Counter-Memorial of the United States of America

INTERNATIONLOURTOFJUSTICE

PLEADINGS,ORALARGUMENTS, DOCUMENTS

CASECONCERNINGDELIMITATION

OF THE MARITIMEBOUNDARY
IN THEGULF OF MAINE AREA

(CANADANNITED STATES OF AMERICA)

VOLUME IV
Counter-Memorialof the United Statesof America

. COURINTERNATIONAEEJUSTICE

MÉMOIRES,PLAIDOIRIESETDOCUMENTS

AFFAIRE DE LA DÉLIMITATION
DE LA FRONTIÈRE MARITIME

DANS LA RÉGION DU GOLFEDU MAINE

VOLUME IV
Contre-mémoiredes Etats-Unisd'Amérique The case conceming Delimitation of the Maritime Boundaryin the Guljof
Maine Area. entered on the Court's General List on 25 Novcmber 1981under
number 67. was the subiect of a Judement delivered on 12October 1984bv
the ~hambérconstituteiby the 0rde;made by the Court on 20January 198:
(Delimitation of the Maritime Boundaryin the Gul. . Maine Area. Jud~-ent.
I.CJ. Reports j984,p. 246).
The pleadings and oral arguments in the case are being published in the
followingorder:

Volume 1. Special Agreement; Memorial of Canada.
Volume II. Memorial of the United States of America.
VolumeIII. Counter-Memorial of Canada.
VolumeIV. Countcr-Memorial of the United States of America.
Volume V. Repliesof Canada and the United States of America.
VolumeVI. Commencement of Oral Arguments.
VolumeVI]. Conclusion of Oral Arguments: Documents submitted to the
Court after closure of the written pioceedings; Correspondence.
VolumeVIII. Maps, charts and illustrations.

Canada filed its pleadings both in Englishand in French. Although Canada
has IWO official languages. only the English tcxtof those documents is reoro-
duced on the ensuhg -.ees-O-fthese volumes. as Canada has informed-the
Registrythat the English textshould be seen asauthoritative for the purposes
of interpretation.
Certain pleadings and documents of this edition are reproduced photo-
graphically fromthe original printed text.
In addition to the normal continuous pagination,the Volumesfeature on the
inner margin of pages a bracketed indication of the original pagination of the
Memorials,the Counter-Memorials.the Repliesand certain Annexes.
In intemal references,bold Roman numerals(inthe tex1orin the margin)are
used to refer to Volumes ofthis edition: if thev are immediatelv followedbv a
page reference,this relatestothe newpaginatian of the volumein question.on
the other hand. the page numbers which are oreceded by a referenceto one of
the oleadines relate tithe orieinal oaeination of that document and accord-
ingl; refer to the bracketed pa&ation;>f the document in question.
The main maps and charts are reproduced in a separate Volume(Vol.VIII),
with a renumberinn. indicated bv iineed numerals; that is also added in the
margin in volumes 1-VI1wheGver -corresponding references appear; the
absence of such marginal reference means that the map or illustration is not
reproduced in the présentedition.
Neither the typography nor the presentation maybe used for the purpose of
interpreting the texts reproduced.

L'affairede laDélimitation delafrontière maritimedansla régiondugo& du
Maine. inscrite au rôle généralde la Cour sous le numéro67 le 25 novembre

1981.a fait I'obietd'un arrêtrendu le 12octobre 1984Darla Chambre consti-
tuéebar ordoniance de la Courdu 20janvier 1982 (~éiimifationdeIaJiontiPre
maritimedansla rkgiondugave du Maine, arrêt,C.IJ.Recueil 1984,p. 246).Vil1 GULF OF MAINE -GOLFE DU MAINE

Les pièces de procédure écriteet les plaidoiries relativeà cette affaire sont
publiées dans i'ordre suivant:

Volume 1. Compromis: mémoire du Canada.
Volume II. Mémoire des Etats-Unis d'Amérique.
Volume III. Contre-mémoire du Canada.

Volume IV. Contre-mémoire des Etats-Unisd'Amérique.
Volume V. Rénliauesdu Canada et desEtats-Unis d'Amériaue.
Volume VI. ~ébit de la procédureorale.
Volume VII. Suite etfin de la procédureorale: documents présentés à laCour
après la fin de la procédureécrite; correspondance.
Volume VIII. Cartes et illustrations.

Le Canada 3 déposé,e, pièces de procediire écriteen anglais et en francais.
Bien que le Canada ait deux languesuîficielles, seul le iexte anglais de sesécri-

tures est revroduit dans les volumes ci-dessus.le Canada avant fait savoir au
Greffe que: en ca. d'interprétation, c'était le texie anglais qui de\.ait faire foi.
Certaines pièce5de la pré5enteédition sont photographiéesd'apres leur texie
imprimé oriiinal
Outre leu; pagination continue hahituelle. les volumes comportent. entre

crochets sur Ic hord intéricur des pages,l'indication de la paginationoriginale
des mémoires,des contre-mémoires, des répliques etde certaines de leurs an-
nexes.
S'agissant des renvois, les chiffres romains gras (dans le texte ou dans la
marre) indiauent le volume de la présenteédition: s'ils sont immédiatement
sui\is pïr une référencedc page, cette référencerenvoie i la nou\,elle pagina.

[ion du \,olume concerné.En revanïhe, les numérosde page qui sont précédés
del'indication d'une picce de procédure\iscnt la pagination originale de ladite
piece et rrnvoient donc ë la pagination entre crocheis de la pièce mentionnée.
Lesprincipales cartes sont reproduite, dans un volume séparé(VII1)où elles
ont recu un numérotare nouveau indiaué var un chiffre cerclé.Dans les vo-

lumes l ëVII. les ren\,iis aux cartes et iflusirations du volume Vlll sont portts
en marge seloncc nouveau numérotage,et I'absencedetout renvoi i la présente
édition sienifie au'une carte ouillustÏation n'est vas revroduite.
Ni lat~ogrd~hie ni la présentationnesauraient Cire"tilisécsaux finsde l'in-
ierpréiatiun des textesreproduits. CONTENTS -TABLE DES MATIÈRES

Page

Codes Etats-Unisd'AmériquetedStates of Ameria - Contre-mémoire

Introduction. ....................... 8
Chapter 1. Geography ................... 9

SeUnited Statesand Canadian Memorialssagr...........een the 9
Section2. Thegeographical relationshipofthe Parties ..... II

A. Thegeneraldirection of theCoastinthe Gulf of Maine area is
annears to alleee...................67 degrees as Canada II
B. ih; geographGal relationship of the coasts of the Parties in
the relevani area is generally adjacent. particularly in the ex-
icrior ofthe Gulfof Mainarea ............. 12
C. The geographical relationship of the Parties is north-south,
not east-westas suggestedbyCanada ..........
Section 3. CoastalfeaturesoftheGulf of Mainearea ......
A. The coasts of Maine and New Hampshire are part of the pri-
marycoastalfront ofthe United States ..........
B. The Nova Scotiapeninsula protmdes south of the land boun-
day ........................
C. The coastlinesof the Bayof Fundy do not facethe area being
delimited and are irrelevant for purposes of the proportion-
alitytest ......................
D. Cape Cod, Nantucket Island, and Martha's Vineyard are
closelyassociatedwiththeGulf of Maineand GeorgesBank .
Chapter II. Geomorphology and geology ............
Section 1. Points of agreement and disagreement between the
United Statesand Canadian Memorials ...........
Section2. The Northeast Channel is one of the principal geomor-
phological features in the Gulf of Maine area, and is the only
major break in the surface of the continentalelf in the Gulf of
Mainearea, whilethe Great SouthChannel isneither .....
Section 3. Georges Bank is an extension of the Atlantic Coastal
Plain and East Coast Continental Shelf,and is nota topographie
islandas Canada suggests ................
Chapter III. Themarineenvironment .............
Section 1. Points of agreement and disagreement between the
United Statesand Canadian Memorials ...........X GULFOFMAINE -GOLFE DU MAINE

Section2. The separate and identifiable ewlogical regime of
Georges Bank is associated with Nantucket Shoals and the East
Coast Continental Shelf and not with the seoarate and identifi-
ableewlogical regime ofthe Swtian Shelf ..........
Section3. The Northeast Channel shapes the marine environment
ofthe Gulfof Mainearea .................
A. The Northeast Channel determines the circula~ ~ ~ r~~~~n o~
the waterin the~ulfof aine Basinandon~eor~es Bank .
B. The Northeast Channel determines the physical characteris-
tics of the watersof the Gulf of Maine Basinand of Georees-
Bank .......................
C. The Northeast Channel enhances the tides of the Gulf of
Maine Basinand ofGeorges Bank ...........
D. The Northeast Channel separates fish stockswithinthe Gulf
of Mainearea ....................
Section 4. Hydrocarbon development on the northeastern portion
of Georges Bank would placethe marine resources of the entire
Bank at risk; such development would no1threaten Canadian
stockson the ScotianShelfortheCanadiancoast .......
Chapter IV. Fishingactivities ofthe Partiesand theirnationals ...

SeUnited StatesandofCanadian Memorialsagre...........en the
Section 2. Georges Bank wasdeveloped and fished almost exclu-
sively by the United States: the Canadian fishery on Georges
Bank islimitedand of recentoriain ............
-
A. TheGeorges Bankfisherywasdeveloped bythe United States
in the early part of the nineteenth century.andfished almost
exclusivc.vb-the United Statesoriortothesewnd halfofthis
century ......................
B. In the second half of this century, the theretofore exclusive
incursionofforeignhshing, in&ding from~anldaected to .h, , .

Section 3. A division of Georges Bank would deny United States
fishermen accessto the northeastemoortion ofGeorees -ank.an
area ofpastand present United~tate; interest .........
Section4. Fishermen from Maine and New Hampshire have his-
torical and present fishing interestson Georges Bank .....
SeNorthwest Atlantic Fisheries illustrates that the United States
has the predominant interest in Georges Bank, whileCanada's
interestcenten onthe majorfishingbankstothenorth oflcanada

Chapter V. Continental shelf activities ofthe Parties and their natio-
nal~ ..........................
Section 1. Points of aareement and disanreement between the
United Statesand canadian Memorials .- ..........
Section 2. The United Stateshas issued exploration pcrmits forthe
northeastern oortion of Georees Bank vunuant to which exten-
sivegeophysiLalexploration h& taken dace ......... CONTENTS -TABLE DES MAnERES
Page

Chapter VI. Other relevantactivities.............. 49
Chapter VII. Historyofthe dispute .............. 50
PART II. THE LAW ...................... 59
Introduction ........................ 59
Chapter 1. The function of the Court isto delimitthe singlemaritime
boundary in thiscase in accordancewithprinciples and mles of law
throughthe application of equitableprinciples;itisnotthe function
of the Court to make an equitable apportionment of the area
through an exerciseindistributivejustice ...........
Section 1. All previous continental shelf adjudications have
rejected equitable apportionment, or sharing out, as a basis for
delimitation ......................
A. The NorthSea ContinentalShelfcases ..........
B. nie Anglo-FrenchArbitration ..............
C. The Tunisia/Libyacase ................
Section2. Neither the FisheriesJurisdiction casesnor cases involv-
ing the delimitation of exclusivefishingzones support equitable
apportionment, orsharingout ..............
A. nie FisheriesJurisdictioncases .............
B. nie Grisbadama case .................
C. TheAnglo-NorwegianFisheriescase ...........
Section3. The convention adopted by the nird United Nations
Conference on the Law of the Sea rejects equitable apportion-
ment,orsharing out,asabasis fordelimitation ........
Section4. Conclusion ...................
Chapter II. Canada relies upon rejected interpretations of the law
govemingthedelimitation ofmaritimeboundaries .......
Section 1. International lawrejectsewnomicdependence and rela-
tive wealth as considerations relevant to a delimitation between
neighbouringStates ..........
A. International adjudications relating io fishing reject the rele-
vance of economicdependence or relativewealth 10 the deli.
mitation ofmaritimeboundaries ............
1. TheAnglo-NorwegianFisheriescase ..........
2. The FisheriesJurisdictioncases............
3. nie Grisbadamacase ...............
B. Adjudications relating to delimitation of the continental shelf
reject the relevance of economic dependence or relative
wealth .......................
1. The NorthSea ContinentalShelfcases .........
2. The Tunisia/Libyacase ...............
C. Considerations of economicdependence and relative wealth
cannot be usedto refashionnature ...........
D. Conclusion .....................
Section2. The equidistance method is neither required nor pre-
ferred inthedelimitationofmaritime areas .........
A. The argumentsset forth byCanada to support a specialstatusXII GULFOF MAINE-GOLFE DU MAINE

Page
for the equidistance method were rejected in the North Sea
ContinentalShelfcases ................ 84
B. Adjudications subsequent to the North Seo ContinentalShelf
cases likewise reject any special status for the equidistance
method ......................
C. The establishment of 200-nautical-milezonesalso denies anv
spccialstatus forequidistance .............
D. State practice also rejectsequidistance as the legallyrequired
or ~referredmethodof delimitation ...........
E. Conclusion .....................
Chapter III. Unratified, rejected treaties do not create legal obliga-
tions orrinhts and under international lawcannot be invokedto the
prejudiceof anegotiating tat te ...............
Chapter IV. Canada fails to address al1of the fundamental require-
men& of the doctrines of acquiescence and estoppel and fails to
satisfythose requirementsthat itdoesaddress .........
Section 1. nie doctrines of acquiescence and estoppel require
clear and unambiguous conduct, no1only by the State asserting
the domines, but also by the Stateagainst which the assertion is
made .........................
Section2. The official uDonwhoseconduct claims of acauiescence
and estoppel are madimust have theauthority to bind the tat te
Section3. Acquiescenceand cstoppel rcquirc passageof a subsian-
tial period oftime ..................... .
Section4. nie Party asserting estoppel must have suffered detri-
ment resulting from reasonable reliance upon the purported
acquiescence ......................

PART III. APPLICATIO OFTHE LAW TOTHE FACTS ..........
Introduction ........................
Chapter 1. The United States is not barred from wntestinz Canadian
claims to jurisdiction over a portion of Georges Bank by the doo
trines ofacquiescenceand estop- - .............
Section 1. Canada did not assen clearly and unambiguously a
maritime boundary claim in the Gulf of Maine area in which
the United Statescould acquiesce .............
Section2. MI. Hoffman, a United States Government emdovee.
did not acquiesceinany purported Canadian claim ........
Section 3. MI. Hoffman lackedthe authority to consent to anypur-
ported Canadian claim ................. ~ -
Section4. Theconduct of the United Statesboth before and during
the relevant period was inconsistent with consent to any pur-
ported Canadian daim .................
Seclion 5. The United Statesmade timely protest of any purported
Canadian claim ....................
Section6. Canada did not relvIo its detriment uoon anv action or
inaction ofthe ~nited tat te; .................
Section 7. Canada'sclaimofacquiescenceignoresthe fisheries and
otherdimensions ofthiscase ...............
Section 8. Conclusion ................... Xlll

Page
Chapter II. The adjusted perpendicular line proposed by the United
States produces an equitable solution, while the Canadian line
wouldnot ...................
Chapter III. The Canadian line isbased upon a number of misappli-
cations ofthe lawtothe facts ................
Section 1. The Canadian linewould nottakeinto accountthe Iloca.
tion of theinternational landboundary . ; .........
Section2. The Canadian linewould cut offthe extensionofthe pri-
mary coastal front of the United States seaward of Maine and
New Hampshire ....................
Section3. The Canadian line would not result in a proportional
delimitation ......................
Section4. The Canadian linewould disreaardthe Northeast Chan-
nel. which is asignificant geomorpholigical feature and naturdl
boundary between the two separate and identifiable ewlogiwl
rerimes ofGeoraes Bankandthe ScotianShelf.and whichconsti-
tu&sa circumst~ncerelevanttothedelimitation in thiscase . .
Section 5. The Canadian line would disregard the conduct of the
Parties and their nationals as circumstances relevantto delimita-
lion, particularly the predominant interestof the United Stateson
Georges Bankand inthe GulfofMaine Basin ........
A. The Canadian line is not suooorted bv Canada's recentand
Iimitedfishing activityon GéorgcsBank,as contrasted Io the
develi~pmentof the fisheries of Georges Bank and their
loneerand fulleruse bvthe United States~
B. TheCanadian line diskgdrds the fishennen from Maineand
NewHampshire whohave fishedon Georges Bankinthe past
and whodo so todav: the Canadian line overlooksthe funda-
mental interest in this case of the States of Maine and New
Hampshire .....................
C. The Canadian lineisnot supported hythe exercise ofgovem-
mental responsibility in relation to Georges Bank and the
Gulf of Maine Basin .................
D. The Canadian line is not supported by the rejected and un-
ratified 1979East Coast Fisheries Agreement, which is legally
irrelevant and factually inconsistent with Canada's conten-
tions ........................
1. In addition to being legally irrelevant,the canadian argu-
ment regarding the rejected and unratified East Coast
Fisheries Agreement is not supported by the content of
that Agreement ..................
2. The Canadian argument seeks to penalize the United
Statesforengagingingood-faith negotiations .....

Secrelative wealth,upon whichCanada reliesto supportenceits line,are

not legallyrelevait; evenifsuch considerations were legally rele-
Canada's claims, ..................... analyzed, do not support
Section7. The Canadian line would not take account of the Iwo
equitable principles that the boundary should facilitate resourceXIV GULF OF MAINE - GOLF'EDU MAINE
Page

wnscrvation and management, and that the houndary should
minimizethc potcntial forinternational disr>utcs ....... 144
A. The Canadian line would hinder conservation and manaae- -
ment ofthe fisheryresources ofGeorgesBank ....... 144
B. The Canadian line wouldnot minimizethe potential forinter-
national disputes .................. 148
I. The Canadian line would create a perpetual dispute over
the division ofthe fishem resources ......... 148
2. The Canadian line wohd bring into direct wnfiin the
national fisheries policiesofthe Partie........ 149
3. A boundam dividinn Georees Bank wouldcreate a maior
and contin;ing irritant in tie relationsbetweenthe ~niied
States and Canada, because Canada would be entitled to
entire bank, without bearing a commensurate risk of the
marine pollution .................

Section 8.The Canadian line disregards State practice in geogra-
phicallysimilarsituations ................
A. TheNorthSea ...................
B. The Bayof Biscay ..................
C. Conclusions may be drawn from the practice of States in
geographicalsituations similarto the Gulfof Mainearea . .
Chapter IV. Summaryofthe application ofthe lawtothe facts ...

Submissions ........................
Annexes tothe Counter-Mernorialojthe UnitedStates ofArnerica

Volume 1. Pan A
Anna I. The marine environment ofthe Gulf of Mainearea
Preface .........................
Introduction .......................
Chapter 1. Phvsicaloceanogr...y oftheGulf of Mainearea ...
Section 1. nie Gulfof Maine Basin,Georges Bank,and thc Sm-
tian Shelfare topographicallydifferenifromone another ...
Section 2. The Gulf of Maine area is divided into ihrcc scoaratc
and identifiableoceanographicregimes ..........

A. The different origins of their waters distinguish the three
seoarate and identifiable oceanoeraohic regmes
B. graphicregimesoftheGulfofMaineareai&uish tr....... occano-
C. Differences in temperature distinguish the three separatc
andidentifiableoceanographicregimes ........
D. Differences in salinity distinguish the three scparate and
identifiable oceanonraohicreëimes .........
E. Differencesinthc d&ee to wiich thcir watersarestratificd
or verticallymixed distinguish the thrcc separate and idcn-
tifiableoceanographicregimes ............
Section 3. The tides in the Gulf of Maine area interact with and reflect the topographic features underlying and separatingthe
threeoceanographic regimes ofthe area . . . . . . . . . .
Chapter II. Theecology oftheGulfofMaine area . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . .
Secand identifiable ecologicalregimesdi. . . i. . .hr. . . .rat. .
A. The production of marine plants inthe Gulf of Maine arsd
reflectsthe water dynamics ofthe three separate and iden.
tifiableoceanographic regimes . . . . . . . . . . . .
B. Zooplankton production and distribution in the Gulf of
Maine area reflects the water dynamics and other physi-
cal characteristics of the three sevarate and identifiable
oceanographic regime~ . . . . . . . . . . . . . . .
C. the wiltcrdvnamicsand othcr vhvsicalcharacterisiinofthelects
three sepa&te and identifiabléoéeanographicregimes . .
1. Some specics of fish prefer shallow water and do no1
showpronounccdseasonal movernent . . . . . . .
2. Somcspeciesof fish moveonand offshoreseasonally in
search of warmer water . . . . . . . . . . . . . .
3. Somespeciesoffishpreferdeep. colder waters . . . .
4. searche;>fcold watersve. . .do. . . . se. . .ll. . . . .
5. Movementof other species . . . . . . . . . . . .
D. Separate stocks are associated with each of the three
oceanoer-.hic regi-esoftheGulf of Mainearea . . . .
1. Separate stocksoffish and shellfishspecieshaveformed
within each of the three oceanographic regimes in res-
ponse tooceanographicand ewlogical factors ; . . .
2. Separate stocks of commerciallyimportant specics have
the Scotian Shelf,Georges Bank,and the Gulf of Maines of
Basin . . . . . . . . . . . . . . . . . . . . .
i. Major stocksareseparated bythe Northeast Channel
a. Atlanticcod . . . . . . . .. . . . . . . .
b. Atlanticherring . . . . . . . . . . . . . .
c. Haddock . . . . . . . , , . . . . . , , .
d. Silverhake . . . . . . . .. . . . . . . .
e. Redand whitehake . . . . . . .. . . . . .
g. Yellowtaililounder. .... . . . . . .. .. . . . .
h. Seascallops . . . . . . . , . . . . . . . .
i. Lobster . . . . . . . . . . . . . . . . . .
j. Cusk. . , . . . . . . . . . . . . . . . .
k. Longfinsquid . . . . . . . . . . . . . . .
ii. Some fish populations cross al1possible boundaries
intheGulf of Mainearea . . . . . . . . . . . .
a. Mackerel . , . . . . . . . . . . . . . . .
b. Pollock . . . . . . . . . . . . . . . . . .XVI GULF OF MAINE -GOLFE DU MAINE

Page
c. Argentine . . . . . . . . . . . . . . . . . 218
d. Shortfin squid . . . . . . . . . . .. . . . 219
Section2. Biogeographersrecognizea faunal boundary that sep-
aratesthe GeorgesBankregime fromthe ScotianShelfregime 219
Chapter III. The Northeast Channel and itss-mificance . . . . ?23
Section 1. The physical oceanography of the Gulf of Maine area
wouldbe rddicallvalieredifthe NortheastChanneldid no1exist ?23
A. The physical oceanography of the Gulf of Maine Basin
would be radically different if the Northeast Channel did
not exist . . . . . . . . . . . . . . . . . . . . . 223
B. ThephysicaloceanographyofGeorges Bankandthe south-
em New England shelf would be radically different if the
Northeast Channel did not exist . . . . . . . . . . . 226
Section2. The ecologyof the Gulf of Maine area would be radi-
callyaltered ifthe NortheastChannel did notexist . . . . . 227
Conclusion . . . . . . . . . . . . . . . . . . . . . . .
AppendixAIoAnnex1. Cod . . . . . . . . . . . . . . . .
AppendixBIoAnna 1. Hemng . . . . . . . . . . . . . . .
AppendixCto Anna 1. Haddock . . . . . . . . .. . . . .
AppendixDEoIoAnna 1. Redhakee . . . . . . . . . . . . . ..
AppendixFtoAnnex1. Redfish . . . . . . . . . , . . . . .
AppendixGtoAnnex1. Yellowtailflounder . . . . . . . . . .
Appendix H toAnnex1. Scallops . . . . . . . . . . . . . . .
AppendixI IoAnna 1. Phytoplankton concentrations through the
year . . . . . . . .. . . . . . . . . . . . . . . . .
Appendix J to Annex1. Source of Figure 52, Zoogeographic Ro-
Institute of Science (E. L. Bousfield and M. L.e NovH.ScThomas,
"Postglacial Changes in the Distribution of Littoral Marine
lnvertebrates in the Canadian Atlantic Regions", in hceedings
of the Novia Scotia Instituteof Science,Vol. 27,Supp. 3, 1975,
pp 47-60) . . . . . . . . . . . . . . . . . . . . . . .
Appendix K Io Annex1. Bathymetric data hase used to develop
Figures2,3,4,5,6,8and9 . . . . . . . . . . . . . . . .
ApBigelowand W. C. Schroeder, "Fishes of the Gulf of Maine", in
FisheryBulletin74,Vol. 53, 1953p ,p. iii-1,and lis1of changes in
namesand classification,pp. 1-2) . . . . . . . . . . . . .

Volume1. Part B
Annex2. Environmental risks of hydrocarbon development on the
nonheastem portion of GeorgesBank . . . . . . . . . . . :
Reface . . . . . . . . . . . . . . . . . . . . . . . . ,
Introduction . . . . . . . . . . . . . . . . . . . . . . .
ChapterI. Oil discharged into the water column over the
Bankand he transported alongthe Bankto thesouthwestnon the . . . Chapterll. Oil discharged into the water column on the
northeastem oortion of Geor-es Bankwould damane -he marine
resourcesof the entire Bank................
Conclusion .......................
AppendirA toAnna 2. Oil-spilltrajectories for dischargesal point
X ..........................
App..dirB taAnnex2. Oil-spilltrajectories for dischargesat point
r ..........................
Ao..ndirC taAnnex2. Descriotion of the comouter model svstem
used todevelop Appendices;4and B ... 1 .........
AppendixD ro Anna 2. Source of Figure 1, Processes lnvolved in
Appendir EoftaiAnna 2. sourcelof Table A, Results of Incubation.
of Flatfish Larvae in Water-Soluble Fraction of Prudhoe Bay
Cnide Oil .......................

VolumeII
Annex3. The actinties of the United States and Canada under the
International Convention for the Northwest Atlantic Fisheries
(ICNAF) ........................
Introduction .......................
chapter l.?he roleofthe United Statesinthe formationoflCNAF
of GeorgesBankstor....................United States in the fisheries

SeGeorges Bankfisheries islongstandingta.......... in the
Section 2. The United Statestook the initiativeto form a multila-
teral convention for the conservation and management of the
fisheriesof the Northwest AtlanticOcean .........
Chapter II. The legalstructure of ICNAF ...........
Section 1. The Conventionarea ..............
Section 2. Thesubareas .................
Section3. The Commission ...............
Section4. The Panels ..................
Section5. Theadoption of regulations ...........
Section6. Specializedstandingcommittees .........
Chapter III. The actions and proposais of the United Stateswithin
the Commission confirm the United States leadership role in
seekingto make ICNAFeffective .............
Section 1. The United States look action to ensure the timely
adootion of repulaiionsand amendmentstotheConvention .
section2. The Ünited States proposed catch-quota systems to
protect the fisheriesofGeorges Bank ...........
Section 3. Aprotowl proposed hythe UnitedStatesprovidedfor
a moreflexibleconservationand managementstandard ...
Seeffectiveinternational enforcementoronramt... to develop an
. -
Chapter IV. Specific management measures adopted by the Com-
mission confirm United States leadership in Panel5, reflectingXVlll GULFOF MAlNE -GOLFE DU MAINE

the predominant interest of the United States in Georges Bank,
and Canadian leadership in Panel 4 ............
Section 1. The United States proposed net-mesh regulations for
Subarea 5 ......................
Section 2. The United States proposed the adoption of stronger
conservation measures forSubarea 5 beginning in the mid-1960s
Section 3.The United States and Canada used the concept of
coastal-Statc preferenccs against distant-water States: the sec-
ond-tier quotas reflcn the predominant interest of the United
tat tein Subarea 5 ...................

Chapter V. The scientific research activities of the United States
and of Canada under ICNAF ...............
Section 1. 'ihe United States conducted most of the scientific
research on Georees Bank. while most Canadian research con-
cerned the fisheriës in ~ubarea3and 4 ..........
Section 2. United States scientific researchormed the founda-
lion for the regulatorymeasures adopted by Panel 5

Chapter VI. United States and Canadian enforcement activities
under the ICNAF ioint international enforcement scheme reflect
~ ~ r~~~~mina~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ States in Subarea 5and of
Canada in Subarea4 ..................
Conclusion .......................
Tables BI-B25 ......................
AppendkA 10 Annex 3. international Commission for the North-
WestAtlanticFisheries, ICNAF Handbook, 1978 .......
Appendk Bio Annex 3.An Actto provide for surveying the coasts of
the United States, 10Febmary 1807, Annalsof Congress ,th Con-
gress.2d Session, 1806-1807.Vol. 16.pp. 1252-1253 ......
Appendix CI 10Annex 3. Bibliography, "Groundfish Investigations
by the US Government in the Northwest Atlantic, 1871-1952".
submitted by the United States to ICNAF at the Second Annual
Meeting, 1952,Meeting doc. V (a) .............
Appendk C2to Annex 3. A. W. H. Needler, "Summary of Canadian
Research in the Convention Area", ICNAF, Second Annual
Meetine. 1952.doc.Vfel .................
A~~OI~ o ~nDni.x3. ~greement by the Fcdcrated Fishing tloais

of New England and New York, signed8 December 1936 ...
Appendk E ru Annex3. Unitcd States Secrctdry of Slate's instmc-
tions to certain American diplomaticand consular officers. dated
31 December 1947,with draft Conventionattachcd ......
Appendu F roAnnex 3. United States Sccretary of Statc's instmc-
tions to certain Amcrican diplomatic and consular officers, dated
26March 1948,withdraftConventionattached .......
A..endix G io Annex 3.Sccretarv of State's coniidential instmc-
tions to the American consular officer incharge,Ottawa, Canada,
and St.John's, Newfoundland,dated 10March 1948 .....
Appendix H lo Annex 3. Report of the American Consul-General in
SI.John's, Newfoundland, of the 14-16June 1948meeting, dated
21June 1948 ...................... XIX

