Reply of Canada | INTERNATIONAL COURT OF JUSTICE

Document Number

9603

Document Type

written_pleading

Case

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

Date of the Document

Mon, 12/12/1983 - 12:00

Document File

9603.pdf

INTERNATIONALOURTOFJUSTICE

PLEADINGS,ORALARGUMENTS, DOCUMENTS

CASECONCERNINGDELIMITATION
OFTHE MARITIMEBOUNDARY

IN THE GULFOF MAINE AREA
(CANADA/UNITEDSTATES OF AMERICA)

VOLUMEV
Replies

COURINTERNATIONAEEJUSTICE

MÉMOIRES.PLAIDOIRIESETDOCUMENTS

AFFAIRE DE LA DÉLIMITATION

DE LA FRONTIÈRE MARITIME
DANS LA RÉGION DU GOLFEDU MAINE

VOLUMEV
Répliques The case concerning Delimittnionof the Maritime Boundary in the Gulfof
MaineArea.entered on the Court's General List on 25 November 1981under
numher 67, was the subjen of d Judgment delivered on 12Octoher 1984by
the Chamber constituted by the Order mdde by the Court on 20January 1982
1Delimi~otiunof rhe Marinme Buunlhns in the Gu- -f MameArea Judementu .
~c.J R.eportsj984.p. 246).
The pleadings and oral arguments in the case are being published in the
followingorder:

Volume1. Special Agreement; Memorialof Canada.
Volume II. Memorial of the United Statesof America.
VolumeIII. Counter-Memorial of Canada.
VolumeIV. Counter-Memorial of the United Statesof America.
VolumeV. Replies of Canadaand the United Statesof America.
VolumeVI. Commencement of Oral Arauments.
Volume V11. Conclusion of Oral ~r~ukents: Documents submitted ta the
Court afrer clohureof the written proceedings; Correspondence.

VolumeVIII. Maps, charts and illustrations.
Canada filed its oleadinns bath in Ennlishand in French. Althounh Canada
has two official languages,only the ~nglish text of ihose documenïs is repro-
duced on the ensuing pages of these volumes. as Canada haî informed the
Renistw that the Ennli5htext should be seen as authoritative for the Durnoses
~ ~~ ~ ~ ~ ~ ~on. - . .
Certain pleadings and documents of this edition are reproduced photo-

nra~hicallvfromthe oriainal orinted text.
- in addiGanta the normal c6ntinuous pagination. the Volumesfeature on the
inner mdrgin of pages a brackeied indication of the original pdgination of the
Memorials. the Counter-~emorials. the Repliesand certain Annexes
In interna1references,hold Roman nume;als (inthe tex1or inthe margin)are
used to refer10 Volumesof ihis edition: if they are immediately followedby a
oaee reference.this relatesta the newoaeination ofthe Volumein auestion. On
ihëoiher hand; the page numhers whichare precedcd by a refere~ceta one of
ihe pleiidings relate ta the original pagination of ihai document and accord-
in-.v refertithe bracketed oaiination of the document in auestion
The main maps and char& are reproduced in a separate volume (Vol.VIII),
with a renumbering, indicated by ringed numerals, that is also added in the
margin in Volumes 1-VI1wherever corresponding references appear; the
absence of such marginal reference means that the map or illustration is not
reproduced in the present edition.
Neither the typography nor the presentation maybe used for the purpose of

interpreting the texts reproduced.

L'affairede la Délimitationde lajrontièremaritimedans la régiondu golfedu
Maine. inscrite au r61eeénéralde la Co-~~~o~s le numéro67 le 25 novembre
1981, a fait l'objetd'un&& rendu le 12ociohre 1984par la Chambre consii-
tuéepar ordonnance de la Cour du 20janvier 1982(Delimitationde /u/rontiire
maritimedans /a régiondugo@ du Maine,orne+.C.I.J.Recueil1984.p. 246).Vlll GULF OF MAINE-GOLFE DU MAINE

Les piècesde procédureécriteetles plaidoiries relatives à cette affaire sont
publiéesdans l'ordre suivant:

Volume 1. Compromis; mémoiredu Canada.
Volume II. Mémoiredes Etats-Unis d'Amérique.
Volume III. Contre-mémoiredu Canada.
Volume IV. Contre-mémoire des Etats-Unis CAmériaue.
Volume V. Répliquesdu Canada et des Etats-Unis d'j\mérique.
Volumc VI Débutde 13procédureorale.
Volume VII. Suite et fin de la procédureorale: documents présentes ;la Cour
apres la fin de la procLIdureécrite:correspondance.
Volume VIII. Cartes et illustrations.

Le Canada a déposéses piècesde procédureécriteen anglais et en français.
Bien aue le Canada ait deux langues officielles. seul letexte anelais de ses écri-
tures éstreproduit dans les volumes ci-dessus,'le Canada ayant fait savoir au
Greffe que, en cas d'interprétation, c'étaitle texte anglais qui devait faire foi.
Certaines niècesde la oiésenteéditionsont ohotoe-.ohiées d'aorèsleurtexte
impriméoriginal.
Outre leur pagination continue habituelle, les volumes comportent, entre
crochets sur le bord intérieurdes pages. l'indication de la pagination originale
des mémoires,des contre-mémoires,des répliqueset de certaines de leun an-
nexes.
S'aeissant des renvois. les chiffres romains eras (dans le texte ou dans la
marge) indiquent le vol;me de la présenteédicon; ;'ils sont immédiatement
suivis par une référencede page, cette référencerenvoie à la nouvelle pagina-
tion du volume concerné. ~n revanche. les numérosde o.-. aui sont &étédés
dc l'indication d'une piece deprocédu vrsent la pagination onginalede ladite
pièce et renvoient donc à la pagination entre crochets de la piècementionnée.
Les orincinales cartes sonir&roduites dans un volume sé~.., (VIII) où elles
ont reiu un ;umérotage nouveau indiqué par un chiffre cerclé.Dans les vo-
lumes 1àVII, les renvois aux cartes et illustrations du volume VI11sont portés
en maree selon cenouveau numérotaee. et l'absence de tout renvoi àla &.ente
éditionUsignificqu'une carte ou illus~alion n'est pas rcproduite.
Si la typographie ni la présentationne sauraient etre utilisées auxfinsde I'in-
terprétafiondei textes reproduits Page
Reply ofCanada - Répliquedu Canada
INTRODUC~ON ........................
PART 1. ANOVERVIEW .....................
Chapter 1. General assessment of the United StatesCounter-Memo-
fial ...........................

Introduction .......................
SecMernorial aooear to be oriented towards a "solution" that is
incompatiblébith the taskof the court...........
Section II. The United StatesCounter-Memorial relieson the repe-
tition of formulasto suooort novelareuments whosevaliditvhas
nowhere beendernonstiited bythe ~sted States .... ..
Section III. The United States Counter-Mernorial avoids impor-
tant issuesand rebutsargumentsCanadahas nevermade ....
Section IV. The United States Counter-Mernorial fails to rebut
Conclusionnadi.......................ess ..........

Chapter II. Theidentification of issue.............
Introduction ........................
Section 1. Fundamental conceptsoftheapp..cable law .....
Thenature ofequitableprinciples and the legalframeworkwithin
whichtheyrnustbeapplied ...............
Theprinciple of appurtenance ..............
Thecriteria foridenti-vi-p.relevant circumstances......
Section II. Continental geography or the geography of the Gulf of
Mainearea ......................
Theappropriategeographical framework ..........
Theeaualitv orinea.alit.of coasts .............
Thceffectofparticulargeographicaasis .........fe.ai.urcs
The relarionshioofGcorecs Banktothe relevantcoasis ....
-
Section III. The alleged"natural boundary" .........
The existenceand relevance ofallegedseabed and water-column
discontinuities....................
Section IV. Thesi-nificanceoftheconduct ofthe Parties ....
Conduct in relationto a~.ui~s~ence. recoenitionand estoooel
Conduct inrelationto a modusviveidior zefactornaritimêiimit .
Conduct inrelationto indicia ofe. .ty ...........
SectionV. The relevance aiid reality of southwest Nova Scotia's
dependence onGeorges Bank ...............
Established fishingpatterns and relativedependence .....X GULFOFMAINE-GOLFE DU MAINE

Pnge
Section VI. The appropriate method and equitable result in the
particular geographical circumstancesoftheGulf of Mainearea
Appropriate method ..................
Equitable Result ....................

Conclusion .......................
...........
PART 11.THEISSUET SHAT DIVIDETHPE ARTIES
Chapter 1. Fundamental conceptsofthe applicablelaw ......
Introduction .......................
Section 1. The Partiesdisagrceon the natureof equitable principles
and on the l.galCrameworkwithin whichihcymustbcapplied~~ . 14
A. Contrary to the allegations in the United States Counter-
Mernorial,Canada reliesupon equitable principleswithinthe
law ........................
B. TheUnitedStatesdisregardsboth equity andtheapplicablelaw

1. Equitable principles distinguished from equitable appor-
tionment .....................
2. Equitableprinciples distinguishedfrommonopoly ...
C. Article 6 of the Continental Shelf Convention is applicable
hoth as a binding treaty mle and as the particular expression
ofageneral nom ..................
Section II. The Parties disagreeon the legaland geographical basis
ofappurtenance ....................

A. The Canadian claimtakesaccount ofthe legalbasisoftitle .
1. Therelevanceofthe basis oftitle ...........
2. Thedistanceprinciple ...............
B. The United Statesclaimmisconceivesthe legalbasisoftitle .
1. Unlimited perpendicularity as the basis of the seaward
extensionofthe coasts ...............
2. The mythofthe "natural boundary" .........

Section III. The Pariics disagrcc on the nced for lcgal criieria for
the identification andba1ancin-.u~ofthe relevanicircumstances 30
A. Canada relies upon relevant circumstancesthat are rooted in
theobjectand purpose ofthezones tobedelirnited ..... 30
I. An established dependence linking the adjacent coasts to
the fisheriesofthe relevantarea ........... 30
2. Stateconduct directly associated with the rights and juris-
diction inissue .................. 32
B. The United Statesclah of "dominance" reliesupon activities
not related to the object and purpose of the zones to he de-
Emited.. ................ 34

Conclusion ....................... 35
Chapter II. Continental geography or the geography of the Gulf of
Mainearea ....................... 37

Introduction. ...................... 37 XI

Page
Section 1. The United States approach lacks an appropriate and
consistentgeographical framework ............. 38
A. The United States uses macrogeography to refashion the
geography oftheGulf of Maine area ..........
B. The United States defines the Gulf of Maine area on the basis
of itshoundary proposal ...............
C. The United States defines different "relevant areas" for var-
ious "relevant circumstances" .............
Section Il. The United States attempt to refashion geography
fails in the legally relevant framework of the Gulf of Maine
area .........................
A. In recognizing that the Gulf of Maine is a deep concavity, the
United States invalidates its assertion that the general con-
figuration ofthe coasts is astraightline .........
B. The relationship ofthe coastsispredominantlyopposite . .
C. Cape Cod and Nantucket are incidental special features,
aberrant tothegeneraldirectionofthecoast .......
Section III. The application of the maxim "the land dominatesthe
sea" shows that eastem Georges Bank appertains to the Coastof
Nova Scotia ......................
A. The maxim presupposes the interrelationship and the rele-
vance ofphysical and humangeography .........
B. The maxim does not state that "the land houndary terminus
dominates the sea" ..................
C. The application of the maxim to the Gulf of Maine area
demonstrates that the inner and outer areas are dominated
respectivelyhy the coasts that abut them .........
Conclusion .......................
Chapter III. The myth ofthe "natural houndary" ........

Introduction .......................
Section 1. The United States ignores important geological factors
that are incompatible with a "natural boundary" atthe Northeast
Section II. The United States em in attempting to portray Georges
Bank asan extension of Massachusetts ...........
Section 111.The United States em in contending that Canada
would not he affected byan oilspillon Georges Bank .....
Section IV. Contrary to United States assertions, Georges Bank is
part of a continuous ocean system and falls within the Nova
Scotiahiogeographic province ..............
Section V. The United Statesgreatly exaggerates the importance of
the NortheastChannel ...... : ...........
Section VI. The United States greatly understates the importance
of the Bav of Fundv in attemoti.e t- maeu .v the role of the
~ortheasi~hannel '. ..................
Section VII. The "natural houndaty" in the Gulf of Maine area is
an ad hoc conceotion not found in orevious scientific oublica-
tions on this area....................XII GULF OFMAINE -GOLFE DU MAINE
Page

Sestantiated on the ground of alleged incompatibility of national
fisheries policies....................
Conclusion .......................

Chapter IV. The significanceofthe conductof the Parties .....
Introduction .......................
Section 1. The United Stateshas failed to refute Canada's position
respecting acquiescenceand estoppel ............
A. The United States had full knowledge of Canada's public
activitiesinissui.goffshore permits;"notoriety" isirrelevant
1. TheCanadian offshore permitprogram ........
2. United Statesknowledgeofthe Canadian program ...
B. The acquiescence of the United Stateswasclearlyand consis-
tently manifestedhyitswnduct ............
1. Theprinciple ofacquiescence ............
2. The Canadian wntention ..............
3. Consisrencyof United Statesconduct .........
4. Explicitacceptance bythe UnitedStates ........
C. The authority of Mr. Hoffman and of the United States
Department ofthe Interior isnot inissue .........
1. The authority of Mr.Hoffman ............
2. Theauthority ofthe Department ofthe Interior .....
D. The acquiescence of the United States wasof sufficient dura-
tion ........................
E. Canada was induced to place reliance upon United States
acceptance ofCanada'sequidistance claim ........
Section 11.The United States itself issued geophysical survey per-
mitswithreferenceto theequidistancemethod ........
A. "Permits" and "northeastem portion of Georges Bank" are
terms havinn different meanines for Canada and the United
States .......................
B. United States permits were issued with referenceto a "BLM
line" ........................
C. The United States geophysical survey permits havea three-
foldsignificance ...................
1. Acquiescence,recognitionand estoppel ........
2. Adefactomaritime limit ..............
3. Indiciaof equity .................
Section III. The United States has failed to refute Canada's ~osi-
tion respecting the relevance of the 1979 Agreement on '~ast
Coast FisheryResources .................
Section IV. The United States has failed torefuteCanada's conten-
tionthatthe ICNAFrewrd isone of wastal Statepartnership . .
A. The ICNAF wastal State concept was used to define States
with a coastline adjacent to an ICNAF subarea and to acwrd
suchStatespreferentialquotas ............. Xttt
Page
B. nie status of the United States in relation to ICNAF Sub-
area4 isgreatlyexaggeratedbythe United State...... 102
C. In the last years of ICNAF, the wastal State concept was
hroadened to include the conceot of nei-hhourin~ coaslal
States .......................
D.nant interest" of the United States but the shared interest of
the PartiesintheGulf of Mainearea...........
SectionV. The United States confuses the wnduct of the Parties
and irrelevantStateactivitie...............
Conclusion .......................
Chapter V. The relevanceand realityof southwest Nova Swtia's vital
dependenceon Georges Bank ................
Introduction .......................
Section1. The United StatesCounter-Memorial miscastsCanada's
and not Canada that relies on eitraneous wnsiderations of rela-
tivewealth .......................
SectionII. The United States Counter-Memorial gives an inaccu-
rate viewof the relative presence of the Parties in they of
GeorgesBank .....................
Serateviewof the relativeimnortance of the fishervto the Parties: it
em in itsportrayal of the économyof Nova ~cotiaand of south-
WestNova Swtia inparticular ...............
Section IV. The United States Counter-Memorial does not sub-
sianriateitsconclusionsregardingeconomicequities .....
SectionV. The United States Counter-Memorial does not impugn
deep historical roo...................o-aes Bank fisherv has
Conclusion .......................
Chapter VI. The appropriate method and equitahleresultintheparti-
culargeographical circumstancesofthe Gulf of Maineare....
Introduction .......................
Section1. The United StatesCounter-Memorial miscaststhe Cana-
dian viewofthe equidistancemethod inthe presentcase....
A. The United States Counter-Memorial makes unfounded
assertions about the status of the equidistance method in the
Seai.........................nvention on the Law of the
B. The United States Counter-Memorial makes unfounded
assertions about thestatus of the equidistance method inState
practice ......................
C. the equidistance methodunder Article 6 of the Continentalf
Shelfconvention ..................
SectionIl. The United States rejection of the Canadian line is
founded on an erroneous analysis of State practice and of the
geographyofthe Gulf of Mainearea ............XIV GULF OF MAINE - GOLFE DU MAINE

A. The United States arguments concerningthe location of the
land boundary and the influenceof the back of a deep coastal
actuallyabuttingthe area to be delimited . . . . .coa. . . .
B. The United States Counter-Memorial misconstmes State
practicein"geographicallysimilarareas" . . . . . . . .
1. TheNorthSea . .. . . . . . . . . . .. . . . .
2. The Bayof Biscay . . . . . . , . . . . . . . . . ,
C. The United States rejection of the Canadian line is based
upon a misunderstanding of the effects of concavities and
convexitieson anequidistancelinein theGulf of Mainearea .
Section111.The United States contentions concerningproportion-
alityarebased on a selectiverefashioningof geography . . . .
Conclusion . . . . . ... . . . . . . . . . . .. . . .

PART III. A BALANCING-U .P. .. . . . . . . . . . . . .. . .
PART IV. SUMMAR O FPRINCIPALCONCLUSI .O N,S . . . . . . . .
A. The a~~iicabieiaw . . . . . . . . . . . . . . . .. . . .
B. The réiev~~~.~rc~ms~ances~
C. The nature ofthe result punuant tothe UnitedStatesproposal
D. Thenature ofthe result pursuani to theCanadian line . . .

Annexes 10theReplyof Canada
State practice in maritime delimitationby agreement (Vol.1)
Preface . . . . . . . . . . . . .. . . . . . . . . . , , .
Part 1. Ananalysisof continental shelfand maritimeboundary agree-
ments . . . . . . . . . . . . . .. . . . . . . . . . . .
Section 1. The misinterpretation of State practice by the United
States . . . . .. . . . . . . . . . . . . . .. . . . .
A. Theeauidistance method and eauidistance lines . . .. . .

2. ~oundaries tbat are saidto be "ecjuidistantinpart" . . .

B. Tof Biscayt.t. . . .the. . . . .ta. . . . .und. .. . . . .ay

Section II. An analyticaltable of agreements establishingmaritime
boundaries . . . . ... . . . . . . . . . . .. . . .
A. Introduction . . .. . . . . . . . . . . . . . . . .
1. Typeofagreement . . . . . . . .. . . . . . . . .
2. Ceographical relationships . . . , , . . . . .. . .
3. Method of delimitation . . . . . . . . . . . . . . .
4. Efïectofgeographicalfeatures . . , , . . . . . . . .
B. Analyticaltable . . . . . . . . . . . . . . . .. . .
Part II. Continentalshelf andmaritime boundary agreements . . .
lntroduaipn . .. . . . . . . . . . . . . . . .. . . . .
Chronological list of continental shelf and maritime boundary
agreements accordingtodateof signature . . . . . . .. . . Alnhabetical listof continental shelfand maritime houndary ag.ee--
mens .........................
Continental shelfand maritimeboundary agreements,togetherwith
an illustration of the boundary, in chronologicalorder according
ta date ofsignature ...................

Certification ........................
Supplementary evidence and miscellaneousdocuments (Vol.II)

Preface ..........................
Part 1. Thehumandimension:supplementarysocio-economicevidence
Introduction .......................
Chapter 1. Summaryof evidencethat the disputed fishing grounds
areof fargreaterewnomic importance to Canada and NovaSw-
tia than they are to the United Statesand Massachusetts in tems
ofemploymentand gross'domesticproduct .........

Section 1. Contribution of the disputed fishing grounds Io gross
domesticproduct ................
Section Il. Contribution of the disputed fishing grounds Io
regionalemployment .................
Chapter II. Summary of evidence that the Canadian line would
cause little disturbance to the economic activities ofthe United
States whereas the United States line would obliterate Canada's
establishedeconomicinterest inGeorges Bank ........
Chapter III. Summaryof evidencethat the impact of loss of access
to al1of Georges Bank on the communities of southwest Nova
Swtia would be greater in both relativeand absolute tems than
the impact of loss ofaccessta part of Georges Bank wouldbe on
thewmmunities ofeastem Massachusetts ..........

Section 1. Canada ...................
Section Il. The United States ...............
Chant,~-~V~ Su~~aw of evidence refutine the United States alle-
gation that econokic losrcs created by loss of access to Georges
Bankwould bc oifset byaltemaiivcemploymeni opportunities in
southwest NovaScotia

Section 1. Alternativefishingemployment .........
SectionIl. Non-fishingaltemativeemployment .......
A. Forestry ..................
B. Agriculture ....................
C. Manufacturing ..................
D. Tourism ...............
E. Offshoreail and gas ................
Technicalappendices to Part I

Appendix1. The rcalwsi of lorsofaccesstoGeorges Hdnk ....
A..endix 2. Southwest NovaScotia: ewnomic based model, 1971
and ~ ~~ ~ ...................
AppendLr Z Suwey Report - Clark'sHarbourcommunity cluster .
Appendix4. Thesmall vessrlfleetofsouthwest NovaScotia ...XVI GULFOF MAINE-GOLFE DU MAINE

Pap-
Appendix 5. Growih and diversification ........... 269
Appendix 6. Canadian and United Statesfishery policies ..... 271

Documentary appendicesto Part 1
Documentary Apuendix 1. Documents used in the calculation of
income and unemolovment in Massachusetts (Docs. I to 3) ... 281
~o&mentary ~~~end&- 2. ~xcerpt from New England Economic~ --
Indicalors,Federal ReSe~e Bank of Boston, Boston. Massachu-

setts.June 1982.Tables2and 3.o.A-5 ........... -. .
~ocuminrar~~~~hdir 3. ~xcerpt'frornTheLohaur Farce. 1980, Sta-
tistic~Canada.Catalonue No. 71-001.1980. a. 130 ...... 281
Documentary ~p~endix-4. Excerpt from ~ew England Fishery
Management Council, Fishery Management Plan, Final Environ-
mental Impact Statement, Regulatory Impact Reviewfor Atlantic
Sea Scallops (Placopecten magellanicus), January 1982,pp. 33
and36 ........................ 282
Documentary Appendix 5. Excerpt from 1980 CensusofPopulation,
Characteristics of the Population, General Population Characteris-

tics. Massachusetts, Washington, Govemment Printing
Office,June 1982,p.23 - 7 ................ 282
Documentary Appendix 6. Excerpts from Task Force on Atlantic
Fisheries, Navigating Troubled Waters,A NewPolicyfor theAtlan-
tic Fisheries, Ottawa, Minister of Supply and Services
Canada, December 1982,pp. 24,57,95 and 275 ........ 282
Documentary Appendix 7. Excerpts from ïhe Economic and Social
Base ofSouth WesternNova Scotia, Southwest Nova ScotiaStudy
Team, 1977,pp. 139and 183-184 .............. 282
Documentary Appendix 8. Excerpts from Visitor Travel ta Nova Sco-
ria. 1978, Department of Tourism, Province of Nova Scotia,
pp. 11-12 ....................... 283

Documentary Appendix 9. Excerpt from G. A. Mackay, The UK
Norrh Seo Experience, report for Mobile Oil Canada Ltd. and
DPAConsultine. November 1982.o.55 ........... 2-3-
~onrmenrary~~~èndir Ill ~l;cer~Ü;rom Monufacruring Indu.~rrie.c
ofCanada: NarionalandProvincralAreas.1980. SlatisticsCanada,
Caldlogue No. 31-203,Decernber 1982,pp.4-5 and 50.51 .... 283
B~mmenlar)~.4ppend& II. Errcrrpts from Annual S~aris~icaRl eview
ofCanadian Firherres.1980, Vol. 13,Ottawa. Department of Fish-
eiies and Oceans. DD.42.56.69.80 and 115 . : ....... 281
Documentary ~~~ér;<iDi i2~x&rpts from Northwest Atlantic
Fisheries Oraanization. StatisticalBulletinVol.30. 1980.op. 224-

-~
UocumenraryAppendir 13. Excerpts frorn AnnualStorisrical Revrew
ofCanadtan Fisberle,. 1978, Vol. Il, Oit3wa. Departmeni of Fish-
cries and Oceans, pp. 42.5 1.64.74 and 80 ....... 284
Documentary Append~r 14. Excerpt from Margarei E. Dewar,
Indusr- in Trouble. Philadelphia. Temple University Press, 1983,
p.68 ......................... 284
Documenrary Appendix 15. "Proposals for Assisting Shipping and
Shipyards", Record of Cabinet Decision, 6 September 1961,
Ottawa, PrivyCouncil Office, II September 1961 ....... 284 XVll

Page
Donrmentary Appendix 16. Excerpts from House Committee on
Merchant Marine and Fisheries. "Providine a Proeram of Assis-
tance for the Construction of~khing ~esszs", ~ouse of ~eire-
sentatives, Re~ort No. 770, 86th Congress, 1st Session. 1959.
pp. 2-3 ........................ -
Documentary Appendix 17. Excerpts from House Committee on
Merchant Marine and Fisheries, "Fishing VesselConstmction",.
House of Representatives,Report No. 1524,88th Congress, 2nd

Session, 1964,pp. 2-3 ..................
Documentay Appendix 18. Excerpts from Senate Committee on
Commerce, "Fishing Vessel Constmction Bill", Senate Report
No.481,88thCongress,1stSession,1963,pp. 20-21 ......
Documentary Appendix 19. Excerpts from House Committee on
Merchant Marine and Fisheries. "Extension ofUnite-~~~~~~s
Fishing Fleet Improvement AU, House of ~e~resentatives,
Report No. 394,9lst Congress, 1stSession,1969,pp.6-9 ....
Part II. The history of the Canadian fisheries: supplementary evi-
dence ..........................

Introduction ........................
Section 1. The non-statisiicalevidence: commentdryon Annexes
10the UnitedStatesCounter-Memorial (VolumeIV,Annex 7)
Section II. Thestari\tical evidence .............
A. Ihe early statisiicalsystem: 1869-1930.........
H. Thepre-ICNAFstatisticaIera:1931-1952 .......
<:.The historic~ldata ~uhlishedbv ICNAFin 1952 .....
D. Thepost-1952period ................

Conclusion .......................
Donrmentary appendicesta Part II

Donrmentary Appendix 1. Excerpts from Forty-Seventh Annual
Report of the Department ofMarine and Fisheries, 19/3-14, Fish-
eriespp. 90-95 .....................
Documentary Appendix 2. Excerpt from F.W.Wallace, Roving Fish-
erman. An Aurobiography Recounting Persona1Experiencesin the
Commercial Fishin- Fïeels and Fish Industr, ,f Canada and the
UniredSrares. 1911-1924.p.101 ..............
Dommentory Appendix 3. Excerptirom N. Boume, Srallopr and the
Olfihore Fi~hervofrhe Marirrmr.D. 22 .........
~o&mentary ~p~&dix 4.~xcerpis from Twenty-Ninth Annual
Report of the Department of Marine and Fisheries, 1896,Fisheries,

~&umentay Appendix 5. Excerpts from ForpFourth Annual
Report of the Department of Marine and Fisheries, 1910-11,Fish-
eries,~~.xx-xxiand 126-129 . .
Donrm~niary Appendix 6. Excerpts from Fisheries Staristics, 1918,
pp.xxvi-xxix and 14-29 ................. 316
Documentary Appendix 7. "Resolutions, Meeting of International
Committee on Marine Fishery Investigations, Montreal, June
23rd,192lW ...................... 316XVlll GULF OF MAINE-GOLFE DU MAINE

Page

DocurnentaryAppendix 8. Excerpt from minutesof second meeting
of International Committce on Marine Fisherv Invcsiinat-ons,
-o--~-~. ~ ~em~er 1921.0.1 ..............
~ocurnentary~ppendix 9. Léiterof 14Febmary 1922irom A. John-
ston...eoutv Ministerof Marine and Fisheries.to al1"Owners of
Bank FishingVessels" ..................
DocumentaryAppendix 10. Excerpt from Fiffy-SixlhAnnual Report
of theFisheriesBranch,Departmentof Marineand Fisheriesf,or the
Year1922,p.12 .....................
DocurnentaryAppendix II. Letter of 17 March 1923from W. A.
Found, Assistant Deputy Minister of Fisheries,to Ward Fisher,
Chieflnspectorof Fisheries ...............
DocurnentaryAppendix 12. Excerpts from North ArnericanCouncil
on FisheryInvestigations,Proceedings 1921-1930, No. 1, pp. 8-9
and 19-20 .......................
Docurnenrary Appendix 13. Examples of statistical reporting forms
DocurnentarvAooendix 14. "Memo for Mr. Found - International
CO-operaiioi~nthe collection ofSea FisheriesInformation" . .
DonrmentaryAppendix 15. Example of pre-1931published Cana-
dian fisheries statistics, Fisheries Statistics of Canada, 1929,
Dominion Bureau of Statistics,King'sRinter, 1931,pp.42-47 . .

