
A Possible NewDirection for U.S. Countewailine Dutv Law". in
J.H. Jackson, ed., Legal Roblems of~nternationaT~co~omic~ela-
fions, Cases. Materials and Texton the National and International
RegulationofTransnationa1EconomicRelations,St.Paul, University
of Michigan, 1977,pp.789-801 ...............
Annex45. Excerpt fromAnnualStatisticalReviewof Canadian Fisher-
ies.1955-1976,Vol.9.Ottawa, D.~ar.mentof Fisheriesand Oceans.
Table 16.p.51 ......................
Annex46. Excerpt from AnnualStatisticalReviewof Canadian Firher-
ies. 1978. Vol.11, Ottawa, De~artment of Fisheries and Oceans,
~ ~~ ~ ~
Annex47.-Ëxcerpt from Dominion Bureau of Statistics,FicheriesSta-
tisficso/Canada(lYSS~/ - NovaScofia,Industryand Merchandiring
Division.Octoher 1960.Table4. on. DIS-D31 .........
Annex48.~~Éxcerptsfrom Digby '?ounty Statistical Profile; Queens
CountyStatisticalRofile; LunenburgCounfyStatisticalRofile; Yar-
mouth CountyStatistical Rofile; ShelburneCountySfaiisticalProfile,
Nova ScotiaDepartment of Development,Table18,p.28 ....
Annex49. Excerptfrom A. McDonald, J. Rowland and R. Fitzgerald,
Employmentand the Massachusetts FishingIndustry,Boston, Labor
Area Research Department, Massachusetts Division of Employ-
ment Security,undated,p. 2 ................
Annex50. Excerpt from AnnualStatisricalReviewofCanadian Fisher-
ies, 1978,Vol. II, Ottawa, Department of Fisheries and Oceans,
Table 16,p.34 ......................
Anna 51. Manufacturers by activityin Digby,Lunenburg and River-
port ..........................
Annex52. Statisticson total manufacturing in Boston and New Bed-
ford(Docs. 1and 2) ...................
Anna 53. Excerpt fromR. N. McPhenon, GloucesterResourceStudy,
Boston,Massachusetts lnstitute ofTechnology, 1973,p. 108 ...
Anna 54. Excerpts from Nova Scofia Direcfory of Manufacturers,
1979-1980,Halifax, Department of Development, Statistical Ser-
vicesBranch, March 1980,pp.Tan 5-6.14-19 ..........XXVl GULF OF MAINE-GOLFE DU MAINE
Page
Annex 55.Excerpt from ïhe iabour Forre, 1981,Statistics Canada,
Annex56. Excerpt from Costand Earningsof SelectedFishingEnter- 432
Oceans, Economics Branch,September1982,p.30,Table 13Ceries a. .
Annex57. Letter from C. A. O'Connor, United States Consul at Yar-
mouth, Nova Scotia, to W. W. Rockhill, United States Assistant
Secretary of State, 10 March 1897,Dispatchesfrom UnitedStates
Consulsin Yarmouth,Nova Scotia, Vol.2, Washington, Department
of State, 1899,No. 51 ...................
Annex58. Exccrpts from Documentsand Roceedingso/the Halm
Commission 1.77,Vol.1,pp. 1075and 1080:Vol.II, pp.2047-2049 .
Annex 59."Boston Fish Bureau". 7heDi~b-,WeeWvCourier.2 Octo-
ber 1885,p.12 ......................
Annex6O. Excerpts from E. A. Ackeman, New England's Fishing
Industry, Chicago, Universityof Chicago Ress, 1941,pp. 4, 5 and
141 ...........................
Annex6l. Excerpt from E. W. Sager and L. R. Fischer, "Atlantic
Canada and the Ageof SailRevisited", Ca~dian HistoricalReview.
Vol.LXIII, No.2.1982,pp. 125-150 .............
Annex62. Excerpt from C. Isham, fie FisheryQuestion,New York,
G.P.Putnam'sSons,1887,p.76 ...............
Anna 63. Excerpt fromT. F. Knight, ShoreandDeep SeaFisheriesof
NovaScotia,Halifax,A.Grant, 1867,pp. 1-6 ..........
Anna64. Letter to the Editor of ïhe YarmouthHerald 10 March
1881 ..........................
Annex 65. Excerpt from Documentsand Roceedingsof the Halifax
Commission.1877. Vol.1.DD.643-645 .............
Annex 66.Excerpt from ~i~ort of the UnitedStatesCummis.cluntrof
Füherier/or theFiscalYeor1919,Appendix X, Washington,Govem-
ment RintinnOffice. 1921. DD.21-31 .............
AnSubarca 4, Rcstricted Document 29, Serial No. 9, 6 April 1951,
pp. 14 .........................
Anna68. Excerpts from "Test Scallop Fishery on Offshore Banks",
FisheriesNewsBulletin,Vol.XI, No. 124,Febmary 1940,pp. 2and 4
Annex69. Excemt from P. Shea. "Swordfish Slei~h Ride". Maine
~oast~ishe&n, hly 1958,~.21 ........... - ...
Annex 70. Excerpts from T. Amiro, M. MacDonald-MacKenzie and
J. (Cline) Newell,A SeaTragedyWood'sHarbour 1950,Yarmouth,
SentinelPrinting Ltd., 1977,pp. 14,27and63 .........
Anna 71. Excerpt from H. A. Perry, In and Around Old Barrington,
Yarmouth, LescarbotPrinting Limited, 1979,pp. 22-26 .....
Certification...............
Documents - Annexes 72-111(Vol.V)
Annex 72. Excemt from Oilweek25Mav 1964. DD.21-22 ...... 438
Annex 73. selenid United tat te;xplo~ationpckits (Docs. Ito 6) . 438
Annex 74. Documents relating 10 Humble Oil SeismicRogram, 1966
(Dom. 1and 2) ...................... 438 Page
Annex75. Excerptsfrom Dra# Environrnento Iml pactStaternenotnthe
Anreernenbterween the UnitedStatesandCanadaonEast CoasF tih-
erf.ResourresW , ashington, United States Department of State,
April1980,pp.7and116 -............... 439
Annex 76.Preoared Statement ofThomas k Norris. reoresentinn the
Boston ~ishin~Industry,in UnitedStates-Canadian ~ishin~~iree-
life conservation and the Environment. Committee on Merchant-
Marineand Fisheries, United States of Representatives. 96th
Congress, 1stSession.22June 1979,pp. 158.160 ........ 439
Anna 77. Statementsof a Panelconsistingof Gordon Murphy. Resi-
dent, National Fisheries Lnstitute:David Bergson,respresenting the
Maine Redfish Fishermen; and James L. Warren, ExecutiveDireo
tor. Maine Sardine Council. in United States-Canadian Fishing
~Geements: Hearings before the Subcomminee on Fisheries and
Wildlife Conservation and the Environment, Cornmittee on Mer-
chant Marine and Fisheries, United States House of Representa-
tives.96thCongress, 1stSession.22June 1979,pp. 147-157 .... 439
Anna 78. Statements of Norman H. Olsen,JI., New England Fisher-
ies Management Council, in Maritime Boundaty SenlementTreaty
and East Coast Fishery ResourcesAgreement: Hearings before the
Comminee on Foreign Relations, United States Senate, 96th Con-
gres~,2nd Session,15-17April1980, pp. 62-71and 80-81 ..... 440
Anna 79. Excerptsfrom Minutesofthe New England RegionalFish-
eryManagementCouncil,25-30June 1980,p.35 ........ 440
Annex80. Excerpt from F. Barry, "The Administration of the Outer
Continental Shelf Lands Act", NahiralResourceJ sournal,Vol. 1,
1968,pp.46-47 ...................... 440
Annex8I..Minutes of the Twenty-third Meeting, 23-25 September
1936,Executive Sessions, Item Nos. 2and 14, North American
Council on Fishery Investigations,Proceedings, 19341936, No. 3,
Ottawa, King'sPrinter, 1939 ................ 440
~~~a 82.-Fi- - - ~ ~ ~ ~e International Fisheries Conference. ion-
don, 220ctober 1943,Annexll and ~esolution NO.2 ....... 441
Anna 83. Excemt from Annual Report of the DeparMent of Fisher-
iesforthe~ea; 1931-1932 .. : ..... ; ........ 441
~nn& 84. ~x&rpt from RoposedInternationalConvenrion /or the
NorrhwesA i rianricFuheries. ackgroundojrhePmposed Convenrion
/or theNorthwesA t tlantic.prepared by the United States.Febmary
1948 .......................... 441
Anna 85. Letîer No. 6 of 7January 1949from Julian F. Harrington,
American Minister.tothe Secretan,of Statefor Extemal Affairs . . 441
Anna86. ~otes of a meeting hela at St. John's, Newfoundland,
on 1416 June 1948,between Representatives of Newfoundland,
Canadqand the United States ................ 442
Anna87. Excerpt from Minutes of the Seventeenth Meeting of
NACFI, 6-7November 1930,p.4 .............. 442
Anna 88.~Ex-er~ ~ ~om Ci.A. Rounsefell.Develoornen otfFshervSta-
risticsin the~OrthAtlantic,United taies~e~artme; of lhilnte-
rior. Fishand WildlifeSeMce, ScientificReport No.47,1948,p.8 . 442
Anna 89. NACFl and lCNAFStatisticalAreas(Docs.Iand 2) ... 442XXVlll GULF OFMAINE - WLFE DU MAINE
Page
Annex90. Excerptsfrom North AmericanCouncil on Fisheq Investi-
g1932,pp.24-26e......................, Ottawa, King's Printer,
Anna 91. Excerpt from J. A. Gulland, île Management of Marine
Fisheries,Bristol,Scientechnica(Publishers)Ltd., 1, . 17...
Annex92. ICNAF Reportgf the Meetingof Panel 5,2 June 1959,F'ro-
ceedingsNo. 10,Serial No. 649(B.Proc.c/59) .........
Anna 93. SelectedICNAFdocuments 1951-1952(Docs.l and2) . .
Annex94. ICNAF,Twenty-secondAnnual Meeting,June 1972,Com-
missioners'document72/19 ................
Anna 95. SelectedICNAFdocuments 1970-1971(Docs. l to 3) ...
Annex96. Letter of 17 Febmary 1970 from Rear Admiral R Y.
Edwards, United States Coast Guard, Chief, Office of Public and
Internationalffairs, toR N. Gordon, Regional Director of the
Canadian Department of Fisheries and Forestry,Halifax ....
Annex97. ICNAF Scheme of International Joint Enforcement,
I15,Appendixi1t...................... 1970,Proceedings No.
Anna 98. SelectedICNAFdocuments 1961-1963(Docs. l to3) ...
Anna 99. Letterof 16August 1976from D. E.Russ,Special Agentin
Charge,United StatesDepartment ofCommerce,National Oceanic
and Atmospheric Administration, National Marine Fisheries Ser-
vice, Law Enforcement and Marine Mammal Protection Division,
to R. Collie, Chief, Conservation and Protection Branch, Depart-
mentofthe Environment,Fisheries Services,Halifax ......
Anna 100. List of selected Canadian sea scallop regulations appli-
cableto NAFOsub-area5 .................
Anna 101. List ofselectedCanadian fisheryregulations......
Annex 102.Excerpts fromA LegislariveHistoryof the Fishery Conser-
vationand Ma~gement Actof 1976,United States Congress Com-
mittee Print, 94th Congress, 2nd Session, October 1976,pp. 670,
Annex103. Excerpt from EncyclopaediaBritannica, eleventh edition,
Vol. XViI.r>.648 .....................
Anna 104. Ëxcerpt from New Encyclopaedia Britannica, Vol. IX,
1974,~.1014 .......................
Anna 105. Excerptfrom Asian-African LegalConsultative Commit-
tee, Report of the Thirteenth Session held in Lagos fmm 18to 25
January 1972,pp. 155-160 .................
Annex106. "Summary Information on Marine Fishery Bodies", pre-
pared by J. E. Carroz, Secretary General, FA0 World Conference
on FisheriesManagement and Development 1982 ........
Anna 107. Excerptsfrom S.W.Boggs, InternationalBoundaries, New
York,Columbia UniversityPress, 1940,pp. 22-23and 188-190 . .
Annex 108.S.W. Boggs,"Problems of Water Boundary Definitions:
Median Lines and International Boundaries through Territorial
Anna 109. M. B. Feldman and D. Colson, "The Maritime Bounda-
ries of the United States", AmericanJournal of InternatiLaw,
Vol.75,No.4,1981,pp.72 9..76.3........
Anna 110. Excerpts from Draft EnvironmentalImpacf Staiement on Page
theAgreementbefween the UnitedStatesand Canada onEart Cm
Fsherv Resources.Washinet-..Deoar.mentof State.Avr,l.1980.
pp.117-118,Table IV . . . . . . . . . . . . . . . . . . . 448
Anna Ill. Computeranalysislinedividingfishandinvertebrate spe-
ciesinthe Gulfof Maineareainaccordancewiththeentitlementsin
the 1979AgreementonEastCoastFisheryResources . . . . . . 451
Certification. . . . . . . . . . . . . . . . . . . . . . . . 456COUNTER-MEMORIALOFCANADA
CONTREMÉMOIREDU CANADA 3
INTRODUCTION
1. This Counter-Memorial is filed in accordance with the order of
5 November 19821issued by the President of the Chamber of the Inter-
national Court of Justice formed to deal with the case concerning
Delimitation of the Maritime Boundary in the Gulf of Maine Area,
fixing 28 June 1983 as the time limit for the filing of the
Counter-Memorials of both Parties.
2. The purpose of this Counter-Memorial is three-fold:firsr, to
rebut and correct the contentions made in the United States Memorial
with regard to the United States claim and to demonstrate the unreason-
able and inequitable character of that claim; secondly, to rebut and cor-
rect the contentions made in the United States ~emorial with regard to
the Canadian claim and to confirm the reasonable and eauitable charac-
ter of the Canadian line; and thirdly, to supplement a; necessary the
considerations of fact and law set out in the Memorial submitted by
Canada on 27 September 1982.The fact that a contention or allegation
appearing in the United States Memorial is not discussedin the present
Counter-Memorial cannot be construed as an admission by Canada that
such contention or allegation is correct or relevant, or that the facts on
whichit may be based are accurately presented and properly interpreted.
3. Part 1of this Counter-Memoiial providesa brief reviewof the
Canadian position in these proceedingsand a general assessmentof the
United States Memorial. Part II reviews the relevant circumstances in
this case and brings factual corrections to both the relevantand irrele-
vani circumstances adduced in the United States Memorial. Part III
reviewsthe concept of the single maritime boundary and the law appli-
cable thereto. Part IV seeks to demonstrate that the Canadian line is
consistent withthe rules and principles governing thedetermination of a
single maritime boundary, while the United States claim is not con-
sistent with these rules and principles. Part V provides a summary of
principal conclusions.Part VI sets out Canada's Submission.In addition,
this Counter-Memorial includesan Annex in five volumes.
The New United States Line
4. The Canadian Memorial dealt with the United States mari-
time boundary claim as it stood at the time. The United States
Memorial, however, has put forward a new claim, or rather a new
"methori" to advance the claim to the whole of Georges Bank that the
United States first put forward in1976.
5. The new United States boundary proposal expands the dis-
puted area within 200 nautical miles of the coasts of borh Parties from
11,700square nautical miles to 16,190square nautical miles.This is the
first time the United States has everindicated a jurisdictionalinterest in
the additional area encompassed within ils new line. Canada has exer-
cised undisputed jurisdiction in respect of the continental shelf in this
area since 1964,and in respect of fisheriessince 1977. When the United
' I.C.JReporrs1982.pp.560-5614 GU^ OF MAINE ['a
States resewed its rights concerning the delimitation of the continental
shelf in late 1969,that resewation extended onlyto Georges Bank, and
not toother areas east of the equidistanceline.
Proclamation of an Exclusive EconomicZone by the United States
6. On 10 March 1983, President Reagan proclaimed "thesover-
eign rights and jurisdiction of the United States of America" withinan
exclusive economic zone extendingto a distance of 200 nautical miles
from the baselinesof the territorial sea2.This zone appears to be coter-
minous with the 200-mile fishing zoneclaimed by the United States in
1977. It$ total area is estimated to exceed 2 million square nautical
miles.accordingto the White House press release issuedwith the procla-
mation.
7. By virtue of Article III of the Special Agreement, the single
maritime boundary to be established by the Court will apply to this
United States economic zonein the Gulf of Maine area. Canada has not
yet establishedan exclusiveeconomiczone as such. However,the rights
and jurisdiction Canada exercises within its 200-mile fishing zoneare
substantially similar to the rights and jurisdiction associated with the
concept of the exclusiveeconomiczone; they include sovereignrights in
respect of seabed resources and jurisdiction in respect of environmental
protection.
8. President Reagan's proclamation declares that the boundaries
of the United States exclusiveeconomic zonewith neighbouring States
"shall be determined by the United States and other State concerned in
accordance withequitable principles". This provisiondiffers from Article
74 and Article 83 of the 1982Conventionon the Law of the Sea, which
state that the delimitation of the exclusiveeconomiczone and the conti-
nental shelf "shall be effected by agreement on the basis of international
law as referred to in Article 38 of the Statute of the International Court
of Justice, inorder to achievean equitable solution'". The United States
Memorial placed particular emphasison the fact that the Conventionon
the Law ofthe Sea "mentions neither the equidistance methodnor equi-
table principles'".
For the tcxt al the proclamationand rclatcd documents.and for the tcxt of a
diplomaticnoteof 26 April 1983settingout thescCanadianrescrva,ceCounier-
Memoriol. AnnexesVol.IV,Annexes 1-2.
Thc provisionon delimitationin the UnitedStates proclamalion. tothe calent that il
ccedingsandcanna!,forexample.affect the UnitedStates'obligationsundcrthe 1958pro-
Conventio nn thcContinentalShelf.
' UniredSiaies Memoriolp.163.para.275. PART 1. AN OVERVIEW
CHAPTER I
BRIEFREVIEWOFTHE CANADIANPOSITION
9. The Government of Canada reaffirms its position in these pro-
ceedingsas set out in itsMernorial. That positionis further developedin
this Counter-Memorial and for the convenienceof the Court is briefly
summarized in the present chapter.
10. In Canada's view, the fundamental rule of law is that mari-
time boundaries are to be determined in accordance with equitable prin-
ciples, taking account of al1 the relevant circumstances, in order to
achieve an equitable-result. Canada further submits that equitable prin-
ciples must be identified on the basis of the total body of law applicable
to a single maritime boundary delimiting jurisdiction in respect of both
the continental shelf and the water column, in the light of developments
in the lawof the sea from 1958to the present.
II. The applicable law in this case includes considerationsrelat-
ing to: (i) the legal basis of title of the coastal States to the multi-pur-
posezonesto be delimited by the singlemaritime boundary; (ii) the legal
nature and object of the rights to be exercised therein; (iii) the conven-
tional rules of delimitation bindingupon the Parties; and (iv) relevant
principlesof cuslomary international law. Accordingly,the Court should
have regard to the interrelated principlesof adjacency and proximity as
fundamental elements of the legal basisof title. It should have regard to
the economic nature and object of the rights in question. It should pay
particular regard to Article6 of the Conventionon the Continental Shelf
as the soleconventional rule of law binding upon bothParties in relation
to the seabed and as the expressionof a principlethat is equally compat-
ible with the delimitation of the 200-mile fishing zone.And finally, the
Court should give special weight to the conduct of the Parties as an indi-
cation of what they themselvesmay have considered an equitable result,
and as the basis for applicationof the doctrinesof acquiescenceor recog-
nition. and estoppel.
12. In Canada's submission,the Canadian line takes account of
al1the relevant geographicaland non-geographicalcircumstances in the
Gulf of Maine area. Within the single continental shelf and integrated
ocean systemof the Gulf of Maine area, Georges Bank is closelylinked
with Canada in terms of geology, geomorphology, oceanographyand
biology.All the area encompassed withinthe Canadian line is closer to
Canada than it is to the United States, except for the adjustment
required to correct the distorting and disproportionate effect of Cape
Cod and Nantucket Island. There are no special geographical circum-
stances on the Canadian coast that deflect the equidistance line from a
course that reflects the general configuration of the coasts. The
Canadian coast is an extensiveone backed by a substantial land mass.
13. The geographical logic of the Canadian claim is confirmed
and strengthened by the fact that a major Canadian fishery in the area
claimed by Canada is conducted from the adjacent Canadian coast; in6 GULF OF MAINE [s-61
addition, Canada's economic dependence onthe fisheryof this area is far
greater than that of the United States. Only Canada has granted off-
shore oil and gas concessionsin what later became the "disputed area",
and the United States has acquiesced inand recognized this exercise of
jurisdiction by Canada. The conduct of the United States, especially in
this acquiescenceand in the conclusionof the 1979 Agreement on East
Coast Fishery Resources, demonstrates its acceptance of the fundamen-
tally equitable character of the result achievedby the Canadian line.
14. Against this background,Canada submits that the Canadian
line is in accordance with equitable principlesdetermined on the basis of
the applicable law. It respects the criteria of non-encroachment and of
equality within the same order, and leaves more than half of Georges
Bank to the United States. Both in the selection of basepoints and inits
direction. the Canadian line represents a sensitivereflection of the geo-
graphical configuration of the Gulf of Maine area and the coastal rela-
tionships of the Parties; and on this basis alone it is equitable and in
acwrdance with international law. Its equitable character is furtheron-
firmed by al1the relevant circumstances,by the practice of the United
States and other States in comparable situations, and by tests ofropor-
tionality and disproportionality as applicable in the present proceedings.
The Canadian line, moreover,fully reflects the diplomatic history of the
boundary question in the Gulf of Maine area.
15. Finally, as demonstrated in the Canadian Memorial, the
United States' acquiescencein and recognition of the use of the equidis-
tance method in the Gulf of Maine area, and its acquiescence in and
recognition of the exercise of Canadian jurisdiction on Georges Bank,
create an estoppel in favour of Canada. The single maritime boundary to
be determined by the Court should be compatible with the rights vested
in Canada. CHAPTER II
GENERAL ASSESSMENT OF THE UNITEDSTATES
MEMORIAL
Introduction
16. This chavter gives a summary analysis of the United States
Memorial in order io providecertain signposts-forthe assessmentof the
United States Memorial as a whole. Reduced to its essential elements.
that Memorial rests on fouruntenable propositions:
(a) that Nova Scotia does not exist;
(b) that nature itself has fixed a maritime boundary in the Gulf of
Maine area;
(c) that the United States has an inherent or acquired right of "domi-
nance" over the Gulf of Maine area;
(4 that administrative convenienceor managerial expediency requires
that al1 the resources of Georges Bank shouldbe allocated to the
United States.
The followingsections will demonstrate how these propositions underlie
the United States Memorial. The balance of this Counter-Memorial will
showin detail their lack of foundation.
Section 1. The United &tes Memorial Presents a Monopolistic and
Unreasonable Claim Tbat Bears No Relationship to the Relevant
Circumstances or to the History of the Dispute
17. The United States Memorial has proposeda new line - the
so-called"adjusted perpendicularline" - but has maintained the under-
lying claim to the whole of Georges Bank that the United States first
advanced in 1976. This claim to the whole of Georges Bank is in itself
unreasonable and inequitable, whatever methodolo~ythe United States
may choosefor ils expression.It is unreasonable andinequitable because
the resourcesof Georaes Bank are in effect the subiect matter of the dis-
pute, and the ~nited- tat seeks a monopolyl of these resources that
a daim and is na1 without historical preceAnncarly cxample oanoassertion of Stata
monoply in a boundary maiter -and of ils vigorous rejcciiocoma from the
Decree of the Exccuiive Council of the French Rofu16 November 1792. which
siated:
"That the sircam of a river is the cammon. inalienable property of al1the countries
which ii baunor traverses: that no nation canwithoui injustice claim the righi
exclusively10occupy the Channelof a river and to prevent the neighbouring upper
riparian States from enjoying the same advaniages; that such [an exclusive]right
is aemnant of feudal servitude. or at any rate. an adious monopoly which musi
have ken impsed by force and yielded by impotence;that it is therefore revacablc
at any moment and in spite of any convention, kcause nature does not recognize
privileged nations any more than privileged individuals, and the righu of man are
for ever imprescriptible."
G. Kaeckcnkk: lnlernolionolRiversGrotius Sacieiy Publications. No. 1. London.
Sweet and Maxwell. Limiied. 1918,p. 32. SeYcorboo kjihe Iniernolioiaw
Commission.1980. Vol. II, p. Counler-Memoriol.AnnexerVol.IV,Annex 3.8 GULF OF MAINE 181
sets at naught Canada's geographical position in relation to Georges
Bank, its vested rights in the hydrocarbon potential of this area, and ils
substantial interests and intensive traditional participation in the fisher-
ies ofthe Bankas a coastal State adjacent thereto.
18. The unreasonable nature of this monopolistic claim obliges
the United States to found it on a further claim of general "dominance"
of theentire Gulf of Maine area andto invoke avariety of irrelevant cir-
cumstances relating, for instance,to defence, navigation,and search and
rescue activities'.At the same time, the United States attempts to paint
a picture of the Northeast Channel as a "natural" dividing line for
human activities in the area. In so doing, however, the United States
ignoresthe existenceof the Great South Channel off the coast of Massa-
chusetts and forgets its own assertions regarding United States and
Canadian activities on both sides of the Northeast Channel. The line
proposed by the United States does not, in any event, followthe course
of the Northeast Channel, which is nothing but a superficial depression
on the singlecontinental shelfof the Atlantic coast of North America.
19. The United States claim assumes that the United States
alone is a coastal State in relation to Georges Bank.It represents not a
proposed delimitation but rather an attempt to avoid delimitation by
denying or disregarding the geographical fact of Nova Scotia. Only in
this way is the United States able to construct a theory that would
deprive Canada of the sovereignrights that flow from this reality under
Article 1 of the 1958 Conventionon the Continental Shelf, under the
1982 Conventionon the Law of the Sea, and under customary interna-
tional law.
20. The unreasonable nature of the United States claim is further
confirmed by the fact that it is divorced from the diplomatic history of
the dispute and totally ignores rights and legitimate interests proper to
Canada that the United States itself previously recognized.The United
States Memorial for this reason is obliged to maintain an embarrassed
reticence on the subject of the United States attitude toward the offshore
oil and gas exploratory permits issued by Canada on the basis of the
equidistance method from 1965 on, and to characterize official com-
munications between the Parties as a kind of private correspondence
between "Mr. Hoffman" and "Mr. Hunt'". Similarly, the United States
Memorial makesonly passing reference to the 1979 Agreement on East
Coast Fishery Resources4, despite the fact that its negotiation wascom-
missioned bythe President of the United States of America and the
Prime Minister of Canada, and that it was duly signed and approved by
the executivearms of both governments (although never acted upon by
the United States Senate). This treatment of history is readily explained.
Sec,for instance, UniredSrorMemorioi,pp. 81-82. para135,whcrc it is asserted
that: "No Stafe qucstioncdUnited States jurisdictionandovertthe confinental
periad,al1activiticsin this arfishing,chartingand surveying.scicntific rcsearch,
anddefense- evidenccd thecompletedominance of theUnitcdStates over if."
UniredSfatesMernoNol.p. 82, para. 136.
' UniredStoresMemorial,pp.97-98. paras. 161-163. t91 COUNTER-MEMORUL OF CANADA 9
For in the 1979Agreement on East Coast Fishery Resourcesthe United
States did what it has failed to do in its Memorial: that, to recognize
Canada's established presence on Georges Bankand Canada's legal and
equitable entitlement to a major part of the area and to its resources.
21. The use of an "adjusted perpendicular line" to advance a
claim to the whole of Georges Bank represents the latest step in a
progressive encroachment upon an area appertaining to Canada under
international law. Thus, the United States from 1965to 1969adhered to
an equidistance line for the delimitation of the continental shelf in the
Gulf of Maine area;later, from 1969to 1976,the United States reserved
itsrights regarding this delimitation, without enunciating any further
claim; in 1976. uponadopting the legislationnecessaryto extend its fish-
eries jurisdiction to 200 miles, the United States expanded itsclaim to a
line purportedly based on seabed topography and the Northeast Chan-
nel; finally,in its Memorialof 27 September 1982,the United States has
expanded its claim yet again, to a line that cornes within 25 nautical
miles of Yarmouth harbour on the coast of Nova Scotia at a point that
is three times as far from theoast of Maine and more than six times as
@ far.from that of Massachusetts [FigureIl.
22. It should be recalled here that it was on the basis of the
claims of the Parties as they stood at the time of signature of the Special
Agreement that Point "A", the starting point for the determination of
the single maritime boundary, was established. It was also on the basis
of these claims that the Parties decided that the seaward terminal point
of the boundary should fall within the triangle described in the Special
Agreement. The United States Memorial does not illustrate the relation-
ship of the new United States line to the outer limit of the United States
or Canadian 200-mile zones, nor the relationship of the new line to
the triangle within which the boundary must terminate. An illustration
of these relationships is provided for the conyenienceof the Court in
Figure 2. It can be seen that the United States line is simply a straight
line from Point "A" to the northeast corner of the triangle, "adjusted"
along its course toprovidesupport for the United States view that fish-
ing banks shouldnot be divided.
23. It should also be recalled here that the triangle was con-
structed so as to include three points: the two points wherethe Canadian
and United States claims (as they stood at the 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. (Figure 1 in the Canadian Memorial shows these three
points.) The corners of the triangle were fixedby reference toograph-
ical coordinates correspondingto the nearest full degrees of latitude and
longitude thatcan form a plane figure enclosing these three points. The
triangle thus constitutes the simplest cartographic device that enables
the Court to complete its task. whileat the same time avoiding prejudice
to the claims of either Party as they stood in 1979.n in this light, the
link betweenthe 1979claims and the triangle is a fundamental one.
O 24. As can be seen in Figure 2,the new line proposed by the
United States does not and cannot intersect the 200-milelimit of the 10 GULF OF MAINE (101
United States zone within the triangle. Accordingly, it would not allow
the Court to fully delimit the 200-mile zone ofeither Party. It would
alsocornplicatethe task of the Parties - and potentially the task of the
Court - in determining, in accordance with Article VI1 of the Special
Agreement, the later seaward extensionof the maritime boundary estab-
lished in the present proceedings.
25. The United States Memorial anticipates the position the
United States will take in later negotiations or judicial proceedings
under Article VI1 of the Special Agreement. The seaward extension of
the United States line, as described and depicted in the United States
MemorialJ,would allocate to the United States an area of 9,380 square
nautical miles lying beyond200 nautical miles of the United States but
within 200 nautical miles of Canada. This area (larger than Belgium)
would thus become part of the United States continental shelf. The
United States presumably intends that the superjacent waters, in which
Canada has exercisedundisputed fisheries jurisdiction since 1977,would
revert to their former status as high seas not subject to coastal State
jurisdiction. Canada would thus be deprived of a substantial part of its
existing and until now undisputed fishingzone, and of its future exclu-
siveeconomiczone, in order that the United States might exercisejuris-
diction over a substantial area of the continental shelf lying outside its
own exclusiveeconomiczone.
26. The new United States line, in sum, carries the extreme
United States claim of 1976 to the point of extravagance, so as to
encompass not only the whole of Georges Bank but very nearly the
whole of the Gulf of Maine area, scarcely stopping short at claiming
part of Nova Scotia's land territory. For, as the United States is obliged
to admit, its line would"intersect the Nova Scotia peninsula" if it were
not "adjusted" so asto "take account of NovaScotia6".
Section II. The United States Memorial Reduces Equity to a Matter
of Administrative Convenience
27. The United States Memorial emphasizes the theme that the
whoie of Georges Bank should fall within United States jurisdiction for
reasons of administrative convenience or managerial expediency.
Monopoly is presented as equity under the guise of principles that pur-
portedly relate to the conservation of resources and to minimizing the
potential for disputes'.The United States in effect asserts that there is
an "equitable" principle of maritime boundary delimitation requiring
that the entirety of a large and rich fishing bank shouldbe apportioned
to only one of the two coastal States adjacent to it, with the professed
objective of facilitating management. The United States further asserts
UniredSioIerMcmoNol, p. 199.Figure3Seealsop. 185.para.304.
@
UniredSroresMernorialp. 179,para.302.
'Unfled Slofes MemoriOIp. 5, paras. 16-17: pp. 205-209. paras. 316-324; p. 209,
para.329.IiII COUNTER-MEMORIALOFCANADA 11
that there is an "equitable" principleof maritime boundary delimitation
requiring that disputes should be avoided by giving one coastal State al1
the rights at stake and the other none.
28. The theme of administrative convenience or managerial
expediency underliesand helps to explain the United States Memorial's
preoccupation with the notion of "natural features", a "natural buffer
zone", and a "naturai" or "readily observed" boundary8.This preoccu-
pation is further reflected in unsupported, erroneousor distorted conten-
tions regarding fish distributions, "three separate ecological régimes",
and the Northeast Channel as "one of only twosignificant breaksin the
surface of the continental shelP". The United States Memorial seizes
upon the Northeast Channel and attempts to construct a doctrine of
administrative convenience in fisheriesmanagement that ignores the'
management of seabed mineral resources and yet at the same time is
ultimately based on this wrinkle of geomorphology. Nowhere is it
explained how the surface of an admittedly continuous continental shelf
can be "broken" by a feature that can be depicted onlywith ihe aid of
multiple vertical exaggeration. Despite al1the emphasis on natural fea-
tures, however, the United States Memorial relegates to obscurity the
Great South Channel that marks the western limit of Georges Bank off
the Coastof Massachusetts.
29. The doctrine of administrative convenienceenunciated in the
United States Memorial is inconsistent with the concept of the single
maritime boundary. It strikes at the very legal basis of title of the
coastal State. It is untenable under any view of international law or
equitable principles. It is untenable in the light of international practice,
including the practice of the United States. And, above all, it is clearly
untenable under the 1982 Conventionon the Law of the Sea, despite the
attempt of the United States to justify it on the grounds that the
"thrust" of the convention is allegedly in favour of "single-State man-
agement'"". In fact, neither of the Iwobasic thrusts of the Conventionon
the Law of the Sea in relation to fisheries jurisdiction can be made to
support such a view.The first of these thrusts is to givethe coastal State
or States (and not some mythic "single State") the management of fish-
ery resources adjacent to their shores,on the basis of the 200-mile prin-
ciple and no! on the basis of fish distributions. The second and comple-
mentary thrust is to require States to cooperate in the conservation of
fishery resources where theyoccur within the economiczones of two or
more States, or in the economic zone and in adjacent areas of the high
Wniled Srores Memorioi. p. 121.para. 196;p. 144. para. 256; pp.175-176,paras.292
and296; p.201. para.315:p. 206, para.322.
9 UniredSioresMemorioi. p20, para31:p. 175.para. 296p.201, para.315
IoUniredSforc~Memorial.p. 120,para. 192.12 GULF OF MAINE 1121
seas". The convention, in fact, foresees and provides for the divisionof
fish stocks or fishing banks between neighbouring coastal States. The
United States Memorial stands the conventionon its head in invokingit
to reject cooperation inthe conservationof transboundary stocks.
30. The general interest of the international community in avoid-
ing disputes in international relations is also made to perform similar
acrobatics. The United States Memorial attempts to translate this inter-
est into a spurious principle for the determination of a specificmaritime
boundary, allegedly minimizing the potential for disputesby excluding
one of the two Parties from an area that is commonto both of them. No
authority for such arguments can be found in the Convention on the
Law of the Sea or in general principles of international law. Carried to
their logicalconclusion,they would imply, for instance, that the Canada-
United States boundary through the Great Lakes should be redrawn to
givethem al1to onecountryL2.
31. In sum, the treatment of conservation and dispute avoidance
in the United States Memorial is tendentious in the extreme. Each of
these principles or objectives represents a perfectlyvalid modusoper-
andi. Neither can be tortured into the semblance of a modusdelimi-
tandi, despite the transparent reasoning the United States Memorial
devotesto the attempt.
Section III. The United States Memorial Seeks to
Refashioo Geography
32. The geography of the Gulf of Maine area is scarcely recog-
nizable from the description provided in the United States Memorial.
Nova Scotia becomesan unnatural "protrusion" that can be ignored for
purposesof delimitation, despite the fact that it is the decisivegeograph-
ical feature in the Gulf of Maine area and a major feature defining the
11United Nations Conventionon the Law of the Sea. A/CONF.62/122, 7 October 1982.
Signed IO Deccmber 1982 al Montcgo Bay. The first "thrust" is reflecinier alin,
Article 56: Rights, jurisdictian and duties of the coastal Statc in the exclusive
econamic zone:
Article 57: Breadth of the exclusiveeconomiczone;
Article 61: Conservation of the living resources;and
Article 62:tilization of the livingresources.
The second "thrust" is founinter nliin:
Article 63: Stacks occurring within the exclusive cconamic zoncs of two or more
caastal States or both within the exclusive econzoneand in an area beyond
and adjacentta il;
Article 64: Highly migratory species;
Article 66,ara. 4: Anadromous stocks;
Article 67, para. 3:adromous species;and
Article 123:o-operation of States bordering enclosedor semi-enclosedseas.
In negatiations lcading up ta the Treaty of Paris of 1783, Great Britain10fixosed
the boundary between the United States and Canada on the southern shore of the
and formast of the boundary the median line was adapted. See P. Pondavcn: Les Loes-
fronri2m.Paris. Editions A. Pedone, 1970,p. 61.1131 COUNTER-MEMORIAL OF CANADA 13
Gulf itself. On the one hand. the entire area is treated as if it had a sim-
ple and straight coastline, and on the other hand the United States
Memorial makes much of the "concavity" ofthe Gulf of Maine and of
"four-fold" change of direction in the Canadian Coast. These
magic-lantern effects are produced by a process of over-simplification
and by a selective presentationof the facts.
33. The United States Memorial is especially notable forempha-
sizing macrogeographyat the expenseof the particular geography of the
Gulf of Maine area. The device is most obviousin the United States'
attempt to suggest that the north-south orientation of the land boundary
in the area is an east-west orientation, in clear contradiction of the facts
as they may readily be established by a mere glance at a map. Thus the
United States Memoria! simply states that the "principal" international
boundary extends from the Pacific to the Atlantic in a "generally" West
to east direction", and leaves itto be assumed - and wrongly assumed
- that this descriptionalso applies in the Gulf of Maine area.
34. To reinforce the suggestionof a universal east-west boundary
orientation, the United States Memorial insists repeatedly that Canada
lies north of the United States- if one excludesthe state of Alaska and
its not inconsiderablearea of 1,518,700square kilometres14.This insist-
ence is ill-founded. In fact, large parts of Canada lie latitudinally south
of large parts of the United States. Over 70 percent of Canada's popula-
tion livessouth of the 49th parallel, and over 30 percent of the United
States landmass (excludingAlaska. and there is of course no reason for
excludingAlaska) lies north of the most southerly point of the Canadian
landmass at Middle Island in Lake Erie, at latitude 41°41 IN. More per-
tinent still, several important regionsof Canada lie due east or due West
of neighbouring regions of the United States across a generally north-
south boundary. In particular, New Brunswick liesdue east of Maine,
and Nova Scotia lieseast of New England, across the Gulf of Maine.
35. The careful refashioning of geography is essential to the
United States claim. Only in this way is the United States able to sug-
gest that, because Canada and the United States are adjacent States on
the continental scale, they somehowcannot have oppositecoasts in the
Gulf of Maine area". Only in this way is the United States able to
invent the notion of so-called "primary" and "secondary" coasts in a
vain effort to dismiss Nova Scotia from consideration and to discount
the fact that the Parties indeed do have oppositecoasts in the Gulf of
Maine area. And onlyin this way is the United States able to advance
the patently absurd contention that Nova Scotia "protrudes south of the
land boundary" or "southeast ofthe international boundary ter mi nu^'^"
and somehow invades United Statesspace. Such a view of geography
wouldmake Nova Scotiapart of the United States,and mostof Maine and
al1ofAlaskapart ofCanada.
fl UnitedSloles Mernorial.p.para.20.
IgUniredStotes Mernoriap.II ,ara.20;p.169,para.280p.174,pra. 289.
" UnitedStotes MernoNolp.169.para.281
16United Slores Memoriolp. 4.para.II:p.174, paras288-289 p. 214,Submission
B(liic).115-161 COUNTER-MEMORIAL OF CANADA 15
fails to examine the concept of the single maritime boundary, its origins
in the law of the sea, and its legal consequencesfor the present proceed-
ings.This concept flowsfrom the newdoctrine of the exclusiveeconomic
zoneand its spatial "unification" of the various formsof functionaljuris-
diction of the coastal State within a distance of 200 miles'z.The legal
consequencesare clear. First,the 200-miledistance principlegives much
greater importance to the factor of proximity, and greatly reduces or
eliminates any significance that might have attached to geomorphology
and to the doctrine of natural prolongation. Secondly, the single mari-
time boundary concept requires a careful balancing of those factors that
relate toal1the jurisdictional purposes in question - in particular those
that pertain to living resources and to mineral resources - in order to
ensure or confirm that an equitable overall result is in fact achieved.
Among these factors, economic dependence mustfigure prominently, in
view ofthe economiccharacter of the rights of the coastal State in rela-
tion to the shelf, the 200-mile fishingzone and the exclusiveeconomic
zone.
40. The United States Memorial pays no heed to any of these
necessary implicationsof the singlemaritime boundary concept. Much is
said about the emergenceof the 200-mile fishing zonebut nothing is said
about the source of title to that zone; norabout the profound transfor-
mation of the concept of the continental shelf withthe emergence of the
concept of the exclusiveeconomiczone; norabout the new importance of
the 200-mile distance principle; nor about the economic dependence of
the coastal State. In this and in other respects the United States
Memorial is remarkable for its silencesand omissions.
Section V. The United States Memorial Divorces Equitable
Principles from International Law
41. The Parties are in essential agreement that the delimitation to
be effected in this case must be in accordance with equitable principles,
taking account of al1 relevant factors or circumstances, in order to
achieve an equitable result". Nevertheless, they differ profoundly in
their general approach to the law governingthe determination of the sin-
gle maritime boundary in the Gulf of Maine area. The United States has
worked backward, from objectiveto principles. Canada has worked for-
ward, from principles to result. The history of the dispute alone is
enough to provethis point.
42. There are a number of reasons for this divergence from a
norm that the Parties profess to hold in common. Perhaps the most
important is that the United States Memorial, in developingand apply-
ing the agreed rule that delimitation mus1be effected inaccordance with
equitable principles,overlooksor ignoresthe more basic rule that delimi-
talion must be effected on the basis ofinternational law - a general
" Funclionaljurisdiction.of course. includcssovercignrights in respect of seabcd and
watcr-colurnnrcsourcesbutfalls wellshortof autrightsovercignty.
" ConndinnMemoriol.p. 119.para278: UnitedSlotes Mernorp.l139.para.237.16 GULF OF MAINE 1171
rule that is expresslyincorporated in Article 11of the Special Agreement
and in Articles 74 and 83 of the Convention on the Law of the SeaZ4.
This statement is not a mere paradox. It is true of course that equitable
principles themselves constitute the fundamental norm in the'law of
maritime bound~ ~ ~~ ~ ~ ~hat norm loses its character of law if it is
applied outside the total frameworkof international law applicable in a
given case - that is, if equitable principles and relevant circumstances
are identified without referenceto this framework.
43. The developnientand application of so-called equitable prin-
ciples outside the law is seen, for instance, in the United States
Memorial'streatment of the sourcesof law, whichis at variance with the
Special Agreement, with Article 38 of the Statute of the Court, and with
Articles 74 and 83 of the Convention on the Law of the Seaf'. The
United States discounts the relevanceof Article 6 of the Conventionon
the Continental Shelf ta the present proceedingsZ6d ,espite the fact that it
is the only applicable conventionalrule of law binding both Parties and
is equally compatiblewith the delimitation of the 200-mile fishing zone
or economiczone. The United States founds its arguments on the Cris-
badarna award. desuite the fact that. even where it minht have some
rclcvancc. that casc'could only be a subsidiary means for determining
rules of law. And finaIl\'.t,. United Stlitcs ignores-maior devclonnicnts
in the contemporarylaw of the sea - in particular, the emergenceof the
200-mile distance principle and the doctrine of the exclusiveeconomic
zone - despite their being at the origin of the very concept of the single
maritime boundary.
44. The attempted divorce of equitable principles from interna-
tional law results in a boundary proposal that is as eccentric as it is
extravagant, for the very reasonthat it is not based on law. The United
States leaps from the incontrovertiblestatement that the Court may not
'' dectdcd"in sccord3nceatih ihc prlnciplcs and rule, uf intcrnstldId-e3pplisdblein
ihc mditcr as bciuecn thc Pdrt8cs" AIIICIC 74(1) 01th~Can\cntioon thc Law ofihe
Sca staies:
"The dclimitation of the cxclusivcccanomiczonesbetwccnStateswith opposite or
adjacentcoartsshall beeffcctcd by agreement on thebasisof international law, as
rcferrcd to in Article 38 of the Statutc of the lntcrnational Cour1of Justice. in
order to achicveanequitablesolution."
Article83(l) staier:
"Thc dclimiiatiun of ihcontinentalshclf bctuccn Staics uith opposioradpceni
cmsts shd1bc cffectcd b) agrccmcnton thc bws of inicrnai8unalIsw. 3s rcfcrrîd
tu tn~ ~ ~ ~ ~ ~~ ~~ ~ ~laiulc 01Ihc Intcrnaitonîl Cour1of Juii~c In order in
achicvcan cquitablc solution."
As secnin fmtnatc 24. Articlcr 74(1) and 83(1) of the Canvcntioan the Law of the
Scaspeciiically refer ta Article 38of the Statute of the lntcrnatianal Court of Justice,
which inturn setsout the sourcesof law the Court iscmpowercdto apply.
" The United StatesMcmarial scaiccly touchcsupanthe applicability of Article 6 to the
preseni pracecdings.In the few instanceswhere Article 6 is meniioned, the United
StatesMemarial focuseson ils "special circumstances"provisionand onjudicial statc-
mentsregardingthe applicability of Article 6 in othcascs.Unired Slofa Mernorial.
p. 101.para. 165;p. 125,para. 204; p. 126. para. 206: pp. 129-131.paras.215. 216.
218and 220.Il81 COUNTER-MEMORIALOF CANADA 17
"split the difference"" to the indefensible propositionthat the Court
may not "split" Georges Bank. In attempting this leap, the United
States forgets that dividing Georges Bank is not "splitting the
difference". On the contrary, it is a result that stems from the
application of law or, in other words,from the identificationof equitable
principlesand relevantcircumstanceswithin the law.
Section VI. The United States Memorial Relies upon a Precedent
That 1s Not a Precedent and a Method That the Memorial
Does Not Apply
45. The 1909Grisbadarnaaward betweenNorway and Sweden'a,
which applied seventeenth-centurylaw to give effect to a seventeenth-
century treaty, was decided long beforethe emergenceof the continental
shelf doctrine and the 2ûû-miledistance principle. It has neverbeen con-
sidered a leading case in the field of modern maritime boundary law,
especiallyin relation to boundaries beyond the territorial sea. il has not
been followedin State practice, nor in any judicial or arbitral decisions;
and it was expresslydiscarded by the International Law Commissionas
a source for determining the legal rules governingeven the delimitation
of the territorial seaZ9.The reasons for this are not hard to find: the
Grisbadarna award was dictated by special circumstan~es~~ unique to
that case. The most important of these circumstances was the common
view of the parties that the small Grisbadarna lobster fishing grounds
should not be divided,given that both Norway and Sweden claimed
them in their entirety". The contras1with the present proceedings could
not besharper.
l7UniredSloresMemorial. p. 101.para. 166:
" Arbitrol owardin ihe quesrionO/rh~deiimiiotionof o cerloinpar1O/ rhe rnoririmc
boundoryberwecnNorwoy and Sweden. See J. B. Scott. cd.:The Hogu~ Courr
Reporrs.New York. Oxford University Pras. 1916, pp. 121-140.Hcrcinaftcr citas
theGrisbadnrno award.
29Ymrbooko/rhe InternorionalLowCommission. 1954.Vol. II. p. 15Yenrbwk o/rhe
lnternorionolLowCommission ,956.Val. II, p. 272.
As regards thGrirbodorno award, the United States deleg10ethe International Law
Commission, M. O. Hudson. expressed the vicw that "the arbitratian award been
dictated by special considcrationYeorbook O/ rhe lnternotionolLow Commission,
1951, Vol. 1.p. 286. para. 119.See also the letter to the United Nations lrom the Per-
manent Delcgation of Norway, datcd 13 February 1953Yeorbookofrhe lnternorionoi
LowCommission. 1953. Vol.II. pp. 83-84, which rtated: "II was due ta spcial reasons
that the dividingnc in the award was in lac1drawn in direction West, 19" South and
not 20' South." Sec alsa the letter 10the United Nations fram the Swcdish Dclegation
dated 7 May 1953. at pp. 87-88, which stated: "The insignificant dcparture from the
(prpendicular) principlc repraented by the fronticr cstablishcd by the Court in this
particulacasewas duc to spcial circumstanca."
fiJ.B.Scott. ed.: ThHague CourtReport$. 1916, p. 129.The Tribunal statcd:
"Whereas. the partics agrcc in admitting the great unsuitability of tracing thc
boundary-linc acrass impartabars."
The Tribunal's award thus reflectcd the agreement of Swcden and Norway that the
Grisbadarna Bankshould na1bc divided. The United States Mernorialsuggcsts, erranc-
ously. that this view was shared by the Tribunal. which in fact did no1 pronounce on
the matter but simply twk into account the common view of the parties. United
SioresMemoriol. p. 113. para. 180; p. 121, para. 196: p. 143. para. 251 and p. 144,
para. 255.18 GULFOF MAINE 1191
46. It is perhaps not surprising that the United States Memorial,
in casting about for some authority to support an untenable proposal
relating to the new phenomenonof a single maritime boundary extend-
ing out to 200 miles, should iïnd itself obliged to rely on an old and
unrepresentative case dealing with a narrow territorial sea delimitation.
What is surprising, on the other hand, is that the United Statw should
so far misread the Grisbadarna award as to al1but overlookils enuncia-
lion of one principle that is indeed germane to the present proceedings:
namely, that the relative importance of established fishing patterns to
the States concerned representsa factual circumstance to be given con-
siderable weight in a delimitation affecting fishingrights".
47. The Grisbadurnu award, in sum, does not stand for what the
United States says it stands for. So far as it may be relevant to the
present proceedings,it supports the Canadian position.So far as it illus-
trates the application of the perpendicularity methodin a territorial sea
delimitation, that method is employedonly in name in the United States
Memorial. For the line proposedby the United States bears no resem-
blance to a perpendicular line, no relationshipto the general directionof
the coasts, and indeed no relationship to any of the "equitable
principles" it isalleged to observe. It is manifestly an arbitrary line, so
constructed as to widen the area of dispute and to maximize the United
States claim - a claim that was inherently unreasonableand inequit-
able even beforeit assumed the mantle of perpendicularity in the United
States Memorial.
Section VII. The United States Memorial Rejects or Prejudices
Forms of Cooperation That Are Fundamental to International Order
48.
The United States Memorial ignores the principles embodied
in the 1982 Conventionon the Law of the Sea regarding cwperation in
the conservation and management of fishery resourcesoccurring in the
economiczones of neighbouring coastalStates, in an effort to justify a
monopolisticclaim and to fashion a self-servingdoctrine of administra-
tive convenience.Underlying this approach is the implicit thesis that
bilateral cooperation in fisheries management and conservation is unat-
tainable and unworkable - although the United States is prepared to
J.B.Scott. cd.: The HagueCourt Reports. 19pp. 130-131:
"Thc circumstance that lobstcr fishing in thc shaais of Grisbadarna has bccn
carricd on for a much longer lime. to a much larger cxtent. and by a much larger
number of fishcrmcn by the subjects of Sweden than by thc subjects of Norway.
Lobsirr firhiirmuch the most imprtdnt lirhton ihc (irisbadarnd bdnkr.
ihis fiihing king \Cr)ihing that glrc.5ihc bmk, tialue3s fishcr~.nd
tackle and craft necessary ta cngagc in fishing as faseaas the banks in the
questioarcsituated; and
Kmtcr than ta thmc of Hvalcr, thc latter having. at least untii comparatively
recent limes. cngagcd raihcr in navigation than fishing."rzoi COUNTER-MEMORIAO LF CANADA 19
make an exception for tuna or Salmon, for example. Fortunately, this
thesis is not borne out by the long and generally siiccessful history of
cooperative management of fisheriesand other resourcesby Canada and
the United States". Unfortunately, however, the United States
Memorial's advocacyof this thesis could prejudice international efforts
to promote cooperationin the management of transboundary resources
around the world; for the extensionof fisheries jurisdiction to 200 miles,
far from doing away with the need for such cooperation, has made it
more necessary than ever. The United States Memorial does no service
to international order by arguing that the solution to conservationprob-
lems lies in rejecting cooperation and granting a monopoly to the
allegedly"dominant" Party.
49. There is, moreover,yet another profoundlydisturbing way in
which the United States Memorial calls into question formsof coopera-
tion that are fundamental to international order. Modern transportation
systems require cooperativeoperational arrangements that cannot be
based on or restricted by national boundaries. Thus, for instance,
humanitarian cooperation in the field of sea and air search and rescue
has long been organized without reference to national boundaries and
without prejudice to claims of sovereigntyand jurisdiction. Canada and
the United States, like many other countries, have entered into coopera-
tive search and rescue arrangements on such a non-prejudicialbasis. It is
to beregretted that the United States Memorial nowseeksto have these
arrangements serve the quite different ends of a maritime boundary
determination. And it is an occasion for even greater regret that the
United States Memorial misuses cooperative defence arrangements in
the same way, and in the process givesan inaccurate picture of Canada's
contribution to North American defence.
50. The cooperativearrangements in question - like mostof the
State activities invoked by the United States - are totally unrelated to
the present dispute in law, in subjectmatter, or in time. They have noth-
ing to do with equitable principles or relevant circumstances. Their
irrelevanceapart, Canada is concerned that they have been raised at al1
in the context of a maritime boundary dispute. Such arrangements
require mutual confidence. Governmentsmay nowwell feel compelledto
review their cooperative arrangements for civil aviation, defence and
similar matters to ensure that they cannot give even the remotest
appearance of compromisingtheir sovereigntyor sovereignrights.
51. More generally, there is something disquieting about the
preoccupation withthe notion of a "natural boundary", "natural buffer
zone" and "natural features" that is so pervasively manifested in the
United States Memorial. There is no natural boundary in the Gulf of
Maine area, unlessit be the biologicaltransition zonein the Great South
Channel-Nantucket Shoals-Cape Cod area that has been identified
anddescribed by United States scientistsl". More important still,
1'Thc recordof cwperative bilateralmanagemeoffisheries and othresourceby
Canadaandthe UnitedStatesisdiscussedin paras.234-242.
Y SceConodionMemoriol. pp. 52-54. para.97. See alsa paras.2ofthisCounter-
Memorial.international law seeks equitable boundaries in the sea, and these must
be left for human beings and human institutions to determine; for the
equitable result is a human concept and a human concern, and not a
concern of nature or providence. It is precisely the absence of natural
boundaries that has made the sea a great highway for international
transport and communication. Certainly the Northeast Channel has not
been a boundary or a barrier for Canadian fishermen fishingon Georges
Bank or for the other shared uses ofthe Gulf of Maine area. Reliance on
"natural boundaries" or "natural buffer zones" is misplaced in both fact
and law.
Conclusion
52. ,The United States Memorial has introduced not only a new
line but a novel conception of equitable principles and relevant circum-
stances. But this noveltydoes not flow from creative developmentof the
applicable law. It is a noveltywithout substance. The attempt to give it
substance in the United States Memorial, however, obligesCanada to
review the facts of this case in some detail in order to distinguish
between relevant and irrelevant circumstances and to correct inaccura-
cies. This task is addressed inPart II of this Counter-Memorial. PART II. RELEVANT CIRCUMSTANCES
CHAPTER 1
. .
POINTS OF AGREEMENT
Introduction
53. Because of the vast wealth of factual material available con-
cerning the Gulf of Maine area, and in order that the central points in
controversy not be obscured by an over-ahundance of detail, Canada
wishesto take this opportunity to emphasize that certain critical facts in
the present case are essentiallyundisputed. In the light of the Memorials
submitted by the Parties, there is a hard core of relevant facts or circum-
stances that support Canada's case. Although the Parties differ on the
emphasis to be placed upon them and the conclusionsto be drawn from
them, the followingfacts, in Canada's view,may be taken to have been
agreed to by both Canada and the United States'.
dction 1. The Objeet of the Dispute
54. Both Mernorials recognize implicitlyor explicitly that the
object of the present dispute is Georges Bank, one of the world'srichest
fishing grounds. As provided in the Special Agreement, the Court is
asked to determine the course of a singlemaritime boundarydividingthe
Parties' continental shelves and fishing zones (now,in the case of the
United States, an exclusiveeconomiczone): The single maritime bound-
ary willdelimit m~lti-~ur~o~ones, effectivewith respect to "sovereign
rights or jurisdiction for any purpose over the waters or seabed or sub-
soi12".
Section II. Geography
55. The two Memorials agree on certain geographical facts.
While the Gulf of Maine area is a physicalcontinuum, the United States
Mernorial hascharacterized it as having an "interior" and an "exterior"
component3, resemblingthe "inner" and "outer" portions described in
the Canadian Memorial*.The Parties are also agreed that the relevant
area includessome part of the Atlantic-facing coasts outside the Gulf of
Maine itselfJ.
1 So far as Canadais conccrned,these facisbcadeemed to have bccn admittfor
purposcof Rule49, para.2. of Rulesof Courtor foany otherpurPoses.
SpcciaAgrccmeiit.Articles II andIII.
5 UnircdSlqtpsMemori<ll,p19, para.25.
CanadionMemoriol.p. 137. paras.329.330.
' UniredSraresMemoriol. p. 19.para.25:CnnodionMemoriol. p. 24. paras. 21-22:
p.27.para.32. GULFOF MAINE i261
Section III. Fisheries
56. As to resource exploitation and established patterns of
dependenceon Georges Bank, the two Memorials bothdemonstrate that,
at least since World War II. the historic developmentof Canada's par-
ticipation in the fisheries of Georges Bank has been considerably more
dynamic than that of the United States6. Both Memorials further show
that - particularly as regards the crucial scallopcatch- contemporary
Canadian harvests of Georges Bank fishery resources haveequalled or
surpassed those of the United States'. This was indeed the situation at
the tirne both Parties extended their fisheries jurisdiction to 200 miles
within three months of each other'.
57. As to the ports involved in the Georges Bank fishery, the
United States Memorial simply States that "United States" or "New
England" fishermen,on the one hand, and "Canadian" fishermen.on the
other, frequent this fishing groundP.The Canadian Memorial is more
specific inpointing out that the United States fishery on Georges Bank
is concentrated in a handful of ports of Massachusetts and extends
beyond that state only to a small portion of the Rhode Island Coast;
whereas the Canadian fishery on the Bank is dispersed among many
coastal communities in Nova Scotia's southwestern countiesof Lunen-
burg, Queens,Shelburne, Yarmouth and Digby"?
Section IV. The Conduct of the Parties
58. Both Memorials also note that the Parties signed (although
the United States later proved unwillingto ratify) the 1979 Agreement
on East Coast Fishery Resources. They chronicle the history of the
appointment of special representativesof the Prime Minister of Canada
and the President of the United States,and their negotiationof the Spe-
cial Agreement now before the Court, as well as its companion East
Coast Fishery Resources Agreement. The Canadian Memorial, however,
placesgreater emphasison the substance of the latter agreement both as
a historicalfact and as an objectiveindication ofthe nature of an equita-
ble result in the present proceedings".
59. Regarding other areas of the history of the dispute, the two
Memorials both showthat in 1965Canada began to use an equidistance
boundary for the issuanceof offshore oil and gas exploratory permits on
Georges Bank, and that Canada on severaloccasionscommunicated this
policy and practice to the United States, providing maps showing the
4ConadionMernoNol,pp. 66-71, paras. 133.142: UniredSroresMernorial. pp. 43-55.
paras.68-84.
ConodionMernorial.p.67. para. 134:UnitcdSroresMemoriol.p. 50. Para. 83.
CanadianMernorial.pp.99-IW. para. 223: UnitedStatesMernarial.pp. 55-56.
para.87.
UniredStatesMernorio/.pp.41-56, paras.60-88andpassim.
10ConadionMernoriol.p. 28Figurc10:pp.32-36, para.6-63.
" para. 155:pp97-98.paras.161-163.aras.260-276;UnitedStatesMernorial93-94.location of the Canadian permitsI2. Il can also be seen from either
Memorial that the United States for someyears questioned,onlythe pre-
cise application of Canada's equidistance methodology in accordance
with Article 6 of the 1958 Conventionon the Continental Shelf".
Section V. The Continental Shelf
60. A substantial measure of accord can also be found in the two
Memorials on certain other points relating ta the continental shelf. It is
of course agreed that bath countries are parties ta the 1958 Convention
on the Continental Shelf". It is equally undisputed that the continental
shelf in the Gulf of Maine area is a part of a singleuninterrupted shelf;
in the wordsof the United States Memorial, the seabed of thisarea '7sa
part of the North American Atlantic continental margin, which extends
from the Straits of Florida in the southwest to beyond the Grand Banks
of Newfoundland in the northeast15",and its geological structure "is
believed ta be essentially continuousk6".Although differing markedly in
the emphasis placed on the Northeast Channel, the Memotials seem to
agree on the basic physicalcharacteristics of that channel.
61. Bath Memorials show that the Northeast Channel is a shal-
lowdepressioncompared to ils surrounding continental shelf areas". The
United States Mernorial recognizes that the Northeast Channel is
145metres shallowerthan the deepest point in Georges Basin,which lies
between Georges Bank and the Coastof MaineLBC . oncerning the Great
South Channel, although the United States assiduously keeps this fea-
ture in the background, the twoMemorials also show essential agree-
ment on ils basic physical characteristics. While mostly attempting to
ignore its existence, the United States Memorial does at one point
describe the Great South Channel as a shallow depression that "reaches
depths of no more than 46 fathoms (85 metre~)'~";the Canadian
Memorial agrees that it is "about 80 metres deepZ0".Because of the
choice of 50 fathoms (91.5 metres) as their lowest contour, the illustra-
tions in the United States Mernorial fail to depict the Great South
Channel, but, as the Canadian Memorial shows by its use of standard
contours, the Great South Channel is roughly bounded by the 60-metre
l2 ConodionMernoriai. pp.93-94. paras.206-208Unirtd Sinles Mernoriolp. 82, paras.
136-137.
" mra. 136.ernoriol, pp. 93-94. paras. 206-208:United Srores Mernoriol.p. 82.
,~ ~
" ConodionMernoriol, pp. 97-98. para. 21UnitedStoter Mernoriai.p. 82, para. 135;
P.84.para.142.
" UnitedStatesMemoriol. p. 20, para. 30CanadianMernorial. p. 25, para. 24: p. 37,
para.64.
l6 UniredSroresMernoriol,p. 24. para.3ConodionMernorial, p.47, para.83.
" UnitedStates Memorial, p. 20, para.31: ConadianMcrnoriol, pp. 24-25,para. 23;
v. 25vara.25.
'Vnited SloicsMernoriol. p.20, para.31.
Iq UnitedStoresMemoriol. p.23, para.33.
" CorndionMemorial, p. 24. para.23. 24 GULF OFMAINE 1281
line". Thus, the Great South Channel, like the Northeast Channel, is a
shallow, gently sloped depression somewhat deeperthan ils surrounding
continental shelf.
62. Finally, the Canadian and United States Mernorials further
agree that the continental shelf at the eastern edge of Georges
Bank descends precipitously, dropping todepths of 1,000 fathoms or
2,000 metres within a few miles". This sharp drop obviouslydwarfs the
depressions represented by either the Northeast Channel or the Great
South Channel.
Conclusion
63. The foregoing description of points of agreement is no1
intended to be exhaustive. The facts listed, however, are of central
importance and are. it is submitted, sufficient in and of themselves to
decide certain key points in favour of Canada. Factual contentionsin the
United States Memorial that are specifically denied by Canada, and
additional facts highlighting the issues in this case,will be set forth in
the followingchapters.
0-0 " Conodion~>rnorioi.Figures2, 4. 9. 15. 16, 23 and 31; CanadianHydragraphicSer-
vice Charts4003C and 4003E;UniiedSroresMernoriaiFigures 34, 5, 8. 9. 11, 13.
14.15,16.17.26.27,28.29,30.31,32,34and35.
l' UniredSraresMernoNol.p. 23. para. 33 andthe Figures referredto in fwtnate 21
above;CanadinnMemoriol. p. 37, para.65 andthe FigurerreferredIo in fwtnate 21
above. CHAPTER II
GEOGRAPHY
Introduction
64. The Parties are agreed that a maritime boundary determined
in accordance with international law must take account of the geograph-
ical circumstances in the area relevant to the delimitation and that in
this case the relevant area is the Gulf of Mainerea. The United States,
however, has defined the Gulf of Maine area in an arbitrary manner
without referenceto geographical criteria and has relied upon extraneous
macrogeographical factors that distort and obscure the situation in the
relevant area.
65. The Gulf of Maine area comprises (i) the Gulf of Maine
itself, with al1of its subsidiary embayments; (ii)the banks that form its
seaward rim, including Georges Bank; and (iii) the Atlantic-facing
coasts of Nova Scotia, northeast of Cape Sable, and of Massachusetts
and Rhode Island, southwestof Cape Cod and Nantucket, that demon-
strate economic links to the resources of Georges Bank. The geograph-
ical relationship of the Partiesa 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 borderingon 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, and on the United States side, the concavity in the northwest
corner of the Gulf and the convexityof southeastern Massachusetts. As
additional elements of balance, the Fundy coasts of New Brunswickand
Nova Scotia and the coasts of Maine and New Hampshire al1face the
innermost part of the Gulf of Maine; the coast of Nova Scotia and the
coast of Massachusetts face each other from opposite sides of the Gulf;
and to seaward, the coast of Nova Scotia and the coasts of Massachu-
setts and Rhode Island face the Atlantic Ocean on either side of Cape
Sable and of Cape Cod and Nantucket. This balance is broken only by
the protrusion of Cape Cod and Nantucket east and south of the general
direction of the United States coasts facing the Gulf of Maine and the
Atlantic Ocean.
66. The coastal wingsof the Gulf - the coast of southwest Nova
Scotia from Cape St. Marys to Lunenburg and the coasts of Massachu-
setts and Rhode Island from Cape Ann to Newport - abut the outer
part of the Gulf of Maine area. These coasts are in an essentially sym-
metrical and opposite relationship to each other vis-à-visGeorges Bank.
Factors of physical and human geography - particularly proximity,
physiography, established fishing patterns and economic dependence,
and probable patterns of hydrofarbon exploitation and environmental
impact - al1demonstrate that Georges Bank is adjacent to these coastal
wings and that the eastern part of the Bank appertains to the coast of
Nova Scotia, while the western part appertains to the coasts of Massa-
chusetts and Rhode Island.26 GULF OF MAINE PO1
Section 1. The Particular Geographical Situation in the Gulf of
Maine Area 1s Relevant to the Delimitation; Extraneous
Macrogeographical Factors Are Not
A. DEFINITIO O FTHE RELEVANA TREA
67. In assessing the geographical and other circumstances rele-
vant to a maritime delimitation, tribunals have focusedon the particular
situation of the area within whichthe delimitation iso be effected'.The
identification of this "relevant area"nstitutes an essential step in the
process of assessing the relevant circumstances in order to achieve an
equitable result, because, without a geographical frame of reference, it is
impossibleto distinguish between relevantand irrelevant circumstances'.
68. In the Tunisia-Libya Confinenial Shelf case, the Court
stated:
"It is clear that what is reasonable and equitable in any givencase
must depend on its particular circumstances. There can be no
doubt that it is virtually impossibleto achievean equitable solution
in any delimitation withouttakiog into account the particular rele-
vant circumstances of the area ... It is evident that the first and
most essentialstep in this respect is to determine with greaterre-
cision what is the area in dispute between the Parties and what is
the area which is relevant to the delimitation'."
Although the Court first surveyed "thegeographical context of the dis-
pute ... the general area in which the continental shelf delimitation,
which is the subject of the proceedings,has to be effected"',t "empha-
sized that the only purpose of the description ... is to outline the back-
ground, and not to define legallythe area of delimitation nor to say how
the Court views the various geographical features for the purposes of
their impact on thelegal situations". Indeed,in that case, the Court had
to survey a more general area in order to identify the legally relevant
area. Having defined this legally relevant area, the Court "excluded
from further consideration" other submarine areas and coasts and
focused onlyon those that lay within the relevant area6.
69. The area relevant to the delimitation in the present case is
identified in thetitle and preamble of the Special Agreement as the
"Gulf of Maine area". The Parties agree that this area constitutes the
"relevant area" for determining the relevant circumstances in this case7,
'I.C.J. Reports1969p. 52,para. 9Anglo-FrenchConrinenralShelfaward.p. 54.
para.84;p. 113para.240.
~nglo-FrenchConiinenralShelfawardp. 22.para. 2;pp. 88..ara. 181PP.109-
110para.232;p.IIl.para.236.
I.C.J. Report, 19pp.60-61p,ara72.
I.C.J. Reports198p. 34para.17.
I.C.J. Reporrr198p. 34.para.1%.
V.C.J. Reporrs1982p. 61.para.7See also.pp.41-42p.aras.32-35p:. 82,para. 114.
ConodionMemoriol. p.21.para. 1p. 136para.327:pp. 155-15pa,ra.375United
StoresMemoriol.p. 19para.25andfwtnole2:p. 169para.278.1311 COUNTER-MEMORIALOF CANADA 27
but they do not agree on the definition of the Gulf of Maine area.
Canada has defined it as the Gulf of Maine itself and the coasts that
border it. plus an outer area that includes Georges Bankand the nearby
Atlantic-facing coasts that demonstrate an economic link to the
resources of the Bank, extending approximately from Lunenburg, Nova
Scotia to Newport, Rhode Islands. The United States has deiined the
Gulf of Maine area as "the coasts and geographical fealures from Nan-
tucket Island to Cape Canso, on both sides of the international boundary
terminus, and the marine areas seaward from these coasts to the limits
of coastal State maritime jurisdiction9".
70. The Parties are therefore agreed that the relevant area
encompassesthe Gulf of Maine itself - includingthe Bayof Fundy and
other subsidiary embayments - its seaward rim or sill, including
Georges Bank,and the coast of Nova Scotia from Cape Sable to Lunen-
burg. The United States, however, departs from al1 recognized criteria
by including within the relevant area the entire Scotian Shelf and the
coast of Nova Scotia northeast of Lunenburg, and by excluding there-
from the Atlantic-facing coastsof Massachusetts and Rhode Island from
Nantucket to Newport.
71. The Gulf of Maine area is a geographical term andcan only
be defined by geographical criteria. These are of two kinds: physicaland
human. There is a clear consensus in the scientific literature that the
Gulf of Maine area encompassesthe Gulf of Maine itself, includingits
various suhsidiary features, and the seaward rim or sill that forms the
southern boundary of the Gulf, namely the shoal areas off Cape Sable,
BrownsBank, GeorgesBank and the Nantucket Shoals. Henry Bigelow,
in works described in the United States Memorial as "the leading schol-
arly publications in the field'0",defined the Gulf of Maine in the follow-
ing terms:
"The term 'Gulf of Maine' covers the oceanic bight from Nan-
tucket and Cape Cod on the Westto Cape Sable on the east, thus
including the shore iines of northern Massachusetts, New Hamp
shire, Maine, and parts of New Brunswickand Nova Scotia. The
eastern and western boundariesadopted in this paper are 65O and
70° Westlongitude, respectively. . . The Gulf of Maine has a natu-
ral seaward rim formed by Nantucket Shoals, Georges Bank, and
Browns Bank. We have chosen the 150-fathom contour as the
arbitrary offshoreboundary" .. ."
ConodianMemoriol. p. 21. para.17;p. 27, parap.29. para.35.
UnitedStoresMcmoriol.p. 19.para.25.
'OUnitedStotc~Mcmoriol,p. 71.para. 123.
H. B. Bigelow"Fishesof thGulfaf Maine."Bulletiof the United StaBureou of
FisheriesVol.XL. Part1,1924.p. 7Counur-Memoriol.Annexes.Vol.IV. Anner 4.28 GULFOF MNNE i321
"It [the Gulf of Maine] is a far better marked natural province
belowthe surface of the sea than the shallow recessionof its shore
line wouldsuggest, for ils southern boundary is marked by a shal-
low rim, or 'sill', pierced by three narrow passagesonly. Passing
eastward from Nantucket. with ils off-lying shoals. these. succes-
sively,and the banks that separate them, are: The South Channel
(no1very well defined and only 40 to 50 fathoms deep). Georges
Bank, the Eastern Channel, Browns Bank,the Northern Channel,
and finally the Seal Island or coastal bank off Cape Sable. This
rim, as Mitchell (1881) long ago pointed out, 259 miles in length
from Nantucket to Cape Sable, follows,in its main outlines, the
arc of a circle whose radius is about 167 miles. Along thisarc the
length of Georges Bank, from the deepest trough of the South
Channel to the 50-fathom contour on the slope of the Eastern
Channel, is about 140 miles, with a greatest breadth of about
80 miles from north to south between the 50-fathom contours.
Between these same contours of the Eastern Channel and of the
Northern Channel each occupies about 25 miles of the arc. In
round figures,the area of Georges Bank is 10,000 square miles;
that portion of Browns Bank west of longitude 65°30'W. (taken as
the arbitrary boundary of the region under discussion) is about
550 square miles ...
Ils [the Guli3] larges1bays (Massachusetts on the southwest and
the still larger Bay of Fundy on the northeast) are too wellknown
to need more than passingmention"."
72. Bigelow'sdefinition of the western limit of the Gulf of Maine
corresponds roughly with the western entrance points to the Gulf,
namely Cape Cod and Nantucket, while the eastern limits, identified
variously as 6S030' and 65O, correspond respectively to the eastern
entrance point to the Gulf, namely Cape Sable, and to the eastern end of
the Bay of Fundy at Cape Chignecto". Other scientists have defined the
Gulf of Maine in similar terms".
73. The entire Scotian Shelf from Cape Canso to Cape Sable has
never been considered by geographers or scientists to form part of the
" H. B. Bigelaw:"Physieal Oceanography of the Gulf of MaineBulleiin "/th(inired
SzaiesBureou of FisheripsVol. XL. Part 11. 1924. p. 51Unir~d Borer Mernorial.
O0curncn1ar.vAnnexer.Vol.II.Annex 33.Bigelow'sterminology for the various channels
differs [rom current usage. Thc 'South Channel" is now the Great South Channel. the
"Eastern Channel" is the Northcart Channel. and the "Northern Channel". which is
simply thearea between Browns Bank and the shoals lying off Cape Sable. daes not
carrya speeificappellatioCounrrr-Meniorial. A>ine.rVol. IVAnnex 13.
" This dciinitiodm not includc the uppcr reaches of the Bay of Fwhere the bay
divides into two armr, Chignecta Bay and Minas Barin.
" Sec. for crample. D. Mcrriman: "Thc Hiriory of Georges Bank". in G. McLeod and
J. Pr-11. eds.: GeorgeBonk. Pasr. Presenl and Futurofo Marine Environmenl.
Boulder. Colorado, Weslview Press.1982. pp. 11-13;J.B. Calton. W. G. Smith.
A. W. Kendall, P. L. Berrien and P.Fahay: "Principal spawninareasand limes of
marine firhcs. Cape Sable to Cape Hatteras."Firhéry Bullerin,Vol. 76. 1979,
pp.911-915.1331 COUNTER-MEMORIALOFCANADA 29
Gulf of Maine area. Nor has the United States ever suggestedpreviously
that it formed part of the area relevant to the delimitation. The United
States Memoriai's inclusion of the entire Scotian Shelf as part of the
Gulf of Maine area, therefore,,comes as a complete surprise.Canada
does not accept that the Scotian Shelf - except the southwestern
portion - constitutes part of the area relevant 10this delimitation.
74. In addition to physical geography, Canada considers that
human or socio-economic geography mus1 be taken into account in
defining the relevant area". The United States Memorial appears to
agree, for it states that the identification of the relevant areainvolvesa
determination of "al1 of the geographical factors that are themselves
relevant or are the situs of relevant resources or activitiesI6". This
approach has its basis both in geography and in law. Geography employs
physical and human criteria to define regions", and the Court has
repeatedly stressed the importance of the rnaxim "the land dominates
the sea"". Man inhabits the land, and it is only from baseson land that
he can exploit the resources of the sea and the seabed. Since the issue
before the Court concerns precisely the sovereignright to explore these
areas and exploit their resources, it is only appropriate to include within
the relevant area those coastal communities from which they are or will
be exploited.
75. As explained in the Canadian Memorial, the United States
ports from which significant fishing operationsare conductedon Georges
Bank extend along the Atlantic coast as far as Newport, Rhode I~land'~.
Moreover, any United States exploitation of hydrocarbon resources on
Georges Bank would also be conducted mainly from ports situated in
Massachusetts and Rhode Island (see paragraph 161).Accordingly,that
stretch of the United States coast westward 10 Newport - like the cor-
responding stretch of the Nova Scotia coast between Cape Sable and
Lunenburg - should be included in the area within whichthe relevant
circumstances in this case may be found.
76. Except for contextual purposes, coastal and sea areas other
than those identified in this section should be excluded from further
consideration, since they are irrelevant to the issue beforethe Court.
" ConodianMernoriol.p. 27. paras. 29-32; p. 29. para. 35; pp. 32-36. paras. 46-63;
p.133.paras.316-318;p. 153. para.369.
" UnitrdSrorcsMernorialp. 145.para.258.
" Sec. for example. R. Hartshornc:"Thc NaturofGeography:A Critical Suwey of
CurrcntThought in the Light or the PasAnnalsof rhe Associarionof Arnerican
GeogrophersV,ol. XXIX, Nm. 3 and 4. 1939, pp. 1-469. See especiallypp. 296-302;
Counirr-Mernoriol.AnnexesVol. IV.Annex5;R.Chorley. edDNecrionrin Geogro-
phy. London,Methuen, 1974.
" I.C.J. Reports1969p. 51. para. 9Anglo-FrenchCootinenrolSheljaward. p. 51,
para.77I.C.J. Reporrs1982p.61. para.73.
Is ConodionMernoriol.p. 27. para.32; p. 34. para.53; p. 36, paras.62-63; pp. 146-147.
paras. 353-354.30 GULFOF MAINE Lw
B. THEMACROGFOGRAPHIC COANLTEXT
77. The function of a survey of the macrogeographical situation
is to place the area to be delimited in its proper contextand nor to indi-
cate the factors relevant to the delimitation. These factors, once again,
can only be found withinthe relevant area.
78. The United States Memorial begins witha discussionof mac-
rogeography fromwhich the United States attempts to extract conclu-
sions central to its argumentz0.Part III of the United States Memorial
opens with the statement that "an equitable delimitation must respect
the broad geographical relationshipof the Parties"". No authority is
cited, and no legal reasoning is adduced in support of this novelproposi-
tion. On the contrary, al1 the jurisprudence surveyed in the United
States Memorial emphasizesthe particular geographical situationin the
relevant area. Indeed, the Court in the Tunisia-Libya ConrinenralShelj
case laid heavy stress on the need to define the extent of the area rele-
vant to a particular delimitation, so that the relevant circumstances
themseives can be identified".
79. The United States Memorial extracts from its discussionof
macrogeographythree elementsto which it attaches legal relevance:
". ..the general northeastern directionof the coast . . . the adja-
cency of the two States - Canada to the north and the United
States to the south of the common land boundary - and . . . the
locationof the international boundary terminus in the northeastern
coiner of the Gulf of Maine" . . ."
80. The geography of the Gulf of Maine area is inimical to the
geographical premises on whichthe United States boundary proposal
is based. Hence the appeal to macrogeographical factorsextraneous to
the delimitation. By concentrating on generalized continental-scale
phenomena", the United States seeks to minimizethe importance of the
particular situation in the Gulf of Maine area and to blur or brush aside
matters properly relevant to the issue beforethe Court, namely: (i) the
juxtaposition of the territories of the two States and the general direction
of the land boundary in the region bordering the relevant area; (ii) the
position of the terminal point of the established international boundary,
relative to the agreed starting point of the maritime boundary to be
'OUniredSioresMemorialpp. II-19. paras.20-24.
" UnircdSSiars emoriol, p169,para.280.
" I.C.J.Reporr1982. p.41. paras.32-35;pp.60-62,paras.72-75;p.82, para.114.
" UniiedStoresMemoriolp. 169para.280.
l4Appealsto contincntal-scalephenomenamus1be suspectas primo/acie praduc-
tivcof distartions.The totallandareasharedby Canadaandthe UnitedStateson the
North Americanwntincntir 19.321.326square kilometresc.ornparcdto a landareaof
4.895.442squarekilometresfor the wholeof Eur(exclusiof the Soviet Union).
thc Gulf of Mainonthe Atlantic stretchcs e,416 kilornetr. hc cast coastof
North AmericafromCape Race. Ncwfoundlandto, Miami,Florida.is 1.897nautical
milcs.Such a vastexpansecannotbe rclcvantIo a delimitationin the Gulfof Maine
area. i351 COUNTER-MEMORIALOF CANADA 31
delimited by the Court; (iii) the general configuration of the coasts,
including their direction; and(iv) their oppositeor adjacent relationship
to each other relative to the maritime area to be delimited.
C. THELANDBOUNDARY
1. The Direciion ofthe Land Boundary andrheJuxiaposirionofthe
Terriiories of ihe Parries
The United States Memorial states that "Canada lies north
81.
of the United States, except for the state of Alaska", and that the
"principal international boundary extends from the Pacific Ocean to
the Atlantic Ocean in a generally west-to-east direction2'".While these
are valid continental-scale generalizations, theyare inapplicable to
many particular regions. Alaska, of course, lies north and West of
Canada, and again there is no reason why this vas1 area should be
excluded from the macro-geographical context. Alaska apart, however,
the continental relationship isontrolled by the 49th parallel of latitude
which runs due east for 2,044 kilometres fromthe Strait of Juan de
Fuca to the Lake of the Woods. Thereafter, except for a segment of
249 kilometres, the 6,416-kilometre boundary does no1 run in an east-
west direction. Instead,it takes on a southerly orientation as il passes
through Lake Superior, Lake Huron, LakeSt. Clair. and into Lake Erie,
where it lies south of latitude 42ON. The boundary then takes on an
east-northeast orientation as it passes through Lake Erie and Lake
Ontario and into the St. Lawrence River. Betweenlongitude 7S0W to
71030eW, it runs east-west along the 45th parallel. From longitude
7103OvWand 68"W, it runs generallynortheast. Thereafter, il adopts a
north-south orientation and follows the St. John river system, the
meridian of 67"47 'W longitude,and the St. Croix River to the sea.
82. The course of the land boundary across the continent is such
that large parts of Canada lie latitudinally south of large parts of the
United States. The most southerly point of Canadian territory is Middle
Island in Lake Erie at latitude 41°41'N. More than 30 percent of the
United States land mass, excluding Alaska, lies north of this parallel,
including the capitals of 17 states of the United States and such popu-
lous cities as Seattle (47O36'N), Minneapolis (44O58 'N), Milwaukee
(43"03 'N), Chicago (41"50'N), Detroit (42O22 'N), Buffalo
(42"54 'N), and Boston (42"18 'N). By the same token, substantial
parts of Canada and more than 70 percent of ils population - 17 mil-
lion people - lie to the south of parts of the United States, that is to
@ say, south of the 49th paralle[Figure 41.
83. A consequenceof the boundary configuration is that several
Canadian and United States regions have an east-west or west-eastjux-
taposition. The southern part of VancouverIsland, including thecapital
cityor British Columbia, liesWestof upper Washingtonstate. The whole
of southern Ontario, including bothCanada's largest city (Toronto) and
" UnircdSraresMemorial, p. II. para.20.32 GULF OF MAINE t361
Canada'scapital,lieseastofthe stateof Michigan.AllofsouthernQuebec,
including Montreal and the city of Quebec, lies Westof the state of
Maine. More 10the point, the Maritime Provinces - New Brunswick,
Nova Sco:ia and Prince Edward Island - lie east of the New England
States.
84. The description of the Canada-United States land boundary
in the United States Memorial betrays a startling omission,namely that
segment of the New Brunswick-Maineboundary that runs in a north-
south direction for 152 kilometre~~~T .his segment includes the "due
north" line thatis the oldest part of the Canada-United States boundary
and that figured in the 1621 Charter by which James 1 granted Nova
Scotia to Sir William Alexander; in the Treaty of Paris of 1763 by
which France ceded its possessionsin Canada; and in the Treaty of Paris
of 1783 that ended the War of American Independence". After 1783,
the New Brunswick-Maine boundary continuedto figure prominentlyin
a long and. complex diplomatic history, includingsix treaties under
which disputeswere resolvedby means of bilateral commissions,and one
internationalarbitrationZ8.
85. The "due north" line, which followslongitude 67047 'W, con-
trols the north-south orientation of the land boundary in the Gulf of
Maine area. From the southern end of the "due north" line,the bound-
ary followsthe St. Croix River to the sea at Passamaquoddy Bay, which
lies 113kilometresto the southeast. At this point the boundary becomes
essentially a mid-channel line. It passes betweenCanadian and United
States islands in Passamaquoddy Bay before turning southwest into
Grand Manan Channel. It terminates at a point equidistant (3 nautical
miles) from either Coast, where Canada (Grand Manan Island) lies
southeast of the United States.
86. The "due north" line controls the regional east-west relation-
ship of the Maritime Provincesand the New England states in the same
manner as the 49th parallel controls the continental north-southorienta-
tion of Canada and the United States. To the extent that the juxtaposi-
tion of the land territories and the direction of the land boundary are
relevant to the determination of the maritime boundary in the Gulf of
Maine area, it is the east-west relationshipof the Maritime Provinces
and the New England states, and the north-south orientation of the
boundary betweenthem, that constitute relevant factors.
2. The lnrernarional Boundary Terminusand the Poinr of
Commencemenrof the Single Maririme Boundary
87. The Court in the Tunisia-Libya Confinenla1Shelfcase iden-
tified the position of the terminus of the land frontier establishedby a
convention betweenthe Parties, as "a circumsiance of considerable rele-
vance", providing an agreed and "basic point of reference" for the
" UnitedSlorcr Me»toriap. 1.para.20.
ConndionMemoriol. pp.29-31paras.36-41.
" ConadionMernorial,p. 31. para.42. t371 COUNTER-MEMORIALOF CANADA 33
delimitationZ9.In the present case, there are two agreed points of refer-
ence: the terminus of the international boundary at 44°46935.3469'N,
66O54'11.25311We ,stablished in the Treaty of Washington of 1925,and
the point of commencementof the single maritime boundary to be deter-
mined by the Court at 44"11 '12"N, 67O16'46*'W,established in the
Special Agreement (Point "A"). The relevant factor is the relationship
between the two agreed points. The final direction taken by the interna-
tional boundary before its terminal point in Grand Manan Channel is
southwesi (214O41 ').The starting point of the maritime boundary to be
delimited by the Court lies 38.9 nautical miles souih-souihwesi
@ (204:33') of the terminal point [Figure 51.The position of the agreed
starting point of the maritime boundary relative to the international
boundary terminus suggests that both Parties considered the controlling
coasts in this area to be, first, the coasts of Maine and of Grand Manan
Island, New Brunswick, and then the coasts of Maine and of Nova
Scotia. If the Parties had considered that the laterally aligned coasts of
Maine and of Campobello Island and mainland New Brunswickshould
control the delimitation, they would logically have had to place the
agreed starting point, not southwest of Grand Manan Island but in the
vicinityof the "perpendicular to the general direction of the coast at the
@ international boundary terminus" illustrated in Figure 27 of the United
States Memorial.
88. The relationship between the two agreed points also consti-
tutes evidence of the assumptions of the Parties regarding the general
orientation of the maritime boundary to be established by the Court.
The starting point of the boundary was fixed on the basis of the lines
claimed by the Parties at the time of signature of the Special Agree-
ment. These claimed lines were oriented in a general southwesterly
direction: from Point "A", the Canadian line ran, as it does still, south
and then southwest until it reached the seaward rim of the Gulf (approx-
imately the 100-metre contour on Georges Bank), while the United
States claim ran in a southwesterly direction until it reached the central
@ part of the Gulf [Figure 1). Thus. the position of the agreed point of
Commencement in relation to the international boundary terminus
reflects the common view of the Parties, at the time of signature and
ratification of the Special Agreement, that the boundary inside the Gulf
of Maine itself should run in a general southwesterly direction.
89. The United States allegesthat the international boundary ter-
minus lies in the "northern corner" of the Gulf of Maine and seeks to
draw conclusions of fact and law from this c~ntention'~.The obvious
purpose of this allegation is to exclude from consideration for certain
purposes the long Canadian coast on the Bay of Fundy. By excluding
this very substantial part of the coastline of the Gulf of Maine, the
United States is able to conclude that "only the short coast of the Nova
Scotia peninsula onthe northeast side of the Gulf is Canadian"", and to
IPICJ. Reports 1982pp.64-65. paras. 81~82:D.66. para.85.
'OUniredSioies Memoriop. 169para.280:p. 17para.284:p. 174para.290.
3'UniitdS~loiesMcmoriop. 173.para284.34 GULF OFMAINE [381
find that the Canadian coastline is convex and the United States coast-
line concave. However, these contentions are inconsistent withthe facts,
evenas presentedin the United States Memorial, whichStatesthat:
"Frorn the international boundary terminus, the Canadian
coastline, likethe eastern seaboard, followsa northeastern direc-
tion until it reaches the 17-mile (27-kilometer) wide Chignecto
Isthmus, 147miles (237 kilometers) to the northeast ... There, the
Canadian coastline changesdirection dramatically"."
................. ................,..,...............,......................
"In both [the Gulf of Maine and Tunisia-Libya Continental
Shelfl cases, the land boundary reaches the sea at a point where
the coastline is relatively straight, but where there is a sharp
change in direction further along the coast. In this case, the change
occurs 147 miles (237 kilometers)from the international boundary
terminus,at the Chignecto Isthmus3'."
It is impossibleto reconcile the statement that the international bound-
ary terminus is located in the "northern corner" of the Gulf with the
staternents that the boundary reaches thesea at a pointwhere the coast-
line is relatively "straight" and that the coastline does no1change direc-
tion until il reaches a point237 kilometresto the northeast. Howcan the
international terminus be located, at one and the same place, in a "cor-
ner" and on a relatively "straight" coast, and how can this point bethe
"northern" corner if the coastline changes direction only 237 kilometres
further to the northeast? It is on geographicalriddles such as these that
the United States bases itsargument.
D. THEGENERAD LIRECTIO N F THE COASTS
1. Arbirrary Poinls and Parallel Lines
90. The United States tactic of distracting attention from the
actual geographical situationin the relevant area by introducing extrane-
ous continental-scale factors is especially evidentin its portrayal of the
general directionof the coasts ofthe Parties. The vast expanseof the ter-
ritories and coasts of Canada and the United States makes this case par-
ticularly susceptibleto such a stratagem.
91. Apart from the practical irrelevance of the general direction
of the continental coast to the general direction of the coasts within the
relevant area, the technique used by the United States to establish this
continental generaldirection is contrary to geographical logic and ta the
express terms of the Special Agreement. Article IV of the Special
Agreement providesthat:
" UnitedSraresMernoriol.p. 19.para. 26.
" UniredSroresMernoriol, pp. 173-174.para.288. 1391 COUNTER-MEMORIAL OFCANADA 35
".. . the Parties in their presentations Io the Chamber shall utilize
the followingtechnical provisions:
(b) AI1straight linesshall be geodetic lines."
The lines used by the United States to connect "primary coastalfea-
tures" and establish the general direction of the coasts are not geodetic
lines but loxodromes,that is to Say,straight or rhumb lines drawn on a
Mercator projection3'. Geodetic lines can only be represented on a Mer-
cator projection by means of curved lines. Contrariwise. geodetic lines
appear as straight lines, and loxodromesas curved lines, on a Lambert
conformal projection.The Parties agreed on the technical provisionscon-
tained in Article IV of the Special Agreement in order to avoid precisely
the kind ofgeographical distortion resulting from the United States' por-
trayal of the general direction of the coasts. While the distortionspro-
duced by the use of loxodromeson Mercator projections are small over
distances such as those prevailing in the Gulf of Maine area, they are
substantial on the macrogeographicalscale utilized by the United States.
@ To illustrate these distortions, Figure6 shows the United States direc-
tional lines as curved lines - geodetic lines - on the same Lambert
conformal projectionthat was used IO illustrate the general direction of
the coast in the Canadian Memorial". The Lambert conformal is a conic
projection which very largely eliminates the scale distortion inherent in a
chart based on the Mercator projection.
92. The technique employed in the United States Memorial can
be used to produce almost any result.The United States has evidently
fixed on a proposed boundary line - a line connecting Point "A" with
the extreme northeastern angle of the triangle described in the Special
Agreement - and has then selected a number of points on the North
American coast on the sole criterion that parallel lines joining these
points are roughly perpendicular to the boundary line proposedby the
United State~'~.No other rationale for the selection of these points is
provided, and none emerges from careful analysisof the United States
Memorial. Of the 23 "primary coastal features" mentioned or illus-
trated, fiveare ports, 12are capes or headlands, two are general regions
(South Florida and North Florida), three are islands, and one is an isth-
mus. Some of the points, such as Cape Race, Cape Sable and Cape
Hatteras, are situated on a convex portion of the coast, while others,
such as the Chignecto Isthmus, Cape Charles and North Florida, lie in
concave segments of the coast. The method of joining these points
demonstrates the same rationale as their selection: the production of a
pre-determined result. The arbitrary nature of the methodology is
M For a technicalexplaoation of thes liner sec R. D. HodgE. 1.Cooper: "The
Technical Dclirnitation of a Modern Equidirtanl BouOcean.Devrlopnienrand
/niernoriono/Low JoiirnVol.3,1976p..361:Counrer-Mernorial.AnnexeVol.IV.
Anncx 6.
@ " ConodionMernoNol.p.23,Figure7.
36 UniredSrotesMernoriapp.11-12p.ara.1 and fwtnat2:p.170,para283 and faal-
not7. 36 GULF OF MAINE [al
perhaps best demonstrated by the fact that two of the points mentioned
- Boston and Yarmouth - are said to lie along a bearing of 56.903',
@ when in fact they lie along a bearing of 67.2"[Figure 71.
93. The United States itself at one stage concedes the irrelevance
of a continental-scale approach to the determination of the general direc-
tion of the coast within the relevant area, whenilstates that the azimuth
between South Florida and Cape Race "would be advantageous to the
United States but is determined by points outside the relevant area in
this case'8". Of the 23 points used bythe United States to determine the
general direction of the coast, II lie outside the relevant area as defined
by the United States.
94. Whatever may be its geographical or legal relevance, the
determination of a precise general direction of the coast on a continental
scale is an exercise fraught with difficulty. In most areas it will be neces-
sary to establish several such directions- the east coasts of North and
South America and the Westcoast of Africa are clear examples. The line
from Cape Race to South Florida, which the United States puts forward
as indicating "the broad geographical relationship of the Parties on the
east coast of North America", in fact passes some 388 nautical miles
seaward of the coast off Long Island, New York. This clearly suggests
that the North American coast changes ils general direction in the
vicinity of Long lsland (as was pointed out in the Canadian Mem~rial'~).
The macrogeographical general direction of the North American coast
from Long lsland to Cape Race - represented by a geodetic line that
@ passes through Cape Cod and Cape Sable - is 67"[Figure61.
95. Five of the 12 points identified by the United States, and
lying within the relevant area as defined by the United States, are ports
and therefore cannot be described as "primary coastal features", in that
their situation is unrelated 10thegeneral configuration of the coast. Two
points - CapeCanso and Sable Island - cannot be linked to any other
point within the relevant area. Sable lsland lies 86 nautical miles sea-
ward of the mainland coast of Nova Scotia. The line that is supposed to
define the direction of the northern coast of the Gulf of Maine com-
mences at Cape Ann on the western shore of the Gulf, 57%nautical
miles southwest of Cape Elizabeth, where the coast begins to veer south-
ward from ils general northeast-southwest direction. This line does no1
strike land until Ross Island, 23 nautical miles off the mainland coast of
New Brunswick, and does not touch the mainland coast until it reaches
Point Wolfe, 297 nautical miles from ils point of commencement at
Cape Ann. This last-mentioned line, like the other United States lines
purporting to represent the general direction of the coast, runs away
from, rather than parallel to, the actual general direction of the coast.
The only consistent fact about these lines is that- except for the Bos-
ton to Yarmouth line - they are al1 oriented approximately 54Ofrom
true north, which suggests that they were chosen for this reason alone.
" UnircdSroresMernorial,p. foolnalc 2.
" UnircdSiaics Mernorial.p. 170.fcmtnote7.
" CanodionMernorio/.p21.para. 19. 1411 COUNTER-MEMORIALOFCANADA 37
96. An examination of a map of appropriate scale shows that. in
fact, there is no single general direction of the coast within the relevant
@ area [Figure 71. As the United States emphasizes. the Canadian coast
changes direction at least four times within the relevant area40.The
United States Memorial, however, takes quite another view of the
United States coastline in the relevant area: this coastline does not
"change direction'' buo tnly"curves4'".Because the distinction between
the general and the particularis a matter of scale and of judgrnent, the
determination of the general direction of the coast is a questionofnter-
pretation rather than objective scientific fact. The Canadian coastline
appears to change ils general direction four times within the Gulf of
Maine: twice at the head of the Bay of Fundy, and again at Digby and
at Cape St. Marys. The United States coastline appears to change its
general direction twice within the Gulf: at Casco Bay or its western
entrance (Cape Elizabeth) and again at Boston.At the entrance points
of the Gulf- Cape Sable and Cape Cod-Nantucket -the coastlinesof
both countries turn at approximately right angles to the northeast and
southwest and continue in these directions until theyextend beyond the
relevant area. The fact that the coastline appears 10change ils general
direction eighttimes attests to the cornplexityof the geography in the
Gulf of Maine area.
97. The difference between the Canadian and United States
approaches to the determination of the general direction of the coasts is
partly a function of scale.hese differencesof scale are symptornaticof
the Parties' approaches to geography in this case. The United States'
argument -and ultimately ils method and proposedline - rests on the
unstated premise that the relevant area is the easl coast of North
America from Newfoundland Io Florida, whereas the Canadian argu-
ment, method andline rest on the prernise that the area relevant to the
delimitation is the Gulf of Maine area. which extends approximately
from Lunenburg. Nova Scotia to Newport, Rhode Island.
2. TheFalse Hierarchy if Coosfs
98. The United States' argument slips almost imperceptibly from
the premise that there is a singlegeneral direction of the NorthAmeri-
can coast from Newfoundland to Florida, Io the premise that there is
also a singlegeneral direction of the coast within the relevantarea, both
happily coincidingal 54O. According Io the United States, the onlycoast
in the Gulf of Maine area which is at odds with this single general direc-
tionis the "short" NovaScotia coast from Brier Islandto Cape Sable,
which runs perpendicular to the continental trend and is therefore cha-
racterized as a "secondary coast" and an "irregularitY2". The United
States coastline from Cape Elizabeth to Cape Ann is somehow folded
into the 54" general direction, and the coast from Cape Ann to Cape
" UniredSraresMemoriol. p. 19,para.26: p. 173.para.287.
'1UniredSloler Memori~p.20, para.27;p. 174.para.290.
42UnirpdSioier Memorial.19,para.26;p. 20. para.29:p. 173.paras.286-287. 38 GULFOF MAINE [42]
Cod is convenientlyomitted from the narrative and diagrammatic anal-
ysis of the relevant geographicalcircumstances contained in Part III of
the United States Memorial4'.
99. The concept of primary and secondary coastsis central to the
United States view ofthe relevant geography and to the United States
method of delimitation. These terms appear to be new to the literature of
maritime delimitation and are not explained in the United States
Memorial. In physicalgeography and geologythey refer to eroded and
uneroded shorelines". This, however,does not appear to be the sense in
which they are used in the United States Memorial, where they seem to
distinguish betweensegmentsof coast that run roughly parallel and seg-
ments that run roughly perpendicular to a continental-scale general
direction of the coastds.The United States does not explain the geo-
graphical significanceof this distinctionbut is perfectlyclear about what
it sees as ils legal consequences: where the maritime extensions of a
'"primary" and "secondary" coast overlap, the claims of the "primary
coast" are ta prevaild6.According ta this theory. the relative distance
between each coast and the disputed maritime area do not appear to
haveany bearing upon the respectiveclaimsof the twocoasts.
100. The principle inherent in the distinction proposed by the
United States, if accepted by the Court, wouldrepresent a radical depar-
ture from the existing law of maritime jurisdiction, withfar-reaching
consequences for boundary delimitation. Whereas al1 coasts that have
been givenequal treatment by nature have until now been given equal
treatment by law in the spatial extent of the zonesthey "generate", this
new United States doctrine would provide for unequal - and inequit-
able - treatment of coasts and of coastal States. The criterion for such
unequal treatment wouldbe the orientation of the relevant coasts in rela-
tion to acontinental-scalegeneral direction.
101. There is an apparent contradiction in the United States posi-
tion inthis regard. The United States Memorial insists on the necessity
of defining a relevant area in order to determine the circumstances rele-
vant to the delimitation". Within the Gulf of Maine area, however -
evenas arbitrarily defined in the United States Memorial- the coast of
southwest Nova Scotia cannot be seen as having the deviant character
and secondary status which ilis as~igned'~.In that area - the legally
relevant area - it is as much a part of the natural order as any other
segmentof the coast and is equally entitled ta a maritime zone.
A 43Finurc31.tes MemoNol. p.170. para. 283 afootnote7: p. 171, Figure26; p. 193,
* se;,forcxample,F. P.Shcpardand H.R. Wanlcss:Our ChangingCoostlines.New
York,McGraw-Hill1 .971, p7: Counrer-Memoriol.Annexes.VoIV, Annex7.
" UnitedStoresMemoriol.pp. 19-192.para.309.
@ ' UnitedSiotesMemoriol,pp. 191-193.paras.308-311;p. 193.Figurc31.
" UniledSioiesMcmorinl,p. 145,para.258.
UnitedSroresMernorialp. 191para.309.40 GULF OF MNNE (44-451
distinction to the present case. Faced with a comparable geographical
situation, the Court of Arbitration in the ~nglo-French Conrinental
Shelfaward carefully analysed thisissue" and concludedthat:
"The emphasis placed in the Norrh Sea Continental Shelf cases on
the difference between the situations of 'opposite'and 'adjacent'
States reflects not a difference in the legal regime applicable to the
two situations but a difference in the geographical conditions in
whichthe applicable legal regimeoperatesJ3."
"The appreciation of the effect of individual geographical features
on the course of an equidistance line has necessarilyto be made by
reference to the actual geographical conditionsof the particular
area of continental shelf to be delimited and to the oclual relarion
of the fwocoasfs fo (ha1particular area5.." [Iralics added.]
104. Conventional law also emphasizes the actual relationship of
the coasts. Article 6(2) of the 1958Convention onthe Continental Sheif
refers to "the territories of two or more States whosecoasrs are opposite
each other ..." [Italics added]. Again, Article 83(1) of the 1982 Con-
vention on the Law of the Sea refers to "the delimitation of the conti-
nental shelf betweenStates with oppositeor adjacent coasts . . ." [Ilalics
added]. Thus, it is not the juxtaposition of States that is material, but
rather the geographicalsituation of their coasts relative to the area to be
delimited.
105. Viewed in this light, the staternent in the United States
Memorial that "the United States and Canada are adjacent States
across the entire North American continent", whiletechnically accurate,
is either meaninglessor misleading in the context of maritime delimita-
lion. 1sis to be doubted, for example,that Canada and the United States
were considered "adjacent States" for the purposes of delimitation when
the boundaries between them were established in Juan de Fuca Strait, in
the Great Lakes, or in Grand Manan Channel. Rather, it was the actual
(and generaily opposite) relationshipof the coasts in each particular area
that influenced the course of those boundaries. In the present case,
therefore, what is geographically and legally significant is the actual
relationship of the coasts of the Parties in the Gulf of Maine area to
each other and to the area to be delimited.
106. Logic alone suggests that there must be some elernent of
opposition betweenthe coasts that form the sides of any gulf or embay-
ment. The United States Memorial admits as much where it states that:
"The location of the Nova Scotia peninsula opposite the inter-
national boundary terminus and the curvature of the New England
Coastcombine to create the coastal concavity that is the Gulf of
MainesJ." [Italics added.]
" 237-242.ench ConrinenlolShelj awardpp. 55-60. para87-97:pp. 111-113paras.
Anglo-FrenchConlinenralSheljaward, p. 11para238.
Y Anglo-FrenchConlinenrolShelfaward.p.113,para. 240.
" UnircdStoresMernorial, p. 174.para.290. [45-461 COUNTER-MEMORIALOF CANADA 41
A glance at the map confirms that the coasts of Grand Manan Island
and Maine, Nova Scotia and Maine, and Nova Scotia and Massachu-
setts, lie opposite each other. Furthermore, the relationship of the agreed
starting point of the maritime boundary to the terminus of the interna-
tional boundary suggests a common view of the Parties that the course
of the maritime boundary in the innermost area should be governed by
the predominantly opposite coasts of Maine and of Grand Manan Island
and Nova Scotia.
107. If the relationship between the coasts inside the Gulf of
Maine is predominantly one of oppositeness, the situation in the area
seaward of the Gulf is less clear-cut. The Canadian Memorial stated
that while "at the threshold of the outer area and just beyond ... the
coasts are truly opposite.. . the geographical situation in the more sea-
ward portiqns of the outer area is a complex one that combines elements
of both oppositeness and adjacency, in varying degreeS6".
108. The difficulty of analysing a situation such as that which
exists in the area seaward of the Gulf of Maine derives not from the
relationship between the coasts themselves, but rather from the geo-
graphical relation of the coasts to each othervis-à-vis the marine area
to be delimited. For, as the Anglo-French Court of Arbitration stated,
"in determining whether two States are to be considered as 'opposite'or
'adjacent', for the purpose of delimiting a continental shelf on which
each of them abuts, the Court must have regard to their actual geo-
graphical relation to each other and to the continental shelf at any given
place along the boundary"".
109. Where a mixed situation exists, the balance between the ele-
ments of oppositeness and adjacency need not be left to approximation;
the relationship between two coasts and the marine area off or between
them can be precisely assessed by means of mathematical analysis.
While this relationship between three locations can be analysed math-
ematically only in ierms of specific points or loci, the findings can be
extrapolated and applied to the general relationship between the coasts
and the marine area to be delimited, to the extent that the points chosen
for analysis are representative. One method of applying the analysis -
but by no means the only one - is between points along an equidistance
line and the basepoints on the coasts controlling the course of the line.
110. The logic of the geometrical analysis is directly based on the
rneaning of "opposite" and "adjacent" as descriptions of relative orienta-
tion, and therefore this analysis makes use of angles. The relationship of
perfect oppositeness between two points (A and 6) on opposite coasts
relative to a third point (C) in the sea area directly between them -
that is, along a straight line joining PoiAtsand B - is represented by
@ means of a relative angle of 180'[Figure81.Convenely, a relationship of
ideal or perfect adjacency between two points (A and B) on neighbouring
laterally related straight co-stwhich for the purpose of analysis will be
shown as coincident point AB- and a third point(O lyingdirectly in front
56 ConodionMernorialpp.142-143:paras.343-345.
" An&lo-FrenchConiinenlolShel/awardp. 58para. 94. 148-491 COUNTER-MEMORLAL OF CANADA 43
placed on these factors was partly a functionof the particular geograph-
ical situation, there is nodoubt that certain juxtapositions ofconcave
and convexcoasts can be productiveof inequity when particular methods
of delimitation are used.
115. The United States has laid great emphasis on the alleged
inequitable effects of the concavity or curvature of the New England
coast in relation ta the convexity or "protrusion" of the Nova Scotia
coa~t~~S.ince in the United States lexicon convexperperrates inequity,
while concavitysuffersinequity, the United States Memorial never sug-
gests that the United States coast in the relevant area has convexcon-
figurationsor that theanadian coast has concave configurations.
116. The Gulf of Maine constitutes one of the four major embay-
ments or concavities along the North American coast (betweenCape
Race and Cape Breton, Cape Sable and Cape Cod, Cape Cod and Cape
Hatteras, and Cape Hatteras and Miami). It lies between twoconvexi-
ties, namely Nova Scotia and southern New England. While the protru-
sion of southeastern New England has a less pronounced configuration
than Nova Scotia, its practical effect on the geography of the Gulf of
Maine area is the same: the segment of coast from Boston to the Cape
Cod Canal is roughly perpendicular ta the coast from Casco Bay to the
head of the Bay of Fundy and parallel to the Canadian coast from Cape
St. Marys to Cape Sable. While this protrusion of the New England
coast seaward and away from the continental-scale general direction
begins at Cape Elizabeth, it is especially pronounced southeast of Bos-
ton. Although itcan be defined in various ways- by a line from Port-
land to New York City, or simplyby extending thegeneral direction line
@ in Figure26 of the United States Memoria160 beyondCape Ann to New
York City - the protrusion is most pronouncedsouth and east of Bos-
ton and Providence and may be delineated by extending the line of the
general direction of the coast from Cape Elizabeth to Boston until it
@ intersects the coast of Rhode Island on Narragansett Bay [Figur71.
117. The concaveand convex features of the United States coast
are matched by comparable configurations on the Canadian side.
Despite its preoccupation with concavities, the United States Memorial
never uses the term to describe the Bay of Fundy, even though it is the
most markedly concavemajor coastal feature in the area. This oversight
is especially remarkable given the emphasis on the two-fold change of
direction of theanadian coast at the head of the Bayof Fundy and the
convex configuration of the Nova Scotia peninsula6'. It is evident that
the change in direction of theanadian coast at the head of the Bay of
Fundy producesboth the concavityof the Fundy coastand the convexity
of the Nova Scotia peninsula. The concavity and the convexityare two
aspects of theame configuration:one could not existwithout the other.
118. In fact, the principal difference between the coasts of the
Partiesis that both the concavityand the convexityon the Canadian side
JP United SfottMemorial. p173. paras286-287:p. 174. paras. 289-290: p. 192.
para310.
UnitedStoteMtrnorial.171,Figure26.
@ UnitedSlotcsMemorio/,pp. 173-174.paras.287-288.44 GULF OF MAINE [sol
are more pronounced than the corresponding features on the United
States side. The ner result is that, in their effect on an equitable delimi-
talion of the ofnying marine areas, there is an overall balance between
the coasts of the Parties. The convex configurations of the coast of
southwest Nova Scotia on either side of Cape Sable, and of the coast of
southeastern Massachusetts on either side of Cape Cod and Nantucket,
ensure that both coasts attract substantial and roughly similar marine
areas inside the Gulf and in the open Atlantic seaward of the Gulf.
However,the long Canadian coast on the Bay of Fundy - comparable
in length ta the concave portion of the United States coast from the
international boundary terminus to Cape Ann - attracts a very
restricted offshorearea because of its markedly concave configuration.
On the United States side, because the curvature of New England is
much lesspronouncedthan the concavityof the Bayof Fundy, the coasts
of Maine, New Hampshire and northern Massachusetts (northof Cape
Ann) attract a marine area more than three times larger than does the
corresponding Canadian coast on the Bay of Fundy, even though, as was
just noted,the two coastal segmentsare roughly equalin length.
119. The question thus arises whether an equidistance line ought
to beadjusted in order to abate this potential inequity, since, as the
Court stated in the North Seo Continental Sheljcases, "what is unac-
ceptable in this instance is that a State should enjoy continental shelf
rights considerablydifferent from those of its neighboursmerely because
in the onecase the coastline is roughly convexin form and in the other it
is markedly concave, although those coastlines are comparable in
length6'". Canada has not asked for an adjustment of the equidistance
line on this account because, in Canada's view, the overall balance
between the Canadian and United States coasts in the Gulf of Maine
area as a whole - with each country exhibiting a major concaveand a
major convex configuration - renders such an abatement unnecessary.
In this case, nature itself has established the requisite checks andbal-
ances in the form of roughly matching configurations that produce a net
overall balance in the maritime areas appertaining to each Party.
2. TheSectors Comprisingthe Guljof Maine Area
120. Although the Gulf of Maine area is a single physical and
oceanographic system, the configuration of its coasts and patterns of
resource exploitation suggest aconceptual division into two or more
parts or sectors. On a broad scale, the obviousconcavity of the Gulf of
Maine suggests a division betweenan inner or interior area comprising
the Gulf itself, lyinglandward of a hypothetical line betweenCape Sable
and Nantucket, and an outer or exterior area, lying seaward of such a
hypothetical lineand includingthe seaward rimof the GulP3.
I.C.JReports1969. p. 50.para.91.
The Partiehave identified1h-areasor cornpancntsin thcir McmoriaCanodion
Memoriol.p. 21para.17;pp.25-27,paras.27-32:p. 137,paras.328-330:aUnited
Stotes Memoriop. 19.para.25 andfwtnote 2. [51-521 COUNTER-MEMORIAL OFCANADA 45
121. When the focus is narrowed to the Gulf itself, a further divi-
sion is suggestedbetween two sectors:firsr, the area between the convex-
ities that form the "sides" of the Gulf and, secondly, the area adjacent
to the innermost curvature that forms the most obviouslyconcave por-
tion of its coastline6'.While the division betweenthe two sectors com-
prising the inner area is not so clear-cut as that between the inner and
outer parts of the Gulf of Maine area, it is probably most natural to deli-
mit these sectors by a line from Cape St. Marys to Cape Ann
[Figure 121.Such a partition is generally supportedby the human geog-
raphy because, with the exception of coastal communitiesin Digby
County - that is, betweenCape St. Marys and Digby - nearly al1fish-
ing from ports situated on the innermost part of the Coastis prosecuted
on inshore grounds or on small offshore banks lying north of the hypo-
thetical line from Cape St. Marys to Cape Ann.
122. The area lying directly between the oppositecoasts of Nova
Scotia and Massachusetts, seaward of Cape St. Marys and Cape Ann,
but landward of Cape Sable and Nantucket, may properly be regarded
as a middle or transitional sector. Here the maritime extensions of the
coasts of Nova Scotia, Massachusetts and Maineconverge.
123. The maritime extensionsof the facing coastsof Nova Scotia
and Massachusetts project both acrossthe Gulf itself and beyond to the
outer area. The close geographical links betweenthese coasts and the
seaward rim of the Gulf are demonstrated by the intensive fishery con-
ducted on Georges Bank.Thus, while the transitional sector is obviously
part of the Gulf of Maine itself, ils coasts- together with the coasts
facing the Atlantic on either side of Cape Sable and Cape
Cod-Nantucket - form the coastal wings of the Gulf of Maine area,
and are geographicallyrelevant to the outer area as well.
3. The Innermosr Sector
124. The balance and symmetry characterizing the relationshipof
the coastal wings of the Gulf of Maine area are too obvious to require
more than passing mention. However, the geography of the innermost
curvature of the Gulf, landward of Cape St. Marys and Cape Ann, is
more complex.While the configuration of both the Canadian and United
States wasts in this area is concave,there is a differencein the degreeof
their concavity. The United States seeks to exploit this difference by
arbitrary, inconsistent and self-serving treatment of the Bay of Fundy,
eithertaking it into account or ignoring it,as the argument requires.
125. The United States Memorial describesthe Bay of Fundy as
a "major geographical feature"and includes it in the Gulf of Maine
area6'. However, within the discreet confines of a footnote", it states
that the Gulf of Maine does not include the Bay of Fundy. No rationale
w Conodi~nMemoriol.p. 137.fwtnote55.
UnitedStatesMemoriol,p.19,para.25.
" UnitedSioresMemoriolp.19.foatnot2.c 1541 COUNTER-MEMORIALOF CANADA 47
128. Any activity that woulddegrade the water quality or change
the dynamicsof water circulation in one part of the system would inevi-
tably affect other quite distant locations withinthe system. This fact has
important implications for marine resource management in relation to
issues such as fishery conservation, environmental protection and the
developmentof tidal power.The configuration and the physical extent of
the Bay of Fundy greatly augment the tidal amplitude in the Gulf of
Maine area, including Georges Bank. Using computer simulation, stud-
ies on the feasibility of hydroelectric developmentin Minas Basin have
shown that a tidal power barrage in the upper reaches of the Bay of
Fundy could result in a potentially significant reductionin the degree of
mixing on Georges Bank". This could lower its productivityand lead to
long-term reductions or relocation of fish stocks.with potentiallydisas-
trous implications forthe fisheriesof the Bank.
129. The dimensions ofthe Bayof Fundy attest to its importance.
It is about 90 nautical miles longto Cape Chignecto, 54 nautical miles
wide at its mouth between Cape St. Marys and the coast of Maine,
33 nautical miles wide at Saint John, and 25 nautical miles widein its
upper reaches, just before it divides on either side of Cape Chignecto
@ into two arms, namely Chignecto Bay and Minas Basin. Figure 13 com-
pares the Baywith important bodies.ofwater in other parts of the world.
130. The Bay of Fundy is an essential feature of the regional
geography. Together with the Gulf of St. Lawrence, it gives Canada's
Maritime Provinces the maritime character that informs their history,
economyand culture. It is the Bayof Fundy that makes New Brunswick
a coastal province onthe Gulf of Maine" and Nova Scotia a peninsula,
separating it from the "mainland" and creating two provinces where
there wouldotherwisebe one. The Bavof Fundv fishervis a maior com-
ponent of the regional economy, particularly in charlotte coun-ty, New
Brunswick. and Diebv -,untv. Nov,.Scotia. where it constitutes the
larges[ single source of employment. Likethe fishery from the corre-
spondingparts of the United States coast, it is predominantlyan inshore
one. However,the catches from Georges Bank landed by vesselsoperat-
ing from the Fundy ports, including those on Passamaquoddy Bay and
St. Marys Bay, exceed both in absolute and relative terms the catch
taken on Georges Bank by vesselsoperating from ports on the United
States coast facingthe innermost ares''.
" C. J. R. Garrett: "Tidal lniiuoncthc Physical Occanography of thc Bay of Fundy
and Gulf of Maine". in G. Dabarn, cd.: FundTidolPower ond the Environmen!.
Wolfville. Acadia University Inrtitu1977. pp. 101-115: Counler-Memoriol,
Annexes. Vol. IV. Anner 10.
''Saint John. which is situated on the Bay of Fundy. is the largest city in New Brunswick
and the secondargest in Atlantic Canada. With a tonnage of 16.282.M)Ometric tons of
cargo in 1980,t is the second largcsanpthe Atlantic coast of Canada (alter Hali-
fax). and the second largcst pari an the Gulf ofMaine (alter Boston).
" Landings in Bayof Fundy ports from GeorgesBanforthe period 1969-1978totalled
93,532 metric tons and werc valucd at S36.768.613. Landings in Maine and New
Hampshire ports from Georges Bank in thee period totalled 3.164metric tons and
were valucd al U.S.$3.219.701. On the Canadian side, the Georges Bank catch repre-
Statesside, the Georges Bank catch represented 0.7 percent of the value of al1landings
in Maine and New Hamprhirc parts.48 GULFOF MAINE i551
C. INCIDENTA SLPECIAL FEATUREC S:APECOD AND NANTUCKET
131. The United States Memorial to al1 intents and purposes
ignores Cape Cod and Nantucket Island, which constitute the southeast-
ern extremity of a major and progressivelyattenuated protrusion of the
New England coast seaward from the continental general direction of
the North American coast. Cape Cod projects out into the Gulf of
Maine some 25 nautical miles (46 kilometres) east of a line representing
the general direction of the United States coast inside the Gulf, while
Nantucket Island projectssome 25 nautical miles (46 kilometres) south
of a line representing the general direction of the New England coast
facing the Atlantic and some 29 nautical miles (54 kilometres) southeast
of the hinge point of the two general-direction lines on the heel of Cape
Cod [Figure 71.
132. The inner arm of Cape Cod is oriented at a right angle to
the general direction of the United States coast facing the Gulf of
Maine. Thus. its orientation relativeto the general direction of the coast
is similar to that of the Zarzis Peninsulaand Island of Jerba, whichwere
ignored by the Court in the Tunisia-Libya Conrinenral Shelf case in
assessingthe general direction of theTunisian coa~t'~.The land area of
the Zarzis Peninsulaand Jerba exceedsthat of Cape Cod". On the other
hand, the orientation of Cape Cod may be contrasted with that of the
Kerkennah Islands and the Scilly Islands,which are oriented along the
general direction of theTunisian and British coasts and merely project
them further into the sea. This orientation of Cape Cod, perpendicular
to the general direction of the United States coastline facing the Gulf of
Maine, increases itsdistorting effect upon an equidistanceline.
133. Cape Cod is separated from the Massachusetts mainland by
the Cape Cod Canal, a free-flowing salt-water channel. Since it iscom-
pletely surrounded by salt water, it may be considered an island. The
extent of Cape Cod's deviationfrom the general direction of the coast is
demonstrated by the importance of the Canal as a transportation route
that was developed preciselyto avoid the need 10 circumnavigate this
long, narrow protrusion into the sea: in 1980, shipscarrying 12,210,209
metric tons of cargo passed through theCanal'B.
134. Although once thriving maritime centres. Cape Cod and
Nantucket have ceased to have significant maritime economies. Their
populations consist largely of retired persons who have no economic
'6I.C.J. Report* 1982. p.91. para. 131. Inassessing thegeneraldirection of thecoartline
in orderto mcarureihc length of the Tunisiancoasi, the Court drew a line from the
mostwesterlypointof 1hcGulfof Ga10Ras Ajdir.This line takesnoaccountaf the
Zarzispcninsulaandignoresthc islandof Jcrba.
" The land area of the Zarzis peninrula and the Island of Jerba is 1,094 square
kilometresandthe landareaof CapeCodis1.063 kilometres.
" WorerborneCommerce of rhe UniredStores: Cobndar Yenr1980. Washington,
Departmentof the ArmyCorpsof Engineerr,1981.p. 12.t561 COUNIER-MEMORIALOFCANADA 49
dependence on the marine resources at stake in this delimitation. The
livelihoodof the rest of the populationis largelydependenton to~rism~~.
135. The number of full-time commercial fishermen permanently
resident on Cape Cod is small in relation to the overall population.Many
of the fishing vesselsoperating from Cape Cod ports, and the fishermen
that sail them, come from outside Massachusetts. Many of the others are
part-time fishermen, who derive a substantial proportionof their income
from other sources. The commercial fishery is coming under increasing
oressure from the much more lucrative tourism sector.with which it
must compete for space for onshore îacilities, including berthing space
for vessels.There is no commercial fisheryon Nantucket Islands0.
136. While most of the fishing operations from Cape Cod ports
are conducted on nearshore grounds (Cape Cod Bay and the Nantucket
Shoals), a few vesselsdo venture further offshore to the Great South
Channel and to the western part of Georges Bank. However, fishing
from Cape Cod ports on the eastern part of Georges Bank - the area
under Canadian claim - has been sporadic and is insignificant in the
economy ofCape Cods'.
137. Becauseof their strategic situation al the entrance points to
the Gulf and their radical deviationeast and south from the general
directions of the United States coasts facing the Gulf of Maine and the
Atlantic Ocean, Cape Cod and Nantucket have an effect uponthe place-
ment of an equidistance linethat is out of al1 proportion to their size.
While these features comprise a total land area of only 1,186 square
kilometres (346 square nautical miles), they would attracl to the United
States at the expenseof Canada a marine area of 2,906 square nautical
miles: that is, more than eight times their land area. The potential
inequity hereiscompoundedby the fact that mostof the area that would
be so allocated to the United States comprisesthe rich fishinggroundsof
eastern Georges Bank, an area upon which the economic dependenceof
Cape Cod and Nantucket is minimal.
138. The length of the coasts measured "according to their gen-
eral direction", so as to "reduce very irregular coastlines to their truer
'sGeorgesBank. Gul/o/Moine. CapeCd Novo Scorio.Perspectivein Eeonomiesand
Hinory. Portland. Maine. TRIGOM; (Sponsaredby the Oflice of the Geographer.
UnitedStates Departmentoftate). Junc1978,pp. 10-11.
" An EconomirProJiIcojthe Capeond IslandsFishericspreparcdby Cape Cod Plan-
ningand EconomicDevclopmcntCommission, 1978.p.82.
" D. W. Allcn, B. Allen. R. Black.J. Friedman.E//eeetroCommercia lishingof
Peiroleum Dcvelopmen1O// rhe NortheosrernUnited Srores. Wds Holc Institute.
Prepared for National Oceanic and Atmaspheric Administration. United States
Departmentof Cammcrcc,1976. p. 51;S. Olsenand T. Grigalunas:"A Profilcof New
EnglandPorts".in S. Olscn,edFishingondPerroleumInteraclionsonGeorgesBank.
EnergyPragramTechnical Rcparl 77-1. Boston,New EnglandRegionalCommission.
Bosis/or Monngemeni.tMassachusettsWdsrsTHole OceanographicInstitution. 1977.
p. 87.50 GULFOF MAINE 1571
proportions", has been identified in the jurisprudence as a factor to be
used in appreciating the general geographical situation andin assessing
the equity of a proposedboundarys2.
139. Coasts-may be measured "according to their general direc-
tion" either by using the straight baselines employedby States in the
seaward delimitation of their territorial sea - and constructing hypo-
thetical straight baselines where States have no1 actually proclaimed
them -or by drawing longer straight iines between pointswhere there
is a major change in the general direction ofthe coast. While both meth-
ods involvequestions of judgment, the number of instances where such
judgments will have to be made is far greater when coasts are measured
along the low-waterline followingthe sinuositiess'.