Page
Appendix I to Annex3. Letter from Mr. W. Flory, United States
Denartment of State.to Dr. S.ates. Deoutv Ministerof Fisher-
iesbf canada. includingthe0ctoberi948 dkfi convention . .
AppenduJtoAnnex3. Note No.22fromthe Canadian Secretaryof
State for Extcrnal Affairs to the Embassv of the United States.
dated 19January 1949 ..................
AppendixK to Annex3. lnternational Nonhwest Atlantic Fisheries
Conference, DOC./47, Minutes of the Fifteenth Session of the
Negotiating Conference,5Febmary 1949 ..........
AppendixL to Annex3. ICNAF hceedings, 1974, Special Com-
Regulation in ~ibareas 2 to 4 to Be~onsideredat ~anuaj1974
Meeting of Commission", Serial No. 3132, Roceedings No. 6,

~~~éndiM x toAnna 3. Note from United StatesICNAF Commis-
sioners to membercountries on strengthening and improvingthe
schemeof ioint international enforcement.ICNAF Commission-
ersDoc.76/1/2 .....................
AppendixN toAnn& 3. ICNAF, Report of the meeting of Panel 5,
Ottawa.Canada. 26-27Febman, 1952 ...........
AppendixO to~nhx 3. ICNAF, -serial doc. No. 13, Summary
Report (Minutes)of Panel5,7 April1951 ..........
Appendix P to Annex3. ICNAF Redbook 1973, Part III, Res.
doc. 73/99, B. E. Brown. J. A. Brennan, E. G. Heyerdahl and
R C. Hennemuth, "Effect of By-Catchon the Management of
Mixed Species Fisheries in Subarea 5 and Statisticalrea 6".
pp. 217-231 ......................
AppenduQ toAnnex3. lCNAF national allocations and sewnd-
lier allocations forthe years 1974,1975,and 19.......
AppendixR toAnna 3. lnternational Nonhwest Atlantic Fisheries
Conferena. Minutes to the Third Session, DOC/16,27 January
1949 .........................
VolumeIII
Anna 4.A factual analysis of the socio-economic argumenis in the
Canadian Memorial ....................
Introduction .......................
Chapter 1. Canada's descriptionof the fishingactivities ofthe Pan-
ieson Georges Bankisincompleteand misleading ......
Chanter Il. Canada exagaerates the contribution of fishinn-on
~éor~esBankto the e=omy of ~ova ~cotia ........
Section 1. Canada exaggerates the contribution of fishing on
Georges Bankto employment ..............
Section 2. Canada exaggerates the contribution of fishing on
Georges Banktogrossdomesticproduct .........
Section3. Canada exaggerates the contribution of fishing on
GeorgesBankto the economyof southwest Nova Scotia ...
Section4. Conclusion ..................
Chapter III. Canada exaggeratesthe diff~cultiesit would encoun-
ter in adjustingto confirmation of United Statesjurisdiction over
the northeastern portion ofGeorges BankXX GULFOFMAINE-GOLFE DU MAINE
Page

Section 1. The physical environment did not compel the devel.
opment ofCanadian fisheries on Geor-esBank ...... 353
A. Phvsical environment does not determine the size and
structure ofan economy ............... 354
B. Canadian îishing on Georges Bank developed in response
to-govemment policies,nottothe .h.sicalenvironment 355
Section 2. Canada undentates the diversity of the economy of
NovaScotiaand thestandard of livingofiü inhabitanü ...
A. Theeconomyof NovaScotiaisno1"one dimensional" . .
B. The standard of living in Nova Scotia comoares favorablv
with that of the reO?canada and much ofthe developed
wodd ......................
1. Healthcare ..................
2. Education ...................
3. Housingquality ................
4. Automobileownership .............
5. GDPpercapita .................
Section3. Canada hasalternativesto fishingonGeorges Bank .
A. Canada has alternatives within the fishingindustry to fish-
ingon Georges Bank ................
B. Nova Scotiahas alternativeswithinthe economy at largeto
fishing on Georges Bank, particulady in regard to the
developmentof offshoreoiland gas ..........
AppendirAtoAnna 4. Employment and grossdomesticproduct in
Canadaand Nova Scotia .................
Appendir B to Anna 4. Employment and gross domestic product
generated in Canada and in the United States by fishing on the
northeast portion ofGeorges Bank .............
Section5. Indirect employment and income generated by Cana-
dian and United Statesfishing on the Northeastern portion of
Georges Bank ....................
Appendir C to Annex 4. The small-vesse1fleet of southwest Nova
Scotia ........................
Appendir D toAnnex4. Canadian fisherypolicies .......
Appendir E Io Annex4. Selected United Statesand Canadian catch
and landings data....................
AppendirFto Anna 4. Standard of livingcomparisons .....
VolumeIV. Analytical Annexes

Annex 5. Thegeomorphology and geologyoftheGulf of Mainearea .
Introduction .......................
Chapter 1. Geomorphology ................
Section 1. The historical origins of the materials comprising the
seabed indicate that there are two major geomorphological
provincesofthe North American Atlanticcontinentalshelf . .
Section2. The continental shelf from New York 10Newfound-
land maybe subdivided into two subprovincesbased upon the
respectivetypesofglacialactivity ............ Page

Secboundary inthe Gulf of Maineareana...........rphological

Chapter Il. Geology ...................
Section 1. The similarity of basement rocks demonstrates the
essential continuity of the geologicalsttucture throughout the
Gulf of Mainearea ..................
Section 2.There is no wnsensus concemingthe precise limitsof
the Georges Bank Basin and the Swtian Basin in the Gulf of
Mainearea .....................
Section 3. There is no evidence to support a belt of seismicity
connecting the White Mountains to the New England Sea-
mounis .......................
Anna 6. Hydrocarbon potential beneath the northeastem portion of
Georges Bank ......................
Introduction .......................
Section 1. Canada has exaggerated the prospects for discovering
oiland gasbeoeath GeorgesBank .............
Section 2. Canada's estimate of the ~ossiblecontribution of north-
eastem Georges Bank to its energy reserves isexaggerated and
misleading ......................
Appendix A toAnnex 6.U.S.Bureau of Mines and the U.S.Geologi-
cal Survey,"Principles of a Resource/Rese~e Classification for
Minerais", GeologicalSurveyCircular831,1976 ........
AppendixBtoAnnex 6.Dolton, Carlson, etal.,"Estimates of Undis-
wvered Rewverable Conventional Resourcesof Oil and Gas in
the U.S.",GeologicalSurveyCircular860,1981 .......
Annex7. Comments on paragraphs 179-196of the Canadian Memo-
fial...........................
A. The nineteenth ceotury .................
B. 1900to 1945 .....................
C. The post-warperiod ..................
D. Canadian fisheries research...............
AppendixA to Annex7.Excerpts from Frederick William Wallace,
"ïhirty Years Progress in Canada's Fish lndustry 1914-1944".
in CanadianFisheriesManual,Inland Press Limited,Montreal,
1945 .........................

Antancemethod pra......................mitation: use of the equidis-

Chapter 1. Commentson the Appendixto the Canadian Memorial
Section 1. Canada's List Number 1: Continental shelf or mari-
time boundary agreements that incorporate the equidistaoce
method forall orpart oftheboundary ..........
1. Argentina/Umguay, 19November 1973 ........
2. Australia/Indonesia (Arafura Sea and Pacific Ocean),
18May 1971 ....................
3. Australia/Indonesia ( Ar)2fDecember 1973 ...
4. Burma/Thailand, 25July 1980 ............ GULF OF MAINE -GOLFE DU MAINE

Page
Colombia/Dominican Republic. 13January 1978 ....
Colombia/Haiti. 17Febmary 1978 .......... 436
Colombia/Panama (Caribbean Sea and Pacific Ocean).
20November 1976 .................
Costa Rica/Panama (Caribbean Sea and Pacific Ocean).
2Febmary 1980 ..................
Cuba/Mexico. 26July 1976 .............
DenmarkKanada. 17December 1973 ........
Denmark/Federal Republic of Germany (North Sea).
9June 1965 .....................
12. Denmark/Federal Republic of Germany (Baltic Sea).
9June 1965 ....................
13. Denmark/Norway (North Sea).8 December 1965 ....
14. Denmark/Norway (Faeroes). 15June 1979 .......
16. Finland/Union of Soviet Socialist Republics. extension.
5 May 1967 .....................
17. Federal Republic of Germany/United Kingdom. 25 No-
vember 1971 ...................
18. France/Australia (Coral Seaand lndian Ocean)..2October
1980 ......................
19. France/Tonga. l l January 1980 ...........
20. Haiti/Cuba. 27October 1977 ............
21. India/Indonesia. 8August 1974 ...........
22. India/Indonesia.ext 14nJsiuan. 1977 ......
23. India/Maldives. 28December 1976 ..........
24. India/Sri Lanka (Bay of Bengal and Indian Ocean).
23March 1976 ..................
25. India/Thailand. 26June 1978 ............
27. Iran/Bahrain. 17June 1971a. .............79 ...
28. Iran/Oman. 25July 1974 ..............
29. Iran/Oatar .20Se~tember 1969 ...........
30. ~ran/Ünited~ral;~miratcs.18~u~ust 1974 ......
31. Italy/üreece. 24 May 1977 .............
32. Ita&/Spain. 19Feb~ary 1974 ............
33. Italy/Tunisia. 20August 1971 ............
34. Italy/Yugoslavia. 8Januaw 1968 ...........
35. ~a&n/~ë~ublicof~orca. i0~anuary 1974 .......
36. Malaysia/lndonesia (Malacca Strditand South China Sea.
wcsrcrnride). 27October 1969 ............
37. Malaysia/Thailiind (Gulfof Thailand). 24October 1979 .
38. Mauriiius/France. 2April 1980 ...........
39. Nerherlands/Federal Rcpuhlic of Cermany. 1 December
40. Netherlands/UnitedKingdom.... .October1965 .....
41. Nonvay/United Kiogdom. 10Marcb 1965 .......
42. Nomay/United Kingdom. Protocol. 22December 1978 .
43. Poland/German Democratic Republic. 29October 1968 .
44. Poland/Union ofSovietSosalist Republics.29August 1969 45 .S.t Lucia/France. 4 March 1981 ...........
46 .SaudiArabia/Iran. 24October 1968 .........
47 .Snain/France .29Januarv 1974 ...........
48 .~Yeden/GeAan ~emo&atic Republic.22June 1978 . .
49 .Swcden/Nonvay. 24July 1968 ............
50 .Tokclau/United Statesof America.2December 1980 . .
51 .Trinidad and Tobago/Venezuela.26 February 1942 ...
52 .Turkev/Uniono~Sovict SocialislRe~ublics.23June 1978
53 .unitcd Kingdom/Denmar k. 3~arch 1966 .......
55 .United StatesofAmerica/Cuba Isl.16December 19771980... .
56 .Ünited States of America/~&iw (Caribbean Sea and
PacificOcean) .5Aoril 1978 .............
57 .~enezuela/~ominkan Republic.3 March 1979 .....
58 .Venezuela/Netherlands (Aves Island/Saba). 30 March
1978 ......................
59 .Venezuela/United Statesof America.28March 1978 . .
Section 2. Canada's List Number II: Continental shelf or mari-
time boundary agreements that do no1inwrporate the equi-
distancemethod ...................
1.Abu Dhabi/Dubai. 18Febmary 1968 .........
2 .Australia/Indonesia. 9October 1972 .........
3 .Australia/Papua NewGuinea. 18December 1978 ....
4 .Chile/Pem .18Aueust 1952 .............
5.~ol&nbia/~osta 6c a. 17March 1977 ..........
67.FcdcralaRe~ublico~Gemanv/Dcnmark .28Januarv 1971
8.~inlind/~\;eden .29septemi>er1972 ...........
9 .France/Brazil. 30January 1981 ...........
10.Malaysia/lndonesia (Malacca Strait. extension). 21 De-
cember 1971 ...................
II.Malaysia/lndonesia (SouthChina Sea,easternside).27Oc-
......... ....................
12.Malaysia/Thailand (Andaman Sea),21December 1971
13.Mauritania/Morocco. l4April 1976 .........
14.Netherlands/Fedcral RepublicofGennany .January 1971
16.Nonvav/Union of SovietSocialist Rcoublics....29 Novem-
ber 1957 ...................
Pem/Ecuador. 18August 1952 .........
Portugal/Spain (north andsouth). 12February 1976 .
QatadAbu Dhabi. 20March 1969 ........
SaudiArabia/Bahrain. 22February 1958 .....
Senegal/ TheGambia (norlh and south).4June 1975
SenegaVGuinea Bissau.26April1960 ......
ïhailand/lndonesia. 17December 1971 ......
Uruguay/Brazil. 11May 1970 ..........
Venezuela/France. 17July 1980 .........
March 1978Nethe.................racao. Bonaire) .XXlV GULF OF MAINE-GOLFE DU MAINE

Page
Section 3. List Number 3: Boundaries in force not included in
the Appendix to the Canadian Memorial .........
1. Dubai-Sharjah ...................
2. France-United Kingdom ..............
3. Kenya-Tanzania ..................
4. Libya-Tunisia ...................
5. Shajah-Umm alQaywain ..............
6. United States-Union of Soviet SocialistRepublics ....
Cbapter II. Continental shelfand maritime boundaries .....
Section 1. Continental shelf or maritime boundaries that do not
incorporateequidistant lines ..............

B. Roundaries under Agreements that have not entered into
force ......................

Section 2. Continental sbelf or maritime boundaries that incor-
porate equidistant lines onlyin part ...........
A. Boundaries in force ................
B. Boundaries under Agreements that have not entered into
force ......................
Section3. Continental shelf or maritime boundaries that are
whollyequidistant lines or simplified equidistant lines....
A. Boundaries in force ................
B. Boundaries under Agreements that have not entered into
force ......................
Annex9. Delimitations of offshore areas between States within the
United States underthe Coastal Energy Impact Prograrn .....
Annex 10. The delimitation of the continental shelf boundary in the
Bayof Biscay .......................
AppendixA toAnnex 10. J. L. de Azdrraga, "Espafia Suscribe, con
Francia e Italia, Dos Conveniossobre Delimitacion de sus Plata-
formas Submarinas Cornunes", Revistaespariolade derechointer-
nacional,Vol.XXVIII, pp. 131-138(plustranslation) .....

Volume V. Documentary Annexes
AnnexII. International Hydrographic Organization, LimitsoJOceans
and Seas, Special publication No. 28, 3rd edition, 1953,p. 14,and
portion of chart insert ...................
Annex12. Figure: 144degrees - tme perpendicular ta the general
direction ofthe coast ...................
157degrees - tme perpendicular ta the Canadian 67degree"trend
line" .........................
Annex13. Figure: one test of the general direction of the coast in the
Gulf of Mainearea (54degrees) ...............
Annex14. International Boundary Commission, United States-
Canada, Special Report No. 1,1956,~~..0.14 .........
Annex 15.
Letter from Santiago Torres Bemardez, Registrar, International
Court of Justice, to MI. Davis R. Robinson, Agent of the United xxv

Page

StatesofAmerica beforethe International Court ofJustice,dated
21December 1982,withattachment ............ 461
Letter from MI. Davis R. Robinson, Agent ofthe United States of
America before the International Court of Justice, to Mr. San-
tiago Torres Bernardez,Registrar, International Court of Justice,
dated 20 January 1983,with attachment [copiesof attached geo-
physicalpermitsomitted] .................
Annex16. ICNAF, SecondAnnual Report, 1951-1952,Part4 ....
Annex17. United States-Canada non-scallop landings from Georges
Bank, 1904-1981 .....................
Annex18. United States-Canada groundfish catches from the north-
eastern portion of Georges Bank, 1969-1978 ..........
Annex19.
J. F. Caddy and E. 1.Lord, "High Price of Scallop Landings Con-
ceals Decline in Offshore Stocks". Fisheriesof Canada. Vol. 23.
No. 5,May-June 1971,pp.3-7 ...............
J. F.Caddy, "Some RecommendationsforConservationof Georges
Ban~-~c~lloo.Stoc~s". ICNAF Res. doc. 72/6. Serial No. 2689
(B.g.7),AnnualMeeting - June 1972 ............
Annex2O. United States-Canada Georges Bank scallop catches,
1940-1981 ........................
Annex21. G. B. Goode, 7he Fisheriesand FisheryIndustries of the
United States, Washington, D.C., Government Printing Office.
1887.Section III.DO. 74-75.withmao .............
Annex22. ~om~ariso'nof canadian Latchfor the northeastern por-
tion of Georges Bank with totalCanadian catch in the northwest
~tlantic fortLe years 1977-1981 ...............
Annex23. G. B. Goode, 7he Fisheriesand FisheryIndustries of,fhe
United States, Washington, D.C., Government Rinting Office,
1887,SectionV,1887.p.38 .................
Anna 24. R. McFarland, A Hisroryof NewEngland Fisheries, New
York, University ofPennsylvania Press, by D. Appleton and Co.,
Agents,1911,pp. 144-145,272-273 ..............
Annex25. Fishing vesselsdocumented under the laws of the United
States operating out of Maine and New Hampshire pons and fish-
ingon GeorgesBankorin the "unclaimed area" ........
Annex 26. Permits for exploratory work including the northeast por-
tion of Georges Bank: update to Annex40 to the United States
Memorial ........................
Anna 27.
Figure: Area subject to cal1for nominations in United Statesouter
continental shelf lease sale Number 42. 17June 1975.with the
boundary proposed by the UnitedStatesand the canadian linc
Figure: United Stateslaw enforcement lineto protcct the lobster of
the United States continental shelf with the boundarv uroposed
.. -
bythe United Statesand the Canadian line .........
Anna 28.
Proclamation bv,t~ ~ ~esident of the United Statesestablishina-the
exclusiveewnomiczone, 10March 1983 ..........
Statcment by the Presidentof the United States regardingthe proc-
lamationof theexclusivecwnomiczonc. 10March 1983 .... CONTENTS-TABLE DES MATlERES XXVIl

Page
Annex 42. D. R Getchell,Sr.,"No Cornprornising" FirhingGazette,
Vol.100,No.5, May1983.p.25 . . . .. . . . . . .. . . . 481
Annex43. L.L. Hennan, "nie Need for a CanadianSubmerged
Lands Act: SorneFurtherThoughtson Canada'sProblerns", nie
CanadianBarReview .ol.LVIII,1980,pp.520-528 . . . . . . . 481
Anna 44. Certification. . . . . . . . .. . . . . . . . . . 482COUNTER-MEMORIALOFTHE
UNITEDSTATESOFAMERICA

CONTRE-MÉMOIRE
DESÉTATS-UNISD'AMÉRIQUE COUNTER-MEMORIAS LUBMtlTED BYTHE
UNïïED STATES OFAMERICA

INTRODUCTION

1. This Counter-Memorialis filed inaccordancewith the 5 November
1982order issuedby the Presidentof the Chamber formedto deal with the
Case Concerning Delimitationof the Maritime Boundary in the Gulf of
Maine Area fixing 28June 1983as the time-limitfor the filingof Counter-
Memorialsbythe UnitedStates of America and byCanada (the "Parties").

2. In accordance with Article 49 of the Rules of Court, the purpose of
this Counter-Memorial is to reply to the Canadian Memorial filed on 27
September 1982 in the present proceedings(the "Canadian Memorial"),
and, as may be necessary, to supplernent the considerations of fact and

law set forth in the Memorial filed by the United States in these same
proceedingson the same date (the "United States Memorial").
3. This Counter-Memorial of the United States is divided into the
followingparts:

Part 1 contains admissions or denials of facts stated in the Canadian
Memorial, and, as necessary, additional facts relating to: geography,
geomorphologyand geology,marine environment, fishing activitiesof the
Parties and their nationals, continental shelf activities of the Parties and
their nationals, other relevant activities, andthe history of the dispute.

Part II contains obse~ations on the statements of law in the Canadian
Memorial and statements of law in answer thereto.

Part III contains the applicationof the lawto the facts in this case, with
reference tothe specificmisapplicationsof the law to the facts contained
in the Canadian Memorial.

The final part of the Counter-Memorial sets forth the United States
Submissionsto the Chamber.

4. Included in this submission isa Summaryof Argumentat the begin-
ning of the Counter-Memorial,and a five-volumeAnnex: Volume 1con-
tains "The Marine Environmentof the Gulf of Maine Area" (VolumeIA)
and "Environmental Risks of Hydrocarbon Developmenton the North-
eastem Portion of Georges Bank" (Volume IB); Volume II contains
"Activitiesof the United Statesand Canada Under the International Con-
vention for the Northwest Atlantic Fisheries";Volume 111contains "A
Factual Analysis of the Socio-Economic Arguments in the Canadian
Memorial"; Volume IV contains additional analyticalannexes relatingto

geomorphologyand geology,hydrocarbon resources, fishing activitiesof
the Parties in the Gulf of Maine area, as wasState practice relatingto
maritime boundaries; and VolumeV contains miscellaneousdocumentary
annexes. SUMMARY OF ARGUMENT
5. On 27 September 1982, the United States and Canada submitted
Memoriais to this Court that set forth their respectiveviewson the Law

and facts applicable tothe delimitation of the singlemaritime boundary in
the Gulf of Maine area. The United States, in its submission, proposed
that the single maritime boundary be a line perpendicular to the general
direction of the coast, but adjusted during its course to avoiddividingtwo
fishingbanks on the Scotian Shelf, BrownsBank and German Bank, both
of which would be left in their entirety to Canada. In its submission,
Canada proposed that the single maritime boundary split Georges Bank,
@ based upon an application of the equidistance method. Figure1.

6. This United States Counter-Memorial demonstrates that the Cana-
dian line is not the result of the application of equitable principles, does
not take acwunt of the relevant circumstancesin the area, and does not
produce an equitable solution. The United States showsthat: (1)Canada

has misconstruedthe Court's functionin delimitation cases by seekingan
equitable apportionment, orsharing out, of the area and its resources;(2)
Canada has failed to identifyand to apply equitable principles, notwith-
standing Canada's agreement in principle that the fundamental rule in
delimiting this singlemaritime boundary requiresthat the delimitation be
in acwrdance with such principles; (3) the Canadian line rests chiefly
upon arguments, previously rejected by this Court, that the economic
factors of dependence and relative wealth andthe geometrical factor of
proximity are relevant to delimitation; (4) Canada has ignored the
coastlineof the United States facing the Atlantic Ocean, as wellas other

essential facts constituting relevant circumstances; and, (5) Canada has
misconstrued other facts, al1resulting in manifest misapplicationsof the
law to the facts in this case.
7. Canada has misappliedthe lawto the facts, withparticular regard to

the followingmatters:
Canada, in its Memorial, ignores the location of the land
boundary in the far northern corner of the Gulf of Maine.
Canada also ignores the United States coast in the vicinity of

Maine and New Hampshire. The primary coastal front of the
United States at Maine and New Hampshire, a coast that faces
the area being delimited, cannothe disregarded if the equitable
principle that the land dominates the sea is be applied and
respected in this case. The Canadian line impermissibly "cuts
off' the United Statesoastof Maine and New Hampshire fromt461 COUNTER-MEMORW OF THE UNITEDSTATES

its natural extension.The Canadian line also givesexaggerated
effect toa short sectionof Canadian coastlinethat (a)isaberrant
to the general geographical relationship between the Parties,
because it lies perpendicularto the general directionof the coast;
and (b)is south of the international boundary terminus.

Canada incorrectly applies the proportionality test. Canada
includes in its calculations coastlines withinthe Bay of Fundy
that do not front on the area being delimited. Canada also

asserts that the area to be delimited seaward of the Gulf of
Maine is soindeterminate that the proportionality test cannotbe
applied. These contentions have no basis in law or fact. The
maritime area that would appertain to the respective Parties
pursuant to the Canadian line is not proportionalto the lengths
of their relyant coastlines.

The Canadian line ignores the dominant physical feature of
the marine environmentof the Gulf of Maine area-the North-
east Channel. Contrary to Canada's assertions, the Northeast
Channel is a significant geomorphologicalfeature, constituting
the only major break in the surface of the continental shelf in
the Gulf of Maine area. It substantially shapes the marine
environment. It constitutes the only natural boundary in the

area, dividingthe separate and identifiable ecologicalregimesof
Georges Bankand of the Scotian Shelf, as wellas the valuable
stocks of fish and shellfish associated with those respective
regimes.

Canada ignoresthe predominant interest of the United States
on Georges Bankand in the Gulf of Maine Basin, as evidenced
by the activities of the United States and its nationals since the
foundingof the Republic. Canada seeksto create in its Memori-
al a Canadian historical interest in Georges Bankwhen in fact
there is none. Canada's recent and limited fishing activitieson
Georges Bank should not outweigh the predominant historical
and present fishinginterests of the United States.

In this regard, the fisheries of Georges Bank were first
developedby the United States and, until recently, were exploit-
ed almost exclusivelyby United States fishermen. Furthermore,
GeorgesBank isthe final strongholdofthe New England fishing
industry. Over the past 100 years, United States fishermen

gradually have been expelledfrom al1of their traditional fishing
grounds off Canada. In June of 1978, Canada unilaterally
terminated reciprocal fishingarrangements betweenthe Parties,
barring United States fishermen from areas in Canada's 200-
nautical-mile fishing zone where UnitedStates fishermen had
fished for more than two centuries. GULF OFMAINE 171

Canada is mistaken in its arguments that (a) United States
fishermen do not fishsignificantlyon the northeastern portion of
Georges Bank,and that (b)fishermen fromMaine do not fishat
al1on the Bank. Canada is further mistaken in its argument that
the activities of the United States and Canada under the
International Convention for the Northwest Atlantic Fisheries
(ICNAF) amounted to a United States and Canadian "partner-
ship" with respect to Georges Bank. Finally,Canada is mistaken
whenit ignoresthe predominant interest of the United States, as
a relevant circumstance in this case, inregard toch matters as

charting and surveying, scientific research, search and rescue,
and defense. The Canadian line, therefore, is inconsistent with
the longstanding pattern of conduct of the Parties, as well as
with geography.
8. Canada seeks to argue that the rejected and unratified 1979 east

coast fisheries agreement is a relevant circumstance. That failed agree-
ment is legally irrelevant. Moreover,that rejected and unratified agree-
ment did not deal exclusivelywith the relations of the Parties in regard to
the fisheries of Georges Bank, but with the fisheries in the waters of the
Atlantic Ocean extending from North Carolina to Newfoundland. The
failed agreement in no way addressed the location of the single maritime
houndary in this case. The United States did not ratify the proposed
agreement because it was fundamentally unfair to the United States.

9. In its Memorial, Canada seeks to place "special weight" on the
economicfactors of dependence and relative wealth. As a matter of law,
these considerationsare not to be taken into acwunt in the delimitation of
a singlemaritime boundary. As a matter of fact, Canada's contentionsin
this regard, even ifthey were relevant, are incompleteand misleading.

10. The. Canadian line also ignores the principles that the single
maritime boundary should facilitate resource conservation and should
minimizethe potential forinternational disputes betweenthe Parties. The
Canadian line splits Georges Bank, dividing the resident stocks of
commercially important fish and shellfish resources. Such a division
wouldundermine the conservationof those stocks andcreate an irritant in
the,relations hetween the Parties. The line proposed by Canada would
allow Canada to make decisions on oil and gas development on the
northeastern portion of Georges Bank. Any marine pollution resulting
from such development could affect fisheries remaining under United
States jurisdiction. At the same time, Canada would bear no significant
risk thatsuch decisinnswould affect Canadian fisheries interests on the

Scotian Shelf. Any such result has the potential for causing serious
political disputes betweenCanada and the United States.
11. Finally, in its Memorial Canada has distorted State practice
generally and, in particular, has ignored State practice in geographically
similar situations, Le.,where the locationof the land boundary, in relationtg1 COUNTER-MEMOW OF THEUNITEDSTATES 7

to a large coastal concavity, would cause an equidistant line to encroach
upon the extensionof the coastal front of oneof the States concerned.An
analysis of such situations, as in the North Sea hetween the Federal
Repuhlicof Germany and Denmark and betweenthe Federal Repuhlicof
Germany and the Netherlands, and in the Bay of Biscay hetweenFrance
and Spain, shows that, in such cases, the equidistance method was not

applied for the greater part of the boundary; rather, other methods were
used that were better able to provide for the seaward extensionof the
respective coastal fronts.
12. The United States reaffirms that the adjusted perpendicular line
that it proposesdoes not encroach upon Canada's primary coastal front

facing the Atlantic Ocean; that the adjusted perpendicular line respects
the natural boundary at the Northeast Channel, thereby facilitating the
conservation andmanagement of the resourcesof the area and minimizing
the potential for disputes betweenthe Parties; and, that the adjusted
perpendicular line takes account of the relevant circumstances in the
area-particularly the separate and identifiable ecological regimesof
Georges Bank and of the Scotian Shelf and the longstanding use of
Georges Bankby United States fishermen.

13. Contrary to the argument made by Canada, the United States has
not consented, by its conduct, either expressly or tacitly, to an equidis-
tance boundary in the Gulf of Maine area. Canada seeks to establishsuch
consent on the hasis of an exchange of correspondence, concerning
Canadian oil and gas permits on Georges Bank, initiated by a mid-level
government employee from an agencyof the United States Government
that does not havethe responsibility for foreign relations.Contrary to the
requirements of the law, the conduct at issue does not establish either a
clear and unambiguous claim hy Canada or the unequivocal consentof
the United States to such a claim. The United States government
employeeexpresslystated that there was no agreed boundary, andthat he
had no authority to discuss boundary matters. During this period, the

United States was engagedin continental shelf activitieson GeorgesBank
that were inconsistent with any claim by Canada to a boundary line
splitting Georges Bank. Furthermore, the events at issue occurred over a
brief periodthat is insufficient as a matter of law. Finally, the Canadian
claim of acquiescence is hased upon activity relating solely to the
continental shelf,thereby ignoringthe fisheries dimensionof the case. The
United States, for al1 these reasons, is in no wise precluded by the
doctrines of acquiescence and estoppel from advancing its boundary
claim.

14. In summary, the adjusted perpendicular line proposed by the
United States is a boundary that is derived from the application of
equitable principles,and that takes account of the relevant circumstances
in the area, toproduce an equitable solution. The Canadian line, on the
contrary,-is not based on such principles, does not take account of such
circumstances, andwouldnot produce an equitahle solution. PART1. THEFACTS

INTRODUCTION

15. This Part willdiscussthe factual context of the maritime boundary
dispute submitted to this Court by the Parties, having regard to the
statement of the facts set forth in the United States Memorial at
paragraphs 19 through 163 and the contentions of fact made in the
Canadian Memorial at paragraphs 17 through 276. This Part is divided
into seven chapters: (1) geography; (2) geomorphologyand geology; (3)
marine environment;(4) fishing activities of the Parties and their nation-
ais; (5) continental shelf activities of the Parties and their nationals; (6)
other relevant activities; an(7) history of the dispute. Each chapter
identifies areas of agreement and disagreement betweenthe Parties, as

appropriate, and discussesreas of significant differencebetween them.'

'The United States reservesthe right to identify in later stages of these
proceedingsadditionalareasofagreement,disagreemen;rsignificantdifference
betweenthe Parties. CHAPTER 1
GEOGRAPHY

SECTION 1. Points of Agreement and Disagreement Between the United
States and Canadian Memorials
16. The United States and Canada are in agreement concerning many

geographical factors relevant to this cas'.The United States Memorial
defines the Gulf of Maine area-the geographical area relevant to this
case-to include the coasts and geographical features from Nantucket
Island, Massachusetts, toCape Canso, Nova Scotia, and the marine areas
seaward from these coasts to the limit of coastal-State jurisdiction'.
Canada describes the Gulf of Maine area in comparable terms:

"The 'Gulf of Maine area' encompasses the Gulf of Maine
itself, as welas Georges Bank and the nearby coasts of the
Parties facing the Atlantic."

@ Fi~re 8 of the Canadian Memorial, listed as depicting the "coasts and
major geographic features of the Gulf of Maine area", and reproduced
@ here at Figure 2,illustrates thearea relevant to this ca'.

'The geographicalscttingof this caseisdesxibed at para2@29 of the United
States Memorial.

'United States Memorial. para25. In this Counter-Memorial,as in the United
States Mcmorial (seepara.25, n.2),"Gulf of Maine" refers to the seabeand
bodyofwater landwardofa hypatheticallinebetweenNantucketIslandandCape
Sable. Itdm not includethe Bayof Fundy. "Gulfof MaineBasin"refers tothe
Gulf of Maine,cxceptfor that part of the Swtian Shelfand superjacentwaters
that areinthe GulfofMaine."Gulfof Mainearea" referstothe broadcrarea de-
scribed in the text. The Gulf of Maine area is also the "relevant area" for
determiningthe relevantcircumstancesinthiscase.
'Canadian Memorial. para. 35. There are, however,some differences.The
CanadianMemorial.al paras. 20 and 35,includeswithinthe Gulfof Mainearea
the wast of NovaSwtia facingthe AtlanticOcean.but failsto mention manyof
the majorfishingbankslocatcdoffthat wast, includingRoseway Bank,La Have
Bank, Emerald Bank, Sable Island Bank, Middle Bank, Canso Bank, and
Banquereau. Canada also includcsthe United States wastlinc as far Io the
@ southwestas RhodeIsland. Figure2.
'CanadianMemorial, para. 20. The Gulfof Mainearea isdefincdinwmparahle
termsal para.25 of the UnitcdStates Memorial.00th Parties indicatethat the
boundaryarea has an innerand outer component. See UnitedStates Memorial,
paras.25 and 29;CanadianMemorial,paras. 329 and 342-356.10 GULF OF MAINE (14-161

17.The United States and Canada alsoagree that the general direction
of the coast isnortheastward in the Gulf of Maine area'.In the vicinityof
the international boundary terminus, at the far northern corner of the

Gulf of Maine, the United States coastlinefallsaway to the southwestin a
relatively straight line to Cape Ann, where it begins ta curve southward
towards Cape Cod. The Canadian coastline extends northeastward from

the international boundary terminus, followingthe general direction of
the coast to the Chignecto Isthmus. As Canada States:

"The Canadian coastline withinthe Gulf of Maine extends in
a general northeasterly direction fromthe Canada-United States
boundary in Passamaquoddy Bay, along the southern shore of
New Brunswick within the Bay of Fundy, to a point near the

New Brunswick-NovaScotia border at the head of Chignecto
Bay, the northeastern extremity of the Gulf of Maine '."

18. The Parties thus agree that the Chignecto Isthmus is the geograph-
ic feature that marks the beginning of the change in direction of the
Canadian coast. Fromthere, a seriesof radical changesin the direction of

the Canadian coastline occurs, wmbining to create: (a)a short secondary
Canadian coastline at a right angle to the east coast of North America,
across from the land boundary terminus, and (b)a protrusion of the Nova
Scotia peninsula south of the land boundary.

19. Irrespectiveof these similarities of view,there are two major areas

of disagreement betweenthe Parties with regard to geography. One of
these is the geographical relationshipof the Parties, includingthe general
direction of the coast in the relevant area, the adjacent or oppositenature
of the coasts within that geographical relationship, andthe north-south

juxtaposition of the broad geographical relationship betweenthe two
States. The secondmajor area of disagreement relates tothe significance
of certain coastal features in the Gulf of Maine area: (1) the coasts of
Maine and New Halnpshire; (2) the southwestern-facing coast of the

Nova Scotia peninsula; (3) the coastlines of the Bay of Fundy; and (4)
Cape Cod, Nantucket Island, and Martha's Vineyard.

.'CanadianMcmorial, paras1 . 9,21,and22.
'CanadianMemorial,para. 21.The Bayof Fundy(including ChignectB oay)is
nota partoftheGulfofMaineortheAtlanticOcean.International Hydrographie
Organization(I.H.O.)Limirs af Oceans and Seas, 3rd cd., pec.hb. No. 23,

1953.See Anncx11,Vol. V. The I.H.O.treatsthe Gulfof Maineas partof the
AtlanticOcean.The I.H.O.drawsa distinctionbetwecnthe Gulfof Maincand
theBayof Fundy. CouNTER-MEMow OFTHE UNITEDSTATES
1171
SECTION 2. The Geographical Relationship of the Parties

20. The United States has established a constant bearing of 54 degrees

as the general direction of the North American east coast in the relevant
area '.Fifty-four degrees corresponds both to a line in the interior of the
Gulf of Maine area connecting Cape Ann to the Chignecto Isthmus and to
a line in thexterior connecting Nantucket Island through Seal Island to
Halifax. It is also a line that reflects the constant bearing between
prominent coastal features along the North Atlantic coast '.

21. Canada, while agreeing that the general direction of the coast is
northeastward, suggests that there are two "directional trends" to the
North American east coast: one from southern Florida to Long Island,
New York, and the other from Long Island to Cape Race, Newfound-
@ @ land '. Figure 3 shows the "trends" depicted in Figure 7 of the Canadian
Memorial, together with the general direction of the coast, as set forth in

the United States Memorial. Canada gives nojustification for its use of
one "trend" from Florida to Long Island or of another "trend" from Long
Island to Cape Race.

22. As indicated in the United States Memorial, there are bearings
more advantageous to the United States than that of 54degrees that may
be used in ascertaining the general direction of the coast for the purpose of
establishing the perpendicular'.Such bearings, however, are determined
by pointsoutside the Gulf of Maine area and, accordingly, have not been
used. For the same reason, and because of its substantial deviation from
the general direction of the east coast of North America as a whole,

@ 'United States Memorial,para. 283 and Figure 26. As in the United States
Memorial, al1directionsreferred to in this Counter-Memorialare determined
fromtrue north.UnitedStates Memorial,para.21,n. 2.
North Floridato Cape Pine,Newfoundland (53.6degrees)

CaNewfoundlandorth Carolinato CapeSt.Mary's, (54.1degrees)

Cape Charles,Virginiato CapeCanso.NovaSwtia (53.9 degrees)
@ See UnitedStates Memorial,para.21,n. 2,para. 283,and Figure26.
'CanadianMemorial,para. 19.

'UnitedStates Memorial,para. 283, n.7. 12 GULF OF MAINE [18-201
Canada's trend line from Long Island to Cape Race, which has an

average true bearing of67 degrees ',has no basis '.

23. In its Memorial, the United States did not dwell upon any
distinction between opposite and adjacent coasts. Until the filing of the
Canadian Memorial, the Parties had expressed similar views with regard

to the geographical relationship in the exterior of the Gulf of Maine
area '.In the past, Canada has acknowledged that the United States and
Canada were adjacent States. The Canadian Memorial represents a
change in Canada's position.

24. As one reflection of Canada's previous position, Canada in the past
made reference in diplomatic correspondence to Article 6(2) of the 1958
Geneva Convention on the Continental Shelf, the provision relating to
adjacent States, and not to Article6(1),the provision relating to opposite

'The UnitedStates determinedthat the Canadian "trend" linefromLongIsland,
New York, to Cape Race, Newfoundland, hasa bearing of 67 degrees in the
a followingmanner. The directional trends shown in Figure 7 of the Canadian

Mernorialare straight lines on a Lambert Conformal Projection,Such straight
linesapproximatearcs of great circles.Bydefinition, the direction along anarc of
a great circlenstantly changes;however,an initial azimuthcan be determined
between two points alongan arc of a great circle. To determine the general
direction shown by Canada, intervals of one degree of longitude were selected
alonethe Lon- Island-to-Cane Raceline.Initial azimuths calculatedbetweenthe
gresi-circlesegmentsrangedfrornabout 61degrecsio74dcgrccs.wiih anaveragc
of ..~roxirnatclv67 deerees. In the area beiueen Cave Cod and Csw Sable. thc
initial azimuths-rangedbetween 63 degrees and65 degrees, with in averageof
about 64 degrees.
Althoughthe general direction ofthe coastin the Gulfof Mainearea mayVarya
degreeor twodependinguponwhat pointsare picked,a purporteddirectionof 67
deereesisoutsideanv reasonablera-ee.SeeAnnex 12. Vol.V. It shouldbe added
w- ihai 54degrce\13the averageof(a)ihr besring beiuecn the souihernmwint on
the cuasiinthe Gulf of Vainc and the norihcrnmo~wini of the Hayof rundv.
and (b)the bearing betweenthe westernmost pointin ;he Gulf oaine and the
easternmostpoint in the Bay of Fundy. The nortbernmost point in the Bay of

Fundy isthe Chignecto Isthmus.The southernmostpoint on the Gulf of Maine
coastis BarnstableHarbor onCape Cod Bay.The bearingbetweenthesepointsis
46.7 degrees. The westernmost point in the Gulf of Maine is at Boston. The
easternmost point in the Bay of Fundy is Minas Basin. The direction between
these points is 61.6 degrees.The average between these two directions is 54.1
@ degrees. For a chart depictingthese directions and the general directionof the
coast,seeAnnex 13, Vol. V.
'See United States Memorial, paras.281and 326.1211 COUNTER-MEMORTALOFTHEUNITEDSTATES 13

States '.Furthermore, when Canada first informed the United States on
14October 1977of its legal rationale for its present line, that rationalein-
cluded a clear statement by Canada's representatives that the coastal
relationship in the vicinity of Georges Bank is one of adjacency '.

25. Canada asserts in its Memorial, however, that, in the interior of the
Gulf of Maine, the "prevailing geographical relationship ...is largely one
of opposite coasts'"; that the "opposite relationship is most pronounc-
ed ... between Cape Sable and Cape Cod "'; and, in a change from its
prior position, that, in the exterior area, including Georges Bank, "the
geographical situation in the more seaward portions of the outer area is a
complex one that combines elements of both oppositeness and adjacency,
in varying degree "'.

26. Within the Gulf of Maine area, the United States and Canadian
wasts are adjacent, not opposite. Although such determinations often are
a matter of perspective, States that share a common land boundary along

a relatively straight coastline, such as that extending in the interior area
from Cape Ann tothe Chignecto Isthmus, are adjacent States. Moreover,
even though the southwestern-facing coast of the Nova Scotia peninsula is
aligned at virtually a right angle to the coast of the state of Maine, the sit-
uation in the interior area is still adjacent, since those coasts are not
opposite each other '.

27. The relationship remains adjacent within the area where Canada
says the element of oppositeness is most pronounced. Between Cape Cod
and Cape Sable, the location of the Canadian line is wntrolled by rocks
off the southwestern-facing coast of Nova Scotia, and by points on the
United States wast on Mount Desert Rock and Matinicus Rock off the

'See Note No. 1126from the Depi.of External Affain to the Emhassyof the
UnitedStates,dated 19Sept. 1974,UnitedStates Memorial,Annex60. Vol.IV,
and Note No. 626,fromthe Embassy ofCanada to the Dcpt.of State, dated 22
Dcc. 1976,UnitedStates Memorial,Annex66, Vol.IV.

'At paras. 155and 156,the UnitedStates Memorialexplainsthewntext inwhich
UnitedStates officialswerefirst madeaware,on 14Octobcr 1977,of Canada's
intentiontoexpanditsboundaryclaim.At that meeting,Canadianofficialsspoke
fromprepared textsthat clcarlyenunciatedthe viewtbat, in the regionbcyonda
hypotheticalCapeCod-CapeSableline,thewasts ofthe Partiesaregeographical-
ly adjacent andwmparahle to the Atlantic regionseaward ofthe coastsof the
UnitedKingdomand France.
'CanadianMemorial,para. 331.
'CanadianMemorial,para. 345.
'Canada apwrs to accepi tbat the wasts of the Parties are adjacent in the
vicinityof the starting pointcstablishedby ArticlIIof the SpccialAgreement.
CanadianMemorial, para. 336. 14 GULFOF MAINE [221

Coastof Maine, nor from points in or around Cape Cod '.These parts of
the Maine and Nova Scotia coasts, which control theCanadian line, are
not opposite each other.hus, in arguing that the Canadian and United
States coasts are opposite between Cape Cod and Cape Sable, Canada
ignores the coastline of the United States within the Gulf of Maine.
28. In the exterior of the Gulf of Maine area, which includes Georges
Bank, the relationship between the United States and Canadian coaisa

classic example of adjacency. This was the view postulated by Canada on
14 October 1977, when United States officiaiwere first informed of the
new Canadian line. Indeed, Canada draws an analogy between this "outer
area" and the geography of the Atlantic region considered by the Court of
Arbitration in the AngleFrench Arbitration'. Yet Canada now fails to
corne to the same conclusion with regard to the outer area asdid the
Court of Arbitration with regard to the Atlantic regio"...that in the
Atlanticregion the situationgeographically is one of two laterallyrelated
coasts, abuttingon thesame continental shelf which extends from thea
great distance seawards into the Atlantic Oce'."

C. THEGEOGRAPHICAR LELATIONSHI PF THE PARTIES ISNORTH-SOUTH,
Nor EAST-WEST ASSUGGESTE BY CANADA

29. Canada lies generally north of the United States. The land
boundary crosses the continent fromWestto east'.Parts of the Maritime

@ 'Figures 3and32oftheCanadianMemorialshowtheconstructionoftheCanadian
@ line.Point49,shownat Figure32of the CanadianMemorial,whichis equidistant
from MatinicusRock, Maine, andSeal Island, Nova Swtia, is seawardof a
hypotheticalCapeCod-CapeSableline.MatinicusRock, Main, ntinues tohethe
wntrollingpointontheUnitedStateswast fortheCanadianlineevenafter thatline
beginstocrossGeorgesBank.CanadianMemorial,para. 338.
'CanadianMemorial, paras.343-344.
'Decisions4f the Court ofArbitrafion, 30 June 1977 and 14 March 1978
[hereinafterDecisionrl,para. 241. [Emphasisadded.]The Court of Arbitration
notedthat,despitethe prcsenceof the English Channel,the legalsituation ofthe
laterally related Brand French coasts mightbe wnsidered analogoto that
ofadjacentStates.bid..at para. 241.In theGulfofMainearea, theadjacencyof
thewasts isevenmore evident.Not onlyarethewasts "laterally related", butthe
Parties share a wmmonland boundary.
Tho transwntinental boundaryis 3,987statute miles long.The United States
Mcmorial,at para. 20,describesthewurse ofthe land boundary athe North
Americanwntinent fromthe Strait ofJuan de Fucato PassamaquoddyBay.For
more than one-halfof the widthof the wntinent,parallelsof latitudeare usedto
definetheboundary,wmprising39percent ofitstotal length.Theparalleloflati-
tudedefiningthe boundaw fromthe Lake ofthe Woodswestwardis the longest
singlestraight-linesegmentof any boundaryin the world-1,270.2 statute miles
(2,043.8 kilometers).Natural features define 58.7 per cent of the boundary
(2,338.7 miles or 3,763.0kilometers),including the final 129.4miles (208.2
kilometers)alongthe St. CroixRiveruntil itemptiesinto Passamaquoddy Bay.i231 COUNTER-MEMORIALOFTHEUNITEDSTATES 15

Provinces are located tothe northeast of the New England States, but this
is not surprising, since the general direction of the eastern seaboard of
North America, as recognized by both Parties, is oriented on a southwest-

to-northeast axis. Nevertheless, the broad geographical relationship be-
tween the United States and Canada remains north-south. Because of the
concavity that is the Gulf of Maine, the southwestern-facing Coastof the
Nova Scotia peninsula departs from the general north-south geographical
relationship of the Parties '.

SECTION 3. Coastal Eeatures of theGulf of Maine Area

30. The Canadian line disregards the location of the land boundary
terminus in the far northern corner of the Gulf of Maine. The Canadian

line thereby also disregards the United States coasts of Maine and New
Hampshire for that segment of Canada's line extending beyond the Gulf,
amounting to over one-half its length. Canada justifies its disregard in the
exterior of the Gulf of Maine area of the primary coastal front of the
United States-a coastal front several hundred miles in length and one
that faces Georges Bank-on the grounds that fishermen from Maine and
New Hampshire have not in the past and do not now fish on Georges

Bank. This consideration not only is irrelevant and thus without merit as a
matter of law l,it is also factually incorrec'.

'Canada attemptstodevelopthe thesisthat thegeographicalrelationshipbetween
the Partiesiseast-west,apparcntlyinan efforttorationalizea maritimeboundary
that extendssouthwardacrossthe coastal frontof the United States.Canadian
Memorial,paras. 18and35.Thesupport citedforCanada'spropositionisthat one
part of the land boundary"in this sector" is 152kilometerslong(94.5statute
miles or82.1nauticalmiles).This"sector" (ibid.para. 18)makesuplessthan 1.9
per cent of the overalllength of the transcontinentalboundary, andis removed
from the coastlineby a boundarysegmentthat is of greater length.The United
States has bcenunableto vcnfy the 152-kilometerfigurecitcd inthe Canadian
Memorial.Acwrdinn to the UnitedStatcs-CanadaBoundarv CommissionS.oc-
cialReportNo. 1, 1956, p. 12,the north-south segmentthat wnnectsthe sourceof

theSt. Croix Riverwith the St. JohnRiveris 77.6statutemiles(124.8kilometers)
in lengthSee Annex 14,Vol.V.
'Canada's wntentions that the wastlinesrelevant to delimitationare to bc
determincdonthe basisofthe economicuseofanareaarenovelandwithout basis
in law.Pumrted economicdependencecannot negate the fundamentalprinciple
that the landdominatesthesui. See Part II,ChapterII.
'See Chapter IV,Section4, of this Part. Theimplicationsof Canada'sdisregard
ofthewasts ofMaine andNewHampshireareaddressedinPart 111Chapter 111,
Section2, whichdealswithCanada's misapplicationosfthe lawto the facts.16 GULFOF MAINE

31. The Canadian Memorial disregards the fact that the Nova Scotia
peninsula protrudes south of the international bundary terminus, com-
hining with the curvature of the New England coast to create the coastal
concavity that is the Gulf of Main'.

32. The Canadian Memorial thus ignores geography, and seeks instead
to create the impression that the controlling consideration should be the

economy of southwestern Nova Scotia peninsula. The Canadian socio-
economic contentions are legally irrelevant to the delimitation of the
single maritime bundary' and, moreover, are incomplete and
misleading '.

C. THE COASTLINE OSF THE BAY OF FUNDYDO NOT FACE THE AREA

BEINGDELIMITED AND AREIRRELEVAN FTR PURPOSES OF THE PROPOR-
TIONALITY TEST

33. Both the United States and Canada use the interior coasts of the
Bay of Fundy for purposes of determining coastal directi'.The Parties
agree that the coast in the vicinity of the land boundary in the interior of
the Gulf of Maine area extends in a relatively straight line to the
ChignectoIsthmus, which marks the first majorchange in the direction of
the Canadian coast '.The Parties differ in whether the coasts of the Bay

'See UnitedStatesMemorial, para290.TheUnitedStatescoastlinedefinesmost
of the concavity, because the international tmundaryterminates in the far
northern cornerof the wncavity. As recognized in other cases, this isa
geographicalcircumstancethat may lead to an inequitahledelimitationif the
equidistancemethodisused.TheCanadianMemorialseekstodescrihethewastal
concavityasifit were formedonlybythe curvatureoftheNewEnglandcoastline.
[para.340.Such a description ignoresthe fact that thedeepcoastal wncavity-
the Gulf ofMaine-is formed hy the wastlinesof tmththe UnitedStates and of
Canada.
'See Part II,Chapter11,and Part III,Chapter III,Section6.

'See Annex 4,Vol.III,A Factual Analysisof the Socio-EwnomicArgumentsin
the CanadianMemorial.
'The CanadianMemorialStates:

"The Canadian wastline within the Gulf of Maine extends in a general
northeasterlydirection from the Canada-UnitedStates tmundaryin Passama-
quoddyBay ... to...ChignectoBay ..."[para.211;and, "[tpe UnitedStates
wastline ... extends southwestward... its general configurationfollows a
straightline"[para.21.
'CanadianMemorial, paras.21 and 22;UnitedStatesMemorial,para. 26.[25-261 COUNTER-MEMOR~AL OFTHE UN~D STATES 17

of Fundy should be included in any proportionality test. In the view of the
United States,these coasts must be disregarded for purposes of applying
the test of proportionality, since they face only each other, and do not face
either the Gulf of Maine or therea seaward of the Gulf'.

D. CAPECOD, NANTUCKET ISLAND A,ND MARTHA'SVINEYARDARE
CLO~EL AYSSOCIATED WITH THE GULF OF MAINE AND GEORGE BSANK

34. Canada's line pretends that Cape Cod, Nantucket Island, and
Martha's Vineyard do not exist '.This issue has significance only if the

boundary were to be established by theequidistance method, which the
United States bas shown in its Memorial, and will show further here, isin-
applicable in this case. Cape Cod, Nantucket Island, and Martha's

Vineyard have played important roles in the history of the United States.
They have a long and historic association with Georges Bank, while the
Nova Scotia peninsula does notj.

'This point is discussedfurther in Part III, Chapter III, Section 3, which deals

with Canada's misapplicatiof the law to the facts.
'Cape Cd has lesseffecton an equidistant linethan doesthe protrusionsouthof
the landboundary of the Nova Scotia peninsula. CapeCod differs from other
geographicfeaturesta whichCanada wouldhavethe Court make a comparison.

Feature Ara Population
Cape Cd,

Nantucket Island
& Martha's Vineyard 394sq.mi. 147,925(winter)
440,000 (summer)
Scilly Islands 6sq.mi. 2,428
Kerkennah Islands 69sa. mi. 12.600
Channel Islands 75sq. mi. 125,290

'The Pilgrims, regarded asNew England's first permanentEuropean settlers,
landed onCape Cd near Provincetown.befare eventuallysettling at Plymouth.
Nantucket Island was once the center of the world-wide whalingindustry.
Provincetown,at the tip of Cape Cd, was one of the leading fishing ports in
Massachusetts during the 19th century. In 1797, Captain Paul Pinkham of
Nantucket made the first chart concernedspecificallywith GeorgesBank,shown

at Figure 12 of the United States Memorial. The Woods Hole Oceanographic
Institution on Cape has sponsoredmuch of the scientific researchthat has
been conducted in the Gulf of Maine area, in addition to much of the
oceanographic research conductedin othereas of the'world. Tday, approxi-
mately 150,000 peoplelive the year-roundon Cape Cod, Nantucket Island, and
Martha's Vineyard.During the summer, the populationswellsto approximately

one-half million people,morehan half of the total populationof the entire
provinceof Nova Scotia. Although the area is smaller than that of the Nova
Scotia peninsula,itsomy isdiversified andisnot entirely dependentuponthe
tourist trade, as Canada asserts. CHAF'TER II

GEOMORPHOLOGY AND GEOLOGY

SECTION1. Pointsof AgreementandDisagreementBetweenthe U~ted
StatesandCanadianMemorials

35. The United States Mernorial shows that there are four principal
geomorphologicalfeatures in the Gulf of Maine area-the Northeast
Channel, Georges Bank,the Scotian Shelf, and the Gulf of Maine Basin '.
Canada agreeswith the United States depictionof the location and the di-
mensionsof the geornorphologicalfeatures in the Gulf of Maine area '.
Similarly, the Canadian Mernorial acknowledges that the suhsurface
geologyin the area is eûsentiallycontinuous, that it constitutes a single
continental shelf, and that its principal structural trends parallel the

coastline3. The principal differences between the Parties lie in their
characterizations of the relative significanceof certain geomorphological
features in the Gulf of Maine area, particularly the Northeast Channel
and Gwrges Bank '.

36. The United States Mernorialconfirmsthat the Northeast Channel,
although not a disruption in the continental shelf sufficient to create two
separate shelves, is the only significant break in the surface of the
continental shelf in the Gulf of Maineare'.The United States Memorial
alsoshowsthat Georges Bank isan extensionof the Atlantic Coastal Plain
and East Coast Continental Shelf of the United States into and under the
sea Canada, on the contrary, suggests that thereis no distinction to be
drawn hetween the Northeast Channel and other features of the area,

'UnitedStatesMemorial,para.30.
'The geomorphologoyftheGulfofMaineareaisdescribedat paras.30-3o 5fthe
UnitedStates Memorial.Canadadiscusses itat paras. 23-2and 64-73 of its
Memorial.
'The geologyoftheGulfofMaineara isdescribedat paras.36-3o 7ftheUnited
StatesMemorialandat paras.74-8o 4ftheCanadianMemorial.

'Theseand other,moretechnicaldifferencesrelatingto subsurfacegeologyare
addressedat Annex 5,The Gu>morphologa ynd Geologyof the Gulfof Maine
Area.
'UnitedStatesMemorial,para.31.
6UnitedStatesMemorial,para.32. i281 COUNTER-MEMORW OF THE UNITEDSTATeS 19

such as the Great South Channel '.Canada also wntends that Georges
Bank is a detached bank,separated both from the Scotian Shelf and from
the East Coast Continental Shelf of the United States. Canada in effect
seeksto characterize Georges Bank asa topographie island '.

SECnON 2. The Northeast Cha~el is One of the Principal Genmorpho-
logicalFeatures in the Gulfof Maine Area, andis the OnlyMajor Break in
the Surface of the ContinentalSheif in the Gulf ofMaine Area, While the

Great South Channelis Neither
37. The Northeast Channel represents one of only two prominent
breaks in the surface of the entire Atlantic continental margin of North
America, from Floridato beyondthe Grand Banksof Newfoundland.The

only other such break, the Laurentian Channel, separates the Scotian
Shelf fromthe Grand Banksof Newfoundland, beyondthe Gulf of Maine
area. Canada does not wntest either the actual size or the positionof the
Northeast Channel '.The Canadian Memorial does, however,character-
ize al1geomorphologicalfeatures in the Gulf of Maine area as "second-
ary"', and it suggests that the Northeast Channel and Great South
Channel are features of comparable significance '.

38. A cornparison betweenthe Northeast Channel and the Great South
Channel servesonly to emphasize the unique character of the Northeast
Channel-as does Canada's own Figure 12 in the Canadian Memorial.
Figure 4. The Northeast Channel is not a secondary geomorphological
feature, and thus it should not be wmpared to the Great South Channel.
Canada acknowledges that the Northeast Channel is more than three
times as deep as the Great South Channel 6. The charts used in the
Canadian Memorial, which often depict the 60-fathom-depth contour to

highlight the Great South Channel, confirm that the Northeast Channel
cuts across the entire breadth of the continental shelf, while the Great
South Channel does not '.Those charts also show that the Northeast
Channel directly connectsthe continental slopeto the floorof the Gulf of
Maine Basin,whilethe Great South Channel doesnot.

'Canada regardsthe Northeast Channel aa s "superficial"featurecomparable
with theGreat SouthChannel.SeeCanadianMenorial,para. 68.Canada'sown
Figure 12.reproducedhereas Figure 4, rebutsibis Canadianposition.Without
thelabel,nothingonthemapwouldsuggestthepresenceof a channel.
'CanadianMernorial,paras. 2, 23,and 68.
'The CanadianMernorial describetshe NortheastChannelas being"about 250
rnetresdccp"[para.23i theUnitedStatesMemorialdescribes itasaveraging 225
meters indepth,whilercachingdepthsof 232meters[para. 311.

'CanadianMernorial,para. 64.
'CanadianMernorial,para. 68.
'CanadianMernorial.para. 23.
@ 'See, inparticular.Figur8 oftheCanadianMernorial. 20 Gu= ofMAINE 1291

39. The Northeast Channel has relatively steep,well-definedsidesthat
give it a"U" shape ',as Canada acknowledges.These sides mark the
geomorphologicalboundary between Georges Bankand the Scotian Shelf.
TheGreat South Channel is but a gently slopingdepressionthat does not
represent such a boundary, and, as Figure 12 fmm the Canadian
Memorial confirms, it is imperceptible in comparison to the Northeast
Channel. Figure 4.

40. The geomorphologyof the Gulf of Maine area is confirmed by the
@ topographicchart at Figure 5,whichdepicts the gradients of the slopesin
the area. The darker the colordepicted, the steeper is the gradient in that

area. The relativelysteepgradient on both sidesof the Northeast Channel
appears in hrown.There is nobrown-Le., there isvirtually no gradient-
@ across the breadth of the Great South Channel'. Figure5 demonstrates
that the Northeast Channel marks a geomorphological break in the
continental shelf, while the Great South Channel does not.

SECTION 3. Georges Bankis an Extension of the Atlantic Coastal Plain

and East Coast Continental Shelf, and is Not a Topographie Island as
Canada Suggests
41. Georges Bankis not a "detached bank" between the Scotian Shelf
and the East Coast Continental Shelf, as the Canadian Memorial

asserts'.Indeed, Canada's own official relief diagram of the North
American Atlantic continental margin, published by the Canadian Hy-
drographic Service and reproduced in pertinent part at Figure 6, depicts
Georges Bankas an uninterrupted extensionof the East Coast Continen-
tal Shelf of the United States.

42. The topography of Georges Bank resemblesthat of the continental
shelf along the United States east Coast and differs from that of the
Scotian Shelf. Georges Bank is a broad, shallow, and continuous shelf,
sloping gently seaward. It is capped by surficial sand features*. The

'It is importantto recall the role of the glacial "swuring"of the Northeast
Channel in givingthe Channelits well-defincd"U" shape, which Canada
acknowledgcast para.1 ofits Memorial. Therisnoevidenceto suggestthat a
similarscouringofthe GreatSouth Channeltookplace,and, indeedt,heavailable
evidenceindicatesthat itdidnot.Theassertiontothetrary inpara.71ofthe
CanadianMenorialisinwrrcct. See Annex 5,para.15.

For furtherdiscussionof the NortheastChannel andthe Great SouthChannel,
seeAnnex 5,paras. 11-16.ora discussiooftheeffectofthe NortheastChannel
on the marineenvironnent,seeChapterIII of this Part; Part III, ChapterIII,
Section4;andAnnex 1T , he MarineEnvironmenotftheGulfof MaineArea.
'CanadianMemorial, paras2. and 23.
'UnitcdStatesMemorial,para. 33.[30-361 COUNTER-MEMORIALOF ïHE UNiïED STATES 21

extensive sand ridges and wavespresent on Georges Bank are similar to
those found on Nantucket Shoals and elsewhere on the East Coast
Continental Shelf of the United States as far south as Cape Canaveral,
Rorida. These sand features resemble the sandy coastal topography of
Cape Cod and of the islands of Nantucket and Martha's Vineyard.
Although the continuum of sand wave topography is not interrupted by
the Great South Channel, it does not extend across the Northeast
Channel '.

43.The Scotian Shelf, which lies northeastward of the Northeast
Channel, has a different topography, reflecting extensive glacial erosion.
The Scotian Shelf iscomposedof broad, flat-topped banks,separated by a
series of basins carvcd by glacial activity. All but one of thwe banks,
Sable Island Bank, lack significant surficial sandfeature'.

44. As shown at Figure 6, taken from a chart of the Canadian
Hydrographic Service, although the Northeast Channel "separates"
Georges Bank fromthe Scotian Shelf, the Great South Channel does not
interrupt the extension of the Atlantic Coastal Plain and East Coast
Continental Shelf across GeorgesBank '.

'Forfurtherdiscussionofthesandwave topographoyfGwrgesBankandtheEast
CoastContinental Shelf,seeAnnex 5, para.6.
'For furtherdiscussiooftheglacialtopography oftheScotianShelf, secAnncx
5,paras.7, 8,and 9.
'ForfurthcrdiscussionofGwrgesBankas an extensionof the AtlanticCoastal
Plain andEastCoastContinental Shelf,see Annex 5,paras.6and 16. CHAPTER Iii

THE MARINE ENMRONMENT

SECIION 1. Points of Agreement and Disagreement Between the
United States andCanadian Memorials

45. The United States and Canada are in agreement on many of the
characteristics of the three principal ecological regimes in the Gulf of
Maine areaand on the processes that create those regimes '.In describing
Georges Bank as a "semi-discrete marine ecosystem "',Canada generally

agrees that the Bank and its superjacent waters constitute a separate and
identifiable ecological regime.Canada agrees further that the Northeast
Channel separates stocks of many commercially important species, and
Canada acknowledges that there are separate stocks of important fish
species associated with Georges Bank3. Canada also agrees

'The marineenvironmentof the Gulf of Maine arca isdescribedat paras. 38-58
of the United Statescmorial.Anncx 1 of this Counter-Memorial.The Marine
Environmentof the Gulf of Maine Area,wntains a moredetailed anatysisof this
subject.
'Canadian Mernorial,para. 89.
'Canadian Mernorial, para. 103. In its Memorial, the United States listcd 16
commercially important species and describcd how 12 of these species were

dividcd into stocks at the Northeast Channel.TheCanadian Memorial and its
supportingmaterials reflect that Canada agrees with the Unitcd States that at
lcast 11 of thesc speciesare dividednaturally at the Northeast Channel.Thus,
Canada refersto separateGeorgesBankstocksfor fiveof thc 12 speciesdescribed
@) bythe UnitcdStates in its Memorialat Figure7 and paras. 55and 574, had-
dock, ycllowtailfiounder, Atlantic hcrring, and scallops(paras. 103 and 106).
Canada also agrees that the Northeast Channelis the northern limit for loligo
squid (para. 100).The report of the Canadian Department of the Environment,
Fishericsand Marine Service,citcd by Canada at para. 106, n.27, and deposited
with the Court, indicates that the Northeast Channelis a stock divisionfor four
more oftbcsc 12species- silverhake. redfish,red hake. and white hake(pp.2-41.
In the sameCanadian report,the Northeast Channelisshowntodividc the lobster
concentration on Browns Bank from that on Georges Bank (p. 8).11is not
surprisingthat Canada recognizesthe divisionat the Northeast Channelbetween
stocksoftheseand othcrspecies.Thc stockdivisionat the Northeast Channellong
has been acknowlcdgcd.It was rcflected in the North American Council on

FisheryInvestigations(NACFI)divisionof the Gulfof Mainearea in 1926,and in
the subsequentdivisionsof the area by the InternationalConvention forthe i381 COUNTER-MEMORULOF THEUNITEDSTATES 23
with the United States description of the basic pattern in which surface
water flows through the Gulf of Maine area '.In this regard, Canada

acknowledges that the Georges Bank gyre "helps to set Georges Bank off
from immediately surrounding waters '".Canada also recognizes the role
of geomorphology in determining the circulation pattern, and the marine
environment, of the Gulf of Maine area '.

46. Apart from the large measure of agreement, however, there are
important differences between the Parties. Throughout its presentation,
Canada attempts incorrectly to link Georges Bank tothe marine environ-

ment of the Scotian Shelf. Canada does not accept the squthwe~terly
orientation of Georges Bank, which ties it directly to Nantucket Shoals
and tothe southern New England shelf. Canada describes incorrectly the
entire offshore area from Newfoundland to Cape Cod-Nantucket Shoals
as one "biogeographic province "'. The fundamental difference between

the Parties in this respect stemsfromthe fact that Canada ignores the role
of the Northeast Channel inshaping the marine environment in the area '.

(fmtnote coniinuedfrom thepreviouspage)

Northwcst Atlantic Fisheries(ICNAF) and by the Nortbwest Atlantic Fisheries
@ @ Organization (NAFO). See Figures 8 and 9 of the United States Memorial,
@) @ Figures 14 and15of this Counter-Memorial. andthe attachment to the letter of
20 January 1983to the Registrar fromthe Agentof the United States, which was
submitted in response to the letter of 15 December 1982 fromthe Agent of
Canada. Annex 15,Vol.V. For further informationon the stock divisionsin the
Gulf of Mainearea, see Annex 1,ChapterIl,Section 1.D,and AppendicesA-H.
'Canadian Memorial, Figure 20. Canada agrees that water nows from the
Scotian Shelf intothe Gulf of Maine Basin,and roundthe Gulfof Maine Basinin

a counterclockwisegyre. Canadian Memorial, paras.91 and 93. Canada recog-
nizes the existence of a clockwisegyre over Georges Bank separate from the
counterclockwisegyreover the Gulf of Maineasin.Canadian Memorial, paras.
91 and 93,and Figure 20.
'Canadian Memorial,para. 93.
'Canadian Memorial, paras.89 and 92.

Canadian Memorial, paras. 96,97, 101, 102,and 108. "Biogcographicprov-
inces" group species of iiora and fauna in termj of shared gwgraphic ranges.
usuallyonthe basisofclimate.See Annex 1,ChapterIISection2,for further dis-
cussionofthe scienceofbiogeography.
'Canada recognizesthat the Northeast Channel has"a rolein definingthe limits
of the Bank and bencethe oceanographicand biologicalextent of its 'separation'
from contiguous areas". Canadian Memorial, para. 107. Canada suggests,
howcvcr.th& the geomorpholopicalfcaturcthat has thc mostcffecton the marine
cnvironmcntof thc Gulf of Mainearcs is the Bayof Fundy.Canadian hlcmorial,

para. 92. As shownat Annex 1,ChapterIII,the~ortheast Channel hasprofound
effectson the marine environmentof the Gulf of Maine Basinand GeorgesBank,
which,contrary to Canada's assertionst,he Bayof Fundydoesnot.24 GULFOF MAINE (391

47. Finally, the United States and Canada differ in their views
wncerning the effects of a potential discharge of oil into the marine
environment from possible hydrocarbon developmenton Gwrges Bank.
The United States referred, in its Memorial, to the impact that such
d~velopmentmight haveon stocks of fish that range throughout Georges
Bank '.Canada overlooksthe effect that hydrocarbon developmenton the

northeastern portion of Georges Bank couldhaveon those stocksthrough-
out the Bank.

SECTION 2.The Separate and IdentifiableEcologicalRegimeof Georges
Bank is Associatqdwith Nantucket Sboals and the East Coast Continental
Shelf and Notwith the Separate and IdentifiableEeologiealRegime ofthe
Scotian Sbelf

48. Canada purports to link Georges Bank to the Scotian Shelf.
Canada also seeks to estahlish a break between GeorgesBank and the
East Coast Continental Shelf of the United States in the Cape Cod-
Nantucket Shoalsarea, through referenceto "biogeographicprovincesn-

broad groupingsof species based upon climatologicalcharacteristics. On
this basis, Canada asserts, in its Memorial that, there is a species (as
distinct froma stock)divisionin the Gulf of Maine area: "the Cape Cod-
Nantucket Shoals area off the United States wast is a rewgnized faunal
and floral boundary '". Canada proceeds tocontradict itself in Figure 21
of its Memorial, however, where it depicts Georges Bankas part of a
"province" extending farther southwest, to Long Island. In alleging that
there is snme species break ordivisionin the vicinityof Nantucket Shoals
or Long Island, Canada misinterprets the work of current biogeog-

raphers '.
49. Contrary to Canada's assertions, to the extent that some scholars
proposehiogeographicdivisions inthe Gulf of Maine area near Cape Cod

(asopposedto the divisionof fish stocks,whichiswidelyrecognizedas oc-
curring at the Northeast Channel), they support such a division at
approximately 42 degrees North latitude, along the northern edge of
Georges Bank and thence through the Northeast Channel-not through
the Cape Cod-Nantucket Shoals area-as shownin Figure 7 '.

'United StatesMemorial,paras.255and 321.
' CanadianMcmorial,para. 97.
'See Annex 1V , ol1.Chaptcr II.Section2.

'Biogeographcrsusuallyindicatcclimatologicalbarriersbetweengroupingsof
spcciesbyreferenceto linesoflatitude.Theliteratureindicatesthat. in theGulf
of Mainearea, sucha barricroccursat about42 degrewN. Latitude.Mostof
GeorgesBankissouthofthat latitudeWhilctheseworksrefer toCapcCodasa
referencepoint, thcyare carcfulto note that gcncralefcrenccsto Capc Cod
include the NortheastChanneland the northernedge of Gwrges Bank. See
Anncx 1,Vol.1.Chaptcr II,Section2.(40.431 COUNTER-MEMORIALOFTHE UNITED STATES 25

50. In Figure 7, reproduced from the work of Canadian scientists ',the
Gulf of Maine area is divided into four areas of zoogeographic signifi-
cance, each of which is indicated by a different color. The line where the
green and yellow meet indicates the limit of cold-water and warm-water
regions. This limit runs along the northern edge of Georges Bank and

through the Northeast Channel. Thus, even Canadian scientists do no1
regard Gwrges Bank as part of the same biogeographic province as the
Swtian Shelf '.There is no justification on the basis of biogwgraphy for
linking GeorgesBank to the Scotian Shelf, or otherwise for supporting the
Canadian line. To whatever extent biogeography may be relevant to this
case, it supports the boundary the United States has proposed, rather than
Canada's line.

SECTION3. TheNortheastChamelShapestheMarineEnvironmeno tf
the Gulf of MaineArea

51. Canada suggests that the Northeast Channelhas little or no role in
shaping the marine environment of the Gulf of Maine area. Canada
asserts inwrrectly that the greater part of the water over Georges Bank
comes from the Scotian Shelf 'when in fact most of the water on Georges
Bank enters the Gulf of Maine area through the Northeast Channel. The
water entering the area through the Northeast Channel, in turn, affects

profoundly the physical characteristics of the waters in the Gulf of Maine
Basin and on Gwrges Bank. Canada also implies that the Bay of Fundy is
the "driving force" of the tidal phenomena in the Gulf of Maine Basin
and over Georges Bank', when in fact, without the Northeast Channel,
the tidal energy in the Gulf of Maine Basin, over Georges Bank, and in
the Bay of Fundy would be greatly reduced. Finally, Canada suggests
incorrectly that the Great South Channel has some importance as a fish-
species boundary'. In fact, il is the Northeast Channel that is

'E. L. Bousfieldand M. L. H. Thomas, "Postglacial changeisn distributionof
littoral marine invertebratesin thenadianAtlanticRegion",in Proceedingsof
rheNovo Scolia InrrirutedScience, Vol. 27,Supp.3, 1975,p. 48. See Annex 1,
Vol.1,ChapterII, Section2 and AppendixJ thereto.

For further discussion, see Annex 1,Chapter II, Section 2. The conneclion
betweenGeorgesBank and the areas to the southwestwas also recognizedby
ICNAF. lCNAF Subarea5,whichincluded GeorgesBank,extendedas far south
as 39 degrees north latitude, the approximate latitudeof Washington D.C.
ICNAF management measuresfrequently applied to Subarea 5 as a whole.
Moreover,Subarea5and StatisticalArea6,whichextendedas far southas Cape
Hatteras. NorthCarolina.wereoften treatedas a single management unit. See
Annex 3,Vol.II, paras. 15and 16,Figure3.
'CanadianMemorial,paras.91 and 96; see alsopara. 108.
'CanadianMemorial.para. 92.
' CanadianMemorial,paras. 99and 101. 26 GULFOF MAINE 1431

the only natural boundary in the Gulf of Maine area. The significanceof
the Northeast Channel in determining the marine environment of the

Gulf of Maine area and in forming a natural boundary is discussed
further in this Section,in Annex 1,and in Part III, ChaIIISection4,
which deals with Canada's misapplicationsof the law to the facts.

A. THENORTHEASC THANNEL DETERMINES THE CIRCULATIO PNATTERN
OF THE WATER IN THE GULF OF MAINEBASIN AND ON GEORGEB SANK

52. The greater part of the water over Georges ~ank comes from the .
water in the Gulf of Maine Basin, which in turn comes from water
entering through the Northeast Channel. Approximately60 to 70percent

of the water in the Basin enters it through the Northeast Cha'.Less
than five per cent of the water entering the Basin is from fresh water
sources1; only the remainder comes from the Scotian Shelf. Thus, the
Northeast Channel is the principal sourceof water for Georges Bank.

53. The water entering the Gulf of Maine Basinthrough the Northeast
Channel is important not onlybecause of its volume.As the water enters
the Basin through the Northeast Channel, some of it moves northward
toward the Bay of Fundy, and the remainder moveswestward towardthe
New England coast. This flowplays a critical role in the formation of the
counterclockwise gyre in which the water of the Gulf of Maine Basin

moves.As the water entering through the Northeast Channel flowsinto
the deeper portions of the Gulof Maine Basin, it lifts the upper, less
dense layers of water. Some deep water upwells onto the Bank, where,
coupled with tidal action, it sets in motion the clockwise gyre3. The
remainder of the water leaves the Basin in a well-defined current that
wraps around the northern and eastern edges of Georges Bank.

54. The water entering the Gulf of Maine Basinthrough the Northeast
Channel is of a relatively constant temperature, and is more saline and

'SeeAnnex1,Chapter 1,Section2.ASee alsoUnitedStatesMemoria1;Figure
@ 5.Approximately276,000cuhicmetersof waterper secondenter thebottomof
theGulfofMaine Basinthroughthe Northeast Channel.
'See Annex 1,Chapter 1,Section2.A.Two-thirdsof this freshwateris from
precipitati. nly som0.6percentofthewaterintheGulfofMaineisfromriv-
erinflow.Roughlytwo-thirdsofthis (approximaty.4percent)isfrom United
Statesiversandone-third(approximate0.2percent)isfromtheBayofFundy
andNova Scotia.

' Canadaacknowledgetsheexistence ofthegyreonGeorgesBankat para93 of
itsMemorial.Forfurtherdiscussio,eeAnnex 1,Chapter1,Sectio2.8.(441 COUNTER-MEMORLUOF THE UNITEDSTATES 27

richer in nutrients than is the water that enters the Basin at the surface
from the Scotian Shelf. The infusion of water through the Northeast
Channel into the Gulf of Maine Basin has a profound effect on the
temperature, salinity, and vertical mixing ofthe waters in the Basin.As a
result, these waters are substantially different from the waters over the

Scotian Shelf. In turn, the physical characteristics of the waters ahove
Georges Bank, which originate in the Basin, are substantially different
from those of the waters over the Scotian Shelf '. These physical
differences result in the developmentof different ecologicalcommunities
within the three regimes.

C. THENORTHEASC THANNEL ENHANCE TSHE TIDES OF THE GULF OF

MAINEBASIN AND OF GEORGEB SANK
55. The Northeast Channel greatly enhances the tides in the Gulf of

Maine area. Tides are the result of the gravitational pull of the moonand
the sun upon the ocean.Although this gravitational pull is exerted evenly
on the waters of the Gulf of Maine area, the geomorphologyof the area
affects the ebb and flood of the water. Thus, the three separate and
identifiable ecological regimes in the area are affected differently by
tides'.The Northeast Channel permits a greater volume of water to be
pulled hy tidal forces, and it permits deeper water, rather than surface

water alone,to be affected hy these forces.Furthermore, the tidal energy
entering the Gulf of Maine Basin through the Northeast Channel is
greater than the tidal energy entering the Bay of Fundy from the Gulf of
Maine Basin '.As a result, the tides inthe Gulf of Maine Basin,as wellas
those in the Bay of Fundy, are "greatly enhanced" by the Northeast
Channel, and not merelyby the Bayof Fundy itself,as Canada sugges'.

D. THE NORTHEAS C HANNEL SEPARATE SISH STOCKS WITHIN THE
GULF OF MAINEAREA

56. Becauseof the effect of the Northeast Channel on the circulation
and characteristics of the waters of the Gulf of Maine area,ate and

'Forfurtherdiscussio,eeAnnex1, Chapter 1Section2.
The interactionoftidal currentswithshallowtopogrenhancesmarine plant
production.
'"Most of the tidalnergyenters thesystemthrough theFundian[Northeast]
Channel."D.A. Greenherg",A NumericalMode1 InvestigatiofTidalPhenom-
enainthe Bayof Fundy andGulfofMaine",in Marine Geodesy,Vol.2,No.2,
1979,p.185;citedat CanadianMemorial,para.2,n. 16,anddepositedwiththe
CourtbyCanadaon 27 Septembcr 1982pursuanttoArticl50(2)oftheRulesof

Court.Forfurtherdiscussion,eAnnex 1,Chapter1,Section3.
'CanadianMemorial, para.92.Forfurtherdiscussion,eeAnnex 1,Chaptcr 1,
Section3.28 GULF OF MAINE 145-461

identifiable communitiesof flora and fauna are associated withthe three
separate and identifiable ecological regimesof the area. Distinct commu-
nities of marine flora and fauna are found within each regime.Thus,
separate stocksof commerciallyimportant fish and shellfish,such as cod,
haddock,herring, lobster, yellowtailflounder,and silverhake, to mention
only a few, are associated with the principal ecological regimes of the
area '.

SECTION 4. Hydrocarhon Developmenton the Northeastern Portion of
Georges BankWould Place the Marine Resourcesof the Entire Bank at
Risk; Such Development WouldNot Threaten Canadian Stocks on the
Scotian Sbelf or the Canadian Coast

57. An oil-well"blowout" or an oil spillon the northeastern portion of
Georges Bankduring the course of any hydrocarbon developmentwould
threaten the stocks of fish and shellfish throughout the entire Bank.

BecauseGeorges Bank isan integrated ecologicalregime, damage to the
marine environment onthe northeastern portion of Georges Bankwould
affect adversely the entire regime'. By contrast, it is unlikely that
hydrocarbon development onthe northeastern portion of Georges Bank
wouldthreaten significantly the marine resourcesof the Scotian Shelf or
the Canadian Coast, as is confirmed in Annex 2 of this Counter-
Memorial '.

'For further discussionsee Annex.Vol. 1,whichdescribes indctailthe stock
divisionat theNortheast Channealmongthe commerciallyimportantfishspccics
in the Gulf of Maine arca. See. in particular,Chapter Il.Section l.C and
Appndics A-H.

'Forfurtherdiscussion .eeAnnex2,Vol. 1.
'Forfurtherdiscussion .ecAnnex 2,Vol. 1. CHAPTER IV

FISHING ACTlVlTlES OFTHE PARTIES AND THElR NATIONALS

SECTION 1. Points of Agreement and Disagreement Between the
United States and Canadian Memorials

58. The fishing activities of the Parties and their nationals are
described at paragraphs 60 through 88 of the United States Memorial.
There are several points of agreement with the description contained in
the Canadian Memorial '.Canada agrees that the United States has
historically fished off Canadian coasts throughout the Gulf of Maine area
and beyond'; that the United States first began to fish on Georges Bank

in the early 19th century ';and, that United States fishermen fish today
on Georges Bank'. Finally, Canada agrees that its fishing activity on
Georges Bank is limited, both in geographical scope to the northeastern
portion of the Bank and, in terms of species, primarily to scallops found in
that area '.As Canada States, "[tlhe Canadian interest has been centred
primarily on the scallops of the area under Canadian claim. . .'".

59.For the most part, however, the United States and Canadian
Memorials bear little resemblance to each other in their discussion of

fishing activities. The United States Memorial demonstrates that, on
Georges Bank and in the Gulf of Maine Basin, United States fishermen
have fished longer and to a much greater extent '; that it was United
States fishermen alone who established the fisheries on Georges Bank,
beginning over 150 years ago'; and, that, until recently, it was almost
exclusively United States fishermen who fished Georges BankP. The

United States Memorial also establishes that the United States has
dominated the conservation, management, and scientific research efforts

'Canadian Mernorial,paras. 179-196.
>Sec "Historical Introduction".Canadian Mernorial. Annexes.Vol.1.p. I

'Canadian Mernorial, para. 181.
'Canadian Mernorial.paras. 176-178.
'Canadian Mernorial, paras.117. 126, 129, 132,and 202.
'Canadian Mernorial, para. 140.

'United States Memorial, paras. 68-85.
'United States Memorial, para. 69.
'UnitedStates Mernorial, paras. 76-79. 30 GULF OF MAINE 148-501

relating to the fisheries of Georges Bank and the Gulf of Maine Basin,
both independently and pursuant to international agreements'.The

Canadian Memorial distorts Canada's purported historical fishing"inter-
est" onGeorges Bank,and, indeed, attempts to describe one when infact
none exists.
60. Canada also is mistaken in its portrayal of the United States
fishinginterest in Georges Bank. Forexample,Canada suggestsincorrect-

ly that the United States interest in the northeastern portion of Georges
Bank is not importanl;that fishermen fromMaine and New Hampshire
have nohistorical or present fishingerest in Georges Bank'; and, that
the role of the United States in the conservation and management of the
Georges Bank fisheries has notin the past, and does not now,exceedthat
of Canada '.In fact, with respectto each of these matters, the converse is
true. United States fishermen have always taken a substantial share of
their catch from the northeastern portion of Georges Bank.hermen
from Maine and New Hampshire have in the past, and do at present, fish

on the Bank, including on the northeastern portion. Finally, the United
States has heen the leader in the efforts to conserveand to manage the
fishery resourcesof Georges Bank.

SECTION 2.Georges Bank was Developedand FishedAlmostExclusively
by the United States; the Canadian Fishery on Georges Bank is Limited
and of Recent Origin.

A. THEGEORGES BANKFISHERY WAS DEVELOPED BY THE UNITED

STATES IN THEEARLY PART OF THE NINETEENTC HENTURY A,ND FISHED
ALMOST EXCLUSIVEL BYY THE UNITEDSTATES PRIOR TO THE SECOND
HALF OF THISCENTURY
61. The discussionof the developmentof the United States fishery on

Georges Bank containedin the United States Memorial is supportedby
the works of eminent historians, such as Raymond McFarland, George
Brown Goode, Samuel Eliot Morison, and Harold A. Inni'.Moreover,
@ this portrayal is supported by the statistical recor8.showstotal
United States and Canadian groundfish landingsby weight in Subarea 3
(offNewfoundland),Subarea 4 (off NovaScotia),and Suharea 5(off New
@ England) for the years 1893 throu1950.Figure 8 was developedfrom
information suppliedby the United States and Canada to the Internation-
al Commission for Northwest Atlantic Fisheries (ICNAF) i1951 and

'UnitedStatesMernoria, aras.121-128.

'CanadianMernorial, ara. 138.
'The CanadianMernorialis replewith such incorrectstaterneSee.e.g.,
CanadianMemorial, para.2, 35,59.61, 120,and 176.
'CanadianMernorial, aras.197-199.
'UnitedStatesMernorial,Annex17,18,12,and 13,respective, ol.II. i511 CouNTER-MEMo RIAHE UNITED STATES 31

reported in Part 4 of ICNAF'sSecond Annual Report '.Canada reported
to ICNAF catches in Subarea 3 and 4 dating as far back as 1869 '.No
Canadian landings are reported in Subarea 5 (off New England) until
after 1950. These statistics illustrate that Canada's fishing activities
always have centered on the major fishing banks to the north of the
Northeast Channel.

62. Nonetheless,Canada argues that it had a fishery on Georges Bank
in the 19th century'.Annex 7, "Comments on Paragraphs 179 through
196 of the Canadian Memorial", contains a paragraph-by-paragraph

rebuttal of Canada's assertions in this regard. Annex7 shows that
Canadian fishingon Georges Bankin the 19th century, if it existedat al],
was at most insignificantand incidental.

63. In the first half of the 20th century, the fishery on Georges Bank
still was pursued almost exclusivelyby the United States. The North
American Council on Fishery Investigations(NACFI), in whicb Canada
and the United States participated, was formed during this period. It
divided the North Atlantic fishing area into "Statistical Areas" based
upon what was known at the time about stock divisions and areas of
fishing concentration. In the Gulf of Maine area, NACFI drew a line

through the Northeast Channel, between Georges Bankand Browns
Bank, labeling Georges Bank and the Gulf of Maine Basin as "New
England" and German Bank, Browns Bank, and the banks to the
northeast as "Nova Scotia"'.That nomenclature reflected the historical
and contemporary interestsof the United States and Canada at that time.
In 1949,the International Convention forthe Northwest Atlantic Fisher-
ies(ICNAF) adopted thisdivision,dividingits Subarea 4(offNova Scotia)

and Subarea 5 (off New England)with a line between BrownsBank and
Georges Bank through the Northeast Channel '.

64. Contrary to the information that it supplied to ICNAF, Canada
now claims that its fleets fished regularly on Georges Bankin the first
part of the 20th century 6. Canada fails to provide any statistical

'"Statisticsof Landingsof Groundfishfrom the ConventionArea", Part4,
ICNAF, Second Annual Report. 1951-52.See Annex 16, Vol. V. See also.
ICNAFStatistical BulletiVol.2forthe year 1952a,t UnitedStatesMemorial,
para.79andAnnex46,VolIII.
'Newfoundland'csatcheswcrereportedasfarbackas 1804.Anncx16,Vol.V.
'CanadianMernorial.paras.179-182.

@@ 'United StatesMemorial,para.76,Figur8;see alsoFigure14.
@ @) 'UnitedStatesMernorial, ara.78.Figure9see alsFigure15.TheICNAFline
alsoplacednrtuallytheentircGulf ofMaineBasinwithinSubarea5.
lCanadianMernorial,paras.183-189. 32 GULF OFMA~NE 1521
information to support that contention. As was the case in the 19th

century, to the extent that any Canadian vessels fished on Georges Bank
during the first half of the 20th century, these were but insignificant and
incidental occurrences. As noted by Annex 7, the only contemporaneous
corroboration that Canada supplied in its Memorial in support of its

contention is one obscure 1915 newspaper article from Digby, Nova
Scotia, and one isolated 1942wartime wreck report '.

@ 65. Figure 8,which shows the catches reported by the United States
and Canada for the years 1893through 1950, confirms that there were no
@ Canadian fisheries in Subarea 5 up tothe middle of this century. Figure 8

illustrates the United States catch in Subarea 3,as well as the large
Canadian catch in that area. It illustrates that both the United States and
Canada had substantial catches in Subarea 4. Filly, it illustrates that the
United Stateswas the onlyState that repnrted catches inSubarea 5.

66. The meager evidence provided by Canada in its Memorial does not
support its contention that Canadian fleets regularly fished Georges Bank

(a part of Subarea 5) prior to the second half of this century. As shown in
Annex 7. Canada's allegation is contradicted by the work of Frederick
William Wallace, the editor of the Canadian Fisherman. Canada's
leading fishing industry publication during that period'. In 1945, Mr.

Wallace. upon whom Canada relies in its Memorial ',wrote a comprehen-
sive article entitled "Thirty Years Progress in Canada's Fish lndustry
1914-1944 '".In that article, he noted the fact that the Canadian offshore
fleet:

". . .prosecuted the cod, haddock and halibut fisheries on al1 the
offshore Banksfrom Browns ro Grand. and the inshore grounds from

the Bay of Fundy to Labrador '".

-
'Annex 7,Vol. IV, contains commentson paras. 185 and 189of the Canadian
Memorial.The obscurenewspaperarticle iscited in the Canadian Memorialat p.
85.n. 49.The wreckreport iscitedat p. 87,n. 56.Bywayof illustrationof the in-
substantiality of thisevidence,in contrast to the single wreck report cited by
Canada, Annex 7 indicates that in a survey of United States Customs Service
records,which is only about 30per cent complete,319 wreck reports of United
States vesselsfishingon GeorgesBank,or sailing toor from the Bank, havebeen

identifiedtodate.
'See Annex 7,Vol. IV,commenting,on paras. 184, 187,and 189,inreralia,of the
Canadian Memorial.
'Canadian Mernorial.p. 85, n. 47 and 48.See alsp.84, n. 46,and p. 86, n. 53.

'Frederick William Wallace, "Thirty Years Progresisn Canada's Fish Industry
1914-1944".in CanadianFisheriesManual. 1945.Annex7, Vol. IV,AppendixA.
'Ibid.. p. 14.[Emphasisadded.][531 COUNTER-MEMORIALOFTHE UNITEDSTATES 33

Nowhere, however, does he mention a Canadian fishery on Georges Bank.
It can only be assumed that this leading reporter on Canadian fisheries
was unaware of any Canadian fishing activity on Georges Bank prior to

1945.

B. IN THE SECOND HALF OF THIS CENTURY THE THERETOFO ERECLU-
SIVE UNITEDSTATESFISHERY ON GEORGESBANK WAS SUBJECTE DO
THE INCURSION OF FOREIGNFISHINGI ,NCLUDING FROM CANADA

67. The United States Memorial established four points in relation to

fishing activities on Georges Bank in the second half of this century. First,
fishing on Georges Bank was conducted almost exclusivelyby the United
States until 1954, the first year in which ICNAF recorded any Canadian
fishing activity on the Ban'.Second, foreign States other than Canada
began to fish Georges Bank in 1961, and within a few years were taking

more than 50 per cent of the catch from the Bank. In some cases, these
catches threatened the viability of the sto'.Third, during this period,
Canada concentrated on the scallop fishery on the northeastern portion of
Georges Bank as the scallop catch of United States vessels on Georges
Bank declined'. Fourth, because of overfishing by foreign fleets, the

United States established a 200-nautical-mile fishing zone in 1'.7
68. Since Canada began to fish on Georges Bank in the mid-1950s, its

activities have centered primarily on the scallops on the northeastern
portion of the Bank'. In the 1960sand1970s,however, Canada entered a
number of other fisheries on Georges Bank, as did third States.Table6.

69. Canada's participation in the non-scallop fisheries was often limit-
ed or transitory, and followed the development of the fishery by others.
For instance, Canada didno1enter the offshore lobster fishery on Georges
Bank until the 1970s after that fishery had been developedby the United

States'. In another example, Canada, in the wake of the Soviet Union,

'UnitedStates Mernorial, par80.
'UnitedStates Memorial.para.84.The CanadianMernorial,at para. 191,refers
to the"virtual extinctionof the GeorgesBankherringstock" broughtabout by
overfishingbythe distant-waterfleets.

'United States Memorial.para.3.
'UnitedStates Memorial,para.87.
'CanadianMemorial, para.140.

&Inthis table, theCanadiancatch includes scacatchesbyshellweight.Thus,
the Canadiancatchin metrictonsislargerthan it would ifthe table reflected
scallopcatchesbymeatweight.
'Annex 7, Vol.IV.containscommentson para. 191ofthe CanadianMernorial. 34 GULF OF MAINE 1541

entered the offshoreherring fishery inthe years 1967through 1974 '.The
groundfish fishery,which Canada entered in the late 1950s,was begunby
the United States in the early 19thcentury.

70. The non-scallopcatch of the United States and Canada on Georges
@ pnk from 1904 to 1981 is shown at Figure 9'. Canada's catch was
insubstantial until 1962,when for the first time it was more than 5 per
cent of the total United States-Canada non-scallop catch. After the
establishment of 200-nautical-mile zones in 1977, during active negotia-
tions to resolve the boundary dispute, Canada's groundfish catches rose

abnormally. For instance, inthe case of haddock, Canada's catch in 1977
and 1978 on the northeastern portion of GeQges Bank exceededils total
haddock catch in that area for the entire period of 1969through 1976 '.

71. In view of this historical record, itis not surprising that Canada
emphasizesthe 10-year period 1969through 1978.Canada states "[tbis
period has been selected as one that is long enough to convey a
representative picture that avoids distortions resultingfrom short-term
fluctuations, yet short enough to focuçattention upon the contemporary
reality of the fishery "'. In fact, this period suffers from the very
distortions that Canada argues it avoids. From 1969 through 1978,
Canada caught more fish on Georges Bankthan in any other comparable
period prior to that time. Inasmuch as there was no recorded Canadian
fishery on Georges Bankprior 10 1954, no IO-yearperiod since that date

can he termed "representative".
72. Canada's suggestionthat it started the scallop fisheryon Georges
Bank, and its assertion that there was "a 'virtualabandonment'of eastern

Georges Bank'" by the United States scallopfleet in the mid-1960s, are
incorrect.Canada'sownevidenceconfirmsthat the United States, and not
Canada, established the scallop fishery on Georges Bank. BulletinNo.
145 of the Fisheries Research Board of Canada6, puhlished in 1964,

'Annex7, Vol.IV.
Figure9 isdevelopedfrominformationpresentedal Annex17,Vol. V.
'Annex 18, Vol. V, whichis basedupon informationcontainedin Annex 3,
Volume4,ofthe CanadianMemorial,showstheabnormalincreasesinCanadian
groundfishcatchesonthenortheasternportionofGeorgesBankduringtheyears
1977-1978T. o the cxtentthat therewereconservationproblcmswitbGeorges
Bankstocksin 1977-78,as Canadaseems 10 allegeat para.236ofits Memorial,
thesestatisticsindicatethat Canada wntributedsubstantiallytothat prohlem.

'CanadianMemorial,para. 122.
'Canadian Memorial,para. 190.The United States Memorial discussetshe
scallopfisheryat paras.82and 83.
'N. Bourne,Scallops andthe Wshore Fishery of the Marilimes.Fisheries
ResearchBoardof Canada,BulletinNo. 145,1964.Thisdocumentis citedat
para. 190,. 57, oftheCanadianMemorial. CANADA AND THlRD STATE CATCHES ON GEORGES BANK

AS REPORTEDTO ICNAF' (inmetrictons)

TABLE A

CANADA USSR POLAND SPAIN FRG' JAPAN GDRr OTHER

'Taken Imm ICNAF Stilislical Bullitlns. 1954-1976 Table 2. SsaAnnci 47,Volums III UnitedStates
Himoili>l. Nd. that throuph le87 ICNAFdld no1breakdowncatch slalirlbs bslraan (Iiorgei Bank
»m.nd the Nantuskal Shmir Ai(5ZW).ccardlnply.Ihi calches show" hsii 10, 1967and prior
Y.,,*I"SIYd. both ireai.36 GULF OFMAINE I59I

notes that when Canadian vessels began to fish for scallops on Georges
Bank, they were entering an established United States scallop fishery.
That document, an official publication of a Canadian Government
institution, State"... the thriving United States offshore scallop fishery
.. .began off Long Island in the early 1920's and spread to Georges Bank
in the late 1920'sand early 1930's "'.The so-called "pioneervoyage" of

the Mary E. Kenney,upon whichCanada so heavily relies at paragraph
190of its Memorial, isalso referred to by the FisheriesResearch Boardof
Canada:

"... in the late 1930's interest was expressed in developing a
Canadian offshore fishery and necessary alterations in the fishery
regulationswereproposedto permit this. However,with the advent of
World War II, interest was diverted.

A great deal of the credit for reviving interest and encouraging the
developmentof the Canadian offshore scallop fishery must go tothe
late Mr. T. R. Clouston, of General Sea Foods, Halifax. He knewof
the UnitedStates GeorgesBankfishery and postulated that some of
the Nova Scotian banks had populations of scallops which might
support a similar Canadian fishery. In 1945he chartered the M. V.

Mary E. Kenney(under Captain John Beckof Halifax) to explore for
scallop bedson Nova Scotia banks, particularly Middle Ground.
Captain Beck wasacquainted with offshore scallopingsince he had

sailedon Georges Bank scallopboats out of the port of New Bedford,
Massachusetts. In 1945hetook theMary E. Kenneyto NewBea7ord
and hadher rigged in thesame manneras UnitedStates offshore
scallopers.On his return trip to Halifax, he fished 9 days on Georges
Bank and with his crewof 6 men landed 8000 Ib of scallopmeats in
Halifax. This wasthe first catch of scallops landed in Canada by an
offshore scalloperand it came from Georges Bank '."

73. Thus, in one of Canada's own official reports, the voyage of the
Mary E. Kenneyis proven not to have been "pioneer" at all, but rather a
tentative first step into a fisheryknownby Canada to have heendeveloped

by United States fishermen at great expenseand personal risk '.
74. Furthermore, the United States scallopfleet, contrary to Canada's
claim, at no time ahandoned the northeastern portion of Georges Bank.
The Canadian scallop fleet entered a fishery that was already fully

'Bourne,op. rit.p. 21.
Ibid.[Initialandfinalemphasisadded.]
See ahoAnnex 7,Vol. IVc,ontainingcommentson para. 190,interalia,ofthe
CanadianMemorial. (60-621 COUMER-MEMORIALOF THE UNITED STATES. 37

utilized by the Unitcd States'.Nevertheless, due in large measure to the
vessel-construction subsidy program of the Canadian government ',by
1964, the new and expanding Canadian scallop fleet on Georges Bank was
@ taking about one-half of the scallops from the Bank. Figure 10'. Until

that year, the United States scallop fleet had beenle to maintain its tra-
ditional catch levels despite the entry of the Canadian fleet. This was
possible because of an unusually large year class bred in 1959'. In 1965,
however, scallop availability declined. Both the United States and Cana-

dian scallop fleets shifted much of their effort to scallop beds on the mid-
Atlantic Shelf$. After two years, the Canadian îishermen returnzd to
Georges Bank 6,while the United States fleet continued to concentrate on
the mid-Atlantic scallop beds'.

75. Scallops on Georges Bank remained at low levels of abundance
through 1975,but nonetheless were îished heavily by the Canadian flee'.

A proposal was made in ICNAF in 1972 to conserve the scallop resource
by requiring the scallop catch to average not more than 40 meats

'J. F. Caddy and E.1.Lord."High PriceofScallop Landings ConcealsDeclinein
Offshore Stocks", Fisheriesof Canada, Dept. of the Environment, May-June
1971, Vol. 23, No. 5reprinredar Annex 19,Vol. IV. As explained by these

Canadian writers, the unusuallyhigh abundance ofscallopson GeorgesBank in
the early 1960s"set the Pacefor the Canadian investmentin the offshore scallop
industry"Ibid p.,4.
'Annex4, Vol.III, A Factual Analysisof the Socio-EconomicArgumentsin the
Canadian Memorial,at AppendixC. Seealso United States Memorial, para.82

and Annex21.
@ ' Figure 10is developedfrom information presentedat Annex 17,Vol.V.
'Caddy and Lord,op.rit..at Annex 19,Vol.V,p. 4.

'Ibid.
Ibid.
'Even at that lime. United States iïshermencontinuedto fish forscallopson al1
@ parts of GeorgesBank, andthus did not "abandon" the BankSee Figure 10.

Vee J. F. Caddy, "Some RecommendationsFor Conservationof GeorgesBank
ScallopStocks", ICNAF Res.Doc.7216,at Annex 19, Vol.V.Caddy reports that
parts of the Canadian iieet weretaking scallopsyielding70 meats per pound.He
also citesunconfirmedreports ofCanadian catches of 120meats per pound(p. 3).
In the late 1960sand early 1970%Canadian scallopvessels wereable tooperate
ewnomicallywhilefishingfor such small scallopsbecauseof lowoperatingwsts
(p. 1).United States scallopvessels. whichoperate under union rulesor identical

industry practices,have higher costs.Thoserules and practiceslimit the number
of personson board the vesseland the number of days thevesselmay be away
fromport.Since UnitedStates vesselshave fewerfishermen to shuckscallopsand
fewer days when they may be away kom port, they tend to seek out larger
scallops.These union rules and industry practicesthus have important conserva-
tion benefits. 38 GULF OF MAINE i631

per pound, thus compellingfishermento return small scallopstothe sea '.
This proposal, however,did not enter into effect for the United States or
Canada1. In 1976,the period of lowscallop availabilityon Georges Bank
ended with the maturity of the large 1972 year class. This factor,
combinedwith the extensionof fisheriesjurisdiction to 200 nautical miles

in 1977,encouraged the return of large numbers of United States scallop
@ vesselsto Georges Bank.Figure 10.

76. In conclusion, between1950 and the 1977 extension of fisheries
jurisdiction to 200 nautical miles,the scopeof Canadian fishing activities
on Georges Bank didnot differ significantlyfrom that of third States, in
terms of either its duration or the amount of fish taken from the Bank.
The Canadian activity was centered primarily on the scallop fishery,
which was started, and never abandoned, by the United States. Through

the extensionof its fisheriesjurisdiction in 1977,the United States was
able to control fishingby third States on Georges Bank. By virtue of its
boundary claim,however,Canada asserted a right to a portionof Georges
Bank. To avoid incidents the United States has permitted Canadians to
fish inthe area pendingresolutionof the dispute. Should any credencebe
accordedto Canada'sclaim, it woulddisregard the historicalpredominant

interest of the United States in the fisheriesof Georges Bank. Canada's
limited fishing activitieson Georges Bankare no more entitled to prevail
over the past and present United States fishing interest than were the
Norwegianactivitieson the Grisbadarna Bank in the Grisbadarnacase or
the British activitiesin the waters off Norway in the Anglo-Norwegian
Fisheriescase. This result is discussed further in Part III, Chapter III,

Section 5, which deals with Canada's misapplicationsof the law to the
facts.

SECTION 3. A Division of Georges Bank Would Deny United States
FishermenAccess totheNortheasternPortionof GeorgesBank,an Area
of Past andPresentUnitedStates Interest

77. Canada incorrectly portrays the United States interest in Georges
Bankas "predominantly centred in the undisputed fishinggrounds '",Le.,

southwestof the Canadian line. United States fishermen, bothhistorically
and at present, fishon al1parts of Georges Bank.

'ICNAF,Proceedings ofthe 22ndAnnualMeeting, No .,App. IV.
2Canadainitiated thisproposal.and itwas adoptedby Panel 5. Nonetheless,
during the six-monthobjection period under the Convention(see Annex 3,
Chapter II),Canadarefusedtobehoundhytheproposal.Thereafter,the United
States also refused to be hound, to avoid beingplaced at a competitive
disadvantage initsownmarket.

'CanadianMemorial,para. 138.1641 COUNTER-MEMORIALOF THE UNITED STATES 39

78. For more than a century. the northeastern portion of Georges Bank
has retained a special importance in the fishing strategy of United States
fishermen. The concentrations of groundfish in this area during the winter
months make large catches possible at a time when prices are high '.
Furthermore, the scallop beds in the northeastern portion of Georges
Bank are the most consistently productive beds to which the United States
scallop fleet has access. When the scallop population in that area is low,
the United States scallop fleet has not been able to maintain its catch
elsewhere, and vessels have had to leave the fishery.

79. The historic record demonstrates that United States fishermen
conducted substantial fisheries on the northeastern portion of Georges
Bank in the 19th and early part of the 20th centuries. George Brown
Goode, in The Fisheries and Fishery Industries of the United States,
published in 1887, referred to the United States cod fishery on Georges

Bank in the following terms:
"The hest time for fishing upon George's is in February, March,and
April, when the spring spawning schools of codfish appear on the
Bank. During these months the favorite fishing ground is upon that
portion of the Bank which lies east of the shoals, at a depth of 25 to

35 fathoms, this being called the 'winter fishing ground"."
Elsewhere, Goode States:

"During the months of February, March, and April large schools of
cod make their appearance on the bank. They are generally found on
the 'winter fishing-ground,'as part of the bank lying to the eastward
of the shoals'."

Thus, the northeastern portion of Georges Bank is the famed "winter
fishing grounds" that still appear on United Statescharts '.Goode'schart

'Foradiscussionofthe relationshipbetweenfishingpatternsandstockconcentra-
tions,seePart III, CbapteIII.Section7.
'G. B.Gde, "The GeorgesBankCod Fishery",in TheFisheriesandFishery
Industriesof the UnitedStates, Section V, 1887, p. 189. [Emphasis added.]
Reprintedor UnitedStates Memorial,Annex 18,Vol. II.The shoalsreferredto
are Georges shoals,onthe central partofGeorgesBank. .
'G. B. Gde, "The Fishing Groundsof North America",in The Fisheriesand
FisheryIndustries ofthe UnitedStates, SectionIII, 1887,pp. 74-75.Annex21,
Vol.v.

'Under Article II,paragraph 2, of the Special Agreement, the Chamber is
requestedto dcpict the courseof the maritime boundaryon Canadian Hydro-
graphieServiceChart No. 4003and UnitedStates NationalOceanSurveyChart
No. 13006.The "Winter Fishing Ground" is still labeled as such on the
northeasternportionof GeorgesBankon United States National OceanSurvey
Chart No. 13006. 40 GULF OFMAINE i651

depicting the winter cod grounds on the northeastern portion of Gwrges
@ Bank is reproduced here at Figure 11. Other charts, produced in the early
20thcentury by Edward Ackerman of Harvard University, and published
in his work The New England Fishing Industry ',portray the heavy

concentration of the New England cod anddhaddock catches on the
@ northeastern portion of Georges Bank. Figure 12.
80. Statistics compiled since 1936confirm that the United States has

consistently taken a large share of its Georges Bank catch from the
northeastern portion of the Bank '.United States catches in the northeast-
ern portion of GeorgesBank for the years 1936through 1968are shownat
Table B. together with the total United States Georges Bank catch for
those same years '.Table B shows that the percentage of the total United
States Georges Bank catch taken from the northeastern portion of the
Bank has ranged from 62 to 14 per cent, depending upon the fishing
conditions in any particular year. Canada acknowledges that, even during

the unrepresentative period of 1969 through 1978 that Canada asserts is
the most relevant, 27 per cent of the United States Georges Bank catch
came from the northeastern portion of the Bank'.

81. These tables, figures, and historical evidence demonstrate that the
United States fishing industry has caught in the past, and catches at
present, a large share of its catch from the northeastern portion of
Georges Bank'. Thus, Canada is not correct in its statement that the
"undisputed part of Georges Bank gives the United States an ample
resource base to sustain a healthy fishery and allow potential for future
growth 6". If that were the case, United States fishermen would not have

'E.A.Ackerman, New England'sFishingIndustry, 1941,Charts IIIand IV,pp.
15,17.

'Statisticsareavailablefrom 1936tothe presentindicatingUnitedStatescatches
in NACFI statisticalunits 523 and 524,whichcorrespondto ICNAF statistical
units5Zejand 5Zem.shownat Figure23ofthe CanadianMernorial.Canadahas
correlatedthesestatistical units tothe area that it claimson Georges BSee.
Canadian Memorial,para. 138.For purposesof statisticalcornparisononly,the
UnitedStatesusesthis approach.
'This tableisdcvelor>efromlandingsat principalNewEnglandports(primarily
Boston,Gloucester,Portland. andNewBedford),as reportedin FisheryIndustries
0.the UnitedStates.1937-1938,U.S. Dept.of Commerce,and FisheryStatistics
dthe UnitedStates. 1939-1968,U.S. Dept.of the Interior.Accordingly,it does
not include al1 United States catches from Georges Bank. Nonethelessi,t is
consistent with,and representativeof, therecordofthe UnitedStatescatchin the
area.
'See CanadianMemorial,para.138,n. 18.

'Fora cornparisonofCanada's catchonthe northeasternportion of GeorgesBank
with its total catchin the Northwest AtlanseeAnnex 22,Vo1.V.
CanadianMemorial,para.140.[66-701 COUNTER-MEMORIAO LFTHE UNITED STATES 41

been fishing on the northeastern portion of Georges Bank for more than

150 years '.

SECTION 4. Fishermen From Maine and New Hampshire Have Historical
and Present Fishing Interests On Georges Bank

82. The Canadian Memorial, in numerous instances, asserts that
fishermen from the states of Maine and New Hampshire do not fish on
Georges Bank'. On the contrary, fishermen from Maine and New

Hampshire fish today, as in the past, on Georges Bank, including on the
northeastern portion. The statements in the Canadian Memorial indicate
that Canada must be misinformed about the nature of the United States
fishery on Georges Bank.

83. In his historical work,The Fisheries andFishery Industries of the
United States. George Brown Goode records the fact that United States

fishing vessels from Maine routinely engaged in the Georges Bank
fisheriesin the 19thcentury. Goode reports that, as early as 1844, vessels
from Maine fished on Georges Bank, including the northeastern portion:

"The first vesse1 from Southport to engage in the halibut fisheries
was the schooner Pearl, Capt. O. Harris, in 1844. The Pearl ...went
in the fall and fished with handlines from the vessel's deck, catching
their fish usually in from 30 to 90 fathoms on the northeast edge O/

GeorgesBank ...'".

84. Goode confirms that vessels from the ports of Southport and Vinal
Haven, Maine, were regular participants in the cod fishery on Georges
Bank<. In addition, the New England haddock fishery in the 19th

'See Part III, Chapter Ill, Section7.
'The followingare examples from the Canadian Memorial: para. 29: "The

fishermen of Maine.. .do virtually no fishing on Georges Bank"; para. 32:
"Virtuallyal1UnitedStates fishingon GeorgesBankisconductedfromcommuni-
ties on the coasts of Massachusetts and Rhode Island from Gloucester to
Newport";para. 35:"The coastsof New Brunswickand Maine facethe innerpart
of the Gulf of Maine. The relativedie!anceof thesecoastsfromGeorgesBank is
reflected in the absence of any signilicant economiclink ta the fisheries of the
Bank"; para. 59: "Neither Mainenor New Brunswickare significant centres for
the GeorgesBankfishery";para. 61: "Southwestern Maine andNew Hampshire
do not make anysubstantial use of Georges Bank;" para. 120: ". .the coastal
States of...New Hampshire andMaine. ..are not significantparticipantsin the
fisheryof Georges Bank"; para. 176:In Maine. ..(t)herehas been little reliance
on Georges Bank.. .".As shownin Part II, such considerations,whatevertheir

veracity, are not legally relevant to the delimitationof a single maritime
boundary.
'Goode, op. cil.SectionV, p.38.[Emphasisadded.]Annex 23,Vol.V.
'See United States Memorial,Annex 18, Vol.II, p. 188. (71.72)

TABLE B

CATCHES ON GEORGES BANK' AND THE NORTHEASTERN
PORTIONzOF THE BANK OF VESSELSFROM

PRINCIPAL NEW ENGLAND PORTS. 1936-1968 (pounds)

X 01U"lld sr.*.
George, Bank Cif~h

N~rlheasf~rnPonion From th.North..,,irn
YEAR Gi0rp.rBankTotal 01 Gaorg~sBank Portion of Ihi B8nl

1936 171,913,871 Ql.dO4.175 5"s
1937 171,660,019 105,804,916 62%
1938 157.759.923 86,969,020 52%
19Î9 154.305.404 75,719,002 49%

19.0 155.236.307 63,644,834 45%
1941 185.770563 94,328,079 51%
1942 141.986.810 80,127,319 57%

3943 29.863.748 3.969.967 ld%
?SU 41,883,296 10,015,793 24%
1915 88,739,335 27,265,798 31%
,946 182.869.882 65.592.211 36%

1947 271,021,939 80,380,865 3996
1916 193,453,101 77,576,366 40%
39.9 185,583,952 82,572,072 44%

19% 158.334.031 60.511.897 39%
,053 184.322.i121 71625.061 39%
1952 156,792,699 63,927,661 45%
1933 17%
752,476,537 71.618.983
ISE4 192,967,215 65.736.795 34%
lS35 212,610,163 67231.836 32%
l9SO 232,897,151 66.093.062 24%

1957 214,296,762 73.071.153 30%
1938 199.624.260 61,869.484 31%
4939 212,652,542 61,701,207 30%

,960 221,576,244 89,321,664 31%
,961 223.iZZ.710 77,862,378 35%
1962 248,293,336 90,656,951 37%
1963 237.671.791 76,906,041 32%

1964 233,196,154 83,679,831 36%
1965 249.525.91& 68,266,775 27%
1066 247.475.909 56.387.478 23%

tW7 190.956.668 65,852,487 24%
1968 169,188,110 46.91 5.431 28%1731 COUNTER-MEMORIAL OFTHE UNITED STATES 43

century was pursued by many vessels from Maine, with the larger ones
from Portland and Southport visiting Georges Bank.

85. Raymond McFarland, in A History of New England Fisheries.
writes that, in the 1880s, up to one-fourth of the United States vessels in
the Georges Bank mackerel fishery were from Maine '.He notes that

Maine's interest extended beyond Georges Bank ta Browns Bank, Sable
Island Bank, and other fisheries off the Coastof Canada '.

86. In the early part of the 20th century, fishermen from Maine
participated in the establishment of new United States fisheries on
Georges Bank3. In particular, vessels from Maine, along with the New
Bedford fleet, established the United States scallop fishery on Georges
Bankinthe 1930s'.

87. During the buildup of the distant water fleets on Georges Bank in
the 1960s, the Maine offshore fleet fished primarily the waters of the
Scotian Shelf and the deeper waters of the Gulf of Maine Basin, including

the "unclaimed area'". This fishing pattern has changed dramatically
with the extension of fisheries jurisdiction to 200 nautical miles in 1977
and the unilateral expulsion in 1978 of United States fishermen from
waters off the wast of Canada. Once the large distant-water fleets left
Georges Bank, smaller Maine vessels resumed their traditional fisheries

on the Bank. In addition, the Maine offshore fleet, which was affected
directly by the unilateral expulsion of United States fishermen from
waters off Canada in 1978. has altered ils traditional pattern and now
fishes regularly on Georges Bank.

88. In 1982, approximately 98 vessels from Maine or New Hampshire
fished on Georges Bank or in the so-called "unclaimed area" in the Gulf
of Maine Basin '.The fleet from Maine currently fishing on Georges Bank

consists of four categories of vessels:large vessels that formerly fished for

'R. McFarland, A Hisroryof theNew England Fisheries. 1911,pp. 272-273.
Annex24.Vol.V.
IIbid..p. 145.
'Duringthesameperiod,Maine fishermendevelopednewfisheriesoffCanada.In
the 1920s in particular, the Maine redfish fieet developedand supporteda
processingindustrythat supplied redfishtomidwesternconsumersunderthename

"Ocean Perch". That fieet prospereduntil. together with other UnitedStates
fishing vessels,wasexpelled fromilstraditionalfishinggroundsoffCanada.
'Ackerman, op.citp. 58.Annex7,Vol.IV.
'The so-called "unclaimedarea" is describedat UnitedStates Mernorial, para.
15 land Figure17.

See Annex 25,Vol.Vfor a listof vesselsfrom Maineand New~ampshirethat
fishedon GeorgesBankorinthe so-called"unclaimed areai"n 1982.44 GULF OFMAINE 1741

redfish off Canada, prior to Canada's unilateral expulsionof those vessels
in 1978, but that have since redirected their efforts to groundfish on

Georges Bank; large purse seinettrawler vesselsthat fish for groundfish
on Georges Bank whenthe inshore herring fishery is closed or unprofit-
able; the medium-sizedotter trawl fleet that grew quickly in Maine after
third-State fleets were regulated under the 200-nautical-mile fisheries
jurisdiction; and, a small-boat fleet that fisheson Georges Bank whenthe
weather and other factors are favorable.

89. A description of the adjustment that has been made in th.eMaine
redfish industrysinceit wasexpelled in1978fromCanada's 200-nautical-
mile fishing zone is instructive.When Canada unilaterally expelledthese
fishermen in 1978from the waters off its coast, the United States redfish
fleet was forced to fish the limited Gulf of Maine stock. As is to be
expected, redfish landingsdropped, and adjustments had to be made. In
some cases, this meant the redirection of employment in the processing
and hawesting sectors of the industry. In other cases, this required

conversionof boats and other equipment for usein the groundfish industry
and in the cod,haddock, and flounder fisherieson eastern Georges Bank '.
90. The shift by Maine fishermen from redfishoff Canada's coast to
groundfish from Georges Bank, includingthe northeastern portion of the
Bank, not only is proof that fishermen from Maine do fish on Georges

Bank, it is also evidence that these same fishermen already have been
forced to make significant adjustments in traditional fishing patterns
becauîe of their expulsion from Canadian waters following Canada's
extensionof its fisheriesjurisdiction to 200 nautical miles.

SECTION 5.TheHistoryof the Internationa Clonventionfor the North-
westAtlanticFisberiesIllustratestbattheUnitedStates HasthePredomi-
nantInterestin GeorgesBank,WhileCanada'sInterestCenterson the

MajorFishingBanksto theNorthoff Canada
91. Canada alleges that the United States and Canada have been
"coastal State partners" in relation to the fisheries of Georges Ban'.In
support of this position,Canada cites its membership, withinthe Interna-
tional Convention forthe Northwest Atlantic Fisheries (ICNAF), on the
international Panel (Panel 5) established for management responsibilities

relating to Subarea 5 (offNew England).

'This wnversionof the UnitedStatesredfish fleetto groundfishingon Georges
Bankcontinues .ee D. R.Getchell,Sr.,"No Compromising ",FishingGazette,
Vol.100,No. 5,May 1983,p. 25.Annex 42, Vol.V.
'Canadian Mernorial,paras. 197-199.Canada'slegal argumentis misguided,
irrespectivofwhetherthe factssupport its assertions.ystressingthenotionof
"partnership",Canada seeksto persuadethe Court thatitsfunctionshouldbeto
"share-out"the resourcesof thearea. Thisviewof the Court's functionin the
delimitationofmaritimeboundarieshasheenrejected inpastmaritimeboundary
cases,andis notwithintheCourt'spuwiewinthis case. SeePart II,Chapter1.[75-761 COUNTER-MEMONALOFTHE UNITEDSTATES 45

92. Canada neglects to mention that, to whatever extent that Canada
was considered a "coastal State" for Subarea 5, the United States was

equally considereda coastal State for Subarea4, off Nova Scotia. Infact,
the ICNAF coastal-State concept was used only in a regional sense, to
distinguishNorth American from distant-water fleets.

93. Similarly, the alleged "partnership" betweenthe United States and
Canada, to the extent any existed at all, concerned the operation of the
Conventionas a whole,and not its specificPanels. The United States and
Canada often cooperated withinICNAF to protect their fishermen from
distant-water fleets,albeit,at the sametime, they werealso competing with

each other. The United States and Canada concentrated their efforts,
however,on the fisheriesoff their respectivecoasts. In Subarea 5 (offNew
England),the United States providedthe leadership,conductedmostof the
research and most of the enforcement,proposed mostof the management
measures,andreceivedthe preponderanceof allocationsbaseduponcoastal-
State preference.Canada, on the contrary,assumedthe leadershiprole with
respect to the northern areas. Nearly al1 of Canada's fishery research,

enforcement activities, regulatoryproposais,and fishery allocations were
related toSubareas 3 (offNewfoundland)and 4 (offNovaScotia).
94. Each State also was involved,to a lesser extent, in the fisheries

outside its area of primary interest. Thus, the United States was an
original member of Panel 4, and Canada of Panel 5. The United States
fished in Subareas 3and 4,and Canada fished in Subarea 5. Canada was
no more a "partner" with the United States in Subarea 5, however,than
was the United States a "partner" withCanada in Subarea 4.

95. In brief, the alleged "coastal State partnership" between the
Parties, to the extent any existed, concerned the entire region, and not
merely the Georges Bank-New England area. Thus, the activities of the
Parties under ICNAF no moreentitle Canada to a share of Georges Bank

than do they entitle the United States to a share of the rich fishing banks
on the Scotian Shelf.
96. Annex 3 examinesin detail the activitiesof the United States and

Canada under ICNAF. This history illustrates the predominantinterest of
the United States in Georges Bank. Indeed,it was the concern for its
importantGeorgesBankfisherythat promptedthe UnitedStates:topropose
the establishment of ICNAF; to cal1 for and to host the diplomatic
conferencethat produced the Convention;to proposeand to press forthe
adoption of nearly every major ICNAF innovationor amendment; and to

assumethe leadershiprole for Subarea 5, the New England-GeorgesBank
area. The history of ICNAF also illustrates that Canada's activitieson
Gearges Bank are insignificantin relation to Canada'sinterest in the vast
fisheriesoff Canada to the northeast, on the banks of the Scotian Shelf,in
the Gulf of St. Lawrence,and on the Grand Banksof Newfoundland. CHAPTER V

CONTINENTAL SHELF ACïIVITIES OF THE PARTIES AND
THEIR NATIONALS

SECTION 1. Points of Agreement and Disagreement Between the
United States andCanadian Memorials
97. There is a large measure of agreement between the Parties

regarding Canadian activities on the continental shelf. The Canadian
Memorial confirms that, although Canada issued exploration permits on
the northeastern portion of Georges Bank ',the permittees subsequently
were exempted from normally imposed work requirements '.The Canadi-
an Memorial fails to specify whether any substantial geophysical explora-
tion activity occurred pursuant to those permits before the permittees

were exempted from the work requirements, or whether any permit has
been converted into a lease with oil and gas production rights. Canada
does confirm, however, that no drilling has occurred on Georges Bank
under the dormant Canadian exploration permits '.

98. The Parties disagree concerning United States activities on the
continental shelf. Canada disregards the longstanding United States
interest in the development of the continental shelf, which dates at least
from the Truman Proclamation of 1945 '.Canada's assertion that "[nju

United States exploration or production permits have ever been issued

'CanadianMemorial, paras. 204-205.The evidenceadducedbyCanadadoesnot
wntradict the United States view that "[the statute pursuant to which the
Canadian exploratory permitswere issuedappliedon its face only to onshore
developmcnt".UnitedStatesMemorial,para. 101.See para.108,n.3 ofthisPart.
'CanadianMemorial,para. 222.
'United StatesMemorial.para. 89. Canada also disregardsthe interestsof the
New Englandstates in the wntinental shelf, whichdate back at least to 1969,

whenthestateofMaineofferedoilandgasleasesforareasofthewntinentalshelf
in the Gulfof Maine. SuhsequentlitigationbetweenMaine and otherAtlantic
wast states and the federal governmentwnfirmed the rights of the federal
governmentin the oil and gas resourcesof the wntinental shelf.United States
Memorial, para.94.n. 1.Nonetheless,the stateswntinue to asserttheir interests
regarding activitieson the wntinental shelf,particularlywith regard topossible
environmentaleffectsofoilandgasdevelopmentonGeorgesBank.t781 COUNTER-MEMORIALOFTHE UNITEDSTATES 47

with respect to the disputed portion of the Gulf of Maine area "' is
inaccurate.

SECTION2. TheU~ted States Has IssuedExploration Permits fotrhe

NortheasternPortion of GeorgesBank Pursuantto Which Extensive
GeophysicalExplorationHasTakenPlace
99. The United States authorizes exploration of the continental shelf

through the issuance of "permits", which are different from "leases". An
exploration permit, which may be obtained upon application, provides the
holde; with a non-exclusive authorization to conduct seismic exploration
and other geophysical activities that do not significantly disturb the
seabed. A United States lease, by contrast, grants exclusive oil and gas
production rights in addition to the right to conduct deep exploratory
drilling'. Such leases are only awarded pursuant to a formal process of

competitive bidding, and they are subject to stringent environmental
safeguards '.
100. As described in the United States Memorial, beginning in the

1950s, the United States enacted a series of laws and regulations that
balanced the need to develop the continental shelf with the thorough study
and protection of the environment'. In 1960, a program to explore the
continental shelf off the east Coast of the United States was begun, and
permits for exploration of the continental shelf off New .Yngland were
issued beginning in 1964 '.

101. The first United States exploration permit pertaining to Georges
Bank was issued in 1965 6.Many other such permits have followed. In

'See Canadian Memorial, para. 219. Ina curiousturn, the CanadianMemorial
followsits assertionthat no UnitedStates permitseverhavebeenissued forthe
northeastern portion of Georges Bank with an acknowledgmentthat seismic
surveysby private United States companieshave been carried outin that very
area. Indeed,Canada has beenaware for sometime that UnitedStates explora-
tionpermitscoveringal1of GeorgesBankhavebeenissued.NoteNo. 1126from
the Dept.of External Affairsto the Embassyofthe UnitedStates,dated 19Sept.
1974, and Note fromthe Embassyof the United States to Dept. of External
Affairs, dated 11 Oct. 1974, UnitedStates Memorial,at Annex 60, Vol. IV,
recordan exchangeof diplomaticcorrespondenceonthissubject.

'United States Memorial,para. 90,n. 5.
'UnitedStatesMemorial, paras. 94-98.
'UnitedStatesMemorial,para. 92.
'UnitedStatesMemorial,para. 93.
ListofPermitsaccompanyingletterof20January 1983fromDavis R. Robinson,

Agent of the United States, 10 MI. Santiago Torres Bernirdez, Registrar,
InternationalCourtof Justice. Annex 15V , ol..48 GULFOFMAINE [79-821

fact, as documented in Annex 40 to the United States Memorial and as
updated in Annex 26 to this Counter-Memorial, over 20,000 nautical

miles of seismic survey lines have been collected on the northeastern
portion of Georges Bankalone'.The area of wverage of the seismicdata
collected on the northeastern portion of Georges Bank and on nearby
areas is depicted at Figure 13.

102. Thus, contrary to Canada's assertions, the United States has
conducted extensive exploration activitieson Georges Bank, includingits
northeastern portion. The United States alsohasanalyzed extensivelythe
implications of hydrocarbon development on the marine environment.
Furthermore, on the basis of the Canadian activities that Canada has
described in its Memorial, the continentalshelf activities of the United
Statesfar exceedthose of Canada in the area.

'Annex26,Vol. V. CHAPTER VI
.
OTHERRELEVANTACïiVITIES
103. The United States Memorial addresses activities,other than those
related to fisheries and to the continental shelf, that the United States
believesare relevant to this ca'.

104. With the soleexceptionof a brief reference to scientific research
activities conducted under ICNAF', the Canadian Memorial.failed to
address these other relevant activities. The United States believes that
such activities as charting and suweying, providingother aids to naviga-
tion, conducting-search and rescue operations,ensuring national defense
interests, and scientific research effortsare relevant to this case. These
activities confirm the predominant interest of the United States on
Georges Bank andin the Gulf of Maine Basin.

@- 105. Figures 14 through 18 are reproductions of charts contained in
Part 1,Chapter III, of the United States Memorial, that depict divisions
of responsibilities with respectto fishery and other relevant activities in
the Gulf of Maine area, together with the boundary proposed by the
United States and the Canadian line'.

106. The United States does not argue that these activities vest in the
United States those rights associated with an historic title. Nor does the
United States argue that Canada, by virtue of its acceptance of the lines
depicted, has recognizedexclusiveUnitedStates jurisdiction overGeorges
Bank. The United States does believe, however,that the agreements
betweenthe Parties in these matters reflect their mutual understanding of
their respective responsibilitiesin the area, and that they establish a
pattern of conduct that is inconsistent witha Canadian claim to jurisdic-
tion over any part of Georges Bank. Furthermore, these agreements
confirm the suitability of the Northeast Channel as a limit between the
United States and Canada in the Gulf of Maine area.

'UnitedStatesMernorialp, aras102-132.
'CanadianMernorial, paras. 95-196.
@)@ 'Annex 27,Vol.V,containsFigures 11and 16oftheUnitedStatesMernorialt,o-
getherwiththeboundaryproposed by theUnitedStatesandtheCanadianline. CHAPTERVI1

HISTORY OFTHE DISPUTE

107. The major disagreement between the Parties regarding the history
of the dispute relates to the Canadian exploration permit program on
Georges Bank in the mid-1960s '.

108. Canada issued exploration permits covering a portion of Georges
Bank in the face of longstanding policies of the United States relevant to
this area, including the Truman Proclamation of 1945 '. The issuance of

the Canadian exploration permits on Georges Bank, heginning in 1964,
was undertaken without notice to, or consultation with, United States
officials. The Canadian program lacked notoriety. Insofar as the United
States is aware, the permits were issued by Canada pursuant to laws and

regulations that were not specifically applicable to offshore areas '.

-
'The Parties also differ sharply in their characterization of, and the legal
significancetheyattach to,the fisherynegotiationsof 1977-79.Thesenegotiations
resulted in therejected and unratified 1979east wast fisheriesagreement.The
issuesraised bytbesedifferencesare discussed inPart III,Chapter III, Section5,

of thisCounter-Memorial.whichdeals with Canada'smisapplicationsof the law
to the facts.
'Canada issuedthesepermits notwithstandingthe fact that the United States had
initiated the first stage of offshorerocarbondevelopmentwith the passageof
the United States Outer Continental Shelf Lands Actin 1953.United States
Memorial,Annex 9, Vol.1.The United States also had openedthe wntinental

shelfonthe eastwast to explorationbypermit in 1960bymeansof a publicnotice
in the United States Federal Register. See generally United States Memorial,
paras. 89-99,and Annexes 8-10,Vol.1.
'United States Memorial, para. 101and Annex 11, Vol. 1. The statute and
regulations cited at para. 101are not on their face applicableto the wntinental

shelf.As oneCanadian wmmentator stated in 1980:

"[Tpere is no law of Parliament vesting in the Crown in right of
Canada property in and exclusivejurisdictionoverthe territorial sea
and overthe resourcesofthe continentalshelfbeyondand adjacent to
the territorial seaor, of equal importance, setting outthe laws that
are to apply to human activitiestaking place aboard installations or
platforms engagedin exploring or exploiting the resources of the

submarine areas beyondthe limitsof the interna1waters of Canada."

(footnotecontinuedonnext page)I961 COUNTER-MEMORIAL OF THE UNITED STATES 51

109. Nearly a year passed before mid-level United States Government
employees from a department not charged with the wnduct of foreign
relations independently became aware of the Canadian program, and, on
their own initiative, wrote to their counterparts in the corresponding

government agency in Canada, seeking information about Canada's
actions. It is upon this non-diplomatic, administrative inquiry that Canada
seeks in its Memorial to construct arguments relating to acquiescence and
estoppel '.

110. In a letter of 1 April 1965, Mr. Max Caplan, on behalf of Mr. L.
T. Hoffman, Assistant Director, Lands and Minerals, Bureau of Land
Management, United States ~epartment of the Interior, requested the
Canadian Department of Northern Affairs and National Resources to
supply information wncerning Canadian permits that had wme to their

Lfootnotecontinuedfromthepreviouspage)

..........................
"[Tpere is no single Act of Parliament which clcarly establishes
Canada'ssovereignand property rightsto the territorial sea or ils
sovereignrights overthe resourcesof the continentalshelf. Nor, of
equal importance, is there an existing law of Parliament that
establishes whatlawsare to be made applicablein orderingprivate

relations amongpersonsundertaking offshorresourcc-relatedactivi-
ties, suchas explorationor drillingforoil and gas.Nor is there any
Actofparliamentthat sets outthe wurts of Canadathat are 10have
jurisdictionto entertain actions arising out otfheseactivities."
..........................

"...[O]il and gas exploration and productionin the Canadian
offshoreare regulatcdby the CanadaOiland GasLand Regulations
and Oil and Gas DrillingProduction Regulationsb,oth madeunder
the Public LandsGrants Act and theTerritorial Lands Act. These
regulations.originallyintendedfor application onlyon land rerrito-
ry. as a rnatterdadministrative procedurehavecorneto be applied
totheCanadianofjshore,thoughnothingeitherinthe Regulationtshem-
selves orintheActsunderwhichtheyweremadeseemstoprovidelegal
authorityfor suchapplication."

L. L. Herman,"The Need fora CanadianSubmerged Lands Act: SomF eurther
Thoughtson Canada's Offshore Mineral Rights Problems", The CanadianBar
Review. Vol.LVIII. 1980,pp. 518, 521-2, 526-7.[Emphasisadded.]Annex 43,
Vol. v.
'Canadaasseru that, byitswnduct, the UnitedStateshaswnsentedandcannot
now be heard toobjectto the useof the equidistancemethodto delimit the single
maritime boundaryin the Gulf of Maine area. Canada's descriptionaf the
wnduct of the Partiesis inaccurate and inwmplete.Canada's descriptioof the
lawrelatingto acquiescenceandestoppelisalsoinwmpletc. See Part II. Chapter
IV.52 GULF OF WNE 1971

attention'.The letter makes clear that Mr. Caplan and Mr. Hoffman
were misinformed about any treaty relationship in 1965 between the
United States and Canada under the 1958 Geneva Conventionon the
Continental Shelf,sinceCanada did not ratify that Convention until 1970
(and only then subject to a "declaration"'.The letter also makes clear
that these employees did not possesscopies of whatever regulations and
instructions might havebeen the basis of the Canadian program.

111. A few weeks later, after a Canadian response on 8 April 1965',
MI. Hoffman again wrote to the Canadian Department of Northern
Affairs and National Resources,as follows:

UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240

May 14, 1965

Mr. D. G. Crosby
Department of Northern Affairs
and National Resources
Northern Administrative Branch
Kent Building, 150 KentStreet
Ottawa, Canada

Dear Mr. Crosby:
Thank you for the maps showing locationsand holders of the
offshoreoil and gas permits you have issued onthe east and West

coasts. We also appreciate the copy of your printed oil and gas
land regulations.
As a matter of someconcerntous, we believethatyou haveis-
sued offshorepermits onthe OuterContinentalShelfpertaining

to the UnitedStates. We believethis is the casein the Gulfaf
Maine, off the Straits of Juan de Fuca, and DixonEntrance. We
are unable to comment on the permits you have issued in the
Arctic Ocean as we do not havea map showingtheir locations.

Inasmuch as the location of a median line might be subject to
different interpretations, we suggest that you check the locations
of your permits which approach submerged lands under United

'Theletterisreferredto at par206,andreprintcdat Annexes,Vol.IIIAnncx
1,of the CanadianMernorial,and at para. 136and Annex53,Vol.IV, of the
UnitedStatesMernorial.
'SeeCanadianMcmorial,para.217.
'United StatesMernoria, ara. 136andAnnex53,Vol. IV;CanadianMernorial,
para.207andAnnexes,Vol.III, Annex 2.1981 COUNTER-MEMORULOF THEUN~TEDSTATES

States jurisdition to see if they are within Canadian jurisdiction
under an application of Article 6 of the Convention on the
Continental Shelf of the 1958Geneva Conference.

This communication is being written solely in the interest of
seeing if there is a basis for disagreementas to the location of a
median line separating our respective jurisdictions on the Outer