DocurnentaryAppendix 16. "Memo. For MI.Cowie. Re FisherySta-
tistics" ........................
DocumentaryAppendix 17. Excerpt fromNorth AmericanCommit-
tee on Fishery Investigations,"Minutes of the Ninth Meeting,
Heldinthe McAlpinHotel, NewYork,N.Y.,on Friday, May8th,
1925",p. 1 .......................
DocumentaryAppendix 18. Examplesof post-1930published Cana-
dian fisheries statistics, Comparative Study, pp. 412-414, and
FisheriesStatistierof Canada. 1938,Dominion Bureauof Statis-
tics, King'sRinter, 1940,pp. 56-115and 225 .........
DonrrnenraryAppendix 19. "Memorandum Re: Appendix A of the
Minutes of the 1931Meeting ofthe North American Council",
pp. 1-2 ........................
DocurnentaryAppendix 20. Excerpt from M. C. Urquhart and
K. A.H. Buckley,eds., HistoricalSfatisticsofcanada,Section M.
p.388 ................... .... ....
Docurnentary Appendix 21. Excerpts from "Memorandum Re
Improvement of Fisheries Statistics for Biological Purpases",
pp. 1-2 ........................
DocurnentaryAppendix 22. Excerpt from "Collection of Fisheries

Statistics(Landing Statistics)",p.3.............
DocurnentaryAppendix 23. Excerpt from minutes of "Canadian
Atlantic Fisheries Statistics Meeting, St. Andrews,New Bmns-
wick,March 12-15,1952" .................
DocumentaryAppendix 24. Excerpt from "Notes Re Statistical Dis-
cussions,St. Andrews,N.B.,March 13-15,1952",p.2 .....
DocurnentaryAppendix 25. Excerpt from Fuhery Offers Manual.
1948,Part1,Section 15,B. I(a)(d) .............
Docurnenrary Appendix 26. Excerpts from "Memorandum to:
A.W. H. Needler, Canadian Adviser. Re: Canadian Statisticsfor CONTENTS-TABLE DES MATIÈRES XIX

Page
the International Commission for the Northwest Atlantic Fish-
eriesn.... 3-4 ..................... 321
Do~umenrar) Appmdix 27 Excerpr (rom "Memorandum for the
I>eputy-Minisrer Re Fisheries Intelligenceand StarisricalWork",
.p. 2 ..........................
Documentary Appendix 28. Excerpts from M. A. Graham, The
Bevelooment of the New Statistical Svstem for the Maritime Prov-
incespp. 1-4and 8-9 ...................
Documentary Appendix 29. Letter of 28 February 1941 from Dr.
A. H. Leim.Director.AtlanticBioloaicalStation.to D. H. Suther-
land, ~isheries~esearch ~oard ofcanada ...........
Documentary Appendix 30. Letterof 6 June 1952from ActingExec-
utive Secretam of ICNAF to Stewart Bates. Canadian Deoutv . .
~inibrer of ~iiheries.witliattachments .. 1 ........
Doiummrary Appendix 31. txcerprs from W. R. Manin and F. D.
McCracken, "1947 Landings of Fresh Groundfish by Ofïshore
\'rsselsat NovaScotia Ports".pp. 3-6 ............
Donrmenrary Appendix 32. "Corrections and Additions" to Inrerna-
tional Commirsion for rhe Northwesr Atlantic iisheries. Statisrical
Bulletin, Vol.2,for& Year1952 ...............
Documentary Appendix 33. Excerptsfrom memorandum from J.N.
Lewisto 1.S.MacArthur, "Re:Offshore Landings", pp.2-3 . , .
Documentary Appendix 34. E. D. Fraser, "To Four District Protec-
tion Officen in Nova Scotia and Four District Protection Offi-
cersin NewBrunswick" .................
Dorumentory Appenda 35. Excerpts from S. Sinclair.A Siaiisr,cal
Servicefor the Firheries ol'the Maritime Provinces.A Reoor10the
~orki6 Commatee of théInterdepartmenral ~ommitte~ on Mari-
timeFisheriesStatistics,PP. 1-4 ..............
Do~umenrary Apprndu 36 txcerpr from A Report concerning rhe
Needfor Conrobdarrng fisherier Paiistrcal Recpon,ibihties in the
MaritimeArea, p.4 ....................

Part III. nie conduct ofthe Parties: supplementary evidenceon con-
tinental shelfactivitie...................
Introduction .......................
Section 1. The contentions in the United States Memorial and
Counter-~emoril are misleadingand ambiguous .....
Section II. The United Sralesassumed the use of a median line
boundary onGeorges Bank ...............
Section III. The United States permits reflect a median line
boundary ......................
A. United StatesPermitE2-69 .............
B. UnitedStates PermitEl-70 .............
C. United StatesPermitE2-72 .............
D. United StatesPermit E3-75 .......... : ..
E. United StatesPermitE16-75 .............
F. Comparison of United States permits and Canadian
licences .....................
Conclusion .......................XX GULF OFMAINE -GOLFEDU MAINE

Page
DocumentaryappendicesroPart III
DocumentaryAppendix1. Documents pertaining to United States
permit E2-69 ......................
DocumentaryAppendix 2. Documents pertaining to United States
permit EI-70 ......................
DocumenraryAppendix3. Documents pertaining to United States
permit E2-72 ......................
DocumentaryAppendix4. Documents pertaining to United States
~ermitEI-74 ......................
~ÔcumentaryAppendix 5. Documents pertaining to United States
permit E3-75 ......................
DocumenraryAppendix 6. Documents pertaining to United States
permit E16-75 .....................
DonrmentaryAppendix7. Documents pertaining to United States
permit E3-67 ......................
Documentary Appendix 8. Documents pertaining to Canadian
exploratory licences927and 1283 .............
DocumentaryAppendix 9.Letter of 3 June 1968from Dr. M. B.
Shaefer, Science Adviser, United States Department of the
Interior, to R.B.Krueger .................
Part IV. Miscellaneous documents cited in the Reply submitted by
Canada .........................
Annex1. Excerpt from H. Lauterpacht, ïhe DevelopmentofInterna-
tional Law bv the International Court. New York. Frederick
A.Praeger.p.213 ....................
Annex2. Excerpt from A. L. W. Munkman, "Adjudication and
Adiustment - International Judicial Decision and the Settle-
ment of Territorial and Boundary Disputes", The British Year
BookofInternotionalLaw,Vol.XLVI,1972-3973p , p. 100-102. .
Annex3. Excemts from International Boundam CinÏmission. Joint
ReportuponiheSurveyand Demarcarionojihe Boundaryb&n,een
the UntredSraierand Canadafrom theSourceofthe SI.Crau River
in iheAtlonrrcOcean.Washinet-.. Govcrnmcni Priniine O-fice.
1934(Docs.1and 2) ...................
Annex4. Excerptsfrom International Boundary Commission, Joint
ReoortuoontheSurvevand Demarcationof theBoundarvbetween
théunitid tat tand canada from the SOU& oftheSI.croix ~iver
ro theAtlanticOcean,Washingt-n, Government Printing Office,
1934,pp. 1-18 .....................
Annex5. Excerpt from International Boundary Commission Spe-
cial Report No.3,1962, pp.494-496 ............
Annex6. J. S. Schlee and K. D. Klitgord, "Geologic Settingof the
Georges Bank Basin", in P. A. Scholle and C. R. Wenkam, eds.,
GeologicalSrudiesof the COSTNos. G-1 and G-2 Wells,United
States North Atlantic Outer Conrinental Shelj; United States
Department of the Interior, Geological Sumey Circular 861,
Washington,Government PrintingOffice, 1982,pp.4-10 ....
Annex7. Excerpt from L.K.Schultzand R.L.Grover, 'Geology of
Georges Bank Basin", ïhe American Associationof Perroleum
GeologistsBullerin. ol. 58,No.6,Part II, 1974,p.1164..... CONTENTS -TABLE DES MATIERES XXI

Page

Annex 8. Excerpt from J.A. Wade, "The Mesozoic-CenozoicHis-
tory of the Northeastern Marginof North Amcrica", Roceedings
of the 10th Annual O..shore Technolo-.Confe-ence.1978. Vol.3.
p. 1850 ..................
Annex 9. Excerpt from L. R. Sykes,"Intraplate Seismicity,Reacti-
vation of PreexistingZones of Weakness, Alkaline Magmatism,
and Other Tectonism Postdating Continental Fragmentation",
Reviews of Geop~ys~csand Space Physics, Vol. 16, No. 4, 1978,
p. 674 .........................
Annex IO. Excerpts fromJ.B.Fletcher, M. L.Sbarand L.R.Sykes,
"Seismic Trends and Travel-Time Residuals in Eastern North
America and Their Tectonic Implications", GeologicalSociefy of
America Bulletin, Vol. 89, Novemher 1978, Doc. No. 81106,
p. 1656and Figures 1,2,3 and 9 ..............
Annex 11. Excerpt from E. Uchupi, Atlantic Continental Shelfand

Slopeofthe United States - Physiography, United StatesDepart-
ment of the Interior, Geological Survey Professional Paper
529-C, Washington, Government Printing Office, 1968,pp. C5
and C28 ........................
Anna 12. Excerpt from D. A. Greenberg, "A Numerical Mode1
Investigation of Tidal Phenomena in the Bayof Fundy and Gulf
of Maine", Marine Geodesy, VOL2,No. 2,1979,p. 172 .....
Annal3. Canadian and United States Diplomatic Notes of
19June 1974(Docs. 1and 2) ...............
Anna 14. Excerpt from G. J. Venneij, Biography and Adaptation:
Patterns ofMarine LiJe, Boston, Harvard UniversityPress, 1978,
pp.2-3 ........................
Annex 15. Excerpt from J. E. Hazel,Atlantic Continental Shelfand
SIopeof the UnitedStates - OstracodeZoogeographyin theSouth-
ern Nova Scotianand Northern Virginian Faunal Provinces,United
States Department of the Interior, Geological Survey Rofes-
sional Paper 529-E, Washington, Government Printing Office,
1970,p.ES .......................
Annex 16. Statementof SenatorGeorgeJ. Mitchell,Effectson New
England of Canadian Tidal Development: Hearing before the
Committee on Environment and Public Works,U.S.Senate,98th

Congress, 1stSession,25July 1983,Augusta,Maine ......
Annex 17. United States DiplomaticNoteof27August 1981 ...
Annex 18. Excerpt from letter from Hon. Terry Leitzell,Assistant
Administrator for Fisberies,NMFS-NOAA, U.S. Department of
Commerce to Senator William S. Cohen, 21 December 1979,in
Maritime Boundary Settlement Treaty and East Coast Fishery
ResourcesAgreement, "Hearings before the Committee on For-
eign Relations, United States Senate", 96th Congress, 2nd Ses-
sion, 1980,pp.185-186 ..................
Annex 19. Excemt from 1.C. MacGibbon. "The Sco~eof Acauies-
cence in lntemational Law", nie Britirh Year Biok of ~nierna-
tionaliaw,Vol.XXXI, 1954,pp. 170-171 ..........
Annex 20. Excerpt from D. H. N. Johnson, "The Case conceming
the Temple of Preab Vihear", nie International and Comparative
Low Quarterly, Vol.11,1962,p. 1203 ............XXll GULFOFMAINE-GOLFE DU MAINE ,

Page
Annex2I. Excerpt from Federal Register, Vol. 47, No. 236,
8December 1982,pp.55313-55314 . . . . . . . . . . . . . 347
Annex22. Diplomatic correspondence concerning the United
StatesFederalRegisterNotice of8December 1982 (Docs. Iand 2) 350
Annex23. Excerpt from FederalRegister,Vol.48, 19January 1983,
Anne 24. Documentspertaining ta Canadian Exploratory Licence . 353
2414 . . . . . . . .. . . . . . . .. . . . . . . . . 355
Anna 25. Amendment No. 1697of 15April 1980to Agreementon
East Coast Fishery Resources, ExecutiveV, 96th Congress, 1st
Session (1979).proposed by Senator Tsongas (for Senator Ken-
nedy, for himselfandSenators Chafee, Durkin, Humphrey, Pell,
Ribicoffand Weicker) . . . . . . . . . . . . . . . . . . 358
Anna26. Excerpt from H. L. Keenleyside and G. S. Brown,
Canada and the UnitedStates: Some Aspectsof neir Historical
Relations,New York,Alfred A. mopf, 1952,pp.214-215 . . . . 358
Annex27. ICNAF, Annual Meeting, June 1969, Proceedings
No. 11,Appendix 1 . . . . . .. . . . . .. . . . . . . 358
Annex 28, ICNAF, Annual Meeting, June 1970, Proceedings
No. 16,Appendix 1and Annex1 . . . . . . . . .. . . . . 359
Ann1972,Proceedings No.3and Appendices 1and II Ja. . .-F. . . . 360
Annex30. ICNAF, Annual Meeting, June 1972,Commissionen'
Documents72/12 to 72/17 . . . . . . . . . . . . . . . . 360
Annex3l. ICNAF, Special Commission Meeting, January 1973,
Proceedings No.5 . . . . . . . .. . . . . .. . . . . 360
Annex32. ICNAF, Annual Meeting, June 1973,Commissionen'
Document 73/13 . . .. . . . . .. . . . . . . . . . . 360
Annex33. ICNAF, Annual Meeting, June 1971, Proceedings
No. 16,Appendix II . .. . . . . . . .. . . . . . . . . 361
Annex34. ICNAF, Special Commission Meeting,January 1973,
Proceedings No.3 . . . . . . . . . . . . . . . . . . . 361
Annex35. ICNAF, Annual Meeting, June 1972,Infomal Record
of Meetingofthe AdHocCommittee onQuota Allocation . . . 361
Annex36. ICNAF, Special Commission Meeting, January 1973,
Anna 37. ICNAF, Fourth Special Commission Meeting, January . . 361
1974,ProceedingsNo. 3 . . . . . . . . . .. . . . . . . 362
Anna 38. ICNAF, Annual Meeting, June 1974, Proceedings
No.11 . . . . . . . .. . . . . . . . . . . . . . . . 362
Anna 39. ICNAF, Fourth Special Commission Meeting,January
1974,Proccedings No.5 . . . .. . . . . . . . . . . . . 362
Annex 40. ICNAF, Annual Meeting, June 1973, Proceedings
No. 10,AppendicesVIand VI1 . . . . . . . . . . . . . . 362
Annex41. ICNAF, Annual Meeting, June 1974, Proceedings
N0.10 . . . . . . . .. . . . . . . . . . . . . . . . 363
Anna 42. ICNAF, Eighth Special Commission Meeting,January
1976,ProcedingsNo. 8 . . . . . . . . . . . . .. . . . . 363
Annex4R ICNAF, Seventh Special Commission Meeting, Sep-
and2er. .75. .. . . . . . .4, A. . . . . .d . . . . . . . . 363Annex 44. ICNAF. SeventhS~ecialCommission Meeting, Se-.em-
ber1975,~ommissionen'~ocument75/1~/40 .......
Annex 45. ICNAF, Seventh Special CommissionMeeting.Seplem-
ber 1975.Commissionen'Documeni75/IX/42 .......
Annex 46. ICNAF, SevenihSpecial Commission Meeting,Septem-
ber 1975,Commissioners' Document 75/IX/49 (2nd Revision)
and Attachments Iand 2 .................
Anna 47. ICNAF, SeventhSpecialCommission Meeting, Septem-
ber 1975,Proceedings No.5 ................
Anna48. ICNAF, Annual Meeting, June 1959, Proceedings
No. IO ........................
Anna 49. ICNAF, Annual Meeting, June 1969, Proceedings
No. 15 ........................
Anna 50. ICNAF, Annual Meeting, June 1969, Proceedings
No. 17 ........................
Anna 51. ICNAF, Annual Meeting, June 1971,Commissioners'
Document71/17 ....................
Annex 52. ICNAF, Annual Meeting, June 1971,Commissioners'
Document71/18 and Corrigenda .............
Annex 53. ICNAF, Annual Meeting, June 1975,Commissioners'
Document75/32 ....................
Anna 54. ICNAF, Annual Meeting, June 1975,Commissioners'
Document75/33 .................
Anna 55. ICNAF, Fourth Special Commission Meeting,January
1974,Proceedings No.6,Appendix1 ............
Anna 56. ICNAF, Annual Meeting,June 1975,Proceedings No. 4,
Appendix Iand Annex6 .................
Anna 57. Excerpt(rom ICNAF,Annual~oceedings, Vol.12,forthe
year 1961-62,Halifax,N.S., 1962,p.IO ,ara. 3 ........
Anna 58. ICNAF, Twelfth Annual Meeting, June 1962,Proceed-
ings No. 13 ......................
Anna59. List of scientific papers reporting Canadian research
activitiesrelated to ICNAF/NAFO Subarea 5 ........
Annex 60. Excerpts from Task Force on Atlantic Fisheries, Navi-
gating Troubled Waters, A New Policy for the Allantic Fisheries,
Ottawa,Supplyand ServicesCanada, 1982,pp. 62and 78 ...
Anna 61. Excerpt from Draft Environmental Impact Srarement on
the Aereement between the United States and Canada on East
Coasr fi.~hery ReruurceWashington, UnitedSiaies Department
ofStare, April 1980,pp.7-8 ..............
Annex 62. Excerpt from Narir,nalFisherman,Camden, Maine, May
1980,p.l l.......................
Annex 63. Excerpt (rom Margaret E. Dewar, Industry in Trouble,
Philadelphia,TempleUniversity Press,1984,pp.183-184 ....
Annex 64. Excerpt (rom National Fisherman,Camden, Maine;July
1980,p.4 .......................
Annex 65. OECD Economi[: Suwevs. 1982.Belaium. Luxembourg.
p.65,Table B ...................... - -
Anna66. Excerpt (rom OECD Economic Suweys, 1980,Federal
Republicof Gennany, p. 64,TableA ............
Anna67. Excerpt (rom Annuaire stalistique de la France, 1982,XXlV GULF OF MAINE-GOLFE DU MAINE

Page

Paris, Institut national de la statistique et des études écono-
miques, 1982.p.227,Tableau 3.01-1 ............ 369
Annex68. Excerpt from Sfatulical Abslmcf of the United States.
1981, Washington, United States Department of Commerce,
Bureauofthe Census.o.424.Table707 ...........
~nnex69. Excerpt fro~i'lopan Slalistical Ycarbook,Tokyo, Statis-
tics Hureau,Prime Minis~er'sOllice,July 198p.539.Table348
Annex 70. Excemts from Yearhook ofIndustrialSrançrirs.1980Edi-
tion, Vol. 1, ~eneral lndustrial~~tatistics, NeYO;~, United
Nations, 1982,p.47,174,195,271,286and 553 .......
Annex71. Excemt from OECDEconomicOutlook Vol.33.Oreani-
sation for ~wiomic Co-operation and ~eveloiment, ~"1~ ï983,
p.44,Table 12 .....................
Annex72. Excerpt fromR.W.Smith, "TheMaritime Boundariesof
the United States",he GeographicalReviewV, ol.71,No. 4, 1981,
p.402 .........................
Certification........................

Reply of the United States of Ameriea - Répliquedes Etats-Unis
d'Amérique

PART 1. OVERVIEW ......................
PART 11. THEHISTOR OYF THEDISPUT EN PROPER PERSPECTIV CEA:NADA
HASASSERTEU DNREASONA B LEINEQUITAB CLEAIMS ......

Introduction ........................
Cbapter 1. Manyofthe disagreementsbetweenthe Parties in this case
arise out of. andflect.their differentattitudes conce-ine the law
ofthesea ........................
Section 1. The differences between the Parties conceming the law
of the seafirst surfaced at the 1958Law ofthe Sea Conference
and have .la-ued an otherwise n-nerallv harmonious bilateral
relationship ......................
Section2. The Parties maintained different attitudes conceming
thepumoses ofthe Third United NationsConference on the Law
ofthe Sea ~ ~ ~ ~ ~ ~
section3. The United Statesrejectedthe 1979FisheriesAgreement
because it was inconsistent with rights accru-nn to the United
Statesunder the 200-nautical-milereiource zone.......

Chapter II. From the Tmman Proclamation forward, the United
States consistently has maintained tbat this maritime boun-
dary must be detemined by agreement in acwrdance with equi-
table principles and that Georges Bank appertains to the United
States: Canada's efforts to establish this boundary unilaterally
~ ~~~ ~led ....................... ~ ~ ~ ~ ~ ~
Section 1. The Tniman Proclamation established tbat this boun-
dary would be detemined by.a-reementinaccordancewithequi-
table principle.....................
Section 2. The 1958Geneva Convention on the Continental Shelf
carried forwardthe principlesofthe Taman Proclamation ... xxv

Poge

Section 3. Georges Rank fell uithin the United States definition of
itscontinental rhelfat the timeof1heTmmdn Proclamation. .
Section 4. United States anions ÿlways have been consistent with
the position that Georges BankappertainstoUniied Statra
Section 5. The line adoaed bv the United States on 4 November
1976was a moderate,good-f~ith negotiatingposition....
Section6. The United States claim in this adjudication is no1extra-
va-ant and is consistent with prior United States positions and
international law...........
Chapter III. Conclusion: in making its claims in the Gulf of Maine
area, Canadahas set forth lines thatare overreaching..

PARTIII. THEPARTIEA SRE IN FUNDAMENTD AISAGREEME NEGARDING
THE LAWAPPLICABL TETHISCASE:CANADA ASKS THECOURT TO RULE
ON THE BASIS OF PREvIOUSLY REJECTED LEGALARGUMENT SND
RADICALLY TO ALTER ESTABLISHE LAW, WHEREASTHE UNITED STATES
As~s THE COURT TO RULE ON THE BASIS OF ESTABLISHELD AW AS
REINFORCED BY RECENTTRENDS ..............
Introduction........................
Cbapter 1. Canadaasks the Court tooverturn established law.

Section 1. Canada reintroduces the notion of proximity, seeking to
enhance the role of the equidistance method beyond that pro-
vided in Articl6of the Continental Shelf Convention or under
customary law .....................
A. The Court and arbitral tribunals have rejected proximity as a
bas~~ for delimitation.............
B. Canada's reintroduction of the notion of proximity is based
uuon incorrect assumptions concerning the Third United
Nations Conference onthe Law of the Sea
Section 2. Canada asserts mistakenly that a "profound transfonna-
tion of the concept of the continental shelf' has taken place in

international law
A. The legalregime ofthecontinental shelfremainsdistinct from
thatofthe200-nautical-mileres o...ce.zone
B. Canada misreads the Court's Ju-ements as thev concern the
principle of natural prolongat............
Section3. Canada asserts that the single maritime boundary is to
be established in effect upon the basis of an impermissexle
aequo et bonodetermination by the Court of an equitable share of
the resources inthe boundary area...........
Section 4. Canada misapplies Article 6 of the Continental Shelf
Convention ......................

Chapter II. The equitable principles proposed by the United States
areapplicable intbis case.................
Section 1. The first United States principle: the bounmust
respect the relationship between the coasts of the Parties andthe
mâritime areas in froni of those coasts.....
A. Nonencroachment ...........XXVl GULF OF MAINE-GOLFE DU MAINE

Page
B. Proportionality ................... 431
C. Natural prolongation ................. 432
Section 2. The second United States mincide: the boundarv
should facilitate resource consenationand management .... 432
Section 3.The third United States principle: the boundary should
minimizethe potential for international disputes....... 439
Section 4. The fourth United States principle: the boundary musr
take account ofthe relevantcircumsrances inthe area ..... 441

PART IV. THEEQUIDISTAN LINE, AS WELL AS CANADA'L SINE,WOULD
IGNORE THE RELEVANT CIRCUMSTANC IESTHE GULF OF MAINEAREA.

Chapter 1. Canada miareads or ignores the relevant geographical cir-
cumstances in theGuIfof Mainearea .............
Section 1. The location of the land boundary in the far northern
corner ofthe Gulfof Maine ................
Section 2. The -eneral direction of the Coastin the Gulf of Maine
area .........................
Section 3. The coastal concavity that isthe Gulf of Maine ....
Section 4. The fishing banks andthe Northeast Channel .....

Chapter II. The position of the land boundary in the far northern
corner of the Gulf of Maine. and the ~osition of ~ ~ No~a Sc~tia
peninïula, creategeographical imb~lances inthiscase ......
Chapter III. In the geographical configuration of the Gulfof Mainc
area. the eauidistant line and Canada's line ~roduce an ineauitable
solution ..........................
Section 1. 00th the equidistant line and Canada's line are inequi-
table because thev cut ofï the seaward extension of the United
tat ts ast at aine and ~ew ~am~shire .........
Section 2. Canada misapplies the decision of the Court of Arbitra-
lion inthe Analo-French~rbiiraiion .............
Section 3. The geogrdphical relationship of the Parties is that of

adjacent States: the coasrs of the Parties are geographically adja-
cent in relationtotheareascaward oftheGuIfof Maine ....
Section 4. Stvte prdcticc doeb not reflen the use of equidisiance in
-eo- -phical circumstances similar to those in the Gulf of Maine
area ........................
Seciion 5. 00th the equidistant linc and Canada's Iinedisregard the
Norrheasr Channel, the only natural boundary in the marine
environment in the Gulf of Maine area .....
A. Raihymetric contours illustrate that the Norrheast Channel is
the only significant break in the surface of thc Continental
Shelfin rhcGulfof Maine area ......... ;' ...
B. The scientificdaia confirrn the existence ofthree separate and
identifiable ocednographic and ecological reyimes inthe Gulf C. The Northeast Channel separates most commercially import-
ant fishstocksinthe Gulf of Mainearea .........

Section 6. Both theequidistant line and Canada's linedisregard the
predominant interest of the United States in Georges Bank ...
A. The history of the fishing activities of the Parties confinns
the oredominant interest of the United States in Georges -
-a~ ~ ~ ~ ~ ~...................
B. Agrecmcnts concluded by the Parties wnfirm the predomi-
naniinterest of the United States in Georges Bank .....

Chapter IV. In the circumstances of this case, a line from the agreed
startine ooint eenerall...emendicular to the aeneral direction of the
coast,b;t adl;sted to preserve the integrity aseparatc and idcntifi-
able fishing bînks. is consistent with the Special Agreement and
oroduces an eauitable solution
Section 1. The perpendicular method and the United States claim
are consistent with the Spccial Agreement ..........
A. The startingpoint ..................
B. The triangle .....................

C. The "gr-y ~rea" ...................
Section 2. An adiusted oemendicular to the aeneral direction of the
coast is an appropriate niethod for the dëlimitation of a single
maritime boundary in complex geographical circumstances such
as those intheGuIfof Mainearea .............
Section 3. There are primary and sewndary coastal fronts in the
Gulf of Mainearea ...................
Section4. The perpendicular method is easily adjusted to take
account of relevant circumstances .............
Chaoter V. Aooiication of the orooortionalitv test tothe delimitation
oithe singlémaritime boundhyhin the ~ulfof aine area confinns

that. althouah the adjusted perpendicular line produces an equi-
table solutioi, the Canadian Ïinewould not
Section 1. The area in which theproportionality test isto be applied
isnot indeterminate, as Canada suggests ..........
Section 2. The Bay of Fundy and its coast should not be included in
the calculations forthe proportionality test .........
Section 3. Geographical considerations should determine the limits
of the relevant coasts ..................
Section 4. The lengths of the coasts may be measured by straight
lines oralone the sinuosities of the coasts ..........
Section 5. Thearea landward of the starting point may be dis-
regardcd for purposesoftheproportionality test .......
Section 6. The seaward limiü of the test area may he defined by the
200-nauticÿl-mile limitor by depth wntoursoftheseabcd ...
Section7 Perpendiculan to the gcneidl direction of the coast
should define the lateral limits ofthe test area
Section 8. The adjusted perpcndicular line achieves a proportion-
ate delimitation. whereas the equidistant line and the CanadianXXVlll GULF OF MAINE-GOLFE DU MAINE

Page
PART V. CONCLUSION .................. . 492
SUBMISSION .S....................... 494

Annexesto theReplyofthe UnitedStates ofArnerica
Documentaryannexes to the Reply (Vol.1)

Annex1. A. Gotleih andC. Dalfen, "National Jurisdiction and Inter-
tional Law", in 67 ArnericanJournal of International Law, 1973,
pp. 229-258 .......................
Annex2. United States Department of State, Bulletin,Vol. XLVIII,
No. 1248,27May 1963,pp.815-817 .............
Anna 3. House of Commons of Canada, debate on the ArcticWaters
Pollution PreventionBill,16pril1970, pp. 5952-595......
Annex4.
Summaryofthe NotefromtheUnited StatesDepartment of Stateto
Embassy of Canada, dated I November 1967,as reported in a
message from the United StatesDepartment of Stateto Embassy
oftheUnited States,Ottawa,dated 2 November 1967 .....
Note from the Secretam of State to Embassv of Canada. dated
25 April1969 .....................
Annex5. An Act to prevent pollution of areas of the Arctic waters
adiacent to the mainland and islands of the Canadian Arctic.
~évised.StatutesofCanada. 1970,Chap. 2 (1stSupp.)(Arcticwaters
Pollution PreventionAct) .................
Annex6. L. H. J. Legault,"Maritime Claims", iR St.J.McDonald,
G. L. Morris, and D. M. Johnston, eds., Canadian Perspectiveson
Internationo10iw and Organizations,1974,pp. 377-397.....
Anna 7. Declaration by Canada recognizingas compulsorythejuris-
diction of the Intemational Court of Justice, in confomity with
Article 36,paragraph 2,of the Statute of the International Court of
Justice, New York,7April1970.724 UNTS64 .........
Annex8.
Not14Apri11970Sec.....................bassy of Canada, dated
Note No. 105from EmbassyofCanada to theUnited States Depart-
ment of State,dated 16April1970 .............
Note from the Secretaw of State to Embassv of Canada. dated
5May 1970 ......................
Annex 9. Statement by Ambassador Cadieux, legal discussions wn-
ceming implications of Anglo-French Arbitration Award for
Canada/USA maritimeboundary delimitation in theGulf of Maine
area,Ottawa, 140ctober 1977 ................
AnnexlO. Maritime Boundaw Settlement Treatv and East Coast
Fishery Resources ~greement: Hearings beforéthe Committee on
Foreign Relations, United States Smate, 96th Congress, 2nd Ses-
sion,pp. 1-9.18-21and 7516 5-37 April 1980)(Statementsof Sen-
ator Pell,~enator'C6hén, enator Chafee, Deputy Secretaryof State
Christopher, andkenator ~eicker) _.............
AnnexII. 1.
Committee on Foreign Relations, United States Senate, 86th Con- XXIX

Page
gress, 2nd Session,Report on the Conventions of the Lawof the
Sea,ExecutiveReport No. 5,dated 27April1960 ....... 540
Hearing hefore the Committeeon Foreign Relations, United States
Senate, 86thCongress, 2nd Session,on ExecutivesJ,K, L,M and
N (The 1958 Law of the Sea Conventions), 20 January 1960,
pp. 82-93 .......................
Annex 12. Department of Extemal Affairs, "Canada/USA Maritime
Boundarv Delimitation.Gulf of Maine/Georee- BankArea". dated
IOJune 1977 .......................
Anna 13. "Extension of Fisheries Zone", Notes for a statement by
the Secretarv of State for Extemal Affain. the Honorable Don
Jamieson,inthe House ofCommons,Ottawa, 19November 1976 .
Annex 14.
D. G. Croshv. Definition of theContinentalShelf:Article 76.L.O.S.
Convenrio~'- App/icari~n IOCanadron0//shore. Law of the Sea
Institutehceedingr, Annual Conference, Halifax,24June 1982
D. Sherwin."Commentarv". in F. T. Christv. Jr..T. A.Clinnan. Jr..
J:K. aih hie JI., H. ~.i<&ht and E. ~iiés,éds.,Lawofihe~ea
InstituteProceedings ,th Annual Conference, 6-9January 1975,
pp.193-197 .................
Annéx 15.
Aide-Mémoirefrom Embassy of Canada to the United States
Denartment ofState.dated 7 March 1983 ..........
Aide-~émoire from ihe United States Department of State to
Emhassv ofCanada. dated 8Aoril1983 ...........
Annex16.
International Hydrographic Bureau, Chart Specificationsof the
I.H.O.; Section400. Hydrographyand Navigational Ai&, 1979,
on. 4-11and4-12 ....................
canada Hydrographic Service, Symh~lsand AbbrevarionsUsedon
CanadianNauricalCharts.Chart 1,July 1981p. 18 .....
Annex 17. J. A. Gulland, Gurdelinesfor Fbhery Manaxement, Food
and Agriculture Organization, lndian Ocean Rograrnme, lndian
Ocean Fishery Commission, 10t'C/ DEV/74/ 36, Septemher 1974,
p.2 ...........................
Annex 18.
Aide-Mémoirefrom Embassy of Canada to the United States
Department of State,dated4January 1974 .........
Aide-Mémoirefrom the United States Department of State to
Embassy ofCanada,dated 22April1974 ..........
Annex19. Figure: Application of the equidistance method giving
"half effect"to the southwesterncoastof Nova Scotia......