140. Within the Gulfof Maine itself, the coastlinesof the Parties
are roughly equal in length. The Canadian Mernorial measured the
coasts employing the system of straight baselines used by Canada in
delimiting its territorial seaa4,the bay closing lines proclaimed by the
United States, and hypothetical straight baselinesalong those sectionsof
the coasts where the Parties have not proclaimed straight baselines or
bay closing lines. Using these methods, the length of the Canadian coast
from the international boundary terminus to Cape Sable is 287 nautical
miles, whilethe length of the United States coast from the international
boundary terminus to the Cape Cod Canal is 299 nautical miles, a ratio
of 49:5IaJ.When the method of longer straight lines is used, the propor-
tions change in favour of Canada. The length of the Canadian coast,
measured along straight lines representing coastal fronts,is 298 nautical
" disporitivc.ts 1969. p. 52. para. 98; I.C.J. Reports 1982, p. 93. para. B(5)
" The Gulf of Mainc area is characterizcd by many dccp indentations and rivers. Deter-
of judgment that can have a major cffconrthe calculation of the total length of aatter
wastlinc mcasured dong the law-water line. Moreovcr, sincc the degree of indentation
variesubstantiallarktween diffcrcnt segmentsof the coart, the comparative calcula-
tionof coastal lengthr can differ dccisively. dcpending upon the mcthod used. This
pin1 is illustralcd by the coastline dong the northcrn sidc of the Gulf of Maine fram
Cape Maringouin Io Cap Elizabeth. Calculating coastal lengths by means of straight
lines from the international boundary terminus to the foregoing features gives Canada
acoastal front of 117nautical miles and the Unitcd States a coastal front of 160 nauti-
cal miles - a ratio o4238. Measuring these samc coastlines by mcans of the low-
water line givesCanada a coaslal lcngth of 225 nautical miles and the United States a
coastal length of8% nautical mile- a ratio o2476. Asthe length of the Unitcd
States coastlines mearured dong the sinuasitieî is increased bya 4.4,and the
mcthods are no1comparable. 1.9. it is obvious that the rcsults abtained by the two
" Canadian baselines in the relevant awerc proclaimed in the TerNtoriSeo Geo-
Conodo Fozette, Part II, Vol106,dNo. 10; Canadion Mernoriol,Annexes,cVal. II.
Anner 25.
" Canada has no1 included the coast of Cape Cod when measuring the length of the
the gcncral direction of the coasts.ction, becausc Cape Cod departs radically from 1581 COUNTER-MEM OFCINALDA 51
miles, whilethe length of the United States coast is 275 nautical miles. a
ratio of52:48s6.
141. Both Parties are of the view that the Gulf of Maine area
comprisessome part of the coastlines facingthe Atlantic Ocean outside
the Gulf itself, but differ as to how far the relevant coastlinesextend on
eitherside of the entrance points to the Gulf. Since natural features like
Cape Canso, Nova Scotia and the angle on the United States coast
formed by Long Island and New Jersey clearly are well outside any
reasonable definition of the Gulf of Maine area, the question of the
extent of the Atlantic-facing coastlines to be included in the relevant
area must be resolvedby other criteria. One approachis to include those
parts of the coast that demonstrate economic links to the resources of
Georges Bank. Applyingthis approach, the relevant Canadian coastline
from Cape Sable to Lunenburg (83 nautical miles) is approximately
twice the length of the relevant United States coastline fromthe heel of
Cape Cod to Newport (41 nautical miles). An alternative approach-
bearing in mind the Court's directive that "one mus1compare like with
like" and that the "same approach" shouldbe "adopted to each of the
two coastss'"- is simply to select equal segments on the coasts of the
Parties on eitheride of the hinge pointsof the coastal wingsof the Gulf,
extending no further, however,than the economically relevantcoast of
one Party or the other.
142. In conclusion,the approximate equality in the length of the
Canadian and United States coastlines borderingthe Gulf reflects and
confirms the overall balance of the coasts of the Parties in the relevant
area. This balance is also reflected in the general configuration of the
coasts, with a major concaveand convexfeature on each side, and in the
predominantly opposite relationship of the coasts to each other and to
the area to be delimited. The balance is broken only by the radical
deviation of Cape Cod and Nantucket from the general directionof the
United States coast, unmatched by any equivalent feature on the
Canadian side.
Section III. Georges Bank 1sAdjacent to the Cuasts of Nova Scotia
and Massachusetts That Ahut the Outer Area; Eastern Georges Bank
Appertaios to the Coast of Nova Scotia
A. THECOASTA SBUTTING THE OUTER AREA
143. The Court of Arbitration in the Anglo-French Conrinenral
Shelfaward stated that:
The straight lines used in these measurements are, on the Canadian side: fram the
international boundary terminus ta Cape Maringauin. 117 nautical miles: from Cape
Maringouino Cape Split. 24 nautical miles: lrom Cape Split to Digby, 67 nautical
miles; from DigbyCape St. Marys, 41 nautical miles: from Cape St. Marys to Cape
Sable. 49 nauiical miles; and, on the United States sidc: fram thc intcrnaiional bound-
naiitical miles: from Baston io thc Capc Cod Canal. 46 nautical miles. See Figure 7.9
@ Note that the two straight lines used to measure the coastal fronts along the northern
side of the Gulf cxtcnd from the international boundary terminus to Cape Maringouin
and Cape Elizabeth. The single straight linc rcprcscnting the general direction of the
@ Coastalong the northcrn ride of the Gulf in Figure 7 dm no1pass through the bound-
ary terminus.
" I.C.J. Reports 1982.p. 91, para. 130.52 GULFOF MNNE 159-60)
"The appreciation of the effect of individual geographical features
on the course of an equidistanceline has necessarilyto be made by
reference to the actual geographical conditions of the particular
area of continental shelf to be delimited and to the actual relation
of the IWO toasts IO that particular areass." [Italics added.]
In an area as large as the Gulf of Maine area, an essential element in
drawing a boundary in accordance with international law is to determine
the parts of the Coastto which the various maritime areas are geograph-
icallyand legallyadjacent.
144. The Court of Arbitration divided the relevant area or "arbi-
tration area" into two regions: the English Channel - or more particu-
larly, the Channel Islands region - that lay "between" or "within" the
coasts of the Parties, and the Atlantic regionthat lay "off' their coastss9.
In rejectina the proposal of France to delimit the shelf in the Atlantic
region "bf referince to prolongation of the general directions of the
Channel coasts of the Iwo countries". the Court of Arbitr~t~-~ -~~~~~~~
that this method was no1"compatible bith the legal régimeof the conti-
nental shelf' because "it detaches the delimitation almost completely
from the coasts which actually abut on the continental shelf in the
Atlantic region, and is thus not easily reconciled with the fundamental
principle that the continental shelf constitutes the natural prolongation
of a State's territory under the seaPD"R . ather, the Court of Arbitration
continued:
"... the method of delimitation which it adopts for the Atlantic
region must be one that has relation to the coasts of the Parties
actually abutting on the continental shelf of that region. Essen-
tially, these are the coasts of Finistèreand Ushant on the French
side and the coasts of Cornwall and the Scilly Isles on the United
KingdomsideP'."
145. The Parties in this case have bothidentified an "inner and
outer area" or "an interior and an exterior componentP"'.They are
agreed that the inner or interior componentcomprisesthe Gulf of Maine
itself and the coasts that face onto it. They also agree that the outer or
exterior componentextends into the Atlantic Ocean seawardof the Gulf
of Maine and includes Georges Bank. However,there appears to be no
agreement between the Parties as to the coasts to which this outer area
is adjacent.
" Anglo-FrenchConlinenialShelfaward, p.113.para. 240.
a'>Anglo-FrenchConrincntolShelfaward, p. 22, para.2; p109-110,paras.232-233.
" Anglo-FrenchConlimnfolShelfaward, p.IlS. para.246.
si Anglo-FrenchConlin~niolShelfaward, p.116,para. 248.
9' Cmodinn Mernorial, p.21. para. 17;pp. 25-27. para27-32 ;. 137. paras. 328-330;
UnitedStates Memoriol.p.19.para. 25 and fmtnote2. t6ll COUNTER-MEMORIALOFCANADA 53
146. In Canada's submission, the outer area. including Georges
Bank, is geographically and legally adjacent to the coastal wingsof the
Gulf of Maine - the coasts of Nova Scotia, northwest and northeast of
Cape Sable, and of Massachusetts, northwestand southwest of Cape
Cod and NantucketqJ.These are the coasts that lie closest to Georges
Bank and from which the Georges Bank fishery is conducted. While it is
not necessary to define the precise extent of the coasts that abut the
outer part - the seaward rim - of the Gulf of Maine area, they may
be seen as extending from Cape St. Marys to Lunenburg on the
Canadian side, and from Cape Ann to Newport on the United States
side. The geographical relationshipof these coasts to the outer area is
analogous to the relationship of the coasts of Finistèreand Cornwall to
the "Atlantic region" in the Anglo-French Continent01 Shev award
@ [Figure 14).
147. Among the features identified by the Court of Arbitration as
forming "part of the geographical and legal framework of the delimita-
tion in the Atlantic region" were the following:
"...although the coasts of the two countriesabutting on the conti-
nental shelf to be delimited are of somewhat different shapes,they
exhibit certain similarities. Both [Finistère and Cornwall] are
peninsulas which constitute the ultimate reach of their respective
territories into the Atlantic region; both have offshore islands
which project their respective territories still further into the
region''."
148. Again, the geographical situation in the outer part of the
Gulf of Maine area is analogous to that in the Atlantic region. Both
southwest Nova Scotia and southeast Massachusetts are "peninsulas
whichconstitute the ultimate reach of their respectiveterritories into the
Atlantic", that is, into theouter part of the Gulf of Maine area. The
coasts are of "somewhat different shapes". Whereas the southwest Nova
Scotia peninsula, like Finistère, has arather blunt configuration, the
Massachusetts peninsula, like Cornwall, is progressivelyattenuated as it
thrusts easiward into the AtlanticPs.Both Canada and the United States
also have "offshore islands"or analogousfeatures.
149. The United States gives no clear indication of the coasts to
which the various maritime areas are geographicallyadjacent. Its discus-
sion of geography seems to leave the marine areas constituting the
exterior component suspendedin space, unattached to any coa~t~~I.n dis-
cussing geomorphology and the marine environment. the United
States Memorial gives the impressionthat it considers GeorgesBank to
be geomorphologically and ecologically associated with the Coast of
93 ConodionMemorial.p. 27, para. 32: p. 29. parp.143, para. 345: pp. 146.147,
pgra.35): p. 147.para.354.
Anglo-FrenchConrinenr~lShel/award.p. 110,para.234.
95 A cross-sectionof the souiNovatScotia peninsula(romCapeSt. Marysto Livcr-
pool (120 kilometrcs)is twicc ihat of a correspondingscction of the southeartMassa-
chusettspeninsularomBostonto Providence(61 kilomiires).
" UniiedSroiesMemoriol. 19,para.25. 54 GULF OF MAINE 1621
Massachusetts or, more generally, of southern New England9'. Yet,
when discussingthe "seaward extensions"of "coastal fronts", itimplies
that the outer area, including GeorgesBank, appertains to the coasts of
Maine and New HampshireP8.This seesawtreatment is unfounded. The
notion that Georges Bank appertains to or is adjacent to the coast of
Maine - and not to the substantially closer coasts of Nova Scotia and
Massachusetts - is completely divorced from geographyand from the
legal basisoftitle to the 200-milezone.
B. DISTANC END PROXIMITY T: EGEOGRAPHICA BLASISAND
IMPLICATIO N STHE SOURCE OF TITLE
150. Geography is the disciplinethat concerns itself with the spa-
tial organization of and interrelationships between physicalanduman
phenomena. Distance, proximityand adjacency are geographical con-
cepts. The continental shelf and the 200-mileishing zone and exclusive
economic zone are geographical and legal concepts: they involve the
extension of the sovereign rights and jurisdiction of coastal States into
ocean space. International law has adopted the geographical conceptsof
distance, adjacency and proximity as the legal basisof titleo areas of
the ocean. The choice ofthese geographical concepts,rather than others,
demonstrates their primary importance in purely geographical terms, as
wellas their particular relevance to the nature of the subject matter of
these newjurisdictions- livingand non-living resources,environmental
protection, scientific research and to the environment in which they
are situated. For distances the most fundamental of al1spatial princi-
ples and is of particular relevance to natural phenomena and human
activities on the featurelesssurface of the sea. At the same time, the fact
that the law has adopted the distance criterion has implications forthe '
manner in which geography is used as a relevant factor in determining a
maritime boundary in accordance with international law.
151. One such implication is that, where a constant distance is
used to define the seaward extension of a coastal State, its maritime
zone extends outward in every direction within the prescribeddistance.
No one direction is legally more significant than any other. The mari-
time zone of a coastal State within this frameworkis not to be thought
of as aplatform infront of its coast, but as a broad belt of sea surround-
@ ing its territory in everydirection. Contrary to the depiction in Figure 31
of the United States Memorial, the concept of the seaward extension of
a coastal State cannot be reduced to a rectilinear projection outward
from the coast in a single, presumably perpendicular direction.On the
contrary, where the spatial relationship between land and sea is
expressed essentially in terms of proximity to the coast, the extension of
a maritime zone outward from the coast is radial rather thanperpen-
@ dicular [Figure IS]. This approach to geography is especiallyimportant
where the coastal configuration iscomplex, with multiple and radical
siUnitcdStotes Mernorip. 2para.32;p.31paras45 and48; p. 32, parap.33.
@ Figure6p.36,para.57p.37.Figure7.
@ siUnitedStates Memorio/.192para.310p.193.Figur3 1.I64 COUNTER-MEMORIALOF CANADA 55
changes in the direction of the coast,and where the coastal configura-
tions are rounded and irregular and cannot be made rectilinear without a
wholesalerefashioningof geography.
152. Such a conceptual framework is well adapted to the broad-
ened subject matter of coastal State jurisdiction beyond the territorial
sea. In the case of a single maritime boundary, it is reasonable to inter-
pret the geography as a mariner wouldsee it. To look at the relationship
of the submarine areas to the land in terms of formal geometrical prop-
erties may have had some relevancein the delimitation of the continental
shelf, where the issue wasthe extent of the prolongationof the land ter-
ritory under the sea; but it is meaningless where the issue is a single
maritime boundary for a multi-purpose zone. To a fisherman - as to a
mariner and other users of the sea- the perpendicular juxtapositionof
the sea to the coast fromwhich he operates has no meaningor utility. To
him, it is of no signilicance whether theangle betweena point at sea and
the coastline at a particular point is perpendicular or oblique. What
counts is how long it will take him to get there, which of course is a
function of distance. The fisherman or mariner can well understand the
concept of the general direction of the coast as a measure of ils extent-
it correspondsclosely to the course of a coasting vesse1 - but he would
have the greatest difficulty seeing whythe angle of juxtaposition should
have any practical effect.
153. The wholeof Georges Bank liescloser to the coasts of either
Nova Scotia or Massachusetts than it does to the coasts of New Bruns-
wickor Maine. Moreover,most of eastern Georges Bank - the disputed
area -lies closerto the coast of Nova Scotia than it does to any part of
the coast of the United Statesw. The proximity of Georges Bankto the
Nova Scotia coast is not a matter of abstract geometry, but rather a
fundamentally important fact of physicaland human geography.
1.Physical Geography
154. The United States Memorial dividesthe Gulf of Maine area
into three distinct "ecological régimes". According to this scheme,
Georges Bank is separated from the coasts of Maine and New Bruns-
wick by the Gulf of Maine Basin, which allegedlyconstitutes a distinct
ecosystem. The United States further alleges that the Georges Bank
"régime" is linked in oceanographic and biological terms to the waters
off soutbern New England'*. While Canada rejects this simplistic and
erroneous analysisof the oceanographyand biologyof the Gulf of Maine
area, it notes that the United Siares does not view GeorgesBank os
" Only the area immcdiatclyto the eastof the Canadianlinc is closerta the United
States(Cape Codand Nantucket)thanit is to NovaScotia.AparttramCapeCodand
Nantucket,the wholcof thedisputedôrea on GeorgesBanklies closerto Canadathan
it doesto the UnitedStatcs.
lm UniredSrares Memoriol. p. 31, paras.45 and48; p. 32. para.51. 56 GULF OF MAINE 1641
being linked with the innermost sector of the Guifor with the Coastof
Maine.
155. A glance at any chart with adequate bathymetric contours
will show that the water depths in the Gulf of Maine Basin lying
between Georges Bank and the coasts of New Brunswick and Maine
are considerably greater than the water depths in the channels separat-
ing Georges Bank from the East Coast Shelf and the Scotian Shelf
@ [Figure 31. Furthermore, the Gulf of Maine Basin is about four and one-
half limes wider than either the Great South Channel or the Northeast
Channel, having as it does an average width of 110 nautical miles,com-
pared with 25 nautical miles for the Northeast Channel and 22 nautical
milesfor the Great South Channel.
156. Several factors, to be discussed in detail in the following
chapter, show that Georges Bank has particulargeological,geomorpho-
logical, oceanographic and biologicalaffinities to the northeast, that is,
to the continental shelf and waters off Nova Scotia'o'.
2. Human Geography
157. Socio-economicgeography is important in its own right as
part of the total geographical frameworkthat is legally relevant to the
delimitation of the continental shelf and the 200-mile fishingzone or
exclusive economiczone. Inaddition, it assists in the interpretation and
appreciation of the purely physical geog~aphy'~~.
158. There is in general a clear distinction betweenthe fishing
patterns followedby vesselsoperating from the ports on the Canadian
and United States coasts that face the innermost sector of the Gulf of
Maine, and those followedby vesselsoperating from ports on the coastal
wings seaward of Cape St. Marys and Cape Ann. Vessels from the
innermost sector carry out inshore fisheriesor fish forherring or redfish
on offshore banks lying withinthe Gulf of Maine itself. Lessthan 1 per-
cent of Maine's total catch in both volume and value is taken in the
Georges Bank areal''. By comparison, Georges Bankdoes make a sub-
stantial contribution to the landings of ports in Digby County, Nova
Scotia (in the lower reaches of the Bay of Fundy), making up, for
'OSee paras. 168-199.
'O-ee,for example, the viewsof one comrnentator:
"...saciaecanomic factors canenable the decisian maker to understand the signifi-
Frencharbitratian in ordcr to evaluate the importance of the islands and their
relationship to thcir homeernments also provided information fmm the per-
spective of the earth sciences an the islands' true uiilily and independence. Simi-
larly, the activity of the coastal inhabitants in adjacent waters wauld pravide infor-
mation relevanto the issues of adjacency and contiguityuscsof the data
contribute dircctly to an appreciatian al the actual geographic and geological sit-
uation. theetter basis for the lateral boundary delimitation."
J. Charney: "The Delimitatian of Lateral Seaward Boundaries in a Damestic Context."
American JournalofInternational LaVol. 75, 1981,pp. 66-67.
'OS. Olsen and T. Grigalunas: "A Profile of NewEngland Fishing Ports", p. 98. i651 COUNTER-MEMORIALOF CANADA 57
example, approximately 13 percent of the landings of the town of Digby
and about 80 percent of those of Saulnier~ille'~.
159. Almost al1 the fishing on Georges Bank is conducted from
ports on the coast of Nova Scotia from Digby to Lunenburg, and on the
coast of Massachusetts and Rhode Island fromGloucester to Newport.
Thus, with the exception of the Digby County coast, the coasts from
which fishing is conducted on GeorgesBank correspond to the coastal
wings of the Gulf of Maine area. The greater proximity of the eastern
part of Georges Bank to Nova Scotia is reflected in the character of the
Canadian fishery in that area.
160. A substantial number of the Canadian vessels fishing
Georges Bank are small vessels ranging from 10.4 to 19.8 metres in
length. Some of the smaller vessels that fish the Bank - those under
25.5 gross tons - have been classified as inshore vessels and so have
been traditionally exempted from the statistical reporting system main-
tained by the Canadian Department of Fisheries and Oceans. The fact
that these "inshore" vessels fish onGeorges Bank as a normal part of
their fishing operations is a striking demonstration of the adjacency of
Georges Bank to the coast of southwest Nova Scotia'OJT . here is no cor-
responding fisheryby United States vesselsof a comparable size on the
eastern part of Georges Bank, thus confirming the practical significance
of the greater proximity of eastern Georges Bank to fishing portson the
Canadian coast.
161. In his separate opinion in the Tunisia-Libya Continental
Shev case, Judge ad hoc Jiménezde Aréchagacited with approval a
passage fromthe German pleadings recalled by Judge Jessup in his sepa-
rate opinionin the North Sea Continental Shelfcases:
"From the point of view ofexploitation and control'ofsuch subma-
rine areas, the decisivefactor is no1the nearest point on the coast,
but the nearest coastal area or port from which exploitation of the
seabed and subsoil can be affected. The distance of an oil, gas or
mineral deposit fromthe nearest point on the coast is irrelevant for
practical purposes, even for the laying of a pipe-line, if this point
on the coast does not ofier any possibilitiesfor setting up a supply
base for establishing a drilling station or for the landing of the
extracted produ~t'~~."
Exploratory operations havealready been carried out by United States
companies on part of western Georges Bank from onshore bases in
Quonset Point/Davisville, Rhode Island and New Bedford, Massachu-
setts. Moreover, studies published inthe United States on the onshore
siting of facilities for the exploitation of hydrocarbons on the rest of
Georges Bank conclude that both drilling bases and processing facilities
would probably be sited in Massachusetts or Rhode Island. Il is con-
sidered unlikely that gas processing plants or oil refineries would be
Iw ConadionMernorial,p.76, Table5-6.
'O'Secparas. 256.261, 262. 298 315.
'" I.C.J. Reporrr1982,p. 121, para. 75. 58 GULF OF MAINE 166)
located on Cape Cod. The siting of onshore facilities and the landing of
a pipeline on the coast of Maine are considered improbable"". On the
Canadian side, onshore bases for drilling on Georges Bank and the sites
of landing facilities forgas pipelinesarelikelyta be located in the south-
WestNova Scotia ports of Shelburne or Yarmouth.
162. Since the Parties have providedin the Special Agreement
that the boundary determined by these proceedingswillserve for al1pur-
poses under international law, factors relating t? the environmental
impacts of hydrocarbon exploitationor navigation are relevant ta the
issue before the Court. The United States recognizes that the Nova
Scotia coast faces a significantly higherriskthan does the New England
coast from any pollution that may be caused by the exploitation and
transportation ofail from drilling siteson GeorgesBankJos.
0 163. Figure 31 of the United States Memorial depicts Georges
Bank as part of the "seaward extension" of the coastal front of Maine.
The United States gives no indication of the facts on which it relies for
this uniqueview ofthe land-sea relationship in the region. It is clearly at
odds with geographical fact. in both ils physical and human dimensions,
and with expert and popular opinionconcerning the situation of Georges
Bank in relation ta the coasts of the Gulf of Maine area. The evidence
shows that Georges Bank is most closely related in physical and in
human terms tothe coaststo which it is mostproximate - the coastal
wings of the Gulf of Maine - and that the eastern part of Georges
Bank, the area claimed by Canada, is geographically adjacent ta the
coast of southwest Nova Scotia.
Conclusion
164. The identification, interpretation and weighing - "taking
account" -of geographical and other circumstancesis a process involv-
ing issues of fact and law. If that process is to produce an equitable
result in accordance with international law, the process itself mus1
respect the pertinent norms of both geography and law. It is the failure
of the United States ta respect either geographical or legal principles
that results in the Parties drawing such different conclusions from the
same facts.
165. The United States has failed to respect the norms of geogra-
phy in its almost total concentration on simple locationalfactors, ta the
exclusionof other relevant facts of physical and human geography. The
exclusionof economic geographyfrom the delimitation of what is effec-
tively a 200-mile exclusiveeconomic zone runs contrary to common
sense, as well as ta the legal requirement to take account of al1 the
lm Final EnvironmentolStotemenl. Proposd977 Outer Contin~ntoiShelj ond Gos
LeoseSale Off3horethe North ArlaStores.Val. 2. pp.902.906; Esrimorerfor New
Ncw EnglandRiverBarinrCommission,1976:CaseStudies in OCS Planning.Omhore
Facilities Relored ro Offshoand Gos Developmenr.Boston,New EnglandRiver
BasinsCommission, 1978.
Secparas.189-191andFigure 19. 1671 COUNTER-MEMORW Of CANADA 59
relevant circumstances. Above all. the emphasis on macrogeographical
factors is not compatible with the legal requirement, acknowledged in
the United States Memorial, to take account of the particular situation
within the area relevant to the delimitation. The arbitrary and lopsided
definition of the relevant area in the United States Memorial ignores
common usage and recognizedgeographical criteria for the definition of
regions.The inconsistenttreatment of the Bayof Fundy runscontrary to
geographical fact, to logic, to the United States' own definition of the
relevant area, and to the legal requirement to take account of al1the
relevant circumstances. The false hierarchy of "primary" and "second-
ary" coasts rests upon geographically meaninglessand legally irrelevant
premisesand is incompatiblewith the most fundamental principlesofthe
lawof maritimejurisdiction. The suggestionthat Georges Bank is legally
adjacent to the coast of Maine runs contrary to the geographical facts
presented in the United States Memorial and to the basis of legal title to
the 200-milezone. In short, the United States Memorial seeks to refash-
ion geography and to divorce the geographical facts from the applicable
law.
166. Canada has respected the norms of geography and law in
identifying and interpreting. the relevant geographical facts. It has
defined the relevant area on the basis of common usage and criteria that
geographers employto define regions.It has identifiedas legallyrelevant
only the geographical facts within the Gulf of Maine area and has inter-
preted these facts in the context of the applicable law. It has thus given
appropriate weight to the geographical criterionof distance and to other
relevant factors of physicaland human geography.
167. In Canada's submission, the principal geographical circum-
stances relevant to the determination of the single maritime boundaryin
the Gulf of Maine area are the proximityof Georges Bank to the coastal
wingsof Nova Scotia and Massachusetts and the proximity of the east-
ern half of the Bank to Nova Scotia. These primary factors are to be
appreciated in a context of overallbalance between the coastsof the Par-
ties as reflected in their length and configuration, and in a context of
symmetry and oppositeness betweenthe coastal wings of the Gulf rela-
tive to Georges Bank; this symmetry is broken by the aberrant protru-
sion of Cape Cod and Nantucket away from the general direction of the
United States coast. Other relevant geographical circumstances in this
case include the complexity of the geographical situation caused by
manifold changes in the general direction of the coasts within the Gulf
of Maine area; the east-west juxtaposition of the Maritime Provinces
and the New England States, and the generally north-south direction of
the land boundary between them; the situation of Point "A", south-
southwest of the international boundary terminus,between the opposite
coasts of Nova Scotia and Maine; and the pronounced concave configu-
ration of the Bay of Fundy relative to the configuration of the corre-
sponding United States coast bordering the innermostsector of the Gulf. CHAPTER III
THE OFFSHORE ENVIRONMENT
Introduction
168. As regards the offshore environment in the Gulf of Maine
area, the relevant circumstances are compatible with and indeed support
the logicof the Canadian line. The continental shelf in this area is a sin-
gle, continuous.uninterrupted feature, without discontinuitiesthat might
identifyseparate natural prolongations. Georges Bank is a topographie
feature of this single shelfand is defined by both the Great South Chan-
nel and the Northeast Channel. Similarly, il is part of a single, inte-
grated oceanographic system and maintains both relatively discrete
stocksand stocksof wide-rangingand migratory speciei.
169. There is no basis for the contentions in the United States
Memorial that the Northeast Channel represents a "natural boundary"
between the "separate and identifiable ecological régimes associated
with Georges Bank and the Scotian Shelf'. Still less is there any basis
for the assertion that this channel is a "natural boundary" for human
activitied in the Gulf of Maine area. In any event, the single maritime
boundary in this case mus1 be determined in accordance with interna-
tional law and not in accordance with subjective interpretations of
nature.
170. To the extent that there are discontinuities of any kind
between Georges Bank and the surrounding seabed and water column,
these are found generally to the southwest, in the area of Cape Cod,
Nantucket Shoals and the Great South Channel. To the extent that
Georges Bank exhibits any particular geological, oceanographic or bio-
logical affinities with surrounding areas, these are to the northeast.
Thus, the evidenceprovided by geology,oceanography and biologycon-
firms the vie~ that the Canadian line represents an equitable delimita-
tion in accordance with international law, and that the United States
claim does not. International law further requires that the basis for
effective conservationof transboundary resources mus1be found in bilat-
eral cwperation and not in unjustified and inequitable claims to
monopoly.Such cooperation is in keeping with globalpractice and with
the well-establishedregional practice of Canada and the United States.
Section 1. The Continental Shelf in the Gulf of Maine Area
Cunstitutes a Single Natural Prolongation with Particular
Geological Ailinities to the Northeast
171. As is recognizedby the United States, the single continental
margin of the Atlantic Coastof North America is essentiallycontinuous
in ils geologicalstructure from northeast to southwest'. In this respect, it
resembles the margin considered by the Court in the Tunisia-Libya
' UnitedStoresMcmoriolp.24, par361691 COUNTER-MEMORIALOF CANADA 61
ContinentalShelf case, where it was held that the Pelagian Blockcon-
stituted the common natural prolongation of Tunisia and Libya2.The
United States Mernorial, accordingly,is on solid ground in conceding
that "the natural prolongation principlemay be inapplicable in this
case3".That Memorial, however,is inconsistent in suggesting that there
is a separation where it hasalready adrnitted that there is nosuch sepa-
ration. Indeed, to the extent that Georges Bank exhibits particular
affinities to the geologicalstructure of any area of the continuousmar-
gin of which it forms a part, these affinities are with areas to the north
and northeast. Conversely,the most distinct geologicaldiscontinuity evi-
dent in the Gulf of Maine area is the New England Seamount Chain, a
rowof extinct volcanoesthat disturbs the structural integrity of the base-
ment block and extends seaward off Cape Cod in the vicinity of the
Great South Channel'.
A. SUBSURFAC STRUCTURES
172 The subsurface geologicalstructure of Nova Scotia is made
up of two types of basement rock: the Paleozoic rocksof the Meguma
Croup, and the predorninantly Precambrian rocks of the Avalon Plat-
form. It is clear from high-sensitivityaeromagnetic data that the base-
ment rocks of Nova Scotia extend in a southwestward direction across
the Scotian Shelf and from the Bay of Fundy into the Gulf of Maine.
Magnetic anomalies trend southwestward acrossthe Northeast Channel
and beneath Georges Bank,confirming the existenceof geologicalaffini-
ties betweenGeorges Bankand the Canadian landmass.
173. In its assertions about the sedimentary features known as
the Georges Bank Basin and the Scotian Basin, the United States
Memorial impliesthat the Georges Bank Basin alone underlies Georges
Bank and that the Scotian Basin is found only beneath the Scotian Shelf
to the northeast. In fact, the Scotian Basin extends from the Scotian
Shelf southwestward beneathGeorges Bank'. It is only partially sepa-
rated from the Georges Bank Basin by the Yarmouth Arch, a basement
structure that cuts transverselyacross the Northeast Channel. A promi-
nent United States geologisthas observedthat:
". . . the very thick sedimentary section found under Georges Bank
... by petroleum exploration surveys(Schultz and Grover, 1974),
and the higher-velocitysediments in the deeper part of the basin
(Drake et al.. 1959) are so similar to those of the Scotian Shelf
that correlarionscanbe projected6."[Italicsadded.1
I.C.J. Repor1982.p. 58. pa67.See alsCanodianMernorialp.130.para.308.
l UniledSi~ier Mernorip. 201. para.315.
ConodionMernorialpp.45-46. Figures15and 16:p.47. para.81.
Counier-Memoriol,AnnexesVol. 1,pp. 17-20, paras.31-37.
6 R. E. Sheridan: "Atlantic ContiMl argiofNarihAmcrica".in C. A. Burkand
C. L. Drake.cdsThe GeologyofConiinenrolMorginsNew York ,pringer-Verlag.
1974, pp.396-39Counier-Mernoriol.AnnexeVal. IV.Annex II. 62 GULF OF MAINE Pol
Both the Scotian Basin and the Yarmouth Arch are geological features
@) linking Canada and the eastern part of Georges Bank [Figure 161.
174. There is no single hydrocarbon-bearing structure underlying
the whole of Georges Bank. As the preceding paragraphs have shown,
three major features underlie the Georges Bank area: the Georges Bank
Basin, situated largely beneath the western part of Georges Bank; the
Yarmouth Arch extending from Nova Scotia; and, beneath the eastern
part of Georges Bank, the extension of the Scotian Basin. In each of
these features there are separate oil and gas structural sub-units or
"plays", that provide opportunities for hydrocarbon discovery'. The
greater part of the Georges Bank Basin and its hydrocarbon plays lies
Westof the Canadian line. The Scotian Basin and almost al1the Yar-
mouth Arch and their hydrocarbon plays lie east of the Canadian line.
The United States line, on the other hand, cuts through the Yarmouth
Arch and the Scotian Basinand the hydrocarbon playsthey contain.
Section 11. Georges Bank 1s a Topographie Feature Defined by the
Great South Channel and the Northeast Channel and Exhibiting
Particular Afiinities to the Northeast
175. The United States Memorial omits any reference to the
Great South Channel in definingGeorges Bank, in an attempt to suggest
that the Bank is a physical extension of Massachusetts. Conversely, it
seeksto portray the Northeast Channel as a "significant" geomorpholog-
ical feature and as a "natural boundary" between allegedly distinct
"ecological régimes" onGeorges Bank and Browns Bank8. In fact,
Georges Bank is a detached offshore bank, adjacent ta and seaward of
the coasts of Nova Scotia and Massachusetts that face each other across
the Gulf of Maine. It is separated from Nantucket Shoals by the Great
South Channel and from BrownsBank by the Northeast Channel. Both
channels are the product of glacial and fluvial processes9. Thus, the
United States Memorial is in error in implyingthat the Northeast Chan-
nel somehowinterrupts the singlecontinental shelf of the Gulf of Maine
area. The true relevantcircumstance in this context is neither the North-
east Channel nor the ecologicallymore significant area associated with
the Great South Channel. Rather, it is Georges Bank itself - the "pic-
ture" framed by the two channels, so to speak - that constitutes a rele-
vant circumstance, the very object of the dispute between the Parties.
While Georges Bank is an integral part of a single. uninterrupted
' The hydrocarbonkaring structuresof the Georges Bank Basin. the Yarmouth Arch
and thc Scotian Basin are describd in thCounrer-Mernorio/.Annexes, Vol.1.
pp.20-21. paras.38-42.
Vniied SioresMernorialp.20. para. 31; p. 39. pa58;p. 175.para. 196; p. 209,
para.325.
Counr~r-Mernorial. nnexesVol.1.pp.7-10.paras17-20. continental shelf, certain geomorphological factorsdemonstrate that it
has particular affinities with Canada.
176. As was stated in the Canadian Memorial, if the Gulf of
Maine area were drained, the continental shelf wouldappear as a flat
@ and practically featureless plainIo. Figure 17 shows that ils physio-
graphic features can be revealedonly with the assistance of multiple ver-
tical exaggeration. Even the most dramatic physiographic feature of the
area - the steep slope below the shelf break - must be exaggerated
five times before it becomestruly discernible. Thus, any attempt to treat
geomorphological features in the categorical fashion adopted in the
United States Memorial mus1 similarly require great exaggeration. A
striking example of such exaggeration is the attempt by the United
States to equate the Northeast Channel and the Laurentian Channel and
to describe them both as the "only significant breaks" in the continental
shelf on the Atlantic coast of North America". All that really needsto
be said about the Laurentian Channel is that it lies welloutside the rele-
vant area in this case, by any definition. For the record, however, it
should be noted that the Laurentian Channel is a far larger, longer,
deeper and steeper feature than the Northeast Channel. It is clear that
the United States has introduced this unique and irrelevant feature into
the present proceedingsin order to distract attention from the Great
South Channel as one of the two features that define Georges Bank. The
@ relative scale of al1three features may be seen in Figure 18.
177. The Canadian Memorial describesfour broad physiographic
provincesof the single continental shelf on the Atlantic coast of North
America". These provinces revealthat the only significant geomorpho-
logical differentiation along this single continental shelf is that between
the "East Coast Shelf' - Le., the seabed southwestof the Great South
Channel -and the seabed to the northeast of the Great South Channel,
including Georges Bank and the Scotian Shelf. Southwest of the Great
South Channel, the continental shelf is essentially a smooth unglaciated
plain. In this area, the massive ice sheets of the Wisconsinan glacial
stage (beginning about 80,000 years ago) did not extend on to the shelf
much beyond the present coastline.Northeast of the Great South Chan-
nel, however, the entire continental shelf shows the scars of glacial
action. Any geomorphological discontinuityin the Gulf of Maine area,
accordingly,is from the Great South Channel to the southwest.
178. The suggestion in the United States Mernorial" that
Georges Bankis an "extension" of the Atlantic Coastal Plain is errone-
ous, as is the implication that the submerged plain terminates at the
'O CamdianMernorio/,p.37,para66.
" UniredSrotesMernoNol.pp.20-21, par31.
l2 Conadion Mernorialpp. 37-38,para. 67; p. 38. Figur13; Counfer-Mernorial,
Annexes.Vol. 1.p. 3. pa10.
" UniredStotesMernoriolp. 23. para.32.64 GULFOF MAINE 1721
Northeast Channel. The submerged Atlantic Coastal Plain in fact is the
continuous sedimentary wedge that constitutes the Atlantic continental
margin of North America. It includes not only Georges Bank but also
the balance of the Canadian continental shelf to the north, off the Nova
Scotia and Labrador coasts and beyond Baffin Island, and the United
States continental shelfsouthwest to Florida".
179. The United States Memorial also claims that glacial and
fluvial deposits on the Scotian Shelf are thinner than those on Georges
BanktJ. In fact, they are variable in both areas and no meaningful dis-
tinction can be made between sediment thickness on the Scotian Shelf
and on Georges Bank. Rather, there is a continuum in glacial and fluvial
sediment thickness fromnortheast to so~thwest'~.More important, the
several classes of sediment composition clearly reveal continuity from
northeast to southwest in terms of percentages of gravel, sand and mud.
The distributions of gravel, mud and (to a somewhat lesserdegree) sand
extend in a broad band from the Scotian Shelf acrossGeorges Bank".
The assertion in the United States Memorial that the Scotian Shelf and
Georges Bank exhibit meaningful differences in seabed sediments is
clearly wrong.
180. The United States Memorial includes startling inaccuracies
regarding the definition and measurement of Georges Bank. It asserts
that Georges Bank "extends approximately 200 nautical miles (370
kilometers) from Nantucket Shoals to the Northeast Channel", and that
the "area of Georges Bank is measured from the westernedge of Nan-
tucket Shoals, eastward within the 100-fathom-depth contour to the
Northeast Channel'8"[Iralicsadded]. These statements areat odds with
the views ofrecognizedauthorities and with the descriptionscontained in
official United States documents. None of these suggests that Georges
Bank beginsat the western edge of Nantucket Shoals. All of them define
Georges Bankby reference to the Great South Channel. For example, a
publication issued bythe United States Department of the interior has
defined Georges Bankas:
''The UnitedStates Memorialcontainsa mapshowingthe physiographicregionsof the
cast caastof North Amcrica,but docs not illustratethe subrnergedcontiofathen
Atlantic CoastalPlainrarnFlaridato BaffinIslandUnitedSioies Mernorial.Doeu-
rncnioryAnnexes.Vol. II.Anner 39. See alsoCounier-Mernorial,Annexes,Vol. 1.
p. 2, para.9.
l5UniredSroimMernorial, p. 24. para.34.
Counier-MernoNol.Annexes, Vol. 1.pp. 10-11. para.21.
" Counier-MernorialAnnexes. Vol. 1.pp. 11-15,paras.22-25, and Figur6and 7.-
" UnitedSrorerMernorial.p. 23, para.32 and fmtnote 2.173-741 COU~ER-MEMORIAL OF CANADA 65
". .. an area characterized by parallel shoals and troughs and sepa-
rated from the Scotian Shelf by Northeast Channel and from the
East Coast Shelf by Great South ChannelI9."
More telling still, perhaps, is the definition containedin what has been
described in the United States Memorial as "the pioneering sludy" of
Georges Bankby Bigelow:
"... the length of Georges Bank, from the deepest trough of the
South Channel to the 50-fathom contour on the slope of the East-
ern Channel, is about 140 milesz0 ..."
181. The Great South Channel is mentioned in the United tat tes
Memorial only in the briefest and most oblique fashion". For this rea-
son, il is necessary to recall that this channel was an important river
drainage system in the geomorphological developmentof the Gulf of
Maine area". At one point in ils history, the channel was almost
200 metres deep. Only later was il filled by fluvial detritus and glacial
outwash. Today, the Great South Channel is generally 80 metres deep~
and lies between Nantucket Shoals and Phelps Bank on the Westand
Little Georges Shoals on the east. The Great South Channel culs a
swath through these shoals and constitutes by far the most important
navigation and shipping route in the Gulf of Maine area. This route is
covered by a traffic separation scheme that has been endorsed by the
International Maritime Organization". The Northeast Channel, in con-
trast, is irrelevant for navigationalpurposes.
Section III. Georges Bank 1s Part of an Integrated Oceanographic
System with Particular Afioities to the Northeast
182. As described in the Canadian Memorial, Georges Bank is
part of the oceanographiccontinuum - a single but complexocean sys-
tem - that extends throughout the Gulf of Maine area from northeast
E.Uchupi: AtlanticContinentaSlhelfond Siopeof the UnitedStoies- Physiogro-
phy,Unitcd States Department of the Interior, Gtological Survcy Professional Paper
is referred ta as: Government Printing Office. 1968. pp. C3 and C5. Georgcs Bank
"...an immense barrier flanking ihc seaward side of thc Gulf of Maine: il is sepa-
rated from the Scatian Shelf by Northeast Channel and fram thc East Coast Shelf
to the wcsi by Great South Channel."
Counter-MernoNol.Annexes. Val. IV. Annex 12.
H. B. Bigelow:"Physical Occanagrsphy of the Gulf of MainBulletinof the United
Stores Bureou of FishcririV.ol. XL. Pari 11. 1924. p. 518:Countcr-Mernoriai.
Annexes,Vol.IV. Annex 13.
2 In fact, as already notcd, ihc Grcat South Channel is mentioned by namc only once in
the United States Memorial. following a reference to the "remnant of the western
drainagesystcm".UniredSi~tesMcrnoriol,p. 23. para. 33.
" Counter-Memoriol.Annexes,Vol. 1,p. 5para.12.
13 The Great South Channel iraffic separation scheme is ilansbath Canadian and
United Statesydrographiecharts of the Gulf of Maine area.ConodionMernorial.
p. 26, Figure 9, Canadian Hydragraphic Chart 4003 and United States Coast Survey
Chart 13006. 66 GULFOF MAINE I751
to southwestZ4.Within this oceanographic continuum, Georges Bank
exhibits some elements of semi-discreteness.To the extent that Georges
Bank is set off fromits surrounding waters in oceanographic terms, the
Great South Channel and the Northeast Channel are equally important
elements in defining this semi-discreteness. Indeed,as was pointedout in
theCanadian Memorial, GeorgesBank has certain oceanographicaffini-
ties to the northeast, bringing it intocloseassociationwith the Canadian
coastal waters within the Bay of Fundy and off south and southwest
Nova Scotia. Such oceanographic discontinuities as do exist are
associated with the Cape Cod-Great South Channel-Nantucket Shoals
area and the waters to the southwest.
A. CURRENTS T,EMPERATURE AND SALINITY
183. The United States Memorial asserts that the waters of the
Scotian Shelf, the Gulf of Maine Basin and Georges Bank in each case
have "distinctive" temperature and salinity characteristics~~.This asser-
tion requires some clarificationand correction. In terms of large-scaie
patterns, the water characteristics of the Gulf of Maine area are heavily
influenced by the colder. less saline water carried southward by the
Labrador and Nova Scotian currents, originating along the Canadian
continental shelf6. Moreover, the temperature and salinity relationships
between various water masses over the continental shelf exhibit relative
horizontal uniformity.There is a large overlap in temperature-salinity
characteristics between the waters above Georges Bank and neighbour-
ing waters of the Gulf itself and the Scotian Shelf. indicating a con-
tinuum in which continental shelf water is progressiveiy modifiedin its
southwardjourney fromthe eastern Canadian Arctic.
184. Surface temperatures of the waters aboveGeorges Bank,the
Gulf of Maine proper, Browns Bankand the western Scotian Shelf are
also strikingly constant or similar". The meaningful temperature differ-
ential is not foundamong these waters, but between al1surface water on
the continental shelf of the Gulf of Maine area and the waters further
offshore above the continental slope. The United States Memorial
ignores this onshore-offshore difference,and so conveys a misleading
impression of the temperature differences between Georges Bankwater
and Scotian Shelf water.
185. Another way to compare the temperature characteristics of
the waters of Georges Bankand contiguous areas is to examine the tem-
perature structure of the water column as a whole. This comparison
reveals that there is a very close correspondence between the water
column structure aboveGeorges Bankand the water column structure of
the banks of the Scotian Shelf, particularly BrownsBankza.The temper-
ature range averages fromapproximately Z0 to 3O Celsius in winter to
l4ConodianMernorialpp.49-54. par89-97.
" UniredSioier Memoriop. 28. pa42.
26Counier-Memoriol, AnnexVol. 1,p23,para45.
" Counier-Memoriol. AnnexVol. 1.pp.29-31, par52-55.
C~~le~-Mern~riol,AnnexesVol1,p.29,paras52-53:p. 31, Figure 14.
@1761 COUNTER-MEMORIAL OF CANADA 67
16" to 18" Celsius in summer in the upper water layer in each of these
areas. On the other hand, the temperature range in the water column
above the East Coast (southern New England) Shelf to the southwest
ranges from about S0 Celsius to more than 23O Celsius in the upper
layer. Thus, the significant temperature differential is not between
Georges Bankand BrownsBank, but rather between these banks and the
shelf waters southwestof Cape Cod.
186. The close similarity in vertical temperature structure
between Georges Bank and Browns Bankand the southwestern Scotian
Shelf is the result of vigorous mixing of the water column produced by
the single, integrated tidal régimeof the Gulf of Maine area2t Indeed.
the tidal currents are the most important factor controlling the oceano-
graphic régimeon Georges Bank, demonstrating the crucial interrela-
tionship between the Bay of Fundy and the waters of the Bank. The
United States Memorial, however,ignores the Fundytides in its descrip-
tion of the oceanographicrégimeon Georges Bank.
187. The relevanceof the Bay ofFundy to the oceanographic sys-
tem of the Gulf of Maine area is further demonstrated by the fresh
water discharge into the Gulf area from Canada's St. John River'O.This
river makes by far the largestcontribution of fresh water to the Gulf of
Mainearea, with a mean annual discharge equal to the combinedannual
discharge of the larges1 United States rivers in the region (the Penob-
scot, Androscoggin,Kennebecand Merrimack). In spring. the discharge
from the St. John River into the Gulf area is more than 60 percent of
the total of thefivemain rivers. The impact of the St. John River on the
oceanographic system of the Gulf of Maine demonstrates both the
oceanographic relevanceof the Bay of Fundy within the integrated Gulf
of Maine system, and the affinities of the entire area to the Canadian
coastal zones to the north and northeast.
188. Canada cannot accept the assertion in the United States
Memorial that a "marked front" occurs between the waters of Georges
Bank and those of the Scotian Shelf, with a slightly less well-defined
front occurring between the waters of Georges Bank and those of the
Gulf of Maine". The commonly recognized front in the Gulf of Maine
area exists al1 along the continental shelf edge, separating shelf water
from slope water further offshore3'.This is known as the "Shelf-Slope
" Counier-Mernoriol.AnnexeVol.1pp.31-34. paras.56-61.
" ConadionMernori~l.p. 52, para. 95Counler-Mernorial.AnnexesVol. 1, p. 28.
para.51.
UniredSroresMernoriop. 31. para.46.
" Counier-Mrrnorinl.AnnexeVal. 1.pp.34-35. paras.62-63.68 GULFOF MAINE [77-781
Front". A second kind of front is tidally induced and exists onlyseason-
ally. It is most evident along the northern edge of Georges Bank and
marks the transition from the tidally-mixed water over the shallowest
part of the Bank to the stratified water in the Gulf of Maine itself. In
the eastern and southern areas of Georges Bank, itis weak and diffuse.
Moreover, to the extent that it can be identified, it is situated well in
from the periphery of the Bank and is roughly coincident with the
60-metre contour. Consequently, in Canada's submission, there is no
basis for the suggestionthat a "marked front" occurs between Georges
Bank watersand the waters of the Scotian Shelf.
Section IV. The Environmental Consequences to Canada of an Oil
Spill on Georges Bank Attest tn the Unity of the Gulf of Maine
Area and to Its Links with the Canadian Coast
189. Canada's longand exposedcoastline hasled Canadian scien-
tists to spend a great deal of effort studying the impacts of oil spills on
the environment. In the Georges Bank-Gulfof Maine area, given the
effects of winds and currents, an oil spill can spread and encompass an
area as vast as 1,000square nautical miles withina week". An ail spill
on Georges Bank would not onlyaffect livingmarine resourcesbut could
also reach the Nova Scotia shore and cause great environmental
damage.
190. Official United States documents have recognized that in
certain cases Canada could face greater potential risks than the United
States, even inrespect of an ail spill occurring on the undisputed United
States part of Georges Bank.A study by the United States Department
of the Interior makes a number of probability projections relating ta
hypothetical oil spills occurring Westof the Canadian linel'. These show
that the estimated probability of oil comingashore on the coast of south-
West Nova Scotia, including the Fundy coast, is seven to eight times
greater than the risk of ail reaching the coast of Maine, New Hampshire
or northern Massachusetts, and three and one-half to four times higher
than the risk of oil reaching the coast of Cape Cod or other parts of
southern Massachusetts. Onlythe small island of Nantucket would face
a risk comparable to that confronting the mainland coast of Nova Scotia
[Figur 191.
191. In the context of a discussionof the importance of Georges
Bank to the Canadian economy,the Canadian Memorial referred to the
risks of oil pollution to Canada from Georges Bank hydrocarbon
de~elopment'~I .n the present context, the projected impact of a Georges
Bank or Georges Bank-related ail spill on the Canadian coast provides
" Countcr-Mcmoriol,AnnexerVol.1,pp.61-63p.aras.97-102.
Y Finnl EnvironmentalStatemcnr.Proposcd1977 Outer ContinentalShel/ Oil ond Gas
LeoseSole Offshorethe North Ailontic StorVol.2,OCS Sale No. 42.United
States Departmentfthe IntcriBurcauofLandManagement. Washington .ovcrn-
mentPrintingOffice.1977.. 7611.
jSConsdionMernoNol,pp.81-82p.ara. 175anfwtnote41.1791 COUNTER-MEMORIALOFCANADA 69
further evidence of the oceanographic unity of the Gulf of Maine area
and of Canada's environmental links withthe Bank. It is, after all, wind
and ocean currents that determine the movement and spread of an oil
slick. The probability of such a slick reaching the Canadian Coastalso
underscoresthe geographic proximityof Georges Bank to Canada.
Section V. The Plankton and Benthos of Georges Bank Demonstrate
Greater Affinities with Areas to the Northeast than with
Areas to the Southwest
A. PHYTOPLANKTON
192. The United States Memorial offers the unsupported asser-
tion that phytoplankton are not uniformly distributed throughout the
Gulf of Maine area and that those found onGeorges Bank "tend" to be
larger, while those on the Scotian Shelf are "generally" smaller in sizej6.
What implicationsare to be drawn from these unsubstantiated generali-
zations is no1clear.
193. The Canadian Memorial shows that phytoplankton on
Georges Bank are predominantly boreal or northern species closelycon-
nected with Canadian waters to the norlheasl". Although several hun-
dred species live on Georges Bank, the bulk of the phytoplankton
biomass is made up of some 30 northern species,none of which displays
any discontinuity in distribution between Georges Bank and the Scotian
Shelf. The ratio of minute nannoplonkton to the larger nef plankton in
the Gulf of Maine area varies in accordance with season of the year and
local oceanographic processes and features (upwelling, depth, vertical
mixing). These variations are not associatedwith abreak in phytoplank-
ton distribution at the Northeast Channel'8.
194. Figure 6 in the United States ~emorial purports to show
relative phytoplankton distributions revealed by satellite imager^'^.
Owing to the wavelengths used,this satellite image does not distinguish
betweensuspended mudor silt and chlorophyll- and it is chlorophyll,
of course, that gives a measure of the concentration of phytoplankton.
Thus it is impossibleto discern whether the red colourin this photograph
is chlorophyll (representing phytoplankton) or merely suspended sedi-
ments. More important, however,the use of a single imageconveysthe
impression that phytoplankton concentration and distribution are con-
stant over days, weeks and seasons, when in reality this photograph is
merely a snapshot of a highly complex and variable ocean systemal a
giveninstant.
" UnircdSroresMemoriol.p.31.para.48.
j7ConodionMernorial,p. 52. par96.
Counrer-Memoriol.Annexes.Vol.1.p. 45. para.80.
lsUniredSroresMemoriol,p.33,Figure6.70 GULFOF MAINE 1801
B. ZOOPLANKTON
195. The United States Memorial asserts that there is a differ-
ence in species compositionand quantity of the "communities" of zoo-
plankton foundon Georges Bank, in the Gulf of Maine Basinand on the
Scotian Shelfa. No authority is providedfor this assertion, apart from a
reference to Annex 44 in the United States Memoria14'.But Annex 44
can hardly be said to offer support for any such assertion. Quite the con-
trary: the data provided - even to the extent that they can be accepted
- clearly demonstrate the close similarities of species withinthe three
areas listed, rather than showing any significant differences between
them.
196. In the October 1974sampling (Table 1of Annex 44 of the
United States Memorial), eight speciescommon to al1three areas form
66.5 percentof the zooplankton biomass onGeorges Bank, 97.2 percent
of the biomass in the Gulf of Maine Basin, and 93.8 percent of the
biomassof the Scotian Shelf. The May 1977sampling (Table II) shows
evengreater similarities:four species commonto al1areas form 95.1 per-
cent of the biomass onGeorges Bank, 99.3 percent of the biomass in the
Gulf of Maine Basin, and 89.7 percent of the biomass on the Scotian
Shelf. The zooplanktonlisted as being found onGeorges Bank butnot in
the other two areas set out in this Table represent less thon 1 percent of
the total biomass of the Bank. These facts, even if the sampling tech-
nique could be verified bymore than two seasonsof dataa, can hardly be
said to support the United States hypothesisthat there are "separate and
identifiableecologicalrégimes" onGeorges Bankand the Scotian Shelf.
197. The United States Memorial asserts that the benthic com-
munities of Georges Bankand the Scotian Shelf differ from each other
in speciescompositionand quantity4'.However,Annex 44 (Table III) of
the United States Memorial showsthat the taxa said to be found only on
Georges Bank represent only a small fraction (3.5 percent) of the total
biomass. In fact, for the species listedfor Georges Bank (Table III), al1
but one have their centre of distribution on the Scotian Shelf or even
further northward. The benthos on the Bank fall within a recognized
UnitedStoresMernorioip. 32. para.50.
" UniiedStotesMernorioi.DorumentoryAnnexes.Vol. II,Anncx44.
" The highlyvariablenatureof zoaplanktonbath in space and in lime rcquiresmany
ramplestobc taken ta accuratclyasscss the speciescompositionand biomassof any
givcnbankorbasin.
" UnitedSioies Memoriol.p. 32. para.51. The UnitedStates claimsthat thcw differ-
encesarerelatedto "variations"in battamscdiment.However.thcreis a continuum of
mud.rand and grave1from northcastto southwestin the Gulf of Mainarca. Sec
benthos onGeorgesBank isalrasimilarto that obscrvedin areasto the nartheart.in
the Bay of Fundy and onthc banksof the Scotian SheSee ConodianMemoriol.
p. 52, para.97. [si1 COUNTER-MEMONALOFCANADA 71
biogeographic unitknownas the Nova Scotian province, whichextends
from Newfoundland down to the Cape Cod-Great South Channel-
Nantucket Shoals transition zone.It is this transition zonethat is biolo-
gically significant, because it is from one biogeographic province to
another that species composition showsimportant differences.
198. Figures 23 to 31 of Volume 1 of the Annexes to this
@-@ Counter-Memorial show the distributions of zooplankton and benthic
species from Nova Scotia to Cape Hatteras. These Figures reveal the
dominance of species withdistributional ranges from the Scotian Shelf
soutbwestward, encompassing GeorgesBank. The southern and northern
distributional limit of many speciesis in the Cape Cod-Great South
Channel-Nantucket Shoals area. Contrary to the unsubstantiated asser-
tions in the United States Memorial, it is this latter transition zone that
is significant in terms of species distribution, and not the Northeast
Channel.
199. The foregoing evidence contradicts the assertions by the
United States that "three separate and identifiable ecological régimes"
can be found in the Gulf of Maine area, with the Georges Bank
"régime" neatly separated from the Scotian Shelf "régime" by the
Northeast Channel. In reality, the Gulf of Maine area, including
Georges Bank, is an integrated ocean system, with oceanographic
forces at work that tie Georges Bank closer to the Canadian offshore
environment than to that of the United States.
Section VI. Georges Bank Maintains Both Relatively Discrete Stocks
and Wide-Ranging and Migratory Species of Fish: The Predominant
Afiinities are Canadian
200. The United States Memorial assertsthat its theory of "three
separate and identifiable ecological régimealso applies to the fishesof
the Gulf of Maine area and that the Northeast Channel provides a
"natural boundary" betweenthe stocks of Georges Bank and the stocks
of the Scotian Shelf". Studies of the limits of distribution of commer-
cially important species provide no support for this theory. Instead, the
data showa continuity in the distribution of species overbroadpanses
of the continental shelf. To the extent that a discontinuitycan be identi-
fied, it occurs to the southwest of the Cape Cod-Great South Channel-
Nantucket Shoals area. These findings are consistent withthe results of
studies of the compositionofnshore fauna, and consistentalso with geo-
morphology.The fish and invertebrate speciesof the Gulf of Maine area
(including Georges Bank) are predominantly northern in their orienta-
tion; theyextend southwestward from Scotian Shelf to the Cape Cod-
Great South Channel-Nantucket Shoals area and are associated withthe
Nova Scotian biogeographic province. The southern limit of this prov-
ince is coincident withthe southernimit of the major effectsof the most
recent ice sheet.
201. With regard to stocks - relatively discrete populations
within given species- the Canadian Memorial has identified certain
* unilcd Slores Memorial. pp.3Paras53-58,72 GULF OF MAINE cg21
"Georges Bank stocks", namely haddock, cod, yellowtail flounder and
Atlantic herring4'. In describing these stocks, the Canadian Memorial
did not imply that they were restricted to Georges Bank at al1 limes.
Their description in the Canadian Memorial relates ta the spawning
period only.After spawning, these stocks migrate ta a greater or lesser
extent from Georges Bank ta other areas of the Gulf of Maine and
beyond. This dynamic pattern is the norm for almost al1species of fish.
Thus, contrary 10 United States assertions, a stock is Far from a static
unitu.
202. In the particular complexities of the Gulf of Maine area,
stocks of some speciescan be grouped in certain geographical locations,
though not necessarily in congruent configurations, while stocks of other
speciesdefy geographicalcompartmentalization. It is illusory to suggest,
as does the United States, that they can be neatly divided between
"Scotian Shelf stocks" and "Georges Bank stocks". Andthere is an
additional flaw in the United States argument. In the case of a great
many species,the stocks on GeorgesBank are distinct from stocks found
to the southwest, beyond the Great South Channel. The implication that
"Georges Bank stocks"are somehow synonymous with "United States
stocks" is therefore incorrect. On the contrary, many of the fish stocks
on Georges Bank are far more closely associated with the waters off
Nova Scotia than with waters southwestof Georges Bank.
A. THEGREAT SOUTHCHANNEL 1s A TRANSITIOZ NONE IN THE
SOUTHWESTWA RRANCE OF FISHDISTRIBUTIONS
203. As the followingparagraphs willshow,it is simply not possi-
ble for the United States toustain its argument that its 1982boundary
proposal (or equally its 1976line) somehow respects the "integrity" of
the fishery resourcesof the Gulf of Maine area or their patterns of dis-
tribution.Scientific facts demonstrate beyond al1doubt that, in terms of
species,Georges Bank is inextricably linked withthe distribution of liv-
ing resources from Nova Scotia to as Far south as the Great South
Channel.
204. The distributional range of fish species is not dealt with in
the United States Memorial". As explainedin the Canadian Memorial,
however, the species of the Gulf of Maine area fall into three distribu-
tional patterns:
(a) widely distributed species found both to the northeast and to the
southwestof Georges Bank;
''CanodionMemoriolp.56, para.103.
" UnitedSioies Memorip.36. para.55.
''The UnitedStatcs Memarialmerelynotes that:"Manyspecicsof lish and shelllish.
distributedover large portionsof thc Gulf of Mainearea. are dividedinto separate
resourcesineGulfoïMaineareashouldbe considcrcdin thecanicxtof al1levelsofshery
biologicalorganization:(i) distributionof species;(ii) distributionof stocks; and(iii)
distributionof biomass.ConodionMemoriol. p. 55. para.98. 1831 COUNTER-MEMORIALOF CANADA 73
(b) southern species generally no1 extending northeast of the Great
South Channel-Cape Cod-Nantucket Shoals area; and
(c) northern species generally not extending southwest of the Great
South Channel-Cape Cod-Nantucket Shoals area.
205. As explainedby United States fisheries scientistscited in the
Canadian Memorial:
"... there is an abrupt general division betweenthe biologicaland
physical properties of water east and Westof Cape Cod . . . The
offing of Cape Cod also appears to be a definite transition zone
(probably thermal) for some northern and southern species of fish
and in~ertebrates"~ ..." [Italics added.]
The same point was made in a publication of the United States
Department of the Interior in 1977:
"Fish with a northern distribution are found primarily north and
east of a line from Cape Cod and the Nantucket Shoals through
Georges Bank. Fish witha southern distribution are found south
and to the Westof the line"."
206. The above-noted facts, recognized by United States scien-
tists and by official United States publications, are aptly illustrated in
@-@ Figures 20. 21 and 22, which portray in graphic fashion the species dis-
tribution of the Gulf of Maine area in relation to Georges Bank. As can
be seen, northern and widely distribqted species - cusk. haddock. red-
fish, argentine. cod. American plaice. Atlantic herring. pollock, white
hake. lobster, Atlantic sea scallop and yellowtail/lounder - dominate
the Georges Bank speciescomposition.Northern speciesextend from the
Canadian Coastsouthwest across Georges Bank. Onlyin the Cape Cod-
Great South Channel-Nantucket Shoals transition zonedo they beginto
taper off, reflecting the shift from colder northern waters to more
temperate, southern waters.
207. Figures 20 to 22 bring out several key factors in the distri-
-
bution of fish speciesin the Gulf of Maine area. First, for many species
the southwestern limit of distribution from the northeast is coincident
with the limit of the Nova Scotian biogeographic provinceJo.Secondly,
Georges Bank is clearly dominated by northern and widely distributed
species, whoserange extends through the Scotian Shelf southwest across
Georges Bank. Thirdly, to the extent that any geographic discontinuity
can be identified in species distribution, it is found in the area to the
southwest of Georges Bankand not at the Northeast Channel.
" CanadianMemorial. p.56,para. 101.
4PFinal Environment01SraremenProposed 1977 OuterContinentaShev Oil and Gas
LeaseSole Offshore the North Allontic StatVol. 1p. 345;Counter-Memoriol.
Annexes,Vol. IV, Annei 14.
The NovaScotian biogcagraphicalprovincccomprisesnarthern.cnld-watcrbenthicspc-
cics andcrtcndrfromNcwfoundlandiothc warmer-watertransitionzonesouthwcsiof
Capc Cd. Sec ConodionMemoriol.p.54.Figure21.74 GULF OF MAINE [sol
B. THEMAJORSTOCKS OF THE GULF OF MAINE AREABEAR
No RELATIONSH TP THE THREE SO-CALLED
"ECOLOGICAR LEGIMESD " ESCRIBE N
THE UNITED STATES MEMORIAL
1. The Conceptof a "Stock"
208. To bolster its theory of "three ecological régimes",the
United States Memorial attempts ta squeeze a complex, dynamic
oceanographic and biological system into neat, static compartments. In
other words,the United States seeksto force the biologicalfacts com-
plex, diverse and not always easy to understan- into the rigid mould
created by its concept of "three ecological régimes,s anex posrfacto
rationalization for its claim to the entirety of Georges Bank.
209. The United States Memorial refers to stocks almost as if
they represented iron-clad divisionsJ'.Nature, however, is by nature
untidy. In fact. the distribution and migration patterns in the Gulf of
Maine area are such that in most cases it is impossibleto identify, within
an individual species,a discrete aggregation that has independent exist-
ence in a limited geographic area. Seasonal movements on and off the
banks, intermingling of progeny in one area from spawnings in other
areas, transport of eggs and larvae, and annual changes in abundance of
every species result in a seasonally variable mélange ofspecies and life
history stages throughout the Gulf of Maine area". Because of these
characteristics. it is almost impossibleto draw a line around the area of
distribution of even a single stock.The impossibility of drawing a line
that wouldencompassthe total complexof stocks iseven moreobvious.
210. In fact, the concept of a "stock" isessentially a statistical
and management concept. The term describes dynamic and changing
realities and cannot be transformed into a principle of maritime bound-
ary delimitation. The difficulties of establishing rigid demarcations of
stocks were wellexpressedby a Canadian scientist, whowrote:
"Biological management of fisheries has been built around the
concept of 'the unit stock'. At thiste stage in development itis
difficult to discern that this apparently commonsensenotion may
be an instance of misplaced concreteness which places artificial
' constraints on analyses or on management rules and procedures.In
fart. the 'stock'is an abstract term applied to provide a rationale
for a certain kind of aggregation of catch data. This is not ta say
that there may or may not be such a thing as a discrete group of
fish that may constitute an effective breedinggroup or stock, but in
many cases there is significantuncertainty about the identity of the
group from which successiveannual catches are made, sa that the
operational term does not unequivocallyrefer to an identifiable
physical entity. Uncritical usagen obscure the understanding of
UmiedSlo/eMernoNol,p.35,paras53-54.
" Counrer-Mernorial.AnneVol. 1pp70-72.paras115-118. a number of production features that are relevant to economiccon-
siderationsJ3."[Italics added.]
A similar point was made by two United States scientists. in the
followingterms:
"ln thinking about populationsor stocks of fish. there is unfor-
tunately a tendency to consider them static entities, much as
philosophers previousto the eighteenth century thought of the fea-
tures of the earth as instantaneously created and almost immu-
table. Of course, biologists know from the paleontological record
that the fish of today did not always exist, nor did the oceans in
their present form. Even with this knowledge,because of the short
lifetime of any one man and the extreme brevity of our records, ir
is difficult IO realize that change is a universal constant in the
dynamics ojfish populations"." [Italics added.]
211. Thus, Canada wouldwish to register a caveat witb regard to
the uses of the term "stocks" in the United States Memorial. The con-
cept cannot be taken to suggest a kind of biological segregation,
associated with strictly defined and clearly established areas, as the
United States Memorial seems to imply. More important still, the
United States Memorial does not accurately portray the distributions of
stocks in the Gulf of Maine area. to the extent that these are known.
2. Major Stock Distributions
212. A reviewof avaiiable scientificevidence ondistribution and
migration patterns and stock structures of commercially important fish
and invertebrate species does not support the contentions of the United
States regarding the existence of three so-called "ecological régimes"
and a so-called stock barrier at the Northeast Channel. The United
States Memorial considered only16 species in carrying out its assess-
ment of stock structure in the Gulf of Maine area. There are another
12speciesof equal or evengreater importance than someof those on the
United States list: these additional speciesshould have been included in
the United States appraisal, bringing the total to 28. Direct evidence
on the distribution and migration of fish and invertebrates, and the
scientific literature on stocks in the Gulf of Maine area, provide an
" L.M. Dickic: "Pcrspcctivcron FirhcricsBiologyand Implicationsfor Managcmeni."
Journal ofihe Firherier Reseorch Board of Canada. 36,.1979. p839: Counrer-
Memorio/. Annexes,Val. IV. Anner 15.
Y J.P. Wise and A. C.Jcnscn"Stocksal the Important CommercialSpecieofFishof
the ICNAF ConventionArea." ICNAF Annual Meeting - 30 May-! June 1960.
Serial No.743(D.c.3).Document Na. 25,p. 1. Counrer-Memorio/, Annexm,Vol. IV,
Annex 16. 76 GULFOF MAINE 1861
adequate basis for disprovingthe contentionsof the United StatesJ'.This
evidence leads to the conclusions set out in the immediately
followingsub-paragraphs. !.
(a) Of the 28 speciesof importance to commercialand recreational fish-
eries in the Gulf of Maine area, one-half (14) clearly span the
No~theastChannel.
(i) Ten (mackerel.pollock. shortfinsquid. bluefintuna. swordfish.
saury. American shad. spiny dogfish, alewife and Atlantic
salmon) are species that conduct migrations throughout al1the
areas the United States Memorial describesas "separate and
identifiable ecological régimes", completely ignoring the
"boundaries" of ail of them. The Northeast Channel does not
separate stocksof these species.
(ii) The Northeast Channel, far from being a barrier, is an impor-
tant area of concentration for stocksof fourother less migratory
species (argentine,lobster. cusk and angler). The United States
Memorial erroneously claims that the Northeast Channel
separates individual stocksof both cuskand lobster.
(b) Of the remaining fourteen species,one (longfinsquid) conducts long
migrations from Georges Bank to waters as far south as the Caroli-
nas. It does not extend in abundance as far north as the Northeast
Channel, which therefore does not represent a stockbarrier for this
species.Butterfsh, a southern migratory species,comprises a single
stock from Cape Hatteras to Georges Bank. The Northeast Channel
does not separate stocks of these two speciesand they both migrate
between so-called "ecologicalrégimes".
(c) Of the remaining twelve species, four (redfish. American plaice,
witchflounder and white hake) are primarily distributed along the
northern slope of Georges Bank, the banks fringing western Nova
Scotia, and in the inner Gulf of Maine. The Northeast Channel
therefore cannot be represented as a stock barrier for these species.
Their cross-basin distribution in the inner Gulf of Maine creates
linkages between the so-called Gulf of Maine Basin and Scotian
Shelf "ecological régimes",and the line of deepest water does not
separate stocks.
(d) Of the remaining eight species, two (silver hake and red hake) are
divided into stocks by a line running latitudinally across Georges
Bank. The northern stocks of these species occupythe northern part
of Georges Bankand the inner Gulf of Maine Basin,"violating" the
limits of both the so-called Georges Bank and Gulf of Maine Basin
"régimes".
(el Of the remainingsix species,aggregations of one (Atlantic herring),
which originale in separate spawning areas in each of the three
" Thus,inadditionta the 16spccicsin the UnitedStateslirt,the fallowingcommercially
importantfishspeciesarc faundin the Gulfof MaineaAmcriconploice.alewife.
angle,Allontiesolmon.blucjinruno.buirerjish.spinydosoury.Amcriconshod.
swordjish.wirehflounderand winier jloundeSee Counicr-Memoriol, Annexes.
@ Vol.1,pp.70-102, paras.115-145and Figure60. whichsaoone-dimensionailllus-
trationof stockdistributionsinthe Gulfnearea. tg71 COUNTER-MEMORIALOF CANADA 77
sa-called "ecological régimes"i,ntermingle as juveniles and as feed-
ing adults, crossing the "boundaries" of al1three alleged "régimes"
to do sa.
V) Of the remaining five species, three (haddock. cod and scallop)
form separate stocks or aggregations on Georges Bank and in con-
tiguous areas. For each of these species, however,there are equally
important stock discontinuitieswithin so-called "ecological régimes"
as there are berween "régimes". Inaddition, there are migrations
between areas ai both the lawal stage and the juvenile and adult
stages. Haddock and cd are present in commercial quantities within
the Northeast Channel and are fished there by the Canadian fleet.
(g) For the remaining two species i>ellowtail flounder and winter
flounder), stocks arc in fact dividedby the Northeast Channel.
3. Migrations. Mixing and Stock Inlerrelationships
213. The above paragraphs clearly illustrate that stocks of most
speciesmigrate freely between and through the three sa-called "ecologi-
cal régimes"described in the United States Memorial, and that the
Northeast Channel and the line of deepest water in the Gulf of Maine
Basin do not represent stock barriers. The boundary proposed by the
United States does not correspondto this complexreality. Some fewspe-
cies of course do form spawningaggregationson GeorgesBank. Even for
these species, however.certain stocks show strong affinities with stocks
of thesame specieson the Scotian Shelf ta the northeast; others migrate
beyond Georges Bank at other stages of their life history. Even species
with stocks that do not migrate beyond Georges Bank maintain more
than one aggregation on the Bank. Thus it can be seen not only that the
United States notion of three separate "ecological régimes"is without
scientific foundation, but also that Georges Bank itself cannot be con-
sideredit0 form a single stock"régime".These points are further demon-
strated in the followingmore detailed descriptionof cd, herring, scallop
and lobster resources.
' (a) Cod
214. It is most surprising that the United States would choose
cd as an example ta support its theory of three sa-called "ecological
régimes".Analyses of cod stocks by United States scientists show con-
clusivelyboth the separateness of the eastern Georges Bank stockfrom
those found in the waters to the southwest, and the close interconnection
of the cod on Georges Bank with those found in waters further to the
northeast.Thus a United States scientist has describedthe cod stocks of
the Gulf of Maine area in the followingterms:
". .. in the light of al1 evidence ta date, there arefour major
groups of cod in the New England area, al1 perhaps, and one
certainly, dividedinto subgroups:
1. The cod of the offshore banks. (Georges and Browns)
closely relared to the Jîsh of the southwesternNova Scotia
coast.78 GULF OF MAINE
2. The cod of the Gulf of Maine, probably divided into many
subgroups, and receiving considerable recruitment from the
south.
3. The cod of southern New England and the South Channel.
4. The New Jersey coastal cod, whichspend part of the year
mingled ta a greater or lesser degree with the southern New
England fi~h'~.'['Italics added.]
215. This same United States authority proposed that a line be
drawn along longitude6S0W, across Georges Bank, ta divide the Nova
Scotia cod stock from the New England cod stocks ta the southwest
[Figure231.He justified his proposa1on the followinggrounds:
"Consideration of the topography and hydrography of the region
shows that the distribution of the fish outlined above is consistent
with the physical features of their environment.A line drawn along
the 68th meridian separates the oJJshoreand southern Nova
Scotiafish Jrom the moreinshoregroups;this is a line which runs
through or closeta the important physical barriers of the deep mud
bottoms of the central basin of the Gulf of Maine, the extreme
shoals of central Georges Bank,and the relatively barren southern
edge of the bank5'."[Iralicsadded.]
216. In conclusion, it can be seen that cod present anything but
the picture described in the United States Memorial. Twopoints emerge:
first, that, to the extent that a Georges Bankcod stock can be isolated, it
is an aggregation on eastern Georges Bankthat is clearly separate from
the cod stocks off the New England Coastto the southwest of the Great
South Channel area; and secondly, that the eastern Georges Bank cod
stock is associatedwith the Browns Bankand southern Nova Scotia cod
stocks.
(b)Herring
217. The Canadian Memorial noted that there is a herring stock '
identified with Georges Bank. This is a spawning stock foundon the
northeast edge of the Bank (for a period of weeks in the late summer
and fall). It is one of several important spawning stocksin the Gulf of
Maine area. All demonstrate extensive migrations and intermingle with
each other at non-spawningstages of thei: life historyS8.Juveniles from
the Georges Bank spawning interminglewith juveniles from other stocks
J. P. Wise"Cd Groupsin the New EnglandArea."Fishery Bulletin, Vol. 631,No.
1963,p. 201;Counier-MernoriAnnexes.Vol.IV,Anncx17.
" in the Gulfof Maine area could be dividedby a line drawndon6g0Wcdthraugh
GeorgesBankis consistentwith the descriptiocdf- camprisinganeastern and
westernGeorgesBank population that wasgivenin the lCNAF paperbJ.P. Wise
and A. C. Jensen.referrcdto in foatnote54 of thischapter.
" Counier-Mernorial.Annexer,Vol.1,p.94. paras.138-139;Figures49, 50 and51.1891 COUNTER-MEMORU OFCANADA 79
in a common nursery area along the Maine-New Brunswick coastSP
(where they are fished collectivelyas sardines). Summer-feeding herring
found at the mouth of the Bay of Fundy later migrate over long dis-
tances, with some going as far south as Cape Cod and others as far
north as Cape Breton in northeast Nova Scotia. After spawning, Georges
Bank adults disperse to the southwest as far as Long Island. Thus,
whereas there may be a number of relatively discrete spawningstocks,
the migratory behaviour and extensiveintermingling habit of the stocks
in no way supports the existenceof three so-called"ecological régimes".
Most stocks traverse "régime"boundaries several times during their life
history and during any one year. The identification of relatively discrete
spawning stocks does not reflect a segregation of the stocks at the
non-spawning phase. ~.
218. The United States' choice of herring as one of the stocks
whose integrity its proposed boundary is alleged to respect is ill-founded
for another reason. For management purposes, the characterization of a
spawning aggregation on Georges Bank as a "separate stock" has little
meanine: consideration mustbe eiven to the full range and mixtures of
stocks rhroughout their life hist8ry. The United States recognizes this
fact and, within the International Commission forthe Northwest Atlan-
tic Fisheries. ioinedCanada in undertaking an initiative to deal with the
problemof overfishingof Georges Bankhërring by overseas fleetsin the
l-.e 1960sand earlv 1970s. A memorandum then nresented to ICNAF
by the United tat t consflicts with the presentation made in the United
States Mernorial.Thus, it expressedthe viewthat:
". ..eJJectivemanagementschemesfor herringmus:, when applied
to the migratory range of various herring stocks, he designed for
the various stocks and not be unduly limited by the rarher
arbiirary divisions wirhin ConventionSubarea~~~.[" Italics added.]
5PThis fact is attested to by the work of the International Passamaqucddy Fisheries
Canadian and United Statcs scientists under the board'sausp10the discoveryofrk by
Georges Bank herring spawning concentrations andnted to the conclusian that the
Mainc-New Brunswick"sardines" (juvenile herring) were partly derivcd frorn Georces
Bank herring. In addition, the work of the board indicated that the wcstcrn "baundary"
of the Maine-New Brunswick herring stock was in the Penobscot Bay area.
S. N.Tibba. J. E. H. Legaré.L. W. Scattcrgdand R. F. Temple: "On the Occur-
rence and Distribution of Larval Hcrr(Clupeo horcngurL.) in the Bay of Fundy
and the Gulff Maine."Journal o/ihe FisheriesReseorchBoard o/Conodo.Vol. 15.
No. 6, 1958, pp. 1451.1469:J.Sinderman and D. F. Mairs: "A Major Bld Group
System in Atlantic Sca HcrrinCOPEIA, No. 3, 1959,pp. 228-232.
Speeiol CornmirrionMpeiing on Herring. Jonuary-februory 1972. ConrcrvofiO/
Herring. Memorondum by the Unired Slaler. ICNAF Serial No. 2680.
Spec.Mtg.Comm.Doc. 7211; Counler-Memoriol.Annexes. Vol. IV.Annex 18. Fishing
ofGwrges Bank hcrring by foreign fleets in the late 1960sand early 1970swas eitcn-
sive; during this samc pcriod. thc Canada-United States Maine-New Brunswickjuve-
nile herring stock declined. This is evidcncc of the interrelationship between Gcargcs
Bank hcrring and herring of the inner GulSpeciolCommissionMeelingon Her-
"ng - Jonuory-February1972. CornervolionO/Herring. Mernorondumby Conodo.
ICNAF Serial No. 2685, Spc.Mtg.Comm.Doc. 7212: Counfer-Mernorial. Annexes.
Vol.IV. Annex 19.80 GULF OF MAINE 1901
219. There is a fwtnote, albeit an important one, regarding the
integrated nature of the herring stock in the Gulf of Maine area. In the
1979Agreement on East Coast Fishery Resources, herring were divided
for management purposesbetween Canada and the United States on the
basis of ICNAF divisions(with both Parties having access ta the herring
on Georges Bank).The positionof the United States during the negotia-
tions, however, wasthat herring should no1be so divided, and that the
entire area from Cape Breton Islandto Long Islandencompasseda sin-
gle, integrated herring stock. Complete agreement on al1the facts could
not beachieved, but to meet the point raisedby the United States, the
agreement providedfor subsequent reviewof management arrangements
for the herring stocks6'.
220. The life cycle of the Georges Bank herring stock demon-
strates yet again the futility of attempting to segregate fish into neat
compartments and seeking to justify a boundary line on the basis of a
theory of "ecological integrity".
(c) Seo Scollops
221. Scallops merit special attention because of their great com-
mercial value to Canadian fishermen. The Canadian Memorial noted
that there is no reliable evidencethat a scallop"stock" exists on Georges
Bank, and that the most that can besaid is that there are areas of rela-
tive concentration within the Gulfof Maine area, where the majorfish-
eries have developed6'.United States scientists accept that recruitment
to the various scallopbeds can come from contiguousareas as a result of
lawal drift and dispersion,and that it is therefore impossibleto speak of
scallops as forming separate stocks. The United States Fishery Manage-.
ment Plan for Atlantic Sea Scallops of January 1982confirms this fact
in the followingterms:
"There are no obsewed biologicaldifferencesthat would lead to
a separation of stocks within the area regulated by this manage-
ment plan ... consideringthe long pelagic phase of the larvae and
Article 4 of Anner Bof the 1979 East Coast FiRcsaurccsAgreement rcads:
"After the third lirhing year followingcntry into force of this Agreement. thc
Parties shall review thc management catcgarization of cach of the three stock of
herringlisted in parapraphr 1 through 3 of this'Annex. If either Partv believes
data on any of thise skks is inadeqÜatc,no change bemade to th; managc-
ment categorimtian applicable to any of the thrcc stocks. After the sixth Fiahing
year followingentry infarceof this Agreemcnt. the management categorizalian
of each of the stocks in question shallagain be revicwcd by the Parties. and if the
Partiescannat agree on the action to be takcn. cither Party may refer the matter
to the Arbitrator for decision in accordance with Chapter II. The Annexes shall be
by the Arbitratorrsuant to this paragraph."eed upon by the Parties or determined
Sec ConodionMemorinl. Annexa, Val. 1. Annex 20 for thc tcrt of the 1979 agrce-
mcnt.
61ConodionMemoriol, pp. 56-57, para. 1Counler-Mernorial. AnnexesVol. 1,p. 102.
para. 145. COUNTER-MEMORIALOFCANADA 81
the speed and cornplexityof the surface currents in which the lar-
vae are transported, there is little biological basis for considering
rhesepopularions as separate stockP'." [Italics added.]
The facts concerning scallop populationsin the Gulf of Maine area
accordinglydo not fit within the United States Mernorial'sconceptionof
a"stock".
222. Scallopsshowgreatest density in two places-on the north-
east part of Georges Bank and on the western side of the Bank near the
Great South Channel. This fact is confirrned in the United States
Department of State Draft Environmental Impact Statement on the
1979Agreement on East Coast Fishery Resources:
"On Georges Bank itself, two areas have been important scallop
grounds: south westernand the northeast parts of the BankM."
Canadian iïshermen for the most part have fished the grounds on the
eastern part of the Bank, while the fishermen of the United States have
concentrated on the western grounds. This fact, as well as biological
reality, was reflected in the 1979 fisheries agreement itself. Under the
agreement, Canada was designated the party of primary interest for
Georges Bank scallopseast of longitude 68030W 4 , and the United
States was designated the party of primary interest for scallops wesr of
that line6J.
(d) Lobster
223. Despite the confident assertions in the United States
Memorial that lobster is one of the 12species that show a stock separa-
tion at the Northeast Channel, the National Marine and FisheriesSer-
vice ofthe United States Department of Commerce stated as recently as
1976that:
'' Fishery Monogemenr Plon. Final Environmenfol Impoci Sralemenl. Reguloiory
Imporr Reviewfor Arlonrir Seo Scollo(Placopecten magellanicus). Prcpared by
Ncw England Fishery Managcmcnt Council in Consultation with Mid.Ailantic Firhery
Management Council andouih Atlantic Fishcry Management Cauncil. January 1982,
p.6:Counrer-Memoriol,AnnexesVol. IV, Annex 20.
" Drofl EnvironmenrolImpaci Sroremenion the AgreemeniBerweenrhe Ufiiied Slares
and Conodoon Eosr Cwrt FisheryResources.ashington. United States Departmeni
ofStatc. April 19p.103;Counier-Memoriol.Annews. Vol. IV. Annci 21.
" A further rcflcclion of the concentration of scallop stocks ai the castern and western
Agreementeopraposed by United States Senatar Edward Kennedy. That amendmentes
would have providcd for crclusive United States scallop fishing west ora line drawn
across the middle of Georges Bank. Amcndrnent No. 1697, United States Senate,
96th Cangress. 2nd Session, 15April 1980. 82 GULF OF MAINE 1921
"Initial assessment of offshore lobster stockscannot be accom-
plished until more reliable statistics are available and stock
boundarieshave been definedh6."
224. On the basis of data availahle to Canadian scientists, the
Northeast Channel is clearly not a stock boundary for lobsterin the Gulf
of Maine area. Lobster tagged in the Bay of Fundy and off southwest
Nova Scotia radiate out into the Gulf of Maine area, on to Georges
Bank and Browns Bank. The tagging studies support the view that the
lobsters of the Gulf of Maine area, both inshore and offshore, including
both Browns Bank and Georges Bank, comprise a singlestock6'. But
quite apart from the question of stock configuration, it is a fact that off-
shore lobster gather alongthe edge of the continental shelf, as well as in
the canyons, channels and basins from the Scotian Shelf to the south-
West. Indeed, the principal Canadian lobster catches in the Gulf of
Maine area occur partly in the Northeast Channel and in the canyons
found alongthe shelf edge, including Corsair Canyon on Georges Bank.
4. Quantitative Assessments of Biomass
225. The Canadian Memorial has already demonstrated that
when the relative abundance of fish - the biomass - on Georges Bank
is considered in the aggregate, or even on an individual species basis,
there is a reasonablyevenpattern of distribution from east to Westacross
the Bank".
226. Data from Canadian and United States groundfish research
surveys have now been combined to show the distribution of biomass
across a wider geographical range than Georges Bank, coveringthe gen-
eral extent of the Gulf of Maine area from northeast to southwest6'.
FigUre24 shows the aggregate biomass distribution for al1species cov-
ered by the program. Biomassis represented by the "mountains" in the
Figure, and the relative heightof the peaks givesa picture of the relative
abundance of fish in any given part of the area. The overall biomass dis-
tribution does not suggest or reflect the existence of three separate
"ecological régimes", nod roes it reveal the Northeast Channel as a
distributional barrier.
M. D. Crossleinand SH. Clark:Disiributiono/Selected FishSpecies and Srorof
Major Fisheries in the Norrhwest Ailontic. Technical ReferenceDoçumentfor Bilat-
National Marine Fisheriesrvice. Northcast FishcricsCenter, WdsHole, Massa-tates
chusetts,abarataryRcferenceNo. 76-12, 1976.p.53; Counter-Memarial, Annexes,
Vol. IVAnnex 22. The same pointregardinglack of data on lobsterwas madein the
1980 Departmentof State Dro/t Environmentollmpoel Siaiement on the Agreement
Between the Uniied Sioies and Conodnon East Coasi Fishery Resourcesp. 109.
Counter-Mernorial,Annexes,Vol. IVAnnex 21.
- 67 Couler-Memorinl. Annexes,Vol. 1p.SI, para. 131(b); Figures40, 41 and42.
' CnnodinnMernorial. pp.57-58, para.106: Conodion Memorinl. Annexes, Vol. IV,
Annex2.
Counter-Mernorial,Annexes.Val. pp. 102-103.para.146.t931 COUNTER-MEMORIALOF CANADA 83
Section VII. Cnoperation in the Conservation andManagement of
Fishery Resources 1s the Norm for Canada and the United States
227. The United States wraps its expansionist claim in an
ill-fitting cloak of environmentalism.Thus the United States Memorial
intimates that an inequitable result would somehowbe rendered appro-
priate because it wouldallegedlyfacilitate conservationand management
of the fishery resourcesof Georges Bank. "Single-State management",
however, is a perversion of the doctrine of coastal State management
now enshrined in international law. The law of the sea anticipates the
divisionof livingresources between neighbouring coastalStates and pro-
vides for cooperation in their conservation and management'O.state
practice, and especially the bilateral practice of Canada and the United
States, affords many examples of successful cooperation in this and
related fields.
228. Canada disputes the UnitedStates contentions that bilateral
cooperation in the effective conservation of transboundary fishery
resources is not possible or desirable and that "single-State
management" is necessarily more efficientthan "conservation by agree-
ment". Canada challenges these views for a number of reasons. First,
contrary tn the assertions in the United States Memorial, the United
States management system itself is not based on the concept of the
"stock, ratherthan the species, [being] the appropriate subject of fisher-
ies conservation and management efforts"". Secondly, the existing
United States management system itself is largely based on "conserva-
tion by agreement". And thirdly, Canada and the United States have a
long and successful tradition in the conservation of fishery resources by
agreement, and the United States remains a strong advocate ofoopera-
tive management except in the area of the northwest Atlantic.
A. THEUNITED STATES HASREJECTED UNIT STOCK MANAGEMENT
IN ITSDOMESTIM CANAGEMEN PTOGRAM
INTHE NORTHWES ATTLANTIC
229. The United States Memorial contends that a "fish stock,
rather than a species,is the appropriate subject of fisheries conservation
and management efforts"". Since extending its fisheries jurisdiction to
200 miles in 1977, however, the United States has discarded this unit
stock approach in itsdomestic management program. The New England
Regional Fishery Management Council no longer sets quotas for
individual groundfish stocksor even for combinations of stocks, or
indeed for groundfish species. For example, the management unit
defined in thecouncil'slnterim Fishery Management Plan for Atlantic
Groundfish lumps together: "All cod, haddock and yellowtailflounder in
'0SccArticles 63. 117andofthc 1982ConventionotheLawoftheSea.
" UniredSrores MernoNopp32-35. para.52.
72UniredSrores Memorio/. ppara.52.84 GULF OF MAINE I941
the Northwest Atlantic within the jurisdiction of the United States7'".
The seven separate stocks of cod, haddock and yellowtailconsidered by
United States scientiststoinhabit the area within United States jurisdic-
tion are ignored and regulated as one conglomerate mass. This system
accordingly does not even treat individual species(much less stocks)
separately, and is a far cry from the system one might have expected
from readingthe United States Memorial.
B. THEUNITED STATES MANAGEMEN SYTSTEM ITSELF REQUIRES
'LC~~~~~~~ ~Yl~G~REEMENT"
230. Since the solution proposed by the United States would
be inequitable in this case. the question whether "single-State manage-
ment" is more efficientor expedient than cooperativemanagement mus1
be irrelevant. Still, it might be pointedout here, very briefly, that man-
agement by a singleState, particularly a verylarge federal State likethe
United States, may itself require interjurisdictional cooperation.At the
national level,as at the international level, the key factor appears to be
the coupling of conservationand management incentives withthe power
to institute and implement sound policies.In short, at al1levels,effective
conservationand management are dependent upon political will.
231. Under the United States Fishery Conservafion and Man-
agement Act7', regulatory jurisdiction is divided betweeneight separate
Regional Fishery Management Councils, four of them on the Atlantic
Coast.The New England Council is primarily responsible for the living
resources herein issue.
232. The regional councils themselves represent amalgamations
of interest groups. The New England Council, for example, has 17
voting members, includingat least one from each of the fivestates repre-
sented on it and one representative of the United States federal govern-
ment.
233. In addition, the United States fisheriesmanagement system
leaves jurisdictionand control over fishery resourcesin the territorial sea
to thestates. Federal jurisdiction takesoveronly beyondthat limit". The
resultis that "conservation by agreement" is the sine qua non for effec-
tive management in the United States system. As stated by the National
Marine and FisheriesServicein its 1981report:
"Approximatefy 90 percent O/ marine fisireries resourcesO//
U.S. coasts are interjurisdicfional; that is. they migrate through,
" lnrerim Fishery Managemen1Pl/orAlInnlie GroundjirSaugus, Massachusetts.
New England Fishery Management Council,30 September 198p. 1;Counrer-
Memoriol,AnnexesVol.IV,Annex23.
" Unired Stores Fishcry Convervolionand Manogemenr16 United States Ccdc.
secs1801. 185el seqauthoriresthecstablishmcntof the RcgianalFisheryManage-
mentCouncils.
" SubmcrgedLandsAcr.43 UnitedStatu Code.secs. 130er seq.: Ouier Conrinenlol
SheljLonds Aci. UnitedStatcsCcdcsecs1331elseq.1951 COUNTER-MEMORIALOF CANADA 85
or transcend, multiple jurisdictions- betweenState lines, between
State territorial waters and the FCZ [Fisheries Conservation
Zone], or between U.S. territorial waters and those of another
country. Most of thefisheries beingmanaged under the Magnuson
Act are inrerjurisdictional. Because the Act calls for comprehen-
sive management of a resource throughout its range, al1jurisdic-
tions concerned mus1 assume responsibility for implementing an
approved FMP [FisheriesManagement PlanJ76."[Italics added.]
234. Two major themes - one adversarial and the other coopera-
tive in nature - emerge from the long history of the fisheries and
boundary relations of the Canadian Maritime Provincesand New Eng-
land". Despiteoccasionaljurisdictional and boundary problems,Canada
and the United States have established a remarkable record of coopera-
tion in fisheries matters. Over the course of many years, the two coun-
tries have developedan effective regional practice of joint exploitation
and management of shared fishery resources. Indeed,joint arrangements
respecting shared resources cover a wider spectrum than fisheries and
have been the norm, rather than the exception, for200 years.
235. As early as 1891, Canada and the United States became
parties to a modus vivendi in relation to the fur-seal fisheriesin the Ber-
ing Sea, and the North Pacific Fur Seal Commission that eventually
came into being continues its work to this dayT8.A treaty was signed
between the Parties in 1923 to constitute the International Pacific Hali-
but Commission,which also continues its work to this da^'^ T.he 1930
Convention between Canada and the United States for the Protection,
Preservation and Extension of the Sockeye Salmon Fisheries in the
Fraser River is also still in forces0,although the twocountries havenego-
tiated a draft agreement to replace it, so as to deal with PacificSalmon
management questions on a broader basis. Other examplesare provided
by the 1954 Convention between Canada and the United States on
Great Lakes Fisheriessland the 1981Treaty on PacificAlbacore Tuna.
236. The negativeview of"conservation byagreement" setout in
the United States Memorial is not reflected in United States practice
" ColendorYeor 1981.Reporron rhcImplcmentarionofthe MognuronFisheryCorner-
votion ond Monogemeni Ac1 oJ 1976.United Slates Departmcnt oi Commcrcc.
Washington.GavernmentPriniing Office. 1982. p. Counrer-Memoriol,Annexes.rvice.
Vol.IV,Anncr 24.
" Sec Cnnadinn Memoriol, Annexes, Vol. 1,ConremporaryTrearies A//ecring ihe
NorrhwerrAllonricFirheries.WiohHisroricolInrroducrio".
'Vni~ed NorionTrearySerieVol .14,p. 105.
7PLeogue O/Nolions Treery StrieVol. 32. p. 93. SUnited Nations Treary Sories,
Vol.222. p. 77, for theagreementcurrentlyin force.
" Dogue qfNoiions TreofySeriesVal.184.p. 305.
" UniredNorionsTreorySeriesVal.238. p. 97.86 GULFOF MAINE [96-971
nor borne out by United States experience.The United States for exam-
ple, has consistentlybeen a strong champion of the International Pacific
Salmon Fishery Commission,which is charged with the management of
Canadian and United States fisheries harvestingsalmon bound for the
Fraser River in Canada. A United States chairman of the commission
summarized his view ofits achievementsas follows:
"Never in history have twocountries approached each other on
an international problem with such a spirit of unselfishness and
deep desire to cooperate ... Never in history has so much been
accomplishedin such a short times2."
237. United States praise for the International Pacific Halibut
Commission isnoless unstinting. The commission's work, involvinm gan-
agement of halibut stocks along the coasts of British Columbia and
Alaska, has long beenthe subject of admiration within the United States
Pacific fisheries community. The almost unanimous view of United
States interest groups is well summarized in a 1978 editorial of the
United States periodical, The Fishermen's News, which described the
commission'saccomplishmentsin the followingterms:
"In the fifty-three years of its existence, the commissionrehabili-
tated a severelyover-fishedresource and guarded it jealously from
over exploitation. In so doing, the staff and the commissioners
acquired an outstanding reputation for honest, impartial fisheries
management, and amassed a body of knowledgeabout the halibut
resource that is unmatched in theorlds'."
238. The Halibut Commissionin fact is a particularly appropri-
ate example of successful cooperation between Canada and the United
States; for the life history and migratory patterns of Pacific halibut are
not unlike those of haddock and cod in the Gulf of Maine area. All three
speciesare groundfishthat show intermixing between stocks spawningat
various points offthe Canadian and United States coasts.
239. Further examples of successful bilateral, regional and mul-
tilateral conservation efforts involving the United States could readily
be provided. Canada and the United States are both members of such
other bodies as the International Commission for the Conservation
of the Atlantic Tunas', the North Atlantic Salmon Conservation
Organizationss, the Inter-American Tropical Tuna Commissions6,the
International North Pacific Fishëries Commissiong'-". SÜch fisheriei
" ParifiFishermon, May 1957,pp. 13-14C;ounter-MemoriolAnnexes.Vol.IV,
Annex25.
" The Fishermen's News, October1978;Counter-Memoriol.Annexes. Vol.IV,
Annex26.
" UnitedNations TreaiySerVol.673,p.63.
as Canada signedthis lreat18March 1982 ;he UnitedStates signedit on 3 March
1982andratifiedil on 30 Septe1982.hetreatyhasnotyetentercdintaforce.
O6UnitedNotions TreatySerVal.80,p.3.
UnitedNationsTrealySerVol.05p,.65. i971 COUNTER-MEMO w OFCANADA 87
comdssions are a global phenomenon and demonstrate the continuing
needforcooperationinthe conservation ofthesea'slivingresources.
240. The United States authorities have at times judged conser-
vation by agreement to be superior to domestic United States conserva-
tion programs. For example, a senior United States official, after point-
ing oPt some disappointing results of United States programs, wroteas
followsin 1970:
"ln contrast is the condition in which international fishery
resourceshave been maintained and the manner in which theyhave
been managed. Fur seals, the Pacific halibut, the Fraser River
sockeye salmon, the yellowfin tuna stocks of the eastern tropical
Pacific, the lake trout resources of the Great Lakes, the fishery
resources of the Northwest Atlantic and others quite clearly show
thar international firhery management has beenfor more success-
ful than the narionalfishery management of the UnitedStates has
beens9." [Italics added.]
Against this background it is difficult to accept without question the
assertion made in the United States Memorial that international cooper-
ation is a fruitless pursuit and that the only solution to conservation
problemsis to allocate a rich fishingground in its entirety to one State.
241. With specific regard to Georges Bank,the negotiation and
signature of the 1979 Agreement on East Coast Fishery Resources was
the culmination of a series of joint arrangements fully outlined in the
Canadian Memorialm. Its cooperative management provisions reflected
the recommendationsof the October 1977 report of the special negotia-
tors appointed to deal with the full spectrum of maritime boundary and
resource issues betweenCanada and the United States. (Their report, it
will be recalled, was formally approved by the two governments.)While
furthering the tradition of shared access,the 1979agreement would have
expanded the tradition of cooperative management in the interests of
effective conservation. Aswas explained in the Canadian Memorial, in
addition to providing fornational catch entitlements, the 1979 agree-
ment would haveestablished a regulatory system that placed somestocks
under full joint management, others under qualified joint management,
and a third category under the exclusivemanagement of one Party or
the other. In short, the 1979agreement sought to fulfil the objectivesof
both equity and sound management.
242. Having agreed to and then failed to ratify this equitable
arrangement, the United States now seeks to appropriate to itself the
entirety of Georges Bank, based on claims of managerial expediency.
The United States allegesthat:
OPDiLi McKernan: "Scienceand Politicsin National FisheryManagement."Publico-
tiom in Fiderie- New Series. Vol. V. 19p.,114; Counter-Memoriol,Annexes,
Vol.IV.Annex 27.
90ConodionMemoriol. pp.Il1-115. paras. 263-276. Theofethir agreementrcpro-
duced in CanodionMernorial.Annexes,Vo1.Annex 20.88 GULFOF MAINE tg81
"A boundary that respects a natural division between stocks,and
thus places separate stocks under the jurisdiction of a single State,
should be preferred overa boundary that would divide many stocks
betweendifferent national jurisdictions,ecause the former bound-
ary will promote, rather than undermine, effective conservation
and management9'."
The preference expressed by the United States has nothing to do with
law and little if anything to do with conservation.Apart from the fact
that the simplistic presentationof fish distributions in the United States
Memorial is inaccurate and indefensible, the monopolistic solution
proposed is inherently inequitable and is therefore entitled to no
consideration under the applicable law.
Cooclusioo
243. The soundness of the maritime boundary proposed by
Canada is confirmed by the evidenceof geology,geomorphology,ocea-
nography and biology. Ifthese factors alone were relevant, they would
suggest that the wholeof Georges Bank shouldgo to Canada in view of
its predominantly Canadian affinities. Within the singlecontinental shelf
of the east Coastof North America, geological structures extend from
the Canadian landmass into the Gulf of Maine area, and the Scotian
Basin extends southwestward beneath the Northeast Channel and
Georges Bank. Surface features also link Georges Bank and the Scotian
Shelf; northeast of the Great South Channel area, the entire continental
sbelf shows the superficial scars of glacial action, unlike the smooth
unglaciated East Coast Shelf to the southwest. Georges Bankis defined
in physiographicterms by both the Great South Channel and the North-
east Channel. Currents, tides, freshwater discharges and temperature
characteristics link Georges Bankwith Canada.
244. The microbiologicalorganisms of Georges Bank are of pre-
dominantly northernorigin. The fish and invertebrate speciesof the Gulf
of Maine area (including GeorgesBank) are also predominantly north-
ern in their orientation and extend southwestward from the Scotian
Shelf to the Cape Cod-Great South Channel-Nantucket Shoals area,
which marks the transition zone between these northern speciesand spe-
cies with asouthern orientation. The complexitiesof stockdistribution in
the Gulf of Maine area defy rigid geographical compartmentalization,
and the distribution of most stocks of the 28 commercially important
species is not affected by the Northeast Channel. Biomassdistribution
also showsan overallcontinuity in the Gulf of Maine area.
245. Despite the predominantly Canadian affinities of Georges
Bank as a whoie,Canada's claim, being based on law, is limited to the
eastern part. The United States, on the other hand, goes against both
these affinities and the applicable law in urging ihat it should enjoy a
monopolyover Georges Bank. It advances the unproven and unfounded
assumption that the United States alone could more readily provide
for the conservation and management of the Bank's living resources,
9L UniteSiaies Memorialp. 143para.250.1991 COUNTER-MEMORULOF CANADA 89
regardiess of equitable considerations. Canada and the United States
have both historicallyevidenceda willingnessand capacity 10 cooperate
bilaterally and regionally in the conservation of shared resources; and
they should be expected to continue to do so. Equity need not, and
should not, yield to objectives - imagined or even real - of mere
managerial expediency or administrative convenience. Cooperation in
management willbe necessaryin any event,and experiencedemonstrates
that it will proveatleast as effectiveas any exclusivelynational manage-
ment system in ensuring the conservation of the living resources of the
Gulf of Maine area. CHAPTER IV
THE HUMAN DIMENSION
Introduction
246. The human dimension must be among the more important
relevant circumstances in a case involving the division of fishery
resources thatsustain the very existence of many coastal communities.
Central to this human dimension is the disposition to be made of
Georges Bank, with the United States claiming the whole of it (and
beyond), and Canada claiming somewhat lessthan half.
247. The Canadian Memorial emphasized that the economic
activities of the coastal populations representan important link between
the disputed area and the relevant coasts. The evidence presented in
Canada's Memorial demonstrated the strong and continuous presence of
Canadian fishermenon Georges Bankat al1relevant times. It also estab-
lished in clear and quantitative terms the degree of Nova Scotia's eco-
nomic dependence on GeorgesBank'.
248. The United States Memorial ignores the human dimension
and treats economicmatters in a self-contradictingand vacillatingman-
ner. It agrees with the Canadian view that macroeconomic factors,or
"general economic considerations relatingto the relative wealth of the
two countries2",should be excluded from consideration. UnlikeCanada,
however, the United States then proceeds 10 introduce such macroeco-
nomicfactors in a variety of subliminal ways.
249. Economic circumstances cannot be divorced from geogra-
phy. They are a projectionof the physical circumstancesof the maritime
area to be delimited, and of the relevant coasts. The geography of the
Gulf of Maine area, and in particular the relation of the coasts to the
resources of the adjacent waters, has produced in Nova Scotia a mari-
time economy based on the exploitation of the resources of the sea, and
especially ofGeorges Bank. For southwestNova Scotia, this link is vital.
In contrast, New England has a diversified economylargely unrelated to
the fisheriesof thearea. The Canadian line wouldminimize the disturb-
ance to established economic realities.The United States boundary pro-
posai,on the other hand, would severelydislocate the economyof south-
West Nova Scotia, while providing onlymarginal benefits for New
England. The equitable solution accordingly mustclearly lie with the
established dependencerather than the marginal benefit, and thus favour
the line proposedby Canada.
250. The followingparagraphs will concentrate largely upon the
factual basis for the contention that Canada's line is compatible with
economiccircumstances in the Gulf of Maine area. Detailed discussion
of the legal basis for this contention will be left to Part III. The irrele-
vant economic considerations advancedby the United States will be
'ConadionMernoriol,pp.59-9,aras1.10-202.
UnitedStoles Mernorial,pp.146-para.60. [IOI-1031 COUNTER-MEMORIALOF CANADA 91
dealt with here mainly for theurpose of making necessary factual cor-
rections. It will be shown that from every point of vie- whether in
terms of coastal State presence on the disputed fishing grounds, coastal
State dependenceon the economic benefits derived therefrom, or the eco-
nomic impact of a denial of access thereto - the economic evidence
overwhelmingly supports the Canadian claim.
Section 1. The Canadian Claim 1s Consistent with the Canadian
Presence in the Fishery
A. THE STATISTIC A LCORD
251. Both Canada and the United States rely in their respective
Memorials on fishery statistics collected by the International Commis-
sion for the Northwest Atlantic Fisheries. The United States usesese
statistics in two ways to give a distorted impression of reality. Firsr,
before the filing of its Memorial, the United States claimed the major
portion of ICNAF subarea 5. It has now extended its claim to include a
portion of ICNAF subarea 4, which wraps around southwest Nova
Scotia. The United States seeks to support this new demand with catch
data that relate generally to subarea 5 alone. Secondly. even leaving
aside this confusion between subarea 4 and subarea 5. the statistical
presentation in the United States Memorial is misleading in lumping
together catch data for the whole of the vast expanse of subarea 5, which
@ comprises subdivisions SZe, 5Zw and 5Y [Figure 251.The catch from
subdivisions 5Zw and 5Y is wholly irrelevant and has nothing to do with
Georges Bank or with the claims of the Parties3. Canada's clairn is lim-
ited to the eastern part of subdivision SZe, specifically statistical units
5Zej and 5Zem where its interests are paramount. Less than 10 percent
of the United States catchtaken in subarea 5 comes from these two sta-
. listical units'.
252. Accepting, for the sake of argument, the statistical base put
forward by the United States, theogical result would be the opposite of
what the United States intends. In the period from 1969 to 1978,
Canadian vessels took 62 percent of the coastal State catch from
Georges Bank in terms of round weight (the measure used in the United
States Memorial), as against 38 percent by United States vessels'.
Canada's share of the total scallop catch from Georges Bank in the same
period was 90 percent. Canada's high level of catch in a11areas is shown
@ in Figure 26A; the substantially lower United States catch, concentrated
@ on the western part of the Bank, is shown in Figur268. By a parity of
reasoning with the arguments advanced in the United States Memorial,
Canada's claim ought to extend to the whole of Georges Bank.
UniredSloles Memoriol.53, Figur10It rhouldbe noted that thecatch datafor
subarea3 i1980as given in this Figure isgrosslyerroneaus.Canadawasotal catch
375.622 metric tons, not 37,451 metric tons. Narthwest Atlantic FisheriesOrganiza-
AnnaS28.isricolBulleVol. 30. 1980, p.Counter-Memorial.AnnexeVolIV.
Bascd on landings data for ICNAF subarSee CanadinnMemoriol. Annexes,
Vol. IV.Annex3.
ConndionMemoriolpp.66-67, para.133.foatnate 12.92 GULFOF MAINE [104-105]
253. The United States, moreover, avoids comparing the
Canadian and United States fisheries in terms of value. The result is
that highlyvaluable speciessuch as scallopand lobster (whichare of pri-
mary interest to Canada) are equated with "trash fish" applied only to
industrial uses. which havea negligible value perunit of weight.
254. The meaningful measure of economic dependenceis value.
When measured in Canadian prices, the Canadian share of the coastal
State catch from the area clairned by Canada on Georges Bank (roughly
equivalent to ICNAF statistical units 5Zej and 5Zem) amounted to
almost 85 percent during the decade leading to the Special Agreement6
[Figure 271.
255. Even the figures cited in the immediately preceding para-
graph have a misleadingbias in favour of the United States because the
offshore landingsof many small Canadian vesselsare not includedin the
official statistics. Canadian landing regulations do not require vessels
that are less than 14 metres in length or displace less than 25.5 gross
registered tonsto report the area in which theyharvest their catch7. In
1979, only 366 vessels (1I percent) of the 3,309 registered commercial
fishingvessels insouthwest Nova Scotia were larger than 25.5 grossreg-
istered tonss.
256. There are a number of statistical consequences resulting
from the exclusionof Canadian fishine boats under 25.5 nross tons from
the "offshore" category. First, this practice results in an 'understatement
of the contribution made by the Canadian small-boat fleet to the off-
shore fishing industry, since a substantial portion of its catches are
automatically classified as inshore even when taken offshore. Secondly,
the failure to distinguish between the offshore catches and the inshore
catches of the small-boat fleet inflates the officialtotal inshorecatch sta-
tistics, and this may give a false impression of the inshore marine
resourcesto whichsouthwest Nova Scotia has access. Thirdly, the inclu-
sion of the offshore catches of the small-boat fleet in offshore statistics
wouldincrease (Le.,correct) the statistical çhare of the Canadian fishery
in the disputed areaP.
6 Thc valuc of landings is calculated by aggregating the annual volume of landings for
thc tcn-ycar perian aspccicsby-secs basir. multiplying these volumw by the 1978
Canadian priccs. and aggrcgating again to give a total valuc. Far a few species nat
caught by thc Canadian ficct (and no1among the important commercial stocks of the
Bank), therc is na Canadian rccord of prices. In these cases. United Staare priccs
uscd. See Canodian MernoriaAnnexes, Val. IV, Sec. II. Annexes 3 and 4.
7Allonlie Fishery Rcgulolions. Consolidated Regulations of Canada 1978,Chap. 807. as
amcnded.
' Canadian Dcpartment of Fisheries and Oceans, unpublished licensing data. See
Counler-Memoriol. Annexes. Vol. IAnnex 29.
9 It is possible ta makc an estimate of thc quantity of fish landcd by the inshore Ilcet
from Georges Bank for 1980 from unpublished Department of Fisheries and Oceans
data.In that ycar. versclr less than 25.5 grasr rcgirtercd tans in fishcrics district 32.
which includcs Cape Sablc Island. landcd 2.459 metric tons from Georges BTok.
land this fish. vcssclsof thc inshorc ficet made 579 trips to Gcorges Bank. Thc inclu-
sion of onlyhcse inshore fleet landings would have increased the graundfish landings
attributablc to Gcorges Bank by 10 percent. Assuming that inshore fishermen in thc
two adjacent lishing districts followcd thc samc firhing pattcrnr, the proportion wauld
bc cvenhigher. Sec Counier-MemorialAnnexe3,Vol. IV, Annex 30. [los-106] COUNTER-MEMORIALOFCANADA 93
B.THEMODERN FISHERY
257. The Canadian Memorial adduced striking evidence of the
presence of Canadian fishermen in the Gulf of Maine area throughout
the period preceding the present dispute. While much of the Canadian
effort was directed to the scallop resource throughout Georges Bank,
there was also an extensive Canadian groundfish fisherythat included
vessels ranging in size from 34-foot (10.4 metre) "Cape Islanders" to
large modern trawlers.The precise nature and extent of the Canadian
'
fishery variedthrough the years, but the Canadian presence onGeorges
Bank was always a powerful and continuing factor. So also was the
dependenceof the coastal communitiesof southwest Nova Scotia on that
fishery. The most recent phasesin the evolutionof the.Canadian fishery
on Georges Bank have been marked hy an expansion in the groundfish
fisheryand an expansionof small offshorevesse1activity. Figure2 s8 and
29 illustrate the principal home ports of the large- and small-vesse1fleets
that make up the Canadian fisheryon Georges Bank.
258. In contrast, the United States has experienceda persistent
decline in its Georges Bank fishery - a fact that it attributes to unwar-
ranted "intrusions" by Canadian and other "foreign" fishermen. The
United States Memorial. however,has sought to redeem thissituation by
invokinga transitory expansionin its fishery in the immediate wake of
the extensionof jurisdiction to 200 miles by both the United States and
Canada. There was indeed a sudden jump in United States catches of a
fewspecies, especially scallops,beginningabout 1977and 1978.The late
1970s witnessed a sharp rise in the price of scallops and the Middle
Atlantic scallop grounds - a major traditional sourceof supply in the
United States - had been overfished bythe United States and were
producing temporarily reducedyields.The combined effect of these and
other factors was an influx of additional UnitedStates vesselsand fish-
ing effort in the Gulf of Maine area immediatelyafter the establishment
of the United States 200-milezone.To a great extent, however,the land-
ings added to the New England catch as a result of this phenomenon
came from vessels based in the southern United States'O.As a recent
United States study on this development put it:
"A large influx of fleet-owned fishingvessels from the south are
fishing in New England waters ... Moreover, there is very little
that can be done to control the fishing activitiesof the southern
boats even though the economic benefits to the New England
regionare minimal.
There is every reasonto believethat as soon as the southern boats
have depleted the stocks on which they are fishing they will turn
their efforts toother speciesandjor areas to make a living"."
'OD. Russell: "Rcbcl Waters.BostonMagorine, Dccember1981. p. 164; Counrer-
Memoriol.Annexer.Vol.IV. Annex31.
" S. SedgewickC.CollinsandS. Olsen:Commercia lishingFoeilitiNeeds in Rhode
Islond. CoartaRcsourccs Center, University of Rhode Island. Marine Technical
joined New England's fishing nectr bctween 19anda1979. sce p.2.iCounier-20 vcsscls
Memorial.Annexes.Val.IV.Annex32.94 GULF OF MAINE [IM-1071
259. Il would clearly be inappropriate to take this recent trend
into account in these proceedings. It is transitory and opportunistic, and
it could not have occurred if the United States had taken timely and
adequate measures to conserve the stocks,., 'l The United States failed to
act with reasonable care in allowing a regulatory vacuum to develop and
persist for several years after the extension of jurisdiction - at a time
when both the size and the fishing practices of the Canadian fleet were
carefully regulated". Furthermore, this diversion from established fish-
ing patterns occurred to a very great extent after the conclusion of the
Special Agreement in 1979, and for that reason alone falls outside the
period that is properly relevant tothe dispute. To the extent that Canada
is now required to introduce evidence on developments subsequent to the
conclusion of the Special Agreement, therefore, it does so subject to a
clear reservation as to their legal relevance.
260. In 1980 and 1981, the United States scallop catches in
ICNAF subdivision 5Ze as a whole - including the undisputed part of
Georges Bank. the Great South Channel and the inshore grounds of
Massachusetts - reached a level of rough parity with those of Canada.
Even in these two years, landings from eastern Georges Bank accounted
for only one-third of the New England catch (up from less than 4 per-
cent in 1976"). At no time did the incursion of new vessels from else-
where in the United States have the effect of displacing the Canadian
fleet from ils traditional Georges Bank grounds, though catch levels of
scallops were reduced because of the additional United States pressure
on the resource. As was noted in the Canadian Memorial, the Canadian
fishery on Georges Bank has maintained its basic economic importance,
attaining a landed value of $80 million in 1981. The Canadian share of
the harvest of a number of species other than scallops has continued its
gradua1 increase. In 1982, the value of the Canadian groundfish catch
was $12.6 million, an increase of almost $4 million.over 1981".
261. But what is particularly significant about the developments
after the conclusion of the 1979 Special Agreement is the continuing
'>The withdraualof thr UnitcdSiaicï from ICNAF rc>ultcdin a rcgulatorytncuumin
ihcNcu EnglandfishcryThc ksi eramplcof ihtr vacuumISin thc UnitcdSiîtcs 5-1-
laofishrrs whichuns uncontrolleduntilAu~u,i 1982
" The failurcof the UnitedStatesto takc rcasonstcpsta canscrvcthe resourccrthat
wcrcsubjectto thc 1979Agreementon East CoastFisheryResourccî.and to rcstrict
UnitedStatescatchesto the stablishedlevelrmntcmplatedby that agreement,was,in
Canada'svicw.inconsistent ith the principleof law that the abjcctand purposeof a
trcaty shouldnotk fiustratedby a signatoryStatc pendingils cntry into force.Sec
Article 18of the 1969ViennaConventionon theLaw of Treaties.
" New England Fishery MonogemenlCouneil:Fishrry MonogemenrPlon, Finol Envi-
ronmenralImpoer Sl~rcment.Replorory Impner Reviewfor Arlonrie Seo Scollops
(Placopectenmagellanicus)January 1982. Table 333.3,p. 60; Counrer-Memorial,
Annexes.Vol. IV. Annex20.
15Canadian Departmcnt of Fisherier and Oceans unpublishedlandings data. See
Counier-Memorio/.Annexes.Vol. IV.Annex 33. (107-1081 COUWER-MEMORIAL OFCANADA 95
increase in groundfish catches by the small offshorevesse1fleetl6.South-
WestNova Scotia relies very heavily onowner-operatedsmali-boat enter-
prises, which are based in a large number of small fishing communities
from Shelburne County to Digby County. Georges Bank is of special
importance to these small-boat fishermenlivingalong the coasts that are
closest to it. Such fishermen depend upon the Bank for their summer
groundfish, particularly cod.For some, itis a key component in a year-
round strategy of exploitation of Browns Bank, Georges Bank and the
region between these banks and West of them. As was noted in the
Canadian Memorial", the small-vesse1 fishery spreads employment
widely throughout the traditional fishing communities of the Nova
, Scotia Coastand fulfilsan important cultural need by allowingindepend-
ent îishermen to ownand operate their own vessels.
262. The increasing use of Georges Bank bysmall offshore ves-
sels from Nova Scotia is undoubtedly a stable trend. The geographical
proximity of Georges Bank to the ports of southwest Nova Scotia,
combined with ever-improving navigational equipment and weather
broadcasts,will continue 10attract increasing numbers of these smaller
vessels. For this reason, the trend is indicative of patterns that can be
expectedto endure in the years tocome.
Section II. Geographyand Other Physical CircumstancesProvide the
Basis of the CanadianFishery
A. THE GEOGRAPHIC BAASISOF THE FISHERY
263. The patterns of human activity in relation to the resources
of Georges Bank are primarily dictated by geography. Indeed, the
regionaleconomyin the Gulf of Maine area isas much the product of its
physical environment as are the ocean currents and the distribution of
thefish. A related point is made in the United States Memorial:
"The locationof the iishery resources has, in turn, shaped human
activitiesin the area"."
264. The "relevant circumstances" of the Gulf of Maine area
therefore includenot only its purely physicalcharacteristics but alsothe
economicand human environment producedby these physicalcharacter-
istics. The location of the fishing grounds is a physical fact. The exploi-
tation ofGeorges Bank, historically, has been influencedby physicaldis-
" Betwccn 1978and 1980summercodfishlandingsfromGeorgesBankby the smves-
rcl iicctr in Shclburne.Yarmouth andDigby counties incrcasedfrom 1.245.000 kil*
grams (25 percentof their totalcatch) to 2,120,000 kilograms(33 percent). In Shel-
burnccounty the proportionrase from 36 percentto 55 percent:in the firhingdistrict
whichincluderCapeSable Island andthe adjacent mainland, the onsefromr
45 perccnto 72 perceCounrer-Memoriol,AnnexeVal.IV, Annex34.
" ConodinnMemoriol.pp.71-72.paras.143-144.
'OUnircdSraresMemoriolp. 27, para.38.96 GULF OF MAINE [log-1091
tance from ils resources. In the modern period of full exploitation,
southwest Nova Scotia and eastern Massachusetts, being closest Io
Georges Bank. havefished there extensively.By far the greatest propor-
tion of United States landings fromthe disputed area of Georges Bank is
made in the major ports of Massachusetts (Gloucester, New Bedford
and Boston). Maine does not have a significant presence on Georges
Bank, nor do other New England or mid-Atlantic ~tates'~.
265. The physical remotenessof southwest Nova Scotiafrom the
principal Canadian population centresin Quebecand Ontario has helped
to determine its resource marketingpatterns and its economic develop-
ment. High costs oftransportalion Io the major markets of central
Canadaworked againsttheestablishment ofa broadly basedeconomy. .
266. The major Canadian markets for fresh fish in Quebec and
Ontario are 1,500kilometres away.The substantially closer proximity of
southwest Nova Scotia Io the major population centres of New England,
rather than those of central Canada, has made the Canadian Georges
Bank fishery particularly vulnerable over the years to United States
tariffs and other protectionist policies".
267. Other geographical characteristics have also impeded the
developmentof a broad economic basein southwest Nova Scotia, in par-
ticular the lack of resources and the dearth of fertile soil. These have
kept the area relativelysparsely populated anddependent on the sea for
a livelihood.Since the fishery is the major sourceof sustenance, Canadi-
ans in southwest Nova Scotia have every incentiveto manage the
resource wisely. In contrast. the relevant coastalareas of Massachusetts,
for reasonsof history and a greater abundance of natural resources, have
produced a more diversifiedeconomy in which fishing activities play a
very modest role.
268. Physical conditions in southwest Nova Scotia are strongly
reminiscentof the Norwegiancoastal environmentthat figured so promi-
nently in the Fisheries case:
"As with a consequenceof the scarcity of tillable land, and also of
the coastal configuration, Norwegians have sought from lime
immemorial their livelihood from maritime fishing and hunting.
Fishing groundsoff the Coasthave beenat al1times one of the rare
natural resourceswhich Norway could offer to her population."
l9Counler-MernoriolAnnexer.Vol.IV.Anner35,
Policiesadoptcd foraiher purposesmay alsohave aprotectionisteffect. forexample.
the applicationof UnitcdStates healthregulationsto swordlishlandings.In 1971,an
the basisof mcdical rcsearchb.othCanadaandthe UnitedStatesimolemcntedrceula-
lions on thc permissiblclcvclof mcrcurycontentin lish. Howcvcr.ihe United ~ïates
health regulations wncotapplicableto lish cau~hMassachusettstate waters.Il
i5knownihai subriant~îlnumbîrsuf auardfishuërc inkcnurll oui~dc ihir Ijmiiand
land suordlish In ihc Cniicd Siaicr uovcrTof ihis rcgulstor) excmpiion.uhllc
cxtinguishingtheCanadianswordlishlishery[~o!-l~o] COUNTER-MEMOW OF CANADA 97
"The characteristics of the Norwegian or coastal waters,as well as
the specialconditionsin which fishingalong the Coastis done. have
created appropriate fishing techniques,a particular organization of
the economicactivities and a specific socialstructure for the fish-
ing population.This is particularly true for northern Norway"."
269. Indeed, the situation of southwest Nova Scotia closely
resemblesthat of lceland as well. Although Canada as a wholedoes not
share Iceland'soverwhelming dependenceon coastal fisheries,southwest
Nova Scotia is in preciselyuch a special situation of dependence.
270. Canada's fishery on Georges Bank results from physical
proximity to the resource and lack of alternative employment opportuni-
ties. It is a direct consequenceof the physical features of the Gulf of
Maine area and the distribution of natural resources therein. The eco-
nomic facts are not divorcedfrom but growout of the physicalfacts: the
sea, in this instance,dominatesthe land. To dispossess NovaScotia of its
fishery would be to displace scores of Canadian coastal communities
from a role that geography has imposed upon them. To accept the
extravagant United States claim to al1of Georges Bank would not be to
reach a result ordained by physical circumstances but rather to defy
geographyand ils socio-economic consequences.
B.THEECONOMIB CASIS OF THE FISHERY
271. Geographical circumstances and historical experience have
combined to create a situation in which the survivalof southwest Nova
Scotia as a region depends upon its ability to compete in the fish
markets of the world. In contrast, Massachusetts is under no such pres-
sure. The Massachusetts fishery will likely continue to decline owingto
alternative opportunities for economicdevelopment. NovaScotia has no
such alternatives. For this reason the fishing industry of Nova Scotia,
and in particular ofits fivesouthwesterncounties, has necessarilygrown.
To cut it off from its crucial resource supply in the eastern part of
Georges Bank wouldbe not only inequitable but disastrous ta the people
of Nova Scotia. And because southwest Nova Scotia is uniquelycapable
of hawesting the resource at the lowest cost, it would be injurious ta
those everywherewho wish to purchase the fish at the lowestreasonable
price.
272. A comparisonof southwest NovaScotia and eastern Massa-
chusetts leads immediatelyto the conclusionthat Nova Scotia is the bet-
ter place to achieve the lowest relative cost for harvestingthe resource.
" Nomgion Counrer-Memoriol,Firheriescase. I.C.J. Reporls1951. PleVol1.s,
D.219 an222.98 GULFOF MAINE (110~~1~~
The reason for this conclusion lies-in the physical circumstances of the
Gulf of Maine. As was demonstrated in the Canadian Memorial. south-
west Nova Scotia is criiically dependent on the fishery. The province
lacks a broad and diversifiedemploymentbase. Its southwest region is a
land of rocky barrens. endowed withonly the poorest agricultural and
forestry potential, devoid of primary resources and wanting in natural
advantages for secondary industries except for those directly related to
the fishery,such as boat building.
273. The economyof Massachusetts is an entirely different story,
as is evident from a comparisonof two commonstatistical measures, the
unemployment rate and the labour force participation rate". Whether
fishermen in an area remain employed in the fishery depends in laige
part on the alternative employment opportunities available to them. The
greater the number of alternative jobs available and the higher the level
of remuneration in thesejobs, the greater the levelof fishing incomethat
will be necessary to induce enough fishermen to stay in the fishery, and
the greater will be the cost of labour in the fishing industry.
274. Unemployment in Nova Scotia has been persistently higher
in relation to the Canadian average than unemployment in Massachu-
setts in relation to the United States average. Jobs in Massachusetts are
not onlv more available and more varied than in Nova Scotia: thev are
also beiter paidn. As a result of this cornpetitionfor labour. ichas-been
increasingly difficultto man the Massachusetts fishing fleet.