Continental Shelf. As an operatingBureau,we, of course,have
noauthorityto enterintoanyformal discussionof the locationof
a median line in case of a dispute. However,we are hopeful that
there could be a simple misunderstanding on either our part or
yours, of the elements positioning a median line. If this is the
case, then the matter could be amicably determined without

resort to highauthority.
In the last paragraph of your letter of April 8 you ask for the
location ofleaseswe might haveissuedoff the east coast and the
State of Washington. No Federal oil and gas leaseson the Outer

Continental Shelf off the east coast have heen issued. However,
certainseismic permits have beenissued. These permits allow
only geophysical activities and no deep drilling. Although a
number of blocks off Washington wereleased as a result of our
October 1, 1964 sale, we helieve you will he interested in only
Blocks 21 N., and 61 and 62 W. that are nearest to the
Canadian-United States houndary.

Sincerelyyours,

Assistant Director '

112. Thus, in correspondence that he initiated, Mr. Hoffman made
clear within a few weeksthat, in his view,Canada had issued permits on
the UnitedStates continental shelf; that he believed that Canada had
appliedArticle 6 of the Continental Shelf Convention incorrectly(when in
fact Mr. Hoffman wasunaware that the Conventiondid not applyat al1at
that time); that neither he nor his agency had authority to enter into
boundary discussions;and, that United States exploration permits had
heen issued for this area. Mr. Hoffman's letters, therefore, take clear

'UnitedStatesMernorial,para. 136 and Annex 53,Vol.IV, CanadianMernorial,
para.208 andAnnexes,Vol. III,Annex 4.[Ernphasisadded.]54 GULFOFWNE tg91

exception to the Canadian permit program. Furthermore, the United
States and Canada do not set forth fundamental national positions of
diplomatic character in routine correspondence between government
employeesof this level'.

113. Following this correspondence initiated hy Mr. Hoffman in
1965 ', a year passed hefore the Canadian permit program on Georges
Bank hecame the suhject of a 16 August 1966 letter from the United
States Embassy to the Canadian Department of Mines and Technical
Surveys'. This letter was in turn answered on 30 August 1966 by an
officialofthe Canadian Department of External Affairs, the text of which
responsefollows:

DEPARTMENT OF EXTERNALAFFAIRS
MINISTERE DESAFFAIRES EXTERIEURES
CANADA

Ottawa, August 30, 1966

Dear Mr. Olson:
1wishto refer to your letter of August 16whichyou addressed
to Mr. J.W. McNeil, Director, Research DevelopmentBranch,

Department of Mines and Technical Surveys, concerningCana-
dian exploratory permits in that part of the Continental Shelf
whichis situated off the Eastern Coast of Canada. In viewof this
Department's generalinterest in the exploration activitiesbeing
carried out on the Canadian Continental Shelf in closeproximity
to areas under the jurisdiction offoreign countrieswas deemed
preferable that this Department should answer your query. In
order to avoid unnecessarily long delays, we would very much
appreciate your directing any future enquiries ofa similar nature

to the Legal Divisionof this Department.
As we have commented previously in a letter to the United
States Department of the Interior, the policy of the Canadian
Government has been to issue permits coveringgrid areas up to

and straddling the medium line which divides the areas of

'In the conductof relationsbetweenthe UnitedStates and Canada, Canadais
generallyinsistentuponthe practicewherebydiplornaticpositionsare to beset
forthin correspondencbetweenthe departmentsresponsiblefor the conductof
foreignrelations.
' Ernp1oyeeo.f the Dept.of Northern Affairs and NatioRlesourcesrepliedto
Mr. Hoffrnan's14May 1965 letteron28May1965andon 16lune 1965.United
States Mernorial,Annex 53, Vol. IV; Canadian Mernorial,para. 208 and
Annexes,Vol.III, Annexes5and6.
'United StatesMemorial,para.137andAnnex54,Vol.IV; CanadianMernorial,
para.210 andAnnexes,Vol. IIIAnnex 7.56 GULFOF MAINE ~~0~1

114. Thus, it was only in August of 1966 that Canada first made its
permit program the subject of diplomatic correspondence. Thisletter,
which appeared only after Mr. Hoffman had expressed hisresewations,
did not answer United States inquiries regarding the operational plans
and schedulesof Canadian permit holders, but instead citedthe confiden-

tial proprietary nature of pertinent information, and referred the United
States Embassy to trade publications. As noted in the United States
Memorial, "[tbe United States Government received no information
indicating that any activity by Canadian permittees was imminent "'.

115. Swn after this correspondence, the first seismic survey data
relating to the northeastern portionof Georges Bank,under United States
permits, were collected On 10 May 1968,lessthan 21 months after the
matter had entered diplomatic channels, the United States formally
suggested:

"... a temporary suspensionof explorationand exploitation activities
with regard to mineral resources in the area of the northern half of
the Georges Banks [sic]to permit consultation totake place and to
providetime to seekagreement on the exact locationof the boundary
in this area'".

In the face of Canada's refusal to agree to a moratorium on continental
shelf activitieson GeorgesBank, the United States continued toauthorize

seismic exploration in that area, although no exploratory drilling was
authorized. On 5 November 1969, in view of the lack of progress in
resolvingthe dispute, the United States protested the Canadian position'.
116. During this period, the United States reviewedits position, and,

on 21 February 1970, issued a public.notice that described the nature of
the dispute, and that noted that United States restraint in not authorizing
exploratory drilling did notconstitute acquiescence in or recognition of
the Canadian permits '.This position, whichwas in full conformity with
theTruman Proclamation of 1945,waswell knownto Canada at the time
it became a Party to the 1958 Geneva Conventionon the Continental
Shelf on 8 March 1970" Canada did not define a boundary position

'UnitedStatesMernorial,para. 137.
'The firstuchpermit,No.E3-67,isincludedinthelistat Annex 26V , ol.V.

'UnitedStatesMernorialp , ara. 138and Annex55,Vol. IV;CanadianMernorial,
para.211andAnnexes,Vol.111,AnnexLI.
'United StatesMernorial, paras.139-140and Annex56, Vol. IV; Canadian
Mernorialp, ara.215andAnnexes,Vol.III, Annex13.
'United StatesMernorialp, ara. 141andAnnex 57V , ol.IV.
'UnitedStatesMernorialp , ara. 142andAnnex52,Vol.IV;CanadianMernorial,
para.217. [102-104] COUNTER-MEMORIALOFTHE UNITEDSTATES 57

specified by geographic coordinates until 1 November 1976 '.On 25
January 1979, Canada abandoned the boundary position that it now

claims the United States ,accepted, hased upon the non-diplomatic
correspondence of the mid-1960s described above l.

117. Canada chose to make its ultimate claim, despite the fact that it
long had known that Georges Bank was an area within the 100-fathom-
depth contour off the United States wast, referred to in connection with
the Tniman Proclamation of 1945. Canada was well aware in the mid-

1960s that Georges Bank was an area within which the United States
maintained the predominant interest in the fisheries. In the view of the
United States, the relationship between the resources of the continental
@ shelf and fisheries of the area is confirmed by Figure 19, which

reproduces the map officially communicated in 1948 to the Canadian
Government by the United States in connection with preparations for the
@ ICNAF treaty negotiations'. This map shows the Northeast Channel
beyond the 100-fathom-depth contour as the dividing line between New
England (Statistical Area XXII)and Nova Scotia (Statistical Area XXI).

118. The Canadian permit program on Georges Bank never proceeded

beyond itsinitially little-known first stage. As far as the United States can
determine, no permittee conducted any exploration activities on Georges
Bank pursuant to these Canadian "permits". Furthermore, no Canadian
permittee ever has conducted exploratory drilling on Georges Bank'.
Indeed, in an apparent response to United States objections, Canada

suspended normally imhsed work requirements by 1971 '.Moreover, as
far ascan be determined, no Canadian permit on Georges Bank ever has
been converted into an oil and gas production lease.

'Canadadidnotreferto the continentalshelfin its notification ofproposedlimits
for the Canadian 200-nautical-mile fishingzone. 101 The Canada Gazette

(EXTRA),Vol.110, 1 Nov. 1976.UnitedStates Memorial.para. 150andAnnex
63,Vol. IV.lnsofaras the UnitedStatesisaware,the firstpublicindicationofthe
gwgraphic coordinates of the continental shelfover whichCanada claimed
jurisdictionoccurredon 15Septcmber 1978,whenCanada gavepublicnoticeof
the proposedexpansionof its fishcricsjurisdictionin the Gulf of Mainearea. In
that notice,Canada made those coordinates applicableIo the continental shelf.
112 The Canada Gazette, No. 79 (EXTRA). 15 Sept. 1978. UnitedStates
Memorial,Annex 73,Vol. IV.at p.3; CanadianMemorial.para. 245.

Canadian Memorial.para. 245and Annexes,Vol.II, Annex 42.
'See Annex 3,Vol. II,Activiticsof the United States and Canada Under the
InternationalConventionforthe NorthwestAtlanticFisheries (ICNAF).
'CanadianMemorial,para. 222.58 GULFOF MAINE [105-1061

119. The inchoate nature of the Canadian permit program is illustrated
by an examination of Annex 49, Volume II, of the Canadian Memorial.

This examination revealsthat the Canadian permits on Georges Bank
have yielded the Government of Canada Can.$26,000.00 in fees and
apparently have been assessedCan.$404,099.90 in deposits '.These sums
are to he compared to the U.S.$816,500,000.00 that United States
companies have paid foroil and gas leaseson Georges Bankissuedby the
United States Government '.

120. In Part III, Chapter 1, of this Counter-Memorial, the United
States showsthat, as a matter of Law,the facts surrounding the Canadian
permit program of the mid-1960s do not support the acquiescence and

estoppelarguments proffered hy Canada.

'Guaranty~dep~sitsnormallyimwsed upon permit holdersare refunded as
exploratoryworkispcrformedandexpendjturcsdocumentcd. It is unclcarto the
UnitcdSiatcswhethcr thcdeposiü5pccifiedin thoscpcrmitsucrc rctainedsincc
thesuspension ofworkrequirements in 1971.
'CanadianMemorial,para.88andAnnexes,Vol. IIAnnex 45. UndertheUnited
States policyof restraint, those United States leaseswere restrictedto the
undisputedportions ofGeorges Bank. PARTII. THE LAW
INTRODUCHON

121. In this Part, as required by Article 49(2)of the Rules of Court,the
United States responds to the statement of the law contained in the
Canadian Memorial '.

122. The United States and Canada agree that this is the first case
before an international tribunal to address the delimitation of a single
maritime boundary between neighboring States beyond the territorial sea.
Both States recognize, however, that there is a large body of existing law
relating to the delimitation of exclusive fishing zones, of the continental
shelf, and of other boundaries, al1 of which serves to delineate the
principles of law governing this delimitation'. As Canada notes in its
Memorial:

"There is in this respect a continuum of law that links the shelf
and the water column, the traditional law of the sea and its
contemporary development, and the conventional and customary
law of maritime delimitation '."

123. Canada and the United States agree on the fundamental rule of
law governing the delimitation of a single maritime boundary. As Canada
asserts inits Memorial:
".. .there is an underlying and fundamental norm or rule of law
to be applied to al1maritime deljmitatjons and therefore to the
single maritime boundary in the Gulf of Maine area. This single
rule of law is that maritinte boundaries are to be determined in

'See CanadianMernorial,paras. 277-427.
'As notedabove,the UnitedStates and Canada are Partiesto the 1958 Geneva
Conventiononthe Continental Shelf.The UnitedStatesratifiedthConventionin
1961.UnitedStatesMernorial,Annex5,Vol. 1.Canadaratifiedthe Conventionin
1970with a "declaration", to which the United States took exception. United
StatesMemorial,Annex52, Vol.IV.AlthoughbothStatesagree that Article6of
thc Conventionisrclcvant3sa sourceofthe principlesandrulesthat wouldbein-
volvedina casesolclvdelimitingthccontinentalshcll.thcyalsoagrecthat Article
6 of the Conventionis no1determinativeof the delimitation ofa single maritime
boundary. UnitedStates Memorial,para. 165;Canadian Memorial, paras.280,
283,and 360.As Canada aptlyhas stated, the natureof the disputebetweenthe
Parties was "expandedand transformed" by the creationof 200-nautical-mile
fishingzonesbythe Partiesand by the emergenceof the concept of theexclusive
economiczone.CanadianMemorial.para. 223.
'CanadianMernorial,para. 285.60 GULF OF MAIN@ Ill01

accordance wirh equitable principles, raking occount qfall the
relevant circumstances. in order ro achieve an equitabie
result'".

The United States hereinafter refers to this agreed formulationas "the
Fundamental Rule governing delimitation of single maritime bound-
aries", or simplythe "Fundamental Rule".

124. In its Memorial, the United States identified and applied four
equitable principles applicable to the delimitation of a single maritime

boundary. Canada agreed in ils Memorial that maritime boundaries must
be determined in accordance with equitable principles, but nonetheless
asserted that such equitable principles can neither be identified nor
applied in the abstract '.Canada instead identified "factors", whicb it
argues are legallyrelevant to delimitation.

125. One such "factor" identified by Canada is that of "coastal
geography-the configuration of the coasts", which Canada asserts:

". ..isa leading factor in the lawof maritime delimitation, since
the coast is both the basis for title and the point of departure

from whichone must set outin any delimitation '".
Canada quotes approvingly a passage from the Tunisia/Libya case'

affirming the principle, appliedby tbe International Court of-Justice in
the Norrh Sea Continental SheU cases', that "the land dominates the
sea 6". In this and similar assertions regarding the fundamental impor-
tance of the coast to maritime delimitations, Canada would appear to
affirm, albeit under a different characterization, the equitable principle,
identified and applied in the United States Memorial, that a single

maritime boundary must respectthe relationshipbetweenthe coastsof the
Parties and the maritime areas lyingin front of those coasts'.

126. In its identification of "factors", Canada appears to affirm the
subsidiary principles of nonencroachment, proportionality, and natural
prolongation. Canada acknowledges the requirement that an equitable

'CanadianMernorial,para. 278.[Emphasisadded.]

'CanadianMernorialp , ara.300.
'CanadianMernorialp , ara.303.
'ConrinentalSheU(TunisiA a/abiJbyaaniriya).I.C.J.Reports1982,P.18.

'NorrhSeoContinentalSheif,Judgment, I.C.J. Report 1s969.p.3.
Tanadian Memorial,para.303.
'United StatesMcmorial,paras.239-246and 306-315.[Ill1 COUNTER-MEMORIALOF THE UNITEDSTATES 61
delimitation must avoidencroaching upon areas lyingdirectly in front of

the coast of another State '.Canada alsoaccepts the viewthat proportion-
ality should he used to test the equitahleness of a single maritime
boundary '. Furthermore, Canada appears to recognizethat delimitation
must respect the natural prolongationof the land territory of the Parties,
where applicable '.

127. In addition, Canada agrees that a singlemaritime boundary must
take account of the relevant circumstancesin the area ',thereby affirming
another of the equitahle principles identifiedand applied by the United
States in its Memorial.
128. In its Memorial, Canada failed to consider,evenas "factors", two

other equitable principles identified and applied by the United States:
first, that delimitation should facilitate resource conservationand man-
agement; and, second,that delimitation shouldminimizethe potential for
international disputes hetweenthe Parties '.
129. With regard to the circumstances that are relevant to delimita-
tion, the Memorials of the United States and Canada agree upon a

number of them, including:the configuration of the coasts of the Parties;
specialor unusual geographical features;the relationshipof such coasts to
one another; and, the conduct of the Parties 6.
130. Finally, the United States and Canadian Memorials agree, in
principle, that the equidistance method is neither required by law nor

accorded any preference in the delimitation of a singlemaritime hound-
ary '.As Canada States:
"The appropriateness of the equidistance method is always a
function of the geographical and other relevant circum-
stances. .. "'.

131. Although Canada and the United States appear to agree, in
principle, upon much of the law governing the delimitation of a single
maritime boundary, in fact, the Memorials of the Parties differ sharply
concerning hoth the law and its application to the facts of this case.

'CanadianMemorial,paras3 . 39,341and 355.

'CanadianMemorial,para.368.
'CanadianMemorial,para.289.
'CanadianMemorial,para.278.
'See UnitedStatesMemorial,paras.247-256.
6UnitedStatesMemorial, paras.259and 261;CanadianMemorial,paras.303,
305,and 320.
'United StatesMemorial,para.262; CanadianMemorial,para.359.

Tanadian Memorial,para.357.62 GULF OFMA~NE 11i21

132. In effect, Canada argues that the function of this Court is an
exercisein distributive justice,rather than an adjudication in accordance
with international law. In this regard, Canada suggests that the Court is
to apportion the relevant area and its resources without regard to the

equitahle principles identified previously by the International Court of
Justice and by other international tribunals. The United States willshow
that Canada has misconstrued the function of this Court.

133. In addition, Canada makes the misguidedargument that econom-
ic dependence and proximity are to be the determinative factors in
delimiting a singlemaritime boundary, while also suggestingthat relative
wealth issuch a factor. In so doing, Canada has overlookedthe fact that
previous adjudications by international tribunals delimiting continental
shelf boundaries and exclusive-fishingzones, as well as the work of the

Third United Nations Conference on the Law of the Sea and State
practice, uniformly have rejected the relevance of economic dependence
and relative wealth,as wellas any preferred status for proximity.

134. Canada contends that the rejected and unratified 1979east coast
fisheries agreement should be invoked to the prejudice of the United
States in this case. The United States will establish that Canada's
attempted use of that failed agreement is contrary to fundamental
principlesof international law.

135. On the basis of its oil and gas permit program in the mid-1960s ',
Canada argues that the United States has acquiesced in the applicationof
the equidistance method for delimitingthe single maritime boundary in

the Gulf of Maine area, and that the United States accordingly is
estoppedfrom ohjectingto that application in this case. TheUnited States
will show that Canada, in its Memorial, did not address al1 of the
requirements of the doctrines of acquiescence and estoppel. The United
States will also estahlish in ParIIIthat, in viewof the facts in this case,
these doctrines do not apply,either to the Canadian line or to the method
by which Canada proposesto delimit that line.

'See Part1,ChapterVII, supra. CHAPTER1
THE FUNCTIONOF THE COURT IS TO DELlMITTHE SINGLE
MARITIMEBOUNDARYIN THIS CASEIN ACCORDANCE WITH
PRINCIPLESAND RULES OF LAW THROUCH THE APPLICA-
TIONOF EQUITABLEPRINCIPLES;IT IS NOT THE FUNCïION
OF THE COURTTO MAKEAN EQUITABLE APPORTIONMENT

OF THE AREA THROUGHAN EXERCISEIN DISTRIBUTIVE
JUSTICE
136. The United States and Canada agree that the Fundamental Rule
calls for maritime boundaries to be delimited according to equitable
principles, taking account of the relevant circumstances in the area, to
produce an equitable solutio'.

137. Canada disregards the terms of the Fundamental Rule, however,
and instead suggests that it requires the application of equity in the
abstract sense to produce an equitable apportionment, or sharing out, of
the resourcesin the area to bedelimit'.Canada argues that this sharing
out is to be determined, not in accordance with equitable principles, but
on the basis of certain "factors". As Canada asserts:

"The search, accordingly, is not for equitable principlesper se,
but for those factors that are legally relevant to the goal of an
equitable solution in the case at hand

In its Memorial, Canada distinguishes betweenfactors ofgeneral applica-
bility and those factors that relate only to one aspect of the single
maritime boundary, such as to the continental shelf or to the exclusive
fishingzone4.Canada doesnot, however,distinguishthese factors, northe
role they are to play in the delimitation, from relevant circumstances.

138. In dispensing with the need to identify and to apply equitable
principles,and by relyingsolelyupon the balancing of "factors", particu-
larly those of alleged ewnomic dependence and relativewealth5,Canada
in effect is requesting the Court to enter a judgmenex aequo et bono,
based upona discretionaryevaluation, without aclear basisin law. Such a
judgment is impermissible under the terms of the Special Agreement

'United StatesMernorial,para.237;anadianMernorial, ara.285.
Canadian Mernorial,paras.319 and 324.
'CanadianMernorial,,para.00.

'See CanadianMemorial,para. 301.To the extentthat anyof theseCanadian
PartIII."shouldbeconsidereasprinciplest,heyareaddressedinthis Partind

'CanadianMernorial,paras.326,375,380, and 381.64 GULFOF mN6 ~1141

between the Parties. That Agreement provides that the Chamber is to
decidethe courseof the singlemaritime boundary "in accordancewith the
principles and rules of international la"'.

139. The law relating to delimitation of the continental shelf and of
exclusive fishing zones, as well as recent developments in the Third
United Nations Conference on the Law of the Sea, al1 require that
delimitation be based upon a rule of law involvingthe application of

equitable principles, andno: upon a sharing out, as a matter of equity, of
the resourcesof the area to be delimited.

SECTION 1. AUhevious ContinentalShelf AàjudicationsHave Rejected
huitahle Apportionment,or Sharing Out, as a Basisfor Delimitation

A. THE North Seo Continental CON F CASES

140. The North Sea Continental SheUcases ' involvedthe delimitation
of the continental shelvesof the Netherlands, Denmark, and the Federal
Republic of Germany in the North Sea. In that case, the International
Court of Justice unequivocally rejected the notion that the Court's

function in delimiting maritime boundaries is to apportion the area, or its
resources, as a matter of equity. In presenting its case, the Federal
Republicof Germany contended that delimitation of the continental shelf
required an equitable sharing out, or apportionment, and that such an
apportionment did not involve in any respect a request that the Court

render a decision ex aequo et bono3. The Court rejected both conten-
tions '.With regard to any sharing out, the Court stated:
"Delimitation isa processwhichinvolvesestablishingthe bound-

aries of an area already, in principle, appertaining to the coastal
State and not the determination de novo of such an area.
Delimitation in an equitable manner is one thing, but not the
same thing as awarding a just and equitable share of a
previouslyundelimited area, even though in a number of cases

the results may be comparable, or evenidentical '."

'SpccialAgreementBetweenthe Govemmcntof the UnitedStatesof America
and the Governmentof Canada to Submit toa Chambcrof the International
CourtofJustice theDelimitationoftheMaritimeBoundaryintheGulfofMaine
Area, notificdto the Courton 25 Novcmbcr 1981. a: Art. II, para1.Unitcd
StatesMemorial.Annex2. Vol.1;CanadianMemorial, p.3.

NorthSeoContinentalShelI f:.CJ Reports1969,p.3.
'Ibid.p. 21,para. 17.
'Ibid..pp.21-22.para.18.IllSl COUNTER-MEMORIALOF THE UNITEDSTATES 65

141. The Court rejected the claim of the Federal Republicof Germany
to a "just and equitable share" as fundamentally inconsistent with
continental shelf doctrine:
".. .the doctrine of the just and equitable share appears to be

wholly ai variance with what the Court entertains no doubt is
the most fundamental of al1 the rules of law relating to the
continental sheK enshrined in Article 2 of the 1958 Geneva
Convention, though quite independent of if.-namely that the
rights of the coastal State.in respect of the area of continental
shelf that constitutes a natural prolongation of its land territory
intoand under the sea exist ipsofacto and ab initio. byvirtue of
its sovereignty over the land, and as an extension of it in an
exercise of sovereign rights for the purpose of exploring the
seabed and exploitingits natural resources '".

142. The Court held that equity plays a role in delimitation only asa
legal concept, involvingthe application of equitable principles, as distin-
guished from equity in the senseof abstract justice:

"On a foundation of very general precepts of justice and good
faith, actual rules of law are here involvedwhich governthe
delimitation of adjacent continental shelves-that isto Say,rules
binding upon States for al1de1imitations;-in short, it is not a
question of applying equity simply as a motter of abstract
justice. butof applying a rule oflaw which itself requires the
application of equitable principles .. ."'.

143. In discussingthe roleof equity in delimitation, the Court contrast-
ed the application of equity as a legal conceptinvolvingthe applicationof
equitable principles with the application of equity involvinga decisionex
aequo et bono:

"Whatever the legal reasoningof a court of justice, its decisions
must by definition bejust, and therefore inthat senseequitable.
Nevertheless,whenmentionismade of a court dispensingjustice
or declaring the law, what is meant is that the decisionfinds its
objective justification in considerations lying not outside but
within the rules, and in this field it is preciselya rule of law that
calls for the application of equitable principles.There is conse-
quentlynoquestionin this case of any decisionex aequo et bono.
such as would only be possibleunder the conditions prescribed
by Article 38, paragraph 2, of the Court'sStatute '."

'I.C.J.Reports 1969. p.22,para. 19.[Initialand finalemphasisadded.]Seealso
p. 22.para.20.
'I.C.J.Reports 1969. pp.46-47,para.85.[Emphasisaddcd.]

'I.C.J.Reports 1969,p. 48,para.88.66 GULF OF MAINE t1161

The holdingsin the North Sea ContinentalSheUcases thus are contrary
to Canada's pursuit of a sharing out, or apportionment '.

B. THE AngleFrench Arbitration

144. The conclusionsof the Court in the North Seo ContinentalSheif
cases were followed by the Arbitral Tribunal in the AngleFrench
Arbitration '.With regard to "sharing out", the Arbitral Tribunal stated:

"The first of these conclusions wasthat delimitation of the
continental shelf is not a questionof apportionment, that is of
awarding 'justand equitable'shares to each State in a common,
as yet undelimited,area of shelf.On thecontrary, delimitation is
essentiallya processof 'drawing aboundary line between areas
which already appertain to one or other of the States affected'
(I.C.J. Reports 1969,paragraph 20).Accordingly,although the
delimitation in the present case must be equitable. it cannot
haveas its object simply the awardingdan equitable Share'in
the continentalsheUto eachParty '."

The Arbitral Tribunal cited with approvalthe passage in the decision in
the North Sea ContinentalSheifcases that distinguishedequity as a legal
concept, involvingapplication of equitable principles, from equity in the
abstract sense, involvinga decision ex aequo et bono4.Thus, the Anglo-
FrenchArbitration also is at variance with Canada's viewof the law.

145. The International Court of Justice in the TunisialLibya case'
drew the same distinction:

"Application of equitable principlesisto be distinguishedfrom a
decision ex aequoer bono.The Court can take such a decision
onlyon conditionthat the Parties agree (Art. 38, para. 2, ofthe
Statute), and the Court is then freed fromthe strict application
of legal rules in order to bring about an appropriate settlement.

The task of the Court in the present case is quite different: it is
bound to apply equitable principlesas part of international law,

' Inthiscase,theSpccialAgreementbctweenthe Partiesdoesnotprovideforany
decisionex aequo etbono.andthusdoesnotsatisfytheconditionsoA f rticle38of
the Statuteofthe Court.
DecirionosftheCourtofArbirmfion 3,0June1977and 14Much 1978[hereinafter
Decisions].
'Decisionsp,. 51,para.78.[Emphasis added.]
'Decisionsp,p.114-115,para.245.

'I.C.J.Reports1982.p. 3.il 171 COUNTER-MEMORIALOFTHEUNITEDSTATES 67

and to balance up the various considerationswhich it regards as
relevant in order to produce an equitahle result. Whileit is clear
that no rigid rules exist as to the exact weight to be attached to
each element in the case, this isvery far from being an exercise
of discretion or conciliation; nor is itan operationof distributive
justice'."

146. The decision in the TunisiaILibya case is in accord with other
adjudications involvingthe continental shelf in rejecting, as a matter of
law, an equitahle apportionment, orsharing out, as sought by Canada.

SECTION 2. Neither the Fisheries Jurisdiction Cases nor Cases
Involvingthe Delimitation of ExclusiveFishing Zones Support Equitable
Apporîionment,or Sharing Out
147. Canada suggests that the judgments of the International Court of

Justice in the Fisheries Jurisdiction cases approvedthe equitahle appor-
tionment, or sharing out, of the resources of the area to be delimited '.
Neither those cases nor international adjudications relating to exclusive-
fishingrights supports such an interpretation.

A. THE Fisheries Jurisdiction CASES

148. The decisions in the Fisheries Jurisdiction cases did not involve
the delimitation of any type of a maritime boundary'. Rather, they
involvedthe adjudication of rights to fish in the high seas beyond the
internationally recognizedexclusive-fishingzone.

149. The Fisheries Jurisdiction cases arose after the United Kingdom
and the Federal Repuhlicof Germany challengedthe extensionby Iceland
of its exclusive-fishing zone fromtwelve to fifty nautical miles from its

coast. The International Court of Justice did not determine the validity of
this extension.The Court instead held that each Party could continue to
fish in the high seas within the newlyextended zone claimedhy Iceland,
but that Iceland was entitled to a "preferential share" within those
waters '.

150. The Court did not base its decision upon what was then an
emerging conceptunder international law, that of exclusivecoastal-State
jurisdictinn over the fishery resourcesof the adjacent seas. Rather, the
Court founded its decision upon the concept of the preferential rights of

'I.C.J. Reports 1982.p. 60,para.71.

'CanadianMernorialp , ara.286.
FishcriesJurisdiction(UnitedKingdom v.Iceland)(Federal Republic&Germa-
ny v. Iceland).Merits, Judgment.I.C.J. Reports 1974p. 3,p. 175.respctively.
'I.C.J. Reports 1974.p.34. para.79 [disposifil]. 68 GULTOF MAINE Ill81

the coastal State in a high-seas fisherylying beyondany recognized zone
of exclusivecoastal-State jurisdiction. The Court drew a clear distinction
between the two:
"Two concepts have crystallized as customary law in recent
years arising out of the general consensus revealedat that [the
1958 Geneva] Conference[on the Law of the Sea]. The first is

the concept of the fishery zone, the area in which a State may
claim exclusivefishery jurisdiction independentlyof its territori-
al sea; the extension of that fishery zoneup to a 12-mile limit
from the baselines appears now to be generally accepted. The
secondis the conceptof preferential rights of fishingin adjacent
waters in favour of the coastal State in a situation of special
dependence on its coastal fisheries, this preference operatingin
regard to other States concerned in the exploitationof the same
fisheries... "'.

151. Thus, the Fisheries Jurisdiction cases addressed the "preferential
rights" of the coastal State to the fishery resourcesof the high seas and
not the subject matter of this case, namely, the delimitation of a zone of
exclusive coastal-State jurisdiction. The Court elaborated upon the
conceptof preferential rights in the context of determining relative rights
in an area over which noState could claimexclusiveauthority. On the one

hand, the determination of a preferential right necessarily involvesthe
balancing of the rights of the coastal State with thoseof other States. The
determination of an exclusive fishing zone, on the other hand, accords
exclusivejurisdiction based upon delimitation. Thus, in contrast to the
situation in the North Sea Continental Shelf cases, the Court in the
Fisheries Jurisdicrioncases was called upon to enunciate a principle for
allocating rights in an an area that does not appertain to any State. The
concept of preferential rights can have no application in the context of a
boundary delimitation, where the task is to determine the limits of areas
, that appertain to the States involved.

152. In the Fisheries Jurisdiction cases, the Court was aware that the
conceptof the preferential rights of the coastal State in high-seas fisheries
might eventuallybe supersededby that of the 200-nautical-mileexclusive-
fishing zone '.Indeed, since the decisionsin those cases, international law
has recognizedthe 200-nautical-mile exclusive-fishingzone '.According-

ly, the Fisheries Jurisdiciion cases do not support Canada's argument
that delimitationof the singlemaritime boundary in an area subject tothe
exclusivefishing jurisdiction of a State requires an equitable sharing out
of the resourcesof that area.

'I.C.J.Reports 1974.p. 23,para. 52.
'I.C.J.Reports 1974.pp. 19-20, para.40; pp.23-24, para.53.
'As the Courtnoted in the TunisialLibyacase, the exclusivezone "may be
regardedas part of moderninternationallaw". I.C.J.Reports 1982,p. 74, para.
100.[119-1221 COUNTER-MEMORULOF THE UNITEDSTATES 69

B. THE Grisbadarna CASE
153. The Grisbadarna case ',which involved the delimitation of the

maritime boundary between Norway and Sweden, and thus their exclu-
sive-fishing zonesas well, similarly rejects the notion of an equitable
sharing out of resources. The dispute between Norway and Sweden
concerned their respective rights to two groups of fishing banks, the
Grisbadarna banks and the three Skjottegrunde hanks. There was
evidence presentedthat both nations had engaged in substantial fishing
activities over a considerahle period of time on al1 of those hanks.

Nevertheless,the Arbitral Tribunal did not hase its determination of the
boundary (which it set as an adjusted perpendicular line to the general
direction of the coast) upon the notion of an equitable sharing out of
resources. Rather, the Tribunal awarded the Grisbadarna hanks in their
entirety to Sweden l.Figure 20. The Tribunal arrived at that result on the
hasis of the "al1of several circumstances of fact which werepointed out
during the discussion'", including, in particular, fishing on the Grisha-
darna hanks that had been "carried on for a much longertime, to a much

larger extent, and by a much larger number of fishermen by the subjects
of Sweden than hy the subjects of Norway '".The decisionin that case
was based uponequitable principles,and not upon any notionof equity in
its abstract sense4.

C. THE Anglo-Nonvegian Fisheries CASE

154. In the Anglo-Nonvegian Fisheries case',the International Court
of Justice similarly disregarded the notion of any equitable sharing out.
That case involved a challenge by the United Kingdom of Norway's
delimitation of its exclusive-fishing zone.The United Kingdom argued
that the limits claimed by Norway were unnecessaryto protect Norwe-

gian fishermen,and wouldencompassareas of the high seas within which .
fishermen from the United Kingdomhad been fishingfor morethan four

'For text in French,see IIR. Int'lAb. Awards147.HagueCt. Rep.(Scott),
1916,p. 121reprintedatUnited States Memoria Al.nnex4.Vol1.
'See thediscussionofthiscasein UnitedStatesMemorial,paras.172-180.
'Grisbadarna, Hague Ct.Rep.(Scott),1916,p. 130(45thWhereas).

'United StatesMemorial, para.180.Indeed,in the Grisbadarna case. both
Partiesagreedthat the taskofthe Tribunalwastopronounceajudgmentof"law"
and not of "peace".Recueil des Comptes rendus de la visite des lieux et des
Protocoles des séancesdu Tribunal arbitral. constituéen vertu deonvention
du 14 Mars 1908.pour juger la question de la délimitationd'une certaine partie
de lafrontihre maritime entre la Norvhgeet la SuhVanLangenhuysen Frercs,
The Hague,1909,pp.231, 285a , nd316.
'Fisheries case (United Kingdom v. Nanvay), Judgment. I.C.J. Reports 19p..
116. 70 GULF OF MAINE il231

decades '.The Court applied equitable principles, taking account of both
geographical considerations and the longer and fuller development of the
fisheries by Norway, and confirmed exclusive Norwegian jurisdiction over
the entire area'.

155. No adjudication that has dealt with delimitation of exclusive
fishing zones requires, or even contemplates, an equitable apportionment,
or sharing out, of resources.

SECïION 3. The Convention Adopted by the Third United Nations
Conference on the Law of the Sea Rejects Equitable Apportionment, or
Sharing Out, As a Basis for Delimitation
156. The Convention adopted by the Third United Nations Conference

on the Law of the Sea addresses in identical terms the delimitation of both
the continental shelf andthe exclusive economic zone '.Articles 74(1)and
83(1)provide in combination:
"The delimitation of the [exclusive economic zone/continental

shelfl 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 solution4."
Under the Convention, Article 38 of the Statute of the Court determines

the international law that will govern delimitation. Article 38 identifies
the followingas the sources of international law: conventions, internation-
al custom, general principles of law, judicial decisions, and the teachings
of publicists. Unless independently authorized, Article 38 permits a
decision ex aequo et bono only upon the agreement of the Parties.

'I.C.J. Pleadings. Fisheries casVol.1I;p. 13,para. II and pp.411-412,para.
. 134(Replyof the UnitedKingdom).
'I.C.J. Reports 1951pp. 133and143.
'On 9 July 1982,the UnitedStatesannounced itsdecisionnotto signthe Lawof
the Sea Convention.That position was adopted because of problems inthe
Convention'sdeep seabcd mining provisions.On 10 March 1983,the United
Statesstatedpubliclythat "the Conventionalsocontainsprovisionswithrcspectto
traditionalusesof the oceanswhichgenerallyconfirmexistingmaritimelawand
practicc and fairly balance the interestsof al1States". Inthat conncction,the
United States established by proclamation anexclusive economic zone and
indicatedils willingnessto "recognizethe rightsof otherStates in the watersoff
their coasts. asflectedin the Convention,solongas the rightsand freedomsof
the United States and others under international law are recoenizedbv such
coastalStatw". Forthe Statcmcntof the President of9 July 198Kthc~ta;cment
of the Prcsident of 10March 1983.and thc Exclusive Economic ZoncPrwlama-
tionof 10March 1983, see Annex 28,Vol. V.
'United NationsConventionon theLawof theSea.openedfor signature10Dec.
1982.U. N. Dw. A/Conf. 621122.11241 CouNTER-MEMoo wpTHEUNITEDSTATES 71

Equitable apportionment or,sharing out, of an area is a decisionex aequo
et bono.As demonstrated above, neither the law relating to delimitation
of the continental shelfor of exclusivefishing zones,norany treaty or 0th-
er source of international law generally applicable tothe delimitation of
the si-~le ~ ~ ~ime boundarv bevondthe territorial sea. authorizes such a
decision. Consequently,undérthe new Convention, thécontinental shelf
and exclusiveeconomiczone cannot be apportioned in the absence of an
agreement between the States concerned.

SECTION 4. Conclusion
157. The Fundamental Rule governing delimitation of maritime
boundaries, acknowledged by Canada, requires the identification and
application of equitable principles, taking account of relevant circum-
stances. Canada nonetheless suggests that this Court is authorized to

render a decision that equitably apportions, or shares out, the area to be
delimited in this case on the basis of certain "factors" or circumstances.
In effect, Canada claims that this Court may ignore the requirement to
applyequitable principles.

158.The Parties have not consentedto a decision ex aequo et bono.
and the United States does not do so now. As provided inthe Special
Agreement betweenthe Parties, the Chamber must arrive at its decision
through the application of principlesand rules of international '.w

'SpecialAgreement, suprapara.138,n. 1,at Art1 CHAPTER n
CANADARELIES UPON REJECTED INTERPRETATIONS OF
THE LAWGOVERMNG THE DELIMlTATION OF MARITIME

BOUNDARIES
159. In its Memorial, Canada relies upon interpretations of the law
governing delimitationof maritime boundaries that have been rejected by
the International Court of Justice, by other international tribunals, andj
the Third United Nations Conference on the Law of the Sea. Canada

contends erroneously that the Anglo-Nonvegian Fisheries case and the
Fisheries Jurisdiction cases support the relevance of economic depen-
dence as a consideration in delimiting maritime boundaries, and suggests
that the relative wealth or poverty of the Parties is also relevant. Those
cases do not supportthe relevance of either of those considerationsto the
delimitation of a single maritime boundary. Furthermore, both consider-
ations were expressly ~n--re-ently rej- -edin the TunisialLibya case.

160. Canada also argues erroneously that proximity is the preferred
basis of delimitation of maritime boundaries. On the contrary, adjudica-
tions relating to the delimitation of the continental shelf, as wellasthe re-
sults of the Third United Nations Conferenceon the Law of the Sea, have
rejected specifically any preferred status for proximity, either as a
principle oras a method of delimitation.

SECTION 1. International Law Rejects Economic DependenceandRela-

tive Wealth as Considerations Relevant to a Delimitation Between
NeighboringStates
161. Canada submits that:

". ..the economic dependence associated with establishedpat-
terns of exploitationof the fisheriesof the disputed area must be
given a special weight in the balancing-up of al1 the relevant
circumstances if a truly equitable result is-. be achieved "'.
Canada goes so far as to assert that economic dependence may be a
sufficient basis for ignoring entire portions of the Coast of a Party
otherwise relevant forthe purpose of delimitation '.

162. Canada wncedes that neither "ewnomic interests in the abstract"
nor "indeterminate considerationsof relative national wealth and pover-
ty" are to be taken into account in the delimitation of a single maritime
boundary', and yet Canada relies in its arguments upon those very

'CanadianMernorialp , ara.311.
'CanadianMernorial,para. 317.
' CanadianMernorialp , ara.316.il261 COUNTER-MEMORUL OFTHE UNiED STATES 73

factors. Canada refers to the "present and prospective economicimpor-
tance" of Georges Bank' and asserts, incorrectly,that Georges Bankhas
"special economicsignificance" to Canada that is without parallel in the
United States'. In this regard, Canada, in its Memorial, incorrectly
portrays Nova Scotia as a deprived region with limited economicalterna-
tivesto fishingon Georges Bank,which it contrasts with what it describes
as the wealthy, diverseeconomyof New England '.
163. The introduction of these economicarguments by Canada neces-

sarily raises issuesconcerningthe past, present,and future developmentof
the economiesof both Parties. Analysis of such economicissues requires
considerationof cornplexand speculativecriteria, including, forexample,
economic growth, industrial diversification, populationstructure, energy
use, investment, and developmentof external markets'.
164. Considerations of purported economic dependence and relative
national wealth are extraneous to the delimitation of maritime bound-
aries. Boundaries betweenStates are permanent. They must not be based

on the onehand uponvariable and speculative factors.On the other hand,
long usage of the resources in the area to be delimited is relevant.
Although motivated by economic considerations, patterns of activities
relating to the exploitation of resources consistently havebeen viewedas
relevant, not because they bear any relationship to economicdependence
or relative wealth, but because they occur in the area in dispute.
165. No adjudication recognizes the relevance of relative national
wealth to a delimitation of a maritime boundary between neighboring
States. None of the adjudications upon whichCanada relies supportsthe

Canadian argument that considerationsof economic dependence may be
used to refashion nature.
166. In particular, Canada's reliance upon the FisheriesJurisdiction
cases is misguided. The Court in those cases wnsidered economic
dependencein unusual circumstances pertainingto the widely-rewgnized
special dependence of the entire economy of Iceland upon the fishery
resources of the high seas off its coasts. It did not do so, however, inthe
context ofdelimjting a maritime boundary: In that case, the Court
referred to the conceptof preferential rights in determining the respective

fishing rights of the wastal State and of distant-water States in the high
seas beyond the limits of exclusivecoastal-State jurisdiction. As noted
above, the concept of preferential rights in the fishery resourcesof the
high seas has been superseded by the emergenceof the 200-nautical-mile
exclusivefishingzone.

'CanadianMernorial,para. 319.
'CanadianMernorial,para. 318.
'CanadianMemorial, paras1 . 10-121.
'See Annex 4,Vol.III, AFactualAnalysisoftheSocio-EconomiA crgumentsin
the CanadianMernorial.74 GULFOF hUxlNE ~1271

A. INTERNATIONA ADLJUDICATION RSELATING TO FISHING REJECTTHÈ
RELEVANC OEFECONOMID CEPENDENC OR RELATIVW E EALTH TO THE
DEL~M~TA~O OFNMARITIME BOUNDARIES

1. The Anglo-Nonvegian Fisheries Case

167. Canada suggests that "the important and sometimes decisive
role" of economicconsiderationsin delimiting maritime boundaries "was
a central theme" in the Anglo-Nonuegian Fisheries c'.To the extent
that any of the issues addressed in that case may be identified as a
"central theme", that theme wouldhe that delimitations should reflectthe
geographical relationshipof the relevant coasts to the maritime areas in
front of those wasts, and, where applicable, historic fishing rights estab-
lishedby longusage.

168. In the Anglo-Nonuegrgranisheries case, the United Kingdom
argued that it was incumhent upon Norway, in delimiting its exclusive
fishing zone,to followthe sinuositiesof its coast. Norway claimedthat in-

ternational law did not prohibit the straight-haseline method that it had
used. Norway argued further that its method was justified hy the
geographical circumstances of the unique'Norwegian coast and by the
need to safeguard the vital interests of its inhabitants. Finally, Norway
contended that its system of straight baselines was valid under interna-
tional lawon the basis of historic usage.At issue wereareas of water, rich
in fish, where Norwegians had been fishing for centuries, and where
vessels of the United Kingdom had resumed fishing some forty years

earlier, after an absence of almost three ce'.uries
169. In upholding Norway'sstraight-baseline system, the Court identi-
fied three "basic considerations". The first two of these considerations

were "purely geographical'". One was the close dependenceof the sea
area in question upon the land domain. As the Court declared, "[ijt is the
land which confers upon the coastal State a right to the waters off its
wasts'".

170. The other "purely geographicalconsideration.id eynthefied
Court concerned the relationship between certain sea areas and land
formations:

"Another fundamental consideration, of particular impor-
tance in this case, is the more or less close relationship existing
between certain sea areas and the land formations which divide
or surround them.The real question raisedin the choiceof base-
lines is in effect whether certain sea areas lying within these

'CanadianMernorial, ar312.
*I.C.J. Reports 1p.1124.

'I.C.J. Reports 1951.p. 133.11281 COUNTER-MEMORIALOF THEUNITEDSTATES

lines are sufficiently closely linked to the land domain to be
subject to the regime of interna1waters. This idea, which is at
the basis of the determination of the rules relating to bays,
should beliberally applied inthe case of a Coast,the geographi-

cal configuration of which is as unusual as that of Norway '."
171. Only the third consideration identifiedby the Court related to
economic interests:

"Finally, there is one consideration notto be overlooked,the
scopeof which extends beyondpurely geographical factors:that
ofcertain economicinterests peculiar to a region,the reality and

importance of wbichare clearly evidencedby a longusage l."
172. In commenting upon Norway's economicarguments, the Court
did not focus on economicinterests as an element of ewnomic depen-
dence. Ratber, the Court focused upon such interests as the basis of

traditional rights established by long usage:
"The Court considers that, although it is not always clear to
what specific areas tbey apply, the historical data produced in
support of this contention by the Norwegian Governmentlend

some weight to the idea of the sumival of traditional rights
resemed to the inhabitants of the Kingdomoverfishing grounds
included in the 1935 delimitation, particularly in the case of
Lopphavet. Such rights, founded on the vital needs of the
populationand attested byveryancient and peaceful usage,may
legitimately be taken into account in drawing a line which,
moreover, appears .to the Court to have been kept within the
boundsof what is moderate and reasonable '."

173. Canada argues that the ewnomic interests that have a legal
relevanceneed notbe "of the very longduration that might be required in
support of a claim of historic title'". The Court in the Fisheries case,
however, upheld Norway's straight-baseline system on the

basis of traditional rights "attested by veryancient and peaceful usage '".

I.C.J.~ep~~1951, p. 133.
'I.C.J. Reports 1951.p. 133.The Courtfoundthat, to berelevantfordelimita-
tion,aneconomicinterestmustbothbe"clearlyevidenced bylongusage" andhe
"peculiarto the region".In this regard, Canadaassertsthat GwrgesBank isof
"specialewnomicsignificance" toCanada"entirely withou ptarallin theUnited
States".CanadianMemorial,para. 318.The UnitedStatesinterestin the area,
historicallandat present, farxceedstherecentandlimitedactivitiesof Canada.
See Part 1,ChapterIV.
'I.C.J. Reports 1951.p.142.
Canadian Memorial,para.316.
'I.C.J. Reports 1951.p.142.76 GULF OF MAINE t1291

The Court found that the fishing grounds at issue had been exploited by
Norway from "time immemorial "'. The Court also found that Norway
had used a system of straight baselines for over eighty years, without
oppositionfrom the United Kingdom or from other States. Accordingly,
the Court held that the United Kingdom at that juocture could not be
heard to object to that system '.

2. The Fisheries Jurisdiction Cases
174. In the Fisheries Jurisdiction cases, Iceland claimed exclusive

jurisdiction over fishing to a distance of fifty nautical miles from its
coasts, both to conserve the fisheries and to protect the economy of
Iceland, which was widely recognized as specially dependent upon those
fisheries.The International Court of Justice held that Iceland'sunilateral
claim to exclusivejurisdiction was notopposableto the United Kingdom
and the Federal Republic of Germany, but that Iceland was entitled to a
preferential right to share in those high-seasfisheries '.

175. As previously noted, however, the decisions in the Fisheries
Jurisdiction cases are not relevant to the present case. They did not
concern the delimitation of maritime areas between neighboring States;
rather, they involvedthe concept of the preferential rights of the coastal
State to high-seasfishery resources '.That concepthas been overtaken by

the emergence of the 200-nautical-mile exclusive fishing zone, and is
irrelevant to the delimitation of this maritime boundary.

3. The Grisbadarna Case

176. The Arbitral Tribunal in the Grisbadaria case identified certain
circumstances relevantto delimitation, includingthe presenceof separate
and identifiable fishingbanks, the degree to which the nationals of the
two Parties had developedand exploitedthe fisherieson those banks, and
the exerciseby the Parties of responsibilitiesfor safety of navigationin the
area'. The Arbitral Tribunal did not consider purported economic

'I.C.J.Reports 1951, p. 127.

'I.C.J. Reports 1951. p. 139.In contrast, substantiaCl anadianactivityin the
fisheriesof the northeasternportionof GeorgesBankfirst emergedonlyin the
1960% andthenonlyin regardto onespecies,scallops.UnitedStatesMemorial,
paras. 79-83M. oreover,wntinued accesstoGeorgesBank isnot, in thewordsof
the Anglc-NorwegianFisheriescase,"vital" to the needsof the inhabitantsof
Canada generally,or ofNovaScotia,even if sucha wnsiderationwere, asa
matteroflaw,relevant todelimitationofa single maritime boundary.See Annex
4,Vol. III.
'I.C.J.Reports 1974.P. 34,para.79(4Xb).
' I.C.JReports 1974.pp. 27-28,para.62.
'Grisbadarna,HagueCt. Rep.(Swtt),1916, pp. 129-130.Il301 COUNTER-MEMORULOF THEUNITEDSTATES 77

dependence or the relative wealth of Norway and Sweden in delimiting
the boundary separating their exclusive fishing zones. The Arbitral
Tribunal consideredthe relative importance of fishingon the banks to the
two nations to assist it in evaluating the evidenceof the fishing activities
of the two States on the banks. Upon that basis, the Tribunal concluded

that the Grisbadama banks had been used much earlier and more effeo
tivelybySwedenl.
B. ADJUDICATION RELATING TO DELIMITATIO NF THE CONTINENTAL
SHELF REJECT THE RELEVANC EF ECONOMIC DEPENDENC OR RELA-

TIVE WEALTH
177. Canada asserts that[ejventhe law on continental shelf delimita-
tion, in fact, strongly suggeststhat established resource interests in the
disputed area are among the most important factors to be taken into
account", citing in support of this propositionthe NorthContinental
SheUcases and the TunisialLibya case'. The decisionsin the North Sea
ContinentalShelfcases and the Tunisia/Libyacase,aswell as that in the

Anglu-FrenchAlbitration,do not suggest that considerations of economic
dependence or relativewealth are relevantto the delimitationof maritime
boundaries. Furthennore, the recent decision in the Tunisia/Libya case
expresslyrejectsthe relevanceofanysuchconsiderations.

1.The North Sea Continental SheUCases
178. In regard to the North Sea Continental SheU cases, Canada
claims that "the Court confirmed the relevanceof the natural resourcesof
theareas involved,'sofaras knownor readilyascertainable"", suggesting
that the Court thereby recognizedthe relevanceof economic dependence
to delimitation. The requirement in the dispositif of that case to consider

knownor readily ascertainable natural resourceshas no relation, however,
to economic dependence or relativewealth. None of the Parties in the
North Sea Continental Sheff cases based its argument upon such
considerations.Eventhe Federal Republicof Germany, whichargued that
customary law required an equitable sharing out, or apportionment of the
continental shelf,did not baseits argument uponeconomicconsiderations.
As the Court noted:

"It appeared, moreover,that whateverits underlying motivation,
the claim of the Federal Republic was, at least ostensibly,to a
just and equitable share of the space involved,rather than to a
share of the natural resources as such, mineral or other, to be
found in it...'".

'GrisbadamaH, agueCt. Rep.Scott),191, . 131(46thWhereas).
CanadianMemorial,para.315. [Emphasiisnoriginal.1
'CanadianMemorial,para.315.
'I.C.JReports1969,p.21,para. 17.The NetherlandsandDenmarkbasedtheir
argumentsupongeographical groundsn,ot uponeconomicconsiderations..J.
Reports1969.pp.19-20,paras.13 and 14.78 GULFOF MAINE [131]

179. The Court indicated that the existenceof natural resourcesis not
itself relevantto delimitation:

"... the question of natural resources is less one of delimitation
than of eventual exploitation '."

Although the Court di'd not explain in that passage the relevance it
attached to "eventual exploitation", it subsequentlymade clear that its
concernsin this regard related to the conservationof resources:

"The natural resources of the subsoil of the sea in those parts
whichconsistof continental shelf are the very object of the legal
régime established subsequentto the Truman Proclamation. Yet
it frequently occursthat the same deposit lies on both sides of
the line dividing a continental shelf between two States, and
since it is possibleto exploit such a deposit from either side, a

problem immediatelyarises on account of the risk of prejudicial
or wasteful exploitation by one or other of the States
concerned ln.

This is the only context in which the Court discussed the exploitation of
natural resources.The Court appears to have concludedthat exploitation
of natural resources is relevantto delimitation only to the extent of any
problemsthat might be created should a unitary deposit he split between
two States, and not as any measure of entitlement involviogthe purported
economicdependence or relative wealthof the Parties.

2. The TunisialLibyaCase
180. The Canadian Memorial Statesthat:

".. .the potential relevance of actual exploitation of known
resources was alluded to by the Court in the Tunisia-Libya
Continental SheU case as an element that might be taken into

account 'inthe processof weighingal1relevant factorsto achieve
an equitable result' '".
In that case, both Parties sought to rely upon economic considerations.

The Court said:
"In their pleadings, as well as in their oral arguments, both
Parties appear to have set somuch store by economicfactors in

the delimitation process that the Court considers it necessary
here to comment on the suhject. Tunisia seems to haveinvoked

'I.C.J.Reports 1969.p. 21,para. 17.
'I.C.J. Reports 1969p. 51,para.97.
'CanadianMernorial,para. 315. [Citationornitted.]11321 COUNTER-MEMORULOF THE UNITEDSTATES

economicconsiderations in two ways:firstly, by drawing atten-
tion to its relative poverty vis-à-visLibya in terms of absenceof
natural resources likeagriculture and minerals, comparedwith

the relative abundance in Libya, especiallyof oil and pas wealtb
as well as agricultural resources; secondly,by painting out that
fishing resources derived from its claimed 'historic rights' and
'historicwaters' areas must necessarily betaken into account as
supplementingits national economy inekingout its sumivalas a
country. For its part, Libya strenuously argues that, in view of

its invocationof geologyas an indispensableattribute of its view
of 'natural prolongation',rhepresence or absenceofoil or gus in
the oil-wellsin the continental sbelf areas appertaining to either
Party should play an important part in the delimitation
process '."

The Court rejected the arguments of both Parties:

"The Court is, however, of the view that these economic
considerations connotbe taken into account for the delimitation
of the continental shelf areas appertaining to each Party. They
are virtually 'extraneousfactors since they are variables which
unpredictable national fortune or calamity, as the case may be,
might at any time cause to tilt the scale one wayor the other. A
country might be poor today and become rich tomorrow as a

result of an event such as the discoveryof a valuable economic
resource. As to the presence of oil-wells in an area to be
delimited, it may, depending on the facts, be an element to be
taken into account in the processof weigbingal1relevant factors
to achievean equitable result '."

181. Thus, the Court's referenceto the 'presence of oil-wells" as a
possible consideration in delimitation does not mean that the Court
intended that considerations of economic dependence or relative wealth
were to be consideredrelevant to delimitation.The presenceof oil wellsis

evidenceof the conduct of the Parties in the area. Libya'sargument tbat
oil and gas deposits "in the oil-wells" were a relevant consideration was
rejected by the Court.

'I.C.J.Reports 1982,p. 77,para. 106.[Emphasisadded.]
'I.C.J.Reports 1982,m. 77-78,para. 107.[Emphasia sdded.]In statingthat the
presenceof oilwells ianareatobedelimitedmaybeanelementtohetakeninto
account inweighingtherelevant circumstancetsh,eCourt may havehadinmind
the unityof deposits.The Courtin the North Seo ConrinentalShelf cases
wncludedthat prohlemscouldarise on accountof the risk of prejudicialor
wastefulexploitatiowhere a boundarysplitsa singledepositofnaturalresources.
I.C.J. Reports1969,pp. 51-52,para.97.il341 COUNTER-MEMORIAL OFTHEUNITEDSTATES 81

ing from the 1966 change in the policy of the Roman Catholic Church
whereby eating meat on Friday was no longer forbidden.The market for
fish substantially decreased, adversely affecting fish pricesin the Gulf of
Maine area and elsewhere '.Indeed, the fishing industry in the Gulf of
Maine area has undergone numerous changes in response to such
variables as the introduction of new technology and changing markets '.

In particular, the Georges Bank scallopfishery isa wmparatively recent
development'. Thus, the value of fishery resources, as with other re-
sources, is variable, unpredictable, and dependentupon a wide variety of
human and natural factors. Moreover,as the Court in the TunisiolLibya
case noted4, the relative wealth of a State may change through the
discoveryof a valuable resource, asdemonstrated by the recent discovery
of important hydrocarbon depositsoff Nova Swtia.
185. Finally, Canada attempts to distinguish the TunisialLibya case

from the present case on the ground that this case involvesrights in the
exclusive fishing zone, and not merely those of the wntinental shelf.
Canada suggeststhat, although ewnomic dependence may not bearupon
exclusiverights to continental shelf resources, it shouldbe relevant to a
delimitation of exclusiverights to fishery resources,which, until recently,
have been open to al1States '.
186. Canada providesno authority for the distinction it drawsbetween

the law relevant to the delimitation of the continental shelf and that
relevant to the delimitation of the exclusive fishing zone. In fact,
international law recognizesthe exclusiverights of the coastal State both
to the hydrocarbon resourcesof the wntinental shelf and to the fisheryre-
sources of the 200-nautical-mile exclusive fishing zone. Indeed, the
emergenceof the 200-nautical-mile exclusivefishing zonein international
law has proven to be far more disruptive to established patterns of
resource exploitation than bas the development of the doctrine of the
wntinental shelf. In the 10 years since the Fisheries Jurisdiction cases,
many wastal States have expelled fishermen of other States who had
fished in the waters of the newly established exclusive fishing zone for
decades or even centuries. Canada has been in the forefront of these

developments.Thus, Canada expelledNew England fishermen fromareas
they had fished for centuries, and asserted control of the traditional
European fishing groundson the Grand Banks of Newfoundland, despite

'F. W. Bell,"The Pope andthe Price of Fish", in The AmericonEconomic
Review, 1968,Vol.63,pp.1346-1350A , nnex 29V, olV.
l~h&c changesinclude:the usc oficc10 preservethecatch.makingpossiblethe
channefromdricdorsalted 10freshIish:theex~ansionofmarkets throuah thede-
veloiment of transportationand marketing-networks;and new veisels and
processingtechniques.UnitedStatesMemorial,paras.69-75.
'See UnitedStatesMemorial,para. 82.
' I.C.JReports1982, p.78,para. 107.
'CanadianMemorial,para.314.82 GULFOF MAINE Il351

the previously "unquestioned legal right of access to the fisheries" by
fishermen of other States. There is no basis for considering economic
dependence in the context of delimitation. It was no1considered relevant
to the expulsion of foreign fishermen occasionedby the extension of
coastal-State fisheriesjurisdiction200 nautical miles.

C. CONSIDERATIONS OF ECONOMID CEPENDENC END RELATIVE WEALTH
CANNOT BEUSED TO REFASHION NATURE

187. In its Memorial,Canada argues:
"...in the case of a single maritime boundary, where fisheries
interests represent the dominant component of the interests at

stake, a somewhat modified approach to the notion of the
'relevant coasts' maybe in order. It is true, of course, that these
shouldexhibit an appropriate degree ofadjacency and proximity
to the disputed area. It is equally apparent that in a case of this
nature it ceases to be appropriate to identify the relevant coasts
and to assess their importance in a purely geometrical way, in
terms of their abstract spatial characteristics, without regard to
their actual reliance upon the resources of the area concerned.
There must be, in other words, an interaction between the
physical and the economicgeography ..."'.

188. Canada offers no authority whatsoever for the notion that wasts
that are otherwise relevant to delimitation hecome less relevant if the
inhabitants of the coastal area do not rely upon the resourcesof the area
to be delimited'. There is no authority for this notion. It is directly
contrary to the fundamental principle, acknowledgedby Canada, that

delimitation must reflectthe relationship of the Coastof the Parties to the
area to be delimited. As the United States demonstrated in its Memorial,
this principle isa common elementin the law relating to delimitation both
of exclusivefishingzonesand of the continental shel'.

189. International lawrewgnizes that the coastlineis the starting point
for title to, and the delimitation of, maritime areas. The Convention on
the Territorial Sea and the Contiguous Zoneprovidesthat those areas are
to be delimited on the basis of thegraphical coastline'.There is no le-

'CanadianMemorial,para.317.
'Canada relies ugon this argumentto ignorethe coastsof Maine andNew
Hampshire indclimitingtheboundaryseawardoftheGulfofMaine.Sinccvessels
from Maineand New Hampshirehave historicallyfished,and fish today,on
GeorgesBank,Canadaerred in ignoringthesecoastsevenundcrits incorrect
interpretationofthelawSee PartIII,ChapterIII,Section5.
'UnitedStatesMemorial, paras2.39-246.
'Conventionon the Territorial Sea and the ContiguousZone. U.N. Doc.
A/CONF. 13lL.52,516U.N.T.S. 205.UnitedStatesMemorial,Annex5,Vol. 1.il361 COUNTER-MEMORW.OFTHEUNITEDSTATES 83

gal authority or factual hasis for excludingany portion of a State's Coast
from delimitation of a territorial sea or contiguous zone merelybecause
the inhabitants of that area do not use or are not dependent upon the re-
sources of the adjacent seas. This same reasoning is reflected in the
Conventionadopted hy the Third United Nations Conferenceon the Law
of the Sea. The Convention considersonly the geographical coastlineas

the starting point in delimitingthe territorial sea, the contiguouszone,the
exclusive economic zone, and, in part, the continental shelf '.The
utilization ocresources by the coastal State is not a relevant consideration
in the delimitation of any of these maritime zones.

190. The Grisbadarna case and the Anglo-Norwegian Fisheries case
expressly recognizedthe relevance of the geographical coastline'. The
Court in the North Sea Continental Sheff cases affirmed that the
extensionof coastal-State jurisdiction over hoth the continental shelf and
the water wlumn of the contiguous zonerests upon the principle that the
land dominates the sea '. Similarly, the Court in the Tunisia/Libya case,

and the Arbitral Tribunal in the Anglo-FrenchArbitration case, stressed
the importance of the geographical coastline to a maritime houndary
delimitation '.

D. CONCLUSION

191. The adjudication of a houndary hetween States, whether on land
or at sea, is intended to he a permanent delimitation. To the extent
possible, such an adjudication should consider circumstances that are
stable and predictahle. Considerations of economic dependence and
relative national wealth and poverty are variable and speculative. The

facts and the analysis involvedin any such comparisonsare susceptibleto
many different interpretations. Moreover,national fortune or calamity or
other circumstances wuld at any time tilt the scale oneway or the other.
Taking such considerations into account is likely to discourage States
from submitting houndary disputes to adjudication, therehy undermining
the peaceful settlement of disputes. As the Court in the Tunisia/Libya
case correctly concluded, questionsof economic dependenceand relative
wealth are extraneous and irrelevant to the delimitation of a maritime

'UnitedNationsConvention onthe LawoftheSea,openedforsignature10Dec.
1982,Arts. 15,33,57, 74, 76,and83.
'Grisbadarna.HagueCt. Rep.(Scott),1916, pp. 127-129;I.C.J.Reports1951, p.
133.Whilethe FisheriesJurisdicrioncasesinquiredintoewnomicdependence,
thedecisionaddressedpreferentialratherthanexclusive fishingrights,and didnot
delimita boundary.
'I.C.J.Reports1969. p.51,para.96.
'I.C.J.Reports 1982,p.61,para.73;Decisions. p. 93,para. 194.84 GULF OFMAINE t1371

boundary. Canada's argumentsin this regard, therefore, mustbe rejected,
both as a matter of law and pursuant to the Special Agreement between
the Parties.

SECTION 2. The Equidistance Metho dNeitherRequireà Nor Preferred
intheDelimitationof MaritimeAreas

192. Although Canada denies that the equidistance method is either
required or preferred for delimiting maritime boundaries ',Canada
nonetheless seeks to establish that method as inherently more equitable
than any other'The arguments set forth by Canada in this regard are the

same as those of the Netberlands and Denmark, that were rejectedby the
International Court of Justice in the North Sea Continental SheU cases.
In this case, Canada renews those rejected arguments. Canada suggests
that the decision in the North Sea Continental SheU cases has been
superseded by the decision in the TunisialLibya case and by the
emergence in the lawof 200-nautical-mile zones'. Canada cites State
practice as supportive of the notion that equidistance is a preferred
method.

193. The TunisiajLibya decision did not depart from the decision in
the North Sea Continental Shelf cases. Rather, it agreed with the
reasoning in that decision, and, in therocess, rejected any preferred
status for the equidistance method in the delimitation of maritime
boundaries. Neither the evolution of 200-nautical-mile zones nor State

practice has found equidistance as legally required or preferred.

A. THEARGUMENTS SETFORTH BY CANADA TO SUPPORT A SPECIAL
STATUS FOR THE EQUIDISTANCM EETHODWERE REIECTED IN THE
NORTH SEACONT~NENT SHLELFCASES

194. Canada seeks to establisb a special status for the equidistance
method by equating adjacency, as the source of title or jurisdiction to
maritime areas, with proximity. Canada then suggests that the equidis-
tance method mostaccurately reflects proximity.

195. In the North Sea Continental SheU cases, Denmark and the
Netherlands argued that adjacency, asan adjunct of appurtenancy, is the
sourceof title to the continental shelf, and that the test of such adjacency
is proximity. Both States contended that only an equidistant line could
meet that tes*.The Court rejected the arguments of Denmark and the
Netherlands on twogrounds. First,the Court held that "adjacency" is not

'CanadianMernorial, ara.359.

'CanadianMernorial,para.357-366.
'CanadianMernorial,para294.
'I.C.J. Reports 19pp.29-30,paras. 39-41.Il381 COUNTER-MEMORIALOF THEUNITEDSTATES 85

the same as proximity '.Second, it stated that the issue of title to
maritime areas is different from the issueof delimitation of those areas.
196. The Court concluded that adjacency and similar terms used to

describeclaims to the continental shelf are imprecise:
".. .terms such as 'near', 'closeto its shores', 'off its coast',
'opposite','infront of the coast','inthe vicinityof, 'neighboring
the coast','adjacent to','contiguous',etc.,-al1 afthem terms of

a somewhat imprecise characier which, although they conveya
reasonahly clear general idea, are capable of a considerahle
fluidity of meaning '".
197. The Court specificallyrejected proximityas the basis for title to

submarine areas:
"They are near it of course; but this would notsuffice to confer
title, any more than, according to a well-establishedprincipleof
lawrewgnized by bath sides in the present case,mere proximity

confersper se title to land territory. What confers the ipsojure
title which international law attributes to the coastal State in
respect of its continental shelf, is the fact that the submarine
areas concerned may be deemed to be actually part of the
territory over whichthe coastal State already has dominion,-in
the sensethat, although coveredwith water, they are a prolonga-
tionor continuation ofthat territory, an extensionofit under the
sea. From this it wouldfollow that whenevera given submarine
area does nor consfitute a natural . .. extension of the land
terrifory da coastal State. evenfhoughfhafarea may be closer

to it fhanif is to the ferritory afany ofherState, it cannofbe re-
garded as apperfainingfo fhafSfate;-or at least it cannotbe so
regarded in the face of a competing claim by a State of whose
land territory the submarinearea concernedis to be regarded as
a natural extension, evenif il is less closeto i'."

198. Thus, the Court concludedthat the geographicalconfiguration of
the coast is more important than proximity in determining whether a
particular submarine area constitutes a natural extension of the land
territory of the coastal Statç:

"Indeed, local geographical configurationmay sometimescause
it to have a closerphysical connectionwith the coast to which it
is not in fact closes'."

'I.C.J.Reporfs 1969. pp.30-31,para.42.
'I.C.J.Reports 1969. p.30,para.41.[Emphasisadded.]
'I.C.J.Reports 1969, p.31,para.43.[Lattercmphasisadded.]
'I.C.J.Reports 1969, p.30.para. 41.86 GULF OF MMNE Il391

199. After distinguishing the concept of adjacency from that of
proximity, the Court distinguished title to an area from delimitation of
that area:

"The appurtenance of a given area, considered as an entity, in no
way governs the precise delimitation of its boundari..."'.

200. As regards equidistance, the Court said:
"... it clearly cannot be identified with the notion of natural
prolongation or extension, since, as has already been stated

(paragraph 8), the use of the equidistancemethod would
frequently causeareas which arethe naturalprolongationor
extension of the territoryof one State to be attributed to
another,whenthe coruiguration ofthe latter'sCoastmakes the
equidistancelineswingout laterallyacrosstheformer? coastal
front, cutting it off from areas situated directly before thal
front "'.

Concluding that proximity is but a rationalization for equidistance, the
Court in the NorthSea ContinentalSheff cases specifically rejected any
required status for equidistan'.

B. ADJUDICATION S UBSEQUEN TO THE NORTHSEA CONTINENTAL
SHELF~ASE LIKEWISE REJECTANY SPBC~AS TATU SOR THE
EQUIDISTANCM EETHOD

201. Notwithstanding Canada's arguments, suhsequent adjudications
have not departed from the decisions in theorth SeaContinentalSheff
cases wncerning the role of equidistance. Both the Arbitral Tribunal in
the Anglo-FrenchArbitrarion and the Court in the TunisialLibya case
adhered to the decisions of the International Court of Justice iNorth

'I.C.J.Reports1969,p. 32,para46.

'I.C.J.Reports1969.pp. 31-32,para44. [Emphasisadded.]
' I.C.JReports1969,p. 36,para.56.Asthe Court stated:
"...it seemsto the Court that theinherency contentionas nowput forwardby
Denmarkand the Netherlandsinvertsthe truc order of things in pointof time
and that, so far from an equidistancerule having been generated by an
antccedentprincipleof proximityinherent in the wholeconceptof continental
shelf appurtenance, thelatter is rather a rationalizationof the former-an
posffactoconstructdirectedto providiaglogicaljuristic basisfora methodof
delimitati.no.undedlare-.v fordifferentreasons.car-.eraohicaland other.
Givenalso that for the reasonsalready set out (paragr40-46)the theory
cannot be said to bcendowed withany quality of logicalnecessityeither, the
Court isunableto accept it".[lm1 COUNTER-MEMORIALOFTHEUNITEDSTATES 87

Sea Continental SheU cases denying proximity, or equidistance,any
required or preferred status in delimitation of continental shelf areas.

202. The Arbitral Tribunal in the Anglo-French Arbitration distin-

guished the question of coastal-State rights in the continental shelf based
upon the principleof natural prolongation from "the problemof delimita-
tion "'.The Tribunal held that "the value tobe attached to proximity asa
method of delimitation depends on the individual circumstances of that
case '".

203. Although the International Court of Justice in the TunisiaILibya

case placed lessreliance on the physical aspectsof natural prolongation
than the Court in the North Sea Continenlal SheUcases, it recognizedthe
continuing relevanceof the principlesof natural prolongationand nonen-
croachment as the basis for title to, or jurisdiction over, the continental
shelf '.The Court did not look to proximity. Rather, it stressed the
principlethat the land dominatesthe sea, Le.,the principlethat the status
of suhmerged areas should reflect the relationship between coastsand the
maritime areas in front of those coasts. Citing with approvalthe passage
in the North Sea Continental SheUcases rejecting proximity,the Court

also distinguishedthe question of title to the continental shelf from that of
delimitation '.The Court specificallyaffirmed the decision in the North
Sea Continental SheU cases, holding that equidistance is not "either a
mandatory legal principle, or a method havingsome privilegedstatus in
relation toother methods" of delimitation '.

204. Thus, the cases are consistent in their repeated and unequivocal

rejection of any specialstatus for the equidistance method.

205. Canada also seeks to elevate the equidistance method to some
legallyrequired or preferred methodof delimitation based uponthe recent
establishment of the 200-nautical-mile zones in international law. The

200-nautical-miledistance criterion, however,is a descriptionof the outer
limit of the jurisdiction that may be exercised by a coastal State over

Decisiom,p. 52,para.79.
Decisiom,p. 53,para.81.
'I.C.J.Reports 1982,p. 61,paras.73 and74.
'I.C.J.Reports 1982,pp. 46-47,para.44.

'I.C.J.Reports 1982, pp. 78-79.paras.109-110.11421 COUNTER-MEMOW OF THE U ~ D STATES 89

States that did not '. The membership of these groups cut across both
regional groups and groups of developed and developing countries. Those
States favoring equidistance preferred a text implying that equidistance

was the basic rule of delimitation. An early proposal by Canada and
others that favored the use of equidistance, in the absence of special
circumstances, provided:
"The delimitation of the Exclusive Economic Zone between

adjacent and opposite States shall be effected by agreement
employing, as a general rule, the median or equidistance line,
taking into account special circumstances, where justified, in
order to reach an equitable result'."

208. The Conference rejected this and similar proposals to afford
equidistance a special status. In order to negate the inference of any
special status for "equidistance", proposals were made to join the
provision calling for the use of the equidistance method with a provision
calling for the application of "equitable principles". For example, Article
61 of the Single Negotiating Text provided:

"1. The delimitation of the exclusive economic zone between
adjacent or opposite States shall be effected by agreement in
accordance with equitable principles, employing, where appro-
priate, the median or equidistance line, and taking account of al1

the relevant circumstances '."
209. This proposal, which was retained in subsequent drafts through
the revised Informa1 CompositeNegotiating Text of 28 April 1979 ',was
examined and discussed at length by Negotiating Group 7. It ultimately

'The States not favoringthe equidistancemethodwereknownas the "Groupof
29". The nameof thegraupevolved€romthe followingStatessponsoringan early
proposalemphasizingequitable principles: Algeria, Bangladesh,enin,Burundi,
Congo,France. Iraq,Ireland,IvoryCoast,Kenya,Liberia. LibyanArabJamahir-
iya, Madagascar, Maldives, Mali, Mauritania, Morocco.Nicaragua, Nigeria,
Pakistan,PapuaNew Guinea, Poland, RomaniaS ,enegal,SyrianArab Republic,
SomalianDemocraticRcpublic,Turkey, Venezuelaa ,ndVietNam.That proposal
providcd:
"1. The delimitationof the ExclusiveEwnomic Zone (or Continental
ShelQbetween adjacent orland oppositeStates shall be effccted by
agreement,inaccordancewithequitable principlestakingintoacwunt al1
relevant circumstances anemployinganymethods,whcrcappropriate,ta
leadto an equitablesolution."(NG 7/10.)
'AmendmentIo paragraph 1of Article 62,Informa1Single Negotiating TextII;
informalproposalbyCanada,April, 1976.
'U.N. Doc.A/CONF. 62/WP. 8/Part II.
'Article 74 (l), Informal Composite NegotiatingText/Revision 1. U.N. Doc.
A/CONF. 62/WP. 10/Rev. 1.90 GULF OF MAINE 11431

was rejected, however,primarily by the States seekinga specialstatus for
the equidistance method.Judge Manner, Chairman of Negotiating Group
7, summarized the work ofthe Group, as follows:

" During the negotiations no agreement could bereached on
any proposed text concerning the criteria to be applied in the
delimitation of the exclusive economic zoneor the continental

shelf. This conclusionalso appliesto the respective formulation
of articles 74 and 83 in the revisedinformal compositenegotiat-
ing text. While the provision in the negotiating text has been
supported by, or at least indicated to prove satisfactory to, a
number of States, it has been describedas quite unacceptable by
the members of the group supportingthe median line approach.
Becauseof this firm refusal by a notable part of the members of

the group to adopt the present formulation of paragrapb 1 of
articles 74 and 83 it is clear that it cannot be considereda text
which wuld provideconsensuson the issue '."

As a result, the Chairman of the Group suggestedthe followingtext:
"Article 83

1. The delimitation of the continental shelf betweenStates with
oppositeor adjacent coasts shall be effected by agreement in
conformity with international law. Such an agreement shall
be in accordance with equitable principles, employing the

median or equidistance line, where appropriate, and taking
account of al1 circumstances prevailing in the area
concerned '."

This formula, however,also was rejected, primarily by the group opposed
to a special status for equidistance. As the spokesman for that group
stated:

"... on a question which affected vital bilateral interests of
States, the convention must realisticallygive expression to the
current state of international law without changing it.. .. The
text must accurately state current international law... '."

210. Thus, a consensus not having been achieved on any formulation
having referenceto the equidistance method,the ConferencePresident, in

'ThirdUnitedNationsConferenceonthe Lawofthe Sea, Wcial Records, Vol.
XIII,24Mar. 1980, pp.76-77.U.N. Doc. AJCONF.62JL.47.
Ibid.p.78.
Ibid..pp.14-15 (2 Apr. 1980S, tatementofAmbassadorHayes oflrelandtothe
126th plenarymeeting).Il441 COUNTER-MEMORIALOF THE UNITED STATES 91

August, 1981, offered a new proposal, that was ultimately adopted, as
follows:
Article 83

"1. The delimitation of the continental shelf between States
with opposite or adjacent coasts shall be effected by
agreement on the basisof international law,as referred to
in Article 38 of the Statute of the International Court of
Justice, in order to achievean equitable solu'."n

211. The rule established under Article 83 (and also under Article 74)
of the United Nations Conventionon the Law of the Sea providesthat the
States concerned are to arrive at an agreement based upon international
law, subject onlyto the qualification that the delimitation should achieve
an equitable solution.The application of equitable principles, as Canada
acknowledges, is implicitin an equitable solution.

212. No mention is made in the aforementionedarticles relating to the
delimitation either of the continental shelf or of the exclusive economic
zone of any method to be used in delimitation. This point is particularly
relevant with reference to the equidistance method, in view of the
repeated efforts throughout the Conferenceand in Negotiating Group 7 to
endow that method with a special status. The Convention was adopted
only after a text had beenapproved in which no mention was made of
equidistance or any other particular method of delimitation. In the final
text of the Convention, referenceis made to international lawas the basis
for agreement of the States concerned. States remain free, however, to
choose any method, without preferences or priorities, as long as an

"equitable solution" is achieved. As the International Court of Justice
concludedin relation to a draft of this provision TunisiaILi caya:
"... the history of Article 83 of thedraft conventiononthe Law
of the Sea, leads to the conclusion that equidistance may be

applied if it leads to an equitable solution;if not, other methods
shouldbe employed"'.
213. In its Memorial, canada seeks to have this Court do what the
Court and the Third United Nations Conference on the Law of the Sea
refused to do, Le., to transform equidistance from oneof a numher of
methods of delimitation intoa preferred method.

D. STATEPRACTICE Arno REJECTSEQUIDISTANC AES THE LEGALLY
REQUIRED OR PREFERREM DETHOD OF DELIMITATION

214. Canada asserts that "a careful analysis of general international
practice in the conclusionof delimitation agreements beyondthe territori-
al sea" demonstrates that "the equidistance methodproducesan equitable

'U.N. Doc.A/CONF.62/WP. 11.27 Aug. 1981.
'I.C.J.Reports 1982p.79,para.109.92 GW OFMAINE 11451

result in the majority of cases'". In support of this, Canada claims that
"of 94 known maritime boundaries settled by agreement, 66 of them-
almost 71%of the total-utilize the equidistance principle or a modifica-
tion thereof foral1or part of the boundary '".

215. Contrary-to Canada's arguments, international practice does not
support the conclusion that ."the equidistance method produces an
equitableresult in the majority of cases". Most boundariesin force are not
equidistant lines or simplified equidistant lines'. They employ other
methods of delimitation in whole or in part, or modify the equidistance
method in some respect to create an equitable solution. Moreover, the
practice of States in similar geographical situations contradicts Canada's
implied conclusion that application of the equidistance method would
produce an equitable result in the Gulf of Maine area.
216. The United Stateshas examined the lists of boundaries contained
in the Appendix tothe Canadian Memorial. The lists are reproduced, with
comments by the United States, at Annex 8. Canada's first list identifies
boundary agreements that use equidistance for "al1 or part of the

boundary". This list, however, includes many agreements pertaining to
boundaries that deviate substantially from the equidistant line. Notable
among these are the continental shelf boundaries between the Federal
Republic of Germany and Denmark in the North Sea, between the
Federal Republic of Germany and the Netherlands in the North Sea, and
that between France and Spain in the Bay of Biscay.
217. A close examination reveals that only a minority of the boundaries
in force-37 per cent-are based exclusively upon a strict application of
the equidistance method: of the 81 boundaries known tobe in force as of 1
May 1983,only 30 use equidistant tines throughout the entire boundary '.
Moreover, most maritime boundaries have not been delimited.

'CanadianMemorial, para. 362.
'A simplifiedequidistant lineis an equidistant lineon which the number of
turningpoints has beenreduced.
'Annex 8, Vol.IV,Chapter II, lists boundariesaccordingto theiruseor non-use
of equidistantlines. It shows tha25 boundaries in force do not incorporate
equidistantlines;26boundariesinforceincorporate equidistanltinesonlyinpart;
and 30 boundariesin forceare simplifiedequidistantlinesor entirely equidistant
lines. For purpasesof these statistics, each boundaryis countedonce, whether
establishedby one agreement or several.Canada'sstatistin, on the contrary,
counteach agreement separately, whether onrotseveralagreements mightapply
to theameboundary.Thus,forexample,the continentalshelfboundarybetween
the Federal RepublicofGermanyandthe Netherlandsin the North Seahasbeen
countedonce by the UnitedStates and twiceby Canada.The Canadianfigures
also include 13 agreementsthat have been signed butnot ratified. The United
Statesanalysisincludesonlyagreementsthat are in force. Ifal1agreementsare
countcd,whetheror notsuchaireements haveentcredintoforce.arcanada does.
thereare94 buundariesbeyondthc territorialseafor whichagreementshavebccn
signed,of which 35 apply the equidistancemethod strictly or use simplified
equidistance forthentireboundary.SeeAnnex 8,Vol.IV.[1461 COUNTER-MEMORIAL OFTHE UNITEDSTAIZS 93

Agreements are in force respecting less than 25 per cent of the potential
maritime boundaries. Thus, States haveagreed on the strict applicationof
the equidistant method in less than eight per cent of the maritime
boundary situations.

218. The majority of boundaries in force-63 per cent-are not
equidistant lines or simplified equidistant lines. They employ other
methods of delimitation in whole or in part, or modify the equidistance
method in some respect inorder to create an equitable solution.

219. A mere recitation of the boundaries that do or do not use
equidistant lines is too simplistic an analysis to assist the Court in
determining the method of delimitation to apply in a particular case. The
law requires that a single maritime boundary be delimited in accordance
with equitable principles,taking acwunt of the relevant circumstances, to
produce an equitable solution. lnasmuch as the circumstances of each
boundary situation are unique, a method of delimitation that is equitable
in one case may notproducean equitablesolutionin another case. For this

reason, the Court in the Tunisia/Libyacase stated that "there is no single
obligatory method of delimitation '",and that:

"Any examination of methods, likethe examination of applica-
ble rules and principles, must take as starting-point the particu-
lar.geographical situation, and especiallythe extent and features
of the area found to be relevant to the delimitation '."

Thus, an analysis of State practice in maritime boundary delimitation
must take into account the relevant facts or circumstances of each
situation.

220. As the Court alsoobsewed in the TunisiaILibyacase, the practice
of States in maritime boundary delimitation has been to apply the
equidistance method only in those circumstances where it leads toan
equitable result: ,

"The Court held.in the North 'Sea ConfinenialSheU cases,
which also wncerned adjacent States, that the equidistance
method of delimitation of the continental shelf is not prescribed
by a mandatory rule of customary law (I.C.J.Reports 1969. p.
46, para. 83; p. 53, para. 101).On the other hand it emphasized
the merits of this rule in cases in which its application leads to

'I.C.J.Reporfs 1982. pp. 79-80,para. LI1.
'Ibid..p.82, para.114.94 GULFOF MAINE 11471

an equitable solution. ~he subsequent practice of States, as is
apparent from treaties on wntinental shelf boundaries, shows
that the equidistance method has been employed ina number of

cases. But it also shows that States may deviate from an
equidistance line,and have made use of other criteria for the
delimitation, wheneverthey found this a better way to arrive at
an agreement. One solution may be a combination of an
equidistance linein some parts of the area with a line of some
other kind in other parts, as dictated by the relevant circum-
stances. Examples of thi kind are provided by the 1977
arbitration on the Delimitation of the Continental Shelf between
France and the United Kingdom, and by the Convention
between France and Spain on the Delimitation of the Continen-
tal Shelvesof the two States in the Bay of Biscayof 29 January
1974 '."

221. The practice of the United States and Canada alsohas been to use
equidistanceonlyin circumstances whereit producesan equitable result '.
As stated in the United States Memorial:
"The equidistance method can, in appropriate circumstances,

produce equitable results. The United States has used equidis-
tance as a method to define certain of its maritime boundaries
with neighboring States. This occurred in cases where the
United States and the other State concerned agreed that
equidistance produced an equitable solution in the relevant
geographical andother circumstances of that case. Canada also
has used equidistance in certain of its maritime boundary
situations. In other cases, namelythe pending delimitation with
France concerning St. Pierre and Miquelon, and the proposed
boundaries with Alaska, Canada has been a proponent of
different methodologies >."

222. Those boundaries that are based upon a strict application of the
equidistance method haveinvolved areas that geographically are unlike
the Gulf of Maine area, wherethe land boundary betweenadjacent States
meets the sea in the far corner of a large coastal wncavity. In additiin,
mostof the areas where the equidistance methodhas beenstrictly applied,
the States are geographically opposite and there are no unusual features
or special circumstances. Since the circumstances in this case differ
substantially from those in other cases, it follows that equidistant

'I.C.JReporrs 1982,pp. 78-79,para.109.
'Canada'sdiscussionof Statc practicemakesrefercnceto offshoreboundary
dclimitationsctweenindividualstateswithintheUnitedStatesundertheCoastal
EnergyImpactProgram(CEIP).CanadianMemorial,para. 361,n. 77.Thesearc
discussedinAnnex 9,Vol. IV,inordertocorrectmisunderstandingc sonvcyedby
theCanadianMemorial.
'UnitedStatesMemorial,para. 269.i1481 COUNTER-MEMORIALOF THE UNITEDSTATES 95

boundariesdonot providea precedent foran equitablesolutionin the Gulf
of Maine area.
223. Although it is difficult to derive generalizations about State

practice in dissimilarareas, an analysisofState practice in geographically
similar situations may yield insights into the method that the Court
should apply in this case. Since the coastal configuration of the Gulf of
Maine area is so irregular, there are few boundary agreements that
involveareas that are gwgraphically analogous. Three such agreements,
which delimit the continental shelvesin the North Sea and in the Bay of
Biscay,are examined in Part III of this Memorial.

224. Canada's attempt to attribute special status to the equidistance
method iscontrary to the basic equitableprinciplethat the boundary must
respectthe relationshipbetweenthe coastsofthe Parties and the maritime
areas in front of those coasts. The equidistance method, because it makes
distance from the nearest coastal points the soledetermining factor, often
gives disproportionate effectto slight coastal irregularities, and fails to
take acwunt of the broad geographical relationship of the land and the

sea. The Court, in the North Sea Continental SheUcases, recognizedthis
tendency of the equidistance method to produce an inequitable result in
situations where the coastline is irregular, particularly in the case of
concave coastlines, as well as the tendency of an equidistant line to
becomemore inequitableas it is extendedseaward '.The Court therefore
concludedthat the use of the equidistancemethod wasnot obligatory,and
that the boundary must be delimited in accordance with equitable

principles'.The Arbitral Tribunal in the Anglo-FrenchArbitration, after
expressing agreement with the Court's conclusions in the North Sea
Continental SheU cases3, delimited the boundary, not according to
proximity, but in a manner that respected the basic relationship of the
land and the sea'. Finally, in the TunisiafLibya case. the

'I.C.J.Reports 1969, p.49,para.89.
I.C.J. Reports 1969.pp. 53-54,para. IO1 [dispositif.]

'Decisionsp. p.53and55,paras.82and 86.
'The Tribunal's concernfor the broadgcographicalrelationshipisevidentin its
remarks that the presenccof the Channel Islands in the EnglishChannel
"...disturbsthe balanceof the geographicalcircumstanceswhich woulo dther-
wiseexistbctwccnthePartiesinthisregionasa resultofthebroadequalityofthe
coastlinesoftheirmainlands".andthat.inthe Atlanticregion.".. .the twoStates
abut on the samecontinentalshelf withwasts not markcdlydifferentin extent
and broadly similarintheir relationto that shel.".Decisionsp. . 89,para. 183
and p. 114,para.244.96 GULFOF MAINE [149-1501

Court confirmed that the "geographic correlation between coast and
submerged areas off the coast is the basis of the coastal State's legal
title'",and that equidistance isnot "either a mandatory legal principle, or
a method having someprivileged status in relation to other methods '".
The survey of the practice of States in maritime boundary delimitation
confirmsthe conclusionof the Court that "equidistance may be applied if
it leads to an equitable solution", and, if not, "other methods shouldbe

employed '". In short, proximity, or equidistance, is only a method of
delimitation, usefulonly in those situations where it would be consistent
with the basic principle that the boundary must respectthe relationship
betweenthe coasts of the Parties and the maritime areas in front of those
coasts.

'I.C.J.Reports 1982,p. 61,para. 73.
I.C.J.Reports 1982.p. 79,para. 110.
'I.C.J. Reports 1982.pp.78-79,para. 109. CHAPTERIII
UNRATIFIED,REJECïED TREATIESDO NOT CREATELEGAL

OBLIGATIONS OR RIGHTSAND UNDERINTERNATIONAL LAW
CANNOTBE INVOKED TOTHE PREJUDICE OFA NEGOTIATING
STATE

225. Canada argues that the 1979 east Coast fisheries agreement,
which was not ratified and which was rejected by the United States
because of its inequitable character, "sheds considerable light upon the
equities of delimitation in this case More specifically, Canada asserts
that the 1979agreement:

Scan ...be taken into account as evidence of Canada's status as
a coastal state in relation. to Georges Bank, of Canada's
established share in the Georges Bank fishery, and of the

fundamental justice of a maritime boundary that will maintain
this Canadian presence on the Bank'".
226. The United States submits that an agreement that was subject to

ratification, but that was not ratified, does not create legaiobligations or
rights and cannot be invoked to the prejudice of a State that had
negotiated and signed such an agreement.

227. Under customary international law, an unratified agreement gives
rise to no international rightsor duties. As LMcNair states in hisLaw
ofTreaties:

"At any rate during the past century and a half there has been
no legal duty upon a State to ratify a treaty signed by its
representatives, unless, as sometimes happens, it may have
contracted by treaty to sign and ratify any particular treaty or
class of treaty which may be submitted to .. . Nor is there a

moral obligation to ratify a treaty; for, as we have already
indicated, thentemal between signature and ratification has a
definite purpose and usefulness. Basdevant describes ratification
asun acte libre1".

'CanadianMemorial,para. 261.
'CanadianMernorial.para. 276.
'McNair,Law alTrearies,l961p.135,quotingBasdevantat 15Hague Recueil
des Cours(1926).at587.98 GULFOF WNE Il521

228. The negotiation and conclusion of a document subject to subse-

quent ratification permit constitutional decisionmakers an opportunity to
evaluate the instrument to determine whether it is in the hest interests of
the state. Such a process is a common practice in international Law.It is
recognized expressly in the Vienna Convention on the Law of Treaties ',

which, while not directly applicable here, reflects customary law on this
question.

229. As Canada indicated in its Memorial, the 1979 agreement was
negotiated in an attempt to facilitate settlement of the dispute hetween
the Parties over the location of the single maritime boundary in the Gulf
of Maine area ',and provided that it would not enter into force until the

ratifications of the Parties were exchanged '. Canada concedes that the
instrument was never ratified ' and has never entered into force '. In this
regard, Canada apparentlyagrees with the United States that the rejected
and unratified 1979 agreement cannot create legal obligations or rights.
As Canada States: "[nbn-ratification of the agreement means that the

consequences of the boundary decision could now be more sweeping and
immediate in their impact 6." Canada also concedes that the failed
agreement "cannot be resurrected '."

'The Conventionon the Law of Treaties, U.N. Doc.A/CONF. 39/27, 23 May
1969,Articles13-14.The Convention alsoprovidesthat the signingof a treaty by

the representative ofa State is not sufficient tobind that State in the absenceof
an expressagreement ormutual understanding tothe contrary. Art. 12.
'Canadian Memorial, paras.246-259and 330-339.
'Agreement between the Governmentof Canada and the Government of the
United States of America on East Coast Fishery Resources, Washington,29

March 1979.Article XXV, Canadian Memorial,Annex 20, Vol.1,pp. 290-291.
Article XXV provided: "This Agreement shall be subject to ratification in
accordance with the domestic requirements of the Parties and shall enter into
force on the date instruments of ratification.. are exchanged". Canada well
understoodthat the United States Constitutionrequiresthe adviceand consentof
the UnitedStates Senate beforea treaty can he ratified.
'Canadian Memorial, para. 257.The President of the United States promptly
submittedthe instrument tothe ratificationprocessesof the United States. When

it became obviousthat the required advice and consent of the United States
Senate could not be obtained, the President withdrew the instrument from the
ratification process,and notified the Canadian governmentof the failure of that
particular effort toresolvethe disputehetweenthe IwoStates. In this instance,the
constitutional decisionmakerofthe UnitedStates determinedthat the instrument
was unbalanced and would have yielded unwarranted concessionsto Canada.
SeePart III,Chapter III,Section5.

'Canadian Memorial,para. 261.
Canadian Memorial,para. 262.
'Canadian Memorial,para. 276.[1531 COUNTER-MEMORIALOF THE UNITEDSTATES 99

230. Canada, nonetheless, asserts that the terms and wnditions of that
rejected and unratified agreement are relevant tothe determination of the
single maritime boundary in the Gulf of Maine area '.Should Canada's
position be accepted by the Court, it would render disputes infinitely more

resistant to solution.
231. A fundamental requirement of international order is that States
must resolvetheir disputes by peaceful means. As Article 2 of the Charter

of the United Nations provides:
"All members shall settle their international disputes by peace-
ful means in such a manner that international peace and
security, and justice, are not endangered '."

In a legal order lacking universal, wmpulsory, and binding mechanisms
for the third-party resolution of disputes, negotiation necessarily must be
the principal means by which States seek to settle their differences. Any

acceptance of the termsand conditions of the rejected and unratified 1979
agreement in this case effectively would undermine the significance of
parliamentary reviewand ratification, and would impede substantially the
resolution of disputes by negotiation. States careful to safeguard their
rights would, in many cases, he discouraged even from seeking a
negotiated resolution of any dispute '.

232. The Court consistently has recognized the need to avoid erecting
barriers to the negotiated settlement of international disputes, as wntem-
plated by Article 2 of the Charter of the United Nations. In this regard,
the Court has ensured that no State's rights are prejudiced by the good-
faith pursuit of a negotiated solution.

233. Thus, the Court has refused to receive or to wnsider evidence of
proposais that were made in the course of settlement negotiations. but that

'CanadianMemorial,.paras.261and 276. As demonstratedin Part III,Chapter
III, Section5.irrespectiveof whetherthe failed 1979agreementis regarded as
havingsomelegaleffect,the terms andwnditionsof the failed agreementdo not
supportCanada'scontentions.
'Article2(3)of the Charter ofthe United Nations.
'Notonlywasthe agreement signedwithan expressprovisionforratification.but
the negotiations leading to that instrumenw t ere subjcct to the same ad
referendum limitation.Statementsmade or positionstaken in the murse of the
negotiationof sucha rejcctedand unratified agreemens thouldbcinadmissiblein
thisproceeding,dcspitcCanada'sunwarranted effortsinits Memorial tousesuch
negotiationstothe prejudiceofthe UnitedStates.CanadianMemorial. para.323.
Evcnif the instmmcnthad ken ratified,the negotiating historywouldhavcbeen
admissibleonly forvcrylimitedpurposcs.Conventiononthe LawofTrcaties,Art.
32. It follows.oforiiori. that any informationthat wuld no1properlybc usedto
interpreta ratifiai agreement cannotbe usedwithrespectto an agreementthat
has ken rejected.100 GULF OF MAINE il541

subsequently were rejected. As the Permanent Court of International
Justice in theChorzbwFactory case ObSewed:

"[The Court] cannot take account of declarations, admissionsor
proposais which the Parties may have made in the course of
direct negotiations which have taken place between them,
declarations which,moreover,havebeenmade without prejudice
in the eventof the points under discussion formingthe subject of
judicial proceedings. For the negotiations in question have not,
as acknowledgedby the representativw before the Court of the
Parties themselves, ledto an agreement betweenthem '".

Similarly, in the case of thDiversion d Waterfrom theRiver Meuse:
the Court declined to consider, or even to accept in evidence, drafts
resulting fromultimately unsuccessful negotiations.It is noteworthythat
the principlethat courts should not consider settlement offers as evidence
of the validityof claims has beenccepted by the legal systemsboth of the
United States ' and of Canada '.

234. Decisionsof this Court have repercussionsextending far beyond
the parties to a particular dispute. Acceptanceof Canada's position that
the purported terms of a negotiatedbut unratified agreement may be used
to prejudice the rights of a negotiating Stateis incompatible with the
fundamental purpose of this Court, as well as contrary to a clear line of
precedent and authority.

'Case concerningthe Factory a%Chorzbw, (Claimfor Indemnity)(Jurisdiction),
P.C.I.J.Scr.A, No.8. 1927.D.19.
'P.C.I.J.Ser.A/B, No 70, 1937,p.4.
'In the United States, an offer to compromisea claim is not admissiblein
evidcnccas anadmissionof the validityor invalidityofthe claim.Fed.Rulesof
Evid.408. 28U.S.C.A.Thcrcare twonenerallvreconnizedrasons forthe nile.
First,'~t$enidenceisirrelevant,sinceFheoffe;maybcmotivatedbya desirefor
ma rather than fromanyconcessionof wakness of wsition".Second.public
blicy favorsthe compro&seand settlementof disputes.Notes of ~dvisory
CommittffionProposedRules, 28 U.S.C.A..Rule 408, p.163.Annex 30,Vol.V.
'Canadianlaworondesfor theexclusionof offen of com~romiseC . ommunica-
tionsmade "withoutprejudicc"in furthcranceoftheseitlementofa disputernay
not bcintroducedinio evidence.H. Glasbcck. Evidence-Casesand Maicrials.
1977,p.299. Annex 31,Vol.V. CHAPTER IV

CANADAFAILS TO ADDRESS AU OF THE FUNDAMENTAL
REQUIREMENTS OFTHEDOCTRINES OFACQUIESCENCE AND
ESTOPPELAND FAILS TO SATISN THOSE REQUIREMENTS
THAT IT DOESADDRESS

235. Canada contends that the United States, by its alleged conduct
with regard to oil and gas exploration permits issued by Canada in the
mid-1960s. has acquiesced in the use of the equidistance method for
delimiting the maritime boundary in the Gulf of Maine area 'Canada
also wntends that it relied to its detriment upon that alleged wnduct of
the United States, and that, as a result, the United States is estopped from
objecting to such a boundary '.The United States suhmits that the
Canadian Memorial fails to address essential aspects of the doctrines of
acquiescenceand estoppel,while also failing to satisfyeaspects that it
does address'.

236. The United States accepts the Canadian definition of
acquiescence:

"... tacit acceptance of a certain legal positionas a result of a
failure to make a reservation of rights at the appropriate
juncture "'.

Canada does not discuss fully, however,either thc notoriety of conduct
thatis required to establish that a claim has been asserted, or the clarity
of conduct that is required to establish that there has been an acceptance
of such a claim. Canada also omits a thorough discussionof the authority
that is required of an individual beforethe conduct of that individualcan
be deemed to bind a State. Finally, the Canadian Memorial does not
adequately wnsider the duration of wnduct or the detrimental reliance
that is required. As the United States demonstrates in the application of
the law to the facts in Part III, Chapter 1,of this Counter-Memorial, the
conduct of Canada and of the United States with regard to Canadian oil
and gas permits rclating to Georges Bank from 1965 to 1969fails to
satisfy any of the requirements for the application of the doctrines of
acquiescenceand estoppel, bothas a matter of fact and as a matter of law.

'CanadianMemorial,para.428(h).See akoparas.387 and427.
'CanadianMernorial,para.419.

'See Part1Chapter VII,fora discussiofthe factsrelatingtotheUnitedStates
conductinresponsctothoseCanadianpermits.
'CanadianMernorial,para.414.Seealsopara.412.102 GULF OF MAINE 11561

SECTION 1.The Doctrines of Acquiescenceand EstoppelRequire Clear
and UnambiguousConduct, Not Only By the State Asserting the Doc-
trines, But AlsoBy the State Against Which the Assertionis Made

237. The conduct of the State asserting a right or claim and the State
opposingsuch a right or claimare bath critical to the establishment of ac-
quiescence and estoppel. There is inherent in the doctrines the dual
requirement that a claim must have been made and accepted. In the

absence of an unequivocalclaim, a State is under no obligation either to
giveor to withholdits consent.Similarly, in the absenceof an unequivocal
acceptance, a claim is no more than a unilateral act having no legal
consequence.As the Court stated in the TunisialLibya case:

".. .an attempt by a unilateral act to establish international
maritime boundary lines regardlessof the legal positionof other
States is contrary to recognized principles of international
law .. ."'.

238. In accordance with the doctrines of acquiescenceand estoppel,the
claim must be made in a manner, and in such circumstances, that the
other State has heen placed on notice of that claim. The conduct that
allegedly constitutes acquiescence in, or tacit acceptance of that claim
likewisemust he clear and unequivocal. Moreover,the satisfaction of this
dual requirement is not to be inferred lightly. As one commentator has
stated:

"Perhaps the safeguard most necessary to a realistic and
acceptable application of the doctrine of acquiescencelies inthe
demand that it be interpreted strictly. The purpose of insisting
on circumspection in inferring the consent of a State from its

inaction is to ensure that such acquiescence correspondsaccu-
rately with the implied intentionof the acquiescingState, and to
limit the benefits of acquiescence to claims which have been
formulated in such a way that the acquiescing State has or
ought to have knowledgeof them '."

Thus, a State seeking to rely upon the doctrines of acquiescence and
estoppel must demonstrate that bath the assertion of the claim and the
purported tacit acceptance of that claim are unassailable.

'I.C.J. Reports 1982.p.66,para. 87.
' 1.MacGibbon,"The Swpe of Acquiescencein InternationalLaw", in British
Yearbook of International Law, Vol. 31, 1954, pp. 143, 168-169.Professor
Bowctt,in hisstudy"EstoppelbcforeInternational Tribunalasndits Relationto
Acquiescence"d .eclaresthattheleadingcasesonestoppelillustrate"theprinciple
that anestoppelcanonlyrestupona statementwhichinitsmeaningisclearand
unambiguous ...".British Yearbookoflnternational Law.Vol.33, 1957 ,p. 176,
188.11571 COUNTER-MEMORIALOFTHE UNITEDSTATES 103
239. This twofold requirement is supported by the decisions of the
International Court of Justice in theAnglo-Nonuegian Fisheries case and

in the Temple afPreah Vihear case, bothofwhichCanada cites in its Me-
morial. In its discussionof those cases, Canada refers to the conduct that
was held to hiive constituted tacit acceptance of a claim. Canada fails,
however, to discuss the conduct that was found in those cases to have
constituted assertion of a claim'.

240. In the Anglo-Norwegian Fisheries case', the United Kingdom
challenged Norway's useof straight baselines to delimit its exclusive
fishing zone. In upholding Norway, the Court found that the United
Kingdom long had been aware of Norway's systemand its implications
for Britishfishermen,but that it had failed to make a timely protest. The
Court stressed that Norway had established its baseline systemthrough
the promulgation of official decrees of the Norwegian Parliament, which
"clearly described" that system '.

241. In the Temple of Preah Vihear case', the Court found that the
failureofThai authorities to object to a map depicting aboundary linebe-
tween Thailand and Cambodia amounted toacquiescence onthe part of
Thai officials in the location of that boundary. Cambdia's claim in that
case was basedprincipally upon the depiction of the boundary line on a
map prepared jointlyby both States inconnection withthe conclusionof a
treaty delimiting that boundary. The map evidencedin graphic form the

extent of the Cambodian claims, and was provided directly to Thai
authorities responsible for boundary questions. The Court held that
Thailand not only accepted that map at the time of its preparation, but
subsequently failedto object to the map on numerous occasions whereit
reasonablycould have been expected to do so '.

CanadianMemorial.paras.414 and415.
'I.C.J.Reports 1951.p. 116.
'Ibid.,p.139; see alsMaffiibbon, op. cil.p. 169.

' Caseconcerningthe Temple qf Preah Vihear(Cambodiav. Thailand).Meriis.
Judgmeni4/15 lune 1962,I.C.J. Reports 1962, p.6.
'Themapinquestionhad beenprcparedbya Mixed Commission compris oefd
both Thai and French authoritics,without objection by the Thai members.
SubseauentlvT . haiofficialsfailcdtoorotestthe manonthe followineoccasions:
reccip;ofth; map in 1908bythel'ha;provinciag l overnorfortherelevantarea.a
1909 mcctingofa Commission ofTranscriotionmadc UP of rcoresentativfrom
bathStates; a 1930visittothe Templeby à Thaiprince.-aformerMinister of the
Interior,and who then,as the officialresponsible frationalmonuments,was
receivcdby French officialsa; 1934-1935surveyof the disputcdarea by Thai
authorities;ncgotiatioheldwith French authoritiesin 1925andin 1937foithe
purpose,interalia.ofconfirmingexistingborders;andmeetings of a Conciliation
Commissionin Washingtonin 1947 todiscuss boundariesand other matters.

(footnotconiinuedon nexipage)104 GULFOF MAINE ils81

242. The Island of Palmas Arbifrafion 'providesanother example of
the twofoldrequirement of acquiescencethatboth the assertion of a claim
and the alleged tacit acceptance of such claim must be clear and
unamhiguous. In that case, the arhitrator found that there had been an

"open and public" displayofauthority overthe islandhy the Netherlands,
and that no protest against that exercise of territorial rights occurred
throughout a period of over 200 years '.

SECTION 2. The Official Upon Whose Conduct Claimsof Acquiescence
and EstoppelareMade Must Have the Authority to Bindthe State

243. In its Memorial, Canada touches upon but does not review in
substance another requirement of the doctrines of acquiescence and
estoppel,namely,that the officia1whoseconduct is at issuemust have the
authority to hind the State. Canada asserts that, "[ih the context of
official correspondence, the presumption is that each official has the

appropriate authority and speaks for the government concerned .. .'".
There is nosuch presumption recognizedin international law. In order for
a State to be bound bythe representations of its officials, those officials
must have the requisite authority. While that authority may he either
express or implied, it cannot he presumed. As one commentator has
stated:

"It is, finally, clear that before a party can be bound by a
representation the representation must have heen made with its
authority, express or implied: in the absence of such authority
another party would not be entitled to rely upon the statement.

Where the authority is expresslygiven no real difficulty arises,
but in cases of implied authority it will be a question of
construction of the status of the person actually making the
representation and the sphere within which he purports to act
with authority: there is a notionof 'apparent'authority which it
would seeminternational tribunals willaccept '".

Lfootnofeconfinuedfrom thepreviouspage)

These latter meetingswere characterizedby the Court as"an outstanding
opportunityfor Thailand to claim a rectificationof the frontier.. .".I.C.J.
Reports 1962.p. 28.Oneother,morepositiveindicationofThaiintentionsrelied
uponbythe Courtwastheproductionin 1937ofanofficialThaimapthatshowed
theTempletobe locatedinCambodia.
'R. Int'l.Arb. Awards(United Nations Series),VolII,p.829.
Ibid.p.868.

'CanadianMemorial,para.418.
'Bowett,op. cit.p. 192.Il591 COUNTER-MEMORIALOFTHE UNITEDSTATES 105
244. Canada nonetheless contends that the Russian Indemnity case

and the Yukon Lumber case support its view that there exists in
international law a presumption that each official has the authority to
speak on behalf of his government '.Neither case supports the Canadian
view.

245. The Russian Indemnity case ' involveda dispute over the obliga-
tion of Turkey under an 1879 treaty to pay interest on war reparations
owed to Russia. The treaty provided that claims were to he paid by
Turkey after those claims had been examined and presented to the
Ottoman Government by the Russian Embassy in Constantinople. In its

initial demands for payment, the Russian Embassymade reference to the
obligationof Turkey to pay interest on any outstanding balance owingto
Russia. The Ottoman Government subsequently made a number of long-
delayed payments of principal alone. During this protracted period, the
Russian Embassy made repeated demands for payment, but only identi-
fied as the outstanding balance amounts that were quivalent to the
remaining principal. After Turkey had proffered a final paymentof
principal, the Russian Government renewed its demand for the payment

of interest. An arbitral tribunal was formed to decide the issue. Turkey
contended that, throughout some 10 years of correspondence,the Turkish
Governmentand the Russian Embassy hadinterpreted the term "balance
of the indemnity" to refer to the balance of principal alone. Turkey
claimed that the Russian Governmentwas boundby this understanding '.

246. The Tribunal held that Russia had renouncedits right to interest,
as:

''[the Imperial Russian Government can not ...validly recon-
sider one-sidedlyan interpretation accepted and practised in its
nameby itsEmbassy'".

The 1879 treaty providing for payment of war reparations expressly
authorized the Embassy to act on behalf of the Russian Government in
the presentation and payment of claims, and, as the Court noted, this
provision wasconfirmed by the ensuing practiceof the Parties under the
treaty '.The Russian Indemnity decision confirms the requirement that

officiaisupon whoseconduct a claim of acquiescence and estoppel rests
must have the necessaryauthority to bind the State.

'CanadianMemorial,para. 418 andn. 28.
'HagueCl. Rep. (Scott),1916,p. 297.
'Ibid.,pp.320-322.

'Ibid..P.323.
'Ibid.,p. 322.106 GULF OF MAINE (1601

247. Nor does the award of the British-American Arbitral Tribunal in
the Yukon Lumber case 'support Canada's assertion on this point. The
issue in that case was whether the British Government, acting on bebalf of

the Canadian Government, was estopped as the result of the conduct of its
Dominion Crown Timber and Land Agent in the Yukon Territory.
Although the Agent was a minor official who did not represent the British
Foreign Office, the Arbitral Tribunal found that be had been expressly
authorized to act with respect to the disposition of timber on behalf of the
United Kingdom. The Tribunal, therefore, found that the United King-
dom was bound by the Agent's failure to exercisehis responsihilities in the
bonafide purchase by the United States Government of timber cut in

trespass on Canadian territory. The duties and powers of the Agent were
defined in a British Order in Council as follows:
"It shall be the duty of the Crown Timber and Land Agent,

suhject to the authority of the Commissioner, to receive and
regulate al1 applicationsfor licenses and permits to cut timber
for lumbering purposes and for fuel, for the purchase of coal
lands, for the lease of lands for grazing purposes, and for hay
permits; also, subject to regulations to be provided in thathalf,
to receive and deal with applications for the purchase of land,
but no lease or sale of land shall take place except in accordance
with the regulations furnished from the Department '".

The Tribunal made no presumption on the suhject of authority, but
instead required explicit confirmation of specific authority to transact the
very affairs of the Statethat were in dispute.

248. These cases establish that where the purported acceptance of a
claim is made without legal authority, the objecting State is not bound.
The level and area of substantive responsibility of the official involved is
important in this regard '.As one commentator has written:

'R. Int'lArb.Awards(UnitedNationsSeries),Vol.VI, p. 17.
Ibid.,p.19.[Emphasisin original.]
'In the wntext of a dispute between the state of California and the federal
governmentof the United States conccrningoffshoreoil rights, the Supreme
Court of the United States disregardedstatementshy mid-lcvelfederalofficiais
that Californiaownedsuchrights, aswellas actionsbythe Departmentofthe In-
terior inconsistentwiththe federalclaim.Thc Court said"...officerswhohave
no authority at al1to disposeof Governmentpropertycannot by their conduct
causethe Governmentto loseits valuablenghts by their acquiesccnce,laches,or
failureto act". UnitedStates v. Californi332 U.S. 19,40 (1947).Similarly,in
an 1822 caseinvolvingthe location ofa boundarybetweenthe UnitedStates and
the British provincesin PassamaquoddyBay, a United States wurt rejected
evidenceof an undcrstandingbetweenBritish and Americancustomswllcctors
(Fontnotecontinuedonnext page)11611 COUNTER-MEMORIALOF THE UNITEDSTA~ 107
"[I]t seems clear that, at the lower official level, a single
statement in one diplomatic note will not be sufficient to bind a

state for the future '."
249. The case of the Legal Status qf Eastern Greenland] illustrates a

situation in which sufficient authority was found to establish a binding
obligation. In that case, the Norwegian Minister for Foreign Affairs
stated explicitly that "the Norwegian Government would not make any
difficulties in the settlement of [the Greenland] question". The Court held
that the statement constituted an obligation on the part of Norway to
refrain from wntesting Danish sovereignty over Greenland, declaring:

"The Court considers it beyond al1 dispute that a reply of this
nature given by the Minister for Foreign Affairs on behalf of his
Government in response to a request by the diplomatic represen-
tative of a foreign Power, in regard to a question falling within

his province, is binding upon the country to which the Minister
belongs '."
250. The Court based its conclusion upon the "unconditional and
definitive"' statement of the officia1directly responsible for the conduct

of Norway's foreign relations, made in response to an inquiry, equally
direct and explicit, made by Denmark at a similarly high diplomatic level.

251. The case of the Arbitral Award Made By the King ofSpain' is of
similar effect. There,Nicaragua was held to be bound by a 1906award by
the King of Spain in a territorial dispute between Nicaragua and
Honduras 6.This estoppel was raised by a series of statements made by
the President and Foreign Minister of Nicaragua, in which they explicitly
accepted the award as having resolved the dispute between the two States,
without expressing any doubts concerning its validity '.As in the Eastern

(Fwtnote continuedfrom thepreviouspage)

rcgarding the location ofthat boundary.TheFame, 8 Fed. Cas. 984. 986 (No.
4,634, 1822). In doingso,the Court said:"As to the lineagrecduponbythe col-
lectors,it cannotfora moment bc admittedas ofanyvalidity.Theywereno1pub-
licagentsintrustedwithsuch ncgotiations;and theiracts arc not to bc construcd
as indicetinsthe senseof cithergovcrnmcnt".Ibid.,p. 986.
'E. Luard, The International Regulation PTFrontier Disputes. 1970. p. 186.
Anncx32,Vol.V.
'P.C.I.J., SeriesA/B, No. 53. 1933,p. 22.
'Ibid.p. 71.

'Ibid..p. 72.
Case concerningtheArbitral AwardmadebytheKing4fSpain on 23 December
1906,I.C.J. Reports1960, P. 192.
Ibid.,p.217.
'I.C.J. Reports1960,pp.210-213.108 GULFOF MAINE Il621

Greenlandcase, the Court based its conclusion upon express, unambigu-
ous statements made by officiaiswho were responsible for the conduct of
the foreign relations of theState'.

SECTION 3. Acquiescence and Estoppel Require Passage of a

SubstantialPeriodof Time
252. Anotber requirement of the doctrines of acquiescence and estop
pel, and one essentially overlooked byCanada in its Memorial, pertainsto
the duration of time that must elapse. The commentators generally agree

that the amount of time necessary to establish acquiescence through a
purported absence of protest varies with the facts of a given case.
Piofessor MacGibbon states:
"... acquiescence is primarily dependent for its legal effect upon

the fact that it is necessarily conjoined with the passage of
time. . Y.
He also states that the requisite length of that passage:

"... will depend on the intensity with which the claim is
manifested; on the publicity surrounding its promulgation or
enforcement; on the nature of the right claimed; on the position
and condition of the territoryaffect&, and soon "'.

253. Similady, Professor Giuseppi Sperduti states that the type of
claim asserted is the primary circumstance to be weighed in evaluating

'TheCanadianMemorial,at para. 415, cites this caasanexampleofa decision
that is based upon the principleof acceptance or rewgnitionby wnduct. The
Canadian Memorialdoesnot discuss,however,the nature of the case and the
extraordinarycharacter of the conductat issue. Inresponseto a Honduranplea
that the Court declare a 1906 arbitral award valid and binding, Nicaragua
wntended, inrer alithat the awardwasa nullitybecauseof technicalirregular-
itiesin the appointmentof the Kingof Spainas solearbitrator. After findingno
meritinthepurported irregularitiest,he Court stated that,inviewofNicaragua's
agreementto the King'sappointmentand itsfailureto raiseanyobjectionduring
its full participationin the arbitral proceedings,it wuld not then question
technical irregularitiesin the appointment,evenif they had existed.With respect
to additional Nicaraguan challengesto the substanceof the award, the Court
notedthat, after thessuanceof the award,Nicaragua,through expressdeclara-
tionsand wnduct on the part of its President,ForeignMinister,and National
LegislativeAssembly,had recognizedthe award asvalid, and had raisedno
objectionto its substance.By such wnduct, the Court found Nicaragua to be
foreclosedfromchallengingthe award's validiandfrom raising beforthe Court
the objectionsit had raised to the substanceof the award. Moreover,the Court
foundNicaragua's substantive objections lxwithoutmerit.

MacGibbon, op.cir.p. 165.Il631 CUUNTER-MEMORIALOF THEUNITEDSTATES 109

the duration of an attitude of acquiescence'. In this regard, Professor
Sperdutiadds that the exerciseof a right that isitself to beoneof longdu-
ration, such as the right of territorial sovereignty,will normally requirea
much longer period than would a one-time violationof a subjectiveright,
such as an unlawful expropriation of property '.

254. There is also substantial agreement that acquiescencethrough an
absence of protest requires the passage of a substantial period of time. In
an oft-quoted passage, Oppenheim has described this requirementas
involving:

". .. such a period as is necessary to creafe under the ifluence
ofhistorical development thegeneralconvictionthat thepresent
condition ofthings is in codormity with international order "'.

Professor O' Connell suggests simply that acquiescencebased upon tacit
acceptance requires the passageof a longperiod of time '.

255. Nevertheless, Canada suggests that a failure to protest "evenin
the short run" is sufficientto establish acquiescence '.Canada apparently
professesto base ils view upon the Angldorwegian Fisheries case and
the Temple ofPreah Vihearcase, discussedahove.In fact, these and other
cases involvingtacit acceptance of territorial claims demonstrate that the
Canadian reliance is misplaced.

256. In the Anglo-Norwegian Fisheries case, the Court found that the
United Kingdom had acquiesced in Norway'sclaimto a straight-baseline
system onthe basis of a "prolonged abstention" from protest against the
clear and notorious Norwegian claims-specifically, an abstention that
had endured forover 60 years '. In the Temple ofPreuh Vihearcase, the

Court found that there had been aquiescence on the part of Thailand in
the boundary claimed by Carnbodia as a result of the repeated failure of
Thai officiaisto protest the Cambodian claim over a period of more than
50 years 6.Other cases in which aquiescence has been found involve
similarlyprotracted periodsof lime during which there was a failure by a
State to protest a claim or otherwiseto preserve its rights. For instance,
the Island of Palmas Arbitration involvedan exercise of sovereigntyby

'G. Sperduti,"Prescrizione, consuctudin eeacquiescenzain dirittointernazion-
ale". iRivistadi dirirroinrernazionale,961.[Unofficiatlranslation.]Annex33,
Vol. v.

'L. Oppenheim,I International Lmu (8th ed. Lauterpacht),1955, p. 576.
[Emphasisinoriginal.)
'D. O'Connell , InternationaLmu. 1970, pp.424-426.
'CanadianMcmorial.para. 414. [Emphasis inoriginal.]
'I.C.J.Reports1951. pp.138-139.
I.C.J.Reports1962. p. 29.110 GULF OF MAINE i1641

the Netherlands that was uncontested for a period of over 200years '.In
the Alaskan Boundary Dispute, Russia, and successively the United
States, occupied and governed the territory in dispute without protest or
objection for more than 60 years '.Finally, in the Minquiers and Ecrehos
case, also cited by Canada, the Court determined that certain acts by
France with respect to the islets in dispute, over the course of some 60
years, were not sufficient evidence of the intention of France to act as

sovereign over those islets'.
257. Inthese cases, involvingclaims to sovereignty over territory or to
jurisdiction over maritime areas, the lapse of time during which silence or
lack of protest was found to constitute acceptance was protracted,

sometimes 50 years, and often considerahly more. These cases suggest
that silence or lack of protest for a comparativelyshort time is insufficient
to establish acquiescence, because there may be explanations for such
silence other than acceptance of the claim. For example, a State may
consider it advisable to defer any protest in order to prepare for amicable
negotiations or other peaceful means of settlement. It would be contrary
to the furtherance of peaceful international relations to conclude from a
purported temporary silence that the drastic consequences of acquiescence

and estoppel should result.

SECTION 4. The Party Asserting Estoppel Must Have Suffered Detri-
ment Resulting From Reasonable Reiiance Upon the Pnrported
Acquiescence

258. Canada argues that estoppel "is an alter ego of acquiescence "',
with acquiescence itself operating as an estoppel against a later denial of
the acceptance of a claim. Canada also contends that estoppel, as "a
separate rule of law with precise criteria '", requires that the State

'R. Int'lArb. Awards(UnitedNationsSerics),Vol. II,p. 869.
Viewsofthe UnitedSrales Commissiononthe AlaskanBoundary.as dqjined by
the Trearyof1825.1898,pp. 16-17.

' TheMinquiersand Ecrehoscase.I.C.J. Reports1953,p. 47.
'CanadianMemorial,para. 420.[Empbasisinoriginal.]
'Canadian Mcmorial, para. 423. The discussionof estoppelin the Canadian
Memorial suggestsa sharpdistinctionbetweenthe doctrinesof acquiescenceand
estoppel,onethat doesnotappearin the cases. Indeed,as Canadaaclaiowledges,
the doctrineof estoppelin internafionallaw isstill a developing one.Canadian
Memorial,para.424.Acquicscenceisan essential elemeno tfestoppel,andthercis
a close relationshipbetween the two concepts.As Judge Alfaro stated in the
passagefrom the Templeof Preah Vihearcase quoted by Canada (Canadian
Memorial,para. 420,n. 29):"Theprinciple,no1infrequentlycalleda doctrine,bas
been referred to by the terms of,'estoppel','preclusion'. 'forclusi''.cquies-
cence'". I.C.J. Reports1962,p. 39.[165-1661 COUNTER-MEMOW OF THE UNITEDSTATES 111
seeking to invoke the doctrine must have relied upon the silence or

inaction of the other State, either to its owndetriment or to the advantage
of the other State '.
259. In the Temple of Preah Vihear case, upon which Canada relies,
Cambodia argued that Thailand had accepted the depiction on a map of
their boundary as claimed by Cambodia, and thus, in effect, that
Thailand was estopped from contesting Cambodia's sovereignty over the
area in dispute '.Both Thailand and Cambodia had long conducted their
mutual relations in accordance with the boundary claimedby Cambodia,

which was depicted on a map prepared jointly by the two States. The
Court ruled in favor of Cambodia, based in part upon the benefits that
Thailand was found to have receivedfrom a stable frontier for more than
50years under the terms of that map '.Thus, this case isan illustration of
detrimental reliance arisingas a result of someconcreteand long-standing
henefit accruing to the State against which acquiescenceand estoppelare
asserted.
260. Wheneverdetriment or benefit is alleged,it is recognizedthat any

finding must restupon the principleof goodfaith.
"There must be reliance in goodfaith upon the statement either
to the detriment of the party so relying on the statement or to
the advantage of the party making the statement '."

The State claiming estoppel, therefore, is not free to attach whatever
meaning itchoosesto the conduct of the other and toproceedaccordingly.
Its reliance must have been reasonable under the circumstances. A
determination of what constitutes reasonable reliance,as with the deter-
mination of whether a claim has been asserted and accepted, can only he
made with reference to al1relevant conduct of the Parties. The Interna-
tional Court of Justice in the North Sea Continental Shelfcases described
the conduct necessaryto invokean estoppelas follows:

"... past conduct, declarations, etc., which not onlyclearly and
consistently evinced acceptance of that régime, but also had
caused Denmark or the Netherlands, in reliance on such con-
duct, detrimentally to change position or suffer some
prejudice '".

261. As will be shown inPart III, the facts set forth in Part 1do not
satisfy the requirements of the doctrines of acquiescence and estoppel set
forth in this Part.

'CanadianMemorial,para. 423.
'I.C.J.Reports 1962,p. 11.
'Ibid..p. 32.
'Bowett,op.cil.,p. 202.
'I.C.J. Reports1969,p. 26,para. 30. PARTIII. APPLICATIONOFTHELAW

TO THEFACrS

INTRODUCïION

262. As set forth in Part II above, the Parties are agreed in principle
concerning the Fundamental Rule that the single maritime boundary
betweenthe United States and Canada in the Gulf of Mainearea must be
delimited in accordance with equitable principles, taking account of the
relevant circumstancesin the area, to produce an equitable solution.The
Parties disagree, however, with regard to both the principles that are
applicable, and the circumstances that are generally relevant, tosuch a
delimitation. In Part 1of this Counter-Memorial, the United States has

set forth the basis forits disagreement with Canada concerninga number
of facts, and has affirmed its assertion of certain facts not addressed by
Canada.
263. In Part III,the United States demonstrates that there is no merit

to Canada's assertion that the objectionof the United States to Canada's
"use of the equidistance method in the Gulf of Maine area and the
exercise of Canadian jurisdiction on Georges Bank '" is barred by the
doctrines of acquiescenceand estoppel.
264. The United States then identifies and discussesother areas where

Canada specifically misapplies the law to the facts. The United States
also affirms its positionthat, under a correct application of the law to the
facts, the maritime boundary proposed bythe United States produces an
equitable solution, whilethe Canadian line wouldnot.

-
'CanadianMcmorial,para. 428. CHAPTER 1

THE UNITED STATES IS NOT BARRED FROM CONTESTING
CANADIAN CLAIMS TO JURISDICïION OVER A PORTION OF
GEORGES BANK BY THE DOCTRINES OF ACQUIESCENCE AND

ESTOPPEL

265. Canada argues that, hy virtue of alleged conduct in regard to
continental shelf exploration permitsissued hy Canada in the mid-1960s.
the United States has aquiesced in "the use of the equidistance method
in the Gulf of Maine area and ihe exercise of Canadian jurisdiction on
Georges Bank '": Canada argues further that this alleged conduct has
created an estoppel in favor of Canada, the effect of which is to require
that the single maritime boundary to bedelimited in the area "should be
compatible withthe rights which have vested inCanada l".

266. There are seven reasons why the conduct of the United States
during the relevant period does not constitute either express or tacit
consent to an equidistance boundary in the Gulf of Maine area. As a
result, United States objections tosuch a boundary are not harred.

267. First, Canada did not during the relevant period clearly and
unambiguously assert a claim in which the United States could have
aquiesced. Second, the letters of L.T. Hoffman, of the United States
Department of the Interior, on their face do not amount to a consent by