Analytical annexes to the Reply(Vol.II)
Annex20. A critique of the analysis inthe Canadian Counter-Memo-
rial of theonce.tof astock ................
~nne.r2/. A critique of the analysis inthe Canadian Counter-Memo-
rialofstock divisionsinthe Gulfof Maine area.........
Annex22. A critique of ihe analysisin the Canadian Counter-Memo-
rial of the 12spcciesthat Canada proposes10add 10 the 16specics
identified bythe UnitedStatesascommcrcially important .... XXXl

Page
Appendix B roAnnex 31. R. Surette, "Fishery Costs for New Rela-
tionship",ArlanricBusiness,Augus t983.pp.25-32 ...... 669
Appendix C ro Annex 31. W. W. Warner, Distant Water, 1977,
pp.310-313 ...................... 674
Annex32. A critiaue of the analysisin the Canadian Counter-Memo-
rial reldtingto ihe significan& of Georges Bank to the "small ves-
sel"fieetand the maIl fish processingplünts of NovaScotia...

AppendixA ro Annex 32. Distribution of the 1980Georges Bank
groundfish catch within southwest Nova Scotiaby vesse1cate-
gory(landingsinmetrictons) ...............
Ao..ndix B roAnnex32. Relianceofthe fisheries districtsof snuth-
west Nova Scot~aupon groundfish caught on Georges Bank in
1980by smallve~sels(landingsinmctrictons) ........
A..end~r Cro Annex32. Relianceofthe fisheries districts of south-
WestNova Scotiaupon groundfish caught on Georges Bank in
1980intermsofvalue(Can.$1980 x 1,000) .........
AppendixD roAnnex 32. Nova Scotia inshore, offshore and total
landings by district for 1980(volume in metric tons, value in
Can. $1980) ......................
Appendix E roAnna 32. "Protest Mounts over 4X Cod Closure",
TheSou5esrer, 1August 1983,p.2 .............
Annex33. A technical description of the limits, distances, and areas
used intheproportionality tests depicted at Figures 33and 35of the
United States Memorial, Figures 24 and 25 of the United States
Counter-Memorial, and Figures2and 3ofthe United StatesReply .
Annex 34. Technical information associated with the an~lication of
the proportionalitytest in thr rçstriaed are2 limited by the coast-
line5hetwscn Nantucket IslsndandCapeSable .......
Annex35. Adiscussionofthe useof rhumb linesand eeodetic lines in
thiscase ......................... -
Annex36. Certification ................... REPLYOFCANADA

RÉPLIQUEDU CANADAri1

INTRODUCTION

1. This Reply is filed in accordance with the order of 27 July
1983 issued by the President of the Chamber of the International Court

of Justice formed to deal with the case concerning Delimitation of the
Maritime Boundary in the Gulf of Maine Area. fixing 12 December
1983 as the time limit for the filing of the Replies of both Parties'.

2. The purpose of this Reply, in keeping with Article 49, para-
graph 3 of the Rules of Court, is to bring out the issues that still divide
the Parties, in the light of the written pleadings already submitted. To
this end. every effort has been made to focus only on the major issues
dividing the Parties and on the most important errors and omissions in
the United States Counter-Memorial. The fact that a contention or alle-
gation appearing in that Counter-Memorial is not discussed in the
present Reply cannot be construed as an admission by Canada that such
contention or allegation is correct or relevant, or that the facts on which
it may be based are accurately presented and properly interpreted.

3. Part 1 of this Reply provides a general assessment of the
United States Counter-Memorial and identifies the issues still dividing
the Parties. Part II examines these issues with a view to throwing further
light on them and placing them in their proper perspective. Part III

presents a balancing-up of the relevant 'circumstances. Part IV provides
a summary of principal conclusions. Part V sets out Canada's Submis-
sion. In addition, this Reply includes an Annex in two volumes.

'I.C.J. Kepor1983. pp6-74

PART 1.'AN OVERVIEW

CHAPTER 1

GENERALASSESSMENT OFTHE UNITED STATES
COUNTER-MEMORIAL

Introduction

4. The United States Counter-Memorial appears to be oriented
towards a "solution" that bears no relation to law or equity and is
incompatible with the task of the Court. It relies on mere repetition to

support novel arguments unknown to international law, whose validity
has nowhere been demonstrated by the United States. It avoids impor-
tant issues and leaves Canada's real contentions largely untreated and
entirely unrebutted. Its Annexes are marked by errors and inconsisten-
cies; uhere they do present scientific facts rather than subjective inter-
pretations, they often support Canada's views rather than the claims of
the United States.

Section 1. The Shifts of Emphasisin the United States
Counter-MemorialAppearto Be Oriented Towards a"Solntion"
That 1s Incompatiblewith theTask of the Court

5. Perhaps the most striking feature of the United States

Counter-Memorial is that it appears to have al1 but abandoned the so-
called "adjusted perpendicular line", which is given no substantial treat-
ment whatever. This is not surprising in view of the fact that this -ine
first proposed in the United States Memorial- has no antecedent in the
history of the dispute. Even in the first written pleading of the United
States, it was evident that the "adjusted perpendicular line" was
intended chiefly to widen the disputed area to the greatest possible
extent, given that the underlying United States claim is directed to
securing the greatest possible area of Georges Bank.

6. The United States has now reverted to the theme of the North-
east Channel that marked its claim from 1976 to 1982, in order to give
still greater emphasis to this superficial feature as an alleged "natural

boundary". At the same lime, the United States Counter-Memorial
erroneously invokes State practice in the North Sea and the Bay of Bis-
cay to suggest that the use of the equidistance method in the Gulf of
Maine area should be limited to the innermost part of the Gulf itself.
These shifts of emphasis seem to offer the Northeast Channel as the
principal basis for a purported "solution" or "compromise" that would
still give the whole of Georges Bank to the United States. This approach
is divorced from both equity and law and is incompatible with the task
of the Court as defined in its Statute and in the Special Agreement.6 GULF OF MAINE [71

10. The United States arguments noted above are radical in their
novelty, bath in legal and (in some cases) scientific terms. They are cru-
cial to the United States claim, but they also have profound implications

going well beyond the present proceedings. Canada submits that they
have not been proven and, moreover, that they have been rebutted in the
Canadian Counter-Memorial.

II. The Annexes to the United States Counter-Memorial also fail
to meet a reasonable standard of proof. Quite apart from their errors
and inconsistencies, they often bear no relation to the contentions in the
United States Counter-Memorial which they are alleged to support.
Indeed, in some cases, they actually contradict such contentions or sup-
port Canada's contentions. In yet other cases, there is a total discrepancy
between the text of an Annex and the accompanying illustrations. These
peculiarities of the Annexes to the United States Counter-Memorial are
examined in greater detail in paragraphs 182 to 184, 188, 189, 297, 306

and 307, and in Volume II, Part 1,of the Annexes to the present Reply.

Section III. The United States Counter-Memorial Avoids Important
Issues and Rebuts Arguments Canada Has Never Made

12. The United States Counter-Memorial is more notable for the
issues it avoids than for the issues it addresses. In some instances, it sim-
ply maintains a discreet silence on issues that are embarrassing to the
United States position. Examples are found in the failure to give sub-

stantial treatment to almost al1 of the most important legal questions
that arise in the present case: the significance of the Special Agreement;
the scope of Article 6 of the Convention on the Continental ShelP; the
concept of the single maritime boundary3;the evolution of the customary
and conventional law of the sea, including the distance principle as the
legal basis of title and as a factor relevant to delimitation4; and the legal
object and purpose of the 200-mile zone. lnstead of dealing with these
central legal problems, the United States continues to rely on a pastiche
of so-called "equitable principles" which, for the most part, flow not

from the applicable law but from an arbitrary and inequitable goal.
13. Another way in which the United States seeks to evade the

real issues in play is by demolishing straw men of its own devising, while
presenting them, quite inaccurately, as contentions advanced by Canada.
Examples are found in the Counter-Memorial's assertions that Canada
proposes an apportionment ex aequo et bono based on distributive jus-
tice'; that Canada relies on arguments concerning relative national

With thc exceptionUniiedStates Counler-Memoriol. p. 109, footnote2.
With the exceptionof: UniredSiaies Counier-Memoriol, p. 109,para. 122.

' With theexceptionof. UniiedStotes Counier-Mernorio/.pp. 140-141. para.205
UnitedSiotes Counier-Memorio/,pp. 113.124, paras. 136.158. [SI REPLYOF CANADA 7

wealth6;that Canada posits the equidistance method as a matter of juris-
tic inevitability'; and that Canada takes the position that the 1979
Agreement on East Coast Fisliery Resources has created binding legal
obligationss. These inaccurate representations of Canada's position arise
from a persistent refusal to make essential distinctions: between a deci-
sion ex, aequo el bono and an equitable result; between relative wealth

and economic dependence (or contingent prospects of resource exploita-
tion and actual exploitation); between equidistance as an absolute rule
and proximity as an important factor; and, finally, between binding obli-
gations and evidence of conduct. The failure to make.such vital distinc-
tions goes to the heart of the United States presentation.

Section IV. The United States Counter-MemorialFails to Rebut

Thnse CanadianArgumentsIt Does Address

14. The United States Counter-Memorial does, of course, essay a
rebuttal of certain arguments actually made by Canada. Thus, it
attempts to deny the consequences of United States conduct with regard
to the Gulf of Maine area, and especially United States acquiescence in
and recognition of the use of the equidistance method in this area from

at least 1965 to 1969. It also seeks to belittle the vital economic depend-
ence of southwest Nova Scotia on the fishery resources of Georges Bank.

15. In addition, the United States tries to rebut the Canadian
case by introducing certain new arguments in its Counter-Memorial.
First, it makes further attempts to refashion geography and reorder
nature, by ascribing to Maine and New Hampshire the status of an
independent nation-State9in order to compare their situation, quite inap-
propriately, with that of the Federal Republic of Germany in the North

Sea, and by speculating, quite pointlessly, about the environmental
consequences for the Gulf of Maine area if the Northeast Channel did
not exist't Secondly, it appeals to two isolated and misinterpreted exam-
ples of State practice in the North Sea and the Bay of Biscay, and mis-
applies them to the quite different circumstances of.the Gulf of Maine
area". Thirdly, it puts forward the startling thesis that alleged incom-

patibilities of fisheries management policies should be a barrier to equi-
table delimitation". Fourfhly, it asserts, in clear contradiction of the
facts, that Canada would not be affected by marine pollution incidents
on Georges Bank".

' Unired Sroles Counler-Mernoripp.125-137 ,arar.159and 161-191.

' Unile-d Slores Counler-Memwiopp.137.149p.aras192.224.
UniledSrares Counrer-Mernoriopp. 151.154, par225-234.
@ ' Uniled Sraies Counrer-Mernoripp.227-228.paras377.380 ;igure28.
'oUniled SlolerCounler-Mernorial,Marine Environrnenr Annex,Vol. 1. Part A,
Annex 1,Chap.III.
@-a " United Sioies Counler-Mernorpp..226-262paras.374-407 ,igure28-39.
" Unired Sloies Counrer-MernoNpp. 222-224paras.359-368.
" Unired SIores Counier-Mernorpp..225-226paras.369-373.8 GULFOF MAINE [91

16. These rebuttal arguments and new arguments introduced in
the United States Counter-Memorial are without substance. The present
Reply will give them such further treatment as may. be required to

demonstrate this conclusively.

Conclusion

17. The United States has failed to address essential issues and
has made assertion serve for evidence and formulas for principles.It has
allowed ils "shadow claim" to a Northeast Channel line to show through
the device of the "adjusted perpendicular line". At the same time,
through a series of inappropriate analogies with quite different bound-
aries; it has suggested that equidistance might be acceptable in the

innermost part of the Gulf - but not, paradoxically, in the seaward
areas where the relationship of the coasts is most markedly opposite. The
United States claim, with or without theshifts in emphasis in the United
States Counter-Memorial, remains founded on a mélangeof improvised
concepts and misconceived principles of maritime boundary delimitation,
al1far removed from the objective of an equitable result.[IO1

CHAPTER II

.THE IDENTIFICATION OF ISSUES

Introduction

18. Article 49, paragraph 2 of the Rules of Court requires that
the Reply be directed to bringing out the issues that still divide the Par-
ties. The following paragraphs identify these issues as seen by Canada ai
the present stage of the proceedings. The issues are stated as a series of
questions under six broad headings, namely: (i) the fundamental con-
cepts of the applicable law; (ii) continental geography or the geography
of the Gulf of Maine area; (iii) the alleged "natural boundary"; (iv) the
significance of the conduct of the Parties; (v) the relevance and reality of
southwest Nova Scotia's dependence on Georges Bank; and (vi) the cor-
relation of an appropriate method with an equitable result in the particu-
lar geographical circumstances of this case.

19. The questions raised below are not, of course, exhaustive of
the differences between the Parties. They are stated in summary fashion
and naturally they cannot take into account contentions that may be

advanced in the United States Reply. Accordingly, Canada reserves the
right to add to or otherwise amend its presentation of the outstanding
issuesduring the course of the oral proceedings.

Section 1. Fundamental Concepts of the Applicable Law

The Nature of Equitable Principles and the Legal Framework within
Which The! Musr Be Applied

20. Should equitable principles be identified and applied within
the framework of the applicable law. including the 1958 Convention on
the Continental Shelf and the sources of law respecting the exclusive
economic zone or the 200-mile fishing zone. in the light of their appro-
priateness for achieving an equitable result in the particular circum-
stances of each case? In addition, is Article 6 of the Convention appli-
cable in this case as a binding treaty rule in relation to the continental

shelf or as a particular expression of a general norm in the determination
of the single maritime boundary?
Or should equitable principles (i) be identified and applied
without reference to the applicable law and the internai principles of the
legal system giving rise to the zones to be delimited, and (ii) have a uni-
versal a priori validity independent of the relevant circumstances of each
case and of the result to be achieved? And is Article 6 of the Continen-

tal Shelf Convention inapplicable as a treaty rule or as a particular
expression of a general norm?10 GULF OF MAINE [Ill

The Principle of Appurtenance

21. 1sappurtenance founded on proximity and adjacency, having
regard to the distance principle as the legal basis of title and to the prin-
ciple of equality within the same order?

Or is appurtenance founded on a geometrical conception of
the "seaward extension" of the coasts perpendicular to a continentally
determined general direction, without regard to the principle of equality
within the same order?

The Criteria for Ideniifying Relevant Circumsiances

22. Do the nature and purpose of the zones to be delimited pro-
vide the appropriate objective criteria for identifying and balancing up
the relevant circumstances?

Or should relevant circumstances be identified and balanced
up without reference to any objective criteria?

Section II. Continental Geographyor the Geography
of the Gulf of Maine Area

TheAppropriate Geographical Framework

23. Should the geographical circumstances be assessed in the
particular framework of the Gulf of Maine area?
Or shoul'd the geographical circumstances be assessed in a
continental framework.?

The Equality or Inequality of Coasts

24. Does the law of maritime boundaries reject any hierarchical
distinction of "prirnary" and "secondary" coasts as being inconsistent

with the principle of equality within thesame order and with the concept
of a constant and uniform distance from the Coast as the legal basis of
title?
Or does the law recognize a distinction between "primary"
and "secondary" coasts on the basis of their orientation relative to acon-
tinentally determined general direction?

The General Configuration of ihe Coasts

25. 1s the geographical relationship of the Parties relative to the
area to be delimited predominantly one of oppositeness, reflecting the
changing coastal directions of a multi-sided concavity?Il2] REPLY OF CANADA II

Or is this relationship one of adjacency, determined on the
basis of a single coastal direction?

The Effect of Parricirlar GeographicalFeatures
Are Cape Cod and Nantucket Island incidental special fea-
26.
turcs aberrant to the general configuration of the coast that would have
a disproportionate effect ifused in determining the course of a boundary
line; that is, are they spccial circumstances?
Or are these features consistent with the general configura-

tion of the coast of the Gulf of Maine area and are they thcrefore to be
used in dctermining the course of the boundary line'?

The Relarionshipof GeorgesBank to the RelevantCoast.?

27. Does Georges Bank appertain geographically to the abutting
coasts of Nova Scotia and Massachusetts on the basis of proximity and

adjacency as confirmed by the evidence of genuine physical and human
links?
Or does Georges Bank appertain geographically to the coasts
of Maine and New Hampshire on the basis of a geometrical conception
of the "seaward extension" of the "primary" coast?

Section III. The Alleged "Natural Boundary"

The Existenceand Relevonceof AllegedSeahedand
Water-Colirntn Disconrinirilies

28. Should the requirement for an equitable result determined on
the basis of equitable principles within the law take precedence over any
alleged "natural boundary"?

Or can an alleged "natural boundary" dispense with the need
to achieve an equitable result determined on the basis of equitable prin-
ciples within the law?

29. Does the existence of a single natural prolongation in the
Gulf of Maine area, as recogniîed by both Parties, refute any thesis that
the Northeast Channel constitutcs a "natural boundary"?
Or can the Northeast Channel be viewed as a "natural
boundary" even if it does not divide two separate continental shelves?

30. 1s the oceanographic system of the Gulf of Maine area
essentially continuous, and is this question legally relevant to the deter- ,
mination of the single maritime boundary?

Or can the oceanographic system of the area be divided into
"three separate and identifiable ecological regimes" that determine the
single maritime boundary dividing the continental shelf and 200-mile
fishing zones or economic zones of the Parties? 12 GULFOFMAINE 1131

Section IV. The Significance of the Conduct of the Parties

Condticr in Relarion to Acqiiiescence. Recognirion and Esroppel

31. Does the absence of protest by the United States, in the face

or Canada's prolonged exercise of continental shelf jurisdiction up to an
equidistance line in the Gulf of Maine area, constitute acquiescence in or
recognition of an equidistance boundary in this area? In addition, does
this conduct of the United States raise an estoppel in favour of Canada?

Or does this conduct of the United States not constitute such
acquiescenceor recognition, or raise an estoppel in favour of Canada'?

Conduct in Relariort ro a Modus Vivendi or De Facto Maritinte Lintit

32. Does the prolonged observance of an equidistance line by
Canada and of a very similar equidistance line by the United States (the

"BLM line" described in this Reply), as well as the observance of these
lines by several dozen oil companies with interests in the Gulf of Maine
area, demonstrate the existence of a modus vivendi or defacto maritime
limit?

Or is this observance of an equidistance line irreleviint in
relation to any modus vivendi or defacto maritime limit?

Conduct in Relarionro lndicia of Equify

33. Does the conduct of the Parties in relation to continental shelf
activities, the negotiation and signature of the 1979 Agreement on East

Coast Fishery Resources, their adherence to the International Conven-
tion for the Northwest Atlantic Fisheries. and their participation in the
Commission established thereunder. constitute evidence of the mutual
interest of the Parties in Georges Bank and provide indicia of what the
Parties themselvcs haveconsidered equitable?

Or are any or al1 of these activities irrelevant as indicia of
equity?

34. Are State activities legally irrelevant lo the determination of
the single maritime boundary when they are unrelated to the subject
matter of the zones to be delimited and took place before such zones
were contemplated, and thus cannot provide indicia of what the Parties
ihemselves have considered equitable?

Or can such State activities provide the basis for determining
an equitable resillt? il41 REPLYOF CANADA 13

Section V. The Relevance and Reality of Southwest Nova Scotia's
Dependence on Georges Bank

EsrablishedFishingParrerns andRelaiive Dependence

35. Are the established fishing patterns of the Parties on Georges
Bank, and the relative economic dependence of their coastal communi-
ties thereon, relevant to the determination of the single maritime
, boundary?

Or are these factors indistinguishable from considerations of
relative national wealth and the sharing-out or apportionment of
resources?

Section VI. The Appropriate Method and Equitable Result in the
Particular Geographical Circumstances of the
Gulf of Maine Area

Appropriale.Merhod

36. 1sthe method appropriate to achieving an equitable result in
the particular geographical circumstances of this case one that reflccts

the general configuration of the coasts abutting the area to be delimited?
Or is the appropriate method one based on a hypothetical
general direction of the east coast of North America?

Equiiable Resulr

Should proportionality as a test of equity in this case be
37.
applied in a manner that takes account of the general configuration of
the coast bordering the Gulfof Maine area?
Or can this test be applied in a manner that ignores major
coastal featuresforming part of the Gulf of Maine area in the view of
both Parties?

Conclusion
The identification of issues assumes a special importance in
38.
"a case of first impression". Those identified above are central to the
present proceedings and have been fully discussed in the Canadian
pleadings Io date. They are furthrr examined in Part II of this Reply,
against the background of the United States Counter-Memorial.14 115-171

PARTII. THE ISSUES THATDNIDE THE PARTIES

CHAPTER 1

FUNDAMENTAL CONCEPTS OFTHE APPLICABLE LAW

Introduction

39. Three major issuesrespecting the law of maritime boundaries
continue to divide the Parties at this stage:

First,with respect 10 the basic legal rules, the Parties agree on the
fundamental norm of equitable principles, but they disagree pro-
foundly on the nature of these principles and on the framework
within which they must be applied inorder to produce an equitable
result within the law. Although the United States has conceded the

relevance and applicability of the equidistance-special circumstances
rule in Article 6 of the Convention on the Continental Shelf, it seeks
to disregard theule in its approach to the present case.
Secondly, the Parties have radically different views on the legal and

geographical principles of appurtenance. Canada accords an impor-
tant though by no means absolute role to proximity,having regard
to the equidistance-special circumstancesle, the distance principle
as the basis ofitle to a 200-mile zone, and the principle of equality
within thesame order. The United States relies upon a macrogeo-

graphical and geometrical conception of appurtenance, based upon
perpendicularity as the criterion of the seaward extension of the
coasts and upon discrimination between so-called "primary" and
"secondary" coasts.

Thirdly, the United States pleadings indicate a total lack of any
legalcriteria for the identification and balancing-up of the relevant
circumstances. For Canada, relevant circumstances must be
associated with the subjectatter of the zones to be delimited; and

the object and purpose of these zones serve as a measure of rele-
vance and weight.

In addition, the Parties are divided on the nature of acquiescence,
recogiiition and estoppel and the application of these doctrines to the
present case. This latter issue will be dealt with in Chapter IV, at
paragraphs 206 10 247.

Section 1. The Parties Disagree on the Nature of Equitable
Principles and on the Legal Framework within Which
They Must Be Applied

40. The United States miscasts the Canadian view of equitable
principles and of an equitable result.hus, the United States Counter-

Memorial devotes an entire chapter to an attack on a proposition that16 GULF OF MAINE [191

43. In the context of the above general legal considerations, the
Canadian Counter-Memorial identified three principles that will lead to
an equitable result in accordance with international law in the present

case. These principles have been put forward not as a system of universal
rules, but as principles that are appropriate in the light of the relevant
circumstances. For the convenience of the Court they too are repeated
here.
(a) In the geographical and other circumstances of this case, the bound-

ary should leave to each Party the areas of the sea that are closest to
itsCoast, provided that due account is taken of the distorting effects
of particular geographical features in the relevant area.
(b) The boundary should allow for the maintenance of established pat-
terns of fishing that are of vital importance to coastal communities
within the relevant area.

(c) The boundary should respect the indicia of what the Parties them-
selves have considered equitable as revealed by their conduct6.

These three principles are solidly grounded in the applicable law and the
relevant circumstances of the present case. They have nothing 10do with
the notion of equitable apportionment or with a decision ex aequo et
bono.

44. The United States has misconceived the nature of equitable

principles in at least two different respects. In the first place, it sets up
an opposition between law and equity that runs counter to the whole
philosophy of the fundamental norm. It does so by taking the equity out
of equitable principles: for equity in this context is to be understood in
accordance with its ordinary, commonsense meaning. In the second
place, having disposed of equity by depriving it of ils real content and its
ordinary meaning, the United States dispenses with the applicable law.

It does so by ignoring the treaty law between the Parties, the legal basis
of title and the legal nature of the rights and jurisdiction in issue.

1. Equirable Principles Disringuishedfrom Equirable Apporrionnienr

45. The United States Counter-Memorial fails to make the ele-
mentary but vital distinction between an equitable result within the law
and an equitable apportionment ex aequo er bono. There is nothing elu-
sive about the distinction. The fundamental norm of equitable principles
wirhin the law requires the application of equity in order to secure an

equitable result, but it also requires that equity be applied in the light of

6Canodion Counvr-Mernorial.pp. 252-253,para608,[201 REPLYOF CANADA 17

the relevant rules and principles of international law. An equitable divi-
sion is a decision ex aequo et bono if it is effected without regard to the
applicable law; but an equitable division that takes account of and
reflects the applicable law is not only admissible, it is required by the
fundamental norm and the Court's ruling that "[tlhe result of the
application of equitable principles must [itself] be equitable'".

46. The United States Counter-Memorial objects to the impor-

tance Canada attaches to the balancing-up of relevant circumstances, on
the grounds that this suggests a decision ex aequo et bono. Canada,
accordingly, is obliged to point out that the balancing process is not a
Canadian invention but rather an integral part of the application of equi-
table principles, as emphasized by'the Court itself, notably in the North
Sea Continental Shelf cases. On thai occasion, the Court stated that it
was the "balancing-up" of al1 the "considerations" or factor^"^ that

would produce a "reasonable result" in keeping with equitable princi-
ples9.More recently, in distinguishing the application of equitable princi-
ples from a decision ex aequo et bono in the Tirnisia-Libya Continental
~helfcasé, the Court re-stated the law very clearly and simply:

"The task of the Court in the present case is quite different: it is
bound to apply equitable principles as part of international law, and
to balance up the various considerations which it regards as relevant

in order to produce an equitable re~ult'~."[Iralics added.]
47. The United States Counter-Memorial also errs in denying the

relevance of established economic dependence and in linking this factor
as well to a decision exaequo et bono. The United States deliberately
confounds the two very diffcrent concepts of economic dependence and
relative national wealth, in order to include economic dependence among
the extraneous general econorriic considerations that were dismissed as
irrelevant by the Court in the Tunisia-Libya Continental Shelf case".

Canada's point is not that economic dependence can refashion geogra-
phy, but rather that ge0graph.v canfashion the economy of a State or
region; not that economic dependence can override or substitute for the
legal basis of appurtenance, but rather that it can provide guidelines to
an equitable solution in an area of overlap where the legal basis of title
allows more than one State to assert a claim. Far from being rejected in

the Tunisia-Libya Continental ShelJ'case, these factors are central to an
equitable solution, as clearly distinguished from a decision ex aeqiro et
bono.

48. In the words of Sir Hersch Lauterpacht, "adjudication ex
aequo et bono amounts to an avowed creation of new legal relations

'I.C.J.Reporrs1982, pp.59-60, parzi.70.
aI.C.J.Reporrs1969, pp.50-51, paras.93-94.