275. Through a constant infusion of immigrant fisherrnen and
with the protection of tariff barriers, the United States was able to sus-
tain a slowrate of growth in its Gulf of Maine fisheryuntil the 1930s. In
the post-war period, however,the advantage switchedto Canada and the
have a job but is activcly sccking cmplaymenporiicipoiionroiis the percentagc not
of the total warking-agc population that is eithcr employedor actively loaking for work.
A low participation rate in a rcgion indicates a lack of job opportunities, i.e.. a largc
number of potcntial workcrs (often in spccificcatcgorics. e.g., females or young adults)
cannot obtain emplaymcnl although willing to work and hence never entcred the
labour force. Whenombined with a high unemploymentrate, it is also oftcn indicative
of theexistence of a number of "discouraged" workcrs,Le., those who have come to
feel that the chances of finding a job are so small that it is not worth lwking for onc.
While there is little difference beiween the average national participation rates of
Canada and the United Statcs,he Massachusetts rate is above that ai the Unitcd
States, whcreas the Nova Scotia ratc is klaw that of Canada.
l*The average incornc frorn cmploymcnt for al1 rectars in Nova Scotia in 1980 was
U.S.S9,211.09. Revenuc Canada. 1982 Toxoiion Slalisticr. Anolyring 1980 TI
IndividualTox Returnrand MiscellaneousSraii~ricsTable 5. Ottawa. Dcpartmeni of
National Revcnue, 1982. pp. 102-103 and unpublirhed data. In contrasi. the 1980
Massachusetis'avcragc annual carnings from employment in al1 scctors was
U.S.Sl3.805.00. This ir 50 percent highcr than the Nova Scotia avcragc employment
income. United Statcs Dcpartment of Labor.s. Washington.Burea uf Labor Sia-
tistia. USDL 82-460. 13 Dccemkr 1982. p. Counier-Mernorial,Annexes, Vol. IV,
Annex 36.[~~~-~~2] COUNTER-MEMORIALOFCANADA 99
New England fishing fleet fell into decline2'.A Fishery Work Group,
appointed in 1976 by the Governor of Massachusetts "to identify the
major impedimentsto economic revitalizationof the Massachusetts fish-
ing industry and 10 propose some initial solutionsto these problems",
reported in 1977that:
"In some areas of the state today, the industry is in a state of
decline. Some wharves and warehouses are underutilized and the
number of commercial fishermen throughout the state decreases
annually . .. The Massachusetts fleet has failed to keep Pace even
with domestic competition, while a host of economic factors have
combinedto make revitalization of the fleet an elusiveobjective"."
In respect of the state's neet of larger fishing vessels,the report further
observedthat:
"Traditionally, the greatest number of these vessels were berthed
in Boston, but as the processing firms have departed, so have the
trawlers. The number of large trawlers in Bostonhas declinedfrom
59 in 1947to 9 in 197Iz6."
276. The decline of the Massachusetts fishing industryin general,
and of the Boston fleet in particular, is not surprising. With the higher
paid opportunities open to labour in eastern Massachusetts, and particu-
larly in Boston, this area could be expected to experience difficulty in
maintaining extensivefishing operationsin competitionwith regionssuch
as southwest Nova Scotia that do no! have equivalent alternative eco-
nomic opportunities. As between Canada and the United States, the
rational economic base for fishing operations on Georges Bank is now
southwest Nova Scotia, and this is particularly true for the eastern part
of the Bank that is claimed by Canada.
277. The geographical circumstances discussed in paragraphs
263-270 have given NovaScotia.its strong position in the exploitationof
the living resourcesof Georges Bank. They have also made Nova Scotia
critically dependent on these resources. Butthere is a further and more
general economic interest that also supports Canada's continued access
to Georges Bank. This interest arises from one of the most important
tenets of the market system: namely, that resources should be made
available at the lowest cos! consistent with appropriate resource manage-
ment and conservation. This tenet is utterly incompatible with the
United States contention that ils status as the major North American
consumer of seafood products supports its claim to al1of Georges Bank.
" S. Olsen.ed.: Fishing ond PerroleumInteractonGeorges Bonk.EnergyProgram
TechnicalReport 77-1. Boston.New EnglandRegionalCommission, 197..94. This
report indicatcs ihat betwwn950 and 1975. Ncw England landings dcclined by
appraximately54.percent.Counier-MemoriolAnnexes.Vol. IV. Annex37.
-3 Mossochuselir Fi~heiies:A Reporofthe 200 Mile Fisheries WorkGroup. Boston.
Commonwealthof Massachusetts,1977, p. 1; Counier-MernorioAnnexes.Vol. IV.
Anner 38.
" Mosroehuserts FisherieA: Report O/the 200 Mile Fisheries WorkGroup, p. 4:
Counter-MernorialAn~exes,Val. IV,Annex38.100 GULF OF MAINE [l12-1131
The United States' attempt to rely on ils market power to exclude the
,fishermen of southwest Nova Scotia from access to Georges Bank
amounts to a repudiation of the open and specialized international eco-
nomic systemaccepted by Canada and the United States and throughout
much of the world, notably in the context of the General Agreement on
Tariffs and Trade and the Organization for Economic Cooperationand
Developmentl'.
C. CONTEMPORAU RTYILIZATIO NF THE FISHEKY
278. The modern transformation of the fishery in the Gulf of
Maine area is not merelya change in degree; if is a change in kind. It is
only in the modern period that anything approaching the full spectrum
ofbiologicalresourceshas been exploitedand that the fisheryas a whole
has begun to yield its full potential (though some stocks havebeen over-
fished and others are still underutilized). The Georges Bank fishery
which is in issuein these proceedingsis essentiallya modern phenome-
non.
279. To the extent that the United States fishing effort on
Georges Bank may have been stronger from time to time during earlier
periods of relatively light exploitation, this may be attributed to the
ready demand in the larger domestic market of the eastern United
States, and topoliciesof protectionism that created the privileged posi-
tion of the United States fieet. A different situation has prevailed in
more recent limes, when the Georges Bank stocks have been brought
under more intensiveexploitation.The advantage under competitivecon-
ditions isikely to go to the industry that is able to produce fish at the
lowest cost. The fact that historically the United States has resorted to
substantial tariff protectionz8constitutes a tacit acknowledgmentof the
Canadian competitive advantage. As the effective tariff level has been
reduced since World War II, growing Canadian penetration of United
States markets confirmsthat this advantage is being maintained.
D. GOVERNMEN ATSSISTANC TE THE FISHERY
280. The United States Memorial apparently attributes some sig-
nificanceto government assistanceto the fishing industry but states only
that:
l7Vol. IV. Tcxt of the GeneralAgreement.1969. Convention otnhe Organisation for
EconomicCmpcratianand DcvclopmentwithsupplernenlaprotocolNm. 1 and 2.
signcdal Paris14 Dcccmkr 1960.
" With the exception of the periadsof reciprocallikral tariffr frorn1851-1866and
, 1871-1885.UnitedStates taanfthe importof firhand fishpraductrfromCanada
rcmaincd highuniil the intradof the UnderwwdTariffin 1913. Howcvcr.this
periodof liberaltradewasrhart. he Fordney-McCumkrTariffof 1922imposed
an averageof approrimately25 perod valoremThiswasincrcasedby theSmmt-.
HawleyTariffof 19310approrimatcly35 percent.ConodionMemorial.Annexes,
1, pp.196-197,paras. 33-Ca<nierMemorial,Annues,Vol. II, paras.43-44 and
66-67.1113-114) COUNTER-MEMORIALOF CANADA 101
"Large Canadian and provincial government subsidieshelped to
build the Canadian fleet and to meet ils operating costs.These sub-
sidiescontinue in differing formsto the present dayZq."
If this is meant to imply that government assistanceto the Canadian
fishing industry is somehow improper or unfair, then the immediate
resoonse is that everv coastal State in the world. includinn the United
tat tesp,rovides such financial assistance in similar forms;. Moreover,
the scale of Canadian assistance has alwavsbeen oerfectlv reasonable bv
international standards. given the particular challenges that face the
Canadian economy outside the highly industrialized areas of central
Canada.
281. The United States International Trade Commission in a
1980 studv identified onlv two continuine Canadian "bounties or
grants"". one was a vessel&nstruction granioffered by the federal gov-
ërnment to aid shipbuilders, not fishermen. This program was designed
to assist Canadian shiovards by reducinn the orice of a Canadian vessel
to that of a vesselbuili;n highér-volume~lowe f;reignsytards.It had
little effect on the economicsof the fishery itself, except to the extent of
allowinn Canadian iishermen to use Canadian instead of foreign-built
vessels.-~oreover, it was analogousto the program established under the
1960United States Subsidy Act and subsequent legislation32.
282. The other form of assistance identified in the 1980 United
States study was low-costloans to fishermen by the Nova Scotia Fisher-
men's Loan Board. This type of program, which uses government bor-
rowing power to keep interest rates down, is so common with respect to
primary producers around the world,including the United States, that it
can hardly be considered anything other than a normal condition of
operation in the world'sfishing industry. It is also similar to, and has the
same ourwses as. the United States Fisheries Loan Fund Program
(which p;ovides lbw-cos1loans to fishermen) and the United States
Capital Construction Fund Program (which effectivelyprovides fisher-
men with interest-free loansof tax manies").
UnitedSiotes Mernorial, p. 50. para. 82.
Scc. forcrample. the followingpublications of the OrgaforEconarnicCoopera-
tion and Devclapment: Financial Supporr ro rhe iùhing lndvrtry of OECD Mdr
Carntries. Paris, OECD, 1965; Financial SuppoIO the Firhing Induirry of OECD
Member Counrries. Paris.OECD. 1971;Finonrio1 Suppori Io ihr Firhing lndustry of
OECD Member Counrries. Paris, OECD. 1980.
" Fish. Fresh. ChillorFroren. whetherorno1 Whole, but nor Othrrwire Preporor
Preserved/rom Conado. United Slats International Trade Commission. USITC Pub
lication 1066. May 1980.A-6;Caunter-MernorialAnnexes. Vol. IV,Annen 39.
I1United Sioies Subridy Act, Public LaNo. 86-516, 774 Unitcd Statcs Statutai
Largc212, 1960 (codiïied ai 46 United States secs1401.erseq.).
" Mossoehuserts FishrrieA:Reporl oJ the 200 Mile Fisheries Work Group. p9-13:
Counter-MernoNol.Annexes. Val. IV. Annex 38. The Capital Consiruciion Fund is
found at 46 United States Code. se1177, and the Fisheries Loan Program at 16
United States Cade.c.742c.102 GULF OF MAINE [l14-1151
283. The Organization for Economic Cooperation and Develop-
ment has published two major studies" regarding government subsidies,
both of which conclude that every OECD country, including the United
States, is subsidizing or otherwise assisting its fishing industry. With
respect to the United States. however, the OECD data should be supple-
mented by the more detailed study sponsored by the state of Massachu-
setts, namely, Massachuselts Fishery:A Report of the 200 Mile Fisher-
;es Work Group (1977)3'.This study lists nurnerous United States
federal and state assistance schemes, including vesse1construction, fish-
eries business development, ports and harbour facilities, marketing.
resource management. fleet development and technical assistance.
284. An analysis attempting 10weigh United States assistance to
the United States fishery against Canadian assistance to the Canadiaii
fishery would not produce a reliable comparison, first because of the
complex incidence and impact of the programs in question. and secondly
(and more important) because most of the overt United States assistance
programs have traditionally been much less significant than the
"hidden" subsidies constituted by protective tariffs and other regulatory
barriers to shut out the competition. Eventually these protectionist poli-
cies produced such a shortfall between supply and demand that in the
1950s the United States' barriers to importation of fresh fish were low-
ered. This measure greatly benefited United States consumers and con-
tributed to the strengthened Canadian presence on Georges Bank that is
complained of in the United States Memorial. Fish products processed to
any significant degree outside the United States still face substantial
tariff barriersje, which of course operate as continuing subsidies to
United States processors.
285. In sum, the question of government assistance to the fishing
industry is a false issue that simply detracts from the consideration that
must be given to truly relevant circumstances.
Section III. The United States Memorial Relies uponExtraIIeOus
Ecooomic Considerations
286. The United States Memorial purports to accept the finding
of the Court in the Tunisia-Libya ConiinentalShelfcase that "general
economic considerations relating to the relative wealth of the two coun-
tries" are to be excluded from the relevant circumstances". Canada, for
its part, has advanced no general economic considerations bearing on the
3'MemberCounrries,OECD Paris. 1965, pp. 213-218; OECD. FinoneiolSupport10theECD
FishingIndusirierof OECDMemberCounrrier.OECD Paris, 1980. pp. 141-148.
Counter-Memoriol.eAnnexes,Vol. IV.Annex38. Mile Fisheries WorkGroup. pp. 4-24:
In 1982, the duty onfirhsticks similaproductrwar 10 percent ovolorem ilnci-
ther cmked norin oil, and 15 pcrccnt for "othcrs". United Sioies lmporr Dulies
Annotot~dfor Srolirticol Reporring.1982, p. 29.
" UniteStatesMemorinl,pp. 146141,para.26%[Ils-1161 COUNTER-MEMORIALOF CANADA 103
relative wealth ofthe Parties and has restricted itself to economicfactors
relating to the Gulf of Maine area and the exploitation of its resources,
and the Canadian dependence thereon. The United States Memorial,
however, makes numerous submissions based essentially on the relative
wealth of the two countries, while ostensibly recognizingthat general
economic considerationsare "virtually extra ne ou^^^"F.our exampleswill
sufficeto demonstrate this point.
A. UNITED STATE SONTENTION REGARDINN GATIONAL
WEALTH IN RESOURCES
287. The United States Memorial makes reference to Canada's
"vast fisheries off Labrador, on the Grand Banks of Newfoundland, in
the Gulf of St. Lawrence, and on the Scotian Shelf19".The United
States Memorial also indicates that the United States 200-mile fishing
zone on the east Coastencompasses approximately 266,000square nauti-
cal miles, whileCanada's encompasses approximately 599,000 square
nautical miles40.What is not pointed out, however, is that the United
States excludes its historic baysand the Gulf of Mexicoin making these
calculations, but includes Canada's historic bays and the Gulf of St.
Lawrence.The Gulf of Mexico alone adds 209,200square nautical miles
to the United States zone. As noted in paragraph 6, the total area of the
United States exclusive economic zone is estimated to be 2 million
square nautical miles.
288. The United States 200-milezone, of course, contains one of
the largest aggregations of commercial fish stocks in the world, as was
noted by the Comptroller General of the United States in his 1976
Report to Congress:
"The United States, with the fourth largest coastlineand the third
largest continental shelf in the world, has almost one-fifth of the
world'smarine fish resourceswithin 200 milesof ils coastline''."
The total value of the United States fishery in that year (1976) was
U.S.$1,349 million". The total value of the Canadian fishery in the
same year was $390 million4'.(It might also be noted that the value of
'Wnired SroresMernoriol.pp.146-147para.260.
3' UniredSroresMernoriolp.41,para62.
" UniredSroresMernori~ipp.12-19p.ara.24.
4 ComptrolleGcnera lftheUnitedStates,Reportto the CangressThe U.S. Fishing
lndustr- Proen1ConditionondFuture of Marine FisherieUnitedStatesGcncral
AccounrinOgffice1976, caverpage. Theadoption of a 200-mile exclusiveeanomic
zoneharenlargedthe ara of tUnited Statescontinentslheland madeilcatermi-
nouswith itrformer200-milefishcriezone. Counrer-Mernorial.AnnexeVol. IV.
Anncx 40.
" FirhericrSrotirrofrhe UniredStores1976.Statisticl igestNa. 70. ashington.
1980.p.7:Counter-Mernorial.AnnexeVol.IV.Anncrd41.asphcri Acdministration.
'' Annual Sroristicol Rcview of Conodion Fisheries. 1955-1Vol. 9,Table15.
Vol. IV. Anner 42.of Fisherieand Occans.p. 49;Counier-Mernorial.Annexes.104 CULFOF MA~NE (116-1171
petroleum production in the United States outer continental shelf in the
same year was U.S.$13,000 million".)
289. Of course, the existenceof Canadian fishinggrounds outside
the Gulf of Maine area is no more relevantto the delimitation than are
the very rich United States hydrocarbon deposits in Texas and on the
north slope of Alaska. The resources of the two countries outside "the
relevant area" are nihil ad rem for the reason noted by Judge Jessup in
the North Sea Continental Shelfcases:
"If the argument for a 'justand equitable share'had been rested
on a notion of apportioning natural resources, the counter-
argument might have insisted (as indeed it hinted) that resources
on the adjacent mainland or in the bed of the territorial sea must
also be taken into ac~ount'~."
290. The United States Memorial enumerates United States
activities in connection with aids to navigation, cartography, search and
rescue, defence and scientific research. at a lime when the Gulf of
Maine area wasconsideredby the United States and other States to be a
part of the high seas. Such activities were clearly not attributed at the
lime by the United States or anyone else to real or imagined jurisdiction
over Georges Bank. but were the usual activitiesof a large and wealthy
trading nation indulgingin a measure of international cooperation and
national self-interest.
291. The irrelevance of these United States activities is brought
out in paragraphs 598-606, and the necessary factual corrections to the
United States presentation are made in paragraphs 440-445, 432-439,
446-455and 416-422. The point here is simply to note that the activities
in question largely reflect the general wealth and power of the Parties,
and fall into the category of "general economic considerations" rejected
by the Court in the Tunisia-Libya ConrinenralShelfcase. They are the
foundation of the United States claim of "dominance" of the Gulf of
Maine area, a claim which in its very terms has little to do with equita-
ble considerations. Specific economic considerations,however, such as
evidence of the Canadian and United States fisheriei on Georges Bank,
are fully relevant and lead in law to an equitable division of these
resources, as contemplated in the 1979 Agreement on East Coast Fish-
ery Resources.
W. L. Liscom.cd.The EnergyDecode.1970-1980. AStotisticoland GraphicChroni-
rlc.Cambridge.BallingcrPublishingCompany. 1982. p. 415; Counrer-Mernorial,
Annexes.Vol.IV.Annex 43.
'$Scparatcopinional Judgc Jessupin theNorth Seo ConiinentolShcI/caser.I.C.J.
Reports1969.pp. 78-79.[l17-1181 COUNTER-MEMORML OF CANADA 105
C. UNITED STATE SONTENTION RSEGARDIN MGARKETPOWER
292. The United States Memorial implies that Canada's export
of scallops to the United States market is somehowa cloud on Canada's
title to the eastern portion of Georges Bank. Many nations, of course,
export the bulk of their fish prcducts to the markets of the world. Nor-
way and lceland are examples that come readily to mind. The United
States itself is the world'sleading foodexporter but would not.of course,
accept that this prejudicesits title to thecultural lands or the fishing
grounds from which it harvests these prcducts. The United States is also
a major consumerof imported petroleum products, importedmotor cars,
imported rawmaterials, and many other gocds produced by other coun-
tries. An understandable desire and capacity on the part of the United
States to consume these products does not confer title to or jurisdiction
over the site of their production. Toadvance the argument that con-
sumption is a source of title relevant to the delimitation of international
boundaries is to ignore the realities of international economic coopera-
tion and specialization. to put a premium on national wealth, and to
impose a further burden on national poverty.In no instance has it ever
been suggested by the Court that dependence on export markets should
be a relevant considerationin a boundary delimitation. Iceland, Norway
and Libya, to citeexamples from the leading cases on maritime claims,
are al1 in a position of export dependence similar to that of southwest
Nova Scotia.
D. UNITED STATES CONTENTION REGARDING GOVERNMENI
ASSISTANCE
293. Paragraphs 280-285 have already rebutted, for the sake of
accuracy, the irrelevant allegationsin the United States Memorialon-
cerning subsidization of the Georges Bank fisheryby the Canadian Gov-
ernment. These allegations are noted again here only because they also
represent arguments based on relative national wealth.
294. The greater wealth of the United States, and its immense
market power, have givenit a wide variety of opportunities to favour the
New England fleet at the expense of foreign fishermen, including
Canadians. However.a further fallacy of the United States argument is
that it fails ta recognize the important distinction between sectoral sub-
sidization and regional ~ubsidization~. any national governments are
committed Knational policies to reduce regional disparities in income
and employment. So fundamental to the maintenance of Canada's
For a discussionof the differencesscctoroandregionorubsidiralisec.
R.V.Guida and M. F. Morronc:"The Michelin Decirian:A PossibleNew Direction
tional EconomieRrlotionr. Cosa. Moteriols ond Tpxt on thendInterna-
tionalegulotioofTramnolion01EconomieRelorioSi. Paul.University of Michi-
gan.1977.pp.789-80Countcr-Mernorial.AnnexVolIV.Annex 44.106 GULFOF MAINE [118-119]
national fabric is this long-standing policy that it is nowentrenched in
Article 36 of the Constitution Act. 1982". Federal funds and programs
are made available to the people of southwest NovaScotia not because
they are fisherrnen,but because their standard of living is considerably
below the national average. This, of course, is not true of the relatively
wealthy New England States.
Section IV. Canada'sPresence on GeorgesBank Reflects a Vital
Dependence;the United States Has No ComparableDependence
295. As was demonstrated in the Canadian Memorial, the
dependence of southwest Nova Scotia on the fishery of Georges Bank
has many ramifications that ultimalely work their way through the
entire regional economy. The United States Memorial, havingset.out
irrelevant catch data for the whole of ICNAF subarea 5, and having
inevitably drawn erroneous conclusions from such inappropriate data,
fails to examine the economic implicationsof the Georges Bank fishery
for the inhabitants of the relevant coasts, particularly of Nova Scotia.
This approach ignores a fundamental aspect of equity in the present
case.
296. An analysis of southwest Nova Scotia's dependencemus1
take in10account the role played by Georges Bank in the context of the
entire fishery. The Bank is a critical element in the harvesting strategy
of the region, providing the principal source of income for many fisher-
men and an essential resourcefor all.
297. The Georges Bank scallop fleethas not onlycreated signifi-
cant employment and income; it has also generated capital which has
been invested in other sectors of the fishery. The scallop fishery is con-
centrated in a number of major ports, but the homesof the scallop fish-
ermen are found in many fishing communitiesin southwest NovaScotia.
This infusion of spending power raises the level of services available
throughout the entire region. Further, while Georges Bank is dominated
by the large scallopers,it has provided periodic assistance to the Bay of
Fundy's fleet of small scallop vessels.This is especially important since
the Bayd Fundy scallop fleet is essentially owner-operated and hence
has a limited capacity to withstand a severelyreduced levelof landings.
" Section 3of thc CanadianConriiiution Ac1982 readsaslallows:
36. (1) Without altering the legislaiiveauthority ol Por ofthe provincial
legislatures. or the rights ofihem with respect Io the exercise of their legis-
lative authority. Parliament and the legislatures. tagcther with the gavernment of
Canada and ihe provincialgovernmenis, arc cammitted to
(O)promoting equal opportunities Torthe well-beingof Canadians;
(b)furthering cconamic development to reducc disparity in opportunities; and
(e) providing essential public scrviccsof rcasonable qualiiy to al1Canadians.
(2) Parliament and the gavernment of Canada are committed to the principle of
making equalization paymentr io cnrure ihat provincial gavcrnmcntrsuffi-
cicnt revenuesto provide rcasonably comparable ofpublic servicesai reason-
ably comparable lcvclrof taxation 11191 couNiER-MEMoR OFALANADA IO7
298. The groundfish fleet that regularly fishesGeorges Bank also
ranges in size from largetrawlers to a considerablenumber of small ves-
sels, whoselandings have notbeen recorded in the past. The small- and
medium-boat fleetshave a significant dependence on Georges Bank,
especiallyin years when the inshoregroundfish harvestis light48.
299. Georges Bank makes possiblea level offishing activity that
justifies a high level ofsupport services and infrastructure (processing,
boat building and repair, gear fabrication and maintenance, transporta-
tion) that would not otherwise exist. The incomes so generated are
widely distributed throughout the coastal communities of southwest
~ova-Scotia, so that a far higher level ofcommunity infrastructure is
sustained than would otherwise be the case. Without the o~~ortunitvto
fish on Georges Bank, the catches of vesselsthat regularly'fish offsliore
would decline dramatically and they would lose aprincipal source of
revenue. Offshore catches represent the main source of supply for the
region'smajor fish plants. These plants are often the only buyers of fish
from inshore fishermen;at the very least, they offer an outlet for fisher-
men whose onlyalternative would be to cornpete in the limited market
for salt fish. Without Georges Bank, a crucial component in the total
harvesting strategy would be removedand it would not be practical to
operate large segments of the fleet. Without offshore landings, many
piam would ceke to be economic. The inadequate earnings generated
from inshore activities alone would be insufficient to sumort renional
incomelevels.In short, without Georges Bank,a large pari of the fshing
fleet of southwest NovaScotia would be crippled, and the fishing indus-
try that remained wouldcease to drive the regionaleconomy.
300. During the past two decades the iïshing industry in Nova
Scotia as a whole has been steadily increasingin sized9.The proportion-
ate contribution to the Nova Scotia fishing industry made by the rive
counties of southwest NovaScotia has also grownJOT . he New England
fishing industry, in contrast, has declined in relative importance and
represents a much smaller proportion of total employment than is the
ConadionMemoriol.Annexes. Vol. IVsec.II. Anncx 5.
.
'$ AnnuaiSrarisficolReviewojconodion Fisheries.1955-1976Val. 9. Ottawa. Dcpart-
ment of Fishcries and Occans. Table 16. AnnuolSlolisricniReviewofConodian
of Nova Scotia's fish landings increased steadily from $25.0 million 10$195.4 million.
The carrespnding incrcasc in market value of al1Nova Scotia fish products was fram
$51.3 million in 1958to $441.3 million inCounier-Memoriol,Annexes.Vol. IV,
Annexes 45-46.
" The landed valucof sea fishcries in the fivecounties of sauthwest Nova Scotia as a pro-
portion of the total landed value ofsea fisheries in Nova Swtia rase [rom 49.6 perccnt
Conodo(1958)5-6 Novo Seorin.lndustry and Merchandizing Division, Octaber 1960.
Table 4. pp.18.D31. Counfer-Mernorial.AnnexesVol. IV, Anncx 47AnnuolSro-
rislicol RevicO/ ConodinnFisheries. 1978.Vol. II. Table 22. p. 41Counrer-
Memoriol. Annexes.Val. IV, Annex 46: Digby Counly Stolisiieol Profile: Queens
CounrySrorirtical Profile: LunenburgCounrySlorisricolProfile: Yarmouth Counry
Slarisiicol Profile: ShelburneCounryStarisricalPrNova Satia Department of
Development.Tablc 18p.28:Counter-Memoriol,Annexes, Vol. IV, Anncr 48. Canadian catches on Georges Bank wesi of the line proposed in the
United States Memorial averaged $39.8 million annually during the
same peri~d'~.The implications are clear: the Canadian line would
impose noreal hardship on the United States, while the United States
claim wouldhave a'devastating impacton the Nova Scotia fishery.
304. The impact on Nova Scotia of a loss ofaccess to Georges
Bank would not be limited to dry statistics and a shift in national
accounts. Equity withinthe law requiresappropriate considerationof the
economic impact on the lives of the people who inhabit the relevant
coasts and whose dependence on the resources of Georges Bank is an
established fact.
305. The short-term impact of the United States claim on south-
WestNova Scotia would undoubtedly be greater unemployment,a sharp
rise in businessfailures, and a sharp drop in popular self-confidenceand
morale. The Canadian claim involves quile different options for New
England. The Canadian line would leave Massachusetts the greater part
of Georges Bank, and the difference between gaining this greater part
and gaining theentire Bank would be marginal and readily absorbed in
the overall economy of the state. A characteristic of the New England
fishery has always been, in any event, a shifting compositionof the work
force,with successivegroups entering and leaving the industry to accept
more attractive economic opportunitiesin other fieldssJ.
306. With respect to the longer-term economic impact, loss of
access wouldclearly involveseverestructural damage to the economyof
southwest Nova Scotia. In the absence of the support the Georges Bank
fishery gives to other fisheries, both inshore and offshore, and in the
absence of alternative fishing grounds of comparable proximity capable
of generating the same wealth as Georges Bank. a highpercentageof the
people of southwest NovaScotia would be forced to emigrate or would
be reduced to permanent welfare status. The fishing tieet would have to
seek new fishing grounds away from southwest Nova Scotia. Its depar-
ture would undermine the commercial base that keeps scores of com-
munities alive. People whowere able to do so would moveaway. The
Canadian line, on the other hand, wouldleavethe relevant New England
communitieslargely as they are today.
307. The loss ofGeorges Bank, to repeat, would cause extensive
hardship and dislocation in southwest Nova Scotia. Here, over a Coast
the length of that of The Netherlands -about 180nautical miles from
Lunenburg to Digby - the edifice of human life is built upon the
ConndianMernoNol.Ann~xes,Vol. IV,sec. II,Annexes 3and4.
flR. N. McPherson: GloucesterResourceSludy.Boston. Massachusetts Institute of
Technology.1973. p. 108.States:"Gloucester's fishinglbeenlargelysustaincd
legislalion was secaraundn1963a10facilitate immigration forthe sole purposeof
fishing."ounter-Mernorial,Annex~sVol. IV. Anncx 53. Sec also A. McDanald,
J. Rowland andR. FitzgeralEmploymentand the Mossochusetrfsishing Industry.
Counrcr-Mernorio/.AnnexeVal. IV,Annex49.110 GULF OF MAINE [1221
fishery, oneof the central pillars of which is Georges Bank. If that pillar
were knocked out, at least 3,000 direct jobs would be lost at once.
Nearly 1,200 scallop fishermen would face immediate unemployment.
The roughly 1,000small-boat fishermen who catch groundfish and who
depend on Georges Bankwould findtheir livelihoodinjeopardy.
308, There are over 100 fish plants along this coastS6.Many of
the small ones, mostly family-owned,would close.The larger ones would
reduce their activity, cutting'sharply into the 5,00OS'or so processing
jobs that are a mainstay of the region. The aftershock would hit boat-
yards, machine shops, sawmills, service and equipment suppliers and
other support industries for the fishery, and would finally ripple its way
through the construction and retail sectors, and still other areas of the
wider consumereconomy.
309, Thriving communities would face sudden upheaval and
social distress. There are 130 villages and towns along the shores of
southwest Nova Scotia that draw their sustenance from fishing. For
many, fish processingis their only industry. A striking example of what
might happen is supplied by the situation that occurred when a fire
destroyed one of two fish processing plants in the town of Lockeport in
1980.Unemploymentshot up to 50 percent immediately;the town losta
crucial part of its tax base,whiie facing increaseddemands for welfare
and other social payments. Federal and provincial government aid was
required to support the community and ultimately to rebuild the plant.
The lossof Georges Bankwould be like many simultaneous fires, except
that rebuildingwouldbe out of the question.
310. History has shown a close correlation between the fortunes
of the fishery and the migration of people to and from southwest Nova
Scotia. For example, a severe loss of population occurred in the period
between the two world wars, when the Great Depression and United
States tariffs made fishing a subsistence occupation.Al1 this changed in
the 1950s,and changed in large part becauseof Georges Bank.
311. As the fishery improved, an important social phenomenon
took place:instead of emigrating, the sons and daughters of these com-
munities stayed home forthe first time in the present century. Fishing
became a promising occupation. The number of fish plants, boat yards
and other related industries multiplied. A full generation has now lived
with this reality, on the reasonable assumptionthat access to Georges
Bank would be a continuing fact of life. If Georges Bank were lost,
many wouldbe faced with the choice of staying home and livingon wel-
fare, or leavingin a newwave ofemigration that woulddepopulate many
communities. The regional economy could not absorb them even at the
best oftimes, for it is probable thatssthan 25 percent of the workforce
of 51,000 personsSB is unaffected by the fishing economy.
" ConodionMernorial.Figure29.
9 Nova Scolio Direclory of Monufoelurers.1979-80. Halifax, Departmentof Develop-
ment, March 1980, pp. Tan. 5-6 and 14-19; Counler-Mernorial.Annexes, Vol. IV.
Annex54.
'Vhe iebour Force, 1981.Statistics Canada,Catalogue71-001. Decernber1981, Table
110,p. 135;Counrer-MernoNo.nnexes.Vol. IV. Annex55.[l231 COUNTER-MEMORIALOF CANADA 111
312. The economic shockthat would besuffered as a result of the
United States proposal may be illustrated by reference to three coastal
communities in southwest Nova Scotia: Lunenburg, Cape Sable Island
and Saulniewille. Their situation is without parallel in New England.
313. Lunenburg, a major scallop and offshore groundfish port
with historic links to Georges Bank(documented as early as 1882 when
the Pioneer landed a cargo of fresh mackerel from the now disputed
area59),derives approximately 80 percent of its catch from the waters of
Georges Bank.It is the home of the largest part of the Canadian scallop
fleet, of one of the world's largest fish plants (1.100 to 1,200
employee~~~)a,nd of an important concentration of industrial facilities
that support the entire Nova Scotia fishery.About $100millionhas been
invested in boats and plant capacity since 19776'.Georges Bank is at the
centre of al1of this. Its loss would cut to the town'sheart. And because
Lunenburg is the fishing capital of the province,the shock wouldbe felt
throughout Nova Scotia.
314. For Lunenburg, the lossof the scallop fisherywould be par-
ticularly hard. Virtually al1the area's 52 scallop boats (including 14 at
Riverport) would haveto stop fishing, throwing more than 800 fisher-
men out of work6'.Each scallop boat requiresan estimated $400,0006'in
goods and services everyyear, providing the principal income of the
machining, fabricating, electronics, repair and other industries. Ninety-
six percent of manufacturing employment in the town is linked to the
fishery64.With the greater part of its fleet engaged on Georges Bank,
this community would suffer a calamitous decline if the United States
claim were to be upheld.
315. Cape Sable Island, unlike Lunenburg, is not a major port,
but a "community of communities", with small fishing portsstrung out
along its shores, sustaining a thrivingsmall-boat groundfish industry.
This cluster of a dozen villages is the closest human habitation to the
eastern part of Georges Bank. The crossing to the Bank, 80 nautical
miles away, is made regularly by fishermen in small boats. Activity on
the wharves,and in the fish plants and other facilities alongside,is owed
in overwhelmingmeasure to the harvest from Georges Bank.Apart from
the fishermen who wouldbe ruined by lossof access to the Bank, alarge
investment in boats, landing facilitiesand fish plants would be frus-
trated. Of the 20 or so fish plants (some very small), most report that
the bulk of their fishcomesfrom Georges Bank. Probably at least half of
See Counrer-MernoNol.AnnexesVol.II.para. 19.
Informationsuppliedby the PerrannclDepartment. Luncnburg Diviona.tionSea
Prducts Ltd.
61CanadianDepartmcntof Fisheries anOcans. unpublishedata.
61An average scallapvcssel rcquires16 crew members.Thcrefore.52 vessels require
about832 crcwmcmbers.
Cost ond Eorningr of SelecredFishing &nierprises.Novo Scoiio. 198Halifax,
Departmental FisherierandOceans,EconamicsBranch,September 1982, 3.0. Table
13C; Counrer-Mernorial,AnnexeVol.IV.Anner56.
Novo ScoriaDirecioryo/Monu/oerurers, 1979-80Halifax.Departmcntof Develop
ment.March1980.pp.Tan 14-15; Counrer-Memoriol.Annexer.Vol. IV.Anncr 54.112 GULFOF MAINE ~1241
the total workforce engaged in fish processing would losetheir jobs. In
economicterms, everything that moveson Cape Sable Island does so by
virtue of the fisbery. In this respect it is typical of this part of Nova
Scotia, encompassingShelburne County and parts of Yarmouth County
and Queens County, where the small-boat fishery is particularly intense.
In the entire municipality of Barrington, which includes Cape Sable
Island, there is only one manufacturing enterprise - a small cement
plant - that is not directly linked to fishing. InShelburne County as a
whole, 47 percent of employmentis directly linkedto the fi~hery~~.
316. Further to the north, Saulnierville is the economic hub of
the municipality of Clare, home of one of the two principal concentra-
tionsof NovaScotia's Acadians. Only since the 1950shave the Acadians
become accustomed to relative prosperity, a prosperity largely attribut-
able to Georges Bank.Fully 79 percent of the value of the fish landed at
Saulniervillein 1978came from this fishinggroundM.
317. There is, of course, no parallel in the United States to the
impact which the loss of access to the disputed portion of Georges Bank
would haveon Saulnierville, Cape Sable Island, Lunenburg and similar
communities in southwest Nova Scotia. The New England fleet demon-
strated the existence of adequate alternative fishing grounds when it
fished these other grounds by choice between 1965and 1978. A recent
analysis by the University of Rhode Island indicates that when the fish
resources on grounds within undisputed United Siares jurisdiction
recover from the severeoverfishingof the recent past, the New England
fleet could be expanded by 200 vessels6'.
Conelusion
318. Economic considerationsare relevant to the determination of
a single maritime boundary, not for reasonsof relative national wealth,
but ratherbecause they constitute a projectionof the relevantcoasts and
of the physical circumstances of the maritime area to be delimited.
Canada's presence in the Georges Bank fisheryis a commanding one,
with deep historical roots. The geography and coastal configuration of
the Gulf of Maine area has produced in southwest Nova Scotia an
economy basedand critically dependent upon the exploitation of the sea,
and of Georges Bank in particular. The economyof New England has no
comparable dependence.
319. The Canadian line would minimize the disturbance to the
fishing activitiesof the Parties. The United States line would severely
dislocate the economy of southwest Nova Scotia, with only marginal
benefits for the New England economy. Confronted with these two
choices, the application of equitable principles must support the
65Nova Scoria Direciuof Monufacrurers,1979-80, pp.Ta17-18Counier-Mernorial.
Annexes,Val. IV, Annex54.
" CanadionMernoriol.p. 76,Table 5.
67 S. SedgewicC. Collinand S.Olscn:Commercial FishingFaciliiies Needs in Rhode
Island,p.2and II;Counter-MernoriaAnnexes,Vol. IV, Anne32.il251 COUNTER-MEMORIALOF CANADA 113
established dependence over the marginal benefit, and thus favour the
line proposedby Canada.
320. Efforts by the United States in its Memorial to discredit
Canadian fishingefforts by the use of inappropriate ICNAF statistics, or
by suggestions of disproportionate government assistance ta the fishery,
are ill-founded.On the contrary, it has been demonstrated that the Nova
Scotia fleet enjoys an economicadvantage over its Massachusetts coun-
terpart in the exploitationof the fisheryof Georges Bank.
321. In sum, a considerationof al1the pertinent economicaspects
of the single maritime boundary proposedby the United States discloses
a pronounceddisregard for equitable principles.The economic impactof
the boundary proposed by Canada, on the other hand, confirms that, on
the facts of this case, the Canadian line would produce an equitable
result.114
CHAPTER V
THE HISTORY OF THE GEORGES BANK FISHERY
Introduction
322. The United States' contention that its nationals conducted a
practically exclusivefishery on Georges Bankbefore the 1950sdoes not
accord withthe facts'. Moreover, this contention restsupon early fishing
patterns that have long since passed into history and lack any continuing
relevance. The Canadian fishery on GeorgesBank has a far longer his-
tory than the United States Memorial admits, originating in the nine-
teenth century and taking on increasing strength in more recent times.
The contemporary Canadian fisheryon Georges Bankis the product of a
sustained processof growth that renects the modernrealities of the fish-
ery, the strategic geographical position of southwest Nova Scotia, and
the inherent character of ils maritime economy.Practical and legal con-
siderations both suggestthat it is contemporary fishing patterns that are
relevant to this case and not those of the distant Dast.The essential Dur-
pose ofthis chapler, accordingly. is to provide background information
and io bri~e~.,~~ual correctionsIOthe historv of the Geor-es Bank fish.
ery as set out in the United States ~emorial.'
Section 1. The United States Fishery Has Been in Decline for
Fifty Years
323. The central naw in the United States presentation is that it
simply denies the existence of a Canadian fishery on Georges Bank
before the 1950s'.Paragraphs 335-347 will show this version of the his-
torical record to be utterly at odds with the true facts. Beforeaddressing
this fundamental issue, however,it is first necessaryta deal with a num-
ber of points raisedin the United States Memorial with respect to the
early developmentof the New England fisheries.
324. No single theme recurs more often in the United States
Memorial than its assertion of the range and dominance of the early
New England fishery'. Yetthe picture that ultimately emerges is not of
a fishery that was in any way centred on or especially dependent upon
Georges Bank. Instead, the United States has stressed the geographical
expansiveness of its early fishery and its "dominance" of the entire
northwest Atlantic area. This dominance is largely a myth of its own
fabrication.
325. The patterns of the early New England fishery differedradi-
cally from those that have came ta prevail in the twentieth century. In
many respects, itwas a distant-water fishery whose range extended far
UnitedStoresMemariolp. 41. pa60.
2UnitedSraresMernorialp. 41, pa61.
3UniredSrotesMernorialpp.41-45, para60-72;. 49. par.0 andp. 176. para2.97. COUNTER-MEMORULOF CANADA 115
to the north and east'. As the depiction in the United States Memorial
makes clear, Georges Bank was merelyone segment of a much broader
fishery, whose favoured grounds were seldom selected because of their
geographical adjacency or proximity to the New England coast'. The
Bank figured in the operations of the early New England fleet largely as
part of a continuum extendingover much of the northwest Atlantic area
-and not, as in the case of its Canadian counterpart, in the context of
a fishery centred on adjacent waters.
326. These widely dispersed New England fishing patterns,
extending as far as the Gulf of St. Lawrence, are not indicative of a
coastal State interest in the areas concerned. Furthermore, the geograph-
ical dispersion of the early New England fishery makes il inherently
incapable of suggesting any basis on which the area could be divided.
The fishery plainly ignored the Northeast Channel as a so-called divid-
ing line, and its patterns fail to bear out the depiction of that feature as
one that serves as a natural buffer zone. In every other respect, these
fishing patterns are long obsolete and hence irrelevant to the issues
before the Court.
327. The exact locale of the early New England fishing grounds
can now be determined only on abasis of inference and conjecture. Yet
there can be no doubt that much of the evidencefor an early New Eng-
land fisheryon Georges Bank reflects activitiesthat look place on the
western, undisputed portion that lies closest to the New England Coast6.
Indeed, an instance of this can be found in the United States Memorial
itself. The United States has stated that a new type of halibut vesse1
known as a "well smack" was designed especially forthe New England
fishery on Georges Bank, with ashallow draught "allowing it to operate
in the shallow waters of Georges Bank' . . .". Clearly these vesselswere
intended for use in the shoal areas of western Georges Bank and the
Great South Channel. not in the deeper waters of eastern GeorgesBank
where shallow-draughtvesselswouldbe of no advantage.
' Cod and white halibut. bath narthern species. were fished by United States vcsselsoff
the Canadian coast.
It is this pattern of New England fishing off Canada that explains much al the treaty
histary set out in the Historical Introduction to the Canadian Memorial. Annexes,
Vol.1.as well as the issuesthat wcrc arbitrated in the Halifax Commissionprocccdings
of 1877 and the North Atlantic Fisheries Arbitralion of 1ConadionMemoriol.
Annexes, Vol. 1, pp. 2-41, paras. 1-Documcnrsand Prmeedings of rhe Halifox
Pcrmanent Court of International Arbitration at The Hague in thc North Atlantic
Fisheries."Blirish ond Foreign StnrePopers, Vol. 103. 1909-1910. London. His
Majesty'sStationery Office. 1914. pp.86-132.
Bank in thewintcr months, at al1other limes of the year the neet concentraicd on the
western partofGcorgcs Bank and ihc Great South Channel and on other groundin
the Gulf of Maine area. G. B. Gmde: The Fisheriesond Fishery Indusrriesof the
UniredStoles, Vol. 1. Washington. Governmcnt Printing Officc. 18p.189. repro-
duced inUnitedSroresMemoriol, DoeumentoryAnnexes, Vol. II. Annex 18.The had-
dock grounds of easterncargcs Bank were na1 used substantially by New England
fishermen in the nineteenth ceniury.
' UniredSroresMemoriol. pp. 43-44. para. 70.116 GULFOF MAINE 11281
328. The men who actually prosecuted the nineteenth-century
New England fishery on Georges Bank were to a significant extent
Canadians - primarily Nova Scotians. The steamship lines between
Yarmouth and Boston sometimes had to double their service at the
beginningof the main fishing season in the spring in order to accommo-
date the crowds of fishermen returning to New England for works. A
resident of Cape Sable Island, Nova Scotia, testifying before the Halifax
Commissionin 1877,stated that half of the Cape Ann fleet - that is,
the fleet of the Gloucester area - was commanded by men from his
neighbourhoodg.The Boston FishBureau reportedin 1885that il would
be impossibleto man the New England fishing fleetwithout the Nova
Scotians: "Hords of them come here every spring, man Our vessels for
the fishing season, and return home when it is over." The report added
that 50 percent to 75 percent of the men in the Gloucestermackerel fleet
were Canadian citizens, and that the same would hold true for other
fishing ports in New EnglandIo.Nothing is so authoritative, however,as
the annual lists of men who lost their livesin the New England fishery.
During the ten-year period from 1891 to 1901, for example, more than
50 percent of the dead were nativesof Nova Scotia and Newfoundland;
and from 1909to 1916 the proportion rose as high as 73 percent". No
one could possiblydoubt the'"skill, daring, and resourcefulness" of the
fishermen who manned the nineteenth-century New England vessels. in
the words of the United States Memorial'l;but it is important to recog-
nize that Canada was at least as strongly represented as the United
States among these men.
329. Quite apart from the factual misconceptionsin its account,
the emphasis of the United States Memorial on the early fishery at the
expenseof current realities is misplaced. In Canada's view,it is contem-
porary patterns of fishing that should be decisive,and not those of a dis-
tant past. There are a number of practical reasonswhy this shouldbe so,
along with the legalconsiderationsto be reviewedin Part III. The indus-
trial revolutionin the fishery arrivedwellover a century later than it did
in mostother economic sectors. In Canada it arrived Farlater than it did
in many other advanced countries, and it was not until after World War
II that Canada committed itself irreversibly to the development of a
truly industrialized fishery.The radical changes that have transformed
New England fishing patterns since the nineteenth century have already
been noted; the Georges Bank fisheryis a purely modern phenomenonin
qetier from C. A. O'Connor,United States Consul al Yarmouth. NovaScoti10
W. W. Rockhill.United Staia AssislantSccrclaryof Siate. 10March Dizpot-
ehrs from United Stoles Cornuls in Yarmouth, Nova ScoiVol.2. Washington.
Dcpartmentof State. 18.o. 51;Counvr-Memoriol. Annexes,Vol.IV,Annex 57.
W. B. Smith. British(Canadian)Wiincss No. 82.Ar wcll, NathanielAtUnited
Staics Witness No. 5,testifying belore the Halifax Commission. statedthai of the
48Iishing vessels owned at Provincetawn.Massachusctis. 33 were commanded by
Nova Scotians.ocumentsond Proceedingof the Halifix Commission. 877Val. 1.
pp. 1075and 1080andVol. IIpp. 2047-204 9.ounter-Memoriol,AnntxesVol. IV.
Annex 58.
'O "BostonFish Burcau.The Digby WeeklyCourier.2 Octobcr 1885.p. 12Courtter-
Memoriol.Annexes,Val.IV. Annex59. .
" Counie?-MemoriolA. nnexesVol. IIpara21 andAppendirII, Table1.
UnitedStotesMemoriolp. 44,para71.118 GULF OF MAINE il301
before overseasfishing vesselsfirst appeared in the Gulf of Maine area,
as the preceding paragraph has shown. What makes the United States
versionof the decline of its fishery particularly unconvincing, however,is
the successfulrecord maintained by the Canadian fishery during exactly
the same period. Canada was equally challengedby the post-war explo-
sion of distant-water fishing fleets in the northwest Atlantic. The dif-
ficulties it faced as a coastal State with no significant fishery off the
coasts of other nations were even greater than those confronting the
United States fishery. Yet none of this prevented the flourishing of the
vital Canadian fishery on Georges Bankthat has prevailed throughout
modern times".
Section II. The CanadianFisheryHas Grown from Deep
HistoriealRoots
332. The apparent purposeof the United States descriptionof the
evolutionof the fishery is to obscure the strength and the endurance of
the Canadian fishery on Georges Bank.It concludeswith the astonishing
assertion that "except for occasional foreign vessels, only the United
States fished Georges Bank fromcolonial days until the later years of
the ICNAF regimeL8".This assertion contradicts not only the most
readily available evidence and numerous official United States docu-
ments, but even the United States Memorial itself, which clearly recog-
nizes Canada's presence in the Georges Bank fisheryduring the 1950~'~.
ICNAF first convened in 1951 and remained extant until 1978: what,
then, can the United States possibly intend by its assertion of practical
exclusivityuntil "the later years of the ICNAF regimeZ0"?
333. The Department of State Environmental Impact Statement
on the 1979 Agreement on East Coast Fishery Resources characterized
Canada's fisheries in the disputed area as traditional fisheries". Simi-
larly, the Scallop Management Plan of the New England Fishery Man-
agement Council described eastern Georges Bank as a "traditional"
Canadian fishing ground". The congressional testimony given by offi-
cials of the United States Government on the 1979 agreement stressed
the equity of the entitlements in that agreement on purely historical
grounds. For example, the prepared statement of Ambassador Lloyd
Cutler, the United States special negotiator, noted that the "basic
" Canadion Memoriol, pp. 59-73. paras. 110-see;paras. 347-354 of this Counter-
Memorial.
'"nired Slores Memorinl, p. 176,para. 298.
IP UnitedSlores Memoriol, p. 49, para. 80.
'O UnitedSroies Memoiinl, p. 176,para. 298.
andfConodnron Eosr Coosi Fishery Resources. United States Department of Statc,
Washington, Government Printing Office, 1980,p. 134.
22 Reviewfor ArlanrieSeo Scallops (Placopecten magellanicus). Appendix 2, "Harvesting
and Utilizatian of the New England Scallop Resources". Boston, New England Fishery
Management Council in Consultation with Mid-Atlantic Fishery Managementil
and South Atlantic Fishery Management Council, 1982, p. AZ-4.(1311 COUKTER-MEMOULU OF CANADA 119
objectiveof the FisheriesAgreement is to protect rheesrablishedfisher-
iesof both countries in rhedispuredarea" .. .", then almost entirely on
Georges Bank. [lralicsadded.1 The concluding paragraph of the formal
submissionto Congress by Ambassador Cutler opens with the following
assertion:
"The Agreement establishesan equitable balance in terms of enti-
tlements and access viewed in historical con~exr'~."[Italics
added.]
The dominant concern of the agreement was the fishery resources of
Georges Bank2$,and it was thus the position of the United States Gov-
ernment that historical considerations by themselves could justify a
major and permanent Canadian share in these resources.
334. Volume II of the Annexes to this Counter-Memorial
describes the evolutionof the Canadian fishery onGeorges Bank and ils
place in the fishing industry of the Maritime Provincesof Canada. It is
the broad trends and the factors of continuity that count most, and of
these the followingmay be identified:
First,Canada's fisheryon Georges Bank has deep historical roots.
Secondly, the fishing industry has always been vital to the Mari-
time Provincesof Canada, and especiallyto the regional economy
of southwest Nova Scotia.
Thirdly, Nova Scotia and the Atlantic provinces have always
engaged in a fishery based largely in waters that are adjacent to
the Coastof Canada - includingGeorges Bank-and have rarely
pursued distant-water fisheriesoff the coastsof other nations.
Fourrhly, these factors, along with expanded world markets and
increased competition for resources, led to an industrial transfor-
mation of the Canadian fishery in the period followingWorld War
II. This modernization ofthe fleet - primarily during the 1950s
and early 1960s - led to a significant increase in the Canadian
useof the offshore banks.
Fiffhly, the inevitable outcome of al1 these factors, coupled with
Canada's geographic and economic advantages in relation to
Georges Bank. is that the decisivetrend in the Canadian fisheryon
the Bank since World War II has been one of growth'b.
" PreparedStatemenl of Lloyd N. Cutler. in United States-CanadianFishing Agree-
ments:Hearingsbeforethe Subcommitteean Fisheries andWildlifeConservation and
theEnvironment.Committeeon MerchantMarine and Fisheries. UniteSdtates House
of Representatives. 96thCongress.1stSessioJune 1979. Washington.Governrnent
RintinOffice,1979p.40;CinadionMemorial.AnnexesV,ol.II, Anncx44,1,p.343.
1' Repared StatementofLloyd N. Cutlcrp. 44;CanadianMemorial.Annexes, Vol. II,
Amex 44,1,p. 347.
" CnnodianMemorial ..1II. para. 26p. 112. par265.
Sec Counrer-Mernorial. AnnexeVol. II.PartII.120 GULFOF MAINE 11321
335. Nova Scotia and southern New Brunswickhave alwayshad
maritime economies.Their geographic situation has made it so, histori-
cally and in modern limes. The role of the fishery has always been cen-
tral, but for much of the nineteenth century it was complemented by
shipbuildingand the provisionof a merchant marine to serve the trading
economy of Imperia1 Britain". Lunenburg and (especially) Yarmouth
were significant centres of these nineteenth-century industries,which
gave the maritime economyof the area a more varied character than il
has t~day~~.
336. Southwest Nova Scotia has always beendependent upon the
sea for its livelihood.The region has been the heartland of the Nova
Scotia fishery throughout the recorded history of the province. During
the last half of the nineteenth century and the first decade of the
twentieth, the fleet of southwest Nova Scotia accounted for morethan
60 percent of the vesselsand three-quarters of the men engaged in the
entire sea-goingNova Scotia fishery.Agriculture was neverimportant in
the fivesouthwestern counties,and from 1850to 1910field crop cultiva-
tion dropped to roughly 2 percent of the total area".
337. The assertion by the United States that Canada had only a
small offshore fisheryin the nineteenth century, secondaryin importance
to other economic sectors, is totally unfounded3".While the fishery los1
almost al1ils importance in the New England economyduring the nine-
teenth century, il maintained the central role in the Maritime Provinces
of Canada that it continues to play to this day. A United States study
publishedin 1887leavesno possibledoubt on this point:
"One hundred yearsago the Fishery was the principal industry of
the North Atlantic seaboard; now it is an inconsiderable factor
among the industries of New England, and an infinitesimal one in
the businessof the wholecountry. It would befairer to say that in
the maritimeprovincesof Canada alone the conditionof the Fish-
ery is themeasureofpr~sperity'~."[Italics odded.)
If there was ever a lime when the New England fishery was largerthan
that of the Canadian Maritime Provinces, it was simply a result of the
earlier developmentof New England as an economicforce. Yet nearly a
century ago the vigour of the early New England fishery was already a
fading memory.
l' Couni~r-MernoNol,AnnexesVol.II.Part1.Chap.II.
Sec. for cramplc. E. Sagcr andL. R. Fischcr:"Atlantic Canada andtAgc of
Sail RevisitcConndianHisiorieol ReviewVol. LXIII.No. 2. 1982, pp. 125-150;
Counier-Mernorial.Annexes.VaIV, Annex61.
" Counier-Memoriol.AnnexesVol.II, para.25 andAppendir1.
'O UniredSioiesMernoriolpp.44-45. para.72.
" Counier-Memoriol.AnnexesVol.IV,Anncxo62. G. P. Putnam's Sons. 1887. p. 76; [1331 COUNTER-MEMOW OFCANADA 121
338. The unsubstantiated United States suggestion that the early
Canadian fishery had only a slight economic importance is most elo-
quently belied by the colourful diplomatic history of the fishery, from
the time of the Treaty of 1783to the North Atlantic FisheriesArbitra-
tion of 1910". The tenacity with which Canadian fisheries objectives
were pursued, and the importance attached throughout to trade in fish
products, cannot be reconciledwith the proposition that the fishery was
at any lime a marginal economic sector in Canada. The proposition is
equally incompatible with the tangible evidence. Nova Scotia was
renowned for its offshore schoonerfleet throughout rnuch of the nine-
teenth centuryJ'. For example, in Pubnico alone - one of the closest
ports to eastern Georges Bank - more than 60 vessels were making
week-longfishingtrips to the banks in 1883'4.
339. The United States assertion that a review ofCanadian fish-
ing by the Halifax Commissionin 1878"found" that only one Canadian
vesse1had fished on Georges Bank up to that time is simply in errorj5.
Neither the records of the commission nor the sources cited by the
United States bear out this contention. In fact, some of the testimony
given before the commission pointsin exactly the oppositedirection, cor-
roborating the participation of Canadian vesselsand men in the Georges
Bank fisheryat and before the time of these proceeding~'~B . ut the more
important point is that the mandate of the commission and its entire
jurisdiction wererestricted to inshorejishing within the three-mile limit
and other territorial waters, alongwith the value of trade privileges in
fish products''. Indeed, the pleadings submitted by the United States
urged vigorously that the deep-sea fisheries "conducted exclusively on
the banks, beyond the jurisdiction of any were not within the
cognizanceof the commission;and on this there ras never any disagree-
ment between the Parties. If there were passing references in the oral
testimony to Georges Bank, they were incidental and extraneous to the
" CanadionMemoriol,Annexes 1,pp. 182-201,paras. 1-44.
3' By the tirne of ils entry into the Canadian federation in 1867, Nova Scotia had a fleel
that was composed of about 1.000 vesscls capable of offshore fishing and 10.000
inshare lishing batSecT. F. Knight:ShoreundDeepSeoFisheries o/Novo Scorio.
Haliïax. A. Grant, 1867.p.Counter-Mcmorial,Annexer. Vol.IV, Annen 63.
Y Counler-Mcrnoriol.Annexes.Vol. II. para. 18;VaIV. Anncx64.
'' UniredStotesMernorial.pp. 44-45. para. 72.
" For cramplc. John Nicholson, British (canadian) Witncrr Na. 22. when asked if
Bank bynwcstcrn vessels". The earlicr tcstimany of James Purccll. British (Canadian)s
Witncss No. 20,ndicatcd that the expression "westernvesscls" (or the "western fieet")
was currently used to refer ta vesselsfrom southwcst Nova Scotia. fram Luncnburg to
Westporton thc Bay aï Fundy.DocumentsondP~eeedingsof lhe Hd/i/r?x Cornmi>-
sion.1877. Vol. 1.pp. 643-64Counier-Memoriol.Annexes. Vol. IV. Annen 65.
3'Treaty of Washington, 9 May 1871,Art. XXII;ConodionMernorial. Annexes, Val. 1.
pp. 18-22, paras. 19-25.
'". B. Mmre: Hisiory ond Digesto/ihe InlernoiionolArbiirorio10 which theUnited
Srntes hor been o Party. Vol. 1. Washington. Gavcrnment Printing Oflicc, 1898.
p. 741. J. B. Mmrc indicates al p. 742 that the tirs1 formal u>nclurionof the United
"to the iisheries within the territorial waters of the British North American provinces
on the Atlantic coart".122 GULFOF MAINE il341
subject matter of the inquiry. Yet, evenas such, they providefurther evi-
dence of a mid-nineteenth-centuryCanadian fisheryon Georges Bank.
340. The Canadian Memorial has cited clear evidence that
Canadian vessels frequented Georges Bank in the second half of the
nineteenth centuryJ9.While the evidence is not extensive (nineteenth-
century Nova Scotia was far less thoroughly chronicledthan the popu-
lous New England Societyof the tirne), ils clarity and probative value
cannot be doubted. The Canadian Memorial refers to twoofficial reports
prepared in connectionwith the federationof Nova Scotia with the other
three original Canadian provinces, both of which demonstrate that
Georges Bank was an integral componentof Nova Scotia'sfishing indus-
try at that limea. In another report by Thomas Knight, it is clearly
indicated that a springtime fishery extending as far West as Georges
Shoal, jus1 to the Westof Canada's present claim, was a regular annual
pattern". The context in which these reports were prepared wasthat of
the transfer of administrative responsibilityfor the fishery to the newly
formed federal governmentin Ottawa. It was obviously vital that the
new authorities in Ottawa should havea full and accurate understanding
of Canada's Atlanticfisheries.and these circumstancesclearly investthe
reports with aspecialsignificanceand weight.
341. The direct evidenceof Canadian fishing activity on Georges
Bank in the early years of the twentieth century is far more abundant,
and there is every reasonto believethat it points to a pattern of activity
that had been carried over from earlier times. The evidenceset out in
Volume II of the Annexes to this Counter-Memorial shows that
Canadian fishing vesselsengaged in the Georges Bank fishery through-
out the period before World War II4'.This activity encompassedfisher-
ies for halibut, cod, haddock and - especially after World War 1 -
swordfish. Even in the adverse conditions of the Great Depression,
schooners from the southwestern portsof Nova Scotia continued to fish
on Georges Bank". The Canadian groundfish fisheryon Georges Bank
was inhibited during the period betweenthe world wars by United States
tariff policy, Canadian policy on offshore trawlers, market conditions,
and the depletion of haddock resourceson the Bank". Canadian vessels
continued, nonetheless, to make trips to Georges Bank throughout this
period. Indeed, there is direct evidence from an official United States
source that in 1919 alone Canadian vessels landed 454 metric tons of
JP ConndianMemoriol, pp.81-84. paras. 179-182.
ConodionMtmoriol. p. 83. para. 181.footnote43.
" T. F. Knight:Shoreand Deq Spa Fish~ricof Novo Scoiio.At page 2it is statcd:
"Framthc firsol Aprilthey (the Nava Scotia fishermenlconticod-fishinon the
variausbanks whichextend fromGeorge'Shaal to BankQuereau,and in partsof the
Bay of Fundy,until about the 10th of JunCounier-Memorial,Annexes.Val. IV,
Anncx 63.
Counrer-Memorinl.Annexes,Val.II. PartII. Cha1.
" Counrer-Memoriol.Annexes,Val.II. para.51.
Counrer-Memoriol.Anncxcs, Vol.II. paras. 43, 56 and 58. Furtherinformationon
Canadiangraundfishactiviion Georges Bank during this period is providcdin the
Counr~r-Memorlal,Annexes.Vol. IIPartIIChap. 1.Scc.II.11351 COUNTER-MEMORW OF CANADA 123
their Georges Bankcatches - mainly groundfish - in the three New
England ports of Boston,Gloucester and Portland4'.
342. Substantial Georges Bank swordfish activity by Canadian
vessels can be traced back to before World War 1.Georges Bank was
among the most important areas in which this fishery was pursued. and
practically ils exclusive locale in the late spring and early fall. The
Canadian swordfish fleetin the first half of this century was increasingly
successful. The Canadian catch grew rapidly, almost matching the
United States catch in 1915 and overtaking it in the mid-1930s. This
development compensatedin large measure for the adversity encountered
by the groundfish industry in those years. The participants in the sword-
fish fishery were among the pioneers of the Canadian Georges Bank
scallop fishery after World War II, profiting from their intimate knowl-
edge of the Bank in this newventured6.
343. Statistical cornparisonswith the catches of the United States
fleet during this period are not available, because Canadian vesselswere
not required to report their catches by area of capture until well after
the war4'.Only in recent years has the evidence becomereliable, with
the development of an elaborate statistical system recordingcatches in
terms of the specificarea where theywere taken. Unfortunately, the sta-
tistical system in Canada was particularly deficient in this respect before
the 1950s(although statistical data on many other aspects of the indus-
try were kept). Thus, the Canadian delegate to the first annual meeting
of ICNAF in 1951 noted that the collection of offshore statistics in
Canada had onlybegun a few years before:
"This intensive work, both in sampling the fish and in getting
detailed statistics of where and when fish werecaught, and with
what effort, is only about four yearsold - fiveyears ~ld~~."
He also noted the longer and more extensive availability of statistical
data collected by the United States on its own fleet.even inareas off the
Nova Scotia coi~t~~I.t is clear from the availableevidence. nevertheless,
that the levelof Canadian activity was significant throughout.
" Repori of ihe UnitedStores Commirrionerof Fl~heriesF& the Fiscal Yeor 1919,
Appendin X. Washington, Govcrnment Printing Office,1921. pp. 21-31; CminIer-
Memurial. Annexes. Vol. IV. Annex 66. During the period 1918-1921. Canadian ves-
scls were permitted ta land directly in United States ports. However.their landings as
reportcd in the Commissianer of Fisherics' reports included only ihase Canadian cat-
cher from Georges Bank that wcrc unloadcd in the United SiatMorcover. therc is
evidencethatthese landings were undcr-rcportCounier-Mernorial.Annexes.Vol. II.
para. 39.
a Counter-Mcrnoriol.Annexes. Vol.II. paras. 60 and 66.
" Counier-Mernoriol,Annexes, Vol. II, para. 117.
'a ICNAF. Summary Report (Minutes). Panel. Subarea 4. Rcstrictcd Document 29,
Serial No. 9, 6 April 1951.pCounttr-Memorio/,Annexes, Vol. IV.Annex 67.
The Canadian delegate said:
stocks, the United States investigations were aheadurs.even on thesc areas of the
ncrt to ourcoast, for many years. and although we fcel that wc have been caught
up or arc caiching up, il is only in the last four or five years."
ICNAF. Summary Report (Minutes). Panel. Subarea 4.Rcstriacd Document 29.
Serial No. 9, 6 April 1951.pCounier-Mernorial,Annexes. Vol. IV.Annex 67.124 . GULF OFMAINE il361
344. There was diversity in the Canadian fishery on Georges
Bank before World War II, both in the seasonsof its pursuit and in the
species sought. Its character and extent can only be appreciated in the
light of the concrete account of the vessels and men that fished on
Georges Bank,as is set out in Volume II of the Annexesto this Counter-
Mem~rial'~.A Royal Commissionof lnquiry found in 1928that Georges
Bank wasamong the "principal fishinggrounds" resorted to by vessels
from the Atlantic ports of CanadaJ1.Similarly, fishermen's charts pro-
duced during the 1920sreflect this Canadian use of the Bank by show-
ing its distance from major Nova Scotia fishing portss1.The evidence
can leave no doubt chat the Canadian fishery on Georges Bankis a
phenomenon'withdeep historical roots.
345. Yet in earlier times this fisherywas doubtless more limited
than it might have been if natural geographical and economic factors
had been givenfree play. The Canadian fishery has traditionally been
dependent on exports (indeed, the Canadian economyas a whole is very
largely based on exports of resource-based products), but the inherent
strength of Canada's offshore fishery has often been inhibited by tariff
walls and other protectionist measuresin the United StatesJ". In 1941,
Edward Ackerman, the United States fisheries historian referred to in
paragraph 330, noted the importance of the issue from the New England
perspective:
"New England, near as it is to the fish-producingCanadian Mari-
time Provinces,probably wouldbe much less important than it is in
several branches of the fishing industry if United States tariffs did
not protect the efforts of the United States fishermen. Becausethe
Maritimes are even more favorably located with reference to the
fishing banks than New England and because their fishermen have
lowerwage scales (and few economicopportunitiesother than fish-
ing), Canada could easily take over a good share of the United
States market if it were not for tariffss'."
These measures, in brief, provided an artificial prop for the New
England fishery and inhibited the full development of its Canadian
counterpart before World War II.
346. The severe restrictions placed on the use of modern offshore
trawlers in Canada before World War II, following the report of the
'O Counter-Memorinl,Annexes,Vol.II. PaII.Chap.1.
and rhe MagdolenIslands.Ottawa. King'sPrinter. 1928. p.ConodianMemoriol.
Annexes. Val. II.Anncr 8.
" Counrer-Memorial.Annexes.Vol. III, Appendices31-33Fishermeni ond Yochrs-
London.1928and 1932.Io Newfoundlond. Georges Bank Inset.AlbertClosc, Ilfard,
" thc "FardneyTariff') irnposcdby thc United States in 1922 are dcscribedin the
CanodionMcmorinl,p. 86. para. 188 aConodianMemoriol.Annexer, Vol. 1.p. 30.
para.33. Sec alsCounfer-Memorial.AnnexesVol. II, paras.43-44 and66-67.
''Annexes.Vol. IV. Annex60.and's Fishing Indusrry. p.141; Coun~rr-Memoriol.1137) COUNTER-MEMORIALOF CANADA 125
Royal Commissionof Inquiry in 1928, added a further constraint on the
natural growth of the Georges Bank fishery.This policy (which did no1
affect the traditional schooner fleet) was intendedto protect small-boat
fishermenfrom the threat of glut in a lime of badly depressed market^'^.
A similar regulatory restriction interferedwith the development of an
offshore scallopfishery in the late 1930sJ6T . hese policiesceased to apply
after the war. The pst-war period also saw a renewed international
commitment to free trade, expressedboth in the GATT and in the poli-
cies advocated and followed by Canada and the United Statess'; and
with it came a more liberal policyon trade in fish productsJs.Combined
with the greater prosperity of the times and the impetus given by
increased competition forresources, these factors al1contributed to the
vigorous growth of Canada's offshore fisheryafter World War II and
the expansionof ils fisheryon Georges Bank.
347. The United States Memorial puts forward the perplexing
suggestion that the post-war expansionof the Canadian fishery on
Georges Bank was somehowa "response" to the build-upof foreign fish-
ing effort further to the north and eastJ9.This notioncannot survive even
the most casual scrutiny. For one thing, the expansion of Canada's
Georges Bank fishery was led by the scallop fleet - and scalloping has
always been exclusivelya coastal State fishery, totally unaffected by the
overseas fleetsw. More generally, the expansion of Canada's fishery on
Georges Bank was simply a result of the growth and modernization of
Canada's offshore fleet and ils fishing industry as a whole after World
War II. The post-war era brought newopportunities for development,as
well as new economic imperativesstemming from the greater competi-
tion for resources that accompanied the intensification of fishing effort
ConodinnMcrnoriol. p. 86, para. 188. Sec alCounicr-Memoriol.Annexer. Vol. II,
para. 56.
Nova Scotia Fishery Regulationî in cifect {rom 1938 to 1940 prohibited thc useof
"drags" ovcr 18fcct in Iengih for this purpsc. Order in Council P.C. 2586, 18Oclober
1938and Order in Council P.C. 162, 17 January 1940.See alw "Test Scallop Fishery
on Offshore BanW. FisherieNews Bulletin.Vol. XI. Na. 124. February 1940. pp. 2
and 4.Counter-M~rnoriolA, nnexerVol. IV, Anncx 68.
57 See. for cramplcTrodeAc1of 1974. 88 Unitcd States Siatuies at Large 2076. Public
Law No. 93-618, scc. 612 (codified at 19 Unitcd Statcs Code. sec. 2486). which urges
thc ncgatiatian ofa free trade agrccmcnt with Canada.
The United States tariffes, howcvcr.continue ta curiail the level of fish processing
cmployment in Canada. Indced. it is significant that the Canadian fishery that has
most flourished oGcarncs Bank is the scalloo fi.h.rv. whcre the effect of thc tariff
has ken relativcly slight-~ee paras. 284 and 352.
UnitedSroresMemoriol. p. 49para.80.
m Statistical catch records maintained by ICNAF and NAFO conlirm that the sea scal-
lop lishcry in the northwcst Ailantic has been carried out enclusivcly by Canada and
the United States.Sloiisticol BulletiVols. 11-28, 1961-1978. Dartmouth, Nova
Scotia, ICNAF, 1963.1980; Vols. 29-30, NAFO. 1981-1982. Thc suggestion by the
United States thats scallop fishery began ta "rebound" after the establishment of the
2W-mile limit is equally groundlUniiedStoia Mernorial,p. 50para.83.126 GULF OF MAINE (1381
and the technological revolution in the fishing industry. The growth of
Canada's offshore fisheryin the post-waryears was a successfulresponse
to each of these challengesand opportunities6'.
348. The gradua1 expansion of Canadian fishing on Georges
Bank beganimmediately after World War II, gaining momentum from
the late 1950sonb2.The outcome of this evolution as manifested in the
present-day Canadian fishery on the Bank has been described in para-
graphs 252-262, 302-317of this Counter-Memorial and in the Canadian
Memorial6'.The followingparagraphs willoutline the immediate antece-
dents of someof ils most important components.
1. The Swordfsh Fishery
349. Although the Canadian swordfish fisheryon Georges Bank
has been largely curtailed since 1971M,it has great significance in the
evolution of the present-day fishery fortwo distinct reasons. Firsr,the
swordfish fishery on Georges Bank wasoften combined with scalloping
in the early years of that fishery, and swordfish fishingmay thus be
regarded as the immediate precursor of the rnosr important fishery ever
to be exploited on Georges Bank. Secondly, the curtailment of the
swordfish fishery in 1971 led directly to the establishment of Canada's
continuing offshore lobster fisheryon Georges Bank. When restrictions
on the sale of swordfish wereimposed in the United States and then in
Canada in 1971 (because of naturally occurring high levels ofmercury),
Canada pioneered this lobster fishery on the Bank to absorb at least
someof the displaced vesselsand fishermenbs.
350. The swordfish fishery was a source of strength in the
Canadian fishery from the early part of the century. From 1939,the
Canadian fleet led this sector of the fishery in the northwest Atlantic,
and in the post-war years its commanding position became overwhelm-
inp. A 1958 issue of the Maine Coast Fisherman described the fishery
in the followingterms:
"The majority of the commercial fleet that followsthe swords
when they hit the East Coast offshore waters from the Delaware
Capes to the Grand Banks during the summer come [sic] from the
" Counier-Mcmoriol,Annexes,Vol. II, PartII. Chap.II.
Counirr-Memorinl,Annexes.Vol. II,PartII.Chap.II.
" ConoddiaMnernorialpp.83-91, paras. 179-202.
In 1971. the diswvery of high levelsof mcrcuryin swordlishrinthe intraduc-
lion of a baonsales ofswordfish that didnot mecl a mcrcurytalcrancelevel of 0.5
partspcr million, whichanly the smallest fish could pass. In 1979. lollowingseveral
yearsof review.the mercury restriwas liftcdin favourof providinginformationta
consumcrson uinsumptionrata.Counier-MemoNol.Annexes. Vol. II.paras. 183-185.
" CanodionMemoriol. pp. 87-88. para. 191Courtier-Mernorial. AnnexeVol. II.
para. 187.
" Counrer-Mernorial,AnnexesVol. II, paras.60, 116-140andTables2 and 14.11391 COUNTER-MEMORIALOF CANADA 127
. Canadian Maritimes. When the fish begin ta appear off Georges
Bank, the Canadian boats go ta work6'."
Volume II of the Annexes to this Counter-Memorial shows that this
Canadian fishery was undertaken by vesselsfrom along thewholesouth-
west Nova Scotia Coast,from well above Digby on the Bay of Fundy as
far as Lunenburg on the outer Atlantic coa~t~~A .s elsewhere,the activi-
ties of small vessels wereeither entirely unreported or under-reported in
the official statistics. Yet the full extent of this activity becameevident
in September 1950, when tragedy struck in the form of a severe hurri-
cane. A fleet of small swordfishvesselsfrom Woods Harbour, near Cape
Sable Island at the southwest corner of Nova Scotia, along with larger
vessels from Yarmouth. was caught by the storm on Georges Bank. A
published historical account of the event records that this was to have
been the season'slast trip ta Georges Bank for thisfleet of Nova Scotia
vessels6'.Although most of the fleet managed to make its way ta the
safety of shore, oneof the Woods Harbour vesselsmet with disaster and
was later found floating on its side off the Nova Scotia coasl with no
survivorsaboard70.
351. Like its successor,the lobster fishery, the Canadian sword-
fish fishery tended to be concentrated on the seaward side of Georges
Bank. An example of the fishing patterns of the Canadian swordfish
fleet is given in Figure 30. Restrictions on the sale of swordfish have
recently been relaxed in the light of further scientific research, and it
may be anticipated that Canadians willregain their pre-eminentposition
in this fishery.
2. The Originsof the Scallop Fishery
352. Clearly the most significant developmentin the Canadian
use of Georges Bank after 1945 was the establishment of an offshore
scallop fishery that relied almost exclusively on the prolific scallop
beds of Georges Bank. Canadian fishermen had expressed interest in
6' P. Shea: "Swordfish Slcigh RidMaine Cwsl Fishrrmon,July1958. p. 21Couler-
Mernoriol.Annexer.Vol. IV.Annex 69.
" Counier-Mernorial.Annexes.Vol. II, paras. 140-160.
69 T. Amiro, M. MacDonald-MacKcnzic and J. (Cline) NewellA Seo Tragedy WoodS
Harbour 1950.Yarmouth. Scntinel Printing Ltd.. 1977. p. 14.See alro H. A. Pcrry: In
and Around Old BorringtonYarmouth. Lescarbot Printing Limitcd, 1979.pp. 22-26;
Counrer-Mernorial.AnnexesVol. II, paras. 123-126;Vol. IV.Annexcs 70-71.
'OT. Amiro. M. MacDonald-MacKenic and J. (Cline) NewellA Seo TragedyWmdi
Horbour 1950,p. 27. Pearl Garcham of Lawer Wmds Harbour. daughtcr of a fisher-
man who survivcd the siorm. commemaratcd the incident inpoem rcprduced at
p. 63 andntitled "The Swordfirhing Baats and the Hurricanc". The firrt stanza rcads:
The rwordfishing bats left WdsHarbour pier.
All the boysand men Wds Harbaur halds dear,
They headed outfor the swordfishinggrounds,
Ta scek their fortaneGeorges and Browns.
Counter-Mernorial.AnnexesVol. IV. Anner 70.128 GULFOF MAINE Il401
establishing an offshore scallop fishery in the late 1930s"; but as was
noted in paragraph 346, Canadian regulations designed to protect the
position of small-boat fishermen prohibited the use of equipment suitable
for offshore scalloping until 1940. The war further postponed the
development of the fishery, but from 1945 on Canadian vessels began to
exploit the scallop beds of Georges Bank. By the mid-1950s Canada had
become a major producer of Georges Bank scallops, and by the mid-
1960sits fleet was practically the sole exploiter of the beds of the eastern
half of the Bank. At the beginning, this fishery made use of vessels con-
verted from other fisheries; but, from 1954, a fleet of offshore vessels
specially designed for this fishery was constructed, eventually numbering
over 70 large vessels. The Canadian scallop fishery on Georges Bank
continued to expand through the 1960s, and it quickly assumed an
indispensable role in Canada's contemporary fishing industry".
3. The Resurgence of the Offshore Groundfsh Fishery
353. Canadian groundfish fishing on Georges Bank has been pur-
sued at rising levelsof activity during the post-war period, when Canada
began to develop a modern offshore fleet to replace the dory schooners
on which it had traditionally relied. The late 1940sand the 1950s were a
period of transition and of relatively light Canadian groundfish activity
on Georges Bank, although the statistical record for these years does not
accurately reflect the Canadian fishery. The distribution of logbooks to
Canadian vessels for the purpose of reporting catches by area of capture
was incomplete until the 1960s, and such reporting did not become com-
pulsory until some years later". Volume II of the Annexes to this
Counter-Memorial shows, nonetheless, that Georges Bank attracted the
interest of the fiedgling Canadian dragger and trawler fleet from the late
1940s". What is particularly significant is that the small-vesse1fleet of
southwest Nova Scotia - a fleet that even today remains partially out-
side the statistical system for the offshore banks - was active on
Georges Bank al this time. The ports of the southwest shore of Nova
Scotia - the area of the Coast that lies closest to Georges Bank - were
then, as now, particularly active in this fishery. As today, moreover, the
fishermen of Nova Scotia relied heavily on high-value, low-volume
Georges Bank resources such as halibut and sw~rdfish'~.
354. The haddock stocks of Georges Bank had been depleted
when ICNAF was established'b. They gradually recovered under the
lCNAF mesh size program that Canada helped to develop - a striking
example of the results that could be accomplished through international
" N. Baurne:Scollopsondtheo//zhorefirhery o/rhe MnrilimesSt.Andrews, Fisheries
ResearchBoard of Canada.BulletinNa. 145. 1964p.21.
" Counrer-Memoriol,Annexes, Vol.II.paras.89-104 and 143-157.
" Norlhwesl Allonrie FisheriesConvenrionReguloiions,omendmenf.Orderin Cauncil
P.C. 1973-1478, 12 June 1973publishin ConodaGazelle, Part II.Vol. 107, No. 12,
27 Junc1973.
" Counier-Memorial.Annexes, Vol. II, paras.105-115.
" ~ounlei-~emorinl, Annexes.Vol. II, para.108.
" Counter-Memoriol.Annexes, Vol. II. para. 108 andfootnote57.11411 COUNTER-MEMORIALOF CANADA 129
cooperation. given the necessary political will. In the early and mid-
1960s,Canadian cod and haddock catches from the Bank rose to record
levels,before the stocks were again depleted. The strong performance of
Canadian trawlers on Georges Bank during these years was an early
expressionof the process of growth and modernization inthe Canadian
offshore fishing fleet after World War II7'.
Conclusion
355. A number of specificconclusionsemerge from this brief sur-
vey ofthe historical evolution ofCanada's fishery on Georges Bank.The
first is that it is a deeply rootedpattern, closelyassociated with the geo-
graphical position of southwest NovaScotia and its traditional fisheries-
based economy.The fishery is more than a vital economic resourceto
the people of NovaScotia: it is a tradition of the province'spopular cul-
ture. The second conclusion is that the trend in modern timeshas been
one of oiderly growth, the outcome of the modernization andexpansion
of Canada's offshore fleetsince World War II. The Canadian fishery on
Georges Bank today outranks the earlier fleets of either country in both
importance and scale; but it was developedby communities whose asso-
ciation with Georges Bank has extendedover generations. It is the prod-
uct of this historical process that is significant in the present case, and
not the process itself.
" Counter-Mernorial,Annexes,VoII,paras.158-178.il431 COUNTER-MEMORIALOFCANADA 131
358. In the first place, like so much else in the United States
Memorial, the statement quoted in the above paragraph fails to distin-
guish between those portions of the Gulf of Maine area that are in dis-
pute between the Parties, and those portions - the greater part of the
entire area - that are under the undisputed jurisdiction of either
Canada or the United States. A recital of United States activities, no
matter howexhaustive or impressive,in the areas that are under undis-
puted United States jurisdiction can hardly assist the Court in clarifying
the issues. Even more fundamental is the second ambiguity that runs
throughout the United States presentation: the attempt to lend substance
to its claim to "dominance" over the entire area by cataloguing a series
of high seas activities that bear at most a tenuous relationship to the
issuesat stake.
359. Canada will counter the specific items in the United States
catalogue on their particular facts, and will show how far the United
States Memorial falls short of its mark when the facts are appraised in a
more objective fashion. Of equal importance,however, is the need to
bear in mind throughout the double ambiguity of the entire United
States account - its failure to distinguish between activities that relate
to the areas in dispute and those that do not, and between activities that
are truly relevant to the issues before the Court and those extraneous
activities that are more closely related to the traditional régimeof the
high seas. This admixture of irrelevant areas and irrelevant activities
creates a hopelessly confused and distorted image of the historical
record, which exaggerates the United States role beyond any semblance
of authenticity.
Section II. The United States Has Acquiesced in and Recognizedthe
Canadian Equidistance Claim and Its Conduct Has Created an
Estoppel in Favour of Canada
360. The facts Canada has relied upon in support of its conten-
tion that the United States has acquiesced in and recognized Canadian
jurisdiction up to the equidistance line, and that its conduct hascreated
an estoppel in favour of Canada, stand uncontroverted by the United
States Mernorial. It is Canada alone that has issued instruments confer-
ring legal interests in the resources of the continental shelf of the dis-
puted area; and for an extended period during the 1960s the United
States unequivocally accepted this exerciseof jurisdiction withoutprotest
and with full knowledgeof whatwas inissue.
1.Permits
361. As was stated in the Canadian Mernorial*, Canada has
issued oil and gas permits for most of the disputed portion of Georges
Bank and adjacent areas. While these permits are formally applicable
' ConndionMernorial.pp.92-93paras.204-205.132 GULFOF MAINE I1441
only to the exploratory phases of offshore oil and gas operations, the
most important single benefit they conferis the prospect of exclusive,
long-term production rightswithin the tract specifiedin the permitJ.The
permits cover specifictracts at sea - rectangular blocks whosedimen-
sions are either 10 by 11 nautical miles or exactly half that size. They
are long-term instruments,whose duration is intended to provide ample
time to carry out the exploration work necessary to determine whether
the permit shouldbe converted to a lease forthe commercial production
of oil and gas. Because of the special circumstances created by the dis-
pute, the normal term of the permits for tracts in the disputed area (as it
stood until the United States Memorial was filed) has been extended by
special executive orders. The Canadian permits issued for the disputed
portion of the Gulf of Maine area remain in force at the present time,
and confer upon the holders the prospect of exclusiveresource produc-
tion rights within the designated tracts.
362. The Canadian Memorial described the publicity given to
these permits through the publication of maps showing the areas ta
which they applied6. Moreover, itwas the Canadian practice at al1
material times to notify the leading oil and gas trade publications of al1
new permits as they were issued. These publications regularly carried
notices or stories on newly issuedpermits - as they did on the occasion
of the first Canadian permits issued for Georges Bankin the spring of
1964'. The Canadian Government itself published a "Monthly Oil and
Gas Report" that listed the permits issued, withthe geographical coordi-
nates identifying their location, the name of the permit holder and other
pertinent informations. All Georges Bank permits were includedin this
publication within afew weeksof their issuance,and the report was cir-
culated every month to a broad range of recipients, includingthe United
States Embassy inOttawa.
363. The permits involvea continuing exercise of jurisdiction by
the resource management authorities of the Canadian Government,
primarily in the supervision and evaluation of the exploratory work the
holders are required to carry out. Since 1965, Canadian permit holders
have spent substantial sums on seismic, sea gravity and magnetometer
surveys on Georges Bankin order ta fulfil their work obligations and so
maintain the validityof their permitsand retain eligibility for production
leases. Since 1971, however, the Canadian Government has accededto
requests by companies holding permits in the disputed area for tempo-
rary exemptions from their normal work obligations pendingthe settle-
ment of the dispute; as a result, the exploratory work has not yet
SceCounier-Mernorial. AnnexeVol. III, pp. 1-12, paras. 1-28 fora full explanation
inrcrcslsinoil agas.latory régimegovcrning the dispositionand administrationof
ConadionMernorial,p. 92, para.203.
'Wlweek. 25May.1964,pp.21-22 C;ounter-Mernorio/.AnnexeVol. V,Anncx72.
Wounier-Mernorial, AnnexesVol. III, Appcndii 5containsa samplcissueof thispub-
lication. 1145-1461 COUNTER-MEMORIALOF CANADA 133
proceeded to the more costly drilling phaseq.These exemptionshave not
stood in the way ofcontinued progress in the gathering of geophysical
data, although the rate of progress has inevitablybeen affected.
364. The Canadian permits outstanding on Georges Bank were
issued under the Canada Oil and Cas Lands Regulations - a set of
regulations that is made expressly applicable to al1 federal oil and gas
interests both onshore and in submerged lands. A new and comprehen-
sive statute entitled theCanada Oil and Gus Act, which will eventually
replace the old regulatory régimein its entirety, was proclaimedin force
in 1982. The legal force and effect of al1 oil and gas interests issued
under the former régimeis expresslymaintained by the Canada Oil and
Gas Act, which also provides for the replacement of these interests by
legal instruments that are governed by the terms and conditions of the
new legislation. The detailed operation of both the old regulations and
the new legislation is described in Volume II1 of the Annexes to this
Counter-Memorial.
365. In brief, the Canadian permits granted exclusive,long-term
rights with respectto specific tracts of submerged lands,with the poten-
tial for oil and gas production rights upon conversionto a lease at the
option of the permit holder. The United States has issued nocomparable
instruments for the disputed area. It has granted no oil and gas leasesor
other rights or interests, actual or prospective,in the mineral resources
@) of this area.Figure 31 reproducesthe relevant portionof a map from the
"Eastern United States Coastal and Ocean Zones Data Atlas", pub-
lished by United States Government agenciesin 1980, showingthe off-
shore areas under United States lease or Canadian permit as of that
c) time. Consistent with the illustration in Figure 4 of the Canadian
Memorial, it showsthat al1oil and gas interests that have beengranted
in the area claimed by Canada are Canadian.
The United States Memorial invokes a series of permits it
366.
has issued for geophysical surveysof extensiveareas of the Atlantic con-
tinental shelfLOI.t alleges that a number of these surveys extendedinto
an undefined area termed the "Northeast Portion ofGeorges Bank" -
apparently the sole instance it can suggest of an exercise of United
States jurisdiction in the disputed area. Yet, even on the basis of the
contentions in the United States Memorial, the evidence is thin indeed.
It demonstrates at most a number of incidental intrusions (mostly since
1972) into the area under Canadian claim, al1in the context of a series
of broad geophysical surveysof the Atlantic continental shelf. At no
point was Canada given notice of these activities, despite United States
knowledgeand acceptance of the rights Canada had granted to specific
tracts on Georges Bank. The circumstancesstand in contrast to the pub-
lic exerciseby Canada, with full United States knowledge,ofjurisdiction
9 Counter-Mernorial, AnnexeVol. III. 6. para. II containaan explanalion of the
"variationrders"used for this purpose,aCounter-Memoriol, AnnexesVol. III,
Appendix 4 contains copies of the relevant orders.Il should be noted that tday
exploraiion welcancos1up to1650millioneach.
10United Stoter Memoriol,p.58, para. 93;United Siares Memoriol. Documeniory
Annexes,Anncx40.134 GULF OF MAINE 11471
involvingthe granting of long-term rights to resourcesin designated sites
on Georges Bank.
367. The general nature of the geophysicalpermits relied upon by
the United States is apparent both from Annex 40 to the United States
Memorial and froma series of permits providedto Canada by the Agent
of the United States under cover of a letter dated 20 January 1983".
They were temporary permits for survey programs that generally could
be completed in a matter of months, and involvedno sustained exercise
of jurisdiction. Annex40 to the United States Memorial showsthat the
workauthorized under al1the permits listed has been completed,and the
permits accordingly have no continuing validity. Geophysical surveysof
the kind authorized involveno fixed operations and seldom require any
contact with the sea floor. The permits weregeneral exploratory authori-
zations, each of them covering vast portions of the continental shelf -
in most cases, stretches of hundreds of nautical miles in length. They
conferred no rights or interests in the resourcesof the area surveyed.
368. Canada has not been providedwith survey reports or other
documentation enabling it to verify the extent to which these surveys
may in fact have extended intothe disputed area, or the overall context
of the operations.The Agent of the United States, however,at Canada's
request, hastransmitted to Canada a number of geophysicalsurvey per-
mit~in addition to the "sample" permit reproduced in Annex 40. Even
though the United States has claimed that survey operations extending
to the "Northeast Portion of Georges Bank" were carried out under each
of the permits listed in Annex 40 to the United States Memorial, the
maps attached to some of these permits clearly indicate that the author-
ized area did no! in fact extend into the disputed area". Others applied
to areas as broad and vaguely defined as "the Atlantic Ocean . .. off al1
States from Maine to and including South Carolina"". Of the survey
permits issued before the United States reserved its position on the
boundary in November 1969, onlythe "sample" permit appears on its
face ta authorize operations extending into the part of Georges Bank
claimed by Canada. In some cases, the survey area covered by the per-
mits supplied to Canada lies well to the west of Georges Bank in its
entirety". In several instances the documentation provided is wholly
inadequate to permit a determination to be made of the area covered by
the permitL5W . hat is certain, on the other hand, is that the evidence is
inconsistentwith the statement in the United States Memorial indicating
that United States geophysical surveys of Georges Bank beganas early
as 196416.
369. Furthermore, the suggestion that the United States author-
ized surveys extending into the area on the Canadian side of the
" The letter was addressedta the Registrarof the Court,with a capy ta theforent
Canada.
'lCounter-MernoriolAnnexes, Vol. V, Anner 73. PermilsE6-75 and E3-67.
''Counter-MernoNol, Annexes,Val. VAnner 73. PermitE3-68.
" Counter-Mernorial,Annexes,Vol. VAnnex 73. PermitsE4-64and E6-75.
l5 Counier-Memoriol.Annexes,Val.V, Anncr 73. PermitsEl-66, €3.68 and €4.69.
l6 UnitedStates Mernoriol.p. 58, para.93. 11481 COUNTER-MEMORIALOFCANADA 135
equidistance line beforethe United States reserved its rights in this area
is contrary to formal representatioos made to Canada at that time.
When the United States first questioned Canadian jurisdiction in the
Georges Bankarea on 5 November 1969, it informedCanada that it had
nevcr-authoriled mineral exploration or cxploiiation in this area. The
Cnitcd States aide-mémoireof that date said in pxt:
"The Governmentof Canada bas already issuedexplorationper-
mits for the northern portion of the Georges Bank continental
shelf. The United States is concerned that, pending settlement of
the boundary question, substantial investment in exploration and
exploitation of the area could.greatly increase the difficulty of
negotiating a satisfactory boundary. For this reason, the United
States has refrained from aufhorizing mineral explorafion or
exploitation in the area"." [Ifalicsadded.]
It was on this basis tbat Canada was urged to impose a complete
moratorium on explorationand exploitation in the Gulf of Maine area.
370. In only onecase before the 1970s didCanada becomeaware
that a geophysical survey carried out by a private United States com-
pany had in fact intruded into the Canadian portion of the Bank.
(This is thesame company referred to in the sample permit in Annex 40
to the United States Memorial.) The company itself brought the matter
to the attention of the Canadian Government, but without any reference
to any permit or authorization from the United States authoritiests.
Significantly, the chart attached to the letter from the survey company
@ [Figure321clearly showsthat the equidistance line was respected bythe
company except for a few tentative forays into the Canadian zone. As
was stated in the Canadian Memorial, the company was promptly noti-
fied by the proper authorities of its obligationsunder Canadian law with
respect to that part of the survey undertaken in the Canadian portion of
the Gulf of Maine area19.A similar course of action was followedin the
few subsequent cases - al1of them during the 1970s - where Canada
became aware that exploratory surveys not authorized by Canadian law
had intruded into areas under Canadian jurisdiction, and the subject was
dealt with in formal diplomatic correspondence between the Parties in
1974z0.Only one other United States geophysicalsurvey in the Georges
Bank area came to the attention of the Canadian authorities before the
1970s,and in this case the equidistance line appears to have been strictly
observedas a line of demarcation throughout the operations2'.
" ConadinnMemoriol. AnnexerVal. IIAnnex 13.
ConodionMernorial.AnnexesVolumeII, Annex50.
IVConodionMemoriol,p. 98. para.219.
m CnnodionMernorialpp.98-99, para.220.
Sketch mapillustratirtgseismicpragramcarriedout by HumbleOil in 1966. attached
tolctterof 28 September1966 from ChevronStandardLimitedta the Chief, Resource
Management Division.Dcpartment of Northern Affairs and National Resources.
Counter-Mernorial.AnnexeVol. V,Annex74.138 GULF OF MAINE 11511
here, as elsewhere in the account given by the United States of the his-
tory of relations between the two governmentson this matter, the differ-
ences between the Parties are matters of interpretation and commentary
more than of factual accuracy.
377. The United States Memorial is so highly selective in ils
presentation of the chronology of the events surrounding the Canadian
administration of eastern Georges Bank during the 1960sthat a brief
recapitulation is in order. In essence, the sequence of events was as
follows:
(a) From 1964,Canada issued oil and gas permits for Georges Bank,
conferring exclusiverights on permit holders for specifictracts, for
renewableterms of six years (this has since been extended in light of
the dispute), and conferring productionrights upon conversionto a
lease al the option of the permit holder. These permits were given
widespread publicity, includingtheir publication in maps that have
always been available to the public al offices of the Government of
Canadaz9.
(b) On 1April 1965,the United States Bureau of Land Management of
the Department of the Interior requested informationon the location
of Canadian oil and gas exploratory permits in the Gulf of Maine
area. This information was requested for the specific purpose of
locating the permits in relation to themedian line defined in Article
6 of the 1958 Geneva Conventionon the Continental Shelf: Canada
promptly responded on 8 April 1965, enclosing detailed maps
showing the location of Canadian oil and gus permits off both the
Atlantic and Pacific coasts, as well as a sketch map clearly showing
theareas under permit on GeorgesBank'o.
(c) On 14 May 1965, the United States Department of the lnterior
responded by a letter requesting that Canada check the locations of
ils permits that approached submerged lands under United States
jurisdiction,inasmuch as "the location of a median line might be
subject to different interpretations". The letter made il clear that
there was no disagreement on the applicability of the equidistance
method itself, but that there might be a misunderstanding with
regard to "the elements positioninga median line3'".
(4 The CanadianGovernment replied by letter of 16 June 1965,assur-
ing the United States thatit had used the median line, constructed
in accordance with the equidistance principleas defined in Article 6
of the 1958 Conventionon the Continental Shelf, and explaining the
grid system used by Canada in this regard".
(e) On 30 August 1966, a letter from the United States Embassy in
Ottawa to the Canadian Government was answered at the senior
ConodionMemorinl,p.92, para.203.
CanodinnMemoriol. p. 93, paras. 206-2CanodionMernoriol. AnnexesVol. III,
Annexesl and 2.
j' Conodion Memoriol, p. 94, para. 208Canadian Mernorial. Annexes,Vol. III,
Annex4.
" Conodion Memoriol, p. 94, para. 208Canadion Mernoriol. Annexes,Vol. III,
Annex6. 1152-1531 COUNTER-MEMORIALOF CANADA 139
diplomatic level, by way of a letter from the Canadian Under-
Secretary of State for External Affairs. This letter restated
Canadian Government policy respecting theuse of the equidistance
method in the GuIf of Maine area. Attached to the letter
from the Under-Secretary were a map and index providing al1
available information concerning the permits issued in this area.
including those issned up to the equidistance line on Georges
Bank" [Figure 331.
V) During the next several years, the United States continued to accept
Canada's exercise of jurisdiction up to the equidistance line on
Georges Bank.
(g) A United States aide-mémoireof 10 May 1968 proposed discussions
on the "exact location of the boundary" in the Georges Bank area,
but indicated no objection to the use of the equidistance method in
this area. The proposal was accompanied by an invitation to deline-
ate the boundary as well in the area off the Strait of Juan de Fuca
on the west Coast of North America, where the United States
has always adhered, and continues to adhere, to the use of the
equidistance method".
(h) It was not until 5 November 1969 that the United States notified
Canada, by way of an aide-mémoire, that it had decided no longer
to recognize the validity of Canadian permits for any part of
Georges Bank and reserved its rights with respect to that area. No
formal claim was put forward to accompany this general reservation
of rights'l.
Clearly, by no later than April 1965, the United States Government had
received an unambiguous indication that Canada used the equidistance
method in determining the limits of its offshore jurisdiction in the Gulf
of Maine area, and had also received maps showing the exact location
and the holders of the offshore oil and gas permits that Canada had
issued up to that time on Georges Bank. Further, the correspondence
clearly indicates that the United States Government acquiesced in and
thereby recognized the equidistance principle as a legal method, and no
exception was taken to the appropriateness of this method in the particu-
lar circumstances of the Gulf of Maine area. No protest resulted either
from the initial correspondence with the Department of the Interior or
from the subsequent letter and transmission of a detailed permit map
from the highest Canadian diplomatic official. This situation continued
for several years, during which time Canada continued to exercise juris-
diction and to issue further permits in reliance upon its communications
on this matter with the United States Government.
378. The legal implications of the pattern of conduct of the
United States have been set out in the Canadian Memorial at some
" ConadionMemorial, pp.94-96,para. 210;CanodinnMemorinl. Annexes,Vol. 111,
Annex 8.
Y ConndionMemorinl, p.96. paras. 211-21ConndionMemoriol. Annexes. Vol. III,
Anner II.
" Cenodion MernoNol, pp. 96-97,paras. 214.215:Conodian Mernorial, Annexes,
Vol. IIAnnex 13.140 GULF OF MAINE il541
Length16a ,nd there is no need ta review the matter extensively at this
juncture. Canada, however, wishes ta recall the words of Professor
Hersch Lauterpacht that were quoted in the Canadian Memarial". In
underlining the importance and far-reaching effect of a failure to pro-
test, ProfessorLauterpacht said, in part, that the legal effect attached ta
such a failure:
". . . is not a mere artificiality of the law. It is an essential require-
ment of stability - a requirement even more important in the
international than in other spheres; it is a precept of fair dealing
inasmuch as it prevents states from playing fast and loose with
situations affecting other~'~.. ."
Further, the developmentof the law of the continental shelf and of the
exclusiveeconomiczone, and the intensificationof maritime activity that
has accompanied these legal developments,have taken place at a greatly
accelerated rate by historical standards. In this framework, it becomes
al1 the more vital that States should act promptly in challenging any
claims or activities of their neighboursthat they find themselves unable
to accept.
379. Acquiescence - consent evinced by inaction - has been
accorded particular importance in the law of maritime boundaries. The
Court noted in the Tunisia-Libya Continental Shelfcase that the Tuni-
sian ZV4S0 line could not be regarded as decisive preciselybecause it
had never been accepted by Libya; similarly, there could be no assump-
tion of acquiescenceby Tunisia in the due north line prescribedin Libya
by its Petroleum Regulation No. I of 195519.In contrast, what gave
legal significance to the perpendicular line from Ras Ajdir was the
"silence and lack of protest on the side of the French authorities", and
later the mutual acquiescenceinvolvedin the use by the two parties of a
26"line in the granting of petroleum concessionsa.A similar approach is
evident in the Anglo-French Continental Shelfaward in its treatment of
the legitimacyof using Eddystone Rockas a basepoint. Forthe tribunal,
what was decisive wasthe French acceptance of such use under the 1964
European Fisheries Convention4'.
380. In sum, there are two fundamental points that emerge
beyond any doubt from a review of the conduct of the Parties with
respect to the continental shelf in the Gulf of Maine area. The first is
that Canada is alone in having granted legal interests ta private compa-
nies in the resources of the continental shelf of eastern Georges Bank,
and these resource rights,or rights derivedtherefrom, remain outstand-
ing eventoday. The second is that from 1965until the end of the decade
l6ConodianMernoriol,pp. 159-180,paras.385-427.
'7ConodionMernorial,pp. 172.173. para.413.
JEH. Lauterpacht:"Savercigntyovcr SubmarineAreas."British YeorbookofInterno-
iionoiLow,Vol. 27, 1950.pp.395-396.
I.C.J. Reports1982p.68. para.90.
0 I.C.J. Reports1982p. 69, para.92.
flAnglo-French ContinenloShelfaward, pp.67-76. paras.121-144il551 COUNTER-MEMORIALOF CANADA 141
the United States clearly acquiesced in and recognized the exercise of
Canadian jurisdiction with respect to what is nowthe disputed portionof
the Gulf of Maine area and the use of the equidistance method.
Section III. The Conduct of the Parties Indicates the Equitable
Nature of Canada's Claim
381. The entire record of the administration of the continental
shelf in the Gulf of Maine area and of the dealings between the Parties
on this subject, as set out above and in the Canadian Memorial, has a
dual aspect. In the first place, it constitutes a recognitionof and acquies-
cence in Canada's jurisdiction over the continental shelf of eastern
Georges Bank,and the basis of an estoppel.In the secondplace, this pat-
tern of conduct is equally significant as a relevant circumstance in the
determination of a single maritime boundary in accordance with equita-
ble principles. In this regard, the conduct of the Parties with respect to
the continental shelfisjoined and reinforced by an equally decisivepat-
tern of conduct with respect to the fisheriesof the relevantea.
B.~HÉ1979 AGREEMEN TN EASTCOAST FISHERY RESOURCES
382. The conclusion ofthe 1979Agreement on East Coast Fish-
ery Resources4'represented the culmination of one of the most intensive
diplomatic efforts in the history of Canada-United States relations. The
length and meticulous detail of the agreement bear witness to the scale
of the effort. The significance of the agreement in the context of the
Gulf of Maine boundary dispute is self-evident:it was developedas an
integral componentof the negotiations aimedat a comprehensiveresolu-
tion of the boundary dispute, in tandem with the negotiations conducted
on the lineitself, and it was concludedas part of a single"package" that
included the Special Agreement for the settlement of the boundary. It
is the dominant feature of the entire diplomatic history of the dispute,
and the best available evidence of how the Parties approached the real
equities in issue.
383. As significantas the detailed provisions ofthe 1979fisheries
agreement are the basic assumptions and principles that underlie those
provisions. First and foremost among them is the unquestioned assump-
tion throughout the negotiations that the contemporary realities of the
fishery should prevail and should be respected. The negotiation of the
quasi-permanent quotas for Georges Bank fish stocks proceeded
throughout on the basis that recent performance - but not transitory,
short-terms trends - would govern. 50th sides agreed on this basic
approach; so much so that it was simply taken for granted. Canada gen-
erally favoured quotas based on average catches over a relatively short
ConodionMernorialAnnexes,Vol.1,Annex20.142 GULFOF MAINE 11561
period, such as the last five years leading up to the negotiations. The
United States argued for a longerhase period,starting from the position
that it ought to extend as far as 20 years back. The outcome is some-
where between the two, in the order of a little more than ten years. This
by itself, of course, represented a reductionin Canadian entitlemeots
in comparisonwith Canada's recent catches and would havearrested the
trend of steady growth that characterized the Canadian fishery in
the years preceding the 1979 fisheries agreement. It was never once
suggested that obsolete patterns barely within the memory of today's
practising fisherman should be taken into account.
384. Equally important, of course, is the principle of cooperation
in the management of fisheries, and especially the fisheries of Georges
Bank, that underpins the whole 1979 Agreement on East Coast Fishery
Resources. Here, the principle was made explicit in the October report
of the special negotiators, formally approved by hoth governments, that
provided the guidelines within whichthe 1979 fisheries agreement was
negotiated". The principles set forth in the United States Memorial
stand in total contras1 to those the United States expressly endorsed
jointly with Canada in the later stages of the diplomatic history of this
dispute. As the State Department Environmental Impact Statement on
the Agreement put the matter: "The major premise underlying the
Fisheries Agreement is that stocks used by two or more nations can be
protected through a close partnership in cooperative management and
regulation4'."
385. The 1979 Agreement on East Coast Fishery Resources
granted both the Parties entitlements to a wide variety of commercial
fish stocks on Georges Bank. Afew of the major entitlements accorded
to Canada have beenoutlined in the Canadian Mem~rial'~.By far the
most important, of course, was the entitlement to nearly three-quarters
of the scallopsin subdivision5Ze - and a correspondinglymuch higher
percentage of the scallop resources of eastern Georges Bank, wherethe
Canadian fishery is carried out. Accompanying the entitlement was
Canada's primary management authority for the scallops of the entire
Bank. In the Grisbadarna award, the tribunal proceeded on the basis
that it should assess the real equities of the area in terms of the lobster
fishery, which, it noted, was "much the most important fishing on the
Grisbadama banks ... the very thing that givesthe banks theirvalue as
fisheriese". In this respect, if in no other, there is an almost exact
analogy with the fishery of eastern Georges Bank, forhere it is scallops
that give the Bank much of its special value.The Canadian dominance
of this particular fishery as confirmed by the 1979 Agreement on East
'jConndionMemorioi.Annexes. Vol.II,Anncx36.
Drofl EnvironmenIo1Impoci Sroremenonthe Agreemenrberweenrhe UniredSrores
and Conodoon East Coast Fishery Resourcer.Washington, UnitedStates Department
of State,ril 1980.p. 7; Counrer-Mernorini,Annexm, Val. V,Annex75.
45ConodionMemorioi, pp. 113-114, paras.268-270. A generaldescriptionof the agree-
ConodinnMemorid, Annexes. Vol. Annex 20.-276, and the tex1 is reproducedin full in
J.B.Scott. ed.:TheHagueCourrReporrs,1916,p. 130.il571 COUNTER-MEMORIALOF CANADA 143
Coast Fishery Resources, and the great economic dependence of
Canadian coastal communitieson this resource, cal1for a corresponding
recognitionin the determination of the maritime boundary.
386. The 1979 fisheries agreement gives a clear expression to
Canada's interest in Georges Bankas a whole. It is for this reason that
Canada insisted upon, and obtained, the right to fish for practically al1
its entitlements throughout the Bank, in both the disputed and the undis-
puted portions. Two specificprovisionsillustrate the geographical extent
of this interest with particular clarity. One of them is among the most
important in the entire agreement". It designates the exact area in
which Canada was to have been vested withprimary management
authority for scallops.That authority was to have extended over the full
length of Georges Bank, as far Westas longitude 6g030'W, reserving
primary United States authority in the Great South Channel and other
adjacent grounds at the western end of subdivision 5Ze. The agreement
also precisely defined the areas in which the fishermen of each Party
were to have been entitled to fish for herring, a resource that in the
immediately precedingyears had been harvested almost exclusivelyby
overseas fleets". Again, longitude 680301W was used to designate the
limit of the area in which Canadians were to fish at the western end of
Georges Bank. For the United States fleet, the limit was to have been
longitude 66'W at the eastern end of the Bank.
387. The 1979 fisheries agreement, as is indicated in the
Canadian Memorial, was predominantly a Georges Bankagreement.
The United States describes it as a "regime to govern east Coastfishery
resources extending from Cape Hatteras to Ne~foundland'~". This
description does not give the Court an accurate picture of the true char-
acter of the agreement. As the Canadian Memorial has pointed outS0a ,l1
the stocks that wouldhave been subject to full or qualifiedjoint manage-
ment by the Fisheries Commissionare stocks that occur on Georges
Bank. The agreement covered other stocks only in an incidental and
ancillary manner, and these non-Georges Bank stockswould have been
largely excluded from the elaborate joint management scheme set up by
the agreement. According to figures in the Environmental Impact State-
ment on the agreement, prepared by the Department of State in accord-
ance with United States law, the potential annual value of the agreed
entitlements conferred on both countries with respect to stocks that
range significantlyinto or across the boundary region - that is, Georges
Bank - was about 97 percent of the total value of al1entitlements under
" Annex Bta the agreement.ConodionMemoriolAnnexes,Vol.1,Annex20.
'6 Annex B ta the agreement.ConodionMernorioAnnexes.Vol. 1,Annex20,Art. 3(d)
underthe heading"AtlanticHerring"..
UnitedSrores Mernoriol.97,para.161.
" CnnodionMemoriol, p.112,para265;p. 114para.271.144 GULF Of MAINE [issl
the agreement". One need onlyperuse this EnvironmentalImpact State-
ment - even the introduction alone - or the congressional testimony
given bythe United States special negotiator,to seehow overwhelmingly
the ioint manaeement and sharing of Georees Bank stocks dominated
-
the intire 1979zsheries agreemenF2.
388. The United States Memorial has largely ignored the 1979
fisheriesagreement and the agreed principlesin the 1977October report
of the special negotiatorsthat led to its conclusion.When it does refer to
this agreement, it is to recount with apparent approval the objections
that were voiced inthe course of congressional hearingss3.The account
at no point recalls the unequivocal support given to the agreement, in
both its principles and its detailed provisions, bythe United States
Administration, and the strong endorsementsgivento it by the President
and the Secretary of State of the United States. One would think, to
read the disapproving account of the agreement in the United States
Memorial, that it had been negotiated, concluded and signed by a
foreign governrnent.
389. While ignoring the substance of the matter, the United
States has resorted to a number of contentionsabout issuesrelated to the
1979 fisheriesagreement that are quite impossibleto reconcile withthe
record. For example,Canada was fully willingto accept the maintenance
of a United States fishery in the undisputed Canadian portion of the
Gulf of Maine area, and the 1979 agreement therefore provided for
long-term United States fishing rights in these waters5'. It is solely
because the United States failed to ratify the agreement that United
States fishing practices in these Canadian waters - interrupted only
temporarily in 1978 pending further negotiations - have now been
brought to a halt. In ihe circumstances, 3 is truly remarkable that the
United States should imoute to Canada a refusal to continue reci~rocal
fishing,and an "intentioi to exclude the United States from itslasi fish-
eries off the Coastof Canadas5".Similarly, the United States Memorial
" Drqft Environmentnilmpoer Storemenron the Agreementberweenthe UnitedSlotes
and Conodo on Ea~rConsrFisheriesResorrrcespp. 116-124. The United States enti-
tlements ta stocks located primarily in the undisputed Canadian zobeworth
U.S.$7.7 million peryear. while the equivalent Canadian entitlemenbeworthd
stocks (al1of them occurring on Georges Bank), United States entitlements would benry
warth U.S.$Z00.9 million a ycar, and Canadian entitlements would be worth
U.S.$126.6 million a year. Total: U.S.$327.5 million. This las1 figure constitutes
96.5 percent af the total annualvaofentitlements under the agreement for both
sides (U.S.$339.4 million). Counrer-MemoAnnexes,Vol. V, Annex 75.
" Prepared Stalement of LloydN. Cutler, in United States-Canadian Fishing Agree-
ments:Hearings bcforethe Subcommitteon Fisherics and Wildlife Conservation and
the Environment, Committee on Merchant Marine and Fisheries. United States Hause
of Representatives, 96th Congress, 1st Session, 22 lune 1979, p. 41; Canaàian
Memorial.Annexes,Vol. IIAnnex 44.1,p.344.
" UniiedStntes Memoriai,p. 97, para. 162.
" See Annex C to the agreement, paras. I and 2 under the headings "Atlantic Cod",
"Haddock" and "Atlantic Redfish" (cxcept para. 10); ConodinnMemoriAnnexes,
Val. 1,Annex 20.
" UnitedStates Memoriol.p. 176.para. 297.11591 COUNTER-MEMORIALOF CANADA 145
contends that differences berween the fisheries management approaches
of the two States made it "im~ossible" for the United States to acceot
the agreement its executive had signed and commended to congressi6.
Yet the management principles codified in Article X of the agreement
were purposely designedto reflect the provisionsof the United States
Fishery Conservation and ManagementAct of 197~5~ i' every important
respect.
390. The treaty was never put to a vote in the United States Sen-
ate and, contrary to the suggestionin the United States Memorial, there
was never a definitive "conclusion" in that bodv". Nor is it accurate to
suggest, as the United States Memorial has done, that there was unani-
mous or even general opposition to the 1979fisheries agreement at the
congressional hearings.There was oppositionfrom some groups and sup-
port from others. For example, the Boston fishing industry expressed
strong support for the agreementJ9,as did many sectors of the Maine
fishing industry. The National Fisheries Institute - a United States
trade association of fish harvesters, processors and distributors -
endorsed the agreement in the most unequivocalterms. It cited as two of
its major reasons that the entitlement for scallopsset forth in the treaty
wouldhave permitted the maintenance of the United Statesshare in that
fishery,and that the agreement:
". . . does provide for conservation and management of stocks in
the Gulf of Maine and Georges Bank area. and recognizes that
effective conservationand management will require cooperation
and participation by both co~ntries~~ .."
The relative strength of the supporters and opponents of the 1979fisher-
ies aereement in the United States fishine industrv is reflected in the
fact Ïhat the New England Fisherv ~anagèment ciuncil was neverable
to take a positionon ratification. ~ccordii~ to one memberof the coun-
cil, testifying before a senate committee, the New England Council
" UniredSlotes Mernoriol, pp. 206-2para.324.
fl 16United StatcsCodc.sec. 185setsout the "national standardsfor lishcry canserva-
lion and management".Thcscwerc usedas aguide in drafting ArtiXlof the agree-
ment.
'Vnired SroresMernorial. p. 97. para. 162.
'9PrcparedSiatcmcni of ThomasA. Norris. Representing the BoFishingIndustry. in
Unitcd Statcs-Canadian Fishing Agrccmcnts: Hcariny kforc the Subcommittcon
Fishcrics and Wildlilc Conservationand the Environment. CommitaneMcrchant
Marinc and Fishcrics. United States Hausc of Represcnlativcs, 96th Congress.
Anncr 76.on, 22 Junc 1979. pp. 158-160; Counrer-Mernorial. Annexes. Vol. V.
" Institute; David Bergson,Representingthe Maine Redfish Fishermen;and, Jamcs L.es
Warren. EnecuiiveDirector. Maine Sardine Council. in United Stalcr-Canadian Fish-
ing Agreements:Hearingsbeforethe Subcammitieeon Fisheriesand Wildlife Conscr-
vation and the Environment,Commitiee on Merchant Marine and Fisheries,United
Statcr Housc of Represcntativcs. 96th Congress, 1st Session. 22 June 1979,
pp. 147r157:Counrer-MernoNol.Annexes,Vol. V, Anncr 77.146 GULF OF MAINE il601
adopted this positionbecause of "fear by both sides that the other might
win a vote6'".
391. The 1979Agreement on East Coast Fishery Resources is the
most tangible evidenceavailable of how the Parties actually viewed the
fisheries equities in the present dispute. These must now depend upon
the determination of the boundary alone. And a boundary that disre-
garded the allocation of resources that the Parties themselves agreed
upon as equitable could hardly be one that brings about an equitable
result.
1.The Origin os the Dispute
392. One of the more fanciful suggestions put forward in the
United States Memorial is the attempt to link the origins of the present
dispute to the Truman Proclamation of 19456'.The intimation that in
1945 the United States claimed al1resources within a 100-fathom con-
tour of its shores, regardless of the rights of neighbouring States, and
that al1 of Georges Bank fell within that claim and was therefore
annexed - al1thk by virtue of a simplepress release that accompanied
the vroclamation - is comoletelvunfounded. It is belied bv the wordsof
the press release itself, whfch rders to this contour only & describe the
broad concept of the continental shelf as "generally" including al1sub-
merged lands within that limit6'.It is belied by the Truman Proclama-
tion, which calls for delimitation on the basis of equitable principlesand
makes no reference whateverto the 100-fathomcontour. And, finally, it
is contradicted even more plainly by the explanatory memorandum the
United States issued with the proclamation, stating that delimitation
issuescould "be left until some future time"".
393. The 100-fathom contour (a precursor of the slightly greater
200-metre isobath in the 1958Geneva Convention) figuredin early dis-
cussions on the continental shelf as a rough and ready criterion of the
shelf "break" at the edge of the continental slope. It was solely in that
context, and not as a factor bearing on the delimitation of the continen-
tal shelf betweencoastal States, that the 1945 pressrelease referred in
6' Statementof NormanH. Olsen,Jr.. New EnglandFisheriesManagementCauncil.in
MaritimeBoundary SettlementTreaty and EastCoast FisheryResources Agreement:
Hearingskfare the Cammitteeon ForeignRelations, UnitedStates Senate, 96th Con-
gres~,2nd Session, 15-17il 1980, pp. 62-71 and Counfer-Memoriol.Annexes.
Vol. V,Anner 78. See also Minutes of theNew EnglandRegianal FisheryManage-
mentCauncil,25-30June1980, p. 35Counfer-Mernorial.AnnexesVal. VAnnex 79.
UnitedSfoiesMemoriol,pp.56-57. para.89;p. 81, paras.133-134;p. 177,para.300.
XlllDeporirnenfoJSfofeBulletiNo. 327. Washington,30 Septemkr 1945.pp.484-
486;UnitedSlolesMernorial,DocurnenioryAnnexeVol. 1,Anner 3.
" "Explanatory Statemcnt on the Proper Utilizatian and Development of Natural
Resourcesof the Subsoiland Sea Bed of the ContinentalShelForeignRelorions
ofthe UnifedStores,Vol. 2, 1945, p. 150Uniied Sioies Memoriol. Doeumentory
Annexer,Vol. 1.Annex3.(1611 COUNTER-MEMORIALOFCANADA 147
passing to this contour. Significantly, United States practice and policy
~ ~ ~ne~~--~ef~~cted the use of this criterion in the delimitation of the
continental shelf. ~ot a single instance can be cited of a United States
maritime boundary or boundary claim based on the 100-fathomcontour.
The Georges Bank claim itself fails Io adhere to it as a principle of
delimitation, and at no point in the diplomatic history of this dispute did
the United States suggest that the Truman Proclamation implieda claim
to this area. Even with respect to the outer limit of the shelf, United
States practice fails to discloseany reliance on a 100-fathom contour.It
was not referred to in the original 1953 United States legislation on the
continental shelf or in subsequent amendments6'. and United States
jurisdiction haslong been exercisedover areas of the shelf offCalifornia
that are separated from the Coast by troughs more than 600 fathoms
deep. Moreover, with ils recent establishment of a 200-mile exclusive
economiczone, the United States has clearly abandoned any significance
it may have attached to the 100-fathom or 200-metrecontour.
394. Clearly then, the retrospective 1945 "claim" is a fiction,
conjured up ai this late date in order Iojustify the tardiness of the real
United States claim first put forward so many years later. The dispute
was born when a differenceof view between the Parties became evident,
and not before. This occurred not in 1945, but a quarter of a century
later after several years of Canadian administration of eastern Georges
Bank and prolonged United States acceptance of the exercise of this
jurisdiction by Canada. The artificiality of a boundary "claim" originat-
ing in 1945 is underscored by the fact that it was not for well over a
decade that the doctrine of the continental shelf ripened into positive
law. The United States itself has referred on a number of occasionsto
5 November 1969 as the date on which it reserved its rights and ques-
tioned Canadian jurisdiction in what is now the disputed area6'. The
preceding years of recognition and acquiescence cannot be conjured
away by the United States by the inventionof an assertion ofjurisdiction
that simply nevertook place.
2. The CanadianClaim
395. From the ouuet, the Canadian positionhas been marked by
consistencyand a respect for the applicable law. Beginningin the early
- -
6'Outer ConiinenrolShelf LnndsAct of 1953, Chap. 345. 67 United States Statutes at
Largc.462 (1953) (codifiedat 43 UnitedStates Code.secs.1331,et scq.): OurerCon-
tineniolShelj LandsAct Amendmenu of 1978. Public Law No. 95-372, 92 United
State~Statul~ ~al Laree629 11978) lamendine 43 United States Code. sec.1331. et
seo.):United~loies%~~o~ol.'~oe~m~nto~v~ine.&s. vil. 1.~iex 9.
M ~in;dion Memoriol, p. 125, footnotc2and Unitcd tat tDeepartmentof the Interior
legal opinionsof 1961 and 1967 discussed in F. Barry: "The Administrationof thc
OutcrContinentalShelf Lands Act." Naturol ResourcesJournal.Val. 1, 1968,pp.46-
47. (Mr.Barry wasthe Salicitorof the UnitedStates Departmentof the Interior,1961-
1968.) Nor have any of the inteinal "delimitatians"cifected for thc purposesof the
Coaslal Energy ImpactProgram refcrred to the 100-fatham contour: Counier-
Mcmoriol.Annexer, Val. V. Annex80.
6'Forcxamplc,UnitedStatesdiplomaticnotcNo. 216 of 16October1974:UnitedStates
diplomatic note of 15 May 1975; UnitedStates diplomaticnote No. 103 of 20 May
1976. ConodionMemoriol,Annexes, Vol. III.Annexes21. 22 and 32.148 GULFOF MAINE I1621
1960sand continuing through to the present day, Canada has adhered to
a single, legally recognized method of delimitation in this area. When
the Canadian claim was adjusted in 1977,it remained withinthe frame-
work of the equidistance methodand took as its basis the guidance to
the applicable law found in an impor!ant clarification of how this
method shouldbe adapted ta the requirements of particular geographical
circumstances.
396. There is an extensive diplomatic history to the Canadian
claim, both in its original and adjusted versions.The earlier stages have
already been reviewed in detail. The Canadian claim as it now stands
has an equally substantive diplomatic history. It was put forward at the
outset of the negotiationsthat led, after about a year and a half of inten-
sive diplomatic activity, to the conclusionof the Special Agreement -
the only real negotiationsthat ever took place on the boundary, forthe
meetings held in 1970and 1975were little more than exploratory discus-
sions. It was thus the claim before the United States throughout the sub-
stantive phasesof the negotiations.
397. The adjusted claim was preceded by clear and repeated
notice to the United States that Canada was notprepared to abandon its
potential interest in areas of Georges Bank lying to the West of the
"strict" equidistance line. The United States had pressedCanada to take
this decisive step, without offering any corresponding assurance of its
own.This became the central issueon the east Coastin the negotiation of
an interim fisheries agreement for 1977 (covering both Atlantic and
Pacific coasts), although it was ultimately resolvedwithout prejudiceto
the position of either Partyb8.On a series of other occasions,by protests
and other diplomatic correspondence, Canada made clear its potential
interest throughout the area of Georges Bank69.
398. In its adherence to legal principles and a consistent
methodology,Canada has carefully avoided the presentation of extreme
claims of a tactical nature. The Canadian diplomatic note of 22 Decem-
ber 1976,transmitted in the context of the publication of coordinates on
the occasion of the creation of 200-mile zones, presented two potential
deliniitationlinesthat might have beenadvanced.on prinçipiesanalogous
to those advocatcd bv the United St3tes'O.Canada nonetheless refrained
from the actual adoption of these claims, maintaining throughout its
wmmitment ta an equitable result based on legal principles and legally
recognizedmethods applied in a reasonablemanner.
" ReciprocalFisheriesAgrccmcntktween the Governmental Canada andthe Govern-
ment of the UnitedStatcs of America. Articlc XVII. ConadionMernoAnnexer.
Vol. 1,Annex 18.
6sCanadianaide-mémoire of28 April 1976:Canadianaide-mémoirof 19 Aupust 1976;
Canadiandiplamaiic note No. 329 al 27 July 1977. ConodionMernoriAnnexes.77;
Vol. 111.Annexes 31. 50.53 and 57.
'OConadionMernoriol.Annexes,Vol. 111.Anncx46. il631 COUNTER-MEMORIALOF CANADA 149
3. TheUnitedSiates Claims
399. In contrast, the current United States claim has no
diplomatic history whatever.Canada never had any hint of it before the
submissionof the Memorials. It cornesforward long after what has been
termed the "residual" critical date", the signature of the Special Agree-
ment in 1979.It is based on "principles" and a methodologyradically at .
variance with the earlier versionsof the United States claims.
400. The sequence of the various lines accepted or publicly pro-
posed by the United States is instructive. When the question first arase
and for several years thereafter, the United States accepted the applica-
tion of the equidistance method. The first United States line that sur-
faced after the United States questioned Canadian jurisdiction was the
"lobster line" of1975, about which more will be said belown. In late
1976, the United States published coordinates in connection with the
establishment of its 200-milezone7'.The line then promulgated seemsto
be made up of a series of segments joining deep points on the ocean
floor, rising and falling over the seabed like a hydrographie roller
coaster. Although this line actually allots more space to Canada in much
of the Gulf of Maine itself than does the Canadian line (thus creating
the formerly unclaimed area between points"A and "9" as shown in
0 @ Figures 1 and 2 of the Canadian Memorial), it advances farther ta the
east and closer to the Canadian coast in the Georges Bank area than
does the earlier "lobster" line.Finally, the claim devised for the United
States Memorial, and pieced together on the basis ofa completelynovel
set of "principles" and "methods", moves again much farther to the east
and fringes the inshore grounds lying immediately off the Canadian
@) coast [Figure21.The only real pattern that can be discerned is the inex-
orable progress of the United States claim toward the Canadian coast in
the Georges Bank area.