the United States to any alleged Canadian claim and, in fact, cal1any
such Canadian position into question. Third, Mr. Hoffman was not
authorized to speakon behalf ofor to hind the United States Government.
Fourth, the conduct of the United States Government before andduring
the relevant periodwas inconsistentwith any expressortacit consent toan
equidistance boundary in the area. Fifth, the alleged episodetook place
over a hrief period of time, far less than that required to establish tacit
consent. Sixth, Canada had no reasonable basis for relying upon any

purported acceptance hy the United States, and, in fact, Canada did not
so rely to its detriment. Finally, the Canadian claim of aquiescence is
hased entirely upon activities relating to the continental shelf and ignores
the fisheriesdimensionof this case.

'CanadianMemorial.para. 428.114 GULF OF MAINE [171-1721

268. The 1965 exchange of correspondenceupon which Canada bases
its claim of acquiescence was not initiatedby Canada. Mr. Hoffman, the
Assistant Director of the Land and Minerals Divisionof the Bureau of
Land Management ofthe United States Department of the Interior, wrote
a letter to the Canadian Department of Northern Affairs and National
Resources,in whichhe requested information concerningthe issuance of
Canadian oiland gas "permits" on the outer continental shelf 'Mr. A. D.

Hunt, Chief of the Resources Divisionof that Department, replied to this
inquiry, indicatingthat permits had been issuedup to an equidistant line
drawn across Georges Bank '.Mr. Hoffman responded, disclaimingin his
letter any negotiating authority and inquiring in more detail concerning
the Canadian permits. He also protested thatcanada may have issued
permits in an area subject to United States jurisdictio'.

SECïiON 1..Canada Did Not Assert Clearly and Unambiguously a
Maritime BoundaryClaim in the Gulfof Maine Area in Wbicb the United

States CouldAcquiesce

269. In order to establish acquiescence on the part of the United
States, Canada must first establish that it clearly and unambiguously
asserted a boundary claim in the Gulf of Maine area. Canada apparently
maintains that the letter from the Department of Northern Affairs and
National Resources to Mr. Hoffman, which was in response to inquiries
initiated by Mr. Hoffman, constitutes such a claim that is opposable
against the United States.

270. The Canadian Government has long been aware of, and normally
insists upon, the standard practice wherebythe embassies of the United
States and Canada, and the Department of State and the Department of
External Affairs, are the respective agents of the two governments
through which messages of a diplomatic character are dispatched and
received. Indeed, the United States and Canada followed this practice
both prior to,and during, the relevant period with regard to other matters

'Letterof 1April1965to DcpartmentofNorthem AffairsandNatural Resources,
Resourca Division,Northern Branch, from L T. Hoiïman. Reprinredat United
StatesemorialA , nnex53,Vol.IV.
'Reprinteda1UnitedStatesMemorialA. nnex53,Vol.N. [173-1741 COUNTER-MEMORIAL OF THE UNITEDSTATES 115

involving the maritime jurisdiction of the Parties, including claims to
exclusive-fishing zones '.

271. The letter from the Canadian Department of Northem Affairs
and Natural Resources inno wise reflects the clear and unamhiguous
conduct of a sovereign State that is required under international law to
constitute a claim sufficient to invoke the doctrines of acquiescence and
estoppel. Moreover, the letter lacks the required notoriety. Unlike the

decrees issued by the Government of Norway that are discussed in the
Anglo-Nomegian Fisheries case', and the acts of similar notoriety
described in the Eastern Greenland' and Temple ofPreuh Vihear cases4,
the letter relied upon by Canada as constituting a boundary claim was
from a mid-level government officia1 in a Canadian agency having no
responsibility for legislative or foreign-policy matters.

272. Canada issued no proclamation or other public notice that might

have informed the United States of a purported claim by Canada in this
area. Canada relies instead upon its own unilateral action in the issuance
of permits. As the Canadian Department of Energy, Mines and Resources
recently stated, however:

"The fact that Canada has issued permits covering extensive
offshore areas does not, by itself, maintain the nation's jurisdic-

'Forexample,in 1945,the UnitedStateswmmunicatedto Canadabydiplomatic
notethe TrumanProclamations relating to the continentalshelfand to wnserva-
tion of the fisheries ofthe high seas. UnitedStates Memorial,Annex3,Vol. 1.
Duringthe relevantperiod,the UnitedStates formallyinformedCanada of the
establishmentof the United States 12-nautical-milewntiguous fishing zone,
effective 14 October1966. Note from Departmentof State to Embassyof
Canada, 29 November1966. Annex.34,Vol.V. During the period,the United
Stateswasalso informedbydiplomatic noteofthe intentionofthe Governmentof
Canada to establisha straight-haselinesystem.Note-Verbale fromthe Depart-
ment ofExternalAffairsto the Embassyofthe UnitedStates, 25 October1967;
Note from the Departmentof State to Embassy ofCanada, 1Novembcr1967;
andAide-Memoire from theEmbassyofCanadatothe Departmentof Statcof 11
November1967. Annex 34V , ol. V.TheUnitedStatesand Canadahave followed
similarformalnotification~racticeswithreswt ofthe extensionofthe Canadian
territorialseato 12nauricalmilesin 1970;the enactmcnt ofCanadianlcgislation
affcctingthe watersofthe Arcticin 1970;and theenactmentbythe UnitedStates
on 18 ~anuary1974ofa lawdeclaringthe Americanlobstera creatureofthe con-
@ tinental shelf(seeUnitedStates Memorial,para..144,Figure 16,andAnnex59,
Vo~~ IV).
I.C.JReports 1951,p. 116.

'P.C.I.JSeriesAB, No. 53,1933,p.22.
'I.CJ.Reports 1962,p.6.116 GULFOF MAINE [174-1751

tional claims to the seabed resourcesof these areas. Unilateral
action by a State doesnot in itself create or evennecessarilylead
to international Law.It is the acceptance of this practice and the
adoptionof similar practicesby other Statesthat normally leads

to the formulation of international law'."

273. In the TunisiafLibya case, the International Court of Justice
found that domestic legislation and a regulation specifically addressing
the continental shelf were insufficient toconstitute a unilateral claim for a
maritime boundary. This finding wasmade where the law and regulation
in question were accompaniedby maps that depicted a iine. As the Court
wncluded:

"Both the Law and the Regulation which followedit are purely
interna1legislativeacts, intended to identify domestic zones for
the petroleum explorationand exploitation activities of Libya,
and could, in viewof the admission by Libya itself during the
oral proceedingsthat the Law does not purport to be an 'act of
delimitation', hardlybe consideredevenas a unilateral claim for
maritime lateral boundaries with Tunisia. Moreover,paragraph
1of Article 4 of the Law refersto the 'seahed and subsoilwhich

lie beneath the territorial waters and the high seas contiguous
thereto under the control and jurisdiction' of Libya; there is no
evidencethat Libya had claimed control and jurisdictionover a
contiguous zoneof about 50 nautical miles beyondthe territorial
sea prior to the time the Law was enacted. ...There is no doubt
that Libya in 1955, by enacting the Petroleum Law and
Petroleum Regulation No. 1, purported to claim sovereignrights
over sbelf resources;but the mere indication on the map of the

line in question is not sufficient even for the mere purpose of
defininga forma1claim at the levelof international relations toa
maritime or continental shelf boundary. For these reasons the
Court finds that the line referred to by theibyan Legislationof
1955 is not opposableto Tunisia, tbat theZV 45O line is not op-
posable to Libya and that neither can be taken into wnsider-
ation for the purposesof this Judgment'."

If the Libyan law and regulation did not constitute an "act of delimita-
tion", then, a fortiori.the laws and regulations pursuant to which the

- -
'Surveying OffshoreCanada Lnndsfor Mineral Resources Development. Sur-
versandMappingBranch,CanadianDept.ofEnergy,Minesand Resources2 ,nd
ed.,Oct. 1975,p. 8at Annex 39,Vol V.
I.C.J. Reports 1982p.69,para. 92.11751 COUNTER-MEMORULOf THE UNITED STATES 117

Canadian permits were issued do not. Those Canadian laws and regula-
tions,on their face, did not.specificallyapply to maritime areas at al1and
were not acwmpanied by any pertinent map '.

SECTION 2. Mr. Hoffman, a United States GovernmenE t mployee,Did
Not Acquiesceinaoy Purported CanadianChim
274. As noted at paragraph 136 of the United States Memorial andat

paragraphs 110 through 112 of this Counter-Memorial, Mr. Hoffman's
letters placed Canada on notice that the exploration permitsit had issued
appeared to cover areas of the United States continental shelf. Mr.
Hoffman wrote:
"As a matter of somewncern tous, webelievethat you haveis-

sued offshorepermits on the Outer Continental Shelfpertaining
to the United States. Webelieve this is the case in the GuUof
Maine. ..'".

275. Moreover, Mr. Hoffman indicated that the United States had
issued seismic explorationpermits covering the continental shelf off the
east Coast of the United States. Mr. Hoffman's conduct thus was
inconsistent with, and constituted a protest against, any claim that
Canada might be deemed to have made.

SECTION 3. MI. Hoffman Lacked the Authorityto Conswt to any
hirportedCanadianClaim
276. Another required element of acquiesccnceis the authority of the
officialwhoseconduct isin issueto speakfor, and to bind, his government.

Mr. Hoffmanclearlyhad no expressauthority with regard tointernational-
boundary matters. Moreover,Mr. Hoffman made clear in his letter of 14
May 1965that he had no expressor impliedauthority in that regard.
277. Even if Mr. Hoffman had not made an express disclaimer of
authority to bind the United States, there would be no hasis in the
circumstances of this case for inferring any such authority. As Canada is
wellaware, the Department of the Interior does not represent the United
States in the conduct of foreign relations. Furthermore, there is the

positionoccupiedby Mr. Hoffman within that Department. As Assistant
Director for Land and Minerals, of the Bureau of Land Management of
the United States Department of Interior, MI. Hoffman was but one of
three assistant directors in onebureau of that Department. Superiorto the
assistant directors were the Deputy Director and the Director of the
Bureau of Land Management. The Director was responsible to the

'See para.108,n. 3, supra.
'UnitedStatesMemorial,Annex 53,Vol. IV.[Emphasisadded.]118 GULF OF MUNE Il761

Deputy Assistant Secretary for Lands and Resources, who, in turn, was
responsible to the Assistant Secretary. The Assistant Secretary was
responsible to the Undersecretary, who in turn reported to the Secretary
of the Interior. Neither the Department for which Mr. Hoffman worked
nor anyone in Mr. Hoffman's position had the authority that Canada
wouldhave the Court believe.

278. As Part II, Chapter IV, has shown,it would be unprecedented in
the law if Mr. Hoffman's letters were characterized as representing the
acquiescene of a sovereignState in a purported boundaryclaim. There is
no evidenceof authorized conduct by any United States officials in this
case that approaches that which is required to wnstitute aquiescence,
such as was found to have occurred in the case of the Legal Status of

EasternGreenlandand other cases '.

SECTION 4. The Cooduct of the UNted States Both Before and During
the Relevant Period Was Inconsistent with Consent to any Purported
Canadian Claim
279. Canada has been on notice sine 1945 that the boundary in the

Gulf of Mainearea was,in the viewof the United States, to be established
by agreement of the two States and in accordance with equitable
principles.Canada has never objected tothat position.
280. In addition to ignoringthe Truman Proclamation, the text of Mr.
Hoffman's correspondence,and his obvious lack of authority, Canada
ignores the systematic United States exploration of the continental shelf
off New England beginning in 1964.
The first permit wvering the
northeastern portion of Georges Bank wasissuedat about the same time
as the initialetter from Mr. Hoffman was written '.Additional permits
wvering Georges Bank were issued throughout the ensuing five-year
period within which Canada seeks to establish acquiescence.To date,
under twenty-five permits issued since 196S3, the United States has
wnducted over 20,000 nautical miles of seismic survey lines on the
northeastern portion of Georges Bank alone.

SECTION 5. The United States Made Timely Protest of any Purported
Canadian Claim

281. In order to establish acquiescence in any purported boundary
claim, Canada must showa failure to protest that claimovera long period

'See Part II, ChapterIV.
'See ListofPermits,awmpanying thclctterof 20 January 1983 from DavisR.
Robinson,Agent of the United States, to Mr. Santiago TorresBernirdez,
Registrarof thc InternationalCourt ofJustice;An'ex 15,Vol. V. Additional
wrmitscoveringtheentirctyofGeorgesBankwereissucdthroughoutthcwriod
inquestion.
'Annex 26.Vol.V. 11771 COUNTER-MEMORIALOF THE UN~D STATES 119

of time. Canada cannot do so, hecause, in addition to Mr. Hoffman's
expressionsof concern, the United States promptiy resemed its position.

282. The first official notification to the United States of a Canadian
position with regard to its permit program occurred through diplomatic
channels in a letter dated 30 August 1966 '.in that letter, a Canadian of-
ficial replied on behalf of the Under Secretary for External Affairs of
Canada to an inquiry from the United States Embassy. This inquiry,
dated 16 August 1966 ', requested information concerning Canada's
offshore oil and gas program, particularly in regard to operational plans
and schedulesof permit holders.The Canadian letter of 30 August 1966

was not responsiveto the United States inquiry. To this day, the United
States is not aware of any activities on Georges Bank by the Canadian
permit holders.

283. On 10May 1968,the United States calledfor a moratorium on al1
United States and Canadian oil and gas activities on Georges Bank until
after the boundary in that area had been settled2. The Canadian
Memorial attempts to characterize the United States aide-memoireof 10
May 1968 as having failed to establisha legal dispute hetween Canada
and the United States. The United States disagrees. The United States
aide-memoire both called for a moratorium on continental shelf activities
on Georges Bank and requested consultations withCanada. The aide-
memoire was a formal, written communication to Canada transmitted

through appropriate channels. This communication placed Canada on
notice that the United States formally took issue with any Canadian
permits on Georges Bank, ashad MI. Hoffman'sinformalcorrespondence
that preccded it.

284. Only three years passed from Mr. Hoffman's initial letter in May
of 1965 to the United States aide-memoire in May of 1968. Only 21
months passed from the time the matter entered diplomatic channels,in
August of 1966,to this formal United States protest '.At no time during
this period did Canada assert a formal boundary claim specifying
geographic coordinates.This period isto be compared to the 60 years that
passed in the Anglo-NonuegianFisheries case4 so heavily reliedupon hy

'UnitedStatu Memorial,Annex 54.Vol.IV.
'UnitedSlatcsMcmorial.Annex 55,Vol.IV.
'In relationto thetimingof thesecvents,onefactorshould benoted.Becauscof
the tradition of fricndshipand coo~ration betwccnthe United Statcs and
Canada, therc is a rcluctanceto escalateimmediatelyal1diffcrencesto the
diplomaticIcvcl.Thcinclinationistoseekinformation.toconsult.and torcacha
rcasonahlcaccommodationN . otcsof protestroutinelywouldfollowonlyupona
scricsofdiscussionthat wcrcunablcto bridgethe diffcrcnces.
'I.C.J.Reports 1951,pp. 138-139.120 GULF OF MAINE (177-1781

Canada, and to the similar orevenlongerperiodsfound in the other cases
cited in the Canadian Memorial.

SECTION 6. Canada Did Not Rely to its Detnment UponAnyAction
or Inaction of the United States

285. Having failedto establish acquiescenceon the part of the United
States, Canada must perforce fail to establish an estoppel. Canada
nonetheless searches in vain in its Memorial for the reliance that is
necessary to raise the bar of estoppel. In attempting to do so, Canada
wnstructs a positionthat is wntradictory on its face. Canada first argues
in its Memorial that it acted to create legal relationshipsin reliance upon
the purported acquiescence of the United States in an equidistance
boundary in the Gulf of Maine area '.Virtually al1of the Canadian oil

and gas permits on Georges Bank, however, were issued befor Mr.
Hoffman initiated his correspondence. Itwas not, therefore,the action, or
inaction, of the United States that precipitated the wnduct that Canada
seeks to wnstrue as evidence of its reliance. Canada issued its permits
without notification to or consultation with the United States. There is
thus no basis for Canada's assertionthat "the Canadian Govemmentfor a
substantial period wasplaced in the position of assuminga rightful power
to create legal relationships with Canadian and foreign persons and
corporationsby the grant of permits "'.

286. Canada next proceeds toargue that it suffered detriment because
it was placedin a positionof "disarmament" asa result of the alleged ac-
ceptance of the equidistant or median line hy the United States l.Canada
wntends that, to protect its legal position,it took only those positiveand
public steps that were appropriate in the absence of any protest hy the
United States to its purported claim '. During 1967and 1968,the United
States wllected 2,219 miles of seismic survey data in the northeastern
portion of the Bank'. These actions were, of course, the routine exercise

by the United States of jurisdiction over its continental shelf. Canada, in
fact, wasZwareof this explorationprogram from the Hoffman correspon-
dence. Thus, in spite of the obviouseffect such activities have upon the

p ~
'CanadianMernorial.para. 424.
'CanadianMernorialp , ara426.

'CanadianMemorial, paras .25 and 426,
'Annex 26,Vol. V.1179-1801 COUNTER-MEMORIALOFTHE UNmD STATES 121
Canadian claim of "disarmament", the actions of Canada did not differ

significantlyafter it knewof these United States exploration activiti"'.

SECTION 7. Canada's Claim of AcquiescenceIgnores the Fisheries and
Other Dimensionsof this Case

287. As the International Court of Justice concluded in the Tunisial
Liby aase, al1facets of the relations betweenStates mus1he evaluated to
determine whether a line declared unilaterally hy one State is opposable
against the other l. Canada's contentions regarding acquiescence and
estoppel ignorethe other dimensionsof this dispute, as, for example, the
fact that neither Canada nor the United States has ever used the
equidistance method to delimit a boundary for any other purpose in this
area, such as defense interests, or search and rescue operations'. In
particular, Canada's contentions ignorethe long history of United States
fishing on Georges Bank,notwithstanding the fact that Canada regards
the fisheriesas a crucial part of this case. The inclusionoffisheries has,in

Canada's words, "expandedand transformed" the nature of this case to
something other than a continental shelf controversy '.The Canadian
position concerning the purported role of the doctrines of acquiescence
and estoppel,in ils ignorance of these other dimensions,particularly that
of fishing,is contrary to fact, law, and history.

SECTIONS. Conclusion

288. In conclusion,as a matter of both lawand fact, the United States
has not acquiesced in the issuance by Canada of oil and gas permits on
Georges Bank or in any Canadian line or method. Accordingly, the
United States is not estopped from advancing ils boundary claim in this
case.

'Canada'sassertionthat it wasdisarmedby thc purportedawuiescenccof thc
UnitcdStatesin an equidistanceboundaryis nirious.Canadasecksto usethe
Hoffman wrrespondence toestablishacquiesence, hilethat verywrrespondencc
puts Canada on noticeof thc UnitedStates permitprogram.Evenif Canada
sufferedanydetriment,whichthe UnitcdStatesdenies,il wouldbeinsufficientto
support estoppeIl.nrdertosupport estoppel,anreliancemustbereasonablcA. s
discussedabove,Canada was unjustificdin relyingin any fashionupon the
correspondencbeetwecnmid-lcvcolfficialsofdepartmentsofthetwogovcrnments
havingnorcsponsibilitieshatsocverwnccrnipginternationalboundaries.

'I.C.J.Reports1982.pp.66-68.paras.86-90.
'See Part1,CbapterVI,supra.
'CanadianMemorial,para. 223. CHAPTERII
THE ADJUSTED PERPENDICULARLINE PROPOSEDBY THE
UNITED STATES PRODUCES AN EQUITABLE SOLUTION,
WHILETHECANADIANLINEWOULDNOT

289. In Chapter III of Part III of the United States Memorial, at
paragraphs 305 through 331, the United States demonstrated that the
adjusted perpendicular line that it proposes produces an equitable solu-
tion, whilean equidistant line wouldnot. An equidistant line wouldnot re-
spect the coastal fronts of the Parties; would produce a disproportionate

delimitation; would not take into account the Northeast Channel; would
not facilitatenservationand management of the resourcesof the area or
minimize the potential for disputes;and would ignore a number of other
relevant circumstances.Canada has not proposedan equidistant line, but
an equidistant lineodified in its favor. Any delimitation allocating to
Canada a larger area than an equidistant line is not, a fortiorin,
accordance with equitable principles, and, therefore, would not produce
an equitahle solution. CHAPTERIII
THE CANADIANLINEIS BASEDUPONA NUMBEROF
MISAPPLICATIONS OFTHELAWTOTHEFACTS

290. Canada seeksto support the line it proposesby specificmisappli-
cations of the law to the facts. Canada ignoresthe central significanceto
this case of the location of the international land boundary in the far
northern corner of the Gulf of Maine. Canada also ignores the primary
coastal front of the United States extending fromthe Statesof Maine and
New Hampshire, as well as from Massachusetts. The Canadian line does

not producean equitablesolution when testedon the basisof proportional-
ity. Canada fails to take account of such highly relevant circumstancesas
the Northeast Channel (which constitutes the only natural boundary in
the relevant area) and the predominant interest of the United States, in
particular the interest resulting from the developmentand long usage by
the United States of the fisheriesof Georges Bank andthe Gulf of Maine
Basin. In its Mernorial, Canada fails to rewgnize the equitable principles
of conservation and management of resources and dispute minimization,
and relies instead upon the rejected notions of economic dependence and
relative wealth. Finally, Canada disregards State practice insimilar
geographicalsituations.

SECTION1. The Canadian Lie Would Not Take lntoAccowit the
Locationof the International andBoundary
291. Canada's line does not take into account the location of the land

boundary betweenthe Parties within a deep coastal wncavity, in the far
northern corner of the Gulf of Maine. In so doing,Canada's line ignores
the political historyof the two States. The Canadian line alsoattempts to
refashionnature, and to repudiate the fundamental principlethat the land
dominates the sea.

292. The land boundary betweenthe United States and Canada meets
the sea in the far northern corner of the Gulf of Maine. Thus, the
coastlineat the hack of the Gulf, comprisingthe coastsof Maine and New
Hampshire, is part of the United States, and the maritime areas in front
of these coasts appertain to the United States. The adjusted perpendicular
line proposed by the United States respects the location of the land
houndary by taking into account the seaward extension of the coastal
front of Maine and New Hampshire, while leaving unimpeded the
seaward extension of the primary coastal front of Canada into the
Atlantic Ocean. Canada's line disregards the fact that the land boundary
is located in the corner of the concavityand that the Atlantic-facing Coast

in the hack of the Gulf of Maine is part of the United States. The 124 GULFOFMNE [184.1881

concavity causes the Canadian l{neto be pulled across the front of that
coast, almost asfar south asthe latitude of Philadelphia, Pennsylva'.a
..
. 293. The failure of a method of delimitation to take account of the
location of the land boundary is demonstrated hypothetically by placing
the international'boundary at various points along the coast.One might
expect that, as the international boundary is hypothetically moved, an
appropriate delimitation method would produce a corresponding move-
ment in the proposedmaritime boundary. That would be the case with a

perpendicular to the general direction of the coast at the international
boundary terminus. That is not the case, however,with the equidistance
method.
294. When the equidistance method is used in a deep coastal concavity
such as the Gulf of Maine, the equidistant line remains inequitablyin the

same location in the seaward area outside of the concavity, regardlessof
where the international boundary terminus is located within the concav-
ity. The equidistant line seaward of the deep concavity isically a line
perpendicular to the closing line across the mouth of the concavity
measured fromthe midpointof that closingline.This fact isdemonstrated
@ at Figure 21. As such, the equidistance methodproduces an inequitable
result by affording no recognition to the location of the landfmntier
between the two neighboringStates.

@ 295. As Figure 22 shows, if the land boundary met the coast at
Penobscot Bay, Maine or at Boston, Massachusetts, the equidistant line
still wouldcross Georges Bankat approximatelythe same locationand on
the same course as it does when the international boundary is located
where it is in fact situated. Moving the hypothetical boundary even
farthersouth, or north, produces the same result. It does not matter, for

purposes of an equidistant line outside the Gulf of Maine, if the
international boundary terminus is on Cape Cod or on the Nova Scotia
peninsula. Any such result, as proposed by Canada, is contrary to the
Fundamental Rule for delimitationjointly rewgnized by the Parties.

SECTION2. The Canadian Line Would Cut Off tbe Extension of the
Primary Coastal Front of the United States Seaward of Maine and New
Hampshire

296. Canada's line is based upon the erroneous position that the
primary coastal front of the United Statesat Maine and New Hampshire,
as well as that at Massachusetts, is not entitled to its seaward extension
both in the interior and in the exterior of the Gulf of Maine area. In this
regard, Canada suggeststhat, under its "equitable equidistance" method,
the coastal front of the United States at Maine and New Hampshire has

@ Figure33oftheUnitedStatesMemorialshowstheparalleloflatitudereached
bya 200-nautical-miequidistantlinSee UnitedStatesMemorial,para. 311. [189-190] COUNTER-MEMORU OFTHEUNITEDSTATES 125

heen usedin determining the equidistant line in theinterior area and so is
entitled to no seaward extension'.
297. If the equidistant line in the exterior area is to he determined by
coasts that are not used in its determination in the interior area, such a
consideration must then he applied equally to both Parties. Under an
equidistant line in the interior of the Gulf of Maine area, the whole
Canadian southwestern-facing coastof Nova Scotia is used up heforethe
exterior area is reached. Indeed, Canada's hasepointson and around Seal

Island controlapproximatelyone-half the equidistant line in the interiol.
If, pursuant to Canada's theory, the coast of Maine and New Hampshire
has heen usedup in the interior,then so has the southwestern-facing coast
of Nova Scotia. Thus, under Canada's own concept, there would he no
Canadian coast left for measuringan equidistant line in the exterior of the
Gulf of Maine area '.Such an analysis only demonstrates the inherent
weaknessesof the applicationof the equidistance methodin a deepcoastal
concavity, particularly where the international houndary terminus is
located in the corner of that concavity neara protruding coastlinesuch as
that of the southwestern-facing coastof Nova Scotia.
298. The equidistance method in this case is inapplicable, hecause it

givesno effect to the seaward extensionof the primary coastal front of the
United States into and under the sea, thereby disregardingthe fundamen-
ta1 principle that the land dominates the sea. The Maine and New
Hampshire coasts, while deeply indented and cut into, are aligned in the
general southwest-to-northeast directionof the North American coast.
They are entitled to their extension seaward tothe limits of coastal-State
@ jurisdiction. Figure31 of the United States Memorial, reproduced hereas
@ Figure 23, demonstrates the seaward extension of this coastline. That
figure confirms that it is these coasts that face Georges Bank seaward of
the Gulf of Maine, and notany part of Canada's coast '.

299. Canada further ignores the principle that the land dominates the
sea in its unprecedented contentionthat "geography in its socio-economic
as well as its physical aspects should properly have a hearing on the
identification and treatment of the coastal areas...'".Thus, contrary to
the principlesof lawset forth in Part II, Canada argues that coastal areas
'CanadianMernorial,paras.340and 353.

@ 'CanadianMernorial,Figure 32.
'Canada'stheory should onlybcapplied,ifat al],in regardtothesouthwestern-
facing coastof NovaScotia,sincethat coastonlyfaces upon the interiorof the
Gulf of Maine,andnotupontheseawardarea,asdothecoasts of Maine andNew
Hampshire.
'Evcn a perpendicularto the unreasonable 67-degree trenldine suggestedby
Canada,rneasuredfromthe starting pointspecifiedin ArticlII of the Special
Agreement,placesvirtuallyal1ofGeorgesBankoffthe UnitedStateswast, not
offtheCanadianwast.SeeAnnex 12,Volume V.
'CanadianMemorialp . ara369.126 GULF OF MAINE [190-1931

that do not depend ewnomically upon an offshorearea may be ignored in
delimitation l.As demonstrated in Part II,there is no basisfor Canada's

position,which attempts to refashion nature through the consideration of
purported economic dependenceand relative wealth in disregard of the
principle that the land dominates the sea.
300. Moreover, the notion of proximity cannot be used to negate the
principle that the land dominates the sea. In the North Sea Confinental

Sheucases, the Court rejected the thesis that either the greater distance
from the concave wast of the Federal Republic of Germany to the
maritime areas in dispute, or the closer proximity of those areas to
"lateral wings" represented by the Danish and Dutch coasts, should
constitute valid reasons for deprivingthe concave German wast of the
maritime areas before its coastal front. Whilethe North Sea Continental
Sheff cases concerned the delimitation among three States, the Court's

reasoningpertains as wellto this case between twoneighboringStates in a
deepcoastal wncavity. As the Court stated:
"More fundamental than the notion of proximity appears to
be the principle-constantly relied upon by al1the Parties-of
the natural prolongationor confinualion of the land territory or

domain, or land sovereigntyof the coastal State, into and under
the high seas.. .. There are various ways of formulating this
principle, but the underlying idea, namely of an extension of
something already possessed, is the same, and it is this idea of
extension whichis, inthe Court'sopinion,determinant '."'

The seaward extension ofthe primary wastal front of the United States
along Maine and New Hampshire cannot be erased from the map by any
alleged proximity of a sewndary wastal front of Canada that does not
face Georges Bank.
~ ...- - .
301. Canada's primary wastal front, which faces the Atlantic Ocean
northeast of Cape Sable, is fully respected without any encroachment by
the adjusted perpendicular line proposed by the United States. On the
contrary, the Canadian line "cuts ofi" the United States wast at Maine
and New Hampshire, as well as that at Massachusetts, from its natural

extension, contrary to the basic tenets of the law. Canada's line gives
exaggerated and inquitable effect to a short section of Nova Scotia
coastline that: (a) is aberrant to the general geographical relationship
between the Parties, because it lies perpendicular tothe general direction
of the wast, and (b)is south of the international boundary terminus.

'The UnitedStateshas shownthat fishermenfrom Maineand NewHampshire

haveinthepast fished,anddoatpresentiïsh,onGeorgesBankand intheGulfof
Maine Basin.Thus,noquestionofalackofeconomicconnectioncanariseinany
event.
lNorthSeaContinentalShelfcase ps,31,para.43.[Emphasisadded.] [193-194] COUNTER-MEMORIALOF THE UNITEDSTATES 127

302. In conclusion,the effect of applying the equidistance method in
this case, either to the actual coastline or the hypothetical one that
Canada uses, ignores the location of the international land boundary
between the Parties, and disregards the primary coastal front of the
United States in favor of one short, secondarycoastal front of Canada
that is aberrant to the general directionof the Coast.Any such result isa
misapplicationof the law to the facts in this case.

SECïiON 3. The Canadian Line Would Not Result in a Proportional
Delimitation
303. A boundary linethat respects the broad geographical relationship
between the coasts of the Parties and the relevant areas in front of those
coasts must bring about a reasonable degree of proportionality between
the respective lengths of those coasts and the area to be delimit'.At
@ paragraphs 312 through 314 and Figure 34 of its Memorial, the United
States tested the proportionality of the adjusted perpendicular line. That
test demonstrated that the adjusted wrpendicular line is an equitahle

@ boundary '.At Figure 35 of its Memorial, the United States tested the
proportionality of the equidistant line. It demonstrated that the equidis-
tant line, and, a fortiotie,Canadian line, would beinequitable in this
case'.
304. Canada agrees that the application of the proportionality test
"may also havea useful role4" in the case of a singlemaritime boundary.
Canada misapplies the test, however, in two respects: first, Canada
includes in its calculation Canadian coastlines within the Bay of Fundy
that do not face upon the area being delimited; and, second, Canada
denies the applicability of the test in the exterior of the Gulf of Maine

area.
305. Canada espousesthe unprecedented position that "geography in
its socio-economicas well as its physical aspects should properly have a
hearing on the identification and treatment of the coastaleas that are
relevant to Georges Bank'". The maiiner in which Canada relates this
novelargument to the proportionality test is unclear.
306. Canada's viewsabout proportionality are not consistent with the
decisionsof the InternationalCourt of Justice in the North Sea Continen-

'UnitedStatesMemorial,paras.242-244.
@ 'Figure 34 of the UnitedStates Memorialindicatesthat the actual coastline
lengthsin the areaare ina UnitedStates-leCanadaratioof1:39,andthat the
adjustedperpendicularlineappropriatedividesthat areaina ratioof63:37.

@ States-teCanadacoastlineratioof61:39,the equidistanltinedividesthe areaina
ratioof3654. Asshownat Annex35.Vol. V, theCanadianlinedividesthesame
areaina UnitedStates-to-Canadaratioof 31:69.

'CanadianMemorial,para.368.
'CanadianMemorial,para. 369. 128 GULFOF MAINE . [194-195)

ta1 Shelf cases and the TunisialLibya case, or with the decision of the
Court of Arbitration in the AngleFrench Arbitration. Proportionality
arises out of the equitable principle that a boundary must respect the

relationship hetween the wasts of the parties and the maritime areas in
front of those wasts '.Application ofthe test of proportionality does not
rest, as Canada asscrts, upon socio-economicconsiderations. Rather, its
application depends upon the length of the coastlines that face the
maritime area being delimited 2.Asthe Court of Arbitration stated:''[&O-
portionality, therefore, is to he used as a criterion or factor relevant in
evaluatingthe equitiesofcertain geographicalsituations ...3".

307. Canada argues that its line is equitable in the interior of the Gulf
of Maine area by suggesting that the coastlines of the two States are of
comparable length4.In its calculation of the Canadian wastline, Canada
inappropriately includes the lengthof the opposing Canadian wastlines
within the Bay of Fundy. Inclusion of the Bay of Fundy in such a
computation is incorrectin three respects: first, the Bay of Fundy is not
being delimited in this case; second, Canadian jurisdiction in the Bay of
Fundy is not questionedby the United StatesJ;and third, the coastlinesof

the Bay ofFundy face each other and not the area being delimited.For
these reasons, it is not appropriate to include the length of the coastline
within the Bay of Fundy in a coastline calculation forpurposes of the
proportionality test. For such purposes, the Bay of Fundy should be
treated as closed,with the length of the closing line acrossthe mouth of
the Bay of Fundy includedin the calculationof the length of the relevant
Canadian coastline6.
308. In its Memorial, Canada declined to apply proportionalityto the
exterior portion of the Gulf of Maine area, arguing that "the 'area' itself

xand the extent of the environing coastlines are indeteminate'". The ex-
terior area for this purpose is not indetenninate as Canada suggests8.

'UnitedStatesMemorialp , aras.242-244.CJ Reports 1969,p. 52,para. 98;Deci-
siom,pp.6061,para.101; I.CJ.Reparu 1982,pp.75-76 ,m. 103.

I.C.JReports 1982,p.76,para.104.
'Decisionsp,60, para.101.[Emphasis added.]
'CanadianMemorial, paras2 .8and370.
'Indeed,as notedintheCanadianMernorial:"[iln1971Canadaalsoenclosed cer-
tain bodiesof water,includingthe Bayof Fundy, within 'fisheryclosinglines'."
F'ara224, n.27.Futthemore,theBayofFundy isnotnormallyregarded aspart of
theGulfofMaineor AtlanticOceanbythe International Hydrographie Organiza-
tionSee Annex11,Vol. V.
Thisisthernethbdused atFigures34and35andAnnex99oftheUnitedStates
@ @
Mernorial.
'CanadianMernorialp , ara.371.
Canada'sobjection inthis regaridnotsubstantial.stheCounnoted intheTuni-
sia/Libyacase, "theexact method ofdrawingtheouterboundariesisnotcritical,
providedthesameapproachisadoptedto eachofthetwo mas&". I.CJ RepoHs
1982,p.91,para.130. 130 GULFOFMAINE [196-1971

nautical miles. Thus, the coastlines are of "similar extent", as Canada
suggests,in a United States-to-Csnada ratio of 57:43.

@ @) 311. At Figures 24and 25, the adjusted perpendicular lineproposedby
the United States and the Canadian line are tested using this coastline
ratio. The lateral limits of the area are defined by perpendiculars to the
general directionof the coast at Nantucket Island and the pointonthe At-

lantic seaboardjust northeast of Halifax. The 1000-fathom-depth contour
is used as the outer lim'.This iç a more restrictiveouter limit than that
@ @ depicted at Figures 34 and 35 of the United States Memorial, and is used
to provide another resonable limit that rebuts the Canadian suggestion
that the outer limit is indeterminate.

312. The Canadian line would divide this area in a United States-to-
Canada ratio of 4258, and leave to Canada 8,785 square nautical miles
more than an exact application of the coastline ratio of 57:43. The
adjusted perpendicular line proposed by the United States, on the
contrary, meets the proportionality test. It divides the area in a ratio of
62:38, leaving to each Party the approximate area called for by the
coastline ratio.

SECTION4. TheCanadianLineWouldDisregardtheNortheastChamel,
Wbicbis a SignificantGeomorphologicaF leatureandNaturalBoundary

BeîweentheTwoSenarateandIdentifiable ErolonicalRezimesof Ceornes
Bank andtbe Scoian Shelf, and Whieb con;titutess ~ircumstaice
Relevantto theDelimitationinthisCase
313. Canada's line would cut across Gwrges Bank, splitting its sepa-

rate and identifiable ecologicalregime. The Canadian line wouldnot give
effect to the Northeast Channel, whichisthe onlynatural boundaryin the
Gulf of Maine area, and which ensures the integrity of the separate and
identifiable ecological regimesof Georges Bank andthe Scotian Shelf.

314. The International Court of Justice in the Tunisia/Libya case
indicated that "certain geomorphological configurationsof the seabed,
whichdo not amount to an interruption of the natural prolongationof one
Party with regard to that of the other, may taken into account as a cir-
cumstance relevant for an equitable delimitationl". The Northeast

IThe 1000-falhom-deptchontouris notindeterminat.t shouldbenotedthat,in
theAngle-FrenchArbifrafion,the Partiesagrecdto usea deptbcontourto mark
theseaward limit ftheboundary tobedetcrmincdby thcCourt ofArbitration.
'I.C.JReports1982. p.64,para.80.The Courtfoundthat onesuchfcature,the
TripolitanianFurrow,wasnot relevantto delimitation,hecausethe greaterand
more significantpart of that fcature lay beyond the area relevant tothe
dclimitation,andbecauseof its position,whichwascomparativelynear10 and
rougblyparalleltothe coast.That featureshouldbecontrastaito the Northcast
Channel,which isintherelevantarea,andwhich isroughlypcrpendicularto the
generaldirectionoftheoast. 1197-2021 COUNTER-MEMORIALOF THE UNITED STATES 131

Channel is such ageomorphological feature. See Figure 6. Together with
the Laurentian Channel, it marks one of only two distinct breaks in the
surface of the North.American east coast continental shelf. Moreover, the
Northeast Channel is located entirely within the area relevant to delimita-
tion, and lies perpendicular to the general direction of the coast within
that area in which an equitable boundary should he located '.

315. There is a close relationship between geomorphological features
and the marine environment that has been recognized in past cases
concerning fishing rights'. In its Memorial, Canada recognizes this
relationship. As Canada States:

"Throughout the Gulf of Maine area ... there is a complex
interaction of bottom topography, current structure and hiologi-

cal processes'."
The Northeast Channel is a perfect example of such a relationship. As

Part I has confirmed, the Northeast Channel sets the pattern in which
water circulates through the Gulf of Maine Basin and around Georges
Bank; the Northeast Channel determines the physical characteristics of

'The significanceof the Northcast Channel isevidencedby the fact that any
delimitationthat rccognizestheNortheast Channel as the natuloundaryinthe
Gulf of Maine area (as does the adjusted perpendicularline proposedhy the
@ United States),can satisfythe proportionalityteSee Figure34 of the United
@ States Mcmorialand Figure 24 of thisCounter-Mernorial.Even ifthe relevant
ara for these purposeswere the rwtricted area setforth at Annex 99of the
UnitedStates Mcmorial,a lincrecognizingthe Northeast Channel asthe natural
boundaryin the exteriorof theGulfof Maine areawould, inconjunctionwithan
appropriate boundaryin theinteriorarea. dividethat restricted area intoa ratio
that.is wrnparahle to the ratio of the simplifiedUnited States and Canadian
mastlines from Nantucket Islandto Cape Sable witb a closingline across the
mouthof the Bayof Fundy.
'In the Anglc-NonvegianFisheries case, Norwayjustified its straight-haseline
system,in part uponthe necdto protectthe wastal fisheries fromoverfishingby
modernBritishtrawlers.In this regard.Norwaystresscdthe relationship of the
coastalfishcric10the numcrousbanksand ledneswithinthe waters thatNorway
soughtto includewithinilsstraight-haselinesyitem.The existenceofthesebanks
and ledgeswas oneofthegwgraphicalrcalitiesofwhichthe Courttooknoteinaf-
firmingNorway's exclusivjeurüdiction over the sea area there in issI.C.J.
Reports 1951,PP.127-128.
'CanadianMemorial,para. 89; see alspara. 92.132 GULF OFMAINE Po31

that water '; the Northeast Channel plays a central role in the formation
of the separate and identifiable ecological regimes within the Gulf of
Maine area; and, the Northeast Channel helps to create and to define a

natural boundary, not onlyin the seabed, but between mostof the fish
stocksin the water wlumn as well.
316. One way to appreciate the significanceof the Northeast Channel

as a relevant circumstance is toconsiderwhat the marine environmentof
the Gulf of Mainearea wouldbe likeif the Northeast Channel did not ex-
ist. Chapter IIIof Annex 1contains such an analysis. It showsthat, if the
Northeast Channel did not exist, the water circulation pattern and the
physical characteristics of the waters in the area would be changed
radically. ln such a hypothetical situation, the unusually wld ocean
climate Soundon the Swtian Shelf would extend far to the Westand
south.Onlysurface waters regularly wouldenter the Gulf of Maine Basin.
Water would move in a southwesterly direction over the Scotian Shelf,

spread into the Gulf of Maine Basin, pass over Georges Bank, and
continue down the southern New England Coast. The counterclockwise
gyre in the Gulf of Maine Basin and the clockwisegyre over Georges
Bankwould,at the very least, be weakened.Without the benefit of the in-
flux of relatively warmer and more saline water through the Northeast
Channel, the waters at the surface in the Gulf of Maine Basin and those
over Georges Bank would be nowarmer and no more saline than the
waters over the Scotian Shelf; there would be a gradua1 continuum (in

terms of temperature and salinity)ofsurface waters from the northeast to
the southwest '.The deeper waters within the Gulf of Maine Basin, as
with those in the Baltic Sea, or in Norwegian fjords with sills, would

'Oceanographic featuresinthe water wlumn that creataend markseparateand
identifiable oceanographic andlogicalregimesmaybecomparcdtothekindof
featureidentifiedbythe InternationalCourtofJusticeinthe Tunisia/Li cayea
that constitutesan indisputableindicationof separatecontinentalshelvesor
natural prolongations..C.J.Reports 1982, p. 57,para. 66. For example,the
AntarcticConvergencew , hich isan oceanographic boundab retweenAntarctic
watersto the southand warmersub-Antarctic waters to the north, andwhich
limitsthe rangeof manyAntarctic marine species,has beenusedto delimitthe
area subjectIo the Conventionon the Conservationof Antarctic MarineLiving
Resourcesd, oneat Canberra,20 May1980.Art. 1.ThePartiestotheConvention
are Argentina. Australia,hile.the FederalRepublicof Germany,France, the
GermanDemocratic RepubliJ c,pan,NewZealand,South Africa,the Unionof
Soviet SocialistRepublics,the United Kingdom,the United States, and the
EuropeanEwnomicCommunity.Belgium,Nonvayand.Polandhavesignedthe
Convention.
'The changesinthephysicaloceanography oftheGulfof Maincarcathat wuld
bc expectediftheNorthcasi Channed lidnotcxistarediscusscdat Anncx 1.Thc
~arine Environment otfheGulfofMaine Area, Chapte rII. [2C4206] COUNTER-MEMORIALOFTHE UNITEDSTATES 133

gradually increase in salinity, become anoxic, and, for al1 practical
purposes,cease to be productiveof livingnatural resources'.

317. In short, without the Northeast Channel, the present juxtaposition
of waters of different temperature, salinity, mixing,and circulation that
makes the Gulf of Maine area the highly productivearea that it is would
disappear. As a result of this loss,there wouldbe a gradua1continuum in
the environment, instead of the separate communities of phytoplankton,
zooplanktonand benthos, and the separate stocksof fish, that exist today
in the Gulf of Maine area. Becausethe marine environmentof the Gulf of
Maine Basin and of Georges Bankwouldbe colder, many species(suchas

the longfin squid, bluefish,northern sea robin, fourspot flounder, butter-
fish, summer flounder, and spotted hake)no longerwouldbe found in the
area. The occurrence of red hake, silverhake, white hake, spiny dogfish,
goosefish, and lobster would diminish greatly. Furthermore, because
water at the bottom of the Gulf of Maine Basin no longer would be
renewed, the Basin would not serve as the prime habitat for redfish,
argentine, witch flounder, cusk,wolffish, andthorny skate. Similarly, cod,
haddock, herring,pollock,and American plaicewouldno longerappear in
the deep watersof the-Gulfof Maine Basin.The nature and abundance of

the area's flora andfauna wouldbediminishedfuther by the weakeningof
the retention mechanismprovidedby the gyresin the Gulf of Maine Basin
and over Georges Bank. Overall, the fishery resourcesof the area would
be greatly reduced-perhaps by as much as 50 per cent '.

318. Thus, it is because of the Northeast Channel that the Gulf of
Maine Basin and Georges Bank have distinctive ecologicalregimes that
are different in physicalcharacteristics from the separate and identifiable
ecologicalregime over the Scotian Shelf. No other feature in the Gulf of
Maine area has such a profound effect on the marine environment '.

319. Canada seeks to ignore this predominant feature of the marine
environment in the relevant area in this case. To disregard such a
significant feature, which forms the only natural boundary in the Gulf of
Maine area, is to omit a circumstance that is legally relevant to the
delimitation of the singlemaritime boundary in this case. Figure26.

'Sec AnnexI, ChapterIII.
'Becauseof the~imwrtanceof the NortheastChannelas a natural boundarv.. .
internationalfishery,scientific,andmanagementorganizatihavedividedtheir
managementand statisticaluniinthisarea throueh the Northeast ChanneS.e
@ @ Partf Chapter IV,and Figures 14and 15.Incontrast,anyliie crossing Georges
Bankwould cut throughits residentfishstocks,severelyinhibitingthepotential
for effectivefisheris anagement.No linecrossing GeorgeBsankwouldreflect
anynaturalfeature.See Section7ofthisChapter.134 GULForMAINE 12071

SECTION 5. The CanadianLine WouldDisregardthe Conductof the
PartiesandTheir Nationalsas Circumstances Relevantto Delimitation,
Particularlythe hedomiaant Interestof the U~ted States on Georges
BankandintheGulfof MaineBasin

320. The United States and its nationals have used Georges Bank and
the Gulf of Maine Basin for several centuries. The United States has
exercised governmental responsibilitiesin those areas. These activities
giverise to the predominant interest of the United States and constitute a
relevant circumstance in this case. This relevant circumstance is disre-
garded by Canada in its Memorial.

A. THE CANADIAL NINE IS NOTSUPPORTED BYCANADA'R SECENT AND
LIMITED FISHING ACTIVITY ON GEORGEB SANK, AS CONTRASTE DO THE
DEVELOPMEN OFTTHE FISHERIE OSFGEORGEB SANK AND THEIR
LONGER AND FULLER USEBY THE UNITED STATES

321. Georges Bank wasfished almost exclusivelyby the United States
from the early 19th century until 1954.The United States fishery on
parts of Georges Bank is one that is rich in tradition. The Canadian
Memorial seeks to portray a Canadian fishery on Georges Bank in the
19th and first half of the 20th centuries when, in fact, one did not exist.

The meager evidence cited by Canada in support of its contentions only
confirmsthe incidental nature of Canada'sactivityon Georges Bankprior
to 1954, when Canada first reported to ICNAF Canadian catches from
Georges Bank '.

322. The fishing activity that Canada alleges to be relevant began
recently, only 16years heforethe first boundary negotiations wereheld in
1970.This Canadian fishing only became significantin the early 1960s.
This limited period ibeocompared to over 150 years of United States
fishing in the same a'.a

323. Canada's fishing activity is not only recent, it is also related
primarily to one fishery, scallops3. size and importance of the
Canadian interest in the Georges Bank fisheries is and will remain
variable, sinceit is socloselyrelated to this one species.As eventhe short

history of the Canadian Georges Bank scallop fishery demonstrates,

See Part1,ChapterIV,Section2,andICNAFSecondAnnualReport,1951-52,
Part4. Annex16,VolV.
'Thus, Canadacannotdemonstratethat its fishing on GeorgesBankis
evidencedby the long userequirediAnglo-Nonvem'anFishericase.Nor
doesCanada'sfishingon GeorgesBankcompare tothe fishingby the United
Kingdomandthe FedcralRepublicofGermanyinthewatersoffIcelandin the
Fisheries Jurisdiccases.See PartII,Chapter II, Section I.A., of this
Counter-Memorial.
'CanadianMemorial,para140. 12081 COUNTER-MEMOW OF THEUNITED STATES 135

scallop abundance, and catches, can Vary enormously '. Canada also
depends upon a single market-the United States-to absorb almost al1
its scallopcatch '.Future demand in the United States is unpredictable '.
Finally, changes in Canadian fishing policy (for example, changes as
important as those recommendedin the recent Kirby Report 3 couldalter
the balance of forcesin the fishing industry, withimportant effects onthe
scallop fishery.

324. Canada portrays the fishery on Georges Bankas one in whichthe
United States and Canada, in Panel 5 of ICNAF, acted in "partnership".
The facts, set forth at Annex3,show a different pattern. This pattern wn-

firms that the United States has the predominant interest in Georges
Bank,and that Canada's interest is centered on the areas to the nortbeast,
of the Northeast Channel, on the Scotian Shelf.

325. Canada alleges that the fisheries of Georges Bank have aspecial
significance for soutbwest NovaSwtia '.In Part 1, Chapter IV, of this
Counter-Memorial. the United States has demonstrated that there is no
historic basis for this asserti6.Moreover,the abundant fisheriesoff the
Canadian east coast attest othemise'. Canada's activity on Georges
Bank, in many respects, is comparable to that of third States'. Those
other fishing States have had to make readjustments to the changing
conditions of the 200-mutical-mile zone. United States fishermen were
forced to make such an adjustment when Canada unilaterally expelled

United States fishermen fromtheir traditional groundsoff Canada's coast
in 1978 9. Canada, by its submission, nonetheless has sought to avoid
making any comparable adjustment in its east coast fisheries.

@ 'Figure10, supra..
CanadianMemorial,para. 162.
'The dangersof relyingupon a single productsold to a limitedmarket are
illustratedy the caseof swordfish.The UnitedStatesand Canadawsentially
hannedswordfishin 1971becauseofhighmercurywntent.

'The KirhyReportis a recentCanadianstudymakingrewmmendationsabout
the futureof Canada'sAtlanticfisheries.It isdiscussedfurtherat Annex Vol.
III, and relevant portionasre includedat Annex Vol.V.
'CanadianMemorial,para. 318.
See Annex 7,Vol.IV.
'Sec TheKirhyReport,Chapter12,at Annex 36,'Jol.V.
'See TableA, supra.

'The extensionof coastal-Statefisheryjurisdictionto200 nauticalmilesalso
forcedUnitedStates fishermenout of traditionalfisheriesin othercasof the
world.For example,the United States shrimp fisheryoff northcastern South
America involvedas many as 460 United States vessels,and producedtotal
catchesas high as 13.6 millionpounds.The UnitedStates shrimpfisheryoff

lfoatnotecontinuedonnextpage)136 GULF OF MAINE I2091

B. THECANADIAL NINEDISREGARD TSE FISHERMEF NROM MAINE AND
NEWHAMPSHIRW EHOHAVEFISHED ON GEORGEB SANK IN THE PAST
AND WHO DO SO TODAY;THE CANADIAN LINE OVERLOOKT SHE
FUNDAMENTAL INTEREST IN THIS CASE OF THE STATES OF MAINE AND

NEWHAMPSHIRE
326. Maine and New Hampshire are relevant to this case not only

because of geography, but also because of the long and continuing use
that fishermen fromMaine and New Hampshire havemade of this area'.
Fishermen from Maine and New Hampshire have contributed to the
predorninant interest of the United States on Georges Bank and in the
Gulf of Maine Basin.Fishermen fromthese States havefishedon Georges

Bank in the past and do so at the present t'As indicated in Part 1,
Chapter IV, fishermen from Maine also fished for a longtime on Browns
Bankand on otherbanks off the Coastof Nova Swtia and Newfoundland.

327. When Canada unilaterally expelledUnited States fishermen from
the Canadian 200-nautical-mile fishery zonein 1978, many fishermen
from Maine shifted to the northeastern portion of Georges Bank'. They
already have bornethe burdens of adjusting to the newsituation resulting

from the extensionof Canada's fisheriesjurisdictionto 200 nautical miles,
whileCanada's eastwast fishermen havenot.

328. Canada's denials to the contrary, the state of Maine has had a
fundamental interest in this case from the outset. Even before the
extension of fisheries jurisdiction in 1977, the state of Maine actively
encouraged the United States federal government to maintain its conti-
nental shelf position.Maine engaged the late Judge Richard R. Baxter,
then a Professor of Law at Harvard University, to assist the state in

evaluating the position of the United States in the '.Thus, even

lfoornoreconrinued/rom previouspage.)

Mexicoalsowaslargeand well-estahlishedI.n 1974,thisfishery caughtover10
million pounsf shrimp,valuedatU.S.S15,000,000. ver600 UnitedStates
vesselsfishedfor shr, t leastoccasionallyi.nthewatersoff.ollowing
theextensionhyMexiwofitsfisheriesjuridictionto 200nauticalmilesin 1976,
theUnitedStatesshrimpfisherywaslimited,pursuanttoagreementsbctwecnthe
UnitedStatesandMexiwto5.5millionpoundsand318vesselsforthe 1976-1977
fishingear,andwaseliminatedat theendof 1979.
'The many inaccuratestatementsin the CanadianMemorialthat implythat
fishermenfromMaine andNewHampshirehavenopastor prcsentinterestinthe
outcomeof this casehavenprcviouslnotedSee Part1,Ch.IV,Sec.4.
,
Ibid.. see alAnnex42,Vol.V.
'It wasforthisreasonthat JudgeBaxter infthePresident ofthe Courtthat
hewouldnottakepartinthedecisioninthis case. 1101 COUNTER-MEMORWOF THE UNITEDSTATES 137

beforethe unilateral expulsionof United States fishermen from Canadian
waters in 1978, Maine's interest in this boundary dispute was fully
evidenccd'.

329. In its Memorial, Canada fails to showan exerciseof governmental
responsihility wmparable to that of the United States in the Georges
Bank and Gulf of Maine Basinareas. The United States demonstrated in
its Memorial tbat, in those areas, it has done al1 the charting and

suweying,wnducted mostof the scientific research,and assumedprimary
a-@ resonsihility for defense andsearch and rescue operations. Figures 14
through 18, in Part 1, indicate that the Parties wnsistently have divided
responsibilityat or near the Northeast Channel, and never at the middle
of Georges Bank. These Figures also wnfirm the significance of the
Northeast Channel as a circumstance relevant to a boundary delimitation
in this case.

D. THE CANADIAN LINE ISNOT SUPPORTED BY THE REJECTED AND
UNRATIFIED 1979 EASTCOASTFISHERIES AGREEMENTW , HICH IS
LEGALLY IRRELEVAN TND FACTUALLIY NCONSISTEN WTITHCANADA'S
CONTENTIONS

330. Canada argues that the failed 1979east wast fisheriesagreement
is relevant to this case, suggestingthatbet"taken into acwunt as
evidenceof Canada'sstatusas a wastal State in relation to Georges Bank,
of Canada's established share in the Georges Bank fishery,and of the
fundamental justice of a maritime boundary that will mainta...
Canadian presence on the Ba'".Part II of this Counter-Memorial has
established that a rejected and unratified treaty does not create obliga-
tions or rights for the States ihat negotiated it, and cannot be invokedto
the prejudice of a negotiating State in a dispute relating to the subject

matter of such a failed agreement. Quite apart from such legal wnsider-
ations, Canada's assertions are not supported by the. wntent of the
rejected and unratified agreement. In effect, Canada seeksto penalizethe
United States for engaging in good-faith negotiations. Any recognitionby
this Court of the failed agreement wouldprovedetrimental to settlement
negotiationsbetween States.

'TheintercstofthestateofMaineinthis.swellastheinteresuoftheother
New Ennlandstatcs.is notlimitedIofisheries.Thesesaninterestinw
tentials&rm ofen& aswell.SceAnnex6,Vol.IV
'CanadianMemorial,par276.138 GULF OF MAINE . [2111

1. In Addition to Being Legolly Irrelevant. the Canadian Argument
Regarding the Rejected and Unratified East Coast Fisheries Agreement
is Nor Supported by the Content of that Agreement

331. The failed 1979 fisheries agreement did not concern Georges
Bank or the northeastern portion of the Bank alone. Had that agreement
entered into force, it would have established an "elaborate regulatory
system "'for jointly allocating fishery resources and managing fishing
activity from Newfoundland to North Carolina '.The agreement would
bave provided for a Canadian presence and voice with regard to the
fisheries of Georges Bank and fisheries as far to the southwest as North
Carolina. It also would have protected, however, traditional United States

fisheries in lCNAF Subareas 3 (off Newfoundland) and 4 (off Nova
Swtia), and provided for a United States voice in the management of
those fisheries off Canada's Coast. Thus, the failed agreement was a
complex, integrated arrangement. From the United States perspective, it
was premised upon United States access to fisheries off Nova Scotia and
Newfoundland. Accordingly, the content of the failed agreement does not,
in fact, support Canada's assertions'.

332. The unilateral termination by Canada, in 1978, of traditional
United States fisheries in Subareas 3 and 4, was central to the failure of
the 1979 fisheries agreement. Canada asserts that the reason for its
unilateral termination of reciprocal fishing was the threat that United

States fishing posed to the conservation of Georges Bank stocks. In this
wnnection, Canada claims that the informal 1978 reciprocal fishing
agreement "was operating in a manner that was increasingly damaging to
Canadian interests4".

'CanadianMcmorial.para. 264.
'Aspectsofthe failedagreementaredescribedat paras. 264-270 ofthe Canadian

Memorial.
'WhileCanada has focusedon someaspects ofthe failedagreementrelatingto
Georges Bank. other aspects, such as the maintenanceof the United States
fisheriesoff Canada's wast and the dominanccof the United States in the
GeorgesBank fisheriesunder the rejectedand unratified agreement,were not
identificd.Canada'sselcctivefocusonwntent resultsin a distorted pictureof the
underlyingwnccptof the ncgotiations,which wasto secka separationof fishery-
managementquestions from boundary questionasssuch.Theboundarywasto be
leftto bindingthird-partysettlement,and thefailedfisheriesagreementwa10be
without prejudiccto that question.Canada is fundamentallyin error when it
states that "the basicprcmiseof the.. . negotiationswasthat the boundary and
resourceissues shouldbe dealt withnot in isolationbut as an integratedwhole".
CanadianMemorial,para. 255.
' CanadianMemorial,para. 237. [2121 COUMER-MEMORIALOF THE UNITED STATES 139
333. Canada's stated concern for conservation is not borne out by its

actions. In 1977 and 1978,the Canadian fleet expanded significantly its
fishing effort on Georges Bank '.Canadian newspaper reports indicated
that the motivation bebindCanada's terminationof reciprocal fishingand
increase in fishing effort was tocquire increased leveragein the ongoing

negotiations, excluding United States fishermen from waters off the
Canadian coast, while asserting a claim to waters off the United States
coast '.

334. The Canadian action in unilaterally terminating reciprocal fishing
in June, 1978,seriously eroded political support for the proposed agree-
ment in the United States. United States fishermenwhohad oncestoodto

benefit from the agreement, particularly fishermen from Maine and
Boston,either left fishingbecause of Canada's unilateralaction of closing
United States fisheries more than 200 years old,or made adjustments into
other fisheries, includingthe GeorgesBank fisheries,off the United States

coast. Whatever interest remained in the agreement was not sufficiently
strong to overcomethe objectionsof otber United States fishermen. Those
fishermen recognized that Georges Bank was the last major fishing
ground available to United States fishermen on the northeast Atlantic

coast wheretraditional catches of cod and haddock couldbe caught. They
also recognizedthat access tothe scallop beds on the northeastern portion
of the Bank was required to maintain yearly scallopcatches at relatively
constant levels. Those fishermen believed strongly that United States
jurisdiction overal1of Gwrges Bank should not be sacrificed under any

agreement in order to .achieve limited United States readmission to
Subareas 3 and 4 off Canada.

335. Canada's departure from the Joint Report of the Special Negotia-
tors of 15 October 1977' was another important reason why the failed
1979 east coast fisheries agreement did not gain the support of United
States fishermen or that of the United States Congress.That joint report

produced the context witbin which the two sides agreed to conduct the
negotiations. Throughout the seventeen months between the 15 October
1977 Report and signature of the proposed agreement, a number of

'Part 1,ChaptcrIV,para. 70, and Annex18.

'For the Canadianperspctive in terminating the1978interim fisheries agree-
ment, see twoarticlesreprintedfromthe Halifax Chronicle-Herald of 3 June
1978.Annex40,Vol. V.
'Canada refersto the Joint Reportof 15October1977at CanadianMemorial.
para.251, andreproduces iat Annexes,Vol. II,Annex 36C. anadaStatesthat the
failedagreement"faithfullyreflected"theJoint Report.Paras.251 and263.1140 GULF OF MAINE Pl31

factors emerged to change that negotiating wntext '.Most importantly,
Canada's unilateral termination of United States fishing off Canada's
wast had a profound effect. Furthermore. when the United States

negotiator suggested a 10-year time frame, as had been contemplated by
the 15 Octoher 1977 Report', Canada took the view that the only
acceptable fishery agreement would be a permanent one '.Canada refused
to budge from this position '.

336. Canada argues that the rejected and unratified agreement "re-
flects an established tradition of North American fisheriesrelations '".As
Canada is aware, however, the history of east coast fishery cooperation is
one marked by many agreements that were negotiated but subsequently
failed to enter into forc6.

2. The Canadian Argument Seeks to Penalize the United States for
Engagingin Good-Faith Negotiations

337. Canada argues that any adjudicated boundary that does not
accord Canada certain of the rights envisioned in the failed fisheries
agreement would be inequitable. Canada's position is that, if under a
rejected and unratified fisheries agreement Canada would have been

entitled to a share of the fish of Georges Bank,then Canada should be en-
titled to a share of the Bank under an equitable delimitation of the single
maritime boundary.
338. This argument must be rejected hy the Court. The failed 1979
east coast fisheries agreement ultimately was not accepted by the United

States, because it was deemed fundamentally unfair. The Canadian
position attemptsto penalize the United States for engaging in good-faith,

'The understandingswntained in the report were reachedat a time whenthe
UnitedStates and Canadaeachhad lessthanoneyiar'sexperienceinmanaginga
200-nautical-mile fisheryne.At the time.expectationsin the fishingwmmuni-
liesof bath Stateswerein the earlystagcsof formulation.As timepassed,there
wasan increasingawarenesson the part of UnitedStates and Canadian officiais
ofthe implicationsof the 200-nautical-milezone.
'The Attachment tothe Joint Reportof 150ckber 1977,"PrinciplesForA Joint
FisheriesCommissionTo BeEstablishedByA ConventionBetweenCanada and
the United States",pronded.at para.XIII,for"ProvisionForWithdrawalUpon
Notice".CanadianMemorial,Annexes,Vol. II.Annex 36,p. 262. .
'Canada discussesits departurc from the Joint Reportat Canadian Memorial,
para. 254.
'The proposedperpetualnatureofthe failed fishingagreemenm t ayhavebeenthe
singlemostdecisivefactor uniting Unitedtatesfishermen against it.
'CanadianMcmorial,para. 274.

<Sec UnitedStates Memorial,para. 67., n. 3 and Annex 17.See also Canadian
Memorial,Annexes,Vol. 1,Historical Introduction. Recently, e 1978interim
fisheriesagreementfailedto enter into forcecauseof Canada'srefusal.12141 COUNTER-MEMOW OF THEUNIT~DSTATES 141

though unsuccessful,negotiations. Ifacceptedhy the Court, the Canadian
argument would render disputes around the world overmarine resources
and jurisdiction infinitely more resistant to solution.Any rule that would
impede the full, free, and vigorous pursuit of negotiated solutions to
disputes would be incompatible with a fundamental requirement of

international legal order and must be rejected.
339. In this connection,one additional matter must be noted. During

this dispute, the United States has acted with restraint and bas not
enforced its laws or exercised its rights, with respect to Canada, in the
boundary region. These acts of forbearance were for purposesof facilitat-
ing a peaceful resolutionof the dispute and avoiding serious conflict
between the Parties pending such resolution. These actions were under-
taken in reliance upon the view that restraint would no! be legally or
factually prejudical to the interests of the United State'.Indeed, were
tbese acts of forbearance adversely to affect the interests of the United

States, the United States and doubtless other States would have to
reexamine their positionsin other disputes'.

SECTION 6. Considerations of Purported Economic Depeodence and
RelativeWealth, UponWhichCanada Reliesto Support Its Line,Are Not
LegallyRelevant;Evenif Such ConsiderationsWere LegallyRelevant,the
Facts, When FuUyand Fairly Analyzed, Do Not Support Canada'sClaim

340. In Part 1of its Memorial (as amplifiedin Part 1of this Counter-
Memorial),the United States presents those facts it believesto be legally

relevanttothe delimitation ofthe singlemaritime boundary inthe Gulf of
Maine area. With respect to fishing activities carried out by nationals of
the Parties, the United States demonstrated the longer, fuller, and, until
recently,almost exclusiveuse that its nationals have made of the fisheries
of GeorgesBank and the Gulf of Maine Basin.

'Articles74(3)and 83(3oftheConvention adopteb dytheThirdUnitedNations
Conference onthe LawoftheSea each provide:

"Pending agreementas provided forin paragraph 1, the States
wncerned, ina spiritof understandingand co-operation,hallmake
everyefforttoenter intoprovisionlrrangementsofa practical nature
and.duringthis transitionalperiod,not to jeopardireor hamperthe
reachingof the final agreement.ucharrangements shalb l e without
prejudicctothcfinalbclimitation."

UnitedNationsConvention onthe Lawofthe Sea,openedfor signature 10 Dec.
1982.
'This pattern of UnitedStates activityis to be wmparedto that of Canada,
which,in the midstof negotiationsin 1917, notifiedthe UnitedStates of ils
intentionto cxpandits claim,and whichchose in 1978 unilaterallyto exclude
UnitedStatesfishermcnfromtheir traditionfailshcricsinSubarea3 and4 offof
Canada.142 GULF OFMAINE [2151

341. In its Memorial, Canada argues that economic dependence and
relative wealth are legally relevant to delimitation.Canada goesso far as
to assert that economic dependenceis entitled to "special weightin the
balancing-up of al1the relevant circumstances "'.

342. As was shown in Part II of this Counter-Memorial, the law
relating to the delimitation of maritime boundaries has rejected the
relevance of economic dependenceand relative wealth, hecauseof their
variable and unpredictahle character. The measurement of economic
dependence and relative wealth unavoidably requiresthat assumptionsbe
made, parameters chosen, and data selected. Depending upon the deci-

sions that are made in this regard, the rich can be made to appear poor
and the poor, rich. Morwver, even if they wuld be measured accurately,
because they are variable and unpredictable, purported economicdepen-
dence and relative wealth should notdetermine a boundary designed to
last forever. Finally, such wnsiderations are not legally relevantbecause,
otherwise,States would be diswuraged from bringing disputes heforethe
Court, thereby underminingthe pcace'~1settlement of disputes '.

343. Canada relies heavilyupon ~ssertionsabout economicdependence
to support ils position.In an effort to wrrect the record, the United States
has analyzed the Canadian socio-ewnomic arguments for the Court's
information, despite their irrelevance as a matter of law. Annex 4. That
analysis leads to the conclusion that, even if ewnomic dependence and

relative wealth were legally relevant,the adjusted perpendicular line
proposed by the United States is a more equitable solution than any
boundary crossingGwrges Bank.

344. The description in the Canadian Memorial of Canadian fishing
activities is inwmplete and misleading. It relies upon statistics from an
unrepresentative period that do not reflect either the historic activitiesof
the Parties in the area or their present activiti'.Canada also exagger-
ales the economic importance of its fishery on Georges Bank to its
ewnomy. Fishingon Gwrges Bank does not make a significant wntribu-
tion to the national economyof Canada '.Even in terms of the regional
ewnomy of Nova Scotia, the contribution of this fishing is notgreat '.

'CanadianMemorial.para.31 1.

'If consideratioof economicdependenceand relativewealthwereto bcmade
legally relevant, ituestionablewhetherthe "richer"oftwoStateswouldever
tepreparedtorcsorttobindingthird-partydisputesettlementproccdures.
'ThefisherystatisticsproffercdintheCanadianMemorialreferto 1969-1978a ,n
unrcprescntativeperiod.See Part 1, Chapter IV, Section2, of this Counter-
Mcmorialand Annex4. Vol. III, A FactualAnalysisof the Soci*Economic
ArgumentsintheCanadianMemorial.Chapter 1.
'Anncx 4, Vol.III, Chapter1. 12161 COUNTER-MEMORIALOFTHE UNmD STATES 143

345. Although the contribution that fishing on Georges Bank makes to
the economy at the local level is significant in certain cases, it is
significantonlyto a fewtowns inNova Scotia.Morwver, the contribution
of such fishingto the economiesof those fewcommunitiesin Nova Scotia
does not approach that suggested in the Canadian Memorial '.

346. Canada, in suggesting that Nova Scotia is a one-dimensional,
largely poor, rural, and fishery-based economy ',understates the strength
and diversityof the Nova Scotia ewnomy and the standard of livingof its

inhabitants '.That economy,reflecting its developedcharacter, is strong
and diverse. The standard of living in Nova Scotia compares favorably
with the rest of CanadaL. The economy of Nova Scotia has far more
flexibility to absorb any effects resulting from confirmationof United
States jurisdiction over Georges Bank than Canada suggests. Besidesthe
many opportunities in the fishing industry, particularly the enormous
potential for expansionin Canada's fisheries off Newfoundland ', Cana-

da'sownstudies reportthat Nova Scotia isonthe brink of anera of signif-
icant developmentas the result of major discoveriesof natural gas on the
Scotian Shelf '.

347. The adjusted perpendicular lineproposedby the United States, on
the one hand, respects Canada's interests in the Scotian Shelf. The
Canadian line, on the other hand, would, if adopted, unduly and
unnaturally restrict New England fishermen toan area smaller than they
historically have had availableto them, especially in light of Canada's
unilateral expulsion of United States fishermen in 1978 from their
traditional fisheries in Subareas 3 and 4 off Canada. The traditional fish
stocks alongthe United States east coast are fully utilized. In contrast to

the alternatives available to Nova Scotia fishermen, there is no place for
displaced NewEngland fishermen to go 6.

'Annex 4,Vol.III, ~hapter.11.
'See generallyCanadianMemorial,paras.62, 120,143,and 169.
'Annex4,Vol.III, ChapterIII.

'Annex 4,Vol.III, ChapterIII, Section2.
'Annex4,Vol.III, ChapterIII, Section 3.
'Canada's argumen ttat itspurportedeconomic depcndencc uponGeorgesBank
is relevant tothe delimitationofthe singlemaritimeboundaryin the Gulfof
Mainearea must heexaminedin thecontextofCanada'sextensionof itsfishery
jurisdictionfrom 12 to200nauticalmiles.Canada bcncfittedgreatlyfromthe
creationofitsown200-nautical-milz eone and from therestrictions placedupon
foreignfishing.This isevidentin the increasein Canadiancatchesthat resulted
fromtheextensionof Canadianfisheryjurisdiction.In 1975,Canadiancatchesfor

lfootnote continuedon next page) 144 GULF OFMAINE t2171

348. Thus, even if economic dependence and relative wealth were
legally relevant, which they are not, the adjusted perpendicular line

proposed hy the United States produces an equitable solution, while the
Canadian line would not.

SECTION 7.The Canadian Line Would Not Take Account of the Two
Eguitable Principles that the Boundary Should Facilitate Resource Con-
servation and Management, and that the Boundary ShouldMinimize the
Potential for International Disputes

349. Canada's line cuts across Georges Bank-whichCanada admits is
a "semi-discrete marine ecosystem "'dividinthe resident stocks of fish
and shellfish associated with Georges Bank. Canada's line thus is
inconsistent with the equitable principle that the boundary should facili-
tate resource conservation and management', as well-as the equitable
principle that the boundary shouldimize the potential for internation-
al dispute'.

A. THE CANADIAN LINEWOULDHINDERCONSERVATIO AND
MANAGEMEN OF THE FISHERY RESOURCE OSFGEORGES BANK
350. In its Memorial, the United States listed 16commercially impor-

tant species in the Gulf of Maine area,and noted that there were stocks of
12 of these species associated with Georges Bank. The United States
demonstrated that tbese stocks would be divided by an equidistant line
Similarly, the Canadian line, or any other line crossing Georges Bank,
would cut through these 12 stocks. By contrast, these stocks would not be
divided hy the adjusted perpendicular line proposed hy the United States.
The other four speciesill be divided by whatever boundary is delimited
in the Gulf of Maine area.

351. An analysis of additional stocks of. commercially important
species in the Gulf of Maine area demonstrates that the only stocks
divided hy the adjusted perpendicular line proposed by the United States

(foofnofeconfinuedfrothepreviouspage)

al1ICNAF subareastotalled789,655mctric tons.In 1980,Canadianeast caast
catches,excludingcatches fromSuharea 5, totalled 1,084,641metrictons. The
Canadian catch in Subarca 5 adds only an additionalfour per cent, or 30.583
metrictonsto the totalincreasein Canadiancatch as a resultof the extensionof
Canada'sfisheryjurisdictionon its east caastfrom 12to 200nauticalmiles..See
ICNAFSraf. Bull., 1975,Vol.25, pp. 32,65; NAFOSfaf. Bull.. 1980,Vol. 30.
pp. 18,8,61. TheICNAFandNAFOstatisticshavebeenadjustedtousescallop
meatweightrather than scallopshellweight.
'CanadianMemorial,paras.89and 93.
UnitedStates Mcmorial, paras.247.251.
'UnitedStates Mcmorial,paras.252-256.
UnitedStates Memorial,paras.316-319and Figure36.
@t2181 COUNTER-MEMO OFRLHUUNITEDSTATES 145

are stocks of wide-ranging species, such as mackerel '.Such stocks,
however,willbe dividedby any boundary in the area. Bycontrast,al1resi-
dent stocks on Georges Bank, as well as stocks of wide-ranging species,
wouldbe dividedby the Canadian line.

352. Any boundary crossing Georges Bank, includingthe Canadian
line, would relegate the resident Georges Bank stocks tothe status of
common pool resources. Historically, fishermen from differentStates

have adopted the attitude that they shouldtake as much of commonpool
resources as they can, because, if they do not, fishermen fromanother
State will. That cornpetitive attitude, if not regulated, leads to the
depletion and reduced productivityof the stocks. The Canadian line, by
providing to Canada access to the Georges Bank stocks,creates such
competition between the two States. Recently, the "tragedy of the

commons"was referred to in the Canadian Kirby Report as follows:
"The tragedy of the commons develops in this way. Picture a
Pasture open to all. It is to be expected that each herdsman will

try to keep as many cattle as possibleon the commons....The
rational herdsman concludes that the only sensible course for
him to pursue is to add another animal to his herd. Andanother;
and another.... But this is the conclusion reachedby cach and
every rational herdsman sharing a commons. Therein is the
tragedy. Each man is locked into a system that compelshim to
increase his herd withoutlimit-in a world that is limited. Ruin

is the destination toward which al1men rush, each pursuing his
ownbest interest in a Societythat believesin the freedom of the
commons. Freedomin a commons bringsruin to al1 '."

353. The United States Memorial describes someof the conservation
and management problems associated with commonpool resources, as
follows:

"The management objectivesof States that share stocks are
often contraryand difficult to reconcile.One State, for example,
may prefer to acceptlarge reductions in current catches in hopes
of larger future harvests; the other may not be willingto accept
the short-term dislocationsinherent in such a policy.One State
may prefer as a matter of nutritional or employment policy to

harvest the maximum sustainable yield of a given stock; the
other may prefer to maximize profit by capturing fewer fish but
a greater catch per unit of effort. One State may wish to

'Sec Annex 1T, heMarineEnvironmeno tfthe Gulfof MaineArea.
'G. Hardin,"The Tragedyof the Commons",in Science,1968, quotedin the
KirbyReport.Annex 36,Vol.V.146 GULFOF MAINE 12191

maximize the yield of a single valuahle species in a mixed-

speciesfishery,whilethe other State may prefer to accept lower
yieldsof that speciesin order to maximizethe yield of the entire
fishery. There may also be disagreements over management
techniques, such as basic choices hetween gear types, setting
annual quotas or fixing minimum fish sizes, year-round or
seasonal fishing,and limitedentryor freecompetition, asasll

scientific disputes concerning such matters as the status of the
stock,the amount of allowablecatch, and the effect of proposed
management measures. These disagreements are more than
technical. They affect how much is caught, when, and by
whom '."

354. This common pool problem, which militates against resource
conservation, is compoundedin the case of Georges Bank hecause of the
seasonal movementof important stocks. Table 'showsthe percentages

of cod ,addock, and yellowtailflounder stockstaken on the northeastern
portion of Georges Bank and on the remainder of the Bank, during the
bottom trawl survey cruises conducted by the United States National
Marine Fisheries Servicein the spring, summer, and autumn1980.

TABLE C

YELLOWTAIL
COD HADDOCK FLOUNDER
North- RemainingNorth- RemainingNortb- Remaining
esstem Portion eastem Portion eastern Portion
Porîion Portion Portion

SPRlNG 47.8% 52.2% 78.1% 21.9% 63.2% 36.8%

SUMMER 75.7% 24.3% 96.1% 3.9% 0.8% 99.2%
AUTUMN 55.7% 44.3% 67.6% 32.4% 53.6% 46.4%

As can he seen, at certain seasons of the year, fishermen on the
northeastern portion of Georges Bank have access toa bigh percentage of

important Georges Bank stocks.Thus, if the Canadian line had been a
boundary in force between the Parties1980,United States fishermen
wouldnot have had accessto an area in which two-thirds of the haddock
stock were to be found, regardlessof the season. Over 60 per cent of the
Georges Bank yellowtail flounder stock would have been subject to
Canadian fishing pressure during the spring, w99.2per cent of that
stock would have been available to United States fishermen during the

'UniteStatesMernorial,para189n. 1.
'SeeAnnex 38,VolV.[2201 COUNTER-MEMORIAL OF THE UNmD STATES 147

summer. A similar pattern would have been evidencedin the cad fishery.
This is the essenceof the commonpool.If Canadian fishermencaught al1
that they were able to in the spring, they would greatly reduce the fish
availableto United States fishermenduring the summer. Similarly, heavy
United States fishingin the summer couldreduce the stocks,and preempt

the Canadian fishery in the spring '.
355. Although the percentages Varyfrom year to year, these patterns
are far from unusual. Moreover,such patterns apply to other,stocks as

well.Large percentages of the same stocksare available in different parts
of Georges Bank, dependingupon the season '.In order for United States
fishermen to maintain their traditional catches of these stocks,they must
have accessto them throughout their range, particularly in localeswhere
the stocks concentrate seasonally,such as on the northeastern portion of
Georges Bank.Thus, when Canada states that GeorgesBank groundfish
stocks "range over large areas of the Bank and become available for

capture in the undisputed waters of the United States zone'", it is
espousing an erroneous and misleading view of the Georges Bank
ecologicalregime and the fisheries it supports.The Canadian line would
deny to the United States its historic access to stocks that its fishermen
have fished for centuries,and that supplytraditional fresh fish markets in
the eastern United States. Canada, on the contrary, exports to other
countries a large share of its catch of these species4.The groundfish and

scallop stocks on Georges Bank werefully utilized by the United States
before Canada recently entered those fisheries. In order to achieve that
utilization, United States fishermen fished the entire Bank. The large
concentrations of stocks on the northeastern portion of Georges Bank
during someseasons,the seasonalmovementsof the stocks,and the yearly
fluctuations in stock movement and abundance must al1 be taken into
account in the management and utilization of a fishery such as that on

Georges Bank. Canada is mistaken when it states that "the undisputed
part of Georges Bank givesthe United States an ample resource base to
sustain a healthy fishery and allowpotential for future growth "'.

'ThepercentagesinTable 3 arenotcatchfigures.Nonethelessi,na common-pool
situation, thereis a relationshipbetweenfishing pressand stockavailability.
Fishcrmenmaybe erpectedto takeadvantageof the situationthat exists.with
overfishinthelikelyresult.
See Annex 38.Vol.V.
'CanadianMemorial.para. 118.

'CanadianMemorial.para. 162.
'CanadianMcmorial,para. 140.UnlikeCanada,withitsvastnorthernresources,
theUnitedStateshasnoalternativecod or haddockstocks:O whichitsfishermen
mavturn. Furthermore.the alternativeellowtainlounderstockoffsouthernNew
~nglandisfullyutilized148 GULFOFMAINE [2211

356. Another way of illustrating the commonpool issue is to consider
the number of stocks (and their potential yield) that would require joint
management if the Canadian positionwereto be upheld inthis case. Asis
shown by the tables at Annex 37 ',the adjusted perpendicular line

proposed by the United States leaves to Canada's sole management and
use 56 per cent of the potential finfish and squid fisheries yield in
Subareas 2 through 6. The United States would manage and use 29 per
cent. Fifteen per cent would be subject to joint management. The
Canadian line woulddouble the potential yield, and more than triple the
numherof stockssubject tojoint management. It wouldcut in half the po-
tential yield subject to exclusiveUnited States management and use, and
greatlyincrease the potential for dispute.

357. Accordingly,the Canadian line not only woulddeny to the United
States full access to stocks that are the foundation of the New England
fishing industry,but wouldalso exacerbate forever the knotty prohlemof
common-pool resource management. The adjusted perpendicular line
proposedby the United States has no such harmful effects.

B. THE CANADIAN LINEWOULDNOT MINIMIZE THE POTENTIAL FOR
INTERNATION AILSPUTES

1. The Canadian Line Would Creafe a Perpetual Dispute Over the
Divisiondthe FisheryResources

358. The Canadianline,by dividingthe GeorgesBankstocksbetweenthe
UnitedStates and Canada,wouldenahlethe fishery resources tobedepleted
by fishingon eithersideof the line.In otherwords,the sizeof the Canadian
catches wouldaffect the sizeof the United States catches, and viceversa.
Such a direct conflictof interests is inevitably productiveof disputes.The
distribution of resourcesbetween the fishermen of two or more States is
notoriouslydifficult toresolveby negotiation,as witnessed,for example,by

the historyof the failed 1979fishery agreement. Fishery disputhe east
coasthave affected relationsbetweenthe United States and Great Britain,
and the United States and Canada, sincethe foundingof the Republic.A
boundarythat permanentlydividesthe GeorgesBankresident fisherystocks
betweenthe two States wouldensurethat the potential for fishery disputes
betweenthe UnitedStatesand Canadawouldexistforever.

TherearefivetablesinAnnex37.Table 1isanAssessmeno tfthe PotentialAn-
nualYieldforStocksinSubareas2,3,and 4.Table2isanAssessmeno tfthePo-
tentialAnnualYieldforStocksin Subareas5 an6.Table3 isan Assessmenotf
PotentialnnualYieldfor the four cross-SubareaStocks-mackerel,pollock,
shortfinsquid (illex)a,nd argentine4 identifiesthe Subar5and 6stocks
that wouldecomecross-boundarystocksif theCanadianlinewere toheupheld
in this case.Tablecomparesthe adjustedperpendicularlineproposedhy the
UnitedStatestotheCanadianline withregardtothe potentialyieldthatwouldbe
subjecttoCanadiansingle-Statemanagement, UnitedStatessingleatate man-
agement,orjointmanagement.[2221 COUNTER-MEMORIALOF THE UNITED STATES 149
2. The Canadian Line Would Bring into Direct Codict the National

Fisheries Policiesof the Parties
359. The Parties differ sharply in their basic policies of fisheries
management, adding significantlyto the complicatedtask of reaching and

maintaining agreement on the conservation and management of any
transboundary stocks. In large measure, it was the clash of these policies,
whichwere only fully evidencedafter each government had experiencein
managing a 200-nautical-mile zone, that made it impossible for the
United States to ratify the failed 1979eastCoastfisheriesagreement. The
Canadian line would bring the national fisherypoliciesand practices of
the two countries into direct conflict with respect to the resources of
Georges Bank.

360. Canada manages its Atlantic fisheries as an economic develop
ment program for Atlantic Canada as a whole '.Consequently,Canadian
federal fisheries managers are required to balance the often conflicting
requirements of conservation of the resource and broad social and
economic objectives.Canada uses an area and quota licensing systemto
restrict fishermen to certain fisheries. The Canadian licensing system
reflects a number of governmental assumptions about the promotion of

economic development in Atlantic Canada '.In order to carry out the
necessary balancing of objectives,the Canadian government has become
extensivelyinvolvedin the management of the Canadian fishing industry,
as wellas in the managment of the stocks.

361. The United States has evolveda different policyfor the manage-
ment of fisheries. In the United States system, the federal government
only provides scientific,enforcement, and other support services to a
group of fishery management councilsin each region of the country '.
These councilsare charged with recommendingthe specificobjectivesfor
each fishery, subject to certain broad national standards concerning
conservation and full utilization of the resources and for proposing
management plans to achieve these objectives. These standards require
that the fisheries be managed for the benefit of the fishing industry and
the consumer, rather than as an economic developmentprogram for the

societyat large '.

'See theKirbyReport,Chapter10,at Annex36, VolV . .
'See Annex4,Vol.III, Appendix D.
'Fishery Conservatioa nnd ManagementAct, sec. 302, 16 U.S.C. sec. 1852;
reprinredar UnitedStatesMemorial,Annex8,Vol. 1.
'The FisheryConservationand ManagementAct allowsfor the possibilityof
establishingsystemsto limit entry intoa fishery,subjectto certainconditions.
Nevertheless,the regionalfisherymanagementcouncilsnormallyhaverejected
this option. Managemen ptlansusuallyrely upon market forcesto adjust the
numberof vesselsina fishery.12241 cout4TER-MEMom OFTHE uNmD STATES 151
365. In brief, the United States and Canada have both developed

reasonable but different approaches to the management of east coast
fisheries. Nevertheless,the twosystems cannot be usedsimultaneously for
the management of Georges Bank stocks. To the extent that they are
forced to accommodate each other's practices,one may expect disputes,
delays,and impaired conservation.

366. For example, it is doubtful, in light of the experience from the
early 1960stothe present, that the scallopstockon Georges Bankcan sus-

tain high levelsof abundance if it is subject to simultaneous fishingby a
Canadian fleet that, by the terms of its licenses,has noother choicebut to
fish for scallopsonoffshore banks, andby a United States fleetthat isfree
to switch back and forth between the scallop and other fisheries. If the
Georges Bank scallop stock had tobe managedjointly, Canada undoubt-

edly would seek to have the New England fleet limited in a manne;
similar to that of Canada, especially when the availability of scallops is
high. It can be predicted that a United States governmental effort to
establish a permanent offshore scallop fleetof limited numbers wouldbe
strongly resisted in New England. The United States, in al1likelihood,in

turn would prefer that Canada allow the Canadian scallop vessels the
freedomto leavethe Georges Bank scallop fishery forthe inshoregrounds
off the Nova Scotia coast, the offshore groundfisberyon the Scotian Shelf
or on the Grand Banksof Newfoundland, or elsewhere,particulary when
the availability of scallopson Georges Bank is low.This would likely be

resisted by Canada, because it would upset the social, political, and
economic objectives sought to be balanced by the Canadian fisheries
managers.

367. The matter becomes more complicated when al1the groundfish
and otber stocks are considered. Because of their seasonal movement,
groundfish would be subjected to heavy fishing pressureon either side of
any line splitting Georges Bank.The area and quota approach of Canada,
whicb focuses on the management of a single species, and the flexible

approach of the United States, which focuseson the management of the
total ecosystem,are fundamentally incompatible ways of managing the
fisheriesof Georges Bank.

368. The divergent management systemsof the Parties have evolvedto
the point where straightforward solutions to joint-management problems
are not foreseeable. This problem exists independentof the will of the
Parties; it is intrinsic to the situation. The Canadian line would bring

these different systems into direct conflict, because it maximizes the
number of stocks subject to joint management.By contrast, the potential
for disputes and the risk to conservation are minimized by the adjusted
perpendicular lineproposedby the United States.152 ouw OFMAINE 12251

3. A koundary Dividing GeorgesBank Would Create a Major and
ContinuingIrritant in the Relations Between theUnited States and
Canada,BecauseCanadaWouldBe Entitled to Make Decisianson Oil

and Cas DevelopmentAffectin the Entire Bank, WithoutBearinga
CommemurateRisk af MarinePollufion
369. The United States has demonstrated, at Chapter III of Part 1and

at Annex 2, that any pollution from hydrocarbon developmenton the
northeastern portion of Georges Bank is not likely to affect significantly
the coasts of the Gulf of Maine area, but would spread acrossthe Bank.
The impact of such pollution would fa11upon the resident stocks of
commerciallyimportant fish and shellfish, in particular those that spawn
on the northeastern portion of Georges Bank and the bottom dwellers
whoseflesh wouldbe tainted by oil.

370. The Canadian line would allow Canada to authorize and to
conduct oil and gas activities on Georges Bank, without bearingthe risk
that marine pollutionresulting from those activitieswouldspread toareas

of Canadian interest on the Scotian Shelf. The pollution instead would
spread to areas of United States interest. Canada wouldthereby enjoy the
henefitsof its decisionswithout bearingthe total risk, whereasthe United
States would bear a major portion of the risk without any share in the
benefits. Any such developmentwould set the stage for serious political
disputes hetweenthe Parties.

371. The developmentof the hydrocarbon resourcesof the continental
shelf in environmentally sensitive areas is a delicate matter in both
Canada and in the United States. Despite the elaborate proceduresunder

United States law to ensure the prior assessment of the environmental
impact ofdrilling on the continental she',proposalsby the United States
federal government to authorize such 'developmentare often opposedby
local interests and state and local governments.Drilling on Georges Bank
has been particulary controversial in the New England states because of
the fisheries and recreational interests in the area. In fact, federal
programsfor hydrocarbon developmenthave heensuspendedon a number

of occasionsas a result of lawsuits instituted by state and local govern-
ments and other interests'. Consequently, the United States

'UnitedStatesMernorialp , aras.94-96.
'Outer ContinentalShelf LeaseSale No. 42,involving123tracts on Georges
Bank,was initiallyscheduledfor 31 Januar1978, but wasenjoinedfor overa
year as a result of a lawsuit.See United States Mernorial,para97. Outer
ContinentalShelf LcaseSaleNo. 52,alsoinvolving partsofGeorgesBank,was
initiallyscheduledfor29 March1983, buthasbeenenjoined by a UnitedStates
District Courtin Massachusettspendingtheoutcomeoffurtherlitigation.Outer
Continental ShelfLeaseSaleNo. 76,involvingareaseastof LongIsland,New
York, also haseen enjoined pendintheoutcorneoffurtherlitigation.i2261 COUNTER-MEMORIAL OFTHE UNITEDSTATES 153

has been especiallycautious in proceeding withoil and pas development
activities on Georges Bank. The drilling that has been conducted by the
United States to date was authorized only after special equipment and
drillingtechniques had beenspecifiedforoperationsinthisarea'.

372. Canada and the United States have different procedures for
balancing the need for new energy resources and the protection of the
environment.The procedures adopted by the United Statesare more elab-
orate 2.Nevertheless, environmentalissues havebeen serious imtants in
the relations between the United States and Canada, particularly where

one Parîyhas perceivedthat it bears moreofthe riskand lessof thebenefit
of developmentthan doesthe other Party '.

373. If the delimitation of the maritime boundary in the Gulf of Maine
area hrings any part of Georges Bank under Canadian jurisdiction, itcan
fairly he predicted that the domesticcontroversyover drilling in the area
will be transformed into a serious international dispute. The adjusted
perpendicular lineproposed by the United States avoids such a dispute,
whilethe Canadian line in al1likelihoodwouldcause it.

SECTION 8. The Canadian Line DisregardsState Practice in Geographi-
caUySimilar Situations

374. As discussedin Part II,an analysisof State practice in geographi-
cally similar situations may illuminate the equitable principlestbat apply
in the case before the Court.

375. In the Gulf of Maine area, the land boundary meetsthe sea in the
far wrner of a deep coastal concavity. In such a circumstance, an
equidistant line would be drawn inward, across the face of the longer
United States coast, and wouldcut off the United States from the areas in
front of its coast. There are other boundary situations where the location
of the land boundary in relation to a deep wastal concavitywould cause
an equidistant line to encroachupon the extensionof the coastal front of

one of the States. Three such boundaries have been delimited by
agreement: in the North Sea between the Federal Republic of Germany

'UnitedStatesMernorialp , ara.96.
'United StatesMernorial.paras.89-101.

'In reccnt years, Canada has expressedwncerns about transboundaryair
pollutionand about the risksof transportingoil from Alaska alontghe Pacific
wast of Canada.The UnitedStates has expressed wncernsabout the risk of
pollutionfrom CanadiandrillinginArcticwaters.In theGulf ofMainearea,the
UnitedStatcshas objectedtoCanadianproposalstoproducehydroelectric cncrgy
byeredinga dam withinthe Bayof Fundy,and Canadahasobjected 10United
StatesproposalstotransportoilintoPassarnaquoddy Baytoberefinedin Maine. and Denmark, and between the Federal Republic and the Netherlands,
and in the Bay of Biscay between France and Spain. In each of these
cases, the Parties did not use equidistance for the greater part of the
boundary, butused other methodsof delimitation that better providedfor

the seaward extensionof their respectivecoastal fronts.

A. THENORTHSEA

376. A wmparison of boundary situations in the Gulf of Maine area
with those in the North Sea reveals both a similarity and a dissimilarity.
The areas are similar in that, in both cases. the land boundary meetsthe
sea insidea deepcoastal concavity, causing anequidistant lineto encroach
upon the seaward extensionof the coastal front of oneof the States. They
are dissimilar in that the seaward extent of the maritime jurisdictions of
the Federal Republic of Gerrnany, Denmark, and the Netherlands is
limited by opposingboundaries with the United Kingdom and Norway '.
Figure 27.In this case,the maritimejurisdiction of the United States and

of Canada in the Gulf of Maine area extend seaward into the Atlantic
Ocean to the maximum limitsof coastal-State jurisdiction.
377. The United States Memorial noted the similarity between the
Gulf of Maine area and the boundaries at issue in the North Seo

Continental SheUcases:
"The concavity formed in the Gulf of Maine area by the
relationship of the New England coast and the Nova Scotia
peninsula, together with the wnvexity of the peninsula itself,

causes the equidistant line to swing south across the United
@ States' wastal front. Figure 32.The geographicalconfiguration
here resemblesthe situation in the North Seo Coniinental SheU
cases, where the concavity formed by the Dutch, German, and
Danish coasts pulled the equidistant line acrossthe wastal front
of the Federal Republic of Germany, encroaching on the
seaward extensionof that wastline'."

@ 378. Figure 28 illustrates the similarity. Figure 28A shows how the
wncavity in the North Sea wast would cause equidistant lines to cut
acrossthe coastal front of the Federal Republic and to convergeat a point
just beyond the hypothetical closing line of the concavity. In order to
highlight the resemblance between the wncave German coast and the

'TheFederal RcpubliocfGermanyraisednoobjectiontotheDanish-Nonvegian
wntinental shelf boundary.nor to the British wntinental shclf as fixed by
agreementsbetweenthe UnitedKingdomand thc Netherlands,and bctweenthe
United Kingdomand Denmark.I.C.J. Pleodings.NorfhSeo Conrinent01SheU
cases,Vol1,P.25 (MemorialoftheFedcral RepublicfGermany).

'UnitedStatesMcmorial,para.310. [228-2361 COUNTER-MEMORW OF THE UNITEDSTATES 155

@ concaveUnited States coast insidethe Gulf of Maine, Figure 288 depicts
equidistant line boundaries in the Gulf of Maine drawn as if Maine and
New Hampshire together constituted a third State located between
Massachusetts and Canada. Here again, the coastal concavity causesthe
equidistant linesto cut across the coastal front of the middle "State" and
to convergeat a point near the closingline of the concavity.

379. Both examples are graphic testimony to the tendency of an
equidistant line, in cases of deep coastal concavities,to emphasize the
projecting points on the coast, and not to give effect to the coastlines
@ within the concavities. For example, in Figure 28B, the course of the
equidistant line from the closing line seaward isdetermined entirely by
base points on,or seaward of, Seal Island, Nova Scotia, and Cape Cod,
Massachusetts. The course is unaffected by the nationality-or even the
existence-of the land territory betweene points. Under the equidis-
tance method, the course of the boundary through the areas seaward of

the closing line would not change regardless of whether Maine-New
Hampshire were an independent nation,a part of Canada, a part of the
United States, or a part of the ocean. It should be noted that in Figure
@ 28B, the Massachusetts-Canada equidistant line seaward of the closing
line replicates the Denmark-Netherlands boundary rejected in the North
Sea Continental SheUcases.

380. The cornparison of the German coast with the Maine-New
Hampshire coast may be carried further. In the North Sea Continental
SheU cases, the Federal Republic of Germany presented a diagram
depicting the extensionsof the Parties' coastal fronts. See Figure 29. This
@ may becompared to Figure 23, whichillustrates the seaward extensionsof
the United States and Canadian coastal fronts. In both cases, equidistance
woulddeny to the middle "State" (Germanyand Maine-New Hampshire)
large areas that represent the extensionof its coastal front. The inequityis
greater in the Gulf of Maine because the boundary extends farther
seaward.

381. In the North Sea, the Parties avoided the inequities inherent in
the equidistance method by limiting the use of equidistant lines. The
@ results of the negotiations are illustrated in Figure 30, which showsthe
North Sea boundaries as agreed upon after the Court's judgment,
together with the equidistant '.Several observations may be made
about these agreed boundaries.

'AgreementBetweenthe Kingdomof Denmarkand the FederalRepublicof
GermanyConcerningtheDelimitationi,nthe CoastalRegions,oftheContinental
Shelfof the North Sca,signed9 June 1965; Agreet etweenthe Federal
RepuhlicofGermany andtheingdomofDenmarkConcerning theDelimitation
of the ContinentallfUnderthe NorthSea,signed28 January 1971;Treaty

(fwtnoreconrinuedonnexrpage) 156 GULF OF MAINE [237]

382. First, the negotiated boundaries divergesubstantially from equi-
distance. Equidistance is used only in areas close to the coast, out to
approximately 23 nautical miles from the Federal Republic-Denmark
land boundary terminus and out to approximately 38 nautical miles from
the Federal Republic-Netherlands land boundary terminus.As the bound-
aries proceed farther from the coast, they move farther away from the

equidistant lines. This is appropriate in view of the tendency of the
equidistant line to become increasingly distorted and inequitable as it
extends farther from the coast.
383. A comparison maybe made here between the North Sea and the

Gulf of Maine area. The distance from the coast of the last equidistant
point on the Federal Republic-Denmark boundaryis about 15.1per cent
of the distance fromthe coast tothe endpointof the boundary; in the case
of the Federal Republic-Netherlands boundary, this proportionis about
22.6 per cent. Equidistant-line segments of equivalent proportions in the
Gulf of Maine area would terminate 43.3 and 64.8 nautical miles,
O respectively, fromthe international boundary terminus '.Figure 31.

384. Second, the negotiated boundaries in the North Sea achieve a
reasonable degree of proportionality between the areas to he delimited
and the length of the relevant coasts. The proportionof coastal fronts, as
calculated by the Federal Republic, is 6 (Federal Republic) to 9 (Den-
mark) to 9 (the Netherlands). Equidistant lines would have dividedthe

area in a ratio of 6 to 12to 14.The negotiated boundariesdividethe area
instead in a ratio of 6 to 7.72 to 9.26.
385. Third, the negotiated boundariesin the North Sea avoidas much

as possiblecutting off any State from the area situated directly heforeits
coastal front. Inthe enclosedNorth Sea, where, as the Federal Republic
suggested, the continental shelves of the surrounding States tend to
convergein the center of the seabed, it is impossibleto accord eachState
the entire area in front of its coast. The sector lines proposed by the
Federal Republic were intended toavoid the cut-off effect that would

rmrnote conrinuedfrom theprevious page)
Betweenthe Kingdomofthe Netherlandsandthe Federal Republio cf Germany
Concerningthe LateralDelimitationof the ContinentalShclin the Vicinityof
the Coast. signed I Deamber 1964;Treaty Betwecnthe Kingdomof the
Ncthcrlandsand the Federal Republicof Germany Concernintg he Delimitation
of theContinental Shelf nderthe NorthSea.signed28January1971.Copiesof
these agrecmcntsmay be found in Store Pracrice in Maritime Delimirarion:
materialssubmittedhyCanadaon27September1982punuanttoArticle5q2)of
the RulesofCourt.
'Thesedistancesare 15.1percent and 22.6percent,respectivelyo,fthedistance
fromthe internationabl oundary terminus ttohepointonan equidistantlinethat
is 200nauticalmiles fromtheUnitedStatesandCanada. [238-2441 COUNTER-MEMORULOFTHEUNITEDSTATES 157

have been caused by drawing equidistant lines £rom the concave wast '.
The negotiated boundaries closely approximate the sector lines proposed
by the Federal Republic. Figure 32.

386. Fourth, the negotiated boundaries in the North Sea take acwunt
of the relevant circumstances in the area. Specifically, sharp turns in the
boundaries were designed to avoid crossing known oil fields. The detours
in these boundaries may be wmpared with the United States proposal,
where adjustments to the perpendicular line enable the boundary to avoid

crossing German Bank and Browns Bank, on the Scotian Shelf. .
387. There are also significant differences between the North Sea and
the Gulf of Maine area. As noted, the area to be delimited in the North
Sea was enclosed by opposing boundaries with Norway and the United

Kingdom. If Denmark, the Federal Republic of Germany, and the
Netherlands faced an open sea, as Canada and the United States face the
Atlantic, the negotiated boundaries might well have left even more area to
@ the Federal Republic l.Figure 33compares the maritime area available to
Denmark, the Netherlands, and the Federal Republic of Germany to an
area extending out to 200 nautical miles, which would have been subject
to their jurisdiction if Norway and the United Kingdom did not exist.
@ Figure 33A shows the boundaries that were negotiated, and Figure 33B
shows the boundaries that might have been negotiated if the North Sea

were an open ocean >.

'I.C.J. Reports1969,pp.20-21,para. 15.
'Indeed, Professor Jaenicke may have been suggestingas much in his oral
argumentinthe NorthSeo ContinentalSheifcases:
"If the wntinental shelf area which is apportioned between the
surroundingStates has a centre.as in the NorthSea,it seems tobe le-
gitimate to definethe wastal front of these States as the line which
represents the breadthof its wast facing thecentre. If we had no
centre,wewouldhaveto take the general directionof the wastline of
thcseStates facingthe continentalshelfarea wbichis to be distribut-
ed." I.C.J. Pleadings,North Sea ContinentalSheU,Vol11,p. 188.

'The hypotheticalboundariwin sucha casewouldbe wnsistentwiththe Court's
opinion:
"[Ib the present casethereare threeStateswhoseNorth Seawastlines
are in fact wmparahlein lcngth andwhich.therefore,have been given
broadlyequaltreatment by nature exceptthat the configurationof one
ofthe wastlineswould,if theequidistancemethodisused, deny toone
ofthesestates treatment wual or comparableto that giventhe other
two...Whatisunacceptableinthis instanceisthat a shouldcnloy
wntinental shclf rinhtsconsiderablydifferent fromthoseoiü neigh.
borsmerelybecausein the one casethe wastline is roughlywnvcx in
formand in the other itis markedlywncave, althoughthosewastlines
are comparablein length."I.C.J. Report1969.p. 50,para. 91.158 GULF OF MAINE [2451

388. Among previouslydelimited maritime boundaries, the area that
geographicallyismost likethe Gulf of Maine area isthe Bayof Biscay.In
both cases, the land boundary betweentwo adjacent States reaches the

sea in the far corner of alarge coastal wncavity. Figure 34. In both cases,
the concavity is roughly three-sided, with oneside belongingto one State
(SpainICanada) and the other Iwo sides belonging to the other State
(FrancelUnited States). In both cases, the wncavity would cause an
equidistant line to be pulled inward acrossthe wastal front of the State
with the longercoast (FranceJUnited States).

389. There are also differences between the two cases. For example,
the proportionsof the sides of the respectivecoasts are not identical. The
seaward-facingside of the Bay of Biscay,the French coast from the land
boundary to Pointe de la Negade, is proportionately shorter than the

wrresponding wastal front in the Gulf of Maine, the Maine-New
Hampshire coastline. Similarly, the inward-facing sides of the Bay of
Biscayare proportionalel'ylongerthan the correspondingsidesof the Gulf
of Maine. The Spanish coastal front facing into the Bay of Biscay
wnstitutes a large part of the Bay of Biscaywastline. In comparison, the
wrresponding Canadian wastal front that faces the Gulf of Maine,
includinga closingline acrossthe mouth of the Bay of Fundy, wnstitutes
only a small part of the Gulf of Maine wastline. Finally, in the Bay of

Biscay, there are no geomorphologicalfeatures of a significance equiva-
lent Io that of the Northeast Channel, Georges Bank, and the fishing
banks on the Swtian Shelf.

390. France and Spain have establisheda continental shelf boundaryin
the Bay of Biscay '.Figure 35. It should be noted that this is not a single
maritime boundary, andthat the boundary extendsonly to the closingline
across the mouth of the Bay of Biscay, from Cabo Ortegal (Spain) to
Pointe du Raz (France), and not IO the outer limit of coastal-State
jurisdiction. Nevertheless, it is instructiveto reviewthe results of the Bay
of Biscaydelimitation, and to note aspects relevant to the Gulf of Maine

area'.
391. First, the equidistance methodwas used inthe Bay of Biscay-as
in the North Sea boundaries-to delimit onlythe areas close to the shore.

The boundary followsthe equidistant line to Point R, approximately 108
nautical miles from the terminus of the land boundary. By contrast, the

'ConventionBetwecnFranceand Spainon the Delimitation of the Continental
ShelvesoftheTwoStatesin the Bayof Biscay, 29 January 1974. SeeLimifs in
theSeas.UnitedStatesMemorial,Annex 78, Vol.IV.
'Annex 10. Vol.IV, presentsa detailedanalysisof the methodsof delimitation
used intheBayofBiscay. [246-2541 COUNTER-MEMORIALOFTHE UNITEDSTATES 159

point at whichan equidistant line wouldintersect the closingline is about
244 nautical miles from the land boundary terminus. Thus, the equidis-
tant lineextends only 44 per cent of the distance from the land boundary
to the closingline. An equidistant line of thee proportiondrawn from
the international boundary terminus in the Gulf of Maine would termi-

nate approximately 66 nautical miles from the international boundary
@ terminus '.Figure 36. This point is1.4nautical milesfrom the endpointof
the hypothetical equidistant line segment, depicted at Figure31, which
was determined by analogy with the continental shelf boundary between

the Federal Republicof Germany and the Netherlands.
392. As the Bay of Biscay boundary proceeds seaward, it diverges

increasingly froman extension of the equidistant line. Figure7. This is
important in light of Canada's contentionsthat, at theouth of the Gulf
of Maine, the United States and Canada are opposite States, and that
equidistance would therefore he equitable. The Canadian argument
focuseson the relationship betweenNova Scotia and Massachusetts but

ignoresthe important Maine-New Hampshire coastline,whichisadjacent
to Canada both within and beyond the Gulf of Maine. It also ignoresthe
fact that the Nova Scotia and Massachusetts coasts are geographically
adjacent in relation tothereas seaward of the Gulf of Maine,just as the

coasts of the UnitedKingdomand France are geographicallyadjacent in
relation to the Atlantic region. At the Bay of Biscay closingline, where,
according to Canada's analysis, the Parties might he considered to be
most opposite, the boundary is most distant from the equidistant line. In
fact, PointT is almost 60 nautical miles closer to Spain than it is to

France. In thismanner, the Bay of Biscay boundary reflects the impor-
tance of the French coastal front facing the Atlantic, its adjacent
relationship tothe Spanish Coast,and the locationof the land frontier.

393. Second, the boundary in the Bay of Biscay achievesa reasonahle
degree of proportionality betweenthe lengths of the respective coastlines
and the area to be delimited. As measured alongthe simplified coastlines
used by France and Spain in the negotiations,the lengthsof the respective

coastlines are 267 nautical miles for Spain and 349 nautical miles for
France, a ratio of1to 1.29'.In the area of the Bay seaward of the artifi-
cial coastlines,the boundary leaves 18,864square nautical milesto Spain
and 26,463 square nautical miles to France, a ratio of 1 to 1.40. By

'This distanceis44 pcr cent of the distancefromthe internationalboundary

terminusto thepoint of intersectionof an equidistantlinewiththe Nantucket
Island-CapeSableclosing linacrosstheGulfofMaine.
'See Annex 10,Vol.IV. 160 GULF OFMAINE t2551

contrast, an equidistant line wouldhave delimitedthe area in a proportion
of 1to 1.03'.

394. The third and perhaps most important point relevant to the
delimitation of the Gulf of Maine area concernsthe manner in whichthe
Bay of Biscay houndary respectsthe coastal frontsof France and Spain.
The Spanish coastal front from the land boundary terminus to Cabo
Ortegal faces north ont0 the Bay of Biscayin much the same manner as
the short Nova Swtia coast faces southwestonto the Gulf of Maine. Since
the coastal concavityin the Bayof Biscay wouldcause an equidistant line

to swing too far north across the face of the longer French coast, the
negotiated boundary limitsthe northward extensionof the Spanishwastal
front intothe Bayof Biscay.Similarly, an equitable solutionin the Gulf of
Maine area would limit the extensionof the southwestern-facingsecond-
ary Nova Scotia coastal front.

395. The Bay of Biscay boundary avoids encroachment upon the
extensionof the Spanish wast by followingthe equidistant line seaward
only to PointR. Once it is clear of the coast, however,the boundary turns
westward and seaward. From Point R to Point T it proceeds roughly
parallel to the Spanish wastal front. This line resembles the adjusted
perpendicular line proposed by the United States, which begins approxi-

mately 39 nautical miles from the international boundary terminus, a
point that is already 32 nautical miles from the sewndary Canadian
coastal fron',and which, except for the detours taken to avoid crossing
the fishing banks on the Swtian Shelf, runs parallel to the southwest
Nova Swtia coastal front. Figure 38.

396. The Bay of Biscay boundary may be wmpared with a line
perpendicular tothe general directionof the wast. If the closingline from
Cabo Ortegal to Pointe du Raz represents the general direction of the
wast in the vicinityof the Bay of Biscay,then.a perpendicular to the gen-
eral direction of the wast, drawn from PoinQ, intersects the closingline
@ closeto PointT. Figure 39.The boundary crossesnorthof the perpendicu-
lar Iinethroughout the length of the Spanish wastal front, but turns back

to the perpendicular line at the seaward limit of that coastal front.
Although the Bay of Biscayboundary seawardof the closingline has not

'Of the entireara of the Bay,includingthe areas landwardof the artificial
wastlines. theboundary allofates20,086square nauticalmilesto Spain and
29,427square nauticalmilestoFrance,fora ratioofto 1.47An equidistantline
would dividethisarca in a ratio1fto 1.1.11 mayalsobenotedthat the dis-
tancesbetweenPointT and CaboOrtegal.and bctween PointT and Pointedu
Raz are proportional tothe respectivelengthsof the simplifiedtlinesSee
Annex10.para.
'This calculationassumesthat Canada'ssouthwestern-facinsecondarycoastal
frontisrepresentedbya linedrawnbetweenthe international oundary terminus
andCapeSable.1256-2601 COUNTER-MEMORIALOF THEUNITED STATES 161

been delimited, the location of Point T may suggesthow to treat a coast,
such as the Spanish wast on the Bay of Biscayor the Nova Swtia wast
on the Gulf of Maine, that faces into a deep wastal wncavity. In such
cases, the coastal front may be extended to a modest degree across the
faceof the adjacent wast, i.e., beyondthe perpendicular to the general di-
rection of the wast-but only inside, and not outside, the wastal

concavity.

C. CONCLUSION MSAY BE DRAWNFROM THE PRACTICE OF STATES IN
GEOGRAPHICS AITUATIONS SIMILARTO THE GULF OF MAINEAREA

397. The North Sea and Bay of Biscay boundaries exemplifyseveral
principles that apply as well to the Gulf of Maine area. These principles
concern the equidistance method, proportionality,and ooastal fronts.

398. First, the Parties to the agreements in the North Sea and Bay of
Biscay rejected boundary delimitations based upon the equidistance
method. Each of the three boundaries diverges substantially from the
equidistant line, to the advantage of the Party that wouldhave been
ofP'from the areas in front of ils wast by the tendencyof the wncavity to
pull an equidistant line inward (the Federalublic of Germany and
France).

399. In each case, the Parties used equidistance only to delimit the
inshoreareas. As is illustrated in Figures 31 and 36, an equidistant lineof
comparative proportionsin the Gulf of Maine area wouldterminate well
insidethe Gulf.

400. In each case, the distance between the agreed boundary andthe
equidistant line grows larger as the boundary extends seaward. This is
consistent with the observation that the distorting effects of wastal
irregularities upon equidistant lines magnify asthe linesdepart the wast.
Similarly, an equidistant line boundary in the Gulf of Maine area would

bewme increasingly inequitable if it were extended seaward throughthe
Gulf and beyond.
401. Canada has claimed that the United States andanadian wasts
are oppositein the area between Cape Sable and Cape Cod, and has used

this claim to support the use of equidistance in that area. As noted above,
the Bay of Biscay boundary ismost divergent fromthe equidistant line at
the point where, under Canada's analysis, France and Spain would be
most nearly opposite.

402. Inasmuch as Canada attempts to buttress ils argument with vague
references tothTunisio/Li caseo'an examinationof that boundary is
appropriate here. Although no coastal concavity affects the wurse of an
equidistant line in that area, the change in direction of the Tunisian coast

'CanadianMemorial, paras.43, 363,and364. 162 GULFOF MMNE i2611

forms a convexitythat wouldcause an equidistant line to swing outward
acrossthe coastof Lihya, niuch as a concavitypullsan equidistant line in-
ward. The direction of the boundary specifiedby the Court was modified
to reflect the change in direction of the coast, and the new direction was
parallel to a constructed coastline. That boundary, however, does not
approach the equidistant line, either at the point where the boundary
changes directionor seaward of that point. On the contrary, the boundary

at the point where it changes direction is about 13 nautical miles
northwest of the equidistant line and-like the North Sea and Bay of
Biscay boundaries4iverges increasingly, up to 25 nautical miles, from
@ the equidistant line as it extends seaward. Figure 40. Thus, the Tunisial
Libyahoundary specified by the Court confirms that inequities in an
equidistant line are magnified as the line movesfarther from the coas'.

403. The second principleillustrated hy the Bay of Biscay and North
Sea boundaries is that proportionality isuseful as a guide to the equitable
character of a given delimitation, particularly in cases where the bound-,
ary meets the seainside a large coastal concavity.All three boundariesin
the Bay of Biscay and the North Sea delimit the offshore areas in close
proportion tothe ratio of the lengths of the coastal fronts. As demonstrat-
ed in the United States Memorial and Counter-Memorial. the adjusted
perpendicular line achievesa reasonahle degreeof proportionality in the

Gulf of Maine area, while the equidistant line, and, a fortiorti h,
Canadian line, wouldnot.
404. Third, the three negotiated boundaries exemplify the principle
that a boundary should notcut off the seaward extensionof the parties'

coastal fronts. Inarticular, the boundariesillustrate the manner in which
coastal fronts should he extendedin situations where the land boundary
meets the sea within a deep coastal concavity. Each of the three
negotiated boundaries limits the extension into the concavity of the

'It isimportanttodistinguishthefactthattheinequitiesinanequidistantlincare
magnificdas theline movesfarther fromthc coast,fromthe commentin the
TunisialLi caseathat "a line drawn perpendicular tothe coast hccomes,
generallyspeaking,thclesssuitableasa lincofdelimitationthefurthitextends
fromthecoast." I.C.JReport 1s82.pp.87-88 para.125.TheCourt'sstatement
is correctin the geographicalcontextof the TunisialLi cbse. There, the
oemndicular to the coastoroduccsan uiuitablcresultin the areasnearestthe
&ait, but,becausethe~unkiancoastchangesdirection intheGulfofGabcs,such
a linerwuircsadjustmentin thcmoredistantareas.IntheGulfof Mainearea. by
contrast,.the changesin directionof Canada'scoast cause the Nova ~cotia
peninsulato protrudcsouthof theinternationalhoundaryterminus,andproduce
the shortsecondaryCanadiancoastlinc,insidethe Gulfof Maine,that liesat a
right angletothegcneraldirection thecoast.Asa result,a lineperpendicular to
the generaldirectionofthewast isan equitableboundaryinthcareasclosetothe
internationalboundary terminus, annthe arcasseawardoftheGulfof Maine,
but mayrequireadjustmentin the vicinityof the southwesterntip of the Nova
Scotiapeninsula. [262-2641 COUNTER-MEMONALOFTHE UNITED STATES 163

coastal front on the lateral sidesof the concavity(Netherlands, Denmark,
Spain) in order to avoid cutting off the coastal front of the adjacent State
(Germany, France) from the area situated directly before it. In other
words,each boundary allowsthe seaward extensionof the primary coastal

front ofthe State(Gennany, France)atthe back or middleofthe concavity.
405. In the North Sea, the boundaries allow the wastal fronts of the
three Statesto extendtoward thecenterof the North Sea.nius, the coastal
fronts of Denmark and the Netherlands do not cut off the seaward exten-

sion of the Gennan coastal front. Similarly,the Bay of Biscayboundary
allocatesto each Parîymostof the area seaward of itscoast,as reflectedby
@ the line perpendicular to the closing line. Figure 39. In particular, this
boundary avoids cuttingoff the French wast at the hack or middle of the
concavity(fromthe land boundary to Pointede la Negade) fromits exten-
sion into the Atlantic. The Spanish coastal front extends only a modest
distance laterallywithin the Bay,north of the perpendicularto the closing

line; itdoes not swingas far north acrossthe French coastalfront as would
an equidistantline. Indeed, at Point T on the closingline,the boundary, as
previouslynoted,neady intersectsthe perpendicularto the closing line.
406. The principle that the houndary must notcut off the Parties from
the areas situated directly before their coastal fronts confirms the
equitable character of the boundary proposedby the United States. The
short inward-facing Nova Scotia coast is afforded a generous lateral

extension,but is limited in order to reduce the degree towhichMaine and
New Hampshire are cut off from the areas directly seaward of their
coastline; and, the primary coastal fronts, i.e., the long eastern coast of
Nova Scotia and the Maine and New Hampshire coasts, which face the
Atlantic Ocean, are permitted toextendinto the Atlanticto the maximum
limits of coastal-State jurisdict'.n

407. Thus, an analysis of the State practice in geographical situations
similar to the Gulf of Maine area showsthat: (1)the adjusted perpendicu-
lar line proposed by the United States is consistent with principles
underlying the practice of other States in similar geographic circum-
stances, Le.,where the land boundary meets the sea in a corner of a large
wastal concavity; and (2) the Canadian line is inconsistent with the
practice of States in such circumstances.

'See UnitedStatesMernorialp, aras307-309. CHAPTER IV
SUMMARYOF THE APPLICATION OF THE LAW TO THE FACTS

408. In this Part, the United States has applied the law as set forth in
Part II to the facts of this case, as set forth in Part 1.
409. In sodoing,the United States has established that it is not barred

from contesting the Canadian claim to the northeastern portion of
Georges Bank by the doctrines of acquiescence and estoppel. Inthe first
instance, the conduct relied upon by Canada is neither a clear and
unambiguous assertionof righis by Canada nor a clear and unambiguous
consent to that assertion by the United States. Second, the United States
govemment employees upon whose condun Canada's allegations of
acquiescence and estoppel rest, did not have the express or apparent
authority to bind the United States. Third, the United States made a
timely protest of Canada's non-notoriousissuance of oil and gas permits
on the northeastern portion of Gwrges Bank. Fourth, Canada did not rely
to its detriment on United States actions. Finally, the entire Canadian
claim of acquiescenceand estoppel reliesupon continental sbelf activities

and ignorescompletelythe fisheriesdimensionof the dispute.
410. The United States has estahlished further that Canada's proposed
boundary is based upon a number of misapplications of the law to the
facts:

a. Canada's line ignores the central significance to this case
of the location of the international land boundary withina deep
coastal concavity in the far northern corner of the Gulf of
Maine.

b. The Canadian line would cut off the extension seaward
from the states of Maine and New Hampshire of the primary
coastal front of the United States into and under the sea,
contrary to the basic legal principle that the land dominatesthe
sea. The Canadian line wouldgive exaggerated and inequitable
effect to the short southwestern-facingcoast of Nova Scotia that
(a) is aberrant to the general geographical relationshipbetween
the Parties, because it liesperpendicular tothe general direction
of the coast, and (b) is south of the international boundary
terminus.

c. The Canadian line wouldnot result in a reasonable degree
of proportionality betweenthe respective lengthsof the Canadi-
an and United States coasts and the area to be delimited,
whereas the boundary proposedby the United Statesdoesso.12661 COUNTER-MEMORIAL OFTHE UNITEDSTATES 165

d. The Canadian line would cut across Georges Bank well
southwest of the Northeast Channel, splitting the separate and
identifiable ecological regime of the Bank, and most of the

important commercial stocksof fish and shellfishthat are found
there. The Canadian line wouldnot giveeffect to the Northeast
Channel as a significant geomorphologicalfeature and as the
natural boundary between Georges Bankand the Scotian Shelf.

e. The canadian line disregards the conduct of the Parties
and their nationals:
(1) The Canadian line is nnt supported hy Canada's limited
and recent fishing activity on Georges Bank which is related

principally to onefishery-scallops, which onlybegan in 1954,
and which only became significant in the early 1960's. This
Canadian activity isto be compared to over 150years of United
States fishing in the same area, in virtually every fishery, and,
until 1954, conducted almost exclusively by United States
fishermen. The Canadian line, moreover,disregards fishing on
Georges Bankby United States nationals from Maine and New
Hampshire whn have fished on Georges Bank in the past and
who do so today. It also ignores the consistent United States
fishing activitieson the northeastern portion of the Bank.

(2) The United States has doneal1the charting and suweying,
conducted mostof the scientific research, andhas been primari-
Iy responsible forthe defense and search and rescue operations
in thearea of Georges Bankand the Gulf of Maine Basin.Lines

used by the Parties in relation to these activities showthat they
haveconsistentlydivided responsibilityat or near the Northeast
Channel, and never in the mi'ddleof Georges Bank.
(3) Finally, the Canadian line is not supported by the content
of the failed and legally irrelevant 1979 east coast fisheries

agreement, which Wouldhaveestahlisheda comprehensivejoint-
management system governing fishing activity fromNewfound-
land to North Carolina. The Canadian argument for awarding
Canada a share of Georges Bank based on this rejected and
unratified treaty would penalize the United States for engaging
in good-faith negotiations.

f. As established in Part II, considerations of purported
economicdependence and relative wealth, upon which Canada
relies to support its line, are complex,variable. and unpredict-
able, and are legally irrelevant in a maritime boundarydelimita-
tion. Even if they were legally relevant,however,an analysis of
Canada's socio-economicarguments, set forth in Annex4 to this
Counter-Memorial, shows that the adjusted perpendicular line
proposedby the United States is an equitable solution.Canada's166 GULFOF MAINE [267-2681

socio-economicarguments are incomplete and misleading, and
rely upon unrepresentative statistics that exaggerate the impor-
tance of Canadian fishing on Georges Bank to Canada. More-
over,the strength and diversityof the Nova Scotia economyand

itsahility to adjust to any effects resulting from confirmationof
United States jurisdiction over Georges Bankare understated.
g. The Canadian line, by cutting across Georges Bank,would

disregard the equitable principles that the boundary should
facilitate resource conservation and management and should
minimizethe potential for international disputes:
(1) The Canadian line would divide commercially important

stocksof fish and shellfish found on Georges Bank.As a result,
thosestockswouldbewme common-poolresources, permanently
subject to the uncertainty and disadvantages of joint manage-
ment, and would bring into direct conflict the incompatible
national fishing policies ofthe Parties.

(2) The Canadian line, by permitting Canadian hydrocarbon
development on Georges Bank, would create a major and
continuing irritant in the political relations between the Parties.
Canada might make decisionson oil and gas developmentthat
could create a risk of pollution that could affect al1of Georges
Bank, without bearing a significant risk that such pollution
wouldspread to areas of Canadian interest on the Scotian Shelf.

h. The Canadian line would disregard State practice in the
geographically similar situations in the North Sea and Bay of
Biscay. In these situations, the Parties did not use the equidis-
tance method for the greater part of the boundaries, but used
other methods that more effectively provided for the seaward
extension of their respective wastal fronts. Furthermore, these

negotiated boundaries delimitedthe offshoreareas in proportion
to the ratios of the respectivelengths of coastal fronts.
411. The United States, in this Counter-Memorial, reaffirms the

conclusion of its Memorial that the line perpendicular to the general
directionof the coast in the Gulf of Mainearea, as adjusted to respecttwo
fishing hanks on the Scotian Shelf, is in accordance with equitable
principles, andtakes account of the relevant circumstancesin the area, to
produce an equitable solution in this case. The Canadian line would
satisfy none of these requirements of the Fundamental Rule, and would
result in aninequitable solution. Accordingly,the United States reaffirms
the suhmissionssetforth in its Memorial. SUBMISSIONS

In view of the facts set forth in Part 1of the United States Memorial
and this Counter-Memorial, the statement of the law contained in PartII
of the United States Memorial and this Counter-Memorial, and the
applicationof the lawto the facts as stated in Part III of the United States
Memorial and of this Counter-Mernorial;

Considering that the Special Agreement betweenthe Parties requests
the Court, in accordance with the principles andrules of international law
applicablein the matter as betweenthe Parties, to decide the courseof the
single maritime boundary that divides the continental shelf and fisheries
zones of the United States of America and Canada from a point in
latitude 44O11'12"N. longitude 67O16'46"Wto a point to be determined

by this Court within an area bounded by straight lines connecting the
followingsets of coordinates: latitude 40°N, longitude 67OW. latitude
40°N, longitude 65OW;latitude 42ON,longitude 6S0W;
May il please the Court. on behalf of the United States of America, to
adjudge and declare:

A. Concerningthe AppiicableLaw

1. That delimitation of a sin-le maritime boundarv . .uires the
application of equitable principles,taking into acwunt the relevant
circumstances in the area, to produce an equitable solution;

2. That the equitable principles.to be applied in this case include:
a) The principles that the delimitation respect the relationship
betweenthe relevant coasts of the Parties and the maritime areas
lying in front of those coasts, including nonencroachment,pro-
portionality, and, where appropriate, natural prolongation;

b) The principle that the delimitation facilitate conservationand
management of the natural resourcesof the area;

c) The principle that the delimitation minimizethe potential for
disputes betweenthe Parties; and
d) The principle that the delimitation take account of the

relevant circumstancesin the area;
3. That the equidistance mathod is not obligatory on the Parties or
preferred, either by treaty or as a rule of customary international
law,and that any methodor combinationof methodsof delimitation
may be used that producesan equitable solution.168 cuw OF MAINE ~701

B. Concerningthe RelevantCircumstancesto be Taken into Account

1. That the relevant geographicalcircumsta~cesin thearea include:
a) The hroad geographicalrelationshipof the Parties as adjacent

States;
b) The general northeastern direction of the east coast of North
America, both within the Gulf of Maine and seaward of the
Gulf;

c) The location of the international boundary terminus in the
northern corner of the Gulf of Maine;

d) The radical changes in the direction of the Canadian coast
beginning at the Chignecto Isthmus, 147 miles northeast of the
international boundary terminus;

e) The protrusion of the Nova Swtia peninsula 100 nautical
miles southeast of the international boundary terminus,creating
a short Canadian wastline perpendicular to the general direction
of the coast, and across from the international boundary
terminus;

f~The concavity in the coast created by the combination of the
protrusion of the Nova Scotia peninsula and the curvature of the
New England coast;

g) The relative length of the relevant wastlines of the Parties;
and

h) The Northeast Channel, Georges Bank, andBrownsBank and
German Bank on the Swtian Shelf, as special features;

2. That the relevant environmental circumstances in the area
include:
a) The three separate and identifiable ecologicalregimes associ-
ated, respectively, withthe Gulf of Maine Basin, Georges Bank,

and the Scotian Shelf; and
h) The Northeast Channel as the natural boundary dividing not