'I.C.J.Reporr~1969, p. 49, para.90.
'OI.C.J.Reporis1982.p. 60.para.71.
"I.C.J.Reporrs1982, pp.77-78, paras. 106-1071221 REPLYOF CANADA 19

not in itself a rule of delimitation, but quite another to suggest rules that
are designed to guarantee exactly the opposite result.

51. It is not only a distortion but a basic error of principle to con-
fuse coastal State management with "single-State management" as the
United States has used that term. The Convention on the Law of the Sea
and the formative stages of the development of the exclusive economic

zone concept show clearly that bilateral or regional cooperation between
coastal States has always been envisaged as an integral and indispen-
sable aspect of the new régimeof coastal State management". It could
hardly have been otherwise in view ofthe mobility of fishery resources in
al1parts of the world.

52. The United States aversion to the concept of transboundary
resources has a new characterization in the United States Counter-
Memorial. It is described as "the tragedy of the commons"". There is, in

fact, no similarity between a true commons like the high seas and an
area divided by a line between two States, each of them endowed with
exclusive authority on its own side of the line. Bilateral cooperation
where each of two States has full authority on its own side of the line is
not only feasible and effective in a way that international management
of the fishery resources of the high seas was not; it is also legally
required.

53. Conservation and dispute avoidance are not principles of
delimitation but operational factors to be taken into account by States in

the management of transboundary resources. The Canadian Counter-
Memorial has shown that cooperation is the solution that international
law prescribes for the management of shared natural resources, and not
the drawing of a boundary in a vain attempt to eliminate the need for
such cooperation". The concept of single-State management, as applied
by the United States and rationalized in its list of "equitable principles",
is simply a pretext for monopoly. It is neither an equitable principle nor

a basis of coastal State title.

54. The United States Memorial barely mentioned Article 6 of

the Convention on the Continental Shelf, although its relevance and its
application to the Parties were conceded. In the United States Counter-
Memorial, Article 6 has disappeared from view altogether - apart from
a f~otnote'~ - notwithstanding its obvious importance as the sole
explicit rule of positive law that is applicable in this case. This provision

" ConodionCounfer-Mernoriol.pp. 209-218. paras.507-520.

" UniredSrorer Counier-Mernorialp.218, para.352.
IJCanodionCounier-Mernorial.pp.205-219. paras.497-524.
" UniredSroies Mernoriol. p. 101. para. 165; UniredSiorer Counier-Mernop.o109,
footnote 2.[241 REPLY OF CANADA 21

areas". Canada holds the contrary view. The basis of title provides an
indispensable standard of reference in interpreting and applying the gen-
eral rules of delimitation, and it ensures that these rules maintain a
genuinely juridical character. In the present case, the distance principle
represents the legal basis of title in respect of both the continental shelf

and 200-mile fishing zones that are ta be delimited by a single maritime
boundary.

1. The Rele~aanceofthe Basis of Title

58. Delimitation is by definition a process of determining in pre-
cisely what maritime space, and within precisely what limits, each of two
opposite or adjacent coastal States may validly assert a title. A delimita-
tion that pays no heed to the legal basis of title is a delimitation divorced
from legal standards; it is an apportionment of shares rather than a

delimitation as such, within the meaning the Court has given that term.
In the North Sea Coniinental Shelfcases, the Court said that delimita-
tion is essentially a process of "drawing a boundary line between areas
which already appertain to one or other of the States affectedn", and not

of awarding shares in a previously undelimited area. The issue of title is
crucial to this distinction.

59. Contrary to the assertion in the United States Counter-
Memorial, the legal basis of title was central to the reasoning of the
Court in the North Seo Continental Shelfcases. The Court translated
natural prolongation, as the basis of title to the continental shelf at that

time, into the key principle of continental shelf delimitation under cus-
tomary law. The correlation of title with delimitation is explicit and
unequivocal: because natural prolongation was said to confer the "ipso
jure title" ofa coastal State to the continental shelf, it was treated as
decisive in the evaluation of competing claims in the delimitation pro-

cess. It is precisely for this reason that the Court held that unless an
area constituted the "most natural" prolongation of a State's territory, it
could not be regarded as appertaining to that State in the face of a com-
peting claimu. Non-encroachment itself is a concept that has no mean-

ing apart from a basis of title that permits an identilication ta be made
of the areas that must be regarded as appertaining to one or the other of
the two coastal States, and upon which no encroachment should be
allowed. In challenging the relevance of title, the United States has
chosen to ignore the central principles of the reasoning of the Court in

the Norih Sea Continental Shrlfcases.

Unite dtores Counler-Memoriol.pp. 137-138para. 195;p. 139. para. 19pp. 140-
141,para. 205.
" I.C.JReports 1969.pp.22-23.para.20.
l'I.C.JReports1969. p.31. para.43. The Court alro riatcd ihat: "the cantinenial shelf
alany riatc murbethe natural prolongationof ils land territoryand mus1no1encroach
upon what ir the natural prolongationof thc territory or anolhI.C.J.Reporrs
1969.p.46-47.para.85.22 GULFOFMAINE [ZSl

60. While the Court has made the basis of title a central con-
sideration in the law of delimitation, it has been careful to avoid a rigid
or mechanical equation between the two issues. Because the issue of
delimitation properly arises within a "marginal area"" of overlap where

niore than one State can theoretically assert a claim, considerations of
title cannot eliminate the need to examine a broader range of equitable
principlesZs.But the basis of title is indispensable in identifying where
the marginal area really lies. Even more important, it provides an objec-
tive standard - although not an exclusive one - for determining which
State has the stronger claim in any portion of that marginal area.

61. The present case differs fundamentally from the North Sea
Conrinenral Shelf cases in that natural prolongation is not the basis of
title to a 200-mile economic zone. But the underlying principle - that
the legal basis of appurtenance, whatcver its nature, should be taken into

account - can readily be adapted to the modified circumstances of the
ncw law of the sea.

2. The Distance Principle

62. Canada's position on the distance principle and its relevance
to delimitation has been fully discussed in the Canadian Counter-
Memoriali6. If understood correctly, the distance principle means that
adjacency within a distance of 200 miles from the Coast is the sole basis

of title to a 200-mile fishing zone or exclusive economic zone; il mus1be
given appropriate weight if title is to be respected in the delimitation of
such zones.

63. The distance principle calls for consideration in connection
with the continental shelf as well. One of the principal reasons for con-
vening the Third United Nations Conference on the Law of the Sea was
that, once the obsolescence of the exploitability test had become appar-
ent, a more precise formula for the definition of continental shelf rights
became essential. Natural prolongation could serve as a conceptual point
of departure, but could contribute little to the need for precision. Article

76 of the new Convention on the Law of the Sea, combining the distance
principle with natural prolongation in a single formula, is the solution
the Conference has provided forthis problem.

64. In the Tunisia-Libya Conrinenral Shelf case. the Court
observed that Article 76 of the Convention on the Law of the Sea pro-
vides that distance measured on the surface of the sea is, in certain cir-
cumstances, the basis of title to continental shelf rights. It characterizcd
this development as the "'trend' towards the distance principle"". The

" I.C.JReports 1969. pp.22-23. par20:I.C.JReports1982. pp.58-59. para.69.
" I.C.JReports 1969, p.32para.46: I.C.Reports 1982, pp.46-47para.44.
" ConodionCounier-Memoriol,pp.230-242,paras.555-578.
" I.C.JReports 1982, pp.48-49. para.48.1261 REPLYOF CANADA 23
criteria in Article 76 of the convention are no longer a matter of contro-

versy, and the use of the distance principle in the definition of continen-
tal shelf rights has been widelyaccepted -and accepted by Canada and
the United States in particular. Moreover, the new doctrine of the exclu-
sive economic zone, governed solely by the common denominator of the
distance principle, comprises the seabed and the subsoil within 200 miles
of the coast in its integrated j~irisdiction~~.

65. The United States Counter-Memorial argues that the dis-

tance principle applies only to the outer limit of coastal State jurisdic-
tion. It insists that distance "is associated with title under international
law rather than with delimitationZ9",as if the two could be so easily dis-
sociated in the context of a delimitation to be carried out in accordance
with legal principles and rules. In this, the United States simply disre-
gards both the principles of thc North Sea Conrinenral Shelf~ases'~ and

the passages in the Tnnisia-Libya Conrinenral Shelf case3'in which the
Court discussed the general besis of title as a question relevant to delimi-
tation, as well as the potential relevance of the distance principle. If the
application of equitable principles is to remain within a genuinely legal
framework, there cannot be a divorce between the basis of title and the
rules of delimitation.

66. The distance principle strengthens the role of relative prox-
imity to the coast as a factor in the law of delimitation. The central rul-

ing of the Court in the North Sea Continental Shelf cases was that
where natural prolongation w:is the sole basis of title. each party should
receive "as much as possible" of its natural prolongation without
encroachment on that of another State'2. The same general approach can
easily be transposed, and far more easily applied, to maritime zones
where distance from the coast serves as the basis of title. In these situa-

tions, each party should generally receive as much as possible of ils 200-
mile entitlement without encroachment on the corresponding entitlement
of the other party. The equidistance method most precisely reflects this
requirement.

67. As was stated in the Canadian Counter-Memorial. proximity
is a factor and not a method": but it is a factor that is most aptly served
by equidistance in a broad variety of geographical situations. In this
regard, where the application of equidistance is geographically appropri-

laThe UnitedStatcs acceptedthe 200-milecriterianin relationta the seabedin Prcsident
Reagan'srecentproclamationon the exclusiveeconamiczoneofthe UnitedStates. For
the tex1al this proclamationsee Canadion Counier-Mernorial.Annexes. Vol. IV.
Annex 1.
UniredSloresCounler-MernoNol.pp. 140-141.para.205.
'OSeediscussionin paras.58-61

''I.C.J. Rrporrs1982,pp.45-49, parar~42-48.
I.C.J.Reporrs1969. p. 53, para.IOl(C)(I)(disposiri~.
l1ConodionCounrer-Mernoriolp . p.231-232.para.559. 24 GULFOF MAINE t271

ate. it parallels and reflects the equality and uniformity of entitlement

that serves as the basis upon which title is defined by the distance
principle.

68. For the United States, perpendicularity is far more than a
possible method of delimitation. The central tenet of ils argument is that

the boundary mus1respect the seaward extension of the coastal fronts of
the Parties - "extension" being conceived in strictly perpendicular
terms and "coastal fronts" being defined on a continental scale.
Although perpendicularity is not a term the United States has used to
describe the seaward extension of the coasts and the legal basis of title,
the United States description of how the concept is intended to operate

shows that this is intended to be its practical effect. At the same lime,
the United States puts forward the thesis of a "natural boundary" that is
divorced from any view of the legal basis of title, including the United
States notion of perpendicularity.

1.Unliniired Perpendiculariry as the Basis ofrhe
Seaward Exrension of rhe Coasrs

69. The United States scheme of coastal fronts and perpendicular
extensions is said ta be justified by the general proposition that the
boundary should respect the relationship between the coasts of the Par-

ties and the maritime areas "in front or' those coasts". As depicted by
the United States, the extent of the maritime area "in front or' a coast
- which constitutes the seaward extension of that coast for an unlimited
distance out to sea - is defined in terms of lines perpendicular to a con-
tinentally determined general direction of the coast. The seaward exten-
sion of the coast is notonly limited to the area so defined, but is deemed

to comprise the totality of that ar~a'~.The United States theory excludes
the possibility of the seaward extension of another coast projecting into
the arca in question, no matter how long that coast may be or how much
greater ils proximily.

70. It is this conception that forms the basis of the United States
position that al1of the disputed area outside the Gulf of Maine is within
the seaward extension of Maine, and not within that of the more proxi-
mate coasts of Nova Scotia and Massachusetts. 11 is this conception,

moreover. that underlies the United States argument that the Canadian
line fails to respect the "coastal fronts" of the Parties and, more specifi-
cally, that it cuts off the "seaward extension" of Maine and New Hamp-
shire16.Although the United States denies any connection between title

Y UniredSioies Counrer-Mennorial.pp. 183-1paras.291-302.
@ '5UniredSrarer Counier-M~moriol.pp. 183.189. paras.292-Figure23.

" UnitedSioirs Counier-Mernoriapp.184-189,paras.296-298. 12x1 REPLY OF CANADA 25
and delimitation, its notion of the perpendicular extension of a coastal

front serves as a substitute for the basis of title in the United States sys-
tem. The approach is unsoiind for a number of reasons, especially
because of its purely geometrical character, which disregards geograph-
ical realities by eliminating considerations of scale, relative proximity
and the actual configuration of the coast.

71. The Court never used the expression "in front of' the coast.
on which the United States builds so much of its argument, as a descrip-
tion of the general basis of appurtenance. The phrase occurs in the pas-
sage of the North Sea Continrnral Shel/cases that dealt with the cut-off
effect". When the Court noted that there are situations where equidis-

tance would cause the line to "swing out laterally" across another State's
coastal front, it clearly had in mind adjacent coasts in an essentially lat-
eral alignment. Closeness ta the coast was an essential element of the
Court's description of the cut-off effect, evident both in the language
used - "areas situated directly before that front", "zones situéesjuste .
devant sa façade maritime'8" -and in the cross-reference to paragraph
8 of the judgment, where the Court had emphasized the relatively short

distance from the German coast at which the two equidistance lines con-
verged3'. [Italics added.] The phrase "in front of' is one of a number
whose use in the development of the continental shelf doctrine had been
.. noted by the Court, which observed that al1 of them were terms "of a
somewhat imprecise character", . with "considerable fluid'ity of
meaningq". Neither the phrase itself, nor any other connoting the idea
of a perpendicular extension, is found in the dispositifor in the summary
of basic principles in paragraph 85 of the judgment. The United States

has built its entire conception of entitlement upon a single phrase, taken
out of its legal and geographical context and transformed from a vague
description of physical location into a complete ideology of maritime
boundary delimitation.

72. The Court spoke of the "extension" or continuation of the
land territory under the sea in the context of natural prolongation". It
did not equate this principle with the idea of a perpendicular extension
of coastal fronts or suggest that any single geometrical formulation of
the principle would have a general validity, or even be possible. Where
the coasts are laterally aligned, a scheme of perpendicularity often serves

as an accurate depiction of the seaward extensions of the coast. How-
ever, where the geography is irregular, with rounded configurations and
multiple changes in the direction of the coast, this approach mistakes
form for substance4'.

" I.C.J. Reports1969p. 31, para. 44.
" I.C.J. Reports1969pp. 31-32. para.44.

I9I.C.J. Reports1969pp. 17-18. para.8.
'I.C.J.Reports1969. p. 30. para. 41
" I.C.J. Reports1969p. 31. para.43.
" Anglo-FrenchContinen~olShe~award. p. 110, para.234. 26 GULF OF MAINE 129-301

73. Where the dis!ance principle is the basis of title, as in the
present case, the inappropriateness of the United States conception
becomes most obvious and pronounced. The most fundamental charac-
teristic of the distance principle is that the maritime zone of a coastal
State extends outward in every direction within the prescribed distance
from the coast. This forms the basis of what Canada referred to in its
Counter-Memorial as the radial projection of the coasts4'.In this frame-

work. no single direction is legally preferred. The United States version
of the seaward extension of the coasts cannot be reconciled with the
distance principle as a basis of title,cause il implies that an extension
at right angles to a continentally determined coastal front is legally
preferred to an extension in any other direction.

74. When the land boundary is situated in a deep coastal con-
cavity, the conception of a seaward extension based on perpendicularity
is almost always inappropriate, whatever the basis of title. This is
because the oppositeness implied by this configuration creates converg-
ing frontal extensions within the concavity, stating rather than solving

the problem of delimitation within that area. When the perpendicular
extensions emerge from the zone of convergence created by the con-
cavity, they almost always lie off another coast that is quite distinct
from, and far closer than, the coastal front that is alleged to generate the
@ extension [Figure Il. The logic of a scheme of appurtenance that sys-
tematically attaches a maritime area to the more distant coast (often far
more distant) is manifestly unsound. It detaches the delimitation of the
seaward areas from the coasts that actually abut those areas, and

accordingly it violates the basis of title either within a framework of
natural prolongation or under the distance principle.

75. These difficulties are clearly apparent in the manner in which
the United States has applied its scheme to the Gulf of Maine area.
@ Figure 31 of its Memorial, which has resurfaced as Figure 23 of its
Counter-Memorial. shows the absurdities and inequities that result from
the United States conception of the seaward extension of the coast. At
its greatest extension, the arrow that describes the projection of eastern
Maine is almost lwice asfar from the coast of Maine as from that of
Nova Scotia. The colour-coding (pink for the United States and blue for

Canada) helps to illustrate the unsoundness of this interpretation of
geography. The United States scheme places the Canadian territorial
sea a few miles off Cape Sable within the United States extension
(pink), even though these waters are not only Canadian but also over
100 nautical miles from the United States: and it must produce this
result if a scheme of perpendicularity is to be maintained in thisornplex
geographical situation. The United States is forced to this extreme posi-
tion for the simple reason that once the Canadian coast is allowed to

begin projecting in the direction of Georges Bank, there is no conceivable
reason why it should not project as far in that direction as the corre-
spondinr-.ortionsof the United States coast.
'3ConGdion Counfer-Mernoriapp. 62-63, paras. 151-152;pp. 233-237, Paras. 564-568:
@@) Figures15and 41 1311 REPLY ofCANADA 27

76. The United States contention that Maine and New Hamp-
shire are entitled to a perpendicular extension "seaward to the limits of
coastal-State jurisdiction"" is therefore unfounded in law. The claim
fails in the light of the greater proximity of Nova Scotia in much of the
area in question. It also fails, of coursc, because Maine and New Hamp-
shire are not independent States, and there is no basis in international

law for attributing particular erititlemznts to the political subdivisions of
a sovereign State. The United States proposition, in any event, is a vari-
ant of the "sector" theory advanced in the North Sea Conlinenta1Shelf
case^'^,in the sense that it implies a guaranteed extension to a given
point on the map for the coasts of both Maine-New Hampshire and
Massachusetts, whatever the geographical and other circumstances. That
theory depended on the doctrine of the just and equitable share, and
was. of coursc, rejected by the Court.

77. But the repeated suggestion in the United States Counter-
Memorial that Canada seeks to deny a seaward extension to the coasts

of Maine and New Hampshire is clearly misleading. On the contrary,
the Canadian claim accords these coasts an ample seaward extension,
comprising a greater area within the Gulf of Maine than is left to
@ Canadaa6. Indeed, paragraph 355 and Figure 35 will show that the argu-
ment that the Maine and New Hampshire coasts are being wrongly
denied their seaward extension is inconsistent with the position of the
United States throughout the course of the dispute until the Memorials
were filed in September 1982. What Canada contests is not that the

coasts of Maine and New Hampshire should have a full seaward exten-
sion; itis the entirely different proposition that these coasts should have
an unlimited seaward extension, based on perpendicularity, into areas
that are closer and much more closely related to the Nova Scotia
landmass.

78. Perpendicularity, in Canada's view, has never been and is not
now a basis of title. The appropriateness of its use, either as a method of
delimitation or as a mode of conceptualizing the geography, is wholly
dependent on the geographical circumstances of the relevant area. If the
perpendicular extension of coastal fronts were a basic principle of .

appurtenance, as the United States suggests, perpendicularity would
necessarily acquire a special status as a method of delimitation; for only
in this way could the scheme of perpendicular extensions envisaged by
the United States be respected. The net result would be the creation of a
"perpendicularity-cs icumcstances" rule to serve in the place of the
equidistance-special circumstances rule heretofore known to the law. The
Canadian Counter-Memorial h:is shown that there is no basis in the law

or in State practice for such a view, and that perpendicularity is in fact
an infrequent method of delimiting offshore areas4'.
-
UniiedSioresCounrer-Memoriol,p189.para298.
" I.C.J. Reports 1969, pp. 20-23, paras.15-20.
'6CanodinnMemorial, p153, foatnote8SecalsoReply,Chap. VIfwtnate 23.
" ConodinnCounier-Memoriol,pp265-273, paras.633-644.28 GULFOF MAINE

79. The plain fact is that a scheme of perpendicularity cannot be
applied to an area wherc two of the relevant coasts (forming part of a
scries) are virtually at right angles to each other. The position of Nova

Scotia, as well as ils importance and estent, therefore rule out this
approach ab inirio in the Gulf of Maine area. This insuperable difficuliy
requires the United States to improvise a whole series of make-shift con-
trivances in an effort to keep its basic scheme intact. Firsr, the reliance
on macrogeography is essential if the configuration of Nova Scotia is to
be dcprived of its normal and proper effect. Secondly, the terminal point
of the cxisting international boundary must influence the course of the

entire maritime boundary - not in spite of the fact that it lies well to
the north of the Nova Scotia landmass and therefore fails to reflect the
position and importance of that area, but precisely becairseof that fact.
Thirdly. the southwest coast of Nova Scotia mus1 be reduced to the sta-
tus of a "secondary" coast for exactly the same reason. All of these
devices are essential if the coasts of the Parties are to bc depicted as

laterally aligned, adjacent coasts of a configuration where a scheme of
perpendicularity could plausibly be applied either as a basis of appurte-
nance or as a method of delimitation. Al1 of them have as their single
purpose the elimination of the effect of the Nova Scotia coasts that abut
the relevant area. The entire structure of the United States argument, in
short, is aimed at rehshioning the geography of the relevant area.

2. The Mj~rhojihe "Nafural Boundary"

80. The United States alleges that the Northeast Channel "helps
to create and to define a natural boundary" in the Gulf of Maine areaa8.
Canada has alrcady demonsiraled rhat there is no scientific basis for this
argument4*,and paragraphs 162 to 200 of the present Reply provide fur-
ther evidence to this effect. The issue addressed here is the relationship

between the United States theory and the legal basis of title.

81. Canada's position on the concept of the "natural boundary"
as a matter of law is set out in the Canadian MemorialsDand Counter-
Memorials'. It need only be noted here that a "natural boundary" was at
least a hypothetical possibility when natural prolongation represented the
legal basis of title. in circumstances where the delimitation of the conti-
nental shelf involvedan area that exhibited "such a marked disruption or
discontinuance of the sea-bed as to constitute an indisputable indication

of the limits of two separate continental shelves, or two separate natural
prolongationss2". In the present case, the Parties agree that the seabed in
the Gulf of Maine area is part of a single, continuous continental shelf:

Unired SroresCounlcr-Mernoriol, p198and 203.para.315.

''Annexes.Vol. 1.r-M~moriol. pp68-99,paras.168-245 ;onadion Counrrr-Mcmorial.

" Canadion Mernorialpp.130-131 paras.306-310 ;.183,para.428(d).
" Canodian Counrer-Mernorial. p221-225,paras.529-538.
" I.C.J. Repar1982, p.57.para.66.1331 REPLYOF CANADA 29

in othcr words, that there is no "natural boundary" dividing two scpa-
rate natural prolongationsi3.This fact alone is sufficient to disposc of the
United Statcs thesis.

82. In addition, however, it must again be emphasized that the
boundary in this case is a single maritime boundary dividing, in effect,
the 200-mile exclusive cconomic zones of the Parties. In these circum-
stances, a "natural boundary" becomes an even more implausiblc

concept in bath fact and law: for such a boundary would have to be
"natural",flrsr, in tcrms of the seabed - which the Parties agree it is
not - and secondly, in tcrms of the water column as wcll, in complete
dcfiance of the essential continuity that characterizcs ocean systcms.
Thirdlj', such a boundary would also have to takc account of the dis-
tance principle as the legal basis of title, which it clearly cannot do. And

fourih(v, it would have to be consistent with an equitable result, whereas
in fact it has been advanced to produce a result as far removed from
equity as possible.

83. The concept of the natural boundary has fared poorly both in
the jurisprudence respecting the continental shelf and in Statc practice.
The Norwegian Trough was igiiored in cstablishing maritime boundarics
in the North Sea. The Anglo-i'rench Conrinrnral Sheyaward held that
the Hurd Dcep-Hurd Deep Fault zone was simply "a fact of nature"; its
use for purposes of delimitation !'would run counier to the whole tcnd-

ency of Statc practice on the continental shclf in recent years5'". In the
Tunisia-Libya Confinental Sheff case, both parties founded their respec-
tive positions on the physical characteristics of the seabed and subsoil;
and both positions werecmphatically rejected by the CourtSJ.

84. The judgmcnt in the Tunisia-Lihya Continental Sheif case
noted the possibility - but only as a hypothetical possibility - that a
structure not amounting to an interruption of thc shclf might in certain
circumstances be takcn into account in determining the course of a con-
tinental shelf bo~ndary'~.It made clear, howcver, that the appropriate-

ncss of such use would bc wholly dependent upon whether the result so
obtained was in itself equitable. A gcomorphological featurc could figure
only "as onc of several circumst;inces considered to be the elemcnts of an
cquitable solutions"'; in other words, as a means and not as an end in
itself. This, in the final analysis, is the fatal flaw in the United Statcs
proposal that the Northe;ist Ch;inncl should function as a natural bound-
ary. The solution is utterly devoid of equity. It disregards both the

rslationship of the offshore area to the coastal gcography. and thus
the maxim that the land dominates the sea, and the othcr relevant

" CanodianCounier-Memariol, p. 27. para. 60.
" Angle-French ConrinenrolSh~l/award,p.63.para. 107.
" I.C.J. Reports1982pp.53-54.para.61:p. 58. para67-68
" I.C.J. Reporis1982p.58. para68: p.64.para.80.
" I.C.J. Reporis1982.p. 5pars.68.30 GULF OF MAINE i341

circumstances that must tie taken into account as the elements of an
equitable solution. The United States concept must fail because it is nei-
ther an equitable principle nor a manifestation of the legal basis of title.

Section III. The Parties Disagree on the Need for Legal Criteria

for the Identificationand Balancing-Upof the
Relevant Circumstances

85. The surest guide to the right solution in law, to the extent
that the law itself fails to spell out the answer in precise and detailed
terms, lies in the object and purpose of the legal rule or régimethat gov-

erns the case. The notion of equitable principles is especially closely
associated with the goal of fidelity to the object and purpose of the
régime. ProfessorReuter has identified a respect for "la finalité", the
object and purpose of a legal rule, as one of the principal ways in which
equity makes its presence felt in international la^'^.Similarly, the law of
treaties requires the object and purpose of a treaty to be taken into
account in its intqrpretation. For Canada, accordingly, the relevant

circumstances in the present case must be associated with the subject
matter of the zones Io be delimited. The United States, on the other
hand, offers no legal criteria of relevance and puts forward a claim of
"dominance" based on extraneous State activities.

1.An Esrahlished DependenceLinking the Adjacent Coasts ro rhe
Fisheries of rhe Relevant Area

86. The Canadian Counter-Memorial has shown that the develop-

ment of international law respecting 200-mile fishing zones or exclusive
economic zones was associated from the outset with a single dominant
purpose5'.This purpose is an economic one, based upon a recognition of
the special dependence of coastal States upon the resources of their
coasts, and its main object is to secure for present and future generations
of coastal State populations the primary benefit of the maritime
resources of their adjacent waters. The progress of the international

negotiations and State practice that led to this recognition was accom-
panied and encouraged by the jurisprudence of the Court. The Fisheries
case, and to a far greater extent the Fisheries Jirrisdicrioncases of 1974,
accorded legal significance to the economic dependence of coastal popu-
lations or communities upon the fisheries of their adjacent waters.

87. Although the Fisheries Jurisdicrion cases were not concerned
with delimitation as such, the determination of the Court with regard to

"P. Reuter: "Quelquesréflexions sur l'équenédroit internationaRevue belge de
droir inlernaiional. Val1980,,p. 165.186.
" Cunndian Counier-Mernorialpp.191-193 .aras460-463.1351 REPLY OF CANADA 3 1

equitable principles in those cases is directly relevant to the present case.
The Court can surely look to its judgments in closely associated fields to

determine what principles are equitable, and what solutions may prop-
erly be regarded as derived from the applicable law. Indeed, the Court
drew a parallel with the North Sea ConfinentaiShelfcases in the pas-
sage of the Fisheries Jurisdiction cases dealing with the notion of an

equitable solution derived from the applicable law60.

88. More generally, the United States discussion of the manner in
which the relevant jurisprudence has dealt with economic factors is not
only in error; at times it is wholly at odds with the language the courts
actually used. There is, for example, no evidence whatever that the refer-

ence in the North Sea Continental Shelf cases to the relevance of natu- .
ral resources "so far as known or readily ascertainable6'" was intended
to be limited to the issue of the unity of deposits, which, the Court noted,
were frequently divided in State practice6'. Similarly, the reference to

the potential relevance of the presence of oil wells in the Tunisia-Libya
Continental Shelf case is found in a passage of the judgment dealing
with economic factors6'; the context demonstrates that it was not, con-
trary to the United States contention, cited by the Court as evidence of

the conduct of the parties.

89. In the Fisheries case, the Court invoked the "vital needs" of
the population and the "reality and importance" of certain economic
interests; long usage was referred to as evidence attesting these chsrac-
teristics, and not as the essence of the interests as su~h~~F . inally, the

'I.C.J. Reporis 1974, p. 33, para. 78; p. 202, para. 69.
''I.C.J. Reports 1969. pp. 53-54, para. IOI(D)(2)(disposirifi.
" I.C.J. Reports 1969, pp. 51-52. para. 97; p. 52,'para. 99.
6'I.C.J. Reporls 1982, pp. 77-78, paras. 106-107.
" I.C.J. Reports 1951. pp. 128, 133 and 142:

"ln these barrcn regions the inhabitants of the coastal zone derive thcir liveli-
hood esseniially from fishing.
Such are the realitics which musi be bornein mind in appraising thc validiiy of
the United Kingdam contention that the limits of thc Norwegian fisheries zone
laid down in the 1935Decreearc contrary to international law.
............ ... . . ....... .. .............. . . .....,. . . . .............. ... . . . ....