401. What emergesclearly from this haphazard collectionof lines
that the United States has advanced at various points in the history of
the dispute is simply this: the United States has espoused a claim that
cannot be expressed in terms of a legally plausible method. It cannot be
so expressed because it is at odds with legally recognizedprinciples. It is
because it is based on no other foundation than monopolythat the claim
hAsproven to be so unstable and erratic, as the United States searches
persistently but unsuccessfully for a method that will translate its
aspirations into a boundary that can somehow be reconciled withthe
requirements of law and equity.
'' G. Fitzmaurice:"TheLawandProcedureof the Internatl ourtof Justice,1951-4:
Pointof Substantive Law.BritisYearbook ofInrernotionolLawVol. 32. 1955-
1956.o. 29.
" See para.616. ,
" United States Departmentof State, Public Notice No. 506. publisFederol
RegisteVal.41, Na. 214. 4November1976,pp. 18619-1862CanodianMemorio/,
AnnexesVal. II, Annex30.150 GULFOF MAINE i1641
Section IV. The Conduct of the Parties 1s Fully Consistent with
Canada's Claim in AI1Other Respects
402. TheState activities that are primarily relevant in the delimi-
tation of an offshore maritime boundary are those carried out in a legal
context of sovereign rights and exclusivejurisdiction, as distinct from
activities thatamount to no more than the enjoyment of the freedom of
the high seas in conimon with other nations. The State activities that
meet this basic test havebeen reviewed in detail in paragraphs 361-401
and in the Canadian Memorial". They encompass the administrationof
the continental shelfand the diplomatic history of the dispute, and in the
Canadian submissiongiveunequivocalsupport to the Canadian claim.
403. The 200-mile fishing zonesto be delimited were created in
1977. Before that lime neither Party questioned the common, high-seas
character of the Georges Bank fisheries.Since 1977, each Party has
included the disputed area within its proclaimed 200-milezone; more-
over, both Parties have (subject to what is to be said below) managed
the fisheries of their own nationals and by mutual agreement have
excluded foreign fishing vesselsfrom this area. To this extent, therefore,
no decisive legalinferences can be drawn from the sovereignacts of the
two States in relation to the fisheries of the disputed area. A review of
the activitiesof the Parties in support of the high-seas fisheryof the Gulf
of Maine area before 1977 is nonethelessinstructive in viewof the posi-
tion taken by the United States on the imperativesof "single-State man-
agement". Contrary to the philosophy now advocated by the United
States, the record throughout has been one of coastal State partnership
in the management of the fisheries of the Gulf of Maine and Georges
Bank.
1. me Developmeno t fMultilateralFiiheriesAgreementsfor th Geulf
of Maine Area
404. Canada, for over half a century, has played aleading role. in
partnership with the United States, in the development of an institu-
tional framework for international fisheries cooperationin the northwest
Atlantic, includingthe entire Gulf of Maine-GeorgesBankarea.
405. The record begins withthe creation on an informal basis of
the North American Council for Fisheries Investigations (NACFI), in
1920". Canada was the main sponsorof this initiative and convenedthe
" ConodionMemorinl. pp.83-91. paras.179-202;pp.92-104, paras.203-238.
" "Exchangeal Noter concerningthe Confcrcncof Ottawa. 23 Septemkr 1920,for
Cmperation in Scientific Investigationof Deep Sa FisherieForeignRcloliom
ofthe United Stores. Vol.II. Washington. Gavcrnment Printing Officc. 1921.
pp.466-469;UnitedSlet~sMemoriol.DocumenroryAnnexes,Vol. 1Anncx 6.11651 COUNTER-MEMORIALOFCANADA 151
initial organizational meeting in Ottawa, even though full Canadian sov-
ereignty with responsibility for international relations was not attained
until 1931. In 1936, at an executive session of NACFI, Canadian offi-
cials played a leading role in an early initiative that ultimately led to the
creation of a more forma1 institutional structure, by presenting a draft
convention for the regulation of the haddock fisheries in the northwest
Atlanti~'~.Later. in 1943, Canada was an active participant al an Inter-
national Fisheries Conference held in London to consider international
arrangements for the fisheries of this area during the post-war era. The
Canadian delegation tabled a set of draft articles providing for the crea-
tion of a regulatory body. identical in concept to what later became
ICNAF, to manage and conserve the fish stocks of the northwest Atlan-
tic, including the entire Gulf of Maine area". A resolution adopted by
the conference recommended the principles set out in the Canadian draft
to the "immediate and sympathetic consideration" of the governments
c~ncerned'~.
406. When ICNAF was created in 1949, Canada was from the
outset an active contracting party, and the host government for the
organization's headquarters at Dartmouth, Nova Scotia'*.The Canadian
Government, moreover, was the principal sponsor of the more recent
Convention on Future Multilateral Cooperation in the Northwest Atlan-
tic Fisheries, establishing NAFO - the Northwest Atlantic Fisheries
Organization - as the successor to lCNAF within a framework specifi-
cally designed for the new 200-mile era80.The Canadian Government
hosted the diplomatic conference in Ottawa in 1977, provided the drafts
for consideration by the conference and the preparatory meetings, and
was designated by the resulting convention as the depository and head-
quarters government. As is noted in the Canadian Memorials', Canada
has been a contracting party to NAFO from the time of its entry into
force on 1 January 1979; the United States has not ratified this conven-
tion. As in the case of its predecessor, ICNAF, the NAFO "convention
area" includes the entire Gulf of Maine area, including Georges Bank.
407. Throughout the development of the institutional history of
the Northwest Atlantic Fisheries. the special Canadian interest in the
Gulf of Maine area and Georges Bank has been manifested on numerous
occasions. NACFI Area XXll - the area that covers Georges Bank -
l6North Amcrican Cauncil on Fishery Investigations.Procccdings. 1934.19No. 3,
Minutes of the Twenty-niird Meeting. 23-25Scptcrnbcr 1936. Executivc Sessions,
Item Nos. 2 and 14. Ottawa. King's Printer, 1939; Counrer-Memorio/.Annexes
Vol. V. Annen81.
" Final Act of the International FishcricsConference. London. 22 October 1943.
Anncx II:Counrer-Mernorial.nnexes. Vol. V. Annex82.
" FinalAct of theInternationalFisheriesConference.London.22 Octobcr1943. Rcsolu-
tion No.2:Counler-Memorinl,Annexes, Vol. V,Annex82.
" For a short period alter the conventionwas adopted. thc hcadquarterswere at
St. Andrews. New Brunswick, andbriefiy at Halifax beforc rnovingta Dartmouth.
Nova Scotia.
'OConodianMernorial.Annexes. Vol. 1,Annex9.
CanadianMernorial,p.61, imtnote 6. 152 GULF OFMAINE 11661
was identified as an area of "particular interest" to Canada in the 1931-'
1932 AnnuolReport of the Department of Fisheries, shortly after such
statistical areas were first set ups'. In ils draft convention ofFebruary
1948-a draft that led to the formulation of the ICNAF conventionas
adopted in 1949 - the United States gave recognition to Canada's
interest in the fishericsof Georges Banks'.In the annex to ils draft con-
vention, the United States proposed that both Canada and the United
States - and those two coastal States alone - should havemembership
in the panel that included Georges Bank within ils area of concern8'.
Becausethe United States also stated in a background paperto ils draft
that "countries havinga major interest in an area are best qualified to
adopt and enforce regulations for any particular area", it affirmed by
implication that Canada did indeed havea major interest in Georges
BankBJ.
408. Not long beforethe ICNAF conferencein 1949,the United
States formally proposed to Canada that a special régime shouldbe
established for Georges Bank and much of the Gulf of Maine, involving
the joint regulation of the fisheries of this area by Canada and the
United Statess6.For the remainder of the northwestAtlantic area, on the
other hand, it was suggestedthat a fisheries organizationwith more lim-
ited powerswouldsuffice. A few months earlier, at a preparatory meet-
ing on the same subject in St. John's, Newfoundland, a senior United
States officia1had proposedthat Canada and the United States might
enter into an interim arrangement for the joint control of Georges Bank,
pending the entry into force of the proposed ICNAF conventions'.But
the successful conclusion of the ICNAF convention in 1949, and ils
rapid entry into force in July 1950, made it unnecessary to pursue the
idea of a special bilateral arrangement for Georges Bank.
409. At the 1949 diplomatic conference itself, Canada again
made clear - and the other participating States fully accepted - the
special interest of Canada in the fisheries of what is now
@ ICNAFfNAFO subarea 5, which includes Georges Bank [Figure 251.
" Counter-Memoriol.Annexes.Vol. V. Annex 83.
" Counrer-Memoriol,Annexes.Vol. V, Annex 84.
''Counrer-Memoriol,Annexes.Vol. V. Annex 84.
" ProposedIniernorionolConventifor rheNorrhwestArlonric FisheriBackground
of theproposedConvenriofortheNorlhwesrAllonricprepared by the United States.
February 1948.p.Counrer-Memoriol,Annexes,Vol. V, Anner 84.
" Letter No. 6 al 7 January 1949 from ~ulian F. Harrington. "Amcrican Minister", Io
thc Sccretary of State for External Aflairs. Canada had requested a postponement of
the Washingtononference in order to first reaolve complications arising out of the
cniry of Newfoundland into theCanadian federation in 1948. The United States was
unwilling 10support this proposal,but suggestcd that the difficulties might be resolved
if joint Canada-United States regulaiions were provided for subarea 5 (which they
referred10as "area 4" in light of the terms of thc draft under discussion ai ihat lime).
Memoriol. AnnexesVol. V, Annex 85.emaining portions of the convention area. Counier-
" Notes of a meeting heatSt. John's, Newfoundland, on 14-16 Iune1948, between
made byna United Stales representative who acted as chairman of the meeting.n was
Counler-Memoriol.AnnexesVol. V, Anner 86.t1671 COUNTER-MEMORIALOF CANADA 153'
The followingexcerpt from the proceedingsof the twelfth sessionof the
conference, at which the participating States discussed the question of
the national composition of the panels set upfor each of the subareas
of the convention area, shows how unequivocal this assertion and
acceptance of Canada's interest was:
"MR. BATES (CANADA): ... If we refer only to the areas
fished by Canada pioper the
areas in which we fish intensively
noware Areas 3, 4, and 5 and we
would claim representation on
these becauseof contiguity . . .
MR. CHAPMAN (CHAIRMAN): That is 3, 4 and 5? Doesn't that
apply also to 2? 2 is the Labra-
dor area.
MR. BATES (CANADA): Yes. Our Canadian fishing in
Labrador is minor, and 1 am
assuming that willbe covered by
the Newfoundland claima8."
Neither the United States nor any other participating State at the con-
ference commented on this exchange. (The Chairman, Mr. Chapman,
was a leading United States fisheries official.) As is noted in the
Canadian Memorials9, Canada and the United States were the sole
charter members of panel 5. This membership in panel 5 reflected the
dual criteria set out in Article IV of the ICNAF convention, which
stipulated that only those States with "current substantial exploitation"
of the fisheries of a subarea, or with a "coastline adjacent to" the
subarea, wouldbe eligiblefor member~hip'~.
2. TheHistory and Purpose ofthe Areas Delineated UnderMultilateral
FisheriesAgreements
410. The United States Memorial has relied uponthe configura-
tion of the statisticalreas informally developed by NACFI at a 1930
meeting, and continued in modified form as "subareas" of the ICNAF
convention area9'. The significance the United States attaches to the
lines dividing these areas does violence to their original purpose and
disregards the legal context in which they were adopted. These zones
were products of the high-seas era, and were designed forthe sole
purpose of facilitating international cooperation in the context of
multilateral fisheriesagreements.
411. The NACFI grid, of whichthe ICNAF system is the succes-
sor, was originally intendedas a simple extension of the statistical areas
ConadionMemoriol,Annexes,Vol.II,Anncx15.1,pp.288-289.
CanodionMernorial,p. 89, para. 197.
* ConndionMemorinl. Annexes,Vol. Annex 1p. 58.
91UniredSIores Memori<i/,p46 and49,paras76,78and 79:pp.209-210. para.329.154 GULFOF MAINE il681
used in the northeast Atlantic by the International Council for the
Exploration of the Sea (ICES9*). It thus formed part of a broader series
of statistical areas (designated by a single sequence of Roman numerals)
extending across the Atlantic Ocean and north to the high ArcticP3.It is
significant, therefore, that the ICES statistical areas bear no resem-
blance to maritime boundaries or boundary claims that have subse-
quently been adopted by States in the northeast Atlantic and the North
Sea. A simple comparison of the continental shelf boundaries in the
northeast Atlantic and the boundaries of the statistical areas used by
[CES as well as by NEAFC (the Northeast Atlantic Fisheries Commis-
sion) suffices to prove the point [Figure 34q. These special-purpose
lines have clearly never been taken in10 account by boundary makers,
either in the context of negotiations or in arbitral or judicial proceedings.
412. NACFl was essentially a forum for cooperation among
marine biologists, and in this context it was entirely natural that a line
separating two different fishing banks should be adopted as the dividing
line between areas XXI and XXII. As was noted above. area XXll (cov-
ering Georges Bank) was identified as an area of "particular interest" to
Canada in a Government of Canada oublication issue~ ~ ~ ~ ~ a~~er the
grid was created9'. The NACFl organization was primarily'c~nceried
with groundfish (especially cod and haddockg5),and the line appears to
reflect the scientific thinking of the lime with respect to a few of the
groundfish stocks found in these waters. It did not take account of the
migratory habits of many of the other important species of the Bank,
like pollock and the pelagic species such as swordfish and mackerel that
migrate freely throughout the area. In ils origins, therefore, the line was
based upon a very narrow spectrum of resources.
413. The NACFl and lCNAF grids were simply working tools
for the technical experts. Nothing could possibly have been further from
the minds of the experts who originally drew them up than the allocation
of sovereign and exclusive rights to coastal States. To adopt the words of
92 The praposal was first raised in NACFI by the French delegate, wha indicated that
he had been requeated by ICES to proposethat "the plan for divirion of the Cishery
waters into statistical areas, that is in onethe caast of Europe. be extended to
the Atlantic coart of North America". Minutes of the Seventccnth meetine of NACFI.
6-7 Novcmber 1936 p. 4. See alsa Ci. A. Rounsefell: ~eveloprnen; of ~isheri
Starisricsin rhe North ArloniieUnited States Department of the Interior. Fish and
Wildlife S~ervice.Scientific Rewrt No. 47. 1948o. 8: Counrer-Memoriol.Annexes.
Vol. V, Annexes 87and 88. . .
9JNACFl Chart No. I (Statirtical Areas Atlantic C&st of North America) and a map
af ICNAF and ICES statistical areas from ICNAF Statistical Bulletin, Vol. 16. 1966
(1968);Counrer-Mernorial.Anneres, Vol. V, Annex 89.
9'See para. 407 of ihisCounrer-Memorial. The use of the names "New England" and
"Nova Scotia" (later eliminated by ICNAF), merely reflects the fact that the coasts
bordering the derignaied areas werc prepanderantly (though not exclusively) thase of
New England and Nova Scotia.
Mackerel were alro among the principal NACFl interests. but were presumably not
taken into accaunt in dcvising the grid because of their migratory habits. NACFl Pra-
ceedings indicate that "cad. haddock and mackereï' were the species on which the
council conducted comprehensive investigations. North American Coiwicilon Fishery
Investigations: Proceedings, 1921-1930, Na.1. Ottawa. King's Printer. 1932. p.6:
Counfer-Mernorial.Annexes. Vol.V. Annex 90. 1169-1701 COUNTER-MEMORIALOF CANADA 155
the Court in the Tunisia-Libya Continental Shelf case in connection
with a line far more redolent of sovereign rights.these multilateral lines
were never "plotted for the purpose of lateral maritime delimitation,
either in the seas or on the continental shelf belowthemP6".The ICNAF
Convention itself states that its provisionsshall be without prejudiceto
claims respecting the lirnitsof coastal State jurisdiction overfisheriesg'.
414. The ICNAF subareas were used to divide the functions of
the organization between committees or "panels" - in other words,
between groups of States acting in concert - and never to allocate
rights or responsibilityto any singleStateP8.Canada was alwaysa mem-
ber of ICNAF panel 5 - the panel responsible for Georges Bank and
extensive portionsof the Gulf of Maine area, and in the early days of
ICNAF it wasjoined in that capacity only by the United States. At no
time were either the NACFl or ICNAF zonesused as a basis fordivid-
ing jurisdictionor authority of any kind betweenCanada and the United
States, and at no time have they been used to determine the areas in
which Canada and the United States should have accessto fish, or the
extent of their rights to resourcesas coastal States.
The ICNAF and NAFCl lines formed part of a complex
415.
system of areas and lines stretching from the high Arctic to the middle
@ @) Atlantic statesP9.The selectivityof the illustration in Figures 8 and 9 in
the United States Mernorial isolates the lines from their total context,
and disguisestheir real nature and purpose as integral parts of a much
larger system. It similarly disregards the fact that both ICNAF and
NACFl subdivided the areas they adopted intosmaller units. NACFI
divided Georges Bank into four distinct statistical units, whose bound-
aries were drawn so as to separate natural fishing concentrations to the
@ extent possible [Figure 251.These four units, with slight modifications,
are still used by the Parties for statistical purposes.As was noted in the
Canadian Mernorial, the two eastern units on Georges Bank correspond
roughly to the areas that are claimed by Canada'w. ICNAF later
adopted its own subdivisions,includinga very approximate separation of
the Gulf of Maine proper from the Georges Bankarea by means of a
@) line between subdivisions5Y and 5Ze [Figure 251.These subdivisions
" I.C.JReports1982.p. 68. para.90.
a International Conventifor the Northwcst Atlantic Fisheries (ICNAF). Ar1,
para.2; ConodianMernoriol.Annexes,Vol. 1,Annex 1.Sce alraConvcnlionan Future
CanadionMernoriol.Annexes.Vol. Annexw9.lAtlantic Fisheries(NAFO). Art. 1.para.5;
* en) Ltd.. 1974,staleral p. 177: Marine Fisheries. Bristol.Scicntcchnica(Publirh-
"For example. I.C.N.A.F. has divided the whole arca defined by ils Convention
cach case panelcrnbershipis limiicd to countrieswiih a direct interest in the
relevantreaorspecics."
Counter-Mernorial,Annexes,Vol. Annex 91.
* See the map of ICNAF and ICES statistiareasfrom ICNAF Statistical Bulletin,
Vol. 16,or1966(1968); Counier-Mernoriel.Annexes,Vol. V. Anner 89.
lmCnnodinnMernoriol.p. 63, para. 126.156 GULFof MAINE 11711
have in some casestaken on as much importance for biological,statisti-
cal and regulatory purposes as the lines between the original subareas.
But likethe larger original units,theirpurpose is pragmatic and limited.
They are devoid of legal or jurisdictional significanceand have never
once been usedto apportion jurisdiction, resources or access betweenthe
coastal States of the Gulf of Maine area.
B. FISHERIER SESEARCB HEFORE THE EXTENSIO ONFCOASTA LTATE
FISHERIEJS URI~DICTION
416. The extent and importance of Canada's fishery on Georges
Bank has been dealt with at length in Chapter IV and in the Canadian
Mem~rial'~'.Throughout the period that preceded the extension of
coastal State jurisdiction, the Government of Canada conducted scien-
tific research in support of this vital economic interest. Canada has
described this substantial contribution to fisheries research on Georges
Bank in its Memorial"". Yet the United States has endeavouredto con-
vey an utterly different impression ofthe scale of this effort, intimating
that Canadian research in this irea before the extension of jurisdiction
was practically insignifi~ant'~. he contradiction is explainedby a selec-
tive - and mmetimes erroneous - presentation of the evidenceby the
United States, and especially by a gross distortion of the geographical
frame of reference.
417. Canadian research work on the fisheries of the Gulf of
Maine and Georges Bank goes far beyond the list of documents submit-
ted by Canada to ICNAF, on which the United States appears to have
based its conclusions. Canadian research on groundfish, beginning long
before World War II, was vital to the development of international
regulatory programs on Georges BankcM. It was the initiative of
Canadian researchers wbich led to the discoveryof commercial quanti-
ties of adult herring on Georges Bank - a stock that provided the larg-
est Georges Bank fisheryby volume during the 1960~'~'M . ost of the
fisheries research on the large pelagic speciesin the northwest Atlantic
- particularly swordfish and bluefin tuna - has been conducted by
'O'ConodionMernoriol,pp.59-91.paras.110-202.
'O2ConodionMernoriol,pp.88-89,paras.195-196.
'O3UnitedStores Mernorial,pp.71-73,paras.124-128.
1" North AmericanCouncilon Fishery Investigations Proceedings1.921-1930, No. 1,
pp.24-26;Counler-Mernorial,Annexes.VV.Annex90.
'O*rence and Distributionof LarvalHcrring(Clupeo horengusL.) in the Bay of Fundy
andthe Gulfof Maine."ournalof the FisheriesRerearchBoardof Canado.Val. 15,
No.6. 1958.pp. 1451-1469.WhileUnitcdStates scientistswereinvolvedin the prepa-
ratioofthis study. the initiativfeorthe research andtheinnovativetechniquesutilized
in thertudycamefromtheleadCanadianscientist,S. N. Tibb.I1721 COUNTER-MEMORIALOF CANADA 157
Canadians, much of it in the Georges Bank arealW. In the case of
Georges Bank scallops, it is Canadian scientific efforts that have largely
formed the basis for the management of the resource'"". Canadian
oceanographic work in support of fisheries research on Georges Bank has
produced results of acknowledged excellence and utility'Qs.
418. The United States Mernorial's account of Canadian research
effort overlooks more than it includes. That Memorial's selective use of
ICNAF literature to support its comparisons excludes much of the work
referred to in the preceding paragraph, partly because a nurnber of
Canada's principal scientific interests in this area were pursued outside
the ICNAF framework. In its early years, ICNAF was concerned only
with groundfish. II was not until the late 1960s that serious attention
was paid to other resources, such as herring, and the commission never
gave consideration to a number of important species including lobster,
swordfish and tuna. (The latter in fact were dealt with in an entirely dif-
ferent international commission.) Although Canada carried out substan-
tial research on al1 these resources, virtually none of this work has been
included in the compilation of documents relied on by the United States.
419. Within ICNAF itself, rnoreover, Canada's scientific contri-
butions were fully consistent with ils interests in the resources of
subarea 5. The entire approach reflected in-the United States compila-
tion obscures the real nature of the scientific work that was carried.0~1
within the ICNAF framework. The relationship of the two States in
scientific research on the Georges Bank fisheries was one of a highly
valued partnership within the ICNAF organi~ation'~. From the outset,
lm Far example. the first stock assessrnent of Atlantic blucfin tuna was canducted by
Canadian scientists. J. F. Caddy: "Cohart Analyris of Atlantic blucfin tuna and esti-
mates of escapemcnt through the juvenile fishcrics under twa hypthescs of the catch-
age structure." ICCAT SCRS/74/59 Rev. See alro S. N. Tibùo. L. R. Day and
W. F. Doucet: The swordfih (Xiphias gladiur L.),ils li/e-hislorond eeonomic
imporlincc in rhe norih*,esrAilonliOttawa, Fisheries Research Board of Canada.
Bulletin No.130.1961.
'" See for example the eamprchcnrivc scallop study by N. BauScallopsand ihc Off-
shorefish~ry oflhc Maririmes.Ottawa, Fisheries Research Board of Canada, Bulletin
Na. 145, 1964.
A 1978 physical oceanography study by C. J. R. Garrett. J. R. Keeley and
D. A.Greenberg: "Tidal Mixing versus Thermal Stratification in the Bay of Fundy and
Gulf of Maine."Almosphere-Oeeon V,ol. 16, 1978, pp. 403-423. and a 1977biological
occanography study by R. W. Sheldon. W.H. Sutclifle and M. A. Paranjape: "Struc-
ture ofPelagic Food Chain and Relationrhip Betwccn Plankton and Fish Production."
Journalof lhe FisheritReseorch Board ofConado, Vol. 34. 1977. pp. 2344-2353, are
recognized as contributions of major rignificance to understanding the basis of the bi*
logical produciivity of the rcgian.
lm For example. the ICNAF record showsrhat, in 1959, the Unitcd States ICNAF cam-
missioner made the following observations on the successful partnership of Canadian
and United States scientists in the work of panel 5 (which was responsible for Georges
Bank). The minuta indicatc that theited States commissioner:
"...remarkcd that hc had been working with the Paneforncÿrly ten years and
with the mnh regulation sincc ils inccption. With this background ai crperience
he pinted out that the scientistsof ùoth member countries wers working in unisan
10solve thc problems of the Panel and that he fclt considerable confidence in their
competence eventually to solvethese problems." .
See ICNAF Report of the Mccting of Panel 5, 2 June1959. Proceedings No.10,Scrial
No. 649 (B. Proc. 459)Counler-Memoriol,Annexes, Vol. V. Anncx 92. 160 GULF OF MAINE (1751
side of the Gulf of Maine area. But Canada took frequent initiatives of
its own on manv o~,t~- ~-~-~ost im~ortant issues. includinc!the first Oro-
posalsfor catch limitationson GeorgesBank cod and her;ng1l4. Thekole
Canada fulfilledin the management of subarea 5 fisheriesunder ICNAF
was commensurate with the extent of its geographical and economic
interest in this area. Moreover,Canada's status as a coastal State in the
area, originally recognized when the ICNAF convention was first
adopted, was reflected as well in the actual workingsof the institution.
When coastal State prefcrences in the division of catch quotas were
adopted as an ICNAF practice, Canada's entitlement to such a prefer-
ence in the Georges Bank fisherieswasaccepted withoutquesti~n"~.
426. Canada and the United States sbared equal responsibility
for the enforcement of international fisheries regulations on Georges
Bank under an administrative arrangement concluded in 1970"6. It was
agreed at that time that the two coastal States should conduct a joint
enforcement patrol of closed fishing areas in ICNAF subareas 4 and 5.
Canadian Government vessels undertook approximately one-half of the
scheduled patrol on Georges Bank, alternating every secondweek with
United States vessels. Only the closed area immediately adjacent to
Cape Cod was excluded from Canadian responsibility, "because of its
distance from the other closed areas""'. This bilateral arrangement
included a procedure for requesting compliance by fishing vessels of
nations other than Canada and the United States.
427. The United States has invoked its enforcement activities
under the Bartlett Act"8 lobster program it introduced in the period
immediately precedingthe extension of fisheries jurisdiction. The infor-
mation regarding the "lobster line" provisionally adopted for the
enforcement of this measure was originally passed to Canada by the
United States Coast Guard, and not through diplomatic channels.
"' ICNAF, Twcnty-first Annual Mecting, June 1971, Proceedings No. 6 (Canadpra-
posa1for an intericodquota for subarea 5). At the 1970 meeting, Canada proposed
including division 52 which contains Georges Bank) and the formation of a Herring
Working Graup. See ICNAF, Twentieth Annual Meeting, June 1970, Cornmissioners'
Document No. 70123. As a result of this Canadian initiative. Canada and the United
States submitted a jointposal in1971 for herring quotas in subareas 45.See
ICNAF, Twcnty-first Annual Meeting, June 1971. Proceedings No. II, Appendix 1;
Counter-Mernoriai.Annexes,Vol. V, Annex 95.
"' ConodionMernorial,p. 90. para. 199.
Il6Letter of 17 February 1970 frorn Rear Admiral R. Y. Edwards, United States Coast
Guard. Chief, Office of Public and International Affairs, to R. N. Gardon, Regional
Directar of the Canadian Department of Fisheries and Foreslry, HalCounler-
Mernorial.Annexes,Vol. V, Annex96.
"' Letter of 17 February 1970 from Rear Admira1 RY. Edwards.Counler-Mernorial,
Annexes,Val. V, Annex 96.
"' Bartlett Act. Public Law No. 88-308, 78 United States Statutes al Large 194 (1964)
(formerly ccdified at 16 United States Code. sen. 1081-1085). ReprcdUnitedn
StoresMernorial.DocurnentaryAnnexes,Vol. IV. Anncr 58. Note that the dcfinitian
of "continentalhclî' in this Act refers to the 200-rnetre contour from the 1958 Con-
ventionon the Continental Shelfno1to the 100-fathorncontour apparcntly used for
@ the "lobster linc" in Figure 16 ofUnitedStates Mernorial.p. 87. to encompass
Georges Bank. il761 COUNTER-MEMORIALOF CANADA 161
Canada's opposition was nonethelessstrong and unequivocal, as shown
by the Canadian aide-mémoireof 12 September 1975'". The scheme
remained in effect for less than 15 months, until itwas overtaken by the
general 200-mile fisherieslegislation. Although this measure purported
toderive its validity from the law of the continental shelf, it is extremely
doubtful that lobsters in this area are sedentary specieswithin the mean-
ing of the Conventionon thecontinental Shelf'20.The United States, in
any event, made it clear in diplomatic correspondencethat it would not
attempt to enforce its purported lobster jurisdictionagainst Canada"'.
428. The United States has stated that there were two seizuresof
foreign fishing vessels (one Bulgarian, the other Cuban) on the "north-
eastern" part of Georges Bank pursuant to the short-lived lobster pro-
gram'22.Yet the coordinates it givesin one case are welloutside the area
claimed by Canada, and lie in the southwest part of the Bank - a fact
that suggests that the undefined expression "northeastern Georges
Bank" in United States Annex 40 respecting geophysical surveys must
be equally suspect12'.The coordinates given in the other case do appear
to be in the disputed area, at the outer edge of the Bank, but just to the
east of the equidistance line usedby Canada at the material time. These
incidents must in any event be appreciated in the context of the ICNAF
Scheme of Joint International Enforcement, under which the enforce-
ment authorities of any ICNAF contracting party were authorized -
and expected - to board and inspect the fishing vessels of any other
party tbroughout the convention areaiZ4.Accordingly, there was nothing
in the presence of the United States enforcement vesselsin any part of
the convention area or in boardings of foreign vessels that could
reasonably have been construed as suggesting an exercise of sovereign
jurisdiction.
'IVConodianMemoriol. Annexes.Vol. 1,Annex 24.
lm Thc United States initially twk the position that lobsters were na1 sedentary species
under the convention. See S. Oda: "Proposais for Revising the Conventionon the Con-
tinentalShelf." Columbia Journal of Tromnniional Law, 1968, pp. 16-17; United
Srores Mernorial.DoeumeniaryAnnexes, Vol. V, Annex 96. In discussing the status of
crustacea as natural rcsources,Oda stated:
"The following inicrprctatian given ta the United States Senate by Arthur Dean,
Chairman of the United States delegation, is relevant in this respect: 'Hence,
clams, oysters. abalone, etc. are included in the definition [resaurces'].
whereas shrimp, labstcrs, and finny fish are not.'"
12'United States diplomatic note of 1I September 1974. ConodinnMernoriaAnnexes,
Vol. III. Annex 19.
"' UnitedStoies Mernoriol,p. 85para.145.faalnalc 4.
12'See paras. 366.370.
"' Protocol 10the ICNAF Convention rclaling to Measures of Control, signed 29 Novem-
ber 1965, enlcred into forcc 19 Dcccmbcr 1969. ConodionMernoriol,Annexes, Vol. 1,
Annex 4; ICNAF Scheme of lnternational Joint Enfarcement. ICNAF, Twentieth
Annual Meeting, June 1970. Proceedings Na. 15, Appendix I; Counier-Memoriol,
Annexes, Vol. V, Annex 97.il781 COUNTER-MEMORIALOFCANADA 163
Section V. The United States Has Invoked Irrelevant State Activities
in Support of Its Claim
431. The United States Memorial has relied on a miscellaneous
collection of maritime activities and ad hoc arrangements, under the
heading "Other Relevant Activities"'". Practically al1these activities are
irrelevant in law, as paragraphs 598-606 of this Counter-Memorial will
show.They were high-seasactivities that nevercarried any suggestionof
sovereignrights or exclusivity. Most of them took place long beforethe
advent of the continental shelf régimeor the exclusiveeconomic zone,
and they bear no substantive relationship to the subject matter of the
rights and jurisdiction that are now in issue. To a considerable extent,
moreover, theyrtere the expression, notof a coastal State interest in the
relevant area, but rather of the far-ranging activities of a great military
and maritime power.
432. The charting and measurement of the high seas has never
implied either a claim of right or even the contemplation of a future
claim to sovereign rights over the areas surveyed. The motivation for
these activities has always been strategic and commercial, intended
mainly for the safe navigation of merchant and naval vessels in the
course of their worldwide voyages.Indeed, the global reach of the survey
work carried out by the United States of itself serves to show how
remote these activities really are from the subject matter of the present
dispute. Alongwith the other great maritime powers,the United States
has undertaken surveys throughout the world - including vaststretches
of the North American Coast off British Columbia, Newfoundland
and Mexico'". The idea that such activities could support a claim of
sovereignrights is audacious in its novelty.
433. The early endeavours by private mapmakers that are
recounted in the United States Memorial are even more extraneous"'.
Private mapmaking flourished from the sixteenth century onward, fos-
tered by the global exploration undertaken by the maritime powers"'.
There appears to be no instance in which this vast range of private
"O UnitedSioies Mernoriol,pp. 63-74. paras. 102-132.
"' United Statcs activity in the Atlantic. Paciiic and lndian means, off Central and South
America. Africa and the Arctic is disclosed in W. J. Heynen: Unired Stores Hydro-
grophicOfBce Manoscript Chorts in the Norionol Archives. 1838-1908. Special List
No. 43. Washington, National Archives and Records Service,General Services
Administration, 1978.Thereas a survey off Acapulco in Mexico in 1878 (p. 217);of
thecaast of Liberia in 1834-1844 (p. 219); of the Grand Banks of Newfoundland in
1880 (p. 57); ofecate Strait off British Columbia in 1868 (pp. 59-60); and of Vic-
toriaHarbaur(the capital of British Columbia) in 1891 (p. 60).
"' UnitedSroies Mernorial,pp. 64-67, paras. 104-108.
"' For example. the first Norrh ArnericonPilot (1779) and Thomas Jeffrey's West lndian
ond Amerieon Atloses (1775 and 1778) were published in England. Encyclopaedin
Brironnica.Elevenlh Edition, Vol.XVII, p. 648; Counier-Mernorial. Annexes.Val. V,
Annex 103.164 GULF OF MAINE Il791
undertakings, coveringal1the oceans of the world, has ever been relied
upon by a State to support claimsto territory or to sovereignrights over
maritime areas. Clearly the inferencesthe United States has drawn from
these private activities would produce extraordinary results if given
general application.
434. Yet, even apart from these considerations,the United States
account of the charting and measurement of the sea in the Gulf of
Maine area fails on historical grounds alone. In the early years of North
American colonization and exploration, the charting of the northwest
Atlantic and the Gulf of Maine area was dominated by the British more
than by any other nation"'. During the later colonial period,Great Brit-
ain carried out extensivecharting and survey workin the Gulf of Maine
area on behalf of itsCanadian possessions.Much of this work was based
in Canada where Imperia1 hydrographic experts weregiven long-term
postings. Indeed, a number of these officers spent the bulk of their
professional careers in Canada and became permanent residents. As
early as 1818, one of these pioneering experts - Anthony Lockwood,
Professor of Hydrography and Assistant Surveyor-General of the Prov-
incesof Nova Scotia and Cape Breton - wrote a workentitled "A Brief
Description of Nova S~otia"~". This work gives sailing directions to
Georges Bank.
435. The dominant figure of the late eighteenth century in the
charting ofthe Gulf of Maine, onewhosework retained its authority and
influence well into the nineteenth century, was Joseph DesBarres - a
naturalized Englishman with close associations with what are now the
Maritime Provincesof Canada. Indeed, he wasa Nova Scotia resident,
Governor of Cape Breton, and ended his career as the Governor of
another provinceof Atlantic Canada, Prince Edward Island. Hiswas the
firstscientificcharting of Georges Bankand his work -, originally car-
ried out for the Royal Navy - was drawn on extensively byEdmund
Blunt, the New England map publisher whose work is discussed in the
United States Mem~rial"~.
436. The real breakthrough in nineteenth century charting in the
Gulf of Maine area was the publication of a British Admiralty Chart in
1834 - Sheet V in the North America, East Coast seriesalso published
that year'". It was based in large part on the efforts of the Canadian-
based hydrographicofficersreferred to above,as wellas on an 1832sur-
vey along the full length of Georges Bankand adjacent areas from Cape
Cod to the vicinity of Cape Sable carried out for the British Hydro-
graphie Office by the HMS Blossom. Admiralty Sheet V is the first
modern chart of Georges Bank and its influencecan be traced through
its successors to modern times. United States hydrographers and map
The regional cartographicalrecord discussedin this andthe following paragraphsis
Vol. III, pp.24-34. paras.68-93. andAppendices 15-34.-Mernorial. Annexes,
"' Counrer-Mernorial.AnnexesVol. III, Appendix25.
"' UnitedStates Mernoriapp.64-67. para. 108.
"' Counrer-Memorioi, AnnexesVol. III. Appendix26.11801 COUNTER-MEMORIALOF CANADA 165
publishers borrowed from il freely, with the full approval of the British
Hydrographic Office, whose soleobjective was the safety of navigation.
437. In the late years of the nineteenth century, the United
States Coast Survey grew to become one of the world's most distin-
guished hydrographic services, as befits an expanding and vigorous mari-
time power. But it is significant that ils first chart of the Gulf of Maine
area, which remained in effect from 1857 to 1873, was based on sound-
ings taken only to the west of longitude 68OW - hardly extending on to
Georges Bank itself, although the soundings did cover much of the shoal
area in the vicinity of the Great South Channel on the approaches used
by ships trading in and out of Boston. The later charts in Annex 28 of
the United States Memorial, depicting the full record of United States
survey activity from'North Carolina to Nova Scotia, represent a credit-
able body of work; but, even setting aside the basic question of ils legal
relevance, this material simply underscores the point that there is no pat-
tern here that could possibly support the adoption of any particular
boundary or even carry any general implications about how the area
should be divided. Indeed, the first of the three charts shows United
States work off the Labrador Coast. Further, if any dominant trend can
be discerned in this material, it is that the three charts show a pattern of
activity that is considerably more intensive in the western, undisputed
part of Georges Bank than on the Canadian side of the equidistance line.
438. Responsibility for hydrographic charting was transferred
from Great Britain ta Canada in 1904. The challenge that faced the
Canadian authorities was formidable. Canada had a small population
and few naval resources, yet one of the longest coastlines in the world.
Most of this coastline was situated in northern areas that were either
unsu~eyed or else had been charted in only a preliminary way. There
was no option but to devote the bulk of Canada's limited resources to the
charting of these northern areas. Faced with this challenge, it would
have made no sense to accord priority to mere refinements of surveys
that had already been thoroughly carried out in the Gulf of Maine area
during the nineteenth century - to a very great extent by the British
and colonial predecessors of the Canadian service. The charting and
surveying of northern and Arctic waters has been vital no1 only to the
interests of commercial navigation but to the strategic security of
bath Canada and the United States as allies on the North American
continent.
439. The United States argument ignores as well the cooperative
nature of the hydrographic work that has been carried out on the North
American continent and ils adjacent waters by the Canadian and United
States governments. This cooperative tradition began in the early days of
North American surveying and charting, when the more experienced
British cartographers willingly passed on their experience to their United
States counterparts. In boundary waters, for example - especially on
the St. Lawrence and in the Great Lakes - the two countries have tra-
ditionally divided areas for surveying in10 sections that extend from
shore to shore across the international boundarv. The practice shows
how Far consider3iions of jurisdiction and wvereignty ha;e alwliys been
from the minds of ihe ofliciüls charged u,ith the conduct of ihis work. 166 GULF OF MAINE [181-1821
B. ASSISTANC TE NAVIGATION
440. The United States Memorial relies on the Canada-United
States agreement of 1964 establishing a LORAN-C position-fixing sys-
tem, and on the provisionby the United States of a variety of other aids
to navigation in the Gulf of Maine area"'. It disregards the important
contribution of Canada to the safety of marine and aerial navigation in
this area and - more important - ignores the humanitarian and com-
mercial motivesof States in providing such assistance. Canada, in fact,
providesa varietyof navigational servicesin the Gulf of Maine area that
are described in Volume III of the Annexesto this Counter-Mem~rial"~.
For example, the Canadian Coast Guard operates a number of low-and
medium-frequencybeacons along the Coastof Nova Scotia bordering the
Gulf of Maine area, providing coveragethroughout the Gulf of Maine
and Georges Bank.
441. The LORAN-C agreement is essentiallyan arrangement for
cooperation between two States, making use of stations on the territory
of both Parties and employing personnelfrom both Partiesi40.The sys-
tem - which provides coverage of the entire Gulf of Maine area, the
Gulf of St. Lawrence and the Grand Banks of Newfoundland - can
operate only through the locationof stations in both countries:two in the
United States, and one established by Canada at Cape Race, Newfound-
land. Position-fixing systemsof this nature operate on a worldwide basis,
often as cooperative international ventures'"'. States provide these
services without regard to considerations of sovereignty or jurisdiction
inorder to ensure safe and reliable position-fixing for military and
commercial navigation.
442. The United States Memoriai also invokesa series of search
and rescue agreements between Canada and the United States. It sug-
gests that the zones delineated in these operational agreements between
the Canadian Armed Forcesand the United States Coast Guard some-
howlend support to the United States claim"'. In fact, the lines used for
the purposes of these agreements are simply an ad hoc adoption of
ICA0 zones for the routing and control of aircraft and for search and
rescue, which in turn are based upon factors related to aviation. It is dif-
ficult to conceiveof a rationale more remote fromthe subject matter of
the present dispute.
443. Search and rescue regions are agreed to by States without
regard to the delimitation of zones of maritime jurisdiction. For
@ example, Figure 35illustrates the search and rescue regions in the Gulf
"' UniredSloresMernoriapp.68-70. para114-120.
Counrer-Mernoriol,AnnexesVol.III. pp. 42-46. paras. 110-121, and Appendices
inthe Gulfof Mainerea.etail and soucspectingCanadianassistanceta navigation
'" Counter-MernoNol.AnnexesVol.III. Appcnd45.
14'Farexample.Canadaandthe UnitedStateshavccontributcdfundsforthe operatian of
providea uniformposition-fixingsystemthroughautthe North Atlantic.orderto
"' UniredSroresMernoriap. 73. para129130.11831 COUNTER-MEMORIALOF CANADA 167
of Mexico. These zones obviouslyfail to correspond even remotely with
the maritime boundaries negotiated by the United States and Mexico
and by the United States and Cuba. The same lack of coincidence
between ICAO operational zones and maritime boundaries in the North
Sea is evident in Figure 348. Similarly, in the 1957 search and rescue
agreement referred to in the United States Memorial, the United States
assumed responsibility for areas comprising ICAO's Vancouver and
Gander regions - two areas to which no United States claim could
possiblybe contemplated"'.
444. It is the policy of ICA0 that the provision by a State of
search and rescue serviceswithin areas over the high seas shall not imply
sovereignty or sovereign rights over the areas concerned. The ICAO
Assemblyhas resolvedthat:
"... the boundaries of search and rescue regions, whether over
States' territories or over the bigheas, shall be determined on the
basis of technical and operationalcons ide ration^'..."
This preoccupation with operational considerations isevidenced by the
three agreements between Canada and the United States referred to in
the United States MemorialL4'I.n al1three, the parties reservedthe right
to initiate rescue operations in any area without regard to zonal divi-
sions.The United States Memorial cites 54 such incidentsattended to by
the United States Coast Guard to the east of the search and rescue line
used in the Gulf of Maine area'46.Figure 36 showsthat between January
1975andJune 1982the Canadian RescueCoordinationCentreresponded
to over 170searchand rescueincidentsintheGulfof Maine area tothewest
and south of the search and rescue line invoked bythe United States -
principally on the Canadian fishinggrounds of Georges Bank.
445. The suggestion that the provision ofsearch and rescue ser-
vices might have implications for maritime boundaries is incompatible
with the humanitarian basis of these activities and their disregard for
considerations of national sovereignty. The use of these practical
arrangements for the purpose of asserting Jurisdictional claims would
have major and unfortunate repercussions on ICAO's role in designating
search and rescue and flight information regions. Furthermore, it would
be entirely inconsistent witbthe legal assumptions clearly evincedin the
most recent international instruments designed to foster cooperation in
maritime search and rescue. Both Canada and the United States are
signatories of the 1979 International Convention on Maritime Search
and Rescue, which specifically recognizes that search and rescue
regionsagreed to by States shall not prejudice the determination of any
boundary between them"'.
UnitedSiniesMemorinl.DocumenroryAnnexes.Vol.IIAnnex35.
Counier-Memorial,AnnexesVol.IIIAppendix51, Document1.
"' UniredSioiesMemoriol,p. 73.paras.129-13UniredSioresMernorial.Docurnenfory
Annexes.Vol.IIAnnex 35.
UniiedSioiei Memoriolp.73.foatnot5.
14'Counier-Mernorial,AnnexeVol.IIIAppendix 52. GULF Of MAINE I1g41
C. COOPERATIO INNDEFENCE
446. Finally, the United States Memorial alleges that during
World War II the United States assumed responsibilityfor the defence
of most of the Gulf of Maine area148.A wartime "CHOP line is
invoked (an operational device that implied no change of command or
restriction on the deolovment of naval vessels)alone.with a line dividing
the United States and canadian "air defencc idcntiiication ,ones" in th;
Gulf o~ Maine area~~These ooerlitionalarrJneemrnts. like the others iust
considered, longantedate thépresent claims 70 maritime jurisdiction and
were made without referenceto such claims. The factors that determine
the areas of responsibility for defencepurposes are associated with rela-
tive navaland air power,the location of air and sea ports, radar facilities
and,the like. They are as far removed from the factors relevant to mari-
time delimitation as can be imagined,and their use in connection with a
maritime boundary dispute would vergeon the frivolouswere it not for
their potentiallyserious implications fordefencecooperation.
447. Futhermore, the United States allegations concerning
defence arrangements during World War II are erroneous. It is simply
not true that during the war the United States assumed "primary
responsibility" for the defence of the Gulf of Maine area, or that
Canada provided navaland air defence to a distance of only 30 nautical
miles ofits major ports'49.For over Iwo years, before the United States
entered the war at the end of 1941, Canada and the United Kingdom
patrolled and defended the North Atlantic sealanes vital to the supply of
Great Britain. In order to carry out this responsibility,Canadian naval
vessels regularly crossed the North Atlantic and conducted anti-
submarine operations at much greater distances from Canadian and
Newfoundland ports than is suggestedin the United States Memorial.
448. After the United States entered the war, the Royal
Canadian Air Force continuedto carry out patrols throughout the Gulf
of Maine area and Georges Bank,as is illustrated in Figure 37. Efficient
convoycontrol required asimilar extensionof Canadian naval operations
well beyond coastal waters. The Canadian situation reporting area,
shown in Figure 37, was an area within which the authorities in Canada
kept ships and aircraft fully informed of enemy activity. This reporting
area covered the wholeof Georges Bankand most of,the Gulf of Maine
and extended southward to latitude 40°N. As from 1939 to 1941,
escort groups based at Halifax protected the convoy routes outlined in
Figure 37 for most of 1942. Many of these convoyscut right across the
Gulf of Maine, and others moved through the heart of Georges Bank.
Indeed, far from restricting their responsibility for surface and air
patrols to the limited area identified in the United,States Memorial,
Canada and the United Kingdom undertook the entire responsibilityfor
defending these convoyroutes from April 1943.The United States con-
tribution to joint convoydefence essentiallywas limited to 1942.
UnitedStatesMernorialpp.73-74,para. 131. See alCounter-Mernorial,Annexes.
Vol.III,pp.35-41.paras.98-109,and Appendices35-44 for iurther detail and the
sourcesrcspectingCanadiandefencoperationin the Gulf of Maiarea.
"9 UniiedStotes'Memorinlpp. 73-74para.131.il851 COUNTER-MEMORIALOFCANADA 169
449. The Canada-United States military alliance that emerged
during the war years was strengthened after the end of ho~tilities"~.In
1947, a Permanent Joint Board on Defencethat had been established for
the defence of North America during the war declared that even in
peacetime al1military projectsor exercises(whether jointly conductedor
not), "are without prejudice to the sovereigntyof either country, [and]
confer no permanent rights or status upon either country"' . ..".Canada
and the United States conduct military exercises solely on the basis of
operational considerations throughout the northwest Atlantic Ocean,
includingthe Gulf of Maine area. The cooperativenature of the military
relationship isvividlyillustrated by the eventsof the international missile
crisis of 1962, during which Canadian naval and air forces based in
Nova Scotia providedthe ships and aircraft to patrol Georges Bank and
the eastern approaches to the Gulf of Maine. Their disposition in the
Gulf of Maine area is illustrated iFigure 38.
450. The North American Air Defence Agreement of 1958
(NORAD) treats North America as a singleunit for the purposesof air
defence'". It followsthat CADIZ and ADlZ - the air defence identifi-
cation zones referred to in the United States MemorialC5'~- must be
viewed in the context of this agreement for the joint air defence of the
continent. It is inconceivable,in this context of strategic arrangements
for the defence of the entire North American continent,thatthe Parties
intended the CADIZ-ADIZ zones in the Gulf of Maine area to be rele-
vant to any question of maritime jurisdiction or sovereign rights. The
most telling point, however,is that these zones (like most of the ICA0
zones referred to above) diverge radically from United States boundary
claims in each of the three other offshore areas adjacent to Canada and
the United StatesIs4.
451. Canada, the United States and their allies haveimplemented
several other such operational arrangements designed for similar pur-
poses. Figure 340 depicts the command structure of NATO in the
northeast Atlantic and the North Sea, and the maritime boundaries
agreed to by the States in these areas. It is again evident that these oper-
ational zones havebeen put into effect without regard to State frontiers
or maritime boundaries. It is regrettable that non-prejudicial cooperative
defence arrangements should now be invoked to serve national interests
of this character. The implicationsof the United States argument would
lm Counter-Memorial. AnnexesVol. III, Appendices 41 and 43.
'jCounrer-Memoriol, Annexes,Val. III. Appendix 42. Document 1.
15Counler-Memorioi. Annexes,Vol. III, Appendix 44.
"'UnitedStoresMemorinl, p. 74, para. 132.
'j4The United States uses the cquidistance rnethod in each of the other three Canada-
defence, aviation and search and rescuezones and lines established in those areas. See
United StatesPacific and Alaska" Air Defense Identification ZoUnited Sl~?tes
Memoriol, DocumentoryAnnexes. Vol. II. Annex 36; ICAO. flight information regions
and search and rcscuzones.United Stores Memoriol, DoeumentoryAnnexeVol. II,
Annex 35; NORAD air defence zonesCounler-Memorial. Annexes,Vol. III, Appen-
dix 44. Document 3.170 GULF OF MAINE il861
place in jeopardy the whole basis of collective security arrangements
among States and undermine a form of cooperationthat is fundamental
to internationalorder.
452. Insum, there can be no plausible reasonin lawor in equity
why the collection of miscellaneoushigh'seas activities and cooperative
arrangements outlined in paragraphs 431-451 should have any bearing
on the question of delimitation. It has been shownin the course of this
discussionthat State practice is incompatible with the view that ad hoc
operational lines, often adopted for purposes that are at best tenuously
related to the subject matter in issue, should be accorded legal signifi-
cance in drawing a generaljurisdictional boundary.To recall only one of
a number of equally apposite examples.the ICES and NEAFC fisheries
lines in Europe disclose no pattern of correlation with offshore bound-
aries between States [Figure 34q; and neither do the various opera-
tional lines used in other parts of the world for purposes of military
cooperationor the safety of navigation.
453. This conclusion is confirmed by a consideration of some of
the lines that have been adopted by States for the purpose of environ-
mental protection. Figure 34E shows the pollution control zones estab-
lished inthe North Sea under the.1969 Agreement for Cooperation in
Dealing with Pollution of the North Sea by OillJ'.It is readily apparent
how little connection they have to the continental shelf boundaries of
that area. Indeed, if the legal implicationsof the United States presenta-
tion were to be accepted, it would be no less logical - perhaps more so
- to lend weightto time zonesas a factor in determining the sovereign
rights of States atsea. Eastern Georges Bank is entirely on Nova Scotia
time on the basis of the meridians generally acceptedfor this purpose -
one hour east of any of the time zonesused in the United States'16.
454. But even if thismaterial were legallyrelevant in principle, it
is difficult to see how most of it could point to any particular boundary.
The entire concept of a generalized United States "dominance" of the
Gulf of Maine area, and al1 the evidence adduced in support, is inher-
ently incapable of suggesting any principle of division, much less an
equitable one, unless it be simply the principle that the United States
should be givenmore and Canada less. It is a theme that is incompatible
with the concept ofa delimitation between sovereignand equal Staies on
the basis of equitable principles. It ultimately rests on the proposition
that the greater historical powerand wealth of the United States, mani-
fested in its broad recordof maritime and naval activities, shouldnowbe
translated into a boundary that will leave it in a positionof permanent
superiority to the disadvantage of its neighbour. This cannot be what
"' 1969. B"1irh Treaw Series, No. 78. 1969. LanHcr Majesty's Slationery Oilïce,lune
1969.
Thc custarnaryrneihcd for deterrniningtirne zones would place the dividing line
between Nova Swtia andNew Englandtirneat longitude67"30'W.See NewEncy-
clopo~dio Brilannico. VIX. 1974. p. 1014:Counler-MemorioAnnexes, Val. V.
Annex 104.[in-18~1 COUNTER-MEMORIALOF CANADA 171
was envisagedby the framers of the new lawof the sea whenthey deter-
mined that al1 coastal States, whatever their power and status, should
enjoy rights and jurisdiction in their adjacent waters on the basis of
identical and uniform principles.
455. The United States Memorial lays heavy emphasis on the
Northeast Channel as a so-callednatural dividing line for human activi-
ties, and on the alleged general dominance of the entire Gulf of Maine
area by the United States. The "dominance" theme leads the United
States into a contradiction fromwhich it cannot easily escape. In the
case of aids to navigation, the United States has simplystressed the gen-
eral coverage of the area as a whole - indeed, of an area extending
beyondthe Gulf of Maine area and up the Canadian coast to Newfound-
land. When it cornes to the charting of the sea - as in the case of its
historical fisheries discussed in the preceding chapter - the United
States again asserts a "dominant" interest extending beyond Georges
Bank to BrownsBank and to other maritime areas adjacent to the coast
to Nova Scotia. In each case, the concept of the Northeast Chiinnelas a
natural barrier has entirely disappeared from view. Thus, these two
major themes of the United States Memorial are ultimately incompat-
ible and, in Canada's submission,are equally unfounded bothin fact and
in law.
Conclusion
456. The relevant conduct of the Parties is fully consistent with
and supports the Canadian claim. Canada alone has granted legal inter-
ests to private companies inthe mineral resourcesof the eastern part of
Georges Bank. Indeed, the record of continental shelf activities by the
Parties shows that the United States has acquiesced in and recognized
the exercise of Canadian jurisdiction with respect to this area and the
use of the equidistance method, thereby creating an estoppelin favour of
Canada. The conduct of the Parties with respect to the continental shelf
is reinforced by their conduct with respect to the fisheries ofthe relevant
area. Thus, the 1979 Agreement on East Coast Fishery Resources pro-
vides the most objectiveevidenceas to how the Parties have viewedthe
fisheries equitiesin the present case.While not manifesting acts of sov-
ereignty or exclusivejurisdiction, the record of coastal State partnership
between Canada and the United States in fisheries research, manage-
ment, conservation and enforcement activities, beforethe adoption of
200-mile zones, clearly demonstrates the interest of both Parties in the
fisheries of Georges Bank. Moreover,it constitutes incontrovertibleproof
of the United States' recognition of Canada's interest in Georges Bank
and of Canada's status as a coastal State in relation thereto.State activi-
ties adduced by the United States with respect to aids to navigation,
search and rescue, and defence are irrelevant and bear no relationshipto
the issuesinvolved inthis case in terms of law, time or subjectmatter.172 [l89-1911
PART III. THE LAW APPLICABLE TO
A SINGLE MARITiME BOUNDARY
CHAPTER 1
THE CONCEPT OF THE SINGLE MARITIME BOUNDARY
Introduction
457. This chapter examines the origins and the distinguishing
features of the concept of a single maritime boundary delimiting multi-
purpose zones of maritime jurisdiction beyond the territorial sea. While
the concept in this case flows from the provisionsof the Special Agree-
ment, it also haslogical and functional roots in the contemporary law of
the sea and the doctrine of the exclusiveeconomic zone. Ils distinctive
features have an important bearing onthe law applicable to thedelimita-
tion of the maritime zonesnow inissuebefore the Court.
Section 1. The Single Maritime Boundary Concept1s Rooted in the
Doctrine of the Exclusive Economic Zone
458. The concept of a singlemaritime boundary beyondthe terri-
torial sea and its immediately contiguous waters is new to international
law. This case thereforeraisesa number of legal questions that have not
yet been dealt with by the Court or by any international tribunal. As the
United States Memorial has put it: "The question before thisCourt is
one of first impression. There are no judicial decisions delimiting
between neighboringStates a singlemaritime boundary beyond the terri-
torial sea'."
459. The singlemaritime boundary brings together the newlyrec-
ognized sovereignrights and jurisdiction of coastal States in respect of
the water column and its resources, and theirearlier rights and jurisdic-
tion in respect of the continental shelf. It represents an amalgam of the
old and the new. The same is true of the rules of law for the determina-
tion of a single maritime boundary. The general principles of maritime
boundary delimitation that have been developedin other contexts must
be integrated with the specific considerationsthat flow fromthe new and
expanded character of the régime encompassed withinthe single mari-
time boundary. In Canada's view, the continuity in the law is found in
the application of the fundamental norm of equitable principles.The dif-
ferences that are indicated by the specific legal character of the new
zones, their subject matter and inherent purpose, will be examined
below.
460. The combined shelf and water column jurisdiction that
coastal States are now entitled to exercise within200nautical miles of
the Coastis the product of the deliberations of the Third United Nations
Conference on ihe Law of the Sea and it,prcdccessor, ihe "Seabcd
Cornmittee". which ultirnatclv led to a eeneral acceuiance of the conce~t
of the exclusiveeconomic zone. The new zones have antecedents that
go back long before these negotiations began - to the 1945 Truman
3UniiedSioiesMernoriap. 3, para.7.11921 COUNTER-MEMORIALOF CANADA 173
Proclamations2and to the 1952Declaration of Santiago by Chile, Ecua-
dor and Peru on the principle of a 200-mile maritime zone'. They were
foreshadowedby the recognition of the "special interest" of the coastal
State in the 1958Conventionon Fishing and Conservationof the Living
Resources of the High Seas'. But it was in the early 1970s.during the
period leading up to the conveningof the Third Conference on the Law
of the Sea, that the concept was more widely discussedand began to
take shape.
461. The eventsof that decisive period can help bring to light the
essential principles and objects of the 200-mile zone. The developing
countries, especially those of Africa and Latin America, played a leading
role throuzhout. At a session of the Asian-African Lezal Consultative
oh mit te ginearly 1972,the Government of Kenya preGnted a working
paper on "The ExclusiveZone Concept", whichdescribed the purposeof
the 200-mileexclusiveeconomiczone in the followingterms:
"Basically the purpose of the economic zone is to safeguard the
economicinterests of the coastal State in the area without interfer-
ing unduly with other States' legitimate interests, particularly in
navigationand overflightand laying of submarine cablesS ..."
Shortly thereafter, the Yaoundé Reportof the African States endorsed
an economic zone of this character, and the Declaration of Santo
Domingo by the Caribbean countries called for the creation of a
"patrimonial sea" of up to 200 nautical miles in breadth6.The Govern-
ment of Kenya later introduced a set of draft articles on the exclusive
economic zoneto the 1972 summer session of the Seabed Committee,
explaining the "strictly economic aspect"of the concept and "its impor-
tance for the economic developmentof coastal States7".
462. These seminal documents disclosea number of fundamental
themes. The first, clearly reflected in the passage referred to in para-
graph 461, is that the basic purpose of extended coastal State jurisdic-
iion is economic in nature and~stems from the special dependence of
coastal States on the resourcesof their adiacent waters. A second is thar
many of the traditional rights and freedoms of other States remain fully
' Proclamation No. 2667, Policy of the United States with Respect to the Natural
Resources of theSubsoil and Sea Bed of the ContinentalShelf, 28 September 1945;
in Certain Areas of the High Seas, 28 September 1945. United Stoter Memorinl,ies
Documeniory Annexes.Vol. 1Annex 3.
ond Regulotionron the Regime1O/~the Territoriol Seo, ST/LEG/SER.B/6,1957.
o.723.
' UnitedNotions Treaty Series, Val. 559,p. 285. Art.6, para. 1.
Asian-AfricanLegalConsultativeCornmittee.Reportof the ThirteenthSession held in
Anncx 105. 18-25January 1972, pp. 155-160; Counler-Memorial, Annexes, Vol. V,
OfJciol Records of the 27th Session o/rhe GeneralAssembly, Report o/the Commit-
NationalJurisdiciion. Doc.Supp.No. 21 (A/8721), 1972,pp.70-76. ihe Limits of
l Summary Records of the 33rd to 47th Meetings.Geneva, 17 July-17 August 1972,
Doc.A/AC.I38/SC.II/SR.3 23N4o7.mbet 1972.p. 54.il941 COUNTER-MEMORIAL OFCANADA 175
465. The concept of a single, general-purpose boundary is likely
to commend itself to the general practice of States because of its sim-
plicity and convenience.The exclusiveeconomic zoneis described in the
new Convention on the Law of the Sea as a single bundle of rights,
including those respecting the seabed and subsoil within the 200-mile
limit, and a number of these coastal State functions could not easily be
assigned to either the continental shelf or the water column in isolation
from the other. It is precisely because of this inherent logic and practi-
cality that the Parties so readily agreed upon the principle of a single
maritime boundary to delimit their sovereign rights and jurisdiction in
the Gulf of Maine area. Thus, although the single maritime boundary in
this caseis the product of the Special Agreement, the underlying princi-
ple may have a broader relevancein international law.
Section II. The Distinguishing Features of the Single Maritime
Boundary Have Important Consequeneesfor the Law of Maritime
Delimitation
466. There are a number of general features that characterize the
régimeto which asinglemaritime boundary is applicable.
(a) It is a unified régime,integrating both the seabed and subsoil and
the water column into a single bundleof rights.
(6) It is a multi-purpose régime, morevaried in its functions than the
continental shelf régimealone.
(c) It is functional in character, in the sense that it differs from the ter-
ritorial sea régimein ils restriction to a specificand finite number of
purposes.
(d) It is based upongeographical adjacency, expressed largely in terms
of a uniformdistance from the coast.
(e) Its purposes are primarily economic, centred on the natural
resources of the sea and their management and use by coastal
States.
467. The last Iwofactors are of particular importance and will be
examined in more depth in Chapter III of this part. In essence, it is
Canada's submission that both the legal basis of the coastal State title
and the purposes of the offshore rights in issue have an important bear-
ing on the applicable rules and criteria of delimitation. In the first place,
the factor of distance from the coast as the sole basisof title to a 200-
mile fishing zone or an exclusiveeconomic zone, and as an important
element in the reviseddefinitionof coastal State rights to the continental
shelf", has strengthened the role of proximity in the law of delimitation.
Further, the fundamental economic purpose of these 200-mile zones
lends a particular importance to the dependence of coastal communities
" BathCanada and the UnitedStates have used thenewdistancecriterionfor the conti-
nental shelf in interna1practiceConndo Oil andCos Act, Statutes of Canada,
1980-81-82. Chap. 81Counrer-Mernorial,Annexes,Vol. III, Chap.1.The United
States Presidential Proclamationhe ExcluriveEcanamicZone also uses the 200-
milenauticallimit forjurisdictionaverthe resofthecontinentalshelf.176 GULF OFMAINE 11951
upon the resources of adjacent areas of the sea as a relevant circum-
stance in the determination of the boundary.
468. Becausethe singlemaritime boundary is applicable to a uni-
fied régimethat integrates the continental shelf and the water column,
the doctrine of natural prolongation cannot be considered the primary
source of the applicable rules of law. The essential nature of the conti-
nental shelf as described in the North Sea ContinentalShelf cases was
that it is a "continuation of the land territory or domain"", "a speciesof
platform" physicallyextending the territory of most coastal States to the
submerged lands adjacent to their coa~ts'~.In speaking of the impor-
tance of identifying these extensionsof the land under the sea, the Court
stated that:
"... the legal régimeof the continental shelf is that of a soi1and a
subsoil, two words evocativeof the land and not of the seaI4."
Clearly, a different conceptual approach is necessaryin the case of a sin-
gle maritime boundary. Along with the role of the distance criterion in
modifyingthe concept of the continental shelf itself as a "species of plat-
form", the integrated nature of the jurisdiction suggests that natural
prolongation can no longer be regarded as. the principal expression of
adjacency and appurtenancelS.Distance from the coast has largely taken
its place.
469. The judgment in the North Sea ContinentalShelf cases
noted a specificcorrelation between the notion of closest proximity and
the integrated seabed-water column jurisdiction that obtains in the terri-
torial sea:
"There is also a direct correlation between the notion of closest
proximity to the coast and the sovereign jurisdiction which the
coastal State is entitled to exerciseand must exercise, notonly over
the seabed underneath the territorial waters but over the waters
. themselves, whichdoes not exist in respect of continental shelf
areas where there is no jurisdiction over the superjacent waters,
and over the seabed onlyfor purposes of exploration and exploita-
tion16."
There are two reasons why a composite, heterogeneousform of jurisdic-
tion pointsmore in the direction of proximity than does a single-purpose
régime. First,the relative importance of factors that are specific to any
one form of jurisdiction is diminished, and to some extent these factors
may tend to cancel each other out; on the other hand, the heightened
importance of the factors that are commonto each of the relevant forms
ofjurisdiction tends to enhance the importance of proximity. The second
reason is that a multi-purpose form of jurisdiction involves a more
I.C.JReports 1969. p31,para.43.
I.C.JReporrs 1969,p.51, para.95.
''I.C.J.Reporls1969, p. 51, pa96.
" I.C.J.Reporrs1982, p. 48, paras.47-48
l6I.C.J.Repons 1969. p. 37, para.59.[1961 COUNTER-MEMORIALOF CANADA 177
pervasiveand extensiveinterest in the areas of the sea to be delimited. It
is no longer simplya matter of isolated offshore drilling sites and spe-
cialized coastal facilities. A much broader range of interests, activities
and functions comes into play. This reinforces the notion that the areas
of the sea lyingclosest to a coastal State should normally be regarded as
natural appurtenances of that State.
470. Finally, in contrast with the general sovereignty of the
coastal State that prevails in the territorial sea, the single maritime
boundary willapply to a régimethat comprisesspecificlimited functions
- primarily those relating to the fishery and the resourcesof the conti-
nental shelf. The importance of this characteristic for the purposes of
delimitation is that it helps determine what factual circumstances are
legally relevant, and how much weight should be attached to each cate-
gory of circumstances.
Conclusion
471. The distinctive features of the single maritime boundary
régimeclearly imply that the role of distance from the coast has been
strengthened. This implication emerges from the use of a constant and
uniform distance from the coast as the primary basis of coastal State
title, and the displacement of natural prolongation fromits former cen-
tral role; itfollows too from the more pervasive nature of the interest
that an integrated shelf and water column jurisdiction mustimply. The
effect of this new orientation is not a radical alteration in thendamen-
ta1 legal principles respecting the delimitation of maritime boundaries.
But the law governingthe nature and geographical extent of the exclu-
sive economic zone necessarilyhas consequencesfor the law applicable
to the delimitation of that zone by a singlemaritime boundary - conse-
quences, that is, for the equitable principles to be applied, the circum-
stances to.be taken into account, and the criteria against which the
equity of the resultis to be assessed. CHAPTER II
EQUITABLE PRINCIPLES IN THE UNITED STATES
MEMORIAL
Introduction
472. There is no disagreement between Canada and the United
States on the fundamental norm applicable to the delimitation of a sin-
gle maritime boundary. With minor differences in wording, both Parties
have defined this norm in essentially identical terms: the basic rule of
law is that maritime boundariesare to be determined in accordance with
equitable principles,taking account of al1the relevant circumstances,in
order to achievean equitable resultl. Beyondthis point, however,there is
a fundamental difference of approach. In Canada's view,equitable prin-
ciples must be identifiedand applied - and relevantcircumstances iden-
tified and weighed - on the basis of the applicable law. The United
States Memorial. however. divorces bothequitable principles and rele-
vant circumstances from the applicable law. The circumstances relevant
to this case have already been fully discussed in Part II. This chapter
deals with the "equitable principles" proposedin the United States
Memorial.
473. Canada has emphasizedthe indivisibilityof equitable princi-
ples from the relevant circumstances of the case, and the need to assess
the appropriateness of these principles in achieving an equitable result2.
The United States, on the other hand, has advanced a series of concepts
as equitable principles thatpurport to have a universai, a prior validity
that is essentially independent of the varying circumstances of eacb par-
ticular case and the result to be achieved. In other words, the United
States has elevated a few propositionsto a level of abstract generality
that disregards the concrete factual circumstances of each situation and
the equity of the solutionthese conceptswouldproduce.
474. The four specific "equitable principles" identified by the
United States are as follows:
"... (1) principles regarding the relationship between the relevant
coasts of the parties and the maritime area lying in front of those
coasts, including nonencroachment,proportionality, and (where
applicable) natural prolongation; (2) the principle of conservation
and management of the resources of the area; (3) the principle of
minimizationof the potential forinternational disputes;and (4) the
general principle that delimitationshould take account of the rele-
vant circumstances in the area3."
It is submitted that the manner in which the United States has
attempted to use the second and third of these items as principles of
delimitation is unfounded in fact and law. Moreover, although the first
'UniredSroresMernorio/p. 139.par237;CanadionMernorial.p. 119,para.278.
ConadionMemoriol. pp. 127-128.para.300.
3UnirrdSrnresMernorial.p139.para.238.(1981 COUNTER-MEMORIAL OFCANADA 179
and last of these four items describe facths that have been recognizedin
the jurisprudence on maritime boundaries, Canada disagrees with the
manner in which they have been characterized and applied in the United
States Memorial.
475. Quite apart from the actual content of the four propositions
set out by the United States, the Court has cautioned against any
attempt to codifyequitable principlesas a series of universal rules. It has
made clear that it is futile to interpret equitable principles in the
abstract, apart from the equitable character of the solution they produce.
The Court dealt with this issue in the Tunisia-Libyo ContinentalShelf
case, where it suggestedthat, out of a broad range of principles that
potentially might be applicable in theory, it isalways necessary to apply
a criterion of selection in order to determine which of these principles
should be used for each specificdelimitation. This criterion is essentially
the usefulness of a principle forthe purpose of arriving at an equitable
result. As the Court said: "The principles to be indicated by the Court
have to be selected according to their appropriateness for reaching an
equitable result4" [Itolics odded]. It is clear, moreover,that the equita-
ble character of the result can be assessedonly in relation to the relevant
circumstances of each individual case. It is presumably for thisreason
that the dispositif inthe Tunisia-Libyo ContinentalShelfcase listed the
relevant circumstances of the case, but refrained from codifying aset of
equitable principles.
476. In the Canadian view, the United States has failed to pay
due heed to these precepts. It has divorcedthe concept of equitable prin-
ciples from any appreciation of the equitable nature of the result, as it
relates in a practical and concrete senseto the circumstances of the Gulf
of Maine area. What is in issue here, moreover,is far more than a ques-
tion of presentation or juridicallogic. It is preciselythrough this divorce
of principlesand result that the United States has attempted to mask the
extreme inequity of its claim to the whole of Georges Bank. And the
result proposed by the United States, even judged in terms of its own
conduct and the diplomatic history of the dispute, makes it clear that
there are radical flaws in the manner in which it has considered the
applicable law and has identified and applied the equitable principles
relevant to this case.
Section 1. Coastal Geography, Non-Encroachment, Proportionality
and Natural Prolongation
477. Subject to what has been said above, Canada is in agree-
ment with the importance accorded to coastal geographyin the first of
the four "equitable principles" putforward by the United States. But
there are fundamental differences in the way that Canada woulddefine
and assess the relationship of the relevant coasts and the legal conse-
quencesof tbis relationship.
I.C.JReporis 1982p. 59.para.70.180 GULFOF MAINE 11991
A. THEPARTIEA SGREE THATNATURAP LROLONGATIO 1sN
INAPPLICAB LSEA PRINCIPL E FDELIMITATION
INTHE PRESENC TASE
478. The United States has asserted that there are three "subsidi-
ary principles" that arise out of the concept of the appurtenance of mari-
time areas to the adjacent coastal State as an incident of its sovereignty:
non-encroachment, proportionalityand natural prolongation. The last of
these may be dealt with most briefly, for here Canada simply reasserts
the position it took in itsmorialJ. In sum, natural prolongation has
seldom provided a practical principleor method of delimitation of the
continental shelk and because this factor pertains to the seabed and sub-
soi1and its physical relationship to the adjacent land m-ssand not to
the superjacent waters- its relevanceis much further diminishedin the
case of a single maritime boundary. This fact is recognized by the
United States Memoria16.Moreover, recent developmentsin the law of
the sea have deprived natural prolongation of its earlier role as the sole
basis of coastal State title to the continental shelf. The United States has
indicated that natural prolongationay not be applicable in the present
case', and Canada's positions that it is not a determining factor.
B.THEUNITED STATE S ISTORT THE CONCEPT OF
NON-ENCROACHMENT
479. Non-encroachment was linkedto natural prolongation in the
dispositif of the North Sea Continental Sheif cases, and thus to the
basis of coastal State title in respect of the continental shelf as defined
by the Court in that decision8.The concept retains its fundamental
importance in the case of a single maritime boundary, but its application
is clearly affected by the fact that natural prolongation is no longer the
primary basis of title for the combined water column and continental
shelfjurisdiction to which the single maritime boundaryillapply. Fur-
thermore, the formulation of non-encroachment given in the United
States Memorial is wrong even inthe context of natural prolongation as
the sole basis of title, andt ignores the profoundly altered context in
which the doctrine must be applied to a singlemaritime boundary.
480. There is no support for the United States contention that
non-encroachment ". . . ensures that the seaward extension of a coastal
State'sjurisdiction is confinedtoose maritime areas that lie in front of
its coasts9".In fact, where non-encroachmentis governedby natural pro-
longation as the sole basisof title, the doctrine simplyvidesthat the
boundary should leave to each Party as much as possibleof those parts
of the continental shelf that constitute its natural prolongation "without
encroachment on the natural prolongationof the other". In this context,
' CanodianMernoNolpp. 123-126,par289-296pp. 130-131. pa306-310.
UniredSialeMrmoriol,p. 142. para. 245: "Naturalprolongation.as the principle
developedin regardta the continental shelfr,efersto the physicalextension ofihc land
territory a Statc inta and undsca.Thc degrceof the extensionis determincd
primarilybythephysicalcharaeterof thescabcd."
' UniredSroresMernorip. 201, pa315.
I.C.JReports 196pp.46-47. pa85:p. 53. para.IOI(C)(I) dispositif.
'>UniredSrore*Mernorip. 140. pa240. 12001 COUNTER-MEMORIALOF CANADA 181
one aspect of non-encroachment is that boundaries generally should
avoid extending the continental shelf of a State "in front of' and "close
tomthe coast of another State. Contrary to the formulation in the United
States Memorial, the first of these two criteria has never been divorced
from the second: thelaw of the continental shelf has never applied the
doctrine of non-encroachment in isolation from considerations of geo-
graphical distance and scale.
481. The United States Memorial has cited the example given in
paragraph 44 of the judgment in the North Sea Continental Shelfcases,
where the use of the equidistance method in particular geographical con-
figurations may bring about an encroachment upon a state's natural
prolongation by causing the boundary to swing out laterally in front of
its coast. This passage of the judgment refers back to paragraph 8,
where the Court explained that the two equidistance lines, "taken con-
jointly", would meet "ai a relatively short distance from the coast",
creating a triangle that would cut off the Federal Republicof Germany
from extensiveareas of the continental shelf. Thus, the United States
has overlookedthe essential element of closenessto the coast that was
inherent in the example of encroachment by "cutting off' that was dis-
cussed by the Court in 1969.
482. Closenessto the coast has been fundamental to the concept
of non-encroachment fromthe inception of the continental shelf régime.
Judge ad hoc Jiménezde Aréchagain the Tunisia-Libya Continental
Shelfcase quoted a series of interventionsat the 1958Conferenceon the
Law of the Sea, which stressed the importance of coastal State control
over areas immediatelyoff the coastI0and identified the closeness ofthe
offshore areas to the adjacent coast as the essential reason why foreign
control would be intolerable. The first three interventions - by Peru,
Lebanon and Brazil - refer to operations at a "short distance" from the
coasts of a State.
483. While the role of closeness to the coast in the doctrine of
non-encroachment is clear, the identification of the continental shelf
areas that are "in front of' a coast is more open to interpretation. This is
especiallytrue where the geography is complexand not easily reduced to
a series of rectilinear coastal fronts.The classic example is the Atlantic
region considered in the Anglo-French Continental Shelf award, where
the Court of Arbitration cautioned that it was important not "to mistake
form for substance''in construing the geography,and held that although
the British coastline was "more complexin form and lesseasy perhapsto
define, the United Kingdom possessesa frontage upon the region which
is comparable broadly in iis exient with that of the French Republic""
More generally, in every case where the area to be delimited lies sea-
ward of two States whose immediately abutting coasts are oppositeeach
other, the area is more aptly described as lyingoff or adjacent to each of
these coasts rather than in front of either of them. In these and similar
configurations, the "closeness" aspect of the non-encroachment concept
IoI.C.JReports1982,pp. 120-121.para.71.
" Anglo-FrenchContinentalShel/awardp. 110.para.234182 GULF OF MAINE [2011
necessarily takes on the decisive role in the delimitation of continental
shelf boundaries.
484. The definition of non-encroachment set Forthin the United
States Memorial would therefore be misconceived even if this case
involvedsimply acontinental shelf boundary governedby natural prolon-
gation as the sole basis of title. Furthermore, the United States defini-
tion disregards the distinctive characteristics of a single maritime bound-
ary and the fundamental importanceof the distance principle in defining
the basis of coastal State title. This altered context has two general
implications that cal1for consideration in adapting the doctrine of non-
encroachment to a single maritime boundary. The first implication is
that because distance from the coast is the sole basis of coastal State
title to a 200-milezone (and an important element in the new definition
of the continental shelf), it must alsoplay a greater role in determining
where "encroachment" upon the maritime areas adjacent to a coastal
State may be said to occur. The second is that the application of the dis-
tance principle impliesa radial projection of the coast in every direction
in which ocean space within the prescribed distance is found. It displaces
the idea of a purely frontal projection thatprovidesthe sole basis of the
United States theory of non-encroachment - a theory that, in any
event, distorts the law of the continental shelf and that cannot be applied
to the complexgeography of the Gulf of Maine area. The basis for both
these propositionsis set out in detail in paragraphs 564 to 576.
485. In the context of maritime zones basedmore upon distance
from the coast than upon natural prolongation, the doctrine of non-
encroachment has at least three practical applications.First, it continues
to be the case that boundaries should be drawn so that neither Party is
unduly confinedor "cut off' by a boundary that improperly encroaches
on the maritime areas lying close to its coast. Secondly, in areas of
potential overlapbetween the 200-milezonesof neighbouringStates, and
in the absence of special geographical or other circumstances, non-
encroachment generally precludes any State from exercising jurisdiction
over sea areas that are substantially closer to another State. Thirdly (as
will be shown in paragraphs 570 to 576), where the Parties have agreed
to fix a singlemaritime boundary, non-encroachmentweighsagainst the
attribution to a State of areas more than 200 miles from its coast but
within the 200-mile limit of another State. Such an attribution would
encroach upon the potential exclusiveeconomic zoneof a coastal State
in order to allowanother Stateto exercisecontinental shelf rights -and
those rights alone- beyondits own exclusiveeconomiczone.
486. Non-encroachment is a general concept, not a method or
technique, and respect for the concept is compatible with a variety of
methods of delimitaiion. Distance from the coast has always been an
important component of non-encroachment,and it has become far more
so with the emergence of the distance principle as the primary basis of
coastal State title to a combined shelf and water-column zone.There
are, as the North Seo Continental Shevcases pointed out, geographical
configurations wherethe equidistance method maycause an encroach-
ment upon the continental shelf of another State. It is equally important
to bear in mind that the equidistance method is particularly apt in a [2021 COUNTER-MEMORIALOF CANADA 183
range of geographical circumstances to ensure that neither State is
improperlyconfinedor deprivedof its coastal State rights by a boundary
that encroacheson the maritime areas adjacent to its coast.
C. PROPORTIONALI1T sYA TEST OF EQUITYN , OT A SUBSIDIARY
PRINCIPL EF APPURTENANCE
487. A third "subsidiary principle" identified by the United
States is proportionality.gain, the essential lines of the Canadian posi-
tion have been set out in the Canadian Memorial and will be further
developedin Part IV of this Counter-Memorial, where Canada willshow
that any reasonable application of the test will confirm the equitable
nature of its claim. In the Canadian view, proportionality stands for a
number of associated concepts.In one sense, il is a test of the equitable
character of a maritime boundary that is applied by comparing the
ratios between the lengths of the coastlines of the parties and the off-
shore areas to be dividedby the boundary. In another sense,as the Court
of Arbitration pointed out in the Anglo-French Continental Shelf
award, the factor of proportionality "may also appear, and more usually
does, as a factor for determining the reasonable or unreasonable - the
equitable or inequitable- effects of particular geographical features or
configurations upon the course of an equidistance-line boundary"".
More generally still. proportionality has a sense that transcends the
purely geographical dimensionand requires that the area to be allocated
to each of the parties should reflect al1the relevant circumstancesof the
case, so that the resulting entitlements are proportionate in the broadest
senseof that word.
488. The idea of proportionality as a ratio between coastal
lengths and offshore areas has been closelyassociated with the applica-
tion of the doctrine of naturat prolongation as the basis of title in the
traditional law of the continental shelf. In the North Sea Continental
Shelf cases, the Court noted that this form of proportionality
"obviously" has "an intimate connection with the prolongation
principle"". Although it may also havea role to play in testing the
equity of a singlemaritime boundary, that role is clearly less fundamen-
ta1 where title is based on a specified distance from the coast and not
upon the extensionseaward of the land territory of the coastal State".
489. As the Canadian Memorial has pointed outIJ, the propor-
tionality test in the first sense outlined in paragraph 487 is properly
applicable in geographical situations where the extent of the relevant
Anglo-FrenchConlinenialShelfaward, p. 60, para. 100.
" I.C.J. Reporrs196p. 31.para.44.
" UniredSiaies Memoriolp. 141, para.243, footnate3. cM.esRhee in supportof
thc proposition thatthe early river.laseaboundarieswere determinedon the
basis of proportionality.In, Rhee statcs that proportionalitywas"...a as
bulwarkagainstthe imptacticalandillogicaldaim that the wholebodyof rivers.lakes.
other". S. M. Rhee: "Sca Boundary Delimitation Between States Before Worldf the
War II."ArneNcanJournaloflnlernorionolLoVol.76. 1982.pp.555-556.
'5Conadion Mernoriap. 154,para.371.184 GULF OF MAINE 12031
coasts and the limits of the relevant sea area can be determined with at
least some degree of precision. Such was the case in the delimitation
between the Federal Republicof Germany and Denmark and the Neth-
erlands, where the area to be delimited was defined by agreed bound-
aries with third States. This also appears to have been the case in the
delimitation between Tunisia and Libya, where the area to be delimited
was semi-enclosedand could be defined by reference to natural features
and the existingdelimitation betweenTunisia and ItalyI6.
490. The chief attraction of this form of proportionality testis
that it is a mathemaiical formula and is therefore precise and objective.
But for this very reason, the validityof the test is whollydependent upon
the precision and objectivityof the data used. In open-endedsituations,
where neither thegeography nor agreed delimitations with third parties
provide readily identifiable limits,the relevant offshore areas and the
lengths of coastline cannot be defined in a manner that meets these
requirements. In. these cases, the use of numerical ratios is no longer
appropriate because the determination of the limits of the relevant area
is likelyto be as complicated and contentiousas the determination of the
boundary itself. It is presumably for thisreason that the Court of Arbi-
tration in the Anglo-French Continental Shelfaward observedthat:
"ln particular, this Court does not consider that the adoption in
the North Sea Continental Shelfcases of the criterion of a reason-
able degree of proportionality between the areas of continental
shelf and the lengths of the coastlines means that this criterion is
one for applicationin al1cases"."
The same factor, no doubt, also explainswhy this formof proportionality
appears to be seldom used in State practice.
491. In the present case, the ratios between coastlines and sea
areas cannot be determined by reference to objectivecriteria because of
the open-ended nature of the area to be delimited. The differences
between the Parties as to the limits of the relevant area are of the same
order as their differences regarding the proper placementof the bound-
ary. This is because (apart from the Gulf of Maine itself, which can be
defined by a hypothetical line fromCape Sable to Cape Cod or Nan-
tucket) there are no natural features defining the relevant area. The
Atlantic seaboard coasts flanking the entrance points to the Gulf extend
indefinitelyto the northeast and southwest respectively,well outside any
reasonable definitionof the Gulf of Maine area.
492. The indeterminate character of both the relevant area and
the areas that would be divided by any given boundary is accentuated
because:
l6Thisno doublcxplainrwhy the partieswcragrccdon the rclcvanccandapplicability
of a praprtionalitytcst vsing caastlincratiosin the circumstanccs otfcvencase,
though thcydiffcredas to the preciscextentof thc coaseaaareasihat shoulbc
takeninta account.I.C.J. Reports1982, pp.43-44, para.37. In the presentcase. the
to the rclevance applicabilityof a proportiontest in this farmin the particular
circumstancesharactcrizingtheouterpartof theGulfof Maiarea.
" Anglo-FrenchContinenroSl hevaward, p. 60. para.99. 12041 COUNTER-MEMORIALOF CANADA 185
(a) the maritime boundary to be fixed bythe Court is to commence
almost 39 nautical miles from the terminus of the international
boundary. the Parties having reserved to themselvesthe delimitation
of the area betweenthe terminus and Point "A"; and
(b) the outer terminus of the line to be decided in the present proceed-
ings represents only the first of two phases in the delimitation
processgovernedby the Special Agreement.
These difficultiesare implicitlyrecognizedby the United States: the first
@) in the arbitrarily determined "excluded area" depicted in Figure 34 of
the United States Memorial;the second in the extensionof its claim far
beyond the triangle so that it can meet the line used by the United
States to enclosethe test area to seaward.
493. Even if it were possibleto determine with reasonable preci-
sion the extent of the relevant coasts in the Gulf of Maine area, this
would not settle the question how to enclose the sea area, either to sea-
ward or laterally, for the purposes of a proportionality test.Should the
lateral enclosure, for example. be effected by meridians or by perpen-
diculars to the general direction of the coasts, and, if the latter, what is
the general direction of the coastI8? Because there are no natural fea-
turcs that serve to delïne the area, the construction of an artificial enclo-
sure based on purelyarbitrary limits would give ahighly misleadingillu-
sion of precision. What is required in these circumstances is an
assessment of the effects of particular geographical features on the
course of a boundary, and a qualitative appreciation of the overall situa-
tion in relation to theresult achieved byany givenline.
494. Proportionality in al1its forms is simplyan aspect of equity.
It is a test that may be applied ex post facto in order to determine
whether a boundary determined on other principles,and by legally rec-
ognizedmethods, is disproportionate in its effects. The point at which
the test was applied in the Tunisia-Libya Continental Sheljcase - ai
the very end of the reasons given - and the very approximate corre-
spondence of the ratios used, show clearly that this was the sense in
which it was usedin the factual circumstances of that case. Proportion-
ality cannot be regarded as a method for the determination of a bound-
ary since the number of lines capable of producing the same proportion
or ratio is virtually limitless". More fundamentally, the use of propor-
tionality as a subsidiary principle of appurtenance, as suggestedby the
United States Memorial, would transform its role into an independent
source of rights and "substitute for the delimitation of boundariesa dis-
tributive apportionment of sharesz0".
'*The choicc of cithcrparallelsand meridiansor perpendicularsta thegeneraldircction
ouponthe rcsultof a proportionalitytwt. If, insteadof usingmcridianrand parallclr.the
Courtin the Tunisio-Libya ConlinenrolShelfcase hadcnclosedthe tesbymeana
or perpendicularsto the coastal fronts(used to measurethe lengthof thc coast accord-
ing to ils gcncral direction). the ratioswould havebecndccirivclyaltercd.cvcnusing
thesamecaartr.
l9I.C.J.Reparrs1982.pp.258-259.para. 162.Dirxnting OpinionJudgeOda.
Anglo-FrenchConiinenrolShelf award,pp.60-61, para. 101.186 GULFOF MAINE 12051
495. In sum, the United States Memorial misconstrues the con-
cept of proportionality in at least two important respects. Firsr, it
restricts the concept to its purely mathematical version based on the
ratios of coastal lengths, ignoringits alternative and broader meanings.
Secondly, it errs in characterizing proportionalityas a subsidiary princi-
ple arising out of the basic relationshipof appurtenance, disregarding its
true function as one of a number of tests that may be applied to assess
the equitable character of the result. The specific applicationof thepro-
portionality test in the present case is discussedin Part IV, where it will
be seen that the Canadian line meets the test of proportionality and the
United States line does not.
496. There is a fundamental omission in the United States
Memorial's treatment of the first of its four "equitable principles".
Under this heading the United States has subsumed a variety of factors
of a purely geographical or physical chxracter. No mention is made of
the dual principlesof adjacency and proximity; norof the relationship of
these principlestothe title of the coastal State to a continental shelf and
an exclusiveeconomic zone; norof the human aspects of geography.The
principles ofadjacency and proximity are not only of fundamental rele-
vance to title; they are central to the "non-encroachment" principle that
seeks to ensure that a State is not deprivedof the areas that lie off and
in close proximity to its Coast. Like the other principles just reviewed,
the principlesof adjacency and proximity provide no exact formula that
must invariably be followed inthe determination of a boundary. They
do, however, represent critical factors that must be borne in mind in
deciding whether a particular line produces a reasonable result by leav-
ing to each State an expanseof maritime space that is appropriate in the
light of al1 the relevant circumstances of the case. And, in focusing
exclusively on physicalor, more precisely, locational factors, the United
States has ignoredfactors of human geography,the relevanceof which is
indicated bygeographicaland legalcriteria.
Section II. The False Principle of "Single-State Management"
497. The United States Memorial disclosesa fundamental legal
error in its identificationof the secondand third of its "equitable princi-
ples"- relating to conservationand the avoidanceof disputes - espe-
cially in the way these two so-called principleshave been usedto justify
a monopolisticclaim for the sake of the administrative convenience of
"single-State management". It is beyond question that the proper con-
servation and management of the resourcesof the sea and the avoidance
of international disputes are valid objectives and important rules of
behaviour. But their distortioninto false principles of delimitation that
rule out an equitable division of the resources of the relevant area is
almost perverse.The United States has misappliedtwo perfectly reason-
able concepts to justify the most unreasonableof results. For its theory[2061 COUNTER-MEMORIALOFCANADA 187
of "single-State management" would deny to Canada - and to other
coastal States similarly placed - the sovereign rights and jurisdiction
flowing fromthe distance principle enshrinedin the 1982 Conventionon
the Law of the Sea and in customary international law.
498. The paradox is easily explained.The fallacy in the treatment
given to these two concepts is that the United States has go1its reason-
ing backwards. The principlesof conservationand conflict avoidanceare
principles of international cooperation that presuppose shared, common
interests; theyare anything but principlesof exclusiveappropriation and
control. These principlesare in fact the veryoppositeof what the United
States has made them in its argument: a thinly disguised pretext for an
exclusiveclaim so extensivethat it rules out not only the need but even
the possibility ofsuch cooperation betweenStates on a basis of sovereign
equality.
499. Canada has long beena proponent of coastal State manage-
ment of fishery resources but finds it impossibleto reconcile this con-
cept, as embodied in the 1982 Conventionon the Law of the Sea, with
the quite different conception advancedin the United States Memorial.
Coastal State management is an objectivethat must often be realized by
bilateral or regional cooperation between twoor more States with a
mutual interest in a transboundary or migratory fishery resource. It is
wholly extraneous to the'delimitation of sovereign rights or jurisdiction
betweenoppositeor adjacent coastal States.
500. In appearance, the United States has proposedconservation
and management and the prevention of international disputes as two
separate principles. Properly conceived,they are indeed independent. As
employed in the United States Mernorial, however, theyare sirnply two
different ways of rationalizing the single objectivethat carries the label
of "single-State management". But "management" is too innocuous a
word. The State that has the right to manage the resourcesof the exclu-
siveeconomiczone has also the exclusiveright to exploit these resources,
subject only to limited exceptions.Single-State management, in practical
effect,means single-State accessto the economicbenefit of the resources
in question.It is a euphemismfor monopoly,and so too are the twin sup-
porting principles of conservation and dispute prevention as they are
used in the United States argument. They are wolvesin sheep'sclothing.
They mus1not be allowedto obscure the real issueor the practical result
they actually stand for in the present case.
501. The first of these two concepts, the conservation and man-
agement of resources, is misconceived in ils application to maritime
boundaries for the simple reason that the law providesa quite different
solution to the problemof shared natural resources. Yet evenif this were
not the case, the inference drawn by the United States would be highly
suspect. The United States Memorial contends that "the delimitation of188 ' GULF OF MAINE (2071
a single maritime boundary should avoid, whenever possible.dividing
betweentwo governmentsthe responsibility for consewingand managing
a resourceZ1"T . his assertion can only mean that the resourcesthemselves
should not be divided betweenneighbouring States where this can be
avoided. In Canada's submission,the requirement of an equitable result
is utterly incompatible with this proposition. The principle advocated
here by the United States means nothing less than this: that in every
case where the boundary zone is dominated by a single resourcearea of
whatever kind - a fishing bank, a sedimentary basin, or a hydrocarbon
resewoir - that area should be allotted in its entirety to one or other of
the parties and should never be divided betweenthem. Canada submits
that so extraordinary a result cannot be contemplated by the law.
502. In fact, the law draws a completelydifferent inference from
the need to manage and conserve the natural resources of the relevant
area. lnstead of holding that these resources should not be divided
among the parties, contemporary international law simply assumes the
existenceof transboundary natural resourcesand prescribesinternational
cooperation in their management.
1. The Conservationof ContinentalShelj Resources
503. The United States has invoked "the principle of consewa-
tion" in connection with bath the continental shelf and the living
matter as .
resourcesof the superjacent waters. The Court considered this
it applies to the continental shelf in certain passages of its judgment in
the North Seo Continental Shelf cases, and in Canada's view the
approach advocated by the United States is al odds with the findings of
the Court. Paragraph 97 of the judgment reads as followsin ils entirety:
"97. Another factor to be taken into considerationin the delimi-
tation of areas of continental shelf as between adjacent States is
the unity of any deposits. The natural resources of the subsoil of
the sea in those parts which consistof continental shelf are the very
object of the legal régime established subsequentto the Truman
Proclamation. Yet it frequently occurs that the same deposit lies
on both sides of the line dividing a continental shelj between two
States, and since it is possibleto exploit such a deposit fromeither
side, a problem immediately ariseson account of the risk of pre-
judicial or wasteful exploitationby one or other of the States con-
cerned. To look no farther than the North Sea, the practice of
States showshow this problem hasbeen dealt with, and al1that is
needed is to refer to the undertakings entered into by the coastal
States of that sea with a viewto ensuring the most efficient exploi-
tation or the apportionment of the products extracted - (see in
particular the agreement of 10 March 1965 between the United
Kingdomand Norway, Article 4; the agreement of 6 October 1965
between the Netherlands and the United Kingdom relating to 'the
exploitation of single geological structures extending across the
--
a UnitedStatesMernorialp.142,para. 247.t2081 CQUNTER-MEMORIALOFCANADA 189
dividingline on the continental shelf under the North Sea';and the
agreement of 14 May 1962 between the Federal Republic and the
Netherlands concerning a joint plan for exploiting the natural
resources underlyingthe area of the Ems Estuary where the fron-
tier between the two States has not been finally delimited.) The
Court does no!considerthat unity of deposit constitutes anyihing
more than a factual element whichit is reasonable to take into
considerationin the course of the negotiationsfor a delimitation.
TheParties are fully awareof the existenceofthe problem as also
of the possible ways of solvingitZ2."[Iialics added.]
Clearly, the Court was notsuggestingthat a wholedeposit - or to bring
the matter into closer analogy with what the United States is saying
about Georges Bank,an entire fishing ground or a sedimentary basin -
should go to only one party in an undividedcondition. The words of the
Court clearly show that more equitable solutionswere contemplated,and
that intention is put beyonddoubt in the examples from regional State
practice given by the Court in this passage. The Court did not deal with
the "unity of deposits" issue in the dispositif, except to refer to the poss-
ibility of a régimeof "joint jurisdiction, user, or exploitation for the
zones of overlapor any part of them"". At no point was it referred to as
a factor relevant to the fixingof a maritime boundary.
The separate opinion ofJudge Jessup attached great impor-
504.
tance to the principle of international cooperation in the exploitationof a
natural resource in connectionwith continental shelf boundary problems.
Indeed, the concluding passages of his opinion are devoted entirely to
this issue. Inpart, his reinarks read as follows:
"Therefore, while,as the Court States.the principleofjoint exploi-
tation is particularly appropriate in cases involvingthe principle of
the unity of a deposit, it may have a wider application in agree-
ments reached by the Parties concerning the still undelimited but
potentially overlapping areas of the continental shelf which have
been indispute.
Nor is it irrelevant to recall that the principle of international
co-operation in the exploitation of a natural resource is well estab-
lished in other international practice. The Federal Republic
invoked the Helsinki Rules of the International Law Association
concerning the sharing of the waters of a river basin traversing or
bordering more than one State. Whether or not those Rules are the
most accurate statement of the existing international law, as to
which I express no opinion, there are numerous examples of co-
operative use and of sharing of fluvial resources.The history of
ocean fisheriesis full ofexamples of co-operativeagreementsz4. . ."
Judge Jessup went on to give a wide variety of examples from State
practice - including transboundary cooperation within the United
--
" I.C.JRtporis1969.pp.51-52. para97.
" I.C.JReports1969.p. 53. para. IOI(C)(2).
I.C.JReports1969.pp.82-83.190 GULFOF MAINE [2Wl
States itself- that show the principle of cooperation in play not only at
the stage of dividing up the proceeds of a resource, but also in connec-
tion with conservation and management at both the exploration and
exploitation phases.
505. Recent State practice is even more decisive. It is now a
firmly settled practice that agreements delimiting the continental shelf
include stipulations requiring some form of cooperation in the manage-
ment and exploitation of transboundary oil and gas deposits". One com-
mentator has concluded that the practice of seeking agreement on the
cooperative management of common oiland gas deposits on the conti-
nental shelf "is not mere usage but has given rise to a customary rule of
current international law", by reason of the extent and uniformity
of recent State practice and the opinio juris confirming its normative
characterZ6.
506. In sum, the law of continental shelf boundaries completely
discredits the United States claim that the boundary should be drawn so
as to avoid dividing an offshore resource area or pool. Whatever the pre-
cise meaning of the concept of "unity of deposits", it clearly does not
stand for the proposition that continental shelf boundaries are to be so
drawn that the resources are allocated to only one of the adjacent States.
As equity and common sense require, the law points instead toward a
duty of international cooperation that assumes the existence of trans-
boundary resources.
2.FisheriesConservaiion
507. The above propositions regarding unity of deposits in a con-
tinental shelf delimitation hold equally true for a fishing zone delimita-
tion - if anything, more so, because of the free-swimming character of
many of the species and the mobility of the vessels pursuing them. While
there have been no judicial decisions on fishing zone boundaries between
opposite or adjacent States beyond the territorial sea. State practice -
both regional and global - repudiates the United States principles in
two distinct ways. Firsi, State practice shows that it has never been a
concern of boundary-makers to avoid the division of extensive fishing
grounds or "ecological régimes",and that in many situations such a
principle would produce anomalous and inequitable results. Secondly,
international practice in the field of fisheries provides a model - prob-
ably the classical model -of cooperation between States in the manage-
ment of shared natural resources. Contrary to what the United States
has argued in its Memoria12', international cooperation in fisheries
* R. Lagoni:"Oil andGôs Dcposits across National Frantierî."AmcriconJournnl of
lnternationalLow, Vol. 73. 19p.215. LagonidismisscH.V. Mouton'ssuggestion
that antinental shelf baundaryshouldnot crossan oil poolas unsupportcdby either
of thc sources cited:(a) a mcmarandumon the régimeaf the highseas preparedbythe
1. Brownlic: "Legal Status of NaturalRcsaurccsin International Law (Somc
Aspects)." Recueildes Cours. TomeIV, 1978.pp.249.314, at If.89
" R.Lagoni:"OilandCas Dcpsits". p. 241.
" UnitedStoter Memoriol.pp. 117-120.paras. 189-192.192 GULF OF MAINE [2111
joint sepsrate opinion in theFrrheries urisdic~ionases,in the wntext of a
discussionof changingviewson the extent to whichwastal State fisheries
jurisdiction mightproperlybeasserîed:
"ln this respect, economicstudies on fisheries have shownthat the
principle of open and unrestricted access to coastal watersinevita-
bly results in physical and economicwaste, since there is no incen-
tive for restraint in the interest of future returns: anything left in
adjacent waters for tomorrow maybe taken by others today. While
the better-equipped States can freely move their fleets to other
grounds as soon as the fishing operations become uneconomical,
the coastal States, with less mobile fleets.maintain the greatest
interest in ensuring that the resources near theirowncoasts are not
depletedZP."
At the same lime, of course, the geographical proximityof the coastal
States gives them the capacity to keep the resources under surveillance
and to enforce the necessary conservation measures effectively and
economically.
511. The "equitable principles" advanced by the United States
are defective in their failure to give any recognition to this factor of
present and future economic dependence - the main reason why the
extensionof coastal State fisheriesjurisdiction wasadopted and accepted
in the first place. Indeed, since the United States principles are specifi-
cally and deliberately designed to exclude a neighbouring coastal State
from an area in which its coastal communitieshave a vested economic
interest and on which theydepend - an area that lies in closest prox-
imity to that coastal State and deep within its 200-mile fishinglimit -
it is clear that these principles are in disharmony with the fundamental
rationale of the exclusiveeconomic zoneitself.
512. The object of extended fisheries jurisdiction, in sum, was
management by the coastal States in the light of their enduring depend-
ence on the resourcesand their geographical proximity,and not "single-
State management" as such. There is nothing in this objectiveinany way
inconsistent with bilateral or regional cooperation by coastal States to
ensure the conservationof transboundary fishery resources,and the new
Convention onthe Law qfthe Sea expresslycontemplates such coopera-
tive arrangements. What the United States Memorial ignores is that the
whole purposeof managing and conservingthe livingresourcesof the sea
is an economicone - to secure the long-term abundance of the resource
in order to protect boththe interests of the consumersand the livelihood
of the producers. Managerial efficiency is intended to serve these broad
considerationsof economicand socialequity. It is not an end in itself.
513. The exclusiveeconomiczone is a spatial concept, based upon
the criterion of distance from theCoastand not upon the physical distri-
bution of fishery resourcesor of any category of resources. Early in the
preliminary discussionsleading up to the Conference on the Law of the
Sea, consideration was givento proposais that would have linkedcoastal
* I.C.J. Reporrs197pp.48-49para.13. 12121 COUNTER-MEMORIALOF CANADA 193
State jurisdiction over fishery resourcesto biological factors related to
the distribution of broad categories of stocks. The important point, how-
ever, is that the conference eventually opted for adifferent basis ofjuris-
diction, one founded upon a politically determined distance from the
coast. As a result, the international consensus on fisheries jurisdiction
within the 200-mile limit isone that favours the simplicity of a uniform
distance from the coast over the complexity of biological criteria. The
recent evolutionof the principlesof coastal State jurisdiction over fisher-
ies completely undercuts the premises of the United States argument
that "single-State management" determined in accordance with biologi-
cal criteria is a "primary basis for the extension ofcoastal State fisheries
jurisdiction to 200 nautical miles from the c~ast'~".
514. The provisions ofthe 1982 Convention on the Lawof the
Sea contradict the tenor of the United States argument even more
plainly. Paragraph 1 of Article 63 provides specifically for the case of
transboundary stocks,as follows:
"1. Where the same stock or stocks of associated species occur
within the exclusiveeconomiczones of two or more coastal States,
these States shall seek, either directly or through appropriate
subregional or regional organizations, to agree upon the measures
necessary to CO-ordinateand ensure the conservation and develop-
ment of such stocks without prejudiceto the other provisionsof
this Part."
Furthermore, Article 61, paragraph 2, providesfor cooperation between
the coastal State and competent international organizations, "whether
subregional, regional or global". The philosophyof the conventioncould
not be moreclear: it calls for coastal State management within the 200-
mile limit but prescribes cooperationbetween coastal States in the man-
agement of transboundary resources.There is no support here for a prin-
ciple of delimitation that rules out the divisionof resourcesso that their
control can be given toa singlecountry at the expense of neighbouring
coastal States, inorder to avoid the need - and the legal obligation -
to cooperate with such neighbours.
515. Contrary to the assertions of the United States, the provi-
sions of the 1982 Conventionon the Law of the Sea regarding anadro-
mous and catadromous speciesdo not support its "single-State manage-
ment" theory. What these provisionsactually demonstrate is that it is
unrealistic to conceiveof the exclusiveeconomic zone as a spatial unit
that can be made to correspond to the biological distribution of fish
stocks. Even where the boundaries of the zone might be made to con-
form to the range of a few stocks.others - like the anadromous stocks
of Salmonthat constitute one of the important fishery resources of the
Gulf of Maine area - invariably exhibit patterns of distribution that
bear no conceivable resemblance to the configuration of the zone. The
solution adopted in the convention,therefore, envisages a completely dif-
ferent approach to the management of these species by laying down a
framework forinternational cooperation. The relevant provisionsof the
ü UniiedSlaIesMernorial,p.143para.250.194 GW OF MAINE (213-2141
articles on anadromous and catadromous species are matched by similar
provisionsin the articles on highly migratory species, on marine mam-
mals, and - most important of al1 - on fishery resources shared
between the exclusiveeconomic zones of neighbouring States. Clearly,
the whole pattern of the convention disclosesan underlying principleof
cooperation that is fundamentally at odds with the monopolisticprinci-
ples espoused by the United States for the Gulf of Maine area - and
quite inconsistent with United States views on cooperation respectine
ialmon and tuna resources. These provisions demonstrate, as kell, a
recoenition that bioloeical realities and wliticallv determined soatial
unitscan never really be made to coincide.'
516. In seeking to substitute delimitation for cooperation as the
proper solutionto the question of natural resources in which two coun-
tries have a shared interest, the United States Memorial has quoted
from a Governmentof Canada "Working Paper on the Management of
the LivingResourcesof the Sea", submitted to the Seabed Committee in
1972". In fact, the working paper gives no support whatever to the
United States position on "single-State management". On the contrary,
it recognized the futility of such an approach and expressly endorsed
continued international cooperation in this field. The concluding sen-
tencesof the paper read in part as follows:
". . . In more general terms, international fishery commissions,
established on a regional basis and comprising both coastaland
distant-water fishing States, could provide a forum for cooperation
and consultation . . .Similarly, parricular Jorms of consulfafion
and cooperarionmight be instiiuied. wirh orwithour rhe esrablish-
ment oJa Jormal commission.in caseswhereparticulor stocksof
coasral speciesfull under the managemeni authority of rwo or
more neighbouring coasral states3'."[Iralics added.]
517. Not only are the United States principles inequitable;
despite their surface appeal to managerial efficiency, they are unwork-
able as well. Paragraphs 200-226 have shown whythey cannot be
applied successfullyin the Gulf of Maine area. But the United States
has claimed ageneral applicability for its principleof "single-State man-
agement", and some consideration must therefore be givento how the
principle mightwork in other geographical situations. North America is
unusual in that it comprises only a few large countries with very long
j' "Warking Paper on Management of the Living Rwurccs of the Sca". submitted by
&condFlwr Btyond the Limits of Notionol lurisdiction. pp. 164-174. A statcment at
thebcginning of thc document. ta which the United States Mcmorial has omittcd any
rcfcrcncc. says: "This warking paper is submitted by the delegation of Canada for dis-
cussionpurposcs. and docs not necwsarily reflect the final dccnitivc vicws of the
Canadian Govcrnrnent."
'' The UnitedStates Mernorial.pp. 119-120, para. 192,and fmtnatc 5. has alsa referred
to another working papcr submitted by Canada and Argentina during the late stages of
theconferenccin 1980. on the question ofstocks of fish that "straddle" the ZOO-mile
limit.gain. howcver.the United States has misconstrucd the document, as the paper
is baseupon the premise that jurirdiction ovcr thcsc stocks would bc divided by the
200-mile limitnd it envisages a pressing need for cooperation betwcen the coastal
State and the States cngaged in fishing beyondthat limit.[215-2161 COUNTER-MEMORIALOF CANADA 195
coasts. In many areas of the world where the political geography is more
complexand typified by much shorter segmentsof national coastline, the
inherent impossibility of forcing offshore boundaries into a biological
mould is more obvious still. In these situations, any biologicalor ecologi-
cal units that might be identified would normally bear no conceivable
resemblance to an allocation of maritime space that could be considered
legallyadmissibleon other grounds [Figures 39 and 401.
518. The internal practice of the United States has conspicuously
ignored itsown unitary management theory; so much so, indeed, that il
is abundantly clear that the whole notion is nothing more than an ex
post facto rationalization of a claim that seeks to appropriate the whole
Georges Bank fisheryto the exclusivebenefit of the United States. As
was noted in paragraphs 230-233, the United States legislation creating
the 200-mile zone separates the intensive inshore segment of the coastal
fisheries from the management of the same stocks further offshore, pre-
sewing state authority over fisheries in territorial waters3'.The manage-
ment of the fishery is also fragmented by dividingfederal authority over
the offshore fisheries among the various Regional Fishery Management
Councils. The boundaries dividi g the "geographical areas of authority
between adjacent Councils", as prescribed pursuant to the Act3',fail to
correspond to "ecological régimes"f ,ishing banksor physical features in
any way resembling those argued by the United States to constitute rele-
vant circumstances in the present case3J.The National Marine Fisheries
Service has itself recognizedthat the framework of United States fishery
legislation makes a high degree of interjurisdictional cooperation inevi-
able'^.It is surely unreasonable for the United States Io ask the Court
to endorse an illusory objective that the United States has never even
attempted to recognizeor pursue in its own domestic arrangements. It is
al1the more unreasonablewhen the principle is one whoseinternal logic
isguaranteed to bring about an inequitable distribution of resources.
These factors have never been considered judicially in the
519.
context of a fisheries boundary. However, there are indications in the
law that support the view that cooperation, not a monopolistic delimita-
tion, is the appropriate legal response to situations where more than one
country has a legitimate interest in a fishery resource. The passage
quoted above from the separate opinion of Judge Jessup in the North
Seo Continental Sheifcase noted that the "history of ocean fisheriesis
l1 16UnitedStatesCode.sec. 1811UniredSioierMernorinl.AnnexesVal.1.Anncx8.
Annex8.ed States Codc, sec. 1854(0(United Sioies Mernorial. AnnexeVol. 1.
fl 50 Cadeof Federal~cgulationscc.601.12(a). The linedividing thearcaofNewe
straightlint from the Connecticut-RhodIeslandboundaryterminusin a southeastcrly
directionto the pointof intersectionwith the 200milclimit. As describcdin the Codc
of FederalRegulations.this linereprescnbthecxtcnsionscawardof a lineconstituting
an agrced inter-statcmaritimeboundaryin territorialwaters. to which theUnited
StatesCongress assented in 1944. The intercouncilbundarics thtween the Mid-
Atlanticand the South Atlanticcauncils,andbetweenthe South Atlanticandthe Gulf
of Mexicocauncib,arc duc-cas1lincseach case. the linc simplyextendsan inshore
politicalbundary determincdforothcrpurposes.
l6 Secparas.230-233.196 GULF OF MAINE 12171
full of examplesof w-operative agreements3'".nie need for woperation
received a more ancrete expression in the FuheriesJurisdictioncases,
especially in paragraph 4(e) of the dlrpositi/ of the judgment on the
meritsandin the followingpassage:
". . .both States have an obligation ta take full account of each
other's rightsand of any fishery conservation measuresthe neces-
sity of which is shown to exist in those waters. It is one of the
advances in maritime international law, resulting from the inten-
sification of fishing, that the formerlaissez-fa terament of the
living resources of the sea in the high seas has been replaced by a
recognition of a duty to have due regard ta the rights of other
States and the needs of conservation forthe benefit of all. Conse-
quently, both Parties have the obligation ta keep under review the
fishery resourcesin the disputed waters and to examine together, in
the light ofscientificand other available information, the measures
required for the conservation and development, and equitable
exploitation.of those res~urces'~. .."
Although the pitfalls of international fisheries management (as they then
were) were drawn to the attention of the Court39, it adopted a solution
that reflects the need for cooperationin the light of the shared nature of
the resource. From the established economic dependenceof the United
Kingdomand the Federal Republic of Germany and the special depend-
ence of Iceland, the Court deduced an obligation to negotiate in good
faith for an equitable solutiona. Certainly this pronouncement refers
particularly to the high-seas fisheries; but a 200-mile fishingzone, for-
merly subject ta the high-seas freedom of fishing, would seem ta be in
like case as between the two coastal States concerned.
520. While the need was recognized longbefore the extension of
fisheriesjurisdiction. this recent development hasmade bilateral and
regional cooperation in fisheries management far more workable and
effective. A recent commentary on the fisheries provisions of the new
Convention on the Law of the Sea confirms both the necessity and the
greater practicability of such cooperationunder the newrégime:
"Comme on l'a soulignéau début de cet article, la mobilitéet
l'interdépendancede la plupart des ressources biologiques exigent
que leur gestion soit assurée surla base d'arrangements entre les
Etats directement intéressésC . es derniers ne seront généralement
pas trèsnombreux et il sera facilede les identifier une fois que la
distribution et les migrations des stocks seront connues. Réaliserun
accord entre un nombre déterminéet limitéde participants sera
probablement plus aiséque dans le cadre du régime antérieurde
" Sec para.504
" I.C.J. Reports 1974. p. 31. parScc7also pp. 34-35, para. 79(4)(e): pp. 200-201.
para.64;p.205-206. para.77(4)(c).
" FisheriesJurisdietionin Iceland,lcelandicMialForeignAlfairs, February1972,
inPleadi".sAnnex H. FisheriesJurirdictioncase. ....28 and37.
" I.C.J. R~porrs1974. pp. 29-31. paras.66-72; pp. 34-35, para. 79; pp. 197-201. paras.
58-64;pp.205.206, para.77.i2181 COUNTER-MEMOIUN OF CANADA 197
zones de juridiction nationale étroite et de liberté d'accésaux
pêcheries situéesau-delà de ces zones"."
3. GeneralInternational Law on Shared or Transboundary Resources
521. In addition to the sources of law that are specificallyappli-
cable to the continental shelf and fishery resources, there are analogies
to be drawn from other areas of the law. Judge Dillard, in his separate
opinion in the Fisheries Jurisdiction case, stressed the general relevance
of the principle of cooperation in the management of shared natural
resources:
"It would betedious and unnecessary to extend this discussion
by referring to analogous problemsin areas other than fisheries.
Yet, 1cannot forbear calling attention Io Judge Jessup's observa-
tions in his separate opinion in the North Sea Continental Shelj
cases in which healluded to the principle, fortified by State prac-
tice, of the need for international co-operation in the exploitation
of a 'natural' resourcecommonto more than one State"."
522. Recent developments in international environmental law
have stressed the interdependenceof States in the effectivemanagement
of the shared resources that composethe human environment. Principle
24 of the Stockholm Declarationon the Human Environment calls for
international cooperation in the protection and improvementof the envi-
ronment4'.Recommendation 37in the accompanyingAct.on .-an forthe
Human Environment exhorts States to cooperate in the management of
neiehbourinn and continuous areas - and cites fisherv renulationsas
oneof the Gbjects on ;hich agreements should be reacihed; This prin-
ciple is reconfirmed in General Assembly Resolution3129 (XXVIII) of
1973on "Cooperation in the field ofthe environment concerningnatural
resources shared by two or more States", as it is by Article 3 of the
Charter of Economic Rights and Duties of States adopted by General
AssemblyResolution 3281 (XXIX) of 1974''.
'' J.E. Carroz: "Lcs problèmesde la gchà la Confbrcnce sur Ic droit de la mer et dans
lapratique des Etats."Revue Générole de Droit lnternotionolPublicn"84. 1980.
pp. 705 and 717.cc Counter-Memoriol.Annexe,. Vol. V.Anncr 106 for the Table
"Summary Information on Marine Firhcry Bodics" prcparcd by J. E. Carroz, Secrc-
tary-General. FA0 World Conferencc on Fisherics Managcmcni and Developmcnt.
1982.
I.C.J. Reports1974p. 70.
'' Report O/ the United Notiom Conferenceon the Humon Environment. Doc.
A/CONF.48/14, 1972.
Reportofthe United NotionsConferenceon theHumonEnvironmenl, pp. 6 and 13.
'I Other important examples of the consenson the principle of caoperaiion regarding
shared natural rcsources include: the DrafiPrinciples prcpared by thc United Nations
Environmcnt Programme International Working Group of Experts on Natural
Resources Shared by Two or More States. UNEP G.C. Decision 6/14. 19 May 1978.
United Nations.O/jciol RecordsO/ the 33rd SessioO/ the GenerolAssembly, Dm.
Supp. No. 25(A/33/25) 1978. pp. 154.155: Organization for Economic Ceoperation
and Devclopmcnt. Declaration on Environmental Policy OECD - Press Release
A(74)47 (1974). Economic Declaration of AlgiRcporl of the Economicond Social
Council.Doc. A19330 (1973). p. 72.198 GULFOF MAINE ~2191
523. An equally apt analogy may be found in the international
lawof rivers.Although the concept of the drainage hasin and its physical
unity has heen taken into account by jurists, they have never inferred
that territorial houndaries should be made to refiect this unityd6.At one
time the United States held to a theory known as the "Harmon Doc-
trine", which allowedthe upstream State to consumean unlimited quan-
tity of the waters of an international river at the expense of its down-
Stream neighbours. In its monoplistic character, and in its repudiation
of the concept of an equitable division of the resource, the doctrine
resemhles the principles advanced hy the United States in the present
case. Butthe Harmon Doctrine has long since passed into legal oblivion;
and today, as Professor D.P. O'Connel1has said:
"Community and not particularity of interest is thus the object
selected by the law in its effort to reconcile the need for economic
utilisationof river resources withthe requirement of equal distribu-
tion of those resourcesamong the various riparians"."
This community of interest necessarily points toward international
cooperationin the management of shared water resources.
524. What these developmentsshow is that, even on land, States
can no longer be thought of as physicallyself-containedunits where the
management of resources can remain the exclusiveconcern of a single
national administration. It follows,a fortiorti hat in the far less con-
trolled environmentof the oceans,the attempt to create enclosures where
resource management respnsibilities can be neatly and rigidly divided
hetween separate States is doomed to failure from the start. Nature is
too complexto be made to conform to the simplicity of a jurisdictional
line. Nor for that matter can it be assumed that scientific knowledgeof
the marine environment isso fully and finally developedthat the limits
of particular "ecological régimes" could be identifiedwith any real con-
fidence. Even if the notion of "single-state management" were not
inherently hiased towards inequityand inequality, the principle could not
be made to work.
* found in the Helsinki Ruansthe Uses of Waters of International Rivers, adapted byers is
the International Law Assa'iation in 1966. Reporr of rhe 52nd Conference,
pp. 477-533. The key principle ofthe Rules is found in Article IV, which provides that
eachbasin State is entitled to "a rcasonable and equitable share of tuses"neficial
of the waters of the basin.
" D. P. O'Connell: lnlernolioLow. London, Stevens, 1970. Vol.p.559. The need
for internationalperatian is specifically recognized in Recommendatians 84 and 90
of the "Mar del Plata Action Plan", adopted by the United Nations Waterce.
Report of rhe UniredNarions WorerConference,Da'. E/CONF. 70129 (1977). The
ongoing work of the I.L.C. on the Law of the Non-navigational Uses of International
Watercourses reflects the same concerns. A United States representative has crpressed
strang support for the manner in which the Commission developed the concept of
Summary Record of the 56th Meeting, 20 November 1980.Da'. A/C.6/35 SR.56.ornmirtee, COUNTER-MEMORIU OFCANADA 199
1.A Prescriptionfor Inequity and Conflict
525. The "principle of conservation" figuresprominently in the
United States catalogue of equitable principles; butan evenweaker prop
for its theory of single-State management on Georges Bank is its propo-
sition that the boundary "should minimizethe potential forinternational
disputes". The inference the United States has attempted to draw from
this concept is that natural resources shouldnot be divided betweenthe
interested parties;that where possiblethey shouldbe allotted to only one
of the two sides, for then there can be no differences about how they
should be managed and exploited. Thus, the United States concludes
that the potential for disputeswill be minimized "if responsibility for
protection of theentire regime isvested in a singleS~ate'~".
526. It is difficult to imagine an approach to delimitation more
likely to lead to international conflict. The United States formula is a
prescription for an inequitable division of resources, one that is inher-
ently biased toward a profound inequality in the entitlements of the
respective parties.It points in the direction of monopolyand can never
be reconciled withthe requirements of equity. If implemented, itwould
create deep imbalances in the rights of States and the prosperity of their
populations tbat would inevitablylead to friction, bitterness and long-
term political disequilibrium. Such an approach, were it to be endorsed
and applied in the manner suggested by the United States, would frus-
trate the peaceful settlement of disputes concerning undeterminedmari-
time boundaries, whether by negotiation or adjudication; for if the
crucial resourcesor resource area in issuemust go to onlyone of the two
sides, the prospect of a mutually acceptable outcome would be effec-
tively ruled out from thestart.
527. The United States Memorial contends that if a boundary
dividesa fishery, there will be international disputes on the conservation
and allocation of resources;there may be "Differences in scientificopin-
ion, incompatiblemanagement objectivesand techniques,and conflicting
enforcement ~trategies'~".This argument confuses the normal incidents
of political intercourse between soveteign and equal States with an
unhealthy sort of "international discord" that ought to be prevented.
Surely, however, the two are of an entirely different order. The kind of
international discord that arises from deep inequality or injustice is
clearlysomething to be avoided; but the accommodation of reconcilable
interests through ordinary, day-to-day diplomacy is a normal phenome-
non ina world ofincreasingpoliticaland economic interdependence.
528.
The machinery in Canada and the United States for the
bilateral resolution of differences and problems in dozens of technical
spheres is highly developed. Paragraphs 234-245 have shown that
the fishery is one field where the two countries have established a
'Vnited SroresMernoriol,p. 144, para.255.
" UniredSroresMernoriol,pp. 143-144,para.253.200 GULFOF MAINE [2211
particularly impressive record of technical cooperation. The use of this
bilateral machinery is a routine part of the everyday business of govern-
ment, and, generally speaking, it works well, even without recourse to
the diplomatic or political level. Such interaction is the material of a
sound political relationship. It could only be eliminated or significantly
reduced in a world far less characterized by interdependence. or in a
context of political subjection or radical inequality. There may indeed be
differences.from time to time about quotas and regulations, about scien-
tific judgments and the optimal use of the shared resources of Georges
Bank. There have been differences in the past and there could well be
more in the future, here and in other boundary areas off the coasts of
Canada and the United States. Most can be settled by the technical
experts; a few will require diplomacy or occasionally an intervention at
the political level. There is nothing to be feared in al1 of this. It is an
inevitableconsequence of the sharing of the North American continent.
2. Reliance uponFalse Analogies
529. The whole United States argument respecting the use of
"natural features" in the determination of maritime boundaries is based
on a false analogy to the case of land boundaries - a false analogy and
a misconception. S. Whittemore Boggs, the eminent American geogra-
pher, has pointed out that even on land the expression "natural bound-
ary" is something of a misnomer. The decision to use a natural feature
as a boundary is always one that is based upon political factors:
"Simply because a line is marked by nature does not necessarily
imply that it is a 'natural' thing to utilize it for boundary purposes
or that it may constitute a desirable or 'natural' line of separation
between neighbouring peoples. A political scientist has remarked
that a 'natural bou.ndary' becomes simply that natural feature
somewhere beyond a state's present political boundary to which its
leaders would like to expandJo."
Boggs goes on to point out that Lapradelle in La Frontièresays that "in
our day there are no longer any except artificial boundariesJ1".
530. The United States has offered two examples of arbitrated
land boundaries that, it claims, support its "dispute prevention" theorylz.
Yet, in both the Island of Timor and the British Guiana cases the deci-
sions were influenced primarily by the objective of effecting an equitable
division of the territory, coupled with the special circumstances arising
from its remote and unexplored character". The watershed portion of
the boundary resulting from each of these awards formed only a single
S.W. Boggs:IniernoiionolBoundori-s A Srudy ofBoundoryFunciionsand Prob-
lems.New York. ColumbiaUniversity Prcsr ,940,pp. 22-23:Counier-Memariol.
Annexes.Vol.V. Anncx 107.
" S. W. Boggs:lnrernarionolBaundoriesp.23: Counier-Mernorial.AnncxrsVal.V,
Annex107.
'>UniredSioier Mernoriapp. 144-145para.256and p.145,footnotc1.
53Thc BririshGuionnawardwas basedlargelupon principlof effectiveoccupation. COUNTER-MEMORW OF CANADA 201
sector of a far more extensiveboundary based primarily upon thalwegs
- upon the division of an important geographical feature, contrary to
the principlesof the United States Memorial. Similarly, the soiearbitra-
tor in the Walfish Bay Boundarycase of 191 1 took account of the fact
that the grazing patterns of one group of localinhabitants did notextend
to the "plateau" in issue - a factor that argues against the United
States claim to the wholeof an area where Canada has one of ils major
fishing grounds.The plain fact is that neither of the land boundarycases
cited by the United States actually supports ils position,and indeed both
of them are entirely inconsistent withthe assertion by the United States
that these arbitrations adopted watershed or summit lines "in recogni-
tion of their advantages in separating human activitiesJ4".