only separate and identifiable ewlogical regimes of Georges
Bank and the Swtian Shelf, but also most of the wmmercially
important fish stocks associated with eachsuch regime;

3. That the relevant circumstances in the area relating to the
predominant interest of the United States as evidenced by the
activitiesof the Parties and theirationals include:

a) The longer and larger extent of fishing by United States
fishermen sincebefore the United States became an independent
country; COUMER-MEMORIALOF THE UNITEDSTATES 169
b) The soledevelopment,and, until recently,the almost exclusive
domination of the Georges Bank fisheries by United States
fishermen;and

c) The exercise by the United States and its nationals for more
than 200 yearsof the responsibility foraids to navigation, search
and rescue, defense, scientific research, and fisheries conserva-
tion and management.

C. Concemingthe Deümitation
1. That the application of equitable principles taking into account
the relevant circumstances in the area to produce an equitable
solution is.best accomplishedby a single maritime boundary that is
perpendicular to the general direction of the coast in the Gulf of
Maine area, commencing at the starting point for delimitation
specifiedin ArtiIIof the Special Agreementand proceeding into
the triangle described in that Article, but adjusted during its course

to avoid dividing German Bank and Browns Bank, both of which
wouldbeleft in their entirety to Canada;
2. That the boundary should consistof geodeticlinesconnectingthe
followinggeographic coordinates:

Latitude (North) Longihide(West)
a.) 44O11'12" 67O16'46"
b.) 43"29'06" 66O34'30"
c.) 43O19'30" 66O52'45"
d.) 43"00'00" 66O33'21"
e.) 42"57'13" 66O38'36"
f.) 42'28'48'' 66O10'25"
g.) 42O34'24" 66°00'00"
h.) 42O15'45" 65'41'33''
i.) 42O22'23" 6S029'12"
j.)41O56'21" 6S003'48"_
k.)41°58'24" 65°00'00"

(Signed)
DAVISR. ROBINSON
Agent of the United States
of AmericaANNEXES TOTHECOUNTER-MEMORIAL
OFTHE UNITED STATESOF AMERICA Volume 1. Part A

Anoex 1

PREFACE

This Annex describes the marine environment of the Gulf of Maine
area. It consists of three Chapters. Chapter 1 describes the physical
oceanography of the area and its division into three separate and
identifiable oceanographic regimes,each with distinct characteristics in
terms ofthe originsof the waters, water circulationpatterns, temperature,
salinity,and the degree to which the waters are mixedvertically.Chapter
II describeshowthe marine life, or ecology,of the area correspondsto the

oceanographic regimes describedin Chapter 1.Thus, in the Gulf of Maine
area, there are threeeparate and identifiable ecologicalregimes charac-
terized by distinct communitiesof plants, microscopicherbivorousorgan-
isms,fish,and shellfish.Chapter III describesthe significantrole that the
Northeast Channel plays in the formation of the separate ecological
regimesof the Gulf of Maine Basin and of GeorgesBank.

'Preparedon the basisof contributionsfromDr. Robert L. Edwards,Special
Assistantto the Assistant,Administratorof Fisheries,National Oceanicand
Atmospheric Administratio(N.O.A.A.)D; r. Bradford. Brown,Dr.MarvinD.
Grosslein, r.KennethSherman.andthe staffofthe NortheastFisheriesCenter,
National MarineFisheries ServiceN , .O.A.A.,United States??: irtment of
Commerce. INTRODUCTION

1. The Gulf of Maine area lies in the northwest sector of the Atlantic
Ocean. Its latitude corresponds roughly to that of the northern coasts of
Portugal and Spain and the xiuthern part of the Bay of Biscay.The Gulf
of Maine ' is an unusually large emhayment, open on its southeastern
border to the ocean, and hordered on the south, west, and northwest hy
the New England States and on the northeast by the entrance to the Bay
of Fundy and by the tip of the Nova Scotia peninsula. Figure 1'.The land
houndary hetween the United States and Canada meets the sea in the far

northern corner of the Gulf of Maine.
2. The marine environment of the Gulf of Maine area varies dramati-
cally. First, the topography of the continental shelf undergoes rnarked

changes in the region. Second, the major ocean currents, the Labrador
Current and the Gulf Stream, converge on the area from the north and
south. Third, cold dry air from the arctic regions, milddry air from the
west,and warm moist air from the south al1converge in the Gulf of Maine
area. Because of the diverse topography and the confluence of major
ocean currents and atmospheric conditions, the oceanic environment of
the area is variegated and undergoes profound seasonal changes. As a
result of these differences in the ocean environment, the ecology of the

region, in turn, is especially diversified and compartmented.
3. Fishery resources are part of the ecologyof the Gulf of Maine area.
In order to understand this ecology, various physical processesmust be

reviewed, beginning with the influence of the topography upon the
movement of water. The following review of this and other factors
explains the distribution and abundance of the living resources, and the
development of separate marine communities, within the Gulf of Maine
area.

'In thisAnnex,as in the UnitedStatesMernorial[para.25. n.21and theUnited
States Counter-Mernoria[lpara. 16,n.21 "Gulf of Maine" refersIo the seabed
andbodyof water landwardofa hypothetical linebetweenNantucketIslandand
CapeSable. It doesnotincludetheBayof Fundy."GulfofMaineBasin"refersIo
the Gulf of Maine,exceptfor that part of the Smtian'Shelfand superjacent
watersthat are in the Gulf of Maine.The "Gulf of Mainearea" refersIo the
broaderarea describedinthe UnitedStatesMernorial,para.25.
'Figure 1. Photograph of a globe madeby Rand-McNally,Inc. @ Rand-
McNally& Co.RL. 83-GP-2.191-SI ANNEXESTOCOUNTER-MEMORIALOFTHE UNITEDSTATES 175

Figure 3 '.The Gulf of daine Basin has an average depth of approximate-
ly 150 meters, and contains three relatively isolated deeper hasins,
Georges Basin, Jordan Basin, and Wilkinson Basin, with depths of 380

meters, 280 meters, and 300 meters, respectively. Figures 4 and 5 '.As is
illustrated in Figure 3, the Gulf of Maine Basin, in its eastern corner, has
a direct and deep access to the Atlantic Ocean through the Northeast
Channel '.
7. In the Gulf of Maine area, the outer edge of the continental shelf has

a slow of one per cent or more. A slopeof one per cent is significantin de-
termining the direction of currents. It also affects the presence of gyres
and the development and persistence of distinctive water masses. Slopes of
different degrees in the Gulf of Maine area are shown in Figure 6 '.Slopes
of greater than one per cent are indicated in brown. Slopes of between 0.5
per cent and one per cent are indicated in orange; lesser slopes are
indicated in lighter orange and yellow. The southern edge of the Gulf of
Maine Basin (the northern edge of Georges Bank) and its western edge are
highlighted in brown, indicating that a slope of one per cent or more is
found along these edges. Figure 6 confirms that Georges Bank is an

extension of the southern New England continental shelf. Figure 6 also
shows that the Northeast Channel has steep slopes on both of its sides,
and that the Northeast Channel is the only major break across the
continental shelf in the Gulf of Maine area '.To the northeast of the
Northeast Channel, the topography is different: the outer edge of the
Scotian Shelf is relatively flat (shownin Figure 6 in white and, occasional-
ly, yellow)just prior to its descent into the ocean depths, but is deeper
inshore.

'Figure 3. Viewof the topographyof the continentalshelffrom Cape Charles,
Virginia,to the northeastern endof Nova Scotia, from 135 degrees,with 25-
degree tilt from the vertical. Three-dimensional illustratio,roduced hy the
Information SystemsDivisionof the UnitedStates GwlogicalSuwey(Flagstaff,
Arizona),usingthe bathymetricdata hasedescribedinAppendixK.
Figure 4.BathymetryofGulfof Maine Arca-longitudinal cross-sectionsb , ased
uponthe bathymetricdata hasedescribedin AppendixK. Figure5. Bathymetry
of Gulf of Maine Area-latitudinal cross-sections,ased upon the bathymetric
data base describedin Appendix K. Note that the shape of GeorgesBank is
similartothe shapeofthe southernNewEnglandshelf.
'The Northeast Channel hasa "silldepth" of about235meters.Thesilldepthis
that of the.Northeast Channelat its shallowest.The thresholdcreated by the
shallowestpointof the Northeast Channel limits the depthat whichwater can
passdirectly from the Atlantic Ocean inttohe Gulfof MaineBasin.

'Figure 6.Seabedgradients,baseduponthe bathymetricdata base describedin
Appendix K.
'The onlyotherbreakofanysignificanceacrossthe continentalshelfisnotshown
inFigure 6. It isthe Laurentian Channel,locatedfarthertothe northeast,beyond
the Gulfof Maineare?.176 GULF OF MAiNi? [19-221

8. In summary,Georges Bank andthe Scotiankhelf are topographical-
ly different fromeach other. The Gulf of Maine Basinis also distinctive,a
large depression surrounded on three sides by the continental landmass,

and on the fourth hy the continental shelf (Georges Bank and the tip of
the Scotian Shelf). The other major topographie feature of the area, the
Northeast Channel, is crucial to the developmentof the marine environ-
ment and the separate and identifiable ecological regimesof the area. The
Northeast Channel divides the Georges Bank regime fromthe Scotian
Shelf regime, and is the gateway through which deep (greater than 200
meters)oceanicwater enters the Gulf of Maine Basin.See Figure 3.

SECTION 2. The Gulfof Maine Area 1sDividedIntoThree Separate and
Identifiable OceanographicRegimes
9. The principal oceanicand atmospheric systemsaffecting the Gulf of
Maine area are well established '.The uniqueness of the Gulf of Maine
area results from the confluence there of waters of different character.

Figure 7 ' identifies the major current systemsthat influence the marine
environmentof the Northwest Atlantic. Cold arctic water is brought into
the Gulf of Maine area by the Labrador Current. The Gulf Stream brings
in water from the tropics that is warmer and more saline.The water over
the continental dope forms a coherent water mass betweenthe water over
the continental shelf and the water in the Gulf Stream, and is different
from each. This continental slopewater is primarily an amalgam of these
other two waters. It rotates gently, in a clockwisedirection, from Cape
Hatteras to the Grand Banks and backto the Cape. As will be described
below,there is an infusion of water from the continental slope(along the
shelf edge)into the Gulf of Maine Basin through the Northeast Channel.

This infusionplays a critical role in the developmentof the separate and
identifiable oceanographic regimesin the Gulf of Maine area.
10. Within the Gulf of Maine area, three principal physical oceano-
graphic 'regimes are formed as a consequenceof the topography and the
water circulation pattern. These three separate and identifiable regimes

StatesBureauof Fisheries,Bulletin,Vol.XL,Part G2l(Document969),1927,d pp.
513et seq.Citedin UnitedStatesMernorial, para.38, n.1;rnaterialspreviously
depositedwiththe Court pursuantto Article5q2) of the Rulesof Court; HJ.
McLellan,"On the Distinctnessand Origin ofthe Slow Wateroff the Scotian
Shelf and its Easterly FlowSouth of the Grand Banks",in Journal of the
FisheriesResearchBoard ofcanada, Vol.14,No.2, 1957, pp. 213-239.

'Figure7. nie principalwatermassesand currentsaffeningthe Gulfof Maine
area,overlaidonRand-McNallyI,nc., globe showin nFigureI. 0 Rand-McNally
&Co.RL.83-GP-2.
'The term "oceanographic"is used in this Annex to indicate thephysical
properties othemarine environmenitn,cludingthephysicalboundariesofthesea
andthechemistryandphysicsoftheseawater.The term "ccological"isusedwith
referencetothemarinebiologythat inhahitstheocean. ,123-24) ANNEXES TOCOUNTER-MEMORIAL OFTHE UNITEDSTATES 177

are found over the Scotian Shelf, in the Gulf of Maine Basin, and over
Gwrges Bank '.Each of these three regimes is distinct from the others in

the origins of its waters; in its physical characteristics, including salinity
and temperature'; and in the dominant mixing forces to which it is
subjected. A summary of the differences among the three regimes appears
in Table A. These characteristics contribute to the development of fronts,
where the regimes confront one another with varying degrees of interac-
tion'.Inthe Gulf of Mainearea, such fronts occur between the tempered,
deeper waters of the Gulf of Maine Basin and those of the shallow, well-

mixed waters of the Georges Bank regime', and also between the waters
of the Gulf of MaineBasin and the very cold, less salinewaters of the Sco-
tian Shelf. The differences in the physical characteristics of the three
regimes are largely responsible for the development of separate and
identifiable marine communities within each of the three regimes and, in
particular, for the presence and distribution of the species and stocks
upon which the commercial fisheries of the areaepend.

A. THEDIFFERENT ORIGINS OF THEIR WATERS DISTINGUIS HHE THREE
SEPARATE ANDIDENTIFIABLO ECEANOGRAPHR ~CEGIMES

II. The water over the Scotian Shelf cornes principally from the
Labrador Current and the Gulf of St. Lawrence. Fresh water enters the
Scotian Shelf oceanographic regime from theSt. Lawrence River. Where
the topography of the shelfpermits, some deep water enters the Scotian
Shelf from the continental slope.

12. The greater part of the watcr in the Gulf of Maine Basin (60to 70
per cent annually) enters it through the Northeast Channel from the
continental slop'.This water usually enters the Basin between a depth of
75 meters and the bottom of the Northeast Channel'. The volume of

water entering through the Northeast Channel is sufficient to replace the
water in theBasin every year'.Most of the remainder of the water in the

'The GeorgesBankregime includesNantucketShoals.Foreaseof identification,
the regimeisreferredto throughout thisAnnexas the Gwrges Bankregime.
'The regimesare differentfrom oneanother intermsof temperatureranges and
averagetemperatures,aswellasseasonalcyclesoftemperature.
'See para. 4, 1,supra.

4B. Butman, et aL,"Recent Observationsof the Mean Circulationon Georges
Bank",in JoumalofPhysicalOceanographyV,ol.12,No.6, 1982,pp.569,571.
'S.R. Ramp, R.J . chlitz,and W.R. Wright, "NortheastChannelFlowand the
Gwrges BankNutrient Budget", Paperpreparedforpresentationat Internation-
al Councilforthe Exploration ofthe Seas(I.C.E.S.),1980,pp. 1-12.4,nthe
authorsnotethat "[tDe meantransprt for theentiretwo-yearexperimentis276x
10'm'/sec.[270,000cubicmetersofwaterpersecond]whichgivesa replacement
timeofapproximatelyone year".TableA. The Thme OoennographiR cegimesoftbeGulfofMaineArea:Summary ofPhysiralCharacterisrio andOriginsofWater

VJSllE F%YS!c*LCHurcrmmo' OUOINS OFWATOI

Win," Summ"

Smtiliçitioa Temp:C S.l.p.p.r> DM.' Tcmp:C P.P. DM.
Oc@' ------
SCOTUNSHOI 3-lnyd suris~ 0.50 I 31 u.8 3-10 31 24.0 SLL.mnCZ Riv~auUlow
(WclldcTuid)
Latcmdisfc JO-lm 3 32.5 25.9 3 32.5 25.9 LibmdorCumnt
O
Battom IMbamom 8 Y 26.5 8 Y 26.5 Slop watcr C
Surina3 050 33.0 26.3 12-18 32.5 uo siopcwsieronicnquimugi!the 5;
OuwoBUIN n (Indirtinn) 3 NoIUiU<tChuinelsndl~dna 4
Inmediate salm 3 33.0 263 4 33 26.2 wntcrfmm theSmtian Shelf
f
Bonam IMbanom 5 33.5 26.5 6 33.5 26.4 Slap w~~~r~ntcringthmqhthe
Nonhast Channel 3

OEORG~ Bmx WsII-mircd - abamam 3 32.5 25.9 15-18 32.5 24.0 Suriner and intemidias Iiyen
ofth. OuIfof MaineBasin

f Mc." 4"" arr1isrsfeChephyiP<Ifh.mdri*tia.
2 ocptharrc cxpd inmem.
3-p.p.t.- m- pam pcithowand.
mity Y crprcrrcd hcrcinuGtaaf "syms-"arnmmonoçeanopsphic~honh Aanioduwof oncsigmsrunit,asurmpanid by anin-c indcp<hvill subsuntiallyinhibit
"micalmiriy
suflac. laycrthat isdirtioanfuitcrmediatsLaycrofaldm watrrmiininfmm the pmioiu uiiatçi.iraia Inynsofwaicrue mcmsdlathciumer.aurinccwamiingacpto a1271 ANNEXESTO COUNTER-MEMORULOF THEUNITEDSTAm 179

Gulf of Maine Basin enters it at the surface from the Scotian Shelf 'A
small percentage of the water wming into the Basin, less than five per

cent, is fresh water that enters as precipitation or runoff either from rivers
or directly from land '.Two-thirds or more of the fresh water that enters
the Gulf of Maine Basin each year comes from precipitation', which is
the source of approximately one per cent of al1 the water entering the
Basinper year. Roughly one-third of the fresh water, or 0.5 to 0.6 percent

of the total water in the Gulf of Maine Basin, is from river inflow '.Of
this small amount of river inflow, two-thirds or more is from United
States rivers and approximately one-third is from Canadian rivers '.Thus,
approximately 0.4 per cent of the water in the Gulf of Maine Basin is
from United States rivers, and approximately 0.2 per cent is from the Bay

of Fundy and Nova Scotia.
13. The water over Georges Bank originales chiefly from the surface

and intermediate waters of the Gulf of Maine Basin6. Georges Bank
water evolves from the mixture of the deep water that enters the Basin
through the Northeast Channel and the surface water that enters the
Basin from the Scotian Shelf.

14. Currents are guided in particular directions by the topagraphy of
the seahed. As noted above, the Scotian Shelf, the Gulf of Maine Basin,
and Georges Bank are each characterized by a different topography.
Therefore, as would be expected, each of the three oceanographic regimes
in the Gulf of Maine area is characterized by a distinct pattern in which
water circulates within the regime. These different patterns are shown in

-
'Bigelow, op. cil;W. H. Sutcliffe, JrR. H. Loucks,and K. F.Drinkwater,
"Coastal Circulation and Physical Oceanograph of the Scotian Shelfand the
Gulf ofMaine", in Journal 4f the FisheriesResearch Board ofCanada. Vol. 33,
1976, m. 98-115.
1C.D. Bue, Streamfow from the UnitedStates into the Atlantic OceanDuring
1931-60,U.S.GeologicalSurveyWater-SupplyPaper1899-1,1970,pp. 1-136.
'5,500cubicmetersper second. World Weaiher Records, UnitedStates Dept.of

Commerce, 1965, pp.225-226.
2,400 cubicmeterspcr second.Buc, op. ci!pp. 1-136:and Direhage of Sclecred
Rivers of the World,UNESCO,Vol. II,1971.Monthly and annual discharga
rewrdedatvariousselectedstations(fromstartofobservationsupto 1964).
Bue, op.cil.pp.1-136,and DuchargeofSelected Riversofthe World,ibid.

<Aswill be discussedlatcr, the intermediatelaycr liesbetweenthe surfaceand
bottom layers and is intermediate in terms of iemwraturc, salinity, and,
consequently,dcnsity.180 GULFOF MAINE (28-321

the overall surface circulation pattern, presented in Figure 8 ',and in the
deeper circulation pattern, presented in Figure 9 '.

15. Figure 8 shows how water over the Scotian Shelf flows from the
northeast to the southwest, moving paralle1 ta the coast. Water may be re-
tained temporarily over the Scotian Shelf as small gyres form over its
scattered banks. Toward the southwestern end of the Scotian Shelf, the
surface water is interrupted in its southwestward progression. Before it
reaches Browns Bank, part of the surfa& water flows seaward over the
continental slope.The remainder continues southwestward, and then turns

sharply around the southern tip of Nova Scotia into the Gulf of Maine
Basin.
16. The topography of the Northeast Channel and that of the Gulf of

Maine Basin interrupt the southwestward flow of water. As noted above,
water flowsthrough the Northeast Channel into the Gulf of Maine Basin
between a depth of 75 meters and the bottom, and fiows to the West
toward Wilkinson Basin and to the north toward Jordan Basin. The
portion that moves Westis mixed gradually with the waters above it. That
portion moving to the north moves more rapidly and in greater volume,
and mixes relatively quickly with the surface waters entering the Basin

from the Scotian Shelf. The waters of the Gulf of Maine Basin regime
evolvefrom the mixture of water entering through the Northeast Channel
and from the Scotian Shelf. This mixture moves northward toward the
Bay of Fundy, then flowssouthwest along the New England coast, and fi-
nally turns northeastward along the northern edge of Georges Bank to the
western edge of the Northeast Channel. Within the Gulf of Maine Basin,
the water moves in a large, irregular, counterclockwise gyre ',centered

'Figure8.Theprincipalsurfacecurrentsinthe GulfofMainearea,superimposed
onFigure 2.Thevolumeoftransportisindicatedbythe widthofthe arrows.Wa-
ter at the surfaceprogressesto the southwest fromNovaScotiato CapeHatteras.
Itdeviatessignificantlyfrom this generalpath, however,taking an "S" shaped
detour around the Gulf of Maine Basin,then northeastward alongthe northern

edge of Georges Bank to the southwestem edgeof the Northeast Channel,
after whichitagainturns westerlyaround theeasterntip of GeorgesBankand
then along the southernmargin of the GeorgesBank regime to southernNew
Englandand beyond.
'Figure 9.Currentsbelow150meters,superimposedon Figure2.Thevolumeof
transportisindicatedbythewidthofthe arrows.The Northeast Channelprovides
directaccesstothe Gulfof MaineBasinfor continentalslopewaterofa constant
temperatureand highsalinity.This waterflowsintotheBasinat the bottom,then
dividesto the north towardthe Bayof Fundyand to the WesttowardWilkinson
Basin.About 60to 70percent ofthewater entersthe Basininthis manner,where
it hasa profound effectponthe climate andcurrentdynamicsofthe area.
'The word"gyre" describesa semi-enclosedpatternof circulation. [33-361 ANNEXESTO WUNTER-MEMOW OFTHE UNITED STATES 181

approximately over the eastern edge of Wilkinson Basin. Water may be
retained within this gyre for a year or '.re
17. The current that moves northeastward along the northern edge of

Georges Bank tothe Northeast Channel proceeds round the eastern tip of
the Bank,then turns back along the seaward side of Georges Bank and
Nantucket Shoals, moving southwestward along the 80-meter depth-
contour tothe southern New England shelf and beyond. A clockwise gyre
is formed over Georges Bank. This gyre is strongest during the warmer
months of the year, when water is retained on the Bank for about three
months before moving on to the southern New England shel'.

C. DIFFERENC N STEMPERATU R STINGUISH THETHREE SEPARATE
AND IDENTIFIAB LCEEANOGRAPHI REGIMES

18. Temperature, including its seasonal variability, is a critical environ-
mental factor in determining the distribution and abundance of organ-
isms'.The range of someorganisms is limited by cold, and that of others
by warm, water. Still other organisms are tolerant of wide ranges of
temperature, provided the annual average does not exceed, or fa11below, a
particular temperature. The three oceanographic regimes in the Gulf of
Maine area are significantly different from one another in terms of
@ temperature. Figure 10 'shows the average hottom temperatures of each

regime both for the coldest and for the warmest seasons of the year, as
well as the difference in average bottom temperatures between the two
@ seasons. Figure 10 shows that the water over Georges Bank is similar in
bottom temperature to the water over the southern New England shelf,
confirming that Georges Bankis a thermal extension of the southern New
England shelf. The Georges Bank regime and that of the continental shelf
to the southwest are both characterized by markedsonal differences in
temperature. By contrast, the water in the Gulf of Mainesin is more
@ constant in temperature throughout the year. In Figure 10, the Northeast

'See,Ramp,Schlitz, and Wright,op.cil.;and A. C. Redfield,"The Effectof the
Circulationof Water onthe DistributionofthenoidCommunityin the Gulf
of Maine", iniologicalBulletin,Vol. LXXX, No. 1, 1941,pp. 86, 104, and
Figure10.Thismeansthat it cantake a year or more forwaterfromthe Scotian
Shelfto reachGeorgesBank.Furthermore,cforethis waterreachesthe Bank,it
hasbeen transformed through its mixture with the water entering the Basin
throughthe Northeast Channel.
'D. F. Bumpusand L. M. Lauzier,"SurfaceCirculationonthe ContinentalShelf
off Eastern North AmericatwecnNewfoundland andFlorida", in American
Geographical Society,ial Atlaofthe MarineEnvironment,folio7, 1965,pp.
1-4.
'As wili be discussedbelow,temperature isalso important as one of the two
factorsthatetcnninethe densityof sea water.
@ <Figure10.Bottomtemperaturesbasedupondata fromNational Oceanographic
Data Centrefilesfor thears 1940-1980. 182 GULFOF MAINE [37-421

Channel both joins the Gulf of Maine Basin to the continental slopeand
separates the GeorgesBank regime fromthat of the Scotian Shelf. The ef-
fect of the water entering through the Northeast Channel upon tempera-
tures within the Gulf of Maine Basin is clearly shown.Becausethis water
enters along the northeastern side of the Channel, the water above the
sides of Browns Bankthat face the Northeast Channel and the ocean is
distinctly warmer than is the water at comparabledepths overother parts
of the Scotian Shelf. The warming influenceof the slope water extends
around the periphery of the Gulf of Maine Basin, creating an area of

waters with near-constant temperatures that are intermediate between
those of the deeper parts of the Basin and those of the waters above
Georges Bank.
19. Figure 11A' is a satellite image indicating differencesin surface
@
temperature among the three regimesin June. In this Figure,the Georges
Bank regime is clearlydefined, and the regimeof the Gulf of Maine Basin
isjoined to the continental slope through the Northeast Channel. Figure
@ 11Bshowsthe temperature gradients for the same time. The linesindicate
where the surface temperatures change markedly over a short dista'.e
@ Figure 11C superimposes these temperature gradients over the satellite
temperature image, and thus highlights the areas where fronts form
between the contrasting regimes of Georges Bank and of the Gulf of
Maine Basin and between those of the Scotian Shelf and of the Gulf of

Maine Basin'.
20. A summary of the temperatures in the three separate and identifi-
able regimes is given in Tabl'.On the Scotian Shelf, the temperature
of the waters reflectstheir coldnorthern origins. Inthe winter, the surface

waters of the Scotian Shelf can be as coldas OdegreesCentigrade, or less.
Cold temperatures persist at intermediate depths for much of the year. In
the Gulf of Maine Basin, cold surface waters fromthe Scotian Shelf are
mixedwith deeper waterof a relativelyconstant temperature-frsix to
eight degrees Centigrade-thatenters through the Northeast Channel
@ from the continental slope.Figure 10showsthat, in the Gulf of Maine Ba-
sin, there is relatively little variance in bottom temperatures throughout
the year. As woulbeexpected, these temperatures are sirnilar to thoseof
the water entering the Basin through the Northeast Channel. The water

@ 'FigureII.SurfacetempcraturcsasshownbytheN.O.A.A.5 Satellite.This 14
Junc1979sceneisrcprcsentatiofwarmscasonconditions.

'The thermalgradientsshownarc thosegreatcrthan0.7degrecscentigrade(C.)
pcrkilometer.
'Average surfacecmpcraturesfor the four seasonsof the ycar arc shownin
Figure12.This figureis basedupondata fromNationalOceanographicData
Centrefilesforeycars1940-1980.
'Para.10supra. 1431 ANNEXESTO COUNTER-MEMOW OFTHE UNITED STATES 183

in the Gulf of Maine Basinisslightly warmer year roundthan isthe water
over the Scotian Shelf, and it varies less between the cold and warm
seasons.

21. The water overGeorges Bankand Nantucket Shoals isshallowand
mixed vigorously by tides. As a result, it is strongly affected by
atmospheric conditions and varieswidely in temperature from season to
@ season.As is shown inFigure 10,this seasonalpattern extends southwest-
ward along the southern New England shelf. The water over Georges

Bank is warmer in the summer than is the water over the Scotian Shelf,
and it has an annual mean temperature that is considerably higher.
Although this water is cold in the winter, it does not reach the more
extreme cold temperatures reached by the waters over the Scotian Shelf.

D. DIFFERENCE IS SALINITY DISTINGUISH IHE THREE SEPARAT END
IDENTIFIABL OECEANOGRAPH RICGIMES

22. The three oceanographic regimesin the Gulf of Maine area differ
from one another in terms of salinity. Salinity is significant for two
reasons: it is one of the two factors that determine the density of sea

water; and, it affects the distribution of organisms. Many organisms have
salinity preferences andrespond accordingly.
23. Table A 'includes a summary of the levelsof salinity within the

three regimes. The surface and intermediate waters of the Scotian Shelf
are lowin salinity, as a result bothof the influxof fresh water from the St.
Lawrence Riverand of the lowsalinities of the Labrador Current water.
The bottom waters of the Scotian Shelf are higher in salinity, because,
where topography permits, somewater enters the Scotian Shelf regime
from the continental slope.

24. The water in the Gulf of Maine Basinalsohas three tiers, or layers,
of different salinities,although the tiers are considerablylessdistinct than
are thoseof the Scotian Shelf. The water at the surface of the Basinis less
saline than the water that enters the Basin through the Northeast
Channel, fillingthe bottom of the Basin. Betweenthe surface and bottom
layers, an intermediate layer of water is formed that is lesssaline than the

bottom water, but more salinethan the surface water. The differences in
salinity between surface and bottom waters in the Gulf of Maine Basin
dissipate rapidly wherethe Gulf of Maine Basin meets the Scotian Shelf.
At that point, as noted above,the saline water entering the Basinthrough
the Northeast Channel mixeswith the water of lowersalinity entering the
Basin from the Scotian Shelf.

25. The water,overGeorges Bankand Nantucket Shoalsisof moderate
salinity, because it is derived fromthe surface and intermediate layers in

'Para.10,supra.the Gulf of Maine Basin. Figure 1'shows the average surface salinity
for each of the three oceanographicregimesin the Gulf of-Mainearea.

26. Water density is a function of temperature and salinity. Density
playsan important role in determining the direction inwhichwater moves
and the rate at which it moves, just as differences in air pressure
determine the direction and velocity of winds. A small difference in

density may have a profound effectupon the movementof water and the
developmentof gyres and fronts within the water columo.
27. In the Gulf of Maine area, density variesbetween 23 and 28 units

of density("sigma t"). This range of fiveunits of density is approximately
20 Dercent of the maximum density (about 28 sigma t). Such a range is
significant: it is analogousto a similar change in air pressure associated
with different atmospheric air masses, e.g., from 27 to 32 inches of
mercury (harometricpressure'.

28. As discussedabove,the temperature and salinitycharacteristics are
distinctive for each of the three separate and identifiable oceanographic
regimes.The density of the water in each of the three regimes, therefore,
is also different. Figure 14' shows the average density of the water
columnin the Gulf of Mainearea in each of the four seasons.In terms of

density, as in terms of temperature and salinity, the waters over Georges
Bankarean extensionof thoseoverthe southern New England shelf.The
Northeast Channel separates Georges Bank from the Scotian Shelf, and
linksthe Gulf of Maine Basin tothe continental slope.

E. DIFFERENCE ISTHE DEGREE TO WHICHTHEIRWATERS ARE STRATI-
FIBD OR VERTICALLM YIXEDDISTINGUIS %HE THREE SEPARAT END

IDENTIFIABL OECBANOGRAPH RICGIMES
29. The degree to which water is mixed vertically is important in the

production of both marine plants and the marine organisms that depend
upon those plants. In the Gulf of Maine area, the three oceanographic
regimesVaryin terms ofwhether, and the degreeto which,their waters ei-
ther are mixed vertically (Le. Georges Bank) or are stratified (i.e. the
Scotian Shelf and, to a lesserdegree, the Gulf of Maine Basin).

'Figure 13.Averagesurface salinitiesfor fourscasons(fordeptOs10 30
meters),basedupondata fromNational OceanographicData Centre ferthe
ycars1940-1980.
'This is a changeof approximate15pcr cent of the maximumair pressure
(about32inchesofmercury).Dramatic atmosphericconscquenceserxample,a
shift froma brightsunny daytoa violentstorm)ltfrom barometrpressure

changesofjusta fewincheA.changeinseawaterdensityofoneortwo "sigmat"
unitshasconsequencetshat arecomparableinsignificance.
'Figure 14. verage waterolumndensiticsfor fourseasons,basedupondata
from National OceanographicData Cenftirleesfor theyears1980.1491 ANNEXES TOCOUNTER-MEMORW OFTHE UNITED STATES 185

30. Vertical mixingis inhibited by stratification of the water. Stratifi-
cation is due to differences in temperature or salinity, or both. As noted .
aboveand in Table A, the water overthe Scotian Shelf islayered.The wa-

ter at the surface is dominated by water from the Gulf of St. Lawrence,
and thus is fresher and less dense.Due to occasionalinputs of water from
the continental slope,the water at the bottom is more highly saline and
thus denser. Betweenthe surfaceand the bottom layers, the intermediate
layer isdominated hy water fromthe Labrador Current, whichiscoldand
relativelylowin salinity. Accordingly,there are three layersof water over
the Scotian Shelf that increase in density with increasingdepth. Relative-

ly little vertical mixingdisturbs the three-tiered systemthat develops over
the Scotian Shelf.

31. The water in the Gulf of Maine Basin also has three layers, but
they are less sharply defined than are those over the Scotian Shelf. The
water in the Gulf of Maine Basin nevertheless is more rigidly stratified
than is the well-mixedwater overGeorges Bank.The stratification in the
Gulf of Maine Basin is attributable to the different origins of the water
entering the Basin.The water at the bottom enters the Basin through the
Northeast Channel from the continental slopeand is relativelydense.The
surface and intermediate layersare a mixture of the water enteringat the

surface from the Scotian Shelf and of the bottom waters entering through
the Northeast Channel '.
32. The water in the Gulf of Maine Basin isvertically mixedalong the

southwestern tip of the Scotian Shelf, where these two regimes meet.
There, the water flowing into the bottom of the Gulf of Maine Basin
through the Northeast Channel mixes with the surface water flowingin
from the Scotian Shelf. In contrast to the more stratified water in the
center of the Gulf of Maine Basin, peripheral water is well-mixedas a
consequenceof the flowof this water workingagainst the shalloweredges
of the Basin, under the influenceof windsand tides.

33. In contrast to the preciselylayered waters of the Scotian Shelf and
the more moderately layered waters of the Gulf of Maine Basin, the
waters overGeorges Bankare mixed from topto bottomyear-round. This

mixing iscaused primarily by the tidal currents coursingover the shallow
topographyof Georges Bank.

34. All of the temperature, salinity, density,and mixingcharacteristics
of the three oceanographic regimes in the Gulf of Maine area are

'Asnotedabove,the intermediate wateroftheSwtianShelforiginatesprimarily
fromthe Labrador Current. and thusisdifferentincharacterandinorieinfrom
thesurface and bottomwatersofthe ScotianShelf.TheGulfof~aine~asin is
Iessstratified,becausethe intermediatelayerof watcrdoesnot havean origin
separatefromthoscof the surfaceand bottomlaycrs;rather. itis a mixtureof
thesetwo. 186 GULFOF MAINE 150-561

interdependent. Forexample, the stratilication of the water column over
the Scotian Shelf or over the Gulf of Maine Basin is reflected in the
temperatures, salinities,and densities in each regirne.Similarly, tempera-
ture, salinity,and densitydata for the GeorgesBankregimeevincethe de-
gree of vertical rnixingthat occurs overthe Bank. Figures 15, 16,and 17

afford an ovemiew of the characteristics of the three oceanographic
regimes. Figure 15 shows a hydrographic cross-section along a line of
longitude,and contrasts the physicalcharacteristics of the Gulf of Maine
Basin regime with those of the Georges Bank regime. Figure 16shows a
hydrographic cross-section along a line of latitude, and wntrasts the
oceanographicregime of the Gulf of Maine Basin to that of the Scotian
Shelf, while Figure 17 shows ahydrographic cross-sectionof the North-
east Channel along a diagonal line from Georges Bank to the Scotian
Shelf.

35. Figure 15 'showshowthe water columnoverGeorgesBankiswell-
mixed from top to bottom year-round. In the warm season,a pronounced
thermal and salinity front developsat the surface along the southern edge
@) of Georges Bank. See Figure 11, supra. During the cold season, the

bottom water of the Gulf of Maine Basin is warmer than the surface
water, and is as warm as the water along the continental slope.The water
carried by the currents around the peripheryof the Gulf of Maine Basinis
somewhat colder and slightly less saline than the deeper water of the
Basin.

36. Figure 16l showsthat the water overthe Scotian Shelf (particular-
ly at the surface) is colder and less dense than the water of the Gulf of
Maine Basin. Scotian Shelf water is more rigidly stratified than that of
the Gulf of Maine Basin.The vertical mixingthat occurs where the Gulf
of Maine Basin and the Scotian Shelf meet, and where deep water from
the Northeast Channel mixes withsurface water from the Scotian Shelf,
is particularly noticeablein the illustration of warm seasontemperatures.
In the German Bank area, water from the bottom nearly tothe surface is

from eight to ten degreesCentigrade.
37. Figure 17' demonstrates how water entering the Gulf of Maine
Basinthrough the bottom of the Northeast Channel is relativelyconstant
in temperature year-round and is denser (and more saline) than is the

water at the surface. It also shows the contrast between the water over
GeorgesBank and that overBrowns Bankon the Scotian Shelf.

' Figurc15isbasedupondata fromNational OceanographicData Cenftirleesfor
the years 1940-1980.
Figure 16isbasedupondatafromNational OceanographicData Cenftirlees for
theyears 1940-1980.
' Figure17isbasedupondata fromNational OceanographicData Cenftirleesfor
theyears 1940-1980. [57-621 ANNEXESIO COUNTER-MEMORIALOF THE UNITEDSTATES 187

SECTION 3. The Tides in the Gulf of Maine Area Interact With and
Reflect the Topographie Features Underlying and Separating the Tbree
Oceanngraphic Regimes of the Area

38. Water, the atmosphere, and the earth itself respond to gravitational
pull. The dominant gravitational forces are the moon and the sun. The
oceans respond directly to the moon to produce tides of approximately
12.4 hours duration (one half-lunar day'.Tides Varyin complexity with
that of the topography over which they move.

39. The tides in the Gulf of Maine area reflect the differentograph-
ic features described in Chapter 1, Section 1. Figure 1'shows the flood
and ebh tidal currents in the Gulf of Maine area. The differences in the
size of the arrowsindicate differences in velocity, which is affected by the
topography of the area. Georges Bank and the Northeast Channel are
sharply defined in Figure 18'. Tides cause the water wlumn in the
shallower areas to he mixed fromthe surface to the bottom. In response to
tidal forces, water in the Gulf of Maine area moves twice daily in an

elliptic pattern. Figure 1'shows the shape of the ellipses followed by
water at different points in the Gulf of Mainerea. Figure 19 illustrates
the differing movement of water over Georges Bank, over the Scotian
Shelf, in the Northeast Channel, and in the Gulf of Maine Basin. The dis-
tance that the water is moved by the tides in the shallowereas, such as
Georges Bank, is greater than is the distance in the deeper areas, such as
the center of the Gulf of Maine Basin.

'In the Northwest Atlantic, the semi-diurnal(twice daily) tides dominatet;he
diurnal(daily)componentissmall.
'Figure 18isa reproduction oftwomapspreparedforthe UnitedStates Dept.of
the Interior,ineralsManagement Service,bythe Dept.of Ocean Engineering
and GraduateSchoolof Oceanography, Universityof Rhode Island,and Applied
ScienceAssociates,Inc.
@ @ ' Figures18and 19inthe CanadianMemorialshowtidalcurrentsfor periodsonly
threehoursapart.Thesefiguresdonot representthe extremesofthe tidalcurrents
@ (malimum flood and maximumebb). In Canadian Figure 18,the tide is still
turning. Becausethe horizontalspacingbetweenthe arrows in bath figuresis
coarse (basedon a grid of approximately22km). the illustrationof interaction
betweenthe topographyof the area and the tidal currents isminimized.By
cantrast, Figure 18 of this Annex showsthe extremesof the tidal currents
(maximumebb and maximumflood).The spacingbetweenthe arrows is finer
(basedona 12.5 km grid)and resultsina truer representationofthe effectsofthe
area'stopography-such as the steepgradientson the sidesof the banks-on the
tidal currents.
' Figure 19. RepresentatiM, tidal ellipses.The ellipsesselect4 are locatedat
approximately mid-water depth. Numbers inside or near the ellipsesare the
instrument depthsinmeters.Tick marks alongtheedgeoftheellipsesindicatethe
hour at Greenwich. Preparedby J.A. Moodyand B. Butman, United States
GenlogicalSurvey,WoodsHole,Massachusetts.188 GULF OF MAINE 163-661

40. Tides are critical to the vertical mixing of the water column over
shallow areas, and, as a result, are important in determining the amount
of plant production that takes place in such areas. In combination with
other factors, tides also contribute to the development of the pattern in
which water circulates through the area. Tides provide much of the force

that mixes the water entering the Gulf of Maine Basin fromtheNortheast
Channel with that entering at the surface from the Scotian Shelf. Most of
the tidal energy that enters the Gulf of Maine Basin comes through the
Northeast Channel. Figure 20 '.As can be seen in Figure 20, the tidal en-
ergy that enters the Gulf of Maine Basin through the Northeast Channel
is greaterthan the tidal energy entering the Bay of Fundy from the Gulf
of Maine Basin '.

'Figure 20. From D.A. Greenberg;"A NumericalMcdel Investigationof Tidal
Phenomenainthe Bayof Fundy and Gulfof Maine",in Marine Geodesy, Vol.2,
No. 2, 1979,pp. 167, 177, Figure9, "Net andoscillatingpoweracrossvarious
linesinthe mcdel".Depositedwiththe Court by Canadapursuantto Article5q2)
ofthe Rulesof Court.
'Greenberg,indescribinga numericalmodelusedto investigate tidalphenomena
in the Bay of Fundy and the Gulf of Maine, stated that "[taie net power
transferred acrossthepenboundary of themodelislargestat theentranceofthe
Fundian Channel" [the Fundian Channel is another name for the Northeast
Channel].Op.cit.,p.176. A figure from his article, reproduced asrFigure20,
illustrates hisfindings.In his summary, hestates that "[mjustof the tidal energy
entersthe systemtbroughthe FundianChannel".Ibidp .,185. CHAPTER II

THE ECOLOGYOF THE GULF OF MAINE AREA

INTRODUCTION

41. The distribution of livingorganisms withinthe Gulf of Maine area
is determined, to a large extent, by the interaction of marine flora and
fauna with the oceanographic factors described in Chapter 1. The
followingare severalexamplesof the interaction:

a. vertical mixingof the water column stirs up nutrients critical to the
production of marine plants;

b. currents transpmicroscopieplants, fish eggs,and lawae;

c. topography and bottom sediment affect the distribution of bottom-
dwellingorganisms;

d. salinity and variations in temperature influence significantly the
distribution of fish species; and

e. gyres are important in forming separate subpopulations or stocksof
fish.

42. The juxtaposition witliin the Gulf of Maine area of the three
separate and identifiable oceanographic regimes hasgiven rise to the

formation of distinct biologicalcommunities within those regimes. Each
biologicalcommunityand its correspondingoceanographic regimetogeth-
er wnstitute an ecologicalregime. Thus, the Gulf of Maine area contains
three distinct ewlogical regimes associated with the Scotian Shelf, the
Gulf of Maine Basin, and Georges Bank, respectively.

SECTION 1. The Gulfof Maine Area 1sDividedinto Three Separate and
. . Identifiable EcologicalRegimes

A. THEPRODUCTIO NF MARINE PLANTS IN THEGULF OFMAINE AREA

REFLECT SHE WATER DYNAMIC OF THE THREESEPARAT END IDENTI-
FIABLEOCEANOGRAPH RCGIMES

43. The energy that forms the hase of the marine foodchain is derived
from sunlight through the photosynthetic activityof plants. This activity
is referred to as primary production. Mostof the plants suspendedin the190 GULF OFMUNE 168-701

ocean are microscopic, single-celled organisms known as phytoplankton '.
The rate of production, or photosynthesis, is directly proportional to the
amount of sunlight that the phytoplankton receive. Other factors influenc-
ing production include the availability of nutrients, the extent to which the
water column is vertically mixed, and the rate at which the plants are
consumed.

44. Primary production is stimulated where the water column is
vertically mixed. This mixing brings nutrients from the lower levelsof the
water column up to the sunlit layers, where plants can grow. Such stirring
occurs particularly in shallow areas, over hanks or along the Coast,as a re-
sult of the wind or the tides, or hoth.
45. Portions of the Gulf of Maine area demonstrate a consistent
pattern of primary production from year to year. As Figure 21 'shows,
primary production is stimulated in those areas where the water from the

Swtian Shelf is enriched by the water coming into the Gulf of Maine
Basin through theNortheast Channel and the water column is sufficiently
shallow, Le., less than 100 meters in depth. Within the Gulf of Maine
Basin, along the coastal region from Cape Cod to Grand Manan Island,
wastal upwelling caused principally by prevailing winds stimulates
primary production. In the deeper areas of the Gulf of Maine Basin,
production is stimulated for a relatively hrief period, when the water
column reaches a certain level of stability and hefore the nutrients
suspended in the surface waters are depleted. On Georges Bank and
Nantucket Shoals, production is a direct result of the flowof nutrient-rich
water from the intermediate layer of the Gulf of Maine Basin ont0 the
Bank and Shoals, where the water is mixed constantly from top to bottom

hy the tides and winds.
46. Phytoplankton is retained within the Gulf of Maine Basin by its
counterclockwise gyre, and over Georges Bank by its clockwise gyre.
These gyres contribute to the development of separate and distinct
phytoplankton communities in the area. The Swtian Shelf regime and the

'Theseaweedsthat adhereto rocksalongthe seashoreand thosethat live inthe
shallowcoastal watersmakea minimalcontributionto the primary production of
thearea.
'Figure 21. A Coastal Zone Color Scanner (C.2.C.S) Image showing the
distributionof chlorophylland other pigmentsin the near-surface layerson 14
June 1979. The relative amount of these pigments correspondsto the relative
abundance of phytoplankton,except inshore, where other pigments are also
presentand may exaggerate the abundanceof phytoplankton. Increasingncen-
trations ofpigmentsare indicatedby progressivelycooler colors. nie greatest
amounts ofpigmentare indicatedin blue, lesseramountsare in green,stilllesser
amounts arein yellow,and the least amountsare in red. ïhis imagwas corn-
puter-generatedfmm data aquired by the Nimbus 7 satellite.Imagesshowing
the annualprogressionof phytoplankton productioin the Gulfof Maineareaare
containedinAppendix1.1711 ANNEXESToCouNTeR-MEMow OF THEUNITED STATES 191

deeper waters of the Gulf of Maine Basin are characterized by smaller
phytoplankton ("nanno" plankton) communities, while the well-mixed;
relatively shallow Georges Bank regime ischaracterized by larger phyto-

plankton ("net" plankton) communities.
47. The separation of distinct phytoplankton communitiesand their
relationship tothe physical oceanographyof the area are evidentin Figure
22 'This Figure combines informationonphytoplankton andon tempera-
ture for each of the three oceanographic regimes.The significanceof the
Northeast Channel is apparent, as is the front tha! developswhere the

water from the Scotian Shelf is mixed with the slope -,.:?ter entering
through the Northeast Channel.
48. Although the gyres in the Gulf of Maine Basin and over Georges
Bank retain water and suspended materials such as phytoplankton for
considerahle lengthsof time, water and suspendedmatter eventually are

carried through the area alongthe general circulation SeetFigure
8, supra..The amount of material moved depends upon the speed and
quantity of water in motion. Faster currents carrysinkingmaterial
farther than slower currents. Small organisms that live at or near the
surface, such as phytoplankton, zooplankton(small herbivorous organ-
isms), the eggs and larvae of fish, and the larval stages of many
invertebrates, arerticularly susceptible to being transported with the
currents.

49. In particular, phytoplankton and other small organismsare trans-
ported from Georges Bankto the southern New England shelf and farther
to the southwest.ecause the life cycleof many phytoplanktonspeciesis
measured in hours or days, evidenceof phytoplankton transport is short-
lived, but phytoplankton and their decaying remains furnishnutrients to
the areas into which they are swept.

B. ZOOPLANKTOP NRODUCTION AND DISTRIBUTIO NN THE GULF OF
MAINEAREAREFLECT SHE WATERDYNAMIC SND OTHERPHYSICAL
CHARACTERIST OIFTHE THREESEPARAT END IDENTIFIABL OCEANO-
GRAPHIC REGIMES

50. Zooplankton are capable of controlling their movement, to a
limited degree, hy swimming.They are nonethelesstransported continu-

'Figure22.The interactionbetweenpigmentand temperaturein the Gulf of
MaineAreafor themonthofJune asshownbyclusteranalysis.Suchan analysis
rcvealsthe mannerin whichphytoplankton communiese relatedto tempera-
turc. This figure was develod by combiningC.Z.C.S. pigment data and
AdvanccdVeryHighResolutionRadiometer(A.V.H.R.R.)thermalata, fo14
June 1979.Areasof the samecolorare arcassharingcomparablethermaland
pigmentconditions. 192 GULF OF MAINE 172-741

ously by currents'. They congregate in areas of high phytoplankton
production, and, like phytoplankton, are usually retained in the Gulf of
Maine Basin by the counterclockwise gyre (for about one year) and over
Gwrges Bank hy its clockwise gyre (for about three months). The life

cycle of zooplankton is longer than that of phytoplankton, lasting from
weeks to months or even longer. Some zooplankton are transported out of
the Gulf of Maine Basin regime hy the current that runs along the
northern edge of Gwrges Bank and the southwestern edge of the
Northeast Channel, then hack along the southern edge of Gwrges Bank.
Others pass out of the Gwrges Bank gyre and down the southern New
England shelf. Others are swept from the Scotian Shelf into the Gulf of

Maine Basin.
51. In spite of the movement of zooplankton from regime to regime and
their tolerance for varying conditions, the communities of zooplankton

associated with the Scotian Shelf, the Gulf of Maine Basin, and Georges
Bank are different. Each community includes some species that do not
appear in the other twol. Although the same species dominate in each
community, they do so at different times of the year. Thus, Calanus
finmarchicus, a small crustacean, dominates the zooplankton community
of the Scotian Shelf during al1but the warmest months of the year, and
Centropages typicus, another small crustacean, dominates the zooplank-

ton community on Georges Bank, and the continental shelf to the
southwest, during al1 but the wldest months of the year. By contrast,
Calanusfinmarchicus dominates Georges Bank for a short period during
the colder months of the year and Centropages typicus dominates the
Scotian Shelf for a short period during the warmest months.

'H. B. Bigelow,"Plankton of the Offshore Watersof the Gulf of Maine". in
UnitedStates Bureauof Fisheries.BulletinVol.XL, Part 2 (Doc.968). 1926.
pp. 1-509;previouslydepositedwith the Court pursuant to Article 5q2) of the
Rulesof Court; A.C. Redfield,"The Effectof the Circulationof Water on the

Distributionof theCalanoid Communityin the Gulf of Maine", Biological
Bulletin.ol.LXXX, No. 1, 1941,pp. 86-110; A. C. Redfield andA. Beale,
"Factors Determiningthe Distribution of Populationsf Chaetognathsin the
Gulfof Maine", BiologicalBulletinVol.LXXIX,No. 3,1940,pp.459-487;A.
C.Rcdfield,"A Historyofa Populationof LimacinaRetroversaDuringits Drift
Acrossthe Gulf of Maine",BiologicalBullerin.Vol.LXXVI. No. 1.1939,pp.
26-47.
Sec UnitedStates Memorial.para. 50and Annex 44,Vol.II.(751 ANNEXESTO COUNTER-MEMONALOF THE~ITED STATES 193

THEWATER DYNAMIC ASND OTHER PHYSICA LHARACTERIST ICTSHE

THREE SEPARAT AND IDENTIFIABL OECEANOGRAPH REIGIMES
52. There are over 200 species of fish in the Gulf of Maine are'.
Fewer than 40of these, however, make up the bulk of the bio'.As no

two species of fish are exactly alike, useful conclusions about the ecology
of an area cannot he drawn from the examination of any single species.
While the fate of smaller marine organisms is determined largely by the
circulation pattern of water, adult fish move inonse to their needs.
Fish speciescan be categorized on the hasis of their responses to the
temperatures and other features(e.g., topography and currents) of the

tbree oceanographic regimes in the area.

1. Some Speeies of Fish Prefer Shallow Water and Do Nor Show
Pronounced Seasonal Movement
53. Ocean put, longhorned sculpin, yellowtail flounder, winter floun-
der, windowpane flounder, little skate, winter skate, sea Iaveh, and cunner

(the "yellowtail flounder-ocean pout" association') are relatively abun-
dant on Georges Bank and southwest to southern New England and

'In "Fishes of the Gulf of Maine", Bigelowand Schroedcrdiscuss somc 219fish
species.(The authors did not discuss benthossuch as scallopsor lobster.)They
listed onlyhose that woulbe expected tbe in the Gulf to depths of 150

fathoms. H.B. Bigclowand W.C. Schroeder,Fishes of the Gulf of Maine",
Fishery Bulletin 74.Vol.53, 1953,pp. iii-1.See AL.endix
'Althougha large number of different speciesof fish may be found in the area,
the bulk ofthe biomassisde up of onlya few species.Usually,the five or six
mostabundant speciesconstitutemorethan 50per cent of the total biomass.The
uppermost 12speciw constitute more than 80 per cent, and the uppermost 25
species morethan 95 per cent of the total biomass. The relative positionof a
species,in terms of biomass, Varyover time, both bccausc populationsVary
naturally, and because fishingrcducesone speciesor another. Some ofthe more
valued species,g., swordfish, constituteonly a very small fraction of the total
biomass.The uppermosttcn species, interms of their contribution tothe biomass
of thc arca in rccent ycars. are silver hake, Atlantic herring, spiny dogfish,
haddock, red hake, mackerel.pollock. thorny skccd, and redfish. R.L.
Edwards, "Fishery Resourcesof the North Atlantic Area". The Fofthe
Fishing-Industryin the UnitedStates. New Series,Vol.IVPP.52-60;R.L.
Edwards, "Middle Atlantic Fishcries:Recent Changes in Populationsand Out-
Imk", in SpecialSymposium2, AmcricanSocietyof Limnologyand Oceanogra-

phy, 1976,pp. 302-311.
'The word"association" is used herc in conjunctionwith commonspecicsnames
in the samemanner that ecologistsusesuchto groupspeciesthat showsimilarad-
aptations to climaticfactors,as, for,the "Beech-Maple"forcstof eastern
North America.Thc tcrm suggestsa recognizablespeciescomplexthat occupiesa
givenregionU. L. R. Dice.Natural Cornmuniries.1952,ChapXX.194 GULF OF MAINE P6-801

beyond. This group of species is also found on the Scotian Shelf where ap
propriate temperatures and bottom conditions exist. This group is fairly
tolerant of wide temperature variations, and, unlike the fourspot flounder-
bluefish association described below, does not move off the shallower
portions of the Shelf during the colder months of the year. The species in
the yellowtail flounder-ocean pout association generally favor coarser or
sandy bottoms. See Figure 23 '.Members of this group are found
regularly along the New England Coast, along the eastern margin of the

Gulf of Maine Basin where the water entering the Northeast Channel
skirts Browns Bank and German Bank, and along the offshore Scotian
Shelf banks where there is summer warming above 12 degrees Centi-
grade. Although these species are found along the Scotian Shelf, tbeir
abundance falls off increasingly tothe north.
54. Most of these species attach their eggs to the seabed to ensure
against their being swept away, possibly into an unfavorable environment
(such as the unsuitable deeper portions of the Scotian Shelf). Many, if not
al1members of this group are represented by one or more separate stocks

on either side of the Northeast Channel.

2. Some Species ofFish MoveOnand OffShore Seasonally inSearchof
Warmer Water
55. A second group of species prefers relatively warm water and
accordingly migrates seasonally. See Figure 24l. The members of this
group are more abundant on Georges Bank and tothe southwest. They are
found less frequently in the Gulf of Maine Basin and on the ScotianShelf.
This group includes red hake, spiny dogfish, silver hake, white hake, and

goosefish (the "silver hake-spiny dogfish" association). The lobster, while
not a fish, behaves similarly and thus may be included in this group.
These species tend to move inshore or ont0 the banks, where the waters
are warmer during the summer, and offshore into relatively warmer
(usually slope)water during the winter '.In this respect, these species can
be contrasted with the Atlantic herring-cod association discussed below.

'Figure23. The yellowtailflounder-oceanpou1association.This figureis based
upongroundfish trawl-surveydata, smoothed(fitted)usingexact bicubicsplines.
Thesurveydata hasbeenprovidedto Canadianfisheryauthoritiesoverthe years,
on a regular basis. by the Northeast Fisheries Center,National Oceanic and
Atmospheric Administration, UniteSdtates Dept.of Commerce.Canadacited a
portionof thisdata inls Memorial,at para. 106.n25.
'Figure 24. The silver hake-spinydogfishasswiation.This figureis basedupon
groundfish trawlsurveydata, smoothed (fitted)usingexact bicubicsplines.The
surveydata hasbeenprovidedto Canadianfisheryauthoritiwovertheyears,ona
regular basis,y the Northeast FisheriesCenter. National Oceanicand Atm*
sphericAdministration, UnitedtatesDept.ofCommerce.Canadaciteda portion
of thisdata in its Memorial,at para. 106,n.
'Of the members of the silver hake-spiny dogfish association,the goosefish
appearsto movethe least.t8il ANNEXESTO COUNTER-MEMORMLOFTHE UN~D STATES 195

Most of these species spawn during the warmer months. As discussed
below, separate and identifiable stocks for several of these species-red
hake, silver hake, white hake, and lobster-are associated with each of the
three oceanographic regimes in the area '.

3. Some Speciesof FishPrder Deep,Colder Water
56. A third group of species likes cold, deep waters. It occupies the

deeper portions of the Gulf of Maine Basin and suitable areas on the
Scotian Shelf and northeastward. As with the yellowtail flounder-ocean
pout association, it is seasonally constant in its distribution. See Figure
25 '.This group of species includes the witch flounder, redfish (more than
one species), cusk, wolffish, Atlantic argentine', and thorny skate (the
"redfish-wolffish" association). With few exceptions, members of this
group are also found in European waters where, as in the Gulf of Maine
Basin and in the deeper portions of the adjacent Scotian Shelf, the

seasonal change in temperature is not marked. These species reach their
southwestern limits in the Gulf of Maine Basin, and they are dependent
upon the Basin gyre for the survival of their populations. The gyre in the
Gulf ofMaine Basin assures the retention within the regime of sufficient
eggs and lamae to maintain these populations. There is virtually no
overlap between the members of this species group and the members of
the first group (yellowtail flounder-ocean put association), described
above, or the members of the fourspot flounder-bluefish association,

described below. See Figures 23, supra.and 27, infra.The abundance of
this group falls off sharply southwest of the Gulf of Maine Basin and the
Northeast Channel, although individual members, notably the witch
flounder, are found in the coldest waters of the southern New England
Shelf as far to the southwest as the Hudson Canyon. They are

'For managementpurposes,there has never been a need to define stocks of
dogfish orgwsefish. Nevertheless, onemay infer from distributiondata and a
knowledgeofthe physicaloceanography(Le.,currentsand gyres)of the area that
thereareat leasttwodogfishstocksinthearea(inthe GulfofMaineBasinandin
the southernNew England - mid-Atlanticregion),andthat thereare at leastfour
stocksof gwsefish (near SableIsland,overBrownsBank,in the Gulf of Maine
Basin.and inthe southernNewEngland - mid-Atlanticregion).
'Figure 25.Theredfish-wolffish os&iation. Thisfigurcisbascdupongroundlirh
trawl-surveydata. smoothcdIlitted)usingexact bicubicsplines.The surveydata
has been piovidedto canadian fisheryauthoritiesover the years, on a regular
basis, by the Northeast Fisheries Center, National Oceania cnd Atmospheric
Administration, UnitedStates Dept.of Commerce. Canada cited a portionofthis
data in its Memorial,at para. 106,n. 25.
'The argentine is includedin this group, becauseit is present inconsiderable
numbersin the deeper watersof the Gulf of Maine Basin.It is unlikethe other
membersofthe group,however,inthat ithasstrong affinitieswiththeslopewater
region.See Figure 49,infra.196 GULFOF WNE [82-861

able to survive inthis zone, but there is noevidencethat they constitute a
self-perpetuating population. There is no reason to suggest that any of
these specieshave more than one subpopulation withinthe Gulf of Maine
Basin,with the possibleexceptionof redfish.

4. SomeSpeciesofFish Move Onand OffShoreSeasonallyinSearchaf

Cold Waters
57. A fourth group, like the third, is composedprincipally of species
that are found on both sides of. the Atlantic Ocean. Moreover, the

members of this group similarly prefer relatively cold water. This
preference, bowever, is evidenced by movement into shallower, colder
water in the winter and into deeper, colder water in the summer. These
species reach their southern limit in the Georges Bank regime,and are
more abundant to the north. Included in this group are the Atlantic
herring, American plaice, cod, pollock ',and haddock (the "Atlantic
herring-cod" association).See Figure 26 '.

58. With the exceptionof the Atlantic herring, which depositsits eggs
on the bottom, thesespecieshave eggsthat are suspended inthe water col-
umn. In the Gulf of Maine area, their subpopulations spawn in close

association with gyresthat tend to retain the eggsand larvae.Oneor more
separate stocks of Atlantic herring, cd, and haddock occur in the
Georges Bank regime '.The maintenance of these stocks ove1Georges
Bank dependsupon the Bank'sgyre.

5. Movementof Other Species
-
59. There are some species found on Georges Bank and to the
southwestthat are onlyrarely in the Gulf of Maine Basinor overthe Sco-
tian Shelf. During the warmer period of the year, bluefish, northern sea
robin, fourspot flounder, butterfish, summer flounder, and spotted hake,

' Mostofthe membersof thisgrouplive closeto the bottom.Acmrdingly,their
fd consistslargelyof animalsthat alsolivenear thebottom.Pollockare more
pelagic(swimat al1levelsof the water column), feedinogn organismsthat are
abundantthroughoutthe watercolumn andnear the surface (e.g.,the euphausid
shrimps)T. heyrangewidelyinpursuitoftheirprey.Ingeneral,howevert,heyare
membersofthis group.
'Figure 26: The Atlanticherring-codassociation.This figure is based upon
groundfishtrawlsurveydata, smoothed(fitted)usingexactbicubicsplines.The
surveydatahas beenprovided toCanadianfisheryauthoritiesovertheyears,ona
regularbasis,by the NortheastFisheriesCenter,NationalOceanicand Atmo-
sphericAdministration.Unite SdtatesDept.ofCommerceC . anadaciteda portion
ofthisdata initsMemorial,at para. 106,n. 25.
'Seethediscussionofstocksinparas.76through85,irifra.1871 ANNEXESIO COUNTER-MEMORIALOFTHEUNITEDSTATES 197

as well as the longfin (Loligo) squid (the "fourspot flounder-butterfish"
association) may be found al1along the mid-Atlantic Coastand northeast-
ward ont0 Georges Bank. The eastern tip of Georges Bank represents the

general northeastward limit of distribution for these species, albeit, during
very warm summers, they occasionally will be found to have ventured into
the Gulf of Maine Basin. As the shallower coastal waters cool in the fall,
these species move either offshore to the warmer slope water or to the
southwest. See Figure 27 '.

60. These species have not developed separate stocks within the
Georges Bank regime. They have adapted to the region to the southwest,

and, if theireggs and larvae drift out of the Georges Bank gyre, they tend
to be transported into a similarly favorable environment on the southern
New England shelf.

61. There are still other species2 more commonly found on the Grand
Banks off Newfoundland and on the Scotian Shelf that are rarely present
in the Gulf of Maine Basin or on Georges Bank, e.g., the Greenland

halibut and the capelin.
62. There are other, relatively common species, e.g., the mackerel, that

do not fit into the groups discussed above. Mackerel are found in
abundance as far north as the Gulf of St. Lawrence, where a separate
spawning subpopulation is maintained. While it is believed that there are
several mackerel subpopulations, they are not easily identified, and
mackerel are found throughout the Gulf of Maine area in the summer

months. There is some evidence that al1these subpopulations winter in the

'Figure 27.The fourspotflounder-bulterfishassociation.This figureisbasedupon
groundfish trawlsurveydata, smoothed(fitted)usingexact bicubicsplines.The
surveydata has beenprovided toCanadianfisheryauthoritiesoverthe years,ona
regular basis,by the Northeast FisheriesCenter, NationalOceanic andAtmo-
sphericAdministration,UnitedStatesDept.ofCommerce.Canada citedaportion

of thisdata inits Memorial.at para. 106,n. 25.
'The fiveassociationsdescribedinthe precedingparagraphsare notexhaustiveof
the species groupsformedin the Gulfof Mainearea. Other speciesmay alsobe
groupedaccoidingto their ecologicalneeds-as, for example.a groupof species
that is not as coherent as the five groups listedabove, but that can he
characterizedasthosespeciesthat liveinthecontinentalslopewater.Suchspecies
includethe argentine(year-round)andthe shortfin(Illex)squid(duringthe colder
months ofthe year).198 GULF OFMAINE [88-901

mid-Atlantic region'.There is also evidence that mackerel are present in
the offshore Scotian Shelf region during the win'.r
63. Like the mackerel, the shortfin (Illex) squid enters the Gulf of

Maine area in the late spring, as the surface water warms. The shortfin
squid is found throughout thearea during the summer months, but it is re-
stricted tothe slope water region during the winter.
64. There are several highly migratory species that enter the area for
short periods, usually during the summer months, such as bluefin tuna
and swordfish'.

D. SEPARATS ETOCKS ARE ASSOCIATED WITH EACH OF THE THREE
OCEANOGRAPH ICEGIME OF THE GULF OF MAINEAREA
1. Separate Stocks of Fish andShellfish Species Have FormedWithin
Eachqfrhe ThreeOceanographicRegimesinResponseto Oceanographic

and EcologicalFactors
65. In the Gulf of Maine area, the water dynamics and other physical
characteristics of the three separate and identifiable oceanographic
regimes have led to the formation of separate fish stocks associated with
each of those regimes.

As,described in the United States Memorial:

"A 'stock'is a community of fish orellfish that, under normal
circumstances, is capable of maintaining itself without immigra-
tion from other communities of theame species. Damage done
tothe fish in one stock, whether by overfishing or other human
activities, will affect the stock throughout the ecological regime
in which it lives. Such damage would not, however, have any
significant impact on maintenance of other stocka of theme
speciesassociated with different ecological regimes. A fishstock,
rather than a species, isthe appropriate subject of fisheries
conservation and management efforts4."

'Seepara. 100,infra.
'Canadian groundfishsurveydata provided tothe Northeast FisheriesCenter,
National MarineFisheries Service,National Oceanicand AtmosphericAdminis-
tration,UnitedStates Dept.ofCommerce.
'Severalspeciesofwhalesandpowises passthrough the areaseasonally.Groups
may remain in various localities for considerableperiods of time during the
warmermonthsof the year. e.g.,white-sideddolphins,minkewhales.humphack
whales,andfinwhales,which al1appearregularlyin the StellwagenBankregion.
In general,the toothed whales(Odontocetes)dominateon and aroundGeorges
Bank,andthe baleenwhales(Mysticetes)dominateonthe ScotianShelf.
'Para. 52.[Citationomitted.]The Canadian Task Force on Atlantic Fisheries
recentlydefined"stock"as a:
lioornorconrinueonfollowingpage)1911 ANNEXESIO COUNTER-MEMORULOF THEUNITEDSTATES 199
66. A degree of geographic isolation is necessary before separate stocks

can form within a species. Anumber of fish stocks are isolated from other
stocks of the same species when, at particular times or places, they
congregate to spawn. The relative separateness of spawning areas used by
a given species is one useful criterion for defining the separation of that

species into separate stocks. The relative discreteness of the areas within
which eggs and Iawae of each spawning population subsequently are
found is another. Ecological factors also may contribute tothe isolation of
a stock. A stock that is isolated at spawning time may adapt to the
particular ecological circumstances that are found on the spawning

grounds.

67. Spawning aggregations occur at times and places that, over long
periods, have fostered successful reproduction of the species. These
aggregations may occur in response either to environmental cues that are
consistent from year to year (such as fronts or bottom types), or, more
likely, to an adaptive, "homing" sense. It is well documented that many

species of fish havesuch a homing sense (e.g., such fresh water species as
Salmonand alewives, and such marine species as the winter flounder).

68. Fish have a variety of spawning strategies, including producing live
young (dogfish and redfish); fastening eggs to the seabed (sculpins, skates,
squid, and Atlantic herring); and releasing the eggs to the environment to
be carried about in the currents (gadoid species-such as cod, haddock,

silver hake, red hake, and white hake-most flounders, and mackerel).
These strategies become increasingly important to the suwival of a stock
as a species approaches the limits of its geographic range. Eggs

ffootnofecontinuedjromprevious page)

"Term used to refer to a population of fish of one speciesthat
congregates andfor migrates within a given geographicalarea. Thus,
there may he severalstocksof fish for each species.The fish in each
stock are genetically distinct.despitethe fact that they helongto the
same species.and thus each stock can be managed independently,
becausefishfromonestockdonotmixwiththoseofanother."

See Task Forceon Atlantic Fisheries,Navigating Troubled Wuters(Highlighfs
andRecommendations). MinisterofSupplyand Services ofCanada. 1982p , . 149.
This definition ofa stockisidealistic.Most stocksare notdefinedona geneticba-
sis,althoughsomegenetic differentiationistbe expectedandhasbeenobserved.
Furthermore, interminglingdoesnotprecludethe existenceofseparatestocks.As
notedabove,in order to be recognizedas a separatestock.a subpopulationmust
be sufficientlyseparatefrom other subpopulatiosf the samespeciesforit to be
reasonable totreat it as a unit from theperspectiveof fisheries management and
conservation.200 GULFOF mNe [921

and larvae are vulnerahle to environmental vicissitudes,and a successful

spawning strategy will keep them within an area suitable for their
sumival.

69. As one moves northeastward along the Scotian Shelf, waters of
comparahly warmer temperature occur only in increasingly shallowareas.
Thus, as they movenortheastward, those speciesthat require a minimum
temperature for hatching and early-stage development increase the
probability that their eggs and larvae will remain in asuitahle environ-

ment if they attach their eggs to the hottom. This helps retain the Young
in those shallowerareas having temperatures suitahle for their sumival.

70. The strategy of fastening the eggs to the hottom is particularly
suited to those species that live on the Scotian Shelf, a "pass-through"
system in whichthe movementof water is essentiallyuninterrupted, but
that bas an irregular topography (a series of banks separated by hasins).
Many speciesthat are more ahundant on Georges Bankand farther to the

southwest, but that are present as localized stocks on the Scotian Shelf,
deposit their eggs on thebottom (e.g.,eelpout, longhorned sculpin, ocean
put, winter flounder, little skate, winter skate, and sea raven).

71. Many fish depend upon water circulation patterns, such as gyres
and other similar retention mechanisms, to maintain eggs and larvae
within a suitahle environment. Over Georges Bank,cod and haddock are
at the southwestern limit of their normal range, and the survival of the

Georges Bankstocks of these species is dependent upon the existence of
the Georges Bankgyre. The results ofdependinguponthe gyreare similar
to those achievedby speciesthat lay their eggs onthe hottom, but there is
a different initial environment for the eggsand larvae. Since they are not

attached to the bottom, the eggs, as well as the lamae that hatch from
them, depend more uponthe conditionsand foodprovidedat the surface.

72. In the Gulf of Maine area, the various spawning strategies
contribute to the developmentof separate stocks. Some species use both
spawning options (gyresand bottom laying) to varying degrees. On the
Scotian Shelf, stocks develop by attaching their eggs and larvae to the
hottom of the shallow hanks. In the Gulf of Maine Basin, the counter-

clockwisegyrehelps retain those eggsand larvae that are not depositedon
the hottom. Over Georges Bank, eggsand larvae are retained, hecause
they are deposited onthe hottom or hecauseof the clockwisegyre overthe
Bank,or both.

73. The repetitivenessof fish, egg, and larvaedistribution data and of
stockstructures showsthat fish concentrations and separate stockstend to
form in certain regionsof the Gulf of Maine area. The three general stock 1931 ANNEXESTO COUNTER-MEMORIALOf THE UNITEDSTATES 201

@ development regions are indicated in Figure 28 ', on which the Scotian
Shelf is shown in green. the Gulf of Maine Basin in black, and Georges
Bank in red (extending ontoNantucket Shoals and along the southwestern
@ Coastof the Gulf of Maine Basin). Figure 28 shows that, in each of these
regions, there are a number of separate areas, associated with particular
environmental factors, within which the development of separate stocks is
favored. In the Gulf of Maine area, separate stocks tend to be associated

with: (1) the gyres and eddies over and around banks and islands, e.g.,
Georges Bank, Banquereau, Sable Island, and Prince Edward Island; (2)
the large eddies found around headlands, e.g., Cape Breton (overSt. Anns
Bank), and the areas downstream from Cape Sableand Nantucket Shoals;
(3)slow moving gyres or areas with little water movement, e.g., in the Gulf
of Maine Basin; and (4) frontal areas along the outer edge of the
continental shelf where the waters are moving slowly enough to enable
lawae to develop before they are swept off into alien environments, e.g.,
off Sable Island Bank and Georges Bank.

74. The fact that a species divides into separate, relatively independent
subpopulations or stocksis important to management and conservation. A
fish stock responds as a unit to hawest. Once a stock has been identified,
itcan be the object ofasingle set of management policiesand regulations.
Many of the species found in the Gulf of Maine area long have been
recognized as being subdivided intoseparate stocks.

2. Separafe Stocks af Commercially Important Species Have Been
Identified With the Separate and Identifiable Regimesof the Scotian

SheK Georges Bank.and the Gulf ofMaine Basin
75. Separate stocks of major fish species in the Gulf of Maine area
have been the subjects of international fishery research for o50ryears '.
During this period, fishery scientists from the United States,

'Figure28. A synthesisof the availabledata on (1)stocks and subpopulatisfo
fish in the area,)spawning concentrationsof fish(3)distributionof fisheggs
and larvae,and(4)rewgnized hydrographiefeaturesthat tend to retainthe eggs
and lamae of fish within particular areas. The figure showsareas in which
separatestockstend to develop.Separatestockswillnot necessarilyformin each
of theareas; this dependsupon the spawningstrategy and the environmental
preferencesof the individualspecies.
'Duringthe 1930s,scientists fromthe UnitedStates and Canada metjointly to
identifyfishstocksin the NorthwestAtlanticunderthe NorthAmerican Council
on FisheryInvestigations(NACFI).Fromthe 1950sthrough 1976,identification
of fish stockswas pursued in multinational wmmittees of the International
Commission forthe NorthwcstAtlantic Fisheries(ICNAF).Sinccthat tirne,the
question hasbeen pursued in the UnitedStates by the scienceand statistical
wmmittees for the New Englandand Mid-AtlanticRegionalFishcryManage-
mentCouncils,inCanada bythe CanadianAtlanticFisheriesScientificAdvisory
Committee (CAFSAC), andin the internationalwmrnunity by the Northwest
AtlanticFisheries Organization(NAFO).202 GULF OF MAINE [94-961

Canada, Denmark, the Federal Republic of Germany, the German
Democratic Republic, Great Britain, Japan, Norway, Poland, Portugal,
Spain, and the Soviet Union have prepared and reviewed basic genetic

studies, tagging studies on fish movements, biological studies of such
factors as growth rates and patterns of fish distribution (particularly at
spawning time), and studies of the response of subpopulations to fishing.

Based upon the accumulated evidence, these scientists reached a consen-
sus on the existence of many separate stocks of commercially important
species within the Gulf of Maine area. Table B lists discrete stocks

identified in the Gulf of Maine area and the evidence supporting that
identification.

i. MajorStocks Are Separated by the Northeast Channel

a. Atlantic Cod

76. Research information accumulated since the 1930s confirms that
there are separate stocks of cod on Georges Bank, in the Gulf of Maine

Basin, and on the Scotian Shelf (including one on Browns Bank). This
conclusion is based upon many analyses. Several studies of cod meristics '
have established measurable differences among the cod stocks in each of
these three areas'. Tagging studies 'and parasite infestation research '

also confirm the separateness of these stocks.

'The term "meristics" refers to data that is segmentalin character, such as the
numherof vertehraeor fin rays.
2W. R Martin, "Identificationof Major Groundfish Stocksin Subarea4 of the
Northwest AtlanticConventionArea", ICNAFAnnualF'roceeding1 s,953,Vol. 3,

pp. 57-61;W.Templeman,"VertebralNumbersin AtlanticCod, Gadm morhun,of
the Newfoundlandand AdjacentAreas,1947-71a ,nd 'TheirUsefor Delineating Cod
Stocks",in Journalof Northwest AtlanticuheryScience,Vol. 2, 1981,pp. 21-46;
W. Templeman,"Divisionsof Cod Stocksinthe NorthwestAtlantic",ICNAFRed-
book, Part111,1962,pp.79-123.ïhere aremeasurabledifferencesamongcodstocks

in other areasof the world,seeJ. Schmidt, "Racial InvestigatX.. ïhe Atlantic
Cod (GaduscallariasL.)and LocalRacesof the Same",Comptes-Rendusdes Tra-
vaux duLaboratoireCarlsberg,Vol.18,No.6, 1930p,p. 1-33.
'W. C. Schroeder. "Migrations andOther Phases in the Life Historyof the Cod
Off SouthernNew England",in UnitedStates Bureau of Fisheries,BulletinDac.

1081,No. 46, 1930, pp. 1-136;J. P. Wise. "Cod Groups in the New England
Area", FisheryBulletin.Vol.63, No. 1, 1963,pp. 189-203.
'K. Sherman and J. P. Wise, "Incidence of the Cod Parasite Lernaeocera
BranchialisL. in the New EnglandArea, and its PossibleUse as an Indicator of

CodPopulations",inLimnologyandOceanographyV , ol.6., No. 1,1961,pp.61-67. Table B. SeparateStocksof Commereially ImportanS t peciesandtheEndenceSupporting neir Identification vi
Y
z
Moiph+ P.de Gd ::iw EEnY Bloehlal DL.r.lhiHo. Ahdam -
s*ds Sloel. Mirktlo armo Tau@ ack ml*. ilme rarl Mnbdty Rsniltarmirrvueb -

Aflanticwd Gcorgw Bank X X X X X X X X
OuIrownc
Basin' X X X X X X 4
Smtian Shclr' X X X X XX X X X z

Atlantic hevGcorgea~ank X X X X X X X 1
Gulr or
Bari,,S X X X X X X a
Smtian Shcif9 X 'X X X X X X :: a
Haddoçk Omrgn Bank X X X X X X X X X
Gulf of Maine
Bain X X X X X 3
BrownsBank X X X X X X X X X ?
Smtinn Shelf X X X X X X X X I
Siivcrha*c S. ~cw~ng~and. E
Mid.Aflanfic X X X X
Omrgn Bank X O' X X X X X
Gvlfaf Maine !
Basin O X X X %
Smtian Shclf X X X X
Redhakc S. NewEngland- 2
Mid-Atlantic X X X m
Gmrgw Bmk X X X C
OuIfof Maioc
Bain (S.W.) X X X ii
Smtian Shcll X X X u
RcdFüh OuIf Mai-
Barin O O O X X X X
Smfian Shelf O O O X X X X
Ycllov~ail Mid-Atlantic X X X X X X X
noundci S.New England X X X X X X X X XX
Gcorgc. Bank X X X X X X x x X x X
ouIro~~i~~
Bain (S.W.) X X X X X X X X X
Swtian Shcif, X X X X X X X X X X N
Z: Table B (antinu€d)

P EUid
Mowb P.R~~L Cd yiwnlw Inml Bl<rhl~.l DMkiUm Abundam
SFfS Sloril Me* mdrh T- lort Mla <Lot k Mamrlt) R-l - Citam Irndi
Scallopi Mid-Atlantic X X X X
oenmn Bank

Barin
GcmanFuBank
-~~m~ ~ ~k
Nonhumbcrland
Strait X X X
0
Labrfcr GeorgesBank(and X
BrownrBank X X i

Mackcml Southcm O X X O X
NorUicrn O X X O X ; ;

8"X" indicaihatcvidcnccfrothiscatcgorysupportsthe idcntifiFationstock.sacte 3
A blankindisathatihcrino informationavailahlolrom ihir catcgory.
"O"indicatcsthat informationin,his~ u g ~ t~hcm ir nscpanitibclweestocks.orthat tir mm. diragrrema;torvch separafion. 1991 ANNEXESTOCOUNTER-MEMORIAL OFTHE UNITEDSTATES 205

77. Analyses indicate that each of the separate and identifiable cod
stocks on Georges Bank, in the Gulf of Maine Basin, and on the Scotian
Shelf has adifferent growth pattern. Growth curves for different stocks of

cod are shown in Figure 29 '.Cod from these areas have different peak
spawning times, with the peak on the Scotian Shelf, e.g., occurring one
month later than that on Georges Bank'. Studies of egg and iarval
distributions of cod show little, if any, mixing between the stocks of

Georges Bank and those of the Scotian Shelf. Figure 30' shows the
principal spawning grounds for cod. Cod larvae distributions for three
@ different years are shown in Figure 314.The areas with which separate

@ stocks of cod have been identified are depicted in Figu32'.

'Figure29.Growthcurvesforcod fonn N.E.F.C.data files;growthcurvesforhad-
dock fromJ.P.Wise,"GrowthRateof BrownsBankHaddock",United StatesFish
and WildlifeServicResearchReport.No.50,1957,pp. 1-13;growthcurvesforyel-

lowtailflounder fromF. E. Luxand F. E.Nichy,"Growth ofYellowtailFlounder,
handa jenuginea (Storer),on Three New England FishingGrounds",ICNAF
ResearcBulletin.o.6,1969, pp.5-25;growthcurvesforscallopsfrG.S.lamie-
son,G. Kerr,and M.1.Lundy,"A.sessmentof ScallopStocksonBrownsand Ger-
manBanks- 1979".CanadianTechnical Reportof Fisheriesand AquaticSciences,

No. 1014,1981,pp. iv-17.
'J. B. Colton. W. G. Smith, A. W. KendallP. L. Bcrrien, and M. P. Fahay,
"Principal SpawningAreas and Times of Marine Fishes, Cape Sable to Cape
Hatteras".FisheryBullelinVol.76,No. 4, 1979.PP 911-915;deposited withthe

Court by Canada pursuant to Article 5q2) of the Rulesof Court.
'Figure 30.Spawning groundsforccd are basedupondata on the distributionof
larvae fromthe Marine MonitoringAssessmentand Prediction (M.A.R.M.A.P.)
surveys, for977-1980;spawning grounds for herringare bascd upon data from

the Northeast FishcriesCentcr; spawning groundsfor haddockare based upon
distribution of larvac from M.A.R.M.A.P.surveys, for 1977-1980;spawning
groundsfor yellowtailflounderare bascdupondata on the distributionof eggs for
1977.and larvac for 1977-1980,from M.A.R.M.A.P.surveys.

@ 'Figure 31. Typical distributioncod larvae bascd upon data from N.E.F.C.
M.A.R.M.A.P. survcys.
@ 'Figure 32. Compilationbascd upon data from many sources includingG. M.
Hare, Atlas af the Major Atlantic Coast Fish and Invertebrate Resources

Adjacent Io the Canada-UnitedStores BoundaryAreas.Canadian Dept. of the
Environment,Fishcriesand Marine Service. TechnicalRpt. No. 681. 1977.p. 1;
citcd by Canada al para. 106,n. 27, of its Memorial, and depositcd with the
Court; D.J.Scarratt, ed.CanadianAlhnric Whore Fishery Atlas,Canadian
SpecialPublicationof Fisheriesand Aquatic Sciences47 (Rev.),pp. 1, 48-49. 206 GULF OFMAINE [~00-~08]

78. Under ICNAF, the division hetween separate cod stocks at the
Northeast Channel was recognized, andthe stocks were managed acwrd-
ingly. Since extending their respective fisheries jurisdictions to 200
nautical miles, the United States andCanada have continued to rewgnize
that division'.

h. Atlantic Herring
79. Atlantic herring is present in the waters from Cape Hatteras to
Greenland. It is generally rewgnized that herring from Georges Bank, the
Gulf of Maine Basin, and the Swtian Shelf are divided into a numher of
separate stocks. Studies of herring meristics show that there are signifi-

cant differences among the herring stocks of each of the three regimes '.
Tagging studies have substantiated the discrete nature of these stocks at
time of spawning '.Similarly, parasite research has confirmed differences
in the rate of infestation for herring stocks from Georges Bank and for
those from the Scotian Shelf '.

80. Biochemical studies indicate divisions among the herring of
Georges Bank, of the western part of the Gulf of Maine Basin, and of the
Scotian Shelf '.Numerous growth studies acknowledge differences he-

'Sec Appcndix A for ICNAF actions and for Canadian Atlantic Fisheries
ScientificAdvisoryCommittee(CAFSAC)actionstreatin godstocksinSuhareas
4and 5 separately.
'V. C. Anthonyand H. C.Boyar,"Comparisonof MeristicCharacten of Adult
Atlantic Herring fromthe Gulf of Maine and Adjacent Waters", ICNAF
Research Bulletin,No. 5, 1968,pp.91-98.
'C. J. Sindermann,"Statusof NorthwestAtlanticHetring Stocksof Concernto
the United States",N.E.F.C. TechnicalSeries Rep.No. 23, 1979,pp. 1-449;W.
T.Stob, "Movementsof Herring Taggedinthe Bayof Fundy",Update ICNAF
Research Document, 76/VI/48, Ser.No. 3834, 1976,pp. 1-16;F.P.Almeidaand
T. S. Burns,"PreliminaryResultsof the International Herring TaggiProgram
Conductedon the Northeast Coastof the United States in 1977", National
Marine FisheriesServiceN.M.F.S.),N.E.F.C.,Labratory Reference No. 78-07,
1978,pp. 1-33.
'Sindermann 1979 op. cil.,pp. 1-33; H. C. Boyar and F. E. Perkins, "The
Occurrenceof a LarvalNematode (Anisakis sp.)in Adult HerringfromICNAF
Suhareas 4 and 5, 1962-1969". ICNAF Research Document. 71/99, Ser. No.
2576,pp. 1-2;B. Luhieniccki,"Note on the Occurrenceof Larval Anisakis in
Adult Herring and Mackerel from Long Islandto ChesapeakeBay", in ICNAF
Research BulletinNo. 10,1973,pp.79-81.
'G. J. Ridgway,R. D.LewisandS. W.Sherburne,"Serologicaland Biochemical
Studiesof Herring Populationsin the Gulf ofMaine", in Rapports et Procès
Verbaux.International Council for the Explorationf theSeas (I.C.E.S.),Vol.
161,1971, pp.21-25. Il'J91 ANNEXES TO COUNTER-MEMORIALOF THE UN~TEDSTATES 207
tween the herring of Georges Bank and those of the Scotian Shelf 'The

location of major spawning grounds for herring long have been recognized
along the southwesternScotian Shelf, in the western portion of the Gulf of
Maine Basin, and on the eastern portion of Georges Bank and on
Nantucket Shoals '.Figure 30 shows the principal spawning grounds for
herring. Egg and Iarvae distributions support this viewpoint '. Herring

@ larvae distributions for three different years are depicted in Figure '.
81. Atlantic herring in the Gulf of Maine Basin and on Georges Bank

spawn in the fall. Farther to the northeast, on the Scotian Shelf, spawning
takes place in bath the spring and fall. After hatching, the Atlantic herring
larvae on Georges Bank rise into the water column and are carried about
by the currents. In some areas, especially in estuaries, Atlantic herring
larvae move up and down in the water column to reduce the possibility of
being carried away. The larvae are retained within the Georges Bank

regime by the Georges Bank gyre '. Figure 34' shows distributions of
herring larvae for a period of six weeks in 1973 and eight weeks in 1974.
As they grow and become adults, the members of the Georges Bank stock
maintain a consistent pattern of seasonal migration '.After spawning, the
herring pass round Georges Bank, down the southern New England shelf
to the Hudson Canyon, and then return to Georges Bank.

82. Dramatic, and indeed tragic proof of the discreteness of the
Georges Bank stock of herring was its collapse in1976, following years of

excessive fishing pressure by foreign fleets'.The Georges Bank herring

'V. C. Anthony, "Population Dynamicsof the Atlantic Herring in the Gulf of
Maine", Ph.D. Thesis, University of Washington. 1972,pp. 66-80; V. A.
Slepokurov, "The 'Determination of Parametersof the Growth Equation of
Bertalanfyand PreliminaryAssessmentof the Natural Mortality Ratesof Nova
Scotian Hemng", ICNAF Research Document. 75/56, 1975, pp. 1-6: V. C.
Anthonyand Ci.Waring,"The Assessrnentand Managementof the GeorgesBank
Herring Fishery", Rapports et ProcèsVerbaux, I.C.E.S.,Vol.77, 1980.pp.72-
111.
'H. C. Boyar, R. R. Marak, F. E. Perkins, and R. A. Clifford. "Seasonal
Distribution and Growth of Larval HerringClupea harengusL.)in the Georges
Bank-Gulf of Maine Area from 1962to 1970",Journal du. Conseil(I.C.E.S.),

Vol.35,No. 1,1973,pp.36-51.
@ 'Figure 33. Typical distributionsof herring larvae based upon data from the
N.E.F.C./M.A.R.M.A.P. surveys,
'This retention occurs although the GeorgesBank gyre is not as strong in the
coolerrnonthsof the year.
'Figure 34. Typical progression of herring lawae distributions based upon
N.E.F.C./M.A.R.M.A.P. surveys.
V.N. Zinkevich,"Observations onthe Distributionof Herring,Clupea harengus
L., on GeorgesBank and in Adjacent Waters in 1962-65",in ICNAF Research

Bulletin.No.4,1967,pp. 101-115.
'See Canadian Memorial, para. 191. stock never has recovered from this abuse, while the neighboring herring
stocks are prospering. This history confirms the lack ofexchange between
the Georges Bank herring stocks and the other herring stocks in the Gulf

@ of Maine area. In this regard, note the difference, in Figure 33, between
distributions of herringlawae in 1973 and 1974, on the one hand, and in
@ 1980,on the other. Figure 35 'depicts areas with which separate stocks of
herring have been identified.

83. Under ICNAF, the division between herring stocks at the North-
east Channel was recognized, and the stocks were managed accordingly.
Since extending their respective fisheries jurisdictions to 200 nautical
miles, the United States and Canada have continued to recognize that
division l.

c. Haddock

84. Haddock are found in commercially important concentrations from
the waters off Cape Cod to the Grand Banks. An extensive research data
base, accumulated since 1930, confirms that separate and identifiable
stocks of tbis species are found on Georges Bank, in the Gulf of Maine Ba-
sin, and on the Scotian Shelf. Investigators have also reached this
conclusion, based upon meristic studies '. A wealth of tagging studies

further indicate the separate nature of these stocks'. Additionally,
research on a swim bladder parasite that attacks haddock shows a higher
rate of infestation for Scotian Shelf haddock than for Georges Bank
haddock'. Measurable differences in growth rates indicate that Scotian

, @ ' Figure 35. Compilatiobasedupondata frommanysourcesincludingHare, op.
cir., 6;andScarratt. op.cil.pp.80-81.
'See Ap~ndix B for lCNAF actions and for Canadian (CAFSAC) actions
treatingherring stocksin Subareas 4 and 5separatcly.

1Martin,op.Or.:J. R Clark andV. D. Madykov,"Definitionof HaddockStocks
of the NorthwesternAtlantic",in Fuhery Bullefin169,Vol.60, 1960,pp. 283-
296.
'A. W. H. Needler, "The Migrationsof Haddock andthe Interrelationshipsof
Haddock Populationsin North American Waters". Conrriburionsto Canadian
Biology and Fisheries.New Serics, Vol. 6, No. 8, 1930,pp. 243-313;W. C.
Schroeder."Results of Haddock Taggingin the Gulf of Maine from 1923 to
1932". in Journal of Marine Research, Vol. 5,No. 1. 1942, pp. 1-19; F.D.
McCracken,"Studiesof Haddockinthe PassamaquoddyBayRegion",in Journal
of the FisheriesResearchBoard ofCanada. Vol. 17, 1960,pp. 175-179;M. D.
Grosslein,"Haddock Stocksinthe ICNAF ConventionAra". ICNAF Redbook,
Part111.1962,pp.124-131;R.G. Hallidayand F. D.McCracken."Movementsof
Haddock Taggedoff Digby. NovaSwtia", ICNAF ResearchBullerin. No. 7,

1970,pp.8-14.
'P. H. Odenseand V. H. log^ "Prevalenceand Morphologyof Eimeria gadi
(Fiebiger,1913) inthe Haddock", iJournalof Piorozoology,ol. 23,No. 4, 1976,
pp.564-571. Il171 ANNEXESTOCOUNTER-MEMORIALOFTHE UNITEDSTATES 209

Shelf haddock grow more slowly than those from either Georges Bank or
the Gulf of Maine Basin 'Growth curves for different haddock stocks are
shown in Figure 29, supra. Haddock from Georges Bank mature more
quickly and spawn at earlier ages than do haddock from the Swtian
Shelf '.As with cod, peak spawning lime on Browns Bank occurs about
one month later than on Georges Bank'. Figure 30, supro. shows the
principal spawning grounds for haddock. Research surveys show little
exchange of haddock eggs and larvae between Georges Bank and Browns
Bank. Figure 36' depicts the distribution of haddock larvae for three
@ different years. Figure 37*indicates the areas with which separate stocks
of haddock have been identified.

85. The conservation and management of the haddock stocks in the
Gulf of Maine area was a primary reason for the creation of ICNAF6.
Under ICNAF, the division between haddock stocks at the Northeast
Channel was rewgnized, and the stocks were managed accordingly. Since
extending their respective fisheries jurisdictioIO200 nautical the

United States and Canada have continued to recognizc that division '.

d. Silver Hake
86. Silver hake (also known as whiting) are distributed in commercial
concentrations from the waters off the Carolinas to the Gulf of St.

Lawrence '. Since the early 1970s. fisheries-management organizations

'H.W. Graham,"MeshRegulationto lncreasetheYieldoftheGeorgesBankHad-
dockFishery",ICNAF,SecondAnnualReport,1951-1952P ,art3,1952,pp. 23-33;
H. Thompson,"TheOccurrenceand BiologicalFeaturesof Haddock inthe New-
foundland Area", in Research BulletiNo. 6,Newfoundland Depto . f Natural
Resources,1939,pp.7 etseq.
'FishermenandfishdealersareabletodistinguishreadilybetweenGeorgesBank
haddock and Browns Bankhaddock. Browns Bankhaddock are sleeker in
appearance.
'M. D. Grossleinand R. C. Hennemuth."SpawningStock andOther Factors
Related to Recruitmentof Haddockon GeorgesBank". in Rapports etProcès
Verbaux,I.C.E.S.,Vol.164,1973,pp.7-88;Colton,etaL,op.eit.

N.E.F.C./M.A.R.M.A.P.surveys.onsof haddocklarvae based upon data from the

@ ' Figure37.Compilationbasedupondata frommanysources,includingGrosslein,
op.cit.Hare, op.cil.p. 2;andScarratt, op.cilpp.50-51.
"ee Annex 3, Vol. II,The Activitiesof the Parties under the International
Convention forthe NorthwestAtlantic Fisheries(ICNAF),Chapter1.
'See AppendixC for ICNAF actions and for Canadian (CAFSAC)actions
treating haddock stockinSubareas 4 and 5 separately.
'A. H.Lcimand W. B.Scott,Fishesaf the Atlantic Coastafcanada. Fisheries
Research BoardofCanada BulletinNo. 155, 1966,pp. 205-208. 210 GULFOF MAINE 1118-1241

have recognized four separate stocks of silver hake associated respectively
with the Scotian Shelf, Georges Bank, the Gulf of Maine Basin, and the
southern New England-to-mid-Atlantic shelf. Biochemical analyses have
served ta distinguish these separate stocks '.Several scientists have

examined growth patterns for silver hake from Georges Bank, the Gulf of
Maine Basin, and the Scotian Shelf, and have concluded that there are
significant differences among fish from these three areas'. Spawning
takes place from late spring to autumn in this species, but progresses from

south to north as water temperatures warm. Peak spawning usually occurs
inJuly and August in areas to the south, and in August and September in
the more northern areas '.Spawning is concentrated in certain areas along
the outer edge of the continental shelf from southern and southwestern
Georges Bank to eastern Long Island, and on Sable Island Bank on the

Scotian Shelf. Substantial spawning also takes place along the coastal
region of the Gulf of Maine Basin from Cape Cod to Grand Manan
@ Island. Figure 38 'indicates the areas with which separate stocks of silver
hake have been identified.

87. Under ICNAF, the division hetween silve; hake stocks at the
Northeast Channel was recognized, and the stocks were managed accord-
ingly. Since extending their respective fisheries jurisdictions to 200
nautical miles, the United Statesand Canada have continued ta recognize
that division'.

'K. G. Konstantinovand A. S. Noskov,USSR ResearchReport, 1968,ICNAF
Research Document 69/17, 1969,pp. 1-29;F. P. Almeida, "Determinatioof the
von BertalanffyGrowth Equationforthe SouthemNewEngland-Middle Atlantic,
Georges Bankand Gulf of Maine Stocksof Siver Hake", N.E.F.C.WoodsHole
LabontoryReferenceNo. 78-131 , 978,ppI el seq;RSchenck,"Population Identi-
ficationof Silver Hake(MerlucciwbilineariUsinglsolectricFocusing",N.E.F.C.
WoodsHoleiaboratoryReferenceNo.81-44,1981,pp. 1-32.
'Almeida. op. cilJ. J.Hunt, "tige,Growth and Distributionof SilverHake,
Merlucciwbilinearison the ScotianSheli", ICNAF SelecfedPapen, No. 3, 1978,
pp.33-44.

'Colton, ef al., op. cif.
@ 'Figure 38.Compilationbasedupondata frommanysources, includingHare, op.
cil.p. 3;Scarratt.op. cifpp. 54-55;M. D. Grosslein andT. R. Azarovitz,Fish
Disrribution,1982,pp.72-74.

'See Appendix D for ICNAF actions and for Canadian (CAFSAC)actions
treatingsilverhake stocksinSubareas4 and 5 separately. w51 ANNEXESTO COUNIER-MUIOW OFTHE UNITEDSTATES 211

e. Red and White Hake

88. Red and white hake are frequently treated as though they wîre one
species '.The distribution of red hake in the Northwest Atlantic ranges from
the waters off southern Labrador to those off North Carolina, but commer-
cial concentrations are found, for the most part, on Georges Bank and on the

southern New England shelf '.White hake is similar to red hake in behavior
and distribution, although white hake clearly prefers deeper water. Exami-
nation of meristic charactersand otolith' growth patterns indicates that the
Scotian Shelf, the southwestern portion of the Gulf of Maine Basin, Georges
Bank, and the region from the southern New England to the mid-Atlantic
shelf each has a separate stock of red hake'. Bottom trawl survey data '

generally confirms the separateness of these stocks. It is reasonable to
assume that white hake has a similar stock structure to red hake. There is
also evidence that the growth rates of red and white hake from each of these
@ areas are different l.Figure 39' indicates the areas with which separate
stocks of red and white hake have been identified.

'In their discussionof rcd hake, Leimand Scott noted that:
"Many authoritiesrecognize2 speciesof hake, U. tenuis (white hake)
and U.chuss (redor squirrel hake).They are said to differ maiinythe

number of rows of scales betweenthe gill openingand the base of the
caudal fin, in the lcngthofhe filamentous dorsal ray,in thc lcngth of
the pelvicfins, and in the positionof the posteriorangle of mouth.
Canadian specimcnsshowsomuchvariation andovcrlappingin the first
three of thesc charactcrs that Vladykov and McKensie and Battle
wnsidered U. tenuis and U. chuss to be one specics. Becauseof the
resultingconfusion,the twoscies are here treated togethn...".
Op.cit., p. 217.[Citationsomitted.]
'Leim and Scott, op. cit.. pp. 217-219.

'"Otoliths" arc small boncsthat are foundin the skullsof fish,and arc often re-
ferred to as ear boncs. Bccause of thcir structure, they are useful for many
biological studics. including rcscarch concernedwith determining the stock
structure of a species,ore rate of growth ofa fish.
'V. A. Richter, "Rcsults of Rcsearch on the Distribution, Age, Growth and
General Mortality of Stocks of Red Hake, Urophycis chuss Walbaum, on
GeorgesBankand inAdjacent Waters. 1965-1966", ICNAF Research Document
68/38, 1968,pp. 1-16.Thereisa dcgree ofmixing betweenindividualmembersof
the stocks associatedwith Georges Bank and the southern Ncw England-mid-
Atlantic region.

'E.D. Anderson, "Commcntson the Dclineationof Red and SilverHake Stocks
in ICNAF Subarca 5 and Statistical Area 6", ICNAF Research Document,
741100,1974,pp. 1-8.
'Richter, n. 4, supra; V. A. Richter, "Dynamics of somc BiologicalIndices,
Abundance and Fishing a( Red Hake ((Uophycis chuss W.) in the Northwest
Atlantic,1965-1968".ICNAF Research Document70139, 1970.pp. 1-14.
@ 'Figure39.Compilationbascdupondata frommanysources,includingHare, op.
cit., pp. 3-4;and Scarratt, op. cit., pp. 58-59. 212 GULF OFMAINE , [126-130)

89. Under ICNAF, the division between red hake stocks at the

Northeast Channel was recognized, and the stocks were managed
acwrdingly. Since extendingtheir respective fisheries jurisdictions to 200
nautical miles, the United States and Canada have continued to recog-
nize that division '. Under ICNAF, white hake in Subarea 5 and
Statistical Area6 were treated as "other finfish". This had the effect of
treating white hake in Subarea 5 and Statistical Area 6as separate from
those in Subarea 4 '.

f.Redfish
90. Redfish3 in the Gulf of Maine Basin and on the Swtian Shelf

consistently have been treated as separate stocks. This species exhibits
little, if any, migratory behavior'. The evidence of parasite studies
indicates that Gulf of Maine Basin redfish are distinct from those of the
Scotian Shelf '. Growth information from several studies shows that
@ Scotian Shelf redfish have slower growth rates Figure 40 'indicates the
areas with which separate stocks of redfish have been identified.

91. Under ICNAF, the stock division between the redfish in Subarea 5
and the redfish in Subarea 4 was recognized, and the stocks were

'See Appendix E for ICNAF actions and for Canadian (CAFSAC) actions
treatingred hake stocksin Subarea4 and 5 separately.
' Canada alsorecognizedthe existenceof separatewhite hake stocksin taking the

followingaction:TAC for 4T white hake for 1983(CAFSACAdv. Doc.82/13).
' Some authoritiesare of the opinionthat morethan onespeciesof redfish existin
the Gulf of Maine area.
'G. F. Kellyand A.B.Barker,"Obseivationson the Behaviour,Growth,andMigra-
tion of Redfishatstport,Maine",Rapportset Procès VerbauxI,.C.E.S., Vl.50,
1961,pp.263-275.
'W. Templemanand H. J. Squires,"Incidenceand Distributionof Infestationhy
Sphyrionlumpi(Kroyer) on the Redfish, Sebastes morinur(L),of the Western

North Atlantic",inournalof thFmheri ResearchBwrdofcanada, Vol. 17N, o. 1,
1960,pp. 9-31;C. J. Sindermann,"ParasitologicalTagsfor Redfishof the Western
North Atlantic",Rapports etRocèsVerbaux,I.C.E.S.,Vol.150,1961,pp. 111-117.
R. K. Mayo, "Exploitationof Redfish, Sebarresmariny (L.), in the Gulf of
Maine-GeorgesBank Region,withParticular Referenceto the 1971Year-Class",
in Journal dNorthwest Atlantic Fisheries Science, Vol. 1, 1980,pp. 21-37;A.
Perlmutter and G.M. Clarke, "Age and Growthof Immature Rosefish(Sebastes
marinus)in the Gulf of Maine and off Western Nova Scotia", Fishery Bulletin
45, 1949,pp. 207-228;R.K. Mayo andD. S. Miller,"A PreliminaryAssessment
of the Redfish, Sebastes marinus (L.), in ICNAF Divisions4VWX, ICNAF
Selected Popers. No. 1. 19...op. 31-39.
@ ' Figure 40. Compilation basedupondata frommanysources,includingHare, op.
rit., p. 2, and Scarratt, op.cil., PP 58-59.[131l ANNEXESTO COUNTER-MEMOW OFTHE UNITEDSTATES 213

managed accordingly. Since extending their respective fisheries jurisdic-
tions to 200nautical miles, the United States and Canada have continued

to recognize that division'.

g. Yellowtail Flounder

92. Numerous studies have examined the various stocks of yellowtail
flounder that are found in the waters from the mid-Atlantic shelf to the

Scotian Shelf. These studies indicate that there are separate stocks
associated with the Scotian Shelf, with Georges Bank, with the south-
western Gulf of MaineBasin, with the southern New England shelf, and
with the mid-Atlantic shelf, respectively. Meristic and morphometric
research confirms different stocks for each of these areas', as do tagging

studies'.The latter reflect some movement of yellowtail flounder between
Georges Bank and areas tothe southwest, but none between the separate
populations of Georges Bank and of the Scotian Shelf. Parasite studies
have not distinguished southern New England yellowtail from those on

Georges Bank, but have confirmed that there are yellowtail flounder
stocks for the southwestern Gulf of Maine Basin that are separate from
those on Georges Bank and the southern New England shelf'. Several
investigations of the growth rates of yellowtail flounder al1 fouiid major

differences in these rates for fish from the Scotian Shelf, from Georges
Bank, and from areas to the southwest '. Growth curves for different
stocks of yellowtail flounder are shown in Figure 29, supra. The evidence
suggests that southern stocks mature earlier in comparison to their

northern counterparts6. The spawning areas for these stocks are

'See Appendix F for ICNAF actions and for Canadian (CAFSAC)actions
treatingredfish stocksin Suhareas4 and 5 separately.
'D. M. Scott, "A Comparative Studyof the YellowtailFlounderfrom Three
AtlanticFishingAreas".in Journal <(/theFisheries Research Board of Ca~da.

Vol. II,No. 3,1954.pp. 171-197;F. E. Lux. "Identificationof New England
YellowtailFlounderGroups",in Fishery Bulleiin,Vol.63,No. 1,1963, PP. 1-10.
'W. F. Roycc, R. J.Buller, and E. D. Premetz, "Decline of the Yellowtail
nounder (Limandaferruginea) off NewEngland",in Fishery Bulletin,Vol.59,
No. 146,1959,pp. 169-267;Lux, op.cil.

'Lux, op. cil.
'Scott, opcil.T. K.Pitt. "AgeCompositionand Growth ofYellowtailFlounder
(Limanda Ferruginea) from the Grand Bank", in Journal <(/ the Fisheries
Research BoardofCanada, Vol.31,1974, pp. 1800-1802.

6Scott, op. cit.:Royce, et al.. op. cit.: W. H. Howell and D. H. Kesler,
"FecundityoftheSouthernNew EnglandStockofYcllowtailFlounder, Limanda
Ferruginea",in Fishery BulletinVol.75,No. 4, 1977,pp.877-880.214 GULF OF MAINE [132-1361

separate. Figure 30, supra, shows the principal spawning grounds for
yellowtail flounder. Spawning in this species usually begins in spring,
peaking in April and May on Georges Bank, and in June on Browns
Bank '.Eggs and lawae of this spccies spawned on the Scotian Shelf are

separated at the Northeast Channel from those on Georges Bank. Figure
41 l depicts the yellowtail flounder larval distribution for each of three
years. Figure 42' indicates the areas with which separate stocks of
yellowtail flounder have been identified.

93. Under ICNAF, the stock division between yellowtail stocks at the
Northeast Channel was recognized, and the stocks were managed
accordingly. Since extending their respective fisheries jurisdictions to 200
nautical miles, the United States and Canada have continued to recog-
nize that division'.

h. Sea Scallops

94. The Atlantic sea scallop Placopecten magellanicus is found in the
Northwest Atlantic Ocean from the Strait of Belle Isle in Canada to
Cape Hatteras, North Carolina '.Separate sea scallop stocks are found in
the Northumberland Strait, on the Scotian Shelf (cg. on Browns Bank,
on German Bank, and in the area of Sable Island), in the Bay of Fundy,
in the Gulf of Maine Basin, on Georges Bank (cg. on the northern edge
and northeast peak of Georges Bank, on the southeast part of Georges

Bank, and in the Great South Channel area of Georges Bank), and in the
Middle Atlantic Bight. Adult scallops are only capable of moving short
distances within the beds 6.There do not appear to be correlations in
recruitment among sea scallop beds'. Growth rates differ among the

'Colton, et al., op. ciP. Berrien,"YellowtailFlounder, Limanda Femginea,
Estimates ofEggAbundance and PopulationSizeDuring Spring 1977in Gulf
of Maine, GeorgesBank, Southern New England and MiddleAtlantic Bight
Waters", I.C.E.S. document presenteto DemersalFishCommittee,1981/G:65,
1981,pp. 1-19.

Figure 41. Typicaldistributionsof yellowtailflounderlarvaebased upondata
from N.E.F.C./M.A.R.M.A.P.surveys.
'Figure42.Compilationbasedupondata frommanysources,includingHare, op.
ci:.p. 5;andScarratt, op.ci:.pp.72-73.
'See Apgendix G for ICNAF actions and for Canadian (CAFSAC) actions
treatingyellowtailstocksinSubareas4 and 5separately.
'J.A. Posgay, "TheRangeofthe SeaScallop".in TheNauiilus. Vol.71,No. 2,
1957,pp. 56-57.

'J.A.Posgay,"MovementofTaggedSeaScallopsonGeorgesBank".in Marine
FisheriesReview, Vol.43,No. 4,1981,pp. 19-25.
'This meansthat, eachyear, thenumberofyoungperunitarea that settlevaries
fromscallopbedto scallop bed. 1133 ANNEXESTO COUNIER-MEMORUL OFTHEUNITEDSTATES 215

separate areas '. Figure 29, supra, depicts growth curves for different
stocks ofsea scallops. Although the major offshore scallop beds tend to be
isolated gwgraphically, sca scallop eggs and larvae are planktonic, and
can be transported long distances during their pelagic phase1. Larvae
spawned on Georges Bank are frequently retained over the Bank by its
gyre '.

95. Because, however, some surface water breaks free of the Gwrges
Bank gyre and flows southwestward to Nantucket Shoals, ûcallop eggs
and larvae can be camed off Georges Bank toward the southcrn New
England continental shclf '.The sea scallops in the Middle Atlantic Bight
form a dependent population that relies upon larval export from Gwrges
Bank'. Water-current patterns do not support the movemcnt of scallop
eggs and larvae between Browns Bank, on the Scotian Shelf, and Georges
@ Bank. Figure 43' indicates the areas with which separate stocks of
scallops have been identified.

96. Under ICNAF, the division between scallop stocks at the North-
east Channel was rewgnized, and scallops were managed accordingly.
Since extending their respective fisheries jurisdictions to 200 nautical
miles, the United States and Canada have continued to recognize that
division6.

'F. M. Serchuk,"Growth,Shcll Hcighl - Meat Wcight andYicldPcr Recruit
Relationshipsof Northwest Atlantic Sea ScallopPopulations",N.E.F.C. Staff
Study.1982.
'F. M.Serchuk.P. W. Wood.J.A. Posgay.and B.E. Brown."Assessmentand
Status of Sea scallo(~lacop~cten~ag;ll~nicus~ Populationsoff the Northeast
CoastoftheUnitedStates"...roceedin-softhe NationalShellfisheriesAssociation.
Vol.69, 1979p,p. 161-191.
'Serchuk, etal., ibid.A.Posgay,"PopulationAssessmentof the GeorgesBank
SeaScallopStocks",Rapportset Rods Verbauxdes RéunionsI,.C.E.S., Vo1 l.75,
1979,pp. 109-113:A. S. Mcrrilland R L Edwards."Observations onMollush
from a NavigationBuoywith SpecialEmphasison the Sea Scallop Plampec~en
Magellani&, in ïlze NautilVol. 90, o.1,1976,pp.54-61.
F. M.Serchukand R.S. Rak. "BiologicalCharacteristicsof OffshoreGulf of
Maine Sea Scallop Populations: Size Distributions,Shell Height-MeatWeight
RelationshipsandRelativeFecundityPatterns",N.E.F.C.WoodsHoleLaboratory
ReferenŒDocumentNo.83-07,1983.
@ 'Figurc43.Compilationbascdupondata frommanysources,includingHare, op.
cit.p.8; and Scarrattop. cilpp. 36-37.
'Sec Appcndix H forICNAF actionsandCanadian(CAFSAC)actionstreating
scalloppopulations iSubareas 4 and 5separatcly. 216 GULF OF MAINE [138-1421

i. Lobster

97. Research wncerning the migratory behavior, populationstructure,
and ewlogy of offshore lobster supports the conclusion that the lobster
stocks foundon Georges Bank (andin the Georges Bank canyons)and on
Browns Bank, on the Swtian Shelf, are separate and identifiable '.
Migration studies wnducted from the late 1960s through the 1970s
wnfirm that there is little movement of lobster across the Northeast

Channel. None of the tagged lobster released in the vicinity of Corsair
Canyon, on the seaward edge of Georges Bank, was recovered on the
northeast side of the Channel. Furthemore, only 1.7 per cent of those
lobster releasedon BrownsBank were rewvered on the southwest side of
the Channel. The heads of the canyons on Georges Bank are believedto

represent "home territory" for the New England offshore lobster popula-
tion, from which 30 to 50 per cent migrate in a west-to-northwest
direction in the spring and early summer. These lobster migrate to warm,
shallow water to complete the reproductive cycle, then return to the
canyon headsin late summer and fall l.Extensivestudiesof the biologyof
the Georges Bank canyons,wnducted from manned submersiblesoverthe

@) pas,t10years, support this conclusion. Figure44 indicates the areas with
which separate stocks of lobster have been identified. ICNAF did not
attempt to manage lobster, because most States regarded them as
creatures of the continental shelf to be managed by the coastal State.

j. Cusk
98. The spawning and distributional evidence strongly suggests that

separate stocksof cusk exist in the westernpart of the Gulf of Maine Ba-
sin and on the Swtian Shelf, including BrownsBank and German Bank.
Bigelowand others report that cusk spawnin spring and early summer in
the Gulf of Maine area '.Others report that spawning occurs from April
through July along the western and southern margins of the Gulf of

'J. R. Uzmann,R. A. Cooper,and K. J.Pecci,"Migration andDispersionof
TamedAmcricanLobsters. Hornarusornericonus. ontheSouthernNewEncland
~oiiincntalShelf'. N.O.A:A. TechnicalReportN.M.F.S.,SSRF-705,1977, pp.

1-92;R. A. Cooper and J. R. Uzmann, "Migrations and Growthof DecpSea
Lobsten,Homamsamericanus",in Science,Vol. 171,1971,pp. 288-290; R k
Cooper and J. R Uzmann,"EcologyofJuvenileandAdult Homanci",ne Biology
andManagementoflobsrers. Vol.2,1980, pp9.7-140.
'CooperandUzmann, 1980 ibid.
@ ' Figure44.Compilation basedupondata from many sources,includingHare,op.
ci!.p. 8;Scarratt,op. cifpp. 34-35;andCooperand Uzmann,1971,op. ci!.

' Bigelowand Schroedcr,op. ci!.. pp238-243;Leim andScott, op. cif., pp191-
192. il431 ANNEXESTOCOUNTER-MEMORIALOF THEUN~D STATES 217

Maine Basin,with peak activity inApril and May '.Fish ready to spawn
have heen found from May through August on the southwestern Scotian
Shelf, with peak activity occurring toward the end of Junel. Egg and
larval distribution plots suggestthat spawningby cusk occursprogressive-
ly later from the Gulf of Maine Basin northeastward along the Scotian
@ Shelf. Figure 45 'showsthe pattern of cusk concentrations in the Gulf of
Maine area. ICNAF did not treat cusk separately, because they were not
the object of a directed fishery.

k. Longfin Squid

99. As with the fish discussed inthe preceding paragraphs, thelongfin
(Loligo)squidtends not to appear in the Northeast Channel.Nevertheless,
unlike the fish speciesdescribed above,which have stock divisionsat the
Northeast Channel, the longfin squid, as a species. tends not to progress
north of the Northeast Channel. The longfin squid is a memher of the
fourspot flounder-butterfish association, which prefers warm waters.
Consequently, it rarely moves north beyond Georges Bank, although
longfin squid occasionallyare found in the Bar Harbor region along the
@ coast of Maine. Figure 46 'showsthe distribution of longfin squid. Prior

to 1975, ICNAF treated longfin together with shortfin squid. Longfin
squid were first assessed separately in 1975. A quota for longfin in
Subarea 5 and StatisticalArea 6 was imposedfor 1976.No quota was set
for longfin in Subarea 4, because they do not usually venture beyond
Georges Bank.

ii. Some Fish Populatiom Cross AI1Possible Boundaries in !he GuUd
Maine Area

a. Mackerel
100. Mackerel are found in the Northwest Atlantic between Labrador
and North Carolina. A mid-Atlantic group livesand spawnsin the region
between Cape Hatteras and Georges Bank.There is some evidencethat
thc mackeril stock that spawnsin Ïhe Gulf of St. Lawrence wintcrsin the
mid-Atlantic reeion'. There is also cvidencc. in Canadian nroundfish
data, that mackirel, probahly from the Gulf if St. ~awrencestock. are

present during the coldermonths of the year in the offshoreSwtian Shelf
area. Tagging experiments suggest that there are northern and southern
stocksof mackerel '.May is the peak spawningtime for the southern New

'Colton,et al., op.cil.
'W. S. Oldham."Biolonv-. ~co~ ~ ~ ~ ~f Cus~~~~~.sme brosme': ICNAF
Research~ullefi~,NO.9, 1972 .p.85-98.
@ 'Figure45.Compilation bascdupondata frommanysources. includinL geimand
Scott,op.cit..pp. 191-192;ndN.E.F.C. and Canadiangroundfishsurveydata.
@ Figure46.Compilation basedupondata frommanysources, includinH gare,op.
cit..p7; andN.E.F.C.groundfishsurveydata.
'O. E. Settc, "Biologyof the AtlanticMackcrcl(Scomberscombrus)of North
America,Part 11:migrationsand habits",in FisheryBulletin.Vol.51, No.49.
1950,pp.251-358. 218 GULFOF MAINE [144-1521

England and Georges Bank stock, while July is the peak spawning time
for the Gulf of St. Lawrence stock.Figure 47 indicates the areas with
which the southern and northern stocks of mackerel have heen identi'.ed

b. Pollock

101. Pollock have similar distribution and concentration patterns to
cod and haddock, although, unlikecod and haddock, they tend to favour
water of intermediate depths, rather than that at the bottom. As codh
and haddock, pollock concentrate around the rim of the Gulf of Maine
Basin. As evidenced by cruise data and egg and larvae surveys, spawning

concentrations are found around Stellwagen Bank in the western Gulf of
Maine Basin, in the Nantucket Shoals area, and along the northeastern
edge of Georges Bank. Additional spawning concentrations are formed at
the southwestern tip of the Scotian Shelf, in the area of Sable Island
Bank, and off Cape Breton on the Scotian Shelf. The spawning concentra-
tions are in areas known in other cases to promote the development of
separate stock'.Survey cruise data indicate that pollock generally avoid

the Northeast Channel. Figure 48' shows the areas in which pollock
concentrate to spawn.

c. Argentine

102. The argentine shows a preference for deep water with relatively
high salinity. The argentine is found along the continental shelf slope in
the Gulf of Maine area, in the deeper waters of the Gulf of Maine Basin,

'Sette. ibid.;D. M. Warc, "SpawningTime andEgg Sizeof AtlanticMackerel.
Scomberscombrus.in Relation to the Plankton", in Journaofthe Fisheries
Research BoardofCanada,Vol.34. 1977,pp.2308-2315;Colton,el al.. op.cil.
'Figure 47.Compilationbascdupondata frommany sources.includingHare.op.
cit..p. 6.

'~eristik and biochemicalstudieshave not establisheddifferencesbetweenthe
northern and southemstocks of mackerelK. T. MacKayand E. T. Garside,
"Meristic Analyses ofAtlantic Mackerel,Scombersmmbius,from the North
American Coastal Populations",in Journal of the FuheriesResearchBwroj
Canada.Vol. 26, No. 9, 1969,pp. 2537-2540K. T. MacKay,"An Ewlogical
Study of Mackerel,Scomber scombrus(Linnaeus),in the Coastal Watersof
Canada". FisheriesResearchBoardof Canada TechnicalReport No. 31, 1967.
pp.ii-127.
@ 'See Figure28.discussedabove,showingareas in whichseparatestockstend to
form.
'Figure 48.Compilationbascdupondata from manysources, includingHare,op.
rit.. PP.2-3;Scarratt, op.cil., pp. 56-57; andN.E.F.C. and Canadiangroundfish
surverdata.il531 ANNEXES TO WUNTER-MEMORIAL OFTHE UNITED STATES 219

and in the deeper basins on the Scotian Shelf. Figure 49 ' shows the
distribution of argentine.

d. Shortfin Squid
103. During the winter months, the shortfin (Illex)squid is foundonly

along the edge of the continental shelf, in the water over the continental
slope. During the warmer months, it iswidely distributed thoughout the
Gulf of Maine area, and doesnot tend to concentrate in any particular re-
gion. Figure 50 ' showsthe widedistribution of sbortfin squid throughout
the Gulf of Maine area.
SECTION 2. Biogeographen Recognize a Faunal Boundary that Sepa-

rates the Georges BankRegimefrom the Scotian Shelf Regirne
104. The science of biogeography draws broad generalizations about

the distribution oforganismsin relation to temperature and other climatic
variables. On the western coast of the North Atlantic Ocean, the climatic
conditions from New Jersey to the northeastern end of Nova Scotia
correspondto those on the eastern sideof the Atlantic Ocean betweenthe
northern part of Africa and the northern part of Europe. Thus, changesin
ocean climate that occur on the eastern side of the Atlantic over an area
within some40 degrees of latitude are compressed,on the western side,
into an area within less than 10degrees of latitude. Figure 51 j.

105. Various authorities have noted the confusing terminologyapplied
to the biogeographyof the Gulf of Maine area '.Some of the confusion
stems from the large seasonalvariations inwater temperature in this area.
See Figure 9, supra, depicting bottom temperatures. These seasonal
temperature variations are due largely to the compressionof atmospheric
influencesinto a narrow latitudinal zone. In this zone, summer tempera-
tures are influenced by the passage of subtropical air masses, and winter
temperatures by the passage of cold, dry, arctic air masses. The water
temperatures and their seasonal changesare important to the distribution
and relative abundance of marine organismsin any part of the region.

'Figure49.Compilation basedupondatafrommanysources, includinH gare,op.
cil.p.5;andScarratt, op. cilpp. 46-47.
'Figure50.Compilation basedupondatafrommanysources, includinH gare,op.
cil.p. 7;andN.E.F.C.andCanadiangroundfishsurveydata.
'Figure 51. Surfacetemperaturesfor the wwk of 13 June 1982.Data from
N.O.A.A.polarorbiting satellites carryinthe Advanced VeryHighResolution
Radiometer,fromchart providedby the NationalEnvironmentaS l atelliteand
Data Information Service.
'One suchauthorityisHazel,quotedbyCanadain its Memoriala ,t para.97,n.
21.Inhis discussioonfostracodezoogeographyh,eStates:"[b]ecause theseauthon
applydifferent termsto thesameclimatesandmostagreeasto theplacement of
the major biogwgraphichoundaries,the differentusageof climaticternis is
basicallya confusingbaale of words."J. E. Hazel,AtlanticContinmralShegand
Slopeof theUnitedStates - OsfracodeZoogeographyin theSouthernNovaSmtian
Ifooinoteconrinuedonfollowingpage)220 GULTOF MAINE [154-160]

106. Faunal barriers, as they are referred to in biogeographic studies,
represent a sweeping approach to the identification of factors that
influence the distribution of organisms in various regions of the world '.
As discussed above, the living organisms in the Gulf of Maine area have

responded in various ways to the options offered them by the various
topographic features and complex oceanographic regimes in the area.

107. It is well recognized that there is a major faunal boundary that
runs at about 42 degrees North Latitude from Cape Cod, northeastward
along the northern edge of Georges Bank, and through the Northeast
Channel. This faunal boundaryhas been recognized, e.g., in studies of the

distribution of fish, starfish, and molluscs. In his book Narural Communi-
ries, Dice recognized the division that extends from Cape Cod along the
northern edge of Georges Bank through the Northeast Channel2. Al-
though he was concerned principally with terrestrial environments, Dice

recognized two provinces in the area: the first north and east of Georges
Bank, and the second tothe south.

@otnore conrinuedfrompreviouspage)

and Northern YnginianFaunal Provinces,GeologicalSurvey ofe es si o naaer
529-E, 1970,p. E9. To assist others in understandingthis "wnfusing battle of
words",Hazelreviewedthe biogeographic(Figure4, p. E7)and climatictcrminol-
ogy(Figure6, p. E9).He choseto usethe terms "NovaSwtian" and "Virginian"for
the twobiogeographic regionsin the Gulfof Mainearea,and the terms"wld tem-
~erate"and "mildtemnerate"for the marineclimaticzones.Unfortunatelv,subse-
Quentauthon havewitinued to fosterwnfusion in hoth categories,althiugh they

aeree that therincioalfaunalbarrierinthe areamns fromCaveCod eastalonnthe
nkthetn edge of GeorgesBank,thence seawardthmugh the Northeast ~ha&el.
ïhis amex avoidsthe use of ewlogical terms where they serveno putpose. For
example.the use of the term "biotic" province implieasn emphasison geography
and taxonomy,while another wmmonlyused tenn "biome" emphasues climatic
adaptations. In the marineenvironment al1elementsare present,and there is no
single,fully useful term under the circumstances.Marine organisms are more
responsiveto theirphysicalclimaticambiencethan are terrestrialanimals,and bave
an unusualabilityto respondas a communityto the differingconditionsin which
they find themselves.Climaticadjustmentis the overridingfactor in the Gulf of
Maine area, althoughthe geographic,taxonomie, and climaticboundaries in this
area arewnwrdant. ïhere isa pronounced relationshipbetweendepthand temper-

ature. Thus a species respondingto temperaturewill also appear to respond to
depth, althoughdepthmaynot be a directcausalfactorin determiningthe distrihu-
tion of the species.The distancesinvolvedin the Gulf of Maine area are often
insufîicientto determinewhichfactor, temperature or depth,is the primedetenni-
nant.
'Becauseof ilsbroad approach,biogeographytends todealwithgroupsof species,
and thereforeislessusefultbanstockidentificationasatool inthemauanementand
conservationof commercialresources.

Dice,op.cir..p444,Figure50.[lail ANNEXESTO COUNTER-MEMORLUOF THEUNITEDSTATES 221

108. AI1subsequent authorities, regardless of the terms used for the
different regions, identify the northern edge of Georges Bank and the
Northeast Channel as the significant faunal boundary in the area. For
example, Bousfieldand Thomas, in a 1975 study prepared for the Nova
Swtia Institute of Science, includedan illustration of the "present pattern
of faunal distributions" in the Gulf of Maine area '.This illustration,

which the authors also described as showingthe "principal hydrological
and zoogwgraphical features of the region", as well as surface tempera-
tures "grouped in four categories of zoogwgraphical significance.indicat-
ed by wlour", is reproduced here as Figure 52 '.The authors identified
the soutbern limit of the "boreai" (green)region as running through the
Gulf of Maine Basin, then along the northeastern edge of Gwrges Bank
and through the Northeast Channel '.Tbey identifiedthe yellowand red
regions to the south of this limit as being "warm-water" regions '.

109. Franz and Merrill examined the ranges of various molluscan
faunal groups from Cape Hatteras (35 degrees North Latitude) to
Northern Labrador (60 degrees North Latitude)'. Figure 53, reproduced
from their paper, illustrates the conclusionsof their examination 6.The
significant breakin the distribution of the various faunal groups occursat

the Northeast Channel. The species group labelled "Arctic-Boreal"
abruptly declines between 43 and 41 degrees North Latitude. Similarly,
the "Transhatteran" faunal groupdeclinesin its northward distribution at
the same point.

110. Franz, Worley, and Merrill found similar breaks in the distribu-
tion of seastars'. In their summary remarks, the authors state:

"The distribution patterns of seastars re-emphasize an impor-
tant point: forcontinental shelf species,Cape Hatteras and Cape
Cod,per se, are not barriers. Thermal discontinuities associated
with the confluence of surface currents, and influenced by the

'E. L. Bousfieldand M. L. H. Thomas,"PostglacialChangesin Distributionof
Littoral Marine Invcrtebratcsin thc CanadianAtlanticRegion",in Proceedings
of rheNova Scoiia Insrirureofscience, Vol.27,Supp.3, 1975, pp.47, 51. 59.
Ibid.,p.48.

'Ibid.,P.48and Figure52.
'Ibid., p48.
'D.R. Franzand A. S. Merrill,"TheOrigins andDeterminanuofDistribution of
MollusuinFaunal Groupson the ShallowContinentalShelfof the Northwwt
Atlantic",in Malacologia. 1980,Vol.19,No.2, pp. 227, 229.
'Figure53.FranzandMerrill, op. cii., 229.
'D. R. Franz,E.K.Worley,and A. S. Merrill,"DistributionPatternsofCommon
SeastarsoftheMiddleAtlanticContinentalShelfoftheNorthwwt Atlantic (Gulf
of Maine IoCapeHatteras)",in Biologiçal BulletinVol.160,1983. pp. 394-418.222 GW OF MAINE 1162-1661

configurations of the continental shelf, are barriers to the
distribution of somefaunal groups.. ..The major faunal barri-
ers observed in this study are thermal, associated with the
compressionof bottom isotherms alongthe marginsof Gwrges
Bank and Nantucket Shoals.. ..(as noted also for ostracodsby
Hazel, 1970, polychaetesby Kinner, 1977, andamphipodsby
Watling, 1979) '."

111. The moremobilebenthic organisms,suchas the pandalid shrimps,
e.g.Pandaluspropinquis.Pandalusborealis and Pandalusmonfagui, are
essentiallyconfinedto the Gulf of Maine Basin,as are some speciesof ar-
rowWorms,e.g., Sagiffalyra,Sagiftamaxima.Sagitfoserrodenfofa and
Eukroniahamafa. On the other side of the faunal boundary,on Georges
Bank and to the soutbwest,other speciesare found that seldom,if ever,
wander into the Gulf of Maine Basin or onto the Scotian Shelf. Some
examplesare the crab Cancerirrorafus. the mollusc'Spisulasolidissima,
and such small crustacea as Unciola irrorafa, Mysidopsis bigelowi,
Neomysis americanus, and Erythropseryrhrothalmus '.

112. Biogeographers oftenfocus on bottom-dwelling(benthic)organ-
isms in analyzing the biogeographyof an area, because benthos are less
mobileand haveclearer patterns of distribution than do fish.Neverthe-
less,as previouslynoted, fish also respond tothe biogwgraphyof an area.
For example, members of the fourspot flounder-butterfish association
rarely penetrate north heyond the southern limit of the boreal zwgeo-
graphicprovinceshownin Figure 52.
113. In summary, biogwgraphers groupspeciesof flora and fauna by

shared gwgraphic ranges.These biogeographerswnfirm that, in the Gulf
of Maine arca, there is a major faunal boundary, reflected in the
distribution of zwplankton, benthos, fish, and shellfish.This boundary
extends northeastward from Cape Cod along the northern edge of
Gwrges Bank and through the Northuast Channel. The boundary is
associated approximately withthe 200-meter-depth contour between
Georges Bank andthe Gulf of Maine Basin and between Georges Bank
and the Scotian Shelf.It is also associated withthe thermal diswntinui-
tiw that accompanythe changein topographyand the movementof water
currents alongthe edgcof Georges Bank.

'Franz.Worley.and Mcrrillop.cif.p.416.
' BigelowPlakfono.p.cil.N.E.F. Centhicdata base. CHAPTER III

THE NORTHEAST CHANNEL AND ITS SIGNIFICANCE

114. It long has been recognized that the Northeast Channel is a
powerful factor in the shaping of the ocean climate and distribution of
organisms in the Gulf of Maine area. In his classic work of 1926on the
plankton 'of the Gulf of Maine area, Bigelow drew attention to the
significance of the Northeast Channel, especially as a pathway into the
Gulf of Maine Basin,at al1levelsof the water column, for organisms from
the continental slope.See Figur54'.

115. The significanceof the Northeast Channel can best be understood
by consideringhowdramatically different the environmentof the Gulf of
Maine area wouldbe if the Northeast Channel did not exist.

SECTION 1. The Physical Oceanography of the Gulf of Maine Area
Would BeRadically Alteredif the Northeast ChannelDid Not Exist

116. If Georges Bank and the Scotian Shelf were joined, the area
through which water could pass directly hetween the open ocean and the
Gulf of Maine Basin would be reduced drastically. Figu55 'showsthe
total area through whichwater now passes betweenCape Cod and Cape

Sable. If the Northeast Channel did not exist, the area through which
water could pass wouldbe reduced by approximately25 per cent.

A. THE PHYSICAL OCEANOGRAPH OF THE GULF OF MAINEBASIN
WOULDBE RADICALLD YIFFERENT IF THE NORTHEASC THANNEL DID
NOTEXIST

117. The water that enters the Gulf of Maine Basin through the
Northeast Channel at depths below75 meters is of high salini(34.7to
35 parts per thousand) and relativelyconstant temperat(5to9 degrees
Centigrade), andprovides 60 to 70 per cent of the water in the Basin. If
the Northeast Channel did not exist, thisflowof deep slopewater into the
Basin would cease. Surface waters from the Atlantic Ocean and the

'Bigelow ,lonkron,op. cil.
'Figure54.Ibid.. 65.

'Figure55.Plotofthecross-sectionaalreaabovethebottomat itsshalltromf
Cap Codto CapeSable,NovaScotia. The NortheasC t hannel represents about
25 percentofthe areathroughwhichwatermaypass betweenthe Gulfof Maine
Basinand the continentllope. Approximatey0percentofthecross-sectional
areaofthe NortheastChannelisbelowthat ofanyotherarea.224 GULFOF MAINE [168-1721

Scotian Shelf would become the principal source of water for the Gulf of
Maine Basin, and the importance of precipitation and runoff as sources of
water would increase. Over a period of time, the surface layers would

become less saline. At the same time, any occasional inflow of more saline
water would accumulate at the bottom of the Basin '.As the differences
between the densities of the top and bottom layers increased, the waters
would be less well-mixed.

118. An examination of the conditions in the Baltic Sea, the Black Sea,
and in certain Norwegian Fjords provides a view of the conditions that

might exist if the Gulf of Maine Basin had no access to ocean water
through the Northeast Channel z.The bottom waters of these areas are
not linked regularly to the open ocean. Consequently, the oxygen in the
bottom layer is depleted, andthe water becomes anaerobic and eventually
toxic, or anoxic, through concentrations of hydrogen sulfide '.

119. Stratification of the water in the Gulf of Maine Basin in terms of
its salinity would not be the only consequence of a loss of the water

flowing into the Basin through the Northeast Channel. At present, the
water temperatures in the Gulf of Maine Basin are moderated by the
inflow of water of a relatively constant temperature through the North-
east Channel. If this inflow were to cease, the thermal moderation would
also disappear. The surface waters of the Gulf of Maine Basin would be

' Under certain extreme weather conditions, saline ocean waterwouldenter the
Gulf of Maine Basindespitethe barrier formedby GeorgesBankand the Scotian
Shelf. Becauseof its salinityand density,this waterwouldsinkto the hottom,with
theresult that the bottomwaterswouldincreaseinsalinityovertime. Meanwhile,
fresh water from rivers, other land runoff. and precipitation would make the
surface waters relatively fresh.A simpledescriptionof sucha systemis contained
in H.U. Sverdrup, M.W. Johnson and R. H. Fleming, The Oceans-Their
Physics. Chemistry, and GeneralBiology, 1946,pp. 148-149,and Figure 378. At
present,the saline waterentering the Gulf of Maine Basinat depth throughthe

Northeast Channel is mixed withthe waters entering the Basinfrom the Scotian
Shelf. If the Northeast Channel did not exist, this mechanismfor mixing the
bottomwaterswith the surfacewaterswouldbe lost.
'Sverdrup,op. cit.. p. 150.
'See T. Laevastu and1.Hela, Fisheries Oceanography,1962,pp. 40-43.For both
the Balticand the BlackSeas,there ismore runoffand precipitationthan there is

evaporation,and the surfacelayers therebyare reducedinsalinity.The deepbasin
(over 2,100 meters) of the Black Sea has water of even higher salinitythat is
stagnant,asdoesthe BalticSea, eventhough its depthsharelyexceed 200meters.
The basinsofthe Gulfof Maineare deeperthan thoseofthe Baltic,reaching from
280to nearly400metersin depth. Fishcannotlivelonginwatersthat are lacking
in oxygen.They cannot survive inwaters that are toxic from accumulationsof
hydrogen sulfide. Although their bottom waters are stirred in winter, some
Norwegian fjordsare essentiallynonproductive year-round.This is because the
stirring brings hydrogen sulfide tothe surface in quantities sufficientto kill the
animalslivingin the shallowerwaters.11731 ANNEXESTOCOUNTER-MEMORIAL OFTHE UNITEDSTATES 225
colderin the winter and warmer in the summer. In winter, the surface wa-

ters in the Basin would besufficiently cold and fresh to allow sea ice to
form in the coastal regions. Furthermore, the strong front between the
Gulf of Maine Basin and the southwesterntip of the Scotian Shelf, where
the saline and relatively warm water from the Northeast Channel
confronts the colder and fresher water of the Scotian Shelf, would
disappear.

120. A diminution of nutrients in the Gulf of Maine Basin would be
another consequence of the loss of the inflow through the Northeast

Channel. At present, the water comingin through the Northeast Channel
carries nitrates that are mixed into the water column, thus enriching the
watersin the Gulf of Maine Basin.If the Northeast Channel did not exist,
the Gulf of Maine Basinwouldnot havethis principal sourceof nutrients.
Furthermore, becausethe water columnin the Gulf of Maine Basinwould

not be stirred as thoroughlyor as often, nutrients wouldaccumulate at the
bottom of the Basin, and would not enrich the upper levelsof the water
column.

121. If the Northeast Channel did not exist, the general pattern in
whichwater circulates through the Gulf of Maine Basinwouldbe altered
as a result of the changes in temperature and salinity described above.
Water would probably leavethe Gulf of Maine Basin in much the same
manner that the surface water presently moves offthe Scotian Shelf

towards the Atlantic Ocean. 00th the present circulationpattern and the
circulation pattern that likely would result if the Northeast Channel did
not existare illustrated in Figure 56'.Figure 56 illustrates the principal
consequencesthat wouldresult if GeorgesBank werejoined to the Scotian
Shelf. Water no longer would have access to the Basin through the

Northeast Channel. Furthermore, whilewater presentlydoesnot flowinto
the Basin through the Great South Channel, some water might flowinto
the Basin through the Great South Channel if the Northeast Channel did
not exist. A "two-tiered"system would bethe result of this circulation
pattern.

122. If theNortheast Channel did not exist,the forceofthe tides in the
Gulf of Maine Basin would be reduced considerably.The water passing
freely through the Northeast Channel greatly enhances the tides of the

Gulf of Maine Basin and the Bay of Fundy, and contributes to the
generationof currents and the mixingof water. If the Northeast Channel

Figurc 56.In Figurc56A. theprcscntcirculationpatterisillustrateA."threc-
tier"svstcmcxists. mainiaincdvtheflowthrounhtheNortheastChannel.Watcr
isstirredtoa depthof 100ormire meters in théwinter.keepingthesurface rela-
tivelysaline.Theamountof flowinward through the Channelisbalancedbythe
flowoutward.226 GULFOF MAINE 1174-176)

did not exist, the cross-sectionalarea through whichwater can pass would

be reducedby approximately25 per cent, and the tidal energy in the Gulf
of Maine Basin and in the Bay of Fundy would be reduced by approxi-
mately the same percentage. S.eeFigure 55, discussed inparagraph 116,
supra.

B. THEPHYSICAO LCEANOGRAPH OYGEORGEB SANK AND THE SOUTH-