Finally, there ione consideraiion no1 to bc overlookcd, the scopc of which
extcnds beyond purely geographic factors: that of certain economie inreresrs peeu-
lior 10 a region. the reolily ond imporronee of whiare clearly evidenced by a
long usage.[Ilalicodded.)

Such rights. founded an the vital needs of the population and attestcd by very
ancien1 and peaceful usage. may legitirnately be iaken in10account in drawing a
line which, moreove!, appears to the Court to have been kepi within the baunds af
what is moderate and reasonable."

For discussionsof economic dependence as an equitable principsec:C. Wilfred Jenks:
The Prospecls of Inlern~lional Adjudieolion. London. Oceana Publications, 1965,
pp.327-328; V. D. Degan: L'Equiréel le Droit inlernarionol. La Haye, Martinus Nijh-
off, 1970.p. 225: S. Rosenne: TheLoy and Procrice of rhe lnrernarionol Court. Ley-
den,A. W. Sijthoff, 1965, Val. 2. pp. 605-606.32 GULF OF MAINE 1361

importance which the Grisbadarna award accorded to economic depend-
ence upon the fishing banks in question is surely manifest, contrary to
the view held bythe United States: the tribunal expressly.referred to the
"grearer imporrance" of the fishery to the Swedish inhabitants of
Koster6'. Indeed, a well-known study based upon a broad survey of

adjudications and arbitrations dealing with boundaries, both maritime
and terrestrial. has concluded that established economic interests have
dominated the general international law of maritime claims, and that
"[alctual exploitation of the resources of ttie disputed area is probably
the most decisive considerationM".

90. Canada attaches importance to a specific category of eco-
nomic circumstances in the present case: the established economic

dependence of the inhabitants of the geographically adjacent coasts upon
the resources of the relevant area. Canada does not rely on extraneous
considerations of relative national wealth or poverty (although such con-
siderations are often implicit in the evidence adduced by the United
States6'); nor does it rely upon prospective or contingent economic inter-
ests similar to those that might be represented by a hydrocarbon discov-

ery in the context of a case centred on the continental shelf.

91. The issue here is economic dependence as an established fact,
and as an expression and consequence ofrhe physical geography. This
economic dependence links the geographically adjacent coasts to
resources located squarely in the area in dispute, in contrast to the situa-
tion considered in the Tunisia-Libya Conrinenral Shelf~ase~~.In further
contrast, of course, this is a case where fishery resources are directly in

issue, and central to the dispute, and it is these resources that form the
basis of the economic dependence invoked by Canada. Il is a known
dependence upon the known resources of the disputed area; and the
jurisprudence has recognized the relevance to delimitation of the natural
resources of the area, "so Faras known or readily ascertainable".

92. In sum, the attempt by the United States to exclude the con-
temporary fishery from the relevant circumstances is not supported by

the jurisprudence. Nor can it be reconciled with the object and purpose
of the new régimeto be delimited by the single maritime boundary.

2. Srare Conducr Direcrly Associared wirh the Righrs
and Jurisdiction in Issue

93. The Tunisia-Libya Confinenfa1 Shelj case stressed the
importance of equitable considerations arising during the history of the

J.B. Scott. cd.: THague Court Reports.New York.OxfordUniversityPress, 1916.
p.131.
"A. L. W. Munkman:"Adjudication and Adjustrnent- InternationalJudicialDecision
and the.Settlcmcntof Territorial andBoundaryDisputesThe Brifirh Yenr Book oj
Infernofional Law.Vol. 46, 1972.1973, plot. Reply. Annexes.Vol. 11,Part IV.
Anncx 2.
''CanodionCounier-hfemoriol,pp. 115-118.par&.286-294.
' CanadionMemoriol. pp. 132-134,paras.313-319.i371 REPLYOF CANADA 33

dispute and in the course of events leading up to the dispute", Indeed,
the two paragraphs of the disposiiifdealing with the inner sector of the

boundary make it clear that the conduct of the parties was the decisive
consideration for that portion of the delimitati~n'~. This was so even
though the Court emphasized that it had not made a finding of an agree-
ment - even a tacit agreement - or a ruling based on estoppel or a
similar ground. Rather, the Court saw in the relevant conduct of the

parties an indication of what the parties themselves might have con-
sidered an equitable result during the course of the evolution of the
dispute7'.

94. Against this background, the United States contention that
the 1979 Agreement on East Coast Fishery Resources is irrelevant and
inadmissible because it was ultimately left unratified by the United
States Senate'? seems to miss the point altogether. The significance of
the agreement is obviously not that it is or may yet become a treaty in
force. Rather, ils negotiation constitutes both evidence and a recognition

of the nature, the extent and the legitimacy of Canada's interest - con-
temporary and historical - in the fisheries of Georges Bank. What the
United States position cornes clownto is that the Court mus1 disregard
the history of the dispute. This is a novel and almost unprecedented posi-
tion that clearly runs against the grain of the jurisprudence. One part of
the history of the dispute is made inadmissible by Article V,

paragraph 1, of the Special Agreement: any proposals directed to a
maritime boundaries settlement or responses thereto. The argument that
the 1979 Agreement on East Coast Fishery Resources should also be
made inadmissible because it would "penalize the United States for
engaging in good-faith negotiations"" is a clear attempt to amend the
Special Agreement by broadening the terms of Article V.

95. That the negotiation of the 1979 fisheries agreement formed

an integral part, and indeed the central component, of the boundary
negotiations is unquestioned. The United States attempt to assimilate the
agreement - signed by the Secretary of State and strongly endorsed by
the President - to a "without prejudice" proposal in the course of
negotiations is simply a misuse of language and of legal categories.

96. The United States position on this issue is profoundly incon-
sistent with the broad - and generally excessively broad - position it
has taken on the,relevant circumstances respecting almost every other

issue. On the one hand, it holds that such extraneous issues as a wartime
operational agreement between military authorities, or cartographical
and navigational services undertaken as high seas activities long before
extended coastal State jurisdiction was even contemplated, are relevant

I.C.J.Reporrs1982, pp.70-71. paras.93-96;pp.83-84, paras.117-118.
'OI.C.J.Reporrs1982, pp.92-94.paras.133(C)(I)and 133(C)(2).
"I.C.J. Reporrs1982. p. 84,para. 118.
" UniredSrnres Counler-Memoriol. p.7, para.8; pp. 151-154,paras.225-233.

''UniredSrnrer Counrer-Memorio/. p.210. para.330.34 GuLFoFMAINE [3s1

to the equities of this dispute. On the othcr hand, it urges that a signed
agreement negotiated as an essential aspect of the same dispute, and
designed for the purpose of protecting cstablished fisheries in the dis-
puted area, is legally irrelevant and inadmissible. Ifthe history of the

dispute and the recognition of established interests are to be taken into
account, in conformity with the jurisprudence of the Court, the 1979
Agreement on East Coast Fishery Resourccs must figure as a relevant
circumstance of considerable importance.

B. THE UNITI~DSTATESCI.AIM 01'"DOMINANCE" RELIES
UPON ACTIVITIES NOT REI.ATED TO TllE OBJECT AND
PURPOSE OF TllFZONES TO BE DELIMITED

97. The United States relies upon an historical record which, in
its view. discloses a "predominant" United States interest on Georges

Bank and "cornplete dominance" over the Gulf of Maine area in general.
It attempts to sustain this assertion, on the one hand. by factual exagger-
ations and distortions and by a geographical frame of reference that
merges the entire New England coastal area with the portion of Georges
Bank claimed by Canada. On the other hand, it builds its claim of gen-

eral "dominance" by dispensing with legal criteria of relevance and
weight - by aggregating a variety of high seasactivities, extraneous by
viriue of their subjectinatter or the legal context of the era when they
look place, or both. As the Canadian Counter-Mernorial stated: "This

admixture of irrelevant areas and irrelcvant activities creates a hope-
lessly confused and distorted image of the historical record, which exag-
gerates thc United States role beyond any semblance of a~thenticity'~".

98. The Canadian Counter-Memorial and the Annexes thereto
have dealt fully with both the factual inaccuracy and the legal irrcle-
vance of rnany of the State activities invoked by the United States -

cartography and marine scientific research, navigation and defence, and
search and rescue". The United States concedes that none of these
activities can vest it with an historic title, but fails to offer a substantive
explanation of why they should be taken into account at Canada's
view, in summary form, is that they are legally irrelevant on three sepa-

rate grounds. Firsr,they look place for the most part at a time when
extcnded coastal State jurisdiction was entirely unconternplated, and the
prineiples of intertemporal law consequently rule out their consideration.
Secondij~m . ost of these activities are even today unrelated to the subject
matter of the zones to be delimited and remain in the category of high

seas freedoms that may be exercised in common with other nations.
Thirdly. they do not and cannot provide indicia of what the Parties
themselves haveconsidered an eauitable result.

" Canadian Counrer-Mernorial. p.para.359.
" Conodion Counler-Memorio/. pp. 142.187.paras.356-456

" Uniied Slores Counlcr-Mernori83.paras103-106. i391 REPLYOF CANADA 35

99. The dominance thesis fails when confronted with Canadian
continental shelf activities and the long-term oil and gas permits that

Canada alone has issued in what has become the disputed area. The
dominance thesis fails again when confronted with the modern Canadian
fishery on Georges Bank, where Canadian fishermen take almost 85 per-
cent of the total catch by value in the disputed area". Moreover,
although the Parties are deeply divided on the history of the fishery,
even the United States is prepared to recognize that the Canadian fish-
ery was established on Georges Bank "16 years" before the first bound-
ary negotiations were held in 1970, and that it became significant in

"the early 1960~'~".
100. The dominance thesis, unfounded as it is in fact, is also built

upon legal quicksand. The criteria of relevance and weight implicit in
the United States thesis are in many cases the exact opposite of what
common sense would suggest. The United States holds that contempo-
rary fishing patterns and the economic dependence associated with these
patterns are irrelevant because they might conceivably be impermanent
(although the evidence clearly shows their ~tability'~).Yet it argues at
the same lime that the obsolete fisheries of early historical limes, whose

impermanence has been a known fact for generations, are of vital impor-
tance. It submits that operational practices totally unrelated to fisheries
or to the continental shelf should be taken into account. At the same
time, however, it contends that an agreement directly related to the fish-
eries of the boundary area, :and riegotiated in contemplation of the
200-mile era, must be excluded frorn consideration. Examples such as
these underscore the vital necessity of selecting and weighing the rele-

vant circumstances in terms of the real function and purpose of the
zones to be divided by the single maritime boundary in issue.

Conclusion

101. The Canadian position is based upon equity within the law.
It takes account of the conventional law, the basis of title, and the prin-
ciple of equality within the same order, and applies them to achieve an

equitable solution in the light of the relevant circurnstances of the case.
102. The United States position, on the other hand, is a compos-

ite of improvised concepts and misconceived principles of maritime
. boundary delimitation. The United States pays no heed to the equidis-
tance-special circumstances rule of Article 6 of the Convention on the
Continental Shelf. It suggests that delimitation can be divorced from the
basis of title in international law, notwithstanding the close association
of the two issues that lies at thecore of the reasoning of the Norih Sea

'
" Conadion Counrer-Memoriol, p104.para.254;Figure27.
'Wniied SroresCounler-Mernoriol, p. 2para.322.
'eUniredSrores Counrer-Mernorial,126,paras. 163-164;pp. 136-1para. 19136 GULF OF MAINE [a]

Continental Shelfcases. Its conception of the geographical relationships
substitutes cartographical impressionism for the functionalism that char-
acterizes the nature and purpose of the maritime zones 10be delimited.

It seeks to exclude the central developments in the history of the dispute
from the relevant circumstances. despite the significance such factors
were accorded in the Tunisia-Libya Continental Shelfcase. It disagrees
with the conception of equitable principles set out in that same judg-

ment. Repeatedly, in these and other ways, the United States directly
challenges the principles of the jurisprudence and the reasoning of the
Court.

103. Beyond the many specific issues that divide the Parties there
lies a more fundamental difference of approach. If the norm of equitable
principles is to be more than "abstract justice" or equity outside the law,
these principles mus1 reflect the legal nature of the zones to be delim-
ited: their object and purpose and the basis of entitlement. The Canadian

position takes these considerations into account, while the United States
position is almost entirely divorced from them.

104. The United States appears to forget that the law of the sea
forms an integral part of the law of maritime boundary delimitation.
This is a crucial point, for the issues that divide the Parties mus1 be
examined in the light of the interna1 principles of the legal system giving

rise to the zones to be delimited, as advocated by Canada, and not, as
advocated by the United States, in the light of "principles" that are
largely external to that legal system. This donc, there can be no question
of denying the existence of Nova Scotia on macrogeographical or
geopolitical grounds; no assertion of a "natural boundary" on new-found

"ecological" grounds; no pretended right of "dominance" on the basis of
eighteenth-century cartography, or military arrangements, or coopera-
tion in search and rescue activities; and, finally, no claim to monopoly on
the basis of administrative convenience and the alleged incompatibility
of fisheries management policies. These are the untenable propositions
underlying the United States claim, as demonstrated in the Canadian

Counter-Mcmorialso. When they have been disposed of in the light of the
fundamental concepts of the applicable law, the search for an equitable
result can then proceed to the identification and balancing-up of truly
relevant circumstances.

'OCnnndian Counter-Menzoriai, p7,para. 16. whcre these untenable propositionsof the
United States areset out as follows:
"(a) that Nova Scotia does no1exist;
(b) that natureitsclf has fixed a mnritimcboundaryin thofMaine area;
(c) that thc United States ansinherentoracquircd right of 'dominance' over
the Gulfof Mainearea;
(d) that administrativeconvenience or m~nagcrialexpediency requires that al1the
resaurccof Georges Rankshauld be allocated to the United States."~411

CHAPTER II

CONTINENTALGEOGRAPHYOR THE GEOGRAPHYOF
THE GULF OF MAINE AREA

Introduction

105. The most fundamental issue that divides the Parties in
respect of the geographical circumstances is that of an appropriale geo-

graphical/ramework. Such a framework provides an indispensable crite-
rion for distinguishing between relevant and irrelevant circurnstances, as
well as for establishing the appropriate scale to assess the relative impor-
tance of geographical features, their relation to each other, and their
proportionate or disproportionate effects upon a given delimitation.

106. While the United States pleadings lack an appropriate and
consistent geographical framework, the entire structure of the United
States argument rests on the implicit assumption that the North Ameri-
can continent is the geographical framework for the case. This permits

the United States io shift the various "relevant areas" it uses to identify
the geographical and other relevant circumstances, adjusting the limits
of each area with a view tu producing the desired result.

107. This rnacrogeographical approach is devoid of any legal
basis. In the framework of the Gulf of Maine area it is readily apparent

that the general direction of the land boundary is north-south; that the
territories of the Parties are aligned in an east-west relationship; that
both coasts undergo several changes in general direction in order to form
the deep concavity that is the Gulf of Maine'; and that there is no geo-

graphical basis for a hierarchical distinction of "primary" and
"secondary" coasts. In the framework of the Gulf of Maine area, it is
also apparent that Nova Scotia and the Bay of Fundy are major geo-
graphical features that establish the general direction of the coast on the

eastern side of the Gulf, while Cape Cod and Nantucket Island are inci-
dental special features that depart radically from the general direction of
the New England coast. Logic alone suggests that there must be a con-
siderable degree of oppositeness between the coasts that form the sides of

a deep concavity and that it is impossible to draw a perpendicular to
opposite or concave coasts.

108. The Parties agree that the Gulf of Maine area comprises
two geographical areas, divided by a hypothetical closing line between
Cape Sable and Nantucket Island. While jurisdiction over concave sea

areas is generally extended from the coasts that border these areas,

'The United States pleadingsefertu theGulf ofMaine as a "large concavity","con-
cavity"."thecoastaconcavitythat isthGulfof Maine", "deepcaastalcancavity"and
"deep caastaconcavitysuchasthe üulfof Maine". SeeUnircdSrnlesMernorial,p. 19,
para.25;p. 173,para.286:p. 174.para.290;UniredSioresCounicr-M~morial.pp. 22-
23, para.29:p. 24.para.31: p.183, para. 291p. 184.para.294: pp.226-227. para.
375; pp.261-262,para.404:p.265,para.410(a).38 GULF OF MAINE t421

jurisdiction over open sea areas is generally extended from the - often
convex - portions of the coast that abut them. The United States, how-
ever, ignores this distinction in arguing that the outer area, which liesoff
the coastal wings of the Gulf of Maine, is appurtenant to the relatively
remote coasts at the "back of the Gulfp'.

109. The United States adduces no factual evidence in support of
this contention. It relies instead on a geometrical formula and on a newly
invented distinction between "primary" and "secondary" coasts. But in

ignoring al1the evidence that shows that Georges Bank is most strongly
linked in physical and human terms to the coastal wings of Nova Scotia
and Massachusetts that abut the outer area, the United States divorces
the applicable law from the relevant facts. These facts demonstrate that
Georges Bank is geographically appurtenant to the coasts to which it is
most proximate, and that theeastern half of Georges Bank, the area
under Canadian claim, is appurtenant to the coast of Nova Scotia.

Section 1. The United States Approach Lacks an Appropriate
and Consistent Geographical Framework

110. Three major differences divide the Parties on the concept
and use of a "relevant area" in this case.

(a) Canada has identified as relevant only those geographical circum-
stances found within the Gulf of Maine area. whereas the United
States treats as relevant - and indeed as determinative -
macrogeographical factors derived from a continental framework;
(b) Canada has defined the Gulf of Maine area by reference to the Spe-

cial Agreement, to common usage, and to recognized geographical
and legal criteria, whereas the United States has defined the area by
reference to its own boundary proposal; and
(c) Canada has used the concept of the relevant area to identify the
relevant circumstances in this case, whereas the United States arbi-
trarily employs different areas to identify different categories of

allegedly relevant circumstances.

111. The United States interpretation of the geographical cir-
cumstances in this case rests on the implicit assumption that the relevant
area is the North American continent. The United States method and

line are based on the following sequence of arguments, each of which
can be explained only in terms of a continental frame of reference:
(a) that there is a single general direction of the coasts in the Gulf of
Maine area, which conforms to the general northeastern direction of
the Atlantic coast of North America from Newfoundland to Florida;

UniiedSroresCounler-Mernoriol,pp.183-184,para292;pp.261-262, para404. 40 GULF OFMAINE [A41

(which is the reason for its relegation to the status of a "secondary"
coast) is based upon a similar misconception of the relevant geography.
It appears in yet another version in the companion argument that Nova
Scotia should be discounted because its coast extends "south of the inter-

national boundary terminus7". In both cases, the point is that Nova
Scotia should be given less than full effect because ils configuration
departs from certain continental (and transcontinental) trends as viewed
by the United States. On the one hand, Nova Scotia's southerly limit is
said to offend the alleged "north-south" relationship of the Parties on a
transcontinental scale; on the other hand, the direction of its southwest

coast is said to violate the alleged general direction of the entire Atlantic
seaboard. Both arguments amount to a refusal to give effect to the geog-
raphy of the Gulf of Maine area as it actually exists, and to refashion
geography instead. The configuration of the Nova Scotia coast, which
together with the coast of southeastern New England creates the Gulf of

Maine, could only be considered "aberrant" if Nova Scotia were an inci-
dental feature. Its geographical scale alone makes nonsense of that
@ assumption [Figure31,as does the fact that its coast is a major defining
feature of the Gulf of Maine and therefore of the relevant area.

114. Every major concavity or convexity implies major changes in
the direction of the coasts. If the United States concept of "secondary"
coasts were sound, it would follow that the sides of every concavity or

convexity would have to be discounted, no matter what the scale of the
feature. The whole notion of a legal inequality in the status of coasts -
the notion of "primary" and "secondary" coasts with unequal offshore
entitlemenis - was ruled out by the principle of equality within the
same order enunciated by the Court in the Norrh Sea ContinentalShelf
casesB.

115. The United States Memorial defined the Gulf of Maine area
or the "relevant area" as the "coasts and geographical features from

Nantucket Island to Cape Canso, on boih sides of the internarional
boundary rertninus,and the marine areas seaward from these coasts
to the limits of coastal State maritime jurisdiction9". [Italics added.]
The United States confirms this definition of the "relevant area" in its
Counter-Mernorial'" but nowhere does it provide any explanation or jus-

tification for the area selected. The United States appears to assume
that this definition of the Gulf of Maine area is self-evident, even though

' UniredSiaies Mernorial.pp3-4.para.II;pp. 173-174, paras.288-289; p. 214. Sub-
missionB(l)(e)Uniied Siores Counler-Mernorial,pp3-4.para. 7; p. 24. par31;
pp.190.193 .ara301; p.270.SubmissionB(l)(e).
I.C.JReporf~1969, pp49-50.para.91.

UniiedSiores Mernoriol,19,para.25.
'WniredSrores Counier-Mernorial,p. 13,par16 andlaalnot e. 1451 REPLY OF CANADA 41

it has no basis in common usage or in recognized geographical and legal
criteria".

116. While the Parties agree that the Gulf of Maine area encom-
passes al/ the waters and coasts comprising the concavity landward of a
line between Cape Sable and Nantucket Island, including the Bay of
Fundy, they disagree as to what parts of the coasts abutting the Atlantic

Ocean on either side of the Gulf are relevant to the delimitation. Canada
treats the Gulf of Maine itself as the axis upon which the geographical
frame is balanced, and therefore regards the relevant coasts as extending
both northeast and southwest of the entrance to the Gulf. In the absence
of natural defining features, Canada uses criteria of human geography
- established fishing links to the area to be delimited - to set the
approximate limits of the relevant coasts at Lunenburg, Nova Scotia,

and Newport, Rhode Island12.
117. The United States extends the "relevant area" in one direc-

tion only, that is, along the coast of Nova Scotia to Cape Canso at the
northeastern extremity of the peninsula, some 232 nautical miles north-
east of the entrance to the Gulf of Maine at Cape Sable. While the
United States gives no explan;ition or rationale for this definition, it is
possible to infer one by examir~ingthe lateral limits of this area in con-
junction with the seaward extension of the United States boundary pro-
posai". This seaward extension is approximately midway between the
limits of the "relevant area" defined by means of lines perpendicular to

the alleged general direction of the coast and projected from Nantucket
@) Island and Cape Canso [Figur e1. The United States thus appears to
have defined the Gulf of Maine area by reference to its boundary pro-
posai, rather than by common usage and by the application of recog-
nized geographical and legal criteria to the region identified in the
Special Agreement.

118. The United States contends that the purpose of identifying a
relevant area is "to determine the circumstances that are relevant to the
delimitation". and that the identification of such an area involves a
determination of al1the geographical features that are "the situs of rele-
vant resources or activitie~'~".

119. In the process of identifying and analysing the relevant cir-
cumstances. however, the United States ignores the Nantucket Island to

" Sec ConadianCounler-Mernorial,pp. 30-33. paras.69-76.
" See ConodionMernoNol,p. 27. para.32: p. 34, para. 53; p. 36,'paras.62-63; pp. 146-
147,paras.353-354:ConadionCouirler-Mernoriap.33. paras.74-75;p. 58. para. 141.

@ l1UniredSrares Mernoriol,p. 185,para.304; Figure34.
" UniredSloies Mernoriol.p. 145. para.258. 42 GULF OFMAINE (461

Cape Canso frame of reference it has identified as the Gulf of Maine

area - "the 'relevant area' for determining the relevant circumstances
in this case""- and shifts the geographical frame of reference for each
set of circumstancesunder consideration. Thus, in determining the gen-
eral direction of the coasts, the United States takes into account the east
coast of North America from Newfoundland to FloridaI6. In determining

the direction of the land boundary and the juxtaposition of the territories
of the Parties, the United Statesocuses on a transcontinental boundary
extending 6,416 kilometres from the Atlantic to the Pacific (while ignor-
ing the boundary from the Pacific to the Arctic"). In applying the pro-
portionality test, the United States excludes the Bay of Fundy and the
coasts of Nova Scotia from Halifaxto Cape Canso, despite the fact that

these areas are specifically identified in the United States pleadings as
@ forming part of the relevant area" [Figure51.

120. In analysing the relative fishing patterns of the Parties, the
United States shifts its ground again, using for this purpose the statistics
collected for ICNAF subareas 5Y, 5Ze and 5Zw, despite the fact that
the whole of subarea 5Zw lies ourside the "relevant area" as defined by
@ the United Statesi9 [Figure 51. At the same time, the United States

excludes fishery statistics from ICNAF subareas 4X and 4W which lie
immediately offthe Nova Scotia coast. despite the fact that the whole of
4X and 96 percent of 4W are within the "relevant area" as defined by
the United States.

121. In assessing the relative performance of the Parties in ini-
tiating fisheries conservation and management measures within ICNAF,
the United States shifts its ground yet again, using for this purpose

ICNAF subareas 5Y. 5Ze, 5Zw, 6A. 6B and 6C, stretching from south
@ of Cape Hatteras to the eastern end of Georges Bankzo[Figure 51.But
again the United States excludes subareas 4X and 4W.

122. The same arbitrary and shifting geographical frame of refer-
ence is apparent in the United States identification and assessment of
other allegedly relevant circumstances. This "gerrymandering" shows
that the United States has no geographical framework for its assessment

of the relevant circumstances in this case. The Gulf of Maine area or

" Memorialp. 13,para.16and lootnote 2.and footn2:Unircd Sioies Counrer-

UniredSroresMemori~lpp. 11-12. para. 21 and p. II. footnote 2; p. 170, para. 283
@ and lootnote 7; FiguUniredSroresCounier-Mernorip. 17, para. 20 and fwt-
@ note1;Figure3.
" UniiedSroresMernorip.II,para.20.
"Unired SioiesMemoriop. 19. para.25; pp. 192-201, paras.312-313; p. 201. fwtnote
@@ 1; Figures 34 andUniied SroresCounrer-Memoripp. 196-197. paras. 309-311;
@O Figures24 and 25.
IPUnircdSlarehl&oNo/, pp. 49-50, para. 81; p. 54, TableA and footnote 2; p. 55,
paras.84-8UnitedSraresCounler-Mernorp. 55. Table A. p. 71, Table B.
'OUnitedSrorer Counrer-Mernorial,ICAnnex,Vol. IIAnnex3. p. 22. paras. 30
and32;pp.31-32, para.54;p. 34. paras.60-62 andTable A: p. 37. para.72. (471 REPLYOF CANADA 43

formal "relevant area" is extended northeastwards along the coast of
Nova Scotia - well beyond the limits of any reasonable definition -
but truncated to the southwest at Nantucket Island. The United States
thus excludes the Atlantic-facing coasts of Massachusetts and Rhode
Island [rom the relevant area, despite the fact that, as the United States
is at pains to point out, these areas have a long-established relationship

with the fishery resources of Cieorges Bank2'. But when the object is to
demonstrate the "dominance" or "predominant interest" of the United
States, the statistical balance is weighted in favour of the United States
by shifting the "Gulf of Maine area" southwestward to beyond Cape
Hatteras, and excluding the area to the east of Georges Bank.

123. Finally, disregardiiig the existence of the Great South Chan-
nel, as well as every geographical and scientific definition of Georges

,Bank, the United States defines this Bank as extending eastward from
Nantucket Shoals". By placing the limits of the Gulf of Maine area far
to the northeast, while extending the definition of Georges Bank to the
southwest, the United States manages to situate the geographical feature
that constitutes the object of the dispute at the southwestern extremity

of the "relevant area".

Section II. The United States Attempt to Refashion Geography Fails
in the Legally Relevant Framework of the Gulf of Maine Area

A. IN RECOGNIZINT GHAT THE GULF OF MAINE1s A DEEPCONCAVITY.
THE UNITEDSTATES INVALIDATE ISSASSERTION THAT THE GENERAL

CONFIGURATION OF THE COASTS 1sA STRAIGHT LINE

124. A geographical circumstance of fundamental importance in
the United States Memorial, constituting the essential basis and
rationale for the United States method and line, is that the general
direction of the coasts of the Parties in the Gulf of Maine area followsa
straight line. The United States alleges in ils Submissions that this is the

general direction of the coasts "both within the Gulf of Maine and sea-
ward of the GulfJ".

125. Although the Submissions in the United States Counter-
Memorial continue to adhere t« the contention that the general direction
of the coasts follows a straight line- or, more precisely, a series of a
parallel lines - the United States Counter-Memorial nevertheless
adopts a fundamentally different view of the general direction of the

coasts in the Gulf of Maine area. The straight coast has al1but vanished

"UniredStores Mernoriapp. 41-46paras.60-77;UniredSloier MernoriDocurnen-
rory Annexes.Vol. IIAnnexes 12-14and 17-19; United Siores Counier-Mernorial.
p.25.para.34.
UniredSioies Mernorinp. 23para32.

'lUnired Sioies MernoNolp. 213. SubrnissionB(l)(b);Ufiiied Siares Counrer-
Mernorinlp.270.Subrnission(l)(b). 44 GULFOFMAINE [48-491

and in its place has appeared a "deep concavity" with a semi-circular

general coniiguration2'. This focus on the semi-circular concavity is rein-
forced by the extensive reliance upon analogies to the North Sea and the
Bay of Biscay, neither of which could conceivably be represented as hav-
ing a single coastal direction. The change in the United States view of
the general configuration of the coasts could hardly be more fundamen-

tal, for the United States has moved from the position that the general
coastal configuration iollows a straight line - that it never changes
direction - to the position that it is semi-circular - that itconstantly
changes direction.