531. These considerations aside, the underlyinganalogy is a false
one because in virtually every case where natural features have been
used to determine a land boundary, this choice hasbeen prompted by
functional considerationsthat have no counterpart al sea. A mountain
range might be chosen because it is conspicuous; buttoday's fishermen
and mariners can easily and precisely fixtheir positions in relation to
any sort of boundary. A desert or a mountain range may divide ethnic
populations;il may serve as a natural partition that will help to keep the
peace and strengthen national security; it may reflect established eco-
nomic patterns or serve as what has been called a "natural barrier to
trade"; a lake or a major waterway may serveas a major artery of trade
and communication and, on these and other grounds, cal1for an equita-
ble division betweennations. None of this has any application to the
maritime domain. The most salient feature of the sea is that it is gener-
ally featurelessand servesas a mediumof unimpededcommunication. It
has no natural barriers.
532. There are, of course, cases where a "summit"or watershed
line has been selected as the most convenient methodin al1the circum-
stances. More typical, however,are those cases where a majorriver sys-
tem or drainage basin is shared by two or more States - the Danube,
the Rhine, the Nile, the Ganges, to name a fewof the best-knownexam-
ples. If a single dominant trend can be discerned in the boundary prac-
lice of States respectinginland waterwaysand riversystems, itlies in the
direction of equitable division rather than exclusiveappropriation. This,
of course, is the underlying rationale of the mediurnjilum aquaerule, as
it is of the thalweg in the case of a navigable river. Where the most
important economic benefit offeredby a river lies in its function as a
channel of communication - in other words, where the real economic
issue is navigation - the purpose of the thalweg is Io ensure that this
benefit is shared equally by the riparian States. The thalweg functions,
in other words,as a rule of equitable division.
J'andheldthal the partitionof a nomadictribe wasno1a relevantconsideration.In thcs
Turkey-Armenia award.PresidentWilsonstated in hismveringletterthat "consider-
ationof a hcalthycconomiclifc for the fuiurcstatc of Armenia shouldbedecisivc".
PresidcntWilson's awarwas bad uponthc primacyof cconomic,uimmcrcial,and
tradcrclations.Whcrcthe boundaryfollowcdnaturalfcatures.il wasbccausethe pat-
ternof economicrelationswincidcd with "gwgraphicbarriers".Foreign Relofionrof
ihcUnitedStoies.Vol. 3. 1920.pp.7W795.202 GULF OF MAINE 12231
533. In the case of the Canada-United States boundary, these
general principlesare in evidencefrom coast to coast. Wherever a natu-
ral feature of economic significance is present in the region of the
boundary, the solution has been to ensure that both countries have
accessto it. The most important single instance,of course, is the division
of the Great Lakes and of a substantial portion of the St. Lawrence
River; but the same general approach is equally apparent from the equal
division of the Juan de Fuca Strait at one end of the continent to the
mid-channel divisionof the St. Croix River and the equidistance line in
the Grand Manan Channel at the other.
534. The appeal to the "buffer zone" concept in the United
States Memorial is totally mi~placed'~T . he Memorial refers to natural
features "that coincide with the extent of human activities in an area",
and to buffer zones "that confine human activities, and their effects, to
an identifiable areaJ6". Canadian and United States fishing patterns
throughout the Gulf of Maine area are restricted only by jurisdictional
barriers of recent origin, which havecreated no practical difficulties of
enforcement or compliance whatever. These fishing patterns have tradi-
tionally been and remain unconfined by natural features of any kind. By
the very criteria the United States has suggested, there is no feature in
the Gulf of Maine area that coincides withthe extent of human activities
and that is apt to serve as a natural buffer zone. Moreover, the sugges-
tion that human activities should be confinedso as to avoid transbound-
ary effects is an indirect assault on the whole concept of shared natural
resources and its corollary of international cooperation - and is legally
untenable for that very reason. Indeed, the entire notion of a delimita-
tion based upon buffer zones is incongruous in the present circum-
stances. It assumes a degree of tension betweenthe two States and their
nationals that is wholly at variance with the facts, and it makes the
equally unfounded assumption that modern offshore fishermen and
enforcement vesselsare incapable of accurate navigation.
535. The appeal for support to the Grisbadarnaaward is simi-
larly without foundations'.The essential point in that case is that the
parties had both agreed that the small fishing grounds in contention
there should not be divided. No general principle of law can possiblybe
attributed to the award on this point, which simply reflected the com-
mon attitude of the parties throughout the course of the negotiationsand
the arbitration. There is no evidencethat the Tribunal was prompted by
a concern with the prevention of future international disputes between
the two States, or that it perceiveda need to create a buffer zone to keep
their fishermen apart. Furthermore, the award does not suggest that the
" UnitedSroresMemorial,p. 113,paras.179-180; p. 121. para. 196;p. 144, para.255.
There can be no analogy intendcdhere to the eight-mile"bufferzones" establishcd
bythe ltalian authoritiesoff Li"10avoid thedangerof frictionthal might arise
from the difliculof establishingthe precisepositionof a foreign vesse1near the
frontie...".I.C.J. Repor1982, p. 70, para.94. Today.of course, thisdifficultyna
longerexists- cithcrfor lishermenor for enforcement authoritie-s buof the
widespreaduseof modernnavigationalequipment.
" UniiedSioies Memoriol.p. 144.para.256.
" UniiedStates Memoriolp.113.para.180;p. 144,para.255.12241 CouNTER-uEMoR OFACANADA 203
boundary was drawn in order to separate fish stocks into biologicalunits
and thus to prevent transboundary effects in the fisbery.
The reliance onthe Fisheriescase is evenmore far-fetchedJ8.
536.
The United States contends that this case somehowsupports itsprinciple
of dispute minimization by virtue of the consideration that enforcement
and compliance by fishermen were facilitated by the Norwegian limits.
The pertinent passage of the judgment refers to a diplomatic exchange
that occurred over a century ago, in 1870,when the Norwegian Govern-
ment invoked this factor as a merely subsidiary consideration flowing
from the special geographical circumstances of the areaJP.It was not
advanced asan independent legal consideration - even in the conditions
of 1870, whenthe navigational equipment available to fishermen might
have made a highly broken, "saw-tooth" limit a far greater inconven-
ience than today. Neither the Norwegian Government nor the Court
itself associated thisfactor witbthe prevention of international disputes;
or with the creation of a "buffer zone" for the separation of fishermen;
or with a general need to avoidtbe divisionof fishing grounds. Indeed,if
the analogy had any legal relevance, it would weighfar more heavily
against the irregularities of the new United States line than against the
perfectly practicable equidistance line that isclaimed by Canada.
537. It il1behovesthe United Statesto relyon "the refusalof States
involved to share authority over their fishermen" in support of its
argument that authority over the resources should be undivided. True,
the United States declined to share such authority when it failed to
ratify the 1979Agreement on East Coast Fishery Resources;but it can
hardly be heard 10 rely on ils own unilateral actions in this particular
matter to found a general principle of law. Almost every fisheries com-
missionthat ever existedis based on such a sharing of authority, in some
degree; and paragraphs 234-245 have demonstrated the extensivenessof
North American State practice in this regard. Nor is it legitimate for
the United States to suggest that shared authority will lead to distrust, a
lack of enforcement and a probability that the fishermen "will avoid
complyingwith regulations60. ..".This is an unwarranted inference from
the very worst aspects of the unregulated, high seas régimeof former
years, and one that can have no application to the new 200-mile zones,
where the coastal States have a plenary authority to regulate the fisher-
iesand to enforce their regulations.
538. The practical effect of "single-State management" of off-
shore resources is the exclusion of one State from the crucial area in
order to simplify the life of ils neighbour. The incompatibility of this
solution with equitable principlesis manifest. So too is the impracticabil-
ity of finding a single line to accommodate the varied resources divided
by a general purpose boundary - oil and.gas, cod, haddock, scallops,
lobsters and so on - al1of which havetheir own distributional charac-
teristics, many ofthem not yet understood with certainty in the present
state of scientific knowledge.The United States theory of single-State
'Wnired StatesMcmoriol,pp. 114-115.paras.181-183
59 I.C.J. Reports19pp. 135-136.
" UniredSratesMemoriolp. 144.para.254.204 GULFOF MAINE [2251
management is a defeatist theory in its assumption that two coastal
States cannot cooperate in the management of transboundary resources
off their respective coasts. It implies a novelkind of national isolation-
ism, fundamentally at odds with the objectivesof equity and cooperation
that are increasinglyrecognized bythe law. Its premises are unfounded
in experience and have no place in the modern law of maritime
boundaries.
Section III. The United States Provides No Criteria for Selecting
and Weighing the Relevant Circumstances
539. The fourth "equitable principle" posited by the United
States is the residual principlethat al1the relevant circumstances in the
area should be taken into account6'. These circumstances are to be
balanced in order to produce an equitable solution, and it is the relevant
circumstances "taken together" that are determinative. In determining
the relevant circumstances it is necessary to identify the relevant area
and al1the geographical factorsthat are either relevant in themselvesor
"are the situs of relevant resourcesor activities6"'.
540. Canada is in general agreement with these propositions,
except to the extent that the United States has linked its notionof rele-
vant circumstances to the series of specific "equitable principles" it has
advanced. In particular. Canada agrees that the relevant circumstances
must be consideredin their total context,and that the "situs of relevant
resources or activities" should be taken into account in identifying the
relevant area. This approach is consistent withthe Canadian view that
there is an interaction betweenthe physicaland the social and economic
aspects of geography, and that established patterns of resource utiliza-
tion and dependence should havea bearing on the identification of the
relevantcoasts6'.
541. What is missingfrom the United States analysis, however,is
the identification of any criteria for the selection and weighing of the
various circumstances that are present in any particular case. In
Canada's view, these criteria are to be found in the nature and purpose
of the zones to be delimited; ih the source of the coastal State title; and
in theactual impact the boundary willhave.
Conclusion
542. There are two general reasons why the United States cata-
logue of equitable principles is legally misconceived.The first is that,
even though much of the catalogue has been tailor-made to produce a
particular result, thentire approach is one that divorcesequitable prin-
ciples from the need to achieve an equitable solution in the circum-
stances of each case; and the result proposed bythe United States on the
basis ofits list of principlesis patently inequitable.
a UnitedStoresMernoriclpp. 145-147paras257-261
62UnifedSrafesMcrnorinlp. 145para.25.3.
" ConodianMernorial.p. 133.paras.316-317.i2261 COUNTER-MEMORIALOF CANADA 205
543. The second reasonis that two of the United States "princi-
ples" - those dealing with the single-State management - refer to
purely operational considerations that have no place in a delimitation
that is to be effected in accordance with international law. These opera-
tional factors may go to the manner in which coastal States should exer-
cise their sovereignrights and jurisdiction, but they simply beg the more
basicand logicallyprior question of the extent of the areas in which such
rights and jurisdiction may lawîully be claimed. Furthermore, the
implications the United States has derived from these factors are based
upon conjectural and often fanciful "scenarios" or predictions about
what might transpire over the years when the boundary has been put in
place, and they are legallyextraneous on that ground alone.
544. The United States' principles and their application are
therefore inconsistent with the requirement of the Special Agreement
and of the Statute of the Court that the decision is to be made on the
basis of international law. They are equally inconsistent with the two
most fundamental requirements of the delimitation articles of the new
Convention onthe Law of the Sea: that the delimitation should achieve
an "equitable solution", and that it is to be effected "on the basis of
international law".206
CHAPTERIII
EQUITABLE PRINCIPLES ON THE BASIS OF THE
APPLICABLE LAW
Introduction
545. The Special Agreement requests that the decision in this
case be made "in accordance with the principles and rules of interna-
tional lawapplicable in the matter as betweenthe Parties", and the Stat-
ute of the Court itself requires the application of international law. The
Parties have found common ground in the importance they accord to
equitable principles. but there is little agreement between them on the
actual content of these principles or on their application in the present
case. In Canada's view, there are five propositions that are basic to the
application of equitable principles withinthe law.
(a) Equitable principles must be identified and applied on the basis of
the applicable law.
(b) The boundary should respectthe basis of coastal State title.
(c) The boundary should respect the basic purposes of the rights and
jurisdiction in issue.
(d) The boundary should take account of legally relevant circumstances.
(e) The result of the application of equitable principles must itself be
equitable in thelight of al1the relevant circumstances.
Section 1. Equitable Principles Must Be Identified and Applied on
the Basis of the Applicable Law
546. As was stated in paragraphs 472-476, the applicability of a
principle depends upon the relevant circumstances of the case and the
equitable character of the solution it would produce. Yet equitable prin-
ciples should clearly bemore than relevant circumstances taken out of
the context of a particular case and givenan abstract, normative expres-
sion.There must accordinglybe added a secondcriterion for the identifi-
cation and application of the principles that are relevant to the determi-
nation of a single maritime boundary: these principles themselvesmust
be derived from the applicable law. The Court has repeatedly stressed
that equitable principles must be distinguished from equity as a matter
of abstract justice, and that what is required isthe application of "con-
siderations lying notoutside but within the rules"'. In a slightiy different
context, the Court put the point very clearly in the FisheriesJurisdiction
cases whenitsaid :
"lt is not a matter of finding simply an equitable solution, but an
equitable solution derivedfrom the applicable law2."
1I.C.J.Reports1969. pp. 46-47, para. 85; pp. 48-49. p88: I.C.JReports1982,
p. 60. para1.
I.C.JReporis 1974. p33.para7.8.208 GULF OFMAINE ~2291
in embryonicform the resource rightsand jurisdiction that are central to
that concept. Both conventions adopted the equidistance rule, and this
convergence of principles for the delimitation of the seabed and the
water column beyond the territorial sea tends to confirm the view that
Article 6 of the Convention on the Continental Shelf represents "the
particular expressionof a general norm".
551. The effect of Article 6 is not that it makes equidistance
compulsory in al1 cases, because clearly it does not. Instead, the
true effect of the combined equidistance-specialcircumstances rule in
Article6 is that the equidistancemethcd is to be used inthose cases, and
only in those cases, where it prcduces an equitable result in the light of
the geographical and other circumstances. If equidistancedoes not pro-
duce an equitable result. an abatement or variation shouldbe tried; or an
entirely different methcd may be used if the circumstances so require.
Thus, in the Anglo-French ContinenralShelf award, the Court of Arbi-
tration referred to the legal role of equidistancein the followingterms:
"The Court does not overlookthat under Article 6 the equidis-
tance principle ultimately possesses an obligatory force which it
does not have in the same measure under the rules of customary
law; for Article makes the application of the equidistance princi-
ple a matter of treaty obligation forParties to the ConventionJ."
It is preciselythe application ofArticle 6 that distinguishesthe situation
here from that considered in the Tunisia-Libya Continental Shelfcase,
where the Court said that it was not required to examine the effect of
the equidistancemethcd as a first step- although even there, of course,
the positionof the equidistance line in the seaward area was considered
and givenweightas a relevantcircumstance6.
B. SOURCE OSF LAWRESPECTIN THE EXCLUSIVE ECONOMIZ CONE AND
THE 200-MILEFISHING ZONE
552. The specific rules of law for the delimitation of the water
column are lessclearly defined.Article 74 of the new Conventionon the
Law of the Sea providesthat the delimitation of the exclusiveeconomic
zone between States with opposite or adjacent coasts "shall be effected
by agreement on the basis of international law, as referred to in
Article 38 of the Statute of the International Court of Justice, in order
to achieve an equitable solution". Thus, Article 74 emphasizes the need
to achieve an equitable result; but as the Court noted in the Tunisia-
Libya ConrinenralShelf case, in connection with the identical rule in
Article 83 respecting the delimitation of the continental shelf, "any indi-
cation of a specificcriterion" that might haveprovidedspecificguidance
has been excluded'. There is, however, another equally important
requirement in Article74, which formed the basisof the consensuson its
Anglo-FrencConlineniolShelfaward. p. 48, para.70
I.C.JReport1982.p.88,para126.
' I.C.JReport1982,p.49.para.50.~301 couh"rER-MEMoR OFC ANADA 209
formulation. The delimitation is to be effected "on the basis of interna-
tional law". Clearly, thisanguage requires that some content and preci-
sion should be givento the concept of "equitable principles" as il applies
in the case of the 200-mile zone. In the Canadian view, this can be
achieved only through an analysis of the legal basis of title to such a
zone and the legal subject matter and purposes of the jurisdiction it
entails.
553. Two principal inferences can be drawn from such an anal-
ysis. The first is that the emergence of the exclusiveeconomic zone, in
which coastal State titleis based uponthe criterion of distance from the
Coast, has given a new importance to proximity in the delimitation of
maritime boundaries with the 200-mile limit. The secondis that, because
economic considerations are central to the basic purpose of the new
forms of maritime jurisdiction (as they are to the continental shelf as
well), it followsthat a significant and established economic dependence
upon the resourcesof the disputed area is a factor that should be givena
special weight.
554. These considerations will be reviewedin greater detail later
in this Counter-Memorial, but it is important to bear in mind through-
out that a single maritime boundary is more than a simpleaggregate of
itsseveral components. The sovereign rights and jurisdiction delimited
by a single maritime boundary should be considered not in isolation but
in their total context, as a single bundleof rights. Butossiblythe most
important implication is thatbecauseof the very diversityof the matters
at stake, the common features that are shared by each of the principal
forms of jurisdiction must take on a special weight. In the Canadian
view,this reinforces the importance that adjacency and proximity should
be accorded, because these are the factors that provide the common
denominator of each of the specific forms of coastal State jurisdiction
that comprise the total régime.The role of established economic depend-
ence is also strengthened; for the central. dominant concernof the exclu-
siveeconomiczone (as the name implies) is the resourcesof the sea and
the economic benefits they provide.
Section II. The Boundary Should Respect theBasis
of Coastal State Title
555. There is a close correlation between the basis of coastal
State title and the law applicable to the delimitation of maritime zones.
It was preciselyfor this reason that the Court in1969 made natural pro-
longation the point of departure for the principles of delimitation it
adoptedB. More generally, the question as to which State has the
stronger title is central to the evaluation of competingclaims between
opposite or adjacent States, and this question can be addressed only in
q.C.J. Reports 1969p.31para.43; p. 51,para.95;p.para.tOI(C)(l)210 GULFOF MAINE 12311
terms of the basis upon whichthe law attributes to coastal States title to
maritime areas.
556. Developmentsin the law of the sea have made distance from
the coast the decisivefactor in the definition of coastal State title to off-
shore zones.The most fundamental characteristic of coastal State title to
an exclusiveeconomic zoneis that it is based on a uniformand constant
distance from the coast. which is the same for al1coastal States. It is a
spatial conception that operates independently of any physical criteria
other than simple proximityto the coast. Not only does the 200-miledis-
tance criterion constitute the sole basisof coastal State title to an exclu-
sive economic zone or a 200-mile fishing zone, but it has now been
accepted also as a sufficient basis of continental shelf jurisdiction within
that distance from the coast'. It has becomethe central factor in giving
precise content to the principle of appurtenance and the maxim that the
land dominates the sea.
557. There are at least four separate reasons why the new frame-
work of coastal State jurisdiction calls for consideration in the present
case. First, the 200-mile fishing zones to be delimited are based upon
these recent developments.Secondly, the combinedcontinental shelf and
fisheriesjurisdiction to be delimited by the single maritime boundary in
the present case closely resembles an exclusiveeconomic zone inal1but
name. Thirdly, the United States has already created an exclusiveeco-
nomic zone,to which the boundary willbe applicable by virtue of Article
III of the Special Agreement. Fourthly, the equidistance-specialcircum-
stances rule in Article 6 ofYhe Convention on the Continental Shelf is
fully compatible with the new orientation of the law. It has indeed been
held that "the rules of customary law are a relevant and even essential
means both for interpreting and completing the provisions of Article
61°",and customary international law undoubtedly incorporates recent
developmentsin the law ofthe sea to a very significant degree".
558. The importance now accorded to the distance principle
enhances the role of proximity in the delimitation of maritime bound-
aries within the 200-mile limit. Because distance from the coast is the
main basis of title within this new framework, it must also serve as a
leading testof the strength of a claim within areas of potentiallyoverlap-
ping zones.It gives new strength to the commonsense preceptthat the
waters lying closest to a State should normally fall under its jurisdiction.
559. But distance from the coast is a factor and not a method. It
calls for considerationin conjunction with the concrete factual circum-
stances in each case - geographical and other - and its role can be
AlthoughArticle76of thenewConventionan theLawof theSca maintains theroleof
naturalprolongationinprinciple,ils practicaleffcctis thatdistanceir madca sufficicnt
bais of titlc out to the ZWmile limit. Even beyondthe 2Wmilc limit. thedistana
principle ispartiallyrctaincdin the use of thc 350-milemaximum aspartof thefor-
mulafordcterminingtheouterlimit of the shelf.
'O Anglo-FrenchConfinenfolShelfaward, p. 50, para.75.
" Anglo-FrenchConiinenlalShelf award, p.40. paras. 47-48. In the Tunirio-Libyo
ConfinenialShelfcasc. the Courtstatedthatit "wouldhavehadpropriomofuta take
accaunt ofhc progressmadc atthe [Law of thc Sea] Conferenceevenif the Parties
hadna1alludedto it inthcirSpecialAgreement".I.C.J.Reports1982, p. 38. para.24.12321 COUNTER-MEMORIALOF CANADA 211
strengthened or.weakened by the operation of these other circumstances.
There can be a variety of methods that give it adequate expression in
varying situations. Where the coastline is straight, a perpendicular or
some variant of that method may leave the waters closest to each State
sufficiently within its jurisdiction; and there may be cases where other
simplified lines can achieve the same result. Clearly, however,equidis-
tance is the method that does so with the greatest precision. provided
that due allowance is made for the presence of special configurations
or distorting features. It follows that the emergence of the distance
principle as a primary basis of coastal State title lends a new weight to
equidistanceas a method of delimitation.
560. In the North Sea ContinentalSheljcases the Court rejected
the contention that absolute proximity, and with il equidistance, were
inherent in the concept of the continental shelf under customary interna-
tional law. It held that there is "no necessary,and certainly no complete,
identity between the notion of adjacency and proximity", and it stated
further that the principle of the natural prolongation or continuation of
the land territory was "more fundamental than the notion of
proximity"". The judgment recognized, on the other hand, that prox-
imitycan be a relevant factorand an important test:
"Even ifproximity may afford one of the tests to be appliedand an
important one in the right conditions, it may not necessarily bethe
only, nor in al1circumstances,the most appropriate one"."
The essentialobject of the Court was to reject the "fundamentalist" view
of absolute proximityand equidistanceas possessingan "apriori charac-
ter of necessity or inherency" and a "juristic ine~itability'~".As such,
these statements remain fullyapplicable today.
561. In another sense, however, the subject matter of a single
maritime boundary calls for a much greater emphasison proximity than
was the case under the customary law of the continental shelf in 1969.
The crux of the Court's reasoning in the North Seo Continental Shelf
cases was that the principle of natural prolongation was "more funda-
mental" than the notion of proximity. In Canada's submission, this
proposition no longer holds true of a single maritime boundary appli-
cable both to the water column and to the continental shelf within
200 nautical miles from the Coast.Moreover,even inrespect of the con-
tinental shelf alone, the Court noted in the Tunisia-Libya Continental
Shelf case that the "basis of the title of a coastal State" and the "legal
concept of the continental shelf as based on the 'speciesof platform' "
had been modified by the introduction of the distance criterion in the
1982 Convenlionon the Law of the Sea'5.In particular, it noted that the
new convention departs in certain respects from natural prolongationas
l2 I.C.JReports1969, pp.30-31. paras.42-43.
'II.C.J.Reports1969, p. 30. para.42.
t4I.C.J.Reporta1969, pp.28-29. paras.37-38.
lJI.C.J.Reporl~1982. p. 48, para.47.212 GULFOF MAINE [233-2341
the basis of title, insofar as the convention provides in certain circum-
stances that:
". . . the distance from the baseline, measuredon the surface of the
sea, is the basis for the title of the coastal State, itdeparts from
the principle that natural prolongation is the sole basis of the
titleI6."
This factor, and more particularly the fact that the issue in the present
case is a single maritime boundary, clearly requires a reconsiderationof
the subordination of proximity to natural prolongation that was the
essential rationale of the conclusionsreached by the Court in the North
Seo Continental Shevcases.
562. The judgment in the North Sea Continental Shelf cases
linked the concept of non-encroachment to natural prolongation; but as
was noted in paragraphs 479-486, Canada's view isthat non-encroach-
ment is more logically associated with the distance principle in the con-
text of a single maritime boundary. While natural prolongation cannot
be identified, even in a theoretical sense, as the fundamental point of
departure for the boundary in issue here, the criterion of distance from
the coast lends a continued relevance to the doctrine of non-encroach-
ment. In the absenceof special geographicalcircumstances, any substan-
tial departure from the precept that the waters closest to a State should
normally be assigned to its jurisdiction is often likely to lead to an
encroachment on the area of the sea most naturally appurtenant to that
State.
563. In brief, the use of the distance principle as the sole basisof
title with respect to fisheries and water-column jurisdiction, and as an
important element in the revised basis oftitle with respect to the conti-
nental shelf, carries a number of important implications which may be
summarized as follows.
(a) The seaward extension of a coastal State includes al1waters within
200 nautical miles of its coast, and al1such areas must prima facie
be consideredlegally adjacent or appurtenant to that State.
(b) Since distance from the coast is a fundamental basis of coastal State
title, it is necessarily an important factor in assessing whichState
has the stronger claim in an area of overlappingseaward extensions.
(c) The use of the distance principle similarly strengthens the impor-
tance of closeness to the coast in applying the principle of non-
encroachment.
1. The Radial Projection of the Coasts
564. As explainedin paragraphs 150-153,where a maritime zone
is defined in terms of distance, the seaward extension of the zone must
'61,C.JReport> 1982.p.48,para.48 [235-2361 COUNTER-MEMORIALOF CANADA 213
be thought of in terms of a "radial" projection from the coast. Like the
range of the swivellingcannon that prefigured the three-mile limit", the
seaward projection of the coastextends in every direction toward the
open sea and not merely in a rectilinear thrust outward from a coastal
front.
@ 565. It is for this reason that Figure 31 of the United States
@ Memorial is misconceivedin its basic legal assumptions. Figure41 of
this Counter-Memorial shows the absurdities that can result if the sea-
ward extension of the coast is conceptualized in the rectilinear and per-
pendicular fashion illustratedin the United States Memorial. The anom-
alies, of course, are apparent whatever the legal basisof title; but where
title is based upondistance from the coast, their repugnance to both law
@ and common sense is al1the more pronounced. Figure 4IA illustrates a
case where largeareas of the sea wouldnecessarilybe excluded from the
seaward extension of the adjacent land, notwithstanding the length and
proximity of the coast, if that extension werestrictly dependent upon a
perpendicular relationshipto a coastal front. More strikingill is the
@) effect shown in Figure418.Paradoxically, the use of broad perpendicu-
Jar arrows in the manner of the United States Memorial systematically
places the offshore areas that are jurthest from each of the coastal
States under the jurisdiction of that State. Although a reductio ad
absurdum. the effect is exactly theme as the depiction of the relation-
@ ship of eastern Georges Bank to the coast in Figure 31 of the United
States Memorial.
566. The notion ofa radial projection isillustrated by the arcs of
circles method of delineating a 200-mile zone, although it is not, of
course, dependent upon the use of that method. The arcs of circles tech-
nique is a concrete expression of the distance principle as applied in
practice.t has been widelyaccepted by States in recent years in delimit-
ing their 200-mile zones, and it has been used by both Canada and the
@ United States for this purpose. (See Figure 5 of the Canadian
Memorial.) The virtue of this method of delimiting a distance-based
zone is that it is simpleandcurate and avoidsany substantial sacrifice
of areas that .may lawfully be claimed by the coastal State. An outer
limit reflectingeach and every variation of the base-inin effect, the
so-called"tracéparallèle" methodas it was described inthe judgment in
the Fisheries" case- would involve a much greater degree of com-
plexity in practice and would be especiallyanomalous at great distances
from an irregular coast.
567. The radial effect of the arcs of circles method'isself-evident.
Il corroborates and illustrates the view that a distance-based maritime
zone should be thought of as a broad belt of sea that surrounds the coast
of a State- an "envelope" of ocean space that lies "ofr' the co-st
and not as a rectilinear projection toward areas of the sea that lie "in
" I.C.JReporls 195p.192.DissentingOpinionof JudgeRa"lnthccarliertdays.
the cannoontheCoast,whcntravcrscdt,racedarcssplashatheirshowLaler.
the imaginarycannontraccdimaginaryarcs whichintersecmarkcd out the
limibascdancannonshot."
I.C.JReports1951pp.128-129.214 GULF OF MINE [237-2381
front of' the coast in a strictly perpendicular sense. This wnceptual
approach is particularly apt where the coastal geography is irregular and
complex. . .
568. In the modified conceptual framework suggested by the dis-
tance principle and its radial projection, the notion ofa spatial relation-
ship that is conceivedin essentially perpendicular terms, without regard
to distance or scale, is devoidof meaning. The key question becomesthat
of the relative distance of an area from the adjacent coast, and not
whether it is geometrically "in front of' that coast. Distance from the
coast, and not alignment or juxtaposition, providesthe essential criterion
of adjacency in this context; and adjacency itself should be conceived of
simply in terms of the sea areas that lie "off' and in relatively close
proximityto the coastal area wncerned.
2. ThePoint of Intersectionof Neighbouring Zones
569. There are additional factors that give a new weight to equi-
distance where 200-mile zonesare to be delimited, because of the use of
the distance principle as the essential definingfeature of the zones. The
point at which the outer limits defining the 200-mile zones of the two
neighbouring States intersect is generally an equidistance point, as
shownin Figure42, and the equidistance line may therefore be described
as the natural meeting point of the two zonesI9.While this certainly does
not implythat equidistance is always the correct approach, it does givea
particular weight to this method of delimitation. It means that the
position of the equidistance line is always in itself a highly relevant
circumstance, to whichdue consideration shouldbe given.
3. TheExtensionof a Siflgle Maritime BoundaryBeyond 200 Miles
from the Coast of Either Party
570. The property of equidistance as the natural meeting point of
two neighbouring 200-milezones has an important corollary. Only if the
single maritime boundary intersectsthe 200-mile limita! a point equidis-
tant from the coasts of both States can it allocate al1sea areas within
200 miles of the wast to one of the two States for al1 purposes of the
law. If the boundary does not intersect the 200-mile limit at this point,
ils extensionseaward willcreate an area within 200 miles ofthe coast of
one party that is beyond the 200-mile jurisdiclional range of the other
party on whose side of the boundary it falls.
571. The reason for this is as follows.The equidistance point at
the 200-mile limit is normally 200 miles from the coast of each party,
and each party may, therefore, exercise fisheriesand exclusiveeconomic
l9Thceffcctirproduccdby the use of tramepointsbathas bascpoints fconstructing
thc cquidisianceline andas control points in drawingthe 2ûû-mileaSincethe
requiredgcographicalpropertiaare tsame forboth(exccptwheredistortingeffccts
cquidirlancclinc),thetwoara willinterserton the"strict"equidistancelinc.ngthe 216 GULF OFMN€ [2@-241]
574. It is for analogous reasonsthat Boggs urged that, even on
the narrow geographicalscale of the three-mile territorialea. the point
of intersection of the three-mile arcs drawn from the two coasts is the
@ normal terminus of the maritime boundary" [Figure 441.In the circum-
stances considered by Boggs,of course, the dimensions of the problem
were simpler becausethere could be noquestionof a vertical superimpo-
sition of rights beyond the territorial sea, and because the areas in
question wereso much smaller.
575. The single maritime boundary principle accordingly favours
the use of equidistance,or at least of a linethat does not depart too radi-
cally from equidistance, in every case where the boundary may be
extended further than 200 miles from the coast of either State for the
purpose of delimiting jurisdiction overthe continental shelf. The grey
area effect described in the preceding paragraphs would deprive one
State of a portion ofils exclusiveeconomic zone so that another State
may exercise continental shelf rights beyond itsown exclusiveeconomic
zone - that is, at a distance of more than 200 miles from its coast. As
was noted in paragraph 484, such a result is generally inconsistent with
the doctrine of non-encroachment as it applies in the context of the
200-mile distance principle. The larger the grey area - and conse-
quently the greater the divergencefrom equidistance - the greater the
practical and legal difficulties that ensue. The creation of a grey area
effectmus1be consideredan exceptional measure that would have to be
justified by special circumstances.hese factors do not confer an abso-
lute or invariable validity upon equidistance in the case of a single mari-
time boundary, but they do attach a new weight 10 the equidistance
method in these circumstances.
576. Almost the entire area to be divided by the boundary in the
present phaseof the present delimitation-the area between Point"A"
and the limits of the triangle is within 200 miles of both coasts.No
grey area will result at this stage. unless the single maritime boundary is
taken beyond that portion of the triangle in which the 200-mile zonesof
both Parties overlap. But the provision inArticle VI1 of the Special
Agreement for a further extensionof the boundary to the outer limit of
the continentalmargin constitutes a relevant circumstance that mus1be
taken into account. If the Canadian line were to be extended seaward
along its established course (with no adjustment where it meets the
Canadian 200-mile limit), it would create a small grey area because of
the offlying situation of Nantucket Island and its effect in creating a
bulge in the outer limit of the United States 200-milezone. The United
States claim, on the other hand, would lead to an anomaly of dramatic
proportions. The extension of the present United States claim in the
@ manner shown in Figure 34 of the United States Memorial would leave
an area the size of Belgiumoutside the fisheriesand water columnjuris-
diction of any State- even though this entire area is within 200 miles
of the Canadian coast. Even an extension of the 1976 United States
" S. W. BoggsInrernarionolBoundnrA. SludyofBoundaryFuncrionsandProblems.
New York.Columbia University Press1940. pp. 188-190: Counier-Mernorial,
AnnexesVol.V.Anncx 107.218 GULF OF WNE 12431
implies, is an economic one,rooted in the special dependenceof coastal
States upon the resourcesoff their coasts. Its main object is to secure for
present and future generations of coastal State populations the primary
benefit of the maritime resources of their adjacent waters. It is with a
viewto attaining this basic economic objective,which is balanced by the
rights and freedoms of other States, that the management of these
resourcesisentrusted to the coastal States.
580. It follows,in Canada's view, that the economic dependence
of a coastal State upon an area of the sea adjacent to its coast should be
given a particular weight - especially where the area lies closer to its
coast than to that of any other State. This factor is inherent in the very
purposeof the zone itself,and accordinglyit has an importance in purely
legal terms that puts it on a higher plane than many of the other rele-
vant circumstances that might be adduced. The economic interests and
dependenceof the present and future population are central to the entire
legal issue, and the legal relevanceand cogencyof these factors is rein-
forced by the need to reach an equitable result within a framework of
equitable principles. These considerations, and the support they derive
from the law, have been reviewedat length in the Canadian Memorial2'.
Only a few points need be added or recalled at this stage.
581. The evolution of international law discloses an increasing
recognitionof the importance of economic interests in the attribution of
sovereignrights to States - far more than the traditional law of territo-
rial sovereignty wasprepared to accord. Although the judgment in the
Fisheries case rested very largely on traditional considerationsof State
conduct, it contributed to this development in noting the importance of
regional economic interests in the maritime areas in disputez4.At the
1958 Conferenceon the Law of the Sea, the interests of fishermen and
coastal communities beganto receive a more general recognition, with
the adoption of a resolution respectingcountries or territories whosepeo-
ple are overwhelminglydependent on coastal fisheries". The judgment in
the Fisheries Jurisdiction case of 1974 consolidated the trend and gave
it new legal weightin the importance it accorded to fisheriesupon which
people depend for their livelihoodand economic developmentor well-
beingZ6T . he current régimeof the exclusiveeconomic zoneis the culmi-
nation ofthis development,weighteddecisivelyin favour of the economic
interests of coastal States and transposing these interests into the basis
for a new and general assertion of sovereign rights within a 200-mile
zone.
582. As has already been noted, the fisheriesinterests of the Par-
ties operate in conjunction with the geographical circumstancesby show-
ing the close linkageand affinity between portionsof the adjacent coasts
" ConadionMernoNol. pp. 131-134,paras.311-319.
" 1.C.J.Reporfs 1951p.133.
" Geneva ResolutionanSpecial Situations rclatingto Caastal Fishcries,26 April 1958.
United NationsTreatySeries, Val.450, p. 62 (1963). This developmentmay be traced
backto the RomeConlcrenceconvenedpursuant 10GeneralAssemblyResolution900
(lx) of 14 December1954.
" I.C.I.Reporis1974,p. 34. para.79(4); pp.205.206, para.77(4).12441 COUNTER-MEMORIALOF CANADA 219
and the disputed area. At the same time, the prevailing patterns of the
fishery shouldhave a bearing on the identification of the particular seg-
ments of the Coastthat are relevant -or most relevant - to each par-
tion of the boundary area. There is in this way a relationship between
the physical and the economicaspects of the geography, consistentwith
the proposition in the United States Memorial that the situs of relevant
resources or activities should affect the identification of the relevant
area". Besides, the introduction of appropriate economic factors in the
interpretation of the geography recalls the view that a relevant factor in
continental shelf delimitation might well be the nearest coastal area or
terminal from which exploitation can be carried out". It seems incon-
trovertible, in any event, that the adjacent coastal areas from which
exploitation is already being conducted should be given a particular
weight.
583. The United States has relied heavily on the Grisbadarna
award, and yet it has overlookedor misconstrued someof the most basic
aspects of the award. One, in particular, has great signiiïcance in terms
of the question of economic reliance on the resources of the disputed
area. The Tribunal held, in connection with fisheries conducted on the
disputed banks, that "it is a principle ofthe law of nations that a state
of things whichactually exisrs and has existed for a long time shouldbe
changed as little as possiblezP"[Italics added]. The Tribunal emphasized
the special applicability of this principle where private interests, like
those of fishermen, are at stake; and it emphasized tw that iïshing was
traditionally more important to the Swedish inhabitants of Koster than
to the Norwegians of Hvaler. In its preoccupation with early historical
events, the United States has overlookedthe award's emphasis on con-
temparary economic realities. Yet the latter were central to the reason-
ing of the Tribunal. The relevance of historical patterns was made
dependent both on their continuity up to the time of the award and on
the greater economicimportance of the fishery to Sweden.
584. Moreover, theseparate opinionof Judge Jessup in the North
Sea Continental Sheifcases stressed the need to consider the reasoning
of the Grisbadarna award in the light of modern conditions.He said in
part:
"But it may also be noted that while in the Grisbadarna case the
Tribunal spoke of a state of things 'existing ... for a long time',
the Fisheries Convention considersas 'habituai', exploitationsdur-
ing a period often years. Considering therapidity of the progress
of exploitation in the petroleum industry in the North Sea, no
restrictive limit should beplaced on the elapsed timelO."
Judge Jessup went on to point out that there were promising petroleum
locations in the Danish area. and "to them the Grisbadarna principle
l'UnitedStatesMernoNol.p.145.para.258.
I.C.J.Reports1982. pp. 121-122, para. 75. Scparate OpiofoJudge Jiménez de
Aréchaga.
F>J. B.Scott. cdTheHogue Courr Reports. NewYork.OxfordUniversityPress. 1916.
p.130.
" I.C.J~éi&tr 1969. p80.220 GULF OF MAINE 12451
might, in al1 equity, be applied"". Clearly. these considerations were
exclusivelya matter of contemporaryeconomicinterest.
585. What is decisive is not merely the existence of established
interests in the disputed area but their real economicimportance to the
coastal State. There is a profound differencebetween an economic inter-
est that is merely beneficial and one that is vital to an entire community
or region. It lies at the origin of the concept of preferential coastal State
rights. ullimately translated into the régime of theexclusive economic
zone. This factor, as just noted, was recognized in the Grisbadarna
award in the weight givento the importance of the fishery on that bank
to the local Swedish inhabitants. More significantly. it is fundamental to
the reasoning in the Fisheries Jurisdiction case, where the Court
assessed the equities in terms of "the economic dependenceand the
livelihoodof wholecommunities"". What counts is not merely the extent
of exploitation, but the real importance of these activities to the life of
the coastal States concerned.
586. The issue here is something quite distinct from the concept
of distributive justice or the "just and equitable share". The search for
an equitable result, infra legem, must begin with the relevant circum-
stances of the case at hand; the equitable divisionof the area and of its
resources must take place within and be deduced from that framework
- the geographicalfeatures of the relevant area, the use that the coastal
States make of the resources,the degree of their dependenceand the dis-
tribution of resources withinthe relevant area. Il can never be a question
of equitable apportionment as a matter of "abstract justice", as the
Court put it in the North Sea Continental Shelfcases"; the law requires
that equity be defined and applied as a function of the factual circum-
stances and no1in terms of an abstract conception of juridical equality.
The Court has made the distinction clear in rejecting as a relevant factor
the contingent effectsof future discoverieson relative national wealth or
poverty, but recognizing the importance of known or readily ascertain-
able reso~rces'~.
587. Canada's reliance on its established economicdependence
upon the resourcesof Georges Bank respects this frameworkof equitable
principles withinthe law. It is rooted in the links betweenthe sea and
the land -the area to be delimited and the populationsof the adjacent
coasts - and in a pattern of use and dependence that is actual and
present today and not merely a possibility for the future. It proceeds
from the actual circumstances of the relevant area and the adjacent
coasts. and not froman a priori conceptionof what might be considered
a jus1entitlement in the abstract; and it respects the fundamental princi-
ples of law by giving effect to the central purpose of the 200-mile zone
" I.C.J* Reporfr196p.81.
" I.C.J. Reporfr197p.29.para.66:pp.197-198para.58.
jiI.C.J. Reporrs196p.47,para.85.
Y I.C,J. Reports 196pp.53-54. para. IOI(D)(Z)I.:.J. Reporrs 1982pp.77-78.
para.107.i2-W COUNTER-MEMORIALOF CANADA 221
- the protection of the long-term interest of coastal populationsin the
resources that provide their traditional livelihoodand that lie in closest
proximityto their coasts.
Section IV. The Boundary Should Take Account of Legally Relevant
Circumstances
588. Even though there is no legal limitto the considerationsthat
States may take into account in the context of a negotiated boundary,
the judicial settlement of a boundary in accordance with international
law implies the existence of legal criteria governing the relevance and
weight of the factual considerationssurrounding the case. Not al1factual
circumstances are legally relevant, and some are more relevant than oth-
ers. In Canada's view,these criteria may be found in the subject matter
of the rights and jurisdictioninissueand in the legal and practical effect
the boundary may have.
589. The main purpose of the boundary will be to delimit sover-
eign rights and jurisdiction respecting both the fisheries and seabed
resources of the Gulf of Maine area. It is, therefore, the factors related
to these two forms of jurisdiction that are primarily relevant. In addi-
tion, however, Article III of the Special Agreement provides that the
boundary will apply to any form of sovereign rights or jurisdiction in
respect of waters or the seabed and subsoil,and not onlyto the continen-
tal shelf and fishing zone régimesthat were then in place in the two
States. It is, accordingly, appropriate toconsider any additional factors
related to the forms of jurisdiction that coastal States may exercisein
accordance with international law withinthe exclusive economiczone.
590. On the other hand, the single maritime boundary will be
situated entirely beyondthe territorial sea of the Parties, and its seaward
terminus is to be located near or at the 200-mile limit. It follows that
considerations that might be relevant to a determination of sovereignty
in the territorial sea, but that are extraneous to either the continental
shelf or the régimeof the exclusiveeconomic zone, should logically be
excluded from consideration.More generally, al1 those activities that
continue to be governedby the régimeof the high seas and its attendant
freedoms should properlyhave no bearing on the case. There is, in conse-
quence, a broadcategory of factors that should not be considered legally
relevant, for the simple reason that they will not be affected in any way
by the singlemaritime boundary to be established inthe present case.
591. It is equaliy important to consider the factual record in its
historical context, and interms of the legal régimein effect at the time
of the events in question. The right to assert jurisdiction within zonesof
200 nautical miles, and even the continental shelf itself, are compara-
tively recent innovations. Because the development of the law overthe
last few years has been nothing short of revolutionary, the basic princi-
ples of intertemporal law havean important role to play in assessingthe
legal significanceof the factual record.222 GULF OFMAINE 12471
592. Several categories of factual circumstances have already
been dealt with extensively in this Counter-Memorial and require little
or no elaboration here. Geographical circumstances are clearly relevant.
So too is the conduct of the Parties as it relates to the delimitation of
their sovereignrights and jurisdiction, both as an indicator of anuita-
ble result and as a ground of acquiescence and estoppel. The role of
physical factors has been dealt with, both in the context of natural pro-
longation and as the basis of the novel and legally untenable United
States theory of "single-State management" of the mythical entities it
has chosen ta cal1 "ecological regimes". Finally, the categories of eco-
nomic factors that Canada considers relevant - and indeed of decisive
importance - have also been dealt with at length. To this Canada
wouldonly add its agreement that national wealthand poverty is not by
itself a 'relevant factor, as the Court has recently heldjJ. The conse-
quences of this determination for the extraneous economic evidence
introduced by the United States - for example, the allegations respect-
ing its market power as a major importer of fish products and the sig-
nificance of government assistance to the fishing industry- have been
examined in paragraphs 280-285, and 292-294 of this Counter-
Memorial.
593. There are, in addition, a number of categories of factual cir-
cumstances that require a more detailed analysis,and it is to these that
this sectionwillnowturn.
B. SPECIFIC CATEGORIE OF FACTUAC LIRCUMSTANCES
1. The History of the Fishery
594. The United States has relied heavilyon obsolete fishingpat-
terns that have longsince passedinto oblivionand have no practical rele-
vance for presentor future generations of fishermen. Chapter V of Part
II of this Counter-Memorial has shownthat the United States account is
substantially at variance with the facts and, in particular, that ites
not accurately portray the historical depth of Canada's fishery on
Georges Bank. It is equally important, however,ta place these factors in
their proper legal context. In Canada's submission, it is the contempo-
rary reality of the fishery and not its historical evolution that must be
decisivein the determination of a singlemaritime boundary on equitable
principles. The role of historical circumstances iscillary, sewing as a
test of the stability and continuity of patterns of use and dependence
that are in evidenceat the present time. This approach is required both
by general considerationsof law and by the practical consequencesthat
will flowfrom the creation of a singlemaritime boundary.
595. The fishery inthe Gulf of Maine area calls for consideration
within a frarnework of equitable principles, and clearly not as the basis
of any historical claima sovereigntyin the disputed area. There is noth-
ing here that resembles the exceptional case of historic fishing rights
I.C.J.Reports 1982.pp. 77paras106-107. 12481 COUNTER-MEMORIALOFCANADA 223
beyond the territorial sea that was consideredin the Tunisia-Libya Con-
tinentalShelfcase, and there can be no question of simplydiscoveringa
title through an analysis of the historical background. The distinction
between the delimitation of an entirely new jurisdiction on the basis of
equitable principlesand the maintenanceof previously existing territorial
rights is fundamental. It allers the extent to which historical circum-
stances are relevant, the weight they should be accorded and the nature
of theirlegal role.
596. The 200-mile zone is an outgrowth of the recent industrial
transformation of the fishery. A single maritime boundary reflecting the
pas1rather than contemporary patterns of fishingwould be an anomaly,
rather like an approach to land-use planning based on traditional
agrarian patterns that have now been overtaken by urban growth. There
have been two successiveand irreversible revolutionsin the fishery: the
first, an economicand technologicaltransformation, and the second -
very largely a consequenceof the first - a fundamental change in the
applicable lawwith the introduction of the 200-mile limit. It would be
unrealistic to steputside this frameworkby invokingthe circumstances
of a distantpas1in support of a boundary that is designed for modern
conditions. The impact of the single maritime boundary will be limited
to present and future generations of fishermen, and the relationship of
the boundary to the discontinued fishing patterns of earlier times is
essentiallyof academic interest only.
597. In sum, there are two basic reasons why the contemporary
fishery and not ils historical background musc be accorded a decisive
importance in law. First, the whole phenomenonof coastal State fisher-
ies jurisdiction in a 200-mile zone is radically new and has been con-
sciouslydesigned as a response 10 modern realities. Secondly, as a prac-
tical matter, the effect of the boundary will be felt only by the present
generation of fishermen and by posterity.It cannot alter the past or the
interests of bygone generations.In consequence,history can provideonly
as a general backgroundto the understanding of the contemporary siiua-
tion.
2. State Activifies
598. The United States has relied on a miscellaneouscollectionof
maritime activities and ad hoc arrangements, under the heading "Other
Relevant Activities16".In an attempt 10demonstrate an alleged historical
dominanceof the Gulf of Maine area, it has raised matters as diverseas
electronicaidsto navigation,early cartography, defence arrangements in
World War II and the delineation of statistical areas for the purpose of
multilateral fisheries cooperation. Canada has dealt with these factual
allegations in detail in paragraphs 431-455, as it was obliged to do in
order to correct the historical record.The more important point for the
purposesof these proceedings, however,is that most of the contentionsin
this part of the United Statesemorial are irrelevant in law.
@ @ " UniredSioies Mernorial.63-80.aras.102.132,anFigures12-15224 GULFOF MAINE i2491
599. In Canada's view, two tests should be applied to determine
both the relevance and the weight 10 be attached to various forms of
State conduct. The first is that these activities must be related infact to
the subject matter or the zones to be delimited - primarily, in other
words, to the fishery and the resources of the continental shelf. The
second is that they must be related in law to the question of the sover-
eign rights and exclusivejurisdiction of a coastal State- for example,
by implyingan assertion or acceptance of sovereignrights and exclusive
jurisdiction, ory suggestinga divisionof the area that the Parties have
considered equitable. These are the two common factors linking the
categories of State conduct that are directly relevant to the delimitation
of a single maritime boundary. They exclude from consideration those
activities that are unrelated to the subject matter of the delimitation and
those activities that amounted to no more than the enjoyment of the
freedomof the high seas in commonwith other nations.
600. This general approach is supported by the treatment given
to State activities in the Tunisia-Libya Coniinenial Shelf case. The
Tunisian ZV49 line was not considered relevant because it was never
intended as an act of delimitation: it "was never a line plotted for the
purposeof lateral maritime delimitation, either in the seas or on the con-
tinental shelf below them"". The same was true of the due north line
prescribed by the Libyan Petroleum Regulation No. 1 of 1955 and the
official map attached theret~'~.What the Court did consider important,
on the other hand, was the de facto line used by the parties in granting
their successivepetroleum concessions,a "line of adjoining concessions,
which was tacitly respected for a number of year~'~".There can be no
doubt that States grant oil and gas concessionson the basis of their
assumptions respectingthe limits of their sovereign rights; the signifi-
cance of the 2@line was that it clearly revealed the attitude of the two
parties to the crucial questionof thextent of their sovereignrights.
601. The emphasis on "sovereign rights" is fundamental. The
activitiesthat States previouslycarried out in commonwith other States,
by virtue of the concept of the high seas as res cornmunis, implied no
intention or will to act as sovereignor to exerciseexclusivejurisdiction.
The legal régimeof coastal State jurisdiction and sovereignrights in the
water column within the 200-mile limit is only a fewyears old,and even
the doctrine of the continental shelf itself is a product of the post-war
era. It would be contrary to basic principlesof intertemporal law to
attach legal consequences to State conduct that could not have been
intended, or even anticipated, when the conduct actually took place.
Most of the State conduct relied upon by the United States was in no
sensean assertion of "sovereignrights" or exclusivejurisdiction. When it
took place, it couldnever have been perceivedas even remotely relevant
to the future and uncontemplated questionof the delimitation of a single
maritime boundary beyondthe limits of the territorial sea.
''I.C.JReports1982p.68.para .0.
" I.C.JReports1982pp.68-69 .aras91-92.
" I.C.JReports1982p.71,para.96;pp.83-86paras117-12112501 COUNTER-MEMORIALOFCANADA 225
602. It is true that, in the Tunisia-Libya ContinentalShelfcase,
the Court noted that the circumstances surrounding a modus vivendi
divisionof the Libyan and the Tunisian sponge-banksduring the colonial
era could warrant its acceptance as an historical justification for the
delimitation of the continental shelf, "to the extent that the historic
rights claimed by Tunisia could notin any event be opposableto Libya
east of the modus vivendiline40".But that line involvedthe exercise of
exclusivejurisdiction by each of the two sovereigns,including the licens-
ing and exclusion of foreign vessels. It was an exceptional situation
involvingan issue of historic rights to a sedentary seabed fishery, aptly
described in Judge ad hoc Jiménezde Aréchaga'sseparate opinionas "a
form of shelf exploitation avant la letrre"". There is no analogy here:
the diverseactivities of both Parties on Georges Bank, hefore the advent
of the continental shelf and fishing zone régimesrespectively, were
activities in common withother nations and carried out as traditional
freedomsof the high seas.
603. These considerations are confirmed - indeed, required -
hy the fundamental rule of equitable principlesand the need to reach an
equitable result. It is inevitable that a great power may be able to
demonstrate a broader range of maritime activities than ils neighbours,
although Chapter VI of Part II has shown that the United States'
"dominance" of the Gulf of Maine area is very largely a myth of its own
fabrication. It is inevitable aswell that a nation that achieved a high
level ofdevelopmentat an early date may be able to demonstrate a more
extensivehistorical record of State aclivitiesat sea than one which grew
more slowlyand whosestatus as an industrial power is more recent. An
assessmentof the issueshased uponan aggregation of maritime activities
of al1kinds, nomatter how remote in time or how tenuously connected
with the real subject matter of the dispute, woulddo serious injustice to
the smaller and newerpowers.
604. The United States has invoked a widevarietyof State activi-
tics essentiallyrelated to maritime navigation - the maintenanceof aids
to navigation, the provisionof search and rescue services,and the chart-
ing of the sea. None of these activities is even remotely connectedwith
the subject matter of the present dispute,or the exerciseof coastal State
rights or jurisdiction. Navigation has always been a high-seas freedom
- perhaps the most fundamental freedomof al1 - and ils maintenance
under the régimeof the exclusiveeconomiczone is secured by the 1982
Conventionon the Law of the Sea. In the Minquiers and Ecréhos case,
moreover, France invokedthe fact that it undertook a hydrographicsur-
vey of the Minquiers area and assumed sole charge of the lighting and
buoyingoff the Minquiers.The Court found on this issueas follows:
"The Court does not find thai the facts, invokedbythe French
Government,are sufficient to show that France has a valid title to
the Minquiers ... such acts can hardly be consideredas sufficient
" I.C.J.Reports1982,pp70-71,para.95.
I.C.J.Reports1982.pp131-132,para102226 GULF OFMAINE 12511
evidence of the intention of that Government to act as sovereign
over the islets4'. . ."
This determination is al1 the more applicable to claims respecting the
continental shelfor the exclusiveeconomiczone, where the issue isjuris-
diction overresourcesand no1the control of navigation.
605. The same general considerations apply to the record of
defence activities relied upon by the United States. It is true that the
Court of Arbitration in the Anglo-French ContinentalShelf award
noted the possibilitythat, in the circumstancesof that case, navigational,
defence and security interests "may support and strengthen, but they
cannot negative, any conclusionsthat are already indicated by the geo-
graphical, political and legal circumstances of the region4'". It is only
when the course of the boundary might potentially affect the vital secu-
rity interests of a coastal State, by excluding it from the control of off-
shore areas at a short distance from ils ports and coastal defences, that
these considerationsmay cal1for attention as an aspect of the doctrine of
non-encroachmentM.There is no element of this in the arguments put
forward by the United States, whichare based upon an alleged historical
domination of this entire area of the sea. and not upon the indispensable
security interests of either of the coastal States. As such, they are
extraneous to the question of coastal State jurisdiction under the con-
temporary law of the sea and to the wholesubject matter of the present
dispute.
606. In sum, the determination of a single maritime boundary in
accordance with equitable principles is a factually oriented process, but
one that equally depends upon the application of international law.
Nothing is more central to this process than the careful selection and
balancing of the factual elements to be taken into account, and this
selection must itself reflect the applicable principles and rules of law.
What is vital is that the truly important circumstances should not be
submerged in a welter of legally extraneous and factually remote con-
siderations. In Canada's view. the decisive factual circumstances are
those that are directly related to the legal basisand purpose of coastal
State jurisdiction, and to the actualeffect the boundary willhave.
Section V. The Result of the Application of Equitable Principles
Must Itself Be Equitable in the Light of Al1the Relevant
Circumstances
607. Equitable principlesare the product of the relevant circum-
stances in a givencase together with the applicable principlesand rules
of law. selectedwith a viewto obtaining an equitable result. It is only in
the context of the relevant circumstancesand the method of delimitation
'lI.C.J. Reporlr 19p.7 1.
" Anglo-FrenchContinentaShei/award, p91, para188.
I.C.J. Reports198Separaie Opinionof Judgod hocJiménezde Aréchaga.pp. 121-
122.paras.72-75.12521 COUNTER-MEMORIALOF CANADA 227
that the applicability of an equitable principlecan be demonstrated. Part
II of this Counter-Memorial has dealt with the relevant circumstances in
depth, and Part IV will providean analysis of the appropriate method of
delimitation.It is Canada's submissionthat whenal1these considerations
are taken into account, along with the general legal considerations that
have been discussed above, a number of specific principles emerge that
will lead to a result that meets the requirement of an equitable result in
accordance with international law. These are set out below.
Conclusion
608. There are, in Canada's view, three principles that will lead
to an equitable result in accordance with international law in the present
case.
(a) In the geographical and orher circumstancesof this case. the
boundary shouldleave to each Party the areas of the sea rhar are
closestro its coast.provided thai due accountis taken of the dis-
torring eflects of particular geographical features in the relevant
area.
By far the greatest part of the area undei Canadian claim is closer
to Canada than to the United States. Although this considerationis
relevant to both the continental shelf and the water column, ils
importance is enhanced by the extensive Canadian coastline adja-
cent to the Canadian-claimed area whose population depends upon
ils fishery resourcesfor their livelihood.The geographical basis of
the Canadian claim is confirmed by the overall balance and pre-
dominantly opposite character of the coastal relationship, and ils
essential symmetry vis-à-visthe outer'area. These factors, together
with the applicable law, demonstrate the equitable character of a
boundary that leaves to each Party the portions of the Gulf of
Maine area that are closest to ils territory, provided that due
account is taken of the distorting effect of incidental special features
on the UnitedStates coast.
(b) The boundary shouldallowfor rhe maintenanceof esrablished ph-
rernsoffishing rhar are of viral imporrancero coasralcommuniiies
within the relevantarea.
The reasons that underlie this principleare fundamental to the basic
purpose of extended coastal State fisheriesjurisdiction. In Canada's
submission, the special dependenceof entire communities and
coastal areas in southwest Nova Scotia lends a particular impor-
tance to this principle in the circumstancesof the present case.
(c) The boundary shouldrespect rheindicia of what the Parries them-
selveshave consideredequitableas revealedby their conducr.
This principle was enunciated by the Court in the Tunisia-Libya
Conrinenral Shelf~ase'~, and was made a major groundof decision
'*I.C.J.Report1982,p.84,para. 118.228 [253-2541
in that case. It operates in conjunction with the legal rule that the
boundary shouldbe compatible with any rights that have vested in
either of the Parties by way of acquiescence,recognitionor estoppel.
The prolonged recognitionof Canada'scontinental shelf rights in the
area claimed by Canada providesone indication of what the Parties
have considered equitable.A further such indication is found in the
United States' acceptanceof the extent and legitimacy of Canada's
fisheries interestson Georges Bank during the course of the dispute.
and especiallyin the negotiation and conclusionof the 1979 Agree-
ment on East Coast Fishery Resources.
609. These tbree principles give recognitionto the relevant cir-
cumstances in the present case, and they do so in a manner that takes
account of their interrelationship. Most important of all, they reflect the
law applicable to a single maritime boundary, and their application is
fundamental to the objectiveof reaching an equitable result in the light
of the relevantcircumstances. PARTIV. THE COURSE OFTHE SINGLE
MARïiïME BOUNDARY: AN EQUITABLERESULT
ON THE BASIS OF INTERNATIONALLAW
CHAPTER 1
THE UNITED STATES METHODS AND
THE UNITED STATESLINES
lntroduction
610. Since 1965 the United States has employedseveral "meth-
ods" and lines to give effect to its maritime boundary claim in the Gulf
of Maine area. The United States Memorial has now put forward yet
another line, fitted out in the garb of perpendicularityand tailorede
dimensionsof Georges Bank. The United States "method", however. is
not really a method but a device, a contrivance by which the United
States seeks to justify its claim by its method, rathern justifying its
method by establishing the equitable nature and legal basisof its claim.
This no doubt helps to explain why the United States has now aban-
doned the "method" it adopted in 1976. Butthe United States proposal
of 1982, like its predecessor,is not basedon the law applicable to a sin-
gle maritime boundary and does not produce an equitable result.
611. The new United States boundary proposal, as has already
been seen, is simply a straight line from Point "A" to the northeast cor-
ner of the triangle establishedin the Special Agreement, adjusted along
its courseta provide support for the United States view that fishing
banks should not be divided.The United States hasthus exploiteda pro-
cedural device- designedto avoid prejudiceto the claims of the Parties
as they stood at the time of signature of the Special Agreement- in
order to put forward the most extreme claim possible. Inthis way, it has
managed to expand its claim ta include not only the whole of Georges
Bank but very nearly the wholeof the Gulf of Maine area, stopping only
@ 25 nautical milesshort of Nova Scotia' [Figure 21.
612. While the objectives behindthe United States line are clear,
its legal and factual rationale ares so. The perpendicular approach is
inappropriate in the present case because it ignores the particular geo-
graphical relationshipof the Parties and fails ta take account of the rele-
vant circumstances. The perpendicular method cannot be applied
between oppositecoasts or within coastal concavities,and it isgenerally
unsuited for use incomplex geographical situations.A line of constant
bearingis inherently incapable of reflecting changes in coastal direction,
the characteristicdentified by the United States itself as constituting
the pre-eminent relevantcircumstance in the area. Based as it is on the
alleged general direction of the New Brunswickand Maine coasts, the
sa-called "adjusted perpendicular line" cannot and does not take account
of the manifoldchanges in direction of theanadian Coastcaused by the
'At thesamcpaint,the UnitedSiatcs line is 72 nauiicalmilesframthe nearestUnited
States land(aallisland)and75 nauticalmilesfromthcUnited Statesmainland.230 GULF OF MAINE 1257.2581
configuration of Nova Scotia. Any method and any line that ignoresthe
very existence of Nova Scotia is obviously incapable of producing an
equitable result in the particular circumstances that characterize the
Gulf of Maine area.
613. This chapter examines the three different approaches to the
delimitation of the maritime boundary in the Gulf of Maine area that
the United States has accepted or proposed since 1965:the equidistance
approach, the Northeast Channel approach, and the perpendicular
approach. The United States Memorial now suggests that the so-called
"lobster line" of1974was a boundary claim. This assertion is also dealt
with below.
Section 1. 1965-1969: The United States Accepts the
Equidistance Line
614. As was demonstrated in the Canadian Memorial' and in
paragraphs 360-380of this Counter-Memorial, for a periodextending at
least from 1965 to late 1969, the United States accepted the equidis-
tance method for the determination of the continental shelf boundary in
the Gulf of Maine area and on Georges Bank in particular. It was not
until the end of 1969that the United States sought to reserve itsposition
on the boundary in the Gulf of Maine-Georges Bank area. The United
States, however,proposed noalternative boundary line until 1976.
615. Adherence to the equidistance methodby the United States
was to be .expected.The Special Adviser on Geography to the United
States Department of State, S. Whittemore Boggs,was in many respects
the father of equidistance'.The United States representative to Commit-
tee IV of the 1958 GenevaConference on the Law of the Sea, Marjorie
Whiteman, supported the method as one "which wouldenable equitable
apportionment to be made of the sea-bed area to each coastal State con-
cerned"'. The United States was an early party to the Conventionon the
Continental Shelf, and the practice of the United States has always been
based upon the equidistance methodJ. Nevertheless, the United States
ultimately abandoned the equidistance line in the Gulf of Maine-
Georges Bankarea and sought a basis for a far more ambitiousclaim.
2Conndion Memoriol. pp. 159-172, paras.385-411. See alsoCaoodian Memoriol.
Annexes.Vol. III.Annexes 1-14and 34.
'S. W. Boggs:"Prablcmsof Watcr BoundaryDefinitions:Median Lines and Interna-
tional BoundarieshroughTerritorialWaters.GeogrophicalReview. Vol. 27. 1937.
p. 445;Counier-Memori~l, Annexes.Vol. V. Annex 108 andS. W. Boggr:Inlerno-
rionol Boundnrier- A Study of Boundory Funelionr ond Problems.New York,
ColumbiaUniversityPrcsî. 1940. TheGcrmanjurist. F. Munch, hadearlieratternpted
ta define a mcdianlinDie rechnischenFrogendesKürrrnmeers.Abhondlungen zur
forrsehreifendenKodifikotiondesinternorionnlenRecH. 4. Kiel. Institutfur Intcr-
nationalesRechtander Universita1Kiel, 19p.156.
4Ofjïciol Records of the Unired Norionr Confercnceon the Low of rhe Seo,
A/CONF. 13/42. Vol.VI, p.95 (1958).
M. B. Feldman and D. Colson:."The Maritime Baundariesof the United States."
Americnn Journal of InrernotionoLaw. Val. 75, No. 4, 1981.p. 749;Counter-
Memo?iol.Annexer. Vol. VAnncx 109. 12591 COUNTER-MEMORlhLOF CANADA 23 1
Section II. 1976-198T 2:e United States Adopts the
"Northeast ChannelLine"
616. In 1974, two years before enunciatinga boundary claim for
its 200-milefishing zone,the United States asserted a claim to jurisdic-
tion over the lobster fishery on the United States continental shelP.
Canada immediatelyreserved its position and al1its rights in relation to
this United States claim'. In 1975, Canada became aware that the
United States purported ta exercisejurisdiction in respect of lobsters up
to the 100-fathom line on Georges Bank. Although the United States
recognized Canada's specific interest in the resources of Georges Bank
and indicated that it would not enforce its lobster legislation against
Canadian fishermen,Canada nevertheless objectedto the purported lob-
sterlaw enforcement lines unilaterally advanced by the United States.
Canada formally reserved al1its rights and emphasized that these lines
could have "no force and effect under international law", while also
stressing that no United States enforcement action against third parties
could be based on orsupport a United States claim to sovereignrights in
areas of the continental shelf appertaining to Canadag. Although the
United States nowimplies in its Memorial that the "lobster line" was in
fact a continental shelf boundary claim9, it is clear that even the United
States did not treat itas such. In any event, il was decisivelyrejected by
Canada.
617. In April 1976,the United States enacted legislation provid-
,ing for the creation of a 200-mile fishingzone on 1 March 1977. In
November 1976, the United States promulgated a claimed boundary line
in the Gulf of Maine area. According to the United States Memorial,
this line "followed the line of deepest water through the Northeast
Channel'o". It applied to bath the 200-mile fishingzone and the conti-
nental shelfand wouldhave had the effect of excludingCanada from the
whole of Georges Bank. Apart from the above-noted reference to the
"deepest water" in the Northeast Channel, the United States has never
set forth an official rationale for this line. It is this line that was in effect
when the Parties signed the Special Agreement and that, together with
the Canadian claim. is reflected in the Special Agreement's designation
of Point "A" and of the triangle.
618. The seabed of the Gulf of Maine area, the United States
agrees, consistsof a single, continuouscontinental shelf. The wholearea
east of Cape Cod is dotted with banks and depressions.The Northeast
Channel is only one of these. Although the 1976 United States line fol-
lowed the deepest part of the Northeast Channel for some distance, it
United Statesdiplomalic noof 18 January 1974.ConadionMernorial, Annexes.
Val.IIIAnnex 16.
' CanadiandiplomaticnoteNo.47 of 8February 1974.ConadionMernoriol,Annexes.
Vol.IIIAnnex 17.
' Canadianaide-mémoireof 12Scptember1975.ConodionMernoriol.Annexes.VolIII.
Anncx 24.
UniredSrorerMernoriol.pp.84-85. paras.144.145.
10 UniredSloresMernoriol.p. 89, p151.232 GULF OF WNE i2601
arrived at the Northeast Channel by a route that does not accord with
the deepest channel within the Gulf of Maine. From Point "A" the line
runs through Jordan Basin, crosses a sill to Crowell Basin, hops over
another sill to Georges Basin and thence proceeds to the Northeast
Channel; after leaving the Northeast Channel, the line crosses yet
another sill and extends to meet the outer limit of the 200-mile zone
claimed by the United States. If nature has provided aboundary in the
Gulf of Maine - a proposition that Canada does not accept - the
United States hns not iucceeded in finding il. For the ~a~ward'courseof
the United States' h'oriheast Channel line exwses this claim for whac 11
is: arbitiary and lacking in rational method810gy,followingwith com-
plete indifferenceeither the "deepest water"or the highest ground, and
consistent only with the predetermined objective of encompassing the
wholeof GeorgesBank.
619. The United States seems to have based its Northeast Chan-
nel boundary claim upon a thalweg principle, or possiblyupon the view
that a seabed depressionoperated as a "special circumstance" withinthe
meaning of Article 6 of the Convention on the Continental Shelf. Both
of these theories, however. have been rejected as a basis for maritime
delimitation in United States practice", in State practice generally and
in international jurisprudence.
620. The thalweg principle has been used in dividing navigable
rivers between opposite and adjacent riparian States and in dividing
some interna1waters, such as baysI2.The irrelevanceof the thalweg prin-
ciple in broader maritime zones is immediately obvious,for the purpose
of a thalweg boundary is to providean equitable divisionof a navigable
channel, and this issue does not arise in extended zones of functional
jurisdiction not subject to the outright sovereigntyof coastal States,or in
freely navigabledeep water areas.
621. The Anzlo-French ContinentalShelf award clearlv estab-
lished doubt that seabed depressions,trenches and troughs couid not in
themselvesorovidethe basis for continental shelf delimitations. In reiect-
ing the ~u;d Deep and the Hurd Deep Fault Zone as features caiable
of influencing the'determination of thécontinental shelf boundari, the
Court of Arbitration said that the features in question were "discontinui-
" United States for the purposc of continental shclf leasing off the California coast. For
discussion of disrcgard of deep California trenches in defining United States offshore
jurisdiaion, secF. D. Barry: "TheAdministratio of the Outer ContinentaShclf
Lands Ad." Naniml ResourCLtLowyr. Vol.1, 1968 ,. 46. Alro thethne mnsultanu
(including the late Judge RicR.rBaxter) appointcd to give advice regarding inter-
state boundaries for purporcs of the United Statcs Coasial Encrgy Impact Program
(C.E.I.P.) rcjcctcd arguments that the baundary betwcen Mississippiand Louisiana
shouldfollow a swbed channcl (the "Pearl River trcnch"). and similarly ignored the
Hudson Canyon in the dclimitatian between New York and New Jersey. See alsa
J.1.Charney: "The Delimitaiion of Lateral Seaward Boundaries betwcen Sintas
Domestic Context.AmericonJournol ofInfernofionolLaw. Vol75.1981.pp. 46-48.
M. Whiteman: Digerrqi Inlernofionol LnwVol. 4, 1965, pp. 307-309G. Gidel:
Ledroit inrernorionl ublic deIo merTome 111.1934. pp. 771-772.argues thai the
thalwivegprinciple should replace thc median line only whcrc as a rcsult of applying
the median line oneStaic would be deprived ai a navigable channcl.(2611 COUMER-MEMORIAL OFCANADA 233
ties in the seabed and subsoil whichdo not disrupt the essential unity of
the continental shelf"". The Court of Arbitration held that to give criti-
cal significanceto such a feature "would run counter to the wholetend-
ency of State practice on the continental shelf in recent years"". Simi-
larly, in the Tunisia-Libya Continental Shelf case, the Court indicated
that submarine features not representing "a marked disruption or dis-
continuance of the sea-bed as to constitute an indisputable indicationof
the limits of two separate continental shelves, or two separate natural
prolongations" should not be taken as affording a natural boundary,
although they might be relevant circumstances characterizing the arealS.
622. The United States' Northeast Channel line has passed
unceremoniouslyinto history because even its authors have realized that
it failed to take account of either the applicable law or the relevant cir-
cumstances. Seeking its rationale in the depth of the water column, this
line made no pretence of being relatcd to coastal geography. It was
therefore fundamentally incompatiblewith the judgment of the Court in
the Tunisia-Libya ContinentalShelfcase, which reaffirmed the princi-
ple that "the geographic correlation betweencoasts and submergedareas
off the Coastis the basis of the coastal State's legal titleL6".The United
States' Northeast Channel line also disregarded the fishing practices of
the two States, took no account of their past conduct respecting the area,
and ignored the vital economicdependenceof Nova Scotia upon the fish-
ery resourcesof Georges Bank. Inshort, the Northeast Channel line was
divorced from the facts and the law, and produced an inequitable and
unreasonable result.
623. The startling difference in form between the United States'
claim of 1976 and its proposal of 1982 suggests the question: what is
common to them and what led the United States so precipitously to
abandon one in favour of the other? The two lines havea common objec-
tive - the appropriation of the whole of Georges Bank to the United
States. They also suffer from a common deficiency - neither is based
on the configuration of the coasts in the relevant area. Accordingly, the
abandonment of the Northeast Charinel line in the United States
Mernorial can only attest to its inadequacy as a vehiclefor achievingthe
United States objective; for the important new element in the "adjusted
perpendicular line" is that it reaches further to the east to widen the
area in dispute.
" Anglo-FrenchConrinenrnSl helfawardp.63, para. 107.
''Anglo-FrenchConiinenrolShelfaward.p.63, para.107.
" I.C.JReporrs 1982.p.57.para.66; p. 58. para.68.
l61.C.JReporls 1982.p.61.para.73. Section III. 1982: The United States Proposes the
"Adjusted Perpeodieular Line"
The United States Memorial proposesa new line, ostensibly
624.
based on a perpendicular to the general direction of the coast. The
application of the perpendicular method has generallybeen confined to
the territorialea. It has been used to delimit maritime zones beyondthe
territorial sea only where itproduces substantially the same result as an
equidistance line or where its use has been justified by a special or
unique combination of circumstances, as in the area close to the coast in
the Tunisia-Libya Continental Shelfcase. Involvingas it does a line of
constant bearing, it reflects only a single coastal directionand is not
capable of taking account of more complexcoastal configurations.More-
over, because the perpendicular is controlled by a single coastal direc-
tion, it is less susceptibleto reasoned and reasonable adjustment to take
account of localcircumstances.
1. Ends and Means: The Promotion of Equnlity by Equal Anglesand
Equal Distances
625. The objective of the perpendicular method is to promote
equality by an equal division of the area to be delimited. Where the
coastlines oneither side of the land boundaryterminus are straight, the
perpendicular to the coast at the point of the intersection of the land
frontier will achieve an equal division of the maritime space in the
immediate vicinityof the coast. Equal divisionis realized by maintaining
equal angles of 90" between the boundary and the coasts, or the general
direction of the coasts,of both parties on eitherside of the boundary. In
other words, the perpendicular bisects the angle of 180° formed by the
coastlinesof the parties. So long as the coastlinesof both parties remain
straight, the angle will remain at 90° and the objectiveof equal division
through maintaining equal angles is realized. However, any change in
the direction of the coast alters the 90° angle and by definition nullifies
the perpendicular character of the line. Moreover,unless the change in
coastal direction on one side is compensated by a correspondingchange
in direction on the other side, the line fails to accomplish the essential
objective of equal division by bisecting the angle formed by the coasts,
and is consequently deprivedof its equitable rationale. Since, in nature,
straight coastlines are the exception ratherthan the rule, the geograph-
ical conditionsnecessaryfor the application of the perpendicular method
areseldom present.
626. There is an inherent relationship between the perpendicular
and equidistance methods, for both have a commonobject and rationale:
the promotion of equality by the equal division ofmaritime space. The
equidistance method achieves this objective by means of a line every
point of which is equidistant from the nearest points on the baselines 1263-2641 COUNTER-MEMORIALOF CANADA 235
from which the breadth of the territorial sea is measured. Geometrically,
the line that is equidistant between any two points is the perpendicular
@ bisector of the line joining the two pointsn [Figure45Aj. Consequently,
where the coast is straight, the equidistance line and a perpendicular line
will coincide. However. since almost ali coasts involve some element of
irregularity, a single line of constant bearing willldom remain perpen-
dicular to the relevant coasts for very long. In order to retain its equidis-
tant and perpendicular character, the equidistance line - that is, the
initial perpendicular bisector - must therefore change its course to
reflect the altered geographical reality represented by a changing
relationship between the nearest points on the coasts of the parties
@) [Figure45B]. A true equidistance line is, in effect, a series of segments
of perpendicular bisectors of straight lines joining the nearest points on
@ the coasts of the parties [Figure45q. It uses both distance and perpen-
dicularity as criteria in effecting an equal division of the space to be deli-
mited. If the relevant coastlines were to be represented by two straight
lines forming an angle with its apex at the starting point of the maritime
boundary, the equidistance line would bisect that angle.
627. The equidistance method thus incorporates the fundamental
methodology and rationale of the perpendicular method. The perpen-
dicular method, in fact, is a particular expression of equidistance, suit-
able for use in static, unidimensional geographical situations. As Gidel
pointed out, "La solution de la perpendiculaire sur la côte n'est donc
qu'unemodalitéspécialede la ligne médiane entendua eu senslarge'8".
628. To seek to use perpendicularity as a general principle or
method of delimitation is, therefore, to mistake form for substance, the
particular for the general. Where the coasts, or their general directions.
do not form a straight line - an angle of 180° - the perpendicular
method can only be applied by refashioning geography and by fitting the
facts into a preconceived or artificial rnould.
2. TheLimitationsof a Lineof ConstaniBearing
629. Because a perpendicular line reflects a single coastal direc-
tion, it is notuitable for use in complex geographical situations where
the general configuration of the coasts is not straight. But its not only
the baseline used to determine ils inclination that limits the applicability
of the perpendicular line. The course or configuration of the line itself is
also a limiting factor. A single straight line, a line of constant bearing,
cannot respect a coastal configuration that is characterized by com-
plexity or changes of direction. The perpendicular method is not only
incapable of reflecting changes of a local nature, such as minor indenta-
tions and protrusions or srnall offlying islands, it is also incapable of
reflecting any change in the generaldirection of the coast.
" This descriptioof the construction of an equidistance lineis adapted from
R.D. Hcdgsonand E. J. Cwper: "TheTechnicalDelimitaiionof a Mcdcrn Equidis-
tant Boundary.Oceon Developmeni and lnrernorioLow. Val. 3. 1967. p. 316;
Counrer-Memor innexer.Vol. IV.Annex6.
'<. GidelLe dmirinremoiionolpubceIomer,Tome111,1934,p.769.236 GULF OF MAINE (2651
630. In contrast to an equidistance line. which is objectively
determinable because it takes account of the actual coastal configura-
tion, a line based on the perpendicular method requires the determina-
tion of a hypothetical general direction of the coast. Because straight
coasts are rare, such a determination almost always involvesan element
of subjectivity. This defect of the perpendicular method was a central
consideration in the report of the Croup of Experts of the lnternational
Law Commission,who stated that "The Committee agreed that it is
impracticable to establish any 'general direction of the coast' in many
instances, and observed tbat any effort Io do so involvesquestions as to
the scale of the chart used for the purpose, and the somewhatarbitrary
decision as to how much coast shall be utilized in attempting to
determine any 'general direction' whatever"". The Special Rapporteur,
J. P. A. François, noted that "la méthodede la ligne iiréeperpen-
diculairementà la directiongénérale de la côtemanquede précision
juridiquez0".
631. A perpendicular line is in principle asinglestraight line.The
inflexibilitythat results from this characteristic makes it less susceptible
than equidistance to adjustment, and lesssuitable for use over verygreat
distances. In contrast, an equidistance line is generally composed of a
series of segments that respond to successivevariations in the geography.
This characteristic makes the equidistance line easier to adjust in order
to take account of the potentially distorting effects of incidental local
features. Such an adjustment can usually be effected by changing the
selection of the basepoints that affect the relevant portion of the line,
without affecting the course of the boundary in its entirety.
632. Given the limitations of the perpendicular method, itis not
surprising that it has been generally supplanted in conventionallaw and
in State practice by equidistance. Its essential objective, however,
remains valid today: to secure equality.
633. The United States seeks to derive general support for the
perpendicular method from itsuse in the Crisbadarna award, from the
fact that it was studied by the International Law Commission,from the
IsYeorbmk ofihe Iniernoiional Law CommissionVol. 11. 1953. p. 78. Englishtransla-
tion. UnitedNationsocumentA/CN.4/61/Add.l.
Yeorboo O/ the lnrernorionnl Law CommissionVol. 11. 1954, p. 6. Thc Special
Adviscron Geographyto the Unitcd Statcs Dcpartrncntof Statc. S. W. Boggs,stated
that!he rnethd of the perpendicularto the generaldirection of thecaast. was opento
critic~sm:
"...bccauseif is not alwayr fcasibleto determinethe general trendof thc coast:
how muchmst shouldbe takcn intoconsideraiionfor this purpo-e a distance
of three milcron cach side of the land boundarfivcmilcs or iwenty milcs?
And howaverage thesinumitisso as to ascertainthc gcneraltrend?"
CeogrophicolRcview. Vol. 27. 1937.p. 454:Counler-Memorial. Annexes.Val. V.
Annex 108. i2661 COUNTER-MEMORIALOFCANADA 237
employment ofa line perpendicular Io the coast in the Tunisia-Libya
Continental Sheycase, and from State practice". None of these, how-
ever,offers any such support.
1.Jurisprudence
634. The history of the perpendicular method shows that its
application has been generally limited to narrow areas of water of no
greater extent than the territorial sea. The Grisbadarna award, upon
which the United States places so much emphasis, referred only to the
territorialsea. In fact, the Grisbadarna award provides the only clear
example of the application of the method of a perpendicular tothe gen-
eral direction of the coast. That case was based on unique circumstances
and on the law of the seventeenthcentury applied to an area whosescale
@ is not remotelycomparable to the Gulf of Maine area" [Figure 461.
635. Nor does the reference to perpendicularity in the Tunisia-
Libya ConrinenialShelfcase providesupport for the contentions of the
United States. The line fixed upon inthe inner sector in tha! case was
the result of a unique combinationof circumstances, among which the
conduct of the parties was paramount. The origin of the 26" line lay in
proposais by Italy for a sponge-fishingline perpendicular "Io what was
considered to be the direction of the coastline" ar rhe land boundary.
The two States gave it defacto observancewhen they issuedconcessions
for offshore -hydrocarbon exploration and exploitationz3.This conduct
was treated by the Court as a "highly relevant" circumstance,because
both parties had therebydemonstrated that they had once consideredthe
26" line to be equitable and had acted upon il as such''.The factors gov-
erning the use of the line in the inner sector are set out in the judgment
as follows:
". .. the land frontier between the Parties, and their conduct prior
to 1974 in the grant of petroleum concessions, resulting in the
employment of a line seawards from Ras Ajdir al an angle of
approximately 26Oeast of the meridian, which line correspondsto
the line perpendicular to the coast at the frontier point whichhad
in the past been observedas a defacto maritime limit2J."
Thus, the "factor of perpendicularity" supporteda boundary chosen on
other grounds. Like the boundary in the Crisbadarna award, the origin
of this linepredated the developmentof modern methods of delimitation.
Moreover, the Court declined to use an extensionof the modus vivendi
line to delimit the seaward portion of the area because "a line drawn
" UniredSlaresMernorialp.148.para.264.
" J. BScott,cd.T:heHague Cour1Reporrs.1916.p.121.Secalso A. L. W. Munkman:
"Adjudicatioand Adjustmcnt - lnternatianludiciaDecisianand theSettlcmcnt
ofTerritoriaalndBoundarDyisputesB"ritish Yeorbwk o/lniernntionol Vol.46,
1972-73 p.56.
" I.C.J. Reports198pp. 70-71paras.93-96.
''I.C.J. Reporr~1982,p83-85.paras.117-120.
LCJ. Reporrs1982,disposiiip.93.para.133(8)(4).238 GULF OF MAINE 1267-2681
perpendicular to the coast becomes,generally speaking, the less suitable
as a line ofdelimitation the further it extends from the coast16".
2. TheInternational Law Commission
636. The limitations of the perpendicular method discussed in
this chapter were of less significance in an earlier period whenmethods
of delimitation were relatively primitive and the zones to be delimited
extended only three or four miles from the coast. Yet, as has been seen,
they were a matter of concern to the International Law Commission's
Group of Experts, and the approach of the Group of Experts was
adopted by both the Special Rapporteur and the Commissionitself. The
United States Memorial stresses the fact that the method of the perpen-
dicular to the general direction of the coast was "studied by the Interna-
tional Law Commissionin its effort to find one method suitable for al1
cases"". The Commissioncertainly studied this method but, of course,
rejected it, whether for the delimitation of the territorial sea or for the
delimitation of the continental shelf, and adopted the equidistance
method instead. The Report OFthe International Law Commission
stated:
"The group of experts was unable to support (the perpendicular)
method of drawing the boundary line. It agreed that'it was often
impracticable ta establish any 'general directionof the coast' and
the result would depend on the 'scale of the charts used for the
purpose and ... how much coast shall be utilized in attempting to
determine any general direction whatever.' Consequently, since the
method of drawing a line at right angles to the general direction of
the coastline is too vague for thepurposesof the law, the best solu-
tion seems to be the median line which the Committee of Experts
suggestedfs."
3. State Practice
637. The agreements citeclby the United States as "examples of
the use of perpendiculars ta the general direction of the coast or of simi-
lar methods to delimit maritime boundariesZ9"indicate that the United
" ICJ. Reports1982,pp.87-88, para125.
l'UniiedStoresMemorial, p. 148,para. 264.
" Yeorbwk of theInrernnrionlow Commission . ol11.1956,p. 158
UniledSIaleMernori~I,p. 148,para.265.1269-270) COUNTER-MEMORIALOF CANADA 239
States is confusing several delimitation rnethod~'~.Only one of the
agreements referred IO. that between Brazil and Uruguay. involves an
actual application of the meihod of the perpendicular to the general
direction of the coast. In fact, these two States had first agreed to deli-
mit their boundary in accordance with equidistance; the subsequent
delimitation agreement referred to the line as a perpendicular, but the
practical difference between the two methods in this instance was
negligible and the perpendicular was nothing more than a simplified
equidistance line" [Figure471.
638. Two of the boundary lines mentioned in the United States
Memorial in support of the perpendicular method (CostaRica-Panama
and Argentina-Uruguay) were in fact expressly based on the equidis-
tance or rnedian line method3'.The fact that the result approximated a
perpendicular linedemonstrates the wint implicit in the Brazil-Uruguay
agreement, namely that the perpendicular method is appropriate when
the result abo..ximates eauidistance. The beroendi. .ar method has
merit to the extent that, in appropriate circumstances, itproducesa sim-
plified equidistance line.
639. Six of the agreements referred to by the United States in
support of the perpendicular rnethod were, in fact, drawn along a paral-
le1of latitude3'.In some cases thiscan produce a result that is similar to
that produced by a line perpendicular to the general direction of the
coast, but in other cases, as the Peru-Chile [Figure 48AJ and the
Colombia-Ecuador [Figure 4881 boundaries demonstrate, there is.no
necessary correlationbetween a boundary drawn along a parallel of lati-
tude and a boundary drawn according to a perpendicular to the general
-
Thc Group of Experts advising the International Law Commission'sSpecial Rappor-
teuran the appropriate mcthcà for the delimitation of maritime boundaries in thc tcrri-
torial seaand on the continental shelf was asked ta consider. in addition ta the mcdian
linc. the following three mcrhcàs: extensionof the land boundary, a linc perpendicular
to the coastt the point where the land boundary rcaches the coast. and a linc pcrpen-
dicular to the general direction of the Ycarbwk o/rhe InternarionalLow Com-
mission,Vol. 11,1953. p. 79. A further methcd was also discussed travauxpré-
porotoiresof the 1958 Conventions on ihc Law of the Sca. thai of ertending the
territorialaboundary along a parallel of latitude from the land boundary. Scc ihc
remarks of the Unitcd Kingdom representativc. Commander KennedO/ficiol Records
of the UnitedNotionrConferenceon theLaw of theSeo.Vol. VI. p. 93.
" Ltmirr in theSeuv,NO. 71, L'n~icdSiatcDcprimeni of StnirBurcdu of Intclllgcnce
and Research. Oflice of ihc Gcographcr. 19Un~tedSlul~sM~moriai./~MU~P(I~OIJ
Annexes, Vol. IV. Annex 83.
" Treaty on Demarcation of Marine Areas and Maritime Cooperation Beiween the
Repubiic of CostaRica and the Republic of Panama. signed 2 Fcbruary 1980.entered
into farce II February 198UniredSroresMernorial.DocumenroryAnnexes, Vol. IV.
Anncr 88:Limits inthe Seas,No. 64. 1975.United StoresMemoriol. Doeumentory
Annexes.Vol. IV, Anncx 84.
j3These were the agreements betwecn Chilc-Peru:Limits in theSear.Na. 86. 1979.
UnitedStates Memorial. DoeumentoryAnnexes. Vol. IV. Anncx 79: Pcru-Ecuador:
Limits in the Seos,No. 88. 1979.United States Memorioi. DoeumentoryAnnexes.
Vol. IV. Anner 80: Cdumbia-Ecuador:Limitr in theSeosNa. 69, 1976UnitedStates
Memorio/. DoeumentoryAnnexes. Vol. IV.Anncx 81: Kenya-Tanzania: Limits in the
Seas,No. 92. 1981,UnitedStolesMemorial. DoeumentoryAnnexes, Vol. IV.Annex
87; Columbia-Panama: Limits in the Seos.No. 79. 1979, United Stores Memoriol.
DoeumentoryAnnexes, Vol. IV. Arincx 82: The Gambia-SenegalLimits inthe Seos,
No. 85. 1979,UnitedSroresMemoriol.DoeumentoryAnnexes. Vol. IV. Anncr 85.240 GULF OF MAINE 12711
direction of the coast. These agreements, therefore, do not provideexam-
ples of State practice based on the method of delimitation advocatedby
the United States.
640. The above analysis of the examples of State practice
adduced by the United States in support of the method of a perpendicu-
lar to the general direction of the coast demonstrates that there exists to
date only one genuine example of its application to extended maritime
zones (Brazil-Ur~guay)'~.The objective in that case was to produce a
simplified equidistance line. The widespread use of the equidistance
method in modern times is in sharp contrast to the rare use of the per-
pendicular method,and confirmsthat equidistance producesan equitable
result inthe great majority of cases.
641. As was pointedout in the Canadian Memorialj5,of some 94
known boundaries beyond the territorial sea settled by agreement, 66 of
them - almost 71 percent - utilize the equidistance principle for al1or
part of the line. The then Geographer of the United States Department
of State wrote in 1976 that "most maritime boundary delimitations to
date have utilized equidistance, either by direct application or with local
modification, to satisfy existing or perceived special cir~umstances'~".
These facts are hardly reconcilable with the statement in the United
States Memorial that "the equidistance methodhas not been usedmore
often to delimit boundariesbecause it is inherently inequitable in irregu-
lar geographical situations"". Since the United States Memorial also
implies that any configuration other than a straight coast constitutes an
"irregularity". it is clear that "irregular geographicalsituations" are the
norm rather than the exception, and that the employmentof the equidis-
tance method in a substantial majority of delimitations attests to its suit-
ability foruse in both regular and irregular geographical situations.
4. United States Praclice
642. In fact, the United States concedesthat it too has used equi-
distance as a method to define ccrtain maritime boundaries with neigh-
bouring States, where it was agreed "that equidistance produced an
equitable solution in the relevant geographical and otber circumstances
of thatcasej8".This concessionis more revealingfor what it does not say
than for what it does. The United States Memorial fails to point out -
as is pointed out in another source - that al1United States "boundaries
that have beennegotiated to date generally havebeen basedon the equi-
distance method to one degree or another3'>"M . oreover,the present case
''UnitedStores Memoriol, pp. 148-149.para.266.
" ConadionMernorial,p. 151,para.362.
'6R. D. Hadgsonand E. J. Cwper: "TheTechnicalDelimitationof a MadernEquidia-
tant Boundary"p.. 364:Counrer-MernoriAnnexes,Vol. IVAnnex 6.
" UnitedStorm Memoriol, p. 149,para.270.
UnitedStates Memoriol. p. 149,para.269.
M. B. Feldmanand D. Colsan: "The MaritimeBoundaries of the United States",
p. 749;Counter-MernoriaAnnexes,Vol. V,Anncx 109. 1~721 COUNTER-MEMORIALOF CANADA 241
apart, in each of the boundariesstill to be resolvedby the United States
with ils neighbours,with the exceptionof part of the boundary with the
Bahama~'~t.he United States supports the equidistance method.What is
significant also is that the boundary agreementsconcluded bythe United
States involveareas with irregular coastlines for whichsome modifica-
tion of the equidistance line has been necessary.The international prac-
tice of the United States belies ils contention that the equidistance
method is "inherently inequitable in irregular geographical si<uations41".
ISee. for examde..th. Mexico-United States boundarv illustrated in
Figu;e 49.1
643. The United States has used the equidistance rnethod in
claiming continental shelf and fisheries jurisdictionin the three Canada-
United States boundary areas in the Pacific and Arctic, despite the fact
that there exist in each of these areas circumstances analogous to those
on which the United States has relied to reject the equidistance method
in the Gulf of Maine area4'.Seaward of Juan de Fuca Strait (off British
Columbia and the state of Washington) there exists a submarine depres-
sion, the Juan de Fuca Canyon, considerably more pronounced in ils
configuration than the Northeast Channel4'. From the United States
point of view, however,the canyon is on the wrong side of the equidis-
tance line. The United States accordingly has ignored this feature, as
well as traditional Canadian fishing onrich fishing grounds, in claiming
an equidistance boundary that divides La Perouse Bank and cuts off the
edge of Swiftsure Bank. Within and seaward of Dixon Entrance (off
British Columbia and Alaska), where the Canadian coast borders two
sides and the United States coast only one side of a largeembayment.
the United States again clairns an equidistance boundary.In the Arctic,
where the Canadian and United States coastlines on either side of the
point where the land boundary reaches the coast are respectively concave
and convex,the United States once more has advanceda claim to juris-
diction up to an equidistanceline. Except where boundaries havealready
been deterrnined by treaty or arbitration, Canada has also exercised
jurisdiction up to an equidistance line, pendingboundary agreements".
644. United States domesticpractice isalso at odds with the posi-
tion taken in the United States Memorial. A Coastal Energy Impact
" M. B. Feldman and D. Colsan: "The Maritime Boundaries of the United States".
pp.750-751:Counrer-M~moriolA , nnexes.Vol.V. Annex 109.
" UnitedSlolesMernorial.p. 149,para. 270.
"Maritimc Boundariesof the United States and Canada." United States Department of
State. Public Notice No. 506. Published inFederol Regisrer.Vol. 41, No. 214.
4 Novembcr 1976. ~~. 18619-18620;CanadionMemoriol.Annexes,Val. II,Annex 30.
''Measurcd between the 100-fathom contour. Juan dc Fuca Canyon is 1I nautical miles
wide and has a depth of 874tres atseaIcvel.
Annexes. Vol. III. Anner 46; Canadian diplomatic note of 26 May 1977Conodion
Mernorio/,Annexes. Vol. III. Anner 54. The Canadian position is that the maritime
boundaries in the Beaufortca and inside Diron Entrance were determined by the
Trcaty of 1825 betwecn Great Britain and Rursia and canlirmcd in the Treaty of 1867
ktween the Unitcd States and Rursia. The coursof the boundary inside the Dixon
Entrance war linally fired by the Alaska Boendary Arbitralion of1903. 242 GULFOF MAINE 1273-2741
Program (CEIP), established by amendment of the Outer Continental
Shelf Lands Act, requires that special-purposeboundaries be established
delimiting the continental shelf adjacent to the coastal states of the
United States.These boundaries are to be determined on the basis of
principles of international law. A panel of experts (which included the
late Judge Richard R. Baxter) set up to recommend interstate offshore
boundaries forthepurposesof this legislation,has recommendedthat the
equidistance method, modified where appropriate to take account of
relevant circumstances, shouldbe used for the maritime boundaries
between variouscoastal states of the United States4'.
C. THEGEOCRAPHY OF THE GULF OF MAINE AREA AND THE SPECIAL
AGREEMEN PTECLUDE THE APPLICATIO OF THE PERPENDICULAR
METHOD IN THISCASE
645. The application of the perpendicular method must be
preceded by the identification of a single "general direction of the
coast". This the United States has attempted to do by relying on mac-
rogeographical considerationsand by assuming that Nova Scotia does
not exist. Put another way, the United States has assumedthat the Gulf
of Maine does not exist; for in eliminating Nova Scotia it has eliminated
the concavityof the coast and left onlythe coasts of New Brunswickand
Maine facing directlynt0 the open Atlantic Ocean. This refashioningof
geography by the United States is demonstrated by the fact that, in the
absence of Nova Scotia and Grand Manan Island, a line perpendicular
to the general direction of the coast might constitute an appropriate
boundary. It can therefore be seen that the United States seeks to have
the Court recognizeas equitable a boundary line that could onlybe-
tified if the Provinceof Nova Scotia did notexist.
646. The eight-fold change in theeneral direction of the coast
within the relevant area is sufficient to exclude the use of any single line
@ of constant bearing to delimit the entire [Figure71.On this ground
alone, the perpendicular methodcannot be applied in the area to be-
mited in this case.
647. The geography of the innermost sector,asell as the terms
of the Special Agreement, preclude the application of the perpendicular
method in the area close to the coast withinthe Gulf of Maine. At the
terminal point of the international boundary in Grandnan Channel,
the relationship of the coasts of the Partiesearly one of oppositeness,
and the perpendicular method, of course. is not applicable to opposite
coasts. Moreover,the Parties have agreed that the boundary to be fixed
by the Court shall commence at Point "A", almost 39 nautical miles
south-southwest (204O33') of the international boundary terminus.
They have thus recognized that it is the opposite coasts of Maine and
Grand Manan Island and of Maine and Nova Scotia that should control
the course of the line in the innermost sector. If the Parties had intended
'5For an analysof the CEIP and the signilicance of the consultansce reports.
J.1.Charney: "Thc Dclimitation of Lateral Scaward BoundaStatein aeen
DomesticContext". p. 28. i2751 COUNTER-MEMORIALOF CANADA 243
the laterally aligned coasts of Maine and mainland New Brunswickto
control the course of the line, they would have hadto fix Point "A"
sourheasr of the boundary terminus in the vicinity of the "perpendicular
10 the general direction of the coast at the international boundary ter-
El minus" illustrated in Figure 27 of the United States Memorial. [See
Figure 5 of this Counter-Memorial.]
648. Both the final direction of the established international
boundary (214041 *) and the direction of a line connecting theinterna-
tional boundary terminus to Point "A" (204O33') are approximately
south-southwest. Thus the United States perpendicular line (144") is al
a pronounced angle both to the direction of the international boundary
at its terminus and to the future maritime boundary between the ter-
minus and Point "A". Neither the United States Memorial nor a study
of a map of the area suggests any change in the configuration of the
coast thac could cause such a sharp turn in the direction of the maritime
boundary at Point "A". One can only surmise that the radical change in
the direction of the proposed boundary reflects achange in thetactical
position of the United States rather than a change in the orientation of
the coasts.
649. The actual method of construction of the United States lines
also dernonstrates the inapplicabilityof the perpendicular method in the
present case. Initially, the United States employs the international
boundary terminus as the starting point in the construction of its perpen-
dicular line, despite the fact that the resulting line. as the United States
is obliged to admit, would"intersect the Nova Scotia peninsula" thus
demonstrating the opposite relationship of the coa~ts'~.The United
Statesneglectsto mention that, even before the perpendicular line inter-
sects the Nova Scotia peninsula, il passes through Canada's Grand
Manan Island, again as a result of its opposite relationship with the
@)Coast of Maine47 [Figure 51. Although the perpendicular line is then
"adjusted" to commence from Point "A", the terminus of the land
boundary is said to be a relevant circumstance of which the United
States line takescco~nt~~T. he United States refers to the international
boundary terminus as lying in the "northern corner of the Gulf of
Mained9"."Corner" normally suggestsan angle rather than a straight
line.A perpendicular, however, can only be applied to straigbt coasts.
The starting premise of the United States, therefore, suggests theap-
plicability of the perpendicular methcd.
D.THEUNITED STATES MISAPPLIE THE PERPENDICULA MRETHOD
650. The United States criticizes the Canadian line on the ground
that the equidistancemethod is said to take into account only "a few
UniredSroresMemoriop. 179.para. 302.
UniredSroreMernorial.p. 181.Figure27.
@ 0 UniadSroresMemoriolp. 179para302.
* UniredSroresMemoriop. 169. para. 280; p. 20327.ara. 244 GULF OFMAINE (2761
selected pointson the coasts of the States invol~ed~.et the Canadian
line is constructed on the basis of elevencoastal control points". In con-
trast, the highly arbitrary line from Cape Ann to Chignecto lsthmus
used by the United States as the base of its adjusted perpendicular
touches land at onlyjive points along the coast - Cape Ann, on the
coast of Massachusetts; Ross Island,ying on the seaward side of Grand
Manan Island at the entrance to the Bay of Fundy; Point Wolfe, on the
Fundy coast of New Brunswick; and two points on Chignecto Bay.
According to the United States Memorial, the line is supposed to repre-
sent the general direction of the coast "in the vicinityof the international
boundary terminus""; and yet it never even approaches the coast of
Maine or Nova Scotia, but intersects the coast of New Brunswick at
four points.
651. The effect ofcontrollingthe inclinationof the perpendicular
by a series of points situated on the most concave position of the
Canadian coast, but ona convexportion of the United States coast, is to
swingthe line toward the Canadian coast. The net effect is to make the
concavityof the Bay of Fundy and the convexityof the Massachusetts
coast the soledeterminants of thentire United States line. The inequity
of theresult is both obviousand extreme.
652. In another sense, the United States line has been projected
from a singlepoint, Point "A". Even if it did reflect the actual relation-
ship of the coasts of the Parties at that point, a line of constant bearing
projected from that single point cannot reflect the changing configura-
tion and relationship of the coasts as the lineceedsseaward between
the coasts facingonto the Gulf and out into the Atlantic, where the sea
lies off ratherhan between the coasts. Thus, after it leaves Point "A",
the United States line clearly ceases to bear any relationship to the
coasts that border the area being delimited.
653. Like its predecessor,the Northeast Channel line, theperpen-
dicular line defies methodology.The line is "adjusted" to avoid cutting
across Browns Bankand German Bank and so provide support for the
United States contention that Georges Bank should notbe divided. The
Crisbadarna award is invoked to support this adjustment, but the
method employedin !hat case has not beenfollowed.In the Grisbadarna
award, the direction of the line was adjusted by one degree, thereby
allocating the Grisbadarna Bank to Sweden in accordance with the par-
ties' ownview that this small lobster fishing ground should not be
divided". Inthe present case,the United States has chosen to adjust the
perpendicular line tofollowthe 50-fathom line. The United States then
adjusts the 50-fathom line itself, to turn it into a series of straight lines
running at right angles to each other, on the grounds that the 50-fathom
* UnitedSrotes Memoriol. p. 149.268.a.
@@ " Conadin" Memoriol, p. 13, Figure3; CanadianHydragraphicService4003E!
deparilcdwith the.egistrarof the Court.
@ " UniredSlores Memoriol, p. 170,para.283; p. 171;Figure26; p302,p. 181.
Figurc27.
@ " J. B.Scott. ed.:Hague CourReparu, 1916.p129. 12771 COUNTER-MEMORIALOF CANADA 245
contour is "a complex and difficult boundary to define permanently"".
(This problem, of course, did not prevent the United States from adopt-
ing the 100-fathom line forits assertion of jurisdiction over the lobster
fishery in 1974.)
654. The result of this series of arbitrary choices by the United
States is in noensea perpendicularline. In part, it is perpendicular to a
series of parallel lines joining points arbitrarily selected by the United
States; in part, it is parallel to those same parallel lines. To describe
this contrivedand self-servingconstruction as an application of a perpen-
dicular"method" is'a misuse of language. It is a line of "wandering
perpendiculars" that is totally divorced from its putative originas a
perpendicular to the general directionof thest.
E. THEUNITED STATE SINEDOESNOTTAXEACCOUNT OF THE
"RELEVANC TIRCUMSTANCE NSO"RACCORD WITH THE "EQUITABLE
PRINCIPLESI" DENTIFIE ID THE UNITED STATE S EMORIAL
655. The United States' line relies upon factors and principles
that either are irrelevant or, when examined, have no substance. In
ticular, it does not accord with the "relevant circumstances"or "equita-
ble principles" identified in the United States Memorial. Nothing illus-
trates this more clearly than the statement by the United States that,
"because it borders the Northeast Channel, the adjusted perpendicular
@) line can be identified easily by fishermenSJ".Figure 30 of the United
StatesMemorial showsclearly that the adjusted perpendicular line bears
little relationship to the Northeast Channel. In fact, the United States'
adjusted perpendicular lineakes contact with the Northeast Channel
only once, cutting its semi-circular axis at an angle to the West of
Browns Bank. Accordingly, the relationsbip between the Northeast
Channel and the United States lines tenuous and accidental.
656. The United States' view that ils line of wandering perpen-
dicularsis more readily identifiablethan the Canadian equidistance line
ignores the true construction of the two lines and betrays a misunder-
standing of the way in which navigators locate a position at sea. The
Canadian line,drawn on the basis of Il coastal controlpoints, undergoes
fivemoderate changes of direction. The United States line, by compari-
son, has no coastal reference points beyond those used to establish the
base of the perpendicular, and changes directionnine limes, on each
occasion by a radical90°. Moreover, fishermen,like other navigators,
determine positionsat sea by compass bearingsof terrestrialects and
celestial observations. and by more sophisticated navigationalaids such
as LORAN. As a superficial topographicalfeature of the seabed, the
Northeast Channel has no relevance to the location of positions at sea
and to the location of a maritime boundary. The notion that the United
States'fine of wandering perpendicularsis a "readily observed" bound-
ary is a chimera.
Y UniiedSiolesMemoriop. 185,para.303.
*5UniredSlntesMemoriol.5. par17.At p. 206, para.322, the United Statesasserts
agaithatthe NortheastChanisan "easily observboundary.246 GULFOF MAINE i2781
657. The United States' claim that its line would facilitate con-
servation and management and minimize international disputes is based
on an equal mixture of illusionand legal invention;it makes a virtue of
non-cwperation and seeks to benefit fromthe rejectionof a fundamental
norm of friendly relations between States. Neither of these alleged equi-
table principles, it has been shown, has any specific relevanceto the
delimitation of maritime zones. [See paragraphs 497-538.1 In fact;
rather than dividing what the United States perceives to be "separate
ecologicalrégimes",the "adjusted perpendicularline" cuts through fish-
ing grounds; forBrowns Bankand German Bank are not confined to the
50-fathom contour as the United States implies. Nor is it true that "lit-
tle or no fishingoccurs in the Northeast Channel because of the relative
scarcity of fish and the difficulties of conducting fishing activities
thereS6".As the Canadian Memorial has pointed out" Canadian fisher-
men range over Browns Bank, the Northeast Channel and Georges
Bank. Realitysimplydoes not conform with the United States' tidy pres-
entation of ecology.
F. THEUNITED STATE CSLAIM 1sUNFOUNDE DN FACT AND LAW
658. The lack of a legal and factual basis for the United States
claim is disclosed by the fundamentally different forms and rationales
for theseveral lines it has adopted since its abandonment of the equidis-
tance line [seeFigure Il. Neithcr the 1976 nor the 1982 line is based
upon or bears any relationshipta the actual coastal geography in the
Gulf of Maine area. The 1976 line, allegedly based on "the deepest
water", veeredsharply in front of the coast of Maine and appeared to
assume that Georges Bank was the natural prolongation or seaward
extension of the coast of Massachusetts. The 1982 line, on the other
hand, based on the purported direction of the New Brunswick-Maine
coasts, appears to rest on the premise that Georges Bankis the seaward
extension of the coast of Maine. Nevertheless, the United States
Memorial adduces no factual evidencewhatever - and, indeed, there is
none - in support of its contentionthat Georges Bank appertains ta the
coast of Maine. The United States claimhus divorcesthe applicable law
from the relevantfacts, an appioach completelyat odds with the funda-
mental legal normof maritime delimitation.
659. The United States' claimalso ignores the basic purpose of
the rights and jurisdiction in issue in this case and disregards Nova
Scotia's vital economic dependence onthe Georges Bank fishery. This
dependence and the equitable considerations to which it gives rise
received unequivocalrecognition in the 1979 Agreement on East Coast
Fishery Resources.The United States Memorial makesmuch of United
States achievementsof thelast century whileignoring the conduct of the
Parties in theegally relevant period, whenthe rights and zones now in
issue first emerged: in particular, the United States' recognition of and
acquiescence in theCanadian equidistance linefrom 1965to 1969,and
" UnitedStoresMemoriol.p. 2para.322.
" CanodionMemoNnI.pp.83-84,para182. i2791 COUNTER-MEMORIAI.OFCANADA 247
the negotiation and conclusion of the 1979 Agreement on East Coast
Fishery Resources.Further, the United States method and linedisregard
the fact that Canada and the United States are parties to the 1958 Con-
vention on the Continental Shelf, and that Article 6 of that convention
providesa specific rule for the delimitation of the continental shelf that
is equally compatiblewith the delimitation of a 200-milezone.
660. The United States, in effect, bases ils approach neither on
equitable principles nor on relevantcircumstances, but rather on a the-
ory of general dominance of the Gulf of Maine area, supported by
appeals to history and nature as interpreted by the United States. The
result is unbalanced, inequitable and disproportionate. It would neither
promote conservation norminimize disputes.The essential unity of the
Gulf of Maine area is such that it is not possibleto avoid the need for
cooperation. The United States proposal, however, woulddestroy much
of the incentive forsuch cooperation.
661. The United States seeksto exploit the indeterminate charac-
ter of the relevant coastsand sea areas -a consequenceof the absence
of natural geographic features to define them - in an attempt to
demonstrate that its "adjusted perpendicular line" produces a propor-
tionate result.
662. The United States describes the area in which its propor-
tionality test is applied as:
". ..the area bounded by linesdrawn perpendicular to the general
direction of the coast at Nantucket Island, Massachusetts and at
the Chignecto Isthmus. These lines are extended to a point 200
nautical miles from the respectivecoasts and then are connected to
enclosethe areaS8."
@@ ~he application of the test is represented in Figures 34 and 35 of the
United States Memorial. There are several major inconsistencies
between the method describedin the United States Mernorial", the de-
@@ piction of the method in its Figures 34 and 35, and the actual calcula-
tions used to obtain the results.
663. The perpendicular lines enclosingthe "test area" are said to
extend "to a point 200 nautical miles from the respective coasts", but
the eastern one extends 288 nautical miles from the mainland coast of
Nova Scotia and 384 nautical miles from the point on the Chignecto
lsthmus from which it is projected. (Apparently the United States has
extended this perpendicular to a point 200 nautical miles from Sable
Island, a fact not noted in its Memorial.) Since the perpendicular from
Nova Scotia is extended seaward 10a point 419 nautical miles from the
nearest United States land, while the perpendicular from Nantucket
JEUniiedSioiesMernoriap. 192para.312.
59UniredSloresMernoriapp. 192-201.para312-314. 248 GULF OFMAINE 12801
Island is extended seaward to a point only 295 nautical miles from the
nearest Canadian land, it can hardly be said that the United States test
meets the essential requirement of equity- the comparisonof like with
like.
664. While the United States ostensiblyuses the seaward limit of
the 200-mile zonesto define the seaward limit of the test area. it never-
theless includes within this area some 14,600square nautical miles that
lie beyond the 200-mile zones of either Party. This is accomplished by
drawing a straight line between two points onthe 200-mile limitsof the
Parties. The areas outside the 200-mile limits are, of course, extraneous
to the proportionality testin the context ofhese proceedings.
665. Another inconsistencyin the United States' approach is the
exclusion fromthe ratios of the sea area north and east of the point of
commencementof the single maritime boundary - the "excluded area"
@ @ depicted in Figures 34 and 35 of the United States Memorial -and the
~nclustonof the coastlines facing this area. Because the United States
coastline facingthe "excluded area" is measured alongthe sinuositiesof
the Maine coast, the United States appears to be credited with 102
nautical milesof coast, while the Canadian coastline, being measured by
a straight line across the Bayof Fundy, is deemed to be only 29 nautical
miles in length. Since this portion of the Maine coast would measure 34
nautical miles if measured by a straight line, this United States proce-
dure again does not conformto the "absolute requirement" of comparing
like with like.
666. Another objection ta the United States' approach is the
manner in which it has enclosedthe test area by perpendiculars to what
is purported ta be the general direction ofthe coast. Despite the attempt
of the United States Memorial to reduce the complexitiesof geography
to a single macrogeographicalgeneral direction, there are in fact several
general directions of the coast in this area. The United States Memorial
itself, for other purposes, has stressed the frequent changes in the direc-
tion of theCanadian coast.
667. The general direction of the New England coast West of
Nantucket is clearly relevant to the inclination of a perpendicular pro-
jected from that point. The direction of this coastline appears to be in
the order of 079", not 054" as is suggested in the United States
Memorial. The general direction of the Atlantic-facing coastof south-
West Nova Scotia, on the other hand, appears to be in the order of
@ 054O[Figure7I6O I.Canada's subrnission,the coasts of Maine and New
Brunswickfacing the innermost sectorof the Gulf cannot be considered
relevant for enclosingthe outer area for the purposesof a proportionality
test. Inany event, the general directionof these coasts, fromthe head of
Casco Bay to the head of Chignecto Bay, appears to be about 065".
Thegcncraldirectionof the NovaScotia CoastfromCape Sableto CCanso is in
the ordcrof 061°. It is clcarlyreasousethe Cape Sableto CapeSambragen-
eral direction (054O) to calculatc the inclination of theperpendicularfrom the
Canadiancoast,onlyif a comparablelcngthof wast suchasHaven ta CapeCcd,
orLong IslantoNantuckel,(079-)is usedta determine the inclnf theperpen-
dicularfromthc UnitedStatescoast. t2811 COUNTER-MEMORIALOFCANADA 249
rather than 054" as alleged in the United States Memorial. Finally,if a
perpendicular to the macrogeographical general direction of the coast
were deemed an appropriate means of laterally defining the test area-
another proposition that Canada does not accept - that general direc-
tion in fact wouldbe inthe order of 067O.[See paragraph 94 and Figure
@) 61. The resulting change in the inclination of the perpendiculars enclos-
ing the test area based onthe true general directions of the coasts - or
on an average of these general directions,that is, 066" - wouldsignifi-
cantly alter the results of the proportionality test,even if the perpendicu-
lars were projectedfrom the coastal points selectedby the United States.
668. Having identifiedthe line of general direction of the coast
on the basis of an arbitrary line extending from Cape Ann to the Chig-
necto Isthmus, the United States - by way of a footnote6' - excludes
from its calculations of coastal lengthsthe long sectionof the Canadian
coast stretching from the international boundary terminus, around the
Bayof Fundy, to Cape St. Marys. Yet the Bayof Fundy unquestionably
forms part of the Gulf of Maine, and the United States itself includes it
within the relevantarea. [See paragraphs 126-130.1
669. If the proportionality test is to prove anything. the coasts
and sea areas included in the calculations must be related to the pur-
posesof the test. The United States Memorialstates that:
"The geographical features whose proportionate or disproportion-
ate effects are to be evaluated in this case include the entire Gulf
of Maine, as well as the four-fold change in direction of the
Canadian coastline that causes the Nova Scotia peninsula to pro-
trude south of the international boundary. That four-fold change
beginsat the Chignecto I~thmus~~."
Thus, as the United States Memorial recognizes, it is the change in
direction of the Canadian coast at the Chignecto Isthmus - the con-
cavity of the Bay of Fundy - that causes Nova Scotia to "protrude".
How is it possibleto evaluate the "four-fold change" in coastal direction
and the "protrusion" of Nova Scotia beginning at the Chignecto lsthmus
iJthe very coasts whoseeffects are to be evaluated are excludedfrom
the calculaiions?
670. There are further inconsistencies in the United States'
approach. The change in direction of the Canadian coast at the head of
the Bayof Fundy is used by the United States as the rationale for deter-
mining the lateral limits of the test area6', but the very coosts which
comprise this geographical jeature are excludedfrom the test. Again,
while the United States accepts the necessityof includingwithin the test
area the coasts on whichare situated the basepoints used to determine
the course of the line being testedM,it excludes the coost of New
61UniredSroiesMemoriol,p.201. fwtnote 1.
0 UniredSroresMernoriol,p192.para.312.
@) flUniredSioies Mernoriol,pp192-201, para312-313 p. 199. Figure 34 ap. 203,
@ Figure 35.
" ChifcdSioiesMernorial,p201, fwtnot2.250 GULFOF MAINE t2821
Brunswick that it used as the baseline ro derermine ihe inclination of
rhe adjusted perpendicular line.
671. In yet another inconsistency, the United States, while mea-
suring its own coast "to reflect the sinuosities", nevertheless draws a
straight line from the boundary terminus to a point south of Cape St.
Marys, thus closing off the Bay of Fundy. Logic and consistency require
that, at the very least, the New Brunswick coast also be brought into the
equation when the coasts are measured according to their general direc-
tion6'. Contrary to the suggestion made in the United States Memorial,
the inclusion of the New Brunswick coast would substantially alter the
results of the United States proportionality test. As has already been
noted. both Memorials describe the general direction of the coast as run-
ning northeastward from Cape Elizabeth (Canadian Memorial) or Cape
Ann (United States Memorial) along the coasts of Maine and New
Brunswicka.
672. In addition to its various interna1 inconsistencies, the United
States proportionality test is open to a more fundamental objection;
namely that it is applied to an arbitrarily determined area, selected with-
out reference to geographical or legal criteria. This test area bears no
relationship to the Gulf of Maine area as defined in the United States
Memorial - that is, the coast extending fromCapeCanso to Nantucket
Island - or in any geographical or scientific publications known to the
Canadian Government. Nor is the test area defined by reference to cri-
teria established in the Special Agreement or in the relevant jurispru-
dence; for the Court has laid down that, where "it is a question of pro-
portionality,.the only absolute requirement of equity is that one should
compare like with like6'". If the area relevant to the delimitation is to
include the Atlantic-facing coasts on either side of the entrance points to
the Gulf - and the Parties agree that some portion of these coasts
forms part of the relevant area - then equivalent coastal segments on
either side of the Gulf should be included in the proportionality test. The
Gulf of Maine itself constitutes the axis on which the test area must be
balanced. The United States test area, on the other hand, is balanced on
the false axis of the Northeast Channel, making the Channel kquidistant
from the perpendiculars forming the eastern and western limits of the
area. Indeed, this is the only rationale that emerges from a comparison
of the Gulf of Maine area with the United States test area. The United
States again has worked backward, defining the test area by reference to
its delimitation objectives, rather than working forward and defining the
area by reference to the geographical region identified in the Special
Agreement. It is obvious that a proportionality test set up by reference
to United States desiderata, rather than on the basis of equitable
Hawever,the UnitedStates cantendsthat "measuringthe respectivecoastlinesin terms
the caasts wouldna1substantially affectthis ratio."UniredSrares Memoriol, pp. 192-esof
201. para.313.
* UnitedSlores Mem&ol, p. 170.para.283.
" "...the esentialaspectof the criterionof proportionalityis simplythat onemus1com-d
pare like with like"12831 COUNTER-MEMORIALOF CANADA 251
principles and relevant circumstances.will produce the results required
by the authors. Such a test demonstrates nothing but the endless pos-
sibilities for derining area- and varying the results - in an open-
ended geographical situation such as the outer area seaward of the Gulf
of Maine.
Conclusion
673. The United States has christened its current claim the
"adjusted perpendicular line". But a perpendicular line can be applied
only ta essentiallystraight coasts, and the United States has itself recog-
nized that the manifold changes in direction of the coasts constitute a
circumstance of fundamental importance in this case. A method inher-
ently incapable of application betweenoppositecoasts and within coastal
concavities cannot be made appropriate through "adjustment". The
United States, however,has chosen io adjust or refashion geography to
suitits method, ralher than select a methodappropriate to the particular
geographical situation in the Gulf of Maine area. lgnoring as it does the
very existence of the Province of Nova Scotia and the established
dependence of its southwestern coastal regions on the resources of
Georges Bank, the United States' line produces a manifestly inequitable
and unreasonable result.252 i2841
CHAPTER II
THE CANADlAN METHOD AND THE CANADIAN LlNE
Introduction
674. The particular geographical circumstances of this case cal1
for the determination of a single maritime boundary that takes account
of the manifoldchanges in the general direction of the coasts in the Gulf
of Maine area. They also cal1 for a boundary that respects the funda-
mental principles governingtitle to the maritime zones to be delimited
by the singlemaritime boundary, as wellas the obligationsof the Parties
under Article 6of the Conventionon the Continental Shelf.
675. The United States secks to discredit the equidistance princi-
ple by characterizing it as one that producesan artificial boundary based
on a few coastal features'. The method used by Canada combines a
mathematically precise, objectively verifiabletechnique for constructing
a line reflecting thectual coastal geography,with recognizedequitable
principlesand procedures for adjusting the line to ensure that it respects
the general configuration of the coasts and takes account ofal1the rele-
vant circumstances.
676. The boundary producedby the application of this method is
an equitable equidistance line. It is a direct emanation of the coastal
geography of the Gulf of Maine area and is inaccordance with al1rele-
vant circumstances pertaining to both the continental shelf and the200-
mile fishing zone.It reflects the overall balance in the relationshipof the
Parties to the Gulf of Maine area and, in particular, to Georges Bank. It
gives appropriate spatial expression to established economic interests,
especiallythe strong Canadian presence in the fishery of Georges Bank
and the vital economic dependenceof Nova Scotia on that fishery. lt is
consistent with the position heldby Canada throughout the history of
the dispute and giveseffect to the indicia of equity revealed by theon-
duct of both Parties. Having regardto al1the relevant circumstances,the
Canadian line producesan equitable result.
677. There is a fundamental difference between the approaches
of the Parties to the determination of the single maritime boundary. The
various lines proposed by the United States are based neither on the
applicable law nor onthe relevant facts, butto a large extent on the pur-
ported attributes of the various "methods" by which they have been
drawn. Herein lies a fundamental paradox of the United States position:
it relies heavily on method while at the same time defying al1
methodology.The Canadian line, on the other hand, finds its justifica-
tion not in the fact thatit is an application of a particular method, but
rather in its reflectionof the geographical situation of the Parties in the
Gulf of Maine area and in its accordance with relevant factors relating
to the physical environment: established economic dependencet,he con-
duct of the Parties and the diplomatic history of the dispute. The
-
'UnircdSroresMernoriap. 149. par26812851 COUNTER-MEMORIALOF CANADA 253
Canadian line rests ultimately upon the fact that, in the particular rele-
vant circumstances of this case, it represents an equitable result in
accordance with international law. The equitable character of this result
is one that can be objectively determined.
Section 1. The Canadian Method Combines an Objective Technique
for Reflecting Coastal Geography with Recognized Procedures for
Ensuring an Equitable Result
678. The equitable character of a maritime boundary is ulti-
mately to be judged in terms of the result and not in terms of the
method used to effect the delimitation. The resuit is predominant under
the law; the method is the instrument used to arrive at that result within
the law. However, "whether under customary law or Article 6. it is never
a question either of complete or of no freedom of choice as to method;
for the appropriateness - the equitable character - of the method is
always a function of the particular geographical situation2". Moreover,
since an equitable result within the law is to be distinguished from mere
apportionment or distributive justice, the equitable character of the
result and the appropriateness of the method used to obtain that result
must also be a function of the legal framework within which the delimi-
tation is effected.
679. The Canadian boundary has been drawn in accordance with
equitable principles and the equidistance method. The particular apti-
tude of the equidistance method for determining a single maritime
boundary in appropriate circumstances has been demonstrated in Part
III of this Counter-Memorial.
680. An obvious characteristic of an equidistance line is that,
drawn from precise points on the coast, by its very nature and method of
construction it faithfully reflects the acrual configuration of the coast
rather than a hypothetical general direction'. The equidistance method is
thus particularly appropriate for application to complex geographical sit-
uations where it accurately takes account of changes in the direction of
the relevant coasts. This scientifically verifiable line provides an objec-
tive standard against which to evaluate the equitable character of any
other line. and against which to assess the reasonable or unreasonable,
proportionate or disproportionate, equitable or inequitable effects of par-
ticular geographical features or configurations4.
Anglo-French Coniincnral Shelfaward, p.54.para.84.
' As thc Court has recognired. "it is the virtthough il may also bethe weakness-
of the equidistance methoto takc full accounofalmost al1variations in thc relevant
coartliner." I.C.J. Reporrs 198288.para. 126.
' The Court hcld in the NorihSeo ConrinenrolShelfcascs that: "It [i.e.. equidistance]
canstitutes a method capable of bcing cmplayed in almost al1circumst...and has
the virtuc that if necersary. iffor instance. the Parties are unable to enter inta
negotistions, -any cartographer candefocro trace such a boundary on the appropri-
aie maps and charts, and those traced by campetent cartographers will for al1praclical
purposesagree.
In short...naother methad of delimitation has the same combinatiofpracticacan-
venience and eerroiniy of opplicoiion." [Ilolicr addedl. I.C.J. Reports 1969. p. 23.
paras. 22-23.254 GULFOF MAINE 12861
681. The geometric aspectof the drawing of an equidistance line
is, however,only the starting point. The process must be complemented
by the applicationof equitable proceduresto test the result and, if neces-
sary, to adjust the line to take account of relevant circumstances. Recog-
nized procedures have been developedfor adjusting an equidistance line
either through the selectionof coastal basepointsother than those closest
to the proposed line,or by moderating the influence of those basepoints
on the construction of the line. The effect of these techniques is wholly
or partially to discount incidental coastalfeatures that depart markedly
from the general configuration of the coast, in order to produce a line
that reflects theoverallgeographical situationin the relevantarea'.
Section II. The CanadianLine Reflects the GeographicalSituation
in the Gulfof Maine Area
682. As the United States Memorial recognizes,the geographyof
the Gulf of Maine area is characterized by its general complexityand, in
particular, by several pronouncedchanges in the direction of the Coast6.
There are major concaveand convexconfigurationson the coasts of both
Parties. Moreover,as was demonstrated in paragraphs 102-113, the rela-
tionship of the coasts of Canada and the United States vis-à-visthe area
to be delimited is predominantlyone of oppositeness.The equidistanceor
median line is the normal means of effecting an equitable division in a
situation where the coasts are opposite'.