ERN NEWENGLAND SHELF WOULDBE RADICALLD YIFFEREN F THE
NORTHEASC THANNEL DIDNOTEXIST

123. If the Northeast Channel did not exist, nutrient-rich water from
the intermediate layer in the Gulf of Maine Basinno longerwouldupwell
ont0 Georges Bank '.Water over Georges Bank would come from the

Scotian Shelf and from the surface layer of the Gulf of Maine Basin.This
water wouldbe colder,less saline,and lessrich in nutrients than isthe wa-
ter over Georges Bankat present. The gyre over Georges Bankwould be
considerably weakened. Georges Bankwouldbe part of a "flow-through"
system, with water fromthe Scotian Shelf crossing over Georges Bank
and beyondto the southwest.The strong front between Georges Bankand
the Gulf of Maine Basin resulting from the juxtaposition of contrasting

oceanographic regimeswould disappear. The sharp contrasts in tempera-
ture and salinity that form a barrier between the water that flowsinto the
Gulf of Maine Basin through the Northeast Channel and the water that
flows out of the Basin around the tip of Georges Bank also would
disappear. The sharp differences between the physical oceanographyof
Georges Bank and that of the Scotian Shelf similarly would disappear.
Because of the reduction in tidal energy and the changes in circulation,

the pattern of bottom deposition and erosion would be altered. For
example, the underwater sandwave features of Nantucket Shoals and
GeorgesBank wouldbe diminishedand shifted.

124. The effects of the loss of the Northeast Channel would be felt
southwest of Georges Bank,along the southern New England shelf and
beyond. Surface water carrying nutrients and other organic matter
currently leavesthe Gulf of Maine Basin round the tip of Georges Bank,
and doubles back along the southern New England continental shelf.
Similarly, some water over Georges Bank breaks out of the gyre and

carries nutrients downthe southern New England shelf. If the Northeast
Channel did not exist,waters from the Gulf of Maine Basin and Georges
Bank still would reach the southern New England continental shelf, but
they wouldbe lessrich in nutrients.

'"The nitrogenflux into the Gulf of Maine throughthe Northeast Channel,
conservativeestimated,is ..roughly40 percent ofthe amount needed to
supportproductiononGeorgesBank."Ramp, et al.. op. p,5. Ithisflowdid
notexist,oththe Gulfof MaineBasinandGeorgesBankwouldbclessrich in
nutrients.11771 ANNEXESTO COUNTER-MEMORIALOF THE UNITEDSTATES 227

125. In summary, if the Northeast Channel did not exist, the wnse-
quences for the physical oceanography of the Gulf of Maine area would
include the following:

a. for the Gulf of Maine Basin:

1) a loss of the direct connection hetweenthe deep waters of the
Gulf of Maine Basin and those of the continental slope, with the
resulting lossof the continuous replacementof the bottom water in
the Basin;

2) a change in the originsof the Basin'swater;

3) a change in the temperature, salinity, and degree of stratifica-
tion of the water in the Basin;

4) a lossof oxygen replenishmentand thus of the capacity of the
bottom waters of the Basin to support life;

5) a lossto the Basin of its principal source of nutrients;
6) a change in the circulation pattern in the Basin; and

7)a significant reductionin the tidal movementin the Basin;

b. for Georges Bankand the southern New England shelf:

1) a change in the origins and composition of the water over
Georges Bank;
2) a lossof nutrients over Georges Bank;

3) a weakening ofthe gyre on Georges Bank, tothe extent that the
Bank wouldbecomepart of a "flow-through" system;

4) a reduction in the tidal movement over Georges Bank;and

5) a loss of the downstream flow of saline water that bears
nutrients to the southern New England shelf and heyond.

SECTION2. TheEkologyof theGulfof MaineAresWouldBeRadically
Alteredif theNortheastCbannelDidNot Exist

126. If the Northeast Channel did not exist,there would be dramatic
and harmful wnsequences to the ecologyof the area. As noted above,the
principal sourceof nitrates to the Gulf of Maine Basin is the slopewater
that enters through the Northeast Channel. Were this primary source of

nutrients to be reduced, plant production in the Basin similarly wouldbe
greatly reduced. Also as noted above, this loss of nutrients would affect
Georges Bank and the southern New England shelf and beyond.This loss
wouldbe reflectedin a corresponding reductionin plant productionin that
region as well.228 GULFOF MAINE [178-1801

127. Plant production would be reduced further as a result of the
diminution in tidal action. Tidal stirring enhances the recycling of
nutrients by mixing the water column from the surface to the bottom.
This occursparticularly around the periphery of the Gulf of Maine Basin

and over Georges Bank and Nantucket Shoals. See Figure 57 '.If the
Northeast Channel did not exist, there would be a decrease both in the
area and in the extent of such vertical stirring, resulting in a further loss
of phytoplankton productivity.

128. If the Northeast Channel did not exist, plant production would
decrease. In turn, the productivity of herbivorous zooplanktonwould be
affected adversely.As a result, the abundance of those fish and shellfish
that feed onthe herbivorous zooplanktonwoulddecrease.

129. The ecologicaleffects of a loss of the Northeast Channel would
not be restricted to the reduction in productivity stemming from the
decrease in nutrients. As noted above, the pattern in which water
circulates through the Gulf of Maine area also would be changed, as
would water temperature and salinity. Similarly, the degree to which

water mixedvertically wouldalter. At present, al1of these factors lead to
the existence, alongside oneanother, of the three separate and identifiable
oceanographic and ecological regimes describedin Chapters 1and II of
this Annex. If continental slopewater no longer flowed into the Gulf of
Maine Basin through the Northeast Channel, the waters of the Scotian
Shelf, of the Gulf of Maine Basin, and of Georges Bank would cease to
have the contrasting characteristics that led to the creation of these three

separate regimes.As a result, the separate communitiesof flora and fauna
that inhabit those respective regimes would cease to exist. Fish and
shellfish speciesno longer wouldhavethe current variety of oceanograph-
ic regimes from which to cboose, and, consequently, the diversity and
abundance of fisheryresourceswoulddecrease.The Northeast Channel is
critical to the development of separate stocks over Georges Bank. The
weakening of the Georges Bank gyre and the flow of water from the
Scotian Shelf directly over Georges Bank that wouldresult from a lossof

the Northeast Channel would cause many of the separate Georges Bank
stocks,such as cod, haddock, andsilverhake, to disappear.
130. Species of fish and shellfish would be affected in a number of

respects by the lossof the Northeast Channel. Followingthe development
of anaerobic and possiblyanoxicconditions,the deep watersof the Gulf of

'Figure57.Figurc57Ashowsthecurrentareasofmixing and cnhanccdprimar)
~roductionT. heiidalactionscombined with theio.-ra~..ofrhc GulfofMaine
Basinmakethisareaunusually productivlen . Figure578,thetidallyxnixedarea,
in whichproductionwouldbe sustained,has movedclose to shorearoundthe
peripheryof the Gulfof Maine Basin.In addition,it has movedseaward inthe
GeorgesBank area.[181-1821 ANNEXESTOCOUNTER-MEMORIALOF THEUNITED STATES 229

Maine Basin no longerwouldserveas the primary habitat for memhers of
the redfish-wolffish association.Thus, such speciesas redfish, argentine,
witch flounder, cusk, wolffish,and thorny skate would cease to exist as
significant resource populations in this area. Similarly, without the
Northeast Channel, the sea herring-cod association, which includes
pollock, haddock, and American plaice, no longer would appear in the
deep waters of the Gulf of Maine Basin, albeit they wouldextend farther

along the continental shelf to the southwest. Because the waters of the
Gulf of Maine Basinand Georges Bankwouldbe chilledas a consequence
of the lossof the inflowthrough the Northeast Channel, members ofthe
fourspot flounder-butterfish association, including the longfin squid,
bluefish, northern sea robin, summer flounder, and spotted hake, no
longer would appear in the area. The extent to which memhersof the
silverhake-spiny dogfish association, which includersed hake, white hake,
goosefish,and lobster, would he found in the Gulf of Maine Basin also

wouldbe substantially reduced. Overall, if the Northeast Channel did not
exist, the fishery resourcesof the area would be greatly reduced, perhaps
hy as much as 50 per cent.
131. In summary, the biologicaiwnsequences of a loss of the North-

east Channel wouldinclude the following:
1)a reduction of plant productionas a result of the lossof important
nutrients,particularly nitrates;

2) a reduction and shift of primary production hecause of the
decrease and shift in tidal stirring;

3) a loss of the separate and identifiable communities of flora
(phytoplankton) and fauna (zooplankton, benthos, fish, and shellfish)
that exist at present in the three ecologicalregimes;

4) a lossof the separate fish stocksthat inhabit the area;

5) a reduction in the diversityof speciesin the area; and
6) a marked reduction in the populations of valuable fishery
resources.

132. In brief, a consideration of the transformation that the marine
environment of the Gulf of Maine area would undergo if the Northeast
Channel did not exist wnfirms the critical significanceof the Northeast
Channel. Without its influence, the three separate and identifiable
oceanographic regimes that exist at present would disappear, together

with the varied and abundant marine flora and fauna that inhabit the
area. CONCLUSION
133. Three oceanographic regimes exist alongside oneanother in the
Gulf of Maine area. These regimesare distinct from oneanother in terms
of their topography and of the circulatory pattern and physicalcharacler-
isticsof the water column.These differences,in turn, are reflected'in the

separate and identifiable biological communities that have developed
withineach of the oceanographic regimes.Thus, phytopiankton,zooplank-
ton, and fish spccics.as wellas separate fish stocks, are distributed in the
area accordingto the water dynamicsand other physicalcharacteristics of
the oceanographic regimes.As a wnsequence, the mlogy ofthe Gulf of
Maine area is divided into three separate and identifiable regimes.

134. Strong fronts exist where these respective regimeswnfront one
another. Such a front occursbetweenthe Gulf of Maine Basin regime and
that of the Scotian Shelf, where water entering through the Northeast
Channel mixeswith water entering from the Swtian Shelf. Another front
occurs hetweenthe Gulf of Maine Basinregime and the Georges Bank re-
gime, where watersof different temperature and salinity abut each other.

135. The Northeast Channel largely is responsible forthe existenceof
these three separate and identifiable ecological regimes.It is the influxof
water from the continental slope,through the Northeast Channel and into
the Gulf of Maine Basin.that isgenerally responsible forthe development
of these regimes. The effects of this influx are felt well beyond Georges
Bank along the southern New England shelf. If the Northeast Channel
did not exist, a single regime, lacking the richness of the present marine
environment, would extend from the Scotian Shelf, through the Gulf of
Maine Basin, over Georges Bank; and beyond.[II ANNEXESTOCOUNTER-MEMORIALOF THEUN~D STATES 231

AppndixA toAnnex1

COD

Separate codstocksin Subareas 4 (offNova Scotia)and 5(offNew En-
gland) were recognizedexplicitly or implicitly in the followingmanage-

ment actions taken by ICNAF ':
1) Regulation of the cod and haddock trawl fisheriesin Subareas 3,

4, and 5: for Subarea 5 the regulations substitute for theones
adopted in 1952and 1953(4-112inch mesh size for Subareas 4
and 5; 4 inch meshsize forSubarea 3;5,000poundor 10per cent
trip exemption; savingsgear) proposed 1955(Ann. Proc. Vol. 5,

p. 11-12).
2) Arnendments to regulation of the cod and haddock trawl fisher-

ies in Subareas 3,4 and 5 adopted in 1955(abeyanceto para. IV
for Subareas 3 and 4; 5,000 pound or 10 per cent 12-month
exemption in Subarea 5 proposedin 1956(Ann. Proc. Vol. 6, p.
16).

3) Amendments to regulations of the cod and haddock trawl
fisheries in Subareas 3, 4 and 5 adopted in 1955 and 1956

(attaching savings gear) proposed in 1957 (Ann. Proc.Vol. 7, p.
17).

4) Regulations of cod, haddock and flounder trawl fisheries in
Subarea 4; substitutes for 1955, 1956 and 1957 proposais
(4-112 inch mesh size;mesh measurements; 5,000 pound or 10
per cent trip exemption; savingsgear) proposed in 1961 (Ann.

Proc. Vol. II, p. 17-18).

5) Amendment to regulation of cod, haddock and flounder trawl
fisheriesin Subarea 4 adopted in 1961(savingsgear) proposedin
1963(Ann. Proc.Vol. 13,p. 16).

6) Amendments toregulation of codand haddock trawl fisheriesin
Subarea 5 adopted in 1955 (savingsgear) proposedin 1963(Ann.
Proc. Vol. 13,p. 16-17).

'Fora moredetaileddiscussionof the managemen atctivitiesoftheUnitedStates
and Canada under the InternationalConventionfor the NorthwestAtlantic
FisheriesseeAnncx3,Vol. II.232 GULF OF MNNE ta

7) Amendment to a regulation for cod, haddock and flounder in
trawl fisheriesin Subarea 4 adopted in 1961(Manila twine and
ICNAF gauge as standard) proposed in 1964 (Ann. Proc. Vol.
14,p. 16-17).

8) Amendment to regulation of the cod and haddock trawl fisheries
in Subarea 5 adopted in 1955(Manila twine and ICNAF gauge
as standard) proposed in1964(Ann. Proc.Vol. 14,p. 17).

9) Amendment to regulation for cd, haddock and flounder in
Subarea 4 adopted in 1961(extendsexemption)proposed in1965
(Ann. Proc. Vol. 15,p. 19).

10) Amendment to regulation forcd and haddock in Subareas 3
and 4 adopted in 1955 (extends exemption) proposed in 1965
(Ann. Proc. Vol. 15,p. 19).

11) Codificationof regulations in Subareas,2,3, and 4 proposedin
1961, with amendments adopted in 1963, 1964, and 1965
(proposedin 1965) (Ann. Proc. Vol. 15,p. 19-24).

12) Amendments to trawl regulations adopted forSubarea 4 in 1955,
1961,1964 and 1965;and in Subarea 5 in 1964(5kg.pressure or
pull;measure 20 consecutivemeshesof cdend) proposed in1967
(Ann. Proc. Vol. 17,p. 20).

13) Closedseasonand closed area regulations pertaining to haddock
spawningareas on Georges Bank: prohibitionof fishing with gear
capable of catching demersal species [i.e., cod and haddock]
during March and April 1970, 1971, 1972 for two portionsof
Georges Bank.(Ann. Proc. 19: 27-28).

14) Regulation of cod, haddock and yellowtail floundertrawl fisher-
ies in Subarea 5: substitutes for regulation adopted in 1955,
1956, 1957, 1963, 1964,and 1967 (adds yellowtail flounder)
proposed in1970(Ann. Proc. Vol. 20, p. 27).

15) Amendment to regulation adopted forSubarea 4 in 1965(deletes
alternative gauges)proposedin 1971(Ann. Proc.Vol. 21, p. 31).

16) Regulation of cod fishery in Subdiv. 4Vs and Div. 4W of
Subarea 4 (60,500-tonquota for 1973,national allocation, daily
catch record)proposed in1972(Ann. Proc. Vol.22, p. 48).

17) Regulation of cod fishery in Div. 5Y of Subarea 5 (10,000-ton
quota for 1973,national allocation, dailycatch record) proposed
in 1972(Ann. Proc.Vol. 22,p. 49).

18) Regulation of cd fishery in Subdiv. 5Ze and 5Zw of Subarea 5
(35,000-ton quota for 1973, national allocation, daily catch
record)proposed in1972(Ann. Proc.Vol. 22, p. 50).i31 ANNEXES TO COUNTER-MEMORlALOFTHE UNITEDSTATES 233

19) Amendment to regulation of the d, haddockand nounder trawl
fisheries in Subarea 4 [114-mm (4-112 inches) mesh size in
netting other than codend; 130-mm(5-118 inches)mesh size in

dend] proposedin 1972(Ann.Proc. Vol.22, p. 64).
20) Amendment to regulation of cod, haddock and yellowtail noun-

der in Subarea 5 [114-mm (4-112 inches) mesh size in netting
other than codend; 130-mm(5-118 inches)mesh size in codend]
proposed in 1972(Ann. Proc. Vol.22, p. 65).

21) Further regulation of the codfishery inSubdiv.4Vsand Div.4W
of Subarea 4 (60,000-ton quota for 1974; national allocation
proposedin 1973(Ann. Rept. Vol.23, p. 77).

22) (Div. 5Y and Div. 5Z cod stocks included in:) Regulation of
fisheries in Subarea 5 and Statistical Area 6 (overall TAC
923,000tons and allocations for 1974;commitment 850,000 tons
and allocation for 1975and commitment for 1976;speciesTACs

and allocations; reporting procedures) proposed in 1973 (Ann.
Rept. Vol.24, pp. 27-29).

23) [Div.4T (Jan.-Dec.) - Subdiv. 4Vn (Jan.-Apr.)and Subdiv. 4Vn
(May-Dec.) cod stocks included in:]Regulation of fisheries in
Subareas 2, 3, and 4 (TACs and allocations for 12 stocksfor
1974; reporting procedures) proposedin 1974 (Ann. Rept. Vol.
24, p. 54).

24) Amendment to regulation for cod, haddock, and flounders in
Subarea 4. adopted in 1965 (details exemptions) proposed in

1974(Ann. Rept. Vol.24, p. 93).
25) Amendment to regulation for cod, haddock, and yellowtail
flounder trawl fisheries in Subarea 5 (details exemptions)pro-

posedin 1974(Ann.Rept. Vol.24, p. 94).
26) Div. 4T (Jan.-Dec.) - Subdiv. 4Vn (Jan.-Apr.), Subdiv. 4Vn

(May-Dec.), Div.4VsW, Div.4X (offshore),Div.5Y, Div.5Z d
stocks. Regulation of fisheries in the Convention Area and
Statistical Area 6 (TAC and allocations for 54 stocks inthe
Convention Areaand overallTAC and allocation of wholegroup
of stocksin Subarea 5 and Statistical Area 6 for 1975)proposed
in 1974(Ann.Rept. Vol. 24, pp. 101-104).

27) Regulation of d and haddock fisheriesin Div.4X of Subarea 4
(determines exemptionat 5,510 Ib. or 2,500 kg or 1 per cent by

weight; closedseason, March, April and May and closed area to
exclude LaHave Bank) proposed in1975 (Ann.Rept. Vol. 25, p.
87).234 GULFOF MAINE t41

28) Subdiv. 4Vn (May-Dec.), Div. 5Y, and Div. 5Z cod stocks.
Regulation of fisheries by catch quota in Convention Area and
Statistical Areas Oand 6 (for 1976;TACs and allocations for49
stocks (first tier);TACs and allocationsfor wholegroup of stocks

in Subarea 5 and Statistical Area 6) proposed in 1975 (Ann.
Rept. Vol.25, pp. 94-96).

29) Amendment to regulation for cod, haddock and flounder trawl
fisheries in Subarea 4 (exemptionof 2,000 kg. (5,510 Ib.)or 10
per cent by weight) proposedin 1975(Ann.Rept. Vol. 26,p. 40).

30) Amendment to regulation for cod, haddock and yellowtailfloun-
der trawl fisheries in Subarea 5 (exemptionof 2,500 kg. (5,510
Ib.)or 10per cent by weight)proposedin 1975 (Ann. Rept. Vol.
26, p. 41).

31) Div. 4T (Jan.-Dec.)- Subdiv. 4Vn (Jan.-Apr.), Div. 4VsW. Div.
4X (offshore),and Div. 52 cod stocks.Amendment to regulation
of fisheries by catch quota in Convention Area and Statistical
Areas O and 6 (for 1976; TAC and allocations for 9 stocks
deferred from 1975 Annual Meeting and revised allocations for

19stocks agreed at 1975Annual Meeting; revised allocationfor
the group of stocks inSubarea 5 and Statistical Area 6)proposed
in 1975(Ann.Rept. Vol.26, pp. 42-43).

32) Subdiv. 4Vn (May-Dec.), Div. 4VsW, Div. 4X (offshore),Div.
5Y, and Div. 5Z cod stocks. Regulation of fisheries by catch
quota in the ConventionArea and Statistical Areas Oand 6 [for
1977; TACs and national allocations for 51 stocks (first tier)]
proposedin 1976(Ann. Rept. Vol.26, pp. 115-118).

After extending its fisheries jurisdiction to 200 nautical miles, Canada
recoganized explicity or implicity the separateness of cod stocks in
Subareas 4 and 5 in the followingactions:

1) TACs for 4T-4Vn (Jan.-Apr.),4Vn (May-Dec),4VsW, and 4X
(offshore)stocks for 1978(CAFSAC Ann. Rept. Vol. 1,p. 23).

2) TACs for 4T-4Vn (Jan.-Apr.), 4Vn (May-Dec),4VsW, and 4X
(offshore)stocks for 1979(CAFSAC Ann. Rept. Vol. 1,p. 23).

3) TACs for 4Vn (Jan.-APT.)-4T,4Vn (May-Dec), 4VsW, and 4X
(offshore)stocks for 1980(CAFSAC Ann. Rept. Vol.2,p. 21).

4) TACs for 4Vn (Jan.-Apr.)-4T, 4Vn (May-Dec),4VsW, and 4X
(offshore)stocks for 1981(CAFSAC Ann. Rept. Vol. 3,p. 10).

5) TACs for 4Vn (Jan.-.%PI.)-4T,4Vn (May-Dec), 4VsW. and 4X
(offshore)stocks for 1982(CAFSAC Ann. Rept. Vol.4, p. 11).[SI ANNEXESTOCOUNTER-MEMORIA OFTHEUNITEDSTATES 235

6) TACSfor 4Vn (Jan.-Apr.)-4T,4Vn (May-Dec),4VsW. and 4X
(offshore) stocksfor 1983(CAFSACAdv.Doc. 82/13). KppendiiB toAnnex1

HERRING

Separate herring stocksin Subareas 4 (offNova Scotia) and 5(offNew

England) were recognizedexplicitlyor implicitly inthe followingactions
taken by ICNAF ':
1) Regulation of herring fishery on Georges Bankstock (150,000-
tonquota for 1972,national allocations,logbook,action for 1973,

mutual allocation) proposedin 1972(Ann. Proc. Vol;22, p. 70).
2) Regulation of herring fishery in Div. 5Y of Subarea 5 (30,000-

ton quota for 1972,national allocations,logbook,action for 1973,
mutual allocation) proposed in 1972(Ann. ProcV . ol.22, p. 71).
3) Regulation of herring fishery in Div.4X and part of Div.4W of
Subarea 4 (65,000-ton quota for 1972, national allocations,

logbook, action for 1973, mutual allocation) proposedin 1972
(Ann. Proc. Vol.22, p. 72).
4) Regulation of herring fishery in Subareas 4 and 5 (9-inch size
limit excludingthe area north of 44 degrees 52'N lat in Div.4W

of Subarea 4 and the area north of 43 degrees 50'N lat in Div.
4X ofSubarea 4, lOpercent weight exemption)proposedin 1972
(Ann. Proc. Vol.22, pp. 73-74).
5) Further regulation of the herring fishery from Georges Bank

stock (150,000-tonquota for 1973,national allocation, commit-
ment for 1974catch level)proposed in 1973(Ann. Rept. Vol.23,
pp. 28-29).

6) Further regulation of the herring fishery inDiv.5Y of Subarea 5
(25,000-tonquota for 1973,national allocation, commitment for
1974catch level)proposed in 1973(Ann. Rept. Vol. 23,p. 30).
7) Further regulation of the berring fishery in Div. 4Xand part of

Div. 4W of Subarea 4 (90,000-ton quota for 1973, national
allocation) proposed in1973(Ann. Rept. Vol.23, p. 31).
8) Regulation of the herring fishery in Div.4V and northern part of
Div. 4W of Subarea 4 (45,000-ton quota for 1974; national

allocation) proposedin 1973(Ann. Rept. Vol.23, p. 80).

'Fora moredetaileddiscussion ofthemanagementactivitiesoftheUnitedStates
and Canada under the InternationalConventionfor the NorthwestAtlantic
Fisheries,ee Annex 3,Vol. II.L21 ANNEXESTOCOUNTER-MEMORW OFTHE UNITEDSTATES 237

9) Further regulation of the herring fisheryin Div.4X and southern
part of Div. 4W of Subarea 4 (commitment to set TAC and
allocate for 1974 at January 1974 Commission Meeting) pro-

posedin 1973(Ann. Rept. Vol.23, p. 81).
10) Further regulation of the herring fishery from the Georges Bank
stock (commitmentfor TAC andallocation for 1974at January
1974 CommissionMeeting) proposed in 1973 (Ann. Rept. Vol.

23, p. 87).
11) Further regulation of the herring fisheryin Div.5Y of Subarea 5
(cammitmentfor TAC and allocation for 1974at January 1974
CommissionMeeting) proposed in 1973(Ann. Rept. Vol. 23, p.

88)
12) Amendment to size limit regulation for herring in Subareas 4
and 5 (addsexemptionof 25 per cent by count)proposedin 1974
(Ann. Rept. Vol.24, p.52).

13) Amendment to size-limit regulation for herring in Subareas 4
and 5 (details exemption procedure) proposedin 1974 (Ann.
Rept. Vol. 24, p. 98).

14) Three herring stocks in Subarea 4 Div. 5Y stock,and Div. 52
and SA6 stock. Regulation of fisheries in the Convention Area
and Statistical Area 6 (TAC and allocationsfor 54 stocksin the
ConventionArea and overallTAC and allocation of wholegroup
of stocks in Subarea 5 and Statistical Area 6 for 1975) proposed

in 1974(Ann.Rept. Vol.24, pp. ,101-104).
15) Amendment to regulation of herring fishery in Div. 5Y of
Subarea 5 (amendsTAC and allocations for 1975set by Proposal
(13)ai June 1974Meeting)proposedin 1974(Ann.Rept. Vol.25,
p. 32).

16) Regulation of herring fishery in Div. 4VWX of Subarea 4
(commitment torevise TAC and allocation for 1976at Special
January 1976 Meeting; procedures for effecting TAC and
allocation for 1976 before normal six-month procedure)roposed

in 1975(Ann.Rept. Vol.25, p. 88).
17) Regulation of herring fishery in Div. 52 of Subarea 5 and
Statistical Area 6 (commitrnent to set TAC and allocation for
1976 at Special January 1976 Meeting; procedures for effecting

TAC and allocation for 1976 before normal six-monthproce-
dure) proposedin 1975(Ann.Rept. Vol.25, p. 89).
18) Regulation of herring fishery in Div. 5Y of Subare5(commit-
ment to set TAC and allocation for 1976at Special January

1976 Meeting; procedures for effecting TAC and allocation for GULF or MAINE t31

1976before normal six-month procedure)proposed in1975(Ann.
Rept. Vol. 25, p. 90).
19) Div. 4VW(a)and Div. 4XW(b) stocks of herring. Regulation of
fisheries by catch quota in Convention Area and Statistical

Areas Oand 6 (for 1976;TACs and allocations for49 stocks(first
tier); TACSand allocations forwholegroup of stocksin Subarea
5 and Statistical Area 6) proposed in1975(Ann. Rept. Vol. 25,
pp. 94-96).

20) Regulation of herring fisheries by catch quota in Div. 52 of
Subarea 5 and in Statistical Area 6 (for 1976; TAC and
allocation for 1 January-30 June 1976; TAC for 1 January-31
December 1976; restricted in 1January-30 June to purse seines
or vessels less than 110 feet (33.5m.);exemption 7.5 per cent
after 72 hours fishing; commitment to set TAC and allocation
for 1 July-31 December 1976 and bring into force 1 July 1976;
commitment to adult stock levels and TACs for future years)
proposedin 1976(Ann.Rept. Vol. 26, p. 67).

21) Regulation of herring fisheries by catch quota in Div. 5Y of
Subarea 5 (for 1976; set TAC and allocation but allows adjust-
ment at June 1976 Annual Meeting which becomes effective
when notified of amounts by Depository Government)proposed
in 1976(Ann.Rept. Vol. 26, p. 68).

22) Regulation of herring fisheries by catch quota in Div. 4VWX of
Subarea 4 (commitment to setTAC and allocationsat June 1976
Annual Meeting and to become effective when notified of
amounts by Depository Government)proposed in 1976 (Ann.

Rept. Vol. 26, p.69).
23) Amendments to size limit for herring in Subareas 4 and 5 (size
limit 9 inches (22.7 cm) in Div. 4Wb and 4Xa; exemptionof 10
percent by weigbt or 25percent by count after 48 hours fishing)

proposedin 1976(Ann. Rept. Vol.26, p. 70).
24) Amendmentto regulation of fisheriesby catch quota in Subareas
2, 3, 4, and 5, and Statistical Area 6 (national reallocations for
1976 of herring in Div. 4XW(h), and Div. 5Z and Statistical

Area 6) proposed in1976(Ann. Rept. Vol. 26, p. 114).
25) Herring in Div. 4VW(a)and Div. SY. Regulation of fisheriesby
catch quota in the ConventionArea and Statistical Areas Oand 6
[for 19773;TACs and national allocations for51stocks [firsttier]
proposed in1976(Ann.Rept. Vol. 26, pp. 115-118).

26) Regulation of the herring fishery in Div.5Z of Subarea 5 and
Statistical Area 6 (for 1977; TAC and allocations; herring
"window" area, 15 August-30 September for pelagic gear only;141 ANNEXES ToCouNïER-MEMow OF THEuNmm STATES 239

exemption 5 per cent for incidental non-allocated herring and 1
per cent for incidental non-allocated other species) proposed in
1976(Ann.Rept. Vol.27, p. 37-38).

27) Herring in 4XW(b)and 52 and 6. Regulation of the fisheries by
catch quota in the ConventionArea and Statistical Area 6 (for
1977; TACS and allocations for nine stocks (first-tier) deferred
from 1976Annual Meeting (proposed8)and TAC and allocation
for group of stocks (collectively)(second-tier)in Subarea 5 and
Statistical Area 6)proposedin 1976(Ann. Rept. Vol.27, p. 45).

After extending its fisheries jurisdiction to 200 nautical miles, Canada
recognized explicitly or implicitly the separateness of herring stocks in
Subareas 4 and 5in the followingactions:

1) TACs for 4W(a) and 4XW(b)stocks for 1978and 1979and for
4V stock for July 1977-June 1978and for July 1978-June 1979
(CAFSAC Ann. Rept. Vol. 1,pp. 37-38).

2) TACs for 4V stock for July 1979-June 1980and for 4W(a) and
4XW(b)stocks for 1979(CAFSAC Ann. Rept. Vol.2, p. 33).

3) TACs for 4W(a) and 4XW(b)stocks for 1980 and for 4V stock
for July 1980-June 1981(CAFSAC Ann. Rept. Vol. 3,p. 12).

4) TACs for 4W(a) and 4XW(b)stocks for 1981and for 4V stock
for July 1981-June 1982(CAFSAC Ann. Rept. Vol.4, p. 13).

5) TACs for 4W(a) and 4XW(b) stocks for 1982 (CAFSAC Adv.
Doc. 82/10).

6) TACS for 4V stock for July 1982-June 1983(CAFSAC Adv.
Doc. 82/16). Appendix C toAmex 1

HADDOCK

Separate haddock stocks in Subareas 4 (off Nova Scotia) and 5 (off
New England) were recognized explicitly or implicitly in the following

actions taken by ICNAF '.

1) Regulation of the haddock trawl fishery in Subaiea 5(4-112inch
mesh size, wet; 5,000 pound or 10 per cent trip exemption;
savings gear)proposed 1952(Ann. Proc.Vol. 2, p. 14).

2) Amendments to regulation of the haddock trawl fishery in
Subarea 5 (wet and dry mesh measurements) proposed 1953
(Ann. Proc. Vol. 3, p. 14).

3) Regulation of thecod and haddock trawl fisheries in Subarea 3,
4 and 5: for Subarea 5 the regulations substitute for the ones

adopted in 1952 and 1953(4-112inch mesh size for Subareas 4
and 5;4 inch mesh size forSubarea 3; 5,000poundor 10percent
trip exemption; savings gear)proposed 1955 (Ann. Proc. Vol. 5,
pp. 11-12).

4) Amendments to regulation of the codand haddock trawl fisheries
in Subareas 3,4, and 5 adopted in 1955(abeyance topara. IV for
Subareas 3 and 4; 5,000 pound or 10 per cent 12-month

exemption in Subarea 5 proposed in 1956 (Ann. Proc. Vol. 6, p.
16).

5) Amendments to regulations of the cod and haddock trawl
fisheries in Subareas 3, 4, and 5 adopted in 1955 and 1956
(attaching savings gear) proposed in 1957(Ann. Proc. Vol. 7, p.
17).

6) Regulations of cod, haddock and nounder trawl fisheries in
Subarea 4; substitutes for 1955, 1956and 1957 proposais(4-1/2

inch meshsize; mesh measurements; 5,000pound or 10 per cent
trip exemption; savings gear)proposed in 1961 (Ann. Proc. Vol.
11,p. 17-18).

'Fora moredetaileddiscussioofthemanagement activitieosftheUnitedStates
and Canada under the InternationalConventionfor the NorthwestAtlantic

Fisheriesee Annex 3,Vol.II.121 ANNEXESTOCOUNTER-MEMORIALOFTHEUNmD STATES 241

7) Amendment to regulation of cod ,addock and flounder trawl
fisheriesin Subarea 4 adopted in 1961(savingsgear) proposedin
1963(Ann. Proc. Vol. 13,p. 16).

8) Amendments to regulation ofcod and haddock trawl fisheriesin
Subarea 5 adopted in 1955(savingsgear)proposed in1963(Ann.
Proc. Vol. 13,p. 16-17).

9) Amendment to a regulation of the cod, haddock and flounder
trawl fisheriesin Subarea 4 adopted in 1961(Manila twine and
ICNAF gauge as standard) proposed in 1964 (Ann. Proc. Vol.
14,pp. 16-17).

10) Amendment to regulationof the codand haddock trawl fisheries
in Subarea 5 adopted in 1955(Manila twine and lCNAF gauge
as standard) proposedin 1964(Ann. Proc.Vol. 14,p. 17).

11) Amendment to regulation for cod, haddock, and flounder in
Subarea 4 adopted in 1961(extendsexemption)proposedin 1965
(Ann. Proc. Vol. 15,p. 19).

12) Amendment to regulation forcodand haddock in Subareas 3
and 4 adopted in 1955 (extends exemption) proposed in 1965
(Ann. Proc. Vol. 15,p. 19).

13) Codificationof regulations in Subarea 1, 2, 3, and 4 proposedin
1961, with amendments adopted in 1963, 1964, and 1965
(proposedin 1965)(Ann. Proc.Vol. 15,pp. 19-24).

14) Amendmentsto trawl regulations adopted forSubarea 4 in 1955,
1961, 1964.and 1965;and in Subarea 5 in 1964(5 kg. pressure
or pull; measure 20 consecutive meshesof codend) proposed in
1967(Ann. Proc.Vol. 17,p. 20).

15) Regulation of haddock fisheryin Subarea 5 (for 1970, 1971,and
1972, catch quota 12,000 metric tons, closed season and area)
proposedin 1969(Ann. Proc.Vol. 19,p. 27).

16) Regulation of haddock fisheryin Div.4X of Subarea 4 (for 1970,
1971,and 1972,catch quota of 18,000metric tons, closedseason
and area) proposedin 1969(Ann. Proc.Vol. 19).

17) Regulation ofcd, haddock, and yellowtail flounder trawlfisher-
ies in Subarea 5; substitutes for regulation adopted in 1955,
1956, 1957, 1963, 1964,and 1967 (adds yellowtail flounder)
proposedin 1970(Ann. Proc.Vol. 20, p. 27).

18) Amendment to regulation adopted forSubarea 5 (deletes alter-
native gauges, 130-mm.mesh size for yellowtail flounder)pro-
posedin 1971(Ann. Proc. Vol. 21,pp.30-31).242 GULF OF MAINE [31

19) Further regulation of haddock fishery in Subarea 5 [review
annually, catch quota of 6,000 tons,closedseason(March, April,

May)and area] proposedin 1971(Ann. Proc.Vol.21, pp. 32-33).
20) Further regulation of haddock fisheryin Div. 4X of Subarea 4
[for 1972,catch quota of 9,000 tons,closedeason(March, April,

May) and new area] proposed in 1971 (Ann. Proc. Vol. 21, pp.
33-34).
21) Regulation of haddock fishery in Div. 4W of Suharea 4 (for
1972, catch quota of 4,000 tons) proposedin 1971 (Ann. Proc.

Vol. 21, pp. 34-35).
22) Amendment to regulation adopted forSubarea 4 in 1965(deletes
alternative gauges)proposedin 1971(Ann. Proc. Vol.21, p. 31).

23) Amendment to haddockquota regulation in Subarea 5(for 1973,
new boundaries for westerly area for closure)proposed in 1972
(Ann. Proc. Vol. 22, p. 59).

24) Amendment to haddock quota regulation in Subarea 5 (6,000-
ton quota for 1973)proposedin 1972(Ann. Proc.Vol. 22, p. 60).

25) Amendments to haddockquota regulation in Div.4X of Suharea
4 (9,000-ton quota for 1973, closed season and area for 1973)
proposed in1972(Ann. Proc. Vol. 22, p. 61).

26) Amendment to haddock quota regulation in Div. 4W of Subarea
4 (4,000-ton quota for 1973) proposed in1972 (Ann. Proc. Vol.
22, p. 62).

27) Amendment to regulation of the cod, haddock, and flounder
trawl fisheriesin Subareas 4 [114-mm.(4-112 inches)mesh size
in netting other than codend; 130-mm.(5-118 inches)mesh size
in codend]proposedin 1972(Ann. Proc.Vol. 22, p. 64).

28) Amendment to regulation of cod,haddock. and yellowtailfloun-
der in Subarea 5 1114-mm.(4-112 inches) mesh size in netting
other than codend; 130-mm.(5-118inches)mesh size in codend]
proposed in1972(Ann. Proc. Vol. 22, p. 65).

29) Further regulation of the haddock fisheryin Div.4X of Suharea
4 (prohibits directed fishery; exemption;closed area and season
for 1974)proposed in1973(Ann. Rept. Vol. 23, p. 78).

30) Further regulation of the haddock fisheryin Div.4V and 4W of
Suharea 4 (prohibits directed fishery; exemption)proposed in
1973(Ann.Rept. Vol. 23, p. 79).

31) Further regulation of the haddock fisheryin Suharea 5(prohibits
directed fishery; exemption;closed area and season for 1974)
proposedin 1973(Ann. Rept. Vol.23, p. 86).141 ANNEXESTOCOUKTBR-MEMORIAL OFTHE UNITEDSTAïES 243
32) Amendment to regulation for cod, haddock, and flounder in

Subarea 4, adopted in 1965 (details exemptions) proposed in
1974(Ann.Rept. Vol. 24,p. 93).

33) Amendment to regulation for cod, haddock, and yellowtail
flounder trawl fisheries in Subarea 5 (details exemptions)pro-
posedin 1974(Ann.Rept. vol.24, p. 94).

34) Regulation of haddock fishery in Div. 4X of Subarea 4 (closed
area, March, April and May, restricted to pelagicgear)proposed
in 1974(Ann. Rept. Vol.24, p. 95).

35) Regulation of haddock fishery in Subarea 5 (commitment to

determine exemption at Special Meeting, restricted to pelagic
gear March, April, and May in closed areas) proposed in 1974
(Ann. Rept. Vol.24, p. 96).

36) Regulation of haddock fishery in Div. 4VW of Subarea 4
(commitment todetermine exemption at Special Meeting) pro-
posedin 1974(Ann.Rept. Vol.24, p. 97).

37) (Haddock in Div. 4VW, 4X, and Subarea 5 included in:)
Regulation of fisheriesin the Convention Area and Statistical

Area 6 (TAC and allocations for 54 stocksin the Convention
Area and overallTAC and allocation of wholegroup of stocksin
Subarea 5 and Statistical Area 6 for 1975)proposed in 1974
(Ann. Rept. Vol.24, pp. 101-104).

38) Amendment to regulation of haddock fishery in Div. 4X of
Subarea 4 (extendsclosedseasonto February, March, April, and
May, and closedarea to includeLaHave Bank)proposedin 1974

(Ann. Rept. Vol.25, p. 33).

39) Amendment to regulation of haddock fishing in Div. 4VW of
Subarea 4 (determines exemptionat 5,000 Ib. or 10 per centby
weight) proposedin 1974(Ann; Rept. Vol.25, p. 34).

40) Regulation of haddock fishery inDiv.4X of Subarea 4 (5,000Ib.
or 10 per cent by weight exemption for countriesnot mentioned
in 1975quota allocations for haddock in Div. 4X as determined
by Proposal (13)at June 1974 Meeting)proposedin 1974 (Ann.

Rept. Vol.25, p. 35).

41) Amendments to regulation of haddock fishery in Subarea 5
(TAC and allocations for 1975;exemption 5,510 or1 per cent by
weight; pelagicgear only in closedareas and season)proposedin
1974(Ann. Rept. Vol.25, p. 36).244 GULFOF MNNE 151

42) Further amendment to regulation of haddock fishery in Div.

4VW of Subarea 4 (determines exemptionat 5,510 Ib. or 2,500
kg. or 1 per cent by weight for 1976)proposed in 1975 (Ann.
Rept. Vol.25, p. 86).
43) Regulation of wd and haddock fisheries inDiv.4X of Subarea 4

(determinesexemptionat 5,510 Ib. or 2,500kg. or 1per cent by
weight;closedseason,Marcb, April and, May and closedarea to
exclude La Have Bank) proposedin 1975(Ann.Rept. Vol.25, p.
87).

44) Amendment to regulation of haddock fishery in Subarea 5
(exemption for 1976 5,510Ib. or 2,500kg. or 1per cent; pelagic
gear only in closedareas (a)and (b)and season)proposedin 1975
(Ann. Rept. Vol.25, p. 91).

45) (Haddock in Div.4W and Subarea 5 included in:)Regulation of
fisheries by catch quota in Convention Area and Statistical
Areas Oand 6 (for 1976;TACs and allocationsfor 49 stocks (first
tier); TACs and allocationsfor wholegroup of stocks in Subarea
5 and Statistical Area 6)proposed in 1975 (Ann. Rept. Vol. 25,
pp. 94-96).

46) Amendment to regulation for cod, haddock,and flounder trawl
fisheries in Subarea 4 (exemptionof 2,000 kg. (5,510 Ib.) or 10
percent by weight) proposedin 1975(Ann. Rept. Vol.26, p. 40).

47) Amendment to regulation for cod, haddock, and yellowtail
flounder trawl fisheries in Subarea 5 (exemption of 2,500 kg.
(5,510Ib.)or 10percent by weight)proposedin 1975(Ann.Rept.
Vol.26, p. 41).

48) (Haddock in Div. 4X included in:) Amendment to regulation of
fisheries by catch quota in Convention Area and Statistical
Areas Oand 6 (for 1976; TAC and allocations for nine stocks
deferred from 1975Annual Meeting and revised allocations for
19stocksagreed at 1975Annual Meeting; revisedallocation for

the group of stocksin Subarea 5 and Statistical Area 6)proposed
in 1975(Ann, Rept. Vol.26, p. 42-43).
49) Further amendment to regulation of haddock fishery in Div.
4VW of Subarea 4 (determinesexemption for 1977)proposedin

1976(Ann. Rept. Vol.26, p. 110).
50) Further amendment to regulation of haddock fishery inSubarea
5(change from1976exemption toannual exemption)proposedin

1976(Ann.Rept. Vol.26, p. 113).
51) (Haddock in Div. 4VW, Div. 4X, and Subarea 5 included in:)
Regulation of fisheries bycatch quota in the Convention Area(61 ANNEXESTO COUNTER-MEMORIALOF THE UN^ STATES 245

and Statistical Areas O and 6 [for 1977; TACs and national
allocations for51 stocks(first tier)]proposedin 1976(Ann. Rept.
VOL26, pp. 115-118.

After extending its fisheriesjurisdiction to 200 nautical miles, Canada
recognizedexplicitly or implicitlythe separateness of the haddock stocks
in Subareas 4 and 5 in the followingactions:

1) TACs for 4VW, and 4X stocks for 1978(CAFSAC Ann. Rept.
Vol. 1,p. 23).

2) TACs for 4VW, and 4X stocks for 1979(CAFSAC Ann. Rept.
Vol. 1,p. 23).

3) TACs for 4VW, and 4X stocks for 1980(CAFSAC Ann. Rept.
Vol.2, p. 21).
4) TACs for 4VW, and 4X stocks for 1981(CAFSAC Ann. Rept.
Vol. 3, p. 10).

5) TACs for 4VW, and 4X stocks for 1982(CAFSAC Ann. Rept.
Vol.4, p. 11).

6) TACs for 4VW, and 4X stocks for 1983(CAFSAC Adv. Doc.
82113). AppeodixD to Annex 1

SILVER HAKE

Separate stocksof silverhake in Subareas 4 (offNova Scotia) and 5 (off
New England) were recognized explicitly or implicitly in the following
actions taken by ICNAF ':

1) Regulation of silver hake fishery in Div. 5Y of Subarea 5
(10,000-ton quota for 1973, national allocation, daily catch
record)proposed in1972(Ann. Proc.Vol. 22, p. 55)

2) Regulation of silver hake fishery in Subdiv. 5Ze of Subarea 5
(80,000-ton quota for 1973, national allocation, daily catch
record)proposed in1972(Ann. Proc.Vol. 22, p. 56).

3) Regulation of silver hake fishery fromSouthern New England
stock(Subdiv.5Zwof Subarea 5 and adjacent watersto the West
and south)(80,000-tonquota for 1973, national allocation, daily
catch record)proposed in1972(Ann. Proc.Vol. 22, P. 57).

4) Regulation of the silver hake fisheryin Div. 4V, 4W, and 4X of
Subarea 4 (100,000-ton quota for 1974; national allocation)
proposed in1973(Ann.Rept. Vol. 23, p. 83).

5) Silver hake in 5Y, 5Ze, 5Zw, and 6. Regulatiori of fisheries in
Subarea 5 and Statistical Area 6 (overallTAC 923,000tons and
allocations for 1974;commitment 850,000 tons and allocation for

1975 and commitment for 1976;and species TACS and alloca-
tions; reporting procedures) proposed in 1973 (Ann. Rept. Vol.
24, pp. 27-29).

6) Silver hake in 4VWX, 5Y, 5Ze. 5Zw, and 6. Regulation of
fisheries in the Convention Area and Statistical Area 6 (TAC
and allocations for54 stocksin the ConventionArea and overall
TAC and allocation of whole group of stocljsin Subarea 5 and
Statistical Area 6 for 1975)proposed in 1974 (Ann. Rept. Vol.
24, pp. 101-104).

7) Silver hake in 4VWX, 5Y, 5Ze, 5Zw, and 6. Regulation of
fisheries by catch quota in Convention Area and Statistical

' Fora moredetaileddiscussioofthcmanagement activitie osftheUnitedStates
and Canada under the InternationalConventionfor the NorthwestAtlantic
FisheriesseeAnnex 3,Vol.II.[21 ANNEXES TO COUNTER-MEMORW OF THE UNmD STATES 247

Areas O and 6(for 1976;TACs and allocationsfor 49stocks(first
tier); TACs and allocations forwholegroup of stocksin Subarea
5 and Statistical Area 6) proposedin 1975 (Ann. Rept. Vol. 25,
pp. 94-96).

8)Silver hake in 4VWX, 5Ze, 5Zw, and 6. Amendment to
regulation of fisheries by catch quota in Convention Area and
Statistical Areas Oand 6 (for 1976;TAC and allocations fornine
stocks deferred from 1975Annual Meeting and revised alloca-
tions for 19 stocks agreed at 1975'Annual Meeting; revised
allocation for the group of stocks in Subarea 5 and Statistical

Area 6)proposedin 1975(Ann.Rept. Vol.26, pp. 42-43).
9) Regulation of silver hake in Subarea 4 (60mm. (manila) mesh
size, exemption, codend covers) proposed in 1976 (Ann. Rept.

Vol.26, p. 109).
10) Silver hake in 5Y, 5Ze, 5Zw, and 6. Regulation of fisheries by
catch quota in the ConventionArea and Statistical AreasOand 6
[for 1977;TACs and national allocations for51stocks (first tier)]

proposedin 1976(Ann. Rept. Vol.26, pp. 115-118).
11) Regulation of silver hake fisheries in Div. 52 of Subarea 5 and
Statistical Area 6 (restricts fisheries to "window" Area A, 1
January-31 March; Area B. 1 January-30 April; and Area C, 1

April-31 August; exemption clauses)proposed in 1976 (Ann.
Rept. Vol.27, p. 36.)
12) Silverhake in 4VWX. Regulation of the fisheriesby catch quota
in the Convention Area and Statistical Area 6 for 1977;TACs

and allocations for nine stocks (first-tier) deferred from 1976
Annual Meeting (proposed eight)and TAC and allocation for
group of stocks (collectively) (second-tier)in Subarea 5 and
Statistical Area 6) proposed in 1976(Ann.Rept. Vol.27, p. 45).

After extending its fisheries jurisdiction to nautical miles, Canada
recognized explicitly or implicitlythe separatenessof silverhake stocks in
subareas 4 and 5 in the followingactions:

1) TAC for 4VWX silver hake stock for 1978and 1979(CAFSAC
Ann. Rept. Vol. 1,p. 23).
2) TAC for 4VWX silver hake stock for 1980(CAFSAC Ann.
Rept. Vol. 2,. 21).

3) TAC for 4VWX silver hake stock for 1981 (CAFSAC Ann.
Rept. Vol. 3p. 10).

4) TAC for 4VWX silverhake 4 T white hake for 1982(CAFSAC
Ann. Rept. Vol.4, p.11). Appendk Eto Annex1

REDHAKE

Separate stocks of red hake in Subareas 4 (off NovaScotia) and 5 (off

New England) were recognizedexplicitly or implicitlywith the following
actions taken by ICNAF ':

1) Regulation of red hake fishery from Southern New England
stock (Subdiv.5Zw of Subarea 5 and adjacent waters to the West
and south)(40,000-tonquota for 1973, national allocation, daily
catch record)proposedin 1972(Ann. Proc. Vol. 22, p. 58).

2) Red hake in 52 (West of 69 degrees) and 6. Regulation of
fisheries in Subarea 5 and Statistical Area 6 (overall TAC

923,000 tons and allocations for 1974;commitment 850,000 tons
and allocation for 1975 and commitmentfor 1976;speciesTACs
and allocations; reporting procedures) proposed in 1973 (Ann.
Rept. Vol. 24, pp. 27-29).

3) Regulation of red hake, argentine, and other finfish fisheries in
Subarea 5 and Statistical Area 6 (speciesTACs and allocations
for 1974 completing Table in Proposal (1) of October 1973

CommissionMeeting) proposed in 1974 (Ann. Rept. Vol. 24,p.
53).

4) Red hake in 5Z (East of 69 degrees)and 52 (Westof 69 degrees)
and 6. Regulation of fisheries in the Convention Area and
Statistical Area6 (TAC and allocations for 54 stocks in the
ConventionArea and overallTAC and allocationof wholegroup

of stocksin Subarea 5 and Statistical Area 6 for 1975)proposed
in 1974(Ann. Rept. Vol. 24, pp. 101-104).

5) Red hake in SZe, 5Zw, and 6,and silverhake in 4VWX, 5Y,
5Ze, SZw, and 6. Regulation of fisheries by catch quota in
ConventionArea and Statistical Areas Oand 6 (for 1976;TACs
and allocations for 49 stocks(first tier);TACSand allocations for
whole group of stocks in Subarea 5 and Statistical Area 6)

proposed in1975(Ann.Rept. Vol. 25,pp. 94-96).

'Fora moredetaileddiscussioofthemanagementactivities otheUnitedStates
and Canada under the InternationalConventionfor the NorthwestAtlantic
Fisheries,e Annex 3,Vol.II.[21 ANNEXESTO COUNTER-MEMORLU OF THEUNmD STATES 249
6) Red hake in 5Ze, 5Zw, and 6. Amendment to regulation of

fisheries by catch quota in Convention Area and Statistical
Areas Oand 6 (for 1976; TAC and allocations for nine stocks
deferred from 1975 Annual Meeting and revised allocations for
19stocks agreed at 1975Annual Meeting; revisedallocation for
the group ofstocksin Subarea 5 and Statistical Area 6)proposed
in 1975(Ann. Rept. Vol.26, pp. 42-43).

7) Red hake in 5Ze, 5Zw, and 6. Regulation of fisheries by catch
quota in the ConventionArea and Statistical AreaO and 6 [for
1977; TACS and national allocations for 51 stocks (first tier)]
proposedin 1976(Ann.Rept. Vol.26, pp. 115-118).

8) Regulation of red hake fisheries in Div. 5Z of Subarea 5 and
Statistical Area 6 (restricts fisheries to "window" Area A, 1
January-31 March; Area B, I January-30 April; and Area C, 1

April-31 August; exemption clauses)proposed in 1976 (Ann.
Rept. Vol.27, p. 36). AppendixF toAnnex 1

REDFISH

Separate redfish stocksin Subareas 4 (off NovaScotia)and 5 (offNew
England) were explicitly or implicitly recognizedin the followingactions
taken by ICNAF ':

1) Regulation of the fishery for redfish in Subarea 5 (30,000-ton
quota for 1973;national allocation)proposedin 1973(Ann. Rept.

Vol. 23,p. 35).

2) Regulation of the redfish fishery in Div. 4V, 4W, and 4X of
Subarea 4 (40,000-ton quota for 1974; national allocation)
proposedin 1973(Ann.Rept. Vol.23, p. 82).

3) Redfish in Subarea 5. Regulation of fiiheries in Subarea 5 and
Statistical Area 6 (overallTAC 923,000 tonsand allocations for
1974; commitment 850,000 tons and allocations for 1975and
commitment for 1976; speciesTACS and allocations; reporting

procedures)proposedin 1973(Ann.Rept. Vol. 24, pp. 27-29).

4) Redfish in 4VWX, and in 5. Regulation of fisheries in the
Convention Area andStatistical Area 6 (TACand allocations for
54stocksin the Convention Areaand overallTAC and allocation
of wholegroup of stocks in Subarea 5 and Statistical Area 6 for
1975)proposedin 1974(Ann. Rept. Vol. 24, pp. 101-104.

5) Redfish in 5. Regulation of fisheries by catch quota in the

ConventionArea and Statistical Areas Oand 6 (for 1976;TACS
and allocations for 49 stocksin Subarea 5 and Statistical Area 6)
proposed in1975(Ann.Rept. Vol. 25, p. 94-96).

6) Redfish in 4VWX. Amendment to regulation of fisheries by
catch quota in Convention Area and Statistical Areas Oand 6
(for 1976; TAC and allocations for nine stocks deferred from

1975 Annual Meeting and revised allocations for 19 stocks
agreed at 1975Annual Meeting; revisedallocation for the group
of stocks in Subarea 5 and Statistical Area 6) proposed in 1975
(Ann. Rept. Vol. 26, pp. 42-43).

-
'Fora moredetaileddiscussionofthemanagementactivities of theUnitedStates
and Canada under the InternationalConventionfor the NorthwestAtlantic
FisheriesseeAnnex 3,Vol.II.121 ANNEXESTO COUNTER-MEMORIALOFTHE UNITEDSTATES 251

7) Redfish in 4VWX. and in 5. Regulation of fisheries by catch
quota in the ConventionArea and Statistical AreasO and 6 [for
1977; TACS and national allocations for 51 stocks (first tier)]
proposedin 1976(Ann.Rept. Vol.26, pp. 115-118).

After extending its fisheriesjurisdiction to 200 nautical miles, Canada

rewgnized explictly or implicitly the separateness of redfish stocks in
subareas 4 and 5 in the followingactions:

1)TACs for redfish in 4RST and in 4VWX for 1978 and 1979
(CAFSAC Ann. Rept. Vol. 1,p. 23).

2) TAC5 for redfish in 4RST and in 4VWX for 1980(CAFSAC
Ann. Rept. Vol.2, p. 21).

3) TACS for redfish in 4RST and in 4VWX for 1981 (CAFSAC

Ann. Rept. Vol. 3, p. 10).

4) TAC$ for redfish in 4RST and in 4VWX for 1982(CAFSAC
Ann. Rept. Vol. 4,p.11).

5) TACs for redfish in 4RST and in 4VWX for 1983 (CAFSAC
Adv. Doc. 82/13). AppeadixG to Aooex1

YELLOWTAIL FLOUNDER

Separate yellowtail flounder stocksin Subareas 4 (offNova Swtia) and
5 (off NewEngland) as well as separate stocksof other flounder such as

witch flounder, winter flounder, andAmerican plaice, were recognized
explicitly or implicitlyin the followingactions taken by ICNAF ':
1) Regulations of cod, haddock, and flounder trawl fisheries in

Subarea 4; substitutes for 1955, 1956, and 1957proposals(four-
and-one-half inch mesh size; mesh measurements; 5,000 pound
or 10 per cent trip exemption; savingsgear) proposed in 1961
(Ann. Proc. Vol. 11,pp. 17-18).

2) Amendment to regulation of cod ,addock, and flounder trawl
fisheriesin Subarea 4 adopted in 1961(savingsgear)proposedin
1963(Ann. Proc.Vol. 13,p. 16).

3)Amendment to a regulationof the cod ,addock, and flounder
trawl fisheries in Subarea 4 adopted in 1961(Manila twine and
ICNAF gauge as standard) proposed in 1964 (Ann. Proc. Vol.
14,pp. 16-17).

4) Amendment to regulation for cod, haddock, and flounder in
Subarea 4 adopted in 1965(extendsexemption)proposed in1965

(Ann. Proc. Vol. 15,p. 19).
5)Codificationofregulations in Subareas 1,2,3, and 4 proposed in

1961, with amendments adopted in 1963, 1964 and, 1965
(proposedin 1965)(Ann. Proc.Vol. 15,pp. 19-24).

6) Amendments to trawl regulations adopted forSubarea 4 in
1955, 1961, 1964,and 1965; and in Subarea 5 in 1964 (5 kg.
pressure or pull; measure 20 consecutive meshes or codend)
proposed in1967(Ann. Proc.Vol. 17,p. 20).

7) Regulation of yellowtail flounderin Subarea 5 (for 1971, catch
quotas of 16,000 tons east of 69 degrees West and 13,000 tons
westof 69 degrees West)proposedin 1970(Ann.Proc. Vol.20,p.
27).

'Fora moredetaileddiscussiofthemanagementactivitiesoftheUnitedStates
and Canada under the InternationalConventionfor the NorthwcstAtlantic
FisherieseeAnnex 3,Vol.II. ANNEXESTO COUNTER-MEMONALOF THE UN17EDSTATES 253
t21
8) Regulation of cod, haddock, and yellowtail flounder trawlfisher-
ies in Subarea 5: substitutes for regulation adopted in 1955,
1956, 1957, 1963, 1964,and 1967 (adds yellowtail flounder)

proposedin 1970(Ann. Proc. Vol.20, p. 27).
9) Further regulation of yellowtail flounder in Subarea 5 (review

annually, catch quota of 16,000tons east of 69 degrees Westand
10,000 tons Westof 69 degrees West) proposed in 1971 (Ann.
Proc. Vol.21, p. 29-30).

10) Amendment to regulation adopted for Subarea 5 (deletes alter-
native gauges, 130-mm mesh size for yellowtail flounder)pro-
posedin 1971(Ann. Proc. Vol.21, pp. 30-31).
11) Amendment to regulation adopted for Subarea 4 in 1965(deletes

alternative gauges)proposed in 1971(Ann. Proc.Vol. 21, p. 31).
12) Further regulation of yellowtail flounder fisheryeast of 69
degrees West in Subarea 5 (16,000-tonquota for 1973, national

allocation, daily catch record) proposedin 1972(Ann. Proc. Vol.
22, p. 53).
13) Further regulation of yellowtail flounder fisheryWest of 69

degrees West in Subarea 5 (10,000-tonquota for 1973,national
allocation,daily catch record)proposedin 1972(Ann. Proc.Vol.
22, p. 54).

14) Amendment to iegulation of the cod, haddock, and flounder
trawl fisheries in Subarea 4 [114-mm.(four-and-one-halfinches)
mesh size in netting other than codend; 130-mm.(five-and-one-
half inches) mesh size in codend] proposedin 1972 (Ann. Proc.
Vol. 22, p. 64).

15) Amendment to regulation of cod, haddock,and yellowtailfloun-
der in Subarea 5 [114-mm.(four-and-one-halfinches)mesh size
in netting other than codend; 130-mm. (five-and-one-halfinches)
meshsize incodend]proposedin 1972(Ann. Proc.Vol.22, p.65)

16) Regulation of the fishery for flounders (except yellowtail)from
the Southern New England stock (25,000-tonquota for 1973,
national allocation)proposedin 1973(Ann. Rept. Vol.23, p. 32).

17) Regulation of the yellowtail, witch,and American plaice fishery
in Div.4V, 4W, and 4X of Subarea 4 (32,000-tonquota for 1974;
national allocation) proposedin 1973(Ann. Rept. Vol.23, p. 84).

18) Subarea 5 (East of 69 degrees) and Subarea 5 (West of 69
degrees) yellowtail stocksand other flounders in Subarea 5 and
Statistical Area 6. Regulation of fisheries in Subarea 5 and
Statistical Area 6 (overallTAC 923,000 tons and allocations for254 GULF OF MAINE DI

1974; commitment 850,000 tons and allocation for 1975 and
wmmitment for 1976; species TACs and allocations; reporting
procedures)proposedin 1973(Ann. Rept. Vol. 24, pp.27-29).

19) Amendment to regulation for cod, haddock, and flounderin
Subarea 4, adopted in 1965 (details exemptions) proposed in
1974(Ann.Rept. Vol. 24, p. 93).

20) Amendment to regulation for cod, haddock, and yellowtail
flounder trawl fisheries in Subarea 5 details exemptions)pro-
posedin 1974(Ann.Rept. Vol. 24,p. 94).

21) Amendments to yellowtail flounder fisheryin Subarea 5 Westof
69 degrees West and Statistical Area 6 (commitment to deter-
mine TAC and allocation at Special Meeting) proposed in 1974
(Ann. Rept. Vol. 24, p. 100).

22) Yellowtail in Subarea 5 (East of 69 degrees) and Subarea 5
(West of 69 degrees) and Subarea 6, yellowtail, witch, and
American plaice (combined) in Div. 4VWX, and flounders
(except yellowtail)in Subarea 5 and 6. Regulation of fisheries in
the Convention Area and Statistical Area 6 (TAC and alloca-
tions for 54 stocks in the ConventionArea and overallTAC and
allocation of wbole group of stockin Subarea 5 and Statistical
Area 6 for 1975)proposed in1974(Ann. Rept. Vol.24, pp. 101 -

104).
23) Further amendments to regulation of yellowtailflounder fishery
in Subarea 5 Westof 69 degrees Westand Statistical Area 6 (sets

TAC and allocation for 1975)proposedin 1974(Ann. Rept. Vol.
25, p. 30).
24) Amendment to regulation of yellowtail flounder fishery in
Subarea 5 east of 69 degrees West[amendsTAC and allocations

for 1975set by proposal(13)at June 1974 Meeting]proposedin
1974(Ann. Rept. Vol. 25, p. 31).
25) Yellowtailin Subarea 5(East of degrees)andSubarea 5(Westof
69 degrees) and Subarea. 6, flounder in 4VWX. and flounder

(exceptyellowtailin Subareas 5 and 6. Regulationof fisheriesby
catch quota in Convention Area and StatisticalAreas O and 6
(for 1976;TACSand allocations for49 stocks (first lier); TACs
and allocations for whole group of stocks in Subarea 5 and
Statistical Area 6) proposedin 1975(Ann.Rept. Vol. 25, pp.94-
96).

26) Amendment to regulation forcod,haddock, and flounder trawl
fisheriesin Subarea 4 (exemptionof 2,500kg. 5,510Ib.)or 10per
cent by weight)proposed in1975(Ann.Rept. Vol. 26, p. 40).141 ANNEXES ToCouNTER-MEMo R ImîHuNmD STATES 255

27) Amendment to regulation for cod, haddock,and yellowtail
flounder trawl fisheries in Subarea 5 (exemption of 2,500kg.
(5,510 Ib.)orIOper cent by weight)proposedin 1975(Ann.Rept.
Vol.26, p. 41).

28) (Haddock in Div 4X included in:) Amendment to regulation of
fisheries by catch quota in Convention Area and Statistical
Areas O and 6 (for 1976;TAC and allocations for nine stocks
deferred from 1975 Annual Meeting and revised allocations for
19 stocksagreed at 1975Annual Meeting; revisedallocation for

the group of stocksin Subarea 5and Statistical Area 6)proposed
in 1975(Ann.Rept. Vol. 26, pp. 42-43).
29) Yellowtail in Subarea 5 (East of 69 degrees) and Subarea 5
(West of 69 degrees) and Subarea 6 and flounder (except

yellowtail)in Subareas 5 and 6. Regulation of fisheries hy catch
quota in the ConventionArea and Statisticalreas Oand 6 [for
1977; TACs and national allocations for 51 stocks (first tier)]
proposedin 1976(Ann.Rept. Vol.26, pp. 115-118).

30) (Flounder in 4VW included in:) Regulation of the fisheries by
catch quota in the ConventionArea and Statistical Area 6 (for
1977; TACS and allocations for nine stocks (first-tier) deferred
from 1976 Annual Meeting (proposed eight) and TAC and
allocation forgroup of stocks(collectively)(second-tier)in Subar-
ea 5 and Statistical Area 6) proposed in 1976 (Ann.Rept. Vol.
27, p. 45).

After extending its fisheriesjurisdiction to 200 nautical miles, Canada
recognized explicitly or implicitly the separateness of flounder stocks in
Subareas 4 and 5 in the followingactions:

1) TACs for American plaice in 4T, witch in 4RS, and flatfish in
4VWX for 1978(CAFSAC Ann. Rept. Vol. 1,p. 23).

2) TACs for American plaice in 4T, witch in 4RS, and flatfish in
4VWX for 1979(CAFSAC Ann. Rept. Vol. 1,p. 23).
3) TACs for American plaice in 4T, witch in 4RS, and flatfish in
4VWX for 1980(CAFSAC Ann. Rept. Vol.2, p. 21). .'

4) TACs for American plaice in 4T, witch in 4RS, and flatfish in
4VWX for 1981(CAFSAC Ann. Rept. Vol. 3,p. 10).

5) TACs for American plaice in 4T, witch in 4RS, and flatfish in
4VWX for 1982(CAFSAC Ann. Rept. Vol.4, p. 11).

6) TACs for American plaice in 4T, witch in 4RS, and flatfish in
4VWX for 1983(CAFSAC Adv. Doc. 82/13). SCALLOPS

Separate populationsof scallopsin Subareas 4 (offNova Scotia) and 5
(offNew England)were recognized explicitlyor implicitlyin the following
actions taken by ICNAF ':
1) Regulation of the fishery for sea scallopsin Div. 5Z of Subarea 5

(shellsize 95mm.. average 40 meats per pound)proposedin 1972
(Ann. Proc. Vol. 22, p. 66).
2) Amendment to regulation of sea scallop fishery in Div. 52 of
Subarea 5 (sbellsize 95mm.: 40 meats Der.oun.:exem~tionDer
cent average count) proposédin 1976 (Ann. ~ept. vol. 26; p.
112).

After extending its fisheriesjurisdiction to 200 nautical miles, Canada
recognized explicitly or implicitlythe separateness of scallop resourcesin
Subareas 4 and 5 in the followingCAFSAC advice:

1) Meat counts and/or effort controls for Northumberland Strait,
Brownsand German Banks, and Bay of Fundy stocks for 1980.
(CAFSAC Ann. Rept. Vol. 3, p. 14).

2) Meat counts and/or closedareas for Northumberland Strait and
Bay of Fundy stocks for 1981(CAFSAC Ann. Rept. Vol. 4, p.
15).

'Fora moredetaileddiscussion ofthemanagementactivitiesoftheUnitedStates
and Canada under the InternationalConventionfor the NorthwestAtlantic
Fisheries,ee Annex 3,Vol.II.[II ANNEXESTOCOUNTER-MEMOUALOf THE UNITEDSTATES 257

Appendii1toAnwx 1

PHYTOPLANKTON CONCENTRATIONSTHROUGH THE YEAR

Figures 58 and 59 are Coastal Zone Color Scanner (C.Z.C.S.) Images,
computer-generated fromdata acquired by the Nimbus 7 satellite,
illustrating the annual progressionof phytoplankton production in the
Gulf of Maine area. The images show the surface distribution of
chlorophylland other pigments. Pigment concentrationsare indicated in

color, from deep blue to red.Deep blue represents minimalamounts of
pigment(lessthan .2microgramsperliter),greenrepresents from1.0to 1.2
micrograms of pigment per liter, and red represents more than 20
microgramsof pigment per liter. Fora detailed descriptionof the use of
C.Z.C.S. for the determinationofpigmentsseeH.R. Gordon,D.K.Clark,
J.L. Mueller, and W.A. Hovis, "Phytoplankton Pigments fromthe
Nimbus-7 Coastal Zone Color Scanner: Comparisons with Surface
Measurements", in Science. Vol.210, 1980,pp. 63-66;and H.R. Gordon,
D.K. Clark, J.W. Brown,O.B. Brown, R.H. Evans,and W.W. Broenkow,

"Phytoplankton pigment concentrationsin the Middle Atlantic Bight:
comparison of ship determinations and CZCS estimates", in Applied
Optics,Vol.2,No. 1,1983,pp. 20-36. AppendixJto Annex1

SOURCE OFFIGURE52,~EOGRAPHIC PROVINCES -ADEPI~ED INSTUDY
PUBLISHED BYTHNOVA SCOTIAINSTITUTE OF SCIE(E. L. BOUSFIAND

M. L.H.THOMA"S P,OSTGLAC IH ANGE SNTHEDISTRIBUTI OFLITTORAL
MARINE ~NVERTEBRATESIN TCANADIA ATLANT IEGIONS", IN PROCEEDINGS
OF THNOVA SCOTIAINSTITLTOFSCIENC VE, 27,SUPP.3,1975PP47-60)

[Nor reproduced]

AppendixKto Annex1

BATHYMETR DICTABASEUSED TODEVELOF PIGURES,3,4,5,6,AND 9

[Nor reproduced]

AppendixLto Annex1

RSHESOF THEGULF OFMAINE AREA(H.B.BIGELOWAND W. C. SCHROEDER,
"FISHEOFTHE GULFOFMAINE" N F~SHERYBULLE 7T,IOL53,1953PP.iii-1,
ANDLISTOFCHANGE ISNAMES ANDCLASSIFICATI OPN1,-2)

[Nor reproduced] Volume 1. Part B

Annex 2

PREFACE

This Annex discusses the potential effect of a discharge of oil on the
northeastern portion of Georges Bank upon the marine environment of the
Gulf of Maine area. Chapter 1describes the paths that oil discharged on
the northeastern portion of Georges Bank likely would follow within the
water column. Chapter II discusses the potential effects that such a
discharge would have upon the marine environment of Gwrges Bank and
the southern New England shelf.

Rcpared on the bais ofcontributions from: Dr. Robert L.Edwards.Spe-
cialAssistanttothe AssistantAdministratorof Fisherics.NationalOceanicand
Atmospheric Administration(N.O.A.A.)and Lieutenant Commander Robert
Pawlowski, N.O.A.A. Commissioned Corps, Northeast Fishcries Center,
National Marine Fisheries Service,N.0.A.A.. United StatesDepartment of
Commerce: and Dr. Mark Reed,Mr. Eric L.Anderson, and Dr. MalcolmL.
Spaulding.of Applied Science Associates, Inc. INTRODUCïION

1. The marine environment of Georges Bank is varied and productive,
and contains many different species of fish and shellfish '.The risk of

damage to that environment through an oil-well "blowout'" or other
accidental release of oil has been a source of concern to the United States
since the United States first began to consider the possible development of
ail and gas resources beneath the seabed in that area'. The risks to the

marine environment of a potential blowout, while difficult to assess
precisely, must be taken into consideration in the management and
development of the Gulf of Maine area.

2. If a blowout were to occur on the seabed, the oil would affect the en-
tire water column. If the blowout occurred higher in the water column
(such as at the working level of the rig), it would affect the upper layers of

the water column more than the lower levels. Even a discharge at the
upper layers of the water column would have some effect upon the lower
levels, as a result of vertical-turbulence mixing, sinking of the heavier
fractions of the oil, andncorparation into plankton fecal pellets.

See Annex 1, Vol.1,The Marine Environmentof the Gulf of Maine Area.
'A notoriousoil and gasblowoutoccurredin the Bayof Campeche inthe Gulf of
Mexico on 3 June 1979. The blowout (also known as the IXTOC blowout)
continueduntil it wasbrought under wntrol on 27 March 1980.It wasestimated
that 103 milliongallonsof oil were discharged (of whichonly six millionwere
rewvered).

'The protectionof the marine and coastal environments hasbeen a majorpolicy
objectiveof the United States sincthe passageof the Outer Continental Shelf
Lands Act of 1953 (O.C.S.L.A.).This policy is based upon the legislative
mandatesof both the O.C.S.L.A. [UnitedStates Memorial,Annex 9, Vol. Iland
the National Environmental Policy Act of 1969 (N.E.P.A.) [United States
Memorial, Annex 10, Vol. Il. N.E.P.A. requirestbat al1federal agencieswork
together to ensure the wmbined use of the natural and social sciences inany
planningand decisionmakingthat may affect the environment.Responsesby the

Bureau of Land Management, U.S. Dept.of the Interior, to tbese requirements
include the formation of Environmental Assessment Teams, preparation and
publicationof Environmental ImpactStatements (E.I.S.),and the sponsorshipof
contract studics Thcse studics include environmenl onitoringand asscssmcnts
of the effectsof oil -.d .as o~erations Draft and Ei1.S rclati-e to the Gulf
of Mainearea previously were deposited witthhe Court pursuant 10Article 50(2)
of the Rulesof CourtSee also the Aide-Memoire fromthe Dept.of State to the
Embassy of Canada, dated 10 May 1968. UnitedStates Memorial, Annex 55,

Vol.IV. ln ibis Aide-Memoire,the United States stressedthe needfor protection
of "the living resourcesof the seagainst the pollution and disturbance whicb
might result frommineral exploration andexploitation",and referred specifically
to the needto protectthe fishery resourcesof GeorgesBank. t2-41 ANNEXESTOCOUNTER-MEMOW OFTHE UNITED STATES 261

3. The fate of oil after it is discharged into the marine environmentis
determined bya complex processof weathering, that involvesevaporation,
emulsification, dispersion,dissolution, assimilation, and degradation of
@ the oil. This process is depicted in Figur'.Crude oil contains a wide
range of hydrocarbon compounds, many of which are volatile and water
soluble. Other such compounds are heavy and tar-like, settling to the

bottom as they are weathered. Of these hydrocarbon compounds,many
are known to be toxic or carcinogenic, or both. The complex mixture
varies with each type of crude oil. In view ofthe concentrations of these
various compoundsthat are present inal1crude oil, however,and in view
of the yearsof researchdemonstrating the toxic biologicaleffectsof crude
oil upon marine organisms',scientistsgenerally agree that oilspillsare of
major environmentalconcern.

4. Living marine resources and, in particular, the eggs and lamae of
fish and shellfish, are placed at risk if they are witbin the path of
dischargedoil.The timing and magnitude of the spill,the dynamicsof the
area, and the livingresources presentthere al1combine to determine the
degree of risk. With respect to Georges Bank,tbis risk is consideredto be
substantialbecauseof thegyre in whichwater circulatesaround the Bank,
the strong vertical mixingof the water column, the year-round spawning

that occurs on the Bank, and because the Bank as a whole serves as a
nursery ground for many stocks.

'Becausethe wateroverGeorgesBank isparticularlywell-mixcd vcrtically,oil
dischargedintoheuppcrlayerswouldaffecttheentirewatercolumn.
@ 'Figure1 isreproducedfromR. BurwoodandG.C.Spccrs,"SomeChemicaland
PhysicalAspcctsoftheFateofCrudeOilintheMarineEnvironment" ,dvances
in OrganicGeochemisrry1973,Proceedingsof the 6th Internatiol eetingon
Organic Chcmistry,1973, pp. 1005-1027.See Appcndix D for the sourceof
Figure1. CHAPTER 1

OIL DISCHARGED INTO THE WATER COLUMN OVER THE
NORTHEASTERN PORTION OF GEORGES BANK LIKELY
WOULD REMAIN ON THE BANK AND BE

TRANSPORTED ALONG THE BANK TO THE SOUTHWEST
5. It is possible todetermine the path that oil likely would follow after a
discharge on the northeastern portion of Georges Bank. Thisequires a
knowledge of: (a) the pattern in which water circulatesththeGulf of
Maine area; (b) other water dynamics,such as tides and the degree of

vertical mixing; and (c) the direction and force of winds.
6. Oil dissolved in the water column generally follows the local water
circulation pattern.ecause water over Georges Bank circulates in a
clockwise gyre',it is reasonable to assume that water-soluble fractions of
oil released into the water column on the northeastern portion of Georges

Bank would be transported around the Bank by the gyre.milarly, given
the overall circulation pattern and the water dynamics of Georges Bank,
of the NortheastChannel, and of the Scotian Shelf,it is reasonable to
anticipate that oil discharged into the water column above Georges Bank
would not cross the Nortbeast Channel to tScotian Shelf'.

7. This analysis is confirmed through use of computer models. Such
models combine information on the forces that create water-circulation

'D.J .carratt, "Impact of Spills and Clean-Up Technologyon'LivingNatural
Resources, and Resource-BasedIndustry", SummaryofPhysical, Biological,
Socio-Economic and Other Factors Relevantto Potential Oil Spills in the
Passamaquoddy Region ofthe Bay of Fundy. Fisheries Research Board of
Canada, Tech. Rpt. No. 428, 1974,pp. 141-159.

'See Annex I. Vol. 1,para. 17and Figure 8; United States Memorial,para. 41;
and Canadian Memorial. para.91 and Figure20.
'See Annex 1.Vol.1.Chapter 1,and Figures8 and 9.
At the surface ofthe water column,a layerof oil floats.saccompanied
by "mousse", or a wmbination of oil and water. Thc direction taken by this
surfacelayer, orslick,determinedlargelyby the prevailingwinds.For mostof
theyear,the prevailingwindsoverGeorgesBank woulddrive thisslickout tosea.
The risk of the slick beingdriven towardsthe coastsin the Gulf of Maine area is
minimal,and the oil woubcthoroughlyweatheredin transit. In an article cited
by Canada [Canadian Memorial.para. 17Sbit was indicatedthat, during the one

seasonof the year in whichthe prevailingwindsblowtowardsthc wast, there isa
slight possibilitythat oil floatingat the surfacecould reach the coast of Canada,
two months afterit was released on Georges Bank. E. L. Andersonand M. L.
Spaulding,"Applicationof an Oil Spill Fates Model to Environmental Manage-
ment on GeorgesBank", in The Environmental Professional,Vol. 3, 1981, pp.
119-132.161 ANNEXESTOCOUNTER-MEMORIALOF THE UNITEDSTATES 263

patterns, including tidal, wind, density, and pressure-gradient forces, and
calculate the trajectory of oil discharged from a given point at a given
time of the year. Figures 2 and 3 show plots of computer estimates of the
paths that oil released into the water column would follow after a
discharge at two different points on the northeastern portion of Georges
Bank '.
8. Figures 2 and 3 illustrate the paths that oil would follow ifit were

released at Point X or at Point Y ', respectively, on the northeastern
portion of Georges Bank, at fourdifferent times during the year '.In these
figures, the distribution of oil in the uppermost ten meters of the water
column is depicted in green, and that of the oil in the bottom ten meters is
depicted in red 'These trajectories fdi the bottom ten and uppermost ten
meters of the water column together indicate the movement of the oil
within the water column as a whole.

9. As would be expected from the pattern of water circulation on
Georges Bank, oil released at these points likely would proceed southwest-
ward along the seaward side of Georges Bank. In its progression over
Georges Bank, oil discharged into the uppermost ten meters of the water
column at Point X would cover an area measuring hetween approximately
6,500 square kilometers and 18,900 square kilometers '.Oil in the bottom
ten meters would cover an area of Georges Bank measuring between
approximately 3,000 square kilometers and 5,000 square kilometers. Oil
discharged into the uppermost ten meters of the water column at Point Y
would coveran area of Georges Bank measuring between approximately

'ThebasesforFigures2and3arecontainedinAppendicesA andB,whichdepict
the oil-spill trajectories at, 30, 60, and 90 days after each hypothetical
discharge.Theseestimates assumea dischargeof 68million gallonsofoilover30
days.Alsodepicted ineach caseisthe totalarea that.duringthe90daysfollowing
the discharge,wouldbeaffectedby concentrationsof 50partsperbillionor more.
Appendix C describesthe computermodelsystemusedtodcvelopthe trajectones.
'Point Xis ut41.5" North Latitude,67OWestLongitude,andPoint Y isat 41.9O
North Latitude.66.3OWcstLongitude.
'The dischargedatesusedwereJulianday 32 (1 February)forwinter;day 121(1
May ina non-leapyear)forspring;day213(1Augustina non-leapyear)forsum-
mer; andday 305(1 Novemberina non-leapyear)forfall.
'The trajectory of oil in the Lmttomten meters is of particular importancein
cstimating the effcct upon organismsthat dwell or spawn on the bottom. In
addition,oilassimilated into sedimentsan remain for manyyears, alteringthe
faunal communityand organismbehavior.Oil in the uppermost tenmeters is
importantincstimatingthe effectonmarine organismsthat are pelagic(Le.,swim
or float nearthe surface)intheirrly(i.e.,eggand lamal)stages ofdcvelopment.
Most marine specicsof commercial importancebave pelagic eggsor lamae, or
both.
'This is the area of GeorgesBank, withinthe 100-meter-depthcontour, that
would be subjected to oil concentrationsof 50 parts per billionor greater,
assuminga dischargeof 68milliongallonsover30 days.264 GULFOFMAINE [7-121

3,100 square kilometers and 9,900square kilometers. Oil discharged into
the bottom ten meters of the water wlumn at Point Y wouldcoveran area
of Georges Bank measuringbetween approximately 1,500square kilome-
ters and 5,400square kilometers.

10. Becauseof the water dynamics of Georges Bank,of the Northeast
Channel, and of the Scotian Shelf, oil discharged into the water column
on the northeastern portion of the Bank in ail likelihoodwould not cross

the Northeast Channel to the Scotian Shelf. CHAITER II

01L DISCHARGED INTO THE WATER COLUMNON THE NORTH-
EASTERN PORTION OF GEORGES BANK WOULD DAMAGE THE
MARINE RESOURCES OF THE ENTIRE BANK

11. The pattern in which water circulates in the Georges Bank regime
and the productivity of that regime make it particularly susceptible to
damage from a hydrocarbon discharge. As the final environmentalimpact
statement for Outer Continental Shelf Lease Sale No. 52 'stated:
"Fish spawn on Georges Bank almost ail year long....Timing
would be a critical factor in determining which species or year

class would be impacted. The physical oceanographic conditions
ofthe Georges Bank crest are believed to lead to the retention of
fish eggs and lawae. Any oil spill impacting this area during
spawning could have a significant impact on the particular
resource. . .
Any major impact by an oil spill affecting one element of the
food web wuld result in significant shifts throughout the
ecological system'."

12. The water-soluble fraction of discharged oil, even when diluted in
the ocean, is toxic to marine organisms. Zooplankton are particularly
sensitive';nevertheless, because many species have reproductive cycles of
several weeks ',the recovery of these planktonic populations is relatively
rapid after the spilled oil has dissipated or been transported away from an
area. The eggs and lawae of fish and shellfish, including those of
important commercial species, such as cod, herring, and lobster, also are
particularly sensitive to the effects ofmall amounts of hydrocarbons'.
Because fish usually spawn only once a year, and hecause they are

'Final EnvironmentalImpact Statement,OuterContinentalShelfLeaseSale No.
52, Bureau of Land Management,United States Dept. of the Interior, 1982,
materials previouslyepositedwith the Court pursuant Io Article 5q2) of the
RulesofCourt.
Ibid.p. 263.
'O.G. Mironw. "The Effectof Oil PollutionUponSomeRepresentativesof the
BlackSea Zwplankton", Zoologicheskii Zhurnal.Vol.48, No.7, 1969,pp.980-
984. [In Russian with English abstract.] For English translatsee Canada
Fisheries and MarineService TramlarionSeries,No. 2140.
'The reproductive cycles the timeil takes foran eggto hafchand to growto a
sexuallymature adult.
'H. Rosenthaland D.F .lderdice,"Sublethal ~ffectsof EnvironmentalStress-
ors.Natural and Pollutional.onMarine FishE..sandLarvae".in Journaldthe
(Footnoteconrinuedon nexrpage) 266 GULFOF MAINE [14-18)

particularly sensitive during their early life stages, the discharge of oil into
the water wlumn during or shortly after a spawning season can damage

any stock that spawnsin the path of the discharge.
13. Many stocks of commercially valuable species spawn on the

northeastern portion of Georges Bank, at various times of the year.
Because most of these fish and shellfish belong to stocks that range over
the entire Bank, damage to the eggs and lamae or to adult fish and
shellfish on the northeastern portion of the Bank would affect the present

and future abundance of such resources throughout the Bank.

14. For example, Atlantic codspawn in the spring on the northeastern
portion of Gwrges Bank '.The sensitivity of cod eggs and lamae to crude
oil was demonstrated by the effects of the Argo Merchant spill2. Oit
discharged on the northeastern portion of Georges Bank, at or about.the

time of spawning, would pass through the lamal concentrations on the
southern side of Gwrges Bank, killing lamae in its path. See Figure 4'.

15. Haddock would suffer a similar plight if oil were discharged on the
northeastern portion of Georges Bank during spawning season. Because
the northeastern portion of Georges Bank is a major spawning ground for
haddock', oil discharged in this area during spawning season would

(Footnotecontinue/mm previouspage)
F~heriesResearchBoardof Canada. Vol.33, 1976,pp. 2047-2065:W.W.KLihn-
hold, "Investigationson the Toxicityof Seawater-Extractsof Three Cmde Oils
on Eggsof Cod (Gadusmorhuo L.)",inBerichte der eutscheWusenschaflichen
KommissionfùM r eeresforschuVg,l.23, 1974,p. 165.180:0. Lindén,Biological
Effectsof Oilon EarlyDevelopmentof'theBalticHening CIupeaharengus mon-

bras"in Marine Biology,Vol.45,No. 3, 1978,pp. 273-283:and P.G. Wellsand
J.B.Sprague,"Effectsof CrudeOil on AmcricanLobster (HomarusAmericonus)
Larvaein the Laboratory",inJournalof theFuheriesRer~orchBoardof Cn~da,
Vol.33,No. 1,1976,pp.1604-1614.
'See Anncx 1,Vol.1,and Figure 30therein.

'On 15December 1976.the tanker Argo Merchonf ran aground southeast of
NantucketIsland,spilling7.7 milliongallonsofNo6fueloil.P.L.GroseandJ.S.
Mattson. eds.,The Argo Merchant Oil Spill: A PreliminoryScientÜicReport,
National Oceanic and Atmospheric Administration, United States Dept. of
Commerce,1977:W.W.Kühnhold, "Effectsof the Water Soluble Fraction oa f
VenezuelanHeavy Fuel Oil (No. 6) on Cod Eggs and Larvae", International
Councilforthe Explorationofthe Sca(I.C.E.S.),Fisheries lmprovemet ommit-

tee, 1977.
'Figure4combinestheappropriateseasonaloiltrajcctoriesfrom Figures2and 3,
@ above,with Figure31 fromAnncx 1,Vol.1,showingtypicaldistributionsofcod
larvac. TABLE A

Results of Incubation of Flatfish Lawae in Water-Soluble Fraction of Prudhoe
Bay Crude Oil

Exposed Lawac ' Exposed Lawae
Grossly Deformed Deformed Control Group
(lethal) (sublethal) Unexposed to Oil

Hatchcd dead Hatchcd alive Hatched alive

Body length: shortened Slightly shorter 2.9mm SL
0.96 mm SL ' 2.3 mm SL
Body shaw: amorphous Normal shaw
Normal shaw
hloh
Yolk: none, or greatly Yolk: full-size,but Yolk: normal ellipse
reduced, occasionally posterior body shaped body, free
niptured
occasionalty fused ' and straight
Anus and lower digestive Conplcte Complete
tract never form

Notochord body Gross notochord curva- Straight notochord
withered ture single or multiple
(scoliosis)

Lawac lying dead on Narcotized, lyingon Swimming in water
bottom of container bottom, little move-
ment, only heart beat

Pigment difficult to Pigmentcells(melano- Pigment cells expanded,
assess phores) constricted to each star-like in shaw
dots, ociasionally
missingfrom ventral

body
'The Iawae that were "grossly deformed" and those that were "deformed" were
exposed equally to oil.
"SL" indicates standard length. I271 ANNEXESTO COUNTER-MEMONALOF THEUNmD STATES 269

18. The herring stock on Georges Bank is particulary susceptible to
devastation, as the stock collapsed in 1976 and has not recovered '.If
there were an oil spill or blowout on the northeastern portion of Georges
Bank during herring spawning season, particularly when the larvae were
drifting in the water column, the entire year-class could be reduced
severely. In addition, since the contamination of the seabed sediments can

persist for several years, contamination of the spawning beds could delay
even further the recovery of the stock.
19. Scallops are another marine resource that would be damaged by oil
discharged on the northeastern portion of Georges Bank. Such a discharge
would affect the scallop beds in the northeastern portion, as well as those

in the southwestern portion of Georges Bank and even those farther down
the southern New England shelf. Scallop lawae are pelagic and float in
the water column. Some lawae spawned onthe northeastern portion of the
Bank are transported by the Georges Bank gyre to the southwestern
portion of the Bank, supplying "spat "' to another bed of scallops located
there '.

20. Because some water breaks out of the Georges Bank gyre and
continues down the southern New England shelf, lawae from both the
northeastern and the southwestern beds may he swept along the shelf,
supplying spat to the scallop population on the mid-Atlantic shelf'.
Damage done tothe scallop bed on the northeastern end of Georges Bank
would affect adversely the repopulation of the beds on the southwestern
end and on the southern New England shelf.

21. The presence of oil in the water column and in the seabed
sediments also an affect adult scallops directly. Oil transported within
the water column by currents wuld remain toxic for two or three months,
or even longer, followingitsdischarge into the water column over Georges
Bank. Even after it has lost its toxicity, the oil could affect bivalves,

'CanadianMemorial,para. 191.
'"Spat" arelarvalscallopsas thcychange froma pelagictoademersal(i.e.,living
onor nearthe seabed)statc and settleto the seabed.
'J.A. Posgay, "Population Asscssmeo nft the Gwrges BankSea ScallopStocks",
Rapports et Procès Verbaux desRkunions,I.C.E.S.,Vol.175, 1979,pp. 109-113;
F.M. Scrchuck,P.W. Wood,J.A. Posgay,and B.E. Brown. "Assessmentand
Status of Sea Scallop (PlacopecrenMagellanicus)Populationsoff the Northcast
Coast of the United States", Procecdingsfrom the National Shellfisherics
Association.Vol.69. 1979,pp. 161-191.

'Posgay, op. cir.;Scrchuket al.,op.rit.; F.M.Scrchuk. "Growth, ShelH l eight-
Meat Weight andYicld Per Recruit Relationshipsof NorthwestAtlantic Sea
ScallopPopulations",Northcast FisheriesCenter (N.E.F.C.)Staff Study. 1982,
pp. 1-10; and F.M. Scrchuk, "BiologicalCharacteristicsof Offshore Gulf of
Maine Sea Scallop Populations: Size Distributions, Shell Hcight-Meat Weight
tory ReferencenDoc.lNo. 83-07, 1983 ,p.t1.ns", N.E.F.CW ., oodsHoleLabora-270 GULF OF MAINE (281

including scallops. Oil can inhibit normal development of somebivalve spe-
cies1, and taint the tissue of the adults even after short-term exposure.
Bivalvesin areas of wntaminated sediment are only able to depurate (i.e:,
cleansetheir tissues)slowly,due to continued recontamination fromthe sedi-
ment2.
22. Lobster similarly could be damaged by oil discharged on the
northeastern portion of Georges Bank. Lobster normally live in the
canyons or gullies along the seaward edge of Georges Bank, and climb

onto the Bank to spawn. This migration covers almost the entire southern
flank of the Bank'. As Figures 2 and 3 illustrate, oil discharged on the
northeastem portion of Georges Bank would pass through ,this area.
Female lobster carry their eggs under their tails as they migrate. The
eggs, and the lawae hatched therefrom, w8uld be damaged should they
corne into contact with oil. Oil suspended in the water column or
contained in the seabed sediments also would prove fatal to adult lobster
in the area. The damage would be compounded because of the sensitivity
of the olfactory and chemosensory systems of the lobster to hydrocarbons.
Lobster suffer behavioral changes as a result of contact with hydrocarbon
concentrations, including: (a) shifts in migratory patterns, because they
are attracted by the smell of oil; (b) disorientation in areas of high
concentrations: and (c)difficultin locatins food4.Evenifthe oilwere suffi-
ciently weathered soi; not to bétoxicto ldster, the lobstercould be tainted
throueh ingestion of oil or as a result of diren contan either wioilin the
bottom segments or with contaminated fishing gear; asa result,such lobster
would bewme unmarketableJ.

' E.S.Gilfillan and J.H. Vandermeulen,"Alterationsin Growthand Physiology
of Soft-ShellClams, Mya arenaria, Chronically Oiled with Bunker C from
ChedabuctoBay. NovaSwtia, 1970-76",in Journal af the Fisheries Research
Board of Canada. Vol. 35, 1978, pp. 630-636;and F.G. Johnson, "Sublethal
BiologicalEfftcts of Petroleum HydrocarbonExposures:Bacteria, Algae, and
Invertebrates".fecrs af Petroleum on Arcfic and Subarciic Marine Environ-
menrsand Organisms. Vol.2, 1977,pp.271-318.
'RF. Lee, "Accumulationand Turnoverof PetroleumHydrofsrbonsin Marine
Organisms", Fateand Eflecrsof PermleumHydrocarbomin Marine Ecosysfemand
0rgani-s. 1977,pp.60,65.
J.R Umann, RA. Cooper,and K.J.Pecci,"Migrationand Dispersion ofTagged
AmericanLobsters. Homarus americanus, on the SouthernNewEnglandConti-

nentalShelf', N.O.A.A. Tech.Rpt., N.M.F.S. SSRF-705, 1977, PP. 1-92;and
R.A. Cwpcr and J.R. Uzmann,"Migrations and Growth ofDccpSea Lobsters,
Homarus americanus", in Science.Vol.171,1971,PP.288-290.
'J. Atema, "TheEffectsof Oil on Lobsten", Oceanus. 1977, Vol.20, No. 4,
pp.68-73.
'Such a marketingproblemresulted fromthe contaminationof lobster after the
Kurdesran spill in the Bay of Fundy. J.H. Vandermeulen and D.J.Scarratt,
"Impact of Oil Spillson LivingNatural Resourccsand Resource-BasedIndus-
try",Evalualionof RecenrDora Relative ro PorenrialOil Spills in the Passama-
quoddyArea, Fishericsand MarineSenice Tech. Rpt.No. 901, 1979p , p.91-96.
As a resultof that spill,numerousclaimswerefiledforcompensation forfouling
of lobstcrfishinggearbyspilledoil. CONCLUSION

23. In the eventoilwere discharged into the water columnin the course
of hydrocarbondevelopmenton the northeastern portion of Gwrges Bank,
it would betransported in the circulation pattern over the Bank beforeit
dissipated. Because the lawae of fish and shellfish are particularly
susceptible todamage from oil, and because the northeastern portion of
Georges Bank is a major spawning ground forimportant commercial

stocks that range over the entire Bank, the Georges Bank stocksas a
wholewouldbe damiged by a discharge of oil during spawningseasonon
the northeastern portion of the Bank. Furthermore, oil wouldbe assimilat-
ed into the sediments onGwrges Bank, and wouldcontinuetoharm adult
organisms,such as lobster and scallops,that liveon the seabed. Duetothe
pattern in which water circulates over Georges Bankand the direction of
the prevailingwinds,it ishighly unlikelythat oildischargedinto the water
column abovethe northeastern portion of the Bank either wouldcrossthe
Northeast Channel to the Scotian Shelf or reach the coasts in the Gulf of
Maine area. AppendixA tAnnex2

OIL-SPILLRAJECTOR IESDISCHARG ESPOINTX*

[Norrepmduced]

AppendixBtoAnnex2

OIL-SPILLRAJECTOR IESDISCHARG ESPOINTY*

[Nor reproduced]

AppendixCtoAnnex2

@ DEScniaioNOF THECOMPUTE MRODELSYSTEMUSED TODEVEWP APPENDICES

A AND B

[Texrnorreproduced]

AppendixD toAnnex2

(R Burwood andG.C. Speers, "Some Chemical and Physical Aspects of the
Fateof Cnide Oilinthe Marine Environment",AdvoncesinOrganicCeochemu-

try 1973,Roceedings of the 6th International Meeting on Organic Chemistiy,
1973,pp. 1005, 1007,Figure 1)

[Not reproduced]

*ïhese trajectorieswereestimatedusingthewmputermodelsystemdcscribedin
Appendix. ANNEXESTOCOUNTER-MEMORIALOF THEON~D STATES 273

(D.C.Malins, testimonyof9November1979beforethe EnvironmentalProtee
tion Agency,Region 1,on behalf of the National Oceanic and Atmospheric
Administrationand the NewEnglandFisheries ManagementCouncil,regard-
ing the Labonitory Studies of the Impact of Oil on Marine Organisms.Con-
tained in the file of Pennit Application No. M0022420 submitted by the
PittstonCompanyto the EnvironmentalProtectionAgency.Table 3)

[Norreproduced] Volume II

H HACTIVIT IFSHEUNITEDTATEANDCANAD ANDERTHINTERNATIONAL
CONVENTI OORTHENORTHWEA STLANTFIISHERIISNAF) INTRODUCTION

1. This Annex examines the activities of the United States andcanada
under the International Convention for the Northwest Atlantic Fisheries
(ICNAF) '.

2. The history of ICNAF illustrates two points of importance. First,
the United States was the State with the predominant interest in Georges
Bank. Indeed, the concern for its important Georges Bank fishery
prompted the United States to propose the establishment of ICNAF; to
cal1 for, and to host, the diplomatic conference that produced the
Convention; and to propose, and to press for, the adoption of nearlyery

major ICNAF innovation or amendment. That same concern alsoprompt-
ed the United States to conduct the bulk of the fisheries research in
Subarea 5, the New England-Georges Bank area; to propose most of the
fishery-management measures that ICNAF adopted concerning Subarea
5, as well as many that were not adopted; and to conduct the bulk of IC-
NAF-sanctioned enforcement activities on Georges Bank. The driving
force behind ICNAF, from its inception in 1950 until the extension of
coastal-State fishery jurisdiction in 1977, was the United States. In brief,
ICNAF represented a major, sustained United States diplomatic Cam-
paign, motivated by the need of the United States to protect its traditional
fishery on Georges Bank.

3.The second important point illustrated by the history of ICNAF is
that Canada's fishing interests centered on the rich fishing grounds,
stretching from Browns Bank to the Grand Banks of Newfoundland, off
Canada's own Coast.These grounds were part of ICNAF Subareas 3 and
4 '.Just as the United States assumed the leadership role in lCNAF with

'InternationalConvention forthe Northwest AtlanticFisheries.Doneal Wash-
ington,8 February 1949, 15 U.N.T.S. 157. The text of the Conventionis
reprintedat Annex45.Vol.III, ofthe UnitedStates Mernorial,andat Vol.1,An-
nex 1,of the CanadianMernorial.It is reproducedagain hcre in AppendixA in
the "ICNAF Handbook".The acronym"ICNAF" is used to refer both to the
Conventionand to the Commissionestablished thereunder. TheUnited States
withdrewfrom the Conventionon 31December 1976I.CNAFwassupersededon
I January 1979by the entryinto forceof the Conventionon FutureMultilateral
Coowration in the Northwest AtlanticFisheries.Doneat Ottawa,24 October
1978; cntered into forceI January 1979. The Conventionestablished the
Northwest Atlantic Fisheries Organization (NAFO). Canadian Memorial,
Annexes,Vol. 1,Annex9. The UnitedStates isnota mernber ofNAFO.
Canada.also had a significantinterestin the fisheries tothe north of the Grand
Banks.276 GULF OFMAINE t21

respect to Subarea 5, Canada assumed the leadership role withrespect to
the northern areas. Nearly al1of Canada's fisbery research, enforcement
activities, regulatory proposals, and fishery allocations concerneSubar-
eas 3 and 4.

4. The Canadian Memorial allegesthat the United States and Canada
were "coastal State partners" under the Convention with regard to

Subarea 5, including GeorgesBank '.
5. Canada's characterization of the relationship between the Parties
under ICNAF ismisleading.It istrue that, as coastalStates inthe region,

the United States and Canada cooperated with each other to protect the
Northwest Atlantic fisheries from the efficient distant-water fleets.
Canada neglects,however,to mentionthat, whileCanada wasconsidered,
forsomepurposesa coastal State for Subarea 5, the United States equally
wasconsidereda coastal State for Subarea 4, off Nova Scotia. In fact, the
ICNAF coastal-State concept was used only in a general sense, to

distinguish the North American fromthe distant-water fleets, and notto
express a judgment concerning maritime jurisdiction. "Coastal State
preference" was an important mutual defense tactic against these third-
State fleets. Moreover, the "partnership", to the extent it existed,
concerned the functioning of ICNAF as a whole, and not the separate
Subareas. Canada concentrated its efforts in Subareas 3 and 4 and
conducted comparativelylittle research, enforcement, or fishingin Subar-

ea 5; similarly, the United States developed nearly al1 the regulatory
proposals, conductedmost of the research and enforcement activites, and
did mostof its fishing in Subarea 5.

6. This Annex contains six chapters. Chapter 1 describes the United
States role in the formation of ICNAF. Chapter II outlines ICNAF's
structure.Chapter III describesthe United States leadership in seeking to
make ICNAF effective, as evidenced by major proposals concerningthe
activitiesof the Commissionas a whole.Chapter IV demonstrates that the
United States proposedmost of the management measures forSubarea 5,

and that Canada proposedmostof the management measures forSubarea
4. Chapter V demonstrates that the United States conducted most of the
scientific research concerning Subarea 5, and that most of Canada's
research concernedits fisheriesin Subareas 3 and 4. Chapter VI describes
the efforts of the United States and Canada to enforce the regulations
adopted under the Convention, including the predominant role of the
United States in enforcing the regulations in Subarea 5. Together the

Chapters demonstrate that the history of ICNAF confirms that the
United States has the predominant interest in Georges Bank, and that
Canada's interests center on the major fishing groundsto the north.

'SeeCanadianMemorial.para. 322 CHAPTER1
THE ROLEOF THE UNITEDSTATESIN THE FORMATIONOF
ICNAFREFLECïSTHEHISTORICAL INTERESTOFTHE UNITED

STATESIN THEFlSHERlESOFGEORGES BANK

SECTION1. The UnitedStates GovernmentaI lnterestin the Georges
BankFisheriesis Longstanding

7. The United States proposed the establishment of ICNAF because of
ils concern for the conservation and management of the fisheries of the
Northwest Atlantic Ocean, particularly the haddock fishery on Georges
Bank. lCNAF was but one significant step in the long history of United
States Government activities regarding Georges Bank.

8. As earlyas 1807, the Congress of the United States, in authorizing a
survey of the Coast, singled out Georges Bank as an area that was
"subservient to the commercial interests of the United States":

"Sec. 2.And be iffurther enacfed, That it shall be lawful for the
President of the United States to cause such examinations and
observations to be made, with respect to St. George's bank [sic],

and any other bank or shoal and the soundings and currents
beyond the distance aforesaid to the Gulf Stream. as in his
opinion may be especially subservient to the commercial interests
of the United States '."

As the United States fishery on Georges Bank expanded during the 19th
century, the United States Government increased its support of thefishing
industry, both by providing aids to navigation' and by conducting
research on the fishery resources '.The early work of the United States
Fish Commission, established in 1871, concerned primarily the Gulf of

Maine and Georges Bank'.

'An Act to providefor sumeyingthe coastsof the United States. 10 Feb. 1807,
Annalsof Congress,9th Congress,2dSession.1806-1807,Vol.16, pp.1252-1253.
[Emphasisin original.ReprinredorAppendixB.
'SeeUnitedStates Memorial,paras. 103-111and its Annexes26.27, and 29,Vol.
II.
'Ibid..paras. 121-123.

'Ibid., paras. 122-123,for a discussion of the Commission's early research
activities. Bibliography,"GroundfishInvestigationsby the U.S.Government in
the NorthwestAtlantic" 1871.1952,submined by the United Statesto ICNAF al
the SecondAnnual Meeting,1952,MeetingDoc.V(a).Reprinted al AppendixCI.278 GULFOF MAINE [dl

9. In the first part of the 20th century, Georges Bank haddock became
the most important New England fishery. Between 1927 and 1934.
however, haddock catches first rose sharply and subsequently dropped
more than 75 percent 'In 1931, the United States Government began an
intensive research program to determine how to improve the stability of

the haddock stock on Georges Bank '.The researchers suggested several
regulations. One of these suggestions was adopted in 1936,when the New
England fishing industry established a voluntary minimum mesh-size
regulation for the Georges Bank haddock fishery '.

SECTION2. TheUnitedStatesTooktheInitiativeto Forma Multilater-
alConvention fortheConsenation and Managemeno tf theFisheriesof the
NortbwestAtlanticOcean

10. In the late 1940s. the United States Government, aware of
increased concern in the New England fishing industry and in the United

States Congress, accepted the need for mandatory regulation of the
Georges Bank haddock fishery. Georges Bank at this time was fished
almost exclusively by New England fishermen, but the United States
Government was concerned that regulating only United States fishermen
would not be effective. The United States view was that the fishing banks

to the northeast should also be regulated. This view was founded upon the
belief that, if the areas to the north were unregulated and overfished, not

'H. W. Graham. "Mesh Regulation to Incrcasethe Yicld of the Gwrges Bank
Haddock Fishcry". in ICNAF Second Annual Report. 1951-1952,pp. 23-33,
reprintedai Annex48, Vol. III, of the United States Memorial. Atpage 24. Dr.
Graham describesthe crisisin the GeorgesBankhaddockfisheryduring the carly
1930s:
"The GeorgesBank haddock fisherywas. at certain limes in the past,
moreproductivethan it is now. . During the early exploitation of this
fishcry there was one period (from 1927through 1930)when landings
wcre much higher than they had ever been before or bavebeen since.
This wasdue to the interactionof twofactors:a great abundanceof fish
and intensified fishing.Previous to 1930 there was a relatively high
abundance of haddock on the Bank. Although there was a decline in
abundance from1928ta 1930.there was a marked increase in fishing
effortduring these years, resultingin high landings.From 1930to 1934
the fishingeffortmpd off.Thisdrop in efforwt.aacmpînied by a

dccrease in abundance. The wmbined effcct was a precipitousdrop in
landingsfroma highof 223millionpoundsin 1929toa lowof 50million
poundsin 1934."
'Graham, op.cil., p. 23.
'Agreement by the Federated Fishing Boatsof New England and New York,
signed 8 Dcc. 1936. Reprinred ai Appendix D. Under the Agreement, fishing
vessclswercto useonlynets witha meshlarger than a dcsignated minimum.This
would allowthe smaller. unmarketablehaddockto escape,thus makingthe fishing
operationsmoreefficientand conservingthe haddockstocks.Pl ANNEXESTO COUNTER-MEMORIALOF THEUNITEDSTATES 279

only would the traditional United States fisheries in those areas suffer,
but foreign fishermen would move from those areas to Georges Bank to
reap the benefits of the conservation measures imposed only upon the

United States fishermen. Moreover, if only the Georges Bank haddock
fishery were regulated, United States vessels could fish in the unregulated
haddock fisheries on the Scotian Shelf, thus contributing to the depletion
of the Scotian Shelf stocks '.Therefore, only an international agreement

among al1 States fishing in the Northwest Atlantic, in the United States
view, could provide adequate safeguards.

II. In late 1947, a draft convention was prepared and circulated for
comment within interested agencies of the United States Government and

'This view,which wasfoundeduponthe rewgnized haddock-stock division at the
Northeast Channel,was expresscd most clearly by the UnitedStates negotiator,
Dr. Wilburt Chapman, during the ICNAF negotiations (Area4, to which he

refers, becameSubarea 5 under ICNAF').
"MI. Chapman(Chairman):
7. What gave rise to the United States' interest in this matter was the
fact that wehaveinformation. satisfactorytous, that certain fish stocks
on the Georgia'sbanks [sic]andin their vicinityare king over-fished,
and that if they were notfished so hard, they actually would yield a
greater catch of fish.
8.The fisheryin this area is almostcntirely a United States fisheryat
the present time. To the best of my knowledge.Canadian vesselshave

seldomfishedin the area in recentyears.and the vesselsof other nations
havc seldom,if ever, workcd inthe area. 1 refcr to Area 4 [ICNAF
Subarea 51of the chart kfore you.
9. Sincethisisan almostexclusivelyUnitedStates fisheryat the present
time. there isno reasonwhywewuld not regulateit in any mannerthat
wethought best by wntrol overour owncitizcns.This hasbeen,and still
is, beinggivenconsideration.There are, however, tworeasonswhysuch
a scheme is notnecessarilythe bcst one forhandlingthe problcm.
10. The first reason is that: If, by regulating the fishing effortsof our

own citizensin this particular area. we buildup the fisbstocksto a high
lcveland at the same time the fish stocksin an adjacentara arc king
over-fishedand are goingdownhill,then other fishermenwill k drawn
to the enrichedbanks.Now. thcre is nopractical sensein putting moncy
in a savingsamunt from which everybodyelse in the worldcan draw
freely, while, at the samc time, you regulate closely your own
withdrawals.
11. Thc scwnd reasonis:The impositionof regulationson UnitedStates
fishermen in Area 4 would not result in thc United States fishermen

tying their vesselsto the dock.t wouldsimplymean that thcir surplus
fishingeffortswill k divcrtcd elsewhere,and we knowfrom expcrience
that it willk divertedto Area 3 [ICNAF Subarca 41."
InternationalNorthwest Atlantic Fisheries Conference, Washingto Dn.,C.26 Jan.
1949, DOC/5, Minutesof the Sccond Session,27 Jan. 1949,as repmduced in 1,
pp.266-268. 280 GULFOF MAINE IS-81

appropriate United States diplomatic and wnsular posts '. The draft
proposed the creation of an international organization with authority to

establishseparate regulations for "subareas" of the Northwest Atlantic
Ocean. The proposed convention area and subareas generally corre-
sponded to the Statistical Areas of the North American Council on
Fishery Investigations (NACFI)'. These were illustrated on a map,
reproduced at Figure 1, that was attached toa February 1948, draft sent
tothe same government agencies and diplomatic and wnsular posts as the
December 1947, draft convention '.By separate wnfidential instructions,
the United States Embassy in Ottawa andthe United States Consulate in
St. John's, Newfoundland, were instructed to pass informally the Febru-
ary 1948 draft to the Governments of Canada and Newfoundland for

wmment '.
12. In June, 1948, representatives of the United States, Canada, and
Newfoundland met at St. John's, Newfoundland, to discuçs the proposals
of the United States'. Changes requested by the Canadians at that
meeting were then incorporated into a new draft that was circulated to
concerned governments in October, 1948 One central Canadian con-

'See the United States Secretary of state's Instmctionsto Certain American
Diplomaticand Consular Officers. dated31 Dec. 1947, withdraft convention
attached.Reprinted at Appendix E. The Note was sent to United States
DiplomaticPosts in Canada. Denmark. France, Ireland, Italy, Ncwfoundland,
Norway. Portugal. andhe UnitedKingdom.At the time,the draft trcatywas not
circulatc10foreigngovernments.

@ 'See United States Memorial,Figure 8. Thc United States originallyproposed
that theconventionarea bedividedintofoursubareas.At therequest ofmark,
wcrcrcnumberedvi3,4,andt5,respectively.Duringtheearly stagesofthc 1949ne-
gotiating confcrenccand in the prior correspondence, what becameICNAF

Subarca 5,theGeorgesBank-NcwEnglandarea, wasreferred toas Subarca4.
'See thc United States Secrctary of State's Instructto Certain American
Diplomaticand Consular Officers. datd6Mar. 1948. RepriniedalAppendix F.
@ Figure 1 isalsoreproduced,witha differentcaption,at Figure 19ofthe United
StatesCountcr-Mcmorial.
'See the United States Sccretary of State's Confidential Instructions tothe
AmcricanConsularOfficer in Charge, Ottawa, Canada,and St. Johns, New-
foundland,dated 10March 1948. Repriniedal Appendix G.
'The reportofthe American Consul-GenerailnSt. John's, Newfoundlando,f the
14-16June 1948 meeting, datcd21 Jun. 1948,notes that one of the points
consideredat the meetingwashowtosecureregulationofGeorgesBank(referred
to in that reportas Subarca4).withoute cntry into forceof regulations for the
cntircarea.ReprintedaiAppendix H. Duringandpriorto this time, Canadahad
no significantisheryanywhereoff the United States coast, including Georges
Bank.
'LcttcrfromMr. W. Rory, UnitedStates Dept.ofState, to Dr. S. Bates.Deputy
Minister of Fisheries of Canada, which included the October, 1948. draft
convention.ReprinledafAppendix1. [91O] ANNEXFSTO COUNTER-MEMORW OF THE UNITEDSTATFS 281
Cern was the possibility that Canadian fishermen would be regulated

under the proposedconvention.Canada did notbelievethat there wasany
need to regulate the fisheriesin whichits fishermenparticipated. In 1949.
Canada indicated that it would consider a conventionthat provided for
the regulation of what was to becomeSubarea 5, but that it did not wish
to providefor regulationofother areas '.The reason for Canada'sposition
seemsclear. It was willingto accept regulation of the Georges Bankarea,
because Canadian vesselsdid not fishthere.

13. In January, 1949, delegates from those States fisbing in the
Northwest Atlantic Ocean gathered in Washington, D.C., to discuss the
formation of an international organization with researchand regulatory
responsibilities for the fisheries of the region'. Many of the delegates,

particularly those of Canada, expressed their reluctance to create an
international body with authority to regulate high-seas fisheries'. The
United States. however, convincedthe other Statesthat, although imme-
diate regulation of fishing in al1parts of the Northwest Atlantic was not
necessary, the anticipated increase of distant-water fleets fishing in the
Northwest Atlantic eventually would make regulation necessary '. The
result of the conferencewas the International Conventionfor the North-
WestAtlantic Fisheries.

'See NoteNo. 22fromthe CanadianSecretaryofState forExtcrnalAffairsto
the Embassy of theUnitedStates,dated19Jan. 1949. Reprinredat AppendixJ.

'The States attending included:Canada. Denmark,France, Iccland, Italy.
Norway,Portugal. Spain. theUnited Kingdom,and the UnitedStates. New-
foundlandwasalso rcpresented.
'ICNAF.Minutes of the ThirdSession.DOC/L6, 27 Jan. 1949. Reprinted al
AppendixR.
'ICNAF. suprap. 1,n.I,at heamble andArt.VIII, pp. 9and 15. CHAPTER II

THE LEGAL STRUCTURE OF ICNAF
14. The International Convention for the Northwest Atlantic Fisheries
was opened for signature on8 February 1949 and entered into force on 3

July 1950. It established a Commission with authority to conduct
scientific research and to regulate fisheries in the area covered by the
Convention, and five Panels of limited membership with authority to
regulate the fisheries inparate "subareas" of the Convention Area. This
Chapter describes briefly the ICNAF institutions and procedures.

SECTION 1.The Convention Area
15. The Convention applied to the Northwest Atlantic Ocean Westof
the 42nd meridian and north of the 39th parallel, excluding the area

around Baffin Island, Canada, and excluding the territorial seas of the
Contracting Parties'.Figure 2.
SECTION 2. The Subareas

16. The Convention Area was divided into five "subareas." The
Subareas generally coincided with the Statistical Areas established by
NACFI'. Thus, lCNAF recognized, as NACFl had earlier, that the
Northeast Channel was a natural boundary between fish stocks and
fishing grounds, and usedit to delimit regulatory areas. The Commission
subsequently established Statistical Area O around Baffin Island and
Statistical Area 6, from New York to North Carolina. Figure 3.lthough

these Statistical Areas were outside the Convention Area, they were often
subject to the regulatory measures established for Subareas 1 and 5,
respectively.
SECTION 3. The Commission

17. The Commission was ICNAF's plenary body. Its responsibilities
for scientific research included recommending and conducting research,
collecting statistics, and publishing repor'.Its primary responsibility

'-ICNAF. suprap. 1, n1,Art. 1andthe Annexto the Convention.
@ 'See UnitedStates Memorial,para.76 and Figure8. Someslight modifications
weremade tothe NACFIStatisticalAreas.Forcxample.NACFl dividedthe Bay
of Fundybetween two statisticalareas, whileICNAF includedthe entire Bayof
FundywithinSubarea4. Atthe requestof Canada,the UnitedStates inwrporat-
ed thischangeintoits draft convention,followinga meeting betweenrepresenta-
tivesof the United States, Canada,and Newfoundlandat St. John's.Newfound-
land, in June, 1948.See para. 12ove.This draft wascirculatedto interestcd
governmentsinOctober. 1948T. hedraftconventionofOctober. 1948ireprinred
orAppendix1.
'ICNAF. suprap. 1,n. 1,at Art. VI.(12-161 ANNEXES TOCOUNTER-MEMORULOFTHEUNmD STATES 283

was to oversee andto mrdinate the regulatory work of the Panels '.Each
Contracting Party wuld cast one vote in Commission decisions; affirma-
tive decisions required a two-thirds majority '.

SECTION 4. The Panels

18. The Convention established five Panels of limited membership.
Each Panel was responsible for making recommendations to the Commis-
sion for scientific research and for regulations in a particular Subarea '.
Each Panel was assigned the same number as the Subarea it regulated.

19. The original membership of the Panels was recorded in the Annex
tothe Convention. Canada (or Newfoundland) was an original member of
Panels 2, 3.4,and 5.The United States was an original member of Panels
4 and 5. Under Article IV of the Convention, membership could be
altered each year after the Convention had been in force for Iwo years,
based upon a "current substantial exploitation of stocks in the subarea",
although States with coastlines adjacent to a Subarea retained Panel

membership regardless of their level of activity '.When the first review of

'ICNAF, supra p. 1, n. 1,at Art. VIII.
'Ibid.
'Ibid.,at Arts. IV and VI.
'The Canadian Mcmorial,at para. 190, impliesmistakenlythat original Panel
membershipwas basedon the Article IV criteria. Such was notthe case.as noted
by Mr. Gushue.the Newfoundland delegate tothe NegotiatingConfcrcncc:

"222.MR. Gushuc (Ncwfoundland):Mr.Chairman, the pointthat occurs to
me is this. Aftcr ariodof three ycars (underArticle IV, paragraph 6.)the
Panel rcpresentation is to be rcvicwedannually on the basis of current
substantial cxploitation.If that wereappliedoriginallyor if thcrc weresomc
referenccin the carly part of Article IV to the basis for rcpresentationon
Panels,it might clearthe mattcr, but 1do scethe possibilitythat on certain
Panels you wouldhave scvcral countries who have no history of fishingor
who are not currently fishing.who would have nothing to add by way of
information, or statistics, orknowledgeto the workof thencl.
223. If you lookparticularly at Sub-arc2 [ICNAF Subarca 31, it is a very
goodexample.In Subarea 2 at the moment andfor a considerablenumber
of years to speakconsewatively,there has been only one country fishing.
That has been Ncwfoundland.You have mentionedthree othcr countries,
none of whomto my knowledgchave any record of fishing thcrc, andyou
wouldhavea Pancl witha majorityof mcmbersSittingwhohad noactivein-
terest in the arca. That is the point which seems to me to bc a fairly
substantial one. That is why 1 would like to see fromthe beginningsomc
screeningofclaimsfor rcprescntationonthe basisofexploitationof the area,
sinceit is providedaftcr thrcc ycars automatically."
International Northwest Atlantic Fishcries ConfcrcnccD,OC/47. Minutesof the
Fifteenth Session,5 Fcb. 1949. Reprinied orAppcndix K. Notwithstanding Mr.
Gushue'sappeal,no suchscreening occurred.Canada thcrcforeinmistakcnwhcn
it implics that its original membershipin Panel 5, as proposcdhy the United
States, acknowledgessomcspecialCanadian interestcomparable to thatsetout in

Article IV. There is nosuchconncction.Il81 ANNEXESTOCOUNTER-MEMORIALOFTHE UNITEDSTATES 285

SECTION6. SpecializedStandingCornmittees

22. The Commission established specialized commitiees, several of
which became permanent standing committees, to deal with matters
beyond the authority of individual Panels. There were standing commit-
tees on finance and administration, research and statistics, regulatory

measures, and enforcement '.

'ICNAF documents often refcr tothe standing committecsby their acronyms.

STACRES wasthe StandingCommitteeon Research and Statistics.STACFAD
was the Standina Committee on Finance and Administration.STACTIC, the
Standing ~ommiÏieeon lntcrnational Conirol.dcalt with cnforccmcntissuesand
the Joint InternationalEnforccmcntScheme.discusscdbclowat OP.23.27. paras.
35-44. STACREM, the Standing Committee on Regulatory Mcasures,was
cstablishedin the late 1960sto revicwthe administrative andeconomicaspectsof
the variousregulatory measuresrmmmended to the Commission,and 10develop
a workable system for the implementation of national quota regulation.A
collectionof ICNAF Publications hasbeendeposited pursuantto Rule50(2)of the
Rulesof Court. CHAPTER III

THE ACTIONS AND PROPOSALS OF THE UNITED STATES
WITHIN THE COMMISSION CONFIRM THE UNITED STATES
LEADERSHIP ROLE IN SEEKING TO MAKE ICNAF EFFECTIVE

23. After the Convention entered into force, and particularly after
distant-water fleets began fishing on Georges Bank in the 1960s, the
United States devoted substantial diplomatic and scientific efforts to
make ICNAF effective. Most of the major ICNAF improvements and
innovationsoriginatedwith the United States. This chapter describesonly
certain of the many United States initiatives.

SECTION 1. The United States took Action to Ensure the Timely
Adoptionof Regulations andAmendmentsto the Convention

24. Several procedural obstacles often preventedICNAF from acting
in timely fashion. One such problem was the long delay on the part of
Contracting Parties in implementing regulations'.Under the Convention,
regulationsdid not becomebinding untilal1Panel members gave noticeof

acceptance. Actionby some memberStates on some proposaiswassoslow
that proposed amendments to the regulations occasionallywere adopted
before the original regulations had entered into force'. In 1964, the
United States proposeda Protocolto the Conventionto expeditethe entry
into force of regulatory measures'. The Protocol was adopted by the
Commission inthat year and enteredinto forceon 19December 1969 '.It
changed the system of "positive consent'' toone of "implied consent":
regulations became binding if there were no objections from Panel
members withinsix months of the date of notification.

25. Although the implied-consent system didspeed the entry into force
of regulations, in many cases the six-month objection period had not
elapsed,and the annual management measureshad not entered into force,
until after the beginning ofthe fishing year in whichthe regulations were

to apply. The problem arose for two reasons: first, for political reasons,
agreement often could not be reached sufficiently in advance of the
fishing year; and, second, for some species,current catch data often were
not available at the Annual Meeting, convened each June, to establish

'ICNAFnocPedings 1,964,Doc.7,Item2.
Ibid.1964,Doc.18,App. III.
' Ibid.1964,Doc.18, App. IV.
'ProtocolRclatingto Entry intoForceofProposaisAdopted by theCommission.
21U.S.T 567.T.I.A.S.6840.Reprintedof Appendix A.PO1 ANNEXESTOCOUNTER-MEMORIALOFTHE UN~TEDSTATB 287

quotas for the followingyear. The problem became acute in the 1970s.
when many of the stocks were subject to annual quotas. Therefore, the
United States proposed an interpretation of the Convention and the
Commission procedures whereby Panel members at the 1973 Annual
Meeting adopted regulations setting limits within which the Commission
could establish catch quotas '.These re~ulations were forwarded to the
Panel Members for their review and became effective in six'months,

providedthere were no objections.When the data necessaryto set quotas
werelater submitted, the Commission establishedquotas withinthe limits
set by the regulations. The quotas became effective immediately, without
the need for an additional six-monthobjectionperiod.
26. Troublesome delays also stemmed from the fact that the original

Convention did not provide a procedure for its amendment. An amend-
ment tothe Conventionrequired the ratification, acceptance, or accession
of al1Contracting Parties. This became a significant impedimentin the
late 1960s. when the United States sought to implement new types of
regulatory measures, which were not authorized by the Convention, to
deal with the growing conservation and management problems in the
ConventionArea. Thus, in 1970,the Commissionadopted a United States
proposal that provided for an expedited amendment procedure'. This
entered intoforce,on4 September 1974,as a protocolto the Convention '.

SECTION 2. The United States Proposed Catcb-Quota Systems to
Protect the Fisheriesof GeorgesBank

27. Although the Conventionauthorized the establishment of limitson
overallcatch, such measures werewidely opposeduntil the late 1960s.At
the 1965 meeting of Panel 5, the United States noted that the haddock
stock on Georges Bank was being exploited well beyond its maximum
sustainable yield, and it suggested considerationof additional conserva-

tion measures, includingthe impositionofquotas onthe catch '.The Panel
rejected the suggestion.At the 1966Annual Meeting of the Commission,
after another distressing report on the effects of overfishingin Subarea
5'. the United States again recommended catch quotas. Once

'ICNAF Proceedings, 1973(SpccialMeeting,Jan. 1973),Doc.3, Item S.The
UnitedStatesmadethis proposalin thecontextofnational quotasforherringfor
the fishingyear 1974.The UnitedStates proposalwas adoptedat the 1973
AnnualMeeting. ICNAF Proceedings .973,Doc.16,App.III. Canadamadea
similarproposalforstocksof herring inDivision4X and 4W. ICNAF Proceed-
ings.1973,Doc.16,App.II.
'ICNAF Proceedings. 1970,Doc.10.
'ProtocolRelatingto Amcndmcntsto the Convention2 . 5U.S.T. 2716.T.I.A.S.
7941. Reprinfedai Appendix A, pp.43-46.
'ICNAF Proceedings .965.Doc.6,App.1.
'ICNAFProceedings, 1966,Doc. 8,App.1.288 GULFOF MAINE 1211

again, no action was taken '.At the 1967 Annual Meeting, the United
States proposeda system of global catch quotas (a limit on the combined
catch of al1 States) for each stock in each Subarea'. The proposal for
global catch quotas was referred for study to a special wmmittee on
fisheriesmanagement. At a joint meetingof Panels 4 and 5 held in 1969,
Panel 5,under strong pressure from the United States, adopted a United
States proposal to limit the total haddock catch in Subarea 5 '.At that
meeting,Panel 4 adopted a similarproposalof Canada regarding haddock
in Subarea 4. These were the first quota regulationsadopted by ICNAF.

28. In 1968, the United States proposed a system of national catch
quotas (separate limits on the catch of each State) for each stock in each
Subarea '. Inasmuch as the Convention did not then authorize national
catch quotas, the United States also proposed an amendment to the
Convention that would greatly expand the regulatory authority of the
Commission '. The Protocol Relating to Panel Membership and Regula-
tory Measures was adopted,and entered into force in 1971 6.Thereafter,
the United States and Canada workedwithin Panels 4 and 5 to establish
both globalcatch quotas and national catch quotas for stocksin Subareas

4 and 5.
29. It soon became evident that, due to the unique character of the
Georges Bank fishery,the quota system was not adequate to protect the
stocks inSubarea 5 '.On GeorgesBank,the variousspeciesintermingleto
a degree not found elsewhere. It is impossible to fish for one species
(primarily of groundfish) withoutcatching other species. For example, a

vesse1trawling for cod will also catch haddock, hake, and other fish.
Under the national quota system, each State received a separate annual
quota for each stockof fish.When a State had caught its entire quota ofa
stock, it was required to terminate its directed fishery for that stock. It
wuld continue to fish for other stocks, however,and, as it did so, to take
incidental catches ("by-catches") of the stock for whicb the quota had

'ICNAF Proceedings, 1966,Doc. 11.
'ICNAF Proceedings. 1967.Doc.9,Item I1.
'ICNAF AnnualProceedings, 1968.1969p , p.26-27.
'ICNAFProceedings. 1968,Doc.18,Ann.1
'The Convention limitedthcregulatorymeasures availablte o iheCommission 10
thefollowing: closefishingseasons,closedfishingareastoprotect spawning s,ize
limitsforparticuliarspccies,gearrestriction,ndoverallcatch quotas.Art.VI11
(1).
'ProtocolRelatingto Panel Membership and RegulatoM ryeasurcs.23 U.S.T.
1504,T.I.A.S.7432. Reprinled al AppcndixA, pp.39-42.TheProcotolcombined
a UnitedStates proposalon rcgulatorymcasureswith a Canadianproposalon
Panclmembership.

(StatementbytheUnitedStatesdclcgate).eeting.Jan. 1973),Doc. 4. ltcm 3 [221 ANNEXESTO COUNTER-MEMOUALOF THE UNïïED STATES 289

been reached and the fishery closed. As a result, the sum of the catch of
the directed fishery and incidental catch of a stock could exceed the total
allowable catch for a stock.

30. Therefore, at the Special Commission meeting in January, 1973,
the United States proposed for Subarea 5 another type of control -- a
comprehensive limit on overall fishing effort, as measured by vesse1size
and the number of vessel-days on the fishing grounds '.This proposal was
rejected. The United States continued to seek a reduction in overall
fishing effort. At the Annual Meeting in June, 1973, the United States
proposed an alternate means of limiting the fishing effort in Subarea 5
and StatisticalArea 6: the "two-tier" quota system '.This was adopted at
a Special Commission meeting in October, 1973 '.

31. Under the two-tier quota system, each State first received (1) a
national (first-tier) quota for each stock of fish and (2)a quota (second-tier)
that limited its total catch ofl1species. The second-tier quota was always
less than the sum of the quotas for,the individual stocks'.Once a State ex-
hausted its first-tier quota for a particular stock, it was required to close
its directed fishery for that stock; when its total catch reached the second-
tier quota, it had to terminate fishing, regardless of whether the national
quotas for the individual stocks had been reached.

32. The innovative two-tier approach forced total catches downward,
and induced the Contracting Parties to concentrate their fishing opera-
tions on the most desired species, avoiding by-catches to the extent
possible. This United States initiative was the single most important step
taken hy ICNAF to reduce overfishing on Georges Bank and throughout
Subarea 5 and Statistical Area 6 *.

SECTION 3. A Protocol Proposed By the United States Provided for A

More Flexible Conservation and Management Standard
33. The 1969 Protocol Relating to Panel Membership and Regulatory
Measures also established new conservation and management standards.

'ICNAF Proceedings. 1973,Doc.4, App.1.
Ibid..1973,Doc.II,Items 7,8,11,21, 24,andApp.IV.

App.A1.Proceedings. 1974 (SpecialMeeting,Oct. 1973),Doc.3. Item 18,and

'Forinstance,in 1974,the nationalallocationfor individual.stocksin Subarea 5
and Statistical Area 6 totaled 1,121,000metric tons. The sewnd-tier quotas
totaledonly923,900metrictons.
'Canada accepted the need for the two-tier quota system in Subarea 5,but
believedthat such a system was not appropriate for the different biological
conditionsexisting in Subarea 4. ICNAF Proceedings, 1974, p. 31 (Special
Meeting, Oct. 1973),"Canadianproposa1forquotaregulationinSubareas2 to 4
to be wnsidered at January 1974 Meeting ofCommission",Serial No. 3132
(A.a.4),Proceedings No.6, App. 1.Reprinted alAppendix L.290 GULF of MAINE 1231

The Protocol, which was proposed by the United States, substituted
"optimum utilization" for "maximum sustained catch" as the basic
criterion for regulatory measures, and added "economic and technical
considerations" to the "scientific investigations"that were the basis for
those regulations '.

34. The Convention'soriginal term "maximum sustained catch", or
"maximum sustainable yield", as it is most commonly phrased, was
intended to provide a readily determinable scientific basis for fisheries
conservation measures, Le., the maximum amount of fish that could be
hawested from a stockon a continuinghasis year after year. The concept
created difficulties in practice, however. Maximum sustainable yield

excludedimportant considerations,such as the effect of regulationson the
coastal-State fishing industries. Moreover,States objected to regulations
on the grounds that scientific data were inadequate to determine maxi-
mum sustainable yield.The concept ofoptimum utilization, developedby
the United States, allowed lCNAF to take into account various national
priorities, including relevantsocial and economic factors. Because man-
agement measureswere no longerbased exclusivelyon scientific conclu-
sions, States were less able to ohject to management measureson the
narrow grounds of inadequate scientific data. The optimum-utilization

concept has since found an important place in United States domestic
fishery law'and in the Convention adoptedby the Third United Nations
Conferenceon the Law of the Sea '.

SECTION 4. The United States Took the Initiative to Develop an
EffectiveInternational EnforcementProgram.

35. Widespread violations of ICNAF conservation measures were an
important reason underlying ICNAF's failure to protect the fishery
resources. In response, the United States led the effort to develop, and
continually sought to strengthen a system for enforcing lCNAF regula-
tory measures. The need for effectiveinternational enforcement became
urgent when large-scale foreignfishing began in Subarea 5 in the early
1960s.One prohlemwas that, except for the Canadian vessels,the newly

arrived fleets were so far from their home ports that it was difficult for
their own authorities to carry out active enforcement operations. More-
over,States werereluctant to disadvantage their ownvesselsby enforcing
regulations that were ignoredby their competition.

'ProtocolRelatingto PanelMembership and RegulatoryMeasures. supra p. 21,
n.6,al Arts.II andIII.
'FisheryConservationand ManagementAct of 1976. 16 U.S.C.secs. 1800.
lBSl(aX1)U. nitedStatesMernorialA. nnex 8.Vol.1.
'United NationsConvention ontheLawoftheSea,openedforsignature10Dec..
1982, U.N. Doc.AICONF.621122,at Art. 62. [241 ANNEXFS TO COUNTER-MEMORW OFTHE UNiTEDSTATES 291

36. One possiblesolution was to allow inspectionof fishing vesselsby
States other than the flag State. The Convention originally did not
authorize such a program. The Commissiontherefore adopted in 1963a
proposalto amend the Conventionso asto authorize the Commission to:

". ..rnake proposals for national and international measures of
control on the high seas for the purposes of ensuring the
application of the Convention and the measures in force
thereunder '".

The Protocol Relating to Measures of Control entered intoforce on 19
December 1969 '.

37. At about this same time, in 1964,the Northeast Atlantic Fisheries
Commission (NEAFC) began to develop an international enforcement
prograrn for the Northeast Atlantic Ocean. The United States realized
that, becausemostof the Parties to ICNAF were also Partiesto NEAFC,
the NEAFC enforcement program would have an influence upon what
wouldbe acceptable in ICNAF. Therefore, ICNAF proposedto NEAFC
that non-rnembersof NEAFC be permitted to work withthe NEAFC
Comrnittee that was developingan international enforcement program.
NEAFC accepted thisidea, and the United States and Canada participat-
ed actively in the work of the NEAFC Committee entrusted with the
developmentof that program '.

38. In 1967, after NEAFC adopted its enforcement program, the
United States proposed the establishment of an ad hoc committee to
reviewthe NEAFC program in the light of ICNAF's needs '.The ad hoc
Committee on Trawl Regulation undertookconsiderationof the NEAFC
plan in 1967 '.The principal debate in the Committee was between the

United States and the Soviet Union.The Soviet Union wantedto prevent
broader international enforcementauthority than that existing under the
NEAFC plan, while the United States sought stricter controls6. The
Committee produced a draft plan in 1968,and the United States pressed
for its adoption at the 1970 Annual Meeting. Despite reservations by

'ICNAF Proceedings ,963,Doc.17.Item 3.
'21U.S.T.576,T.I.A.S.6841. ReprintedarAppendixA,pp. 33-34.
'ICNAFProceedings. 1965.Doc. 15,ltem 3.
'ICNAFProceedings. 1967.Doc.9, ltem 10,andDoc.23,ltem 5.
'The NEAFC enforcementprogramprovidedfor the boardingof vesselsof
memberStatesbyenforcemeno tfiïcialsofanymemberState.forinspection ofthe
netson deck,and for reportsof infringementsto the ilag Statc of thevesse1
inspected. clow-deciknspections. e.,ofthecatch,were notauthorizedunderthe
ariginalNEAFCprogram.
61CNAFProceedings. 1968.Doc.19andApp. 1.Forexample,the UnitedStates
soughtauthorityforenforcement officiaitoinfpectareasbelowthemaindeck.292 GULF OF MAINE 1251

Soviet-bloc States regarding inspection below decks ',the Commission
adopted the Joint International Enforcement Scheme at the 1970
meeting.

39. As originallyadopted, the Joint International EnforcementScheme
authorized designated enforcement officials of Contracting Parties to
board fishingvessels of other Contracting Parties, and to inspect gear,
catch, and logs of the vesselsin order to ascertain whether they were in
compliancewith ICNAF regulations. The inspectorswmpleted standard
report forms, which were forwarded to the Commissionand to the flag
State of the vesselinvolved '.

40. Thereafter, the United States wntinued to work for improvements
in the inspection program. In 1973, the United States proposed to allow

inspectors to detain a vessel found to have committed a significant
violationof the regulations, inorder to foreclosecontinuingviolationsand
to preserve evidence, until the appropriate authorities of the flag State
accepted responsibility for the vessel'. The distant-water fishing States
argued that this proposal would violate the principle of exclusive flag-
State jurisdiction over fishing vessels beyond the territorial sea. The
detention proposal was rejected. The Commission didadopt. however,
other improvements to the inspection program proposed by the United
States, including a requirement that each flag State report the actions
taken against violatorsunder domesticlaw '.

41. At the Annual Meeting in June, 1974,ICNAF adopted a modified
United States-Canadian proposal that authorized an inspector, with the
permissionof the flag State, to remain aboard an offending vessel until

the appropriate disposition of the case was made'. The inspector could
also remove,or tag and seal, portionsof a net or other fishing gear being
used in violation of the Commission's regulations. This proved to be
inadequate, however,as detention of a vesselrequired the permission of a
flag-State inspector,whichoften wuld not beobtained.

'ICNAF Proceedings, 1970,Doc. 8,and Doc. 15,App. II.The SovictUnion.
Poland,andRomaniamaintained reservations,ndinspection belowdecksofthcir
vcsselswasnotpermitteduntil 1974w , hentheresewationswerewithdrawn.
Ibid..1970,Doc.15and App.1.
'ICNAF Proceedings. 1973(AnnualMeeting), Doc. 4,Item 4 (gXii),ndApp. 1.
5(ii).
Ibid.. 1973(AnnualMeeting),Doc. 4. Itemqe). The UnitedStatesmadethis
proposalbccausc its fishcrmcn.who wcrc forcedto wmply with ICNAF
regulations,cornplaincdthat the forcignfleetswerenot so constraincd.as flag
Stateswcrc not taüng actionagainst theirfishermanwhowerefoundwmmitting
violations.
'ICNAF Proceedings. 1974,Doc. 4. pp.121-130.1261 ANNEXES TOCVUNTER-MEMORU OFTHE UNITED STATES 293

42. As a result, the United States, in 1975, again proposed to allow
vesselsthat committed significant violationsof the Commission'sregula-
tions to be detained until the arriva1 of flag-State authorities. The

Commission discussedthe proposal al the Special Meetings held in
September, 1975, and in January, 1976, but took no action '.Consider-
ation of that proposal, however,accelerated the adoptionofa requirement
that each flag State havingmore than 15vesselsfishingin the Convention
Area must have an inspector presentand able to receive,and to respond
to, reports of violations by its vessels'. In addition, the Commission
adopted a United States proposa1authorizing an inspector to order a
vessel found to have committed a significant violation to cease fishing
until authorities of the flag State could becontacted'.

43. Apart from the inspectionand detention plan, the Commission also
adopted other United States proposals to improve enforcement powers.
These included a systemof registration for vesselsfishing in the Conven-
tion Area ',a requirement that vesselsfishing inSubareas 4 and 5 and in
Statistical Area 6 carry Commissionobsewers who wouldreport onvessel

compliance with ICNAF regulations ',a requirement that vesselsfishing
in the ConventionArea maintain catch logbooks 6,and the publicationof
a simplifiedguide to the increasinglycomplexICNAF regulations '.
44. The United States, throughout ICNAF's history, continued to

propose improvements to ICNAF's enforcement program, and some of
these proposalsprovedsuccessfulin part. Nevertheless, ICNAF failed to
implement an effective enforcement program. As late as January, 1976,
the United States communicated, by diplomatic note, the following
statement to the other ICNAF members:

"For several years the United States has encouraged wider
participation in the Scheme of Joint Enforcement. lnspectors
names are providedto member governments,but in fact, there is
no evidencethat actual participation in the form of full-scaleat-
sea inspection has increased. Violationsremain undetected by

'ICNAF Proceedings. 1976(Special Meeting J,an. 1976).Doc.2.ltem 8.
'ICNAF Annu~l ~roceedings. Vol.26,p. 85. ICNAF Proceedings. 1976(Special
Meeting,Jan. 1976).Doc.2.ltem24.

'ICNAF Proceedings, 1976,Doc. 2. Item2qb). See pp. 79-87fora summaryof
the discussionby STACTICon the UnitedStatw-proposedamendmentsto the
Joint International EnforcementScheme.
ICNAF Proceedings.1976(Special Meeting on Enforcement) .pp. II, ltem 8,
andAnn. F.
'ICNAF Proceedings. 1976(AnnualMeeting),Doc.4, Item19,andApp. 1,Item
4.
ICNAF Proceedings. 1970.Doc.13,ltem5.
'ICNAFProceedings. 1967,Doc.15.ltem8, Doc.17.Item3.andApp.1.294 GULFOf MAINE [27-281

wuntries that send their vesselsto fish in the ConventionArea. It
appears clear to U.S. officialsthat most Member Nations haveno
effectivedirect control overtheir vesselsfrom the time they leave
port until the time they return. The result of this negligence has
been an epidemicof infringements.

..........................................

Over the past four years data on incidents reported to U.S.
officialsshowthat on numerousoccasionsMember Nations have
allowed their fleets to continue fishing far beyond the data [sic]
when their allotted quota for a specieshad been caught.
..........................................

The overwhelmingimpression arises that many individual cap
tains and in some cases entire fleets are being poorly advised of
their responsibilitiesto ICNAF, or if correctly advised they are

not beingmanaged properly to assure proper adherence. Individ-
ual fishing captains, because they are not threatened with
immediate prosecution and loss of right to fish, take risks and
violate, knowing that eventual punishment, if any, will be offset
by the full cargo of fish brought home.This lax attitude on the
part of the captains, and their apparent scoffing at regulations,
exist hecause Memher Nations have not participated sincerely
and fully in the Scheme of Joint Enforcement '."

The United States note then proposed further improvementsin the Joint
International Enforcement Scheme, including an "overquota penalty"
that wouldcause a State's quota allocation to be reduced by 250per cent
of theamount of any fish taken in excessof a quota. These proposais were
never adopted. The statement, however, illustrates both the continual
United States efforts to improvethe enforcement of ICNAF regulations
and the sense of frustration that led the United States ultimately to
extend its exclusivefishery-managementjurisdiction to a distance of 200
nautical miles.

'See NotefromUnitedStates ICNAFCommissioners tM o cmberCountrieson
Strengthcningand lmprovingthe Schemeof Joint InternationalEnforcement,
ICNAF,CommissionerD s ocument7612. Reprinfed01 AppendixM. CHAPTER IV

SPECIFIC MANAGEMENT MEASURES AWPTED BY THE COM-
MISSION CONFIRM UNITED STATES LEADERSHIP IN PANEL 5,

REFLECïING THE~PREDOMI-~NT INTEREST~-- -HE UNITED -. ---- -- ----
STATE INS GEORGES BANK. AND CANADIANLEADERSHIP IN
PANEL4

45. The United States and Canada were original members of both
Panels 4 and 5. The pattern of activities of the two States within those
Panels reflects their respective interests in those Subareas. The United
States wasresponsible for proposingessentiallyal1of the conservationand
management measures in Panel 5. Canada, in turn, was responsible for
proposingmost of the conservationand management measuresin Panel 4.
Within Panel 5, the United States consistently pressed for stronger
regulatory measures for Subarea 5. In fact, Subarea 5 was ICNAF's
"testing ground" for regulatory measures.Often, after a United States

proposa1had proven effective in Subarea 5, Canada would submit an
identical proposal for a regulation in Subarea 4. Canada was generally
supportiveof the United States proposalsfor Subarea 5, and the United
States was generally supportiveof the Canadian proposalsfor Subarea 4.

46. Tables BI-B25, beginningat page 47, summarize the research and
management activitiesof the United States and of Canada with respectto
Subareas 4 and 5. They demonstrate, on a year-to-year basis, that the
United States assumed the lead in conservationand management propos-
als in Subarea 5, while Canada assumed the lead regarding Subarea 4.

SECTION 1. The U~ted States Proposed Net-Mesb Regulations For
Subares 5
47. The need to regulate the Georges Bank haddock fishery had been

the principle reason that the United States sougbt the establishment of
ICNAF. At the first Annual Meeting in 1951,the United States proposed
a minimum mesh-sizeregulation for haddock fishingon Georges Bank '.
This proposal was adopted at the 1952 Annual Meeting1 and proved
effectivein Subarea 5.In 1955,the United States proposed,and the Panel
agreed, to extend the net-mesh regulations to cod in Subarea 5, and to

'ICNAF.R.wrt.ofthe FirstAnnualMcetinn. -.2-10 Aor.1951... 7.
'ICNAF, Reportof the Meetingof Panel 5. 26-27 Fcb. 1952. Reprintedor
Ap~ndixN.regulate the incidental catch of cod and haddock by vessels fishing for
other species '.In that same year, Panel 4. acting upon a Canadian
proposal, established for the first time cod and haddock net-mesh
regulations in Subarea 4 '.

48. In 1956,the United States proposed a modificationto the niles
goveming the incidentalcatch of cod and haddock3.The proposal would
have allowed vesselsfishing for unregulated stocks of fish in Subareas 4
and 5 to use smaller-size net meshes, providedthat no more than 10 per
cent of their total annual catch was comprised of the regulated species,
cod and haddock."Canada was reluctant to adopt this form of exemption
but could accept [it] as an experiment in Subarea 5 ...ln. This
experimental program proved successful in Subarea 5, and was later