126. The geographical conception revealed in the semi-circular
model is simplified by omitting important features and areas recognized
by both Parties as iorming part of the Gulf of Maine area. This simpli-

fied model presented by the United States, nevertheless, provides a use-
ful test for assessing the relisonableness of the United States boundary
proposal. Figure 6 dcmonstrates the unreasonableness of the result
achieved by such a line in the area within the Gulf.

B.TIIEREI.ATIONSIII OF THE COASTS 1sPREDOMINANTO LYPPOSITE

127. Although the United States places great emphasis on the
fact that the Gulf of Maine is a déepconcavity bordered by Canada and
the United States, it continues to insist that the Parties have adjacent
coasts in the Gulf of Maine area. This analysis defies the rules of logic
and of nature, for every concavity implies some degree of oppositeness

between the coasts that form ils sides. The United States position rests
largely on a selective analysis of the conrinenralrelotionshipof the rwo
S~ares'~ ;ut, as the jurisprudence makes clear, it is "the actual relation
of the two coasts IO [the] particular area" to be delimited that is
materialZ6.

128. The contention in the United States Counter-Memorial that
the coasts within the Gulf are adjacent rests on two propositions: first,

that the Parties share a common land boundary along a relatively
straight coast, and secondly, that the coasts of Nova Scotia and Maine
are adjacent because thcy are "not opposite each other2'". The second

"UniredStoresCounter-Mernorial,pp.22-23, para. 29; p. 24, paraand footnote1:
pp. 226.227 .ara375: p. 183.para. 291; p. 184, p294;p.189.para. 297; pp261-
- 262, paras403-404 ;igure21.
"United StoresMernoriolp.169.paras.280-281.
"Anglo-FrenchContinenrnSl hcljaward.pp.112-113.para240.
" UniredSrorerCounrer-Mernorialp. 21. par26:

"States that share a commonland boundaralonga relativestraight coastlinc.
suchas that crtcnding in the intareafrom CapeAnn to the Chignccto Isth-
mus.arc adjacentStatcr. Morcavccvcn thoughthe southwestern-facingcoastof
theNova Scotia pcninsulais aligncdat virtually a right angle ta of thc1
arc notoppasitccachathcr."onin the inaraiir still adjacrincethosecoasts150-511 REPLYOF CANADA 45

statement is sirnply a tautology and adds nothing to the argumenti8. The
first statement ignores the existence of Nova Scotia, but the United

States Memorial has already recognized that the coast of Nova Scotia
lies opposite the coasts of both Maine and Massachusetts in acknowledg-
ing "[tlhe location of the Nova Scotia peninsula opposite the interna-
tional boundary terminus and the curvature of the New England
coa~t'~".[Italics added.]

129. There are two fundamental naws in the treatment of oppo-
siteness and adjacency in the United States Counter-Memorial. First, it

examines only the relationship of the coasts of New Brunswick and Nova
Scotia to the coast of Maine, omitting any analysis of the relationship
between the coasts of Nova Scotia and Massachusetts which, of course,
is perfectly opposite. Secondly, the United States examines only the rela-
tion of the coasts ro each other, rather than the relation of the coasts to

each other vis-à-vis ihe area io be delimiied. The relation of the coasts
to each other, divorced from their relation to the area to be delimited, is
of little legal or practical significance to the question of delimitation. To
illustrate this point, it is only necessary to examine the geographical sit-
uation in the Atlantic region in the Anglo-French Confinental Shelf
award. The coasts of Finistère and Cornwall are obviously opposite each

other. But, as the Court of Arbitration pointed out, it is not their rela-
tion to each other that is material, but rather their "geographical rcla-
tion to each other vis-à-vis the continental shelf to be delirnit~d'~".
Thus, in a statement cited in the United States Counter-Mernorial. the
Court of Arbitration noted that in the Atlantic region the geographical

situation is one of two coasts that are laterally related vis-$-vis the
"continental shelf which extends from them a greai distance seawards
into the Atlantic Ocean"". [Italics added.] The Court of Arbitration did
not suggest that the coasts of Finistèreand Cornwall are laterally related
vis-à-vis the shelf directly between them, or vis-à-vis that part of the

Atlantic region lying a relatively short distance seaward.
130. In the Canadian Counter-Mernorial's mathematical analysis

of the opposite or adjacent relationship of two coasts relative to a sea
area that lies off rather than between them, it was pointed out that
"[tlhe further out to se;^one moves the point frorn which the relative
angle [to the two coasts] is subtended, the more acute the angle and the
more the element of adjacency predominate~'~". This point may be

'"he statementthat the caast of southwestNova Scotia is at a rigtothe coastof
Maineconveys an incornpletepictureof geography.While the Nova Scotia coast from
Digby to Yarmouthhas the gcneralconfiguratioanfarc, ils generaliirectian may be
rcprescnted in simplified form by a straight line fram Digby ta Yarmout(or
Cape Forchu). Such a line haa predominantlyopposite rclationship withany line
representingthe generaldirectionof thecoast ofeasternMaine.
UniredSfofes Memoriol,p. 174. para.290.
'oAnglo-French ConrinenlalSheljaward, p. 110,pa233.
"Anglo-FrenchConfinencalSheljaward, p.113,para.241.
'CanodionCounrer-Memoriol,p. 48,para. 112;Figur10. 46 GULF OFMAINE 1521

demonstrated by the application of the mathematical analysis to the
Atlantic region off the United Kingdom and France. It can be seen in

@ Figiire 7 that the element of adjacency predominates in the greater part
of the Atlantic region discussed in theAnglo-French CottiinetitaShel/
award, where the continental shelf extends "a great distance seawards"

from the coasts.

131. The application of the mathematical model to the basepoints
used to determine the Canadian equidistance line in the Gulf of Maine
area shows that the relationship of the coasts (on whichthese basepoints

are situated)10 each other vis-à-visthearea IO be delimiied is predomi-
@ nantly opposite throughout most of the boundary area [Figure 81. It is
for this reason that the United States objection that an equidistance line
may become incquitable as the boundary is extended seaward" is not

applicable here. In situations of adjacency, where a single basepoint con-
trols the course of the line bath in areas close to shore and far out to sea.
the effect of a geographical feature, though initially proportionate, is

progressively magnified as the line moves seaward. This does not arise in
situations exhibiting a substantial degree of oppositeness. where a
sequenceof basepoints systematically reflects the changing configuration
of the Coast. It is not even remotely evident in the Gulf of Maine area,

where a progression of basepoints controls the line, and whek the base-
points used in the Georges Bank area are 119 nautical miles from each
of two opposirr coasts at the point where they first take effect. There is

no question here of a progressive magnification of a feature that first
excrts its effect in an area closc to shore.

C. CAPE CODANI>NANTUCKETARE INCII>INTALSPECIAI.FEATURES,
ABERRANT TO THE GENERA DIlRECTl0N 01: TI1COAST

132. The United States Counter-Memorial argues that Cape
Cod, Nantucket Island and Martha's Vineyard "have played important

roles in the history of the United States" and "have a long and historic
association with Georges Bank3'". This contention is supported, inrrr
alia.by the following factual assertions:

"The Pilgrims. regarded as New England's first permanent Euro-

pean settlers. landed on Cape Cod near Provincetown, before even-
tualiy settling at Plymouth. Nantucket Island was once the center of
the world-wide whaling industry. Provincetown, at the tip of Cape
Cod, was one of the leading fishing ports in Massachusetts during

the 19th cent~ry'~."

" Unircd Siaies Mcmoriolpp.150 and 159. para.271: Figure25: Uniied Srores
@ Counrer-Memoriolp.184.para. 294: p. para.400.

Y Unirt-dSrarer Counlcr-Memorio/. para.34.
" Uniied Sioies Counler-Memorio/. laatnatc1.i531 REPLY OF CANADA 47

133. Canada does not dispute the accuracy of these assertions;
but they have nothing to do with the delimitation of the continental shelf
or 200-mile fishing zone (or exclusive economic zone) in the present
case. As Canada has demonstrated elsewhere, it is the contemporary
rather than the long-past history of the fishery that is relevant to the

determination of a single maritime b~undary'~.The United States makes
no assertions and presents no evidence concerning the presenr association
of Cape Cod and Nantucket with Georges Bank. Canada, for its part,
reaffirms that "fishing from Cape Cod ports on the eastern part of
Georges Bank - the area under Canadian claim - has been spor~dic

and is insignificant in the economy of Cape Cod"". More generally,
whatever may have been the situation during the nineteenth century, the
association of Cape Cod and Nantucket with Georges Bank in modern
times has been

134. The United States does not address the real issue: the pro-
portionatc or disproportionate effect of Cape Cod and Nantucket upon

the course of an cquidistance line. It complains that "Canada's line pre-
tends that Cape Cod, Nantucket Island, and Martha's Vineyard do not
existJ9"and then seeks to obscure the issue by engaging in inappropriate
and misleading comparisons between Cape Cod and Nova Scotia4". lt
argues that "Cape Cod has less effect on an equidistant line than does
the protrusion south of the land boundary of the Nova Scotia

peninsula4'".

135. Canada rejects as meaningless and irrelevant any compari-
son between Nova Scotia and Cape Cod, and aforriori, any such com-
parison based on that part of Nova Scotia that "protrudes south of the
land boundary". The entire Province of Nova Scotia lies southeast of the
line through Cape Ann and the northern Coastof Chignecto Bay. which.

according to the United States. represents the general direction of the
coasts in the Gulf of Maine area. Since the general direction of the
coasts, and not the situation of the land boundary terminus, is the appro-
priate criterion against which to judge the proportionate or dispropor-
tionate effects of particular gcographical features, the whole of Nova

Scoria - rather than that part which lies "south of the land boundary"
- must be regarded as a "protrusion" in relation to the general direc-
tion of the coasts as defined by the UnitedStates.

136. The relative merits of the treatment that Canada and the
United States accord to Cape CodINantucket and to Nova Scotia, by

36Conodion Counrer-Mernorial, pp. 128-130, paras. 329-331; pp. 247-248. paras.
594-597.
" Conadian Counier-Mcrnorinlp. 56. para. 136.
" See ConodionCounler-Mernorial, pp.55-56, paras. 131-137.
'9linlied Sioies Counrer-Mernoriol.25,para.34.
" (iniied SroresCounler-Mernoriop. 25, foolnoles 2 and 3.
" Unired Slnres Couiiler-Mernoriol.25,footnot2. 48 GULF OFMAINE ~541

virtue of their respective lines, mus1 be judged by criteria of geograph-
ical scale. If, as the United States implies, the relevant area is the North
American continent. and if the coast has a single southwest-10-northeast

general direction, then Nova Scotia may conceivably be regarded as
"aberrant" ta the general direction of the coast. If. however. the relevant
area is the Gulf of Maine area - even as defined by the United States
- then Nova Scotia mus1be regarded as an essential part of the geogra-
phy. Together with other major features, Nova Scotia forms the Gulf of

Maine itself and defines the general direction of ils coasts. In this geo-
graphical framework - the legally relevant framework - it is Cape
Cod and Nantucket Island that are incidental special features, aberrant
to the general direction of the coasts. They do not affect the essential
geography of the region or the general configuration of ils coasts.

137. While the United States presents statistics comparing Cape
Cod, Nantucket and Martha's Vineyard to the Scilly Islands, the Ker-
kennah Islands and the Channel Islands", it does no! compare the area
of Cape Cod and its offlying islands with Nova Scotia. Since the land

area of Nova Scotia is 55.491 square kilometres, while that of Cape Cod
and its offlying islands is only 1,447 square kilonietres, Nova Scolia is
38.4 times larger than Cape Cod. The great extent of Nova Scotia's
landmass is in itself sufficient to dispel the notion that it is an aberrant
protrusion or incidental special feature.

138. The ratio of Nova Scotia's land area to the sea area it

attracts (on the basis of an equidistance boundary), compared to the
ratio of Cape Cod and Nantucket's land area relative to the sea area
they attract (on the basis of an equidistance boundary), demonstrates
that while Nova Scotia has an effect upon the course of an equidistance
line that is no1 disproportionate to ils landmass, Cape Cod and. Nan-

tucket Island have an influence altogether disproportionatc to their
@ landmass" [Figure 91. It is these features, and no1 Nova Scotia, that
constitute special circumstances whose disproportionate effect upon an
equidistance line needs to be discounted in order to achieve an equitable
result.

United Slales Counier-Menrorip. 25, fooinoic2.

"The landare&of the Nova Scotia peninsulain45,197 squarekilametrer(13,177 square
nauticalmiles);it attractsto Canadaa sea area of 1squdrenauticalmileswithin
peninsulaNovaiScatiÿ io the sareâdit attrac10Canadais 1:0.8.Whilc Cape Codea of
and Nantucketcomprisea total landarea of only 1.187square kilometrcssquare
nauiical miles). ihey would attract to the United atsecarca of 2.906 square
nautical miles wiihin200 nauiical miles of bth States. The ratioof the land arca of
these fevtures io the sareathey attract io the United States is 1:Canadian
Counter-M~moriol.p. 296. paras.707-708.1551 REPLYOFCANADA 49

Section III. The Application of the Maxim "The Land Dominates the
Sea" Shows That EasternGeorges Bank Appertains

to the Coast of Nova Scotia

139. The Parties agree that the sovereign rights and jurisdiction
to be exercised over the maritime areas in issue in this case flow from

the maxim that "the land dominates the ~ea'~".The United States
Counter-Memorial alleges that this maxim supports three of its major
propositions in this case. namely:

(a) that factors of human geography are irrelevant to the determination
of a single maritime boundary4';
(b) that the location of the international boundary terminus at the back

of a deep coastal concavity should have a decisive influence on the
course of the boundary thri~ughoutthe area to be delimiteda6;and

(c) that in the open ocean seaward of a deep coastal concavity, the per-
pendicular "seaward extension" of the "primary" coast at the back
of the concavity should prevail over the seaward extension of the
more proximate "sccondary" coasts on either side of the concavity
and of its mouth".

The United States does not explain how the maxim supports these argu-

ments or how it is inconsistent with the Canadian position in the present
proceedings.

140. It would appear that the United States Counter-Memorial
construes the maxim that the land dominates the sea as expressing a
natural or physical hierarchy. This view betrays a fundamental misinter-

pretation of the maxim that the land dominates the sea, and a miscon-
ception of the nature of maritime jurisdiction. For the maxim does not
express or rely upon any natural or physical hierarchy between land and

sca; it expresses axiomatically the principle that the rights and jurisdic-
tion that a State rnay exercise over the waters or seabed off ils coast are
an incident of ils sovereignty over the adjacent land48.Seen in this light,
it is evident that the maxim is equally applicable to the 200-mile fishing

Conodion Counter-Memoriol, p. 231, para. 556;United Srorer Counrer-Mernoriol.
pp. 3-4 and 7, para. 7; p. 23. paraand0fwtnote 2; p. 183, para. 291; pp. 189-190.
paras298-299.
" UniredStntes Counrer-Mernoriolpp. 189-190, para.299.

46United Srores Cuunter-Memoriol,p. 183, para. 291; pp. 226-227, para. 375; pp. 261-
262, paras.404; p. 262. para.407.
<' UnitedSiores Counter-Mernoriap. 189,para.298; p. 190.para.300.
Sec the Grisbodarno award. J.B. Scott, ed.The Hogue Court Reports. New York,
Oxford University Prcss, 1916, p. 127; Fisheries case. I.C.J.Reports 1951,
p. 133;North Seo Coniinentol Shr,lfcases,I.C.J. Reports 1969, p. 51. para. 96:
Tunisio-Lihyo ContinentalShelfcase. I.C.J. Reporrs19p.61. para.73. 50 GULF OF MAINE 1561

zone and exclusive economic zone and to the continental shelf, for the

central notion of the interdependence of the terrestrial and maritime
areas is common to al1 forms of State jurisdiction in or under the sea.
The "domination" of the land, therefore, is merely a function of the fact
that it is from the land domain - the scat of political power and base of
economic activity - that States cxtend political control, legal jurisdic-

tion and economic enterprise into the seas off their coasts.
141. As Canada has explaincd, considerations of political and

socio-economic geography do no1 displacc the physical geography but
assist in itsinterpreiati~n'~. Human geography is relevant because it is
dircctly related to the subject matter of the case. Furthermore, human
geography is, in large measure, an expression and a consequence of
physical geography, showing the close linkages that exist between por-

tions of the adjacent coasts and the disputed area. The only argument
the United States has advanced against its consideration is that it is
"novel" and "unprecedent~d"'~. Even if the argument were novel, this
should occasion no surprise: this is the first judicial delimitation of
extended maritime zones where a fishcry conducted from the adjacent
. coastal areas has been directly in issue".

142. Canada has al no point suggested that the human geography
of the relevant area should be used in a manner that is inconsistent with
the physical geography. Rather, the Canadian pleadings have argucd
that the facts of human geography indicate the particular coasts from
which the fishery is actually carried out and thus serve to confirm and

reinforce the implications that inay be drawn independently from physi-
cal geography. The coasts of the inner Gulf of Maine, including those of
Maine and the Ba)'of Fundy, are relevant to the inner area primarily
because they physically border that arca. but also because it is from
these coasts that the resources of the inner area are exploited. The
coastal wings of Nova Scotia and Massachusetts must control the

delimitation of the outer area primarily because they are the geograph-
ically abutting and most proximate coasts, but also because it is from
these coasts that the Georges Bank fishery is mainly carried out. In each
case, the hurnan geography is a reflection of, and not a derogation from,
physical geography.

143. Notwithstanding its reservations concerning the relevancc of
human gçography, the only assertions made by the United States of links

of any kind between Georges Bank and Maine and New Hampshire

4PConadian Counfer-Mernoriol.p.64,para.157.See alsa J. 1.Chsrney:"The Delimita-
lion ofLateraSeawardBaundariesBetweenStates in a DamesticContext." Americon
Journalof InfernotionLow. Vol. 75. 1981, p66-67.
'OUnitedSrores Counter-Mernorialp. 23. footno2:pp. 189-190,para.299.

" where jurisdictionerlfirherieswaatrissue, internationalcourtshave given consider-
ableweightta factorsof humangeography.Sce theGrisbodornocase. pp. 130-131;and
theFisheriescase,I.C.J. Reports 19pp. 127.128and 133. 1571 REPLi' OCANADA 5t

relate to fishing patterns. The United States alleges that "[tlhe
Canadian Memorial. in numerous instances, asserts that fishermen from

the States of Maine and New Hampshire do not fish on Georges
Bank5'". But none of the staternents from the Canadian Memorial
quoted by the United States advances this assertion; they simply point
out that fishing from Maine. New Hampshire and New Brunswick on
Georges Bank is "insignificant", or words to that effect". These
Canadian staternents are borne out by official United States statistics.

These show that only 0:4 percent of the value of the Georges Bank catch
is landed in ports in Maine and New Hampshire, while 89.1 percent of
the catch from the Bank is landed in ports on the coastal wings of the
Gulf of. Maine area: 62.1 percent in southwest Nova Scotia and 27 per-
cent in Massachusetts-Rhode Island. The fishery conducted from
Canadian ports on the Bay of 17undy,including those in New Brunswick.

accounts for 10.5 percent of the total value of the Georges Bank catch
@ [Figure IO]. The reverse pattern prevails in the inner area, where 73.5
percent of the value of the catch is landed in ports on the innermost arc
of the Gulf: 46.3 percent in ports on the Maine and New Hampshire
coast and 27.2 percent in ports on the Bay of Fundy. By cornparison,
26.5 percent of the fishery in the inner areais conducted from ports on

the coastal wings of the Gulf: 16.6percent from ports in southwest Nova
Scotia and 9.9 percent from ports in Massachusetts-Rhode Island"
@ [Figure II].

144. The United States contends that "Canada argues that
coastal areas that do not depend economically upon an offshore area
may be ignored in delimitations5". This is not how Canada has stated or
applied its arguments. The coasis of Maine and New Hampshire, in par-
ticular, have been given full effect both in constructing the Canadian

line and in applying proportionûlity tests based on coastal lengths; and so
too has the coast of Massachusetts. It is the United States, and not
Canada. that has ignored major stretches of coastline by excluding the
Bay of Fundy from consideration in its proportionality test. It is the
United States, moreover, and not Canada, that has ignored the presence
of a major landrnass by treating Nova Scotia as if it did not exist.

145. The United States opposes consideration of human geogra-

phy not with an argument but with a simple recital of the maxim that
the land dominates the sea; but in fact the maxim points in exactly the

" UnircdSIOIPCounier-Mernorial,p.66, para.82.

''UnircdSiores Counfer-Mernor. . 66. fooinoie 2.
YStatistics were compilcd uring unpublishcddata from theCanadian Departmentof
Fishcriand Occanrand cornputerprintoutsfrom the United States Departmentof
Commerce. NationalMarineFishcricsService, Daia Management andStaiistics Divi-
siondeposiiedwith the Registrarwith Canada's Reply.For the staiisiical compilaiion,
the coasial wing of NScotia has been taasncomprising Yarmouth.helburne.
Queen'sand Lunenburgcaunties. Le.. appraximatelyfrom Cape St. 10rLunen-
chuseitrand Rhode Island.stalwinghas beentakenas comprisingihc wholeof Masra-

" UniiedSiores Counier-Mernoriol.pp. 189-190.para.299. 52 GULF OF MAINE (581

opposite direction. Its real meaning is that human control and human

interests, both political and economic, provide the basis for the sovereign
rights of a State in the maritime areas off its Coast. Contrary to the
argument of the United States, the principle that the land dominates the
sea gives strong support to the consideration of human geography in the

delimitation process.

B. THEMAXIM DOESNOTSTATETHAT"THE LANDBOUNDAR~
TERMINUD SOMINATE TSHE SEA"

146. In the Tunisia-Libya Confinenial Shetfcase. there was no

agreement on the starting point of the continental shelf boundary ta be
delimited. Both parties, however, had recognized the relevance of the
terminus of the land boundary at Ras Ajdir. In the absence of any
agreed maritime bouodary that could have provided a starting point for
the delimitation of the continental shelf, the Court identified Ras Ajdir,

faute de mieux, as "a basic point of references6". The circumstances in
the present case are completely different. The Parties have agreed on a
starting point for the single maritime boundary at Point "A", 38.9 nauti-
cal miles south-southwest of the terminal point of the existing interna-
tional boundary in Grand Manan Channel. By implication, moreover,

they have also necessarily agreed on a general south-southwesterly
course for the maritime boundary that will eventually link the existing
international boundary to Point "A"".

147. It must be made clear at the outset that the terminal point
of the land boundary is at the mouth of the St. Croix River at
4So04'27".978N 67"05'42".417W. Thereafter, the international bound-

ary is a maritime boundary, extending 21.9 nautical miles through Pass-
amaquoddy Bay to its terminus in Grand Manan Channel at
@ 44"46'35".346N 66"54'11".253W [Figure /2]58. The United States,
while recognizing the distinction between the terrestrial and maritime

I.C.J. Reporis 19p. 66, para. 85.
" SeeConndionCounier-Memoriol.pp. 36-37, paras. 87-88;pp. 273 and 275, para. 647.
5Thc terminus of the land boundary at the mouth of the St. Cwasfired in the
"Declaration of the Commisrioners Undcr the Fifth Article of the Treaty of 1794" (the
"Jay Treaty")al latitude 45°05'05"N, longitude 67'12'30"W. Sec International
Boundary CommissionJoini Reporr upon rhe Survqvand Demarcorofthe Bound-
ory berweenrhe Unired Storm and Confrom rhe SourceO/the Si. Croix River lu
rheAiloniic OceoWashington, Gavernment Printing Office, 1934. Appendix1, p. 145;
Appendix II. pp.62-163. The existing maritime boundary from the mouth of thc
St. Croix River, through Pasramaquoddy Bay. to the international boundary terminus in
Grand Manan Channelwas fixed by bilateral Commissionsestablished under the Trea-
tics of Washington of 1908. 1910 and 1925.The cwrdinates set out in para. 147of this
Rcply are rendered in the 1927 North American Datum. See International Boundary
CommissionSpecial Repart N3, 1962.pp. 494-49Reply. AnnexesVol. II. Part IV.
Annexes 3-5. 1591 REPLY OF CANADA 53

portions of the international boundarys9, nevertheless uses the terms
"international boundary" and "land boundary" interchangcably. confus-
ing the two in such a way as to suggest a wholly erroncous analogy with
the Tunisia-Libya Conrinrnral Shelfcase, where the land boundary ter-
minus necessarily played a significant role for reasons that'do not apply

in the present case.

148. The United States offers no legal reason why the terminal
point of the "land boundary" should control the course of the maritime
boundary in areas beyond ils immediate vicinity, in a situation where
other coastal areas occupy a position of much grcater proximity as the
maritime boundary moves scaw;ird. The terminal points of both the land

boundary and the existing maritime boundary are already ai a consider-
able distance from the starting point of the future maritime boundary at
Point "A". and beyond Point "A" they become increasingly rcmote. The
contention that the terminal point of the land boundary should control

the direction of the line inthese circumstances is an obvious attempt to
overcome the effcct of the coasts that actually border the area being
delimited both within and beyond the Gulf. To paraphrase the Anglo-
French Continenlal Shelf award, the United States approach detaches
the delimitation almost conipletcly from the abutting coasts.

149. Only where the coasts are laterally aligncd can thc terminai

point of the land boundary bc systematically reilected in thc scaward
course of the maritime boundary. Thc location of the terminus al the
back of a deep coastal concavity means that the immediately adjacent
coastal area is of significance to the innermost segment of the maritime
boundary, but no1further out to sea where different coasts abut the area

to be delimited. If the changing configuration of the coasts isto be re-
nected as the line movcs scaward, the coasts that forni the sidcs of the
concavity, as well as the outer coasts adjoining the concavity, must
progressiyely move into a controlling position.

150. This point is well illustratcd by the existing maritime bound-
ary in the Gulf of Maine area. The Parties did not allow the land bound-

ary terminus to control the course of the existing maritime boundary
beyond the immediate vicinity of the land boundary. The only way to
draw a boundary in the complex geographical situation in Passama-
quoddy Bay and Grand Manan Channel was to relate it to the most
proximate coasts as ii proceeded scaward between the opposite coasts of

the Parties. II is precisely because the land boundary terminus reaches
the sea within "a deep concavity" - i.e., Passamaquoddy Bay - that a
boundary perpendicular to the coasts actually abutting the terminal
point, or to some hypothctical gcneral direction of the coasts,isa tcchni-
cal impossibility. The perpendicular line proposed by the United States

would produce an even more radical refashioning of political gcography
if projected from thc international land boundary terminus at thc mouth

" Unired SrorexMemoriol. pp. 170and 1para.284 54 GULF OF MAINE 1601

of the St. Croix River than it would if projected from the international
maritime boundary terminus in Grand Manan Channel, as shown in
@@ Figure 26 of the United States Memoria[Figure 121.

151. As a corollary of ils proposition that the terminal point of

the "land boundary" is relevant to the course of the single maritime
boundary in ils entirety, the United States argues that Nova Scotia
should be discountedbecause ils coast "protrudes" south of the interna-
tional boundary terminus. The suggestion that the latitude (but, para-
doxically, not the longitude) of the international boundary terminus
should be decisives perplexing. While ttiis suggestion seems to depend
upon a geopolitical approach founded upon the popular legend of

Canada as "the great white North", the United States has not given any
indication as to why the latitude of the international boundary terminus
should have any relevance in a delimitation in accordance with equitable
principles.

C. THEAPPLICATION OF THE MAXIM TO THE GULF OF MAINEAREA
DEMONSTRATT ESAT THE INNER AND OUTERAREASAREDOMINATED
RESPECTIVEL YY THE COASTS THATABUTTHEM

152. Because the coast forms the boundary between land and sea,
its configuration is decisive in determining both the seaward andral
limits of the maritime areas within which coastal States may exercise
jurisdiction:

". . . the principle is applied that the land dominates the sea; it is
consequently necessary10examine closely the geographical configu-
ration of the coastlines of the countries whose continental shelves
are to be delimited. This is one of the reasons why the Court does
not consider that markedly pronounced configurations can be
ignored6'..."

153. During the seventeenth and eighteenth centuries, the limits
of coastal State jurisdiction were considered to be coincidental with the

extent of political dominion measured by the range of human vision or
the range of a cannonshot6'. It was therefore natural to think in terms
of extending jurisdiction over open sea areas from strategic salients or
convex portions of the coast. While the coasts bordering a concave con-
figuration obviouslyominate the sea area wirhinthe concavity, it would
make no sense strategically to seek to extend dominion over the area sea-

ward of the concavity from the coasts at the back of the concavity. This
essentially strategic conception, which is a function of the interplay
between political institutions and physical geography, underlies much of
the development of the law of maritime jurisdiction, including, inr-

1.C.J.Reports 19p. 5para.96,
"D. P. O'Conncll:The IniernotLawof the SeoVol. 1.Oxford,ClarenPress,
1982.pp.124-129. 1611 REPLYOFCANADA 55

ticular, the rules relating to the closure of bays, the drawing of straight
baselines and the seaward delimitation of the territorial sea and the
200-mile exclusive economic zone. The most common method of estab-

lishing the seaward limits of the territorial sea and of the 200-mile zone
- the arcs of circle method -- can be explained only in terms of the
notion that jurisdiction over marine areas lying seaward of a deep con-
cavity extcnds from the convex coasts that project into the sea on either

side of the concavity.