1. The Courseof rhe Line
683. The coastal fronts of Nova Scotia and of Maine that control
most of the courseof an equidistance line inside the Gulf, if extended to
a point of intersection, would form an approximate right angle. This
angle would be bisected bythe Canadian line, were it not for the effect
of small uninhabited islets, lying well to seaward of the coastal front of
Maine, that push the line toward the Canadian coast. The greater part
of the line in the inner area is controlled, onthe United States side, by
basepointson Mount Desert Rockand Matinicus Rock, whichlie respec-
tively 22 nautical miles and 17.75 nautical miles seaward of the main-
land coast of Maine. Because the corresponding basepoints on the
* This was the procedureused by the Courtof Arbitrationio abate thedisproportionate
effccts of the Scilly Isles onthe courseof an equidistance linein the Altantic regionin
theAnglo-FrenchConrinenro lheljaward. pp116-117. paras.249-251. A sornewhat
KerkennahIslands on a delimitation in tTunisio-Libyo ConrinenrShelj case.t of the
I.C.J. Reporrr198p. 89, par129.
UnitedSroresMemorial,p. 19. para.26; pp. 173.174, 286-288.
' I.C.J. Rcporrr1969pp.36-37 .aras. 57-5Anglo-FrenchConiinenrolShcljaward.
pp.54-55,para85. (2871 COUNTER-MEM OFRCINLDA 255
Canadian side lie 6 nautical miles, 7.6 nautical miles and 14.5 nautical
miles off themainland coast of Nova Scotia, the line runs closer to the
Canadian landmass than to that of the United States throughout most of
the Gulf of Maine. The basepoints on the United Stateside lie off the
coast of easiern Maine. Since no basepoints are used on the coast
between Matinicus Rock and the Cape Cod Canal, the concave portion
of the United States coastforming the northwestern cornerof the Gulf
- like the corresponding concavity in the northeastern corner of the
Gulf formedby the Bayof Fundy - exerts no influenceon the course of
@ @ the line. [See Figures 3 and 32 in the Canadian Memorial.]
2. Non-Encroachmeni
684. The fact that the Canadian line inside the Gulf is almost
always closer to the mainland coast of Nova Scotia than to that of
Maine shows that it avoids cutting off the United States from the sea
areas that lie off its coasts'. The United States' objection that the
Canadian line is inconsistent with the principle of non-encroachment is
surprising in viewof the lineaimed by the United States from 1976to
1982. This line ransubstantially closer to the coast of Maine than the
@ Canadian line throughout practically the whole of the Gulf [FiguIl.
The charge that the Canadian line encroaches on the seaward extension
of the coastal front of Maines therefore inconsistent with the conduct
of the United Statesitself. The new line adopted by the United States,
approaching to within25 nautical miles of the most important port on
the southwest coastof Nova Scotia, at a point already 72 nautical miles
from the nearest United States land, shows thatt is the United States
that doesviolenceto the principleof non-encroachment.
B. THEOUTER AREA
1. The Course of the Line
685. The course of the Canadian line in the outer area is con-
trolled on the Canadian side by basepoints on low tide elevationsin the
vicinity ofeal Island, and on the United States side by a basepoint on
the Cape Cod Canal. The boundary so produced is virtually a line of
constant bearing- the perpendicular bisector of a linejoining the base-
points. Because of their strategic location on the threshold of the outer
area, the use of basepoints on Cape Cod itself and on Nantucket Island
would havean influence on the course of the line and on the divisionof
maritime space that is altogether disproportionate to the geographical
importance of these features and to their real links with the area to be
delimited.
686. The relationship of the coasts of Canada and the United
States to each other, and to the outer area, bears a certain parallel to the
'Thisconclusioniurrheconfirmedbythcfact that morethan twa-ofthesea
arcainsidetheGulfiaallocatedto the UnitcdStates. 256 GULF OF MAINE i2881
situation of the coasts of France and the United Kingdom vis-à-visthe
Atlantic region in the Anglo-French ContinentalSheifaward. In that
case, the Court of Arbitration stated that the "pertinent dissimilarity
between the two coasts" wasthat:
".. .the coastal frontage [of the United Kingdom]projects further
into the Atlantic than that of the French Republic. The greater
projection of the United Kingdom coast into the Atlantic region is
due in part to the fact that the most westerly pointof its mainland
is situated almost one degree further to westward than that of the
French mainland. But it is also due to the greater extension west-
wards of the Scilly Isles beyond the United Kingdom mainland
than that of Ushant beyond the French mainland. Thus, at its
nearest point,Ushant is only about 10 miles and at its most west-
erly point no more than 14.1nautical miles from the coast of Finis-
tère;the nearest point of the Scilly Isles,on the other hand, is some
21 nautical miles and their most westerly pointsome 31 miles dis-
tant from Land's End. As a result, even when account is taken of
the slight south-westerlytrend of the English Channel, the further
extension south-westwards of the United Kingdom's coast has a
tendency to make it obtrude upon the continental shelf situated to
seawards of the more westerly facing coast of the French Republic
in that regions."
687. In the present case, the southeastern protrusion of the
United States coast between Bostonand the Cape Cod Canal, away
from the general southwestern orientation of the coast (south of Cape
Elizabeth), projects the United States coast further into the Atlantic
than the Canadian coast, which recedesto the southeast seaward of Yar-
mouth. Thus, even before the effects of Cape Cod and Nantucket Island
are taken into account, the United States is in a favourable position vis-
à-vis Canada with respect to the delimitation of the outer area and, in
particular, of Georges Bank.Whereas the effect of the Scilly Islandswas
to extend the coastal front of the United Kingdom beyond its mainland
coast by about twice the distance that Ushant projected the coastalfront
of France beyond its mainland coastI0,the situation here is even more
disadvantageous to Canada. To make use of basepointson Cape Cod and
Nantucket Island would project the United States some 29 nautical
miles further toward Georges Bank,beyond the already advantageous
coastal front formed by the southeastern protrusion of the Massachusetts
coast seaward of Boston". While Seal Island lies some 14.5 nautical
miles off the mainland coast of Nova Scotia, it is, in terms of longitude,
9 nautical miles east of Cape Forchu, the westernmost point on the
Nova Scotia coast abutting the outer area. Accordingly, the use of Seal
Anglo-FrenchConrineniolShel/award. p. 111.para.235.
'OAnglo-FrenchConrinenrolShel/award,p. 117.para.251.
" This distanceis mcasuredfromthe fulcrumor hinge pointof the lincs rcpresentingthe
generaldirectiofthe United Statescoasts facing the Gulfof Maineand the Atlantic
@ Occan as shownin Figure7. t2891 COUNTER-MEMORIALOFCANADA 257
Island as a basepoint merely compensates for the eastward recession of
the Canadian coast seaward of Yarm~uth'~.
688. The essentially local features of Cape Cod and Nantucket
Island deviate sharply from the general configuration of the coast in the
Gulf of Maine area. Given the already favourable position enjoyedby
the United States vis-à-vis the delimitation of the outer area, to allow
these features to have a decisive impact on the allocation of maritime
space in tbe major resource-bearing area of the region, merely on
account of their strategic location at the elbow of one of the coastal
wingsof the Gulf, would produce a highly disproportionate and inequit-
@ able result. [See Figure 33 in the Canadian Memorial.] Such a situation
clearly calls for the application of equitable principles or procedures to
correct the distortion and abate the inequity. This Canada has done by
using a basepoint on the Cape Cod Canal compatible witb the general
direction of the United States coasts in that area.
2. Non-Encroachment
689. The United States Memorial makes much of the fact that
the Canadian line extends south of the international boundary terminus
to the same latitude as Philadelphia and Boulder,col or ad^'^(cities that
lie respectively720 kilometresand 3,260 kilometresWestof the terminal
point of the Canadian line). The United States maritime boundary with
Cuba, by way of comparison, is on a latitude with central Mexico.The
continental shelf boundary in the North Sea between Denmark and the
Federal Republic of Germany extends well to the north of the land
boundary with Denmark. The boundary indicated by the Court in the
Tunisia-Libya ConrinentalShelfcase extends wellto the north of Libya
and of the terminus of the land boundarywith Tunisia.
690. There is nothing in law, State practice or logic to suggest
that the terminal point of the land boundary between States should be
any guide to the point of Latitudeor longitude to which a maritime
boundary can reach. On the contrary, the delimitation of offshore zones
will, bydefinition,extend existing boundaries beyondthe land territories
of the States concerned. Since the Canadian and United States territo-
ries in the Gulf of Maine area are juxtaposed east-westand the bound-
ary between them runs in an essentiallynorth-south direction, it is inevi-
table that the maritime boundary will extend south of the Canadian
landmass. This fact is corroborated by the location of the triangle estab-
lished in the Special Agreement, by which the Parties agreed that the
maritime boundary should terminate wellto the south of Canadian land.
Scal Islandis an inhabitcdislandlyingwithinthc systcrnof baselincsformallypromul-
gatcd by Canadain 1972. Canadianbasclinesin the relevantarea wcreproclaimcdin
theTerrirorialSeo Geogrophicl wrdinoies OrderP.C. 1972-966,in force II May
1972.publishediConodoGazerre, PartIIVol. 106,No. 10.SeConodionMernorial,
Annexes,Vol. II, Anncx25.
l3 UniredSforesMernorialp. 192. para.311. 258 GULFOF MAINE [290-2911
C. THEGENERAC LONFIGURATIO ON THE COASTS
691. The United States has criticized the equidistance method on
the grounds that it takes into account only "a few selected pointson the
coastsof the States involved"and "fails to take account of other relevant
geographical circumstances, such as . .. the general direction of the
coast"". Since a strict equidistance lineis drawn from the nearest points
on the coasts of the Parties, theres a potential risk that the basepoints
may no1reîlect the general configuration of the coasts. Equitable princi-
ples require that, in determining the course of an equidistance boundary
line,criteria of reasonableness and equity be applied in selecting the
basepoints from which the line is drawn. Incidental special features.
which depart markedly from the general direction of the coast and have
a disproportionate influence onthe course of a line, should be dis-
counted. This, of course, is precisely the equitable procedure used by
Canada in selecting basepoints other than Cape Cod and Nantucket
Island as basepoints for determining the course of the boundary in the
outer area.
692. In the past the Court has indicated that one method of
ensuring that an equidistance line respects the general configuration of
the coasts is the construction of straight lines representing coastal
@ frontsI5.Figure 50 compares the Canadian line to an equidistance line
constructed from straightlines representing coastal fronts.It can be seen
that the course of the Canadian line approximates that of an equidis-
tance line drawn from the coastal fronts.It is therefore clear that the
basepoints used to draw the Canadian line fairly represent the general
configuration of the coasts of the Parties within the relevantr area.
Section III. The Canadian Lioe Takes Account of
All the Relevant Circumstances
693. The Canadian line is founded on the applicable law. It
respects the legal basis of title to the area to be delimited as well as the
basic purpose of the rights and jurisdiction in issue. It observesthe prin-
ciple of equaiity within the same order and leaves to each Party the
areas of the sea that are closest to ils coast.
694. Paragraphs 682-692 have shown that the Canadian line,
constructed by reference to the coastal configuration within the Gulf of
Maine area, respects the relevant geographicalcircumstances of the area
to be delimited. Aboundary delimited in accordance with equitable prin-
ciples, however,must take account of al1 the relevant circumstances. As
wasdemonstrated in detail in Part II of this Counter-Memorialtthe rele-
vant non-geographicalcircumstances of this case also confirm the logic
and the equitable character of the Canadian line. The following para-
graphs provide a brief recapituiation of the principal evidencefor this
conclusion.
" UnitedSlolcMernoriap.149.para.268.
'5I.C.J.Reports 1969, p.52.para.98.[2921 CouNTER-MEMo RFICLNADA 259
695. The Canadian line needs no adjustment in the light of the
geologyand geomorphologyof the Gulf of Maine area. The seabed and
subsoilof the area are characterized by an essential unityand continuity;
to the extent that there are particular geological and geomorphological
affinities between Georges Bankand neighbouring areas, these are pre-
dominantly with Canadian areas to the northeast. The various depres-
sions that dot the seabed do no1provide any basis in fact or law for a
variation in theCanadian line.
696. The Gulf of Maine area is also characterized by an inte-
grated oceanographic system. The fish and invertebrate species of the
Gulf of Maine area (including Georges Bank)are predominantly north-
ern in their orientation and extend southwestward from the Scotian
Shelf to the Great South Channel-Nantucket Shoals-Cape Cod area.
The distribution of most stocks of the 28 commerciallyimportant species
of the Gulf of Maine area is no1affected by the Northeast Channel. To
the extent that Georges Bank exhibits some elements of semi-discrete-
nesswithin the broader oceanographicsystemof the Gulf of Maine area,
its particular affinities are with waters to the northeast. There are no
oceanographic or biological factors that would justify a departure from
the Canadian line or from the principle that the area is to be delimited
in a way that allocates to each Party the maritime spacethat is closestto
it. No single linecould accommodate the varied resourcesof the seabed
and water column here in issue.
697. Other relevant circumstances also confirm the logic and
equitahle charactèr of theCanadian line. Canada is a coastal State on
the Gulf of Maine with an important established fishery on Georges
Bank that is the mainstay of the regional economy of southwest Nova
Scotia. This is a circumstance of great significance, for theCanadian
line permits the maintenance of the established links betweenthe living
resources of the areaIo be delimited and the adjacent coasts.A line to
the east of theCanadian claim would disrupt these established patterns
of resource exploitationthatprovide the livelihoodof many coastalcom-
munities and the very foundation of the regional economy..On the other
hand, the Canadian line would haveminimal effects on the few large
ports from which the United States fishery is prosecuted, and virtually
no discernible impact on the economy of Massachusetts, which has no
dependence on Georges Bank comparable with that of Nova Scotia.
Thus, the Canadian line, whichdivides the area in a way that leaves to
each Party the area in which ils specific and predominant economic
interest lies,is confirmed as an equitable line.
698. A further relevant circumstance is the conduct of the Par-
ties, in particular during the period that led to the development of the
contemporary law of the sea and the period associated with the
diplomatic history of this boundary dispute, beginningin 1965.The evi-
dence is unequivocal. Canada's conduct throughout has been consistent
with ils claim. The United States, for its part. has recognized and
acquiescedin Canada's exerciseof sovereignrights in respect of thein-
eral resourcesof eastern Georges Bank from 1964to 1969and Canada's
use of an equidistance line for thisurpose from 1965to 1969. In the
conclusionand signature of the 1979 Agreement on East Coast Fisbery260 GULF OF MAINE i2931
Resources, the United States has also recognized Canada's economic
interests in thefishery resources of Georges Bank,its traditional partici-
pation in their exploitation, and the potential for bilateral cooperationin
their conservation and management. Finally, throughout the history of
the International Commission forthe Northwest Atlantic Fisheries, from
1949 to 1977, the United States consistently recognizedCanada's posi-
tion as a coastal State in relation to Georges Bank.The relevant conduct
of the Parties thus confirms the equitable character of the Canadian line
and its conformitywith the applicable law.
Conclusion
699. The boundary claimed by Canada complies with the appli-
cable law for the delimitation of a single maritime boundary. It is drawn
in a manner that reflects the general configuration of the coasts in the
Gulf of Maine area, while discounting the effect of incidental special
features through the application of equitable procedures. It is fully con-
sonant with the geological, geomorphological, oceanographic and biologi-
cal characteristics of the area. It is compatible with the maintenance of
the principal established fisheriesof the Parties in the relevant area.
Drayn in accordance with equitable principles and taking account of al1
the relevant circumstances, the Canadian line accords with the funda-
mental norm for the delimitation of a single maritime boundary and
represents a result that is equitable for both Parties, as coafirmed by the
evidenceof their conduct. CHAPTER III
TEsTS OF EQUITY
Introduction
700. The Court has declared that "the result of the application of
equitable principles must be equitable" and that "il is ... the result
which is predominant; the principles are subordinate to the goal". As
this is a case of first impression involvinga single maritime boundary,
the criteria of equity developed in other contexts, the manner of their
application and the weight to be attached to them must be adjusted to fit
the new legal régimein issue here.
701. The primary test of the equity of the result, deriving from
the fundamental norm for the determination of maritime boundaries, is
the ascertainment whether the line takes account of al1the relevant cir-
cumstances. That the Canadian line meets this test in al1 respects has
been demonstrated in Part II and in paragraphs 692-698 of this
Counter-Memorial. But there are other factors to consider when assess-
ing equity, some of which havetheir origin in the régimeof the continen-
tal shelf and others that are more relevant to the régimeof a single
maritime boundary applyingto both the shelf and the water column.
The proportionality testin itsseveral forms has been usedta
702.
assess the equity of allocations of maritime space in continental shelf
delimitations. The criteria it employs relate exclusively to the spatial
aspects of geography. This test is therefore appropriate for situations
where the existence and location of natural resources is neither known
nor readily ascertainable, and where there has been no previous
exploitation.
703. The determination of a single maritime boundary, on the
other hand, involvesnot only the division ofspace and potential mineral
resources but also the division of known livingresourcesthat are subject
to established patterns of exploitation by coastal communities.The equi-
table character of this new form of division must also be tested, espe-
cially where the resources in issue are of vital importance to the
economyof adjacent coastal regions. Where the Parties themselves have
given precise indications of the division they considered equitable, the
result of anyproposedboundary must be tested against these indications.
Section 1. The Canadian Line Produces a Proportionate Result;
The United States Line Does Not
704. As was explained in paragraph 487, the application of the
test of proportionality as an aspect of equityan take at least three dif-
ferent forms. In one form it consistsof assessingthe reasonableor unrea-
sonable effect of a particular feature on the course of the boundary by
reference to the size, configuration or importance of the feature in rela-
tion to the maritime space it attracts. In another form it involvesthe
evaluation of the equitable character of the boundary on the basis ofratios between lengths of coastlinesand the offshoreareas divided by the
boundary. In a third and more general sense, it consists of ascertaining
whether the overall result is reasonableor proportionate in relation to al1
the relevant circumstances.
A. PROPORTIONALI ATSA MEASUR EF THE EFFECT OF PARTICULAR
FEATURE ~N A DELIMITATION
705. This function of proportionality was explained by the Court
of Arbitration in the Anglo-French ContinentalShelfaward in the fol-
lowingterms:
"... particular configurations of the coast or individual geograph-
ical features may, under certain conditions, distort the course of
the boundary, and thus affect the attribution of continental shelf to
each State, which wouldotherwise beindicated by the general con-
figuration of theircoast. The concept of 'proportionality' merely
expresses the criterion or factor by which it may be determined
whether such a distortion results in an inequitable delimitation of
the continental shelf as between the coastal States concerned. The
factor of proportionality may appear in the form of the ratio
between the areas of continental shelf to the lengths of the respec-
tive coastlines, as in the Northo Continental Shelfcases. But it
may also appear, and more usually does, as a factor for determin-
ing the reasonable or unreasonable- the equitable or inequitable
- effects of particular geographical features or configurations
upon the course of an equidistance-line boundary'". [Italics
added.]
The Court of Arbitration applied the proportionality concept "in
appreciating whether the Scilly Isles are to be considered a 'specialcir-
cumstance' having distorting effects on the equidistance boundary2",
rather than as a comparisonof coastal lengths and shelf areas.
706. In the present case, the criterion of.proportionality may be
used to evaluate the relative effectson the course of an equidistance line
of the very geographical features or configurationslleged by the Parties
to have disproportionate and inequitable effects. One method is to com-
pare the land area of the features being tested to the sea area they would
attract if theircoasts were used in constructing an equidistance line3.
This sea area is calculated by measuring the area between an equidis-
tance line drawn from basepoints on the feature whose effect is being
assessed and an equidistance line drawn from the basepoints that would
be used if the feature did not exist.
' Anglo-FrenchConrinenrlheljaward.p.60. par100.
l Anglo-frenchConrinrntlheljaward.p. 117, para.250.
j In his separateopinionin the Tunirio-~ib~oConril helf case. Judge ad hw
Jimtnez de Aréchagaused this meihodto asxss the disproportiodistorting
effeci of Kerkennah Islandson th counc of an quidistancc linc. I.C.J. Reparu
1982,p. 134.par108.12961 COUNTER-MEMORIALOF CANADA 263
707. The United States has alleged that "the four-fold change in
direction of the Canadian coast", which "beginsat the Chignecto Isth-
mus", and "the protrusion of the Nova Scotia peninsula" are geograph-
ical features that produce a disproportionate and inequitableeffect upon
an equidistance line4.The land area of the Nova Scotia peninsula is
45,197 square kilometres (13,177square nautical miles). If Nova Scotia
did not exist,the area could be delimited by a hypothetical equidistance
line drawn from basepoints onthe coast of New Brunswick.The sea area
between such a hypothetical equidistance line and a strict equidistance
line drawn from the coast of Nova Scotia represents the area which is
"lost" to the United States by reason of the "protrusion" of the Nova
Scotia peninsula. This sea area comprises 10,960square nautical miles.
The ratio of the land area of the Nova Scotia peninsula to the sea area it
attracts within 200milesof the United States (and of Canada) is 1:O.S'.
708. In Canada's submission, Cape Cod and Nantucket Island
have a disproportionate and inequitable effect upon the course of an
equidistance line boundary. The land area of Cape Cod and Nantucket
Islandis 1,187square kilometres (346 square nautical miles). These fea-
tures attract to the United States a sea area of 2,906 square nautical
miles measured between an equidistance line drawn from basepoints on
Cape Cod and Nantucket Island and an equidistance line drawn from
basepoints on the Cape Cod Canal. The ratio between the land area of
these features and the sea area they attract to the United States within
200 milesof Canada (and of the United States) is 1:8.4.
709. These ratios demonstrate that, while the Nova Scotia penin-
sula has an effect upon the course of an equidistance line boundary that
is not disproportionate to its landmass, Cape Cod and Nantucket have
an influencealtogether disproportionateto their landmass. These conclu-
sions, basedon the purely physicalcriterion of landmass, are confirmed
and reinforced by factors of politicaland economic geography.
710. This test indicates that an equidistance line drawn from
basepoints on the coast of Nova Scotia produces a proportionate and
reasonable result. It also indicates that any delimitation that gave full
weight to Cape Cod and Nantucket Island would produce a dispropor-
tionate and unreasonable result, and that these features should accord-
inglybe discountedin establishingan equitable maritime boundary.
711. Canada's reservations concerning the applicability of this
form of proportionality test to the open-ended area seaward of the Gulf
of Maine itself have been set out in the Canadian Mernorial6and in
' UniredStotesMernoriolp. 173.par286:p. 192.para312.
If the whoof the provinceof Nova Scotia. includingCa* Breton Islandi,s included
in theyuation (a laarcaof 16,174squarenauticalmiles),the ratiobec1:0.7.
ConadianMernoNol,pp. 153-155,para370-374. 264 GULFOF MAINE [297-2981
paragraphs 489-493 of this Counter-Memorial. Notwithstanding these
reservations, it is of course possible to devise a variety of formulas for
the ascertainment of ratios of coastal lengths and seaareas. Although in
the nature of the case none of these formulas can be decisive, nonethe-
less, when the test is applied in a reasonable and consistent manner and
in accordance with the criteria established by the Court, it does indicate
the proportionate and equitable character of the Canadian line and the
disproportionate and inequitable character of the various United States
lines.
712. As was explained in paragraphs 69, 74-75, and 141,the Gulf
of Maine area includesthe coasts on either side of the entrance points to
the Gulf that demonstrate established economiclinks to the resourcesof
Georges Bank. These coasts extend approximately from Lunenburg,
Nova Scotia to Newport, Rhode Island. However, in accordance with
the "absolute requirement"of comparing like with likein a proportional-
ity test, the coasts included in the test should extend an equal distance
along the Atlantic seaboard on either side of the hinge points of the
coastal wingsor the entrance points to the Gulf.
713. Furthermore, if lines perpendicular to the general direction
of the coast are used to enclose the outer area, these lines should be
drawn perpendicular tothe two coasts that actually border this area or,
if these general directions are materially different, to the mean direction
of these coasts, again in order to "compare like with like". As has
already been indicated, the general directions of the Nova Scotia and
New England coasts facing ont0 the Atlantic are in the order of 054O
and 079" respectively,and their mean direction in round figures is067".
Therefore, the area should be enclosed laterally by lines of bearing of
157". projected from Lunenburg and from an equivalent point on the
New England coast. The line from Lunenburg is also extended north-
ward to provide an eastern limit of the relevant area within the Bay of
Fundy. The-wholearea is then divided into an inner and outer area by a
hypothetical line from Cape Sable to Nantucket Island. [See Proportion-
@ ality Test A. Figur e1.1
714. The results indicate that when a proportionality test is
applied to a balanced area defined on the basis of relevant geographical
and legal criteria, the Canadian line more than meets the test of propor-
tionality while the 1982 United States'line produces a highly dispropor-
tionate and inequitable result. The United States Northeast Channel line
of 1976also fails to satisfy this proportionality test7.
'The sca areasas dividedby the United States 1976 Northeast Channelline are as
follows:
(O)The InnerArea:Canada8,386 square nautical miles. dtates 18,970
squarenautical miles. Ratioada:UnitcdStates 31:69.
(b) The Outcr Arca: Canada 22.113 square nautical miles. UStatcs
60.430squarenauticalmiles. R-tCanada:UnitedStates27:73.
(c) The Gulfof MaineArcasa Whalc:Canada 30.499squarenautical miles,
28:72. States79.400 square nauticales. Rati- Canada:UnitcdStates 715. An alternative method of enclosing the area within whicha
proportionality test mightbe applied can be inferred from the Special
Agreement. The sides of the triangle defined in Article If of that agree-
ment may be used to establish the eastern and southern limits of the
relevant area, that is, longitude 65"W and latitude 40°N respectively,
and the hypotenuseof the triangle may be used to bound the area to the
southeast. The area may be enclosedto the Westby longitude 70°30t W,
that is, roughly the same distance (half a degree) to the Westof Cape
Cod and Nantucket Island as 65"W is to the east of Cape Sables. [See
Proportionality Test B,Figure52.1
716. Enclosing the test area by means of meridians and parallels
is consistent with the method employed by the Court in the Tunisia-
Libya ContinentalShel/case9. The use of meridians and parallels is an
objective, precise, predictable and widely usedgeographical technique;
unlike perpendicularsto the general direction of the coasts, they are not
susce~tibleto different interpretations. As was noted by the Court, this
methd has "the advantage of cartographical convenience" and is con-
sistent with "the essential aspectof the criterion of proportionality" that
"one must compare like with'likel0".
717. Once more, the results indicate that the Canadian line
divides maritime space in a manner roughly proportionate to the relative
lengths of the coasts of the Parties bordering the Gulf of Maine area,
while the United States line divides it in a manner altogether dispropor-
tionate to the relative lengths of the coasts. The 1976Northeast Channel
line fails to meet this test as well". This conclusionalso holds true if the
test area is bounded to the southeast by the sides of the terminal trian-
gle, rather than by its hypotenu~e'~S . o long as the absolute requirement
The eastern limit alsa conforms to one of the meridians of longitude used by Bigelow
(65"W and 65O30'W)to deline the eastern limit of the Gulf of Maine area. He delincd
the western limit of the Gvlfof Maine area by 70PW longitude. H. B. Bigelow:"Physi-
cal Oceanography of the Gulf of Maine." Bulletin of the United StoresBureau of
Firheries,Vol.XL. Part 1. 1924, p. 51Counter-Mernorial.Annexes. Vol.IV, Annex
13.H. B. Bigelow:"Fishes of the Gulf of MaineBulletinofrheUnited StatesBureau
of FisheriesVal. XL. Part 1. 1924, p. Counter-Mernorial.Annexes. Vol. IV. Annex
4.
9I.C.J. Reports1982,pp. 88-91. paras. 126-130.
IoI.C.J. Reports1982,p. 91. para. 130.
" The sea arcas as dividcd by thc United States 1976 Northcart Channel line are:
Canada 15.097squarc nautical miles, United States 43,877 square nautical miles (ratio
2674).
'2 If the test area is bounded to the southcast siderof the terminal triangle. rathcr
than by ilshyporenuse he results are:
Total Sea Ara: 64.474 squarc nautical milcs.
Seo Areasdividedbytht Canadianline:
Canada 28.450 square nautical miles. United States 36.024 square nautical milcs.
Ratio-Canada:United States 44:56.
SeoAreos divided by the 1982UnitedStoresline:
Canada 10,377square nautical milcs. United States 54.0squarc nautical miles.
Ratio- Canada:Unitcd States 16:84.
SeoAreosdividedby the 1976UniredSioie-sline:
Canada 15,453 square nautical miles. United States 49,021 square nautical miles.
Ratio-Canada:United States 2476. 266 GULFOF MAINE I3ml
of comparing like with like is respected and the test is applied in a
reasonable and consistent manner, and within an area defined by refer-
ence to the Special Agreement and to recognizedgeographical and legal
criteria, the Canadian line is seento produce a proportionate and equita-
ble result and the United States line a disproportionate and inequitable
result.
718. Proportionality has a more general aspect as a measure of
the equity of the result in terms of the full range of geographical and
other circumstances relevant to the present case. The area allocated to
each Party must be proportionate not only in terms of coastal lengths
and the effects of particular coastal configurations;it must also bepro-
portionate in relation to al1the relevant circumstances of the case. The
followingsection will assess the equity of the overall result in terms of
the most important non-geographicalcircumstances in this case.
Section II. The Canadian ~ine' 1s Confirmed as Equitable
When Tested Against the Conduct of the Parties;
The United States Line 1s Not
719. The importance of the conduct of the Parties as indicia of an
equitable result has been discussed in Chapter VI of Part II. The
Canadian Memorial and paragraphs 360-380 ofthis Counter-Memorial
have demonstrated that the United States clearly accepted both
Canadian jurisdiction with respect to offshore oil and gas permits on
Georges Bank from 1964to 1969and the use of an equidistance line to
delimit the area within whichthis jurisdiction was exercised. Leaving
aside questions related to acquiescence, recognition and estoppel, this
conduct clearly provides,at the very least, a useful and legally relevant
test against which to evaluate an equitable result in the present case,as
@ is seen inFigure 53.
720. The relevanceof the 1979Agreement on East Coast Fishery
Resourcesas an indication of an equitable result revealed by the conduct
of the Parties has also been fully discussed in the Canadian Memorial
and in paragraphs 381-391 of this Counter-Memorial. The 1979 agree-
ment is equally relevant in this case as evidenceof the established inter-
ests of the Parties in the resources of the area to be delimited. In this
sense, the agreement provides a quaniifable test of the equity of the
Canadian and United States claims.
721. The 1979 fisheries agreement established catch "entitle-
ments" or allocations - that is, the proportion of the total "annual per-
missiblecommercial catch" allocated to each Party - for some 13 spe-
cies of particular interest to the Parties in the Gulf of Maine area". The
distribution of each of these species within the area can be determined
from computer analysis of Canadian and United States research vesse1
surveys and historical catch data. It is then possible to compute lines
IfConodionMemorial. AnnexeVol.1.Annex20. Thecatchallocatiansarccontaincdin
AnnexcsA andB Iotheagreement. 13011 COUNTER-MEMORIALOF CANADA 267
that divide the biomass of each species in accordance with the alloca-
tions contained in the fisheries agreement". Weighting each species in
proportion to its potential yield and commercial value permits the
computation of a composite line dividing the complex of species in
question accordingto the allocations contained in the agreement'l. The
line that divides these fishery resources in the Gulf of Maine area in
accordance with the allocations provided inthe 1979agreement is shown
@ in Figure 54. When this line is compared with the boundary lines pro-
posed by Canada and by the United States, it is evident that the
Canadian claim is substantially in accordance with the established inter-
ests of the Parties, as recognized by them, whereas the United States
line is totally out of keeping withhese interests.
722. In a prepared statement before a congressionalcommittee,
the United States special negotiator, Mr. Lloyd Cutler, stated that the
1979 fisheries agreement made full provision for the established eco-
nomic interestsof the United States. He observedthat:
"ln the light of the distribution of stocks and the U.S. historical
catches, as well as the opportunities for increased fisbing which
results from the exclusionof third country vesselswhich formerly
engaged in unrestricted fishingin the area, the entitlement shares
established by the Agreement are fair and equitably balanced.
With one minor exception,iach U.S. entitlement to stocks found
on Georges Bank exceedsthe share of the total catch which the
U.S. look over the 1965-77 period ... The U.S. share for many
important stocks covered bythe Agreement is similarly enhanced
when viewed from the perspective of the ratio of U.S. historical
shares to Canadian historical shares. In the'case of sixteen stocks,
the U.S. share exceeds the historical U.S. share of the combined
U.S. and Canadian catch16."
The Canadian entitlements in the 1979Agreement on East Coast Fish-
ery Resources, onthe other hand, represented substantiallyless than the
share of the combined Canada-United States catches for many impor-
tant species taken by Canadian fishermen in the years immediately
precedingthe agreement.
'' Fora detailedcxplanationof the mcthodologyused to computcthe lines dividingthe
biomassof thesespecies.as wcll as to camputca compositelinedividing theaggregate
fishcryresourccsin theGulfof Maine areacoveredby the 1979agreesceCoun-
ter-Mernoriai.AnnexeVol. V. Anncx Il 1.
1' Dataforthc potcntialyicldandcommercialvalof thc thirtecnspecicsis takenfram
DraJt EnvironmrnroiImpact Srarementon fhe Agreementbetweenthe United States
Washington,Government PrintingOffice. 1980. pp. 117-118, Tablc ICounfer-e.
Memorini.Annexes,Vol. V.Annex110.
mcnts:Hcarinp bcforethe Subcammittceon Fishcries WildlifeConservation andce-
thc Environmcnt,Committeeon MarchantMarincand Fishcries,UnitedStates House
of Rcprescntatives,96th Congrcss.t Session. 22 Junc 1979, p. 41Conadian
Mernorial. nnex, ol.IIAnncx44,1,p.344.268 GULF OF WNE DO21
Conclusion
723. Proportionalityis an aspect of equity. The test of proportion-
ality is a function of the result being tested. The result ofa continental
shelf delimitation is the divisionof seabedareas and of resources which,
if present, areoften undetermined. The result of a delimitation of multi-
purpose maritime zones is more comprehensiveand includesthe division
of the known living resources of the water column; such a divisionwill
affect establishedpatterns of exploitationand, in somecases, may have a
critical impact on the economy ofadjacent coastal regions. The test of
proportionality in the present case must relate to boththese results ofa
delimitation effected by a single maritime boundary. The Canadian line
meets this test of proportionality in everysense; the United States line
does not.13031 269
CHAPTER IV
AN EQUITABLE RESULT IN THE LlGHT OF THE
SPECIAL AGREEMENT AND OF THE HISTORY OF
THE DISPUTE
724. Against a background of protracted, interrelated negotia-
tions on the course of the single maritime boundary and the conserva-
tion, management and allocation of fishery resources in the Gulf of
Maine area, the Parties have requested the Court to decide, in accord-
ance with the applicable principles and rules of international law, the
course of their single maritime boundary in this area, from an agreed
starting point to a terminal point to be determined by the Court within
the triangle described in the Special Agreement. Followingthe decision
of the Court, either Party may request negotiations directedtoward
reaching agreement on an extension of the maritime boundary as far
seaward as the Parties may consider desirable. Failing agreement, the
Special Agreement provides that the seaward extension may be decided
by a binding third-party settlement procedure. (This question, however,
is notbefore the Court at the present time.)
725. The "adjusted perpendicular line" now advanced by the
United States represents a deliberatelydisproportionate claim that by its
very nature cannot properlybe reconciled withthe SpecialAgreement or
with the history of the dispute. The artificial nature of this claim isl
demonstrated by the fact that the United States, when it first reserved
its rights respecting the continental shelf in the Gulf of Maine area in
late 1969, expressly didso with reference only to Georges Bank. From
1965 to 1969 and, later, from 1969 until September 1982. the United
States never questioned the exerciseof Canada's continental shelf and
fisheries jurisdiction in the area between Georges Bank and the
"adjusted perpendicularline". Thus, the United States has acquiescedin
and recognized Canada's jurisdiction and sovereign rights in the area
first claimed by the United States in 1982, not only in the period when
the use of equidistance was accepted by both Parties but throughout the
course of the subsequent dispute.
726. The "adjusted perpendicular'line", therefore, has appeared
out of nowhere, likea deus ex machina. It has no roots in fact or law
and is evidently designedto bolster an extreme claim - to the wholeof
Georges Bank - by means of an even more extreme line that encom-
passes verynearly the whole of the Gulf of Maine area. It suggests a
tactical approach that seems scarcely compatible with the most funda-
mental provisionof the Special Agreement: namely, that the single mari-
time boundary is to be determined "in accordance with the principles
and rules of international law applicable in the matter as between the
Parties". Even leaving aside this provision ofthe Special Agreement, the
boundary proposed by Canada and the newly concocted "adjusted per-
pendicular line" offered by the United States- like its predecessor,the
Northeast Channel line - are qualitatively different and are not two
different versionsof thesame thing. For neither the United States claim
of 1982 nor the Northeast Channel line of 1976 can be regarded even as
partisan viewsof what a reasonableresult might be. 270 GULFOF MAINE 13041
727. The contradictions in the positionof the United States since
1965providefurther evidencethat there is no basis in fact, equity or law
for the United Statesclaim. Not only has the United States moved
progressively eastwardirst from an equidistance approach to the North-
east Channel line and now ta the "adjusted perpendicular line"; the
United States Memorial suggests that these three positions were pre-
dated by a "100-fathom depth contour" claim in 1945. What emerges
from al1of this is an attempt to justify the unjustifiable. But justifying
the unjustifiable would make it necessary to refashion geography,
reorder nature, revise history, and rewrite the law of maritimend-
@ aries. [See Figures55 and 56.1
728. The Canadian claim [Figure571,in sharp contrast, is firmly
rooted in equity, in law and in reality. It is not only proportionate but
consemative. It represents a reasonable and balanced accommodation,
within the law, ofl1the relevant circumstances andof the interests of
both Parties, as these may he determined in the light of their own con-
duct. The Canadian line, moreover,is a "line in being", notan invention
for the occasion.ts origins date back at least to 1965, when Canada
lirst used an equidistance line forcontinental shelf purposes in the Gulf
of Maine area. and on Georges Bank in particular. Adjusted in 1977 ta
correct and compensate forthe distorting and disproportionateeffect of
Cape Cod and Nantucket Island, it has been in place for 18 years. Its
equitable character has been established, and its credentials authen-
ticated, by the conduct of the Parties themselves.272 GULF OF MAINE [307-308]
(a) The proximity of Georges Bank to the coasts of Nova Scotia and
Massachusetts that abut the outer part of the Gulf of Maine area, in
terms of both physical and human geography;and, in particular, the
closer proximity to Canada of the area under Canadian claim;
(6) The overall balance in the configuration, length and predominantly
opposite relationship of the coasts of the Parties to each other rela-
tiveto the area to be delimited;and
(c) The distorting and disproprtionate effect upon the course of an
equidistance line of the exceptional protrusion of Cape Cod and
Nantucket Island, when superadded to the general protrusion of the
coast of Massachusetts.
2. The relevant geological, geomorphological and oceanographic
circumstances include:
(a) The essential unity and continuity of the continental shelf of the
Atlantic coast of North America, and its particular affinities to the
northeast in the Gulf of Maine area;
(6) The essential unity and continuity of the oceanographic system of
the Gulf of Maine area, and its particular affinities to the northeast;
and
(c) The concentration of fishery resources in the waters over Georges
Bank, and their particular affinities tothe northeast.
3. The relevant economiccircumstances include:
(a) The strong Canadian presence in the fishery of Georges Bank and
the established and vitally important economic dependence of
Canadian coastal communitiesin the relevant area upon the fishery
resourcesof the Bank;and
(6) The lack of any comparable dependenceon the part of United States
coastal communities.
4. The relevant circumstances pertaining tothe conduct of the
Parties include:
(a) The United States' recognition of and acquiescence in both
(i) Canada's exercise of sovereign rights in respect of the mineral
resources of Georges Bank from 1964to 1969, and (ii) Canada's use
of an equidistance line for thispurpose from 1965to 1969;
(6) The offshore oil and gas exploratory permits issued by Canada in
respect of the area claimed by Canada, and the absence of any simi-
lar instruments issued by the United States with respect to thisarea;
(c) The parallel negotiation, conclusionand signature by the Parties of
theSpecial Agreement and the 1979Agreement on East Coast Fish-
ery Resourceç,recognizing Canada's traditional participation in the
fisheries of Georges Bank, its status as a coastal State in relation
thereto,its economicinterest in the living resources of the area, and
theptential for bilateral cooperation in their conservationand man-
agement;
(4 The United States' recognition of Canada's interests as a coastal1308-3091 COUNTER-MEMORIALOF CANADA 273
State in relation to Georges Bankunder the International Conven-
tion for the Northwest Atlantic Fisheries, from 1949to 1977;
(e) The regional tradition of cooperation between Canada and the
United States in the conservation and management of fishery
resourcesof mutual concern; and
(B The conduct of the United States with regard to other maritime
boundaries.
C.THE NATURE OF THE RESULT PURSUAN TO THE UNITED
STATES PROPOSAL
1. Neither the 1976 Northeast Channel .line nor the 1982 so-
called "adjusted perpendicular line" is based on the applicable law, nei-
ther is in accordance with equitable principles,and neither takes account
of the relevant circumstances; bothare founded exclusivelyon the objec-
tive of securing for the United States the whole the largest possible
part of Georges Bank, the principal area in dispute in the present case.
2. Both the Northeast Channel line and the "adjusted perpen-
dicular line" are manifcstly inequitable and unreasonable; they would
allocaie a totally disproportionate part of the area and its resources,
including the whole of Georges Bank, 10 the United States; they
encroach upon maritime space appertaining to Canada; and theyfail to
meet everyapplicable test for a singlemaritime boundary.
3. The "adjusted perpendicular line". moreover,is barred by rea-
son of the United States' acquiescence in and recognition ofCanada's
equidistance claim in the period from 1965 to 1969, asell as its con-
tinued acquiescence in and recognition of Canada's claim to the area
between Georges Bank and the "adjusted perpendicular line" in the
period from1969to 1982.
D. THENATURE OF THE RESULT PURSUAN TO THE CANADIAL NINE
1. The Canadian line is based on the applicable law and produces
a result that is in accordance with equitable principlesand takes account
of both the geographical and non-geographical relevantcircumstances in
the Gulf of Maine area, without encroachment upon areas appertaining
to the United States.
2. The Canadian line meets every applicable test for a single
maritime boundary; it represents an equitable and proportionate result
and il reflects in a reasonable way the parity of interest of the Parties
in relation to the Gulf of Maine area and to Georges Bankin particular.
3. Canada's application of the equidistance method, adjusted to
correct and compensate for the distorting and disproportionate effect of
Cape Cod and its offlying islands,s appropriate in the light of al1 the
relevant circumstances; any other method that might be employed to
determine the single maritime boundary in the Gulf of Maine area, if
applied in accordance with equitable principles, wouldneccssarily pro-
duce a similar line.274 GULFOFMAINE 13101
4. The conduct of the United States from 1965 to 1969 consti-
tutes acquiescence in or recognition of the use of the equidistance
method in the Gulf of Maine area and the exerciseof Canadian jurisdic-
tion on Georges Bank,and creates an estoppel in favour of Canada; the
single maritime boundary to be determined by the Court should be corn-.
patible with the rights that vested inCanada during this period.1311-3131 275
PART VI. SUBMISSlON
In view of the facts and arguments set out in the Canadian
Memorial and in this Counter-Memorial,
May it please the Court, rejecting al1contrary claims and Suhmis-
sionsset forth in the United States Memorial,
Todeclare and adjudge that:
The course of the single maritime boundary referred to in the
Special Agreement concludédhy Canada and the United States on
29 March 1979 is defined by geodetic lines connecting the follow-
inggeographical coordinatesof points:
28 June 1983 L. H. Legault, Q.C.
Agent for the Government
of CanadaANNEXES TOTHE COUNTER-MEMORIAL
OFCANADA
Volume1
GEOLOGYOCEANOGRA PHDFISDISTRIBTIONS CHAPTER 1
MAJOR ELEMENTS OF THE GEOLOGY AND
GEOMORPHOLOGY OF THE GULF OF MAINE AREA
Section 1. Introduction
1. This chapter describes the geomorphological relationship
between Georges Bank and the Scotian Shelf ta the northeast. It also
describes the physical discontinuities between Georges Bank and the
East Coast Shelfto the southwest, off the United Statesast.
2. Regarding the geomorphology of the Gulf of Maine area. there
is an overall element of continuity in the fluvial and glacial processes
that produced the physiographic features of the seabed. Glacial effects
are evident in the scoured surface of thetire seabed from the Scotian
Shelf as far south as the Cape Cod-Nantucket.Shoals Southeat
Channel area. In the geological history of the Gulf of Maine area, the
Great South Channel was a former drainage valley, which was later
filled in with sedirnents. The Northeast Channel exists today as a
secondary topographic depression that resulted from these late geological
processes.
3. In terms of the disrribution of sediments. there is also
similarity and continuity of sediment type on the seabed from northeast
to southwest - off the coast of Nova Scotia down to the Cape Cod-
Nantucket Shoals-Great South Channel area. This continuity shows up
in the distribution of the different kinds of surface sediments from-
east to southwest. Distributions of sand, mud and grave1show a pattern
of overall continuity from the Scotian Shelf across the Northeast Chan-
nel and on ta Georges Bank.
4. Geomorphological continuity exists in the nature of the surface
features or bedforms on the seabed of the Gulf of Maine area. These
bedforms consist of large Sand ridges, sand waves and smaller megarip-
ples. The sand waves found on the southwestern Scotian Shelf and the
eastern half of Georges Bank and in the Bay of Fundy are markedly
similar.They are the product of strong tidal forces. They are united in a
tidally dominated band that covers much of the area from LaHave
Bank, across the Northeast Channel and on to Georges Bank. In con-
trast to the unity of bedforms from the Scotian Shelf ta Georges Bank,
bedform types exhibit discontinuities in the Great South Channel area.
5. Regarding the subsurface geology of the Gulf of Maine area,
the major structural elements that underlie Georges Bank include sub-
surface sedimentary basins where hydrocarbons are normally entrapped.
Georges Bank Basin underlies the western part of Georges Bank. The
Scotian Basin reaches from the Canadian continental rnargin southwest-
ward, extending beneath the eastern part of Georges Bank, where it is
partially separated from Georges Bank Basin by the Yarmouth Arch.278 GULF OF MAINE 121
6. There are several distinct, localized areas of poienrial hydro-
carbon accumularion beneath the eastern part of Georges Bank, within
the Scotian Basin and in the sedimentary layers above the Yarmouth
Arch. Additional hydrocarbon-bearing structures have been identified
within Georges Bank Basin beneath western Georges Bank.
Section II. The Geomorphology of the Gulf of Maine Area
7. The continental shelf in the Gulf of Maine area slopes seaward
with a gradient that is generally less than 2 metres per kilometre. The
shelf terminates al the shelf-break, at a depth .of about 200 metres.
Below this break lies the continental slope which forms an escarpment-
like feature that extends continuously along the Atlantic margin of the
North American continent'.
8. The seabed of the inner part of the Gulf of Maine area consists
largely of ancien1 metamorphic, igneous and hard sedimentary rocks,
covered by only thin patches of more recent sediments. The seabed of
the outer part, however, consists of shoals or banks that are the surface
expression of the latest phases in the geological evolution of the thick
sediments that built the continental margin. This sedimentary wedge
reaches a maximum thickness of about 10 kilometres in its seaward part.
9. The sediments that have accumulated since Jurassic times in
the maritime and nearshore environment of the continental shelf are now
completely submerged in the Gulf of Maine area and in the Scotian
Shelf (except for Sable Island). The landward edge of these sediments
lies some distance offshore. Between this edge and the shoreline is a
rocky platform, eroded by the sea, consisting of uncovered bedrock with
only a patchy cover of thin sediments. To the south of New York, differ-
ential warping of the continental margin in recent geological lime
uplifted the inner part of the sedimentary wedge. This emerged region of
former continental shelf constitutes the Atlantic Coastal Plain. Offshore
this feature remains below sea level and the entire shelf, from Baffin
Island southwest to Cape Cod, is sometimes referred to as the sub-
merged Atlantic Coastal Plain or the Atlantic Margin Sedimentary
Wedge2.
'
The inclinalioandmorphologyof the continental slopeare variable.Soulh ofSable
the slopeis inciscdby numcrousdeccanyonsand ils gradientis abaut90 mctrerper
kilometrc.On bath sidcs of Northeast Channel thesurfacc ofthc slope is relatively
smcathand thcgradientis abaut50 meirespcrkilomeire.Theslopeis alwaysstecpestin
ilspperpari.
J. C. Mahcrand E. R. Applin:Ceologiefromework and PerroleurnPoienrinof rhe
Allonric CoosralPlain and Conrinel hel/United StatesDepartmentof the Interior.
Geological Survey ProfessionalPaper 659. Washingion. U.S. GovernmentPrinting
Officc. 1971. ANNEXESTO COUNTER-MEMORIALOFCANADA 279
B.THEPHYSIOCRAPH PCOVINCE OF THE ATLANTIC
CONTINENTAL SHELF
10. In many parts of the world, continental shelves are broad
shallow platforms that surround continents and islands and descend
gently seawards to an abrupt steepening of incline ai the continental
shelf edge. The shelves themselvesare normally unglaciated and display
only minor relief. The shelf off the eastern Coastof the United States is
of this character as far north as the Great South Channel area, forming
a distinctive physiographic"province", the East Coast Sheljl. North-
eastward from the Great South Channel, however,the entire continental
shelf isgeomorphologicallysimilar, having been marked by the effects of
glacial erosion and deposition, whichdistinguish itfrom the unglaciated
offshore plain to the southwest. Within this glaciatedregion, there are
additional physiographicprovinces. The Gulf of Maine province is a
roughly rectangular area with an average water depth of 150 metres.
divided into numerous basins separated by sillsGeorgesBank province
is a sandy bank that forms a barrier across the seaward side of the Gulf
of Maine and is separated from the East CoastShelf by the Great South
Channel and from the Scotian Shelf by the Northeast Channel. The
Scotian Shelf province consistsof a complex of shallow. fiat-topped
sandy banks cul by channels, and with fairly deep basins on the land-
ward side. There is considerable similarity. in physiographic terms,
betweenGeorges Bankand the banks of the Scotian Shelf.
C. FLUVIAL EROSION AND GLACIATIO ONF THE ATLANTIC CONTINENTAI.
SHELFNORTHEAST OF THE GREAT SOUTH CHANNEA I.REA
1. Fluvial Action and theCrearion O/Early DrainageSystems
II. Many of the physiographic features of the present shelfare
inherited from events of the Pleistoceneepoch (about 10,000to 1.8mil-
lion years ago) or earlierTable Il. Indeed, as far back as the end of the
Cretaceous period (about 65 million years ago), the present Gulf of
Maine lay largely above sea level; ilconsisted of a low-lyingarea and
was traversedby river systemscarrying sediment from the interior. Later
on, however,the western part of this drainage systemwas invadedby the
sea. leading to the deposition of sediments of probable Eocene age
(about 38 to 54 million years ago), which now occur as remnants
throughout a bel1along the line of the Great South Channel extending
from Cape Cod northwards on to Stellwagen Bank and around the
northern tipof WilkinsonBasin4.
' E.Uchupi :ltonricConriaenlotShdf andStop of rhc Unir4 S-orPhy~iogrophy.
UnitedStateDcpartment of the InicrGeologicaSurvcyProfesrianPlaper529-C.
Memoriol.p.38.Figur13.ment Printing Office. 1968. pp. CI-CSee Canodion
' ofMoine and Ihe SourheasrernMosrorhuserrsOffshoreArUnitedStatesDcpart-
mcni of the Inierior, GealSurveyProfessionalper757.WashingtonU.S.Gov-
ernmcn trinting Office. 1971-10.. GULF OF MNNE 141
TABLE 1
NovaScotia-Ncv England margin arrumcr prcrcnt form Glacicrrctrcat.
scawatcrl risc ovcrCcortcr Bank and rcworksurficial rcdimcnir.
01 --
(:J~x~~~~~8~~lI;.crr rurihc8 "ut (i..rdrM X ~ ~a~nd hortheichannel
Ih
1~~~iarrul.oncarSc5out Gullol ~rinc and rrmi~c, m,.t ulco~si, piin
rdsrr.Xurthcaii ana Gcrd SoulnCnanncl. lacm 15 rdia -.m
Shallov marin= to non-marinedepmiiion continvcl an Gulf or Maine
Plaiform and Scoiian Shcli.
ScaIcicl droa: rhclland rlop. build oui; rubmarinc canyonsrorm.
Coniinucd marinc deporition.
Rençwcdrubridcncc and marinc deairition.
Margin uplifted: LaHavc Plaiform and Gulf ol Mainc Plaiform crodcd;sca
riscand sprcadsback arcs;D~WSO" canyo nnd wyandoi formations
dcpositcd:
Transvcrscmoucmenlrdong Kclvin Faull zoncrcsull in New England
Scamovnt chai".
Platfaim and yarmouih ~~~h ~~~irt~adnd CC~~C ~s.aICVCdropr.
deltas form: Mirrirauga and Logan Canyonlormaiionr dcpmited.
Continucd dcuclopmcni or carbonatbank vith back bank Mic Mac
formation khind.
EaricrnNorth American margin rubridcr: Aknaki carbanatcbank formr
clacto Ihc hinp zonc.
Nova Scatia and Ncv Englanddccovplc from NW Africa io form Central
Atlantikcan: Mohiçan formation deporiiçd.
Crus, subridcs=longbarcmcn, hingczonc:Yarmouth Arch rorms Gcorgcs
Bank andScotian Basin. cxprnd rhallov sali panacupying thc dcprcrrion
rclvllr in Argo formation.
Tcnrional crusta1lorcsr causclormuiion olgrabcnr lillsd by coniinenial
scdimcnir. including cvaporitesand volçanicî: Georgcr Bank andScotian
~~~i~~roim.
Coniincntal Ldimenir laid down in Bof Fundy. Baton Barin.
Acadian granites inirude Aomlachian. Avalon and Mcavma klir.
Clep.ma Scaua) claci - Vrgrma rm8mrnlr fdJcJ ~ndlivl!m
Appalachian(laviul,Seaua)clo,rr: Appalachian\cd8rncnüloldcd. la~licd.
Lkcp uairr rrd mcnis anado." n App~lachian \IcgurnaSeira>.
000. ~<~l~n t2.aifdrm cuis luldca .nixlard .>-ran irr.111~ b~,~
7W sprcading.
1000 Avalon Platform rocks laid down in shallow ~ca.282 GULFOF MAINE [6-91
16. The mass of glacial ice depressed the earth's crust beneath il
and for a short distance beyond the ice edge. The ice melted rapidly by
comparison with the slow readjustment - the isostatic recovery - of
the earth's crust. Consequently,by about 14,000years ago the rising sea
was able to invade the still-depressed Coastof Maine, New Brunswick
and the Fundy area of Nova Scotia, leaving marine deposits of post-
glacial age as far inland as Bingham in Maine, and Fredericton in New
Brunswick'.The strongly indented coastlinesof Maine and New Bruns-
wick. as well as those of Massachusetts and Nova Scotia, resulted from
the "drowning" of river valleysthat had been formed when sea levelwas
lower.Thus, the wholeof the coastal belt from the Cape Cod-Nantucket
Shoals-Great South Channel area to Cape Breton Island reflects a corn-
mon historyof fluvial erosionand glacial deposition,and of responseto
changing sea levelsand ice-loading.
3. TheNature of the ChannelsFlankingGeorgesBank
17. In a recently published interpretation of high-resolution seis-
mic data collected in 1975, United States scientists show that Georges
Bank is a compound feature8.They have divided it into three areas, on
the basis of deposits during the Late Tertiary and Pleistocene eras
(about 1.8 million years ago) [Figure 31. A central area about
60 kilometres wide, that trends across the width of Georges Bank in a
north-south direction, is called the Mid-Bank Divide. The other two
areas are an eastern wedge and a western wedgeof sediments flanking
the Mid-Bank Divide.The eastern wedge of sediments is interpreted to
be composedof younger Tertiary sediments. They form massive. pro-
grading delta-like structures that thicken to the southeast and construct
an eastward extensionto the Mid-Bank Divide.
18. The western wedgeof sediments has a different geological
history. In Plioceneor early Pleistocene time, erosionassociated with
streams cutting across the shelf in the vicinityof the Great South Chan-
nel had removed much of the Tertiary sediment Westof the Mid-Bank
Divide,making the Great South Channel the major drainage outlet from
the Gulf of Maine. During the mid to late Pleistocene,the channel was
successively filledby episodic influxes of glacial material. These form
the overlappingunits. shownin Figure 3, comprising the western wedge
that eventually filledthe Great South Channel. Prior to the final Pleisto-
cene ice advance, a transgression of the sea resulted in widespread ero-
sion across the top of Georges Bank, erasing the pre-existing mor-
phology. Erosion associated with the last glaciation modified Georges
Bank, cutting the Great South Channel and Northeast Channel and
incisingnumerouschannelsalong . . bank edge.
D. R. Grant: "GlacialStylc and IccLimits, the QuatcrnaryStraiigraphicRecord,and
Changcs ofLandand OccanLevelin the AtlanticProvinces.CanadaCéogrophiephy-
rique ri quolernnivol. 31, no314, 1977.p. 247-260.
J. M. Aaron.B. Buiman.M. H. Bothnerand R. E. SylwcsEnvironmenla1Condiriotu
Reloring Io Potenrial CeoloHorordr. US. Ailonrie Coniin~niol MorginUnited
MF-1e193.Washington.U.S. GovernmentPrintingOffice. 1980.ncousField Studics Map19-IO] ANNEXESTO COUNTER-MEMORIALOFCANADA 283
19. The Great South Channel is now some 80 metres deep and is
a broad physiographic feature leading out of Wilkinson Basin and dis-
rupting the patterned distribution of sand ridges and sand waves on the
Nantucket Shoals and Little Georges Bankg [Figure 41. The seismic pro-
files described above show that an equally wide and deeper channel
existed beneath the present channel. but that it was periodically filled
and eroded to varying degrees. At least four former channels are recog-
nized. the deepest lying 60 metres below the present channel flo~r'~. A
profile across the axis of the Great South Channel clearly shows an
inclined surface 10 kilometres Westof the axis of the Channel that:
"... may mark the western side slope of this filled trough. After this
deeper channel was filled, several others appear to have been cut,
and they too were filled in turn"."
The seismic data summarized in Figure 3 show that the southern part of
the Great South Channel was formerly at least 180 metres deeper than
it is now and functioned as a very broad fluvioglacial drainage outlet
during the Plei~tocene'~.Although the Great South Channel may not
have been completely occupied by a glacial longue. there is an extensive
lens (200 by 100 kilometres) of semiconsolidated sediment on the conti-
nental slope in the area of Hydrographer Canyon that probably
accumulated after being transported through the Great South Channel.
This material is more than 800 metres thick at the mouth of the Canyon
and thins gradually to the east, Westand south.
20. The Northeast Channel has not been filled in as much as the
Great South Channel, although some 40 to 60 metres of till and outwash
occur on its fioorI3.Whereas the Northeast Channel appears on conven-
tional maps as a superficial but distinct cut in the shelf, this is over-
emphasized by the common use of the 200-metre bathymetric contour to
delineate the shelf. A 240-metre contour, for example, would give a dif-
ferent visuaf impression. The only depression in the surface of the Atlan-
tic continental shelf that would then appear is the Laurentian Channel,
which is very different in scale from the Northeast Channel. The Lau-
rentian Channel runs 700 kilometres across the shelf into the Gulf of St.
Lawrence; it is 100 kilometres wide. The Northeast Channel is
70 kilometres long and is 45 kilometres wide. The sill depth of the
Northeast Channel is about 230 metres, compared with 410 metres for
the Laurentian Channel.
E. Uchupi: Allanlic ColinrnraShelj and Slope O/ rhe Unired Sioie- Shollow
Slruerure.United States-Department of the Interior.Ceological Survey Profcasional
Paper529-1.Washington,U.S. GavernrnentPrintingOffice. 1970.
'OS. T. Knott and H. Hoskina:"Evidencof PleirtoceneEvents in thc Structureol the
ContinentalShelf off the Northeastern UnitedStates."ne Geology,Vol. 6.1968.
pp.5-43.
" E. Uchupi: Alloniir Conlinenla1Sheif and SlopO/ lhe Unired Siore- Shollow
Srruclure.
" J.M. Aaron el al.: EnvironmenralCondirionsRelaiing ro Poienrial GeologicHazords.
" J. A. Ballard andF. Sarcnsen:"PreglacialStructureof GeorgesBank andNortheast
Channel. Gulfof Maine." Amencan Arsociorion of Pelrolcum Gmlogisrs Bullelin.
Vol.51.1968.pp.494-500.284 GULFOFMAINE [IO-Il
D. SIMILAR~T ~NETHE CONTINENTA SHELF SEDIMENT IN THE GULF OF
MAINE AREA
21. On the Scotian Shelf and Georges Bank, glacialand fluvial
outwash sediments are very variable in thickness. They usually form a
veneer less than 40 metres thick on the inner parts of the banksL4,but
then thicken rapidlyseawards towards the shelf edge. Thicknessof up to
200 metres is reported for outer Georges BanklJ. Similar thickness
occurs on the Scotian Shelf although thickness of up to 1,000 metres
occurs in buried channelsI6.Thick sediments are absent and Tertiary
strata lie a few metres belowthe seabed in some areas at the shelf edge
both on the Scotian Shelf and Georges Bank.
22. Figures 5, 6 and 7 show the distribution of gravel, sand and
mud in the Gulf of Maine area based on data from regional and local
studies of the surface sedimentson the Atlantic continental shelf". Each
of the three figures showsa continuity in the pattern of sediment distri-
bution throughout the Gulf of Maine area from northeast to southwest.
23. On the mud distribution map, the contours outline areas of
80, 50. 20 and 5-percent mud [Figure 51. Nearshore areas, which have
poor sample coverage and much topographie irregularity, were not con-
toured. The 5-vercent contour delineates the mud-free areas. Ir shows
the continuity of the broad band of the banks, stretching from Sable
Island Bankto the Great South Channel, broken onlyby a slightly mud-
dier area in the central Scotian Shelf, between LaHave Bank and Eme-
rald Bank. Increasing percentages of mud occur in the areas both land-
ward and seaward of the banks. The 80-percent mud contour includes
most of the deeper basins,although Crowell Basin in the Gulf of Maine
and southern Roseway Basin on the Scotian Shelf are somewhat less
muddv.
" Gconautics Ltd.: "A Gcophysical Survcy of Geargcs Bank, Gcorgcs Basin and Northcast
ChannelArea of the Gulf of Maine." Geological Survey of Canada. unpublishcd report;
C.L. Amm and K. W. Asprcy: "Report an C.S.S. Dawson Cruisc 82-040. Sablc Island
Bank."Gcological Suwey of Canada. Atlantic Geosciencc Centre. Bcdford lnstitutc of
Oceanagraphy. Interna1 Repart. 19L.:H. King, B. MacLcan and G. B. Fadcr:
"Unconformitics on thc Swtian Shclf." ConadionJournal of Eorih Sciences. Vol. II.
No. 1. 1974, pp. 89-100.
" S. T. Knott and H. Haskins: "Evidcncc of Plcistoccnc Evcnts in the Structure of thc
Contincntal Shclf off the Northcastcrn Unitcd States", pp. 5-43.
l6C.L. Amas and K. W. Asprey: "Report an C.S.S. DawsonCruisc 82-040. Sablc Island
Bank"; M. S. Barss. J. B. BujaJ.L. Williams: PalynologieolZonation and Corre-
lotionof 67 WelEosrernConode. GeologicalSuwey of Canada Papcr78-24. 1978.
" L. H. King: "Submarinc End Moraincs and Associalcd Deposits on the Scotian Shclf."
Geologicnl Son'ety of Americo Bullerin. Vol. 80, 1969. pp. 83-J.P. Swift.
R. A. Young. T. L.larkc. C.E. Vincent. A. Niedoroda and B. Lcsht: "Scdiment
Transport in the Middle Atlantic Bight of North: Synopsis of Rcccnt Obscwa-
lions". in S-D. Nio. R. T. E. Shuttcnhclm and Tj. C. E. Van Wccring. edr.: Holoeene
Marine Sedimeniorionof the North Sco. lntcrnational Association of Scdimcntologisu
Spccial Publication No. 5. Oxford. Blackwcll Scicntific Publirhcn, 1981. pp. 361-383;
D. J.Stanley and A. B. Cok: "Scdimcnt Transport by Icc on the Nova Scotian Shclf."
T~onrncrionrof the Noriono1Symposium inOceonSciencesand Engineeringof the
Atlantic ShelJ PhiladclphiaMarine Technology Society, 1968, pp. 100-125;
J.C. Hathaway: "Data File. Contincntal Margin Program, Atlantic Coast of Unitcd
States. Val. 2. Sample Collection and Analytical Data." Woods Holc Occanographic
Institution. Reference No. 71-75, Unitcd States Gealagical Survey GD-76-015. 1971.[Il-161 ANNEXESTOCOUNTER-MEMORIALOF CANADA 285
24. On the sand distribution map, contours outline areas of 80,
50 and 20-percentsand [Figure 61.Sand is abundant on some bank tops,
although in other casesgravel predominates. In the basins,sand is gener-
ally rare, but it is abundant on the slopesbetweenbanks and basins.
25. The gravel distribution map, shows that the gravels of the
Scotian Shelf and eastern Gulf of Maine extend ont0 the northeastern
part of Georges Bank, but are separated from the gravel that marks the
Great South Channel [Figure71.
E. DISTRIBUTIO ONFSAND WAVES AND SIMILAR BEDFORMC SO: NTINUITY
FROM NORTHEAS TO SOUTHWEST
There are three types of bedforms (regular ridge-like seabed
26.
features) that occur in the Gulf of Maine area. These are large-scale
sand ridges, somewhat smallersand wavesand evensmaller megaripples
[Figure81.These three typesof wave-likefeatures are al1generated as a
result of activecurrents working principally onand18.
27. Large-scale sand ridges occur on the northern part of the
East Coast Shelf southwest of the Great South Channel, on Georges
Bank and the Scotian Shelf (Sable lsland Bank and Banquereau). There
is a general coritinuity in sand ridges throughout this area andhose on
Georges Bank Varyfrom among the smallest to the largest in size".
28. The sand ridges onthe East Coast Shelf and on Sable lsland
Bank and Banquereau are morphologically similar.They are storm-
generated or submerged formernear-shore islandsZoH . owever,studies of
waves and currents show that on the shallow banks between western
Georges Bankand LaHave Bank onthe Scotian Shelf, sand movementis
principally the result of tidal currents, notormsl'. The sand ridges on
Georges Bank are the result of these tidal currents and are thus unlike
those of either the East Coast Shelf, off the United States Coast, or
Sable lsland Bank, further north offthe Canadian Coastn.
'W. Twichcll:Bed Form Disiributionond lnterred Sand Tronrport on GeorgesBank.
UnitedStates Departmentof the Intcrior,GeologicalSurveyOpen-FileReport81-764.
Washington.U.S. GovernmcntPrintingOffice. 1981.
lC. L. Amos and E. L. KinSand Wover ond Sand Ridgesof the CanadionEosiern
Senboard- A Comporironio Globo1OccurrenceD.artmouth. NovaScotia. Atlantic
GeoscienceCcntrc,GcalogicalSurvcyof Canada (in press).
D. J. P. Swift: "Tidal Sand Ridgesand Shaal Retrcat MassMarine Geology.
Vol.18.1976. pp.105-134D:.J.P. SwifCr01.:"ScdimcntTransportin the Middle
AtlanticBight of North Amcrica:Synopsis ofRcccnt Obrcrvations".pp. 361-383;
C. L. Amosand K.W. Asprey:"RcportonC.S.S. DawsonCruis82-040 ,able Island
Bank."
" C. L. Amos and E. L. KinSind Wovesond Sand Ridgesof the CanadianEoslcrn
Seoboord- A ComporisonIo GlobalOccurrences.
" B. Butman:"Currcntsand ScdimcntMavementan GcorgesBank".inG. C. McLeod
andJ. H. Prescott.cdGeorgesBank:Post.PresenrondFutureo11Marine Environ-
ment.Boulder. Colorad, cstviewPres1982.p.31-59.286 GULF OF MAINE (16-171
29. Rather than exhibiting clear distinctions, the sand waves of
Georges Bank overlap in terms of both shape and size with those found
on Browns Bankand other areas to the northeast, includingthe Bay of
Fundy2'.There is thus a continuity in sand wave type from northeast to
southwest, whichis reflected in the fact that sand waves are reported
within the Northeast Channelz4.The sand waves are the product of
strong currents, and those on Georges Bank, the Northeast Channel,
Browns Bankand the Bay of Fundy are the product of the same strong
tidal circulation associated with the Bay of Fundy. The entire area
between LaHave Bank ta the central part of Georges Bank belongs to
the same tidally dominated system. There are fewer sand waves on the
East Coast Shelf, in part due to the finer sediment".
30. Seabed sediments tend to movein a northeasterly directionin
the area east of a line passingthrough the Great South Channel, but in
a southwesterly direction Westof this line". This zone of sediment part-
ing appears to be a response to the different directions of the residual
currents on either side of the Great South Channel.
Section III. Subsurface Geology of the Gulf of Maine-Georges
Bank Area
A. GEOLOGICA STRUCTUR EF THE AREA
31. There are two major centres of deposition flanked by three
more siable or "platformal" areas in the subsurface of Georges Bank.
The sediment-filled depression beneath'the western part of Georges
Bank, originally named the Georges Bank Trough, has been renamed
Georges Bank Basin". The southwestern end of the Scotian Basin
underlies the eastern part of Georges BanklB[Figure 91. Between the
two lies the Yarmouth Arch. The Long Island Platform forms the north-
western limitof Georges Bank Basiniq,whereas the LaHave Platform-
forms the northwestern limit of the Scotian Basin3O.
" C. L. Amas and E. L.King:Sand Wovcsond Sond Ridges ofthe ConadionEosrern
Scoboard - A Comporisonto Globalûceurrcnces.
" Gcanauticr Ltd.: "A Geophysical Survcy of the Georges Bank. Georges Basin and
Northcart Channel Area of the Gulf of Mainc."
"M. H. Bothncr.E.C. Spikcr, W. M. Fcrrcbccand D. L. PcClay Minerology. Trace
Mcrols.ondAgr O/CoredSediments/rom theAilonrie OuterConrinentolSh~Unitcd
Statrr Dcpartmcnt of the Interior, Gcological Survcy Open File Report 79-842. Wash-
ington, U.S.overnmcnt Printing Office. 1979.
" R. H. Belderson. M.A. Johnson and A. H. Stridc: "Bed-Laad PartingsConver-
gences at the Entrance ta the White Ses. U.S.S.R.. and Beiwecn Cape Cod and Georges
Bank. U.S.A."Marine GeologyVol. 28. 1978.pp. 65-75.
"J. C. Mahcr and E.R. Applin:GeologicFramework and PerroleumPoteniiolO/the
Allanrie Cooslol Plain ond ConrinenrolSheR L. K. Schultz and R. L. Grover:
"Geolagy of Georges Bank Basin."Ainericon Associationof Pelroleum Geologisrs
Bull~rinVol. 58, No6.Part 2, 1974,pp. 1159-1168.
" J. A. Wade: "Stratigraphy of Georgcs Bank Basin.ConodionJournal O/ Eorrh
SciencesVal. 14. No. 10, 1977.pp. 2274-2283.
" L. K. Schult7.and R. L. Grover: "Gcology of Gcarges Bank Basin". pp. 1159-1168.
L.F. Janra and J. A. Wade: "Gcology of the Continental Margin off Nova Scotia and
ineOf/short GeologyofEosrern ConodVol. 2. Geological S!rvey of Canada Paper 74-.
30. 1975. pp.51-105.[17-191 ANNEXESTO COUNTER-MEMORIM OFCANADA 287
32. Georges Bank Basin is an ancient structural depression of
about 200 by 90 kilometres in dimension. It was formed about 190 mil-
lion years ago during the Early Jurassic as a result of tensional forces
prior to the drifting apart of North Africa and North America. This
basin contains up to 8 kilometres or more of sedimentary rocks of Juras-
sic to Tertiary age", overlying a folded and block-faulted basement com-
plex composed of igneous and meta-sedimentary rocks, and inset with
down-faulted remnants of Triassic sediments and volcani~s~~T . he basin
had its most rapid period of subsidence during the Early and Middle
Jurassic, when.up to 4 kilometres of predominantly carbonate rocks were
deposited in a shallow, warm epicontinental sea. The carbonate rocks
were flanked in a shoreward direction by fine and coarse clastics. During
the late Middle Jurassic to Tertiary, an additional 4 kilometres or more
of sediments were deposited across the area, consisting primarily of
sandstone and shale, with occasional thick intervals of carbonate rocks
developed along the ancient shelf edges.
33. The Yarmouth Arch and attendant positive elements to the
south and east, formed the southern limit of the Scotian Basin during
the Late Triassic and Early Jurassic". In late Early and Middle Jurassic
time the Arch was gradually submerged as the margin subsided and the
Scotian Basin and Georges Bank Basin were fully connected. After the
Jurassic, the effects of the two basins were much less distinct and sedi-
mentation was relatively uniform across the entire area. The Yarmouth
Arch rises in a northeasterly direction towards southwestern Nova Scotia
and has been interpreted to represent the southwestward plunge of the
Nova Scotia structural trend^'^.On maps of magnetic anomalies, the
Arch is represented as a positive trend that extends from Nova Scotia in
a southwesterly direction across the Northeast Channel and beneath
Georges BankI5.
34. The Scotian Basin is the largest subsurface basin on the
southeastern continental margin of Canada. It extends in a southwest-
ward direction from the Scotian Shelf to eastern Georges Bank16.The
Scotian Basin is bounded to the southwest by the Yarmouth Arch, which
partially separates it from Georges Bank Basin, and to the northwest by
the LaHave Platform [Figure 91.
35. The Scotian Basin contains up to 10 kilometres of sediments
beneath eastern Georges Bank and the Northeast Channel, thickening to
over 12 kilometres in the vicinity of Sable Island on the outer part of the
31J. A. Wade:"Stratigraphyof GeorgesBankBasin".pp.2274-2283.
" R. D. Ballard andE. Uchupi:"TriassicRift Structurein the Gulf of MAmerienn
Associoiiono/Perrolcum GcologisrrBulierVol.59. No. 7. 1975.pp. 1041-1072.
" J. A. Wadc: "Thc Mcrozoic-CenozaicHistory of the NorthcastcrnMargin of North
Arncrica."ProceedingO/ TenrhAnnual OffshoreTechnologyCon/erenceVol. 3. 1978.
pp. 1849-1858.
Y J.A. Wadc: "StratigraphofGeorges BankBarin".pp.2274-2283;and "ThcMcsozoic-
CenozoicHistaryof the NortheasternMarginal NorthArncrica",pp. 1849-1858.
" R. T. Haworth andJ. B. Mclntyre:The Groviiyand MognericFieldO/ Arlonrie O//-
shoreConado. GcalogicalSurveyofCanadaPapcr75-9. 1975.
" L. F.Jansaand J. A. Wade:"Geologyof thc ContinentalMarginoff Nova Scotia and
Newfoundland". pp.51-105. 120-211 ANNEXESTOCOUNTER-MEMORIALOFCANADA 289
(b) Salt domes: Anticlinal, high-relief structures in which sandstone
resewoirs of possibleJurassic and Lower Cretaceous age have been
warped upwards by the rising salt. Salt domes probably contain
9 percent of the oil and 7 percent of gas that might exist beneath
northeastern Georges Bank.
(c) Rollover structures: Asymmetrical anticlinal structures of low relief
on the down-thrown (usually basinal) side of active growth faults.
These faults are often caused by salt movement or the presence of
overpressured rocks at depth. Rollover structures probably contain
10 percent of the oil and 9 percent of the gas that might exist
beneath northeastern Georges Bank.
(d) Normal faults: Fractures which cut the sediments (similar to rol-
lover structures) but with no closure other than that provided by
intersection of the fault with dipping strata. Normal faults probably
contain 2 percent of the oil and gas that might exist beneath north-
eastern Georges Bank.
40. The hydrocarbon potentialof the Yarmouth Arch is described
by only one play, whichis related to faulting and basement structures
and involves Jurassic sandstone resewoirs overlying gentle highs and
relatively small fault blocks. The Yarmouth Arch could contain 3 per-
cent of oil and 6 percent of gas that might exist beneath northeastern
Georges Bank.
41. The oil and gas potential of Georges Bank Basin,on the west-
ern side of Georges Bank,has beendescribed by the United States Geo-
logical Survey4".The major oil and gas plays are associated with struc-
tural highs, carbonate reefs, facies changes, normal faults and updip
porositywedgeouts.
(a) The largest and most important plays described in Georges Bank
Basin are structural highs associated with draping and differential
compaction of sediments over high basement blocks. Drape struc-
tures have providedsubstantial petroleum traps in other parts of the
United States. In Georges Bank Basin these drape structures could
have provided timely traps for hydrocarbons that may have been
generated in Jurassic or Cretaceous rocks.
(b) Stratigraphie traps may occur in carbonate sediments associated
with the Jurassic and LowerCretaceous reejs. These reefs are some-
times extremely porous and have potential for oil and gas accumula-
tion especiallynear the shelf edge.
(c) Facies changes from marine clastics to carbonates or from marginal
marine sandstone to shale, in the Jurassic and Cretaceous, may form
numerous potential hydrocarbontraps.
(d) Normal faults. adjacent to basement blocks, could provide traps in
the lowerpart of the sedimentary section.
a Sedimcnis.Srrunuroi Fromework.PerrolcumPoicnrioi.Environmel ondition. nd
Shelf.United States Departmentof the Interior,GeolSurvcyOpen File Reportroi
75-353.1975.290 GULFOF MAINE [21-221
(e) Updip porosiiy wedgeouis occur where porous resewoir beds pinch
out against structural highs thus forminga potential trap for oil and
gas. This type of play is also expected to occur in Georges Bank
Basin.
42. The total potential recoverable oil and gas resources
associated with the plays in Georges Bank Basin, as estimated by the
United States Geological Survey", are similar in both quantity and
probability of occurrence to those in the Scotian Basin and Yarmouth
Arch playsto the east.
Section IV. Conclusion
43. The continental shelf in the Gulf of Maine area is part of the
single, continuous Atlantic continental margin of North America. How-
ever, the Gulf of Maine area, and Georges Bank in particular, exhibit
greater geomorphologicaland geologicalaffinities northeast than south-
West. Firsi similar fluvial and glacial processes produced the physio-
graphic features of the seabed from the Scotian Shelf to Nantucket
Shoals. The Cape Cod-Nantucket Shoals-Great South Channel area is
the southern limit of glaciation on the continental shelf of eastern North
America. In recent geological history, this area was drained by two
major river systems dischargingthrough the ancestral Northeast Chan-
nel and Great South Channel. As a result of fluvial and glacial action,
there is a similarity and continuity of sediment type on the seabed from
northeast to southwest - off the Coastof Nova Scotia to the Cape Cod-
Nantucket Shoals-Great South Channel area. Secondly, the subsurface
geologyof the Gulf of Maine area indicates that the Scotian Basin -
the major structural feature that underlies the Scotian Shelf - also
underlies the Northeast Channel and eastern Georges Bank. Georges
Bank Basin underlies the western part of Georges Bank. A third struc-
tural feature- the Yarmouth Arch - also underlies part of the North-
east Channel and Georges Bank, trending southwestward from Nova
Scotia. All three features contain plays where hydrocarbons may be
entrapped. Thus, the Gulf of Maine area exhibits geomorphologicalcon-
tinuity from the Scotian Shelf to Nantucket Shoals and contains a sys-
tem of potential hydrocarbonplays in the deep sedimentary basins that
extend from under the Scotian Shelf to under Georges Bank.
" SedimenrsS, rrucrurolFromework.PelrolcumPoienriol.Environml ondirlonr.ond
OperarionolConsiderorionof rhe Unired Srorer Norrh Allonrie Ouro Coniincnrol
SheK C. L. Dolion. K. H. Carlson.R. R. Charpentier.A. B. Coury.R. A. CraveIli,
S. E. Frezon,A. S. Khan.J. H. ListR..H. McMullin.R. S. Pike, R. B. Pawers.
Resourcesof Oil and Cas in rhe Unired SraleUnited Stata Departmenialthel
Intcrior.CcologicalSurveyCircular860. 1981.292 GULF OF MAINE [25-261
Stream [Figure II]. Those eddies to the north of the Gulf Stream can
moveclose to, or even bump against, the continental shelf, at which time
their energetic, clockwise rotation causes large volumes of water to be
exchanged between the shelf and offshore.
Section III. Factors Affecting the Currents of the Scotian Shelf and
the Gulf of Maine Area
47. The movement of water on the continental shelf is determined
by a combination of mechanisms. In the Scotian Shelf-Gulf of Maine
area. water movements result from the following factors. Firsr, large-
scale forces such as the trade winds, the mid-latitude westerlies, seasonal
heating and cooling cycles, precipitation and evaporation patterns and
freshwater discharge, and the interaction of other processes such as tides
with bottom topography, produce what is known as the average circula-
tion [Figure 121. Secondly, offshore forcing caused by the meandering
Gulf Stream and the shedding of large energetic warm-core eddies may
produce major movement of coastal water offshore in the surface layer
and of slope water onshore at greater depths. Thirdly, local, short-term
gales, which move surface water before them, are capable of producing
motion that alters the mean circulation for several days. Fourlhly, the
tide-producing forces that cause the rise and fall of sea level on the
shoreline produce important rotary or back-and-forth water movements.
Section IV. The Pattern of Surface Currents on Georges Bank
48. As shown in Figure 12, the flow of the surface layer south-
westward along the Nova Scotia coast splits into two as il approaches
the Gulf of Maine area. Part of the offshore component re-circulates
around Browns Bank in a clockwise direction', whereas the inshore com-
ponent moves directly pas1 Cape Sable, joining a generally northwest-
ward flow along the eastern side of the Gulf of Maine. Some of this
water crosses the mouth of the Bay of Fundy. and some moves rapidly
into that bay on the Nova Scotia side and thence outward on the New
Brunswick side before joining the general flow southwestward along the
New England coast'. Near Cape Cod the flow splits, with part flowing
around the Cape by way of the Great South Channel and continuing
southwestward, whereas the remainder moves northeastward along the
southern side of the Gulf of Maine and ont0 the northern flank of
Georges Bank, where a relatively narrow, high-velocity jet develops3.
' R. C. Beardsley andP. C. Smith:"TheMean,Seasonaland SubtidalCirculationsin the
GeorgesBankand Gulf 01 Maine Region."Third Informol Workshopon rhe Oeeonog-
rophy of the Guljof Moine and Adjoceni SDurham,New Hampshire. University of
New Hampshire. 2-5 Mar. 1981.pp.9-16,
D. F. Bumpusand L. M. Laurier:"Surlace Circulationon the ContinentalShelf of
EasternNorth America bctween Newfoundlandand Florida."AmcricanGeographical
SocietySeri01 Allas of rhc Morine Environm1965. Foli7.
' B. Magnell. S. Spiegcl and R. Scarlet: "The RernarkableRelationship Bctween the
NartheastwardCurreni Jetan the North Side 01 Georges Banand Tidal Currents."
SecondInforma1 Workshop on ihe Oeeonogrophyof ihe GuljofMoine and Adjoccnr
Seos.Halifax.DalhousieUniversity,14-17May 1979. [27-28). ANNEXES TO COUNTER-MEMORIALOF CANADA 293
Here again the flow splits. with some moving back towards Nova Scotia
and the rest curving southward and thence southwestward along the
southern flank of Georges Bank.
49. At the southwestern part of Georges Bank, some of the flow
turns northward in the eastern part of the Great South Channel and re-
circulates around the Bank, whereas the remainder crosses the Great
South Channel in ils progressive southwestward movement over the
shelf. The Nantucket Shoals form a "leaky" boundary between the west-
ern Gulf of Maine and the East Coast Shelf. Most of the water flowing
south and southwestward over the shoals originales in the western Gulf
of Maine and subsequently mixes with Nantucket Sound water and shelf
water near the Great South Channel before joining the general south-
westward flow over the mid- and outer East Coast ShelP. Although the
direction of the mean flow is nearly parallel to the bottom contours
throughout rnuch of the Gulf of Maine area, there is a small but
significant offshore surface flow along most of the outer edge of the
continental shelf throughout the area [Figure 121. Also. there is a tend-
ency for water to re-circulate around the banks and basins, and thus a
single parcel of water may make more than one circuit of the Gulf of
Maine or Georges Bank before continuing ils southwestward journey.
Section V. Differences Between Subsurface and Surface Currents
50. Current speeds generally diminish with depth. In basins, the
circulation and source of deep subsurface water usually differ appreci-
ably from those of overlying waters. In those like Emerald Basin and
Georges Basin, the deep water originates from offshore, through subsur-
face penetration of slope water, whereas the upper water layer is part of
the southward moving coastal water. Thus, the current pattern in the
Gulf of Maine is not static and different pictures emerge depending on
seasons and depths. Computations of the mean annual influx into the
Gulf of Maine through the Northeast Channel implies a replacement
time of about one year for the deep water of the Gulf of Maine.
Section VI. The Influence of Freshwater Discharge from
Northern Sources
51. On the larger scale. the important freshening influence intro-
duced into the southward-moving shelf water from the Hudson Bay and
St. Lawrence systems has already been referred to. More locally,
Gulf of
freshwater from :he rivers emptying in10the Gulf of Maine area - the
Saint John. Penobscot, Androscoggin, Kennebec and Merrimack - also
produces measurable effects well beyond the river mouths. Of these. the
Saint John River, which flows into the Bay of Fundy froni New Bruns-
wick, is the largest and has a mean annual discharge of about 50 percent
' R. Limeburnerand R. C. Beardsley:"TheSeasonal Hydragraphyand CirculationOvcr
NantucketShoals."Journolof Morin< ReseorchVal. 40. Supplement.1982pp. 371-
406. 294 GULF OF MAINE [28-291
of the combined total river discharge into the Gulf of Maine areaJ. All
the rivers have large seasonal variations in discharge. with an annual
peak in spring associated with the melting of snow and ice. The Saint
John River is not only much larger than the others but also displays a
more marked seasonal variation, ranging from a monthly minimum in
August to a maximum in May (higher by a factor of about ten), when
its discharge exceeds 60 percent of the total for the five rivers. The
influx of freshwater not only alters the salinity pattern over a wide area,
but also produces important dynamic effects and changes in the intensity
of the southwestward flow along the New England Coast as Far as Cape
Cod6.
Section VII. Temperature, Salinity and Water Mass Relationships
52. A plot of temperature (T) against salinity (S) is referred to as
a T-S diagram or relationship, and is used to identify various water
@ masses [Figure 131. The technique is used to illustrate and determine
whether the water in any given area has been derived as a result of mix-
ing of two or more "source" water masses; it also reveals the distinctive-
ness of the water in one area as compared with another. The Gulf
Stream, slope water and shelf or coastal water, referred to in paragraphs
45 and 46, are recognized as the three principal water masses of the
region [Figure IO]. Although temperature-salinity (T-S) analysis brings
out an element of distinctiveness in Georges Bank water, it equally
demonstrates its close similarity to Maine surface water and Scotian
@ Shelf water. As Figure 13 shows, there is a very large overlap in the T-S
envelopes. This is not surprising because these upper layer waters are al1
part of the southwestward-moving shelf water. The fact that there is
considerable overlap in T-S characteristics with neighbouring waters is
indicative of a continuum, in which the water of the continental shelf is
progressively modified in its southward journey from the easiern
Canadian Arctic to Cape Hatteras.
53. Salinity and temperature Vary horizontally, vertically, and
with lime. For the Scotian Shelf-Gulf of Maine area, important varia-
tions occur from week to week, season to season, and year to year.
FigureIS shows the vertical structure and the seasonal change in tem-
perature for selected banks and basins on the continental shelf from the
Scotian Shelf to the New England Shelf southwest of Nantucket Shoals.
The water column is stratified at al1 seasons except for shallow areas
such as the central part of Georges Bank, Lurcher Shoal off southwest
Nova Scotia, parts of the Bay of Fundy, and on Nantucket Shoals,
. Thcrecomparisonsare made frommorethan 30 years of gauged records.The data on
ment of theInterior,Geolagical Survey Water Supply Papers Nos. 1301. 1721 andrt-
1901;datafor the Saint John Riverare ifrornWaicrSurvey of Canada, Depart-
mentof theEnvironment.
D. F. Bumpus: "Sources of Water Contributed ta the Baoyf Fundy Surface
Circulation."urnuloftheFisheriReseorchBoordof Conoda.Vol. 17. No. 2. 1960.
pp.181-197:and"A Descriptionof the Circulationan the ContinentalShelfaf the East
Coast of the United States".in B. A. Warmcrc,cd.: ProgOeeonographyNew
York,Pergamon Press,1973.pp.1-157. 129-311 ANNEXES IO COUNTER-MEMORIAL OF CANADA 295
where the intense tidal currents produce vertically well-mixed water
from top to bottom at al1 times of the year. As is evident from Figure
15, there is a close similarity in vertical temperature structure between
Georges Bank and Browns Bank. For the banks as a whole, their temper-
ature profiles from the surface to a depth of 100 metres correspond
closely both in winter and summer.
54. The similarity and coherence between the water characteris-
tics of Georges Bank and those of the shelf waters to the northeast also
hold for temperature patterns of the sea surface, both in terms of sea-
@ sonal variations and long-term annual means [Figure 141.The seasonal
patterns for the western Scotian Shelf, Browns Bank, the Gulf of Maine
and Georges Bank areas closely resemble each other. The mean annual
difference in seasurface temperature between Browns Bank and Georges
@) Bank, as shown in Figure 14, is less than lac. However, there isa strik-
ing temperature difference between the water on the shelf and the off-
shore slope water, where the mean annual temperature differs signifi-
cantly by more than 6°C. It is in an offshore direction that a major
temperature differential exists, ratherthan between Georges Bank and
waters to the north and northeast.
55. The mean annual temperature of the sea surface is no1only
comparable throughout the Gulf of Maine area, but also yearly changes
are similar over a wide region of the east Coast of North America'.
Although these observed changes are based on surface temperatures,
some subsurlace temperatures in the Gulf of Maine suggest similar pat-
terns. The existence of these large-scale, long-term patterns is furtiier
supported by correlations with the discharge [rom the St. Lawrence
River system. and with the catches of about half of the important com-
mercial fish speciesin the Gulf of Maines. Thus, Georges Bank may best
be viewed, not as a single, isolated system, but rather as a part of a
much larger dynamic and interactive system.
Section VIII. Tides and Tidal Currents
56. The rise and fall of the tide is produced by the passageof a
single. very long-period wave past a given point. Seaward of the conti-
nental shelf, where the water is deep, the change in water level is slight,
but closer to shore, where the water becomes shallower. the rise and fall
of the tide become more marked. Passage of the tidal wave is also
accompanied locally by a strong backward and forward movement of
water known as the tidal current.
57. The nature of the tide throughout the Gulf of Maine area is
that of a single-system response to the dominant North Atlantic tide.
The tidal currents over Georges Bank are larger than those round on
' W. H. SutcliffR. H.Loucksand K. F.Drinkwaier: "Coasial Circulnnd Physical
Oceanographyof the ScotianShclf and the Gulf of Maine." JoO/nrhc Fisheries
ReseorchBoard o/Conada. Vol. 33, 1976,pp.98-115.
W. H. SuicliflK. F. Drinkwaier and B. S. Muir: "Carrelationsof Caichand
EnvironmentalFactorsin the Gulf of Maine."Journal ojrhe FisheriesRcsenrchBoard
o/Conodo. Vol. 34, 1977.pp. 19-30. (34.351 ANNEXESTO COUNTER-MEMORIALOF CANADA 297
The magnitude of the tidal currents, combined with bathymetric fea-
tures, are therefore the principal parameters defining zonesof vertically
well-mixedwater.
61. In summary, the Georges Bank-Gulf of Maine-Bay of Fundy
region constitutes a single integrated tidal system.The tidal currents are
the single most important factor controlling circulation and vertical
structure on Georges Bank. This point is reinforced by mathematical
modellingstudies, whichsuggest that any change in the tidal régimein
the upper Bay of Fundy. producedby the building of a barrage, would ,
be reflected in changes in the extent of the zonesof well-mixedwater on
Georges Bank and elsewhere. Conversely, changes in sea level over
Georges Bank would produce changes in the tidal régimethroughout the
Gulf of Maine-Bay of Fundy area, which further emphasizes the fact
that tidally the Bayof Fundy, Gulf of Maine and Georges Bankare inti-
mately linked.
Section IX. Fronts
62. An area where strong horizontal gradients exist in oceano-
graphic characteristics such as temperature or salinity is cornmonly
referred to as a "front". There are two types of fronts cornrnonlypresent
on or near Georges Bank.The most important of these occurs wheretwo
water masses in the ocean meet. The southward-movingshelf water is
bounded on itsseaward side by slope water which is warmer and saltier.
The zone where they meet is referred to as the "Shelf-Slope Front". Its
position is usually over the continental slope from Cape Hatteras to the
Grand Banks, but its location at any given lime varies, with onshore-
offshore movement.by as much as 200 kilometres.Thus at times it may
be positionedup on Georges Bank or Browns Bank.whereas at others it
islocated welloffshore.
63. The second type of front is tidally generated and exists only
seasonally. In theory a tidally generated front completely encompasses
the shallower part of Georges Bank and is roughly coincidentwith the
location of the 60-metre depth contour" [Figur 1e91.Thus, only along
the northern part of the Bank is the front situated near the Bank's edge.
Elsewhere, to the extent that a tidal front can be identified. it is posi-
tioned well in from the edge of the Bank and wellaway from the North-
east Channel. Moreover,in this area the transition from mixed to strati-
fied waters is such a gradua1one that it is not normally referred to as a
"front" at all.
Section X. Propertiesof Self-Containedness Withioan Overall
ContinuumAre Refleetedin the GeorgesBankGyre
64. The clockwise surface circulation around Georges Bank is
strongest in spring and summer and weakest in winter when it is
" J. B.Coltan, R. R. Marak. S. E. Nickcrson and R. R. Physicol.Chernicoland
BiologicnlObservolioon rhe ConrinenrolSheK Novo ScorioIo LongIslond. 1964-
1966.United States Department of the Interior, Fish and Wildlife Service Data Repart.
No. 23, 1968. 298 GULFOF MAINE 136-391
partially disrupted by offshoresurface flowacross the Bank [Figure 121.
Similarly, the subsurface flow is clockwisearound the Bank, witha per-
sistent northward re-circulation on the eastern side of the Great South
ChannelL4.The time taken for water moving along the 60-metre depth
contour to circulate around the Bank is estimated to be about two
montbs.
65. The predictive modelof the tidally driven residual current
displays the major clockwisecirculation feature [Figure 171.This model
also predictsclockwiseresidual circulationson Nantucket Shoals and on
Browns Bank - features evident from field observation^'^.
66. The use of satellite-tracked, freelydrifting floats confirms the
general clockwisecirculation on Georges BankI6.However, the gyre is
. not a perfect one, as illustrated through the data from the floats. Of a
' series of 16 drifting buoys, onlyone completed a full circuit of the gyre
[Figure 201. The buoys leaked out of the gyre in every direction. The
mean "residence time"for buoys on the Bank was about seven weeks",
which compares favourably with residence times for drifting buoy
experimentson other banks with similar gy~es'~.
67. A totally independent method of assessing the "self-
containedness" of Georges Bank is based on calculations of the rate of
lateral exchange between water circulating on the Bank and that lying
further off. This exchange rate is calculated from temperature distribu-
tions acrossthe Bank. If the Bank were a completely self-contained sys-
tem, the water would heat up during summer at a rate related to the
amount of insolation. Infact, it heats up at a much slower rate, which
implies that heat is lost laterally off the Bank. However,the rate of lat-
eral heat loss istoo great 'tobe explained bysimple moleculardiffusion,
but results rather from the exchangeof water betweenthe Bank and the
Gulf of Maine and from off the continental shelf.Most of the water over
the Bank exchangeswith the surrounding water in a time of one to two
months19.
68. The exchange of water between the Georges Bank gyre and
the surrounding area is enhanced by several factors. Firsl, strong winds
''B. Butman.R. C. Beardsley.B. Magncll,D. Fryc.J. A. Vcrmcrsch,R. Schlitz. R. Lime-
burner.W. R. Wright andM. A. Noble:"RecentObservationsof the MeanCirculation
on GeorgesBank."Journol of Physicol Oceonogrophy,Val.12, No. 6, 1982, pp. 569-
591.
H. B. Bigclow:"PhysicalOceanographyof the Gulf of Maine." Bulletin of the United
Sroies Bureau of Fisheries. Val. XL, Part 11,1924. pp. 511-1027;R. C. Beardsleyand
P.C. Smith:"The Mean, Seasonal and Subtidal Circulationsin the Georges Bankand
Gulf of MaineRegion",pp.9-16.
l6B. Butmanel 01.:"Recent Observationsof the Mean Circulatioon Georges Bank".
pp.569-591.
.'B Fryc "RcridcnscTimc of W31~ri on(~CO~~CIBank."'li<inro~r,urfihc Amrncon
Grophyri<oil'Xun. Vol 63. Uo 3Jan.IV.1982.p 92.
'W. W. Trites.D.J.Lawrence andC. K.Ross :SpecialSessionanRemoteSensing,Sep-
tcmber 1981." Dartmoiith, Nova Scotia, Northwesi Atlonlie Firheries Orgoniroiion,
Scienlijic CouncilSludies. No. 4. 1982,pp.85-91.
J.W. Loder,D.G. Wright.C.GarrettandB.-A. Jurzka:"HorizontalExchangeon Cen-
tral Georges Bank."Cnnodion Journal of fisheries and Aquntie ScieneVol. 39,
No. 8, 1982,pp. 1130-1137. 139-401 ANNEXESTO COUNTER-MEMORIALOFCANADA 299
blowing from one direction for several days result in on-off bank move-
ments and a net surface water movement overmany tens of kilometres.
An example of this dominance was observed in the drifts of oil-slicks
from the break-up of the Argo Merchont on Nantucket Shoals in
December 1976.Secondly, the warm-core GulfStream eddies may,from
time to time, interact with Georges Bank, resulting in extraction of sur-
face waters or penetration ofwarmer, higher-salinitywater onto Georges
Bank at depth.
69. In summary, the re-circulation associatedwith the Georges
Bank gyre keeps water within the confines of the Bank longer than
might otherwisebe the case. The gyre, which is roughly coincidentwith
the area where tidal mixing produces nearly homogeneouswater verti-
cally, combines with this distinctive water-mass feature to distinguish
Georges Bank from the surrounding area. However, the residence time
of water on Georges Bankvaries greatly, infiuencedby mechanismsthat
make the gyre less than perfect in its completeness.These factors are
explainedin thefollowingsection.
Section XI. The Impact of Variability and Exchange on So-Called
"Perfect Pictures"
70. Variability in the circulation pattern is well illustrated
through the use of freely drifting floats (containing radio transmitters
and tracked by satellite), already referred to in paragraph 66. In recent
experiments, fioats were releasedduring the course of a 12-monthperiod
in the area of Georges Bank and Browns Bank and were tracked for
several months [Figure 201. The variability and geographic scaleof the
departures from the average pattern are striking. Floats moved off and
onto Georges Bank in an eddyingfashion;from Georges Bank to Browns
Bank and vice versa; and at times were rapidly carried offshore under
the influenceof warm-core GulfStream eddies.
71. Maps of sea surface temperature, plotted at about two-week
intervals. deqonstrate both the rapid changes and the geographic scale
of the variabilityFigure 211.The resulting temperature patterns refiect
the integration of several processes acting together yet independently.
For example, the cooler water present on Georges Bank and off south-
WestNova Scotia on 16July 1982 undoubtedly reflects intense vertical
mixing inducedby the tidal currents;inshore upwellingof cwler subsur-
face water appears to be a dominant feature along the Nova Scotia and
Maine coasts on 2 August 1982; extraction of surface water frorn
Georges Bank by a Gulf Stream meander and eddy, combined with
coastal upwellingand tidal mixing al1appear to be important in produc-
ing the temperature pattern seen on 1 September 1982.The 15 October
1982map, which shows relatively uniform and cool shelf water bounded
on its seaward side by warmer slope water, conformscloselyto the sche-
matic water-mass distributionthat portrays long-terrnaverageconditions
[Figure IO].
72. Of necessity,diagrams of circulations are idealized portrayals
of an actual day-to-day pattern of circulation that varies considerably300 GULFOF MAINE [40-421
and cannot readily be shown in al1 its complexity in such diagrams.
Gales, local freshwater discharge (especially in the spring) and the
unpredictable passage of large warm-core Gulf Stream eddies al1 con-
tribute to local conditions that differ from the mean flow shown by
idealized diagrams. Similarly, seasonal cycling of temperature and
salinity may be modified by events occurring on a time scaleof days to
weeksand with a magnitude comparable tothe seasonalchanges.
Section XII. Conclusion
73. Georges Bank is part of a physical oceanographic system that
extends along the Atlantic Coast of North America from northeast to
southwest, although it exhibits particular affinities to the northeast.
Firsf, cold water currents from northern Canada and freshwater from
the St. Lawrence River, the Saint John River and smaller rivers draining
into the Gulf of Maine affect the temperature and salinity of its water.
Secondly, tidal currents over Georges Bank are part of a single, inte-
grated Gulf of Maine-Bay of Fundy tidal system that produces some of
the strongest tidal currents and highest tides in theorld. Nevertheless,
the oceanographic system in the Gulf of Maine area is highly variable.
Seasonal and even daily changes occur that affect the waters over
Georges Bank. For example, a clockwisesurface circulation gyre around
Georges Bank is strongest in spring and summer and weakest in winter.
Although the gyre is not completelyself-contained, itis one feature that
distinguishes Georges Bank fromthe surrounding waters. However, the
physical oceanography of the Gulf of Maine area involvesa continual
and complex exchange of waters over Georges Bank with those of the
surrounding area that defies rigid or simplisticportrayal. 1431 301
CHAPTER III
MAJOR ELEMENTS OF THE BIOLOGICAL OCEANOGRAPHIC
REGIME OF THE GULF OF MAINE AREA
Section 1. Introduction
74. This chapter describes the plankton and benthos of the Gulf
of Maine area and brings out the biologicallinks betweenGeorges Bank
and contiguous areas. It will be seen that Georges Bank is part of an
integrated biological régime- a single ocean system - that extends
along the Atlantic Coastof North America from northeast to southwest.
Georges Bank has biological properties in common with other parts of
the Gulf of Maine area and beyond. It exhibits biologicalaffinities with
Canadian coastal waters to the northeast, as indicated by the predomi-
nantly northern (boreal) orientation of zooplankton, phytoplanktonand
benthos foundon the Bank. However, conclusions regarding the biologi-
cal oceanographic régime of the Gulf of Maine area must to someextent
be qualified, in view ofthe many variablesinvolvedand the inadequacies
of samplingtechniques.
Section II. Broad Features and Factors Controlling the Distribution
of Marine Organisms in the Northwest Atlantic
75. Marine plants and animals have wide geographical distribu-
tions because their spores, eggs or larvae are distributed by currents.
Many occur throughout whole ocean basins and some even globally
wherever the environment provides suitable living conditions. For the
same reason, the distributional boundaries of species are normally dif-
fuseand can change over time as physicalconditionsin the oceansadjust
to climatic changes in the atmosphere. No species, either plant or ani-
mal, is knownto have a distribution restrictedonly to Georges Bank.
76. The oceanographic régimeof the Gulf of Maine area is com-
plicated and variable. The opposingcurrents (the Gulf Stream and the
Labrador current) interact and affect the environmentof the continental
sbelf. Only here, and in the case of the Oyashio-Kuroshiocurrent system
off Japan, do such cold and warm counter-flowingmajor currents come
in direct contact with each other. Because of this complex interaction,
the extent of plant and animal distributions in both regions is com-
pressedand more difficult to analyze than in comparable latitudeson the
eastern sides of the same oceans, where environmentalchanges are more
gradual. Even where boundaries between populations can be identified,
their locations shift seasonallyand annually with changes in the physical
environment.
77. On Georges Bank, and on most offshore banks,there are no
large seaweeds (macroalgae) attached to the seabed. Plants are repre-
sented only by single-celledorganisms (microalgae)which make up the
phytoplankton (or floating plants).Several groups of microalgae com-
prise the phytoplankton, rangingin size from small net phytoplankton
(about 0.02 to 0.1 millimetres) through nannoplankton (0.001 toi451 ANNEXESTO COUNTER-MEMORLAL OFCANADA 303
is made up of less than 30 northern species, none of which displays defi-
nable regional differences within the Scotian Shelf-Gulf of Maine area
[Table 21.
80. The geographic distribution of phytoplankton has been
reported recently by O'Reilly and Evans-Zetlin' for the continental shelf
and slope area northward from Long Island, including Georges Bank
and the Gulf of Maine. The ratio of nannoplankton to net plankton var-
ies seasonally. Nannoplankton dominate the entire Gulf of Maine area
during the warmer half of the year. During the cool months of the year,
the net plankton generally dominate areas such as Georges Bank, off
Yarmouth, inshore in the Gulf of Maine and off Long Island. Although
the data were highly variable, and sampling was inadequate in many
areas, the data suggest that the relative abundances of net plankton to
nannoplankton are associated with local oceanographic features and pro-
cesses (such as upwelling, depth of water column and vertical mixing)
and season of the year, rather than with any geographic trend from
northeast to southwest. lïence, Georges Bank cannot be isolated from
areas to the northeast on the basis of relative abundance of nannoplank-
ton to net plankton.
Section IV. Zooplankton on Georges Bank Also Show a
Northern Orientation
81. The dominant zooplankton species occurring over Georges
Bank are, as with phytoplankton, also members of the boreal assem-
blage' [Figures22. 23 and 241. Some of the important Georges Bank
copepods (e.g., Calanusfinmarchicus. Meiridia lucens, Temora longi-
cornis and Pseudocalanus) also have transatlantic distributions. Thus
the dominant animal plankton species present in the Gulf of Maine area
are those with a northern orientation and a wide distribution in the
cooler waters of the Atlantic.
82. The northern zooplankton are transported from northeast to
southwest along the Atlantic Coast by the prevailing continental shelf
currents (the Labrador and Nova Scotia currents), becoming expatriate
southwest of Georges Bank. Thus, Arctic species such as Metridia longa,
Limacina helicina and Calanus glacialis extend from the Canadian
coastal waters as far south as Georges Bank [Figure221. These species
do not reproduce southwest of the Great South Channel. Some large
Arctic species such as Calanus hyperboreus may sink along with their
water mass and be carried southward along the continental slope,until
they rnigrate or are transported vertically through upwelling, onto the
shelf and into the Gulf of Maine [Figure 231. Forms preferring more
temperate water, such as Paracalanusparvus and Ceniropagestypicus,
' J. E. O'Reilly and C. Evans-Zetlin:A Comporofthe Abundance(Chlorophylla)
and Siie Compositionof the PhyroplonkronCommuniliesin 20 Subareosof Georges
lCES C.M.S1982/L, 1982,p.49.nternationalCauncforthe Explorationof the Sea.
' See Table3. GULFOFMAINE
TABLE 2
PhytoplanktonicSpecies Comprising theBulkof the Biomass in the
GeorgesBankArea
Genus Family Species
Thalassiorsiranordenskioldii
T. ~ravida
Skeletonemacostatum
Schroderelladeclicatula
Leptocylindrusdancium
Lauderiaborealis
Chaetocerosdebilis
C. afjine
Centric C atlanticus
C. deci~iens
C. sociale
C. lascinosum
Rhizosoleniaalata
R. hebetata
R. setigera
Gunardiaflaccida
1Nitzschiaclosterium
N. seriata
Thalassioltrixfrauenfeldii
Thalassionemanirzschioides
Fragilaria crotenensis
PIeurosigmaasestuarii
Gymnodiniumsp.
Ceratiumlongipes
DINOFLAGELLATES C. tripos
C.fusas
Dinophysisnorwegica
Prorocentrammicans
Distephanusspeculum i501 ANNEXESTO COUNTER-MEMORIALOFCANADA 305
have centres of propagation south and West of Georges Bank [Figure
221. Thev onlv become imoortant constituents of the fauna on Georees -
~aik and furtber to the noitheast as the water warms up in summer.
83. Although the circulation pattern, together with seasonal heat-
ine and cooline. are the kev ohvsical factors determinine the distribution
of-zooplankto~, other oceanic processes may produce yignificant short-
term changes in the species composition within a given area. For exam-
ple, warm-core Gulf Stream eddies may, from time to time, introduce
offshore or subtropical species onto Georges Bank or virtually anywhere
else along the regional continental shelf.
84. Variability in the physical environment obscures sharp geo-
graphic distributional limits for zooplankton. Nevertheless, the Cape
Cod-Nantucket Shoals area is an important transition zone5.During the
cooler months this zone delineates the southern limit of distribution for
many species of northern origin, whereas during the warmer months il
marks the northern limits for many species of southern origin. This is
particularly marked for the inshore, shallow water, estuarine species
[Figure 241 but is seen as well in the distribution of shelf and coastal
species [Figure221.
85. Information on numerical abundance and percentage compo-
sition of seven dominant zooplankton species from three locations (north-
eastern Georges Bank and two on the Scotian Shelf) has been assembled
on a seasonal basis in Table 3. During most of the year these seven spe-
cies make up more than 80 percent of the total zooplankton biomass in
each of the three areas. Only during spring, when the shallower waters
of Georges Bank contain large numbers of larval bottom invertebrates,
do the three sampling areas show any noticeable difference6.
Section V. Benthic Animals on GeorgesBank Are Dominated hy
Northern Species
86. Benthic animals are less mobile than plankton. They are dis-
persed only in the larval stages when they enter the planktonic environ-
ment in the water column. Normally, their life spent amongst the
plankton is less than one month, although very long larval life has
been observed in some benthic species, enabling them to be very widely
' P. B. Haydan and R. Dolan: "Coastal Marine Fauna and Marine Climates of
thcAmericas." Journal of Biogeogrophy. Vol. 3. 1976, pp. 71-81: J. B. Colton.
W. G. Smith, A. W. Kendall. P. L. Berrien and M. P. Fahay: "Principal Spawning
Areas and Times of Marine Fishes. Cape Sable to Cape HatteraFishery Bullefin.
Val. 76. 1976.pp. 911-915.
6 Pseudocolonuscomplex (two spccics) of northern origin show the least seasonal and
regional variance ovcr the shallow parts of the continental shelf, during the caoler
months, at least to the Mid-Atlantic Bight region south of New York. Another northern
autumnCretreats to deep watcr to overwinter. On a seasonal basis, tCenfrop-s.
agesrypicus,bccames important in the shallow water of Georges Bank early in the year,
but eventually dominates ai al1 locations in the lare summer-early autumn period when
the watersn the shelf are warmest.306 GULF OFMAINE[s2i ANNeXE TSO COUNTER-MEMORIALOFCANADA 307
distributed and in some cases. even trans-oceanic. On the whole, how-
ever, distributions of benthic species have more rigid boundaries than
plankton in both the vertical and horizontal planes. Recognizable bound-
aries depend on three principal factors, namely. bottom sediment type
and texture, quality of the water at the bottom (e.g., temperature,
salinity, illumination, current speed) and available food supplies. Of
these factors, sediment texture is of paramount importance in determin-
ing the species of benthos found in any area.
87. The existing distribution of surface sediment in the Georges
Bank-Gulf of Maine-Scotian Shelf area results from a combination of
comulex factors and processes. However. the uresent sediment comuosi-
tion'and distributiona'l pattern largely reflects ihe original distribution of
material ai the end of the Iast ice aee. modified first bv the cffects of ris-
ing sea level and subsequently thrckgh the action ofcurrents. Surficial
bottorn sediments, analysed on the basis of the percentages of coarse
material (gravel) and of fine material (mud), show similarities between
sediment texture and bottom currents. Generally, where currents are
strongest the sediments are coarser, and where the currents are weakest
the sediments are finer.
88. Maps of surficial sediment distribution for gravel, sand and
mud, already described in paragraphs 22 to 25 [Figures 5. 6 and 71,
show patterns similar to those for strength of tidal current. These pat-
terns of surface sediments are largely continuous from northeast to
southwest. Gravel concentrations coincident with high current speed.
extend from the eastern part of Georges Bank, through the Northeast
Channel on ta Browns Bank and north along the Nova Scotia coast into
the Bay of Fundy. In these areas, similar kinds and abundances of ben-
thos are associated with similar coarse sand and gravel substrates'. For
example, dense beds of horse mussels (Modiolus modiolus) with the
same community composition and biomass can be found in the Bay of
Fundy and on Georges Bank where a similar combination of currents
and sediments existsa. Twenty-four of the 26 genera reported as com-
monly present in this community on Georges Bank also occur on similar
deposits in the Bay of Fundy. A further important example of commer-
cial signilicance is the sea scallop (Placopecren megollonicus), whose
concentrations extend from Georges Bank, along the Nova Scotia coast
and, following the pattern of coarse sedimentation, into the Bay of
Fundy. Correspondingly, macrobenthos are less abundant on both sandy
and silty substrates. In parts of the Bay of Fundy, the scarcity of benthos
in conditions of sand and silt parallels the situation on Georges Bank. In
short, similar species occur on similar deposits and under similar current
régimes.
89. This same analysis can be applied to the continental shelf off
Nova Scotia and New England, where the distribution of surficial
'
D. Pccr,D. J. WildirA. J. WilsonJ.Hines and M. DadsvcllSublirrorol Mocro-
Aquatic ScienceNo. 981. 1980.ndy. Canadian Tcchnical Report of Fisheria and 308 GULF OF MAINE 153-591
sediment is known. Gravels resembling those on Georges Bank and dat-
ing from the most recent period of glaciation extend across the North-
east Channel along the Scotian Shelf [Figure 71. These deposits also
resemble each other in their organic material contents, and the available
evidence suggests that they form a single faunistic unit.
90. Seventy-nine different taxa of benthic invertebrates are listed
as common on the banks of the Gulf of Maine area, including Georges
Bank and Browns Bank and several smaller banks within the Gulf>.The
majority of these invertebrates are northern species whose range extends
@@ from Labrador to the area southwest of Georges Bank [Figures 25. 26,
@ @ 27 and 281.
91. These figures show that the inshore area southwest of Cape
Cod is a boundary zone between two faunal provinces, the Nova Scotian
province to the north and the Virginian province to the s~uth'~.Georges
Bank has a faunal association of species with affinities predominantly to
the Nova Scotian province. Those species, whose ranges extend dong the
Coast in a northeasterly direction from Georges Bank, outnumber by
about four to one those whose ranges extend in a southwesterly direction
from the Bank. Although some of the species of southern origin range
northeastward beyond Cape Cod and are found in parts of the Bay of
Fundy and even the southern Gulf of St. Lawrence, these species are not
distributed continuously but are found only in isolated pockets and in
shallow water where bottom summer temperatures exceed 1S0C. Like-
wise, at their southern limit, the species of northern origin tend not to be
found in the warmer surface water but rather are confined to the deeper
cooler water.
92. The macrobenthos of Georges Bank and the Scotian Shelf
banks also has a high degree of species integration within the Gulf of
Maine area, which further emphasizes the point that the entire region
@ @ has a primarily northern orientation [Figures29 and 301. The ranges of
some of the northern speciesextend southward to Cape Hatteras, follow-
ing the southward-moving, cooler. lower-salinity shelf water. However,
the southern limit of range for many of the species occurs southwest of
Georges Bank in the Cape Cod-Nantucket Shoals-Great South Channel
transition zone.
Section VI. Factors Affecting the Rate of Growth of Binmass on
Georges Bank
93. The general level of productivity in any location at sea
depends principally on the level of plant material (microalgae) produced
as food for the zooplankton and benthos that are themselves food for
NarurnlisVal.5. Na. 1. 19688-13.esof the New EnglandFishingUnderwoter
'OOil and GasLease Offshorethe Norrh Atlantic (OCS Sale Na42.)BureauoflShelj
Land Management. UnitedStates Departmcntof the Interior.Washington,U.S. Gov-
crnmentPrintingOffice.1979,p. 113.i601 ANNEXES IO COUNTER-MEMORIAL OF CANADA 309
commercial fish. Production of microalgae dependson a sufficient supply
of inorganic nutrients for the plants and a sufficient level of sunlight
penetrating the water. Plant nutrients can be supplied by upward move-
ment of deep water (upwelling), by diffusion upwards from deep water,
by mixingof the water column (winter storms or strong tidal currents),
by lateral'transport from regions where nutrient levels are higher, and by
the decomposition of organic material (regeneration).
94. The seasonal cycle of phytoplanktonic production on Georges
Bank is similar to that in other tidally mixed areas or areas where there
is continuous lateral or vertical input of nutrients, such as on Lurcher
Shoal off southwest Nova Scotia. In such areas the phytoplanktonic
biomass increases rapidly in the early spring and remains at relatively
high levels throughout much of the summer and into the autumn. On the
other hand, in the central Gulf of Maine and on the open Scotian Shelf
where the water is vertically stratified, productionis generally concen-
trated within a few weeks in spring and, to a lesser extent, in autumn.
Thus. it is the combination of tidal mixing with continuous input of
nutrients from deeper waters off Georges Bank that causesthe relatively
high level of production of plant material that characterizes the Bank
and that is the basisof its rich fisheries.
95. Measurements of phytoplanktonic biomass indicate that the
spring bloom (March) in the vertically well-mixed central part of
Georges Bank reaches concentrations well above those of the surround-
ing waters [Table 41.At other seasons,concentrations on the southwest-
ern Scotian Shelf, northeast Georges Bank, central Georges Bank and
inshore Long Island are al1 at comparatively similar levels. The concen-
tration of phytoplanktonic pigment can also be computed using remote
sensing imagery from the Coastal Zone Color Scanner (CZCS) carried
aboard the Nimbus-7 satellite". Although this technique provides an
instantaneous "snapshot" of the entire area, it is as yet an imprecise tool
for determining phytoplanktonic concentration in many coastal areas,
particularly where there is much suspended sediment or other organic
matter".
96. Production rates of phytoplankton. zooplankton, benthos and
fish are difficult to determine over broad areas because of the high
degree of variability in space and time, and al1 estimates should be
regarded as tentative. However, computations of annual production of
phytoplankton and fish do exist for Georges Bank and areas both north-
eastward and southwestward from the Bank". The annual primary pro-
ductions on the central Scotian'Shelf, Gulf of Maine, East Coast Shelf
H. R. Gordon.D. K. Clark. JL. Mullcr and W. A. Houis: "PhytoplanktonPigments
from the Nimbus-7 CaartaZone Calar Scanner:Cornparisonswith Surface Measure-
ments."Sei~nee-,ol. 210. 1980. pp.63-66.
" B.J. Toplisr:"Watcr Calor in EasternCanadian lnshoreAreas". in SpeciolSessionon
RemoreSenring.Sep. 1981.Northwest AtlanticFirheriesOrganization,ScicntificCoun-
cil Studics.N4. 1982. pp.63-67.
" E. L.Mills: "The Structureand Dynîmics of ShclfandSlop Ecosysteoff the North
East Coastof North America". iK. R.Tcnorc and B.C. Coull, eds.:Marine Bcnrhic
Dynomirs.Columbia. University ofSouthCaraliPress,1980.pp.25-47. 310 GULF OF MAINE i611
TABLE4
Distrihiitionof Chlorophyll a as a Measureof PhytoplanktonBiomass'
western Northeast Northeast Central
Georges Georges Georges
Bank' Bank2 Bank'
Winier
2.8 0.3 0.7 2.0
(Jan-Mar) 0.4 5.2
Spring
(April-June) 1.1 0.9 1.8 1.3 2.2 1.7
Summer
(July-Sept) 1.1 0.4 0.9 0.6 1.4 1.7
Autumn 1.9 1.3 1.7 1.6 0.8 2.4
' Data fromScotian Shell ichthyoplanktcruirson file at the Bedfordlnstitofe
Oceanography.DartrnautN.S.
Datarakcn(rom J. EO'RsillundC. Evans-Zeili(scefwinorc3).
' Valves arc microgramipcrlitrof warïr.
and Mid-Atlantic Bight are al1 comparable, whereas that for Georges
Bank stands at a higher level. The high phytoplankton production on
Georges Bank is consistent with high chlorophyll biomass, and this rela-
tionship also applies to neighbouring areas [Table 41.
Section VII. Oil in the Marine Environment:The Risk to the Nova
Scotia Coast
97. Since the grounding of the tanker Torrey Canyon in 1967 off
the southwest Coast of Great Britain, the fate of ail spilled into the sea
has been studied intensely. With the development of facilities for off-
shore oil production and transportation has come a growing concern to
assess potential adverse effects on aquatic resources, fishing operations
and other coastal amenitiesI4. Although there is not yet full agreement
''J. H. Vandermeulen, D. E. Buckley. 13.M. Levy.B. Long, P. McLaren and PG. Wells:
"lmmediate impact of AMOCO CADIZ Environmental Oiling: Oil Behaviour and
Burial, and BiologicalAspects", PublicorionsC.N.E.X.O. SérieAetcsde Colloques,
Oil Produelionon O/fshore Fish Siocks and Fishing Operoiionr.Canadian Technical
Report of Fisheries and Aquatic Sciences. No. 1096, 1982J.H. Vandermeulen, ed.:
Scinrifir Sludies Duringlhe KurdistanTonkerIncident;Pmeeedingsof n Workshop.
Dartmouth, Nova Scotia. Bedford lnsiitute of Oceanography Report Series BI-R-80-3.
1980;Summoryo/Physieol, Biologieal.Sodo-economicand OtherFoctorsRelevantIo
Pot~ntinlO/Oil Spillr in the Posrom~quoddyRegion O/ the Boy qfFundy. Canadian
Technical Repon ol Firheries and Marine Service. No. 428. Otlawa, Departmeofthe
Environment, 1974; D. J. Scarrait. Evoluoriono/Reccnt Dolo Relative Io Potenliol
Oil Spi1l.sin ihe PassomoquoddyAreo.Technical Report of Fisheries and Marine Ser-
vices,No. 901. Ottawa, Departmentof Fisheries and Environment. 1979.1621 ANNEXESTO COUNTER-MEMORIALOF CANADA 311
on the extent of the potential effects on offshore fishery resources and
operations, the detrimental effects along coastlines and in the nearshore
zone are well d~cumented'~.
Oil, when released into the ocean, is highly mobile, and is
98.
carried away from its release site by the combined actionof wind, cur-
rent and turbulence. Most crude oils and petroleum productsare lighter
than sea water. so their bulk remainsat or near the sea surface. A small
fraction entersthe water column and somemay eventuallyreach the bot-
t~ ~ ~ ~ ~ ~raooed in the surficial sediments.Oil reachin~the coastline
adheres to rock';and sediments and, in sheltered areas, Gn be trapped
and remain there without decomposing for many yearst6.
99. The drift of oil can differ strikingly from the mean surface
circulation pattern. The direct effect of wind on the oil, combined with
the variability in both wind and ocean currents, is of paramount impor-
tance in predicting the movementand spread of oil away from a release
site. In openwater, such as the North Sea, or over the Scotian Shelf or
Georges Bank, oil from a point sourcespreads out (either as sheen-slicks,
patches, lumps or particles) and can encompass an area in the order of
1,000square nautical miles withinone week". Modelsof oil spill trajec-
tories have been used to predict the potential results should spills occur
within the areas of the Outer Continental Shelf (OCS) oil and gas lease
sales No. 42 and 52 in the offshore area of the northeastern United
Statesc8. These results show not only that there is a relatively high prob-
ability of oil being transported across much of Georges Bank, but also
that the coastlines of southwest Nova Scotia, Bay of Fundy, eastern
Maine and southern New England could be polluted from an offshore
spill. In terms of threatened coastlines from a hypothetical spill within
the area of OCS lease sale No. 42, southwest Nova Scotia and southern
New England rank highest.
100. The impact from oil in the marine environment has been of
major concern to Canada, with the result that a wide range of programs
and activities has been developedover the past 15years both in terms of
" J. H. Vandermeulen: "Some Conclusions Regarding Long-term Biolagical Effects of
Some Major Oil Spills". PhifosophicolTronsoetionRoyolSocietyo/London, Scrics
B 297, 1982. pp.335-351.
l6Ji H. Vandermeulen: "Some Conclusions Regarding Lang-Term Biological Effects of
Some Major Oil Spills", pp. 335-351.
"T. Audunsan: "The Fate and Wcathering of Surface Oil from theBravo Blowout."
Marine EnvironmenfolReseorch, Vol. 3, 1980. pp. 35-61J. H. Vandcrmeulcn, ed.:
ScieniifleSiudiesDuringtheKurdistanTankerIncideni:Proceedingqfa Workshop.
'VFinol EnvironmenralSroremeni.Proposed1977 Ouier ConrinenrolShelf Oiland Cos
Lense SOL Ojjshore the Norih Arlanric SroreVol. 2. (OCS Sale No. 42.) United
States Department of the Interior. Bureau of Land Management. Washington, U.S.
Government Prinling Office. 1977. pp. 733-Assessingihe ImpoerofOil SpilLsono
Commercial Fishery. Final lnterim Report/or Unired Siores Deporrmenl O/ rhe
Inrerior, Bureo4 Lnnd Managemeni. NPW York Ourer ConfinenfolShelf Oj/ice.
Department of Ocean Engineering and Graduate Schwl of Oceanography, University of
Rhode Island and Applied Science Associates. IFinol EnvironmenrImpoer Srare-
ment. Proposed1982 Outer ContinenrolShelf Oil and Cos LeoseSole Offshore the
Norrh Ailantic State(OCS Sale No. 52.) United States Department of the Interior.
Bureau of Land Management. Washington. U.S. Government Printing Olfice, 1982.312 GULFOF MAINE 1631
operational readinessin the event of an accidental spill, as well as on a
broad front of scientific investigations. Special teams are assembled to
study the environmental impact and to developnew knowledge, not only
when accidents occur in CanadaI9(e.g., Arrow, Chedabucto Bay, 1970;
Kurdistan, Cabot Strait, 1979) but also when they occur in other coun-
tries" (e.g., Urquiola, Spain, 1976;Amoco Cadiz, France, 1978;Ixtoc I
Blowout,Mexico, 1979).