implementedin Subareas 3 and 4, based uponCanadian proposals '.

SECTION 2. The United States Proposed the Adoption of Stronger
ConservationMeasures For Subarea 5 Beginningin the Mid-1960s
49. Mesh-size regulationwas the primary conservation tool used hy
Panels 4 and 5 from 1950to the mid-1960s.Once the large distant-water

fleets entered these fisheries,other regulatory measures were required to
protect the stocks. As discussed above, the United States proposed both
globaland national catch quotas. The United States, in regard toSubarea
5, and Canada, in regard to Subarea 4, also sponsoredother measures.
50. In 1969,the United States proposedthat portionsof Georges Bank

be closed to fishing during the haddock spawningseason ',and that a
global quota be establishedfor haddock inSubarea 5 6.Canada proposed
a similar quota for haddock catches in Subarea 4 '.The haddock quotas
were referred to a joint meeting of Panels 4 and 5 for further consider-
ation. That meeting adopted the United States proposalforSubarea 5and
the .Canadian proposal for Subarea 4 '.These were the first catch limits
for any ICNAF stocks.

51. In 1970, Panel 5 accepted United States proposals to reduce the
haddockquota, to extendthe closed-area regulationsbyone month,and to

'ICNAF Annual Proceedings. 1955,pp.11-13.
>Ibid.p. 13.
'ICNAF Annual Proceedings, 1956,p. 15.

'ICNAF Proceedings. 1965,Doc.13.Item3(b).
'ICNAF Proceedings. 1969,Doc.16,App. 1,II.
'Ibid..1969.Doc.16.App.II.
'Ibid.,1969,Doc.16.App.III.
'Ibid..1969,Doc.16. See discussionof UnitedStatescatch-quotaproposalsfor
GeorgesBankstocks,pp. 20-22.paras.27-32. (311 ANNEXESTO COUNTER-MEMORULOFTHE UNITEDSTATES 297
extend the mesh-sizeand quota regulations to yellowtailflounder '.Panel
4 adopted similar regulations, proposed by Canada, for haddock in

Subarea 4 '.
52. In 1971, Panel 5 adopted United States proposals to increase the

mesh sizeand to decrease the quota for yellowtailflounder in Subarea 5 l.
The United States also proposeda prohibitionon haddock fishing,except
for incidental catches, in Subarea 5 '.This proposal was modified in a
joint meetingof Panels 4and 5 to limit the directed fishery for haddockin
Subarea 5 to 6000 metric tons '.The joint meeting also adoptedsimilar

regulations proposedby Canada for haddock fishing inSubarea 4
53. By 1972, the New England fishing industrywas faced nearly with

extinction. Total catches of ICNAF stocks had fallenprecipitously.and
total United States catches had fallen below traditional levels. ICNAF
industry advisorsfrom the United States formally recommendedthat the
United States withdraw from ICNAF; bills were introducedin Congress
to extend United States exclusivefishery-management authority. Faced
withthe threat of United States withdrawal, ICNAF adopted an unprece-

dented 23 regulatory proposals at its 1972 Annual Meeting, including
fifteen national quota allocations.The United States proposed mostof the'
measures forSubareas 5, and Canada proposed mostof the measures for
Subarea 4.

54. The principal regulatory proposal adopted by ICNAF in 1973was
the two-tierquota systemfor Subarea 5, discussed aboveat paragraphs 29
through 32. This was adopted only after extraordinary pressure by the

United States. At the Annual Meeting in June, 1973,the United States
refused to agree to any other regulatory proposals unlessthe two-tier
system was also adopted. The meeting resulted inan impasse,and raised
the prospectof the total breakdownof the ICNAF system. Consequently,
in October, 1973, ICNAF convened an unprecedented third meeting
within a singleyear. At that meeting, Panel 5 adopted thetwo-tier quota

system, as well as second-tier quotas proposed by the United States, for
the 1974 and 1975fishing seasons inSubarea 5 and Statistical Area 6'.
lCNAF also adopted United States proposalsfor quotas on cod, haddock,
herring, red hake,silverhake, flounder,yellowtailflounder, and mackerel

ICNAF Proceedings .970,Doc.5, Items7, 8,and Apps. III. IV.

1bid..1970, Doc. 6,Item 6.
'ICNAF Proceedings .971.Doc. 6, App. II. III.
'Ibid..Doc.6. Item7.
'Ibid..Doc. 13.App. 1.

Vbid.. Doc. 13,App. II.
'ICNAF Proceedings ,979(SpecialMeeting,Oct. 1973). Doc. 3,and App. 1. 298 GULF OF MAINE ~321

in Subarea5, and Canadianproposalsforquotason haddock, redfish, hake, and
yellowtaifllounderinSubarea4,andpollockinSubarea4and5 '.

55.In 1974,the UnitedStatesproposedtoclosetheGeorgesBankgroundfish
fisheryforal1of 1975,inordertoprotecttheimportanthaddock stock iSnubarea
5'. As a compromise,Panel 5 adopteda stria by-catch quotafor haddock'.
CanadaproposedseveralregulationsforstocksinSubarea 4 '.

56. At the insistenceof the United States, Panel 5, in1975, reducedthe
second-tierquota from 850,000metric tfoors1975to650,000metric tonsforthe
1976fishingyear'. Canada proposedquotasfor codand herring, aswellas
regulations for other stois,Subarea 46.

SECiïON 3.The UnitedStates andCanada UsedtheConceptof Coastal-
State PreferencesAgainstDistant-Water States; The Second-Tier Quotas
ReflectthePredomiuantInterestoftheUnitedStatesiuSubarea5
57. Beginningin 1972,after the Convention wasamended to authorize

national quotas, it became necessary to allocate catches of some stocks
among the various States. 90th the United States and Canada argued
that a substantial portionof the national quotas shouldbe allocated tothe
coastal States. "Coastal State preference" was their common defense
against the huge distant-water fleets. For tactical reasons, it was often in
the interests of bath the United States and of Canada to be treated as
coastal States bath in Subarea 4 and in Subarea 5. Nonetheless. the
United States was clearly the dominant State in Subarea 5, and Canada
was the dominant State in Subarea 4.

58. The United States first proksed the concept of a coastal-State
preference in 1970, in anticipation of the impositionof national quotas.
This proposalrelated only to haddock catches in Subarea 5. The United
States recommendedthat, for the near-term,

"(1). ..haddockstocksin Subarea 5 be reservedtothe US., with
incidental catches only permitted to the fishermen of other

'ICNAFProceedings, 1973,pp.157-184 ;eegenerollythesummariesofmeetings
of Panels4 and 5 for the Canadianand UnitedStates regulatoryproposals.
@@ Pollock isa cross-S"bareastock. See Figures7 and 36of the UnitedStates
MemonalandPart III,Chapter III,Section7,andAnnex 1 ofthe UnitedStates
Counter-Memorial.
ICNAF Proceedings. 1974-1975 (SpccialMeeting,Nov. 1974)R . eportof Joint
MeetingofPanels4 and 5.p.6. Item13.
'Ibid..(SpecialMeeting,Nov.1974).Report ofJointMeetingof Panels4 and 5,
p.7, Item16,andApp. XII.
'Ibid..(SpccialMating, Nov.1974).Report oftheJoint Meetingsof Pane4 lsand
5. pp.7and II, Items18and31.andApp. IX.
ICNAFProeccdings. 1974-1975D , oc.II, Item6,pp.217-219.
'Ibid..pp. 199-216.t331 ANNEXESTO COUNIER-MEMOWL OF THE UNITEDSTATES 299

member governments with some special consideration forCana-
dian fishermen in view of the longstanding special relationship
between Canada and the U.S. in the, haddock fisheries in
Subareas 4 and 5 '".

The United States proposedthat: for the long-term, andafter the haddock
stock bad been rebuilt, the United States receivea coastal-State allocation
of 20 per cent of the catch; 60 percent bedividedamong Contracting Par-
ties in proportion to their 1955-1964 catches; 15 per cent be dividedin
proportionto the recent 1967-69period;and, 5 per cent remain unallocat-
ed '.The United States proposedthatthe 1965-1966catches be disregard.
ed as representing statistical aberrations and biologicalcatastrophes.

59. ICNAF did not act upon the United States proposal. Although
allocation criteria were debated at a number of meetings, national
allocations to which the Commission agreed never reflected a strict
formula for allocating national quotas'. Rather, national quotas were
arrived at through negotiations. In fact, as noted at paragraph 53, the
difficultyof negotiatingquotas required ICNAF in 1973to begin meeting

three timesa year. Forthe mostpart, the national allocations reflectedthe
recent fishing patterns. Coastal-State considerations did influence the
negotiations, however,particularly the determination of national quotas
for traditional fisheriesuch as cod ,addock, yellowtail flounder, and
redfish. In this respect,the United States receivedpreferential treatment
in Subarea 5-and Canada in Subarea +as reflected by the fact that
the United States catch in Subarea 5, and the Canadian catch in Subarea
4, were not reducedproportionately as the total catch dropped.

'ICNAF Proceedings.1970,Doc.16, App. 1.Ann.1.[Emphasisaddcd.]
'ICNAF Proceedings, 1970,oc.16.App. 1,Ann. 1.

ashthe"40-40-10-10svstem".whichwould~roduce~rcliminan,allocationskonthe
followinghasis:

- 40Dercent of TotalAllowableCatchallocatcdbaseduwn a IO-year
histori&lcatch;
- 40Dercent ofTotalAllowableCatchallocatedbaseduwn a 3-year
historicalcatch;
- 10wr centofTotalAllowableCatchallocatcdtocoastalStates;
dcvclopingfishcrics.AllowableCatchreservedfornewentrantsand

After the prcliminaryallocationsweremade.however,States weredissalisficd
withtheir quotasproposedon this basisand undcrtmknegotiationswithothcr
Statcs,seckinga moresatisfactoryrwult. Conscqucntlyt.he final quotasbore
littlcrcsemblanceto thoscproposcdunderthe"40-40-10-10"system,whichwas
swn abandoned, andthe previousycars'quotaswerc used to setthe prcliminary
allocations.300 GULFOF MNNE i341

60. National quotas were instituted for herring in 1972 and for other
speciesin subsequent years. AppendixQ lists the national quotas adopted
by ICNAF for Subarea 5 (and Statistical Area 6) and for Subarea 4 for
the years 1974, 1975, and 1976.Both the scope and the size of the
national allocations confirmthat the United States had the predominant
interest in Subarea 5.

61. In Subarea 5 and Statistical Area 6, the United States receivedan
allocation for every stock of fish subject to quota regulations, while
Canada received allocations for only a few stocks. For example, the
United States received an allocation for 1974 for each of the 12 stocks
subject to quotas, whileCanada receivedallocationsof onlythree ofhese

stocks. For 1975,the United States, on the one hand, receivedallocations
for 18 of the 19 Subarea 5 stocks subject toquotas (the nineteenth, the
haddock fishery, was closed for the season);Canada, on the other hand,
received allocations for only two stocks. In 1976,Canada received
allocations for only three of the nine categories subject to quota regula-
tion, while the United States again receivedquotas in al1categories.

62. The volumeof each State's quotas in Subarea 5 is indicated by the
second-tier quotas, which limit the total of each State's direct and
estimated incidental catch ofal1species.Table A shows the second-tier
quotas for each year forwhich they wereset.

TABLE A
Second-TierQuotas (Subarea 5 and Statistical Area 6)

United States Canada Total (au States)

1974 195,000 25,000 923,900
1975 211,600 26,000 850,000
1976 230,000 18,000 650,000

The second-tierquota fell each year, from 923,900metric tons in 1974,to
850,000 metric tons in 1975,to 650,000 metric tons in 1976a 29.6 per
cent decrease. Canada's quotas during these years dropped by a corre-
sponding28 per cent. It should be noted, bowever,that the United States
quota increased, from 195,000metric tons, to 21 1,600 metric tons, to
230,100 metric tons. Thus, the United States second-tierquota increased

from 21 per cent to 35 per cent of the total. Moreover,the United States
second-tierquotas were eight to ten timesas large as those of Canada. THE SCIENTIFIC RESEARCH ACïIVITIES OF THE UNITED
STATES ANDOF CANADAUNDER ICNAF
63. The scientific research activities of the United States and of
Canada under ICNAF confirm that the United States was the State with
the predominant interest in Subarea 5,and that Canada was interested

principallyin the major fishingbanks located in Subareas 3 and 4.

Section 1. The United States ConductedMost of the Scientific Researcb
on Georges Bank,WhileMost CanadianResearchConcernedthe Fisberies
in Subareas 3and 4

64. The United States Memorial describesthe history of the scientific
study of the fisheries of the Gulf of Maine and Georges Bank by the
United States Government, including the establishment of the United
States Fish Commissionin 1871, the establishment of the Woods Hole
fisherieslaboratory in 1885,and the pioneering workof the United States
Bureau of Fisheries in the early part of the 20th century '.In the years
prior to the formation of ICNAF, the United States conducted substan-
tially al1 the research in what became ICNAF Subarea 5 '.Canada
conducted noneof this research '.

65. Throughout the duration of ICNAF, the United States, in compari-
son to Canada, conducted the overwhelming majority of the fisheries
research in Subarea 5, while Canada conducted most of its research in
Subareas 3 and 4.

66. The lCNAF Annua! Reports list the scientific research conducted
in each Subarea. These efforts are summarized in Tables BI-B25,
beginning at page 47. As the tables indicate, the United States was the
only Contracting Party to report scientific research in Subarea 5 until
1959. In those years, the United States also conducted researchin al1
other Subareas; Canada,however, reported conducting researchonly in

Subareas 1, 2, 3, and 4.

'UnitedStatesMemorial, paras1 .21-128.
Ibid.para. 128";BibliographyG, roundfishInvestigationsy the U.S.Govern-
ment in the Northwest Atlantic" supra p. 3. n. 4.ICNAF. SecondAnnual
Meeting,1952. Doc. V(a).
A. H. Needlcr,"Summary oC f anadianResearch inConvention Area",ICNAF,
Second AnnualMeeting,1952, Doc. V(e),p.2.Reprinied alAppendixC2.302 GULF OFMAINE t361

67. As noted in the United States Memorial, between 1960and 1976,
the United States submitted 68 per cent of the total scientific research
documents submitted to ICNAF concerning Subarea 5, while Canada

submitted eight per cent '.Most of the Canadian research pertained to its
primary fisheries in ICNAF Subareas 3 and 4l. The United States
conducted research on most of the stocks in Subarea 5. In contrast,
Canada's research in Subarea 5 was generally limited tothe few stocks
that the Canadian fishermen exploited, andthe volume of this research
was exceededby the research conducted on Georges Bank by several of

the distant-water fishingStates. Although the United States alsoconduct-
ed research in Subarea 4, and Canada in Subarea 5, their respective
activities in these Subareas never involved the variety of stocks or the
amount of effort that each State undertook in its primary area of interest.

SECTION 2. United States Scientific Research Formed the Foundation

for the Regulatory Measures Adoptedby Panel 5
68. The United States conducted much of its research in order to

conserveand to manage its traditional fisheries in Subarea 5. Indeed, the
results of United States research provided the hasis for many of the
regulations adoptedby Panel 5. Additionally,the United States instituted
a long-term research program in Subarea 5 to monitorthe effectivenessof
the regulationsthat were adoptedand, beginningin 1963,a routine yearly
survey of the fish stocksin Subarea 4. Several examples of these United

States efforts are provided inthe followingparagraphs.
69. At the first meeting of Panel 5 in Apri1,,1951,the United States

proposed minimum mesh-size regulations for the haddock fishery, sup-
porting the proposalwith the findingsof its scientists.Canada questioned
whether net-mesh regulationswouldbe beneficia13.Therefore, the United
States conducted more research ',and presented the results to a special
meeting of Panel 5 in 1952 '.The Panel agreed at that time to establish a
minimum mesh size 6. After the regulation was enacted, United States

researchers monitoredits effects'.Based uponthis research,whichproved

'UnitedStatesMemorial,pp.72-73,para. 128.
SeeTablesB1throughB25beginningat p.47, fora summaryoftheresearchac-
tivitiesoftheUnitedStatesandofCanada,groupedbyyear, inSubareas 4 and5.
'ICNAF, SerialDoc.No. 13, Summary Report (Minutes) of Panel 5, 7 Apr.
1951.Reprinted alAppendix O.
'Graham, op. citpp 23-31.

'ICNAF,ReportoftheMeetingof Panel5, supra p. 29n.2. ReprinredaAppen-
dixN.
ICNAF, SecondAnnualReport. 1951-1952p .p.13-14.
'ICNAF, AnnualProceedings, 1954-55, p.61. (37-381 AN- TO COUNT~R-MEMORIALOF THE UNITEDSTATES 303

that the mesh-size regulation did indeed protect the haddock stock,
minimum mesh-sizeregulations also were established forthe cod. yellow-
tail flounder, and hake fisheries in Subarea 5, and for the cod and
haddock fisheries inSubarea 4.

70. Minimum-mesh regulations, similar to those established under
ICNAF, are in effect today for the United States cod, haddock, and

yellowtailflounder fisherieson Georges Bank.
71. A secondexampleof United States research furnishingthe founda-

lion for important regulatory measures is the investigation of haddock
spawning on Georges Bank '.The work, which was begunwhen foreign
fleets began fishingthe Georges Bank haddock stockin the mid-1960s ',
enabled United States scientists to determinethe lime and locationof the
haddock spawning.At the 1969Annual Meeting of the Commission,the

United States proposed,and Panel 5 adopted, a prohibitionof al1bottom-
fishing in the haddock spawningareas during the months of March and
Apri12. After it had conducted additional research, the United States
proposedmodificationsto the closed-area regulations,which Panel 5 also
adopted '.These area closures(with slight modification)are still a part of

United States domestic fishing regulations.
72. The two-lier quota system, which wasregarded as ICNAF's most

important regulatory innovation, was also based upon scientific research
conducted by the United States. In particular, it was a 1973 research
paper' prepared by the Northeast Fisheries Center, at Woods Hole,
Massachusetts,on Cape Cod,that pointedout the interminglingof species
onGeorges Bank,the resulting by-catch problem,and the implications for
conservationof the stocks in Subarea 5 and Statistical Area 6.

'ICNAF Redbook 1969. Part II,(BiologicaSl tudies)pp. 133-134:R. Henne-
muth, Stotus of the Ceoraes Bank Haddock Stocks. and ETfecrsof the Recent
High Levels ~ishing~lfor;. 1968ICNAF.ResearchDocument No 68/92 (Serial

No. 2086).
'ICNAFProceedings. 1969, Doc. 16.and App. II.
'ICNAF Proceedings. 1970, Doc. 5, Item 7, Review of Conservation Measures
and Proceduresfor Haddock.
'B. E.Brown,J.A.Brennan,E.G.Hcycrdahl,and R.C.Hcnnemuth ,Tfectofby-
catch on the Management of Mixed Species Fisheries in Suborea 5 and

Srarisiical Are0 6. ICNAF Redbook 1973, Part III,Res.Doc. 73/99. Reprinied
ar AppendixP.See alsoUnitedStatesMemorialpara. 127,n.3. CHAPTERVI

UNITED STATES AND CANADIANENFORCEMESTACTIVITIES
UNDER THE ICNAF JOINT INTERNATIONAE LNFORCEMENT

SCHEME REFLECTTHE PREWMINANT INTERESTOF THE
UNITED STATES INSUBAREA5ANDOFCANADAIN SUBAREA4
73. ICNAF adopted the Joint International Enforcement Scheme in
1970. The history of enforcement activities carried out by the United
States and Canada under that program also confirm that the United
States was the State with the predominant interest in Georges Bank, and
that Canada was interested primarily in the important fishing banks in
Subareas 3 and 4.

74. Both the United States and Canada were required to adopt
domestic legislation implementing the inspection program, as provided by
the 1970 Joint International Enforcement Scheme, before they wuld
permit their vesselsto be boarded and inspected on the high seas by other
States, and before they could board and inspect foreign-flag vessels. The
United States enacted the necessary legislation on II August 197'The
United States Coast Guard began boarding foreign vessels that same day.
Canada, however, was not ready to participate in the joint enforcement
program until 1 July 1973.

75. The United States designated three Coast Guard cutters as
inspection vesselsin1971.The number of United States inspection vessels
increased to eight by July, 1973, and to 18 by July, 1975. United States
boardings and inspections of foreign vessels increased correspondingly,
from 16 in 1971 to 574 in 1976'.
76. The United States.wnducted aircraft patrols, and inspected foreign
vessels throughout the year and throughout Subarea5,including Georges
Bank, and did so for at least three months of the year in SubareaCan-
ada, by wntrast, wncentrated its enforcement efforts in Subareas 3 and
4.

' 16U.S.C.secs. 98- 991;repealedby 16U.S.C.secs.1801,1881(1976).

reportsfiledbythe enforcementofficers.The recordsof UnitedStates boardings
were reviewedat the regional headquarters of the National Marine Fisheries
Service, Gloucester,Massachusetts. Therecords ofanadian boardingswere
revicwcdat the headquartersof the NorthwestAtlantic FisheriesOrganization
(NAFO).NAFO is the successororganizationto lCNAF and maintainsarchives
of al1ICNAFdocuments.
'The UnitedStates CoastGuard wnductedsurveillanceflightsofSubare5 ona
wceklybasis beginningin 1969.The flightswere conductedycar-round.and.
Voofnofeconrinuedon nexrpage) [40-441 ANNEXESTOCOUNTER-MEMOIUN OFTHE UNITEDSTA~ 305

77. Boardings and inspections under the ICNAF Joint International
EnforcementSchemewere mostprevalent in 1976,the last year of fishing
before the establishment of 200-nautical-milezones by the United States
and Canada. In that year, the United States inspected 574 vessels,
including 84 vessels inthe area between the boundary proposed bythe

United States and the Canadian line. Canada inspected 539 vessels,
including 25 in the area between the boundary proposed by the United
States and the Canadian line. Figure 4 illustrates the locations of the
boardings and inspections wnducted during 1976 in the vicinity of
GeorgesBank.Quite clearly, the United States assumedthe responsibility
for implementingthe lCNAF Joint International EnforcementSchemein
Subarea 5, and in particular on Georges Bank and on the northeastern
portion of the Bank, while Canada wnducted most of its enforcement

@ activitieson the large fishing banks to the north. Figure 5 is a plot of the
locations of United States and Canadian boardings on a smaller scale
chart. As demonstrated, Subarea 5 was the primary focus of United
States' enforcement operations, and Canadian enforcement operations
were largely confinedto Subareas 3 and 4.

Lfoormreconrinuedfrom previouspage)
during summermonths,the numberof fligbts oftenreachedfour per week.
Canadaconductedmasional flighisinSubarea 4;howeverC, anada'sovcrflights
of Subarea 5 werenormallylimitedto the monthsof March.April, and May,
whenthe UnitedStatesand Canadaconductedjoint enforcement operation ts
ensurecompliancewiththeclosed-area regulations. CONCLUSION

78. The history of ICNAF must be viewed from two perspectives. On

the one hand, ICNAF was transformed, under the leadership of the
United States, into the most modern and innovativeinternational fishery-
management organizationin the world. On the other hand, notwithstand-
ing the rapid expansion of its regulatory authority during the 19705,
ICNAF was unable to exert sufficient control over the large, distant-
water fleets'.

79. Morwver, the United States wasunable, within ICNAF, to protect
its traditional fisheries.It was the historic interest of the United States in
the fisheries off its coast, especially the Gwrges Bank fishery, that had
prompted the United States to seek the establishment of ICNAF; to
devote significant diplomatic, scientific, and policing efforts, over the
course of many years, to the goal of making ICNAF effective; and,
ultimately, to withdraw fromICNAF and to extend its exclusive fishery-
management jurisdiction to a distance of 200 nautical miles.

80. The United States and Canada often cwperated within ICNAF to
protect their fishermen from the distant-water fleets. Each concentrated
its efforts, however, onthe fisheries off its own coast. In Subarea 5, the
United States providedthe leadership, conductedmostof the research and
enforcement, proposed mostof the management measures,and received
the bulk of the allocations based oncoastal-State preference. Canada, on
the contrary, concentrated its resources on the management of the vast

fisheriesin Subareas 2, 3, and 4.
81. Each State also was involved, to a lesser extent, in the fisheries
located outside its area of primary interest. The United States was an
original member of Panel 4 and Canada an original member of Panel 5.
The United States fished in Subareas 3 and 4, and Canada fished in

Subarea 5. Canada's secondary involvementin Subarea 5,however,did
not amount to an equal "partnership" withthe United States. According-
ly, it no more entitles Canada to a share of Georges Bank than the
interests of the United States in Suhareas 3 and 4 entitles itatshare of
the fishingbanks located there.

'The increasein fpreignfishingactivityin Subareas34, and 5 isillustrated at
Figure10of theUnitedStatesMenorial.[471 ANNEXESTOCOUNTER-MEMORIALOFTHE UN~D STATES 307

TABLES BI tbrough 825

Tables Bi through B25 providea summary of the major activitiesof the
United States and Canada for the period 1951through 1976.The tables
were prepared from ICNAF Annual Proceedings and ICNAF Proceed-
ings. The tables outline the major management proposaisand scientific
researcb activitiesby the United States and Canada in regard toSubareas
4 and 5.Additionally, the tables providea summary of the major actions

of the United States and Canada affecting the Commissionas a whole.
The tables demonstrate that, under ICNAF, each State assumed a
leadership rolewith respect tothe Subarea contiguousto its Coast.For the
United States, this was Subarea 5;for Canada, it was Subarea 4.308 GULFOF MAINEANNEXESTO COUNTER-MEMORW OfTHE UNmD STATES 309310 GULF OFhiAlNBANNEXESTOCOUNIER-MEMORIAO LFTHEUNITEDSTATES 311312 GULFOF MAINEANNEXESTOCOUNTER-MEMORUO LFTHEUNITEDSTATES 313314 GULFOF MAINEANNEXESTOCOUNTER-MEMORIAO LFTHEUNITEDSTATES 315316 GULF OFMAINEANNEXESTOCOU~R-MEMORML OFTHEUN~D STATES 317318 GULF OFMAlNeANNEXESTOCOUNTER-MEMONAL OFTHEUN~D STATES 319320 GULFOFMAINEANNEXESTOCOUNTER-MEMORIAO LFTHEUN~D STATES 321322 GULF OFMAINEANNEXESTO COUNIER-MEMONALOFTHEUNITEDSTATES 323324 GW OF MAINEANNEXESTOCOUNIER-MEMOW OFTHEUNITEDSTATES
325326 GULF OFMAINEANNEXESTOCOUNTER-MEMORIAOLFTHEUNmD STATES 327328 GULFOFMAINEANNEXESTOCOUNTER-MEMORIAO LFTHEUN~D STATES 329330 GULFOF MNNEANNEXESIO COUNTER-MEMORIAO LFTHEUNITEDSTATES 331332 GULFOFMAINE ANNEXESTOCOUNTER-MEMOW OF THEUNITED STATES 333

Appendix toAnnex3

INTERNATION COMMISSI OOR THNORTHWES ATLANTIFCISHERIEC,NAF
HANDBOO K978

[Nofreproduced]

AppendiB toAnnex3

[No:repmduced]

AppendixCltoAnnex3

Breuaorw~~,"GROUNDFIS IHVES'TIGA~~BK HSEUSGOVERNME NTTHE
NOUTHW~S ATLANTIC1,71-1952".SUBMIT~YTHE UNITEDSTATESO
ICNAF AT THSECONADNNUAM LEETING ,952MEET.INGoc.V (a)

[Notrepmduced]

AppendixCZtoAmex 3

A. W.H. NEEDLER",UMMAR OFCANADIA RNESURCHINTHECONVENTION
M, ICNAF, SECONADNNUAM LEETING1952,Doc.V (e)

[Norreproduced] AppendixD to Annex3

AGREEME NTTHEFEDERATFEISHINBOAT SFNEW ENGLAN AND
NEW YORKS, IGNE8 DECEMBE1936

[Nor reproduced]

AppendixEto Ann3x

UNITEDSTATESSECRETAOF STATEINSTRU ~OLCERTAINMERICAN
DIPWMAT INDCONSULA OFFICERDATED 31DECEMBE 1947WTïH DRAIT
CONVENTIONATTACHED

[Nor reproduced]

AppendixFto Ann3x

CONVENTIO ATTACHED

[Nor reproduced]

AppendixGtAnnex3

SECRETARY STATE'SONFIDENTIINTRUCTIONS10 THERICA ANONSULAR
OFFICER CHARGE ,TTAWACANAD AND SI. JOHN,EWFDUNDUND,
DATED10MARCH 1948

[Nor reproduced] AppendixHtoAmex3

REPOR TFTHEAMENCAC NONSUL-GENE NAST.JOHN'SEWFOUNDLAND,
OFTHE 1416 JUNE1948MEETINGD,ATE1JUNE1948

[Notreproduced]

[Nolrepduced]

AppendiJtoAmex 3

NOTENO.22 FROMME CANADIA SECR~AR YFSTATEOREXTERNA ALFNRS
TOTHEEMBA!S YFTHEUNITEDSTA~, DATE^19JANUAR1949

[Nolrepduced]

AppendixKtAonex3

5FEBRUAR 1Y49

[Norreproduced] AppendixLtoAnnex3

ICNAFPROCEEDING 1S.4.SPECICOMMISSIO MNEETINO.CTOBE1R973.

PROCEEDINN GS. 6, App.1

[Nolreproduced]

AppendixMtoAuuex 3

NOTE R<OMUNITEDSTATEICNAF COMMISSION TORSEMBEC ROUNTRIEON
STRE~NGTHE~~KCND ~MPROVIKGTHSCHEM EFJOINT~NTERNAT~ONAL
ENFORCEVEN IT, AF COMMISSIOND EOSCUMEN 6/1/2

[Notreproduced]

AppendixN tAnnex3

ICNAF, REPOR OTF THMEETINGOF PANEL5OTTAWA, CANADA,
26-27F~anumY 1952

[Norreproduced]

AppendiiO toAnnex3

ICNAF, SERIA Loc.No. 13,SUMWY REPOR(T MINUSESOF PANEL5,
7 A~RJL1951

[Nolreproduced] ANNEXESTOCOUNTER-MEMORUOf THEUNtED STATES 337

AppeodixPtoAmex 3

ICNAF REDBOO1K973,PARTIIIRES.Doc73/99, E.BROWN,
JA. BRENNA N,G. HEYERDA AND R C. HENNEM~, "EFFECT
OFBY-CATC ON THEMANAGEME NFMIXEDSPECIEFISHERIINSSUBARF5A
ANDSTATISTICAAREA6"PP.217-231

[Notreproduced]

AppendixQtoAnnex3

ICNAFNATIONA ALLOCATIO NDSSECOND-TI ER~ATION FORME YEARS
1974,197AND 1976

[Norreproduced]

AppendixRtoAnnex3

[Norreproduced] Volume III

Annex 4

* Prepared on the basis of contributions from Dr.GeoNreyBannister,Dean of the
Hennemuth, Acting Director, Northeast Fisheries Center, National Occanic andard
Atmospheric Administration, United Statesepartment of Commerce; Dr. Daniel
McFadden, JamesR KillianProfessorofEmnomics, MassachusettsInstituteofTech-
nolow: Dr. Karen Polenske,Professor of RegionalPolitical Emnomy and Planning,
~asiichusetts Institute of Technology;Dr. Giulio Pontewrvo, Professorof Ewnom-
ics,Graduate School of Business,Columbia University;Dr. James Wilson,Professor
of Emnomics, Universityof Maine; Dr.ulian Wolpert,Henry G. BryantProfessorof
Geography, Public Alfairs, and Urban Planning, Woodrow Wilson School of Public
and intemational Anairs, Princeton University. 1.The United States demonstrates in Part II of its Counter-Memorial
that considerationsof economic dependenceand relative wealth are, as a
matter of law, irrelevant to the delimitation of maritime boundaries '.In
this Annex, the United States demonstrates further that the socio-

economicarguments adduced hy Canada in its Memorial are based upon
incomplete or selective econoniicdata, resulting in a misleading analysis.
When fully considered and properlyanalyzed, the socio-economicfacts,
evenif they were relevant, donot support the Canadian line.

2. Canada emphasizes the "present and prospective economic impor-

tance" of fishingon Georges Bankto the Parties, while proposingthat the
Court split the Bank l.Canada thereby would have the Court ignore the
historic predominant interest of the United States in Georges Bank.
Moreover, canada's description of the "contemporary" fishing activities
of the Parties on Georges Bank j,which is based upon the unrepresenta-

tive ten-year period 1969 through 1978, is incomplete and misleading.
That description understates the current fishing activities of the United
States.

3. Canada exaggerates the contribution that fishing on Georges Bank
makes to its economy. Fishing on the northeastern portion of Georges

Bank does not make a significant contribution tothe economyof Canada
as a whole,representing a direct contribution, in 1980, of only 0.011 per
cent of totalCanadian employmentand 0.018 percent of total Canadian
grossdomesticproduct. Even in terms of the economyof Nova Scotia, the
direct contribution of that fishing is notgreat, amounting only to 0.4 per

cent of employment and 0.7 per cent of gross domestic product. The
contribution of that fishing to the economies of a few communities in
southwest Nova Scotia, while not approaching that suggested in the
Canadian Memorial, is more significant.The actual employmentgenerat-

ed directly by fishingon the northeastern portionof Georges Bankin 1980
was approximately 1,100 full-time-equivalent man-years.

4. Finally, Canada presents incompleteand inaccurate analyses of the
economies of Nova Scotia and southwest Nova Scotia and of the

'UnitedStatesCounter-MernoriaP l,art II, ChaptII,Section1.

'CanadianMernorialp , ara319.
'CanadianMernorial, paras .22-148.340 GULFOF MAiNE [1-21

alternatives to fishing on Georges Bank available toNova Scotia. The

ewnomy of Nova Scotia, as a whole, is more developedand diversified,
and the standard of living there is higher, than Canada suggests in its
Memorial. Alternatives to fishing on Georges Bank do exist, both in the
fishing industry itself and in the economy of Nova Scotia at large,
particularly with respectto its developingoffshoreoil and gas industry. CHAPTER 1
CANADA'S DESCRIPTION OFTHE FISHING ACTIVITIES OF THE
PARTIES ON GEORGES BANK IS INCOMPLETE

AND MISLEADING
5. In describing the fishing activities of Canada and of the United

States on Georges Bank, Canada uses data from an extraordinary and
unrepresentative period, the years 1969 through 1978 '.Canada asserts
that this period has been selectedecause it is:

"... long enough to convey a representative picture that avoids
distortions resulting from short-term fluctuations, yet short
enough to focus attention upon the contemporary reality of the
fishery "'.

6. The period chosen by Canada is not, in fact, representative of either
historic or current fishing patterns on Georges Bank'.On the contrary,
that period exaggerates the fishing activities of Canada and understates

@ the fishing activities of the United States on Georges Bank. Figure 1
illustrates the relative shares of the combined total of United States and
Canadian catches on Georges Bank from 1940through 1981. As Figure 1
indicates, there was no fishing on Georges Bank by Canada until 1954.
The small Canadian share of the combined catch increased slowly until
the early 1960s. In the mid-1960s, the Canadian catch rose dramatically.

The United States catch relative to the Canadian catch reached a low
point in 1968, but subsequently has increased, particularly since 1978.
The period of 1969 through 1978 chosen by Canada concentrates on an
interval during which the United States catch was temporarily
diminished.

--
'CanadianMemorial,paras. 122, 124, 128,129.132-134,136,138,139,and141.

'CanadianMemorial,para. 122.
'The levelof fishing activitiesby the Partiesduringthis periodof 1969through
1978reflectsa number of unusual eventsTheseinclude thevesse1construction
subsidy andfish-pricesupport programsof the CanadianGovernment, elfects of
heavyforeignfishingon GeorgesBank,the depletionof the scallopresourcesof
the northeasternportionof GeorgesBank,and the extensionof exclusive fishing
jurisdictionto200nauticalmilesin 1977See UnitedStatesMemorial, paras.80-
88; UnitedStatesCounter-Memorial,paras. 67-76. 342 GULF OF MAINE I4-81

7. The pattern is even more striking with respect to scallops, the species
@ on Georges Bank that is of the greatest interest to Canada '. Figure 2
shows that the so-called "representative period" ignores both the predomi-
- nant interest of the United States in that fishery in the decades prior to
the early 1960s, and the resurgence of United States participation in that
fishery beginning in the mid-1970s and continuing to the present. The
return to the traditionally larger role for the United States vis-à-vis
Canada in the Georges Bank scallop fishery-including the fishery in the
northeastern portion of the Bank-is confirmed, for example,-in 1981, the
last year for which finalstatistiw are available, when the United States

caught 51 per cent of the total catch, or more than twice its average share
for the years 1969 through 1978 '.
8. As these Figures show, the relative catches from Georges Bank of
@@ the two Parties differ, depending upon the period chosen for analysis. A

longer period, such as the period from 1940 to the present, arovides a
more accurate picture of the historic fishing activities of the Parties on
Georges Bank. A more recent period, such as the latest year or the latest
four or five-year period, provides a more accurate description of the
current fishing activities of the Parties on the Bank

9. Although use of data from the period of 1969 through 1978 to
describe contemporary activities on the northeastern portion of Georges
Bank is misleading, use of data from the year 1978 alone is even more de-
ceptive4. That year was highly unusual because of the exceptional
abundance of high-value stocks (scallops, cod, and haddock) on Georges
Bank and because of the extraordinary effort undertaken by nationals of
each Party to catch those stocka. For example, the Canadian scallop catch
on Georges Bank, in 1978, was 41 percent higher in terms of weight than
was the average of the Canadian catch during the three years preceding
and foilowing 1978 '.Canada's total catch on Georges Bank in 1978,

'CanadianMemorial,e.g.paras. 113, 129,and 134.
'This calculationisbaseduponAppendix E,Table2.
'Completedata are available for the years1977through 1980in the ICNAF-
/NAFO SiarisricalBullelinr.;Datafor 1981are availableonlyat aggregatelevels
(catchby speciesby subarea by State), in "ProvisionalNominalCatches in the
NorthwestAtlantic", 1981,NAFO SCS Doc.82/V1/7.
'CanadianMemorial,paras.113, 127, 129,145,147,150,151, 155-157,and 160.
'Canada caught 12,189metric tonsof scallopsin 1978.The averageCanadian
scallopcatch in Subarea5Ze forthe years 1975through 1977and 1979through
1981,combined,was8,675metrictons.This calculationisbaseduponAppendi
E,Table2. Unlessotherwise indicated,scallopcatch ismeasuredthroughout this
Annexin mat weight. See UnitedStates Memorial,para. 83, n. 4. Canada also
usesmeatweightto measurescallopcatch in its Memorial.CanadianMemorial,
para. 133. [9-1O] ANNEXESTO COUNTER-MLMORW OF THE UNiTEDSTATES 343

measured on the same basis, was 57 per cent higher '.Nonetheless,
Canada repeatedly uses data from this highly unusual year in its
Memorial.

'The total canadian catch in Subarea 5Ze in 1978was 37,287metric tons. The
averageCanadian total catch in Subarea 5Ze for 1975through 1977and 1979
through 1981,combined. was23,697rnetrictons. This calculationis based upon
Appendix E,Tablc 1.In this regarseeUnitedStates Counter-Mernorial. Annex
18, Vol. V, whichdcmonstratesthe large increasesin the Canadian groundfish
catchesonthe northeasternportionof GeorgesBankin the periodof 1977through
1978. CHAPTERII
CANADAEXAGGERATET SHECONTRIBUTIONOF FISHINGON

GEORGES BANKTOTHEECONOMY OFNOVASCOTIA
10. Througbout its Memorial, Canada makes numerous statements
about the contribution of fishing to the employment and to the gross

domestic product of Nova Scotia. Those descriptions are misleading in
two respects. First, Canadaalludes repeatedly to the amount of employ-
ment or gross domestic product l (hereinafter GDP) generated by al1
fishing activities by the inhabitants of Nova Scotia or southwest Nova
Scotia, rather than to that generated by fishing on the northeastern
portion of Georges Bank alone'. Second, Canada compares even that
employment or GDP only to specific sectors of the ewnomy, and never to
the entire ewnomy of Nova Scotia or to that of Canada asa whole. Thus,

nowhere in its Memorial does Canada quantify the contribution that
fishing on Georges Bank makes to total employment or GDPat either the
provincial or national level.

'Gross domesticproduct (GDP)is a measure of the total flow of goodsand
servicesorovidebvan economrovcra ~articularocriodoftime.normal. . vear.
GDP measurcsboth the total outputof goodsand servicesand the total incorne
eamedbythe factorsofproduction. Onewayin whichtoobtainthevalueofGDP
isto addthe rcceiotsor incomeofal1factorsoforoduction.incl-din~thc-waeesof
al1workers,the profits ofal1business owners,the rents of al1landowners, etc.
Anothcrwayof obtainingthe valueof GDPisto add thevaluesof thc outputsof
al1goodsandservices.Toavoidcountingthwevalues morethanonce,outputsthat
aresoldtoother industriesarc cxcludedfromthe sum.Thepaymcntsto factorsof
productionbyan industryare termed"valueadded or "GDP originating"inthat
industry.Thus,the contributionof an industry toGDP is measuredby its value
added.
'For analytical purposcs.it is useful to separate the employmentand income
generated by fishing on the northeastern portionof Georges Bank into two
categories:ncorneand employment directly generatein the fishing industryby
fish harvesting andfish proccssing,and employment andincome indirectly
generated by such activities. Employment and income indirectly generated
includescmploymentand incomcgeneratedby salesof goodsand s&vicesto the
fishi-e indus..v. and c.o-o~mentand incomeinduced whcn ocrsonal incomc
generated directly and indirectliysrespentin thc ewnomy Li21 ANNeXESTOCOUNTER-MEMORW OF THE UNITED STATES 345

SECiTON 1. Canada Exaggerates the Contribution of Fishing on
GeorgesBank to Employment

11. Canada asserts that:
"In 1978, fishing was the clear leader in primary sector
employmentin Nova Scotia as a whole .. .'".

An accompanying table indicates that fishing constituted 36 per cent of
the "Primary Sector Employment" in the Provinceof Nova Scotia '.

12. These statements are examples of two common shortcomings in
Canada's economic analysis. First, they describe the contribution to
employmentof al1fishing activitiesby the inhabitants of the Province,and
not just the wntribution of fishing on Georges Bank. Second, these
statements limit the analysis to the wntribution of fishing to employment
in only one sectorof the economyof Nova Scotia, and not to the economy
as a whole.

13. The primary sector is only one of three sectors into which an
economycan be divided for purposes of economic analysis.The primary
sector includesthose economicactivitiesthat produce raw materials, such
as mining, forestry,and fishing. The other two sectors are the manufac-

turing sector, which includes those economic activitiesthat process raw
materials and transform them into finished products, and the service
sector, which includes those economic activities that produce services
rather than material goods.An accurate assessmentof the contribution of
a particular activity to an economy should include an analysis of that
contribution in terms of the economy as a whole, including al1 three
sectors. Nonetheless, Canada repeatedly analyzes the contribution of the
fishing industry in Nova Scotia to just one sector of the economy. For
example, in regard to fish processing,Canada asserts:

:'Inthe provinceof Nova Scotia as a whole,fish processingled
al1 other manuiacturing industries in terms of employment in
1978, accounting for about 15 percent of total manUfacturing
employment-a level about twice as great as that of the
provincial pulp and paper industry '."

14. Canada does not quantify the contribution that fishingon Gwrges
Bank makes to total employment in Canada, in the province of Nova
Scotia, or even in southwest Nova Scotia. The United States estimates
that Canadian fishing on the northeastern portion of Gwrges Bank

'CanadianMcmorial,para. 150.[Emphasisadded.]
Ibid.,Table2.

'CanadianMemorial,para. 160.[Emphasis addedc.itation omitted.]346 GW OFMAINE Il31

directly generated, in 1980, approximately 1,100 full-time-equivalent
man-years, 591.0 in the primary sector by fish harvesting and 487.8 in the
manufacturing sector by fish processing '.These approximately 1,100 full-

time-equivalent man-years amounted to 0.011 per cent of total Canadian
employment (Figure 3) and to 0.4 per cent of employment in Nova Scotia
(Figure 4) in that year '.

15. Canada also argues that Canadian fishing on Georges Bank
indirectly generates significant employment in addition to that generated
directly by fish harvesting and fish processing'. For example, Canada
contends:

"It is estimated that in the manufacturing sector alone, business-
es that are wholly or substantially dependent on the fishing
industry account for roughly 5 percent of total area employment.
As well (through the available statistical information does not
permit a quantitative estimate), there is obviously a considerable

amount of indirect employment generated in the many firms
that seIl supplies or provide services to the fishing industry'."
In discussing the contribution of fishing to the economy of Nova Swtia,

Canada asserts:
"Thus, without even counting its role in sustaining the broader
economy, including the-dependence of non-manufacturing busi-

nesses that provide services and supplies to the industry, the
fishery generates about one-fifth of al1employment in southwest
Nova Scotia '." . .

16. Once again, Canada directs its analysis to "the fishery" in general,
and does not quantify the employment generated outside the fishing
industry in Nova Scotia by fishing on Georges Bank. The United States
estimates that fishing on Georges Bank generated, in 1980, an additional
643.8 full-time-equivalent man-years of indirect employment in al1sectors

'Appendix B. Section 1.Table2.TheyMr 1980isthe mostrecent yearforwhich
the nccessarydata are fullyavailableSee AppendixB,Introduction.
For purposcsof this analysis,a full-time-equivalentman-yearwas treated as a
full-timeemployee.Canada. in itsMemorial,wnducts a similar analysis.Para.
171.Fishingon the northcasternportionof Gwrgcs Bankgeneratedverynearly
the same employmentin the United States. Such iishing during 1980directly
generatedclose to 900full-time-equivalentman-years;429.9full-time-equivalent

man-years in fish hawesting and 452.9 in fish processing. See Appendix B.
Section 1,Table 3.
'CanadianMemorial.paras. 165-169.
'CanadianMemorial.para. 165.[Citation omitted.]
'CanadianMcmorial.para. 169.of the economy of Nova Scotia '.Thus, the total employment, both direct

and indirect, generated in Novia Scotia by fishing on the northeastern
portion of GeorgesBank is approximately 1,700 full-time-equivalent man-
years, or about 0.018 percent of total Canadian employment and 0.60 per

'ent of employment in Nova Scotia'.
17. In describing the contribution of ils fishing on Georges Bank to

employment, Canada draws a comparison between southwest Nova
Scotia, on the one hand, and Iceland and Norway, on the other '. A
comparison between similar political and economic units would relate
lceland orNorway to al1of Canada, not merely to southwest Nova Scotia.

Fish harvesting and fish processing, on a nationwide basis, represented
only 1.1 per cent of employment in Canada', compared to 15 per cent in
Iceland ' and to 2 or 3 per cent in Norway 6.Fishing and fish processing
associated with Georges Bank directly contributes only 0.011 per cent of

employment in Canada.

'AppendixB. Introduction,Table 1.The United States estimatcsthat f~hingon

the northcastern portionof the Bankby UnitedStates nationalsin 1980gcnerated
617.1full-time-equivalcntman-ycarsof indirect employment.AppendixB. Intro-
duction,Table 2.
'These calculations are based upon Appendix B. Introduction, Table 1. and
Appendix A,Table 1.The total employmcnt,bath direct and indirect, gcneratcd

in the United States in 1980 by fishingon the nortbcastern portionof Georges
Bank is approximately1,500full-time-equivalentman-years.AppendixB. Intro-
duction,Table 2.
'Canadian Memorial, paras.173and 174.
'Canada makestbis wmparisonfor the ycar 1979.baseduponstatisticscontaincd

in Canadian Fisheries.Annual Slatistical Review,1980,Vol.II, Table 16.
'Canadian Memorial, para. 173. The United Kingdom wnceded, in its case
beforethe International Court of Justice challcngingIceland'sattempt 10cxtend
its exclusivefishingjurisdiction Io a distance of 50 miles from its wasts, that
Iceland was more ewnomically dependent upon her coastal fishcries than any

other independentStatc. I.C.J. Pleadings,Fisheries Jurisdiction, Vol.1..p. 33.
Tanada also makesa comparisonbetweenNovaScotia and northernNonvay, in
whichCanada contendsthat 10 or 15per cent of the employmentdependsupon
fishing.Canadian Memorial, para. 174. ln 1951. when the United Kingdom
challenged Norway'sassertion of exclusivejurisdiction over ils wastal fisheries

before the InternationalCourt of Justice, Norway argucdthat one-haIfthe adult
male populationin northern Norwayand 70 to 80 per cent in the coastal region
werc cngaged in fishing. I.C.J. Pleadings. Fisheries.Vol. II, p. 13. The United
Kingdom,morwver,assertedthat 85.6percent ofthe adult populationof the ara
wasdependentuponthe fisheries.I.C.J. Pleadings. Fisheries.Vol. 1,p. 112.This
compares 10the 0.4 per cent of Nova Scotia'scmploymentdirectly gencrated by
fishingon GeorgesBank. AppendixB. Section 1,Table 2.348 GULF OF MAINE 119)

SECTION 2. Canada Exaggerates the Contribution of Fishing on
Georges Bank to Gros DomesticProduct

18. Canada argues that fishing on Georges Bank is important to the
economyof Nova Scotia and yet analyzes the contribution of al1fishing
activities hy inhabitants of the Province to the GDP of Nova Scotia.
Canada asserts:

"Fishing and miningare the two mainprimary secfor contrib-
utors to the grossdomesticproduct of Nova Scotia as a whole.In
some yearsfishing leads this sector of the provincialeconomy,as
it did in 1978...Though mining often ranksahead offishing as

a contributor to provincial grossdomesticproduct in rheprimary
sector (especially when fish prices are low), there are no
significant mining developments in southwest Nova Scotia.
Agriculture, moreover, is a marginal sector in this part of the
province, mainly because of poor soils. Forestry, on the other
hand, doesmake a significantcontribution to the economyof ti?e

five southwestern countries (thoughlargely through processing
rather than primary production); but it is one that ranks far
behind fishingin regional importance '."

Canada later states that fishing and fish processing together make up
about 15 per cent of GDP in the "goods producing sector" of the
Provincel.

19. Canada again has described the contribution of al1fishing by the
inhabitants of the entire province,rather than of fishing onlyon Georges
Bank. Moreover, Canada analyzes that contribution in terms of the
primary and manufacturing sectors of the economy alone, ignoring
completely the larges1 sector of the Nova Scotia economy, the service
sector. In 1978,the service sector contributed 71.5 per cent of the total

Nova Scotia GDP '.
20. All fish harvesting and processing in Nova Scotia contributed

directly, in 1980,approximately 0.12 per cent of Canada's GDP4 and 5.3
per cent of Nova Scotia's GDP. By contrast, fish harvesting and
processingassociated with Georges Bank,alonecontributed only0.018 per
cent of Canada's GDP and 0.7 per cent of Nova Scotia's GDP. See
Figures 5 and 6.

'CanadianMernorial,para. 151.[Emphasisadded.]

'CanadianMernorialp , ara. 168.
'AppendixA,Table 2.
'ThiscalculationisbaseduponAppendix B,Section1,Table2a.[20-24) ANNEXESTOCOUNTER-MEMORIALOFTHEUNmD STATES 349

SECTION 3. Canada Exaggerates the Contribution of Fishing on
Georges Bank to the Economy of Southwest Nova Scotia

21. Canada suggests that fishing on Georges Bank is vital to the
economic sumival of southwest Nova Scotia. Canada argues:
"Clearly, Georges Bank may be described as the keystone of the
regional fishery. By the same token it is an indispensable

ingredient in the general economy of southwest Nova Scotia in
which the fishery plays so fundamental a role'."
Canada proceeds to describe the "essential" nature of that fishery:

"For many of the smaller ports of the region as well, Georges
Bank makes an essential contribution. Many of the small
offshore vessels based in the villages scatteredlong the extreme
southwestern end of Nova ScotiaShelhurne, Yarmouth and
Digby counties-rely on eastern Georges Bank for a significant
proportion of their landings of cod,haddock and other ground-
fish species, especially during the summer months when the
weather makes for relativelysafe conditionson the offshore banks.
The processing of these groundfish landings is a labour-intensive
activity, carried outocallyat village fish plants that often provide

the only available source of onshore employment l."
22. Canada provides only fragmentary landings statistics for 1978 to
substantiate its assertions that "Georges Bank makes an essential contri-
bution" to "the smaller ports of the region", and that the Bank contrib-
utes "a significant proportion of their landings '". As previously noted,
1978 was an extraordinary year. Even in 1978, only one-quarter of the

285 "small offshore vessels" that Canada claims are especially dependent
upon Georges Bank fished there at al'.

'CanadianMemorial,para. 115.
*CanadianMemorial,para. 116.
'CanadianMemorial. paras. 145and147,and notesthereto.
'CanadianMernorial,AnnexesV , ol. IV,Annex5,p.92.Thisfleet,whichCanada
claimstakes a "significantproportion"of its catch frornGeorgesBank,caught
only bctween5.7and 13.1metrictonsofgroundfishpr vesse1peryear onGwqes
Bankforthe periodof 1977 through1980. AppcndixC. Bywntrast, one classof
thesesrnalloffshorevesselsbasedinsouthwestNovaScotiasampledin the Costs
and, Earnings sl Selected Fishing Enterprises-Nova Scotia 1981. 44'11"
draggers.caught an average of144metric tonsof groundfishthat year, while
another class sarnpled,60' draggers, caught an averageof 459 metric tons.
Morwver, Canada does no1include in its "small offshorefleet" hundreds of
srnaller"inshore"boats.Thescbats accountedfor 36pcrcent of the groundfish
landedinfarsouthwestNovaScotiainthe pcriod1977through1980,but only2.9
pcr cent of the groundfishtaken by these bats wastaken from GeorgesBank.
Thisamountsonlyto 1.0 pcrcentofal1groundfish landingsinfar southwestNova
Swtia. AppendixC.350 GULFOF MAINE 1251

23. Nonetheless, Canada suggests that landings from Georges Bank
are "indispensable" to the "sumival and social cohesion" of entire
stretches of the Nova Scotia coastline:

"Though much of the income generated by the fish processing
industry is attributable to the industrial-scale plants of the area,
smaller facilitiesin dozens of coastal villages have a social and
economic importance that is less easily quantified. Entire
stretches of coastline, especially at the far southwestern corner
of the province, are characterized by a mral economy that is

totally dedicated to the fishery as a way of life. These coastal
villagesdepend on their local plants-and the fish that provide
their raw material-for their sumival and social cohesion.The
income the plants provide is widelydispersed and crucialto the
undiversifiedrural economiesof these coastal areas. The smaller
plants are often economicallymarginal enterprises, however,and
every sourceof fish supplythat is available to them-including
the Georges Bank landings fromthe small boat fleet ... must be

regarded as indispensable '."
Similarly, Canada asserts:

"For the smaller coastal villagesof southwest Nova Scotia, the
role of the fishery can only be properly appreciated in human
rather than purely economic terms. Inmuch of the area there is
no other basic industry at all; and without the fishery dozensof
villagesand townswouldsimplycease to exist l."

24. Cariada's description of the contribution of fishing on Georges
Bank, as opposedto fishing generally,to the local economyof the smaller
coastal villages and towns of southwest Nova Scotia rats upon the

unsubstantiated assertion that:
"Many of these villagesrely on Georges Bank forat least some
of their landings, often for a significant proportion in the

summer months when the small boat fleet described in para-
graphs 143 to 148 is most activeon the offshorebanks '."
25. Contrary to Canada's contention, fishingon Georges Bankdoesnot
make a significant contribution to the economies of the coastal

'CanadianMernorialp , ara.164.
'CanadianMernorialp , ara.172.[26-281 ANNEXESTOCOUNTER-MEMORULOF THE UNITED STATES 351

towns and villages of southwest Nova Scotia '. Even in 1978, only a

handful of towns and villages along the southwest Coastof Nova Scotia re-
ported landings from Georges Bank amounting to more than 10 per cent
in value of their total landings'. Indeed, fishing and fish processing
relating to Georges Bank are concentrated in just five larger ports-

Lunenburg', Riverport, Yarmouth, SaulnieMlle, and Liverpool4. Figure
7. The two leading ports, Lunenburg and Riverport, are located within 18
kilometers of each other and within a one-hour drive of Halifax" These
two ports together acwunt for well over one-half of Canada's landings
from the Bank '.

26. Landings from Georges Bank, in terms of value, are concentrated
in these five ports, primarily because scallops comprise most of the

Canadian landings from Georges Bank by value'. These scallops are
caught by the larger vessels of the Nova Swtia offshore scallop fleet,
which is wncentrated in these five ports, primarily in the Lunenburg-
Riverport complex < In addition, much of Nova Scotia's offshore trawler
fleet is also based in these five por'.

'Mostof the townsand villagesof southwestNova Scotiawere establishedin the
18thand 19thcenturies,longbeforeCanadian fishermenbegan to fishonGeorges
Bank.
Canadian Memorial, para. 156.Table 5. The value of those landings.however,
should notbeused to evaluate their contributionto the ewnomy.That contribu-
tion is measuredby the valueadded.See para. 10,n. 1,supra:

'Lunenburg historicallyhas bcen the lcadingport for the offshoreileet of Nova
Swtia. United StatesCounter-Mernorial.Annex7, Vol.IV.
'See Canadian Mcmorial.para. 156,Table 5.
5 Lunenburg is 91 kilometen (57 miles) by road from Halifax. Most of this
distanceiswvered bya wntrolled-accesshighway. NovaScotiaDept.of Tourism,
OfficialHighways Map(distance charts).

'Fisheries District 26 landed 60 pr cent, in terms of value, of Canada's catch
from GeorgesBank for the years 1977 through 1980.This calculationis based
uponAppendix E.Tables 11-14.See also Canadian Memorial.para 156,Table 5.
All vesselsfrom FisheriesDistrict 26 that fishon Georges Bankare home-ported
in Lunenburgor Riverport.See NAFO, List qfVessels1980.

'Canadian Memorial.para. 157.Scallopsaccountedfor 63.08pcr cent by weight
and 82.43pr cent by valueof the Canadian landingsfrom GeorgesBankduring
the period 1977 through 1980.Thesc calculationsare based upan Appndix E,
Tables 11-14,andunpublishedCanadian Dept. of Fisheriesand Oceanslandings
data.
0 In tenus of value, 63.8 per cent of the scallops taken from Georges Bank by
Canada in the period 1977through 1980were landed in Fisheries District26.
This calculation is based upon Appendix E, Tables 11-14,and unpublished
Canadian Dept. of Fisheriesand Oceans landings data.

'See NAFO, List qfVessels1980.352 GULF OF MAINE [29-301

27. The remaining towns and villages scattered along the wast of
southwest NovaScotia do not engage significantly inthe offshore scallop
fishery 'Nor, apparently, do the small fish processingfacilitieslocated in
these townsand villages processoffshorescallops l.To whateverextent the
small towns and villages of southwest Nova Scotia rely upon Georges
Bank fisheries, theydo so solelywith respect to groundfish and lobsters,
and then onlyto an insignificantdegree.This is true evenin regard to the

three far southwest counties (Shelburne,Yarmouth, and Digby) that
Canada claims have a "significant" interest in Georges Bank3. The
United States estimates that, during the years 1977 through 1980, less
than 10 per cent of far southwest Nova Scotia's landingsof groundfish,
and six per cent of its landings of lobster, came from Georges Bank'. No
evidence has been adduced by Canada to demonstrate that these small
catches from Georges Bankare vital to the sumivalof the communitiesof
this area.

SECTION4.Conclusion

28. Fishing on the northeastern portion of Georges Bankcontributes
relatively little to the economy of Canada or to the economy of Nova
Swtia. In 1980,it contributed directlyonly0.018 percent to the GDP for
Canada and only0.7 per cent to the GDP for Nova Scotia. It contributed
directly about 1,100 full-time-equivalent man-years of employment '.
Moreover, the bulk of the employment generated by fishing on Georges
Bank is concentrated in a handful of ports. Finally, the landings from
Georges Bankare not a significant factor in the economiesof the other

coastal townsand villages ofsouthwest Nova Swtia.

'UnderCanadianrcgulations,theinshorescallopfleetispermittcdto takeup to
2.9percentof thcprcviousyear'stotaloffshore scallopatchfromFwrges Bank.
Fisherman'sIdormafion. 1982, FisheriesndOceans, p.31.

'CanadianMernorial,para. 116and Figure29.
'CanadianMcrnorialp , ara. 145.
'Thesccalculationsare baseduponunpublishcd landingdsata of thc Canadian
Dcpt.ofFishcricsandOceansandAppendix E,Tables 11-14,
'Theamountofcrnploymcna tndincomegcnerat&lbyIishingonthenortheastern
wrtion of GwrnesBankshouldnot be ~uated withthe economiceffcctsthat
mightocfur in NovaScotiafoliowing confirmationof UnitedStatcsjurisdiction
ovcrGcorgesBank.Thcscclfcctswoulddiminishrapidlyasthecconomyadjusted. CHAiTER III
CANADAEXAGGERATESTHE DIFFICULTIES IT WOULD
ENCOUNTER IN ADJUSTING TO CONFIRMATION OF
UNITED STATES JURISDICïION OVER THE NORTHEASTERN

PORTION OF GEORGESBANK
29. Throughout ils Memorial, Canada impliesthat it wouldencounter
serious economic difficulties in adjusting to the confirmation of United
States jurisdiction over the northeastern portion of Georges Bank. It

suggests that the economy of Nova Scotia, and especially that of
southwest Nova Swtia, is controlled by the physical environmentof the
region, and that this environment haslimited, and will continue to limit,
the ability of the economy of the region to develop and to diversify.
Canada suggestsfurther that this limitation resultsin a lowerstandard of
livingfor Nova Swtia's inhabitants, and reduces Canada's alternativesto
fishingon Georges Bank.

30. Physical environment did not compel the development of the
Canadian fisheries on Georges Bank. Futhermore, the economyof Nova
Scotia is more developed and diverse than Canada suggests, and the
standard of living there is wmparable with the rest of Canada and with
much of the developed world.Finally, the fishing industryof Nova Swtia
and the provincial economyat large are far more capable of adjustment
than Canada suggests, particularly when Nova Scotia is about to benefit
from rapid development of newly discovered offshore hydrocarbon

resources.

SECTION 1. The Physical EnvironmentDid Not Compel the Develop
ment of Canadian Fisherieson GeorgesBank

31. Canada argues that the economic structure of Nova Scotia,
particularly that of southwest Nova Scotia, is controlled by the physical
environment.As Canada States:

"The 'Maritime Provinces' are aptly named. Here, in the
converse of the legal maxim, the sea dominates the land.
Nowhere is this more true than along the Canadian coasts that
border the Gulf of Maine area, where the ewnomy and the way
of life are irrevocablylied to the resourcesof the'."a

'CanadianMemorial,para.46.354 GULFOF MAINE i321

Canada suggeststhat the predominanceof fishingin the economyofNova
Scotia, particularly in southwest Nova Scotia, is a result ofthe physical
environment.Canada describesthat environmentas follows:

"The most striking aspect of the pattern of settlement in
southwest Nova Scotia is its overwhelmingly coastalcharacter
and the emptinessof the hinterlan....Wellovera hundred of
these settlements are historically linkedto and currently depen-
dent upon the fishery-often to the exclusion ofvirtually any

other source of ewnomic sustenance'."
32. The physical environmentis one factor in shaping the economyof
an area. Canadian governmentpolicy,however,was moreimportant than
was the physical environment in the development of the Canadian

fisherieson Georges Bank.
A. PHusrc~LENVIRONMEN DTOESNOTDETERMIN THE SIZE AND
STRUCTUR OFAN ECONOMY

33. In arguing that the physical environmentshapes and limits the
economy of Nova Scotia', Canada relies upon a school of thought
advocated during the-19th century, but largely abandoned in the 20th

century. This school,knownas the environmentalistor determinist school,
held that mankind was subse~ient to the environment'.
34. The environmentalistschoolis based upon the Malthusian concept
that the ability of the physical environmentto support the populationof a

region is relatively fixed, and that, at some point, that population may
grow too large to be supported by that environment. The prevailing view
today is that human potential is more important than environment in
determining regionaleconomic geography '.Human needscan be satisfied
through the redistribution of people or resources within or between
regions. In addressing the interrelated issuesof livelihood, resources,and
welfare,attention musbe paid to al1the sourcesof developmentpotential
and adaptation available to a region-and not merely to the physical

environment.

'CanadianMcmorial,para.48.
'See generalCanadianMemorial, paras.29.46, 48,49,56, 63,152.164,172,
and202.

'R. Hartshornc."The Nature of Geography".in Assoc.of AmericanGeogra-
phersAnnols.Vol.29,1939,pp.296-302.
'R. S.Platt. "EnvironmentalisVersusGcography",in American Journal4/
SociologvVol.53, 1948pp.351-358;R. HartshorncPerspective onthe Nature
4fGeography.1959,PP.39-40.i331 ANNEXESTOCOUNTl!R-MEMORIAL OF THEUNITEDSTATES 355

35. Indeed, the Atlantic DevelopmentCouncil of Canada, an advisory

body established by the Canadian Government, rejected the view that
environmental factors dictate the econornicstructure of an area:

"It is the Council'sviewthat economic development occurs first
in the minds of people, and that more efficient production and
changes in econornic structure to produce more sophisticated
output are but refiectionsof a people'sheightened perceptionsof
their condition and opportunity. Numerous peoples (e.g., in
Holland, Japan, Israel, Switzerland) have shown that a rich

endowment of physical resourcesis not the most basicrequire-
ment for the cultivation of human potential. It has been
characteristic of Atlantic Canada that such structural economic
changes as have occurred have been largely imposed from
without rather than generated from within. In their state of
dependenceon the Canadian taxpayer at large and their heavy
reliance for earnings on a relatively bountifulbut poorly culti-

vated resource base, the people of the Atlantic Region are
unlikely to experience acceleration in economic development
unless they exercisethe will and learn the skills to find a better
combination of the political and economic factors at their
disposal'."

B. CANADIAF NISHING ON GEORGEB SANKDEVELOPE DN RESPONS TEO
GOVERNMEN POLICIES N,OT TO THEPHYSICAE LNVIRONMENT

36. In arguing that the physical environment has controlledthe
developmentof the econornyof Nova Scotia, Canada contends:

"It is nature as much as history that has dictated this pattern
of developmentin southwest Nova Scotia. The deeply indented
wastline is ideal for small fishingharbours, but the land itself is
stony and poor, and most of the soils in the five-countyregion

are unsuitable for agricultural purposes. While the greater part
of the region is covered with coniferous forest, the glacier-
scrapedterrain severelyrestricts productivityand forestrypoten-
tial is limited. Only in eastern Digby county and parts of
Lunenburg county does the land begin to offer greater agricul-
tural promisel."

More specifically. with respect to fishing on Georges Bank, Canada
argues that:

'Atlantic Development Councoilf CanadaThe Atlantic Region ofCanada:
EconomicDevelopmentStrategyfor the Eighties. 1p.228. -
'CanadianMemorial,para.49. 356 GULFOF MAINE 1341

"...patterns of fishing on Georges Bank followed their natural
course unconstrained by jurisdictional barriers"'.

37. Canada's assertions notwithstanding, Canadian fishing on Georges
Bank is recent and results primarily from a variety of specific Canadian
Government policies, and not from "natural" forces. These policies have
encouraged the development of a fishery that previously had not existed,
and, from the available evidence, that would not have developed to the
same extent in the absence of those policies.

38. The Canadian Government has encouraged fishing on Georges
Bank tbrough a number of measures. These include: providing financial
support to the fishing industry ', such as generous vessel construction
subsidies; limiting fishing by large scallop vessels to Georges Bank and
other offshore grounds; and, effectively preventing vessels from Nova
Scotia from exploiting underutilized fisheries off Newfoundland.

39. As previously noted, Canadian fishermen did not begin to take
significant quantities of fish on Georges Bank until the 1960s. Thereafter,
Canadian landings increased rapidly. This rapid increasewas the result of
the expansion, beginning in 1961,of a Canadian Government program for
subsidizing the construction of newvessels. Under this expanded program,
subsidies first amounted to $250 per ton and later ranged up to 50 per
cent of the cost of construction. Much of the remaining cost of the vessel
could be financed with low-interest guaranteed loans '.

40. Although many types of fishing vessels were constructed under the
program, its success is best reflected in the growth of the scallop fleet. In
1954, there were no Canadian scallop vessels capable of operating the
year-round on Georges Bank. By 1960, there were nine such vessels, and
by 1963-just threeyears later-there were 37 *.

'CanadianMemorial,para. 122.

%Inthe periodof 1974 through 1977,the Canadian Governmentprovidedover
Can. $150 million to the Canadian Atlantic fishing industryto prevent its
collapse.Theindustry'scrisiscameasa resultofoverfishing,inlarge measurehy
ForeignfleetsSee Appendix D. The UnitedStates fishing industryreceivedno
comparable aid andmany bats stopped fishing. This, in turn, affected the
GeorgesBank,addingfurther to the unrepresentativenature of theeperiod 1969
through1978.

'AppendixD.
'AppendixD.TheCanadianGovernment subsidy programwasno1limited tothe
GeorgesBank scallop fishery, butwas availahleto fishermen throughoutthe
MaritimeProvinces.Nevertheless, becauseof the resource conditions and ready
accessof the United States market, developedby United States fishermen,the
scallop fisherywasthe majorarea of growthin the Maritimefisheriesuringthe
1960s.UnitedStates Memorial,para. 82.See alsoAnnex19,Vol. V (Caddy and
foornore conrinuedon nexrpage) PSI ANNEXES TO COUNTER-MEHORIALOFTHEUNITEDSTATES 357

41. The effect of the sulkidy program on Canadian fishingon Georges
Bank may also be measured by the volumeof that catch, both in absolute
terms and relative to that of the United States. In the years from 1954
through 1963,the Canadian scallopcatch onGeorges Bank rose from125

metric tons to 5,898 metric tons '.In 1955, approximately2.0 percent of
scallopscaught on Georges Bankwere taken by Canada; by 1964,nearly
one-half of the total weretaken by Canada '.

42. In the late 1960s and early 1970s, Canadian scallop hawests on
Georges Bank declined '.Canadian scallopvesselsbegan to fish in other
areas and, in a few cases, for other species'.Other Canadian fishermen,
however, apparently objected to wmpetition from those vessels. As a

result, Canadian policy shifted from expanding the scallop fleet to
preventing it from redirecting its efforts to other areas or species. For
instance, in 1973, Canada limited the large-vesse1scallop fleet to 72
vessels and restricted its operations to offshore banks'. This action
prevented these vesselsfrom shifting their effort to scallopsin the Bay of

Fundy and in other inshore waters '.
43. Thus, unlike the United States scallop fleet,which adapted "natu-

rally" to changes in the abundance of the stock,either by movingto other
areas or by switching to other species, the Canadian scallop fleet
effectively was restricted to fishing for scallopson Georges Bank by
Canadian Governmentpolicies.

SECTION 2. Canada Understates the Diversityof the Economyof Nova
Scotia and the Standard of Livingof Its Inhabitants

44. Throughout its Memorial, Canada suggests that Nova Scotia,
particularly southwest NovaSwtia, has a one-dimensional,Iargely poor,

lfwtnote continuedfrom thepreviouspage)
Lord),p. 1; andN. Bourne. Scallops and the Wshore Fishery dthe Maritimes.

FishcriesRescarchBoardofCanada,BulletinNo. 145.1964.materialsdeposited
byCanadapursuanttoArticle50(2)oftheRulesofCourt.
'AppendixE,Table2.
See UnitedStatesCounter-MernoriaA l.nnex19,Vol. V (CaddyandLord), p. 4.

'AppcndixD.
'Evenpriorto 1973,the CanadianGovernmentcontrolledaccessto the various
inshorc and offshorefisheriesthrougha variety ofgovernrnentpolicies.These
relatai,inter aliato vesse1and processingplantconstructionsubsidyprograms
and quotas.The generaleffectof theseprogramshas beento denythe Nova
Scotiaoffshorefleet accessto important groundfish stocksoff Newfoundland.
AppendixD. 358 GULF OF MAINE t36-401

rural, and fishery-based economy '. In this regard, Canada asserts that
Nova Swtia and the other Maritime Provinces in the Atlantic region
"have not yet attained a level of prosperity and development comparable
to the rest of Canada2".

45. Contrary to the Canadian assertions, the ewnomy of Nova Scotia
is neither one-dimensional nor poor '.Its economy is well-developed and
diverse, and the standard of living in Nova Scotia, in many respects, is
comparable with that of the rest of Canada, and that of much of the rest

of the developed world.
A. THE ECONOMY OF NOVASCOTIA IS NOT ''ONEDIMENSIONAL"

46. Examination of the economy of Nova Scotia in terms of employ-
ment and GDP confirms the development and diversity of that economy '.

47. The manufacturing and service sectors, in 1980, acwunted for 92.0
per cent of the total employment 'and 93.5 per cent of the GDP of Nova
Scotia 6.This large contribution by the manufacturing and service sectors
reflects Nova Scotia's levelof development and its full participation in the
@ ewnomy of a developed industrial nation '. Figures 8 and 9 illustrate the

diversity within each of the three sectors of the ewnomy of Nova Swtia.
As these Figures show, fishing and fish processing associated with
Georges Bank contributed directly only 0.4 per cent to employment and
0.7 per cent to the GDP in the province in 1980 '. To borrow a phrase
from the Canadian Memorial, fishing on Georges Bank, in terms of the
overall economy of Nova Swtia, is "a drop in the proverbial bucket '".

'SeegenerallyCanadianMemorial. paras.62. 120,143,and169.

'CanadianMemorial, para.110.[Citation omitted.]
In fact,thefishermenofsouthwestNovaSwtia are the mostproswrousinal1of
Atlantic Canada, with an averageinwme twicethat of fishermenof the entire
region. See Task Forceon Atlantic Fisheries, Navigating Troubled Waters
(Highlightsand Recomrnendations)[hereinafter"Kirby ReportwLMinistry of
Supplyand ServicesofCanada, 1982,pp. 13 and 28.
For a descriptionof the ewnomy of Nova Swtia, see Nova Swtia Dept. of
Development, Nova Scotia-AnIntroduction,1982.

'AppendixA,Table 1.
AppendixA, Table2.
'In al1of Canadathcsesectorsaccounted.in 1980,forapproximately90pcrcent
of bothemploymentand ofGDP. Figures3 and S.
'Indirect employmenatnd GDPgeneratedby Canadianfishingon Gwrges Bank
is estimatedby the UnitedStates tobe 643.8 full-lime-cquivalentman-yearsin
employment,and $28.2million(U.S. 1972)inGDP.Whentheseare included.the
wntrihutionof Gwrges Bankfishingto the ewnomyof NovaSwtia risesto 0.6
percent of employmentand 1.7wr centofGDP.
Or,tnates continued onpage 41)[~II ANNMES TO COUNTER-MEMORIALOF THEUNITED STATES 359

48. Standards of living may be evaluated through a variety of mea-
sures, includinghealth care, education, housing,transportation, and GDP
per capita. Based uponthese measures, the standard of living inNova

Scotia is higher than that of the other Atlantic provincesof Canada, and
is comparable with that of al1 of Canada. Furthermore, even when
European States are included in the comparison, NovaScotia enjoys a
relativelyfavorablestandard of livingconsistent withits full participation
in a developedeconomy.

1. Health Care

49. In terms both of hospital beds and of physicians-per-person,Nova

Scotia exceedsthe Atlantic provincesand iscomparable with that of al1of
Canada '.Indeed, with respect to physicians, Nova Scotia exceeds
Sweden ', a State generally regarded as having one of the highest
standards of livingin the world. The infant mortality rate and the life ex-
pectancy rate of Nova Scotiaare similar to those rates for al1of Canada '.

2. Education

50. Nova Scotia is comparable in its levelof educational expenditures
per student with the other Atlantic provinces,and with al1Canada. The

expendituresper student in Nova Scotiaare comparablewith those inthe
UnitedKingdom2.

3. Housing Quality

51. The percentage of dwellings with indoor plumbing is a common
measure of the quality of a State's housing stock.Nova Scotia'spercent-
age isslightlylowerthan that for al1of Canada, but ishigherthan that for
somewestern European States, such as Belgium '.

(/botnoiescontinuedfmm page36)
'CanadianMemorialp , ara.177.Inthis regard, teconomy ofNovaSwtiarelies
far lessuponfishingthan do theeconomiesof other partsof Atlantic Canada.
Fishingandfish processinthroughoutNovaScotiacontributeonly5.4percentto
employmentin the Province.Figure 8.Fishingand fish processingthroughout
Newfoundland wntribute33.4percent toemploymenitnthat Province.Dept.of
FisheriesandOceans,AnnualSiatisticalReview, 1980,Vol.13,p. 34.

'AppendixF,Table 2.
'AppendixF,Table 1.360 GULFOF MAINE (421

4. Automobile Ownership

52. The per capita automobile ownership rate for Nova Scotia is
comparablewith that for al1of Canada and such western EuropeanStates
as the United Kingdomand Sweden '.

5. GDP Per Capita
53. The GDP per capita of Nova Scotia is less than that of al1 of
Canada, which is among the world leaders in this measure of develop
ment. The GDP per capita of Nova Scotia does compare favorably,

however, with that of other developed States, such as the United
Kingdom,Austria, and Japan '.
54. In summary, the standard of living in Nova Scotia is generally

comparable with that in al1 of Canada and in many other developed
States.
SECTION 3. Canada Has Alternativesto Fishingon Georges Bank

55. Canada argues that, as a result of the constraints imposed by the
physical environment, fishing is vital to the economyof Nova Scotia. In
this regard, Canada suggests that it has no alternatives to fishing on
Georges Bank, especially for scallops,with which to sustain and develop

the economyof Nova Scotia, particularly that ofsouthwestNova Çcotia '.
56. As previously noted, however, fishing on Georges Bank directly
generates only 0.4 per cent of the employment and 0.7 per cent of the

GDP for Nova Scotia '.Moreover,most economic activity associated with
fishing on Georges Bank is concentrated in the Lunenburg-Riverport
complexand a handful of other ports. While it is impossibleto predict the
future with certainty, both the fishing industry and the economyof Nova
Scotia shouldcontinue toexpand.As a result, the economyof Nova Scotia
shouldbe able to make adjustments in employmentpatterns in responseto
a confirmation of United States jurisdiction over the northeastern portion
of Georges Bank '.

'Appendix F,Table 1.
'Appendix F,Table 3.

'See.e.g.,CanadianMcmorial,paras.142,146, and159.
'AppcndixB,Section 1,Table2.
'In any event,a large portionof the Canadianscallopfleet is notpresently
engaged in fishing,bccausethe availabilityof scallopson GeorgesBank has
declinedinrecentvears.SeeAowndixE,Table 2.Ina sense,thefleetalreadyhas
adjustcdfrornthc;nusually h&h-catchlevelsoi thelate 1970sSee.forexampic.
Canadianorcssrcairts that the ilect"has aiven-UDon CeoreesBank"."Grand
Banks ~cailops~iicovcrcdInSurvey",~alifax~h;oniclc~e~ald. 14Oct. 1982,
p.1. 1431 ANNEXESTO COUNTER-MEMORIALOFTHE UNITEDSTATES 361

A. CANADAHAS ALTERNATIVEW S ITHIN THE FISHINGINDUSTRY TO
FISHING ON GEORGES BANK

57. Canada has available to it alternative scallop grounds in the waters
off Nova Scotia, albeit they are not as productive as the Georges Bank
grounds '.Canada's reliance on offshore scallop beds in ICNAF Subareas
3 (off Newfoundland) and 4 (off Nova Scotia) has increased sharply in
recent years. In 1981.26 per cent of Canada's scallop landings came from

Subareas 3 and 4 '.
58. In addition, there are large stocks of cod and other groundfish
located in waters off Nova Scotia and Newfoundland that presently are

available to, but that are not being harvested byanadian fishermen. The
northern cod stock alone is expected to provide Canada, by 1987, with an
additional 170,000 metric tons '.This is more than eight times the average
yearly Canadian groundfish catch on the northeastern portion of Georges
Bank during the years 1977 through 1981 '.

59. The assertions in the Canadian Memorial notwithstanding '.Cana-
dian studies and government documents indicate that ''[the larger
scallopers built since 1955can beeasily converted for groundfish dragging
or longlining if the occasion arise6".As noted by the Canadian Depart-

ment of Fisheries:
".. .the Nova Scotia scallop draggers can be wnverted to
groundfish dragging, longlining, or even purse seining as re-

quired by the supply and demand situation "'.

'Canada Dept. of Fisheries and Oceans, Assessment ofScallops on Browns
'and Cerman Banks-1979, Can. Tech.Rpt. of Fisheriesand AquaticSciences
No. 1014. 1981,p. 1. See alsoUnitedStates Counter-Mernorial,Annex 1,The
@) MarineEnvironmentof the Gulfof Maine Area, paras. 94-95and Figur4 e3.
Northwest AtlanticFisheriesOrganization,ScientificCouncilMeeting (June,

1980).SCS Doc.82/V1/7, pp.42 and43.
'Kirby Report. p. 91. reprinted atAnnex 37, Vol. V. See also United States
Counter-Mernorial.Part III, ChapterIII, Section7.
'During the years1977through 1981.the average groundfish catchwas 19,473
rnetrictons.This calculation isbaîcd uponAppendixE.Table3. See alsoUnited
States Counter-Memorial.Annex 22, Vol.V, for a cornparisonof the Canadian
catch onthe northeasternportionof GeorgesBank withthe totalCanadiancatch
in the Northwest Atlanticfortheperiod1977through1981.

'CanadianMernorial,para. 142.
'Bourne, op. cilp. 31.
'Canada Dept. ofFisheriesandEconomic Services. Trendsin the Development uf
the Canadian Fisheries-Background Document for Fisheries Development
Planning. 1967,Supp. 1,p. 22.362 GULFOFMAINE id41

The scallop fleet appears particularlywell-suited for conversion to
automated long-liners, whichhen could fish offshore for cd and other
groundfish'.Such a conversion also would extend the useful life of the
vessels'.

B. NOVA SCOTIA HASALTERNATIVE WSITHIN THE ECONOMY AT LARGE
TO FISHING ON GEORGE SANK,PARTICULARL YN REGARD TO THE
DEVELOPMEN OF OFFSHOR O ILAND GAS

60. From the foregoing, it appears that much of any initial effect on
employment that might result from the confirmation of United States
jurisdiction over the northeastern portion of Georges Bank would be
absorbed within the fishing industry itself. To the extent that any such
effect was not absorbed within this industry, it would he absorbed by the
economy of Nova Scotia at large. The development of the substantial

hydrocarbon'resources discovered onthe continental shelf off Nova Scotia
offers the most promising opportunity.
61. Nova Scotia is now on the brink of a "once-in-a-lifetime opportuni-

ty '"arising from development of offshore oil andgas4. Since the success-
ful exploratory drilling for offshore gas on the Venture field off Sable
Island in 1979, the size of that field has been assessed with estimates
ranging from 1,700 to 10,200 billion cubic feet of recoverable reserves,
yielding 250 to 1,500 million cubic feet of natural gas d'.Current
activity indicates a major commitment by oil companies to develop that
field and to explore for other resources:

"At present (early 1983) there are six drilling rigs in Nova
Scotian waters. Three more are expected in 1983, and it seems
reasonable toxpect ten or more within fiveyears (by 1987).The
discovery of marketable quantities of gas by Mobil Oil has

stimulated exploration byseveral other companies, including
Shell, Husky and Petro-Canada.ach rig employs approximate-

'Kirhy Report,p. reprinredalCounter-Memorial,Annex 37,VolV.
'The offshore scallopfleet wnsists largelyof older boats, most of which were
wnstructed in theearly 1960sScallop dragging puts heavy strain on the
mechanicalquipmentandhullofthevessels,while long-lisfar lessstressful.
leading toa longerservicelifeforthe vessel.
'NovaScotia Dept.of DevelopmenNovo Scorio BeneJ7tsfromOf/shoreOil and
Cas,1983,Introduction.
'SeeUnitedStates Counter-Memorial,Annex6, for a discussionof oiland pas
potentialonthe Swtian Shelf.

'ThorneStevenson& Kelloggand Gardner Pinfold[hereinafter"ThorneSteven-
son,el al."l, Scorian SheU Cas Developmenr: The Economic IonaNova
ScoliaVol.2. Report.preparedfor NovaSwtia Dept. ofDcvelopmentand Dept.
of MinesandEnergy,and CanadaDept.of RegionalEwnomicExpansion,1981.
Exhibi11-1p. 4. ANNEXES TO COUNTER-MEMORIAL OF THE UNmD STATES 363
id51
ly 200 people,with morejobs ashore and in supplyvessels.Byit-

self, this activity generates a wide range of business
opportunities '."

62. A report prepared forthe Government of Nova Scotia estimates
that the oil and gas industry will generate directly between 3,933 and
6,650 man-years of employment in the development phase1. Nova
Scotians are expected to fiIl about 40 per cent of these jobs'. It is
estimated that five hundred to 1,100man-years will he generated in the

production phase,of which 90 per cent are expected to be filled hy Nova
Scotians4. Indirect and induced employmentgenerated directly hy the
developmentof offshoreoil and gas willgenerate thousands of additional
employmentopportunitiesin Nova Scotia '.

63. Total inwme generated in Nova Scotia during the development
phase is estimated to range from $86 million(1980Can.) to $262 million,
and during the production stage, from $32 million to $152 million per

year 6.It isestimated that direct incometo Nova Scotia householdsduring
the production phasegenerated hy local employmentand purchases alone
willcontribute between $16 and $80 millionper year in the early 1990s '.

64. Thus, the number of jobs expected to be generated by offshoreoil
and gas development alone in the next few years far exceeds the 1,700
full-time-equivalent man-years of total employment generated in Nova
Scotia by fishing on Gwrges Bank. Fishermen are familiar with the

demands of workat sea and are wellsuited for the offshoreoiland gas in-
dustry. Indeed, the report prepared for the Government of Nova Swtia
suggests that offshore oil and gas development will attract individuals
presently engaged in fishing, possibly creating a shortage of trained
fishermen '.

65. Although the development of the oil and gas resources of the
Scotian shelf offers the hrightest, most immediate prospects foralterna-
tive employment, wntinued general economic development withinNova

'Nova Scofia Bendts from OT/shore Oil and Cas, supra para. 61,n. 3,p.1.
2ThorneStevenson , tal..ExhibitVI-2,p.52.
'Ibid.,p.51.

'Ibid..p. 10.
'Using input-outputanalysis,the ThorneStevensonstudy estimatedthat the
Venture field pas projcctwillgencratebetween4,000and 13,000 man-yearo sf
employment in Nova Scotiaduringthedevelopmenp thase,andbcnucen 2,000 and
9,000 man-yeaninthe subsequentproductio phase.Ibid.,ExhibitVI-4, pp. 57-58.
*ThorneStevenson e,tal..ExhibitVI-4,pp.57-58.

'Ibid..ExhibitVI-3, p. 53.
'Ibid.,p.64.364 GULF OF MAINE [461
Scotia offers additional opportunities. For example, there is significant

potential for expansionof the agricultural sector '.Manufacturing also is
expectedto generate economic growthin Nova Scotia.
66. Recently, the Nova Scotia Department of Developmentacknowl-
edged the broad range of opportunitiesgenerally availablein Nova Scotia
in the manufacturing sector:

"Based upon an assessment of Nova Scotia's competitive
strengths and weaknesses,we appear to have significant manu-
facturing opportunities in plastics fabrication, in chemicals

extracted from marine plants, in drug, personal and home care
industries, indefence-related manufacturing, and, on a smaller
scale, in certain industrial chemicals,and homeand commercial
furnishings.There are undoubtedly many others '."
67. This broad range of opportunities in the manufacturing sector was

also recognizedby a consultant to the Department of Development,who
concluded:
"An expanded manufacturing sector would help Nova Scotia

meet its future employmentneedsand provideit with astronger,
more balanced economy. *

DOD'slatest projectionsshowthe addition of 6,000manufac-
turing jobs overthe next ten years. These projectionsare based
on special events that may not be repeated, such as the
fortuitous decision by Michelin, and the recent rapid growth of
forestry processing.

However,we think that Nova Scotia can and should increase
manufacturing employmentby about 20% overthe next decade,
even surpassing present projections,through rigorouspursuit of
the directionsprovidedin this report '."

68. In addition, the sewice sector continuesto offer a wide assortment
of opportunities. Finance,insurance, and real estate have heen the fastest
growing areas in Nova Scotia, followed by wholesale and retail trade,
transportation, communications,and utilities'.

'NovaScotia Dept. oDf evelopment T,owardanEconomicDevelopmenS t tralegy
for NovaScoria, 1980,pp.13-14.
Ibid.p.29.
1The CanadaConsultingGroup, IndustrialOpportunifiefor the 1980'and 1990's

(unpublished reportforuseof NovaScotia Dept. ofDevelopment),1979,p. 2.
;~he ConferenceBoard in Canada. The ProvincialEconomies, Part II:Key
Economic Indicators-AnnualTables, Tables4.3.1-2, pp. 48-49.Tourismis also
an importantsourceof employment and inwme in Nova Scotia,and has the
potential forurther growth. Toward an EconomicDevelopmenfStraregy for
Nova Scotia.supra para.65,n. 1,pp.12, 19-21. ANNEXES TOCOUNTER-MEMORLUOFTHEUNITEDSTATES365

AppendixAto Annex4

EMPLOYM ENDCROSDSOMEST PCOOUCI~CANAD ANDNOVASCOTIA

[Nolreproduced] GULFOF MAINE

EMPLOYME NNTGROSSDOMESTPIRODUC GTENERAT NCANAD AND IN THE
UNITEDSTATEBY FISHINON THNORTHEASTE PRRTION OGEORGEB SANK

(ïhis Appendix was prepared under the supervisionof and approved by Dr.
Daniel McFadden, James R. Killian Professorof Economics,Massachusetts
lnstitute of Technology.Totalsand sub-totalsin this Appendixmaynot reflect
the sumsof sub-elementsdueto rounding.)

[Pages1-46no1reproducedj1471 ANNEXESIO COU~ER-MEMORUL OF THE UNITED STATES 367
SECTION 5. Indirect Employment and Ineome Generated by Canadien

and United States Fisbing on the Northeastern Portion of Georges Bank
14. In addition to the direct employment and GDP generated by
fishing on the northeastern portion of Georges Bank, there are also
indirect employment and GDP generated by dernand for manufactured

goods and services by the fishing industry and their suppliers and by
consumer spending induced by changes in income '.
15. In its Memorial, Canada discusses this indirect employment and
GDP in terms of multipliers. The method used to define and to measure

multipliers is input-output analysis. Input-output analysis imposes as-
sumptions that disregard the effects of modifications in production
technique, possibilities for substitution between domestic goods and
competitive imports, and redirection of capital, labor, and production
induced by price changes. As a result, this analysis is open tothe criticism
that ittends to overstate the magnitude of total indirect ernployment and
GDP generated by fishing on the northeastern portion of Georges Rank.

16. The United States has used a regional input-output analysis ta
estimate the indirect employment and GDP generated by fishing on the
northeastern portion of Georges Bank. The input-output relationships
upon which this analysis for Nova Scotia relies were taken from an '
official Canadian input-output study '.Although some information relat-
ing to input-output relationships in Nova Scotia beyond 1965 was

'Annex,para. 10,n.2.

>K. Levitt,Input-OuipulStudy d the Atlantic Provinces.1965.Vol. 1: Social
Accounting Matrix and Models. and Vol. II: Structural Analysis and Data
Sources. Statistics Canada,1975.

NovaScotia New England
Ratio of total incomechangeto 2.29 1.58
incomechangeinfishharvesting
and processing*

change toemploymentchangeinnt 1.60 1.70
fish harvestingand processing

'The measureof incomefor NovaScotia is grossdomesticproductoriginating.
and for the New Englandstates is grossvalue added. Theunavailabilityof the
grossdomesticproduct measurein the U.S. regionaltables or thevalueadded
measurein the NovaScotia tablesprecludedthe useof the samemeasurein both
regions.Grass domesticproduct originatingia slightly broaderincomeconcept
thanvalueadded, thedifferenceking minorincomecompnents suchas indirect
taxes.368 GULFOFMAINE id81

available, that information was not comparable with available information
for the United States. For that reason, the analysis contained herein relies

upon the input-output relationships contained in the 1965 studyl. For
New England, the basic input-output relationships were based on an
input-output study for 1972 conducted as part of a research program
under the auspices ofthe United StatesNational Academyof Sciences1.

'Comparisonof the 1965 relationshipswith available data from morerccent
studies suggcststhat calculationsbascd upon more reccnt studies are likelyto
yieldslightlysmallereffects;thus,the useofthe 1965relationshipsfavorCanada.
See K. R. Polenskeand P. G. Jordan, "The Ewnomic Impactof Fishcricson
NovaSwtia and New England". unpublishedreport, Massachusettslnstitute of
Technology,1983.
'For New England the basic sources are the Regional Purchase Codlicient
Mode1for 1972for New England States. and Stevens et al.: Basic Regio~l
Inpur-output for TransportarionImpact Analysireportpreparedforthe Nation-
alCooprativc HighwayResearchProgram undcr the auspicesof the National
Academyof Sciences, 1982.(491 ANNEXESTOCOUNTER-MEMORIAL OFTHE UN~D STATES 369

Technical Notes

17. In order to estimate indirect employment andGDP, it is assumed
that fishing on the northeastern portion of Georges Bank were to cease.
These estimates are made under three additional assumptionsthat are
selected to give upper bounds to the effect that such cessation of fishing
would have on employment and GDP. A variety of additional factors,
however,such as net inwme transfers to the region, redirection of labor
and capital, and reductions in imports and export earnings, al1would be
expected to reduce such effects.

The assumptions are:

(1) For calculation of Canadian effects, jurisdiction over the
northeastern portion of Georges Bank is confirmed forthe
United States; the reverse is assumed for calculation of
United States effects.

(2) Regional income and employmentnow generated by fish-
ing on the northeastern portion of Georges Bank are not
offset to any degree by increased net transfer payments
(such as unemployment compensation) tothe region.

(3) The direct effect of a decline in fish harvesting and
processing will be a reduction in net exports of fish
products.

(4) No requirement is imposed that a reduction in exports be
matched by reduction of imports of equivalent value; that
is, no balance of payments constraint is imposed between
the region and the rest of the nation and world.

18. In Nova Scotia, assumption (3) is reasonable, because a large
proportionof its harvest fromthe northeastern portion of Georges Bankis
exported in the form of frozen scallops,frozen blwks of groundfish, fresh
fish, frozenfillets, and other fish products. Domesticconsumptioncan be
met fully by fishing from other areas. Hence, the initial effect of a
reduction in fishing, before induced effectson domestic consumptionare
taken into account, will be a reduction in prwessed fish exports.
Assumption (3) is also reasonable for New England. Its share of the
harvest fromthe northeastern portion of Georges Bank is predominantly
sold as fresh fish tothe domesticmarket. The initial effectof a reduction

in fishing would be an increase in imports (a decrease in net exports)of
fish products. Another possibleeffect in the United States might be the
substitution by consumers of other commodities for fresh fish. which
would result in slightly less loss of employment and income in New
England.370 GULFOF MNNE
1501
19. Assumptions (2). that there will be no change in net transfer
payments to the region, and Assumption (4). that there will be no
adjustments in imports to maintain regional trade balance, are not likely
to hold strictly, and thus the calculation of effect made here isoverstated.
A declinein employmentin a regionwillincrease unemployment compen-

sation. This net transfer will offset a portion of the reduction in regional
income, reducing the magnitude of final effects. Regional trade deficits
lead to increased claimsby outsiders on the products of the region, which
will eventually be accommodated by increased demand for exports by
outsiders,and increased prices foroutside goodsrelative toregional goods
whichlead to substitution of domesticgoodsfor imports.Both effects tend
to stimulate domestic production and income, which act to offset the
initial effectsof the loss of employmentand income. Therefore, assump-
tions (2) and (4) represent "worst case" conditions that produce upper

bounds on the magnitude of indirect and induced effects.
20. Assumptions different from(1) through (4) will produce different

estimatesof indirect employment andGDP. It isnot possibleto determine
preciselywhat conditionsactually wouldhold inthese regionaleconomies,
and consequently what total effect actually would result. The "worst
case"assumptions (1) through (4) should, however,provide upper bounds
on the magnitude of actual total effects.

21. The procedure used to estimate the indirect employment andGDP
is to consider the input-output relationships between deliveriesof com-
moditiesto final consumptionand net export, and the domesticoutput of
these commodities,as wellas the employment and income originatedper
unit of output of each commodity. These relationships take into account
indirect requirements for commoditiesused as inputs to the production of
other commodities,as wellas requirementsdue to changesin consumption

patterns induced by changes in income. From Assumption (3), a drop in
output of the fish hawesting sector equal to landed value from the
northeastern part of Gwrges Bank is acwmmodated by a drop in net
exportsof the processedfish sector;the input-output relationshipgivesthe
relative quantities. The drop in net exports of processedfish has impacts
on the outputs of al1commoditiesin the region, and consequentlyon the
income and employmentgenerated by each industry. Accumulatingthese
effects over industries gives total income and employment generated by
fishing on the northeastern portion of Georges Bank.The ratio of a total
impact to the impact on fish hawesting and processing then provides a

measure of the magnitude of indirect and induced effects.
22. The elements of a regional input-output system required for the

estimates of indirect employment and GDP reported here may be
summarized using the followingnotation:

i= 1, 2,... ,N industries (1 = fish hawesting, 2 = fish processing)1511 ANNEXESTO COUNTER-MEMORW OFTHE UNITEDSTATES 371
xi = change in the total domestic output of industry i

fi = change in the net exports of the product of industry i

a" = change in the input of industry i goodsper unit change in the total
domestic output of industry j (direct effect)

cü = change in the total domestic output of industry i per unit change
in netexportsof the product of industryj,includingdirect and in-
direct inter-industry requirements and the induced effect of

income changes. (type II direct, indirect, and induced
requirements.)
vi = incomeoriginating inindustry i per unit oftotal domesticoutput in

this industry.
li = employment originating in industry i per unit of total domestic

output in this industry.
Consider the impact of a specified change x, in industry 1 which is

accommodatedbya change f, in the net exportsof industry 2. For type II
response includinginduced effects, thisrequires x,= cl, f, of,= x,/c,,.
The change in the total domestic output of industry i is then
xi= ci,f,= x, ci,/c,,, fo= i2, ...,N. The change in incomeoriginat-

ing in industry i isthen =, v;xi= x, vici,/c,,, andthe total'changein in-
come is

The expression

(2)ml = (vlc12+ v,c,,+ .. .+ v,c,,)/v,
is termed the (type II) income multiplieron industry 2 deliveriesto final
demand (net experts). In terms of this multiplier,

23. The direct income impact in industries I and 2 is calculated as

follows.As before, the change x, in output of industry I is translated into
a direct change f,= x,/c,, in net exportsof industry 2. The change in in-
come generated directly by industry 1 is y,= v, x,. The direct output
change in industry 2 is,, satisfyingx,= a,, x,, wherea,, isthe direct in-

ter-industry coefficient.hen x,, = x,/a,, and the direct incomechange
in industry 2 is y,, = v, x,,= v, x,/a,,. The direct income change in
industries 1 and 2 combined is then372 cuw OF MAINE 1521

The ratio of the total change in incometo the direct change in income in
industries 1and2 is givenby the ratio of (3)to (4),

(5)- Y - m2v2
YI+ yzd c12(vI+ v21a12)'

The change in employment originatingin industry i is
Li = lix= x,l~,/c,,, and the total change in employmentis

where
(7)n2 = (Ilcl+ 12c2+~ ...+ ~NCN~)/~~

is termed the (typeII) employment multiplieron industry 2,
24. The direct employmentimpact on industries 1 and 2 is calculated
in the same way as the direct inwme impact, except direct employment
coefficients,rather than direct income coefficients,are used. With LZdas

the direct employment change in industry 2, the direct employment
change in industries 1and 2 combined is
(8)LI+ Lx = 1,x,+ 1~I/~IP

The ratio of total change in employment to the direct change in
employmentin industries 1and2 wmbined is given by the ratio of (6)to
(8),1531 ANNEXESTO MIUNTER-MEMORLAO LFTHEUNW STATES 373

Nova Scotia Calculations

For Nova Swtia, where the measure of income is gross domwtic product
originating. coefficients and multipliers from the 1965 tables givenby Levitt are
as follows;

Symbol Value Source(Table in Levitt, 1975)

VI ,639503 (A), row 50, ml. 3

"2 ,287482 . (A). row 50, col. 7
1, .190679 (A), row 51, col. 3
11 ,061918 (A), row 51, wl. 7
a12 ,566160 (A), row 3, col. 7

Ca2 ,503884 (B),row 3, col. 7
m2 4.60071 (C), row 13, w1. 7, divided by (A). row
50, w1. 7
n, 3.899 (C), row 14, w1. 7, divided by (A), row
51, wl. 7

Thwe value yicld the followingratios:

Ratioof totalto hcow
Industries1 and2 (GDP origimîing) Employmeot
type II 2.28789 1.59681

SOURCE: K. Lcvitt:Input-Output Study afthe Atlantic Province,1965,Vol.1:
Social AccountingMatrix and Models, and Vol.II: Structural Analysisand Data
Sources, Statistics Canada, 1975.
(A) Model 1 Nova Scotia 1965,lnput Coefficients of Industries Bo and of Final
Expcnditure Categories
(B) Model 2 Nova Swtia 1965, INV(1-J8(I-U)B*)Rcquirements for lndustry
Output pcr Unit lndustry Output

(C) Model 2 Nova Scotia 1965, v*/Q*)INV(I-J*(I-U)B*) Primary Input Re-
quiremcnts per Unit Industry Output New EnglandCalculations,
1972 Input-OutputCoefficients

For New England States,data, coefficientsand multipliers from the Regional
Purchase Coefficientmode1hy Stevens et al. and the Regional Science Research
lnstitute are as follows:

MassachusettsRhodeIsland Maine Total
--
Output Sector 9 - forestry 123.288 12.986 13,036 149,310
and fishing producu (000)
Output Sector 42 - fresh 316.524 3,925
and frozen packaged fish
(000)
Value Added 9 (000) 79.241 8,346
Value Added 42 (000) 51.844 643
Employment 9 ' 2.975 206
Employment 42 ' 2.597 45
,64273 ,64273
VI
"2 ,16379 ,16379
1, ,02413 ,01586
12 .O0820 ,01147
C12 ,36754 ,482708
,364389 ,480289
au
"'2 3.91 4.24
n2 3.67 2.84
NE Portion landings (000)L 15.603 2,016
fraction ,8280 .IO70
VA ratio ' 1.5953 1.46245
Employment ratio ' 1.7558 1.69806

SOURCE: based on Stevens et al.: BasicRegional Inpur-outpur forTrampor-

ration Impact Analysis. (Sce note 5.supra.)

'Employment in the U.S. tables excludes individual proprictors, and hence
undermunu total workers.This undercount is minor for Sector 42, but substantial
for Sector 9.
'The direct value added and employmentmfficienu for the total of Massachu-
setts, Rhode Island, and Maine are obtained by dividing total value added and
employment. respcctively,by total output.

'The total direct, indirect, andinducd (type II) interindustry coefficients are
obtaind by adding the state coefficientstimes sector 42 output, and dividingthe
result by total output.
'The total type II value added multiplier is obtained by adding the state value
added multipliers by statc value added in Sector 42, and dividingthe result by to-
tal value added in Sector 42.

Lfoornoteconrinued onnext page)1551 ANNEXESTOCOUNTER-MEMORUL OF THE UNITEDSTATES 375

llootnote continued/rom the previous page)
'The total type II employment multiplier is obtained by adding the state
employment multipliersby statc employmentin Sector 42. and dividingthe result
by total value added in Sector 42.

'Northeastern portion of Georges Bank value of landings in 1980. expresscd in
1972 U.S. dollars.
'The ratio of direct. indirect, and induced value added in the region to the direct
value added in fish harvesting and processing. from equation (5).wmputed from

the coefficients and multipliers for each state, and the total wefficients and
multiplier. An alternative definitionof a total VA ratio is the average of state VA
ratios weightedby state shares in combinedSectors 9 and 42 valueadded; this ra-
tio is 1.5700. A second alternative definition is the average of state VA ratios
weighted by state shares in the disputed zone harvest; this ratio is 1.5702.
The ratio of direct, indirect, and induced employmentin the region 10the direct

employment in fish harvesting and processing,from equation (9).computed from
the coefficients and multipliers for each state, and the total wefficients and
multiplier. An alternative definition of a total employmentratio is the average of
state employment ratios weighted hy state shares in combined Sector 9 and 42
employment; this ratio is 1.7168. Asewnd alternative definition is the average of
state employment ratios weighted by state shares in the northeastern portion of
Georges Bankharvest; this ratio is 1.7364.If the employmentratios are applied to

fish harvesting and processingemployment including individual proprietors,then
the ratios shouldbe reduced bya percentage equal to the percentage of proprietors
among fish harvesting and proccssing workers. Approximately IO percent of the
harvesting and processing work originating in the disputed zone is individual
proprietors. AppendixCto Anwx 4

THESMALL-V~~SFEL OFSOUTHWE NSTVASCOTIA

[Nolreproduced]

AppendixD hoex 4

CANADIA FISHERPOUCIES

[Norepmduced][1-21 ANNEXESTOCOUMER-MEMORU OF THE UNmD STATES 377

AppendixEto Anoex4

SELECTEUDNITESDTATEAND CANADIA CNATCHAND LANDINC SATA

(Totalsandsub-totalsinthis Appendixmaynotreflectthesumsof
sub-elementsdueto rounding.)

1. The following information regarding catch and landings is used
throughout this Annex and its appendices. Information in Tables
through 10and 17and 18wereobtained as notedon each table. Tables 11
through 14 contain estimates of the distribution among Nova Scotia
Fisheries Districts of landings from the northeastern portion of Georges
Bank.The calculation of the distribution of those landings was performed
by prorating by spccies group the total Canadian landings from the
northeastern portion of Georges Bank among the Fisheries Districts of

Nova Scotia on the basis of the proportion of offshore landings tototal
offshorelandings for al1those districts identified as having landings from
Georges Bank.It was necessaryto estimate these district landings in this
fashion, because detailed information on landings by area of catch by
district (or port) for Canada is not available to the United States.
Information on landings by district was obtained from tables containing
unpublished data from the Department of Fisheries and Oceans of

Canada deposited with thisCounter-Memorial.378 GULFOFMUNE 131

TABLE 1

RespectiveU~ted Statesand CaSharesofCombinedGeorgeBank
Catch(AUSpeciesbyWeight 1940-19*1

UNITED UNITED STATES CANADIAN
YEAR STATES CANADA % OF TOTAL % OF TOTAL
1940 94,073 O 1O0 O
1941 112,521 O 1O0 O
1942 90,354 O 1O0 O
1943 86,733 O 1O0 O
1944 90,747 O 100 O
1945 79,151 O 100 O
1946 106,258 O 100 O
1947 115,685 O 100 O
1948 117,462 O 1O0 O
1949 127,439 O 1O0 O
1950 94,419 O 100 O
1951 106.289 O 100 O

Scallopmponent in metric tons, meat weight.
SOURCES: Annexe17and20,VolV.141 ANNEXESToCouNTER-MEMonOFTHEuNmD sTAm 379

TABLE2

Respective UniStatesand CanadSharesof ComhinedGeorgesBank
ScallopCatchbyWeight1940-1981
(Imetric tonsmeatweight)

UNITNI UNITED STATES CANADIAN
YEAR STATES CANADA % OF TOTAL 90OF TOTAL

1956 7.937 368
1957 7,846 O
1958 6.331 1,333
1959 8,481 2,136
1960 9,932 3,134
1961 10,660 4,565'
1962 9,690 5,715
1963 7.910 5,898
1964 6.241 5,922
1965 1.510 4,434
1966 902 5,081
1967 1,230 5.019
1968 994 4,820
1969 1,325 4.316
1970 1,415 4,097
1971 1,329 3,908
1972 821 4,161
1973 1.080 4,223
1974 925 6,137
1975 857 7,414
1976 1,770 9,761
1977 4,805 12,435
1978 5,589 12,189
1979 6,589 9,208
1980 5.459 5,221
1981 8.413 8,013

SOURCE:Annex20,Vol.V. GULFOFMAINE

TABLE 3
Comparisonof Total Atlantic Canadaand

Northeastern Portionof GeorgesBank Catch
Quantity (Metritons
Round weieht)

Catch-AtlanticCanada'
Percent
Northeastem Northeastem

Portionof PortionofGeorges
Species Year George s sak' Bankof Total
Groundfis' 1977 12,655 2.48%
1978 24,807 4.12
1979 14,571 2.11
1980 24,940 3.39
1981 20,391 2.66

Sea Scallops 1977 103,208 88.19%
1978 101.170 93.03
1979 76,423 86.13
1980 43.334 61.49
1981 66.511 73.99

Lobstcr 1977 229 1.29%
1978 1.49
1979 1.11
0.97
0.81

Other 1977 0.10%
1978 -
1979 0.01
1980 0.07
1981 0.01

TOTAL

- --Neplipiblc
'The information prsssntd in this tablartbat found in Annsx 22V.Vol.
'Atlantic Canada includcs the Maritime praviness (Nova Satie., New Brunswick, Prince Edward Island).
Ncwfoundland. and Quebsc.
'Aetivity in the northcastcrn portion ofGmrpss Bank ir aîsumcd io correspond Io activity in NAFO Division5Zs
for al1ycarr e1977t;e quantity of fish caupht in 1977in the narthcaîtcrn portion of George Bank ir assumd
10bc95 PI cenofthe quantity rcportd by NAFO for Division 5Zs.
'Groundfish arc dclind as al1species idsntilid hy NAFO code 101 thrauph 199: the principal spssiss insludc
cod. haddak. rcdfirh. pollak, turbot. and a vaofflatlish.iccies
SOURCE: ICNAFINAFO SlofisliBulletinsfor 1977thraugh 1981 Table 3. t61 ANNEXES TO COUNTER-MEMORIA OLFTHE UNiTED STATES 381

TABLE 4

Comparison of Value of Total Atlantic Canada and
Northeastern Portion of Ceorn-s Bank Bank Catch
Currcnt S(X1000)'

Value of Catcb-Atlantic Canada'

Percent
Nortbcastern Northrartern
Portion of Portion of Georges
Spcies Year Total Georges Bank ' Bank of Total

Groundfirh 1977 119,946.6 2.970.5 2.48%
1978 159,676.2 6.576.8 4.12
1979 203,922.9 4.305.4 2.11
1980 239,822.4 8.123.5 3.39
1981 260.119.7 6.910.5 2.66

Sca Scallops 88.19%
93.03
86.13
61.49
73.99

Lobstcr 1.29%
1.49

1.11
0.97
0.81

Othcr

TOTAL 1977 289.871.4 42,712.6 14.7%
1978 414.108.9 66,405.7 16.0
1979 503,251.4 68.840.2 13.7
1980 518,056.0 51.099.5 9.9

1981 569.167.1 81.560.7 14.3
- Nedigible
The valueofthecatchshownircrprcrsedineuircntCanadiandollan.andwardcrivedbymultiplyingthequanti-
tiushow"inTablc 3 bytheaverageprieepsr mctrictanofcachrpseisrgioupobtainedfromrclsctcdCanadipub
licationSec Tablc 17for the priesr urcd and sourcesanrultcd.
'Atlantic Canadaineludcr the Maritime provinsc(Nova Smtia. Ncw Brunswick.Prince Edward Island).
Ncwfoundland.and Quebec.
'AclivilyinthenorthcasternpartionofGeorgesBani3arrumcdtomrrcspnd ta aetivityinNAFODivision5Zc
foial1ycan crccpt 1977;thcquantityoffirheaughtin 1977inthenorthcastcrnprtion ofGmrBank isarsumsd
tabe 95 psr cent of the quantityrcparledby NAFO for Division5Zc.
' GroundRsharcdshcd a al1$miss idcntificdbyNAFO codes 101through199;ths principal~wies includc
cad.haddock.rdfirh. iallock. turbot. avarietyof spsçiuofllatfish.
SOURCES: ICNAFINAFOSrorisric~lB~IIciim for 1977through 1981,Table 3:CanadianFirhcricJAnnual
SloIisIic<ilRmicwsVolumes11-13.1978thraugh 1980:Task Forccan AtlanticFishericsNovigolingTroublcd
Woirrs.1982. GW OF MAINE

TABLE 5

Cornparison of Value of Total Atlantic Canada and

Nortbeastern Portion of Georges Bank Catch
1972 US S (X 1000)'

Value of Catch-Atlsntie Canada '

Percent
Northeartern Nortbeastern
Portion of
speeies Year Total

Groundfirh' 1977 78.258.4
1978 89.504.6
1979 106.855.4
1980 112.371.1
1981 112.188.3

SeaScallop

Labster

Othcr

TOTAL 1977 189,124.7 27,867.5
1978 232,123.8 37.222.9
1979 263,703.3 36.072.2
1980 242,740.1 23.943.2
1981 245.478.9 35,176.8

- ,.-.....,.
Thr valueof Ihcaich rhovn hcicuardcilicd bl dividingthevalucofihccalrhincurent Canadian dollarISII
Tablc 4,b, the ZDDropriaton\crrionficlors SlrAplxndii A. Table1. fa ihcconverrlanf?c!a,r urdIJconicrl
Clnadiln dollar.Ioconiiant 1972US dollars
'Atlantic Canada in;ludes th; ~sriiimc oravineer(Nwa Scotia. Ncw Brunswick.Prince Edward Islandl.
Ncwfoundland.and Quckc.
'Activityinthe northearternprtian al GcorgBank issssumsdtocorrespondtoaciivityinNAFODivision 5Zc
foral1ycan crccpl1977:thequantityoffirheauphtin 1971inthe narthsartsinprtian afGcorgcsBankil as~umed
10 k 95 rrruni of the quantityrsportd by NAFO for Division5Ze.
'Groundfirh aredcfind as al1rmia identifid bvNAFO mda 101thraun- 199:.he .iinc.~.l include
cd.haddmk.rdfish. pollack.turbot. anda varisty-ofskisr of flalfirh.
SOURCES: ICNAFINAFO SioiUtic<il Bulkiini for 1977thmugh 1981.Table 3:CanadianFiihcries. Annual
Slorirrical RcviniVal.11-13,1978throuph1980; Task Foru on AtlanticFirheritNovigmiinaTroubled Weier~.
1982;U.S.GovcrnmcniPriniinpOfficc.Ecommic Repw dthr Prcridrnf. Fcbmary1983;IntcrnaiianalManctary
Fund, Burcauof Statirtia.Inrcrmtionol FinoncialSloiirrie1982. [al ANNEXES TO COUNTER-MEMORUL OF THE UNlTED STAm 383

TABLE 6

CanadianCatch by Speciesand TonnageCh From
NortheaîternPortionof GeorgesBank '

Quantity (Mctrie tons
Round weipht)
-
Tonnigr Clas
SmI- Yeai 0-24.9CRT 2549.9 CRT 50-149.9CRT 1M+ CRT

Grnundfi<h' 1977 - 818 1492 10.345 12 655

Sea Swllog

Lobrler

Othcr

TOTAL

- Knovn iobszero
GRT - grors rcpislsrcd tonnage
'Aetivityinthe northcaslcrn portionof Gmrgss Bankii assvrncdtomnsr@nd toastivity in NAFO Division52s foral1ycan
crcCPt 1977:~hsguanlity of fish~avghtin 1977in the nonhcastarn portionofGcorsa Bankirmirsenof thec95
quantity reportcd by NAFO for DivisionSZc.
'Croundfirh arsdcfiasal1rmia identifid by NAFOmda 101through 199;thc prinsiml rpccia includcmd. hnddoek.
redlirh. po1lturbotanda uaristy of rpcçiu of ilatfiah.
SOURCE. ICNhFINhFO Slntiitirol Bvllnimr1911ihmugh 1980,Tiblc5. GULFOF MAINE

TABLE7

Valueof Canadian Calebby Species andTonnage Clas
FromNortbeasternPortion ofGeorgesBank '

Tonnag eias
Spcein Yar 0-24.9 CRT 2549.9 CRT 50-149.9 CRT 1M+ CRT Totsl

Groundfish ' 1977 - 192.0 350.2 2.428.3 2.970.5
1978 - 393.7 624.9 5.558.2 6.576.8
1979 - 554.6 907.4 2,843.4 4,305.4
1980 806.5 738.4 495.7 6,082.8 8.123.5

~ ~ ~ ~ - ~ ~
1980 - - 625.3 147.4 772.7

Othcr 1977 - 0.9 3.2 66.6 70.7
1978 - - - 1.7 1.7
1979 - - - 21.1 21.1
1980 - 30.4 27.4 26.7 84.4

TOTAL 1977 175.8 863.4 6.435.2 35.238.2 42.712.6
1978 - 828.3 9.078.3 56.498.9 66.405.7

1979 - 575.4 8.466.0 59.798.8 68.840.2
1980 806.5 768.8 4,126.5 45,397.7 51.099.5

GRT - arasi rcai-lcrcd xlonn>ar
'~rtibit)lnihcnorthcartrrnmrttonof~corgcr~ank irariumcd io;uirrrpona toacvil>inh,\w ~i,irjon~/cr,ral1,clri

~XCIL 1911 th~gu~nl.0of Tishrauphlin1971inihc norihcasicrmnion of(irorgcBink .sa«~rncdio k95 sr crnlof ~hc
quantily rsmitcd by NAFO forDi+ion 5Zc.
'The value ofihc catch rhavn hcrc i. cxprerrd in surrcnl Canadiandallas and var dsrivsd hy multiplyinathc quantitia
rbosn in Table 6 by the averagepripermetricton ofush s>sciu graupabtaind fmrn sclsstcdCanadianvublicaiiont.Scr
Tabls 17 for thcvrim uwdand mures mnrultd.
'Oroundfisharcdefind asnllrpccicrideniifid byNAFOdcn 101through 199:theprincipl rpcticr inelvded. haddosk.
rdlirh. mllosk. tuibol. and a variofspccia ofnatfirh.
SOURCE: ICNAFINAFO Sroti~ticalBulletim for 1977throvgh 1980.Table 5:Canadian FishcricnAnnual Slanisricol
Rminrr. Vol.ll-Il. 1978tbmugh 1980. ANNEXESTOCOUNTER-MEMORULOF THE UNITEDSTATES 385

TABLE 8

Value of Canadian Catch by Swies and Tonnage Clarri
From the Northeastern Portion of Georges Bank '

1972 US I (X 1000)>

TonnageCliss
Speele Ycai 0-24.9 CRT 25-49.9 CRT 50-149.9 CRT 150+ CRT

Groundfish ' 1977 - 125.3 228.5 1.584.3 1,938.1
1978 - 220.7 350.3 3.115.6 3,686.5
1979 - 290.6 475.5 1,489.9 2,256.0
1980 377.9 346.0 232.3 2.850.2 3,806.3
Sa Scallops 1977 114.7 437.5 3.553.8 21.303.1 25,409.1

1978 - 243.6 4.340.8 28,321.3 32.905.8
1979 - 10.9 3.624.9 29.680.9 33.316.7
1980 - - 1.395.4 18.339.8 19,735.2
Lobstcr 1977 - - 414.2 60.1 474.3
1978 - - 397.6 232.0 629.7
1979 - - 335.8 152.6 488.4
1980 - - 293.0 69.1 361.9
Othcr 1977 - 0.6 2.1 43.5 46.2
1978 - - - 1.O l.O
- - 11.1 11.1
1979 -
1980 - 14.2 12.8 12.5 39.5
TOTAL 1971 114.7 563.4 4,198.6 22.991.0 27.867.7
1978 - 464.3 5,088.7 31.669.8 37,222.9
1979 - 301.5 4,436.2 31,3345 36,072.2
1980 377.9 360.2 1.933.5 .. 21,271.5 23,943.2

- Known 10h zcro
GRT - ;- icpisiircd lonnl;e
,\cttii~) Innorlhca$trinpitionof Gmrga Banktsa<%umclodmrrnpnd toacii$ity UAFO DisisaoSIXforal1)car%
crccptIV17 ~hc~uanli!of rsha~ghl in 1977tnthcnoilhcasirrnpriionofGwrgcrBanksnuvrncd toh95 Fr crnl of ihc
pYBn~ity,C~,,S~bl ~AFO roiD ~ ~ ~IIX ~
'nc duc orihrcbich~hmnbric uasdciiwd b) dnidingihrvalucorihccalchin currcCanaatandollan(<ccTablc71b)
appiopi~atmnrcn,on lacton SI, ~mndji ~.Tsbtc 3 forihcainwnion faciunuwd toanrcri Cnnoalandollaniomnaanf
1972US. dollan.
'Groundhh arcdefincdaral1rprcicsidcntinrbyNAFOcd- 101ihrwnh 199 ihtpincipl swia in~ludrmd. haddd.
rcdfirb.pllosk. turbot,and s variciyor spics of naifish.
SOURCE: ICNAFfNAFO SloristicolBullerintfor 1977through1980,Table5; CanadianFirhcriaAnnualSrorirricof
Revirwr.Val. 11-13. 978thraughI98RU.S.GovcrnmsntPrintingOfficc.bnomic Rcport ofthePruidcnt.Fsbruary,1983:
InternationalMonctaryFund, lntcrnalionalFinancialSiaristia. 1982. GULF OF MAINE

TABLE 9
Cirudisn Calrb by Spein snd Ceii Typ Fcom

theNonhartcio Portion of hrnn Bank'

TOTAL 1977 9 103.210 1.016 11,621 21 323 116,461
1918 615 101.176 1.384 22.808 281 - 126.268
1979 - 76,481 2.213 12.303 240 - 91.297
1980 - 43.389 4.469 20.643 195 - 68.696

- NDa" ,Oa;rrra
'Anmi, .Otbrixn)cu,n -0 or-,a 8.0,r uiumratoo>mim < ib>n NArn mn<oO II'roi.II >un<iW< Io77 INP"..lior
hb a4bi Cr,9778"ih -brui"" m>,a 0,G.rr,u Baniu urumed ,Orr9, Ir-0, 01In?""."<iimra s> \AT0 $0,Di.i<.r,L.
,"TU - Ui..LIsOtWcTnr. DRB - Bai Didu IIaXi- lmi. rr. OTBX - Ui.8Tnrl tW - Cmcid Pa. R - Rr %#na
..".,.dd".,,,.a"nrd #siIswo idrni'idC 'ATOccan 101chrn~aIW In~~noc~.l~~ç(m inr .id. hiddzirdTid.s .*Sluim.inai
..SOURCE ICNAF/NAFO STarlsticdBu!lc#iFm ,971 Lhrÿ.8h 1984 Tibk 5.[13-141 ANNEXESTOCOUN'R-MEMOW OFTHE UNITEDSTAm 387

TABLE 10
VesselGearSummarv

1. Clossary AbbreviationsforCear

DRB = boat dredge
LL = longlines
OTB = bottom beam other trawl
FPO = coveredpots
GN = gillnets
OTM = midwater otter crawl
PS = purse seine

SDN = Danish seine
SSC = Scottish seine

II. Normal Cear Usage

Major Species
Cear Type Fished

Boat Dredge Scallops

BottomOtter, Trawls Groundfish, Shrimp
Long-Liners Groundfish
Swordfish

Purse Seines Mackerel, Herring

Seines Groundfish
CoveredPots Lobsters

Gill Nets Groundfish 388 GULF OFMAINE [15-161
m
2: X2 1 ;Xz-?zz 4222
n* - m1 -. -.-.m.-r- zz:.-
-
;=; -
: 3 -2 OC, -., - - a o*-nmm -ma-
O z2 2 -. ", 2-21-3 22:

m
- 1 -?
-3 -o m", 0 o ;2am-, -00
i =
.- 6
.- - P *- -m. * - n..,*m.,- 0-n
.sg -.-
= -
e .,
.zm -vi 0a a
-r m*
g S : z
- ho
m = - = -riz

m
-3 - n-0a
3s z. 2 -. m-8-0.
870 = 5
: h
2;.= a :.=?2 Z XEOC:
e 9. m n 2":
i
m
mm ", 51 9 ran-r- ri-",
* -C ?" ", m - --

5 -,; - -
RJ. 2" ?2 r. ZZ=.$.?~ Z-.2-

.--*n---m--m----------mmnmnmmmnn-nn-nn-ns
E Ot
6C
LI191 11610'1 8C
V9'59L'V Z6'LOt'll 8C1 LI191 11'6LO'I LC
2 9'VSO.Z 89P08.V II LCL IOIS9't 59'899'01 5TCll 91111 9c
< PO? 9'I I 00'2 ZZOZ SI99't 8602 ISSiI VC
t; zriai PZ~IL'I ZL. 9'11 cc
TIC95 90166 1it (961 C1692'1 Iï
65'Cll Io'PZb 9.802 89'92 19 19'211 9TIZL IC
1 ILCOb'9 20'1 LCI lSZll 60'121 oc
6VC9 Z'IC LL89P'Z tbZ99'I 18'601 19'601 $2
ilZl'I2 66811.19 60 61 LZ
56LCI'bZ 9P89C'SI 9ICSb mOIc'9 92
E IZ
tz
0 ZSLI llSll ZSLI 11'511 cz
9'01 8P88 9'01 8189 zz
961Sr'l 21' 69' 1vzz LZ'l5P'l IZ
OZ
O 61
Y SI

i 91I
II

Cl

II
II
2 01

,(6~611 va8 sa81013JO UO!JJO~ uiatrmqtiohl aql mo.9
IJ!JU!<Irr!iaqr!i @!&osWON i(g pusra!~adsAB rsu!puq us!peu.J

21 318V1 TABLE 13

C.nidinn bndingr By Spris ind BI Novi Scalii Fishcrin District
From the Nortbnnirn Portion of Ceorge Bank (19181'

Ounniiir(Mciric ion.
Ruvnd u.iphii
valve (1971 US. Il g

Crovndnrh Srillops laklrr Other Total

1m.1.1 (Wh1 (m.1.1 1%) 1m.1,~ l00hl 1m.1.1 IO0011 (m.~.) loohi
Disrin Qu.nti#y 1912US. 5 Quanti,) 1972U.S. 5 Qusail 1972US. S Qu.nCity 1912U.S. 5 Qunnliir 1972L1.S.S[21-22] ANNEXESTOCOUNTER-MEMORIM OFTHEUNITEDSTATES 391 - -"O--
: %&Z.3 :szs:
2 1.552's

b *-"--
qyyqy "-4_;-.

vi L -.4,--
jj! gzoz;. mr-n-,

u
5 x "
i9 "Z-IO: ;,;<;: 5
-*-m., -4 P=
e

U
_ L--nO-n-"-a-,"--- -
a-.-,?- Zi,OZ .z
f C"ogi -mm-- -
0
; :tq=g ---no &
"....~ 2:.;2.3 "
h X
m8' ;*
'2 o-.~ôn "3Zs-Z *a'
2 ge ,.?-,, --- % <
-: %
-

3 -

Y U '0%
I -"-P., ."-7
i 5 ;-z::
g 3sf;'g ----< $:3~
c'C 3

-

--%. =Cg;: -?$>ZD ,-r
--- -
----- ge:'Si
3 :-s$.e
= -.?-.as D:o%3 O-.?:
Ue ----- .Z:"s
---=
3;.S.
.$ =-=s.g
E b5 5-"".,
2z g="<g
-c-?n=~ *s--at,
~ziiiognrzzii
C 2% (251 ANNEXESTO COUNTER-MEMORUOF THE UNITED STATES 393

TABLE16

UnitedStatesCatchBySpeeiesandGear Type From
theNortheastem Portionof GeorgesBank'
Quantity (Metrictons

Round Wcight)

Gear Type
Scallop
Spies Yenr Otter Traxl Dredge Other Total

Groundfish 1977
1978
1979
1980

1981

Lobstcr

Othcr '

TOTAL

'Rcflsetr catch by al1mmmcrcial vcrrcls fporü in the statofMaine. Maüachusettr. Rhode Island, New
Jcncy. Maryland. Viqinia, and Ncw Hampshire.
'Cmundfish includu the spcierof cd. haddak. naunder,ysllowtail. riollak, rcdfish. hakc. and whiting.
'"0thcr"spia arc dcfineas thmc not ineluded in the abovcdrfinofgioundfirh. reallo.rlobrtcr. This
calegary das ineluds a number of rpccicr traditionally asf~ioundfirh.
SOURCE: National Marine Firherin Service (NMFS). GULF OFMAINE

TABLE 17

Average AMU~~Price of Catch
By Species-Atlantic Canada

Average
Annual Prie
(Current Can. $
Speeies Year per metric ton)
-
$ 234.73
265.12
295.48

325.72
338.90
Sea Scallops 1977
1978
1979

1980
1981
Lobster 1977

1978
1979

Other 1977

SOURCES: Canadian FishcriesAnnual Stalislical ReviVol. 11. 1978,Tablc 28;
Canadian Fishcrics.Annuol Srnrisiieol RcviewVol. 12. 1979, Table 28;Canadian
FishcricsAnnual SialisrieolReviewVal. 13. 1980.Table 29; Task Farcon Atlantic
FishcricsNavigatingTroubledWarcrs. 1982.p.10.ANNEXESTOCOUNTER-MEMOW OFTHEUNITEDSTATES 395

AppendixFto Annex4

STANDARODFLIVINCOMPARLSONS

[Norreproduced] Volume IV

ANALYTIC ANLNEXES

Annex5

THEGEOMORPHOL ONGYEOLOG OF THGULF OFMAINEAREA.

INTRODUCTION

This Annex discusses the geomorphologyand geologyof the Gulf of
Maine area, with particular regardthe differences between the
presentations in the Memorials of the United States and Canada. The
principal differences are those relating to the significance of certain

geomorphologicalfeatures. Chapter 1of this Annex discussesthe geomor-
phological setting, with brief references ta the historical processes ac-
counting for the present-day compositionand shape of the seabed. That
Chapter demonstrates that Georges Bank is an extensionof the Atlantic
Coastal Plain and East Coast Continental Shelf of the United States. It
alsoshowsthat the Northeast Channel isa significantbreak in thesurface
of the seabed. Chapter II of this Annex examinesthe points of disagree-
ment arising from the characterizations in the Canadian Memorial of
certain subsurface geologicalfeatures.

PreparedonthebasisofcontribufromDrs. JohnS. Schlecand KimD.
Klitgord.of the UnitedStatesGeologicalnd Ors. ElazarUchupiand
K.O.Emery,oftheWoodsHolcOceanographicInstitution. CHAPTER1

GEOMORPHOLOGY
1. In its Memorial, Canada statesthat "it is possible to recognize" four
broad "pbysiographic provinces" of the continental shelf of eastern North

America '.Physiographic provinces are areas of the seabed divided on the
basis of the shape of the scabed and the depth of the water. The four prov-
inces identified in the Canadian Memorial are the Scotian Shelf,Georges
Bank, the Gulf of Maine, and the East Coast Shelf. The Canadian
Memorial bases ils division of the continental shelf upon "areas within
which there is a fair degree of physical similari'".

2. A division based upon "a fair degree of physical similarity" in the
physiography of the area may be appropriate and useful for some
purposes '.Thus, for simple descriptive purposes, the United States has
referred in its Memorial to such physiographic areas as "Georges Bank"

and the "East Coast Continental Shelf'. More comprehensive criteria
may be used, however, to divideareas of the seabed on a more refined ba-
sis into "geomorphological provinces". These criteria include: (1) the
historical origins of the seabed; (2) the development and present-day
shape of the seabed and the composition of the materials comprising that
seabed; and (3) the location of natural, readily discernible boundaries

between geomorphologically different areas of the continental shelf.
3. The division of the seabed of the East Coast Continental Shelf of
North America on the basis of the first of these criteria results in two ma-
jor geomorphological provinces. These extend from Florida to New York
and from New York to Newfoundland. The remaining criteria may then

be used to divide the province stretching from New York to Newfound-
land into two distinct subprovinces, separated by a prominent geomorpho-
logical boundary, the Northeast Channel. All of these criteria demon-
strate that Georges Bank is the extension of the Atlantic Coastal Plain
and East Coast Continental Shelf of the United States.

'CanadianMemorial.para. 67.
>Suchcritcriahaveprovenuseful inthe prcparationofstudies ofthe physiogra-
. .oftheAtlantic continentalshclf. .oaredforthe UnitedStatcsDeoartmentof
the Interiorand inenvironmental impact studies prepardy that Departmentin
connectionwith the saleof oil and gas leasesin the Gulf of Maine arby the
United States. E. Uchupi,Allanric ConrinenrolSheU and Slope ofrhe Unired
Srores-Physiography. GeologicalSutvey ProfessionalPaper 52942, 1968; see

olso Draft and Final Environmental ImpactStatements for Outer Continental
Shelf Lease Sales No. 42 and No. 52;materials previouslydepositedwith the
Court pursuantto Article5q2) of the RulesofCourt.398 GULFOF MAINE Pl

SECnON 1. me historicalorigiosof the materialscomprisingthe seabed
indicptethat tbere are hvomajor geomorphologicalprovincesof the North
AmericanAtlanticContinentalShelf

4. The historical originsof the materials comprising the seabed of the
North American Atlantic continental shelf dividethe area into two major
geomorphological provincesT . he first major provinceconsistsof the area

of continental shelf extending from Florida to New York '.This area of
continental shelf is covered by a layer of sediments deposited by rivers
that washed the sediments off the adjacent mainland. The result is a
broad, smwth, and essentially continuouscontinental shelf that descends
gently seaward to the continental slope. The second major province
wnsists of the area of continental shelf extending from New York
northeastward to Newfoundland, includingthe Gulf of Maine area. The
uppermost layers of sediment covering this area of the continental shelf

have been depositedby glacial and, to a lesser extent. fluvialactivity. On
the basis of these historical origins, it ispossible to divide the North
American east Coastcontinental shelf into a "non-glaciated shelf prov-
ince" from Florida to New York and a "glaciated shelf province"from
New Yorkto Newfoundland.

SECTION 2. The Continental Shelf fromNew York to Newfoundland

may besubdividedinto hvosubprovinces basedupontbe respectivetypes of
glacial activity
5. The "glaciated shelf province" extending from New York to

Newfoundland may be dividedfurther into Iwosubprovinces,based upon
the type of glacial activity to which the seabed was subjected. Each of
these subprovincespossessesa distinctive geomorphology.The character
and shapeof the seahed in those areas that received "glacialoutwash", or
sediments deposited by the runoff from the front of the ice sheet, differ
suhstantially from that of the seabed over whichthe glacier moved.

2. The first of the subprovinces in the "glaciated shelf province"
includes the area of the continental shelf that has not been glacially
eroded. It extends from New York northeastward to the Northeast
Channel. 'The surficial sediments covering this area of the shelf are

composed primarily of glacial outwash. These sediments contain fine-
grained material, primarily sandand, in severallocalareas, bedsof grave1
intermixed withsand. These materials originally formed a broad, smwth
plain lyingin front of thicesheet and exposedabovesea level.That plain
extended alongthe present shorelinefrom New York to the northeast and
thence as a peninsula over the area that is now Georges Bank. Subse-

'This shelfcxtcndsnortheastwardfrom CapeCanaveral,Florida.Southof the
Cape isa narrowstretchofshelfcomposed primarilyofcarbonaterock. [SI ANNEXESTOCOUNIER-MEMORIALOFTHE UNITEDSTATES 399

quently, the melting of the polar icecap and the retreat of the glaciers
caused the sea to advance and to inundate the area. This advance of the
sea, together with tides and currents, reworked the sands and the grave1
beds on the plain off Nantucket Island and on Georges Bank intothe
extensivelinear ridges, shoals. waves,and other dunelike configurations
@ present today. Figure 1.

7. The second subprovince is characterized by a distinctive, irregular
topography that is the result of the ice sheet having moved across the
shelf. In the Gulf of Maine area, this subprovince includesthe Gulf of
Maine Basin and the Scotian Shelf. As the glacier moved, it eroded the
softer, less resistant sedimentary rocks, creating basins and other depres-
sions, while leavingthe harder rock as a series of ridges and other

elevated, or "high", features. The glacier also deposited on this eroded
surface much of the material it picked up during the course of its
movement.This material, called "glacial till", consistsof coarse, poorly
sorted sediments, includingmud, rock fragments, and even boulders.
Today, the result of this glacial erosion is a continental shelf with a
surface that is much more rough-hewn,uneven, and deeper than that of
the continental shelf to the south and West.

8. In the Gulf of Maine Basin, there are many ridges, knolls, ledges,
and other high features, with basinsof varying depths interspersed among
them. The high features coversome 70 per cent of the seafloor,the basins
the remainder. The northern and eastern areas of the Basinare especially
irregular, as there is little sediment coveringthe erodedshelf.

9. The Scotian Shelf, although larger in scale than the Gulf of Maine
Basin,isgwmorphologicallysimilar. It can be dividedinto three zones:an
inner coastai area of rocks with little or no sedimentary cover;a lowland
area farther seaward comprisedof small, isolated hanks as wellas basins
and other depressions;and, on the seaward side, a chain of broad. flat-
topped banks. Figure 2. None of these banks, with the exceptionof Sable
Island Bank, has the extensive pattern of sandwave configurations that
can be found on GeorgesBank and the adjoining Nantucket Shoals '.

10. In summary, the shape and character of the seabed of Georges
Bank differs substantially from that of the Gulf of Maine Basin and the
Scotian Shelf. This is because Gwrges Bank was an area formed
primarily by the depositionof glacial outwash,while the Gulf of Maine
Basinand the Scotian Shelf were formedprimarily by glacial erosion.The
result is that the shape and character of the seabed of Georges Bank
resemble the continental shelf as far to the southwest as Long Island, a
part of the shelf that was formed by the same glacial processes.

'It wouldaowar that.fromthelocationofSableIslandBankontheseawardedee
ofihc~cotianShelfandfrorntheexccpiionan latureofiissandconfigurationst.he
Bank occuoiesa srnallarca ofthe Scotian Sheoverwhichthe iccshcctdidnoi
advance.400 GULFOF MAINE 16121

SECTION 3. The Nortbeast Channel is a natural geomorpbological
boundaryin the Gulfof Maine area

11.The Northeast Channel is a natural geomorphologicalboundary in
the Gulf of Maine area becauseof its physicaldimensions,and becauseof
its status as a dividing line between distinctive geomorphologicalsub-
provinces.

12.The Northeast Channel is the only significant break in the surface
of the continental shelf in the Gulf of Maine area'.It is to be contrasted
with the Great South Channel, which is approximately one-third the
depth of the Northeast Channel. Furthermore, while the Northeast

Channel is deep enough to conduct the flow of water between the
continental slopeand the Gulf of Maine Basin, the Great South Channel
is sufficientlyshallowto act as a barrier to this deep flSee Figure 2.

13. Quite apart from the prominence of its physical dimensions,the
Northeast Channel serves as a natural geomorphologicalboundary be-
tween the two distinct subprovincesin the Gulf of Maine area. It forms
the boundary between that part of the "glaciated shelfprovince" that
includesthe Scotian Shelf, formed primarily by glacial erosion,and that
part of the provincethat includesGeorgesBank, formedby the deposition
of glacial outwash. See Figure 2. The Great South Channel, in contrast,
does not separate two distinct subprovincesand, therefore, does not serve

as such a geomorphologicalboundary.
14. This present-day difference in the nature of these two channels
stems from their distinctive historical development.During a loweringof

the sea levelin the early Oligoceneepoch(approximately30 millionyears
ago), mostof the Gulf of Maine area was dry land. At that time. the two
major drainage systemsin the area reached the sea through what is now
the Northeast Channel and the Great South Channel. Approximately
20,000 years ago. however,these drainage systems were subjected to
different glacialactivity.

15.As the icesheet advancedsouthward,a tongueof the glacier moved
through the Northeast Channel, eventually reachingthe open seaat what
is now the edge of the continental shelf. See Figure 3. This advance
deepened and widened, or scoured the Northeast Channel. The subse-

quent retreat of the ice sheet left a layer of glacial till on the floorof the
deepened Channel. The reworkingof this glacial till since the retreat of
the ice sheet resultedin the formation of rock fragments, and the floorof
the Northeast Channel is covered today with rocks and boulders.South-
West of the Northeast Channel, the ice sheet apparently stopped its

'Usingthe figures containen the CanadianMemorial, the maximum depotf h
the Great SouthChannel doesnotexceedabout 80 metres.whilethe Northeast
Channel isabout250 metres deepC. anadianMemorial, para .3.[13-14) ANNEXESTO COUNTER-MEMORIALOFTHE UNIiED STATES 401

advance along the northem edge of the hank, or "cuesta'", that is now
Georges Bank. Farîher to the southwest, the ice sheet moved into an
embayment in the vicinity of the Great South Channel, but it did not

advance across the breadth of the peninsula and reach the open sea, nor
did it scour that Channel. The Great South Channel today, therefore, is
filled largel; with the glacial materials and other finer-grained sediments
foundoneither sideofthe Channel, Le.,onGeorges Bankand on the shelf
off Nantucket and farther to the southwest.

16. Boththe importanceof the Northeast Channel as a geomorphologi-
cal boundary and the historical connectionof Georges Bankto the East

Coast Continental Shelf and mainland of the United States are confirmed
by the presence of numerous mammoth and mastodon teeth that have
been found among the .sediments on Georges Bank2. The types of
sediments in which these teeth have beenfound, together with radiocar-

bon dating ofpeat depositsand of molluskshellsin the sediments, furnish
evidence that these animals existed on Georges Bank during a period
when the Northeast Channel remained inundated. These animals must
have migrated from what is now the United States, since the Northeast
Channel wouldhave presentedan impenetrable barrier to migration from

the area to the northeast.

'A "cuesta"is a hill,ridge,or bankwitha steepslopeon onesideand a gentle
slopeonthe otherside.GeorgesBank haa steepnorthernslope and descessa-
wardina more gentleslope.

'F.C. Whitmore,Jr.,K.O. Emery, H.B.S C.ook, andD.J.P Swift,"Elephant
Teeth from theContinentalShelf,"inScience,Vol. 156,No. 3781,1967, pp.
1477-1481. CHAPTERII

GEOLOGY

17. The precise characteristics and interrelationships of the subsurface

features of the east coast continental margin of North America can be
determined with any degree of certainty only after more extensive deep
exploratory drilling has been undertaken. This is particularly the case in
the Gulf of Maine area. At present, the only deep drilling data from this
area that have been available for extensive scientific study have come
from two holes drilled on Georges Bank in 1976 as part of the United

States Continental Offshore Stratigraphic Test (COST) program '.Never-
theless, extensive geophysical studies'of the margin have been conducted,
employing such inferential means of exploration as multichannel seismic
reflection profiles and gravity and magnetic surveys. In combination with
the available drill-hole data, these studieshave provided information from

which geologistsin both the United States and Canada have inferred what
they believe to be the major structural elements of the basement lying
beneath the margin.

18. The United States and Canada agree with regard to the two
fundamental characteristics of the subsurface geology, or basement
structures, in the Gulf of Maine area. First, the subsurface geology is
essentially continuous'; second, the trends of the major structural ele-

'The COSTprograminvolveda seriesof deep exploratoryholesdrilled through-
outthe eastcoastmarginhya consortium of UnitedStatesoilcompanieswiththe
approvalof the UnitedStates GwlogicalSurvey.Neither of theIwoholesdrilled
onGeorgesBank wason thc northeastern portionof the BankSee UnitedStates
Memorial, para.95,n. 4.

'Gwphysicaltechniquesof explorationprovideinformation aboutthe velocityof
soundwavestransmittcd throughrocks,the shape of highlyrcflcctivesurfaces
within rocks,and thc magncticproperties anddensiticsof rocks.The nature,
position,and relationshipsof rockstructuresare infcrred from this information.
See Figure 4.
'TheCanadianMemorialStates:

"The geologicalhistoryofthe GulfofMainearea isofinterestto the ex-
tent that it helpsto demonstratethe essentialcontinuityand integrity of
the Atlantic continental margias itppearstoday."(para. 74.1[la-181 ANNEXESTO COUNTER-MEMORW OFTHE UNITEDSTATES 403

ments are parallel to the general southwest-to-northeast direction of the
North American Coast '.

19. The Canadian Memorial, however, draws several conclusions re-
garding the subsurface structures that are not substantiated by the
available evidence. None of these conclusions, however, refutes the
underlying agreement of the Parties concerning the essential continuity of
the subsurface geology.

SECTION 1. The Similarity of Basement Rocks Demonstrates the

Essential Continuity of the Gwlogical Structure Throughout the Gulf of
Maine Area
20. The first disagreement between the Parties relates tothe suggestion

in the Canadian Memorial that .the sirnilarity of the rocks beneath
Georges Bank and those of the Avalon Platform and Meguma group