154. Both Parties recognizc that an important consequence of the
existence of "the deep concavity that is the Gulf of Maine" is that the
relevant area is comprised of two components, namely an inner. or
interior area lying within the concavity, and an outer or exterior ares

lying seaward of the concavity. They further agree that a hypothetical
line between Cape Sable and Nantucket Island divides thcse two areas".

155. In an extensive area comprised of two or more sectors, both
geographical logic and the applicable law demand that a delimitation be
effected by reference to the land that dominates the sea in each sectorb'.

The soundness of this approach is confirmed by the geographical and
legal framework used by the Court of Arbitration in the Anglo-French
Continental Shelfaward, and by this Court in the Tunisia-Libya Conti-
nental Shelfcase. The Court, in the latter case, dealt with the area "as

divided into two sectors", because "the proper appreciation and taking
in10account of the 'relevant circumstances which characterize the area'
cal1 for the area close to the coasts of the Parties to be treated differ-
ently from the areas further offshore"".

156. ln the Anglo-French Continentul ShelJaward, the Court of

Arbitration distinguished between the Channel region, on the one hand,
where the area to be delimitcd lay within the coasts of the parties, and
the Atlantic region, on the other hand, where the area to be delimited

@ " Canodian Counrer-Mernoriol,p. 50. para. 120; p. 297, pars. 711; Figures 12 and 51;
Uniied Srarrr Memorinlp. 19. footnote 2; p. 173, para. Unired Siores Counrer-
MernoNol. p. 13, foatnote 2; p. 21, faatnatc 2; p. 22, footnote 1; p. 184, para. 294;
Figures 21, 36 and 38.
@@
"An analogy from a related area of the law of thc sea supports the geographical and
legal logic of this approach. The criterion for determining whether an indentation con-
stitutes a bay, in law, is the ratio of ils penetration inland to ils width. Article 7(2) of
the 1958Convention on the Territorial and CantiguourZonestates:
"An indentation shall n. .. bregarded as a bay unless ils area ir aas.orge
larger than. that of the semi-circle whose diametco line drawn acrosrthe
mouth of the indentation."
The rationale for this test lies in the fact that it indicates whether the indentation is suf-
ficiently pronounccd 10justify treating the waters within the indentation as integrally
relatetothe land that cnclosesthem, and hence according them a different legal status
from the waters outside the indentation. See D. P. O'ConncIniernorionol LaO/
the Seo,Vol. 1.pp. 353-354. 384 and 390-406. The application of the semi-circlc test to
the Gulfof Maine areashows that, while the area within the Gulf is dominated by the
caarts that border it. the aarea is dominated by the cosstal wings of Nova Scotia
and Massachusetts that actually abu[sceFigur e 1

" I.C.J. Reports 1982p. 82. para. 114. 56 GULF OF MAINE 162-63)

lay off their coasts. A fundamental premise of the award was that each

area must be delimited by reference to the coasts that physically abut it:

". . . the method of delimitation which [the Court] adopts for the
Atlantic region must be one that has relation to the coasts of the
Parties actually abritring on rhe confinenrai shelf of rhe region6>."
[Italicsadded.]

157. The Court of Arbitration defined the abutting coasts as
including the "comparatively short" coasts of the peninsular areas of
Finistère and Cornwall, and the offlying islands of Ushant and the Scil-
lies6'.The selection of these coasts was clearly based on their proximity
to the Atlantic region. The idea that the identification of the controlling

coasts should be based upon a perpendicular or "frontal" relationship to
the boundary area was specifically rejected: even though neither of the
Cornwall coasts "faces" toward the outer Atlantic region, the Court of
Arbitration held that to deny that the United Kingdom possessesa front-
age upon the region "is to mistake form for substance6"~Figure 131. In
the present case. the irnmediately abutting coastal areas - the coastal

wings of Nova Scotia and Massachusetts - are considerably more
extensive than the peninsular areas identified as the legally relevant
coasts in the Atlantic region off the United Kingdom and France".

158. The Court of Arbitration firmly rejected the view that the
delimitation of the Atlantic region should be based upon the coasts of

the Channel lying behind that region. It did so in two distinct senses.
First, it held that the delimitation could not be effected on the basis of
the general direction of the coasts within the Channel - the lignes de
lissage advanced by France - because such a method "detaches the
delimitation almost completely from the coasts which actually abut on
the continental shelf of the Atlantic region" and thus "does not appear
to the Court to be one that is compatible with the legal regimeof the

continental shelfbq".Secondly, it held that the delimitation in the Atlan-
tic region could not be based upon the length of the coasts within the
Channel. The difficulties inherent in the use of the Channel coasts could
not be removed:

". . by invoking an alleged principle of proportionality by reference
to length of coastlines;for the use of the Channel, rarher than the
Arlantic,coasflines is sri11leff unexplaine&"'." [Italicsadded.]

The United States contention that equidistance errs by reflecting the
position of the most proximate coasts, and not the back of a deep coastal

Anglo-FrenchConrinentnlShelfaward, p. 116.para. 248.
Anglo-FrenchContinentalShelfaward, p. 110.para. 233;p. para.248
6'Anglo-FrenchConrinenialShelfaward, p. 110.para. 234.
@ " SeeCanadianCouler-Memoriol, p.60.Figure14.
" Anglo-FrenchConiinenrnlShelfaward, p115,para.246.

'OAnglo-FrenchConiinenrolShelfaward. p. 115,para. 246.164) REF'LYOF CANADA 57

concavity. disregards the principle that the boundary should be con-
trolled by the immediately abutting coasts. It is basedon a false hie-
rarchy of "primary" and "secondary" coasts that the United States has
invented out of the wholecloth. with no reference whatever to interna-

tional law.

159. Apart from the assertion that fishermen from Maine and
New Hampshire fish on GeorgesBank, the United States offers no fac-
tual evidcnceof any kind of link bctweenthe Bank and the Maine and

New Hampshire coasts". Indeed, the United States assertion that
Georges Bank forms part of the seaward extensionof the coastsat the
back of the Gulf appearsto rest wholly on a geometrical formula that
has nothing to do with the discipline of geographyor with the particular

geographicalfacts characterizing the area.

Conclusion

160. The United States dismissesthe method usedby Canada to
delineate thecourse of the boundary in the Gulf of Maine area as a
"geometrical" method that produces an "artificial" boundary. But

whereasCanada usesa geometrical methodto reflect and translate into
an equitable delimitation the geographicalcircumstancesof the Gulf of
Maine area, the United States seeksto substirure geometry for geogra-
phy in establishing the circumstances relevantto the delimitation. For

the United States contention tliat GeorgesBank is the extensionof the
coastsof Maine and New Hampshire isbasedon the geometricalprinci-
ple of pcrpendicularity and on a distinction between "primary" and
"secondary" coastsunfoundedin geography orin law.

161. The United Statesdoesnot supportits contention by a single
piece of cvidencedemonstrating significant geographical links bctween
GeorgesBank and the coastsat the back of the Gulf of Maine. All the
evidencc,including many of the factual assertionsin the United Statcs

pleadings, showsthat GeorgesBank ismost directly linked in physical
and inhuman terms to the land arcasto which it is most proximate: the
opposite and essentially symmetrical coastal wingsof Nova Scotia and

Massachusettsthat abut the outer area. A delimitation taking accountof
the relevantgeographical circumstances mustreflect the fact that cast-
ern Georges Bank, the area under Canadian claim. is geographically
appurtenant to the Coastof southwestNova Scotia.

" Far ananalysiofthe physicaland humanlinksbetweeGcorgc s ankand the coastal
wingrof southwestNova Scotiand Massachusetts.andofthe abscnceofsuch links
ktween the Bank and the caasts abutling the innermastscctor ofGulf. scc
ConodionMemorio/. p. 27. paras.29 a32;p. 29. para. 35; 34-36 .aras52-63;
pp. 59-81; para110-124. ConodionCounrer-Mernorialpp. 63-66. para154-162:
pp.68-81.paras168-199;pp.108-109paras.263-270. CHAPTER III

THE MYTH OF THE "NATURAL BOUNDARY"

Introduction

-162. The Canadian Memorial and Counter-Memorial have
already shown that the myth of the "natural boundary" as presented by
the United States has no basis in law or fact. Paragraphs 80 to 84 of this

Reply provide further confirmation of the legal irrelevance of the United
States thesis regarding the Northeast Channel. This superficial feature
of the seabed in effect becomes the only "relevant circumstance" in the
Gulf of Maine area under.the United States approach, despite the agree-
ment of the Parties on the essential unity of the continental shelf in this
area. A delimitation effected on this basis would be a delimitation
divorced from mastal geography, from al1 the truly relevant circum-
stances, from the legal basis of title, and from the principle of equality
within the sanie order - in short, from equitable principles within the
Iaw.

163. This chapter shows that the United States Counter-
Memorial fails to provide any factual support for the United States view
of the Northeast Channel as a "natural boundary". This view remains

incompatible with important geological, geomorphological and oceano-
graphic factors; it rests on exaggeration, speculation and mistaken
appeals to environmental risks - which are common to both Parties, in
any event - and to differing but not incompatible national fisheries
policies. In fact, the sea cannot be divided into three "separate and iden-
tifiable ecological regimes", and the so-called discontinuities described
by the United States have no basis in science.

Section 1. The United States Ignores Important Geological Factors
That Are Incompatible with a "Natural Boundary"
at the Northeast Channel

164. Canada and the United States agree on the essential con-
tinuity and integrity of the Atlantic continental margin as it appears
today, "without discontinuities that might identify separate natural pro-
longations'". The United States, however, goes on to assert that "[tlhe
principal differences between the Parties lie in their characterizations of
the relative significance of certain geomorphological features in the Gulf
of Maine area2 .. .".In fact, this is not the case: the issues separating
the Parties on this score are wider than the United States suggests.

165. Canada does not propose to advance a "natural boundary"
theory to counter the one put forward by the United States. Canada sub-
mils. however, that there are geological discontinuities in the continental

'ConodionCounier-Memoriol,p. 68, par168.
UniiedSioies Counier-MernoNolp. 27para35. i661 REPLYOF CANADA 59

shelf of the Gulf of Maine area that are as important as, or even more
important than, the alleged "break" represented by the Northeast Chan-
nel. The United States Counter-Memorial itself makes practically no
mention of geological factors, despite the full treatment accorded to

them in the Canadian Memorial. The United States, however, has sub-
mitted an Annex with its Counter-Memorial in order to explain its
"technical differences" with Canada in respect of geology'.

166. In dealing first with the matter of basement rocks, the

United States asserts that "il is impossible to assign any direction ta the
extension of the basement rocks beneath Georges Bank and the Nova
Scotia landmass4". This assertion is erroneous. In fact, the extension of

basement rocks in the Gulf of Maine area can be delineated from a com-
bination of multichannel seismic reflection data and gravity, aeromag-
@ netic and field observations. Figure 14 is a composite illustration based
on the work of United States and Canadian geologists5.It shows the con-

sistency in basement trends on the Nova Scotia landmass with those that
extend across the Northeast Channel and beneath Georges Bank. These
basement trend lines extend iiia southwesterly direction from Nova
Scotia up to the area of the Great South Channel area. They cut trans-

versely across the so-called "natural boundary" that is alleged to exist at
the Northeast Channel. In the Great South Channel area and to the
West, however, the basement trend lines change direction and run in a

more northerly direction.

@ 167. The trend lines shown in Figure 14 help to confirm the geo-
logical opinion that the basenient structure known as the Meguma
Group extends in a southwesterly direction from the Nova Scotia land-

mass and from the Bay of Fundy into the Gulf of Maine area6. These

'UniredSroresCounrer-Mernorial, p. 27, footnote Unired Siales Counrer-Mernorial.
Analyricol AnnexesVol. IV,Annex 5.

'Unired Srores Counier-Metnoriol. Anolyricol Annexes,Vol. IV. Annex 5. p. 16.
para. 20.
'See J. S. Schler and K. D. Klitgord: "Geologic Setting of the Georges Bank Barin". in
P. A.Scholle and C. R. Wenkam. eds.GeologicolSiudies ojihe COST Nos. G-l and
G-2 Wells. Unired Sioies Norrh Ailontic Ouier Coniinenral Shev United States
Department of the Interior, Gealogical Survcy Circular 861. Washington. Government
Priniing Office. 19Reply. Annexer,Vol. II. Part IAnner 6;J. D. KeppieGeolog-
icnl Mop O/rhe ProvinceO/ Novo Scoiia.Halifax Departmeni ofMines and Energy.
1979.
6See alsa L. K. Schultz and R. L. Grover: "Geolagy of Georges Bank Basin."The
ArncricanAssoeiorionojPeiroleum GeologisisBullefinVol. 58, No.6,Part 11,1974,
p.1159,at p. 1164:

"Basement rocks [beneath Georges Bank Basin] probably consist of
Cambrian-Ordovician slate. quartzite and argillite similar ta the Meguma Group
of Nova Scoti..."
Reply, Annexes,Vol. II, Part IV, Annex 7: J. A. Wade: "The Mesozaic-CenozoicHir-
tory of the Noriheastern Margin of North AmericaProceedingsO/ ihe lOih Annuol
Ofihorc TechnologyConlerente, Vol.3,1978,p. 1850:
"[Georges Bank] basin overlie:i a folded and faulted basement complex which
is probablycamposed of rnetasedimentary racks correlative to the Cambro-

Ordovician Meguma Group ofsouthwestern Nova Scatia."
Reply. Annexes,Vol. II, Part IV, Annex 8. 60 GULF OF MAINE 1671

trends, in short, demonstrate the existence of geological 'affinities
between Georges Bank and the Canadian landmass to the north and
northeast, contrary to United States assertions. Of equal importance,

they refute United States contentions about the existence of a "natural
boundary" at the Northeast Channel.

168. The other, equally salient feature of the geology of the Gulf
of Maine area is the southwestward projection of the Scotian Basin, the
subsurface sedimentary structure that extends from the Scotian Shelf
beneath the Northeast Channel to the eastern half of Georges Bank (see

@ Figure 16 in the Canadian Counter-Memorial). This thick, potentially
hydrocarbon-bearing portion of the sedimentary wedge is further evi-
dence of the geological affinities - and the absence of discontinuity -
between Georges Bank and the Scotian Shelf to the northeast. While the
United States Counter-Memorial seeks to deny that the Scotian Basin
extends beneath the eastern part of Georges Bank, this extension, and its

partial separation from Georges Bank Basin (underlying western
Georges Bank) by the Yarmouth Arch, is confirmed in the published
works of United States and Canadian scientists7. If a "natural
boundary" is one that avoids dividing resources, then the'canadian line
is far more "natural" than the United States claim in relation to the

hydrocarbon potential of the Scotian Basin, for the latter cuts through
the Basin while the former does nota.

169. The United States also denies the relevance of the New Eng-
land Seamount Chain and the attendant belt of high seismic activity in
the vicinity of the Great South Channel9. Nevertheless, two pertinent
and incontrovertible facts remain. Firsr a, major basement fracture

zone is aligned with the New England Seamount Chain, running

'See L. K. Schultz and R. L. Graver:"Geologyof GeorgcrBank Basin";1.A. Grow:
"Structureof the Atlantic Continental Marginofe United States", in CeoloO/
Possive ConrinenfnlMorginr Hislory, Sfruclure und Sedirnentologic Record (Wiih
Speeiol Ernphosison rheArlonric Morgin).AmericanAssociationof PetroleumGeolo-
gists Eastern Section Meetingand Atlantic Margin Energy Conference, Educalion
CourseNote SeriesNa: 19, 1981:J.A. Wade: "TheMesozoic-CenozoicHistaryof the
NartheasternMargin of NorthArncrica"p.1850.

'BankDividethat gcologistshaveidentifid beneaththe middlcof GeorgesBank,scpa-

Mentoriol.Annexes,Vol.1.pp.7-8, para. 17 and Figure3.ents. Conadion Counrer-

Unired Sioles Counier-Mernorial, Analyricol Annexes, Vol. IV, Annex 5, p. 21,
paras.28-29. 1681 REPLYOF CANADA 61

perpendicular to the shelf edge seaward of the Great South Channel
area'O.This fracture zone represents a major structural boundary in this
region of the Atlantic continencal margin". Secondly, for reasons related

to the existence of the fracture zone, there is a major, and geologically
significant, offsetting of the Eist Coast Magnetic Anomaly seaward of
the Great South Channel in the vicinity of the seamounts and the seis-
@ mic trend line" [Figure 141. These facts reveal that if any natural geo-

logical boundary were to be postulated, il would lie at the southwestern
limit of Georges Bank and not ;itthe Northeast Channel.

Section II. The United States Errs in Attempting to
Portray Georges Bank as an Extension
of Massachusetts

170. A curious inconsistency marks the United States view of
Georges Bank and ils relation to the coasts. On the one hand, the United
States attempts to portray Georges Bank as the seaward extension.of
Maine in legal terms. On the other hand, it attempts to portray the Bank

as the seaward extension of Massachusetts in physiographic terms. Thus,
the United States reduces the Great South Channel to total insignifi-
cance, despite ils recognized and crucial importance as a channel for
navigation, as a component of the biological and oceanographic "transi-

'OThe United States argues that "therenosevidence to support a bel1of seirmicity con-
necting the White Mountains to the New England Seamounts" [UnifedSrofes Counter-
Memoriol, Analyficol Annexes, Vol. IV, Annex 5, p. 21, paras. 28-29]. However,
respected United States authorities state that "[slome of the best evidence for the con-

centration of seismictivity, particularly the occurrence of large shacks within conti-
nentsnear thc ends of major transform faults. cornes (...offshore Marsachusetts
near the end of the New England seamount chain". L. R. Sykes: "lntraplatc Seismicity,
Reactivation of Preexisting Zonesof Weakncss, Alkaline Magmalism. and Other Tecto-
nism Postdating Continental Fragmentation." Reviews of Geophysles ond Spoce Phy-
sic*, Val. 16. No4. 1978. p. 674. ReplyAnnexes. Vol. II. Part IV, Anncr 9. This
authar shows a solid line of scismicity running from the New England Seamount Chain.
throughthe western end of Georges Bank and onshore as far north as Québec.This
same seirmic trend line through wcstcrn Georges Bank is also shown by J. B. Flctcher,
M. L. Sbar and L. R. Sykes: "Seismic trends and travel-timc residuals in eastern North
America and their tectonic implications." Geologieol Society of Americn Bullefin.
Vol. 89, Doc. 81106. 1978. pp. 1656and Figures 1, 2. 3 and 9. Reannexe^,Vol. II.
Part IV, Annex 10contains a reproduction of these seismictrend lin=.
"J. B. Flctcher, M. L. Sbar and L. R. Sykea:"Seismic trends and travel-lime residuals in
castern North Amcrica and their tectonic implications". p. 1656:

"The Boston-Ottawa seismic zone appears ta be nearly spatially coincident with
Mesozoic alkalic igneaus rocks of the White Mountain Magma Series and the
Monteregian Hills. Theserocks are sirnilar in age to the New England (Kelvin)
Seamounts. a major transfarm fault across which magnetic lineations of Mesazoic
age in the western Atlantic change strike and appear to be offset. The Boston-
Oltowo seismiczone. ihe Mesozoic igneousrocks, and the sromount chainappear
IOdejinra major ieeloniezone oboui 2,000 km long.(Iralirs addedl
Reply. Annexes,Val. II, Part IV, Annex 10.
"The East Coast Magnetic Anomaly tsa linear trend of high magnetic intensity running
parallcl to the shelf edgc from Nova Scotia to Florida, probably related to the transition
from continental toceanic crust. ConodionMemorial, p. 44, para. 78.i711 REPLYOF CANADA 63

Northeast Channel in an effort to substantiate an alleged geomorpholog-
ical difference between Georges Bank and the Scotian ShelP8. In fact,
New York is the southernmost extent of North American glaciation on
land, but most glaciation on the continental shelf stopped in the vicinity
of the Great South Channel, encept for a narrow strip along the Coast

from Cape Cod to Long I~land'~.Thus, to the extent that glaciation can
be used to identify a geomorphological discontinuity on the North
American continental shelf, this discontinuity would be found in the
vicinity of the Great South Channel and no1in the vicinity of New York.
Moreover, the boundary of a glacial "subprovince" does not occur at

the Northeast Channel. If any exists, it would cut obliquely across
Georges Bank, as shown in Volume I of the Annexes to the
Canadian Counter-Memorial.

174. Southwcst of the Great South Channel, the continental shelf
is a smooth unglaciated plain'0. North and east of the Great South
Channel, glaciers produced a series of basins that occur along the inner

part of the Shelf from the Gulf of Maine Basin to Newfoundland, and a
series of broad, shallow banks that occur along the outer edge of the
shelf from Georges Bank to Newfoundland. Canada, therefore, agrees
with the United States that the Gulf of Maine Basin is geornorphologi-
cally similar to at least part of the Scotian Shelf. However, it is the inner

part of the Scotian Shelf to which the Gulf of Maine Basin is analogous.
Georges Bank, on the other hand, is analogous to the banks that are
strung out along the outer part of the Scotian Shelf al1the way to New-
foundland". In this basin-bank system that stretches from Newfound-
land to the Great South Channel, the Northeast Channel pales into

geomorphological insignificance.

175. The distribution and form of glacial sediments show the
affinities between the Scotian Shelf and Georges Bank. Waves and cur-
rents generated by winds and tides constitute thc two most important
forces that fashion surface sediment forms. Tidally-dominated bedforms
occur in the Bay of Fundy, on Georges Bank and on Browns Bank, while

sediments to the north of Browns Bank and to the south of the Great
South Channel, are storm-dominated". This fact illustrates the single

''Uniied Stores Counler-Memoriol.Annlylieol Annexes,Vol. IV, Anncr 5, pp. 4-5,
paras.5-10.
''Cnnadion Counfer-Mernorial. AnnexesVal. 1,pp.5-7, paras. 13-16,
Canadian Counlrr-Memoriol.p. 71, para.177.
" Uchupi reiers ta this basin-banksystem. See E. UcArlonlie Conlinenml SlopO/
the Unired SIaI-s Phy~iography.United States Departmcntof the Interior.Geologi-
cal SurveyPrafessionalPaper529-C, 1968.pp.C5 andC28 whcreil is stated:

"The topographie features of the continental shelf, slope, and rise are inter-
relatedandcan begroupedfromnorih 10southintothreedistinctregionsozones.
In the first. fromNova Scattithe NantucketShoalsarea,the positionnorrnally
occupied by a gently seaward-slopingcontinental shelf. contains (1) the Gulf of
Maine.and (2) several large shallow banks,namely Georges, Browns, LaHave,
and EmcraldBanks."
Reply. AnnexesVol. II, Part IV, Annex Il.
" Conodion Counrer-Memoriol. Annexes,Vol. 1,pp. 10-17. paras.21-30 and Figures4-8. i731 REPLYOF CANADA 65

would face the same environmental risk. In this respect, Canada's only

reply to the circular argument of the United States must be adhuc sub
judice lisest.

178. Canada's objection to the United States view ofenvironnien-
ta1 risks. however, goes much further. The fatal scientific defect in the
United States analysis is that it concerns itself only with oil in the water

column. The United States ignores the fact that by far the greater bulk
of oil released by an oil-wcll blowout or by a tanker spill rests on the
surjace of the water: only a small fraction is dissolved in the water
columnZ6.Models of trajectory and oil spill fates demonstrate that, owing

to wind and current action, the great mass of any oil spill on either the
northeastern or southwestern part of Georges Bank will pass to rhe Seo-
@ tian Shelf and ro the Canadian coasrline" [Figure 161. The United

States argument on this point is therefore incomplete and misleading.
The chances are that Canada will suffer the effects of an oil spill or oil-
well blowout anywhere on Georges Bank to a much greater degree than
the United States, and official United States studies have recognized this

fa~t~~.Moreover, Canada and the United States have recognized the
common threat that oil spills in the Gulf of Maine area would pose to
their coasts. In 1974, by an exchange of diplomatic notes, the Parties
established an oil spill contingcncy plan that delimits areas within which

they would exercise their respective responsibilities for pollution control
and clean-upZ9.The line dividing these areas follows longitude 67O28'W
[Figure 171.

Section IV. Contrary to United States Assertions, Georges Bank
1s Part of a Continuous Ocean System and Falls within the
Nova Scotia Biogeographic Province

179. The sea, it need hardly be said, is a fluid environment: a
dynainic, not static. medium. Its fundamental characteristics are its
openness and relative uniformity. Unlike the land, the sea is not marked
by geographically fixed discontinuities pr boundaries. Changes in water

properties that do cxist are gradua1 and highly variable in location.

The propartianof oan thesea surfaceis abut10 rimesgrcorCrrhnnoil in rhe warer
olumn. See Table5 in M. L. Spaulding,S. B. Saila, E. Lorda.H. Walker.E. Anderson
and J. C. Swanson: "Oil-Spill Fishery Impact Assessment Model: Application to
SclcctedGeorgesBank Fish Species."Erruorine. Cmsrol and Shrv Seitnee. Vo16.
1983,pp 511-541.

l'il J Laurenîc andR W 'Trites'SurlaccOil Spill Trd)cit\lalellinfurticdrpr
and Brown, Bmkr " Conddion 'ï'erhnnrulKcpoO/ t/j<lrugraphy onrl Ore'unS:irnr~r.
No. 29, 1983.
"The resultsof ihis receniCanadianstudyare consistent wiihthe UnitedStatessiudy by
Spauldinget 01.rcfcrre10in footnotc26. Sirnilarresultsarc also shownin the trajec-
toryrnodelscontainedin the UnitedStstcs EnvironmentalAssessrnenisfor OuterConti-
nentalShelf LeaseSale No. 42. SCanadion Counrer-Memoriol,p. 77. para. 190.
"Canadian diplomatic note FLA362, 19 June1974. United Statcs diplornaticnoie 106,
19 Junc1974.See Reply. AnnesesVol. II,PartIV. Annen13. 66 GULF OF MAINE i741

Horizontal differences in surface temperatures of only Io Celsius, for
example, may be found across tens or hundreds of kilometres, and the

day-to-day location of temperature gradients varies ~idely'~.Only inor-
dinate distortions of scale and serious oversimplifications can sustain any
hypothesis of "natural boundaries" in the water column.

180. The Canadian Counter-Memorial has shown that there is
continuity in the oceanographic system and in fish distributions [rom
northeast to southwest in the Gulf of Maine area". To the extent that a

discontinuity can be defined, it is in the vicinity of the Cape Cod-
Nantucket Shoals-Great South Channel area. Georges Bank itself is
characterized predominantly by northern or boreal species, and so falls

within the Nova Scotia biogeographic province. This province extends
from Newfoundland to the coastal area of Cape Cod, ivhere a transition
occurs from northern, cold-water plant and animal species to the south-

ern, warm-water species that typify the Virginian biogeographic province
and the Mid-Atlantic Bight. The United States Counter-Memorial
argues that "[iln alleging that there is some species break or division in

the vicinity of Nantucket Shoals or Long Island, Canada misinterprets
the work of current biogeographers3'". In fact, it is the United States
that has misinterpreted the scientific literature. Canada has not been

able to find scientific studies of the Gulf of Maine area that support the
suggestion that the Northeast Channel is a biogeographic boundary".

'OAn example of the vas1scale of day-to-day variability in surface temperature gradients
is provided by Smith and Petric. They show the variability between shelf and dope
water off the Scotian Shelf wcurs over a distance of 150 kilometrcs. P. C. Smith and
B. D.Petrie: "Low-Frequency Circulation at the Edge of the Scotian ShJourno1 of
PhysicolOceanography , ol. 12, 1982, pp.28-46.
@@@ " ConadionCounter-Mernorial. pp. 79-98. paras. 192-242and Figures 20-22 and 24. See
alsoConodinnCounrer-Mernorial,Annexes, Vol. 1,Chaps. II-IV.

'lUniredSrafesCounter-Memorinl, p.39, para. 48.
" None of the scientific papers cited in the United States Counter-Mcmorial and its
Annexes in support of theheory of a natural boundary at the Northeast Channeven
mcniionr ihe Northrait Channel ai J bio?e.>griphi/?<irureIci llonci, a ndturi.
hounilori Wh21ihr) rh~w i<ih~t Cap Cod i,ihr. ,ignifi;nbio?cogriphii fc~t~rin
il~c(iulf df hlliarcd Sec D R I-r~nrand ,\ 5. hlerrill "ThcOrieinr~nd I>etcrmi-

nantsof Distribution of Molluscan Faunal Croups on the Shallow ~ontinental Shelf of
the Northwest Atlantic."Moloco/ogio, Vol. 19. Na. 2. 1980, p. 227; D. R. Franr,
E. K. Worley and A. S. Merrill: "Distribution Patterns of Common Seastars of the
Middle Atlantic Continental Shelf of the Northwest Atlantic (Gulf of Maine to
CapeHatteras)." Biology Bullefin. Vol. 60, 1981, p. 394; E. L. Bousfield and
M. L. H. Thomas: "Portglacial Changes in the Distribution of Litloral Marine Inverte-
bratcs in the Canadian Atlantic Region".Proeeedingsof ihe NovaScorioInsfirufeq/
Science,Val. 27,Supp. 3, 1975, pp.47-60. The only papcr Canada har found theven
suggesrsany kind of a biogeographicseparation at the Northeast Channel refers to only
one small crustacean group -ostracodcs. Yet, even this study places greater emphasis
on Cape Cod as a biogcographic feature: J. E. HazeAflanfic ConiinenralSheY and

Slope ofrhe UniiedSfofes - OsfrocodeZoogeogrophyin TheSoufhernNova Seofion
And Norfhern Virgini~nFounol Provinces. United States Department of the Interior.
Cealogical Survey Prafessional Paper 529-E. Washington. Government Printing Office,
1970.i751 REPLY OF CANADA 67

181. The United States argument that there is a fixed biogeo-

graphic boundarythat runs aloiig the northern edgeof GeorgesBank (at
approximately 42ON) is directly contradicted by numerous reports and
publications, including scveral publications of the United States Govern-

ment". All of thesedocumentsconclude that GeorgesBank isboreal in
itsaffinities, and that a rransirion from cold- to warm-water characteris-
tics occurs in the vicinity of Cape Cod and not at the Northeast Chan-

nel. The tenor of thesevarious studies is well stated in a report by Bige-
low and Schroeder, published by the United States Department of the
Interior. and given prominencein the United StatesCounter-Memorial:

"The generaloceanographyof [the Gulf of Maine] area hasbeen

the subject of another report, but it may not be amiss ta point out
that the remperature of the Cuyand irs fauna are boreal, and that
its southern and western boundaries are thenorthern limit to eom-

mon occurrenceof many southern speciesof fishes and of inverte-
brates"." [Iralics added.]