101. Assessmentof potential impact from future offshore oil pro-
duction, new proposed transportation routes and shore facilities have
been approached on two fronts: firsr, on a site-specific basis2' (e.g.,
Beaufort Sea, Grand Banks, Sable Island and the proposed oil refinery
at Eastport, Maine); and secondly, on a fundamental or generic basis
providinga sharp, integrated focus on both national and world oil pollu-
tion problems" (e.g., research and evaluation regarding the effects of
offshore oil production on offshore fish stocks and fishing operations,
conveningsymposia onthe recoverypotential of oiled northern environ-
ments, developmentof oil spill trajectory modelling,etc.).
102. In summary, Canadian research and experiencewith respect
to oil pollution has been extensive.The ability to reliably predict subse-
quent movementand dispersionof oil from any given spill site is limited
by the accuracy with which winds and currents can be forecast - a
science that still remains very imprecise.With respect to the Gulf of
Maine area, the variability in windand currents is such that an oil spill
anywhere within tlie area poses athreat of subsequent oiling to any strip
of coastlinebetweenNova Scotia and southern New England.
leReport O/ the Tosk Force- OperotionOil Io the Minisi~O/ Tronsporr(The Arrow
Incident). VolII,Report of the Scienrific Cmrdinotion Team. Information Canada,
Ottawa, 1970,Cat. No. T22-247012: J. H. Vandcrmeulen, edSeienriJieSiudiesDuring
the KurdistanTankerIncident:Proeerdingsqfo Workshop.
'0S. L. Ross, C. W. Ross. F. Lepine and E. K. Langtry: "IXTOC I Oil Blawout". Oil
Spi11TcchnologyNewsletter, Val. 4. Ottawa, Department of the Environment, 1979,
pp. 245-256; B. F. LongJ. H. Vandermeulen and D. E. Buckley: "Les processusde la
tiques", inmocoCadiz: Foies andEffeeetsnO/the Oil SpillProceedings oanaInterna-éa-
tional Symposium,Nov. 19-22, 1979.Centre océanalagiquedc Bretagne, Brest (France).
Centre national pour l'exploitation des océans(CNEXO). 1981, pp. 79-94;
J. H. Vandermeulen, et 01.: "lmmtdiare Impaci of AMOCO CADIZ Environmentoi
Oiling:Oii BehaviourondBuriol. andBiologicolAsptrts."
" A. R. Milne and R. H. Herlinveaur: Crude Oil In Cold Watcr (The Beaufort Sca and
the Search for Oil). Sidney. British Columbia. lnstitute of Occan Sciences. Dcpartment
of Fisheries andceans. 1979: Sumniory qf Physicol.Biologicoi.Soeio-economieand
Other FoctorsRelevant IO~àteniiolof Oil Spiils in the PassomaquoddRegion of the
BoyofFundy: D. J.Scarratt, ed.: "Evaluatian of Recent Data Rclative to Potential Oil
Spills in the Passamaquoddy Area."
" J. H. Vandermeulcn: "Introduction a>the Symposium on Recovery Potential of Oiled
Marine Norlhern Enviranments." Journolo/rhe FishcriesReseorchBoord ojCanodo.
Vol. 35, Na. 5. 1978, pp. 505-508; J. B. SpraJ. H.Vandcrmeulen and P. G. Wells.
eds.:Oil and DispersontsinConodinn Seos - ReseorehApproisolondRerommendn-
rionsEcanomic and Technical Rcview Report EPS 3-EC-82-2, Environmental Impact
Cantrol Directaratc, Department of the Environmcnt. Ottawa, 1982; A. L. Longhurst:
Consultatioon the Consequeneeo sf OfjshoreOii Productionon OffshoreFish Stocks
md FishingOperotions. Canadian Technical Report of Fisheries and Aquatic Sciences
No. 1096.Ottawa, Department of Fisheries and Occans. 1982.1641 ANNEXES TO COUNTER-MEMORIALOF CANADA 313
Section VIII. Conclusion
103. As is the case with physical oceanography, Georges Bank is
part of a biological oceanographic system that extends along the Atlantic
coast of North America from northeast to southwest. The zooplankton,
phytoplankton and benthos found on the Bank are predominantly north-
ern species. Hence, Georges Bank cannot be isolated from areas to the
northeast on the basis of species distributions. Indeed, a species transi-
tion zone between the Nova Scotian and Virginian biogeographic prov-
inces is found southwest of Cape Cod; Georges Bank is entirely to the
north of this transition zone. Allhough the biological oceanographic sys-
tem of the Gulf of Maine area is highly variable, the production rate for
phytoplankton, zooplankton. benthos and fish is higher for Georges Bank
than for areas both southwestward and northeastward from the Bank.
Finally, models of oil spill trajectories indicate that the southwest coast
of Nova Scotia would be particularly threatened by oil pollution on
Georges Bank. CHAPTER IV
DISTRIBUTIONS OF COMMERCIAL FISH AND
INVERTEBRATE SPECIES IN THE
GULF OF MAINE AREA
Section 1. Introduction
104. Georges Bank,as already noted, has elementsof discreteness
but it isalso clearly an integral part of a larger system with important
physical andbiologicalaffinities to areas to the northeast. The fisheries
biologyof the Gulf of Maine area fullysupports this conclusion.
105. This chapter considers available informationon the distribu-
tions, migrationsand stock structures of commerciallyimportantnverte-
brate and fish resources in the Gulf of Maine area. The conclusions
reached areas follows:
(a) Fish and invertebrate distributions do not reflect the existence of
separate and identifiable "ecological régimes"in the Gulf of Maine
area. There are far more instances of fish migrating freely between,
and through, so-called"régimes"than of fish beingcontained within
any one of them. Migration and distribution patterns demonstrate
the unity of the fish and invertebrate speciesof the Gulf of Maine
with those of the Scotian Shelf to the northeast. This continuity is in
contrast to an evident discontinuityto the southwest of Georges
Bank, in the vicinity of the Great South Channel, Cape Cod and
Nantucket Shoals.
(b) The list of 16 speciesmentioned in the United States Memorial is
incomplete'. There are at least 12 other species of an economic
importance comparable to those in the United States list. Thus, a
total of 28 speciesof commercial importance must be considered.
Stocks of fully one-half (14) of this total of 28 species span the
Northeast Channel. For 12other species, the Northeast Channel
and the so-called "ecological régimes"described in the United
States Memorial are not defining features for the respective stock
structures. For the two remaining species, mixing betweenstock
areas is minimal.
(c) The overall groundfish biomass distribution does not suggest or
reilect the existence of so-called "ecological régimes", nores it
reveal the Northeast Channel or the line of deepest water in the
inner Gulf of Maine Basinas adistributional barrier.
Section II. Limits of Distributions of Fish and lnvertebrate Species
106. A recent paper by two United States scientists summarizes
available knowledge,dating back to the 1830s,on faunal distribütions in
the coastal waters of eastern North America:
@ UniredStates Mernorp. 37, Figure7.la61 ANNEXESTO COUNTER-MEMORIALOFCANADA 315
". . . along the east coast of the United States and Canada, faunal
distribution has been well documented. Five major provinces are
generally accepted: The Arctic, Nova Scotian, Virginian, Carolinian,
the.Caribbean, with separating boundaries at 47O,41". 35", and 30"
north latitude respectively2. . ."
According to these authors, the dividing line between the Nova Scotian
and Virginian provinces is the northern tip of Long Island and the line
between the Nova Scotian and Arctic provinces is the southern tip of
Newfoundiand. Thus, for a century and a half the coastal region span-
ning Georges Bank and the Scotian Shelf has been accepted as being
part of a single biogeographic province.
107. The definition of biogeographic provinces has been based on
the distribution of nearshore species. Recent analyses of the composition
of continental shelf fish distributions off the eastcoast of North America
by Canadian and United States scientists identify the same transition at
the Cape Cod-Nantucket Shoals-Great South Channel area3. United
States scientists analysed data from research vesse1surveys and identi-
fied the followingareas shown in Figure 31:
(a) The Guljof Maine:
". . . the oceanic bight bounded by Nantucket Shoals and Cape Cod
on the West(longitude 70°W) and Cape Sable on the east (longitude
65"W) including Georges and Browns Banks and water out to the
200-metre contour . . ."
(b) The Mid-Allanric Bight:
"... the area inshore of the continental slope bounded by Cape Cod-
Nantucket Shoals to the east (longitude 70°W) and Cape Hatteras
to thesouth (latitude 35ON)."
The authors concluded that:
"The offing of Cape Cod . . . appears to be a definite transition zone
(probably thermal) for some northern and southern species of fish
and invertebrates, both pelagic and benthic (Colton 1964). The spe-
cies compositions and abundance of fishes Vary markedly between
the two regions, with boreal, non-migratory species dominating the
Gulf of Maine and warmer water migratory species prevailing in the
Middle Atlantic Bight. The bulk or total spawning of many species
of fishes is restricted to areas east (e.g. haddock, pollock, redfish) or
West (e.g. bluefish, menhaden, anchovies) of Nantucket Shoals,
B. P. Haydcn and R. Dalan: "Caastal Marine Fauna and Marine Climates of the
Amcricar."Journalof Biogeogrophy,Vol. 3. 1976, pp. 71-81. In dcfining thc separating
the present: Milne-Edwards 1839; Dana 1853; Forbes 1856; Woodward 1856; Packard30sta
1863: Stephenson and Stephenson 1954;aamans 1962; Hall 1964;and Hazel 1970.
The lirnits of the Nova Scotian biogeogra~hic proviarcshow in the Canadian
Memorinl. p. 54. Figure 21.
1 J. B. Colcon. WG. Smith, A. W. Kendall. P. L. Bcrricn and M. P. Fahay: "Principal
Spawning Areas and Times of Marine Fishes, Cape Sable Io Cape HatteraFishery
BullelinVol. 76, 1979.pp. 911-915;and analyses of the combincd CaandiUnited
Statesgroundfirh rcsearch vcsscl survey data by the Marine Fish Division, Fisheries
Research Branch. Scotia-Fundy Region. Department of FishcriOceans C.anada.316 GULF OF MAINE [67-68)
although there are exceptionsto this general rule (notably yellowtail
flounderand silverhake)'."
108. A Canadian study offers an interpretation of this ecological
transition between the "Gulf of Maine" and the "Middle Atlantic
Bight":
". .. [an] historicallyrzlated factor affecting marine ecosystemson a
broad scale is evident in the difference between the glaciated and
unglaciated areas of the east coast of North America. Comparing
regions northeast and southwest of Long Island (roughly the termi-
nal moraine of the Wisconsin icesheet), it isclear that the northern
sector is primarily a drownedcontinental borderland,most of which
isstill sinking. Large estuaries are few and commercial productionis
centered on species likc cod, haddock,and flounder that live in cold,
rocky, or coarse Sand environments. South of Cape Cod, especially
south of Long Island, the coastal plain is broad and low, the shelf
smooth and temperate, estuaries large and many. The commercial
catch of marine animals is comoosed of far more oelaa.c e-tuarine
speciesdependingon terrigeno~s'in~utto the sea5."
109. The foregoing scientific studies provide no suggestion that
the Northeast Channel is a boundary limiting the distribution of fish
species. Rather, the only obvious biogeographic "boundary" is found to
the southwestof Georges Bank.
110. Detailed consideration of the distributional ranges of com-
mercial fish and-~ invertebrate speciesadds strength to th ese conclusio~s.
Figure 32 illustrates the distributional ranges of important fish and
invertebrate species betweenCape Hatteras and the northeast edge of
the Scotian ShelP. In relation to the relevant area, the Canadian
Memorial'dividesthese speciesinto three general categories:
(a) Widely-disrributed species found in the waters of the continental
shelf and slope from the northeast along the Canadian coast to the
' J.B. Coltonel al."Principal Spawning Areas and Timcs of Marine Fishcs. Capc Sable
10Cap Hatteras" pp. 911-915.
' E. L. Mills: "Thc Structure and Dynamics of Shelf and Slope Ecasystemr Off the
Narthcast Coast of North Amcrica", in K. R. Tenore and B. C. Coull. cdMorine
BenrhicDynomics- Columbia. Universityof South Carolina Press. 198024-47.
Thc distributional range for each spcies is dcfined from ICNAFJNAFO firherier statis-
tics and the scicntific literature. including H. B. Bigclaw and W. C. Schroeder: "Fishes
of ihe Gulf of Maine." United States Firh and WildliServices.isheriesBullerin.
Vol. 74,1953: Draft EnvironmenialIrnpaeiSia~ementon the Agreementbelweenthe
UniicdSloiesondConndaon Fos!ConsrFishcryResources . ashington. Unitcd Siatcs
Dcpartrncnt of Statc. April 1980:S. B. Saila and S. D. Prait: "ChapteCoasral
end O//shoreEnvironmenrnlInvenrory.Marine Publication Scrics No2.University of
Rhode Island, 1973:G. M. Harc:Arloso/rhe Mojor Allonlic CooslFish andInverre-
brarcRerourcerAdjocenr IO rhe Conodo-UniiedSralesBoundaryAreo. Ottawa. Fish-
cry and Marine Service, Department of Environment, 1977.
' ConadionMernorial.p. 55, para. 99. [68-701 ANNEXES'IOCOUNTER-MEMORIALOF CANADA 317
southwest of Georges Bank along the United States coast:Major
fishes and invertebrates in this group includeshortfin squid, lobster,
sea scallops, Atlantic herring, Atlantic mackerel, red hake, silver
hake, swordfish,bluefin tuna and yellowtail flounder. A number of
these speciesare highly migratory. These broad-latitude speciesspan
al1hypothetical "ecologicalrégimes"and the Northeast Channel.
(b) Sourhern species whose distributions along the North American
coast generallydo notextend northeast of the Great South Channel-
Nantucket Shoals area. Species in this secondgroup, although occa-
sionallyobservedon Georges Bank and in the Gulf of Maine, do not
spawn northof the Great South Channel-Nantucket Shoals area and
are generally confined in their range to the southwest of Georges
Bank along the United States coast. Major fishes and invertebrates
in this group include baycallop,black sea bass, bluefish,butterfish,
menhaden scup, summer flounder and weakfish.(Longfin squid is a
southern speciesdistributed somewhat furtherto the northeast.)
(c) Norrhern species whosedistribution alongthe North American coast
do not extend southwest of the Great South Channel-Nantucket
Shoals area. Species in this third group, although occasionally
observed south of the Great South Channel-Nantucket Shoalsarea.
are only found in significant concentrationsto the northeast of this
area, off and along theCanadian coast - that is, on Georges Bank
and further north. They do no1spawn in significant quantities south
of the Great South'Channel. Fish in this group include American
plaice,argentine, cod, cusk, haddock, halibut, pollockand redlish.
111. A composite two-dimensional representation of the species
compositionwithin the three categories reinforcesthe general conclusion
that the Northeast Channel does not represent a significant feature in
the distributionallimits of commercially important fish and inverte-
@-@ brates. [See Figures 20,21 and 22 in the Canadian Counter-Memorial.]
The Great South Channel-Nantucket Shoals-Cape Cod area, on the
other hand, is an important transition zone betweennorthern, cold-water
speciesand southern speciesof the more temperate waters to the south-
West.
112. The commercial significance of the transition zone south-
Westof Georges Bank is shown in Figure 33. Over 95 percent of the
average annual commercial catch made in ICNAFINAFO subdivision
5Ze encompassingGeorges Bank during the period from 1962to 1980
was composedof either northern or widely-distributed species. In con-
trast, the percentage of such species was only 24 percent in
ICNAFINAFO statistical area 6 further to the southwest, reflectingthe
overallchange in species compositionto the southwests.
113. Thus, data on commercial fish catches confirm the viewthat
Georges Bank is part of a larger oceanographic system dominated by
species with anorthern orientation. The pattern of distribution of species
' The catch statistin wercsummabyzcach area usinga cornputertape of the official
catch stalistics [romNAFO.318 GIJLFOFMAINE [70-721
does not suggest the existence of so-called "ecologically separate and
identifiable régimes",nor the existenceof a distributional barrier at the
Northeast Channel. To the extent the biogeographic provinceconcept
can be extended to cover the continental shelf, the Gulf of Maine area
(including Georges Bank and Btowns Bank) can be said to form part of
the Nova Scotian province.
114. The conclusions drawn from the distributions of fish and
invertebrate speciesare consistent with those derived from the plankton
and benthos distributionsdiscussedin Chapter III. In addition, the iden-
tification of a transition zone to the southwestof Georges Bankparallels
the geomorphological discontinuity produced by glacial erosion and
deposition.
Section III. Stock Structures, Distributions and Migrations
A. STOCK STRUCTURES
115. The foregoingaccount of the distributional ranges of species
providesonly a partial picture of the relationship between livingmarine
resources found on Georges Bank and their physical environment. both
locally over the Bank and more broadly withinthe environmental con-
tinuum of the continental shelf. To gain a fuller understanding. it is
necessary to reviewthe dynamics of the individual species- where they
spawn, where they aggregate during different seasons and at different
times during their life cycleand the extent to which there is intermixing
between aggregations - al1 in relation to the major features of the
physicaland biologicalenvironment.
116. The distribution and migration patterns in the Gulf of
Maine area are such that in mosl cases it is impossibleto identify, within
an individual species, a discrete aggregation that has an independent
existence in a limited geographic area. Seasonal movements on and off
the banks, intermingling of progenyin one area from spawningsin other
areas, transport of eggs and larvae, and annual changes in abundance in
every species result in a seasonally variable mélangeof species and life
history stagesthroughout the Gulf of Maine area. Becauseof these char-
acteristics it is im~ossiblein most cases to draw a single line that would
respect stock disl;ibutions of any individual species.~lctalonc a single
line that woulddividestocks of al1the 5pesicsin the Gulf of Maine arca.
117. The difficulties of establishing rigid demarcations of stocks
werewellexpressedby a Canadian scientist, whowrote:
"Biological management of fisheries has been built around the con-
cept of the unit stock. At thisate stage in developmentit is difficult
to discern that this apparently commonsense notion may be an
instance of misplacedconcretenesswhich places artificial constraints
on analyses or on management rules and procedures. In jacr rhe
stock is an abstraci rerm applied to provide a rationalefor a certain
kind of aggregationofcatch data. This is nor IO say that there may 172-731 ANNEXESTOCOUNTER-MEMORIAO LF CANADA 319
or may nor be such a rhing as a discrete group of fish rhar may
constitute an effective breeding group or stock, but in many cases
thereis significant uncertainty about the identity of the groupfrom
which successive annual catches are made, so that the operational
term does not unequivocally refer to an identifiable physical entity.
Uncritical usage can obscure the understanding of a number of pro-
duction features that are relevant to economic considerations9."
(Italics added.)
118. From the foregoing it is evident that there is considerable
uncertainty with respect to the definitionof the term "stock" and, as will
be outlined in more detail below, with respect to the application of the
stock concept to the fish and invertebrates of the Gulf of Maine area.
Any attempt to depict rigid stock demarcations in the area assumes a
degree of precisionboth at the conceptual and biologicallevelsthat can-
not be supported by available scientific knowledge. Fortunately, the
question whether the Northeast Channel represents a "natural division"
between commercially important fish and invertebrates can be
approached directly by reference to data on fish distributions and migra-
tions, in addition to existing and often imperfect data on stock struc-
tures.
B. STOCK DISTRIBUTIONSAND MIGRATIONS
119. Studies by Canadian and United States scientists on stock
distributions and migrations lead to conclusions that contradict the
United States theory of "three separate and identifiable ecological
régimes"in the Gulf of Maine arealo. The scientific evidence suggests
the followingconclusions:
(a) Most of the commercially important species in the Gulf of Maine
region migrate or are dispersed between twoand sometimesthree of
the purported "ecological régimes" at some stage of their life his-
tory.
(b) The Northeasi Channel posesno barrier to the vasi majority of spe-
cies in the Gulf of Maine area. For the few species showingstock
discontinuitiesat the Northeast Channel, equally significant discon-
tinuities exist overGeorges Bank itself.
120. The United States Memorial recognizes that stocks of at
least four species- mackerel. pollock. argentine and shortfin squid -
movebetween so-called "ecological régimesa "nd are not dividedby the
Northeast Channel". The other 12 species listed in the United States
L. M. Dickie: "Pcrspcaives on FishericsBialagy and Implicationsfor Managcmcnt."
Journolo/rhe FisheriesResearchBoardo/CnnodoVol. 36. 1979.pp.838-844.
'OSuch studicsincludctaggingsiudies.whcrcinidcntifyingarcplaccdan individual
fish. rtudies invalvingmcasurcmcntsand counts of body parts andanalysis ofprotein
chemistry(characteristicswhich sometVary betweenp~pulationocthe samcspc-
cies). as well as studicsof relativedensitiesof fish abtaincdthroughresearchvcssclsur-
veysoranalysis ofcommercialcatchstaiistics.
@) " UniredSioies Mernoriap. 37. Figure7.320 GULF OF MAINE [73-741
Memorial, however, are portrayed in the United States Memorial as
being dividedinto stocks by this channel.
121. There are serious difficulties with this United States depic-
tion of the distributions of fish and invertebrate stocks in the Gulf of
Maine area. First, it fails to mention 12 other commercially important
speciesI2,seven of which are migratory. Secondly, it is not supported by
the scientific evidence with respect to most of the 12 species that are
alleged to be divided by the Northeast Channel.
1. Seven Migratory Speciesnot ~isted in the UnitedStates Memorial
122. The seven migratory species not listed in the United States
Memorial are: swordfish, bluefin tuna, saury, alewife, American shad,
spiny dogfish and Atlantic salmon.
123. Swordfish at one time provided an important fishery for
Canadian fishermen and may do so again in the future" [Figure341. Its
migratory characteristics are pronounced" [Figure 351, but those of
bluefin ~una'~ are even more so [Figure 361. Found along the North
American Coastfrom Newfoundland to the tropics and further offshore,
bluefin tuna are taken in recreational and commercial fisheries in the
waters of both Canada and the United States, including the Gulf of St.
Lawrence, the inner Gulf of kIaine, the outer edges of Georges Bank
'2 To rigorausly define the commercially important species on Georges Bank, the overall
ICNAFINAFO catch statistics were used. Within 5Ze (which includes Georges Bank
and the Great South Channel) 25 speciescre taken by al1countriw combined in excess
of 10.000 tons withinhc 1962 ta 1980 time periad (i.e., on average in excess of about
500 tonsper year). These 25 species are ranked in importance below (by tonnage). They
account for aver99 percent of the total specified catch (i.e., that catch identified 10spe-
cies) during this time periad. Threc ather spccics. which migrate through the Gulf of
Maine area, have been conddered because of fheir recreational importance (salmon.
bluefin tuna and Amcrican shad).
Groundfish Pelagic lnvertebrnte Reereolionnl
silver hake (3) Atlantic herring (1) scascallop (2) Atlantic salmon
haddack(5) mackerel (4) longfin squid (14) bluefin tuna
yellowtail flounder (7) swordfish (20) Atlantic lobster (17)American shad
redhake (8) buttcrfish (21)
winter flounder (9) raury (25)
pollock(10)
argentine (11)
rcdfish (12)
spiny dogfish (13)
Amcrican plaicc (16)
witch iiounder (18)
angler (22)
cusk (23)
white hake (24)
''Annuol Report ond Invesiigaiion Surnrnnries.St. Andrcws, New Brunswick. Fisheries
Rcscarch Board of Canada, Biologic Station, 1960-1961; Canodian Rerearch Report,
1963, ICNAF Doc. 36, Scrial No. 13JI.
''S. A. Berkeley:Atlnnrie Swordfish Slock Slruclure Dolo ond Suggesiiom/or ifs Inter-
prrtolion.ICCAT Working Document. SYMP/82/12, 1982.
" Bluefintuna migrations and stock stnicturc are summarized in the 1970to 1980ICCAT
SCRS reports.174.751 ANNEXES 10COUNTER-MEMORIALOFCANADA 321
and the Scotian Shelf, and in coastal waters of the United States south
of Cape Cod. Geomorphologicalfeatures are irrelevant to swordfishand
bluefin tuna distributions and migratory patterns.
124. Soury, an oceanic, pelagic(swimmingnear the surface) fish,
is one of the most abundant speciesin the northwest Atlantic. It concen-
trates in offshore waters southwestof Georges Bank in the winter, mov-
ing onto the continental shelf (from Georges Bank northward to the
Grand Banksoff Newfoundland) in the spring. There is no evidenceof a
stock breakdown withinits distributiowslranget6.Again, geomorphologi-
cal features are irrelevant in the distribution of this species.
125. Alewifp spawn in numerous rivers along the Atlantic sea-
board from North Carolina to Newfoundland". The young migrate to
sea and intermingleextensively on feedinggrounds offshore,crossingthe
limits of the theorized "ecological régimes".
126. Americon shad support important commercial and recrea-
tional fisheries in rivers and estuaries of both the United States and
Canada. As shown by extensive taggitig experiments. the head of the
Bay of Fundy is an important feeding ground for shad, which later
spawn in large numbers in rivers from the Gulf of St. Lawrence south-
ward to Florida" [Figures37 and 381.
127. Atlantic salmon spawn in the rivers of Canada and the
United States that enter the Gulf of Maine. The young migrate to sea
and the intermingled stockscarry out immenselylong migrations to the
open waters of the northwest Atlantic as far as western GreenlandIP.In
carrying out their migrations, stocks of American shad, alewife and
Atlantic salmon from Canadian and United States rivers intermingle
and migrate freely through the purportcd "ecologicalrégimes".
128. For spiny doglish in the northwest Atlantic there is no evi-
dence for their separation intodefinable stocksz0.They range [rom
southern Labrador to North Carolina. Birth of young occursin the win-
ter months in the Mid-Atlantic Bight region south of the Gulf of Maine
area. Most of the population overwintersin this area. although groups of
males and immature femalesdo overwinterin pocketsof deeper, warmer
water as far north as southwest Newfoundland. Migrationnorthward for
summer feeding brings large shoals of dogfish into southwest Nova
Scotia and Bay of Fundy waters in June, in10the Gulf of St. Lawrence
in July, and to the east Coast of Newfoundland in July and August.
1A. A. NCS~CTO Da:laon Diririburioofthe NorrhwesrArlonrieSoury.Scombcresor
sauras (Walb.). for Evoluorionofrhe Unirof rheir Populorion. NAFO SCR Dac.
82/1X/95. 1982.
"H. B. Bigelowand W. C. Schracder:"Fishcsof theGulf aine' pp. 101-105.
M. J. Dadswcll,G. D. Mclvinand P. J. Williams:"Effcctof Turbidityon the Temporal
and SpatialUtiliratianof the lnncr Bay of Fundy by American S(Alososapidis-
simo) (Pirees:Clupidae)and ils Relationshipto Local Firhcries."CanodionJournal of
FishcrierondSciences, Vol.40, (Supp. 1.1). 1983.pp.322-330.
l9R. L. Saunders:"Atlantic Salmon(Solmo solar) Stocks and ManagcrncntImplications
in the CanadianAtlantic Provinces andNew England. U.S.A." CanadianJournal of
Firheriesond ApuaiicScienecs. Vol. 38. 1981.pp. 1612-1625.
niA. C. Jensen:"Lifc Histaryof the Spiny Dogfish." FNhcries Bullerin. Vol. 65. 1966.
pp.527-554. 322 GUIX OFMAINE (75-811
There are documented cases of transatlantic migrations of spiny dogfish
in both directions, indicating some degree of intermingling of east and
West Atlantic populations. Dogfish obviously pay little regard to the
boundariesof so-called"ecologicalrégimes".
129. In addition to the scven migratory species discussedabove,
the five other commercially important species omitted from the United
States Memorial are ongler, burterjish, Americonploice. wirchflounder
and winterflounder. These species are discussed in the next section in
connectionwith specieshaving similar distributions that are listed in the
United States Memorial.
2. Speciesrhar Are Listed in the UniredStates Memorial and Five
Similar UnlistedSpecies
130. It has already beeg noted (in paragraph 121) that the
United States Memorial recognizesthat four out of the 16 listedspecies
move freely across the Northeast Channel. The other listed species,al1of
which are alleged to be divided into stocks by the Northeast Channel,
are thefollowing:cusk, Atlantic lobster, Atlantic herring, longfin squid,
silverhake, red hake, white hake,redfish, haddock,, yellowtailnoun-
der and sea scallops.
131. Scientific evidence fails to support the view that there are
separate stocks ocusk orAtlanric lobsteon each side of the Northeast
Channel:
(a) There is no recordof scientificstudies of the stock structure of cusk,
but results of exploratory research surveysby both Canada and the
United States reveal that, as with argentine; the Northeast Channel
betweenGeorges Bankand BrownsBank is itself an area of concen-
tration[Figure 391. Indeed Canadian fishermen carry out longline
fisheries for cusk throughout the Northeast Channel. This channel
cannot, therefore, be viewedas a stock barrier for this species.
(b) The same conclusion holds true for Atlantic lobster. The Canadian
fishery is carried out on the slopes of both Browns Bankand
Georges Bank and in the Northeast Channel" [Figure 401Tagging
@ experiments indicateclear-cut links between lobsters found in the
inshore waters of western Nova Scotia and New Brunswick and
those found offshore and the inner Gulf of Maine[Figures 41 and
@ 421. Recent Canadian studies of annual variations in landingsand of
@ larval ecology haveled to the hypothesisthat lobsters from the Gulf
of Maine area are a single unit and are different from three other
"clusters" of lobste- those found southwestof Cape Cod, those
found northeast of Shelburne County to Cape Breton in Nova
Scotia, and those found in the inner part of the Gulf of St. Law-
" A. B. Stasko and R. W. Pyc: Conodian Oflshore Lobsler Fishery Trends. Canadian
AtlanticFisheriesScicntificAdviwryCommiltcc,RescarchDocument80156. [81-861 ANNEXESTO COUNTER-MEMORW OFCANADA 323
rence". The linkage between the lobster of southwest Nova Scotia
with those of the more southwesterly part of the Gulf of Maine is
strongly supported by the tagging data.
In addition, one of the species not listed in the United States Memorial
- angler - has a cross-channeldistribution similar to that of cusk and
lobster [Figure 431. In the inner Gulf of Maine, angler are broadly dis-
tributed across the basin as far as the mouth of the Bay of Fundy. For
al1 three species, the Northeast Channel clearly does not represent a
stock barrier.
132. Longfinsquid are depicted in the United States Memorial
as a singlestock that extends almost as far north as the Northeast Chan-
nel". This indicates that the Channel itself is not an important feature
affecting the stock structure of the species. Buiterfirh, a species not
treated in the United States Memorial, has a somewhatsimilar distribu-
tion" to longfin squid. and the Northeast Channel does not separate
stocks. Both speciesmove freely in and out of the so-called Georges
Bank "ecological régime".
133. Silver hake overwinter in deeper water off the banks, mov-
ing ont0 the banks for summer feeding and for spawning from spring
through autumn. The most recent stock separation study concludes that
there are two stocksin the Gulf of Maine area, divided by a line running
.a.cologicalrégime"2sGe[Figure441.bisecting the so-called Georges Bank
134. The southern stock of silver hake, when distributed over the
shelf, occupies the southern half of Georges Bank and the shelf to the
southwest as far as Cape Hatteras. Thus, this stock has ils northern
boundary well south of the Northeast Channel. The channel therefore
dois not represent a stock barricr. Moreover,the stock's southern distri-
bution is in no way bounded by any southern limit that could be
attributed to a "Georges Bank ecological régime".
"The lobstcr movements from southwcst Nova Scatia were taken from A. Campbell:
Movemenis of ToggedLobsiersReleosed offPort Moirlond.Novo Scotio.1944-1980.
Canadian Technical Rcpart of Fisherics Aquatic Sciences, p.81136. The movc-
ments fram the Grand Manan tagging erpcrimcnt were provided by the Canadian
hypathtsis that labsters within the Gulf of Maine area form a unit stock: A. Campbell,
and R. K. Mohn: The QueslforLobsterSlmk Boundoriesin ihe ConodionMaritimes.
NAFO Scientific Rcrearch Document 82/1X/107. 1982;G. C. Harding,F..Drinkwa-
tcr and W. P. Vass: "Factors lnfluencing the Sizc of Labstcr Stocks along thc Atlantic
Coast of Nova Scotia. Gulf al SLawrence a.d Gulf of Maine: a New Synihcsis."
ConodionJourml ofFirhcriesandAquotieSciencesV.ol40. 1983,pp. 168-184.
UniredSroresMemorinl,p. 37.Figue 7.
@
"S. A. Murawski and G. T. Waring: "A Population Assessrnent of ButtcrPeprilus
iriaconthurin the Northwcstcrn Atlantic Ocean".iTromacfions ofthe Ameriean
FisheriesSocierVol. 108,1979.pp.427-439.
F. P. AlmeidaAn nnnlysisofthesioekrrrucrureofsilver hokeMcrluccius bilinearis,
in NAfOSuboreas 5ond6. NAFO Scicntific Rcscarch Dacument 83/IX/81, 1982.324 GULF OF MAINE [87-931
135. The northern silver hake stock occupiesnot only the north-
ern part of Georges Bank and the inner part of the Gulf of Maine, but
appears also to be distributed along the southwestern slopes of Browns
Bank and the more inshore banks off southwest Nova Scotia. Analysisof
research vessel surveydataz6indicates that the division betweenthis and
the central ScotianShelfstock isto the eastof the BrownsBank area.The
biomass distribution isshown inFigure 45.
136. The stock structure and migration of red hake in,the Gulf of
Maine area are not well understood. A United States review has identi-
fied three stocks: (i) those red hake to the southwest of the Great South
Channel; (ii) those on Georges Bank; and (iii) those in the inner Gulf of
MaineZ7.Thestudy, however,did not consider red hake on the Scotian
Shelf. An earlier Soviet Union synthesis2sconcluded that the stock divi-
sionson Georges Bank parallel silverhake; i.e., the Bank isbisected by a
line running from east to Westshown in Figure 44. This conclusion is
supported by the red hake biomass distributions plotted from the
research vessel surveys [Figure 461. There is a marked discontinuity
along the middle of Georges Bankseparating the red hake of southern
Georges Bank from those of the inner Gulf of Maine. The observeddis-
tribution, as is the case for silver hake, does not reflect the three so-
called "ecological régimes"defined in the United States Memorial. The
most important distributional discontinuitiesare on Georges Bankitself.
Larval distributions indicate no discontinuities between BrownsBank
and Georges Bank.The most marked larval distributional discontinuity
on the Scotian Shelf, which could indicate a stock boundary, is to the
east of Browns Banki9.
137. There have been no scientific studies characterizing the
stock structure of redfish. American plaice, witch flounder and white
hake in the Gulf of Maine area. The research vessel survey data, how-
ever, indicate that these species are broadly distributed throughout the
inner Gulf of Maine [Figures47. 48. 49 and 501. These species are not
abundant on Georges Bankor BrownsBank nor in the Northeast Chan-
nel. They are concentrated in the deep waters of the inner Gulf of Maine
where theyspan the entire basin to the mouth of the Bay of Fundy. The
data indicate that the Northeast Channel is an irrelevant feature in the
distribution of these species.
JiJiHunt: Age,Crowrh,and DisrributionofSilver HokeMcrlucciusbilinearon the
ScorionSheljICNAF Selected Papcrs1977, 1977pp.33-44.
" E. D. Anderson:Comments on th<.DelineotioO/ Red and Silver Hoke Stocks in
ICNAF Suboreo 5 and SfatisiicoiArea 6ICNAF Rwearch Document741100, 1974;
E. W. Bowman:SeosonolDisrriburionof RedandSilver Hoke in ICNAF DivisioSZ.
6A. ond68.ICNAF Research Document721114, 1972.
" J. A RichterRerulrs-fReir<inh 'n rhe1)irrribliriun.Agr. Growrh.and Gr.\fur-
roltr) of Br,cks of Red Hokr. Ur.>phychu;,Walbaunz. fin(icurper Hank andin
Ad,n<cnrWorcrr.1965-1966 ICUAr Rocdrch I>orurnen68, Id. 1968
D. F. Markle,D. A. Mcthvenand 1.. J. Caates-Marklc:"Aspects of Spatialand Tem-
poralCooccurrencein the Life Histary Stages of the Sibling Urophycischuss
(Walbaum 1792) and Urophycisrenuis(Mitchell 1815)(Pisces: GadidaeCanodian
Journalof ZoologyVol. 60, 198pp.2057-2078.[1021 ANNEXESTOCOUNTER-MEMORLUOFCANADA 327
142. Thus it is clear that there is a dynamic linkage between cod
on eastern Georges Bank and cod on the Scotian Shelf. and that there is
a greater stock discontinuity between the cod of eastern and western
Georges Bank than between the cod of eastern Georges Bank and the
Scotian Shelf. In addition. cod in commercial concentrations are
reported within the Northeast Channel, and the channel is actively
fished for cod by Canadian fishermen.
143. Yellowrail flounder is a species with limited migratory hab-
its. In the Gulf of Maine area, there appear to be four relatively discrete
aggregations: (i) on southern Georges Bank; (ii) in the Nantucket Shoals
area; (iii) in the Cape Cod area; and (iv) on Browns Bankaq [Figure 581.
The Georges Bank area supports two distinct yellowtail stocks. One of
these, on Nantucket Shoals, extends southwest to the Mid-Atlantic
Bight. The other Georges Bank yellowtail stock is concentrated on the
southern part of Georges Bank. The stock does not occur in strength on
the northern or eastern parts of the Bank. Tagging studies and studies of
parasite content indicate only limited movement of yellowtail among the
aggregations.
144. Another species of some commercial importance in the Gulf
of Maine area is winierflounder (which is not listed in the United States
Memorial). Little is known of ils stock structure in the Gulf of Maine
area, but results of research vessel surveys suggest that it is confined to
the banks and that there is a discontinuity in ils distribution between
Georges Bank and the banks fringing western Nova Scotia. No data
exist on the extent of interchange between the aggregations in the two
areas.
145. Scallop aggregations occur in the series of banks fringing
southwest Nova Scotia, on the northeast peak and on the southern part
of Georges Bank, in the Great South Channel area, and off Long
Island' [Figure 591. It is generally acknowledged that such local aggre-
gations are not independent. Eggs and larvae released in the areas of
aggregations are carried away from their natal site by the complex cur-
rents of the Gulf of Maine area. Thus, recruitment to various beds can
come from contiguous areas tlirough drift and dispersion.
Section IV. Biomass Distribution
146. References have been made throughout this chapter 10 the
results of research vessel surveys in order to provide estimates of the
relative densities of groundfish species in the Gulf of Maine area. On a
species-by-species basis, the data show a wide variety of distribution
patterns that can be associated with various geomorphological and
other oceanographic features. The overall impression is one of great
" F. E. Lux: "Identification or New England Yellowtail FlounderCrouFisheries
BullefinVol. 63. 1963.pp. 1-10.
The scallapaggregationswcrcidcntifiedrramthe CanadianandUnited Statescsia-
tistibyarca withintheGulf of Maine area.328 CULFOF MINE [103-1051
complexity that defies geographical categorization into any simplified
scheme of separate "ecological régimes"T. he picture presented is one of
continuity of overall resource densityrather than of discontinuity. The
composite picture presented is well illustrated when the data for al1 of
the groundfish species listed are combined (see Figure 24 of the
Canadian Counter-Memorial). There is virtually a continuousdistribu-
tion of biornassthroughout the Gulf of Maine area, with irregular points
of high density in the inner Gulf of Maine. The overall biornassdistribu-
tion does not suggest or reflect the existence of so-called separate
"ecological régimes", nod roes it reveal the Northeast Channel as a
distributional barrier.
Section V. Conclusion
147. At the level of species, studies of the limits of fish distribu-
tions provide no support for the contention that three so-called"separate
ecological régimes" exisitn the Gulf of Maine area. Instead, the data
show a continuity in the species structure over broad expanses of the
continental shelf from the Scotian Shelf southwestward. To the extent
that a discontinuity can be identified, it is a transition zone that
embraces the Cape Cod-Great South Channel-Nantucket Shoals area.
These findingsare consistent withthe results of studies of plankton, hen-
thos and inshore fauna, and with geomorphologicalstudies. The fish and
invertebrate speciesof the Gulf of Maine area are continuouswith those
of the Scotian Shelf, and this area is part of the Nova Scotian biogeo-
graphic province. The southern limit of this biogeographic province is
coincident with the southern limit of the major effectsof the most recent
ice sheet.
148. At the level of stocks, the reviewof available scientificevi-
dence on the stock structure and distribution and migration patterns of
commercially important fish and invertebratesdoes not support conten-
tionsregarding the existence of so-~alledseparate "ecological régimes"
and of a "natural boundary" for stock distributions at the Northeast
Channel.
149. The United States Memorial considers only 16 species in
carrying out its assessment of stock structure in the Gulf of Maine area.
There are another 12 species of equal or of even greater importance,
making a total of 28 that must be considered. Very fewof these 28 spe-
cies are distributed in a rnanner that supports the United States theory
of separate "ecological régimes"in the Gulf of Maine area. For the
great majority of the species in the area, the Northeast Channel is not
an important feature affecting stock distribution. In some cases, stock
distribution is continuous across the Northeast Channel. In other cases,
there is substantial intermixing across the Channel between semi-dis-
crete aggregations; and in yet other cases, the species are not concen-
trated on the portionsof Georges Bankand the Scotian Shelf adjacent to
the Channel, and therefore the Channel itself cannot be significant in
their distribution.
150. At the level ofbiomass, the distribution of fishery resources
is virtually continuous throughout the Gulf of Mainearea. [los-1061 ANNEXES TO COUNTER-MEMORLU.OF CANADA 329
151. The distributions and migrations of fish and invertebrates in
the Gulf of Maine area are so complexthat a one-dimensionalprojection
cannot adequately portray the interrelationships between aggregations
throughout the region. Nevertheless, in order to provide an objective
@ appraisal of available data on distribution, Figure 60 showsthe limits of
known siocks of fish and shellfish in accordance with the method
adopted in the United States Memorial. Thisphic illustration clearly
showsthat no single line wouldovidea "natural boundary". GLOSSARY
Anticline. A ridge-like structure in which geological strata have been
warped upwards and whence they dip in opposite directions.
Basement complex. Undifferentiated rock below the oldest identifiable
sedimentary rocks with hydrocarbon potential of a region, often
metamorphosed. The age varies from place to place.
Benthos. The plants and animals on the bottom of the sea.
Biogeographic province. A geographic area delineated by a
discontinuity in the distribution of major groups of plants or
animals.
Biomass. The weight of living matter in a given area; e.g., biomass of
fish is the living weight of the fish community.
Circulation. Resultant or net movement of water in the oceans, where
current has been averaged over a relatively long period of time.
Clastics. Detrital material consisting of broken (usually small) pieces
of older rocks.
Delta. The area of sediments created by deposition where streams or
rivers enter bodies of water, such as lakes, estuaries or the sea.
Diapir. An intrusion of material that domes the overlying cover after it
has penetrated lower layers. Salt deposits heavily loaded by
thick cover often form diapirs, or"salt domes" and provide good
traps for hydrocarbons.
Differential warping. The action of twisting and bending of the earth's
crust.
Eddy. See gyre.
Fault. Fracture in rock accompanied by lateral or vertical displacement
of a block onone side relative to that on the other.
Fluvioglacial drainage. The drainage system developed in response to
the melting of glacial ice.
Front. An area where strong horizontal gradients exist in
oceanographic characteristics such as temperature or salinity.
Genera. See genus.
Genus (plural genera). A classification group of a number of species
possessing certain common structural characteristics distinct
from those of any other group.
Geumorphological features. See geomorphology.
Geomorphology. Earth science concerned with forms of the earth's
surface and changes taking place as landforms develop.
Glacial. Relating to the existence or activity of ice or ice sheets. nie
Pleistoceneepoch wasan unusual period of widespread glaciation.Il081 ANNEXESTO COUNTER-MEMORIALOF CANADA 331
Glacial deposits. Sediments and rock fragments deposited after
transport by ice.
Gravel. Sedimentary particles more than 2 millimetresin diameter.
Gyre. Water moving in a general circular path. Gyres may be
stationary geographically (e.g., fixed overa bank or basin), or
moving horizontally (e.g., Gulf Stream eddies).
High-resolution seismic data. See seismic profile.
High-velocity jet. Flow concentrated in10 a distinct current whose
velocityis higher than that existingin the surrounding water.
Hydrocarhon plays. A group of prospectsthat favour the accumulation
of oil or gas, having common geologicalcharacteristics, such as
source rock, reservoir,trapping mechanism, structural history,
etc.
Infauna. Animals livingin the sedimentsof the seabed.
Isostasy. The tendency of the earth's crust to maintain a state of near
equilibrium by virtue of the fact that the crustis "floating" on
a denser substrate (the "mantle") so that loading (e.g., by ice
or sediment) results in slow sinking, and offloading (e.g., by
melting of ice or erosion) results in the slow rising (isostatie
recovery).
Magnetie anomalies. lrregularities or deviations from the normal
magnetic field abovethe earth's surface.
Megaripples. Seabed features resembling giant ripples that occur
together in large numbers with a regular spacing. The
megaripplecrests are either straight or arcuate in plan, typically
0.1 to 1 metre high with a crest spacing of 1 to 20 metres. The
crests are transverse to flowandmigrate downcurrent.
Moraine. The ridge-likedump of coarse débrisformed at the edge of a
glacier or ice sheet and hmaining after the ice dissipates.
Moraines are described in relation to their position offormation,
hence end moraine, medial moraine, lateral moraine.
Mud. Popular name for sediment that is sticky when wet. Scientific
usage is for sediment that is finer than sand (63 microns).
consistingof silt and clay.
Outwash. Stratified glacial débrisdeposited by meltwater.
Physiographic province. An area of the earth's surface exhibiting
similar geornorphologicalstructures and features.
Plankton. A collectivename for al1the microscopicand small forms of
floating or drifting plants andanimals found at various depths
in the ocean, including phytoplankton (unicellularplants) and
zooplankton (animals) with relatively weak powers of
locomotion.332 GULFOF MAINE l1091
Reflection seismic survey. A geophysical technique for probing the
structures of concealed rock formations, analogous to "echo
sounding" in navigation. An energy source al the surface sends
shock wavesin ail directions and some of the energy is reflected
back to the surface from layers of differing composition. An
array of many microphones picks up the return signals at
different points and measurement of the travel time locates the
pointsof reflection.See also seismic reflection records.
Salt dome. See diapir.
Sand. Mineral or rock particles, coarser than silt and finer than gravel,
ranging from 63 micronsto 2 millimetres.
Sand ridges. Seabed ridge of sand that forms oblique or parallel to the
dominant current, is typically 1 to 30 metres high and 700 to
8,000 metres in width, and can be up to 60 kilometresin length.
Sand ridgesoften havesand wavesor megarippleson their sides.
Sand waves. Rythmic linear sand or gravel bodies onthe seabed that
have a "saw tooth" p;lfile and are oriented transverse to the
dominant current. They migrate down current and are
characterized by the super-position of smaller megaripples.
Most are 1to 10metres high and 20 to 200 metres from crest to
crest.
Sedimentary basin. A feature in which sedimentary rock has
accumulated in notable thickness. A somewhat circular or
elliptical area in which subsurface strata dip toward a more or
less central position and toward which the sedimentary layers
commonly thicken.
Sedimentary wedge. The wedge-shaptd deposit of sedimentary
material derived from the adjoining landmass and building the
continental shelf,slope andrise.
Seismic reflection records. A record of the energy recordedduring a
seismic survey, usuallycomputer processedto remove noise and
enhance primary energy.
Shelf water. Water overlyingthe continental shelf.
Slope water. Water with particular temperature-salinity characteristics
and generally overlying the area above the continental slope
betweenCape Hatteras and the Grand Banks.
Species. A group of animals or plants (usually a subdivision of a
genus) having certain common and permanent characteristics
whichclearly distinguish it from others.
Stock. Relativelydiscrete populationsof givenspecies.
Tectonic features. Geologicalstructural features of the earth's crust.
Temperature-salinity analysis. Plotting temperature against salinity
providesa means by which to identifyand define different water
masses.[Il0] ANNEXESTOCOUNTER-MEM OORCIALDA 333
Till. Glacially deposited rock débris andclay usually occurring in
unstratifieddeposits.
Topographicdepression. Area of the earth'ssurface lying lower than
its surroundings.
Upwelling. Upward vertical motion of water, often induced by
horizontal flownearCoastlineson banks.Volume II ANNEXESTO CUUNTER-MEMORIALOFCANADA 335
[Pages1-9,IO(paras.13-14)notreproduced]
PART 1.INTRODUC~ON
...............................
C ~ R II.ïh~ ORIOIN OF THE CANADIA DNEEP-SE AND NEARSHOR~
RSHENE :THE EIGHTEEN ANHDNIN~EENTC HENTURIES
...............................
Section II.The Southwest Nova Scotia Fleet and the Georges Bank
Fisheries in the Nineteenth Century
15. A student of the Nova Scotia fishery, writing in 1867, con-
firmed that offshore fisheries werebeing exploited by Yarmouth and
Shelburne county vesselsfrom central Georges Bankto Banquereau, and
ta the Gulf of St. Lawrence6. Describingthe importance of the offshore
banks to Nova Scotia fishermen, he wrote:
"From the first of April they continue cod-fishing on the various
banks which extend from George'sShoal ta Bank Quereau, and in
parts of the Bay of Fundy, until about the10th of June...[when]
they often proceed to the Gulf of St. Lawrence, and return home
about the last of August7."
The size of this fleet is revealed in the reports of the Commander of the
Expedition for the Protection of the Fisheries in the Gulf of St. Law-
rence. In 1859,Captain Pierre Fortin reported that each year in the Gulf
there were some "..,250 to 350 fishing schooners fromNova Scotia,
and. .. from 200to 300.. . from the United States8..."
16. This, then, was the compass of fishing activity to which ves-
sels from southwestNova Scotia ports - Yarmouth, Liverpool,Lunen-
burg, Lockeport,Argyle and Pubnico,among others - committed them-
selves in the nineteenth century from early spring ta late fall. Some
vessels of the fleet followedtheclassic pattern of the seasonal fishery,
fishing from Georges Shoal to the Gulf of St. Lawrence. Others (the
"home bankers") directed their efforts primarilyto the Cape Sable and
southwestern grounds in the Gulf of Maine area.
17. This division is reflected in the large offshore fleets that
sailed out of the old port of Pubnico. In 1884, for example, Pubnico's
fleet was composed, in part, of 21 vessels, fishing the Western, Ban-
quereau and Grand banks. Another 30 vessels - the "home bankers"
J.Wilson:"Firhcrics."Reportto theGovernorof Ncw Brunswick,17 Dccember1828.
TheNew BrunswickMuseum.D. R. JackPapcrs.FI, itemNo. 12.
T.F.Knight:ShorAnd Deep Seo FirheriesO/Novo Scotio. Halifax.A. Grant. 1867.
pp.5-7.
' T. F. Knight:ShAnd DeepSeo Fishedes Of Nova Scolio, p. 2.
"Xnnual Rcportof PierreForti.. .Report Of The CommissionerCrown Lands
Of Conado.For The Year 1859.Qucbec.Thomp&oCo., 1860.Appcndix3p.139.336 GUCFOF MAINE IlIl
knownas the Cape fleet - fished offshore on Cape Sable and the south-
western groundsP:Roseway,L$Have, Brownsand Georges banks. Il was
this Cape fleet to which the Collector of Customs and Suweyor of Ship-
ping at Barrington was referring in 1869 when, in response to official
enquiries about the fishery in Shelburne county, he wrote: "The greater
part of the registered vesselsdo not fish on our shore grounds, but go to
the banks off shore'o." Vesselsfrom the southwest Nova Scotia port of
Westport on Brier Island in the Bay of Fundy also concentrated on the
grounds of the Gulf of Maine area. In 1867, il was reported that the
"red-tan sails" of the Westport fleet ". .. are seen from Mount Desert
[island] to Cape Sable, and in al1weathers" . . .". Bath the vesselsthat
followedthe season'sfisheries from the Gulf of Maine area ta the Gulf
of St. Lawrence, and the Cape fleet of "home bankers", fished the vari-
ous grounds of the southwest NovaScotia area, including Georges Bank,
which Thomas Knight describedin 1867as "the most westwardly bank
ta whichour fishermen repair"".
18. The development of the southwestern fleet toa strength of
518 vessels - about 65 percent of Nova Scotia's offshorefleet" - in
1884is reflected in the fisheries then being conducted out of Pubnico. In
1883, for example, more than 60 vessels were making weekly fishing
trips [rom Pubnico to the grounds of the southwest banks and Gulf of
Maine area". One section of this fleet was the 20-vesse1 "flotte
Acadienne de Pubnico", which two years later landed more than
1,600,000cod and employed - in conjunction with its six paquebots -
some 400 men". The fleet of the tiny port of Tusket Wedge, which was
known to have participated in the Georges Bank fisheries in these years,
landed some $50,000.00 worthof dried cod in the summer of I887l6.
19. In the late 1860sor early 1870s.the southwestern fleet'sdory
schooners were trawling on Georges Bank". Other groundfish expedi-
tions were made to GeorgesBank in the mid-1880sby vesselsfrom Hali-
fax, Clark's Harbour, Yarmouth and Tusket Wedge'n.Yet other vessels
LiverpoolAdvance.7 May 1884,p. 2.
'O Annuol Repori Of The Deporrmenrof Marine and Fisheries. For The Year 1868.etc."
Ottawa.Huntcr.Rose & Co.. 1869,p. 37.
T.F. Knight:Shore And DeepSeo FishcriesOfNova Scoiio. p.49.
T. F. Knighi:Short And DeepSeo FisheriesOfNova Scorio. p.4.
" Sce Appcndix1.
" Lcttcrto thccdiiar, The YormouihHerald, 10 March 1881.p. 2.
" L'Evongrline,22 février1888,p. 3.
L'Evongeline.25janvier1888,p. 2.
'' Documenis ond Prmeedings of the Halifax Commission. 1877. Tcstimonyof Jamcs
Purccll,British [Canadian] Witness No. 20. United States Houx of Rcprcscntatives.
45th Congres. 2nd Sasion, Executivc Document No. 89. Washington,Govcrnmcnt
Priniing Officc. 1878. Vol. 1, p. 631. See also tcstimonyof John Nicholson. British
[Canadian]WitnessNo. 22. Vol.1.p. 645.
" Thc Yormouih Times. 25 April 1885, p. 3; The YormourhHerald. 10 March 1886,
p.3;FifreenrhAnnuolRepori Of The DeparrmrniOf MarineAnd Fisheries,BeingFor
The Fiscol YenrEnded 30thJune. 1882.Ottawa. MacLcan.Roger & Co.. 1883. Sup-
plcrncntNo. I, AppcndirNo. 2. p. 61.338 GULF OF MAINE Il31
Gloucester vesselsin the fifteenyears after 1888 [AppendixII]. In 1891,
the number of Canadians who lost their lives was more than 50 percent
of the total Gloucester losses.
22. While Yarmouth and Shelburne county ports were experienc-
ing a decline, two other southwest Nova Scqtia ports were prosperingas
they began to concentrate in particular branches of the fishery. Lunen-
burg was fast becoming the major port in the Salt cod fishery. At the
same time, Digby beganIo concentrate on the fresh and winter fisheries.
From early spring to mid-winter, the fishery focussed its efforts on the
grounds of the Gulf of Maine and southwest Nova Scotia areas. It was
often called the winter fishery because haddock - the chief species
caught by the Digby fleet in these waters - was fished in the winter
months. From 1885to 1910,the Digby fleet and vesselsfrom Yarmouth,
Lockeport and Lunenburg fished the Gulf of Maine area and supplied
the Boston and New York markets with fresh haddock. halibut and
cod". This fleet either shipped its catches by steamer from Yarmouth2'
or sent them direct to Boston in the holds of United States registered
fishing vesselsthat Digby owners had purchased forthis purposeZ4T . he
fish processors of Digby were also renowned in this period for their
brands of finnan haddie (a mildly smoke-cured haddock), which were
shipped to central and western Canada and to United States markets".
This closenessof the port to the major grounds of the Gulf of Maine
area, including Georges Bank, wherethe best sourcesof haddock were to
be found, was the chief reasonfor the Maritime Fish Corporation's deci-
sion to establish a plantin Digbyin 191OZ6.
" The Husrl~r(Lockeport). 15 November 1895. p. 3: 5 March 1896. p. 3: Liverpool
Advonce.21 Scptcmber 1887.p. 2: 1 May 1912.p. 4:Digby Record. 10 Fcbruary 1909,
p. 1;GloucesterDaily Times. 25 Seplember 1899. p. 4; 29 April 1903.p. I; Yurmourh
Linhr. 29 March 1894. D. 3: 2 May 1895. D. 3; The YormourhHerold. 29 October
1884. p. 2:29 septem&r 1891. p.-2; 15 &taber 1901.p. 2: The Fishing Gazerie.
26 Novcmber 1898. p. 756: 8 July 1899. p. 420; 16 December 189p. 798; 24 March
1900. p.179; 12 Octokr 1900, p.654; 10 Novcmber 1900. p. 707: 22 December 1900.
p. 803; The Yormourh ~ele~rim, 15 December 1893. p. 3; 18 October 1901, p. 1;
25 Octabcr 1901, p. 1: I Navember 1901,p. 1: 8 November 1901. p. 1; 2 May 1902.
p. 1; 23 May 1902. p.1: 10 October 1902, p. 1: II December 1903, p. 1: 7 December
1906, p. 1;22 May 1908,p. 3:10 December 1909.p. 1.
I'YormourhLighr.8 April 1897. p. 5;The Yormouih Telegram,7 Dccember 1906. p. 1;
21 Deccmber 1906.p. 1:LiverpoolAdvonce.23 June 1886.p. 3.
" Letter [rom D. and 0. Spraul, Wholesale Fish MerchantIOA. J. S. Copp. Member of
Parliameni, 10 March 1902. Public Archives of Canada, RC 23. Vol.0. Filc 2; letter
from D. and O. Sproul. Wholesalc Fish Merchanis. ta Minisicr of Marine Fisheofes
Canada. 14 Novcmber 1905. Public Archives of Canada. RC 23, Vol.10.File 2: lctter
from D. Sproulc & Co., Wholcsalc Fish Mcrchants. 10 Dcparimcnt of Naval Service,
12 March 1918. Public Archives of Canada, RF 23. Val. 1296.Filc 728-4-4161:The
Digby Weekly Courier. 17 March 1893. p. 3; 3 November 1893.p. 3; 4 October 1901,
p. 2: 19 June 1903.p. 2; 21 January 1910. p.2: The Morning Chronicle (Halifax).
14April 1915.p. 8.
'Vhe Digby Werkly Courier. I January 1892; The FishingGaierre. 22 December 1900.
p. 803: The Digby Weekly Courier, 2 February 1900. p. 1: Conildion Fishermnn.
Vol. III, No. 2, February 1916.pp. 38-39.
l6R. M. Whynacht: "Maritime Fish Corporation." ConodionFishermon,Val. lx, No. 7,
July 1922.p. 142.1141 ANNEXES TO COUNTER-MEMORLALOFCANADA 339
23. As was noted above, the Digby halibut and haddock fleets
often made their landings of fresh fishat Yarmouth; its convenient and
regular steamship serviceto Boston wasthe most expedient way of deliv-
ering a valuable but highlyperishable cargo. Yarmouth's strategic loca-
tion helped prompt the revival of its offshore fishery after 1900, when
Yarmouth schooners turned their attention to the winter haddock and
spring halibut fisheriesand were fishing with the Digby fleet". A similar
revival had occurred in Lockeport and Pubnico, and these and other
ports in southwest Nova Scotia began to turn to the fresh and winter
fisheriesZ8.
24. As the Cape fleet basedon the ports of Yarmouth and Shel-
burne counties declined after 1885, the focus of the saltfish fishery
movedto Lunenburg while the fresh fish fishery shifted to Digby where
it grew rapidly from the mid-1880s to 1910 and beyond. The fresh-fish
or winter fishery was particularly dependent on the "home banks"of the
southwest ports - the Gulf of Maine and southwest Nova Scotia areas
- because these grounds were the best sources of haddock" and were
close enough to the markets served by the fishery for this species (and
for fresh halibut and cod) to allow for expedient delivery ofils catches.
By the end of the period, Digby was joined by other southwest Nova
Scotia ports in the year-round exploitation of the fish stocks of the
southwest Nova Scotia banks and the Gulf of Maine area.
[Para. 25 of p. 14 andpp. 15-138 no: reproduced]
l' The FishingGozefte. 24 Junc 1899. pp.385 and sccalsa articlcrentilled"Marine
and Shipping"caturcdin The Digby Weekly Courier.January-April,1908-1909.
The Morning Chmniele (Halifax), 8 April 1903. Public Archivesof Canada, RG 23,
Vol. 343. File 2981.
l9 G. B. .Goode:The Fisheries ond Fishery Industries of the United Stores. Scciion V,
Vol. 1,p. 234;S. F. Baird:"TSca FishcricsOf EasternNorth America.Report of
The Commissioner for 1886. United States Commission Of Fish And Fishcrics.
Washington,GovcrnmentPrintingOffice. 1889,PartXIV. pp.87 and 91. Appeadix1
THESOUTHWEN STVASCOTIAESSE LNDBOATFISHERIE18:51-1910/11
[Nor reproduced]
AppendiII
CANADIAFISHERMW EHO SERVEON UNITEDTATE SESSELANDLOST
THEIRLlVEIN THGLOUCEST FIRHERIE18:91-1AND 1909-1916
[Norreproduced]
Clossary
[Norreproduced] Volume III
STATE ACTIVITIES
PREFACE
This Annex is submitted in support of Part II, Chapter VI of the
Counter-Memorial Submitted by Canada. Chapter I of this volume deals
with the Canadian regulatory system covering the disposition and
administration of interests in offshore oil and gas. Chapter II describes
Canada's activities with regard to the protection of the marineviron-
ment. Chapter III outlines the history of charting in the Gulf of Maine
area. Chapter IV reviews Canada-United States cooperation in the
defence of North America and the Gulf of Maine area in particular.
Chapter V discusses Canadian aids to navigation in the same area. It is
not intended to suggest thatal1 the State activities described herein are
legally relevant to the determination of the maritime boundary in the
Gulf of Maine area. In particular, the object of Chapters III, IV and V
is to correct and complete the record of State activities in the Gulf of
Maine area as presented in the United States Memorial. All of the docu-
ments marked secret or confidential in this Annex have been placed in
the publicdomain by a 1977 Canadian cabinet directive.
This Annex contains 604 pages in text and 52 appendices. CHAPTER 1
THE CANADIANREGULATORY RÉGIME GOVERNING THE
DISPOSITION AND ADMINISTRATION OF INTERESTS IN
OIL AND CAS
Section 1. Introduction
I. The followingparagraphs outline the history of Canadian oil
and gas explorationin the Gulf of Maine-GeorgesBank area and explain
the provisionsof the Canadian regulatory régimerespecting oil and gas
exploration and exploitation on the continental shelf, with a brief com-
parison to that of the United States. This chapter wiliclarify misconcep-
tions created by the United States Memorial,which does not fully report
the developments in oil and gas exploration in the Gulf of Maine-
Georges Bank area during the 1960sand does not refer to the activities
of Canadian permittees and licenseesin this area'.
Section II. History of Canadian Oil and Gas Exploration in the
Gulf of Maine-Georges Bank Area
2. During the 1950s, followinga sorge of activity in oil and gas
exploration and development in the Yukon and Northwest Territories,
interest increased in the oil and gas potential of Canada's offshore
regions. In 1960,pursuant to the Territorial Lands Act (1950)' and the
Public Lands Granis Act (1950)', Canada proclaimed the Canada Oil
and Gas Regulation9 to govern oil and gas explorationand development
on al1 federal Crown lands that were not within provincial boundaries,
includingthe seabed. These regulations governedthe dispositionof inter-
ests in oil and gas as well as the conduct of activities related to those
interests. In 1961, the regulations were amended, primarily to divide
those dealing with drilling for oil and gas from those dealing with the
disposition and administration of interests in oil and gas. The former
group of regulations became the Canada Oil and Gas Drilling and Pro-
duction Regulations'whereas the latter became the Canada Oil and Cas
Land Regulations6.
'Appcndix Ioftthis Volumc. Rclcvanl Unitcd Statcs Icgislaiion isrcproduccdin Appen-
dix 2of this Volume.
'chap.T-6,m. 4. SccAppcndix 1.Documcni 1.cd in Revired Siatutcs of Canada 1970,
'StatutcsofCanada 1950,chap. 19. as amcndcd in ReviscdStatutcof Canada 1970.
chap.P-29,sec.4. SeeAppendix1,Dacument2.
' Ordcr in Council P.C. 1960-474.13 April 1960.publishcCanada Corcire. Part II.
Vol. 94. Na. Il May 1960.
' Ordcr in Council P.C. 1961-797.Junc 1961, publishcd iCanodo Cozcrte. Part II.
Vol. 95No. 12.28 Junc 1961,asamcndcdby the Conoda Oil and Cas DrillinRcgu-
Inriom.Order in Council P.C. 1979-25.18Janvary 1979.publishcdConodo Gorrrir.
Part II. Vol. 113.No. 3. 14Fcbruary 1979.
Ordcr in Council P.C.961-797.6 Juns 1961.publishcdin Conoda Cozetre. Part II.
Vol. 95. No. 12.28Junc 1961.SccAppcndix 1,Document3. L21 ANNEXES TOCOUNTER-MEMORIALOf CANADA 343
3. The regulalory régime established pursuant to the Canada Oil
and Cas Land Regulationsof 1961 governed the issuance by Canada of
exploratory permits in the Gulf of Maine-Georges Bank area, commenc-
ing in 1964. Under this régime,Canada issued permits in this area up to
a line of equidistance controlled by the nearest point of land on each
Coast, thereby creating exclusive. long-term, vested rights in the area.
The 1961 regulations have not been revoked, but they have been
amended gradually. In 1977, major amendments were made to provide
new oil and gas rights to the industry, as well as to establish certain
rights for the state-owned oil company'. In 1982, the Canada Oil and
Gas Act' came into force, imposing more changes on the Canada oil and
gas régime.Despite these alterations to the regulatory scheme, the exclu-
sive rights created in the Gulf of Maine-Georges Bank area have been
maintained.
Section III. The Canadian Regulatory Régime
4. The following description of the Canadian regulatory régime
for the exploration and exploitation of oil and gas is divided into three
parts: Part A reviews the régimeas it existed from 1961 to 1977; Part B
describes the amendments made to the regulations in 1977; and Part C
explains the new régimecreated under the 1982 Canada Oil and Cas
Act.
A. THECANADAOILANDGASLANDREGULATIONS:1961-1977
5. The regulatory régime established as a result of Canada's 1961
regulations provided for three types of legal instruments dealing with the
conduct of activities and interests in oil and gas - exploratory licences,
exploratory permits, and oil and gas leases.
1.Exploratory Licences
6. An exploratory licence, issued pursuant to section 24 of the
regulations9, permitted a licensee to "enter upon and use the surface of
any Canada lands [including those under permit or lease] in order to (a)
make geological or geophysical examinations; (b) carry out aerial map-
ping; or (c) investigate the subsurface" (see section 26 of the regula-
tions). (Italics and bracket added.) The licensee could, therefore, con-
duct extensive exploration activities, including drilling a shallow well to
1,000 feet (about 305 metres; see section 27 of the regulations), on any
federal Crown lands outside provincial boundaries, and was not
restricted to a particular tract of land on the continental shelf or other-
wise. A licence did not deal with interests in oil and gas; it merely
authorized the holder to conduct certain exploratory activities on al1
'Ordcr in Council P.C. 1977-2155. 28 luly 1977, publin CnnndoGazelte,Part11,
Val. 111, Na. 16, 24 August 1977 and OrinrCouncil P.C. 1977.3160, 10 November
1977. publishedCanndo Goretre ,art II. Vol. 111, No. 22. 23 Navember 1977.
'Stalutes of Canada 1980-81-82,chap. 81.
The sectionnurnbcrsreferred 10in paragraphs 6 to 14 inclusiveare those ihat appeared
in the 196Cnnodo Oitand 64s Lnnd Replalions.See Appendix 1,Document3.344 GULFOF MAINE [3-51
Canadian lands (offshore and otherwise), without granting exclusive or
proprietary rights over the lands. A licence was a prerequisite for any
exploratory activity, although applications for licences by holders of
permits or leases were mere formalities. Every licence expired on the
thirty-firstday of March next following the date of ils issue (see section
24 of the regulations) and thereafter the licensee had no further rights.
However, licencescould be renewed without restriction.
7. Canada has issued exploratory licences authorizing extensive
seismic, gravity and magnetometer exploration in the Gulf of Maine-
Georges Bank area. From 1965 to the present day, Canadian licensees
have spent millions of dollars on exploratory work to determine the areas
conducive to production of oil or gas. These surveys cover several thou-
sand kilometres of seabed in the Gulf of Maine-Georges Bank areaIQ
[Figures 1. 2 and 31.
2. Explorarory Permits
8. Unlike exploratory licences, exploratory permirs conferred
exclusive, long-term rights to a specific tract of land onshore or offshore.
Exploratory permits were issued with respect to speciiied areas pursuant
to sections 30 and 32 of the 1961 regulations, provided that those,areas
were not already under permit or leaseand that the appropriate Minister
was satisfied certain exploratory work would be carried out over those
areas".
9. Every permit was issued for a "grid area" or one-half of a grid
area. quadrilaterals delimited by lines of latitude 10 minutes apart and
lines of longitude 15 minutes apart, i.e., about 10 by II nautical miles
(see sections 4 and 5 of the regulations). Each permit in the Gulf of
Maine-Georges Bank arèa covers approximately 38,000 hectares. An
exploratory permit gave the holder the exclusive right, subject to obtain-
ing Canadian Government authority and taking out an exploratory
licence,to drill an exploratory well more than 305 metres deep on the
areas described in the permit. The permit holder also had the exclusive
righi ro obrain an oil and gas leasefor the purposesofproducing oil
and gasfor rhe orea describedin rhepermit (see section 35 of the regu-
lations).
10. Permits carried with them certain work requirements obliging
the permittees to perform exploratory work over the areas described in
the permit (see section 45 of the regulations). Work requirements
increased progressively, reîlecting the incremental nature of expenditures
necessary to evaluate the area covered by the permit for drilling
locations. Permittees would inilially carry out relatively inexpensive
ISee Appendix3 for year-by-yearillustrationsof thc survcysconductedin the Gulf of
Maine-GeorgesBank areafrom1965to 1979.
" Uniil 1966. the Minisaf NorthernAffairsand NationalRcsourccswas responsible
for offshoremineralrcsources.On I January1966. the GovcrnarGcncralin Cauncil
translcrrcdcantroland superviof offshoremincralrcsourcesin thearcasoff theeast
andwcsi-sis andthe HudsonBay-HudsonStraitrcgionta the Miniricrof Mina and
TechnicalSurvcys.Laierin 1966,the Dcpartmentof Mine andTechnicalSuweys was
rcnamcdtheDepartmentof Energy.MincsandRcsourccs.i61 ANNEXES TO COUNTER-MEMOW OFCANADA 345
reconnaissance work (such as aeromagnetic and seagravity surveys)
which weuld be followed by more-expensive detailed geophysical studies,
and only in the later stages of exploration would they conduct high-cost
drilling operations. A permit Torthe offshore was valid for six years (see
section 36 of the regulations) and could be renewed for a period of one
year. The regulations provided for a maximum of six rencwals (sec sec-
tion 38) plus a provision for further renewal upon Minisicrial consent
(seesection 40).
II. In 1971. some of the Georges Bank permitlees wcrc about to
enter a costly phase of exploration required by the regulations. They
were reluctant to proceed with the imposed work programs, howzvcr,
because the United Staies had reserved ils rights in Novcnibcr 1969. in
those areas designated in the permits. In order that permittces would not
lose their resource rights for failurc to meet the work rcquirements. the
Government of Canada. upon the request of the pcrmiitees. relisved
them from fullilling furiher usorkrequirements pending ihe settlcmeni of
the dispute. This was effecied by issuing executive orders (called varia-
tion orders) pursuant to seciion 4 of the Public Lands Grants Art and
section 4 of the Territorial Lands Art. These variations orders. which
were issued in 1971 and thercafter as each of the Georges Bank permit-
tees approached costly phasesof exploration. had the following effectst2.
(a) they maintaincd the permittees' resource rights in the area dcsig-
nated in the permits:
(6) they relieved the permittces from further work obligations imposed
by the regulations:
(r) thcy extended the lire of each permit so that when the dispute is set-
tled. each permittee would be in the same position as he was when
his work program was suspended:and
(d) upon the settlemeni of ihe dispute, each permitiee would continue
the work program imposed by the regulations as if ihcre had bceri no
interruption in lime.
12. Since 1964. Canada has issueda large number of exploraiory
pcrmits covering some 3 million hectares in the Gulf of Maine-Georges
Bank area. Theexploratory psrmits remainoutstandingtoday [Fi~ure 41.
3. Oil and Cas Leases
13. Permittees who met certain "Canadian participation"
requirements were granted ail and gas leases upon application to the
Minister (see section 55 of the regulations). A permittee could select up
to 50 percent of the area described in the permii for inclusion in a lease
(see section 56 of the regulations). A lessee who was the holder oi an
exploratory licence was empowered to carry out exploratory work and
could apply to the Canadian Government for authority to drill deep wells
in the area described in the lease.A lesseehad the exclusive righi to pro-
duce any oil. gas or related hydrocarbons from the region described
IzSeeApp-zndir4 forcopieof the relevantvariaorders346 GULF OF MAiNE 171
therein (see section 59 of the regulations). The term of an oil and gas
lease was 21years (see section 62 of the regulations) and was renewable
for successiveterms of 21years if the area under lease was capable of
producing oil or gas (see section 63 of the regulations). Also, the lease
was reissuable for a term of 21years upon commencement of commer-
cial exploitationsee section 64 of the regulations).
4. Reporiing Requirements
14. There is no support for the suggestion in the United States
Memorial that the Canadian regulatory program for the exploration of
the continental shelf, establishedas aresult of the 1961 regulations, did
not impose careful practices on its users". In fact, the Canadian system
ensured greater control over exploratory activity than did the United
States system. In Canada, applicants were not only required to meet
specifiedstandards to qualify for permission to conduct exploration, but
those authorized to do so had to make extensive reports to the Govern-
ment during various phases of their work programs on the extent and
results of their activities (see sections52 to 54 of the regulations).,
the exploration of the continental shelf in the Gulf of Maine-Georges
Bank area was carefully monitored to ensure compliancewith regulatory
requirements. In the United States, on the other hand, those authorized
to do exploratory work were not similarly monitored by the United
States Government. Prior to 1975, when exploratory work was simply
authorized by letter from an official of the United States Department of
the Interior. those authorized to perform exploratory work weremerely
required to inform certain .government officiais as to proposed work
plans and location of the area to be surveyed.Extensivefollow-upreport-
ing, confirmingdetailed results of survey activities,was not required.
B. THE CANADA OIL AND CAS LAND REGULATIONS: 1977-1982
15. In August 1977, the regulations were amended primarily for
the purpose of providing new oil and gas rights for the industry as well
as establishing certain rights for the.state-owned oil Company. The
amendments provided for new instruments, called "exploration agree-
ments", which resembled the exploratory permits in the rights they con-
ferred, but were valid for a period of up to 10years and were renewable
for a term, or terms, not exceeding 10years in the aggregate. The sig-
nificant difference between exploratory permits and exploration agree-
ments, however, wasthat the terms and conditions of the latter instru-
ment were negotiatedrather than fixed by regulation (see section 30 of
the regulationsas amended in 1977)".
16. There were no provisions in the amendments relating to the
issuanceof exploratory permits and thus no such permits could be issued
after August 1977. However, permits already in existence when the
amendments were made were not affected. Permittees could continue to
" UniredSrores Memoriol. p. 63, para.100.
" AppendixI. Document4.181 ANNEXESTO COUNTER-MEMORULOFCANADA 347
conduct exploration (provided they had exploratory licences) and
retained the exclusive option to obtain an oil and gas lease for the area
designated in the permit (see sections 34 and 35 of the regulations as
amended in 1977). Thus, the existing exploratory permits remained valid
until they expired or were converted to leases. Similarly, permits that
had been "frozen" pursuant to variation orders remained valid permits
whose terms had been extended and whose work requirements had been
suspended.
17. The issuance of oil and gas leases continued under the new
regulations, but they were available to holders of exploration agreements
as well as permittees (see section 54 of the regulations as amended in
1977). The regulations concerning exploratory licences did not change.
C. THE1982 CANADAOIL AND GASACT
18. The Canada Oil and Gas Act came into force on 5 March
1982, creating a new régime for the exploration and exploitation ofoil
and gas. However, this legislation does not revoke or replace tCanada
Oil and GasLand Regularions, unless they are inconsistent with it (see
section 62 of the statute)". Section 62 of this legislation provides that:
"All interests provided by the former regulations that are in force
when this Act comes into force continue in force . . ."
until the holders of such interests acquire a succeeding interest under the
new legislation. Thus the new legislation will gradually replace the old
regulatory régime,as it provides for new interests that will succeed the
rights that had accrued under the Canada Oil and Gas Land Regula-
tions. In this way. accordingly, the rights that had accrued to the
Georges Bank permittees will be maintained, despite the creation of a
new oil and gas régime.
19. The new legislation provides that current permit holders may
either negotiate an exploration agreement with the Minister (of Energy,
Mines and Resources in the case of permits in the Gulf of Maine-
Georges Bank area), or they may apply for a provisional lease. Negotia-
tions were to take place by 5 September 1982, or within six months from
the îirst anniversary date of the permit following 5 March 1982, which-
ever was later (see section 63 of the statute). Applications for provisional
leases had to be submitted within the same time frame. All the Georges
Bank permittees have opted for exploration agreements. Negotiations
commenced in June 1982, and are continuing.
20. For the areas described therein, an exploration agreement,
negotiated pursuant to the 1982 legislation. confers the right to explore
for and the exclusive right to drill foril or gas, the exclusive right to
develop those areas to produce oil or gas, and the exclusive right to apply
for a production licence (see section 9 of the statute). Section 27 of the
legislation provides that a 25 percent share of the interests provided
under the legislation shall be reserved to the Crown. Exploration348 GULF OF MAINE [91
agreements normally impose work requirements as well as a certain
degree of Canadian participation, and may include specific reporting
obligations (see section 10 of the statute). Exploration agreements cur-
rently under negotiation by the Georges Bank permittees will not impose
work programs until the boundary issue has been settlcd. Hence. these
permittees (soon to become holders of exploration agreements) will have
al1 the rights associated with holding an exploration agreement. but will
have none of the work obligations normally imposed thereunder. This
will effectively replace the necessity of obtaining variation orders that
were formerly required ta keep the legal interests alive while suspending
legal obligations.
21. A provisional lease confers the same rights as an exploration
agreement, but it imposes higher rental payments and is for a fixed, non-
renewable term of five years (see section 68 of the statute). Provisional
leases do not include imposed work programs.
D. APPLICABILITYTO THE OFFSHORE
22. In discussing the Canadian regulatory régime for the develop-
ment of the continental shelf. the United States Memorial is incorrect in
saying that the statutory legislation authorizing the issuance of
Canadian oil and gas permits applies "on its face only to onshore
de~elopment'~".In fact, the Public Lands Crants Act applies to al1lands
and interests belonging to the Crown in right of Canada that are outside
provincial boundaries, including lands of which the Government of
Canada has the power to dispose, without distinction (see section 2 of
that statute)". The applicable regulations made under the authority of
this legislation make it clear that the authority to grant permits extends
to offshore as well as to onshore lands. Indeed, the expression "lands" is
used in this legislation in much the same sense as it is in the title to the
United States Outer Continental Shelf Lands Act". The Canadian off-
shore regulations were approved for passage by the Canadian Depart-
ment of Justice as being within the governing legislation, as required by
the former Regulations AciIP,and their applicability to offshore areas
has never been questioned in the more than 20 years since they were first
enacted. until the submission of the United States Memorial.
Section IV. Comparison with the Oil and Gas Régimein the
United States
23. The United States regulatory régimefor the exploration and
exploitation of the continental shelf was established pursuant to the
l6UnitedSlorcsMemoriol. p. 63. para. 101.
" Appendix1. Document2.
laChap. 345. 67 Statutes 462 (1953) codified at 43 Unitcd States Code secs. 1331.1343
(1976). as arnendedin 1978,43 UnitedStatcs Csecs1331-1356(1976. Supp. III).
RevisedStatulesorCanada 1970, chap.R-5. This statutc was repealedin 1bythe
SloluroryInstrumentrActSiatutes ofCanada 1970-71-72.chap.38. sec. 34.[Io] ANNEXESTOCOUNTER-MEMORIALOF CANADA 349
Outer ContinentalSheljLonds Act (see section Il of that stat~te)'~and
the regulations entitled Mineral Deposits in the Outer Continental
Shelf 1.This régimeprovides "notices" or "permits" for exploration as
well as "leases" for the productionof oil and gas. However,the United
States offshore oil and gas regulatory régimeis markedly different from
the Canadian oil and gas régime.
24. Despite the potential confusion in terminology, there is no
similarity betweenthe Canadian exploratory permits that were issuedfor
the Gulf of Maine-Georges Bankarea and which are still outstanding,
and the geophysical survey permits referred to in the United States
Memorial". The Canadian permits, first issued off the east Coast in
1964, confer exclusive,long-term rights in respect of a specific tract of
offshore land, with a potential forthe right to produce oil and gas upon
conversion to a lease at the option of the permittee. The Canadianper-
mit~ are, in practical e//ect, the equivalent O/ "leases" under United
States legislalion. In fact, the United States permits are similar to
Canadian licences, as distinguished from permits,in that both instru-
ments confer temporary rights to conduct geophysical surveys. However,
they are different in that Canadian licences coveral1lands under federal
jurisdiction that are outside provincial boundaries, whereas United
States permits cover broadsections of the continental shelf designated in
the permit.
25. The permits issued by Canada for the Gulf of Maine-Georges
Bank area (which are now being converted into exploration agreements)
differ fundamentally from the United States exploration permits referred
to in the United States Memorial in the followingways:
(a) The Canadian permits cover specijic tracts of land, delirnited by
lines of longitude 15minutes apart and lines of latitude 10 minutes
apart (about 10 by 11 nautical miles in the Gulf of Maine-Georges
Bank area). The United States survey permits pertain to vast areas
coveringhundreds of square kilometresof continental shelf;
(b) The Canadian permits confer potential resource rights by securing
to permittees the exclusiveoption to convert up to half the area cov-
ered by the permit to a long-term oil and gas lease. The United
States permits confer no prospectof rights to resources and there
are no exclusivityfeatures to United States permits;
(c) The Canadian permits issued for the Gulf of Maine-Georges Bank
area will be succeeded under the new Canada Oil and Gas Act by
new rights that will remain in effect for a term of several years. The
United States permits, in contrast, are temporary instruments issued
for a program that can be completed in a matter of months. The
United States Memoria12'showsthat the work authorized under al1
Appcndix 2.Documen 1.
" 43 CodeofFcderaRl cgulations.rt201 (1954rcviscdas of 1960, 1961)sec.201.120.
Appcndir 2, Document2.
UnitedStatcsMcmoriol, p. 58para93.
" UnitedStoresMemoriol.DorumentoryAnnexes.Vol.II. Anncr40. 350 GULFOF MAINE 1111
the permits listed has been completed,and these permits accordingly
have no continuingvalidity.
(6) The areas under Canadian permit are outlined onofficial maps that
are available to the public. These maps have been available ever
since they were issuedin the early 1960~~~ A.lso, the Canadian Gov-
ernrnent published a "Monthly Oil and Gas Report" announcing the
issuance and location ofal1Canadian permits. The report was dis-
tributed to some 400 recipients during the mid-1960s. including the
United States Embassy in Ottawa. This periodic oil and gas report is
still published today, although in a different forml'. The exploratory
permits referred to by the United States are not correspondingly
publicized.
B. UNITED STATES ACTIVITIE ON THE EASTCOAST
CONTINENTA SHELF
26. The United States Memorial refers to a series of permits
issued by the United States for geophysicalsurveysof extensive areas of
the Atlantic continentalshelf6. It alleges that extensivegeophysicaldata
has been collected under United States exploration permitsin an unde-
fined area referred to as "the northeastern part of Georges Bank".
Copies of these permits were providedto Canada by the Agent of the
United States under coverof a letter to the Registrar of the Court dated
20 January 1983. An examination of this documentation confirms that
at least sevenof the permits were for areas that do not appear to extend
into areas claimed by Canada at the tirne the permit was issued(see per-
mits E4-64, E3-67, E3-75, E6-75, E8-77, E9-77 and E12-78). Tbree
other permits refer toareas that come very closeto the demarcation line
that may not, in fact, have covered areas within the portion of Georges
Bank claimed by Canada at the time the permits were issued(see per-
mit~El-65, El-70 and E4-78). No specific information was providedas
to the locationof the surveyarea for fiveof the permits (see perrnitsl-
66, E3-68, E4-69, EI-71 and E22-76).
27. Under the United States oil and gas régime, itwas only
through the purchaseof tracts offered for lease that an individualor cor-
poration could obtain the kind of vested righis in respect of lands that
were conferred on Canadian permit holders during the 1960s. However,
asstated in the United States Memorial, oil and gas leases for tracts on
Georges Bank were first offered for sale in 1979, and none of those
tracts covered areas claimed by Canada". In fact, no such tracts have
ever been offered for sale by the United States for that part of the Gulf
of Maine-Georges Bank area claimed by Canada. The only instruments
@ 24Foranexamplcof thescmapsseCunodionMernoriol.AnnexesVol. III.Annex 3.
" SceAppendii5 foracapyofthcCanadianGovernmcnt"Monthly OilandGas Report"
for May 1964 announcingtheissuanceand locationof Canadiagasprmits.
26UniredSioiesMernoriap. 58.para.93.
1'UniredSloresMernoriap.60,para.97.cl21 ANNEXESTO COUNTER-MEMORIALOFCANADA 351
that conferred continental shelf rights in the disputed area were those
issuedby Canada.
Section V. Conclusion
28. The foregoing descriptionof the Canadian regulatory régime
for the exploration and exploitation of the continental shelf has outlined
in detail the régimeunder which Canadian permits for the explorationof
the Gulf of Maine-GeorgesBank area were issued,commencingin 1964.
Canadian permit holders havenot only acquired exclusiverights in the
areas described in the permits. but these proprietary rights in the Gulf of
Maine-Georges Bankarea remain outstanding today. The United States
oil and gas régime,on the other hand, has not created any existing rights
in the Gulf of Maine-GeorgesBankarea claimed by Canada.352
CHAPTER Il
PROTECTION OF THE MARINE ENVIRONMENT
Section 1. Introduction
29. The United States Memorial impliesthat compared to United
States environmental protection legislation,Canada's environmentai pro-
tection régimeis inadequate'. These assertions are based upon a mis-
guided understanding of Canadian legislation and the Canadian system.
Canada has demonstrated in legislation and practice that its environ-
mental protection régimeis both efficient and comprehensive.The
régimeis based upona system of checks and balances, operating objec-
tively, and often independently of the Canadian Government. The
régimeis in accord with international conventionsrelating to the protec-
tion of the marine environment and reflects Canada's commitment to a
safe and reliable policy. 11reflects Canada's resolve, as a country with
one of the longestand also one of the cleanest, coastlinesin the world, to
protect and preservethe marine environment.
30. Canada has traditionally assumed an active role in interna-
tional efforts to protect the marine environment: Canada played a lead-
ing role in formulating the Stockholm Declaration onthe Human Envi-
ronment; in the drafting of sectionsdealing with marine protection in the
Law of the Sea Convention;and in participating in the United Nation's
Environment Programme to promote global understanding or conven-
tions for the control of marine pollution from land-based sources. The
following paragraphs describe the Canadian environmental protection
régimeand its implementation.
Section II. The Framework of the Canadian Environmental
Protection Régime
31. The evolution of Canada's environmental protectionlegisla-
tion demonstrates its flexibilityin adapting to the technologicaladvances
of the resource exploitationindustry while maintaining its national. and
indeed world-wide,concern for environmental protection.The Canadian
record speaks for itself: in the course of the many seasonsof exploratory
drilling for hydrocarbonsto date, there has never been an accident caus-
ing environmental damage. The explanation for this record of success
lies in the thoroughness of Canadian legislative and regulatoryrequire-
ments.
32. Offshore exploration for hydrocarbons began off Canada's
Atlantic Coastin the early 1960s. During the initial period of explora-
tion, the responsibilityfor administering legislationpertaining the pro-
tection of the marine environment laywith the Department of Northern
Affairs and National Resources. In 1966, this responsibilitywas trans-
ferred to the newly-created Department of Energy, Mines and
Resources. From the outset, the Department of Energy, Mines and
' UnirpdS~oiesMemoriolp. 57para. 9p.63. paras. 100-101.1141 ANNEXES To couNTER-ME.Mo RFCALNADA 353
Resources was actively concernedwith the protection of the marine envi-
ronment. For example. in 1970, owing to potential environmentalhaz-
ards, the Department forbadea core-drilling program off Canada's east
Coast proposed bythe Scripps Institute2.Today, the responsibilitiesfor
protection of the marine environment have been distributed amongst
various departments of the Government of Canada. In particular. the
responsibilityfor the regulation of offshoreoil and gas activities in rela-
tion to the environment under the Canada Oil and Cas Act' and the Oil
and Cas Production andConservation Act4, has been assigned to the
Canada Oil and Gas Lands Administration.
33. Canadian regulations impose stringent requirements directed
specificallyat the protectionof the marine environment upon the indus-
try. These regulations are enforced pursuant to the Canada Oil and Gas
Act and the Oil and Cas Productionand ConservationAct. The Oil and
Gas Production and ConservationAct5 empowers the Chief Conserva-
tion Officer to make orders for the commencement, continuation,
increase, decrease, cessation or suspension of oil and gas production
under specified conditions, as well as to take over the management and
control of any work or activity wherea spill has occurred. The Act also
establishes the liability, withoutoof of fault or negligence,of the oper-
ator of the project for any environmental damage or loss caused by a
spill.
34. The Canada Oil and Gas Lands Administration's rolein pro-
tecting the environment is twofold6.Firsr, its powerspursuant to the Oil
and Cas Production and ConservationAct and regulations made there-
under, enable it to control and enforce the conditions upon whichspe-
cific approvals are granted and to monitor closely the execution of
approved projects.The statute and regulations contain extensive provi-
sions for pollution preventionand for remedial measures if pollution
occurs. It is expected that the new regulations coveringgeophysicalsur-
veys. production structures, pipelines,diving and production will further
enhance the technical safety of oil and gas operations and reduce the risk
to the surrounding environment.
35. Secondly, the Canada Oil and Cas Lands Administration has
the power to include terms and conditions in an exploration agreement
that specifically provide for additional environmental work or special
protective measures.
Appendix6.
'StatuteofCanada 1980-81-82.chap. 81. This Act <vasproclaiforceon5March
1982.
'RcviscdStatutcofCanada 1970, chap.0-4. andStatutcs of Canada. 1980-81-82,chap.
81.
'Appcndix7.
Appendix8.354 GULF OF MAINE Il51
36. The regulations reflect the system of checks and balances
built into the Canadian environmental protectionrégime.For example,
where an application for drillingprogram approval is made, the Canada
Oil and Gas Drilling Regulations7require operators to submit contin-
gency plans for potential emergencies, includingoil spills, that could
arise during the courseof the program. The clearing house for discussion
of these plans is the Resource Management Environmental Committee.
This is an interdepartmental committee composed of representatives
from the Department of the Environment, Department of Transport, the
Department of Fisheries and Oceans, the Department of lndian Affairs
and Northern Development,and the Department of Energy. Minesand
Resources andis chaired by the Canada Oil and Gas Lands Administra-
tion. The Committee reflects a coordinated federal approach to fisheries
and environmental concrrns arising from offshore exploration and
development.Should the cornmitteedeem that the contingencyplan does
not meet the necessary environmental protection requirements, the
project willnot receivedrilling program approval.
37. Even as far back as 1969, the Canadian environrnental pro-
tection régimewas recognized for its strict regulations. Prior to the
Santa Barbara oil spill, although the United States was leasing offshore
areas, the United States system of environmental protectionwas known
to be inadequate. There was agreement amongst knowledgeable indus-
trial circles on this point. In reporting the Santa Barbara oil spill in
1969,the FinancialPost concluded:
"If the unlucky U.S. oil Company working off California's Santa
Barbara Coast had been drilling under Canadian regulations, there
would in al1 probability have been no destructive leak. Federal
supervisionof offshore oil exploration and drilling is purposely and
purposefullystringent'."
38. A number of other aovernment deoartments have been dele-
gatcd responsibilities relating protection of the marine environment.
The De~artmentof Transoort is rcsnonsiblc formarine orotection under
the canada Shipping AC^ t,e ~aii~able Waters ~roréctionAct'O,the
Territorial Seas and Fishing Zones Act" and the Transportation of
DangerousGoods Act".
39. The primary function of the Department of the Environment
in relation to offshore drilling hasbeen to provide technical advice on
environmental issues to operating departments including the Department
' Ordcrin CouncilP.C. 1979-25. 18 January1979. publishedin CCorerrePart II.
Vol. 113.No. 3. 14 February1979.See Appendix9, section79.
Vhe FinnnciolPosl. 1March1969.pp. 3 and6.See Appendix10.
' ReviscdStatutcsof Canada 1970. chap.S-9. as amcnded.
'ORevisedStatutesof Canada 1970. chap.N-19. as amended.
" ReviscStatutcsof Canada 1970. chap.T-7, as amended.
" StaiutcofCanada 1980-81-82,chap 36. as amendcd.il61 ANNEXES TO COUNTER-MEMOW OF CANADA 355
of Energy, Mines and Resources, the Department of Indian Affairs and
Northern Developmentand, more recently, to the Canada Oil and Gas
Lands Administration. However, its legal mandate" extends to al1mat-
ters concerning the preservation and enhancement of the quality of the
natural environment. The Department of the Environment also adminis-
ters other legislationwhich directly or indirectly affects the protection of
the marine environment includingthe Canada Water Act14,the Environ-
mental ConfaminanfsAd", the Clean Air Ad6, the Migrarory Birds
ConventionAct" and the Canada Wildlife
Pursuant to the Fisheriei Act19,the Department of the Envi-
40.
ronment, and the Department of Fisheries and Oceans, share certain
responsibilities relating to the protection of the aquatic environment.The
Department of Fisheries and Oceans administers section 31 of the Act,
which is particularly concerned with protection of the fish habitat. The
Department of the Environment administers section 33, which covers
pollution controllo.
41. Created in 1971, the Environmental Protection Serviceis
responsiblefor dealing with environmental problems resulting from new
developments, forthe control of air and water pollution. and for protec-
tion of the environment against spills of oils and hazardous materials.
Upon the separation of the Department of the Environment from the
Department of Fisheries and Oceans, the Environmental ProtectionSer-
vice assumed responsibilityfor administering the pollutioncontrol provi-
sions of section 33 of the Fisheries Act. To date, no incident has
occurred in the Atlantic offshore area requiring invocationof the provi-
sions forpollutioncontrol.
42. The Environmental Protection Servicealso administers the
Ocean Dumping ConrrolAct". Under this Act, dumping at sea is regu-
lated by a permit system and is applicable to a distance of 200 nautical
miles offshore.No permits for ocean dumping have ever been issuedfor
the Georges Bank area.
43. The Governmentof Canada also draws upon the Environmen-
ta1Assessmentand ReviewProcess for protectionof the marine environ-
ment. The purpose of this Process is to determine the potential environ-
" Deportmeni of ihe Environmcni Aer cstablished under thGovcrnmeni 0)gonirorion
Acc RevisedStatuts of Canada 1970, chap.14 (2ndSuppl.)asamended. '
" ~cvi'sedStatutcs of Canada 1970. chap.2 (1st Supasam'nde'. '
" Staiutcs of Canada1974-75-76.chap.72. as amendai.
l6StatutcsofCanada1970-71-72,chap.47, as amended.
" ~evisedSiatutcs of Canada 1970. chap.M-15. as amended.
Statuts ofCanada 1973-74,chap.21. as amendai.
l9RcviscdStatutesof Canada 1970. chap.F-14,as amcnded.
'OAppcndixI1.
" Statutcsof Canada 1974-75-76.chap.55, as amendai.356 GULF OF MAINE Il71
mental effects of al1 federal projects, programs and activities in advance.
The process was established by a cabinet decision in 1973 and a policy
statement by the government in the House of Commons on 14 March
1974. It is administered by a special federal agency, the Federal Envi-
ronmental Assessment Review Office, which reports direct to the Minis-
ter of the Environinent.
44. The Environmental Assessment and Review Process applies
not only to al1 federal government departments and agencies but also to
extra-governmental projects that require federal financial participation,
or access to and use of lands or waters under the jurisdiction of the fed-
eral government.
45. Although a majority of coastal provinces have legislation and
procedures relating to the assessment and review of environmental
impacts, offshore activities are subject to joint federal-provincial review.
46. Since 1974, in accordance with the basic tenets of the Envi-
ronmental Assessment and Review Process, government agencies respon-
sible for administering federal projects involving federal funds or prop-
erty have been required to assess the effects on the environment of
projects in their early planning stages before any commitments or irrevo-
cable decisions are made. Projects in progress prior to 1974, have been
reviewed in detail by technical agencies on a seasonal basis. These
reviews have been supplemented by on-site inspections of the projects.
47. In the case of major offshore drilling projects proposed since
1974, the process has been fully implemented. The process requires the
initiating government department, usually the Canada Oil and Cas
Lands Administration or the Department of Energy, Mines and
Resources, to prepare an initial environmental evaluation. The purpose
of this preliminary evaluation is to determine whether the project could
have significant environmental effects. The initial environmental evalua-
tion includes a description of the project, a description of the current
environment and resource use, an outline of the potential environmental
impact, proposals to mitigate or prevent the anticipated effect on the
environment and an examination of alternate means of accomplishing
the project.
48. The Department of the Environment advises the responsible
operating agencies of the government on the means of conducting an ini-
tial environmental evaluation. To facilitate this advisory service, the
Department of the Environment has established special committees
known as Regional Screening and Coordinating Committees. Also, the
Federal Environmental Assessment Review Office and the Environmen-
ta1 Protection Service have developed a Guide for Environmenial
Screening to assis1departments in preparing evaluations.
49. If. as a result of the initial environmental evaluation, the ini-
tiating department concludes that a proposed project is likely to have a
deleterious effect on the environment, the project is referred to the Min-
ister of the Environment for review by an Environmental Assessment
and Review panel. 1181 ANNEXES TO COUNTER-MEMORIN OF CANADA 357
1. The EnvironmenialAssessrneniand Review Panels
50. An Environmenial Assessmentand Review panel, usually
consists of three to six members and operates independently of the
Canadian Government. Although the panel reports to the Minister of the
Environment, the latter does not direct its work, much less its conclu-
sions. In keeping with itsindependent and impartial character, al1panel
members are required ta make a declaration demonstrating the absence
of conflict of interest with the project under review.The uniquenessof
the Environmental Assessmentand Reviewpanel does not end here.for
each panel is specially composedto meet the requirements of the pro-
posed project. Panel members usually possess aspecial knowledge,ex-
pertise or technicalcompetence that enables them to fully comprehend
the scopeof the proposed project.
51. The panel reviews.although framed by administrative proce-
dure, are conducted on a relatively informal basis to encourage and
facilitate maximum public participation. The focus of the review is the
Environmental Impact Statement prepared by the agency or corporation
proposingto undertake the project (the "proponent"). Guidelineson the
content of the Environmental Impact Statement are issued by the panel.
Unlike those set by the United States in its reviewprocess,these are spe-
cific guidelines designed to take account of al1 the distinctive environ-
mental characteristics of the area in question.
52. Following itscompletion, the Environmental Impact State-
ment undergoes a detailed review that includes public hearings con-
ducted by the panel. The panel. after gathering the relevant evidence,
submits a report that summarizes the issues, sets forth iis conclusions
and makes specific recommendationsfor change and control or cancella-
lion of the project to the Minister ofthe Environment.The recommenda-
tions are transmitted through the Minister of the Environment to the
Minister responsiblefor the project.
53. To date, virtually al1 recommendations submitted by such
,panels have been accepted and implemented by the Canadian Govern-
ment. The 1979 Lancaster Sound Panel Report has resulted in a
moratorium on drilling for hydrocarbons.The reviewof the South Davis
Strait Project, conducted by the Eastern Arctic Offshore Drilling Envi-
ronmental Assessment Panel, resultedin substantial alterations to the
proposal in order ta encompass the environmental concerns forthe
region. It has become cusiomary for al1major offshore drilling projects
to be referred to the Fcderal Environmental Assessmentand Review
Office. The assessment of the Mobil Oil Canada Ltd. "Venture" Cas
Development in the Sable Island area will take place through the
Department of Energy, Mines and Resources. The review panel
appointed for this project will be chaired jointly by representativesof the
Government of Canada and the Province of Nova Scotia in compliance
with the Canada-Nova Scotia Agreement on Offshore Oil and Gas
Resource Management and RevenueSharing. The agreement also makes
provisionfor the establishment of a joint fisheriesadvisorycommittee to
ensure the protectionof the fish habitat and environment.358 GULFOF MAINE u91
Section III. Canada's Tradition and Practice in Protecting the
Marine Environment
54. Canada has demonstrated that it is comrnitted to a tradition
of protecting the marine environment. One can look to Canada's north,
where oil and gas activity began,as a case study in orderly development.
The following paragraphs explain Canada's actions in protecting the
northern environment and its effective responseto one of the most hos-
tile environmentsin the world.
55. Canada's resolve to maintain a pollution-free Arctic was
enshrined in the Arctic Waters Pollution Prevention Actz2.The primary
objective of the Act is to protect the delicate ecological balance of the
Canadian Arctic.
56. In Canada's Worth. the Environmental Assessment and
ReviewProcess has been fullv used and im~icrnented.Reaional cnviron-
mental studies and ~nvironmmtal Impact ~tatements were prepared for
the Davis Strait, Lancaster Sound and Beaufort Sea projects. Despite
promising geological information in Lancaster Sound, exploration has
been completely halted, due to potential hazards to the environment,
pending further review bythe Environmental Assessment and Review
panel. The Southern Davis Strait Project was granted approval after
substantial revisionsto the planned drillingrogram which tookaccount
of the environmental concerns identified by the Environmental Assess-
ment and Reviewpanel.
57. In the case of the Beaufort Sea Project, cabinet approval for
the project, in 1973, was contingentupon the fulfillment of two condi-
tions:first, that drilling would notcommence before 1976;and secondly,
that the project wouldbe subject to the findings of the Environmental
Assessment and Review Process, which is presently under way. On 8
March 1983, the Beaufort Sea Environmental Assessment and Review
panel issued a "deficiency statement" requiring the proponents Dome
Petroleum Limited, Esso Resources Canada Limited and Gulf Canada
Resources Incorporated to revise their seven-volume Environmental
Impact Statement. The panel decisionhalts public hearings onthe Beau-
fort Sea Project until the proponents properlyaddress the environmental
issues, andprovide more information on the implications of the project
for wildlife, the potential of oil spills and proposed clean-up measures
and the social effect of developmenton the northernregions". The Envi-
ronmental Assessmentand Revie* Process has also been invokedfor the
Arctic Pilot Project, which proposesthe extraction and liquification of
natural gas on Melville Islandand its shipment by ice-breakingtanker to
a terminus on Canada's east Coast.In addition, in 1977, the Department
ofthe,Environment initiated the $7.5 millionArctic Marine Oilspill Pro-
gram lo develop measures with whichto counter oil spills in ice-infested
waters.
" RevisedStatutesof Canada1970,chap.2 (1st Suppl.),asamended.
" Appcndix12.1201 ANNEXESTO COUNTER-MEMORIALOFCANADA 359
B. THEATLANTIC REGION
1. The EnvironmentalAssessmentand ReviewProcess
in the Atlanticegion
58. The tradition establishedin the Canadian North indicates the
way in which Canada intends to proceed when such development occurs
off the eastCoast.Indeed, the reviewprocesshas already begun withthe
Offshore Labrador EnvironmentalStudy Program. In addition, environ-
mental overviewsare being prepared forthe Grand Banks. Labrador Sea
and the Scotian Shelf.
59. Full-scale environmental assessmentsare scheduled for the
"Venture" gas development off Sable Islandz4,and the "Hibernia" oil
development off Grand Banks. The Department of Energy, Mines and
Resources, having conducted initial environmental evaluations, has
referred these projects to the Federal Environmental Assessmentand
ReviewOffice for reviewby independent panels. Both panels have been
formed and, having issued specificguidelines,are awaiting production of
Environmental Impact Statements by the proponent, Mobil Oil Canada
Ltd.
2. The BaselineStudies Program and Other Studies
60. Prior to 1979, the Department of the Environment routinely
collected "baseline" (Le., basic data) information including data on
weather, ice, air quality, water quality, streamflow, tides, forestry
resources, ecologicalland units and migratory birds (including seabirds).
61. In 1979,the Department of the Environmentset up the Base-
line Studies Program - an ongoing program with a mandate to under-
take mapping of ecologicallysensitiveareas, studies of seabird colonies,
collection ofclimatological statistics and studies of icebergs, wind and
sea. The department has undertaken other studies addressing the need to
protect the marine environment off the East Coast. These studies have
focused primarily on the requirement IO developprocedures for contain-
ment and clean-up in the event of an oil spill. With this object in mind,
sensitivity maps including data on the patterns ofil-slickdispersal and
movements of ice and wind have been drawn up. These activities have
resulted in the development of the Canada-United States Coast Guard
Marine Pollution ContingencyPlan signed by Canada and the United
States in June 1974;and the Joint Canada-Denmark Marine Pollution
Contingency Plan.
62. In responding quickly and providing advice to the States
involvedin the Arrow, Argo Merchont and Kurdistan cases (al1of which
involved the spills of large amounts of oil from a tanker). Canada
demonstrated ils competence to deal with the crises and hazards pre-
sented by oil spil10 the marine environment.360 GULFOF MAINE [211
63. In 1970, the Arrow went downin Chedabucto Bay, Nova
Scotia. releasing 6,810,000 litres of bunker oil. The chronic effects of
this spill were extensively researched and monitored by Canadian
authorities. In the fall of 1976, the Argo Merchanr went aground off
Nantucket releasing thousands of metric tons of oil. The danger of oil
pollution to Canadian waters was enhanced by southerly prevailing
winds. indeedthere were reports of oil seen in the Georges Bank area.
Patrols from the Department of National Defence and the Department
of the Environment mounted constant surveillance missions forevidence
of damage to seabirds. In March 1979.the British tanker Kurdistan split
in half, some 80 kilometres northeast of Sydney, Nova Scotia, releasing
7,000 metric tons of oil into Cabot Strait. The Department of the Envi-
ronment advised on appropriate means of handling the crisis which
included salvageof part of the ship and the safe disposalof the remains.
Section IV. Conclusion
64. Although the Canadian environmental protection régimemay
not beas complexas that of the United States, it has proven itself to be
effective and in some ways superior to the system used by the United
States. The fact is that,during the period betweenthe enactment of the
Outer Confinenfol SheiJ Lands Act2' in 1953 and the Santa Barbara
Channel Oil Spill in 1969, the United States environmental protection
régimewas barely operative.The early situation has been summarized in
a United States Congressional reportas follows:
"Between the passage of the Outer Continental Shelf Lands Act and
1968,the Interior Department conducted 23 OCS oil and gas lease
sales. A total of 1,417tracts covering 6,411,626acres were soldfor
purposesof explorationand development.
Essentially the OCS process was subject to little national scrutiny,
although lwalized impact, particularly in the coastal States border-
ing the Gulf of Mexico,was the subject of someconcern.
A major change wcurred when an OCS drilling projecl in the Santa
Barbara Channel was the scene of a major blowoutin January 1969.
The resulting oil spill damage to the ecologyof the Channel raised
the OCS issueto national attention'b."
65. Although the United States régime was much improved by
legislativeamendments during the 1970s,there is no evidenceto suggest
that, today, it is more effectivethan its Canadian counterpart. In any
event, the basic environmental objectives of Canada and the United
States are no1 only similar but also compatible. Both countries have
already cooperated fruitfully in developing measures for protection of
the marine environment. They have agreed on an East Coast Oil Spill
Contingency Plan and - with the International Joint Commission
" UnitedStates Outer ConrincnrolShelf LondsAct1953. chap. 345. 67 Siatutcs 462
(1953)codifiat 43 UnitedStates Codesecs. 1331-1343(1976).
l6Reportby the Ad Ha: Comrnitteean thOurer Conlinenta1Shel/ LondsAAmend-
mentsof 1977. H.R. RepNo. 590. 95th Congrcss.1st sess. (1977). reprintedin 1978
U.S. Cong.& Ad.News 1450. 1481. Alrostt Apptndix 14.[221 ANNEXESTOCOUNTER-MEMONALOFCANADA 361
established under the Boundary Waters Trealy of 1909 - on a broad
range of environmental issues including the water quality of the Great
Lakes. These achievements are clear indications that Canada and the
United States have similar aims and concerns that provide a solid foun-
dation for cooperativeaction in protecting the marine environment.
66. In summary, Canada has enacted a substantiai body of legis-
lation delegating responsibility for environmental protectionto various
government departments. These responsibilities complementeach other
and fit into a system of checks and balances to ensure that no aspect is
missed. The planning of oil and gas operations on the Canadian offshore
requires careful consideration of the physical environment's effects on
operations as well as the potential impact of the operation on thephysi-
cal, biologicaland socioeconomicenvironments.It is important to ensure
that such effects are determined in advance, so that preventive action
can be taken. The purpose of the system is to ensure that oil and gas
operations are subjectto environmentallystrict but reasonable conditions
and that surveillance occursat al1stages of activity.
67. The Environmental Assessmentand Review Process comple-
ments the regulatory approvalsand controls administered by the Canada
Oil and Gas Lands Administration on a day-to-day basis. Canada's tra-
dition in the North, one of the most fragile ecological régimesof the
world, is clear evidence ofits commitment to environmental protection.
The special risks of spillage in the production and transportation of
hydrocarbons in the marine environment, the fragility of the ecological
system and the desire to protect this environment adequately, are the
raison d'être for Canadian legislation in setting up a régimethat, to
date, has not failedo achieveits objective. CHAPTERIII
CHARTING THE GULF OF MAINE AREA
Section 1. Introduction
68. Charting the Atlantic Coastof North America began during
the first centuries of settlement by the colonial powers of Europe -
principally Great Britain, France and Holland. In the Gulf of Maine
area, Great Britain dominated this activity.From as early as 1717, for
example, British naval officers charted the coasts of Nova Scotia and
New England from Cape Breton to Long Island. In 1776, Joseph Des-
Barres - a remarkable Nova Scotia hydrographer and statesman -
published the first scientific surveysof the Gulf of Maine area. After its
establishment in 1797,the British Hydrographic Office conducted chart-
ing work in the Gulf of Maine area on behalf of Nova Scotia and New
Brunswick, and, after 1867, on behalf of Canada. It stationed senior
hydrographers in Saint John, New Brunswick.and Halifax, Nova Scotia,
many of whom became prominent colonial figures.Their work was of a
quality and reliabilityunmatched by United States hydrographers until
the second half of the nineteenth century.
69. The United States Memorial is wrong, therefore, in suggest-
ing that only the United States Government assumed responsibilityfor
charting the Gulf of Maine'. In fact, in addition to the work undertaken
by Great Britain in the eighteenth century, the British Hydrographic
Office led newdevelopmentsin cartography in this area for much of the
nineteenth century. For example, it issued the first chart to show bathy-
metric contours of Georges Bank in 1834'.This chart was produced on
the basis of hydrographic work undertaken from Nova Scotia and New
Brunswick. It has been updated until modern times andwas the official
chart used by Canadian fishermen and military navigatorson Georges
Bank throughout the nineteenth and twentieth centuries until, in 1968,
the Canadian Hydrographic Service published Chart 4003 (referred to
in the Special Agreement) which is based on the successorsof the origi-
nal 1834 chart.
70. Since its founding in 1904, the Canadian Hydrographic Ser-
vice has dedicated most of its resources to the charting of previously
unknown waters in the Arctic and to the improvement of charts of
Atlantic and Pacific coastal waters, includingthose of the Gulf of Maine
area. Nevertheless, the historical record outlined in this chapter shows
that Canada, and, prior to 1867, the colonies of Nova Scotia and New
Brunswick, havecontributed in both colonial and modern timesto the
suweying and charting of the Gulf of Maine area, including Georges
Bank.
'UnircdStolesMernorial,p.67para. 109.
'Thus. contrary to lhc claim made in the Uniicd States Mcmorial, the 1844 Edmund
Blunt chart was not the first to show bathymctric conGcargmoBank. In fact,
United States hydrography gcncrally laggcd behind new dcvcloprncnis in survcying and
mapping until the last hall of the ninctccnthUniled Sioies Memoriolp. 67,
para. 108. ANNEXESTOCOUNTER-MEMORIALOFCANADA 363
Section II. Charting During the Seventeenth and
Eighteenth Centuries
A. CHARTING BEFORE SOUTHACK
71. The Gulf of Maine area won notoriety among early naviga-
tors and cartographers not only because of the dangerous shoal waters
on western Georges Bankand Nantucket Shoals. but also because of the
force of the tidesflowing into and out of the Bay of Fundy. These haz-
ards were rendered even more dangerous by the rudimentary techniques
of navigation that existedduring the first two centuries of North Ameri-
can settlement. Longitude could not be measured at sea, so mariners
sailed to the latitude of the port of destination, and then cautiously
approached the Coastfrom far offshore, using a soundinglead to feel the
rise of a bank or shoal in lime to avert disaster. This was made easier if
chart makers could indicate banks and shoals as accurately as possible.
72. Georges Bank, therefore, first appeared on the so-called
Velasco Map', drawn sometime around 1610.Contrary to the suggestion
in the United States Memorial4,Georges Bank was mostoften perceived
in the earlycharts of the Gulf of Maine area, as an offshore bank, lying
either between,or slightlyseaward of, the opposite coastsof Nova Scotia
and Massachusetts. The Velasco Map illustrates the perceivedproximity
of Georges Bank to southwest Nova Scotia. The William Alexander
Map5 (circa 1623) also depicts Georges Bankseparated from Nantucket
Shoals to the south and from Browns Bank to the north. It shows
Georges Bank as lying mid-way between NovaScotia and Massachu-
setts. This map, named after the first governor of Nova Scotia, is
remarkably accurate for its day and reflects the symmetry of the oppo-
site coasts in the Gulf of Maine area. In 1677, John Thornton issued a
chart in London depicting the juxtaposition of New Scotland and New
England6. It is interesting to note the prominent representation of the
Bay of Fundy on this chart and the depiction of Georges Bank as
stretching from Cape Sable to an area seaward to and separate from
Cape Cod and Nantucket Shoals. The Herman Moll Map', issued in
London in 1715, also depicts Georges Bankstretching from Cape Sable
to the vicinityof the Great South Channel. which separates it from Nan-
tucket Shoals. The Henry Popple Map8,dating from 1733,more accu-
rately depicts Georges Bank as a detached offshore bankseparated from
the banks to its north andsouth by channels. This view ofGeorges Bank
frequently reappeared in French, Dutch and British charts throughout
the eighteenth century.
'Appendix 15.
'The UnitedStates MernorialinaccuratelydefinesGcarges Bankas connectedacrossthe
Great South Channetla NantucketShoaUniredSraresMemorinlp. 23, paras.32-33.
'Appendix 16.
Appendix17.
'Appcndir18.
'Appendix19. GULFOF MAINE
B. CHARTING BY SOUTHAC KND DESBARRES
1. The Southack Charrs
73. In 1717, Captain Cyprian Southack, a Royal Navy officer,
published a chart of parts of the coasts of New Brunswick, NovaScotia
and New EnglandP.By 1734,Southack had published theNew England
Coasting Pilot, which included improved versionsof his chart extending
from Long Island to Cape Breton in Nova Scotia. As an officer, South-
ack'scareer was as closelyconnected to Nova Scotia as to New England.
The United States Memorial is misleading, in referring only to his New
England connecti~n'~.Apparently Southack navigated entirely by com-
pass, lead-line and log-line so that- although his charts display the
coast in considerabledetail- they are not accurate. Such "dead reckon-
ing" navigation would give poorresults in the Gulf of Maine area
because of the strong tidal currents, especially in the Bay of Fundy.
Georges Bank,however, is depicted as lying mid-waybetween, and sea-
ward of, Cape Sable and Cape Cod. The Great South Channel - called
on Southack's charts the South Channel - is clearly indicated as sepa-
rating Georges Bank from the Nantucket Shoals. Southack's charts
identify the Gulf of Maine as the "Sea of Nova Scotia" and the "Sea of
New England", which meet over "St. GeorgesBank". The United States
Memorial is wrong, therefore, in saying that the Gulf of Maine is
labelled the Sea of New England in Southack'schart".
2. The DesBarres Charts
74. In 1776, Nova Scotia's JosephDesBarres (1721-1824) pub-
lished a chart entitled The Coast of New England. Although this chart
was surveyedand drawn for the Royal Navy, DesBarres was allowed to
publish it privately as a bonus for his work.It represents the firstien-
tific survey of the Gulf of Maine, including Georges Bank,and was a
vast improvementon the workof Southack. DesBarreswas a trained sur-
veyor and could take astronomic observationsto obtain geographic posi-
tions. By 1769, he had completed charts of Sable Island, the eastern
coast of Nova Scotia, Chedabucto Bay, Richmond Island andthe Gut of
Canso. His major work was the Atlantic Neptune, which was published
in 1777, 1780, 1781and 1784.It consistedof five books:Book 1,"Coast
and Harbours of Nova Scotia"; Book II, "Coast and Harbours of New
England"; Book III, "Charts of the Saint Lawrence"; Book IV, "Coast
of North America South of New York"; and BookV, "Various Viewsof
the North American Coast"". In 1778, DesBarres published a book of
sailing directions entitled Nautical Remarks and Observations on the
Coast and Harbours of Nova Scotia. The Atlantic.Neptune was so reli-
able that it waû still quoted as the source of some of the features on
The Southack chart ir reproduced in tUnired Siores Memoriol. Documenlory
Annexes.Vol.II. Anne23.
'OUniredSraiesMemorialp. 64,para105.
" UnitedSloresMemorial.DoeumenloryAnnexes.VolIIAnnex23.
Appcndir20. '1261 ANNEXESTO COUNTER-MEMORIALOF CANADA 365
charts drawn almost 100 years after it first appeared". DesBarres'con-
tribution to the charting of the Gulf of Maine area remained unmatched
for more than 30 years until the British Hydrographic Office undertook
new surveys of the area in the 1830son behalf of Nova Scotia and New
Brunswick.
DesBarres was born in 1721, probably either in Paris or in
75.
Basle, but as a young man he movedto England and entered the British
service". In1752and 1753, he attended the Royal Military Academy at
Woolwich.near London,and in 1756.he was commissionedin the Royal
American Regiment. He began charting in Canada during the winter of
1758, when he worked on large-scalecharts of the Saint Lawrence
River. After the fall of Québec. he worked on maps of the city and
vicinity. He moved to Nova Scotia in 1764, and obtained a commission
from the Admiralty to make charts of the waters off Nova Scotia. He
became a major landowner and public figure in Nova Scotia and New
Brunswick and, in 1784. he was appointed governor of Cape Breton. In
1805,at the age of 83, he was appointed lieutenant-governorof what is
now the Canadian Maritime Provinceof Prince Edward Island, where he
died in 1824at the age of 103.
C. CHARTIN ACTTHE END OF THE EIGHTEEN T HNTURY
76. The United Kingdom established the British Hydrographic
Office on 12 August 1795. Previously, Britishcharts had been issuedin
a haphazard manner, and surveys had tended to be semi-officialin char-
acter despite the fact that those engaged in such wor- for example,
Southack and DesBarres - were employedand paid by the Admiralty.
After 1795, the British Hydrographic Office became responsiblefor the
provision of charts for Great Britain and ils colonies, such as Nova
Scotia and New Brunswick. This enormous task required data from ail
reliable sources. The Hydrographer of the Navy enlisted the services of
al1sailing masters of the Royal Navy to obtain information with which
to augment or amend existing charts. The result was that British charts
gradually increased in number and improved in authority, and a reliable
system was established forkeepingthem up todate. Publishers ofprivate
charts continued to operate, however, and were given free access to the
dataand publications of the British Hydrographic Office.
77. In contrast, for many years after American independence in
1776,the only charts produced in the United States were from the draw-
ing offices of private publishers. American publishers had access to the
British Hydrographic Office surveys,as did their British counterparts. It
was the policy of the Hydrographic Office to improve the availability of
reliablecharts without regard to their national origins. However,United
States publishers issued unreliable charts of the Gulf of Maine area even
l3Duringthe 1830san1840sthe UnitedStates privaiechart publisher,EdrnundBlunt,
lrcqucntlyreferredta DesBworksin his correspondencewith Admiral Beaufortof
the British Hydrogrc ffice. Appcndir21.
''G.N. Evans:UneomrnonObduroreTheSeveral PublieCoreofJ.F.W. DesBarres.
Toronto. UniverofTorontoPress. 1969.366 GULF OFMAINE 1271
after the DesBarres charts were generally available. In 1797,the pub-
lishing house of Edmund Blunt issued the chart by Captain Paul Pink-
ham referred to in the United States Memorial, entitled A Charr of
Georges Bank". It is in error by almost a full degree of longitude. Such
an error in field astronomy - almost 50 nautical miles - was unusual
by that time, and thechart would have been highlydangerous for use by
anyone approaching Georges Bank from the open sea. (In the 1790%
junior surveyorsof the Hudson's BayCompany were taking observations
for longitude in western Canada to within a probable error ofless than 9
kilometres.) The earlier Southack charts were drawn before these new
techniques were available,but DesBarres'surveys made in the 1770s.
more than 20 years before the Pinkham Chart, were significantly more
reliable. Pinkham may have used a local datum from which to calculate
longitude, but this would not render the chart any safer to mariners
unfamiliar with its convention.His publisher, Edmund Blunt, corre-
sponded regularly with Admiral Beaufort of the British Hydrographic
Office and therefore should havebeen aware that techniques formeasur-
ing longitudeexistedI6.
78. Acomparison of the longitude of Cape Cod on the Pinkham
and British charts of that date indicates the gravity of Pinkham's error.
Cape Cod is traversed by longitude 70°W, not 69OWas on the Pinkham
Chart. The Aaron ArrowsmithChart", published in London three years
after the Pinkham Chart, was much more reliable. It is entitled A Chart
of Part ofNorth Americafrom Cape Hatteras ta Cape Cansoand cred-
its the new information it contains to the surveys of Captain Vinicomb-
Penrose of the Royal Navy, conducted between 1795 and 1798. A note
on the chart indicates that lunar distance tables were used to check the
chronometers used on the survey.Pinkham either did not check the read-
ings he took for his chart, or did not knowof the existenceof lunar dis-
tance tables.
Section III. The Nineteenth Century
79. By the beginning of the nineteenth century, the captains of
the new, larger sailing ships were aware of flaws even in the charts of
the Gulf of Maine area produced by British hydrographers. Through
new position-fixingtechniques, they were able to plot their position at
sea withina probable accuracy of about ten nautical miles.This advance
was useless. howeverw, ithout equallyprecisecharts. The British Hydro-
graphie Office. therefore. assigned Captain Thomas Hurd of the Royal
Navy to survey the entrance ta the Bay of Fundy as a start in the gen-
eral improvement of the charting of the Gulf of Maine area. Hurd's
work was hamperedat first by the Napoleonic Wars and then was inter-
rupted completely by the War of 1812, during which al1 available17.81 ANNEXESTO COUNTER-MEMORIAL OF CANADA 367
resourcesin British North America weredevoted to repellingthe Ameri-
can invasionof Canada.
80. In the spring of 1816,Anthony Lockwood, wholivedin Nova
Scotia and was a senior hydrographer in the British service,resumed the
work. Lockwood'sefforts resulted in a greatly improved set of large-
scale charts and sailing directions for the entire Nova Scotia and New
Brunswick coasts, including Georges Bank. The Nova Scotia shore was
depicted on 12charts. Lockwood'ssurvey of the Bay of Fundy and the
south Coast of New Brunswick was covered on a two-sheet chart pub-
lished in 1824, entitled A Chart of Grand Manan, Passamaquody Bay
etc. in the Bay of Fundy,principally takenfrom a survey by Captain
ThomasHurd RN with correctionsby Anty Lockwood,Master RN and
Surveyor General of New Brunswick. In 1824, the British Admiralty
also issued achart based on Hurd's survey entitled A Chart of the Bay
of FundylB.It, and a chart entitled A Chart of Part of the Coast of
Nova Scotia" issued in1829and based on Lockwood's surveys il,lustrate
the high degree of proficiencyobtained by Nova Scotia and New Bruns-
wick hydrographers. The soundings are well indicated and sailing direc-
tions are included onthe face of the charts.
B. THEUSE OF CHARTS BY FISHERMEN
81. There is no doubt that the Lockwoodcharts end sailing direc-
tions assisted fishermen working on the various banks in the Gulf of
Maine area. Fishermenrelied onthe compassand lead-lineas their main
instruments for navigationthat, together with their inborn ability toi-
mate hull-speed, wereadequate for sailing to the fishing banks in the
Gulf of Maine area. However, they did need good coastal charts with
which to run for shelter in the case of sudden storms, and this was
exactly what the Hurd and Lockwood charts and sailing directions pro-
videdZ0E. arly hydrographersconcentrated on the near-shore navigational
hazards for this reason. In colonial Canada, they surveyed harbour
approaches and the entrance to the Bay of Fundy, known forits strong
tides. In the United States, they charted theoal areas in the vicinityof
the Great South Channel approaches to Boston Harbour. Deep-sea
charts of offshoreareas such as Georges Bank, did not appear until after
the near-shore work wassufficient to ensure safe navigation in these
more dangerous waters. And it was the British Hydrographic Office.
using hydrographers based in Nova Scotia and New Brunswick, that
issuedthe first authoritative chart of Georges Bank.
82. In 1832, Admiral Beaufort, Director of the British Hydro-
graphie Office, decidedto publish fivesmall-scaledeep-seacharts of the
Appendix23.
t9Appcndia24.
a Appendix25.368 GULFOF MAINE ~91
coastal waters from Newfoundland to New York entitled Norfh
America, East Coast. The first edition of the most southerly of these,
Sheet V", appeared in 1834 following the.survey work of the HMS
Blossom and using the earlier work of Lockwood,Hurd and DesBarres.