underlying the Nova Scotia landmass is evidence that the basement
structure beneath the Nova Scotia landmass extends to Georges Bank. As
Canada states:

"Rocks that appearto be part of the Avalon platform sequence
were encountered at the bottom of one of the stratigraphie test
wells drilled by a consortium of United States companies in the
central part of Georges Bank in 1976, providing evidence of the
seaward extension of the Avalon platform from the Canadian
landrnass to the area of Georges Bank. Moreover, some leading
geologists consider that the basement rocks beneath at least the

eastern portion of Georges Bank are probably part of the
Meguma belt extending seaward frorn Nova Scotia '."
See the accompanying Figure 14 in the Canadian Mernorial. In fact, it is
impossible to assign any direction tothe extension of the basement rocks

beneath Georges Bank andthe Nova Scotia landmass.

'Forexample.the CanadianMemorialstates:
". .. the Anomalyand the BasementHinge Zone parallelcach othcr
throughout this portionof the Atlanticargin,and bothrun parallel to
thegeneral directionof the present-dayAtlanticoastlineandshclfedge
from northeastto southwcst".[para.78.1

Similarly,the Canadian Mcmorialdcscribesthe northeast-southwestoricntation
of:the"grabens".or dcprcssionsinthccrustal structure [para.79f,the Cretaceous
and Tertiarysedimcntarystrata [para.80f,and the overlyingsedimentarywedge
[para. 831.The Canadian Mcmorial also describesthe stretching and pulling
outwardofthcwntincntal blocksupportingthe continental landmass as occurring
"in a direction roughly perpendicularta the contemporaryNorth Amcrican
Atlantic wastline" [para.771.
'CanadianMemorial, para.76.[Emphasisadded; citations omitted.]404 GULF OF MNNE 1191

21. The problem with the Canadian contention lies not in the evidence
itself, Le.,the similarity of the rock types,but in the conclusionsthat are
drawn therefrom. In viewof the fact that the subsurface structure of the
entire east coast continental margin is essentially continuous, it is not
surprising that thcre are similarities between the types of basement rocks

at any two points along that structure. In fact, the types of rocks beneath
Nova Scotia, the Gulf of Maine, Georges Bank,the continental shelf off
Long Island, and the continental landmass of the United States are al1
similar. Thus, the basement rocks underlying Georges Bankare as closely
relatedto the LongIslandplatformastheyaretothe Avalonplatfonn orthe
Megumabeltof NovaScotia.

SECTION 2.There 1sNo ConsensusCnnceroingthe Precise Limits of the
GeorgesBank Basin and the Scotian Basin in the Gulfof Maine Area

22. The Canadian and United States Memorials alsodisagree concern-
ing the location of the limits of the two principal subsurface geological
basins underlyingthe continental margin in the Gulf of Maine area, the
Georges Bank basin and the Scotian basin. The Canadian Memorial
states that the uplifted feature knownas the Yarmouth arch represents a
partial boundary between these two basins '. Figure 16 in the Canadian

Memorial thus depicts the Scotian basin as extending southwestward
beneath the edge of Georges Bank. This description,however,does not
comport with descriptionsof the basins containedin prior studies in which
Canadian geologistshaveparticipated.

23. Subsurface or geological basins are depressions that over the
millenia have been filled with sediment that subsequently has been
compacted. Geologists traditionally havedetermined the presenceof such
basins by measuring, primarily through the use of geophysicalmethods,
the thicknessof the sedimentsbeneath the margin. It is difficult,however,
to define through such inferential means the precise limitsof subsurface

features. It is a common practice among geologists to use a relatively
distinct sedimentary feature, such as a carbonate ridge orother elongated,
built-up deposit of compacted sediment, to define the limits of the
subsurface basins underlying the east coast continental margin of North
America.

24. The limits of the Georges Bank basin and of the Scotian basin are
difficult to determine,because each basin in fact is an individually named
part of an interconnectedseriesof basins lyingbeneath the shelf and slope
throughout the North American Atlantic continental margin. Both the

United States and Canada define the seaward limit of the Georges Bank
basin to be the "paleoshelf edge", or "reef ridge" as it is portrayed on
-
'CanadianMemorial,para. 86,[201 ANNEXES TO COUNTER-MEMORIALOFTHEUNITED STAN 405

Figure 16 of the Canadian Memorial '.This feature is a relatively
prominent carbonate ridge that lies buried beneath the continental slope,
running to the northeast under the seaward side of Georges Bank. In the

vicinity of the Northeast Channel, the reef ridge swings landward.
Northeast of the Channel, beneath BrownsBank, the ridge becomesless
well-defined', and thus can no longer be viewed as the limit of the
Gwrges Bank basin.

25. Canada apparently has used an area of salt domes, or "diapirs '",
called the "sedimentary ridgeprovince",to definethe seawardlimitof the
Scotian basin. See cross section A-A' of Figure 17 in the Canadian
Memorial '.The sedimentary ridgeprovinceappearsto be well-defined off

the upper northeast Coast of Nova Scotia. As with the reef ridge, the
sedimentary ridge province swings landward in the vicinity of the
Northeast Channel. Thereafter, it narrows significantly to the southwest
of the Northeast Channel. Since the sedimentary ridge province is
considerably less significant a feature in this area, it should not be
considered as the limit of a major sedimentary basin southwest of the

Northeast Channel.
26. The extensionsof the Georges Bankbasin and of the Scotian basin,
therefore, should be limited to those areas where the carbonate ridge and

the sedimentary ridge province, respectively,are well-defined.According-
ly, the Gwrges Bank basin is best describedas underlyingGeorges Bank
and extending northeastward to the Northeast Channel. The Scotian
basin is best describedas lying beneath the continental shelfand slopeoff
Nova Scotia and extending southwestwardno farther than the Northeast
Channel.

27. This description of the Scotian basin is in consonance withthat
contained in an official publication of the GeologicalSuwey of Canada.

The Scotian basin is described in that publication as underlying "the

'It isnoteworthythatCanada.onFigure16,depicts thereefridgeas an apparent
boundarybetweenthe Georges Bankhasinand the Scotianbasin.inthevicinityof
the Northeast Channel.
'On Figure 16 oftheCanadianMemorial,thedashedlineoutliningthereefridge
inthevicinityoftheNortheast Channel apparentilsyan indicationof thelackof
definitioninthisrea.
'A diapirisa cylindricalbodyofless-densrock.oftensalt. thatheatandpressure

have causedto pierce overlyinlgayersof denser rock,forminga dome-shaped
structurethatprojectsupwardthrough theoverlying rock.
'ThisprovincedoesnotevenappearonCanada's Figur e6.wherethereisnoin-
dicationof the meansusedto dcfinethe seawardlimitsof the Scotianbasin.It
shouldalsobenotedthat thereisnodiscontinuity inthesouthwestward extension
of the GeorgeBs ankbasin,asisp~rtrayedonFigure 16.406 GULF OF MAINE [21-251

eastern part of the Scotian Shelf and rise "'.A map included in that
publication, reproducedhere as Figure 5, wmports with the textual
description.Similarly,a 1981article' writtenjointly by United States and
Canadiangeologistsdescribesthe Scotianhasinas underlyingthe continen-
tal slope and rise off the upper northeastcoast of Nova Scotia and the
southern wast of Newfoundland '.An accompanyingfigure in the article,
reproducedhere as Figure 6, doesnot depictthe Scotianbasinas extending
beneath GeorgesBank.

SECTION 3. There 1s No Evidence to Support a Belt of Seismicity
Connectingthe White Mountains to the NewEnglandSeamounts

28. Althoughthe Canadian Memorial acknowledgesthe essentialconti-
nuity of the geologicalstructure of the east wast continental margin, it
suggests that a continuous "belt of seismicity" extends from mainland
mountains totheNew EnglandSeamountChain, seawardofthe continental
shelfoff Cape Cod.As Canada States:

"Scientists are not certain whetherthe seamountsare associated
with an east-west basement fault south of Cape Cod ... or
whetherthere is a relationshipbetweenthe seamountsand a belt
of seismicitythat extendsnorthwestward fromthe area seaward
off Cape Cod through the White Mountainsof New Hampshire
and into westernQuehec'."

Notwithstanding this uncertainty, Figure15 of the Canadian Memorial
depicts, without qualification,ha continuous beltofseismicity.
29. The United States doesnot agree with the Canadian contentionthat
sucha "helt ofseismicity"extendsoffshore.Althoughthere isevidencethat
a linear zoneof earthquake activity existsonshore, from the area of the
White Mountains of New Hampshire into western Quehec,there is no

reliable evidenceto supporteventhe qualifiedCanadiansuggestionthat the
belt of seismicity alsoxtends offshore across Georges Bank. Indeedt,he
availableevidencerefutesthe notionof sucha helt.Althoughthere hasbeen
occasionalearthquake activity in the area of Georges Bank,very little of
that activity has occurred offshore along the so-called beltof seismicity
postulatedhythe Canadians.Finally,it isimportantto notethat sucha belt,
evenif it did exist, wouldnot disrupt the essentialnuity and northeast-
ward trend ofthe geologicalstructure ofthe continentalshelf.

'L.H. Kingand B. MacLean,Geology d the ScotianSheif,CanadianHydro-
graphieService andtheGeologicaSl urveyofCanada,1976, p. 17.
'J.S. Schlee andL.F. Jansa, "The paleonvironmena tnd developmentof the
easternNorthAmerican continenta mlargin",inOceanologicAa cta,1981,p. 71.
'The GeorgesBankbasinis describedas a seriesof basinslyingbetween two
stableasementplatforms.Thesearethe Long Islandplatform, tothesouthwest,
andthe LaHaveplatform,whichliestothe northeast beneath theScotian Shelf.
Ibid.p.73.
'CanadianMemorial,para.81. [Il ANNEXESTO COUNTER-MEMORLU OFTHE UNITEDSTATES 407

Amex 6

HYDROCARB PONTENTIA BLNBATHTHE NORTHUSTER PNORIION
OF GEORGE BSANK'

INTRODUCTION
' 1. The Canadian Memorial estimates that the northeastern portion 'of
Georges Bank offers "a 40 percent chance of yielding at least 1,100
million [1.1 billion] barrels of oil and abou5.3million million [trillion]

cubic feet of gas '.Canada then asserts that these estimates amount to
approximately "one-sixth of Canada's remaining conventional reserves"
of oil'. The Canadian estimates of the hydrocarbon potential of northeast-
ern Georges Bank are inaccurate, and the extraordinary Canadian
assertion concerning the purported contribution of those estimated hydro-
carbons to existing Canadian reserves is exaggerated and misleading. The
evidence currently available to the United States does not suggest that
there are deposits of oil and gas beneath Georges Bank of the magnitude

claimed by Canada. Moreover, Canada has compared different categories
of hydrocarbon resource estimates incalculating the contribution that any
oil from the Georges Bank area purportedly would make to Canada's
energy reserves.
SECTION1. CanadaHas ExaggeratedtheProspectsfor Discovering Oil

andGasBeoeathGeorgesBank
2. Canada estimates that there is a "40 percent chance'" that the
northeastern portion of Georges Bank contains at least 1.1 billion barrels
of oil and about5.3trillion cubic feet of gas. Current United States mean
estimates for the entireGeorges Bank, tenned the "North Atlantic re-
gion", areonly 0.4 billion barrels of oil and 2.5trillion cubic ofgas'.

*Prepared on thebais of contributions fromCharleD. Masters,Chief World
EnergyResourcesProgram,United StatesGeologicaSlurvey.

'The Canadian Memorialapparentlyusesthe term "eastern halr' in describing
the area thatthe UnitedStateshasefinedasthe northeasternportion ofGeorges
Bank.
'CanadianMcmorial,para. 86.
'The formulationofa "40percent chance"reflectsessentiallythe sameprobabili-
ty that there are petroleumrcsourcesin a givenarea as that of an "average
expectation".used in previously publisestimatesof theanadianGeological
Survey, andthat of amean", or mostlikelyestimate.usedby the UnitedStates
GWogicalSurvey.
'Estimatesaf UndiscoveredRecoverable ResourcesdOil and Cas in the United
Stares.United States GeologicalSurvey,Circular 860. 1981,p.78. Pertinent
portionsof thisreportare reprintedat AppendixA.408 GULF OF MAINE 121

3. Canada based its estimates of 1.1billion barrels of oil and 5.3trillion
cubic feet of gas upon a comparison of the thick sediments underlying
Georges Bank "with the known geological parameters in the Sable Island
area off Nova Scotia, where several significant oil and gas fields have

been identified "'.The presence of thick sediments beneath both Georges
Bank and the Scotian Shelf near Sable Island is not in itself, however, an
indication of comparable hydrocarbon potential sufficient to support
Canada's estimates.

4. The overall conditions for the generating and trapping of hydrocar-
bons beneath Georges Bank differ from those beneath the Scotian Shelf.
The sedimentary rocks underlying the Scotian Shelf, particularly in the
area near Sable Island, comprise ancient buried deltas, which contain
carbon-rich materials carried off the mainland by the drainage of rivers.
Subsequently, offsetting faults have fractured these ancient deltas, creat-
ing structures that have been shown totrap large deposits of natural gas '.
No structures similar to thene deltas have been found beneath Georges
Bank.

5. The results of drilling conducted by the United States on the
southwestern portion of Georges Bank have provided no evidence of
proven resources of oil or gas. Eight holes have been drilled to date on this

portion of Georges Bank. Although this drilling bas resulted in the
recognition of some structures that are necessary to trap deposits of
hydrocarbons, it has not produced evidence of the sedimentary "source
beds", the structures that are necessary to yield the hydrocarbons that
drain into those traps. No drilling has been conducted by either the
United States or Canada on the northeastern portion of Georges Bank.

'Canadian Memorial, para. 86. TheCanadian Memorialasserts that the
Swtian basin extends beneath Gwrees Bank. As discussedin Annex 5. The
Gwmorphologyand Ceologyof the Culf of MaineArea.this isinconsisientwith
descriptionof thc ScotianbasinprcviouslypublishedbyCanadiangeulogists.
'The latest availableestimates publishedby the Governmentof Canada,
dated March,1981,indicatethat the VenturediscoveryoffSableIslandwntains
depositsof natural gas "probably exceedinone trillioncubicfeet", basedupon
onesuccessfulwell.See"Potential Evaluation"i,Canada'sConvenrionalOil and
CasResources. GeologicalSurveyofCanada,Open File767,March 1981,pp. 10-
14,at Annex38,Vol.II, oftheUnitedStatesMemorialandcitedat para.23,n.4,
of the United States Memorial.The Canadian GeologicalSurveybas described
the Venture diswveryas signallinga "majorgasprovince".Ibid A.sof February,
1983,therewere sixdrillingrigsoperatingin NovaScotia waters,and Mobil Oil
Canada, Ltd.,has announcedthat it wouldproceedto developnatural gas from
the Venturefield.ova ScoriaBen&tsfrom Wshore Oil and Cas. NovaScotia
Dept.of Development.1983,pp. 1,II, and 12.Ahhoughofficialrevisedestimates
ofnaturalgasreserveshavenot beenpublished,it reasonablycanbeexpectedthat
estimatesforthisarea eventuallywillamountto twoor more trillioncubic feet. 131 ANNEXESTOCOUNTER-MEMORIAL OF THE UN~D STATES 409
SECTION 2. Canada's Estimate of tbe Possible Contribution of Nortb-

eastern Georges Bank to its Energy Reserves is Exaggerated and
Misleading

6. Canada asserts that its estimates for the northeastern portion of
Georges Bank "amount to approximately one-sixth of Canada's remaining
conventional reserves "'. The Canadian Memorial does not describe the
manner in which it arrived at this conclusion.

7. Canada has used two different categories of resource estimates in
comparing the resource potential of northeastern Georges Bank with that
of Canada. Inasmuch as there has been no drilling on the northeastern
portion of Georges Bank, the Canadian estimates for oil and gas for that

area necessarily must represent undiscovered resources. Estimates of
undiscovered resources are the most speculative category of hydrocarbon
estimates '.Canada has compared its estimate of undiscovered oil re-
sources, however, to its "remaining conventional reserves" of oil, a more
established category of resources. Conventional reserves refiect estimates

of discovered accumulations of hydrocarbon resources, al1 of which are
specifically identified and considered to be economically recoverable '.As
such, they are the most definite and established category of hydrocarbon
resources. Canada, therefore, has compared speculative estimates of
undiscovered resources to estimates of measured reserves.

8. A more complete and fair evaluation of the possible contribution of
the undiscovered oil resources of the northeastern portion of Georges

'CanadianMemorial, para. 86.
'The United States GcologicalSuwey defines "undiscovered resources" as
follows:
"Resources, outside of knownfields. estimated frombroad gwlogic
knowledgeand thwry."
Circular 860. supra para. 2,n. 4, p.7. Estimatesof hydrocarbonresourcesare
groupedby thc UnitedStates GeologicalSuwey in10categoriesthat reflecttwo
basic critcria:(1) gwlogic or other purely physicalfactors that determine the

certainty with whicha resource pool may be identified; and (2) whether an
identifiedpool is rcwvcrable in terms of currenteconomicand technological
factors.See Principlescf Resource/Reserve Classificationfor Minerals. United
StatesGwlogicalSurvey,Circular831. 1980, re~rinredar Ap~~ndix B. Figure I
isa diagramdcpictingthc variouscatcgoricsof hydrocarboncstimatesuredby thc
UnitcdStatesGcologi.alScwiccinaccordanccwiththcsccritcria.
'Although the Canadian Memorial does not define the term "conventional
resewes",it apparentlyisequivalentto "measuredresewes",whicharedefinedas
followsby the UnitedStatesGwlogicalSuwey:

"That part of the ewnomic identified resourcethat is estimated from
gwlogicevidcnce supporteddirectlyby engineeringmcasurements."
Circular 860,supra para. 2,n.4, p.7.410 GULFOF MNNE 14-51

Bank to the oil reserves of Canada would compare the undiscovered
potential resourcesof that part of Georges Bankto the ultimate recover-
able resourcesofoil for al1of Canada. That figurecomprisesundiscovered
resources, proven reserves, and cumulative production for al1of Canada.
Accordingto the most recent availablereport publishedby the Geological

Survey of Canada, in March of 1981,the ultimate recoverable resources
of Canada are estimated to amount to 40.3 billionbarrels of oil '.
9. Thus, the Canadian estimate of 1.1billionbarrels of oil on Georges

Bank infact represents at most some2.7 per cent of the present estimates
of the ultimate recoverable oil resourcesof Canada '.If the United States
estimate of 0.4 billionbarrels of oil for al1 of Georges Bank is more
accurate, then whatever oil may be beneath the northeastern portion of
Georges Bank represents considerablylessthan 2.7 percent of the present
estimates of the ultimate recoverableoil resourcesof Canada.

10. in the event that there are in fact deposits of oil or gas in the
Georges Bankarea, New England is both in needof and able to use these
resources. The more populous and mature economy of New England
creates a great demand for hydrocarbon resources.There have been no
commercially exploitable discoveries of oil or gas anywhere along the
entire east Coastof the United States.

'OpenFile 767, suprapara.4,n. 2, p. 2mis estimatedoesnotdiîïerentiate
betweenonshoreandofTshore rcsetvesasdoUnited States estimates.
'Sincc the publication ofthose estimates.mormver, therc have been
additionalappraisalwellsdrilledontheHiberniastructureoffNcwfoundlanda,nd
a Canadiancorporatcofficialhas reportedthat the rcsults from thcse wells
indicatetheprcsenccof amajoroilaccumulation.Abstrac otfpresentatioby R.J.
Butot of Mobil Oil Canada, Ltd., "TheHibernia Structure", in American
AssociationofPetroleumGeologists B,ulle~inVolume 65/9,Sept.1981, p. 1659. ANNEXESTOCOUNTER-MEMO OF THE UNITSTATES 411

AppendixAto Anne6

U.S.BUKEA LFMI~ESAYD THEU.S.GEOIWICAIS. URVEI.".PRINCISF A
RF.SOLRCE/RESC CLVESIFICATIFORMIVERAIS". EOLOCICASURVEY
CIRCULA8R31,1976

[Norreproduced]

AppeodiB to Aone6

DOLTONC, UUSON T AL."ESTIMAT ESUNDISCOVERR EDCOVERABLB
CONVENTIONA RESOURCO EFOILANDCAS IN THU.S.",GEOLOGICASURVEY
CIRCUUR860,1981 Annex 7

COMMEK TNSPARAGRAP1H 79-196OF THECANADIA MNEMORIAL

A. THENINETEENTH CENTURY

179. The central position of Georges Bank in the Nova Scotia
fishery is the product of a long evolutionaryprocess.Canada's presencc
opresent levelof importanceafter World War II. ccnturyand attained its

1. Comment: Canada had no fishery on Georges Bank in the 19th
century, and has offered no evidence to prove otherwise. Perhaps the best
evidence that there was no Canadian fishery on Georges Bank in the 19th
century is the writings of Canada's most eminent authority in this field,
Harold A. Innis. His work, The Cod Fisheries: A History of an
International Economy, has been relied upon by both Canada and the

- United States in their Memorials, and has been made available to the
Court in its entirety'.It is an exhaustive study of the fisheries of the
- Northwest Atlantic prior to 1936. Innis makes no mention whatsoever of
any Canadian fishery on Georges Bank.

2.Canadian fishing on Georges Bank in the 19th century was at most
isolated and insignificant. lnsofas the United States is aware, the only
evidence of any Canadian vessel fishing on Georges Bank in the 19th
century is the statement contained in the reports of the Halifax Commis-
sion in 1878 that one Canadian fishing vessel had fished there. That
incident is noted in the United States Memoria'.

'H. Innis, ïhCod FisheriesA Hisroryof an InternationalEconorny,1940.See
UnitedStatesMemorial,para. 65,and Annex 13, Vol11;and Canadian Memo-
rial, Annexes,Vo1,1,p. 182.Canadasubmitted thefull text ofthis bookto the
Court in itsdepositof materialson 27September1982,punuant to Article5q2)
ofthe Rulesof Court.
'United States Memorial,para.2, n.I121 ANNEXES TO COUNTER-MEMORW OF THE UNITED STATES 413

180. The extent of the early Canadian fishery is incapable of
exact mcasurement.There area numberof factors that rule out any pre-
cision in the reconstructionof the early characier of the fishery - the
natural reticenceof skippers onthe locationof their bestfishing grounds.
the absenceof the mandatorv rewriine reauirements and elaborate
burcaucraciesthat exi,t id=" IO mo;lit~r ihc in'dustr).and the hazardr to

which local archive\ are ineviiably exporcd.Thc c\,idcnccisolicn skctchy
until the systematiccollection of statistics onthe location and quantities
of catcheswasfirst begunin recentyears;but within theselimitations, at
least some of the broad historical patterns can still be discernedwith
reasonableclarity

3. Comment: Fishery statistics have beenkept in Canada since Confed-

eration '. This paragraph wnstitutes an admission that there is no direct
evidence that a Canadian fishery existed on Georges Bank in the 19th

century.

The New Englanders probably appeared first onGeorges
181.
Bank in the 1830s,though it is not clear ta what extent these initial
efforts involved theeastern sectors of the Bank. Canadiansalso fre-
quented GeorgesBank in the nineteenth century. In 1867. the year of
Confederation.a Report on the Fisheriesof Nova Scotia by Thomas F.
Knight indicated that "The most westerlybank ta which Our fishermen
repair is St. George'sBank", a "favourite resort" of United Statesfisher-
menas well becauseof its large extent4'.At about the sametime, on 19

February 1868.a report from the Department of Marine and Fisheries
office in Halifax to the Minister of Marine and Fisheriesin Ottawa gave
a generaloverviewof the stateof the Nova Scotia fisheries.Alter review-
ing the state of the river fisheries. the report went on to indicate that
Nova Scotiaoccupied "the first placeamongthe Provincesof the Domin-
ion in theextentandvalueof the SeaFisheries",anddescribedthe banks
of Nova Scotia within 5 to 20 nautical milesof +e coast. It then added:

"Besides these there are othersat a greater distance from the coast.
amongwhich the mostimportant areSt. George's,La Have.Sable,Sam-
bro, and.St. PierreBanksu."

o Thomas F. Knighi:Report on theFishrriein Nova ScotioHalifax.A.Grant.1867.
Gcorzc'sBank. anaoocllaiionhata~Lxarcdonh~omcmofthecarly chartSsslAnnsxes,

U ttonaurablrP.M~tchclMl. inirtcrMarincandorFirhcim.Oitaua.19Fcbr~aiyfa1868.
.rnrd<nt vhrNOV~'Wtti Drmrtrn~n~ofFirhciia.PublicAichivaof Nma ScutiaR. G
15.Vol.26,No.14647 ..7.S- Anncxu. Vol.II~nncr 2.

'In 1951,Canadarcportedto lCNAF ils catches in Subarea4datingto 1869and

ils catchesoff Ncwfoundland dating to1804. It reportednocatchesin Subarea5.
See Part 4. "Statisticsof Landingsof Groundfishfrom theConvcnlionAra", pp.
35-68,ICNAF, SecondAnnualReport, 1951-52,at Anncx 16,Vo1.V.414 GULFOF MAINE i31

4. Comment: As shown in the United States Memorial, at paragraphs
68 through 72 and in its supporting materials, UnitedStates fishermen
from New England were the first to fish on Georges Bank. Moreover,as

shownin Part 1,Chapter IV, Section 3, of the United States Counter-Me-
morial, those fishermen regularly fished on the northeastern portion of
Georges Bank.

5. Canada attempts to provethe existenceof a 19thcentury Canadian
fishery on Georges Bank by references to the Knight report and tothe
Johnston letter, which include Georges Bankin a list of the fishing banks
of the Northwest Atlantic. Those reports, however,do not indicate that
Georges Bank was fished by Canadian fishingvessels.

6. Canada has includedthe first three pagesof the Knight report in the
Annexes to its Memorial, at Volume II, Anncx 1, and has quoted from
page three of the report. The entire 28-page report and its acwmpanying

tables and appendix, however, provide a wmplete description of the
fisheriesof Nova Scotia, and make no further mentionof Georges Bank '.
The only conclusionthat can be drawn is that there was no established
Canadian fishery on Georges Bank during the period. The remark from
the Knight report that Canada has cited is evidenceof nothing morethan
the possibility that there were incidental occasions when a Canadian

vesse1fished on Georges Bank in the 19th century, or that Canadian
fishermen occasionally sailed as crew members aboard United States
vesselssailing from New England ports.

7. The secondpieceof evidencerelied upon by Canada is a letter from
one Mr. Johnston, Department of Marine and Fisheries, Halifax, to the
Minister in Ottawa '.This is even more attenuated and lesswnvincing as
evidence of a Canadian fishery on Georges Bank than is the Knight
report, upon which the letter would seem to have been based. The letter
givesnoindicationthat Canadian fishingvesselswent to Georges Bank. In

fact, the letter reasonably may be interpreted as an admission that
Canadian fishermen did no1fish on Georges Bank. In quoting from this
letter, Canada has omitted a key sentence:

"These fisheries are pursued along the whole Coastline of the
Province,on the nearestbanks.and to a great extent in the Gulf
of St. Lawrence '."

'Canada submitted the fulltext of this reportto thc Court in its depositof
matcrialson 27 Scptcmber 1982.
For th tcxtoftheIcttcr,seetheCanadianMcmorial.Annexes,Vol. 2, Annex 2.
It shouldbenotedthat the tcxtofthelettcrappcaringin Vol.2,Annex 2,andas

submittedto the Courtin Canada'sdepositof matcrialson 27 Scptemher 1982,
omits 5pages.
'Ibid.,page6 [Emphasisaddcd.] 141 ANNEXESIO COUNTER-MEMORIALOF GE UNmD STATES 415

After a discussion of these nearest banks-"banks extending along the

Nova Swtia coastW-the letter lists the offshore banks of the Northwest
Atlantic, including Georges Bank. The letter therefore is nothing more
than an indication that Nova Scotia officials were aware that Georges
Bank was a fishing bank of the Northwest Atlantic.

182. The southwestern lïshing grounds of Nova Scotia, which
include Western. La Have. Browns.and Georgesbanks, look on a grow-
ing importance for Canadian fishermen in the last quarter of the nine-
teenth century. as the southern mackerelfishery and the fresh fishery
(centred largely on haddockand so called to distinguish it from ihe salt
cod fishery) became lucrative pursuits. The proximity of these fishing
grounds to the ports of southwest Nova Scotia was an important factor.
The Pubnicos,Yarmouth and Lockeport. forinstance. are between90 to
104nautical milesfrom the northeasternpart of GeorgesBank.The rela-
tive proximity of southwest Nova Scotia to the major markets in the
United States was also a factor. and the two nineteenth-centurypriods
of free trade in fish producis between Canada and the United States
(1854-1866 and 1871-1885)provided a major stimulusto the develop-
ment in Canada of a distinct offshore fleetfor the southwesternbanks4'.
Nova Scotians gradually developeda pattern of fishingthat involvedno1
so muchexclusiverelianceon a singlearea, but a systematic rangingover
a sequericeof banks - Georges, Browns.La Have and others - in an
effort to capitalize on the opportunitiesas they arose from seasonto sea-
son.Thesegroundswereof major importancein the diversificationof the
Nova Scotia fishing industryin the late nineteenth century into products
otherthan salt cod.

" The ReciprccityTreaof 1854and the Trcaty of Washingof 1871prwidcdfor
Canadianaaas tothcUnitcdStata market.

8. Comment: This paragraph implies that Canadian fishing vessels
must have fished on Georges Bank, for the following reasons: some Nova
Scotia ports are within 100 nautical miles of Georges Bank; there were

periods of free trade in the 19th century; and, the Canadian fishing
industry began to developan offshore fleet. The Canadian offshorefleet in
the 19th century, as today, was based primarily in Lunenburg. The fleet
was small. It fished the banks of the Scotian Shelf and, on occasion, the

Grand Banks. Canadian vessels did not fish regularly on Georges Bank.
Since fish were plentiful on the Scotian Shelf, there was no reason for the
fleet to range far from its home ports. The fact that certain Nova Scotia
ports are within 100 nautical miles of Georges Bank certainly is not proof

that vessels from those ports fished on the Bank.. Furthermore, United
Statestrade policies did not affect where Canadian fishermen fished.416 GULFOF MAINE 151

B. 1900 To 1945
183. During the first quarter of the twentieth century. fleets of
schoonersand steam trawlers fromthe southwestern portsof NovaScotia
were engaged in the year-round exploitationof several major groundfish
species onthe same sequence of fishing banks, includingGeorges. The
growth of the fresh fish market in Bostonand New York during these
yéarshelped to stimulate the expansionof Canadian activity on Georges
Bank.The southwestern banks met nearly al1the requirementsof a com-
plete fishingeconomy.The range of species theyoffered over the fishing
year. beginning with haddockin the fall and winter, halibut in the late
winter and spring. andcd and mackerel in spring and summer, madeit
possiblefor the Canadian fleet, subject to the constraints of supply and
Canada, (smoked haddock). and New York and Boston (haddock and), central
halibut). Vessclsfrom soulhwcstNovaScolia carrying lobsiers toBoston
lookgroundfishon GcorgcsBankon their return \,o)ages.

9. Comment: Canada offers no evidence to support the assertion that
there was a Canadian fishery on Georges Bank in the years 1900through
1945.Indeed, this assertion is contradicted by information made available
to ICNAF by Canada. This information concerned Canada's fishing
activitiesprior to the entry into force of that Convention, and is reported
in ICNAF's Second Annual Report ' and its Statistical Bulletin for

1952 '.The Bulletin presents "a descriptive summary of fishing ... in the
Northwest Atlantic. It includes figures on landings and where possible
tables relatingto fishing effort data'".The 1952 Statistical Bulletinand
Second Annual Report were prepared on the basis of information
provided by the member States of ICNAF, including Canada. The
Department of Fisheries in Ottawa; the Atlantic Biological Station in St.
Andrews, New Brunswick; and the Newfoundland Fisheries Research
Station, St. John's, Newfoundland, al1 contributed to the statistical
information forming the basis of the Bulletin and the Second Annual
Report '.Neither of these documents makes any reference to a Canadian

fisbery on Georges Bank or in Subarea 5.

184. Digby on the Fundy Coastof Nova Scotia was one major
trade that wasaimedai bothcentral Canadian and American markets.Inock
1914,the editor of theCanadion Fishermon described Digby'sexploita-
tionof the southwestern banksin the followingterms:

"Digby's fishing skippersare celcbrated for the big stocks in the
fresh fishing and their 95 ton schooners.small enough for winter

'ICNAF SecondAnnualReporr. supra para. 3, n. 3.
' ICNAF Slarisrical Bullerin[hcreinafterICNAF Srar. Bu1l.b Vol. 2.1952,at
UnitedStatcs Mcmorial,Annex46, Vol.III.
' ICNAFStat. Bull., Vol.2. 1952.UnitedStatesMemorial.Annex46. Vol. 111p.
8.
' ICNAFStal. Bull.. Vol. 2,1952,p.8; ICNAF, SecondAnnualReport, 1951-52.
p.36Annex16,Vo1.V. t61 ANNEXESTOCOUNTER-MEMORIALOFTHE mrn~ STATES 417

fishingcompared with the big craft out ol Bostonand Gloucester,
have made names for themselvesamong the trawlers fromGeorges
Io Western Bank'."

Again, in 1916,a reportcarried in both the Canadian Fisherman and the
Digby WeeklyCourier predicted:
"If the haddock have not already started, they will soon begin to
moveaway from the shoresand for the next landingsof any impor-
tance we shall likelyhave todepend on the off-shorevesse15fishing
on Brown's,Georges and WesternBanks"."

The same relianceon GeorgesBank wasindicatedin manycontemporary
newspapers and other documents. In 1922, a story in the Canadian
Fisherman acknowledgedthat the Maritime Fish Corporation - one of
the larges! firmsin the fisheryof the day - had chosenDigby foroneof
its Iwo branches because of its proximity to a number of prime fishing
grounds,includingGeorgesBank".

* No. 5.MaymW1914.p. 41,)SscAnncxu~V.ol.II.Annsr3.Canadion Firhrrmon, Vo1.

" "The AtlantiFishcricT.heTwelve ManthsT'allyDigby,N.S."Spccia lorrcrpond-
Vol..IIAnncr5.n FishcrmonVal.III. No. 2Fcbruary 1916.p. 53.) SccAnncrcr.
Roy M. Whynacht:"Maritim eirhCorporation(CanodianFisherman.Vol.IX.No.7.
July 1922p.142.SeeAnncxa. Vol. II.Anncx6.

10. Comment: Notes 46 through 48, proffered in support of the
contentions made in paragraph 184, do not indicate the existence of any

Canadian fishery on Georges Bank. Note 46 refers to an article in the Ca-
nadian Fisherman magazine entitled "Haddocking on Browns Bank". As
its title makes clear, the article discusses haddock fishing on Browns
Bank, not on Georges Bank. Notes 47 and 48 refer to articles from the
same magazine. These articles indicate only that Georges Bank was one of
a number of fishing banks known to Canadian writers.

11. Frederick William Wallace, the author of the article "Haddocking
on Browns Bank", was also for many years editor of the Canodian

Fisherman. He had first-hand experience in the offshore fishery ', and,
after becomine editor of the Canadian Fishermon in 1913, he maintained
close contacts with scientists, Canadian fishery managers, and the
Canadian fishing industry. In 1945. he wrote an article entitled "Thirty
Years Progress in Canada's Fish Industry 1914-1944", which was

'SeeFrederickWilliam Wallace,RovingFisherman:AnAutobiographyRecaunt-
ing PersonalExperiencesin the CommercialFishingFleetsand Fish Industryof
Canada and the UnitedStates 1911-1924. 1955.Cited at Canadian Memorial,
para. 187,n.53,and submittedtotheCourtbyCanada initsdepositofmaterials
on 27September1982.418 GULFOF MAINE FI

published in the Canadian Fisheries Manual'. The article, although
wmprehensive and specific in its description of Canadian fisheries,
nowhere mentionsthe existence of a Canadian fishery on Georges Bank.
Portions of the article that wncern Nova Scotia are submitted with this
Annex as AppendixA; especiallypertinent portionsare presented here:

"In the year 1914,Lunenburg had 119schoonersin the deep-sea
fisheries... Yarmouth wunty had 9 ... Digby county had 5,
Halifax county 4, Richmond county 3 and Shelburne 2. These
vessels... prosecuted the cod,haddock and halibut fisheries on
al1 the dfshore Banksfrom Brownsto Grand,and the inshore
grounds fromthe Bay of Fundy to Labrador.

In 1914, al1the schwners in the Lunenburg fleetwere engagedin
Salt fishing ... they operated on the various Banks to the
eastward-Sable Island, Quero, St. Peter's, Grand Bank, and
lesser grounds-splitting and salting the codfish caught, and

bringingtheir fares hometo be dried forexport. None of the fleet
did any fresh-fishing and the Lunenburg fishermen had no
interest in such hazardous and dangerous work '."

"While the Lunenburgers were employing their vessels in the
business of catching codfish and salting and drying them, the
little fleetofschoonersbelongingto Digby,Yarmouth, Shelburne
and the other ports, devoted their efforts, for the most part, to
making catches for the fresh fish markets. They caught haddock,
cod,hake, cusk,pollockand halibut onBrown's,LaHave,andthe
nearer Banks ...'".

"In 1914and the succeedingyears up to the 1930'sthere were
not manyCanadianvesselsengaged infresh-fishingoffshore4."
12. Wallace also describes the United States haddock fisheryoff the
Nova Scotia Coast:

OFrederickwilliamWallace,"ThirtyYearsProgressin Canada'sFishIndustry
1914-1944"i.n CanadianFuhenesManual,1945.AppendixA to this Annex
containspages 1 through3.6 through 14.73 through81,and 92through 93 of
this article.
'Wallace.p. 8.[Emphasisadded.]
'Wallace.p.9.[Emphasisadded.]

Wallace, p. 12. 181 ANNEXESTOCUUNTER-MEMONAL OFTHE UNiTED STATES 419

"Within easy steaming distances of Nova Scotia ports, prolific
haddock groundsare to be found but Nova Scotia fishermen do
not catch al1that are taken from the nearby banks. As a matter
of fact, American trawlers from New England ports jish the
grounds from Banquereau south and Westto Browns and take

from them as many pounds a/ haddock as do the Canadinn
fishermen, perhaps more. In the year 1935,for instance,Canadi-
an fishermen caught 36,842,600 Ibs.of haddock from adjacent
banks and inshore waters. Americanfishermen, operatingoutside
tenitonal limits off the Canadian wasts on the banks off Nova
Scotia, caught around 40,M)0,000Ibs. in the same year. In 1937,

New England trawlers caught over 146,000,000Ibs. of gmund
fish off Nova Scotia, or 38% of their total catch for that year.
With the exceptionof Georges Bankand the groundsoff the New
England coast, which are showing signs of depletion in recent
years, the most prolific sourcesof haddock are to be foundon the
banks paralleling the Atlantic coast of Nova Scotia, but without

trawlers or thesmaller 'draggers',Canadians cannotfully exploit
the haddock resources existing on their doorstep'."

13. Wallace also wrotethe followingabout the smoked-haddocktrade
referred to at paragraph 184of the Canadian Memorial:
"Out of New England ports, fresh fishing for haddock in the

winter months was inauguraied about the year 1850. The fish
were iced at sea and marketed in Portland, Gloucester and
Boston. NovaScotia. however,lacked the populatedareas such as
existedin the New England States, and it wasnot until 1876that
the wmpletion of the lnterwlonial Railway linked Nova Scotia
with Upper Canada. While transportaiion was available then,

many years passed before facilities forthe cariiage of fresh and
lightly-smoked fish were affordedat rates that wouldencourage
shipments fromthe Maritimes to Quebec, Montreal and Toronto. ,

Those cities provided a good market for haddock, but their
supplies of fresh, frozen or smoked sea fish from the Atlantic
ocean came from Portland, Maine, by sleigh transport in winter,
and only regularly followingthe completionof the Grand Trunk
Railway linking that port and Longueuil (acrossthe river from
Montreal) in 1853.. .. As a consequence,the haddock disposed

of in Montreal markets was imported /rom Maine and sold
under the nome of 'Portland Haddock: Importations of sea-fish
from Portland, Boston,New York and other American pointsto

'Wallace.pp.74-75. [Emphasiasdded.]420 GULFOF MAINE t91

Quebec. Montreal, Toronto, and central Canadian towns and
citieswntinued until wellalong in the 1900's.and it was not until
1907 that the Federal Department of Fisheries instituted a
scheme of financial aid to offset the difference in express
transportation rates on fresh and smokedfish betweenthe shorter
haul from Portland and Bostonand the longer haul from Halifax

and Saint John '."

"This financial assistance was carried out for a number of
years until it was no longer necessary. Improved services and

lowerrates instituted by the Intercolonial(nowCanadian Nation-
al), and Canadian Pacific railways-both of which came to
realize that fish transport was worthwhilecatering teresulted
in the almost complete elimination of imports from the U.S. of
the class of fish produced in the Maritimes, by the year 1915.
Today, no haddock, cod, halibut, salmon, or Canadian fish in
goodsupply,is imported into Canada from the United States. ...

"As a matter of record, however,it should be mentioned that

insofaras haddock isconcerned, manydistributors in Quehec and
Ontario persisted in selling the Maritime Province'sfish under
the name of 'Portland Haddock' long after such imports
ceased '."

14. Thus, Frederick William Wallace, editorof the CanadianFisher-
man magazine, the individual and publication citedby Canada through-
out the section in the Canadian Memorial entitled "Historical Evolution
of Canada's Presence in the Georges Bank Fishery '". describes a
Canadian offshore fishery much different from that portrayed in the
Canadian Memorial. At no point in his 122-pagearticle, "Thirty Years
Progressin Canada's Fish Industry 1914-1944".doeshe mentionCanadi-

an fishingon Georges Bank.To the contrary, he states that the Canadian
fishing industrywasunable to exploitthe resourceson its very "doorstep",
and that it was the United States that developedand suppliedto Canada
smokedhaddock-"Portland Haddock"-until wellinto the 20th century.

NovaScotia.ThThe vesselsof the Yarmouthand Pubnicofleetsfishedthe
sequence of southwestern banks, including GeorgeB s,rownsand La
Have.asa matter01-coursem, ovingfromonelocationto anotherto max-

'Wallace,pp.73-74. [Emphasis added.]
'Wallace, p.77.
'CanadianMemorial,paras.179-199.[Io] ANNEXESTO COUNTER-MEMORIALOF THEUNITEDSTATES 421

imize their catch. This pattern is reflected in a casual newspaper notice
from the Yarmouth Times in 1915,which reports on the annual dogfish
runs encounteredby a Yarmouth vessel,the Eddie James. on a ten-day
trip during-whichshe -

"... covered a gwd deal of ground but everywhere foundthe
' waters swarmingwith dogfish.She fishedfirston the southeastpart
of La Have Bank then had a try on George's.and again off Cape
Sable, finishingup on the Grand Manan Bank4'>".

It was a commonpractice in the Yarmouth and Pubnicofleets to fish on
Georges Bank whenthe annual dogfish "pestilence" was particularly bad
on thé other southwesternbanks.
'
''"Shippingand Fishing."(The Digby Werkly CourierFriday.25 June 1915.)Scc
Annexer.Vol.IIA.nncx4.

15. Comment: This single newspaper article from the Digby Weekly
Courier, if indeed it is accurate, would indicate that one Canadian vessel
fished, in passing, on Georges Bank-and even then only because fishing

was "particularly bad" in its accustomed fishing areas. The fact that
Canada is forced to rely upon such an isolated source demonstrates more
forcefully than wuld any source the United States might provide the

insignificance of Canada's enwunters with Georges Bank until the mid-
1950s.

186. Liberal trade policies in effect in the United States from
1913 to 1922mprovided a major stimulus to the export of fresh and
mildlycured fishfrom the ports of southwestNovaScotia. Together with

the vazen-Redfield pact (1918-1921),which alloweddirect landingsby
Canadian fishingvessels inUnited States ports, these liberal policiesled
to increasedCanadian useof Georges Bank. Althoughthe impositionof a
new tariff by the United States in 1922 curtailed Canadian access to
American markets. Nova Scotian fishing patterns on the southwestern
banks persisted, albeil at reduced levels and lower profits". The 1928
Report oJ the Royal Commission Investigaring the Fisheries O/ the
Maririme Provinces includedGeorges Bank in a list of what it described
as "the principal fishinggrounds of the North Atlantic, resorted to by
fishing-vesselsand steam trawlers fromthe Atlantic ports of Canada, and
byvesselsand steam trawlers fromother countries"".

" The Undenrd Tariffof 191rcmovd thcthrccquartcnofacentpei poundiariffon
Canadianfiih.
''Royal CornmirrionInveriigatingIhc FirhO/the Maritirnr Province,.Procrcdings.
Vol.II..nne.7.rinlcr.1927-1928Vol9. p.3432andVol.10.p. 3476.Scc Annexes.

Rand rhe Ma~dolcnIslandsOttawa.King'sPiinicr. 192p. 7. ScAnnexer.Vol.II.es
Anner8.

16. Comment: Notes 50, 51, and 52 do not indicate that canadian
fishing vessels fished Georges Bank. Liberal United States trade policies 422 GULF OF MAINE [Io-111

in the 1920sdid not mean that Canadian vessels fished off the United
States wast and landed their catch in the United States. The proceedings

of the Royal Commission,cited at note 51, are over 670 pages in length,
yet contain no information to support the proposition that Canadian
fishermen fished on Georges Bank. The quotation from the Royal
Commission Report contained in the last sentence of paragraph 186 is
only the now-familiar "list" of the fishing grounds of the Northwest
Atlantic, which of course includesGeorges Bank.

187. DuringperiodswhenUnitedStates marketswereprotected
bya tariff barrier.someNovaScotiaentrepreneursadopteda practiceof
. acquiringAmericanflag vesselsand continuing their registration in the
nameof an American ownerwhooften had little more than a nominal
portsand wereersubstantiallifeno1entirelycrewedby Canadianseamen,ia
and thus conducted themselvesin a manner largely indistinguishable
from Canadian registered vessels.The use of an American registry
becamein effect a"fiag of convenience"deviceallowingthe directmar-
ketingofthe catch in the UnitedStates. At times. therefore. thdefocro
Canadianiieetsignificantlyexceededthe dejure Canadianfieet.though
the differencin size cannotnowbe preciselydetermined.so many years
afterthe eventsinquestion".

" FrcdcricWilliam Wallace:RovingFishrrrnan.An AurobiographyRccounringPersonal
Exptrienccr in rhr CornrntrciolFirhing Flrrrr and FirofCanada and rhr
101.rd Stores1911-1924. GardcnvQusbscCanadianFirhcrrnan.1955. pp. 12and

17. Comment: As a matter of law, the distinction betweena 'Uejure"
and a 'Uefacio" fleet iscertainly novel.As an issueof fact, however, only

vesselsbuilt in the United States, with a United States citizen as captain,
wuld be used in the manner indicated. The autobiography of Frederick
William Wallace,the editor of Canadian Fisherman magazine, which is
cited insupportof paragraph 187,is 512 pageslong. It mentions onlyfour
vesselsused in this manner: the Quicksfep. the g/ie M. Morrissey, the
Harvesier. and the Samuel R. Crane 'Thus, the statement in paragraph
187 that "the defacio Canadian fleet significantly exceededthe de jure
Canadian fleet" strains credibility.The autobiography makesno mention

of "defacio" Canadian vesselsfishingon Georges Bank.
18..For purposes of this case, the most interesting aspect of the
autobiographyof Frederick William Wallaceis that, throughout its entire
512-page length, itnever mentionsa Canadian fishery on Georges Bank.
The few passingreferences in the bwk to Gwrges Bank relate either to
the familiar list of the fishing banks of the Northwest Atlantic1 or to
fishermen'stales of unspecifiednationality that refer to Georges Bank '.
,

'Wallace,RovingFisherman, supra para. II, n. 11,pp12 and 101
'Wallace.Roving Fisherman p.. 135.
'Ibid p..198.[11-12] ANNEXES TO COUNl'ER-MEMORW OF THEUNITED STATES 423

Although Wallace does not refer to a Canadian fishery on Georges Bank,

he does recall the view of one Canadian as to where a fair boundary
between the United States and Canada might be located:

"With a horny hand outspread and the forefinger of the other
tracing the clauses of an imaginary treaty upon it, he declared
solemnly; 'What 1 propose is this. Let the Americans agree to

quit fishing' north of Browns .. .Lm.

188. The 1920sand 1930swereapparently markedby adecline in

groundfish activity by Canadian schooners and trawlers on Georges
Bank, though schooner-and-dory fishermen from Canada continued to
operate on the Bank thiough these years. The reasonsfor this decline
included the cancellation of the Hazen-Redfield pact in 1921 and the
imposition of the prohibitive Fordney Tariff of 1922.At the samelime,
Canadian government policy itself sought to restrict the offshore steani
trawler component of the Canadian industry. Regulations flowing from
the recommendationsof the 1928 Royal Commission on the Maritime
Fisheries(which had concludedthat the large catchesof trawlers tended
to glu1 fish markets and thus to depressthe pricespaid to inshore fisher-

men) had a severeimpact on the offshore fleet. Canadian trawlers were
subjected to prohibitive licence feesY.Largely as a result of this legisla-
tion, the numberof trawlers in Atlantic Canadadeclinedprogressively.
Y Srtom Trawlrr OrdeP.C .196.30 Octobcr1929SccAoncxcs.Vol. II. Anncr 9.

19. Comment: This paragraph seeksto explain the decline of a fishery

that never existed.

189. The contraction of world marketsduring the Great Depres-
sion affected United States as well as Canadian entrepreneurs.and the
1930ssaw a general declineboth in the supply of groundfish andin fish-
ing activity on GeorgesBank. During this period. more of Canada'soff-

shorefishermen turned their attention to the swordfish fishery. which had
beenconductedon GeorgesBank by Nova Scotian vesselsfrom the early
yearsof the presentcentury. In the 1930sit becamean important indus-
try in which Canadian fishermenwere the leading producers". It comple-
mented the groundfish fishery, as theseIwo activities were often pursued
seasonallyby thesamevessels.Evenafter the outbreak of World War II,
the swordfish fishery on Georges Bank continued: ihus, for example, in
1942the LucilleM of Yarmouth. with 1.6metric tons of swordfish in its
hold. wassunk on GeorgesBank by a s~bmarine'~.Some of the pioneers

of the Canadian offshore scallop fishery in the pst-war period were out-
fitted for swordfish as well, and the latter fishery may in a sensebe
regarded asa precursorof the presentscallop industry.

''S N Tibbo.L R Day andW F Doucet Theswurd/irh (XnphiCiod,u<L J IlIi/r-
hBoardof CanadaBullciNorr130.1961p.20h-nt Allanrlr Otiaua. Firhcrts RaeJrch

" Wrsck Report.File:EastCoastLucilieM. 26 July 1942.Rccardrof Ihc Dcpaofrnent
Tranrporl. PublicArchivcsolCan;ida.RG 12.Vol.887.SceAnncxcs.Vol. II. Anner 10.

'Wallace, RovingFmhermm. pp.24-25. 424 GULFOF MAINE 1131

20. Comment:United States catches on Georges Bank in the 1930s
@ remained substantial. Indeed, as shownat Figure 9 and at Table B of the
United States Counter-Memorial, United States catch levels inthe 1930s
were higherthan werethose in the 1970s.

21. The report of the Fisheries Research Board of Canada, cited in
note 55, is offered in support of the proposition that swordfish was an
important Canadian fishery. The report does'not support, however, the
preceding sentence in paragraph 189, which States, without supporting

evidence, that Nova Scotia vessels conducted a swordfish fishery on
Georges Bank"from the early years of the present century". The earliest
date of Canadian fishing forswordfishon GeorgesBank mentioned inthis
report is 1958 '.Frederick William Wallace, editor of the Canadian
Fisherman magazine, referred to the Canadian swordfish fisheryin his
article "Thirty Years Progress inCanada's Fish Industry 1914-1944". as

follows:
Twordfishing as a commercialpropositionapparentlystarted
with New England mackerel fishermen who diswvered them

chasing the mackerel, and they fitted themselves out with
harpoon gear to take them. Thebusiness of catchingswordfish
forfoodpurposes was establishedbyAmericanfishermenas long
agoas 1840. The early catches werecut up and salted, but in the
course of time a demand arose in New England towns for the
fresh steaks and in 1874a millionpounds werethus marketed. In

the passage of time, the demand increased and American fisher-
men wuld not catch sufficient to supplyit.
Whileswordfishwerefamiliarly knownto NovaScotiafisher-

men,they were notregardedas a commercialpropositionuntil
about 1909, at which time Nova Scotians realized the possibili-
ties of catching and disposing of them in the Boston market.
Vesselswerefitted outfor thepursuitandharpooningqfthefish
as they came in on the AtlanticCoast of the province and the
catch taken by local fishermen in 1909amounted to 146,611Ibs

with a marketed value of $13,695. Thefish were dressed and
shippedin iceto the Bostondealers '."
--
'S. N. Tibbo,L.R. Day,ana W. F. Doucet,Theswordfish(XiphiasGladiusL.).
Its life-historyandeconomic importanicnethe northwesrAtlantic,Fisheries
ResearchBoardof Canada,BulletinNo. 130,1961, p. 11.Cited at Canadian
Mcmorialp, ara.189,n55,and submittetothe CourtbyCanada initsdepositof
materialson27 September1982.
'Wallace,"ThirtyYean Rogressin Canada'sFishinglndustry1914-1944" UprB
para.II, n.12,p. 92[.Emphaadded.]426 GULF OF MAINE il71

ment prepared by the New England Fishery ManagementCouncil in
March 1981.therehad beena "virtualabandonment"ofeastern Georges
Bankbythe UnitedStatesscallop fleet,and"that areahad becomea tra-
ditionalCanadianscallopground"".

" Nonh West AtlanticSa Scallops."Bosian.New EnglandManagsmcniCouncilin Con-ir
rulialionwith lhc Mid-Atlantic ManagementCounciland SouthAtlantic FisheryMan-
agement Counci. arch981.pp.A2.2-A2.4.

24. Comment: This paragraph should be compared withthe discussion
of the beginning of the Canadian scallop fishery contained in the
document cited in note 57, Scallops and the OffshoreFishery of the
Maritimes 'That document indicates that scalloping on Georges Bank
was pioneeredby the United States, and that Canadian scallopingthere

prior to 1954was only "sporadic":

"Canadian fishermen wereaware of the presence of sea scallops
onseveralof the offshore bankslongbefore 1945,sincethey often
caught them on line trawl or in otter trawls. Some of these
incidental catches of scallopswere probably landedand soldwith
fish catches, although we have no records of this. Canadian
fishermen also knew of the thriving UnitedStates &shore

scallopfishery whichbeganoff LongIsland in the early 19205
andspread to GeorgesBank inthe lote 19205 and early 1930's
(Premetzand Snow, 1953).Indeed, in the late 1930'sinterest was
expressed in developinga Canadian offshore fisheryand neces-
sary alterations in the fishery regulationswere proposedto permit

this. However,with the advent of World War II, interest was
diverted.

A great deal of the credit for revivinginterest and encouraging
the developmentof the Canadian offshore scallop fishery mustgo
the late Mr.T. R. Clouston, of General Sea Foods, Halifax. He
knew ofthe UnitedStates GeorgesBankfishery andpostulated
thai someof theNovaScotian bankshadpopulationsofscallops
which might support asimilar Conodianfishery. In 1945 he

chartered the M.V.Mary E. Kenney(under Captain John Beckof
Halifax) to explore for scallop beds on Nova Scotia banks,
particularly Middle Ground.

Captain Beckwas aquainted with offshore scallopingsince he
had sailed on Georges Bank scallopboats out of the port of New
Bedford,Massachusetts. In 1945he took the Mary E. Kenneyto

'N. Bourne,Scallops and the OffshoreFishery af the Maritimes.Fisheries
ResearchBoardofCanada,Bulletin No. 145 1.964.CitedatCanadianMemorial,

para.190,n. 57,andsubmittedtotheCourtbyCanada initsdepositofmaterials
on27 September1982.Il81 ANNEXESTO COUNTER-MEM OORTIEUNITED STATES 427

New Bedfordand had her rigged in the same manner as United
States offshorescallopers.On hisreturn trip to Halifax, he fished
9 days on Georges Bankand with hiscrewof 6 men landed8000

Ibofscallopmeats in Halifax. This wasrhefirst carchof scallops
landed in Canada by an offshore scalloper andit camefrom
Georbs Bank '."

------.----------------.--.-------.-------

"ln these early days most of the boats which scalloped onthe
offshore banks had only moderate success. This resulted from
several factorsGeorgesBank was udamiliar to them. Further-
more, they lacked modern navigationalaids and found it difficult
to maintain their position in the foggy summer weather on
Georges Bank. When good areas were found il was almost

impossibleto stayon them. Most ofthe Canadian boats werealso
underpowered for scallop dragging. As a result. catches in
general were onlymoderaieand thefishery continuedin a rather
sporadicfashionuntil 1953 '."

---------------------------.--------------

"As mentionedpreviously,Mr. T. R. Clouston was convinced the
Nova Scotian banks had populationsof scallopsas extensiveas
thosefound on GeorgesBank. Consequentlyin the initial stages
of the fishery the emphasis wasto try to scallop onthese banks
which werealready familiar to Canadian fishermen.

----------------------.-------------------

"In 1951,one offshoreboat fished Port au Port, Newfoundland,
where a small commercial fishery hasexisted since the early
1930's(Squires. 1962).Several boats of the offshore fleet fished

this area in 1954and 1955.In the latter year they landed 342,000
Ib of meats from here. Landings dropped to less than 10,000Ib
the following year. In 1955 this area was closed to scallop
draggers of 65 ft in overalllength.

As a result of the 1953exploratorysurveys,an intensive fishery
developed on St. Pierre Bank, which continued until 1958. In
1955, 337,000Ibof shucked meats were landedfrom this bank.

The southern Gulf of St. Lawrence, and in particular North-
umberland Strait, was also fished by the offshore fleet. Until
1950,occasionaltrips were made to this region but in 1955and

'Bourne,p. 21.[Emphasis added.]
'Bourne,p. 22.[Emphasis added.]428 GULF OF MAINE 1191

1956a fïurry of activity developedhere. In the latter year they
caught 163,000Ib of meats. In 1956.however,this area was also
closedto bats over 65 ft in overalllength and since that time no
fishing by offshore scallopers has taken place in the Gulf of St.

Lawrence.
While thefleei fished ihese various areas, they conrinuedto

make trips to Georges Bank and were gradually becoming
acquainted with this area. In 1956, they caught 700,000 Ib of
meats here in addition to fishingNorthumberland Strait, Port au
Port. and St. Pierre. It was obviousthat these other areas did not
have the extensive populations of scallops found on Georges
Bank. As populations of scallops were reduced in these other
areas the fleet turned more and more to Georges Bankwhichhad

had a wntinuous history ofgoodproduction. Since 1957almost
the entire effort of the Canadian offshore scallop fleet hasbeen
devoted to Georges Bank '."

25. Thus, the voyage of the Mary E. Kenney was not a "pioneer
voyage", but rather the "first catch of scallops" by a Canadian vesse1in
"unfamiliar" territory that was the site of the well-developed"thriving
United States offshore fishery"on Georges Bank.Rather than a "pioneer
voyage", the Canadian activity was more nearly a tentative incursion into
a fisherythat had been developedby others, whohad borneal1the risksof

doing so.
26. The beginning of the New England scallop fishery on Georges

Bank was described by Edward A. Ackerman of Harvard University, in
his workNew England'sFishingIndustry, publishedin 1941.He States:
The chief source of sea scallops, which produce a meat

resernbling the bay-scallop eye very closely, is now George's
Bank. Boats of much larger size than the small launches used in
the bay-scallop fishery put out for sea scallops;hencethe landings
tend to be wncentrated in larger ports. New Bedford, near the
grounds of the bay-scallop fishery once centered in Buzzard's
Bay, was near enough tomen experiencedin the industry to be a
point of departure for the George's Bank fisherywhen it was

developed in the 1920's. ''With some 800,000 pounds being
landed yearly, New Bedford isnow the chief sea-scallop port in
New England. Its position in relation to George's Bank is as
favorable as Boston's,and it had the additional advantage of an
early start. Boston, however, as the terminus of the Nova

'Bourne, p.25.[Emphasisadded.]1201 ANNEXES TO COUNTER-MEUORIALOFTHE UN^ STATES 429

Scotia boat line, is also a sea-scallop center of importance.
Almost as many sea scallops are shipped annually to Boston from
Digby and other Bay of Fundy ports as are landed at New
Bedford.
Rockland, Maine, with slightly less than half of New Bedford's

landings, is the only other sea-scalloping center. Maine once had
an extensive sea-scallop fishery inshore-espcially productive in
the vicinity of the Penobscot estuary, for which Rockland is the
logical port. With the decline of this fishery, it wasjust as natural
for hands experienced in scallop fishing to start from here for
George's as from New Bedford. It thus continues as a scalloping

port-but it is at a considerable disadvantage in shipping dis-
tance compared to New Bedford, and so it cannot hope to expand
its present trade greatly. Many more sea scallops are shipped to
New York and inland than are used in New England, so that
Rockland's disadvantage is more marked than if it had a New
England market '.

27. This report is evidence that the offshore scallop fishery on Georges
Bank was begun in the 1920s by United States fishermen from New
Bedford and Boston, Massachusetts, and from Rockland, Maine. As noted

at Figure 10 in Part 1, Chapter IV, Section 2, of the United States
Counter-Memorial, the Canadian scallop fishery on Georges Bank did not
take more than fivepr cent of the scallops from GeorgesBank until 1958.
As that Section notes, the United States fishing industry at no time
abandoned Georges Bank.

191. The growth of thc Canadian Georges Bank scallop fishery
wasaccompaniedby a diversificd interest in other fisherieson the Bank,
bath old and new. The Bank continued to be a primary locationof the
Canadian swordiïsh fisherywhich expanded and prospcred until 1971",
when Canada .and the United States look regulatory action against
swordiïsh exceeding speciiïedlcvelsof mercury content. Someof the ves-

59J.F. Caddy:A RtvieofSomt FocrorrRelevoal 10Monug~mcl o/Sword/irh Firhc(ies
in rhr Norrhwcrr Arloniir. Technical RNo.r633.Si.Andrews,New Brunswick.
ment Dirccioraic. 1976.pp.9210,i.Firhcricr and MarinRercarchand Dcvclop

'E.A. Ackerman.New EnglandS Fishing Indusfry. 1941,p 258. Fwtnote 67 in
the citcd textStates:
"The presenceof sea scallopson George'sBankwasknownswn after
trawlingcommencedthere, but commercial dredgingon a large scale
wasnotstarted untilafter 1925.In 1924,thefirst yearthat sea scallops
werc listedseparatelyinthe UnitedStates Bureauof FisheriesSlatistics,
138,000 pounds of them were landed in Massachusetts. By 1935
landingshad grown to 924,300poundsin Massachusettsand 743.200in

Maine."
Thus,in 1935,the MaineseascallopfisheryonGwrges Bankwasnearly aslarge
as tbat of Massachusetts.430 GULF OF MAINE (20-21)

sels whichhad beenemployedin that fisherythen turned to the develop-
ment of an offshorelobsterfisheryfocused onthe Corsair Canyonarea of
Georges Bankw. During the 1960s. Canadian vessels were active in
developinga herring fishery on Georges Bank. This fishery prospered
until the early 1970s6. henoverfishingbydistant-water fleetsled to the
virtual extinctionof the Georges Bank herring stock. There have also
been sporadic landings of mackerel. tuna and squid from the Bank by
Canadian fishermenduring the post~warperiod.

1972. Manuscripi Repart Sericr Na. 1236. St. Andrews. Ncw BrunsFishcricr
RcWrch Boardal Canada. 1973.p.2.

" 1969-72."(1J~A~.~crial No. 3114. R-rcDocumcni74/27. 1974.)dS<atirtic6.Area

28. Comment:There are no "old" Canadian fisheries on Georges Bank.

Nothing in the report by J.F. Caddy, cited in note 59, evidences a
traditional Canadian swordfish fishery on Georges Bank. It does note that
the Canadian longline swordfish industry began in 1962 '.That industry
relied principally on areas other than Georges Bank. In 1970, the year

before the United States and Canada took action to regulate trade in
swordfish that exceeded specified limits of mercury content, Canada took
only approxirnately 24.9 per cent of its east Coast swordfish catch from

Georges Bank '.One interesting aspect of the Caddy report is the author's
speculation about the existence of a separate Georges Bank swordfish
stock '.

29. The offshore lobster fishery to which somc displaced Canadian
swordfish fishermen turned in the early 1970s was developed by United

States fisherrnen in the late 1960s.Thisfact is noted on page 1of the evi-
dence supplied by Canada, an officia1document of the Fisheries Research
Board of Canada '.

'J. F. Caddy,A ReviewofSomeFactors Relevan tt Managemeno tfSwor<(lish
Fisheriesin the NorthwesrAtlanric, Technical Report No. 633S . t. Andrews,
Ncw Brunswick,Dept. of the Environment, Fisheries and Marine Service,
Rescarch andDcvelopmcntDirectorate,1976,p. 1.Citedat CanadianMemorial,
para. 191,n. 59, and submittedto the CourtbyCanadainitsdepositofmaterials

on 27September 1982.
ICNAF Stol. Bull., Vol. 20,1970.Tablc 1.Canada took 1.080mctric tonsof
swordfishin Division5Ze outof a total swordfishcatchof4.335mctrictons.

'Caddy, op.cil.,pp.3-4.
'D. G. Wildcr and D. E. Graham. Wshore LobsterTropFishing,July 10 ta
August10.1972. Manuscript ReportSericsNo. 1236,Fisheries RescarchBoard
of Canada,1973,p. 1.Cited at Canadian Memorial, para.191,n. 60, and sub-
mitted10the Court by Canada in its deposit ofmaterialson 27 September1982.[221 ANNEXES TO COUNl'ER-MEMOW OF THE UNITEDSTATES 431

30. Canada did not enter the herring fishery on Georges Bank until
1967. According to the ICNAF Statistical Bulletin, Canada's herring
catch exceeded 10,000 metric tons in only three years (1967, 1971, and

1973) before the stock collapsed '. Canada recognizes that overfishing
brought about the "virtual extinction" of the Georges Bank herring stock.

192. Apart fromscallops,the mostimportant Canadian fishery on
Georges Bank in recent years has been forgroundfish. The growing
importance of the Bank to the Nova Scotia groundfish industry forms
part of a broader developmentmarking a majorchange in the character
of theCanadian Atlantic iishery. Until the 1930s.NovaScotia fishermen
operated extensivelyin offshoreareas, mainly with dory schooners.The
inshore fishery. howevcr.wasalso important. and itwas preciselyfor the
promotion and protection of this labour-intensive activitythat measures
were imposed betweenthe wars to curtail the early expansionof the off-
shore trawler fleet. Eventsin the post-war periodbrought about a revital-
ization of the offshore fishery, and the growing demand for fish and
increased compeiiiion forthe resources lying off Canada's shores pro-
vided the impetus for thedevelopmeniof a modern offshore fleet. Thus
an offshore neet of modern vessels supplanted the dory schooners on
which Nova Scotia had traditionally relied. The trend towardsthe off-
by 1978the provincewashometo morethan one-haIf ofthe Atlantic off-
shore fieet, which accounted for80 percentof the total provincialland-
ings.

31. Comment: Canada has entered the groundfish fishery on Georges

Bank in recent years. In the 20th century, Canada has always had
significant catches in Subareas 3 and 4. United States Counter-Memorial.
Thus, the impetus for the development of Nova Scotia's groundfish
industry did not come from Georges Bank. As shown by Annex 22, the
Canadian Georges Bank groundfish catch amounted to less than three per

cent of Canada's total groundfish catch off its Atlantic Coast in the years
1977 through 1981.

193. The growth of this modernoffshore fieet has been reflected
haddock landings roseouIo record levelsin 1966and signilicant quantities
of pollock.cusk. flounder andredfish werealso taken. However,ground-
iish catch levelson Georges Bank and indeed throughout the Northwest
Atlantic decreased alter 1966as a result of the activitiesof distant-water
fleets. This trend has only been reversed with the extension of coastal
State jurisdiction to 200 milesin 1977. .

'See ICNAF Stol. Bulls.1960.1977432 GULFOF MAINE 1231

32. Comment: This paragraph is not controversial. It may be recalled,
however, that, as shown by Table A of the United States Counter-

Memorial, Canadian catches on Georges Bank were comparable to those
of third States.

194. The Canadian eroundfish fisherv on Georaes Bank in the
post-uar periodhîs had iwoquitc di\tinct çoffiponents.ln additiun to the
large iranlers. increaung use has been madeof the Bankduring the sum-
mer monihs b, smaller vessels - in ~îrtisul3rthe "Cape Islandcrs" -
from the port; on the extreme southkestern Coastof Nova Scotia most
proximale to Georges Bank. This represents thecontinuation of a local
small boat fisherywhichcan bedated fromat least as early as the 1920s.

33. Comment: No evidence is submitted to support the proposition that
a Canadian small-boat fishery on Georges Bank dates from the 1920s.
Indeed, the article hy Frederick William Wallace, editor of the Canadian

Fisherman, descrihed in the comment to paragraph 184, would indicate
that no such small-boat fishery existed.

D. CANADIAN FISHERIES RESEARCH

195. Canada's participation in the Georges Bank fisheryis mani-
fested as well by its strong record ofscientific research.h of this
researcheffort has beenconcentrated in the fieldof fisheriesbiologyand
to a lesser degree in oceanography.and almost al1of it has been spon-
sored and fundedby the Government of Canada to provide a scientific
basis for the conservation and managementof the living resources of
Georges Bank. Research programshave ken characterized throughout
by spirit of international scientific coopcration, principally between
Canadian scientists andthose of the United States. but extendingas well
to their counterparts from other wuntries whose vesselsparticipated in
the fishery in the years kfore the 200-mile limif. Thus there has been
intensive collaborationover the years between Canadian and American
of Canada BiologicalStation at St. Andrews. New Brunswick.and thechBoard
Woods Hole Laboratory of the National Marine Fisheries Service in
Massachusetts.

34. Comment: The nature and level of the scientific research activities
of the United Statesand Canada are discussed at paragraphs 121 through

128 of the United States Memorial and at Chapter V, Annex 3, of this
Counter-Memorial, dealing with. United States and Canadian activities
under ICNAF. As the ICNAF record shows, Canada's scientific research
relating to Georges Bank is of recent vintage, is limited to the few species
exploited by Canada,and is comparable with the efforts of third States. In

comparison to the extensive United States research efforts, however,
Canada's research activity is unexceptional. 1241 ANNEXESTO COUFITER-MEMOW OFTHE UNITEDSTATES 433

196. Research vesselsowned or chartered by the Government of
Canada have made numerous scientific cruisesto the Georges Bank area
from the 1950son, complementedby visitsof Canadian research workers
on boardordinary commercial fishingvesselsto observetheir operations
and to collecttechnicalinformation. For entirely pragmatic reasonsthere
has been a degree of international specialization in these efforts, with
Canada generally taking the lead in research relatedto the scallopsand
large pelagic fishes of the Bank (especially swordfish and tuna). and
playing an only slightly less decisive role with respectto herring. In the
case of haddock,on the other hand, it has been the UnitedStates that has
carried out mostof the workat sea through its majorprogram at Woods
Hole. with Canadian scientists providing strong support in the equally
important work ofanalyzingand interpreting the raw data.

35. Comment:This paragraph constitutes an admission of the wsition
taken at paragraph 128of the United States Memorial that the research
undertaken by Canada has concerned only the few species exploited by
Canada, and has not been directed toward an understanding of the
.environment of the Georges Bank area as a whole.AppendixA toAooex7

[Not reproduced] ANNEXESTO CKJUNTER-MEhiORUOLFTHE UNmD STATES

Annex8

CHAPTER 1
COMMENT'SON THE APPENDIX TOTHE
CANADIANMEMORIAL

The Appendix tothe Canadian Memorial contains two listsof continen-
tal shelf or maritime boundary agreements. These lists are reproduced
below, with comments by the United States. There is also a third list,
included below, of boundaries in force that were not included in the
Appendixto the Canadian Memorial.

SECTION 1. Canada's List Number 1: Continental sbelf or maritime
boundary agreements tbat incorporate the equidistance method for1or

part of the boundary

1. Argentina/Umgusy, 19 November1973

Comment: For at least75 percent of its length, the boundaryfollowsei-
ther the thalweg of the Rio de la Plata or the perpendicular to a
hypothetical construction line reflectingthe general directionof the coast.

Depending upon the intended applicationof the treaty, the remaining
25 per cent of the boundary may also followthe perpendicular bisector.
See United States Memorial, paragraph 266 and Annex84, VolumeIV.

2. Australia/lndonesia (Arafura Ses and Pacifie Ocean),l8 May 1971

Comment'This agreement establishesparts of three boundaries.Eirst~is
the boundary in the Arafura Sea between the oppositecoasts of Australia
and lndonesia, which do not share a land boundary. This boundarywas
extended hy the Agreement of 9 October 1972. SeeCanada List II,No. 2.
The extension isnot an equidistant line.

Second isthe boundary in the Arafura Sea off the southern coast of the
Island of New Guinea (Irian).It was completed by the Agreement of 12
February 1973.SeeCanada List 1,No. 3.436 GULFOFMAINE DI

Third is the boundary in the Pacific Ocean off the northern coast of
New Guinea. It was extended by the Agreement of 17 December 1979.
See Canada List1,No. 26.
Upon its independence,Papua New Guinea succeeded tothe boundary

agreements with Indonesia.
3. Australia/lndonesia (Arafura Seah 2 December1973

Comment: This agreement completedthe boundary in the Arafura Sea
off the southern coastof West Irian and Papua New GuinSee Canada
List 1,No. 2.

4. Burma/Tbailand, 25 July 1980
Comment: None

5. Colombia/DominicanRepublic, 13 January 1978
Comment: The boundary is between opposite coastsof States that do

not share a land boundary.
6. Colombia/Haili, 17February 1978

Comment: The boundary is between opposite coasts of States that do
not share a land boundary. Approximately one-halfof the length of the
boundary iscloser to Jamaica than it is to either Colombia orHaiti.

7. Colombia/Panama (Caribbean Sea and Pacific Ocean), 20 November
1976
Comment: Two boundaries were negotiated. Inthe Caribbean Sea, over
one-half of the 538-nautical-mile boundary is not an equidistant line;

segmentsof parallels of latitude and meridians of longitude, as well as a
line alonga specificazimuth comprise the majority of the boundary. The
boundary in the Pacific Ocean is 447nautical miles long. Approximately
20 per cent of the boundary followsan equidistant line. Approximately60
percent of the boundary followsarallel of latitude roughlyperpendicu-
lar to the north-south orientation of the South American coasSee
United States Memorial, paragraph 265 and Annex 82, VolumeIV.

8. Costa Rica/Panama (Caribbean Sea and Pacifie Ocean), 2 February
1980
Comment: Two boundaries were negotiated. Inthe Caribbean Sea, the
boundary consistsof a 100-nautical-milesegment that is a perpendicular
to thegeneralnorthwest-southeasfd irth~tciost. The boundary

happens to coincide with an equidistant line for about one-third of its
length. In the Pacific Ocean, the boundary consistsof a 200-nautical-mile
segment that also is a perpendicular to the general directionof the coast.
If islands are disregarded, it is also equidistant from the mainland coasts
of the PartiSee United States Memorial,paragraph 266and Annex 88,
VolumeIV. ANNEXESTOCOUMER-MEMORLU OF THE UNITED STATES 437
131
9. Cuba/Mexico, 26July 1976

Comment: The boundary is between opposite coastsof States that do
not share a land boundary.

10. Denmark/Canada, 17Decemher1973

Comment: The boundary is between opposite coastsof Canada and
Greenland, which do not share a land boundary. Methods other than
equidistance wereused to delimit overone-third of the 1449-nautical-mile
boundary.

11. Denmark/Federal Republicof Germany(North Sen),9 June 1965

Comment: This agreement delimits only a small portion of the total
length of the Denmark-Federal Republic of Germany continental shelf
boundary. The remainder of the boundary, which wasnegotiated follow-
ing the decision in the North Sea Continental SheU cases, is not an
equidistant line.See Canada List II, No. 7.

12. DenmarkjFederal Republicof Germany(BalticSe4 9 June 1965
Comment: Most of this boundary isbetween the oppositewasts of the

Federal Republicof Germany and the Danish islandsof Aer6, Langeland,
and Lolland.
13. DenmarkjNorway (North Sen),8 December1965

Comment: The boundary is between opposite coasts of States that do
not share a land boundary.

14. Denmark/Norway (Faeroes),15June 1979

Comment:The boundary isbetween the oppositewasts of Denmark, in
respect of the Faroe Islands, and Norway. The States do not share a land
boundary.

15. Finland/Union of SovietSocialist Republics,20 May 1965
Comment:Most of the boundary ishetweenoppositecoasts. Mostof the

boundary iswithin 12,and al1of it is within 15nautical milesof the Par-
ties'coasts. The boundary is not equidistant in its entirety; a number of
the turning points are closerto the territory of oneor the other of the Par-
ties, in one instance by.much.assix-nautical miles.

16. Finland/Union of SovietSocialist Republics,extension,5 May 1967
Comment: The boundary is between opposite wasts. This is an
extensionof the boundary notedin Number 15,above.

17. Federal Repubiicof Germany/United Kingdom,25November1971

Comment: This is not an equidistant line between the Parties. On the
average, the boundary is approximately 20 nautical miles closer to the438 GULFOFMAINE 141

Britishcoastline than it is to that of the Federal Republicof Germany, al-
though it is equidistant betweenthe United Kingdomand the mainland of
the continent.

18. France/Australia (CoralSea and Indian Ocean),2 October 1980

Comment: Twoboundarieswereestablished.The boundaryin the Coral
Sea is between Australia and New Caledonia, which do not share a land
boundary. The boundary in the Indian Ocean is between the opposite
coasts of Heard and McDonald Islands (Australia)and Kerguelen Island
(France),whichdo not share a land boundary.The agreement entered into
forceon 9 January 1983.

19. Franee/Tonga, 11January 1980

Comment: The agreement is not knownto be in force.The boundary is
betweenthe opposite coasts of Tonga and of Wallis and Futuna, whichdo
not share a land boundary.

20. Haiti/Cuba, 27October 1977
Comment: The boundary is between oppositecoasts of States that do
not share a land boundary.

21. India/Indonesia, 8 August 1974

Comment: The boundary is between oppositecoasts of States that do
not share a land boundary. It is a simpliîiedequidistant line.

22. India/lndonesie, extension, 14January 1977
Comment: The boundary is between oppositecoasts of States that do

not share a land boundary. This is an extensionof the boundary noted in
Number 21 above.
23. India/Maldives, 2â December1976

Comment: The boundary is between oppositecoasts of States that do
not share a land boundary.

24. India/Sri Lanka (Bayof Bengal andIndian Ocean),23 Marcb 1976

Comment: The agreement established boundariesin the Bay of Bengal
and in-theGulf of Manaar. The boundariesare between oppositecoastsof
States that do not share a land boundary. Both boundaries are simpliîied
equidistantines.

25. India/Tbailand, 26June 1978
Comment: The boundary is between the oppositecoasts of States that

donot share a land boundary.Lessthan one-halfof the boundary isa sim-
plified equidistant line. The remainder of the boundary diverges froman
equidistant line;in someplaces,it isas much as 20 nautical milescloserto
one Party than to the other.Pl ANNEXESTO COUNTER-MEMORIAL OF THE UNITEDSTATES 439

26. Indonesia/Papua NewGuinea,17Deeember 1979

Comment:The boundary is an extensionof the boundary inthe Pacific
Ocean,off the northern coast of New Guinea(Irian),notedin Canada List
II, No. 2.

27. IranfBabrain, 17June 1971

Comment:The boundary is between oppositecoasts of States that do
not share a land boundary. Onlypart of the boundary is an equidistant
line. Approximately one-half of the length of the boundary is closer to
Iran than it is to Bahrain.

28. IranfOman, 25July 1974

Comment: The boundary is between oppositecoasts of States that do
not share a land boundary. Approximately 20 per cent of the boundary is
not an equidistant line.

29. Iran/Qatar, 20September 1969
Comment: The boundary is between opposite coasts of States that do

not share a land boundary. Although the agreement does not specify the
methodology,it appears that the equidistancemethcd may havebeen used
without givingeffect to islands.

30. Iran/United Arab Emirates, 18August 1974
Comment:The agreement is not knownto be inforce.The boundary is
between oppositecoastsof Statesthat do not share a land boundary.This

is not an quidistant line, and the agreement does not specify the
methodologythat was used. It is possible that the quidistance methcd
may have been used.without givingeffect to islands.

31. Italy/Greece, 24May 1977
Comment: The boundary is between oppositecoasts of States that do
not share a land boundary.The quidistant line wasadjusted in a number

ofplaccs;parts of the boundary are as much as six nautical milescloserto
one Party than to the other.
32. ItalyfSpain, 19February 1974

Comment: The boundary is between oppositecoasts of States that do
not share a land boundary.

33. Italy/Tunisia, 20August 1971

Comment: The boundary is between oppositecoasts of States that do
not share a land boundary. In the area of four Italian islands(Lampedusa,
Linosa, Lampione, and Pantelleria), the boundary deviates from an
quidistant line.440 GULFOF MAINE i61

34. Italy/Yugoslavia, 8 January 1968

Comment:The boundary isbetween oppositecoasts. Over25percent of
the boundary deviates from an equidistant line by treating islands as
specialcircumstances.

35. Japan/Republic of Korea, 30January 1974
Comment:The boundary in the Korea Strait is betweenoppositecoasts
of States tbat do not share a land boundary. The Parties did not extend

the boundary into the East China Sea; rather, they estahlished a joint
development zone there.
36. Malaysia/Indonesia (Malacca Strait and South China Sea, western
side),27October 1969

Comment: This agreement involvesthree boundaries. In the Malacca
Straits, where the wasts are opposite, the incomplete boundary is an
equidistant line. This boundary was later extended without using the

equidistance method.See Canada List II, No. 10.The second boundaryis
betweenthe oppositecoastsof the Parties in the western sideof the South
China Sea, off the east coast of West Malaysia. The third boundary, in
the eastern sideof the South China Sea, beginsat the terminus of the Par-
ties'land boundary on the north coast of Bornw. It is not an equidistant
line.See Canada List II, No. 11.

37. ~ala~siaf~hailand (Gulfof Thailand),24October 1979

Comment:The boundary is a modifiedequidistant line, givingno effect
to an island. It delimits only a part of the continental shelf. Rather than
continuing the boundary seaward, the Parties established a joint develop-
ment area.

38. Mauritius/France, 2 April 1980
Comment: The boundary is hetween the opposite coasts of Mauritius
and Réunion,which do not share a land boundary.

39. Netberlands/Federal RepublicofGermany, 1December 1964

Comment: This agreement delimits only a small portion of the total
length of the Federal Republic of Germany-Netherlands boundary. The
remainder of the boundary was negotiated followingthe decision in the
North Sea Continental SheUcases. See Canada List II, No. 14.

40. Netherlands/United Kingdom,6 October 1965

Comment: The boundary is between opposite coastsof States that do
not share a land boundary. It was arnended by the Protocol of 25
November 1971, following the North Sea Continental SheU cases and
subsequent boundary negotiations between the Netherlands and the
Federal Republicof Germany.171 ANNEXES TOCOUNIFR-MEMOW OF THEUNITEDSTATES 441
41. Nonvay/United Kingdom,10Marcb 1965

Comment: The boundary is between oppositecoasts of States that do
not share a land boundary.It is a simplifiedequidistant line.

42. Nonvay/United Kinsdom,Protocol, 22December1978

Comment: The boundary is between oppositecoasts of States that do
not share a land boundary. This is an extensionof the boundary noted in
Number 41, above.

43. Poland/German Democratic Republic,29October 1968

Comment: None

44. Poiand/U~on of SovietSocialist Republics,29August 1969
Comment: None

45. St. Lucia/France, 4 March 1981

Comment: The boundary is between opposite coasts of St. Lucia and
Martinique, which do not share a land boundary.

46. Saudi Arabia/Iran, 24October 1968

Comment; The boundary is between oppositecoasts of States that do
not share a land boundary. This boundary isnot equidistant in its entirety.
Islands have been treated as specialcircumstances.

47. Spain/France, 29January 1974

Comment: This is the boundary in the Bay of Biscay. It deviates
substantially from an equidistant line in order to take account of the
concavityof the coastline. United States Counter-Memorial,Part III,
Chapter III, Section 7, and Annex 10.

48. Sweden/GermanDemocratic Republic,22June 1978

Comment: The boundary is between oppositecoasts of States that do
not share a land boundary. The boundary is a simplifiedequidistant line.
49. Sweden/Nonvsy, 24July 1968

Comment: In the area of the continental shelf boundary, the States
have oppositecoasts.The equidistant line has beensimplified.It should be

noted that the territorial sea boundary betweenthe Parties, which wasthe
subject of theGrisbadurna case, is based upon a perpendicular to the
general direction of the CoaSee United States Memorial, paragraph
241 and note4 therein.

50. Tokelau/UNted States of America,2 December1980

Comment: The agreement is between the United States and New
Zealand. It is not in force.The boundary is betweenthe oppositecoastsof442 GULF OF MAINE [a]

American Samoa and Tokelau, which do not share a land boundary. The
boundary isa simplifiedequidistant line.

51. Trinidad and Tobago/Venezuela, 26Febniary 1942

Comment: The boundary is between opposite coasts of States that do
not share a land boundary. This is not an equidistant line; the boundary
represents a negotiated settlement. See State Practice in Maritime
Delimitation, Volume 1,tab 51, submitted to the Court by Canada in its
deposit of materials on 27 September 1982pursuant to Rule 50(2)of the
Rules of Court.

52. Turkey/Union of SovietSocialist Republics,23June 1978

Comment: In most of the area of the continental shelf boundary, the
States have oppositecoasts.

53. United KingdomJDenmark,3 March 1966
Commenc The boundary is between opposite wasts of States that do

not share a land boundary. The 1966 agreement was amended by the
Agreement of 25 November 1971,followingthe North Seo Continental
SheUcases and subsequent boundary negotiations betweenDenmark and
the Federal Republicof Germany.

54. United States of America/Cook Islands, 11June 1980
Comment:The agreement is not in force. The boundary is between the
opposite coastsof American Samoa and the Cook Islands, which do not

share a land boundary.
55. United States of America/Cuba, 16December1977

Comment: The agreement is not in force, although the Parties have
agreed, pending ratification, to apply the terms of the agreement provi-
sionally. The boundary is between opposite coastsof States that do not
share a land boundary. Approximately one-halfof the boundary is not an

equidistant line.
56. UnitedStates of America/Mexico (CaribbeanSea and Pacific Ocean),
5 April 1978

Comment: The agreement is not in force although the Parties have
agreed, pending ratification, to apply the terms of the agreement provi-
sionally.It delimits a boundarin the Pacific Ocean and two segmentsof
an incomplete boundaryin the Gulf of Mexico. In the central part of the

Gulf of Mexico,the coasts are opposite.
57. Venezuela/DominicanRepubüc,3 Marcb 1979

Commenr:This agreement delimits twoboundaries, one10the westand
one to the east of the Dominican Republic-Netherlands Antillesr9] ANNEXES70 CUUNTER-MEMORW OFTHE UNITEDSTATES 443

maritime boundary. The eastern boundary is doser to the Dominican
Republic than it is to Venezuela, although it is equidistant between the
Dominican Republicand the Netherlands Antilles. Both boundaries are

between oppositewasts of Statesthat do not share a land boundary.
58. Venezuela/Netherlands(AvesIsland/Saba), 30 March 1978

Comment:The boundary is between the oppositecoasts of Saba Island
and of Aves Island, which do not share a land boundary. The agreement

also establishesanother boundaryoff the mainland of Venezuela,whichis
uot an equidistant line.See Canada List II, No. 26.

59. Venezuela/United Sîates of Amenca, 28 March 1978
Comment:The boundary is between the oppositecoastsof Puerto Rico

and Venezuela, which do not share a land boundary. It is not an
equidistant line inls entirety. Approximately one-thirdof the boundary is
closerto the United States (Puerto Rico)than it is to Venezuela, although
that portion isequidistant betweenthe United States and the Netherlands
Antilles.

SECTION 2. Canada's List Number II: Continental sbelf or maritime
boundaryagreementsthat do not incorporate the equidistancemetbod.

1. AbuDhabilDubai, 18February 1968

Comment This agreement delimits the maritime boundary between
twoemirates of the United Arab Emirates. The boundary isperpendicular
to the general direction of the Coast.

2. Ausîralia/Indonesia, 9 Octnber 1972

Comment: The Agreement of 18 May 1971established a part of the
Parties' boundary in the Arafura Sea. See Canada List 1, No. 2. The
Agreement of 9 October 1972 added to that boundary two segments
totaling approximately 515 nautical miles. The course of the boundary
was influenced by the then-existing Australian hydrocarbon concessions

and the geomorphologyof the ocean flwr, particularly the Aru and Timor
Trencbes.
3. Austmlia/Papua NewCuinea, 18December1978

Comment: The agreement established separate continental shelf and
fishery boundaries, as wellas a "Protected Zone" subject tospecial rules

designed to protect the environment and traditional lifestyles. The
boundaries are betweenoppositewasts of Statestbat do not share a land
boundary. The agreement is not knownto be in force.444 GULFOF MAINE 1101

4. Chile/Peru, 18 August 1952

Comment;The boundary extends from the land boundaryterminus due
Westalong the parallel of latitude, roughly perpendicular tothe north-
south orientation of the South American coast. See United States
Memorial, paragraph 265 and Annex 79, Vol. IV.

5. Colombia/Costa Rica, 17Marcb 1977

Comment: The boundary is in the Caribbean Sea, between opposite
coasts of Statesthat do not share a land boundary. It followsa parallel of
latitude, then turns and followsa meridian of longitude.The agreement is
not knownto be in force.

6. Colombia/Ecusdor, 23 August 1975

Comment:The boundary extends from the land boundary terminusdue
Westalong the parallel of latitude, roughly perpendicular tothe north-
south orientation of the South American coast in that area. See United
States Memorial, paragraph 265 and Annex 81, Volume IV.

7. Federal Republicof Germany/Denmark, 28 January 1971

Comment;This isan extensionof the boundary noted in Canada List 1,
No. 12. It deviatessubstantially from the equidistant line in order to take
account of the concavity of the coastline. See United States Counter-
Memorial, Part III, Chapter III, Section 7.

8. Finland/Sweden,29 Septernber1972
Comment:Most of the boundary is between oppositecoasts.

9. France/Brazil, 30 January 1981

Comment:The boundary is perpendicularto the general directionof the
coastsof Brazil and of French Guiana. The agreement is not knownto be
in force.

10. Malaysia/Indonesia (Malacca Strait, extension),21 December 1971

Comment: The boundary is between the opposite coasts of Malaysia
and the Indonesian islandof Sumatra. It is an extensionof the boundary
noted in Canada List 1,No. 36.

Il. Malaysia/Indonesia (South ChinaSea, eastern side),27 October 1969
Comment: This is one of three boundaries established hy the same
agreement. See Canada List 1,No. 36. The boundary extends northward

from the common land boundaryon Borneo.
12.'~alaysia/~bailand (AndamanSea), 21 December1971

Comment:The boundary at al1points iscloserto Thailand.[l11 ANNEXESTOCOUNTER-MEMORIAL OF THE UNITESTATe-3 445

13. Mauritania/Morocco, 14April 1976
Comment: The boundary extends from the land boundary terminus due

Westalong a parallel of latitude. The agreement is not known to be in
force.
14. Netberlands/Federal Republicof Germany,January 1971

Comment: This is an extensionof the boundary noted in Canada List 1,
no. 39. It deviates substantially from the equidistant line in order to take
account of the concavity in the coastliSee United States Counter-
Memorial, Part III, Chapter III, Section 7.

15. Norway/Iceland, 22October 1981

Comment: The boundary is between the oppositecoasts of Iceland and
Jan Mayen, which do not share a land boundary. The boundary allows
Iceland'sexclusiveeconomiczoneto extend a fu200 nautical miles.
16. Norway/Union of SovietSocialist Republics,29 November1957

Comment: None.

17. Peru/Ecuador, 18August 1952
Comment: The boundary extends from the land boundaryterminus due
west along the parallel of latitude, roughly perpendicular to the north-

south orientation of the South American coast in that aSee.United
States Memorial, paragraph265 and Annex 80,Volume IV.
18. Portugal/Spain (northand south), 12February 1976

Comment: The agreement delimits two boundaries. Both lines are
perpendicularto the generaldirectionof the coast. The northern boundary
extends due west along a parallel of latitude. The southern boundary
extends due south along a meridian of longitude. The agreement is not
knownto be inforce.

19. Qatar/Abu Dhabi, 20 Marcb 1969

Comment: None.
20. Saudi Arabia/Bahrain, 22 February 1958

Comment: The boundary is between opposite coasts of States that do
not share a land boundary. The agreement also establishesan area under
Saudi Arabian jurisdiction in which Saudi Arabia agrees to share with
Bahrain revenues derived fromthe exploitationof petroleum resources.

21. SenegalIThe Gambia(nortb and south),4 June 1975
Comment: Both the northern and southern boundaries followparallels
of latitude due westSee United States Memorial, paragraph 266 and

Annex 85,VolumeIV.446 GULF OFMAINE fi21

22. Senegal/Guinea Bissau, 26April 1960
Comment:The boundary is a straight line that divides approximately
the convergence of two wastal fronts. See United States Memorial,

paragraph 266 and Annex 86, VolumeIV. The boundary was established
hy an agreement between France and Portugal.

23. Tbailand/Indonesia, 17December1971
Comment: The boundary is between oppositecoasts of States that do
not share a land boundary.

24. Umguay/Brazii, 11May 1970

Comment:The boundary is a perpendicular to the general direction of
the Coast.See United States Memorial, paragraph 266 and Annex 83,
Volume IV.

25. Venezuela/France, 17July 1980

Comment: The agreement establishes two separate boundaries, one
between the islands of Aves (Venezuela)and Guadaloupe and the other
betweenAvesand Martinique. Both boundariesare on the same meridian
of longitude.The agreement entered into forceon 28 January 1983.

26. Venezuela/Netberlands(Amba, Curacao, Bonaire),30March 1978

Comment: The boundary is between the opposite wasts of Venezuela
and of Aruba, Bonaire,and Curacao, whichdo not share a land boundary.
The boundary deviates significantly from an equidistant line. See United
States Memorial, Figure 22.

SECTION 3. List Number 3: Boundaries in force not included in the
Appendixto the Canadien Memorial

Comment:The maritime boundary betweenthe Emirates of Dubai and
Sharjah, as well as the land boundary, was submitted to arbitration

pursuant to the Agreement of 30 November 1976.The Court of Arbitra-
tion used a modifiedequidistance method, accordingonly a territorial sea
enclaveto the island of Abu Musa, to determine the maritime boundary.

2. France-United Kingdom
Comment:This boundary was determined by the Court of Arbitration

pursuant to the Arbitration Agreement between the French Republicand
the United Kingdom. The Court of Arbitration treated the Channel
Islands as special circumstances and accorded half-effect to the Scilly
Islands. See United States Memorial, Figure 23. (13-141 ANNEXESTO COUNTER-MEMOWOF THEUNITEDSTATES 447

3. Kenya-Tanzania
Comment: The boundary wasestablished by agreement on9 July 1976.
Most of the boundary followsa parallel of latitudeSee United States

Memorial, paragraph 266 and Annex 87, VolumeIV.
4.Libya-Tunisia

Comment: The method of delimitation was specified by the Court in
theTunisia/Libyacase pursuant to the Special Agreement of the Parties.
The boundary deviates markedly from the equidistant lineSee United

@ States Counter-Memorial. Figure40.
5. Sharjah-Umm al Qaywain

Comment: In 1963, the United Kingdom proposed that the maritime
boundaries betweenthe Emirates of the Trucial States consist of a series

of azimuths, best describedas perpendiculars to the general direction of
the coast. Some of the these boundaries were formally acceptedby the
Emirates involved, including the Abu Dhabi-Dubai boundary noted in
Canada List II, No. 1.The Emirates of Sharjah and Umm al Qaywain
also agreed formallyto accept the British proposal.Their boundary is the
azimuth of312 degrees,drawn from the land boundary terminus.

6. United States-Union of SovietSocialist Republies

Comment: The maritime boundary is the boundary establishedby the
1867 Convention on the Cession of Alaska. See M. Feldman and D.
Colson, "The Maritime Boundaries of the United States", inAmerican
Journal ~f InternationalLaw. Vol. 75,No. 4, 1981, pp. 729, 751-753;
cited in the Canadian Memorial at paragrap361, note76. CHAPTER II

CONTINENTALSHELF AND MARITIME BOUNDARIES

The Appendix to the Canadian Memorial listed continental shelf or

maritime boundary agreements, rather than listing boundaries. Agree-
ments and boundariesdo not correspondprecisely,however,becausesome
boundaries are delimited by more than one agreement. This Chapter lists
boundaries rather than agreements. The lists are: (1)boundaries that do
notincorporate equidistantline;(2)boundanesthatincorporateonlyinpart
equidistantlines;and (3)boundariesthat arewhollyequidistantlinesorsim-
plifiedequidistantlines.ïhe listsalso identifyboundanes under agreements
in forceand boundariesunder agreementsnotin force.

SECTION 1. Continental shelf or maritime boundaries that do not
incorporate equidistantlines

A. BOUNDARIES UNDER AGREEMENTS IN FORCE

1. Brazil-Uruguay
2. Chile-Peru
3. Colombia-Ecuador
4. Costa Rica-Panama (PacificOcean)
5. Dominican Republic-Venezuela(eastern boundary) '

6. Dubai-Abu Dhabi (United Arab Emirates)
7. Ecuador-Peru
8. Federal Republicof Germany-United Kingdom '
9. Finland-Sweden
10. France (Guadeloupe)-Venezuela
11. France (MartiniquetVenezuela
12. The Gambia-Senegal (north)
13. The Gambia-Senegal (south)
14. Guinea-Bissau-Senegal

15. Iceland-Norway (Jan Mayen)
16. Indonesia-Malaysia(South China Sea, eastern side)

'The boundaryis notequidistantbetweenthe Parties,but is betweenoneof the
PartiesandanotherStateorStates. ANNEXESTO M)U~R-MUIORW OFME UN~D STATES 449
1161
17. Indonesia-Thailand(Andaman Sea)
18.Kenya-Tanzania

19. Libya-Tunisia'
20. Malaysia-Thailand (Andagmn Sea)
21. Norway-Unionof Soviet Socialist Republics
22. Qatar-United Arah Emirates (Abu Dhabi)
23. Sharjah-Umm al Qaywain (UnitedArah Emirates)
24. Trinidad & Tobago-Venezuela
25. Union of Soviet SocialistRevublics-UnitedStates of America

B. BOUNDARIES UNDER AGREEMENTS THAT HAVE
NOT ENTERED INTO FORCE

1. Australia-Papua New Guinea

2. Brazil-France (French Guiana)
3.Colombia-CostaRica (Caribbean Sea)
4. Iran-United Arab Emirates (Dubai)
5. Mauritania-Morocco
6. Portugal-Spain (north)
7. Portugal-Spain (south)

SECTION 2. Continentalshelfor maritimeboundariesthat incorporate
equidistantlinesonly in part

A. BOUNDARIES IN FORCE

1.Argentina-Uruguay
2. Australia-lndonesia
3. Bahrain-Iran
4. Bahrain-Saudi Arabia
5. Canada-Denmark
6. Colombia-Panama (Carihbean Sea)
7. Colombia-Panama (PacificOcean)

8. Costa Rica-Panama (Caribhean Sea)
9. Denmark-Federal Republic of Germany (North Sea)
10. Dubai-Sharjah (United Arah Emirates)'
11. Federal Republicof Germany-The Netherlands
12. Finland-Union of Soviet Socialist Republics
13. France-Spain (Bayof Biscay)
14. France-United Kingdom '

'The boundarywas no1determined by agreement,but by a decisionof the
International CoutfJustice.
'Theboundarywas notdeterminedbyagreement,but by arbitration.450 GULF OF MAINE

15. Greece-Italy
16. Indonesia-Malaysia (MalaccaStrait)
17. India-Thailand

18. Iran-Oman
19. Iran-Qatar
20. Iran-Saudi Arabia
21. Italy-Tunisia
22. Italy-Yugoslavia
23. Japan-Republic of Korea
24. Malaysia-Thailand (Gulf of Thailand)
25. Netherland Antilles(Aruba, Bonaire,Curaco)-Venezuela

26. United States of America-Venezuela'

B. BOUNDARIES UNDER AGREEMENTS THAT HAVE
NOT ENTERED INTO FORCE

1. Cuba-United States of America

SECTION 3.Continentalshelf or maritime boundariestbat are
whollyequidistant Linesor simplifiedequidistant lines

A. BOUNDARIES IN FORCE

1. Australia-France (New Caledonia)
2. Australia (Heard and McDonald Islands)-France (Kerguelen
Island)
3. Burma-Thailand

4. Colombia-DominicanRepublic
5. Colombia-Haiti
6. Cuba-Haiti
7. Cuba-Mexico
8. Denmark-Federal Republicof Germany (BalticSea)
9. Denmark-Norway (North Sea)
10. Denmark (Faroe Islands)-Norway
11. Denmark-United Kingdom

12. Dominican Republic-Venezuela (western boundary)
13. France (Reunion)-Mauritius
14. France (Martinique)-St. Lucia
15. German Democratic Republic-Poland

'The boundary in part is notequidistantbetweenthc Parties,but bctweenone
PartyandanothcrStatc.Il81 ANNEXESTOCOUNTER-MEMONN OF THEUNITEDSTATES 451

16. German Democratic Republic-Sweden
17. India-Indonesia
18. India-Maldives
19. India-Sri Lanka (Bayof Bengal)
20. India-Sri Lanka (Gulf of Manaar)
21. Indonesia-Malaysia (East ChinaSea, western side)

22. Indonesia-Papua New Guinea (Arafura Sea)
23. Indonesia-Papua New Guinea (PacificOcean)
24. Italy-Spain
25. Netherlands-United Kingdom
26. Netherlands Antilles (Saba Island)-Venezuela(AvesIsland)
27. Norway-Sweden
28. Norway-United Kingdom
29. Poland-Unionof Soviet Socialist Republics
30. Turkey-Union of Soviet Socialist Republics

B. BOUNDARIES UNDER AGREEMENTS THAT HAVE
NOT ENTERED INTO FORCE

1. Cook Islands-United States
2. France (Wallis and Futuna)-Tonga
3. Mexico-United States of America (PacificOcean)
4. Mexico-UnitedStates of America (Gulf of Mexico)
5. New Zealand (Toke1au)-UnitedStates of America 1. The Canadian Memorial seeks to use offshore boundary delimita-

tions between individualstates within the United States pursuant to the
Coastal Energy Impact Program (CEIP)as evidencethat the equidistance
method is useful as a means of achieving anequitable delimitation '.This
suggestion is not justified by the facts. Only a minority of the CEIP
boundaries are equidistant lines. Most of these boundary delimitations
used methods other than equidistance, particularly parallels of latitude
and meridiansof longitude. Where variations of the equidistance metbod
were used, the CEIP boundaries deviate from the equidistant line

whenevernecessaryto achievean equitable result.
2. The CEIP provides financial assistance to coastal states of the
United States off whose shores continental shelf resources are being
developed.The statute providesthat the fundsare allocatedon the basisof

"adjacency", andthat adjacency is determined on the basisof boundaries
drawn seaward fromthe coastal zone '.Thus, the CEIP boundariesdo not
delimit jurisdiction, but merely serveto allocate funds.
3. A total of 14CEIP boundaries have been established. Nine of these

boundaries weredetermined by interstate agreement or hy the extension
of existingterritorial sea boundaries. The remaining fiveboundaries were
determined by the Assistant Administrator for Coastal Zone Manage-
ment of the National Oceanic and Atmospheric Administration of the
Department of Commerce, and in accordance with the principles of law
applicable to lateral boundary delimitations. In these cases, the states
presented writtenand oral arguments to a panel of expert consultants,and
the Assistant Administrator hased his decisionsupon the panel's report '.

These were the fivecases discussedby Canada:
"In the five boundaries dealt with to date (New York/Rhode
Island, New Jersey/New York; New Jersey/Delaware, Dela-

-
'CanadianMemorial,para.361,n. 77.
16U.S.C. sec.1456a(bX4XB).
'J. 1.Charney,"The Delimitationof Lateral Scaward BoundarieB s etween
Statesin a DomcsticContext", AmericanJournalqfInlernaliona1 Law, Vol.75,
No.1,1981.pp.28.30.CitedintheCanadianMemorial.para.361,n. 7.t21 ' ANNEXES IO COUNTER-MEMORIALOFTHE LnIWEDSTATES 453

ware/Maryland, and Mississippi/Louisiana), considerable prom-
inence has been given to the method of equidistance either by
means of a strict equidistance line or an equidistance line
modified to take account of the special circumstances '."
4. These five CEIP boundaries are not evidence that the equidistance

method is generally equitable. On the contrary, in three of the five cases
mentioned by Canada (New Jersey-Delaware, Delaware-Maryland, and
Mississippi-Louisiana), it was determined that a concavity in the coastline
constituted a special circumstance that rendered an equidistant line
inequitable. These determinations were strongly influenced by the North
Sea Conrinental Shelfcases, the Anglo-French Arbifraiion. and the use of
proportionality as a test of the equitableness of the proposed solutions.
These areas are similar to the Gulf of Maine area, in that the concavity of
the coastline would cause an equidistant line to cut off individual states
from their adjacent offshore areas. Ultimately, the boundaries were
drawn through the use of a "half-effects" method. Two lines were drawn
in each case, an equidistant line and a line that was "extremely favorable
to the state that was adversely affected by the special circumstances and
other relevant facts '".The boundary as adopted bisected the two lines. As

a result, each of these boundaries departs significantly from strict
equidistance. The three boundaries are depicted at Figures 1and 2 '.
5. The equidistance method has been used in the delimitation of only
one of the nine CEIP boundaries determined by interstate agreements or
by the extension of existing territorial sea boundaries, none of which was

discussed in the Canadian Memorial. Five of the boundaries were drawn
due east or due West along parailels of latitude (California-Oregon4,
Oregon-Washington ',Florida-Georgia 6, North Carolina-Virginia ',and

' CanadianMemorial,para. 361,n. 77.
' Charney.op.cit..p. 64.
' Louisiana andMississippisubsequentlyagreed injudicial proccedingsnot to
usea CEIP boundary,but instead todividethe CEIP funds for theareasofftheir
Coast in a ratio of 70:30. Store of Mississippi v. Secrelary of Commerce,
Stipulation ofSettlement,26February 1982.
'The California-OregonCEIP boundaryis an extensionof the state boundary
throughthe territorialea.35thCong.,Sess.II, ch. 33,11Stat. 383(1859).
'TheOregon-Washington CEIP boundaryisanextensionofthestate boundary
through the territorialea. The territoriasea boundarywas establishedhy an
interstate compact approved by Congress. Pub. L. No.85-575. 72 Stat. 455
(1958).
The Florida-Gmrgia scaward boundarfyoral1purposeswasestablishedbyan
intcrstatc compact approvedhy Congress.Pub. L. No. 91-498,84 Stat. 1094
(1970).
'Thc North Carolina-Virginia seaward boundarfy or al1purposeswas estab
lishedby an interstate compactapprovedby Congress. Pub.L:No. 92-588,86
Stat. 1298(1972).454 GUW OF MAINE [3-1

Virginia-Maryland '), and two were drawn due south along meridians of

longitude (Mississippi-Alabama ', and Alabama-Florida '). One other
CEIP boundary was drawn as the extension of the land boundary (South
Carolina-North Carolina '). Only the Texas-Louisiana boundary 'uses the
equidistance method.

6. Thus, the CEIP boundaries do not suggest that the equidistance
method is generally equitable. On the contrary, tbey demonstrate that
other methods often have been used, or that the equidistance method has

been modified, to achieve equitable results.

'The Virginia-MarylandCEIP boundaryis an extensionof the lastegmentof
the state boundary through the territorial. The territorial sca boundary was
establishedby an interstate compact approvedby Congress. Pub..No. 92-565,
86Stat. 1179(1972).

'The Mississippi-AlabamaCEIP boundary was established by an agreement
betweenthe States.
'The Alabama-FloridaCEIP boundary is an extensionof the state boundary
through the territorial sea. The territorial sea boundarywas cstablished by an
intcrstate compact approved Congress.Pub. L. No. 83-351.68 Stat. 77(1954).

'The North Carolina-South Carolina seaward boundaryfor al1purposcswas
establishedyan interstatccompact approvedbyCongress. Pub. L.No.97-59,95
Stat. 988(1981).
'The Texas-LouisianaCEIP boundary is an extensionof the state boundary
through thc territorial sea. The territorial sea boundary was determined by
litigationto be a medianlinSrareo. fexas v.Srare dbuisian~. 426 U.S. 465
(1975). [1-41 ANNEXESTO COUNTER-MEMORIALOFTHE UNITED STATES 455

Annex IO

THEDELIMITAT OIONHECONTINENT SHALLBFOUNOA N THEBAY OFBISCAY

1. France and Spain used a combination of methods to delimit their
continental shelf boundary in the Bay of Bis'.This Annex analyzes
the methodsof delimitation by examiningin turn the simplifiedcoastlines

used bythe Parties andthe locationsof Points Q, R, and T on the agreed
@ boundary. Figure 1.

2. For purposes of the delimitation, France and Spain developed
simplified coastlines to represent their respective coastal '.Thehs
simplifiedSpanish coastline connectsthe terminus of the land boundary
(PointM) with Cabo Ortegal. The simplified French coastlinehas two
segments:from the terminus of the land boundary to Pointede la Negade

and from Pointede la Negade to Pointe du Raz.
3. PointQ is the endpoint of the boundary through the territorial seas

and contiguouszones.From Points Q to Q,,, the line wasdrawn according
to the equidistance method, using the actual, and not the simplified,
coastlines.

4. PointR was derived from the simplified coastlines.Pointe de la'
Negade, the juncture of the two segments of the simplified French
coastline, is roughly the point at which the French Coast changes
direction. PointX on the simplifiedSpanish coastlineis the same distance

, from the land boundary terminus as is Pointe de la Negade, Le., 129
nautical miles(239kilometers).Point R is the midpointbetween(a)the in-
tersection (PointQ,,)of the equidistant lineand a straight linefrom Point
X to Pointe de la Negade, and (b) the point (PointP) on the equidistant
line that is the same distance from the land boundary terminus as are

'In addition to delimihe continental shelf boundary, France and Spain
estahlisheda "joint developzt ne"todealwithdepositswithinthezonethat
lieacrossthc boundaryandthat are exploitablbothsidesSee Convention

Betweenthe Govcrnment ofthe FrenchRepuhlicand theGavernment ofthc
SpanishStatcontheDelimitatioftheContinentalShelvesoftheTwoStatesin
the Bayof Biscay,9 January 1974,Articles II-IV aAnnexII. Thejoint
developmentzone isillustratedLimirs in the SeaNo. 83, UnitedStates
Mcmorial,Anncx 78,Vol.IV.
'See Limirs in the SNo.83,supra.p.5.456 GULF OFMAINE [q

Point X and Pointe de la Negade, i.e., 129nautical miles. Point R is also
equidistant from the actual coastlines of France and Spain. In this
manner, the Parties related the locationof Point R, and thus the extent of
the equidistant segmentof the boundary, to the change in direction of the

coast '.
5. The boundary between Point Rand Point T apparently was basedon
a proportionality calculation involving the remaining lengths of the

simplifiedcoastlines,Le.,from PointX to Cabo Ortegal and from Pointe
.de la Negade to Pointe du Raz. The simplified Spanish coastline from
Point X to Cabo Ortegal is 138.3 nautical miles (256.1kilometers) in
length. The simplified French coastline fromPointe de la Negade to
Pointe du Raz is 213.2 nautical miles (394.8kilometers) in length. The
ratio of these lengths is 1:1.54.

6. Point T dividesthe closingline betweenCabo Ortegal and Pointedu
Raz in almost precisely the same ratio. Point T is 114.9 nautical miles
(212.8 kilometers) from Cab Ortegal, and 173.6 nautical miles (321.5
kilometers) fromPointe du Raz. The ratio of these figures is 1:l.SI.

7. The location of Point T on the closing line is also such that the
boundaryfromPoint R to Point T dividesthe remainingarea (thearea en-
closedby lines connectingCab Ortegal to Pointe du Raz to Pointe de la

Negade to Point R to PointX to Cabo Ortegal)in approximatelythe same
proportion as those represented by these other ratios. The line allocates
13,561 square nautical miles (46,514square kilometers)of this area to
Spain and 22,109 square nautical miles (75,834 square kilometers) to
France, for a ratio of 1:1.'.

8. The course of the boundary from Point Rto Point T maybe related
not onlyto the proportionality calculations,but alsoto the geomorphology
of the area'. At Point T on the closing line,the boundary is roughly the
same distance from the 100-fathom-depth contours off the respective
coastsof the Parties. Figure 2.

'A linefromPointX to PointR to Pointedela Negadeenclosesanarcaofap
proximately 9,657square nauticalmiles.The boundaryallocates5,303square
nauticalmilesofthis areatoSpain and4,354square nauticl ilesofthis area
France.

'These calculationsexcludethe areas landwardof the simplified coastlines.
Notethat theuseofthesimplifiedcoastlineforpurposcsof proportionalyould
have beendisadvantageoutso France,whosecoastlinewaswmparativelylarger
whcnmeasured along the sinuositiesr(tioof 1:1.59. heuseof thesimplified
wastlineswas balanced,however,bytheexclusionoftheareaslandwardofthesc
lines.becausemoreof the continentalshelfof Francethan that of Spainwas
cxcludedfromtheproportionalitcalculation.
'See J. L. de Azdrraga, Revisra espaiiola de derechoinrernacionaVol.
XXVIII, pp. 131-138 .eprinledofAppendix A.i61 ANNEXESTOCOUNTER-MEMORLU OFTHE UNmD STATES 457

9. The delimitation in the Bay of Biscay illustrates the principle that
any method or combination of methods may be used that produce an
equitahle solution'.The choice of the specific techniquesused in the Bay
of Biscay delimitation depends to a great extent upon such incidental

factors as the distance of the point of change in the direction of the coast
(Pointe de la Negade) from the land boundary terminus, the extent to
whichthe simplified coastlines conformto the actual coast, and the extent
of the areas excluded from the proportionality calculation by the use of
simplified coastlines.Therefore, although the combination of methods
produced an equitable result in the Bay of Biscay,the precise techniques
used in the Bay of Biscayare not necessarily transferable to the Gulf of
Maine area, or to other boundary areas wherethe coastline configurations
are not identical to those of the Bay of Biscay.Of greater significanceis

the result of the delimitation.The Parties presumahlyadoptedthe specific
methods and techniques that were usedhecause the Parties regarded the
result as equitable inthose geographiccircumstances.Thus, the result of
the Bay of Biscay delimitation yields insight into the nature of an
equitahle result in the similar circumstances of the Gulf of Maine area.

'See UnitedStatesMernorial,para. 262. AppendixA to Anne10

ESPANOU DEDERECHO INTERNACIONALVOL.XXVIII PP.131:138
(Rus TRANSLATION)

[Norreproduced] VolumeV

DOCUMENTA ARYNEXES

AnnexIl

INTERNATIOHYADROGRAP HIGANIZATILIN,TF OCUNSANDSEAS,
SPECIPLIBLlCATl0N283RDEDITIO1,53P. 14, PORT~OONCHART
INSERT24.-Gull of SI. Lawrence

On the Northeurt.

A line running from Cape Bauld (North point of Kirpon Island,
51°40' N, 55"25' \V) to the East extreme of Belle Isleand on to the
Northeast Ledge(5ZC'02N ', 55"15' W). Thence a line joining this ledgewith
the East extreme of Cape St. Charles (52"13' N) in Labrador.

On the Southeart.
A line from Cape Canso (45"20' N, 61" W) to Red Point (45"35' N,

60"45' W) in Cape Breton Island, through this Island to Cape Breton and
on to Pointe Blanche (46"45' N, 56"ll' W) in the Island of Sc.Pierre, and
thence to the Soutliwestpoint of hlorgan Island (46"Sl' N, 55"49'\Y').

On the Wert.
The rneridian of 64"30' W, but the whole of Anticosti Island is

included in the Gulf.

25.-Bay of Fundy.
On the ~orclhzuert.

A line running northwesterly from Cape Sr. Mary (44"05' N) Nova
Scotia,through MachiasSeal Island (67"06' \V) and on to Little RiverHead
(44"39' N) in the Stateof Maine.

26.-Gulf of Mexico.

On the Southedrt.
A line joining Cape Catoche Light(21"37' N, 87"04' W) with the

Light on Cape San Antonio in Cuba, through this island to the meridian of
83" W and to the Northward along this meridian tn the latitude of the South
point of the Dry Tortugas(24"35'N), dong this parallel Eastwardro Rebecca
Shoal(82"35'W) thence through theshoalsand FloridaKeysto the mainland
at eastern end of FloridaBay,al1the narrow watersbetweenthe Dry Tornigas
and the mainland king consideredto be within the Gulf.

27.-Caribbean Sea.

In the YucntunChannel.

The same limit as thar dexribed for the Gulf of hlexico (26)
On the Nwrh.

In the Windward Channel.
A line joining Caleta Point (74"15' \V) and Pearl Point (19'40'N)

in Haïti.
In theMnna Passage.

A line joining Cape Engannand the extreme of Agujereada (18"31' N,
67"08' W) in Puerto Rico. ANNEXESTOCUUNTER-MEMORIALOFTHEUNITEDSTATE5

Annex12

' FIGURE:61DEGREE STRUE I'ERPENDICULARTO GENERA DIRECTION OF
THECOAST1;57DEGREE STRUE PERPENDICUUTO THECANADIA 67 DEGREE
"TRENDLINE"

Annex13

@ FIGURE: NETESOF THEGENERA LIRECTION OFTHCOASTIN THGULFOF
MAINEAREA (54 DEGREES)

Annex14

INTERNATIONABOUNDAR COMMISSIO NNITESTATES-CANAS DPE,CIAI

REPORTNO.1,1956PP.10-14

Annex15

LEITEFROMSANTIAG TORRE SERN~RDE RE,GISTRAIR,ERNATIONCAOURI
OF JUSTICE, TODAVISR.ROBINSO AN.ENTOFTHEUNITEDSTATE SF

[Leiternoirepmducf; r aitachmteVII,Correspondence,481

LEITERFROMMR.DAVISR.ROBINSONAGENTOFTH ENITEDSTATEOFtiMERlc~
BEFORETHEINTERNATIONCOLURTOFJUSTICTO Mn.SANTIAW TORRES

[SeeVIICorrespondence, 491 Annex16
ICNAF,SECONA DNNUARL~PORT1,51-1952,PA4T

[Nor reproduced]

Annex17

[Norreproduced]

Annex18

[Nor reproduced]

Annex19

J. F.CADDANDE.1.LORD,"HIGHMCE OFSC4LLOP LANDINCONCEALS
DECLINIEOFFSHOR SEOCKS ",SHER!.FCANADA VOL2.3,ND.5,
MAY-JUN 1971,PP.3-7

J.FCADDY ",SOMREECOMMENDA ~ORCSONSERVAT OFONEORGEBSANK
SCALWS PTOCKSIC,NAFRES .oc.72/6, SERILO.268(B.G.7),
ANNUAMLEETIN -JUNE1972 ANNEXE TOCOUNnR-MEMORIO AFLTHEUNITESTATES 463

Annex20

UNITED STATES-CANAG DAORGEB SANKSCALLOCPATCHES 1,940-1981

[Nat reproduced]

G. B.GOODE, 7h.FISHERIEASD FISHERY INDUSTRIOFTHE UNITED STATES,
WASHINGTOD N.,C.,GOVERNMEF 'TINTINOFFICE,887,SECTIOIIIPP.74-75,
WITH MAP

[Nol reproduced]

Annex22

@ COMPARISO OFCANAI>IACNATCHtORTtlFNORTHEASTEP RNRTIOOVFGEORCES
BANK WITHTOTAL CANAUIANCATCH INTHE NORTHWEA STLA~TICFORTHE

G. R.GOODE ,)rF~SHERI AFD FISHERYI.VDUSTRIOFTHE UNITEDSTATU;
WASHIVGTOD N.,C..GOVERNYE~ PRIWINGOFFICE.1887,SECTIV, 1887P.38

[Nat reproduced] Annex24

R.MCFARLAN AD, ISTOOFNEW ENGUND FBHERIEN,EWYORK,
UNIVERSI TYPENNSYLVAP NIESS,YD.APPLETO ANDCO.,AGENTS1,11,
PP.144145,272-273

[Norreproduced] ANNEXESTOWUNTER-MEMORIALOF THE UNITEDSTATES

Annex 25

FISHIN VESSEU DOCUMEN TEDERTHE LWS OFTHE UNITE DTATES

Vesse1Nam Port of Operation Lenptb(0.a.inIL
1 Adam's Rib
Owl'sHead, Maine 60
2 Allyson& Theresa Portland,Mainc 72
3 Amy Michele Portsmouth, N.H. 65
4 Amy W. BoothbayHarbor, Mainc 68
5 Anna Lrna Port Clydc, Mainc 68
6 April Gale West Point & Portland, Maine 76
7 Araho Rockland, Maine 120
8 Atlantic Harvesfer New Harbor & Rockland, 105
Maine
9 Atlantic Mariner New Harbor & Rockland, 90
Mainc
10 Aviator Portland, Mainc 60
11 Bad Penny
Boothbay.Mainc 54
12 Big Dipper Portland,Mainc 72
13 Blue WaterIII Stonington, Mainc 56
14 CalvinL. Slinson Rockland, Mainc 135
15 Capfain Bligh Portland, Mainc 75
16 Celian B. Putnam Portland, Maine 147
17 Charlem Brmklin, Mainc 50
18 Creole Belle Portland,Mainc 70
19 Curlew Portland.Mainc, 95
20 Cynthia BoothbayHarbor, Maine 52
21 Dona Marie Portland, Maine 85
22 Donna Marie Joncsport, Maine 42
23 Ella& Josie Portland, Maine 74
24 Exolorer Portsmouth. N.H. 94
25 ~~plorer Portland,Mainc 96
26 Francis J. O'Hara Rockland. Maine 110
27 Freedom Rockland. Maine 120
28 Golden Dawn
Cundy's Harbor, Maine 68
29 Grande Duchess Portland, Maine 108
30 GuUKing IV Portland. Maine 75
31 Hannah & Ryan Rockland, Maine 86
32 High Chaparral Ncw Harbor, Mainc 87
33 Highland Pride Port Clyde, Maine 68
34 Independence Stonington, Mainc 50
35 Irene Alton Owl'sHcad, Mainc 57
36 Irene's Way BoothbayHarbor, Mainc 81466 GULFOF MAINE

37 J. Bradley O'Hara Rockland, Maine
38 Jack & Andy Portland. Mainc
39 Jamie Marie Matinicus 1s.& Spruce Head,

Maine
40 Jessico & Liso Portland, Maine
41 Jesse Milbridge, Mainc
42 John David Orrs Island, Maine
43 John Neptune BoothhayHarbor. Maine

44 Karhleen & Julie II Portland, Maine
45 Karherine Marie Portland, Maine
46 Kegan Dovid Drew Portland. Maine
47 Lody Clare Portsmouth, N.H.
48 Lorraine II Brooklin,Maine
49 Margoref F. Cundy's Harbor, Maine
50 Martha Ingraham Portland, Maine

51 Mary A. Kelly Portland, Maine
52 Mary Ann Bradford I Portland, Maine
53 Mory Ellen Cuddy'sHarbor. Maine
54 Mossachuserts Rockland, Maine
55 Michelle Jean II Portsmouth. N.H.
56 Ms. Ellen Portland, Maine

57 Miss Emily Southwest Harbor. Maine
58 Miss Kirsry Port Clyde. Maine
59 Miss Qualiry Portland. Maine
60 Miss Vicki Rockland, Maine
61 My Marie Scbasw Estates, Maine
62 Narragonseff Rockland.Maine
63 Northern Hommijer Tenant's Harbor, Maine

64 Northern Minor Southwest Harbor, Maine
65 Parricia Lee Tenant's Harbor. Maine
66 Porul Portsmouth, N.H.
67 Pioneer Portland, Maine
68 Pocahontas Rockland, Maine
69 Powhatan Harpswell & Portland. Maine
70 Princess
Harpswell & Portland. Maine
71 Ralller Portland. Maine
72 Ronger Rockland. Maine
73 Resolure Portland, Maine
74 Rush Rockland, Maine
75 Solly & Katherine Portsmouth. N.H.
76 Scorsmon Portsmouth. N.H.
77 Sea Bring
Bwthbay Harbor. Maine '
78 Seo FIea II Stonington, Maine
79 Seo Leion IV Portland. Maine
80 Seo Trek Portland, Maine
81 Shellmac Rockland, Maine
82 Shirley G. Jonwport. Mainc
83 Silver Lining Portland, Maine
84 Sirius
Port Clyde. Mainc
85 Stacie Vea Portsmouth,N.H. &
Stonington, Maine ANNEXESTOCOUNTER-MEMORWOFTHEUNITEDSTATES

86 Srarligh (June-DelightPortsmouth,N.H. 52
87 Surge Portland,Maine 137
88 Tara Lynn Portland,Maine 54

89 Teddy & Mary Portland,MaineBrGloucester,
Mass. 78
90 TeresaMarie Portland,Maine 80
91 TeresaMarie II Portland,Mainc 93
92 Tori T. Rockiand, Maine 76
93 Tripolina Portland,Maine 55
94 Virginia Dure Portland,Maine 85
95 Walter Alden Leeman Harpswell,Maine 76

96 WesternSea Rockiand, Maine 86
97 Yankee York HarborM. aine 56
98 Dawn Ellen BucksHarbor, Maine 38PERMITSFEXPWRATO WRORKINCLUDINGTNORTHEA SRTIONOF
GEORGE BANK: PDATOANNEX40TOTHEUNITEDTATES EMORIAL ANNEXES TO COUNTER-MEMO W OFTHE UNITED STATES

PERMlTS FOR EXPLORATORY WORK INCLUDISG SORTHEAST
PORTION OF GEORCFS BASK

hl. wort
APPI0.d P i Ar" Commnrd
06-29-67 North. Mid- 07.01-61
Atlnnlic
04-23-68 Nonh. Mid- 07-02.68
Atlantic
ISparkrr)
Granir
Mi.n.Lia
North. South, Ml2-68 09.0668 SliJmic
Mid.4tlnnri~ ISmdcr)
Nonh. Mid- 08-19.69 10-19.69 Gnnw
Allsclir Magnrti-
Nonh Ailinilc 04-25-70 WQ5.70 Scismic
(Air Gunl
Disimn IGroup North. Mid- M26-71 10-13-71 Scilmir
Shmi) Ailantic ,Air GU")

Dipiuin IGmun Gcona Bnnk 05-22.72 07.08.72 Slismic
svncy (Air Gun)
Dipian (for Norih. South. 02-20-74 12-07-74 Slirmiç
oci,y, Mid-Ailaniic (Air Gun)
Disicon ICroup North. Mid- 05.17-75 il-i7.7J Seismic
Surrrg) Atlantic (Air GU")
Mobil (for North. South. 06-19.75 09-01-76 Scirmir
Mohil) Mi&Mh"ii* (Air lhn)
GSI i gr ou^ Gcmipa Bani 08-IL75 12.01.75 Sci3mic
Svnlyl [Air GU")
~i~i-" (for Norih. Mid- 10-02.75 ll-20-7s Slirmiç
USGS) Allant,< (Ai, GU")

Tcum Ibv Gmrtn Bank 05-21-76 07-19-76 Air Guo
Tcria)
Ch~rronlbr North. Mid- (n-21-76 W-0676 ="mir
Dipimnl Adsn8c (AirGuo.
S~rkrr)
Dipimn (for Nonh Aihnib W-W-76 11-22-76 Scirmic
Pciiy-RiY) (Air Gunl
Eiion Ibr Gmrpn Bank 11-08-76 11.15-76 ScYmir
Euol Gravitg
Miilnslin
DipVon Iby Gmrpn Brnk 08-11.77 08.14.77 SeUmic
GulQ (Air Gun)
Dipison(for Gmrprs Brnk 08-15.77 08.26.77 Scismb

Mohil) (Air Gunl
USGS(byGe* North. Mid- 05.3-78 11.01-78 CDP SciJmic
Allrnlii
Scr"irr.1°C.
Gcophysical Norlh Atlantic 10-10-78 11.08-78 CDP Ssismis
Slrria, 1°C.
Ifor CS11
USGS lby 09Df-79 CDP Scirmic
Pnkla-Scimasl Gnri,y
Mlpnsia

Elim Ibr Nonh. Mid- 0601-79 07-27-79 CDP Scirmic
Tlldyncl *ili"ib
ExionIbr Nnsh. &th. 03-15-81 12-11-81 CDP Scirmic
Pwy-R~YI Mid-Allan$ic
GECQUSh Nonh. Souih. 05-17-81 07-15-81 Seirmic
1°C. Mid-Abntis Grrriiy
n'csirrn North Ailasic 05-15.81 0n.oins Sciimic
Gmphyriul Grnvlly
Mnlnciici Annex27

FiGuneARU SURJECTOCALL FORNOMINATIO NSUNITEDSTATESUTER
@ CONTINENTALSHELLEAS ALENIJ~IBE2,171UNE1975WlTH THBOUNDARY
PRoms~oBYTHE UNITESTATE SND THCANADIAL INE

@ FIGURE UNITFISTATELSAUENÏORCEML EITTO PROTECI THE ~BSTEK OF

TllE UNITFI>STCONTINFVTSALELÏ ITll BOUVDAR ROPOSEI)BYTHE

Annex28

PROCLAMATIONBYTHE PRESIDENTOF THE UNITED ESTABLISH IHG
EXCLUSIVECONOMI CONE10MARCH 1983

STATEMENTBYTHE PRESIDENTOF THE USTATERSEGARDIN GHE
PROCLAMAT IOHE EXCLUSIVEEONOM IONE ,0MARCH 1983

STATEMENTBYTHE PRESIDENTOF THE UNITED STATESREGARDlNG THE
THIRDUNITEDNATIONCSONFEREN CETHELAW OF THSE* ,JULY1982

[Not reproduced]

Aooex29

[Not reproduced] ANNEXESTOCOUNTER-MEMORIOFTHEUNITEDSTATES 471

Annex30

THEFEDERA RULE SFEVIDENCR E, 408.28U.S.C .,PENDIX

(197EOITION), 553-554

[Norepmduced]

[Norrepmduced]

E. Lum (ED.)~I,EINTERNATIO NECLUMTIO NF F~ONTIEDRISPUTES,
THAME AND THURSTON, LONDO1970PP.185-187

[Norrepmduced]

Annex33

G.SPERDLiTl,"PRESCRIZIONE,CONSUETUDINEE ACQUIESCENU IN DlRlrrO
INTERNAZIONALE",&VISTADrm INTERNIZIONA VOE,. LIV,1961,
PP3-15(PLUS WNSUTION)

[Norrepmduced] Non VERBALEFROYTHEDEPARTMENE TOTFERN NFFAIRSTOTHEYBASS OY
THEUNITESDTATEDS,ATE1IOCTOBE 1967,NDDEUVERE 2DOCTOBE 1967

NOTEFROMTHE DEPARTME OF TTATTO THEEMBAS SYCANADA,
DATED INOVEMB1 E967

NOTE FROMTHE DEPARTMENTOF STATETOTHE EMBASSYOFCANADA,
DATED29NOVEMBER1966

Department of State

Washington

The Secretary of State presents his complimentsto His Excellencythe
Ambassador of Canada and has the honor to enclose forthe information
of hisGovernmenta copyof Public Law 89-658.an Act to establish acon-
tiguous fishery zonebeyond the territorial sea of the United States. The
Act, which became effective October 14, 1966, established a contiguous

fishery zone of nine nautical miles within which the United States
exercises the same exclusive rights in respect to fisheries as in its
territorial sea, subject to the continuation of traditional fishingby foreign
states within this zone as may be recognizedby the United States.

It is the intent of the Government of the United States to provide for
the continuation of the present traditional fisheriesof Canada. It appears
appropriate that informal consultations at the technical level be held in
order that mutual arrangements can be consummated.

Enclosure

Public Law 89-658

Department of State,

Washington, November 29, 1966. 473
ANNEXESTOCOUNTER-MEMOU OFTHEUNITEDSTATES
NOTE VERBALEFROMTHE DEPARIMENT OF EXTERNALAFFAiRSTO THE EMBASSYOF
THE UNITEDSTATES.DATED IIOCTOBER 1967,AND DEUVERED 25OCTOBER 1967

Department of External Affairs
Ottawa

1. Pursuant to the provisionsof the Territorial Sea and Fishing Zones
Act of 1964,the Canadian Governmentintendsto beginimplementingthe
straight baseline system referred to in tbat act as the basis for the
delineationof Canada's territorial sea and contiguous fishingzone.
2. As a first step, the Government will publish veryshortly a list of

geographical CO-ordinateosf points to bejoined by straight linesalong the
Coast of Labrador and along the eastern and southern coasts of
Newfoundland.
3. The new baselines will beeffective immediately upon their establish-
ment by Order-in-Council, with the exceptionthat the traditional fishing
activities of a certain number of countries, notably the U.S.A., will be
allowed to continue in the areas where they have previously been

conducted and to the extent that they have previously beenexercised,
pending the conclusionof bilateral negotiations relatingtoch activities.
4. The first lit of geographical CO-ordinatesof points will be followed
shortly byadditional listsimplementingthe straight baseline system along
other parts of the eastern and western coastsof Canada. The application
of these new baselines will also be subject to the conditions set out in

paragraph 3above.

Ottawa,

October 11, 1967.

NOTE FRûM THE DEPARIMENTOF STATETO THEEMBASSYOF CANADA,
DATED 1 NOVEMBER 1967

Department of State

Washington

The Department of State refers to the Note Verbaleof the Department
of External Affairs of October 11, 1967, handed to the United States
Embassy, Ottawa, October 25, 1967, concerning establishment by the
Government of Canada of a straight baseline system for delineationof
Canada's territorial sea and contiguous fishingzone. In this connection,

the Department notes the statement made hy Paul Martin, Secretary of
State, External Affairs, before the External Affairs Committee of the
House on October 26, 1967, and the Order of the Governor-General in
Councilon this subject issuedOctober 26.474 GULFOFMAINE

As the Governmentof Canada is aware, the United States Government
considersthe action of Canada to be without legal justification. It is the
viewof the United States that the announced lines are, in important and

substantial respects, contrary to established principlesof international
Law of the Sea. The United States does not recognizethe validity of the
purported lines and reserves al1 rights of the United States and its
nationals in the waters in question.

Department of State

Washington, November 1, 1967

Canadian Embassy Ambassade du Canada

The Embassyof Canada presents its complimentsto the Department of
State and has the honour to refer to the United States Aide-Mémoire of
November 1.The Canadian Government hasnoted the objections raised
in that Aide-Mémoire concerning the decision of the Canadian Govern-
ment to implementthe straight baseline systemas a means for delineating
the baselines from which Canada's territorial sea and contiguous zones
are measured. The Canadian Government is satisfied that the straight
baseline systemis being implemented by Canada in a manner wholly in

accordancewith the recognizedprinciplesof international lawand regrets
that it is not able to agree with the interpretation which has been placed
on this action by the Governmentof the United States.

Washington, D.C.

November 11, 1967 ANNEXESTOCOUNTER-MEMORILTHEUNITEDSTATES 475

Amex 35

FIGUREPROPORT~ONAL~TESTAPPUEDTOTHECANADIA LNINE
@

Annex36

NA VIGATIKG '7kOUBLED WAA NEWP~uCY FORTHEATUNTICRSI~FRIES,
[CANAD TA]SFORC EN ATLA~TICISHERIEMSI,CHLLKIRBY,CHAIRMAN,

DECEVEE 1982,CIIAPTEIAND 12(lïiKIRBYREWRT)

[Noreproduced]

Annex37

ASSESSME NFTHEPOTENllNYIED FORSTOCKISSUEARE ASHROUGH5
AND STATISTIhEA 6

[Noreproduced] GULFOFMAINE

Annex 38

DISTR~BUT OFFISHAND SHEL~SH STOCK ON GEORC-BANK

Table 1: Percentages of Various Stocks Taken in the Northeastem
Portion, and the RemainingPortion, of GeorgesBankduringan

autumn 1966bottom-trawl survey cruise of the United States

Northeast Fisheries Center, NationalManne FisheriesService,
N.O.A.A.,Dept. ofCommerce

Table 2:Percentages of Various Stocks taken in the Northeastem Por-
tion, and RemainingPortion, of GeorgesBankduringfivespring

andfiveautumnbottom-trawlsurveycruisesof the Unit4 States
Northeast Fisberies Center, National Marine FisheriesService,

N.O.A.A.,Dept. ofCommerce.

Table 3:Percentagesof VariousStocks in the Northeastern Portion, and
RemainingPortion, of Georges Bankdnringspring,summer,and

autumn bottom-trawlsnrvey cruises condncted by the United
States Northeast Fisheries Center, NationalMarine Fisheries

Service,N.O.A.A.,Dept.of Commerce.

The proportional distribution of stocks in the northeastern portion of

Georges Bank,and the remainingportionof Georges Bank, waswmputed
from research vesse1bottom trawl survey data wllected during cruises
wnducted by the United States Northeast Fisheries Center, National
Marine FisheriwService,N.O.A.A., Departmentof Commerce. Forthese
calculations,the surveydata wllected in each of the six statistical units
wrrespondingto Georges Bank wereidentified.(SeeCanadian Memorial,
@ Figure 23). An abundance index of stock weight waswmputed for each.

Weighting these abundancc indices by the amount of trawable area in
eacb statistical unit allowedwmputation of the proportionof each stock
occupyingthe statistical unit. These proportions werethen wmbined to
establish the proportion of the stock in the northeastern portion of
Georges Bankand the remainingportionof the Bank. ANNEXES TOCOUNIER-MEMOW OF THB UNITEDSTATES 477

Table 1

Pereentages of Various Stocks taken in the.Northeastern Portion 'and
the Remaining Portion ' of Georges Bank during an autumn 1966 bottom
trawl survey cruise of the United States Northeast Fisheries Center,
National Marine Fisheries Service, N.O.A.A., Dept. of Commerce.

Per Centof Stock(i Weight)In:

Nortbeastern Remaining
Portion of Portion of
Species GeorgesBank GeorgesBank

Scallop 76.5 23.5
Herrin- 14.7 85.3
Cod
Haddock
Mackcrel
Pollock
Cusk 31.0 69.0
Silver Hakc 17.5 82.5
Red Hakc 3.7 96.3
White Hakc 16.0 84.0
Argentine 100.0 0.0
Yellowtail 15.0 85.0
Redfish 33.5 66.5
2.0 98.0
Lobstcr
AmericanPlaicc 6.6 93.4
Winter Flounder 32.9 67.1
Little Skatc 5.8 94.2
BigSkate 20.1 79.9
SpinyDogfish 2.6 97.4

'The Northcastern Portionof Georges Bank correspondsto statistical units,
@ 5Zej and 5Zem,(523, 524)asshownat Figure 23of the Canadian Memorial.

>The RcmainingPortionof Gwrgcs Bankwrrespondsto statisticaluniis SZeh.
n 5Zcn.SZcn.and 5Zeo(521.522.525and 526)as shownal Figure23of ihcCana-

'Canada reliesupondata fromsuch cruisesat p. 57.n. 25. and Annexes,Vol.
IV, SectionI,Anncx 2,of ils Memorial. 478 GULF OF MAINE

Table 2

Percentages of Varions Stocks taken in the Northeastern Portion ',and Remaining Portion : of
Georges Bank during Rve spring and Rve autumn bottom trawl survey cruises' of tbe United
States Northeast Fisberies Center, National Marine Fisheries Service, N.O.A.A., Dept. of
Commerce.

Per Cent ofStoek (i Weipbl)In:
SPM~ Auhima
Northnslern Remaining NoRhartcm Remaininp

Portion of Portion al porti~l Portion of
Sp~ies Georgm Bank Georges Bank Georga Bank GeorgesBank
Scallap 46.7 53.3 64.1 35.9
Hcrring
10.4 89.6 0.0 100.0
Cd 67.9 32.1 43.5 56.5
Haddock 43.9 56.1 87.5 12.4
Mackcrcl 0.3 99.7 2.4 97.6
Pollock 64.6 35.4 64.4 35.6
Cusk 46.6 53.4 43.6 56.4
Silvcr Hakc 4.5 95.5 29.4 70.6
Rcd Hakc 5.8 94.2 5.7 94.3
Whilc Hakc 11.9 88.1 25.7 74.3
Argentine 94.5 5.5 73.2 26.8
LoligoSqvid 0.0 100.0 2.5 97.5
Yellawtail 19.8 80.2 5.4 94.6
lllex Squid
0.0 100.0 31.9 68.1
Rcdfish 0.2 99.8 6.4 93.6
Labstcr 21.1 78.9 10.0 90.0
American Plaicc 10.6 89.4 6.6 93.4
Wintcr Floundcr 22.2 77.8 16.9 83.1
Litc Skatc 10.1 89.9 17.8 82.2
BigSkatc 17.0 83.0 39.5 60.5
Siny Donfish 25.2 74.8 49.4 50.6

'The Northcastcrn Portion of Gmrges Bank correspondsto statistical unis 52cj and 5Zcm (523.524). as

- shownal Figure 23 of the Canadian Mcmorial.
'The Rcmaining Portion ofGmrges Bank correspondsta statistical units 5Zch. SZcn, 5Zeg. and 5Zeo
@ (521. 522.525 and 526)as shownat Figure 23 of the Canadian Mcmorial.

'Canada relies upondata from suchcruises at p. 57,n. 25,and Anncxes. Vol.IV, Section II. Anncx 2. of
its Mcmorial. The sprinpcruises includcd in this tablc arc: 1972. 1973,1974. 1976.and 1978.The autumn
cruiscs includcd in this table are: 1972. 1973. 1974. 1975. and 1977. ANNEXESTO COUNTER-MEMORIALOF THE UNITED STATES 479

Table 3
Pcrrrntapn of VariousStocks in the Nortbeastern Poilion'. and Remainina Portion' of Ceorse Bank duiing

rpring,summer ,ndiutumn baltom-trml sunry eniiws'conduçled by the United Stata Northerrt Fisbeiie Ccn-
ter, NationalMarine Eisheiia Spniec, N.O.A.A., Dopt. of Commerce.

Cd Northcartcrn Portion 58.5 63.0 47.8 24.7 23.2 75.7 44.1 56.5 55.7
RsmaininnPortion 41.5 37.0 52.2 75.3 768 24.3 55.9 43.5 44.3
Haddak Norihcanern Portion 52.7 59.7 78.1 17.2 1 96.1 61.2 41.3 67.6
RsmaininpPortion 41.3 40.3 9 82.8 62.5 3.9 32.8 58.1 32.4

Pollak Northsartsrn Portion 84.2 21.7 82.0 0.0 3.5 294 1 42.9 17.6
RemaininaPortion 15.8 78.3 18.0 IWO 96.5 70.6 62.9 5 82.4
Silver Nwlheartern Por$iin 1.3 8.4 0.7 9.2 1 4.1 9.9 24.4 17.5
9 99.3 90.8 92.3 95.9 90.1 15.6 82.5
Hakc RemainingPortion 91.7
Ycilowtai1 Northcastcrn Portion 6.2 39.8 63.2 13.1 3.4 08 6.4 8.0 53.6
novndcr RcmaininpPariion 93.8 60.2 36.8 86.9 96.6 99.2 93.6 92.0 46.4

Wintsr Northsasisrn Portion 2.7 29.5 4.4 19.8 38.9 0.0 26.3 26.2 18.1
Floundsr RcmaininpPortion 97.3 70.5 95.6 80.2 61.1 100.0 73.7 73.8 81.3
Red Haks Northcastsrn Portion 15.3 4.8 1.8 0.0 2.3 0.0 13.6 33.2 25.0
RsmainingPortion 84.7 95.2 98.2 100.0 97.7 IWO 86.4 66.8 75.0

cvst Noriheancrn Portion 40.9 0.0 31.2 0.0 IW.0 17.8 8.7 6 9.8
RsmaininpPortion 59.1 100.0 68.8 100.0 0.0 82.2 91.3 87.4 90.2

'The No~thcast~rnPortionof Gmigu Bankmrrcrpondr tortatirtical unils 5Zej and 5Zcm.(523.5as)rhovn stFigure
@ 23of the Canadinn Memorial.

'TheRsmaininpPonion ofûciirpa Bankmrrupondx toslatirtical uniil 5Leh. SZcn.SZcp,and 5% (521,522. 525 and
@ 526)as shmn al Fipurs 23or ihcCanadian Mcmorial.

'Canada rcliu uwn dam fram ruch cruiru ap.Si. n.25.and Anncxu. Vol.IV.SectionII. Annsr2,dits Mcmorial.The
cruim insludcdin thit tablwerceondustsd from 1978throunh 1980. [Nor reproduced]

[Nor reproduced]

Annex41

P.J. HIL"AN IL LIND':ELNINOW' EATHEDISASTECRSNTINUE'*,
m6 WASHINCTON~T 14,JUNE1983PPAl, A9

[Nor reproduced]ANNEXES70 COUNTER-MEMORUO LFTHEUNITEDSTATES

[Not reproduced]

[Not reproduced] GULFOFMAINE

Annex44

1,the undersigned, DavR. Robinson,Agentof theUnitedStatesof
America,herebycertify that each document includin the Annexor
Counter-Memorias lubmittedby the United Statesof America is an

accuratetranslation, transcripr,production,rrepresentation.

(Signed)
DAVIS R.ROBINSON
Agentof the UnitedStates
of America