It is nowconsidered to be the first modern chart of the Gulf of Maine
area, including Georges Bank, for ils design broke with the past. Gone
were the long and relatively useless compass direction lines that were a
feature on older charts such as those produced by Pinkham and pub-
lished by Blunt in the United States. Those lines purported to give
mariners bearings but actually did little more than clutter up the face of
the chart. In their place, submarine contours appeared for the first lime,
drawn with a dot-and-dash coding that allowed navigators to see at a
glance the depth indicated by the contour. This contouring system is still
in use today on the charts produced by Canada, the United Kingdom
and the United States.
83. Sheet V was updated periodicall; followingils initial publica-
tion, and was reissued with corrections in 1838 and given the number
268. A third edition appeared in 1849 and, in 1861, a new chart was
issued combining 268 and 257, a chart of more northerly waters. The
new chart was given the number 2670 and the name Halifax to the
Delaware", and was reissued withcorrections in May 1862, December
1863, November 1864and August 1872. The August 1872 version was
reissued with small corrections in November 1872, February, April,
June, July and August 1873. In 1895, a new edition appeared. Major
corrections were added in January 1908, April 1913, October 1917,
January 1928, December 1932, April 1935, October 1937, December
1942, April 1944,April 1955, October 1966 and April 1974. Another
new edition was published in March 1976, with major corrections added
in February 1981. Thus. right through to modern times, the British
Hydrographic Office has reissued and updated Sheet V and ils succes-
sors, largely on the basis of the work of hydrographers who were, or
became, Canadian residents". Indeed, Sheet V has been widely used by
civil and military navigators throughout Canadian history. In every
respect, it can be considered not onlythe most authoritative chart of the
Gulf of Maine area - unequalled by United States charts until the late
nineteenth century - but also the officia1Canadian chart of the Gulf of
Maine area, including Georges Bank, until the Canadian Hydrographic
Service issued Chart 4003 in 1968. The British Hydrographic Office
remained the Hydrographic Service of Canada until 1904, when the
Canadian Hydrographic Service was established, and even after that
date its charts continued to have an official status in Canada.
84. The discoveryof Cultivator Shoal on western Georges Bank is
an interesting example of the British Hydrographic Office's expertise
"Appcndir26 reproducesSheet V fromthNorth Ameriea. EoCoast seriesandshows
theertentof Britishchartingin theGulfof Maineare1834carriedout on behalfof
NovaScotiaandNew Brunswick.
"Appendix27.
"In the last half of the nineteenth ccntury, the British Hydrographicalsoce
exchangeddatawiththe UnitedStatesCoastSurveyforthNorth Amerieo. Eosl Cmi
series,particularlyfor thewaterssouthof the Gulfof Mainearea.i301 ANNEXES TOCOUNTER-MEMORIAL OFCANADA 369
and its efficient system for keepingthe North America. East Coast ser-
ies up-to-date. The location of the shoal was suspected formany years
before it was surveyed,and on an early versionof Sheet V it was called
"Clarkes Bank (positiondoubtful)". Becauseit normally has 6 metres of
water over it, Cultivator Shoal was not a danger to shipping until larger
ships began navigatingin the Gulf of Maine area in the nineteenth cen-
tury. In 1865,an American ship hit the shoal en route from Liverpoolto
New York. In June 1865,the United States sent a ship to find and sur-
vey this hazard, and the United States Navy issued asmall chart show-
ing the shoal and giving its position. By August 1865 - within two
months of that survey - the British Hydrographic Office took steps to
showCultivator Shoal as a correction to Chart 2670, and by 1867 it was
depicted on a new edition of the chart. By contrast, the United States
Coast Survey (the American equivalent to the British Hydrographic
Office) had no such system for up-dating charts, and consequentlyCul-
tivator Shoal was not shown onits charts until 1873,eight years after its
discoveryand appearanceon British charts.
D.THESURVEYSOFOWENANDSHORTLAND
85. Although the Lockwood charts of the coastline of Nova
Scotia and New Brunswick werean improvement on the DesBarres
charts. they were not equal to those being issued by the Hydrographic
Office for the BritishIsles. Thus, Captain William Fitzwilliam Owen, a
senior hydrographer in the British servicewho was a resident and promi-
nent public figure in what is now Canada, proposed a new survey of the
Gulf of Maine area. In 1838, Owen was elected to the legislative
assembly of New Brunswick and became a cabinet minister. He corre-
sponded with Admiral Beaufort of the British Hydrographic Office to
initiate the survey", and in October 1842, succeeded in having the
hydrographic ship Columbia assigned to the work. The British Hydro-
graphie Office also established a permanent hydrographic station in
Saint John, New Brunswick. This was the beginning of a surveying
enterprise that was to continue in the Gulf of Maine area for the next 25
years. Owen. however, because of his age, was soon succeeded in 1847
by P. Frederick Shortland, who in turn was replaced by A. P. Scott in
1865. Scott finished the survey in 1867, the year New Brunswick and
Nova Scotia, together with Ontario and Québec,formed the Canadian
federation.
86. The United States was slowto organize its own equivalent to
the British Hydrographic Office. A false start was made in 1816, but
funds lasted only one year". Thus, the United States Memorial is
''Appcndir 28.
23CentrnnialCelebrotiofthe UnitedStaresCoorandGeodetieSurvey.Apri5 and 6.
ment PrintingOflic1916.tic Survey.Deparimentof Commerce.Washington.Govern-370 GULF OF MAINE t311
misleading in suggesting that the United States has had a permanent
equivalent to the British Hydrographic Office since Thomas Jefferson
merely proposed such an "agency" in 180726.In fact. it was not until
1832 that the United States Coast Survey was permanently established.
Its first superintendent.F. R. Hassler. was an excellent geodesist but an
iiiexperienced hydrographer. He installed a coastal triangulation system
before work was started on chart publication. Because of this concentra-
tion on onshore surveying. the Survey did not publish its first chart until
1844. Its early charting program gave priority to the harbours and
approaches to New York and Philadelphia. then the major United States
ports. By 1850. a start had been made on surveying United States har-
bours in the Gulf of Maine. In 1851, large-scale charts were published
for Boston and Nantucket harbours. A small-scale chart (1:200.000) was
also drawn of Nantucket Shoals, but liitle work was done on offshore
areas. Indeed. the first United States chart that approximated the cover-
age of the British Sheet V in the Gulf of Maine area was published in
1858. but its soundings did not extend east of longitude 6SoW toward
the western extremity of Georges Bank2'.The chart itself extends 2" fur-
ther east, but this area was left blank despite the fact that Georges
Shoal, the most dangerous impediment to navigation in the Gulf of
Maine area, is located there. It was not until 1864 that the United States
Coast Survey issued its first chart of the whoie of Georges Bank. The
1834 British Sheet V - and its successors - was therefore the only
official general navigational chart depicting the dangerous Georges
Shoal for more than 30 years.
Section IV. Private ChartPublishersin the NineteenthCentury
87. Throughout the nineteenth century, private chart publishers
borrowed from government agencies for the production and sale of
charts. Admiral Beaufort of the British Hydrographic Office willingly
helped both British and American chart publishers. In 1835, he
explained his policy to the Lords Commissioners of the Admiralty, when
he stated:
"The true object of al1 Government Surveys is the general benefit of
al1 mariners, and not merely the improvement of Charts for HM
ships.
1have therefore always freely imparted every species of information
to every seaman, pilot or chart maker who has applied for it with
permission to use it in any way towards any way he pleased; and 1
presume that their Lordships will readily comply with (this)
requestZs."
This policy accounts for the quick appearance of private charts after the
publication of official charts carrying new information. For example,
the invaluable British Sheet V, which gave an excellent depiction of the
l6UniredSlares Mernoriap.70, para121.
" Appcndir 29.
" United Kingdom. HydrographiOffice.Extracts1831-1837,p.190.Taunton, Hydre
graphicOffice1835.i321 ANNEXES TO WUNTER-MEMORIAL OFCANADA 37I
Gulf of Maine in 1834, was quickly followed by a much larger chart
published in London in 1835 by J. W. Norie, entitled Coast of North
America From Cape Canso to Halifax and from thence to
PhiladelphiaZq . nited Stateschart makersalso adoptedthe new style of
charting introduced by the North America,East Coast series,especially
the British SheetV of the Gulfof Maine area.
SectionV. The Twentieth-CenturyCharting of the
Gulf of Maine Area
88. By the first decade of the twentieth century, the Gulf of
Maine area had been completely surveyed. AI1 banks, shoalsand reefs
covered by less than 20 metres of water had been carefully charted.
Throughout the Gulf, enoughsoundings had beentaken to delineate the
underwater terrain with enough accuracy for navigation. The British
H~drographic Office disseminated this information throughout the
world, and, as a result, France, Germany and other countries published
charts of the Gulf.
89. In 1904, Canada look over responsibility from the Briiish
Hydrographic Office for charting the watersoff ilsshores;and by 1911,
the Canadian Hydrographic Service was conducting most of this work.
Canada, however, has the longestcoastline in the world and most of it
still remained unchartedin 1911.Thus the Canadian Hydrographic Ser-
vice did not immediately publish ils own charts of the offshoreareasthat
were already adequately surveyed. Excellent British-Canadian charts
already existed for the Gulf of Maine area and theyretained their offi-
cial status in Canada even after 1904. Moreover, two world wars
stretched the Canadian Hydrographic Service's resources to the breaking
point. After World War II,al1possibleefforts were madeto survey the
Arctic Ocean. As a result, it was not until 1968 that the Canadian
Hydrographic Service issuedChart.4003 of the central Gulf of Maine
arealo. Itsraison d'être was to provide seamenwith a small-scalechart
courdinatcd in symbols. colours. sounding patterns. çis.. with the large-
scnlc chart> of harbour an~roachesalreadv ~ublished b\ tiie Canadian
Hydrographic Service.and'so facilitate the-changeoverf;om deep-seato
harbour charts". Chart 4003 is in every respect the successorof the
original 1834 British-Canadian Sheet V of the Gulf of Maine area. The
United States Memorial" is misleading,therefore, in suggestingthat no
Canadian chart of the Gulf of Maine existed before1968. Besidespre-
paring the numerouslarge-scalecharts of harbour approaches.Canadian
and colonial hydrographers in the British service - Southack, Des-
Barres, Hurd, Lockwood and Owen - contributed at every step to the
modern charting history of the Gulf of Maine area, including Georges
Bank.
Appcndir30.
an27tSeptember1981.itcdwith ihcRcgisalaihc Court wiihthe CorradionMemorioi
" Thc CanadianHydrographicServicealsoissucda iishcrieschart, Char18005. io assis1
lishermenon GeorgesBank.This chart has beendepasiiedwith the Registrarof ihc
Court.
" UniredSiolts Memorio/.68.para. 13.372 GULF OF MAINE i331
Section VI. Thematic Maps and Chartsof the Gulfof Maine Area
90, In 1920, Canada published a map that shows the distances
from Canadian and United States ports to the fïshing areas on Georges
and other banks3'.This map, which illustrates the proximity of Georges
Bank to Canadian fishing ports, was reprinted with some changes in
1932.The Canadian Royal Commission investigatingthe fisheries of the
Maritime Provinces published a similar chart of the principal fishing
grounds off the Atlantic coast of Canada in 192P4. And, in 1929, the
British publisher, Albert Close, issued a chart entitled The Fishermen's
and Yachtsmen'sChari. Cape Cod to Ne~foundland'~.It was printed in
Canada by the Mortimer Company, and contained data from "the Fish-
eries Departments of the US., Canadian and French Govts". In 1936,
another version of the chart was published under the title Close'sHad-
dock, Cod and Halibui Chari of the Guif of St Lawrence.Banks of
Nova Scoria and Newfoundland. This latter chart contains even more
information on the bottom conditions of Georges Bank, gathered from
Nova Scotia, Newfoundland and Gloucester skippers. The Close Chart
was reprinted in 1950. The Canadian Hydrographic Service has also
commenced publication of a series of natural resources maps of the sea-
bed of Canada's continental shelf, including the Gulf of Maine area'6.
Several maps have been issued for the Gulf of Maine area covering
Georges Bank.
Section VII. Conclusion
91. During the eighteenth and nineteenth centuries, the Royal
Navy and the British Hydrographic Office - on behalf of the British
Empire, including Canada - completely charted the Gulf of Maine
area, and produced the first reliable charts of the navigational hazards
on Georges Bank. From the first half of the nineteenth century, the Brit-
ish Hydrographic Office used professional hydrographers in Nova Scotia
and New Brunswick to carry out ils responsibility for charting the
Canadian coast and ils offshore waters.
92. In 1834, the British Hydrographic Office issued the first
chart of Georges Bank using modern symbolization - Sheet V in the
North America, East Coast series. More than 30 years passed before the
United States issued an equivalent chart in 1864. The British Hydro-
graphie Office - acting on behalf of Canada - maintained an estab-
lishment at Saint John, New Brunswick, from 1842 until 1867. and
issued revisionsof Sheet V periodically through 1981. It also provided
hydrographic services for al1 of Canada until 1904, and thereafter
Canada continued to use existing British charts for civil and military
navigation. Despite pressing needsto survey frontier areas in the Arctic
and elsewhere, the Canadian Hydrographic Service issued two deep-sea
charts of the Gulf of Maine area and Georges Bank in the 1960s.as well
3'Appcndix31.
1'Appndix 32.
" Appendir33.
'6~~pend?n34.
\1341 ANNEXES TOCOUNTER-MEMORIAL OF CANADA 373
as numerous large-scalecharts of coastal approaches and harbours of
New Brunswickand Nova Scotia from as early as the 1920s.
93. In the United States, official charting viriually started from
scratch in 1832. lt was not until 1864 that official government deep-sea
charts of the Gulf of Maine were published. Furthermore, the United
States charts were beneficiaries,to some extent, of the British-Canadian
charts that had gone before. Eventhough the United States Coast Sur-
vey made new soundings in the Gulf of Maine between 1857 and 1873,
its work merely elaborafed that done for the British-Canadian Sheet V
and its successors. Insum. Canada - in its own right and through
Great Britain acting on behalf of Canada - has made major contribu-
tions to charting the Gulf of Maine area from the time of earliest
colonialsettlement in North America to the present. CHAPTER IV
COOPERATION IN DEFENCE
Section 1. Introduction
94. Canada and the United States havecooperated in the defence
of North America since becoming alliesduring World War 11.In carry-
ing out their commitment to joint defence, .the two countries have
divided the continent and its adjacent waters into numerous zones,reas
and regions.The common feature of al1these divisionshas been the allo-
cation of defence responsibilities betweenthe two countriesolelyon the
basis of operational considerations.In no instanceduring the history of
defencecooperationbetweenCanada and the United States has the allo-
cation of operational controlbeen motivated by considerationsof sover-
eignty or sovereignrights. In fact, Canadian and United States military
authorities cooperated as equalsduring World War II. They regularly
made decisions or allocated responsibilitiesthatin peacetime would be
decided only after debate by political authorities. They were motivated
by the desire to defeat a common enemythrough the most efficient use
of available resources,and it is unreasonable now toinvest their actions
with legal or political significance. Nevertheless, history records that
Canada has played amajor role in the defenceof the northwest Atlantic,
includingthe Gulf of Maine-GeorgesBank area.
95. .Thus, from 1939 to 1945. Canada's contribution to the war
far exceeded the limited role describedin the United States Memorial'.
In fact, Canadian vessels and aircraft were engaged in operations
throughout the North Atlantic and the Caribbean during the war. The
United States also operated in the North Atlantic from the summer of
1941.The Pacific war, however,diverted so much of ils naval strength
that it was short of vesselsin the Atlantic. In April 1943, therefore,the
United States relinquished al1 responsibility for trade convoys on the
northern routes between North America and Europe. Canadian and
British vessels look on sole responsibility for trade convoys between
North America and the United Kingdom, and frequently crossed the
Gulf of Maine and Georges Bank. Canadian aircraft based in Yarmouth,
Nova Scotia regularly patrolledthis area, providingcoverageof shipping
on Georges Bank.Canada was also responsiblefor providing "situation
reports" of enemy presence in the area north of latitude40°N and West
of longitude 32OW,which includesal1of the Gulf of Maine area.
96. After the war, the pattern of cooperation established by
Canadian and United States military authorities from 1941to 1945con-
tinued. Today, under the aegis of NATO, Canada still conducts anti-
submarine patrols in the northwest Atlantic, including parts of the Gulf
of Maine area. Canada and the United States are parties to the North
American Air Defence Agreement (NORAD), which has established a
unified structure of command covering the entire continent, including
coastal waters. The establishment of defence zones has been without
UnitedSiores Memoripp.73-74. paras.131-132.1361 ANNEXESTO COU~ER-MEMORIAL OF CANADA 375
regard to considerations of sovereignty, and indeed several NORAD
operational zones cut across national boundaries.During international
crises,Canadian and United States military authorities have extended
this type of cooperation and have coordinated plansfor the defence of
the continent. Canada, for instance, patrolled the Gulf of Maine-Georges
Bank area during the international missile crisis in 1962. Thus, the
defence arrangements of Canada and the United States since World
War II have been based solelyon the operational requirements of allied
military forces, and provide no indication of either country's territorial
or jurisdictional aspirations.This practice of cooperation belies the alle-
gation of the United States Memorial that the United States has alone
contributed to the defence in the Gulf of Maine area.
Section II. World War II
Canada and the United States became formal allies during
97.
World War II, when they issued the Ogdensburg Declaration in August
1940'. Although Canada had entered the conflict in 1939, the United
States remained uninvolved until the end of 1941,principally because of
opposition to the war in the United States Congress. The agreement
committed each country to the joint defence of North America in the
event ofan attack or invasion bya foreign power.
98. The Ogdensburg Declaration established a Canada-United
States Permanent Joint Board on Defence to "consider inthe broad
sense the defence of the north half of the Western Hemisphere'". The
jurisdiction of the board permittedjoint action by Canadian and United
States forces in the Pacific and Atlantic oceans. It drafted a joint
defence plan - Basic Defence PlanI - thal providedfor full consulta-
tion betweenCanada and the United States on matters of war policy4.
The plan allocated tasks and responsibilities between forces should the
situation arisethai ihe United Kingdomfell to the Axis Powers.Accord-
ing to an official historian of the United States Department of Defense,
Colonel Stanley W. Dziuban, the division of responsibility was "not
inhibited by considerations of national sovereigntyor by historic U.S.
and Canadian psychologicalattitudes5". Canada, for example, agreed to
control shipping in the North Atlantic, as the Royal Canadian Navy had
already handled this task since 1939. Canada also agreed to conduct air
patrols in the approaches to Newfoundland, the Maritime Provincesand
Québec.The United States proposedto defend the sea approaches to its
territory.These operational responsibilities were obviouslyintended to
overlap and for this reason, the plan did not divide command authority
(as distinct from operational authority). This was left to the military
members of the Permanent Joint Board on Defence.On 15 April 1941,
the Canadian service members of the board accepted an American pro-
posai that command would be vested with the Chief of Staff of the
'Appcndir35.DocumentsI and 2,and Appendir36
'Appcndix35. Document1.
'Appcndix37. Document1.
'Appendir38.376 GULF OF MAINE (371
United States Army, but only in the event of an attack on North
America and subject to prior consultation with the Canadian Chief of
Staff6.Their agreement illustrates that questions of national sovereignty
had no relevance under the threat of an attack on North America.
99. The negotiation of Basic Defence Plan 1 was complicated,
however, by the fact that the Permanent Joint Board on Defence was
working simultaneously on asecond planintended to meet the situation
in which Canada and the United States would be partners in war to
defeat the Axis Powersand not merely to defend North America from
enemy attack. This was knownas Basic Defence Plan 2or ABC-22, and
led to the most serious differences of opinion between Canada and the
United States during the war years. Canada's pre-eminent military his-
torian, C. P. Stacey, writes:
"The American view,naturally enough, was that Canada should, as
part of the new plan,concede the strategic direction of her forcesto
the United States in the same manner as the service members had
agreed should apply to Plan No. 1. As put iorward by the U.S. ser-
vice members, the draft of ABC-22 provided for American strategic
direction ofal1forces in Newfoundland,the Maritime Provinces,the
Gaspé peninsula and British Columbia. Althpugh the Canadians
apparently were not told, the American intention was evidently to
incorporate these areas into the United States Northeast and West-
ern Defence Commands. The Defence Commands would of course
be commanded by American officers, although under them the
Maritime and British Columbia areas would be commanded by
Canadian officers, as would Newfoundland until such time as
United States forces there outnumbered Canadian forces. Canadian
strategic control of naval forces would be limited to 'coastal and
inshore patrol vesselsand aircraft in the inshore waters of Canada
and Newfoundland'. This was particularly resented by the Royal
Canadian Navy, which made the points, among others, that it would
not be able 10 move a vesse1from one Coastto the other without
U.S. authority, and that the British Admiralty had always recog-
nized that Canada possessedstrategic control in her coastal areas'."
100. The Canadian section of the Permanent Joint Board on
Defence, and the political authorities to whom it reported, were not at
first willingto accept the American proposais for Basic Defence Plan 2.
However, the Cabinet War Committee in Ottawa finaily approved a
revised planon 15 October 1941, after several months of negotiations.
Although Basic Defence Plan 2 still provided forunity ofcommand if
circumstances required, it added the proviso that the assignment of an
area to one country could not be construed as restricting the forces of
the other country from extending operations into that areas. Thus, the
revised plan did notlimitCanadian operations in any manner. Moreover,
considering itsroposalto incorporate the Maritime Provincesand New-
foundland into the United States Northeast Command, the United
6Appendix37, Documcnt1.
' Appendix37. DocumcntI.
' Appendix37. Document1. t381 ANNEXES IO COUNTER-MEMORIALOF CANADA 377
States clearly did not view the defence zones that could be established
under Basic Plan 2 to be expressions of a dominant national interest in
the Gulf of Maine area or elsewhere.
101. During much of 1941, Canada and the United Kingdom
defended the North Atlantic sea-lanes without American assistance. But
after September 1941, an Anglo-American agreement gave the United
States a more active role in selecting the routes for trade convoys in the
western Atlantic. In early 1942, however, a submarine offensive on the
eastern seaboard of North America resulted in such a loss of shipping
that it became necessary for Canadian vessels to escort convoys between
Boston and Halifax. To direct the routes and diversions of these convoys,
the United States proposed using the so-called "CHOP" line - illus-
trated in the United States MemorialP - to forecast the time at which
ships would change from the operational control of Canadian naval
authorities in Halifax to United States authorities in New York. The
"CHOP line was little more than a point at which ships would change
radio frequency from one operational authority to another for the pur-
pose of receiving routing directions. weather forecasts, etc. It was not a
change of command line, and it did not in any way restrict the move-
ment of naval vessels from either country. The United States Navy did
not have enough vessels at that time to escort convoys off its own Atlan-
tic coast, let alone off Nova Scotia on the western side of the "CHOP
line. Consequently, escort groups of Canadian and British warships
based in Halifax provided the protection for merchant shipping between
Halifax and Boston from March until September 1942, and these con-
voys travelled across the Gulf of Maine. Canadian vessels also escorted
convoys between Halifax and New York, traversing the Gulf of Maine
area, and between New York and the United Kingdom. passing close to
the Nova Scotia coast. Each of these convoys crossed Georges Bank en
roule. Canada also deployed eight vessels to protect convoys between
Halifax and the Caribbean that frequently crossed the Gulf of Maine
arealo.
102. At no time during the war did the Canadian convoy escorts
or aircraft report to United States authorities upon crossing the
"CHOP line, or when entering the United States "coastal zone".
"Coastal zones" and the Gulf of Maine "CHOP line were insignificant
features of the war effort, and the Battle of the Atlantic was character-
ized by broad cooperation and joint defence effort on the part of
Canada, the United States and the United Kingdom. Thus, the United
States Memorial is in error in claiming that the United States "took
responsibility" for the control and routing of ships crossing the Atlantic
with war supplies for United Kingdom on the western side of the
"CHOP line "from 1940 to 1945"". Furthermore, the "CHOP line
illustrated in the United States Memorial was in effect only after June
1942 - not from 1940 to 1945. It was never used as a "division of
) UniiedSlolesMemorio/.p. 77, Figure 13.
IAppendix39. DccumentsI Io3.
ILUniredSrnresMcmoriol.pp.73-74. paras.131-132 378 GULF OFMAINE t391
defenseresponsibility", contrary to the assertion of the United States
Mernorial".
103. From early 1942, Canada was responsible for reporting
enemy shipping activity north of latitude 40°N and wcst of longitude
32°W". All of the Gulf of mai neand Georges Bank was in the
Canadian area although the United States also surveyedenemy activity
in thisarea. Efficient control of the convoys demandedthis extensionof
Canadian operational responsibilitywell beyondihe "CHOP" line. Fur-
thermore, theAtlantic Convoy Confercncc of March 1943decided that
the United States Navy should withdraw entirely from Atlantic trade
convoy escortactivity on the northern routes. On 14 March 1943. the
Commander-in-Chief of the United States Fleet informed Canadian and
British authorities of his decision.He said:
"1 concur .in the proposal that Great Britain and Canada take
charge of the North Atlantic trade convoys(HX. SC, ON convoys)
and in the detailed recommendationsfor implementing the proposal.
Isuggestthat BX convoysare consideredpart of the HX-SC-ON
systems.1suggestthat the Admiralty and the Canadian Naval Staff
Headquarters inform me when they are ready to effect the recom-
mendedshift ofcommand. I will then proposethe exact lime when
command is to passto Commander in Chief. Canadian Northwest
AtlanticC~mrnand'~. .."
From the end of March 1943, therefore, Canadian and British escort
groups comrnandedby the Canadian Northwest Atlantic Command in
Halifax escortedal1convoys betweenNew York and Great Britain, and
between Boston and Halifax. This division of responsibilities stayed in
force for the remainderof the war.
104. In the air, Canada also defendedshipping in the Gulf of
Maine area from enemyattack. From April 1943to the end of the war,
the Royal Canadian Air Force patrolled the region north of latitude
40°N and West of longitude 32"W. Two Canadian squadrons had
already providedaerial sweepsand convoy escort servicesin the Gulfof
Maine area on a daily basis between Juneand December 1942. In both
cases,the patrols were flown from Yarmouth, Nova Scotia, and show a
pattern of complete coverage overthe Gulf of Maine area. including
GeorgesBank". When added to the impressivecontribution of the Royal
Canadian Navy to convoy escort duty throughout the northwest Atlan-
tic, the Canadian presencein the defence of the Gulf of Maine area,
including Georges Bank,is incontestable.
Section III.Joint Canada-United States DefenceSince 1945
105. Both Canada and the United States, in planning for the
postwar period, recognized acontinuing need for rnutual supportn6.
@ " UnirrdSrores Memoriol. p. 77, Figure 14.
" Canadion Counter-Mcmoriol, Figure 37. illustrates the Canadiarca.porting
" Appendix 40. Dacurncnt 1.
" Conndion Counrcr-Memwiol.Figure 37. alro illustrates the night psths of Canadian
parrols IheCulfofMaine arca.
l6Appendix 40. . .[a] ANNEXESTOCOUNTER-MEMORIALOF CANADA 379
Nevertheless, at its thirty-sixth meeting, the Permanent Joint Board on
Defencedeclared that military activities are conducted without prejudice
to the sovereigntyof either country:
"Military projects, tests or exercises, agreed to by both countries,
whetherjointly conducted or not, are without prejudiceto the sover-
eignty of either country, confer no permanent rights or status upon
either country, and give onlysuch temporary rights or status as are
agreed upon by the appropriate authorities of the two countries in
authorizing the projects, tests or exercises"."
106. On 13 February 1947, The New York Times published a
statement by the Canadian and United States governments that "ln the
interest of efficiencyand economy each government has decidedthat its
national defense establishment shall, to the extent authorized by law,
continue to collaborate for peacetime joint security purposesla".Canada
and the United States decided that the North American continent should
be considered as a single strategic entity for air and sea defence. Thus,
in 1958, they signed the North American Air Defence Agreement
(NORAD), which treats the continent as a single coordinated unit for
air defence". The NORAD commander is responsible to the military
chiefs and governmentsof both countries. The agreement also authorizes
crossing international boundaries to meet operational requirements so
that Canada and the United States can "develop and maintain their
individual and collectivecapacity to resist air attack on their territories
in North America in mutual self-defencem".
107. Several NORAD air defence zones cross the international
boundary". The coastal air defence identificationzones illustrated in the
United States Memorial" - CADlZ and ADIZ - on the Atlantic
Coast are similar to these NORAD operational zones and they do not in
any way reflect the Parties' view or agreement as to the extent of their
military obligationson the continent, letalone of their aspirations for an
expanded zoneof maritime jurisdiction. Indeed, theair defence zones in
the Pacific and in the Beaufort Sea diverge radically from the United
States maritime boundary claims in these areas.
108. After the end of the war, Canada and the United States
adopted maritime defence arrangements similar to those adopted for air
defence. Naval operations since 1947have borne no relation to questions
of sovereignty. For example, on 24 October 1962, the United States
began a naval blockade of Cuba. With the diversion of United States
naval forces to the Caribbean, Canadian ships, including the aircraft
carrier HMCS Bonaventure, were ordered to return to Halifax. On 26
October 1962, followingdiscussions betweenthe armed forces of both
countries, ships of the Canadian Atlantic Command began patrols off
" Appendi41.
'"ppcndix43.
lPAppendix44.Documcni1.
Appendix44.Document 1.
" Appendix 44Documcnt3.
" UniiedSioies MernoNol.p79. Figure15.380 GULFOF MAINE 1411
the eastern seaboard of Canada and the United States. One destroyer
escort group was ordered to the Georges Bank area. In cooperation with
aircraft of Canada's Maritime Air Command. intensive patrolling con-
tinued until II November 1962, with at least three destroyer escorts
being rotated into the Georges Bank region".
Section IV. Conclusion
109. Canada and the United States have cooperated in the
defence of North America since World War II. with Canada assuming
an important role in the defence of the Gulf of Maine area during the
war. Canadian naval vessels protected shipping on Georges Bank from
1939 to 1945. and in 1962, during the international missile crisis,
Canadian warships were also sent to patrol the Gulf of Maine area,
including Georges Bank. Their presence resulted from the most efficient
use of resources available to Canadian and United States military
authorities. Indeed, a tradition of mutual support has characterized mili-
tary activity in the Gulf of Maine area since Canada and the United
States joined forces to defeat a common enemy during the war. It is
inconceivable that either country ever considered the operational zones
required for this purpose to have been determined with regard to fron-
tiers or maritime boundaries. The United States Memorial has, there-
fore, misrepresented the fundamental nature of the defence relationship
of the Parties in suggesting the contrary. and in denigrating Canada's
major contribution to the security of North America. particularly during
World War II.
" vesselsin thc NorthwestAtlantic duringthe 1962internationalmissilecrisis.an navali421 381
CHAPTER V
AIDS TO NAVIGATIONIN THE GULF OF MAINE AREA
Section 1. Introduction
Traditionally, States provide aids to navigation forcommer-
110.
cial and humanitarian reasons. In the Gulf of Maine area. Canada -
besidesits contribution to defence and chartin- providesa number of
aids to navigationalone and in cooperation withthe United States. The
bilateral agreements concerning systems for position-fixingand search
and rescue referred to in the United States Memorial'showthat neither
country has ever viewed these matters as indicating the extent of
national jurisdiction. Thus, the United States Memorial miscontrues
these activities in suggesting that operational agreements related to the
provisionof navigational aids in the Gulf of Maine area bear some sig-
nificance for the determination of maritime boundaries. Moreover, it
incorrectlyalleges that the United States alone providesthese servicesin
the Gulf of Maine area.
Section II. Radio Aids
A. DECCA AND LORAN POSITION-FIXIN SGYSTEMS
111. The DECCA system for position-fixingat sea was operated
exclusively byCanada in the northwest Atlantic and provided goodcov-
erage of the whole of Georges Bank during the day. and part of the
Bank at night, includingthe eastern half which is most heavily used by
Canadian fishermen. The United States Memorial is wrong when it says
DECCA coveragedid not extend to Georges Bank2. Indeed,in the 1960s
the Canadian Hydrographic Service issued two charts indicating
DECCA coverageextended to Georges Bank3.From World War II until
1980 when DECCA transmission ended, al1 Canadian military vessels
and many offshorefishing vesselswere equipped withDECCA receiving
equipment.
112. Canada has also contributed funds for the operation of
LORAN-A position-fixingsystems stations in Greenland. Norway, the
United Kingdom and Portugal, because of its NATO obligations and to
providea uniform system throughout the North Atlantic for commercial
navigation. The United States has done this as well, and has promoted
conversionto the newer and more reliable LORAN-C system worldwide.
Hence, Canada and the United States agreed, by an exchange of notes
in 1964, to establish a LORAN-C position-fixingsystem in the north-
WestAtlantic4.
'UnitedStoiesMemoriop.65.para. 119.andp. 73, p129.
lUni!edS!otesMemwo/.p.69,para.116.
Two chartsdepictingDECCAcaveragein the Gulfof Mainearea have bccndcposiicd
withthe Registrar.
'United StatesMernorial.DorumPnioryAnneVolII. Annex31.382 GULF OF MAINE id31
113. In the Gulf of Maine area, LORAN-C coverage is provided
by two chains or frequencies, one of which is transmitted from stations
exclusivelyin the United States and the other from stations located in
both Cariada and the United States. The latter chain is more reliable in
the Gulf of Maine area and the Canadian authorities have consequently
recommended that navigators use it when fishing on Georges Banks.
Canada established the LORAN-C system in the Gulf of Maine area
and in the waters further north, to phase out the older DECCA and
LORAN-A systems which had been in use since Wortd War II.
LORAN-C currently avers the entire North Atlantic Ocean, the Medi-
terranean Sea and most of the Pacific Ocean.
114. Canada operates a number of low- and medium-frequency
radio beecons for maritime and aerial navigation in the Gulf of Maine
area. Their coverage extends to Georges Bank, and they are used by
those navigators on the Bank no1equipped with more expensiveLORAN
receivers. The Canadian Department of National Defence also operates
a radar installation al Barrington, near Cape Sable. 11s coverage
includes al1 of Georges Bank and the information it gathers is shared
with the flight control centre in Moncton. New Brunswick.The Interna-
tional Civil Aviation Organization (ICAO) Moncton flight information
region is the entry point to North America for most transatlantic flights.
Moncton flight controllers, usingthe information gathered at Barring-
ton, order traffic separation schemes foraircraft throughout, and consid-
erably beyond,the Gulf of Maine area.
115. The Government of Canada prepares marine weather fore-
casts for the entire Atlantic Coastof Canada. Georges Bankis a specific
area for which meteorological information is collected and broadcast
daily6.The Canadian Department of the Environment, which is respon-
sible for weather forecasting, operates stations in Yarmouth and Cape
Sable that provide weather forecasts for Canadians fishing on Georges
Bank.
116. The need for international cooperation in meteorology has
long beenrecognized.Canada and the United States began to exchange
"weather intelligence" as early as 1872'. In its Twelfth Annual Report,
the meteorological Officeof the Government of Canada identified the
need for Canada to "take her part in the great international work now
going on of charting the meteorological conditions prevalentover the
Atlantic and in the general development of ocean meteorology8". In
' Appcndix45.
Appendii46.
'Appcndix47.
' Appcndix48. [441 ANNEXESTO COUN~ER-MEM OFCIANLDA 383
1947,Canada and the United States signed the Conventionof the World
Meteorological Organization9. This specialized agency of the United
Nations exists to facilitate worldwide cooperation in the provision of
meteorologicalservices.It is clearly inconsistent with its goals for mem-
ber States to suggest that the application of meteorology to aviation,
shipping and other human activities shouldhave any significance forthe
determination of maritime boundaries or be evidence of a predominant
interest of a State in an area for which it providesforecastingservices.
Section III. Search and Rescue Activities
117. Canada and the United States have agreed since 1949 to
coordinate search and rescue activities off their Atlantic and Pacific
coasts. The agreement of 25 October 1974, currently in force. divides
operational zones purely on the basis of convenience and efficiency'o,
stipulating that either party may initiate or coordinate air and marine
search and rescue operations without regard to such zones. For these
reasons then, the agreement uses the ICAO air search and rescue regions
on the Atlantic and Pacific coasts of North America as the basis for
coordinated air and maritime emergencyservices.
118. The ICAO regions used for these purposes were established
solely on the basis of operational considerations. The ICAO policy for
search and rescue regions has nothing to do with national boundariesor
with the sovereigntyof States". ICA0 has called for such regions to be
coincident with ICAO flight information regions, whichare established
on the basis of technical and operational requirements concerning the
volume and patterns of traffic, ratherthan on the basis ofan obligation
to respect national boundaries. Due recognition is given by ICAO to the
fact that any State that delegates to another the responsibility for pro-
viding servicesfor air traffic services (ATS) does so without derogation
of its sovereignty.The ICAO Assembly has resolvedthat:
". . . the boundaries of ATS airspaces, whether over States' territo-
ries or over the high seas, shall be established on the basis of techiii-
cal and operational considerationswith the aim of ensuring optimum
efficiencyand economyfor bath providersand users of the services;"
and declared that:
". . . the approval by the Council of regional air navigation agree-
ments relating to the provision by a State of air traffic services
within airspace over the highseas does not imply recognition of sov-
ereignty of that State aver the airspace concerned"."
119. This preoccupation with operational considerations is evi-
denced by the three search and rescue agreements between Canada and
Appendix49.
'The Canada-UnitedStatesand SearcRescucAgreementof25 October1974 is repro-
ducd ithc UniredSioieMemoriol. DoeurnenloryAnnexer.Vol. II. Annex35.
Appendir50.
j2Appendir51.1461 ANNEXESTO COUNTER-MEMORIAL OFCANADA 385
position-fixingsystems, beacons, radar and weather servicesthat overlap
and extend throughout the disputed area. Secondly, Canada and the
United States have established -as in the case of defence- a pattern
of cooperation in the provision of navigational services in the Gulf of
Maine area. The zones and regions established for such purposes have
been designed by the Parties purely for humanitarian and commercial
reasons. The United States Memorial, therefore, misconstrues the sig-
nificance of the aids to navigation provided by States. Moreover, it
incorrectly impliesthatonly the United States operates navigational aids
in the Gulf of Maine area. In fact, this chapter shows that Canada pro-
vides vital humanitarian and commercial aids to navigation in the Gulf
of Maine area, including services that extend to and cover Georges
Bank. GULFOF MAINE
DOCUMENTARY APPENDICES
DOCUMENTARY APPENDICES TO CHAFTER 1
THECANADIAR NEGULATOR MYIME GOVERNIN THE DISPOSITIAND
ADMINISTRATI OF~NTERESTSIOILAND CAS
Appendix1
CANADIA LEGIsLAT~RONLEVAN TTTHEREGUUTORY RÉGIMEGOVERNIN lCE
DISPOSITIAND ADMINISTRAT OFNINTERESTISOILANDGAS
Document I: Excerpt from the Territorial LandsAct, RevisedStatufesof
Canada1970,Chap. T-6, Sec.4
Document 2: Excerpts fromthe Public LandsGrants Act, RevisedStaturesof
Canada1970.Chap. P-29
Document 3: Excerpts fromthe Canada Oiland Cas Land Regulations,
Order in Council P.C. 1961-797.6June 1961,Published in CanadaGazerre,
Part II, Vol.95, No. 12.28June 1961
Document 4: Excerpts fromthe Canada Oil andnd Regulations,
Order in Council P.C. 1977-2155.2sJuly 1977,Published in CanadaGazeffe,
Part II, Vol.IIl, No. 16.24August 1977,andorder inCouncil P.C. 1977-3160,
10November 1977,Published in Canada Gazette,Part IINo.o22,111,
23 November 1977
Document 5: Excerpts from theCanadaand Gas Act, Statutesof Canada
1980-81-8, hap. 81(In Force 5March 1982)
[No!reproduced]
Appendix2
UNITEDSTATELSEGISIATIRELEVANTTO THE REGuIATORY &CIGOVERNING
THE DISPOSITIAND ADMINISTRATIONOINTERESTSOIL ANDCAS
Document 1:Excerpt fromthe Outer Continental Shelf Lands Act, 43 United
States Code,s. 1331-1356(1976,Supp. III)
Document 2: Excerpt fromthe Regulations Entitled "Mineral Deposits inthe
Outer Continental Shelf', 43 Codeof FederalRegulafions,Part 201
[Norrepmduced] ANNEXESTOCOUNTER-MEMORIAFANADA 387
Appendix3
MAPS IUUSTRAT~SEOMlCSURVEYCONDUCT OYCANADIA LCENSE ED
PERMITTEESIN GULFOFMAINE-GEORGBAESKAREA,965-1979
Appendix4
VARIATIO RDERFORCANADIAPERMITCOVERINAREAWS HERETHUN~D
STATE ESERVEDInRIG~ INNOVEMBE 1R69
[Noireproduced] Appendix5
COPY OF THCANADIA GOVERNME "NTONTHL OYIAND GASREPORT "OR
MAY 1964ANNOUNCI NHOISSUAN CND LOCATIOOFCANAD~ OINAN0CAS
PERMITS
DEPARTMENT OF NORTHERN AFFAIRS AND NATIONAL RESOURCES
WDRTHLmIDUINI,TRAIDRINSU IIMmSLS DlYlllDW
MONTHLYOIL AND CAS REPORT
MAY, 1964
lNDEX
Page 1 - Summary of Canada Lands under Permit and Lease
Page 2 - Permits Issued
Page 3 - PermitsIssued
Permits Cancelled or Surrendered
Permits Converted toase
Permits Transferred
Drilling Authorities lssued
- Change of Location
Page 4 - Drilling Activity
-
Wells Released from ConfidentialStatus
Reports Released from ConfidentialStatus
- DrillingStatistics
Page 5 - DrillingStatistics
Norman Wells Production
Page 6 - Federal Lands in the Provinces
Page 7 - Federal Lands in the Provinces ANNEXES70 COUNTER-MEMOW OF CANADA
MONTHLY OIL AND GAS REPORT
Summsry 01Activity foi the maathcdiog May 31. 1%
CANADA OIL AND CAS PERMITS
luusd N.W.T. Mainland 6 312.816
Yukon Malnland Nil Nil
Arctb Islands 21 1.026.797
w.,er 17 32W.685
CanccllcdorSurrrndrred N.W.T. Mainland 2 56.914
YukonMainland 16 515,357
Arcric I5lnndr Nil Nil
Nil Nil
Wilr
Cancclld orSvrrrndrred N.W.T. Mainland 28.312
(PartPlrmiia)
Nil Nil
YukonMainland
Arsfic Irlrinda Nil Nil
Wace, Nil Nil
N.W.T. Mainland 958 45,641,370
YukonMainland 337 13.702.WI
Arriic Illands 1.010 45,427,509
Watcr 876 72.101.120
TOTAL 3.181 176.874.085
N.W.T. Mainlnnd 46 213.M8
YvkonMainlnnd 3 13,220
Arrlic Islands Nil Nil
Watrr Nil Nil
TOTAL 49 226.228
GRAND TOTAL 177.IM.3l3
1. Oil and GarPcrmitr Isrued - Aretic Islands - 21 1,026,797acres
Pciropr Canada
Limjld390 GULF OF MAINE
12-31
2. Oil aiidCar Permits Issucd - N.W.T. Mainlind - 6
52.306 4yo.
52.106
52.106
51.966
51.966
51.966
3. Oil asd Cas Permits Irsued -Yukon Mainlnnd - Nil
4. Oil and Gas Permiir lsrucd - Conrtal Watcrr - 37
88.522 6yn.
88.522
88.786
88,786
88.786
89.048
89.048
89.048
89.048
89.310
89.110
89.110
89.310
89.571
89.571
89.571
89.832
89.832
89.832
90.092
95.844
5. Oil and Cas Pcrmitr Caneellad or Suriendeied - N.W.T. Mainland - 2
3209 and 3210 56.914 acres
6. Pari Oil and Cas Pcrmilr Csneclled or Surrendcred - N.W.T. iMainland - 1
wcsthalf of 3207 28.332 acres
7. Oil and Car Pcrmitr Cnnccllcd or Surrenderrd -Yukon Mainland - 16
IlW. 1106. 1109. 1110. 1127. 1129. 1130.1131. 1146. 1147. 1148
south-halver of 1326to 1330 incl. 515.357 acres
8. Piii Oil sod Ga. Permitr Cineclled or Surienderrd - Yukon Miinland - Nil
9. Oil and Car Permits Csneclled or Surreoderrd - Areliç lrlsndr - Nil 13-51 ANNEXES TO COUNTER-MEMORIA OLF CANADA
10. Pirl Oil aod GPS Permils CanerIlcd or Surrcndcrcd - Arclic Irlaadr - Nil
II. Oil and Gss Permilr Canîrlled ai Surremdercd - Coarisl Walrrr - Nil
12. Part Oil aod Gar Permitr Csnçcllcd or Surrenderrd - Coastil Waters - Nil
13. Oil and Gar Permitr Convertcd to lrasr
14. Oil and Cas Pcimitr Tiansferred
Pcrnil No. Trinsleror Tr.nnLirr mlr ~~~l~l~li~~
AIO94.AI0966and Al095 J. M. Coync Pcmbina Pip. Lin? Lfd. 11.5.64
AlA1027laloAI052 incl J.RossTolmic PembinaPipc Linc Lid. II-5-64
15. Drilling Authoriiicr lrrucd - Nil
mte
wrnr 01Well S+ Ch=. Sm* K.B. mpth Pmaiks
Saony Mobil - W.M. 7.4.64 Wildcat Drillin8 Crd. 6492'
Whil~lone Y.T. N-26 2268'
kny Mahil- W.M. 29.3-64 Wildrat Drillin8 Crd. 3741, Wailinxonvafer
Molar Y.T. P-Y 2622' 'YPPb
Labiiar a al Cornwallis Lma~ion Canrrlled lmation
Central Dom. M-32
17. Wells Releared from Coniidcnlisl Slntur
18. Reports Releiscd from Confidcnliil Stitute - None
19. Drillhg Slilistirs 1964
Wrll Nlnr Spuddd Complrtd SI.,", Total Demb
Auantir cial Arctic 2012.63 1-4-64 DBA 13.370
Cirr1e0"tli.i"~
H-34
B.A.- Tcx 12-1-64 11-3-64 DBA
Arrowhcad 876
Calrlan Tarhlina 7.2.64 24-2-64 DBA
Lai. C-39
Calsian Taihlina 27-2-64 13-3-64 DBA
Lake K-IO
Canada Sauihsrn 24-3-64 14-4-64 Surpcndrd
et81N. B~~VCRC. cni W~ll
Y.T. 1-21
Dom. Elplororsetal 24.9.63 19-2-64 D&A
Bathun, Caldoniln
J.34
H.B-Pan Am S. 3-2.64 23.3-64 S"<p."dd
Island R.M-41 G.s W~ll
I.O.E. Triad Ebburi 16-1-64 18-3-64 DBA
D-50
IO€. Trind Ebbvll 203-61 8-b64 DBA
J-70
PanAm-Shcll 15-1-64 2-1-64 D & A
Kakiu H-36
PanAm-Shdl 3.2.64 27-2-63 DBA
Kakiaa 1-44392 GULFOF MAINE
15-71
PanAm-Shell 4-3-64 30-3-64 D & A 2.195
Kaki= F-35
Pan-Am Shcll 1-4-64 16-4-64 D&A 2.436
Kakim L.19
Shell Ochrc River Il-lb63 28-1-64 D & A 4.883
1-15
Saony Mabil- W.M. 11-12-63 27-3-64 Svlprnded 6.118
Blarkic No. 1 Y.T. M.59
Numkr ofwelh drilld in 1964 - 16
Toial fcatagc drilld in 19- 96.299'
20. Production - Norman Wcllr. N.W.T.
OIL BASE STOCK CAS
Ciou 8.rr.l. (Niphth. Iilertn) (MCF.) CAS FURED
April. 1964 60.202 Nil 81.810 19.591
TOTAL TO DATE 262.935 35.3W 305.861 292.627
FEDERAL LANDS IN THE PROVINCES
Soldirr Slltlcmeni Boaid% Ikp.rtmsnt 01 Nstional Dcfrnrr,
Mparlment ofTRNPOII and Dtprimeal 01Agriculture
undei the Admini~tntian of this üeparlmrnt
I. Summnry aloi1 and Car Leire Aciirity for the Month Ending May 31si. 1964
Ck.,.rio M.iii0b. S.sL.Lhri... AIbrrti
Active bginning of Manth 9 21 14 IO5
Acruiw 1.096.87 3.OU.20 6.90447 14.250.51
luud Nil Nil Nil Nil
Acrugc Nil Nil Nil Nil
La@. surrcndcrd a
Cancclld Nil Nil Nil 3
Acrugi Nil Nil Nil 480
AFL~VC~"d or~anih 9 23 44 12
AC~U~S I.W6.81 3.C44.20 6.904.47 13,77053
2. Oil and Gar Learrs lrrurd - Nil
3. Oil and CarLcsre surrenderod. Caneellcd or Lapsrd 614.615 and 616
4. Oil and Car I.rarîs Transferred
hsu N*. ~~.~.r~~~~ Tniur,r..
ml= 01n*isIr,,ion
601 Americsn Likn) Turilc CrcckPeirolcum 26-5-64
Oil Co. Lld.
5. Summnry of Gns Learc Arii>ity for the Month Ending hlay 31rl. 1964
Manitoba Sirlslcheran Albrna
Active Blginnin8ol Monih Nil Nil 8
Nil Nil 1.883.ll
Irrucil
Nil Nil Nil
SurrenderedorCanccllcd Nil Nil Nil
Active End of Month Nil Nil 8
Acreagc Nd Nil NilIV ANNEXES TO COUNTER-MEMORIAOLFCANADA 393
6. Summary of Oil I.carc Ariiriiy for the Month Endinghlay 31% 1964
hlinitda S.skaLhrr.n AIkrt.
Active Brginning or Momh Nil Nil 6
Acrcagc Nil Nil 1.11481
lriucd Nil Nil Nil
Surrrndcred orCrnccllcd Nil Nil Nil
A~rsrgc Nil Nil Nil
Active End ol Monlh Nil Nil 6
Acrcagc Nil Nil 1,114.81
7. Produrrion - Drilling and Production Covcredin Provincial Reports
8. Royally February. 1964
Lorision Unifs nmdWdk Amount
Maniiob 8 (final) 1451.81
Slrkschcuan II (fins11 7.601.10
Albria 20 (prdiml 7.89219
Mnrçh, 1964
Manitoba 8 (Tins11 S 415.25
S8siat~hcwan iJ (final) 1.611.19
Albrfa 11 (prcliml 8.81464
April. 1964
Manitoba 6 (prcliml 1 409 66
Saskaichçwan 10tpreliml 1.81841
Alberta II tprcliml 1,218.96 GULFOFMAINE
DOCUMENTARY APPENDICES TOCHAFïER II
PROTECTIOFTHEMARINE ENVIRONMENT
Appeodix
LmRs OF17APRI1970AND8MAY1.970FROMD. G.CROSBYC.HIEF.
[Nol reproduced]
Append7x
[Nol reproduced]
Appendii8
CHAR ~LLUSTRATITHETYPICACLANADOAILANDGASLANDS
ADMINISTRA(TCIONLA) APPROVA LSOCE SSRAFIXEDHYDROCARBON
SYSTEM
[Not reproduced] Appendix9
EXCFRPT ROM THE CANAIIAOILAND GASDRILLINCREGULI~ONS O,RUERIN
COL'SCILP.C. 1979-2518JA~LARY1979,PL.BI.ISHINCANADA GA~~E,
PARTII, VOL.113,NO.314 FEBRUAR1 Y979
[Notreproduced]
Appendix10
ExCERFT ROM il# £NANCIAL ~ST, 1MARCH1969,PAGE 3,"SEABEDOIL
DISASTEURNLIKELYINCANADA". AND PAGE 6THEEDITORWPAGE",HOW TO
Pnmen A BEACH"
[Nol reproduced]
AppendixII
[Nof reproduced]
Appendix12
Document I: Excerpufrom TheOffowa Citize9.March 1983. Pag1,'Oil
Fims Ordcred 10Rovide Details on Beaufon Plan", and Page10,"Native.
EnvironmentalGrouos Pleasedwith Beaufon Delav"
Document 2: A Statementof Deficiencieson the Environmental Impact
Sialementfor Hydrocarbon Dcvelopmeni in the Beaufon Sea.MackenUe
Del&Region
[Nol repmduced]DOCUMENTSRELA11NGTOTHE ENMRONMEN TASLSSMENTAND REVlEW OFTHE
SABLIESLANDPROJE~T
Document 1 :Lenerof 21September1982fromnie Honourable
Jean Chrétien, Ministerof Energy, MinesandurcesCanada, to nie
Honourable John Roberts, Ministerof the Environment,Refemng the Sable
IslandRoject to the EnvironmentalAssessmentand ReviewRocess
Document2: DraftGuidelinesforthe Rcparation of an Ennronmental
Impan StatementforGas Productionon the ScotianShelfin the Sablelsland
Area. lssued bythe Sablelsland EnvironmentalAssessmentPanel
[Norreprodued]
PP267-277EXCER~ED
[Norreproduced] ANNEXESTO COUN7ER-MEMORIALOF CANADA 397
DOCUMENTARY APPENDICES TOCHAPTER III
CHARTINGHEGULFOFMAINAREA
THEVELASCMOAP,1610,PUBARCHIVEOFCANADAN,ATIONMLAP
COLLECTIONM, C 14038
[No:reproduced]
Appendix16
THEWILLIA MLEXANDEMRAP,1623,P~BARCHIVEOFCAVADAN,ATIOVAL
MAPCOLLFCTIO VM. C 15589.ORIILTHELINDECOLLECTINV.TIOV~L
LIBRARYFCANADA
[Noreproduced]
Appendi17
THEJOHNTHORNTOMNAP,1677,PUBLCRCHIVOFCANADA N,ATIONMLm
COLLECTIONM, C 6608
"A Chan ofthe SeaCoast of NewFound LScotland, NewEngland,
New York, NewJersey,withVirginiaand Maryland"
[Noreproduced] Appeodix18
THEHERMAM NOLLMAP,1715,PUBLIChHlVE.SOF CANADA N,ATIONALAP
COLLE~ONC ,-42085
"A Newand Exact Map of the Dominionsof the King ofGreat Britainon ye
continent of North Americaaining Newfoundland, New Scotland,New
England,New York, NewJersey.Pensilvania,Maryland,Virginiaand Carolina
According to the Newest and Most Exact Observations by Moll,
Geographer"
[Not repmduced]
Appeodix19
THEHENRY POPPLME AP,1733,Pusuc ARCHIOF CANADA N,ATIONAMLAP
COLLECTIO C-,18235
Partof "A mapofthe BritishEmpirein America withthe French and Spanish
Settlementsadjacentthereto"
[Norreproduced]
Appeodix20
THEDESBARRC ESHARTOFPARTOF THCOAS TFNOVA SCOTIA1,778,PUBLIC
ARCHIVEOFCANADA N,ATIONMLAPCOLLECTIO C-1,18237
Part of "The Coast of Nova Scotia, New England, New-York, Jersey,The
Gulphand RiverofSt.Lawrence.7he islandsof Newfoundland,Cape Breton,
St.John, Antecosty,Sable-and soundingsthereof. ..26 nauticalmilesto
the inch.. ..of the AtlanticNe.byJoseph FW. DesBarres"
[Nol repmduced] ANNEXESIO COUNTER-MEMORIAOFCANADA 399
Appeodix21
CDRRE~FUNDE NETE EEN THUNITED STATECSHART~BUSHER EDMUND
BLUNTAND ADMIRAB LEAUFOR OF THBRITISHHYDROGRAPH OIFICE.
[Norreproduced]
Appodix 22
'IkEAARON ARROWSMlTHCHART1 ,800PUBLICARCHIVES OCANADA N,ATIONAL
MAPCOLLECTIO N-,18228
"A Chan of Pan of North America from Cape Hatteras toCape Canso. Con-
taininn theSoundines and Set of the ~u~ ~~~ream its extent withthat of the dif-
f&enie~anksand Shoa~slaid~downby a well regulated rimepiece, assisied hy
the Lunardistances. nie Other Observationsand remarksweremade'tyCap.
Charles Viniwmb Penroze, when he Commanded his MajestysShips Resolu-
lion and Cleopatra on that Station in the Ycars 17956 7 and 1798:and from
whichI gratuitiously receivedthe Manusmpt with permissionto Publish it for
théinformation of those who mayNaiigate that pan of the Coast"
[Nol reproduced]
Appendix23
'IkHURD CHART OFTHEBAY OFFUNDY1,824,BRITISHYDROGRAPH OFFICE,
1824,PUBLIARCHIVE OFCANADA N,ATIONAMLAPCOLLECTION N, C-24856
[Nol reproduced] GULFOFMAINE
Appendi24
THE ~KWOOD CHARTOF PARTOFTHECOASTOFNOVA SCOTI*1,829,BRITISH
HYDROGR~PH OICcE. 1829.PUBLARCHIVE OFCANADA N,ATIONAMLAP
[Norreproduced]
Appendix25
LOCKWOOD D'SSCRIPTIOF THCOASTOF NOVASCOTIA1,818,PUBUC
ARCHIVEOF CANADA P,ACI-1045
Excerpts fromnthony LockwoodA Brief Descriptof Nova Scotiawith
Platesof thePrincipalors:Includinga ParticularAccountof theIshnd of
GrandManan
[Not reproduced]
Appendip
THEBRITISH-CANADD IENEP-SEAHARTOF THGULF OFMNNE ~EA,
INCLUDIN GEORGEB SANK1,834
Document 1:"North America, EastCoast: SheetY, Hydrographie
Ofilce. 1834.PublicArchivesof Canada National M~DCollection.
NMc-19995.
Note: T3is chart is the most southerly of the series of five charts entitled
"North America, East Coast". Ite fint ofilcial chan of Georges Bank
after thesBarresChart of 1778,and, with itssuccesson, wasused by Cana-
dian navigaton in the Gulf of Maine area until the 1960s.
Document 2: Statu ofBritish-CanChartingintheGulfofMaineArea,
1834Ottawa, Department of Energy,Minesand Resources, 1982
[Norreproduced] ANNEXESTOCOUNTER-MEMORIALOFCANADA 401
THEBRITISH-CANADDIEEP-SEAHARTOF THGULFOFMAINEb,
INCLUDIGOEORGEBSANK,861,BRITHYDROGRAPH~COF1 ~C61,,PUBLIC
ARCHIVEOFCANADA N,ATIONALAPCOLLECTIONNM, C-19995
"North America,East Coast: Chart 2670,Halifax tothe Delaware"
(Noreproduced]
Appeodi 28
CORRESWNDEN BEWEENTHENEWBRUNSW~H CYDROGWHE AND
STATFSWWANILLIAITZWILLIAOWENANDADMIRB ~EAUFO RTTHEBRITISH
HYDROGRAPHIC~~CECO~CERN NIEWSURVEYISTIIEGuLFoMAI~FAREA.
(Noreproduced]
Appendix29
THEUNITEDSTATECSOASTURVECYHARNO.2,1858,SURVEYFTHCOAS TF
THEUNITEDSTATES,858
"General Chart of the Coast No. 2 from Cape Ann and Jeffries Bankto Gay
Head and Davis'Bank"
(Noreproduced] AppendiiJO
THENORIECHART1 ,835J.W.NORIE1, 835
"A Chart of theCoast of North Americafrom Cape Canso to Halifax and from
Thence to Philadelphia"
[Notreproduced]
Appendix31
THE UNC CI PALNADIAFNISHINBANKS1,920AND 1932~AWA,
DEPARTME NFTHE INTERIO19, 2F'UBU CRCHIVEOF CANADA N,ATIONAL
Mm COLLECITON N, C-20682
Note: The 1932edition of map is illustrated.
"Map of the AtlanticCoast of Canada Showinge and Deep Sea Fisher-
ies with Disiances from Rinti~al Fishinn Ports Io Banks and Trans~ortation
[Notreproduced]
Appendi32
ïHe ROYAC LOMMISSIOMNAPOF PRINCIPACANADIAFNISHINOBANKS1,928
"Map ofthe AtlanticCoast of Canada ShowingRincipal Fishing Banks,1928"
This chan iscontained in the report of the RoyalCommission on Investigating
the Fisheries of the Maritime Rovinces and the Magdalen Islands, 1928.
Ottawa, Fisheries Branch, Marine and Fishenes Department, 1928.
[NOIreproduced] ANNEXE TO COUNTER-MEMORIALOFCANADA 403
Appeodix33
THECWSECHART1 ,929
"The Fishermen'sand Yachtsmen'sCh~,- ~ ~ r ~d~~0~e.....dland.Renro-
duced from the latest British, United States and French Navy Chans. ~ish&
Bankslnfonnarion fromthe FisheriesDepu. ofthe US.. Canadian and French
Gom. Rough Grounds Marked by Ciloicester, Nova Scotia and Newfound-
land Skippers."London, Alben Close, 1929.Printedbythe MonimerCompany
Limited, Ottawa.
[Notreproduced]
Appendix34
INDEX OFCANADIAH NYDROGRAPH SICRV~CNEATURAR LESOURC MEAPSOFTHE
GULFOF MAINEAREA1 ,980,OTTAWA C,ANADIA HYDROGRAPH SIRVICE19,80
[Norreproduced] GULF OFMAINE
DOCUMENTARYAPPENDICESTO CHAFTER IV
Appndix 35
THECANADA-UNIT STATECSOMMITME TOJOINTDEFENC OF
NORTH AMERICA 19,40
Document 1Ogdensburg Declaration,17August1940(ExcerptfromDRvid
Mumy, ed.,DocumentosnCanadianExtemalRelation,ol.8,1939-1941,
Part II, Ottawa, Department of External ARairs,1976,pp. 139-140)
Document 2LetterfromtheCanadian Rime Mioister,W. L.MackenzieKing,
tothe BritishDominionsretary,WinstonChurchill,Dated 18August1941,
concerningtheignificanceof the Ogdensburg Declarationof Joint Canada-
United StatesDefenceto the British-Canadian War Effort(Excerpt(rom
DavidR.Murray,ed.DocumentsoCnanadianExtemolRelotiaVol8.,1939-
1941,Part II, Ottawa, Department ofExternal'ARain, 1976,pp. 134-138)
Appndix 36
THECANADA-UNIT STATEMSILITARAYLLIANCOFWORLD WAR11(EXCBR~T
FROMC. P. STACB",WENTY-ON YEURS OFCANADIAN-AMBRM ICLNIARY
COOPERATIO N", . DEENEE,D., CANADIAN-UNISTADTES~EATY
RELATION S,LLEGHEILL,NORTHCAROLIND A, KEUNIVERSITPYESS1,963.
PP.303.104)
[Notrepmduced] ANNEXESTC3COUNTER-MEMORIALOFCANADA 405
Appeodix37
THECANADA-UNITS EDATEJOINT DEFENCPEIANS,1940-1942
Document 1: Excerpt from C. P. Stacey,Am. MenandGovernrnents.
nie WarPolicieofCanada,1939-1945, ttawa, Depanment of National
Defence. 197....349-354
Document 2:Exchangeof Correspondence Date2and3 May 1941,berween
theCanadian and United States Chairmen ofthe Permanent Joint Board on
De~ ~ ~ ~ ~ ~ ~ne Command Arrangements Rooosed for Basic Defence
Plan No. 2(~xcerpt from ~avid R. Murray,ed., ~ocsnCanadion
ExrernalRelaiton. ol.8, 1939.1941.Pan II. Ottawa. Department or Exiemal
Affain, 1976,pp. 204-205)
[Norrepraduced]
Appendix3â
THECANADA-UNITS ETATEJSOIMCOMMAN STRUCTUR ONETHEHIGHSUS,
1942(EXCERP FROM COL.STANLE Y.DZIUBAN M.IUTARYREUTIO NSTWEEN
[Nor reproduced] Appendix39
Document I: "Rearranpement Convovs EastCoast of North America".
Secretaiyto thcanadian-c av Balard,Ottawa, to the Commanding 0fficer
Atlantic Coast, Hali3aAugust 1942,Ottawa, Public Archivesof Canada.
~ecord Group 24, Vol. 11,968
Document 2: Lener from the Chiefof Naval Stafï, Royal Canadian Navy,
Ottawa,to the Commander-in-Chief United States Fieet, Washington,
I December 1942,Ottawa, Public Archivesof Canada, Record Group 24.
Vol.11,976
Document 3:"Strategicand Tanical Control of Naval ForcesOperating inthe
Western AtlanticArea", Direcior of Operations Division, RoyalCanadian
Navy,to Chief of Naval Staff, Ottawa,2 December 1942,Ottawa, Public
Archivesof Canada, Record Group 24,Vol. 11,969
[Nor reproduced]
Appendix40
Document I:"Anti-Submarine Measures inthe Atlan-icRecommendations
Concerning", Commander-in-Chief United States Fleet, Memorandumof
14March 1943,Ottawa. Direnorate of History, Depanment of National
Defence. File DHist 181.003(D5027)
Document 2: "Messageon ReviscdConvoy Arrangements",
Commander-in-Chief UnitedStates Fleet,RelinquishingControl of NewYork
Convov Escons to the Canadian Atlantic Command. Halifax.2220GMT.
15 h hl1943,Public Archivesof Canada, Record Group 24;~ol. 11,127.
[Nor reproduced]
Appendix4I
THECANADA-UNITS EDATEBSASICSECURIT bN. 1946(EXCERP FROM JAMES
EA~, "IN DEFENCË OFCANADA ",PUCEMAKING AND D~RRENCE, VOL.111.
TORONTO U,NIVERSITOYTORONTP ORESS,1972PP.381-388)
[Nor repmduced] ANNEXESTO COUMU(-MEMORIAL OFCANADA 407
Appeodix42
THECANADA-UNITS EDATEJSOINTDEFENCP EOWCY 1,946
Document I:nie 36th Recommendation of the PermanentJoint Board on
Defence, 20 November 1946
Document 2: Excerpt from C. P. Stacey,"Twenty-OneYean of
Canadian-American Militaryoperation, 1940-1961".in D. Deener, Ed.,
Canadian-UnitedStates TreatyRelations,College Hill, North Carolina, Duke
UnivenityPress, 1963,pp. 112-113
[Not reproduced]
Appendix43
~ST-WARCO-OPBUT~O INDEFENC(EEXCERPT FROM THENEW YORK ~MFS,
13~BRUARY 1947,PP.1AND 17)
[Norreproducedj
Appendix44
THENORTH AMERICA AIRDEFENCA EGREEMEN TSORAD), 1958 AND 1981
Documeni I :Agreement beiweenthe Government of Canada and the
Governmeni of the UnitedStatesof Americaconcerningthe Organizationand
O~eration of the Noah American Air DefenceCommand (NORAD)..
12May 1958,CANADA ~REXTYSERIE 195, 8, N9.
Document 2: Exchangeof Notes between the Government of Canada and the
Government of the United States of AmericaConstitutina an Ameement
concerning the Organizationand Operation ofthe North~m-erican~eros~ace
DefenceCommand (NORAD), II March 1981.Signedat Ottawa, II March
1981.Entcred inIo Force, II March 1981.with Effen from 12May 1981
Document 3: North American Air DefenceZones
[Not reproducedj GULF OF MAINE
DOCUMENTARY APPENDICES TOCHAPTER V
&DS TONAVIGATIO NTHE GULF OMAINEAREA
Appendix45
THELORAN-C POSITION-FIXSYSTEMIN TGULF OFMAINEhEA (EXCEIUT
mo~ NOTES ON THUSEOFLORAN-CCHARS ,TIAWAC,ANADIAN
HYDR~~IUPHISERYtCEDEPARTME OF RSHERIEAND OCUNS,1982)
[Norreproduced]
Appendix46
C~NADIA NlARlNWUTHER FORECASTING REGIONS IGULFOF MAINE
AREA(EXCEKYTFR& RADIOAIU ISMARI NAE~GATIO~',OTTACANADIAN
COAS1GUARI>T,LEcoMMUNICAT~ONS AELECTRON IRANCHD,EPARTMENT
OF TRANSPOR1982)
[Norreproduced]
Appendix47
CANADA-UNITSETDATESXCHANG OFMETEOROLWIC INFORMATION
(EXCERFTROMSECONDREPORT OF TMETEORO~ICA LFFICE OCANADA,
JANUARY1873)
[Norreproduced] ANNEXESTOCOUNTER-MEMOOFCANADA 409
WEATHERFORECASTIOVERTHEHIGHSEAS EX CE FROMTWELFIANNUAL
REPOR TFTHCANADIA MNETEOROL~I ERLICETORONT JON. UA883)
[Norreproduced]
ExceripFROMTHECONVENTI OFTHE WORLDMETEOROLOGICAL
OROANIUTION, WASHINGT11OCTOBER1947CANADAT)(UTSWEF, 1947,
NO.34
[Norreproduced]
Exc~m FROMTHECONVEN~O ONNINTERNATIONCML AVIATION,
ICA0 DOC7300/6SIXTHEDITIO1980
[Norreproduced] Appeodix51
Document I:Excerptsfromthe ResolutionsAdopted bythe 23rdAssemblyof
the lnternational Civil AviationOrganization, Montreal, 16September 1980-
6 Onober 1980
Document 2: Excerpts fromtheStandards and Rewmmended Ranices,
Search and Rescue, Annex 12to the Convention on International Civil
Aviation,Sixth Edition, 1975
Document3: Excetpts from the lnternational Standards and Recommended
hanices, Air Trafic Control SeMce, Flight lnfonnation SeMce, Alerting
Service,Air Tmfic SeMces, Annex 1I to the Convention on lnternational
Civil Aviation, SeventhEdition, 1978
[Nol reproduced]
Appendix52
[Not reproduced] ANNEXES TOCOUNTER-MEMORIALOFCANADA 411
CERTIFICATION
1,the undersigned, L. H. Legault.Q.C.,Agent for Canada. hereby cer-
tify that the copy of each document attached as a Documentary Appen-
dix in Volume III of the Annexes to the Counter-Memorial Submitted
by Canada is an accurate copy, whether prepared by photographic
meansor by transcription.-
(Signe4 L. H. LECAULT Q,.C. ANNEXESTO COUNTER-MEMORIALOFCANADA
Document 1:ProclamationNo. 5030,"ExclusiveEwnomicZone ofthe United
States of America", 10March 1983
Document 2:Statementby the President, IOMarch 1983
Document 3: Fact Sheet, "United States Oceanslicy", 10March 1983
Document 4: Sketch Map Showing Outlines of ExclusiveEconomic Zone of
the United States, 10March 1983
DOCUMENT 1:PROCLAMATIONNO. 5030,EXCLUSIVEECONOMICZONEOFTHEUNITED
STATESOF AMERICA, 10MARCH 1983
THEWHITE HOUSE
Ofice of the PressSectetary
MARCH 10,1983
EMBARWE FOR RELEASEAT 4:00PM BT
ErclusiveEmnomicZone of the UnitedStates ofAmerica
by the President of the United Statesof America
A PROCLAMATION
WHEREAth Se Government of the United Statesof America desires to facili-
tate the wise development and use of the oceans consistent with international
law;
WHEREA iSternational lawreconnizesthat. in a zone bevond ilsterritow and
adjacent to its territorial sea,know: asthe ~xclusive~wiomic Zone.a &asta1
State may assen certain sovereign righü over natural resources and related
iurisdiction: and
WHERWthe establishment of anExclusive Ewnomic Zone by the United
States willadvance the development ofocean resourws and promote the pro-
tection of the marine environment, while noting other lawful uses of the
zone, including the freedoms of navigation and overfiight,by other States:
Now, THEREFOR IER,oNALnREAGAN, by the authority vested in me as Presi-
dent by the Constitution and laws ofthe United Statesof America,do hereby
proclaim the sovereign rightsandrisdiction of the United Statesof America
and wnfirm also the riuhls and freedoms of al1States within an Exclusive
Economic Zone. as des&ibed herein.
~xclusivc Ewnomic Zone of the United States is a zone wntiguous to
the territorial sea,includingzoneswntiguous 10the territorial seaof the United
States,theCommonwealth of PuertoRiw, theCommonwealthof the Northern
Mariana Islands (to the cxtent consistent with the Covenant and the United
Nations Tmsteeship Agreement), and United States oveneas territories and
possessions.nie ExclusiveEwnomic Zone extends to a distanc200nautical414 GULFOFMAlNE
miles from the baseline from which the breadth of the territorial sea is
measured. In cases where the maritime boundary with a neighboring State
remains10be determined,the boundary of the ExclusiveEwnomic Zone shall
be determined by the United States and other State wncerned in acwrdance
wi~ ~~~ ~tableohncioles,
witein the Êxclusive Ewnomic Zone, the United States has, to the extent
permittedbyinternational law.(a)sovereignrightsforthe purpose ofexploring.
ex=l~i~ ~n. bnsenine and mananinn naÏuralÏresources.both livinnand non-
living,ofÏhe seabed Gd subsoil &dÏhe supejacent w&n and wirhregard to
othcr activiliesforthe ewnomic exploitation and exploration of the zone, such
as the oroduction of enernv from the water. currenk and winds: and lbJiuris-
diction with regard to th&stablishment and use of artificial islands; ar;d in-
stallations and structures having ewnomicpurposes. and the protection and
oreservalion of the manne environment.
This Proclamation does not change existing United States policiesconcern-
ing the wntinental shclf, manne mammals and fisheries, including highly
migratory specics of tuna which are no1subject to United States jurisdiction
and require ihternational agreements for efïective management.
The United States will excrcisethese sovereign righü and iurisdiction in
- -
accordance with the niles of international law.
Without prcjudice to the sovereign righü and jurisdiction of the United
Statcs. the ExclusiveEwnomic Zone remainsan areabeyond the temtory and
territorial sea of the United States in whichtates enjoy the high seas free-
doms of navigation, overilight, the laying of submanne cables and pipelincs.
and other intemationally lawful uses ofthe sea.
IN WITNESS WHEREOF. 1have hereunto set mvhand thistenth dav of March.in
the year of OurLord dneteen hundred and éighty-thrie,and oEthe lndep;n-
dence of the United Statesof Americathe two hundred and seventh.
WCUMENT 2:STATEMENTBYTHE PRESIDENT, 10 MARCH 1983
THE WH~TH EOUSE
OfClceof the PressSecretary
March 10,1983
EMBARGO E D RELEASEAT 4:00PM EST
STATEME NYTTHE PRESIDENT
The United States has lone been a leader in develooinncustomaw and con-
ventional law of the sea. O& objectives haveconsisienGybeen t~.~rovide a
legalorder that will,among other things, facilitate peaccful, international uses
ofthe oceans and orovide for eauitable and effectivemanacement and wnser-
vation of marine {esources.The United States also recognEes that al1nations
have.an interest in these issues.
LastJulv 1announced that the United Stateswillno1sien the United Nations
Lawof thi~ea Convention that wasopened forsignatur;on Deccmber 10.We
have taken this step bccause several major problcms in the Convention'sdeep
seabed mining provisions are wntrary 10the interests and principles of indus-
trialized nations and would not help anain the aspirations of developingwun- ANNEXESTOCOUNTER-MEMORIAL OF CANADA 415
The United States does not stand alone in those concerns. Some important
allies and friends have notimed the Convention. Even somesimat-ry States
have raised concerns about iEeseproblems.
Howevcr,the Convention also contains provisions with respectto iraditional
uses of the oceans whichgenerallyconfini existingmaritime law and practice
and fairly balance the interests of al1States.
Today 1am announcing three decisions 10promote and protect the oceans
interests of the United States in a manner consistent with those fair and
balanced results in the Convcntion and international law.
First.the United States is prepared io acccpt and an in accordance with the
balan& of interests relatine io traditional uses ofthe ocea-ssuch as naviea-
tion and ~vedight. In this ;espect, the United States willrccognizethe righGof
other Statesinthe waters offtheir coasts.as reflectcdintheConvention.so long
as theriehü and freedoms of the United States and othen nnder international
law are kcognized by such coastal States.
Second. the United States will exercise and assert its navigation and over-
flieht riehis and freedoms on a worldwide basisin a manner that is consistent
wzh thebalancc of interestsreflcned inthe Convention.The United Stateswill
not, however,acquiesce in unilateral ans ofother Statesdesignedio restrictthe
riehts and freedoms of the international communitv in naviea-ion and over-
flhht and other rclated high seas uses.
Third. I am proclaiming today an Exclusive Economic Zone in which the
United States will exercise sovereign righls in livingand non-living resources
within 200 nautical miles of its coast.This will provide United Statesjunsdic-
tion formineralresourcesout to 200 nautical milesthat arenot on the continen-
ta1 shelf. Recently discovered deposits there could be an important future
source of strategicminerals.
Within this Zone al1nations will continue to enjoy the high seas rights and
freedoms that are not resource-related, including the freedoms of navigation
and overîiight. My Proclamation does not change existing United Statespoli-
ciesconcerningthe continental shelf,marine mammalsand fisheries,including
highlymigratoryspeciesof tuna whicharenot subjectto United Statesjurisdic-
tion. The United States will continue efforts 10achieve international agree-
ments for the effective management of these species. The Proclamation also
reinforces this government's policy of promoting the United States fishing
industw.
~hi6international lawprovides for a rightofjurisdiction overmarinescien-
tific research withinsuch a zone. the Roclamation does not assen this ripht. I
have elected not to do so because of the United Statesinterest in encou6ging
marine scientific research and avoiding any unnecessary burdens. The United
States will nevertheless recognize the right of other coastal States to exercise
jurisdiction over marine scientific researchwithin200 nautical miles of their
coasts, if that jurisdiction is exercised reasonably in a manner consistent with
international law.
The ExclusiveEwnomic Zone establishedtodav willalso enable the United
Statesto take limitedadditionalstepsto proiecithcmarine environmcnt. In this
connection, the United States willconiinue to work through the International
Maritime Orna-ization and other aoor..nat. international ornani-ations 10
develop unifonn international measures for the protection of the manne envi-
ronment while imposinp,no unreasonable burdcns on commercialshipping.
The ooiicvdecisions fam announcine todav willnot affectthe aoolGtion of
existing ~nhed States law concerningThe h;gh seas or existing Ghorities of
any United States governmentagency.416 GULF OF MAINE
In addition to the above policysteps,the United States willcontinue to work
withother countriesto dcvelopa regime,freeof unnecessary politicaland econ-
~ ~ ~ ~~ ~~ints. for minine dëeo seibed mineralsbevond national iurisdiction.
Deep seabed &ing remzns a'lawfulexercise ofth; freedom of the high seas
open to al1nations. The United Stateswillwntinue to allowiü firmstoexplore
for and, when the market permits, exploit these resources.
The Administration looks fonvard to working with the Congress on legisla-
tion to implement these new policies.
DOCUMENT 3: FACT SHEET, UNITED STATESOCEANSFUUCY, 10 MARCH 1983
THEWHITE HOUSE
Ofice of the Ress Secretary
MARCH 10,1983
EMBARGO E DRRELEASEAT 4:ûû PM EST
Today the Resident announced ncw guidelines for U.S. oceans policy and
proclaimed an ExclusiveEconomicZone (EEZ) forthe United States.This fol.
lows hisconsideration of a senior interagencyreviewof these maners.
The EEZ Proclamation confirms U.S.sovereign rights and control over the
livingand non-living natural rcsources of the seabed, subsoil and supcjacent
waters beyond the territorial sea but within200 nautical miles of the United
Statesw&ts. This willinclude. in oarticular. new rinhtsover al1minerals(such
as nodules and sulphide deposiü; in the zone thaïare not on the continental
shelf but are within200nautical miles.Depositsof polymetallicsulphides and
c~ ~ ~ ~ ~eanese crusu inthese areas haie onlvbeen recentlv dis&vered and
- ~~~-~~ ~~ ~ ~
are yearsawayfrombeingcommerciallyrewve&ble. Butthey-wuld be a major
future source ofstrat-gic and other minerals important to the U.S. economy
and securitv.
The ~~~a~~liesto watersadjacent to the UnitedStates,the Commonwealth
of Pueno Riw. the Commonwealth of the Nonhern Mariana Islands (wnsis-
tent with the Covenant and UN Trusteeship Agreement), and United States
overseas territories and possessions. The total area encompassed by the EEZ
has beenestimated to exceed two million square nautical miles.
me Resident's statement makcsclearthat the proclamation does no1change
existingpoliciewith respect to the outer continental shelfand fisherieswithk
the U.S.zone.
Since President Tmman oroclaimed U.S. iurisdiction and wntrol ove1the
adjacent coni&ial shelfia 1945,the U.S.h& assened sovereignrighü for the
purpose of exploration and exploitation of the rcsources of the continental
shelf. Fundamental su~olcmentarv leeislation. the Outer Continental Shelf
Lands Act. was pasce by cong&ss rn l953.The President's proclamation
today incorporates existingurisdiction ovcrthe continental shelf.
Since 1976the United States has exercised management and conservation
authority over fisheries resources (withthe exceptioRof highly migratoryspe-
cies of tuna) within200nautical miles ofthe coasts. under the Magnuson Fish-
ervConse~ation and Management Act.The U.S.neither rewenizes norasse*
juksdiction over highly mTgratoryspecies of tuna. Such Species are best
managed by international agreementswith concerned countries.In addition 10 ANNEXESTO COUNTER-MEMOW OFCANADA 417
wnfiming the United States sovereignrightsover mineral depositsbeyond the
wntinental shelf but within200 nautical miles.the Proclamationbolsten U.S.
authority overthe livingresources of the zone.
The United States Kas also exercised certain other types of jurisdinion
beyond the territorial sea in accordance with international law.This includes,
for cxamole, iurisdiction relat-nn to oollution control under the Clean Water
A~ ~-~1~ ~and ~t-~~~~~~ ~.~
The President has decidednot to assen jurisdinion over manne scientificre-
search inthe U.S.EEZ.Thisisconsistentwiththe U.S.interestinpromotingmax-
imumfreedom forsuchresearch. The Depanment of Statewilltakestepsto facili-
iate accessby U.S.scientiststo foreignEEZ'sunder reasonableconditions.
The wncept of the EEZ is already recognized in international law and the
Resident's Proclamation is wnsistent with existinginternational law.Over 50
countries have proclaimed some fom of EEZ; some of these arc wnsistent
with internatiod law and others are not.
The wnccpt of an EEZ wasdeveloped funher in the recentlywncluded Law
of the Sea negotiations and is rcilected in that Convention. The EEZ isa mari-
time area in which the wastal state mav exercise certain limited Dowen as
rewgnized under international law.The ËEZ is no1the same as the &ncept of
the territorial sea, and is beyond the territorialjurisdinion of any coastal state.
The Resident's rocl la mat ionfim thai without oreiudiΠto the nphts
and jurisdidon of the United States in ils EEZ al1n;ti&s will continu; to
enjoy non-resource related freedomsofthe highseasbeyond the U.S.territorial
sea and within the U.S. EEZ. This means that the freedom of navigation and
overilight and other internationally lawfuluses ofthe sea willremai'nthe same
withinthe zone as they are beyond it.
The President has also established clear puidelinesfor United Statesoceans
policy by statingthat the United Statesis pGpared to ahpt and an in accord.
ance withinternational lawasreilected inthe resultsofthe Lawof the SeaCon-
vention that relate to traditional uses of the oceans. such as navkation and
overilight.The United Suites iswillingto rcspea the maritimeclai& of others.
including ewnomic zones, that are wnsistent with international law as
reilected in the Convention, if U.S.rights and freedoms in such areas under
international law are respened bythe coastai state.
The Presidenthas notchangedthebreadth of the United Statesterritorialsea.
It remains al3 nautical miles.The United Stateswillresoea onlv those territo-
rialseaciaimsofothen inexcessof 3 nautical miles,to amaxim;m of 12nauti-
cal miles, whichaccord to the U.S.its fullrights under international law in the
territorialea.
Unimpeded wmmercial and military navigationand overlïightare criticalto
the national interestof the United States.The United Stateswillwntinue to an
10 ensure the retention of the necessaw nnhts and freedoms
Byproclaimingtoday a U.S.EEZ and &ouncingotheroceans policy guide.
lines,the Presidenthas demonstratedhiswmmiunent tothe protectionand pro-
motion of U.S.maritime interestsin a manner consistentwithinternationaliaw.
END
DOCUMENT 4:SKETCHMAP SHOWtNG OUTUN€$ OF EXCLUSIVEECONOMICMNE OF
THE UNITEDSTATES. 10 MARCH 1983
[Norreproduced] Auuex 2
CANADIA DNlPLOMAnN COTENO.160 OF 26 APR~L 1983(WITHOU ATTTACHMENT)
CANADIAE NMBASSY AMBASSA DUECANADA
NoteNo.160
The EmbassyofCanada presents itscomplimentsto the De~aflmentof State
and has the honour to refefto President ~eagan's Proclamatfon on the Exclu-
siveEconomicZone of the United Statesof America,issuedon March 10.1983.
The State Depanment willrecallthat theCanadian authorities cxprcsscdcer-
tain views and iaised certain questions regarding a draft version of Resident
Reagan's Proclamationthat wasmade availabletoa numberof Govemments in
earlyJanuarv forcommentbvthem. Canada'sviewsand aueries weresetout in
an Aide-Memoireof ~anuaG 14,1983(copy attached for& of reference).In
that communication, the Canadian authorities undenook to provide substan-
tive wmments on the draft United States Proclamation and Oceans Policy
Statement,inthe lightofa fullundentanding oftheir purpon and, inparticular,
their basis in international law.
The Canadian authontics regret that il has not been possibleto obtain the
information reauested in the &de-Mémoire of ~anua~ 14. In the circum-
stances they do'not propose to comment in detail on th;Proclamation. site-
ment and Oceans Policy Fan Sheet issued by the President on March 10.The
Canadian authorities. however.must note wkh concer~ ~ ~ ~ ~~~~ ~ ~~ ~~ion
and related documents on a kmber of important points differ substantially
fromthe provisionsofthe 1982Convention onthe Lawof the Sea.and differas
wellfromcenain principlesof customaryinternational law.The ~ovemment of
Canada therefore formally reserves al1its rights with regard to the matters
treated in al1these documents.
The Canadian authorities have taken special note ofthe Proclamation'spro-
visions rcgarding the detennination of the boundaries betwecn the economic
zone of the United States and the economic zone or wrresponding zone of
neiehbourinn States. The Canadian authorities wish~ ~~ ~ ~ ~ ~~~ ~these .~-v~-
siois cannoiaffect the rights of such neighbouring States and, funher. cannot
affect the obligations and the mles and principles binding upon the United
States under customary international lawor under the 1958Convention on the
Continental Shelf. to which Canada and the United States remain parties. In
this connenion. the Canadian authorities rearçirmai this time the position of
the Government of Canada on the outstandin~ mari~ ~ ~~ou~daries with t~e~ ~ ~ ~
United Statesas communicated IO the United tat toensmany occasions.
The Canadian authonties have also taken special note of the Proclamation's
provisions rezardinz hinhlv mieratom soeciei of tuna and wish to stress that
&ch species.inder bothcistoLary iniemational lawand the 1982~onventjon
on the Law of the Sea. are subject to the sovereign ri&& of the coastal State
witbin the 200-mile economic zone or fishine zone. Canada. of course. is ore-
. =~
pared to cooperate with ncighbouring coastaï~tates with regardIo the conser-
vation and management of these and other species that migrale through and
between the zones of several States. ANNEXESTOCOUNTER-MEMORIAO LFCANADA 419
The above-noted eommentson partieular aspects of the United StatesProc-
lamation and relatcd documents should no1béconstrued as limitingthe com-
prehcnsive reservationof al1of Canada's rightsin relation to al1matters treatcd
therein.
The Embassy of Canada avails itself of this opportunity to renew to the
Department of State the assurances of itshighest consideration.
Washington,D.C.
Apri126.1983 Aonex 3
EXCERP FROM G. KAECKENBEE ICT,RNATION RILERSG,ROTIUSOCIETY
PUBLICATION No.1LONDON SW, EETNDMAXWEL LIMITED1,18P.32
[Not reproduced]
Aonex4
EXCERF TROMH. B.BIGELOW"F,ISHSFTHE GULFOFMAINE"B,ULLETINOF
THEUNPED STATESBUR~ UOF FISHERJVOL,.L,PART 1,192P.7
[Not reproduced]
Annex5
ExCERP RoM R. HARTSHORN "E, ENATUROF GEOGRAPHA YCRITICAL
SURVE YFCURREN THOUGH ITTHELICHTOf THEPAST", NNALSF THE
ASSOCIATIOONAMERICA GEOGRAPHEV RS,.XIX, NOS.3AND4, 1939,
PP.296-302
[Norreproduced]
Annex6
[Not reproduced] ANNEXESTO COUNTER-MEMORLOF CANADA 421
Annex7
EXCERI ROM F.P.SHEPAR DNDH. R WANLESO S,URCHANGINCGOASTUNES,
NEWYORKM , CGRAW-HIL1 L9,7P.7
[Norrepmduced]
Aunex8
[Nol reproduced]
Annex9
EXCERP FROM G.B.FADER L.H.KING ANDB. MACLEAN S,RFICIAGEOLOCY
OF THE EASTERGULFOFMMNE ANDBAY OFFUNDYG ,EOLOGICSAULRVEOF
CANADP AAPER76-17PP.1-4
[Nol reproduced]
Annex IO
EXCERP EROH C.J.R.GARR~. "TIUAL INRUENCE ON THEPHYSICAL
OCEANOGRAP OFYHE BAYOFFUNDY AND~ULFOFMAIN N". . DABORE. ..
FUNDY nDAL &WER AND THEENVIRONMENT.WOLFVILLE.-ACA UNIVERSITY
INSTITUT1E9,77,~~.~101-115
[Nof reproduced] Annex11
Exc~m mo~ R.E.SHERIDA"NA,TLANTCIONTINENTM ALRGI NFNORTH
AMERICA I",C.A. BUAND C.L.DRAKE E,DST~EGEOLOO OYFCONT~NENTAL
MARGINS N,EWYORKS ,PRINGER-VERL 19G4PP396-397
[Notreproduced]
Annex12
EXCERFT FOM E. UCHUP ITUNTICCONTINENTAL SHELF AND SLOPE OF THE
UNITEDSTAT ESPHYSIOGRAPHUNITESDTATEDSEPARTMEPITOF TTEERIOR.
PRINTINOG~CE, 1968PP~3 ANDCS
[Notrepmduced]
Annex13
EXCERP TIOMH.B.BIGELOW "P,HYSICOCEANOGRAP OFTHE GULFOF
MAINE" ,U~N OF THEUNITEDSTATEEURUU OF HER RIE,OLX.L,
PART11,1924PP518AND 519
[Nolrepmduced]
Annex14
EXCERP RIOMFINALENVIRONMENTA SLATEMEN PROROPDSD977OUTER
CONTINENTAL SHELOILANDGAS k4.5~ SALO~HORE THENORTHATIANTlC
STATESVOL.1,OCSSALE NO.42,UN~DSTATED SEPARTMENTOF INTEERIOR,
BUREA UFL*NU MANAGEHEV WI, SHINGTGNOVERNME ~TI~NGOFFICE,
[Notreproduced] ANNEXESTO COUNTER-MEMONAL OF CANADA 423
Annex15
Exc~m FROML. M. DICKIE",PERSPECTOESFISHERIEBSIOLOGYND
JMPUCATIO OR MANAGEMEN JOU,RNALF THE ~SHERIRESEARCB HOARD
OF CANADA V,OL. 6,1979, P.839
[Nol reproduced]
Annex16
EXCERF ROM J.P.WISEANDA.C. JENSEN",STOCKSFTHE IMPORTANT
COMMERCIAL SPECIESFFISHOF THICNAF CONVENTIO AREA" I,NAF
ANNUAM LEETIN G 30MAY -JUNE1960,SERIALO.743(D.c. 3),DOCUMENT
NO.25,P.1
[Nol reproduced]
Annex17
Exc~m FROMJ.P.WISE",CODGROUP N THENEWENGLANA DREA",
FISHERVBULL~TINV,O. 3, NO.1,196P.201
[Nol reproduced]
Annex18
SPECIAC0HMISSlOh. MEtT1h.G Oh. HERRI.VG, JANUARY-1972.ARY
CONSE VATIO~'OHERRI.~ MEMORANDU BY THEUNITFDSTATES.
lCNAF SERIALNo. 2680,SPEC. TG.COHMD. OC.72/1
[Noi reproduced] GULF OF MAINE
Annex19
SPECIALCOMMISSIOMNEETINGONHERRING ,ANUARY-FÈBRUARY1972,
CONSERVATIONOFHERRINGM, EMORANDUMBC YANADAI,CNAF SERIAL
No. 2685,SPEC. TG.COMMD.oc.72/2
[Nolreproduced]
Aunex20
MANAGEMENC TOUNCIAND SOUTH ATLANTIFISHERYMANAGEMENC TOUNCIL
JANUARY1982,P.6AND TABLE333.3P.60
[Nolreproduced]
Annex21
WASHINGTO UNITEDSTATEDSEPARTME NFSTATEA,PRIL198PP103AND 109
[Nolreproduced]
Aunex 22
TECHKICAR LEFERENCWUMENT FORBIIATERALNEGOTIATIO NSEEN THE
UNITENS>TATFSNI>CANADA J,ULV1976,UNITESTATENSATIONAMLARINF
FISHERIESERVICEN,ORTHWTFISHERIECSENTER W, OODHOLE,
MASSA CH US^L,ABORATOR RYEFERENCNO.76-12,1976P.53
[Nolreproduced] ANNEXESTOCOUNTER-MEMORIOFCANADA 425
Annex2.3
[Not reproduced]
Annex24
EXCER ROU CALENDA YtXR1981REPDR TN THE/MPLE.uENTATIo.VOF THE
MAGNUSO RSHEHY CONSERVATIOVAMANAGEME ANCTOF1976,UNITED
ADMINISTRATNIANT,IONL ARI NIHERISESRVICEASHINGTON,
GOVERNME PRTIN~NOFFICE182, 75
[Not reproduced]
Annex25
EXCERFFROMPACIFICISHERMA NA, Y19PP.'13-14
[Nol reproduced]
Annex26
EXCER FROMTHE FBHERMENN'SEWS,CTOBE 1978
[Nol reproduced] Anoex27
D.L.MCKERNAN."SCIE AND POLITICNNATIONA FISHERMYANAGEMENT",
&EuCA~IONS IF~SHFRI ESNEWSFRIEVS,OL. 1972PP.II1-114
[Notreproduced]
Annex 28
EXCERP FTOMNORTHWE STLANTRISHERIEOSRGANIUTIO ST,ATISTICAL
BULLETIVNO, 0, 198P.27
[Norreproduced]
Annex29
STATISTIRESPECTINLICENSEVESSEIIS SOUIHWE SOVA SCOTIA
[Notreproduced]
Annex30
[Notreproduced]
Annex31
D. RUSSELLR,EBELATERSB ", STONAOAUNE D,ECEMB E981
[N~Ireproduced] ANNEXESTOCOUNTER-MEMORULOFCANADA 427
Annex32
EXCER~ FROMS.SEDGEWICCK., OLUNSNDS.OLSENCOMMERCR WSHINC
FACIUTIENSEEDINRHOD SUND. COASTARESOURCESCENIER, NIVERSITY
OFRHODE ISLANDM,ARINAECHNICAREPORT80, 198PP.2, AND 20
[Norreproduced]
Aunex33
CANADIA CATCHSTA~STIC1979-1982
[Norreproduced]
Annex34
STAIISTIRSESPECnNGHEOFFSHOR FISHERYFTH SMAU-VESS El OF
SOUTHWEN SOVASCOTIA
[Norreproduced]
Auoex35
STA~~STRESPECTINUNITEDSTATELSANDINGS
(SourcNational Manne Fishenes Service,Data Managementand Statistics
Division.)
[Norreproduced] Annex36
STATIST~ONSAVERAC E~MPU)YMEK IC.OWEINNOVA ~COTIAAND
MASSACHIJS~,1980(Docuw~vn 1 ro3)
Document I:Excerpt from RevenueCanada, 1982TaxationSlatistirsAnalyzing
1980Tl IndividualRetums andMiscellaneousStatisri5,Ottawa,
Depariment of National Revenue 1982,pp. 102-103
Document 2: Revenue Canada, Unpublished Data, 1980
Document 3: Excerpt from United States Deparlment of Labor, News,
Washington, Bureauof LaborStatistics,USDL82-460,13 December51982,p.
[Nor reproduced]
Annex37
[Nol reproduced]
Annex38
[Nor reproduced]
Annex39
EXCEFPT SROMRSH,FRESH CHILLEODR FROZENWHETHE RRNOT WHOLE,
BUTNOT OTHERWISEPREF'AREDOR PRESERVED,FROM CANADUN~D STAW
INTERNATION %DEL COMMISSIO US,ITC PUBLICATIO066,MAY1980,
PP.IAND Al-A7
[Nor reproduced] ANNEXESTOCOUNTER-MEMORIOFCANADA
Annex40
COVE RAGE
[Norreproduced]
Annex41
EXCER FROM~SHERIESSTATIS~OFSTHEUNITEDTA7ES1976STATISTICAL
DIGES TO.70,WASHINGTO USDEPARTM ENTOMMER CEATIONAL
OCEANIC ANATMOSPHE ~D~INISTRATIO1980P7
[Norreproduced]
Annex42
EXCER FROMANNUAS LTATISTIRELVIEOFCANADUNFISHE1 RIE5-,1976,
VOL.9,OITAWADEPARTME OFFISHERIANSOCEANS,TABL1E5P.49
[Norrepmduced]
Annex43
EXCERPFROMW.L.LISCOM E, ïi~~ENERGDYECADE1, 7@1980.
A STATISTIANDGEOC~RAP CHHRONICLCA,MBRIGDBW.NGER
PUBLISHINCOMPAN1 Y9.8P415
[Not reproduced] Aooex44
R. V.GUIDOAND M. F. MORRONE", HEMICHELINECISION APOSSIBLNEEW
DIRECTIOFOR U.SCOUNTERVAIL IUGTLAW" N J. H.J~C~.OE.D..L~L
PROBLEMS OF INTERNATIONECONOMIR CFUTIO.VS,CASEMATERIA LND
~ X T ON TNATIONA ALD INTERNATIOVAL &GUUTlON OF T)UNSNATIONAL
ECONO.U IEuTIOVS,ST.PAULU, NIVERSITFYMICHIGA 9,7, P789-801
[Nol reproduced]
Annex45
[Nol reproduced]
Annex 46
EXCERF'T FRANNUAL STATISTICAREVIEWOFCANADUN RSHERIES,
1978,VOL.I1OTTAWA,DEPARTME NTRSHERIEASNDOCEANS TABL2E2P.41
[Nol reproduced]
Annex 47
EXCERITFROM DOMINIO NUREA UFSTATISTICRS,HERIETATISTICS OF
CANAD (1958)-NOVASCOTIA I, DUSTRAND MERCHANDIZI N VISION,
OCTOBE1R960,TABL EPP.DIE-D31
[Nol reproduced] ANNEXESTOCOUNTER-MEMORIAOFCANADA 431
Anoex48
EX CERF^FROMDIGBYCOUMYSTATISTIC.~PROFILEQUEE.VSOUNTY
STA~TICALPROFILE:UNENBURGCOUNTYSTATISTICAPLROFIL: ARMOWH
Scon~DEPARTMENTOF DEVELOPM ENLE,18P.28
[Not reproduced]
UNDATED, P2
[Not reproduced]
Annex50
EXCERP FROMANNUALSTATISTICALEVIEWOFCANADUNRSHERIES1 ,978,
VOL.II,OTIAWA D,EPARTM ENFISHERI ESDOCMNS T,ABLE6P.34
[Not reproduced]
Annex51
MANUFACTUR BYASCTIVIIN DIGBYLUNENBU AND RIVERPORT
(SourceNovaSwtiaDepartmentofDevelopmentNova ScotiaDirectoryof
Manufocturers,1979-1Halifa1980.)
[Nor reproduced] STATISTI ONSTOTAMLANUFACTUR IIBOSTO ANNDNEWBEDFORD
(DOCUMENTS 1AND 2)
Document 1:ExcerptfromByreauof LaborStatistiEmploymenatnd
EarningsStafesandAreas,939-7WashingtonU, nitedStatesDepartmentof
Labor,November1979,Bulletin1370-1.. ..271-275
Document 2:ExcerptfromL.J.SmithandS.J.Petenon,nie NewEngland
RshingIndustry:A Bafor Management, assachusetts,WoodHole
OceanographicInstituti1977pp.29-30and49
[Norreprodwed]
Annex53
[Norreproduced]
[Not reproduced]
[Not repraduced] ANNEXESTO COUNTER-MEMOULMOFCANADA
Annex 56
Exc~nm FKJM COSTANEDARNINC OFSELECTE RSHINCENTERPRISENSO,VA
SCOTIA1.981HAUFAX D,EPARTME NTFISHERIASD OCEANS E,CONOMICS
BRANCH S, PTEMB 982,P30,TABLE13C
[Nolreproduced]
Anoex 57
Ltmm mo~ C. A.O'CONNOR U,NITESTATECSONSU LTYARMO~,NOVA
SCOTIATO W. W.ROCKHILULN, ITSTATEASSSISTANSTCRETA RYSTATE,
10MARCH 1897DISPATCH ESOMUNITEDSTATESCONSUL IS YARMOUTH.
NOVA SCOTIAV,OL.,WASHINGTO DE,PARTME NFSTATE1899,NO.51
[Notreproduced]
Aooex58
EXCERPT FSOM &XUMENTS AND PRoCEEDINCS THEHAUFAX COMMISSION,
1877,VOL.PP.1075AN01080;VOL .1PP2047-2049
[Nolreproduced]
Anoex59
"BOSTOFNISHBUREAUR ",EDIGBYWEEKLYCOUR IER, CTOBER85P.12
[Nolreproduced]EXCERP FROME.A.ACKERMA NNE,wENGUND'&S SHININDUSTRCY, ICAGO,
UNIVERSI TFCH~CAO PRESS,1941PP4.5AND 141
[Noreproduced]
Aooex61
[Noreproduced]
[Noreproduced]
EXCER~FROM T.F. KNIGHS,HORENDDEEP SU FISHERIOFSNOVA
Scoru, HALIFAX.,GRANT1,86PP.1-6
[Norreproduced] ANNEXESTO COUNTER-MEMORIALOFCANADA 435
Annex64
LETTE 0 THEED~TO OF mE YARMOUTHHERA 10M, ARC1881
[Nor reproduced]
Annex66
ExCERFT FROMDOCUMENTSAND ~OCEEDINGOFTHE HAUFAXCOMMISSION,
1877VOL.1,PP643-645
[Nor reproduced]
Annex66
EXCERF FTOMREPOR TFTHEUNITEDSTATESCOMMISSION OE~HERILS FOR
THE AL YUR 1919APPEND I,WASHINGTON,GOVERNME RINTING
OFFICE, 1921,21-31
[Nor reproduced]
Annex67
EXCt'RPrS FROMICNASUWMAR RY~RT(MI~CTES)PANEL S,BARE 4,
~ESTRICTEDOCCMES 2T, SERINO.9.6 APRlL 195pp.1-6
[Nor reproduced]EXCERPT FOM ''TESTCALLOPRSHERYON OFFSHOREBANKS"~SHERIESNEWS
BUUETIN .OL.XI,NO. 124,FEBRUAR1Y940PP.2AND 4
[Norreproduced]
Annex 69
EXCERP FROM P. SHEA",SWORDFISSLEIGRIDE",MAINECOAS TSHERMAN,
JULY1958P.21
[Norreproduced]
Annex70
EXCER~ FROMT.AMIRO,M. MACDONALD-MACKENZIE AND J(CLINE)
NEWELL , SEI~~AGEDY WOOD' SARBOU 1950YARMOUTS HE,NIINEL
PRlNnNG Lm., 1977PP14,27AND 63
[Norreproduced]
Annex 71
EXCERPT FROMH.A.PERRY,INANDAROUND OLDBARRINGTO YNA,RMOUTH,
LESCARBO PINTINGLIMITED1,979PP22-26
[Norreproduced] ANNEXESTO COUNTER-MUIORIALOF CANADA 437
CERTIFICATION
1,the undersigned, L. H. Legault, Q.C., Agent for Canada, hereby
certify that the copy of each document attached as a Documentary
Annex in Volume IV of the Annexes to the Counter-Memorial Submit-
ted by Canada is an accurate copy, whether prepared by photographic
means or by transcription.
(Signed) L. H. LEGAULQ T.,C.
.. Volume V
Annex72
EXCERP ~ROM OILWEEK 2, MAY1964,PP 21-22
[Nor repmduced]
SELEC~EUDNITEDSTATEE SXPLORATIP ONRMIT (SOCUMENT 1SO6)
Document 1: Permit E6-75
Document 2: Permit E3-67
Document 3: Permit E3-68
Document 4: Permit E4-64
Document 5: Permit El-66
Document 6: Permit E4-69
[Norrepmduced]
Document I: Letterof 28September,l966 from Chevron Standard Limitedto
the Chief,source Management Division,Department of Nonhem Affain
and National Resources
Document2: SketchMap lllustrating SeismicRogram Camed Outby Humble
Oil in 1966Attached
[Norreproduced] ANNEXES TOCOUNTER-MEMORIALOF CANADA
Annex75
EXCFRFTFROM DRAFTENVIRO.\WFMALIMPACTSTATFMENTONTHEAGREEMENT
BE7WFF.V T&'ITEDSTATFSANDCANAD AhEASTCOASTRSHERY RESOURCES,
PP.7AND 116-124
[Nol reproduced]
Annex76
PREPARESDTATEME NTTHOM A SNORRISREPRESENTING THE BOSTON FISHING
STATE HOUSE OFREPRESENTAT9 I6EC,ONGRES IS,SESSIO22,UN E979,
PP.158-160
[Not reproduced]
Annex77
STATEMEUTSOFAPANECLONSISTI NFGORDON MURPHY PRESIDEMNATIONAL
FISIIERISSTITLTEDAVID BERGSOU R,PRtSEh71hG TMAINE ~DFISH
FISHERME NND JAMESL.WARREN ExECUTIVEDIRECTORM.AINESARDINE
[Not reproduced] Annex78
[Norreproduced]
Annex79
[Norreproduced]
Annex8û
EX CERFROMF.BARRY ,mEADMINIS~TIO OFTHEOUTERCON~~NENTAL
SHELFAND SCT''. ATURALESOURCEOSURNALO, L1.19PP.46-47
[Nol reprcduced]
Annex81
MIN^ OFTHET~VENTY-~IRMDEETING3,-25SEPTEME936,EXEC~IVE
SESSIONIT,ENOS.2AND14,NORTHERICA ACOUNCION RSHERY
INVESTIGATIPOROS, EEDIN9S,-1936,NO.3,OTTAA,INGSRINTER,
1939
[Norreproduced] ANNEXES TO COUNTER-MEMORIALCANADA 441
Annex82
FINALACTOF THE INIERNATIONFISHERIESONFERENC LO,NDON,
22OCIOBER 1943ANNEX 11AND RESOLUTION N2.
[Norrepmduced]
Annex83
EXCERF FTOMANNUA LEPORT OFTHDEPART-NI OFFISHERIEFSRTHEYEAR
1931-193P.31
[Norreproduced]
Annex84
ExcEnm FROM PROFOSED INJERNA770CONVENTIONF ORENORTHWEST
ATUNJIC FISHERIEBS,CKGROUN ODTHE ~OPDSEDCONVE~N FOR THE
NORJHWESA TTLAMIC EPARED BYTHE UNITEDSTATESF,EBRUAR1Y948
[Norrepmduced]
Annex85
LEITENo. 6OF7 JANUAR1Y949FROMJULIANF. HARRINCTOAN, ERICAN
MINISTE ROTHE SECRETAROYSTATEFOR EXTERNA AFFAlRS
[Norreproduced] Annex86
[Not reproduced]
Annex81
EXCERF FROM MIN^ OFTHESEVENTEEN MTH~NG OFNACFI,
6-7NOVEMBE 1930P.4
[Not repmduced]
EXCERF TROMG. A. ROUNSE~LLD,EVELOPMENT RSFERYSTATISTICSIN THE
NORTHATLANTIU C.NITESTATEDSEPARTME ONTTHEINTERIORR.SHAND
WILDLI&SERVICES, IENTIIEPORTNO. 47,1948P.8
[Norreproduced]
Annex89
NACFI AND ICNAF STA~STICA AREAS(DOCUMEN TSND 2)
Document 1:NACFI Chart No.1(StatisticalAreas,AtlanticCoast of North
Amena)
Document 2: Mapof lCNAF and ICES StatisticalAreasfrom ICNAF
Staristiu~lBulletin,Vol. 16,1966(1968)
[Norrepmduced] ANNEXESTO COUNTER-MEMORW OF CANADA
Annex90
Exc~m FKOMNORTH AMERICANCOUNCI ON FISHERIYNVESTIGATIONS,
PROCEEDING 1S2,1-1930,NO.1,OTTAWAK,INGPRINTER 1,93PP.24-26
Annex91
[Notreproduced]
ICNAF REPOR TFTHEMEETIN OGFPANE5L.2JUNE1959.PROCEEDINNGS.10,
SE= NO.649(B.PROCc./59)
[NOIreproduced]
Annex93
SE~O ICNAF DOCUMEN1 TS51-1952(DOCUMEN1 TSND2)
Document 1:ICNAF, Reportbythe Chairman ofthe FirstAnnual Meeting,
April 1951,p7-8
Document 2: ICNAF, SecondAnnual Reportforthe Year 1951-52,pp. 13-15
[Notreproduced] Annex94
ICNAF,TWENTY-SECO ANDNUAMLEETINGJ, NE1972,COMMISSIONERS'
DOCUMEN 7T/19
[Not reproduced]
Annex95
SELE~DICNAF DOCUMENT1S 970-197DOCUMENIT SO3)
Document 1:ICNAF, Twenty-firstAnnual Meeting,June 1971,Roceedings
No. 6
Document2:ICNAF,TwentiethAnnualMeeting,June 1970,Commissioners'
Document No. 70/23
Document3: ICNAF, Twenty-fint Annual Meeting,June 1971,Roceedings
No. I1,Appendix 1
[Norreproduced]
Annex%
L~ER OF 17FEBRUAR 197FROM b ADMIRA R.Y.EDWARDU S.NITED
FISNERIAND FORESTRYH,ALIFAX
[Nol reproduced]
Annex9l
ICNAF SCHEM OF INTERNATIONJAINTENFORCEMEINCTN,AFTWENTIFIH
ANNUAM LEETINGJ, NE1970,PROCEEDINGS.15,APPENDI1
[Nol reproduced] ANNEXESTO COUNTER-MEMORW OFCANADA 445
Aooex98
SELECTE DNAF DOCUMEN1T 961-1963(DOCUMEN TSO3)
Document :ICNAF,EleventhAnnualMeeting,June 1961,Roceeding5No.
(Revised)
Document2:ICNAF,TwelfthAnnualMeeting,June 1962,RoceedingsNo.3
Document3: ICNAF, ïhirteenth Annual Meeting,June 1963,Roceedings
No. 10
[Norreproduced]
Annex99
LETTEOF 16AUüUST1976FROMD.E.RuSS,SPECIALGENTNCHARGE U,NITED
STATESEPARTME NFCOMMERC NA,TIONAOCEANIAND ATMOSPHERIC
SERVICEHS, LIFAX
[Norreproduced]
Aooex100
LISOFSELECTE CANADNAFOm SUB- AR^5CULAT~O NSPLICABTOE
[Norreproduced]
Anoex101
LISOF SELECTECANADIA FISHERRYEOUUTIONS
[Norreproduced] GULF OF MAINE
Anoex 1M
EXCER~ FROMA LEGISUTIVEHISTO OFYTHE ~SHERCONSERVAT INN
MANACEMENTACT 1OF6UNITEDSTATECSONGRES COYMI~EE PRIVT,
94THCONGRES2SN,DSESSIOO,CTOBE1R976PP670.684-68AND 1080
[Norreproduced]
Anoex103
EXCERP FROMENCYCLOPAEB DIATANNIC EL,EVENTEDIIION, O. VII,
P.648
[Nolrepmduced]
Anoex104
ExcEnm FROM NEWENCYCLOPAEB DUITINNICV,OLIX,1974P.1014
[Notreprodueed]
EXCERF TROMASUN-AFRICALNEGA LONSULTATC IOEMMIT~ERE,PORTF THE
THIRTEENS THSSIONEU> IN LAGOS F18TO25JANUAR1Y972,PP155-160
[Nolreproduced] ANNEXESTOCOUNTER-MEMO ORUANADA
Annex106
[Norreproduced]
Annex101
Exc~m FROMS.W.BOGCS I, TERNATIONOALNDARINEE,WYOW
COLUMBU NIVERSIPTYESS1,94PP22-23AND188-190
[Nat reproduced]
Annex108
S.W.BOGGS",ROBLEMOSWATEB ROUNDAR DERNITIONMS: DIANINESND
INTERNATIOB NAUNDAR IHROUGHTERRITOIUWATERSG *',OCRAPHICAL
REVIEWV,OL.7, 19PP.445-456
[Not repmduced]
Annex10
M. B.FELI>M ANDD.COLSOZ "I.HMARITIM BOUNDAR IFTHEUMTED
STATES"&RIUN JOURNA OF~MERNATIONAL LAWVOL7.5. NO.4, 1981.
PP729-763
[Not repmduced]EXCERF TSOMDRAFETNVIRONMEN IPACTSTATEMENTONTAGREEMENT
B~EEN THEUNITEDSTATANS CANADAN EASTCOASTFISHRERSOURCES. TABL IV. US-CANADA AGREEM ENNEAST COAS RTSHER Y~SOURC~S
(Illustrarion ot'possible IOthe inrted States and Canada of their respective shares ofsrocks coverea oyihe Agreement
in tennsofpotential annual average long-tenn sustainable catch levels* and 1978ex-vesse1values*.) --
Psusrnidmtcli INC~<.tcm &fmrnr annuallong-icm sustoimbiemtch/nul< and
StmksprfmaiYIundirputd mtiiy vah1978pricumge pm,hanc 19USovem8eUSa-~~Codice
Codh zone (Mcrricrom) (1.000US$) US Cod (1,000US$) (1.000US$)
Stockund ureu
Hemng 4WX(adults)l 97,000 12,901 O 100 O 12,901 5.
Whitehalre4VWX 8,000 2,752 6.0 94.0 165 2,587
lllexsquid 3+4 120,000 26,160 O LOO O 26,160 e:
Cod4VsW 7,000 3,829 1.4 98.6 54 3,775
Cod 4X(off~hore)~ 4,000 1.984 7.5 92.5 149 1,835 Ô
Haddock 4VW 28,000 19,796 10.0 90.0 1,980 17,816 8
Haddock4X 26,000 18.382 10.0 90.0 1,838 16,544
Redfish4VWX 20,000 7,560 35.0 65.0 2,646 4,914 i
Redfish4RST 16,000 6,048 3 3 O 6,048 z
Redfish3-0 20,000 7,560 I 4 227 7333
Othcrgroundfuh 3+4s 167,327 68,939 1.0 99.0 689 68250 O
e
T~N 513,327 175.91I 7,748 168,163 6
n
Po~rnriolm~~n~-tcm Vahieo/&mt sha~ rem ofprrniiol2
num'dk mrchheh1<. Amr onnunllong-rmn nurnUi06iemtchIml5 and
Vohrcor USowmgr P M W C 1978awmgeUSa-wselprinr
Stah primrfinundipurcd PVondty 1978prim sluuc US . Cod ?
USzone (McMerom) (1.000US$) US Cod (1.000US$) (1.000US$)
Srocksundareus
Hemng SY(adults)l 16,000 2,128 LOO O 2,128 O
lllexsquid5+6 30,000 6.540 LOO O 6,540 O
Cod SY 8.000 4.376 98.4 1.6 4.306 70 k
Loligosquid5Z+6 4‘w"xI 46288 91.0 9.0 42.122 4,166 wGULFOFMAINE
$=--me-N
N
zO
::
2
3
On-
5 ANNEXES TO COUNTER-MEMORIU OFCANADA
COIIP~ERANALYSISLINEDIVIDINGFISAVU INVERTESRASTEECIEISTHE
GULFOFMAINEAREA INACCORDANC WITH THE &U>CA71ONS IN THE452 GULF OF MAINE i7461
COMPUTER ANALYSIS LINEDIVIDING FISH AND
INVERTEBRAS TPEECIESIN THE GULF OF MAINEAREA IN
ACCORDANC WElTH THE ALLOCATION IS THE
1979AGREEMEN OTN EASTCOASTFISHERY RESOURCES
Introduction
1. The 1979 Agreement on East Coast Fishery Resources estab-
lished quasi-permanent entitlements or allocations for 13 spediesof fish
and invertebrates in the Gulf of Maine area'. Theseries of computer
programs described in paragraphs 3 to 12 of this Annex determine a
single line that wouldivide the biomass of these 13 species within the
area in accordance with theannual permissiblecommercialcatch" enti-
tlements set out in the agreement.
2. Researchvessel and commercial fishing data were analysed to
estimate the relative distributions in the Gulf of Maine area of the 13
fish and invertebrate species.On the basis ofe estimates, a line was
computed for each speciesthat would divide the total biomass of that
species on the basis of the percentage allocations established in the
agreement. In order to achieve a compositeresult, a single line dividing
this complex of 13 species was computed by weighting each species
accordingto its long-term sustainable catch levelsand relative commer-
cial value, using for thisrpose the data set out in the Environmental
Impact Statement issued by the United States Department of State in
respect of the 1979 fisheriesagreement. This composite linehown in
Figure 15of this Annex.
Phase 1: COMPUTERANALYSISLINES DIVIDINGEACH SPECIES IN
ACCORDANC WEITH THE ALLOCATIONE SSTABLISHE IN THE
1979AGREEMEN OTN EASTCOASTFISHERY RESOURCES
3.Thefirst computer program extracts data from a S2K data base
on the Cyber 171 computer al the Bedford Institute of Oceanography.
For each of the12fish speciesthe data extracted represent the distribu-
tion of the biomass arrayed in ten-minute squares for the relevant man-
agement areas and for the relevant time period. The relevant manage-
ment areas are those established in the agreement for each of the various
species.The relevant time period, 1968-1980, selected for tenof the spe-
cies, is the period during which Canada and the United States used simi-
lar methodologies for researchvesselsurveys. For argentine and pollock,
Canadian surveys began only in 1970and therefore the time period used
forthese species is 1970-1980.In order to obtain as complete a picture
as possible,data are used from every surveyundertaken. The density of
the biomass foreach species isfined as the catch rate corrected for the
distance towed by the surveyvessel.
4. Because the bottom trawls used in the research surieys produce
very poor samples for scallops (the 13th species under consideration),
' Thesespecisredcscribd a"stocrangingsignificantlyiacrosthe baundary
regionD.raft Environmental IStatementnthc Agrecmcnt BctwcenUnited
Stateand Canada on EastCoast FisheRcsourccsW.ashington. UniStates
DcpartmcnofStatcApril 198p.118.t7471 ANNEXES TOCOUNTER-MEMORIALOF CANADA 453
their distribution for the purposes of this analysis is determined from
commercial scallop catch statistics. Accurate catch statistics for scallops
have beenaccumulated since 1957;accordingly theentire statistical ser-
ies from 1957to 1980 is used to define scallop distribution. Density for
scallops is defined as the total Canadian and United States catch within
each ten-minute square.
5. Table 1 shows the thirteen species and the management units
and time periods usedas inputs in the computer program.
6. The second cornputerprograrn aggregates the data extracted
from the data base for each species and calculates an average for the
appropriate time period. Every survey tow was included incalculating
the average, even if that tow contained no catch for one or more of the
speciesof interest in a giventen-minute square.
7. The third cornputer prograrnis the heart of the first phase, that
is, the determination of lines corresponding to the agreed allocations for
each species. It uses the average biomass in a ten-minute square for a
given species as input data. It is assumed for this program that each
square is homogenous interms of the density of the biomass. Thus, there
is no finer resolution at this stagethan the ten-minute squares. A series
of trial lines is projected through the area, and the proportion of each
species on the Canadian side of each trial line is calculated. Figure 1
shows these trial lines. The directions of the trial lines are based on the
Canadian claim, with four trial lineson either side.
8. If a ten-minute square falls completelyon one side or another of
a trial line, the total biomass found within that square is tallied to that
side. If a ten-minute square is cut by a trial line, it is assumed that the
fraction of the biomass on either side of the line is proportionate to the
number of corners on either side. Consider, for example, a trial line
going through a square so that it intersects one corner, has onecorner on
the United States side, and the remaining two corners on the Canadian
side. In this case the biomass withinthat square would be allocated two-
thirds to Canada and one-third to the United States. This approximation
will be generally unbiased and should not significantly colour the
results2.
9. A fourth cornputer prograrnproduces plots of the trial lines
based on the calculations of the proportions of the biomass for each spe-
cies located on the Canadian side of the trial lines as determined in the
third computer program. When a management area for a given species
(for example, argentine in 4VWX+5) extends outside the area shown in
the plots, the total management area is used in the calculations, even
though it is not displayed. Alsothe perceritages are shown rounded to
The basisfor dccidion whichride of thetrial baundarya cornerof a ten-minute
squarcir faundir thegcometricfact that a point insidaccloscdboundarywillsubtend
an angle of 360' whilea pointouuide will subtcndan angODo(if the anglcsare
signd). Ar thirmcthcàrquires closcoundaricst.wopointsare add10cachof the
boundariato makethemclmd. These pointsarc highin ihc Gulf of St. Lawrence
(SO'W.60°W) andfaraffsharc (40-N.SO'W)soas na1to influence theraulu.454 GULF OF MAINE t7481
the nearest percent,although they are accurate to one-tenth of a percent
in al1calculations.
10. The above programs complete the determination of the
resource distribution in relation to trialines. AJîifrh computerprogram
finds the "target line" for each species, that is the line dividing the
biomass of that species, in accordance with the percentage allocations
established in the 1979 fishery agreement. The "target line" for each
species is found by linearly interpolating between pairs of trial lines. For
example, if the fishery agreement provided to Canada a 10 percent allo-
cation of a given species, and if the proportion of the biomass on the
Canadian side of trial line +2 is 8 percent, and the proportion on the
Canadian side of trial line +1 is 16 percent, the location of the "target
line" would be placed one-quarter of the way between trial lines +2 and
+1. Linear interpolation implicitly assumesthe resource distribution is
homogenousbetween trial lines. In order to avoid extrapolation outside
the trial lines, it was assumed that 100 percent of the resource lies
between the northeastern limit of the relevant management area for each
species (see Table 1) and a line placed at a standard distance southwest
of trial line -4 (in effect a hypothetical trial line -5). This assumption
biases the positioning of the composite line to the northeast', that is,
rowards the Canadian Coast and to the disadvantage of Canada. The
"target lines" dividing each speciesin accordance with the allocations set
out in the fisheries agreement are shown in red in Figures2 through 14
of this Annex. Where the "target line" fell outside the trial lines to the
southwest, it wasdrawn only one trial line to the southwest of trial -4
(i.e., hypothetical lin-5).
11. The sole exception 10 the distribution of percentage shares is
mackerel. In the fishery agreement, Canada is allocated a 40 per cent
share of the mackerel in NAFO subareas 3, 4, 5 and 6. Il is assumed
that the mackerel in these subareas is composed of two components of
approximately equal size. One of the components feeds and spawns
exclusivelyin Canadian waters outside the Gulf of Maine area for half
the year. Therefore, 25 percent of the stock over a year (50 percent of
the total stock for 50 percent of the year) can only be fished by
Canadian fishermen and will be fished outside the Gulf of Maine area.
Thus, Canada would be allocated 15 percent (40 percent minus this 25
percent) of the remaining 75 percent of the stock in the Gulf of Maine
area. Twenty percent (that is 15/75) of the remaining stock is thus the
target used for the proportion of the Canadian allocation to be taken in
the Gulf of Maine area. It should also be noted that, consistent with
these assumptions, the economic value used for weighting this species
relative to the other species covered in the agreement (see the following
paragraph) is SU.S.92 million, that is 75 percent of the total value of
SU.S.122.64 million given in the United States EnvironmentalImpaci
Siarement.
" No spccicsconsidcredin this analysisarc constraincdIo the northeastby this assurnp
tionHowcver,the distributionalrangcof hcrring,pollcckand cusk ertcndssouthwest
of rhisconstrainingline.1749.7661 ANNEXES TO COUNTER-MEMORIALOF CANADA 455
Phase 11.THE COMPUTATIO N F A COMPOSITE LINE DIVIDING THE
COMPLEX OF SPECIES IN ACCORDANCE WlTH THE
ALLOCATION S STABL~SH ND THE 1979 AGREEMEN TN
EASTCOASTFISHERY RESOURCES
12. Once the "target lines" were found foreach species, they were
weighted by the value of the long-term sustainable catch levelsset out in
the Environmental Impact Statement on the 1979 fisheries agreement
issued by the United States Department of State. See Table 1. This
procedure assignseach species a weight or relative value directly based
upon its economic resource value. It produces the composite line by
simultaneously minimizing the total distance squared between the
individually weighted "target lines". This line is approximately 20 per-
cent of the way from theCanadian boundary claim toward trial line +I.
See Figure 15.
13. The composite linewould allocate 35.1 percent of the value of
these 13 fish and invertebrate resources to Canada. This compares with
the estimate of 38.3 percent share for Canada arrived at in the United
States Environmental Impact Statement.
TABLE 1
Management Pcriod CSharGan Valuc'
Spxies Ara' Examincd millions)
1.Scallop
2Cd
3. Haddock
4Mackcrcl
5Hcrring
6RcdHakc
7.SilvcrHakc
8.WhiteHakc
9. Pollock
10Rcdlish
~~.cusk
12Argentine
13.OthcrGroundfish
' Managemen arsawercdetermincdinthe 1979Agrcemcnotn EastCoast Fishcry
Rcsourccs.
PcrcentagcharesofcachspxicswcrccstablishforCanadaand fortheUnited
Siatcinthesamcagrccmcnt.
"Value"ir the vaofthelong-tcrsustainabeatchlcvcstimalcd itheUnitcd
StatcsIXgartmcnotfStaEnvironmenrolImpoel Slorementhe 1979agrccmcnt.
Values wcrccalculatcdusin1978 UnitcdStatesaverageex-vesslriccs.Scc
Anncx110. CERTIFICATION
1,the undersigned, L. H. LegaulQ.C., Agent for Canada, hereby cer-
tify that the copy of each document attached as a Documentary Annex
in Volume V of the Annexes to the Counter-Memorial Submitted by
Canada is an accurate copy, whether prepared by pholographic means or
by transcription.
(Signed) L. H. LEGAULT Q..C.
Counter-Memorial of Canada