182. Notwithstanding evidence of the kind cited above. the

Annexesto the United States Counter-Memorial (Volume IV, Annex 7)
contend that even the complex of Atlantic Coast species - as well as
stocks - can be segregatedin accordance,with "separate and identifi-
able oceanographic regime~'~".The thrust of the United States analysis,

again, is to present GeorgesBank as a warm-water bank. Canadahas
already provided irrefutable evidence to the contrary. For example,
Figure 33 in Volume I of the Annexes to the Canadian Counter-

Memorial showsthat the great bulk - over 95 percent - of the average
annual commercial catchin ICNAFJNAFO subdivision5Ze, from 1962
to 1980,consistedof northern and widely distributed species.Southern

Y A rcccnt United Siatcr Govcrnmcnt publication on amphipods found on Georges Bank
revcalr ihat thc dominant rpecies arc bareJ.J. Dickinsonand R. L. WigleyDis-
rribuiiono/GommorideonAmphipod~(Crusloceo)onGeorp'sBank. Washington. U.S.
Dcpartment of Commerce, National Occanic and Atmosphcric Administration Techni-
cal Rcpari. NMFS SSRF-746. 1981. A Unitcd States Govcrnmcnt riudy of ostracodes

shows thai only eight Gcorgcs Bank specier havc Virginian affiliations while 43 havc
barcal affiliatiScc.J. E. HarclAllonric Conrinenrol heljand Slopof rhe Unired
Srorcr- O~lrocodeZoogeogrophyin TheSouihernNovaSeorionAnd Norrhcrn Vir-
ginionFouml Provinces. A rcccnt major work on biagcagraphy, contrary ta United
Staics assertions rcgarding the Northeart Channel. concludcr that the "cold-temperate
North Atlantic province" extends fram "Ncwfoundland and Gulf of St. Lawrence to
Cape Cod, Mersachurctts"Scc G. J. VcrmcijBiogeogrophy ondAdnprarion:Porlerns
O/ Morine Ltjé.Boston. Harvard Univcrsiiy Press. 1978, pp. 2-Reply. Annexer.
Vol. II. PaIV,Anncx 14.

" H. B. Bigclowand W. C. Schrocdcr: "Fishcs of the Gulf of MaFisheryBullerinO/
the Fish and Wildlfi Service,Vol. 53, No. 74. Washington. Govcrnmcnt Printing
Office, 1953UnircdSroies Counrer-Memoriol,Marine EnvironmenrAnnex. Vol. 1.
Pari A, Annex 1. Appendix L. The "wcstcrn boundary" referred 10 by Bigclowand
Schrocdcris 70'W longitude, which culs acrarrCape Cod and Nantucket Shoîls. It is
clcar that thcy considcrcdGcorgcs Bank to be part of the Gulf of Mainc and ihcrefore
within the borcal province.
'6Unilcd Srarer Counrer-Mernorial. Morinc Environmeni Annex. Vol. 1. Part A.
Anncx 1.p. 75, para. 52.68 GULF OF MAINE 1761

species only begin to dominate the commercial catch as one moves away
from Georges Bank to the southwest. Moreover, on close examination,
the five fish species distribution figures contained in the Annexes to the

United States Counter-Memorial (Volume 1, Part A, Annex 1) offered
as evidence of the existence of natural boundary at the Northeast Chan-
nel in fact reinforce Canada's point about continuity and about the cxist-
ence of a species transition zone in the Great South Channel area rather
than at the Northeast Channel".

Canada strongly disagrees with the United States thesis that
183.
fish stocks can be segregated into "ecological regimes" or divided by a
"natural boundary" at the Northeast Channel. The Canadian Counter-
Memorial has shown why the United States Memorial erred in dividing
the stocks of 12 out of 16 commercial species at the Northeast

Channel'8. The United States Counter-Memorial repeats this error by
relying excessivelyon spawning locations to identify stock^'^.It is crucial
to recall that any given stock is located at a particular spawning location
for only a few weeks of each year of adult life. Thus, spawning location
has no necessary bearing on the distributional range or migratory habits

of the stock throughout the rest of the year or during the life cycle as a
whole. Consequently, the numerous figures contained in the Annexes to
the United States Counter-Memorial (Volume 1, Part A, Annex l),
showing various spawning grounds and areas of larval abundance, to the

extent that they might be proven scientifically accurate, cannot be used
to support the argument that stocks are divided by the Northeast Chan-
nel throughout the year or throughout their life cycle. As Canada has
already shown, many stocks of fish intermingle and migrate throughout
the Gulf of Maine area, irrespective of their spawning grounds.

184. In sum, the extensive factual material contained in Volume 1
of the Annexes to Canada's Counter-Memorial and in numerous scien-

tific authorities. including official United States publications, demon-
strates that Georges Bank is a co'ld-water bank with greater biological
affinities to Canada than to the United States.

''Unirrd Siaies Caunrer-Mernorini.Morine Environmenr Annex. Vol. 1, Part A.
Anncx 1. pp. 79-89. Figure 2clearlshows a distributionof species throughoutthe
entire Gulfaf Mainarea Figure 25shows species that rangesouthwestwardfrom the
Scotian Shelacrossthe Northeast Channelto the northeasternpart of Georges Bank
and within the Gulf of Maine.Figure 26rhowrthatthe importantcommercial species
of cod, haddock andpollockhaveno distributionalbreakai the Northeast Channel.but
range from northeast to southwest before taperingoff southwest of the Great South
Channel. Figure 27also rhowrthe species transitionzonein the GreatSouth Channel
area. SeeCanodion Counicr-Memorioi. Annexes.Vol. 1pp. 66-67. para. 107and the
studyby J. B.Coltoer nt.citcd thcrein.
" Conodion Counrer-Mernorial, Annexes.Val1.pp.72 ff. paras. 119ff.
"Unired Sroies Counrer-Memorinl. Morine Environmen1 Annex. Vol. 1. Part A.
Anner 1. pp.88 If, paras.65 Ki771 REPLYOF CANADA 69

Section V. The United States Greatly Exaggerates the

Importance of the Northeast Channel

185. The United States Memorial exaggerated beyond recogni-
tion the geornorphological and oeeanographic importance of the North-

east Channel. The United States Counter-Memorial carries this process
further and speculates about what the marine environnient in the Gulf of
Maine area would be like in the absence of the Northeast Chann~l'~.
This exercise can have no relevance in law.

186. The United States Counter-Mernorial claims that the

Northeast Channel "determines" the circulation pattern and the physical
characteristics of the waters of the Gulf of Maine Basin and of Georges
Bank4'.The fact -is that the oceanography of the Gulf of Maine area is
determined by factors and processes that operate both locally and on a

vast geographical scale: the Northeast Channel is simply one of the fea-
turcs that contribure to determining the oceanography of the Gulf of
Maine.

187. As evidence of the alleged controlling role of the Northeast

Channel, the United States Counter-Mernorial asserts that 60 to 70 per-
cent of the annual inflow of water into the Gulf of Maine Basin enters
through the Northeast Channel". The authority cited for this statement,
however, nowhere mentions this percentage and never compares the flow

through the Northeast Channel to the total inflow in10 the Gulf of
Maine Basin". The United States assertion, accordingly, is incorrect or
unsubstantiated, or bath.'. Moreover, in making this assertion, the
United States overlooks one of the most salient features of the large-

scale water movements that dominate the Gulf of Maine area. It is the
colder and less saline waters frorn the Canadian coastal areas to the
north, carried by the Labrador and Nova Scotia currents, that pass

'Dunii~d Srnres Counrer-Mernorialpp. 40 and 43. para. 51; pp. 203-204. para. 316;
Unilcd Sioies Counrer-Mernorial. Morin? Environmenr Annex. Vol. 1, Part A.
Annex 1. pp. 167ff.
''Unired Slnres Counrer-Menzoriapp. 43-44, paras. 52-54.

UniredSlnrer Counier-Mcmoriol,p. 43. para. 52.
"S. R. Rarnp. R. J. Schlitz and W. R. Wright: "Northcast Channel Flow and the
Georges Bank Nutrient Budget." Paper prepared for prerentation al ihc International
Council for the Exploraiion of the Seas (ICES). 1980. United Bores Counier-
Memoriol. Morin< Environmeni Annex. Vol. 1. PartA, Annex 1. pp. 23 and 27.
para.12and fwtnote 5.
It is alra direcily caniradicied byseveral reports ihat conclude ihat the greatert shareof
inflowinta the Gulf of Maine cornes [rom the Scotian Shelfand not from the Northcasi
Channel. See C. N. Flagg, BA. Magnell. D. Frye, J. J. Cura. E. McDowell and
R.1. Sorlet:InierprerarioO/ rhe Physical Oeeonogrnphyof Georges Bonk. Final
Rpporr. Washington, U.S. Department of the Inicrior, 1982;T. S. Hopkins and
N. Garfield: "Gulf of Maine lntermediatc Water."Journal O/ Marine Reseorch.
Vol. 37.No. 1. 1979, p. 10): W. S. Brownand R. C. Beardsley: "Winter Circulation in

the Western Gulf of Mainc: Part: Cwling and Water Mass Formation.'Journol O/
Physirol OceonogrophyVal. 8. No. 2. 1978,p. 265.70 GULF OF MAINE 1781

across Georges Bank and create thermal conditions appropriate for the

Bank's predominantly northern plant and animal specie~'~.And it is this
combination of factors that links Georges Bank to the chain of offshore
banks extending from the Scotian Shelf to the Great South Channel.

188. In a further attempt to counter the fact that the marine
environment on Georges Bank is largely the product of northern forces,

the United States Counter-Memorial alleges that "[tlhe infusion of
water through the Northeast Channel into the Gulf of Maine Basin has
a profound effect on the temperature, salinity and vertical mixing of the
waters in the Basin*". [Italics added.] In support of this erroneous

proposition, the Annexes to the United States Counter-Memorial
(Volume 1, Part A, Annex 1) contain a series of illustrations that show
water-column temperature, salinity and density alonn the eastern North
American Coast a1 different seasons of the iear, in a series of super-

imposed grids". Yet these figures hardly can be said to demonstrate the
existence of "seoarate and identifiable ecoloeica- resime-". Rather. thev , ,
show that the oceanographic régimeon Georges Bank is part and parcel
of a northeast to southwest continuum They support the Canadian view
that there is a progressive modification of the waters of the Gulf of

Maine area in their southwestward course along the Scotian Shelf to
Georges Bank and beyond, and that the significant differentiation is
between shelf water and warmer slope water further offshore.

189. Perhaps the most striking use of exaggeration in the United
States Counter-Memorial is found in Figure 26, which purports to depict

the seafloor of the Gulf of Maine area. The United States does not indi-
cate what vertical exaggeration has been used in the preparation of this
figure48.According to Canada's analysis, the seafloor topography has

"The United Statcs alsa attempts la minimize the impact 01fresh-water discharges from
Canadian rivers on the Gulf of Maine. Contrary to United Statcs assertions. fresh
water has an important impact on the marine environment in thc Gulf of Maine. See
D. F. Bumpus: "Sources of Water Contributcd to the Bay of Fundy by Surlace Circula-
tion."Journolof the FisheNes Reseorch Boord of Canada, Vol. 17, No. 2, 1960.
pp.181-197. Moreaver, the United States is incorrect in claiming that only one-third of
fresh-water dischargernesfrom the Bay 01Fundy and Nova Scatia. In making its cal-
culatians[Uniled Sloies Counier-Mcmoriol. Marine Environmeni Annex,Vol. 1, Part
A,Annex I. pp. 23 and 27. para. 121,the United States did not include the 30 percent
originating lrom the Saint John River drainage basin and har neglected as well the
otherrivers draining into the Bay of Fundy, which tagether with the Saint John River
account forover 50 percent of the fresh-water discharge into the Gulf of Mainc. See
Canodian Counler-Memorio/, Ann~xcs, Vol. 1, Chap. il; Hydrologie01 Ailas of
Canada. Ottawa, Department af Energy, Mines and Resources. 1978.
plate 22; and C. D. BuSfreomflow /rom the United Srores inio ihe Ailonric Oceon
During 1931-60. United Statcs Gealagical Survey Waler-Supply Paper 1899-1. Wash-
ington,overnmcnt Printing Office1970.pp. 1-136.
46UniredSioies Counr~r-Memorinl,pp. 43-44, para54.

''Unired Sroies Counrer-Memoriol. Marine Environmen! Annex. Vol. I. Part A,
Annex 1, Figures 12-14,
'OUnired Siaies Counier-Memorial,p. 205, Figure 26. Indeed. the United States never
indicaies the degree of vertical exaggeration ured in any 01its figures. 1791 REPLY OF CANADA 71

been exaggerated 400 rimes; at the same time, the seaward "face" of the
continental margin has been cut off to show only a small part of this

escarpment-like feature and so place superficial features on the shelf-top
into grealer relieL

190. In reality, of course, the seafloor of the Gulf of Maine area
@) presents a very different picture. Figure 17 of the Canadian Counter-
Memorial showed two computer-generated perspectives produced from
bathymetric contours taken from existing United States and Canadian

ch art^^^. s is evident. even when the seafloor relief is exaggerated rive
times, the Northeast Channel is barely perceptible. Without any vertical
exaggeration whatever. the continental shelf - and indeed the entire
continental margin - would be seen as practically featureless. It is this

latter image. of course, that most closely approximates reality when con-
sidering the geomorphology of so vast an offshore arca. Rcgardless of
the repeated United States contentions about the Northeast Channel, the
fact is that if the ocean were drained, the entire continental shelf from
northeast to southwest would riot differ appreciably from a Dutch land-

scape and would show no evidenceof a "natural boundary".

Section VI. The United States Greatly Understates the Importance
of the Bay of Fundy in Attempting to Magnify the

Role of the Northeast Channel

191. In its efforts to magnify the role of the Northeast Channel,
the United States Counter-Memorial asserts that it has "profound
effects on the marine environment of the Gulf of Maine Basin and

Georges Bank, which, contrary to Canada's assertions. the Bay of Fundy
does notsO".Canada has already demonstrated the vital importance of
the Bay of Fundy in shaping the tidal régimeand the oceanographic con-
ditions of the Gulf of Maine area". The view of the importance of the

Bay of Fundy reflected in the United States Counter-Memorial differs
radically from views expressed in recent United States Senate hearings
and in a rocent diplomatic note from the United States concerning the
environmental impact of Canadian tidal power projects in the Bay of
Fundy.

" Conndion Counler-Mernorialpp.72-73,.para180.
United Srarcs Counier-Mernoriop.38,para.46. lcatnot5.
Canadion Meniorin/. p.50. para. 92; Conodinn Counler-Mernorial, p. 76,paras.
186-187 .he linkktwccn the Bayal Fundyand the ouier Gulf af Maine area ir both
oceanographicand geological.The rame bandof basemenracks(the Avalon Plailorm)
extends lmm the Bay of Fundy throughoutmuch of the Gulf of Maine area.See
Conadion Mernorial.p.43.Figure 14.Therealsoeiists a scdimentcontinuiiyfromthe
Bayof Fundy sauthwardto GeorgesBank.Scc 1.E. Hazel:Arlonric Conlinmlol SheY
and Slope ofrhe United Sraies- Osrrocode Zwgeogrophy in The Sourhern Nova
Scorian And Norrhern Virginian Founa1 ProvinceUnited States Departmentof the
InterioGeologica Slurvey ProfessianalPape529-E.Washington.GovernmentPrint-
ingOffice.1970,p. ES, Figur3.Reply. AnnexesVol. II. PartIVAnner15.72 GULF OF MAINE [sol

192. In specially scheduled hearings on this matter by the United
States Senate Committee on Environment and Public Works, the Chair-

man stated:
"Concerns have been raised . .. that tidal power projects in the

Bay of Fundy could have adverse effects on the New England Coast
from the Gulf of Maine to Boston Harbour. Some studies suggest
that the Minas Basin project, which is being actively considered for
construction in Nova Scotia, would change the tidal range in Port-

land [Maine] by nearly a foot. This could have serious implications
for Our coastal environment, increasing storm damage to coastal
roads and buildings and altering fisheries and shellfish
productions'."

Similar concerns were voiced in the diplomatic note referred to above. In
that note, the State Department made the followingcomment:

"lt is the Department's concern that these proposais, if they are to

be implemented with resultant tidal flow impediment, would have
pronounced effects on the entire Gulf of Maine, hundreds of kilome-
ters removed from the actual dam sites. This is because the pro-
posed dams will enhance the natural tidal resonance of both the Bay
of Fundy and Gulf of Maine"."

It can be seen from these United States sources that the Bay of Fundy is

an integral and critical part of the Gulf of Maine area. Its importance is
an accepted fact that does not require demonstration by imaginative
"scenarios" about the consequences of its possible disappearances'.

" Staternent olsenator George J. Mitchell, United States Senate, Committce an Environ-
ment and Public Works. "Ficld Hearing: Eflects on New England 01 Canadian Tidal
Develapment." Augusta. Maine. 25 July 1983. Reply. Annexes, Vol. II. Part IV,
Anncx 16.
"United States diplamatic note. 27 August 1981. Reply. Annexes. Vol. II, PartIV.
Annex 17.

" Moreovcr, the United States claim that the physical aceanography of the Gulf of Maine
area wauld be radically altered if the Northeast Channel did no1 exist is na1 docu-
mented. To appraise the validity of the United Siates assertions, Canada used a cam-
outer model to invest-eate the nature of the tidal réeimein the Gulf of Maine area
under altercd b~ih>rnrtri; r.andii.onq The rtruli, dciiionrtr~tc\lriLin&l)ihîi ihe DJ) JI
t~nd) a f~rrndrc imwriini rolin dricrmining ihc tidc, and tJrrcin.ihrGulf
of hlxini. ~rrihan doir iliSorihrd\i Ch~nncl Thc cflcii ul blwkin? thc Surthcdri
Channel by a barrage of 44 kilomctrcs by 88 kilomctrcs, and 70 metres deep. would be
a reduction of tidal arnplitudc of anly 7-9 perccnt and a delay of high and low water
timeaof only about 10-15minutes. By contrast, blocking the Bay al Fundy would result
in enormous changes in tidal amplitude, including a 34 percent increase at Bostonand a
13 percentecrease at Yarmouth, and a delay in high and low watcr limes of as much
as 2.4 hours. The cornputer madel used inthese calculations is an adaption of the model
dircussed in D. A. Grcenberg: "A Numerical Model Investigation of Tidal Phenamena
in the Bayof Fundy and Cullof Maine." Marine Geodesy, Vol. 2, No. 2, 1979. p. 161;
and D. A. Grecnberg: "Modelling the Mean Baratrapic Circulation in the Bay of Fundy
and Gulf of Maine."Journal ofPhysicolOeeonogrophy ,ol. 13,Na. 5. 1983p. 886. 1811 REPLYOF CANADA 73

Section VII. The "Natural Boundary" in the Gulf of Maine Area
1s an Ad Hoc Conception Not Found in Previous
Scientifie Publications on This Area

The United States tortures the notion of "ecosystems" and
193.
"ecological regimes" in an effort to prop up its speculations regarding
natural boundaries in the sea. Almost any region or area can be chosen
for treatmcnt as an "ecological regime" or "ecosystem". Individual parts
of Georges Bank itself might be considered to constitute "ecological
regimes". Alternatively, a researcher might choose to examine a larger
unit.such as the entire east Coast of North America. as an "ecological
regime". The choice of unit that constitutes the so-called régimeis left
entirely to the discretion of the examiner. The area that the United

States refers to as comprising "three separate and identifiable ecological
regimes" could equally well be examined as one régimeor as 20 separate
régimes,depending on the level of organization chosen for the investiga-
tion. Statistical units 5Zeh and 5Zen in subdivision 5Ze of the North-
west Atlantic Fisheries Organization (NAFO) could jus1 as legitimately
or illcgitimately be described as "ecological regimes" as the three
"regimes" proposed by the United States. Similarly. the line that divides
statistical units 5Zeh and 5Zen from statistical units 5Zej and '5Zem
could just as legitimately or illegitimately be presented as a "natural

boundary" as the line that separates subdivision 5Ze from subdivision
@ 5Zw, or the line that separates subarea 5 from subarea4 [Figure 181.

194. Perhaps the best description of the problems inherent in
identifying "ecological regimes" inthe waters of the sea is provided in
the following passage [rom the United States Counter-Memorial, where
a particular kind of measurement is rejected because it "unavoidably
reqrrires rhar assumptions bc~made, paramerers chosen. and data
selecred . . ." and because the factors concerned, even if they could be
measured accurately, "are variable and unpredictableJ'". [Italics
added.] The United States in this passage is expressing ils reluctance to

attempt a measurement of ecoiiomic dependence. That reluctance, how-
ever, would more properly apply to the task of identifying "ecological
regimes" that indicate a "natural boundary" for a marine environment
whose complexities still largely escape man's understanding.

195. Quite apart from the scientific difficulties associated with
the very concept of an "ecological regime", it is notable that the United
States hasnot been able to cite any scientific work on the Gulf of Maine
area - published before the institution of these proceedings - that
describes three "separate and identifiable ecological regimes" in this

" UnitedSioreCounler-Mernorial. p. para.342.74 GULF OF MAINE i821

area. Nor has the United States been able to cite any scientific work
that describes the Northeast Channel as a "natural b~undary'~".

Section VIII. The Myth of the "Natural Boundary"Cannot Be
Substantiatedon the Groundof Alleged Incompatihility

of National Fisheries Policies

196. The United States Counter-Memorial brings a new dimen-
sion ta the thesis of "single-State management" or administrative con-
venience advanced in the United States Memorial: namely, that the
United States must obtain al1of Georges Bank because the fisheries poli-

cies of the Parties are incompatibleJ7.This attempt to provide some legal
underpinning for the myth of the "natural boundary" must surely fail.
For if "peaceiul coexistence" in the field of fisheries can only be
obtained at the price of monopoly and isolationism, there can be no pos-
sibility of achieving an equitable result. Indeed, the very concept of
transboundary resources of any kind must disappear if the United States

view is to prevail.

197. Fortunately, this bias against cooperation in the manage-
ment of transboundary resources is not reflected in North American
experience, as has been shown in the Canadian Counter-Mem~rial~~.Nor
are the differences between the fisheries policies of the Parties as great
as the United States Counter-Mernorial now suggests. In a formal reply

to a Congressional inquiry, the head of the National Marine Fisheries
Service described ihe Canadian-United States fisheries relationship in
the followingterms in 1979:

"Question I(b). ldentify any incompatibilities which exist
between Canada's approach ta and practice of fishery management
and U.S. activities in the field.

Response.We are unable Io offer examples O/ clearly defined
incomparibilitiesbefweenthe United Srares and Canada regarding
prinriples O/ fishery management. As a result of Our mutual

dependence on similar species in the Northwest Atlantic, bath coun-
tries have shared past efforts within the framework of international
management regimes to promote conservation and management of
fish stocks on a rational basis. The past participation of both the
United States and Canada in the International Commission for the

"A computer search haa revealed no scientific papers that describe a break bctween "eco-
lagical regimes". "ecological sysiems", "ecalogical communities". "plankton communi-
lies". "benthic communities". "ecological models". or that suggest that a "naiural
baundary" exists at the Northeast Channel. Twa standard scientific dawereanks
used for this searcBiosis PreviewPhiladelphia. Biasciences Informaiion Service.
Abstracls. 1964-1983.ic Abrlrocrs.Bethesda, Maryland, Cambridge Scientific

" United SlafeCounler-Memoriol.pp. 222-224. paras. 359-365.
'Tonadion Counler-Memorio/pp. 174-177,paras. 423-430.1831 REPLYOFCANADA 75

Northwest Atlantic Fisheries (ICNAF), and their continued partici-
pation in a number of other international fishery commissions

reflect a similar approach to fisheries issues. Both countries attempt
to manage fisheries on the basis of optimum yield concepts. Fur-
thermore. Canada's biological objectives are essentially similar to
our own as are the scientific tools employed to conduct stock assess-
ments and to analyze impacts of various management optionss9."
[Iralicsadded.]

198. Leaving aside the deficiencies of the United States Counter-

Memorial's portrayal of fisheries relations between the Parties, it must
be recalled that the 200-mile fishing zone is still a new phenomenon for
both countries. Management policies are still evolving. The United
States itself has noted that there have already been changes in some of
its management policies during the brief period since the creation of ils
200-mile zone; and it is upon these changes that the United States relies
in support of its hypothesis of c~nflict~~.No doubt there will be further

revisions inthe future. None of these policies has an entrenched status in
either the United States or Canada; they are pragmatic and flexible
practices that are open to change at any time. Canada had no difficulty
in subscribing to a code of basic management standards derived from the
United States Fisheries Conservation andManagement Actof 1976 for
the purposes of the 1979 Agreement on East Coast Fishery Resources
(Article X)6'.Despite the changes in administrative practicesalluded to

by the Uniied States, the same set of basic principles continues to form
part of United States fisheries legislation in unaltered form. It would
clearly be unwise to attach any weight to speculation about how "con-
flict" might conceivably develop in future years; such exercises are based
on conjecture and hypothesis alone - and they are in any case irrelevant
in law.

199. It must also be emphasized that United States arguments of
administrative convenience aiid incompatibility of fisheries policies.

while used to support the United States thesis of the "natural
boundary", themselves depend on that same thesis; the arguments, in
other words, are circular. While Georges Bank is an area of concen-
trated biological abundance, the fish that are found there do not repre-
sent a "common pool" as alleged by the United States6'. Even the
so-called "Georges Bank herring stock" is given this label only because it
spawns on Georges Bank and not because it is restricted to the Bank.

" Lelter from Mr. Terry Leitzell to UnitedStaies Senator Cohen.21 Dccember1979.
givinganswersto questionsfromSenatorCohcnrclatingio the United States-Canadian
FisheriesAgreement.inorilime BoundarySetrlemenrTreoryand EosrCoosrFishery
StatesSenate". 96th Congress.2nsess.1980. pp. 185-186Reply. AnnexesVol. II.
Part IV,Annex 18.

UnitedStatesCounter-Memorio!p. 223.para. 364 andfootnatc2.
" CanadinnMernorial,AnnexesVal. 1,Annex20.
" UniredSrnlesCounier-Memoriolpp. 218-219.paras.352-354.76 GULF OFMAINE i841

Present management units in the Gulf of Maine area do not correspond
to biological stock units. The fisheries management policy of the United
States, moreover, is not based on stocks or even single species but essen-
tially on mesh size alone. Finally, and perhaps most important, the rela-

tions of the Parties in the field of fisheries are no more amenable to a
policy of isolationismthan are their relations overall.

Conclusion

200. No single line can provide a "natural boundary" for the con-
tinental shelf and water column resources of the Gulf of Maine area.
Both the unity and complexity of the area are incompatible with such a
concept. Environmental risks from a pollution incident on Georges Bank
- although much greater for Canada - are common to both Parties,
and the only solution to problems of conservation and management of

transboundary resources, here as elsewhere, is to be found in coopera-
tion. The single maritime boundary in the present proceedings must be
defined by the application of equitable principles. TheCanadian line sat-
isfies these principles and respects the affinities between Georges Bank
and other Canadian offshore areas to the north and northeast.78 GULFOF MAINE i861

type to which the Court attached considerable importance in the
Tunisia-Libya ConrinenralShelf case.
The United States Counter-Memorial also attempts to bar
203.
consideration of the indicia of equity provided by the 1979 Agreement
on East Coast Fishery Resources. This attempt cannot be sustained in
the light of the provisions of the Special Agreement and the requirement
that al1the relevant circumstances must be taken into account. The 1979
fisheries agreement is an integral part of the history of the dispute and
provides the best objective evidence of what the Parties themselves con-
sidered an equitable solution in relation to fisheries.

204. The United States Counter-Mernorial also fails to refute the
clear evidence that Canada's status as a coastal State in relation to
Georges Bank was recognized in the express terms of the International
Convention for the Northwest Atlantic Fisheries, and in quota alloca-
tions determined by the Commission established thereunder. Instead, the

United States has attempted to argue that the ICNAF record illustrates
the "predominant interest" of the United States, and to this end it has
adopted an irrelevant and biased geographical frame of reference. When
accurately depicted, Canada's record within ICNAF remains more than
commensurate with Canada's boundary claim.

205. Both Canada and the United States attach importance to
the conduct of the Parties as a relevant circumstance in this case.
Canada has relied upon conduct directly associated with the rights and
jurisdiction in issue:amely, conduct in relation to the mineral resources
of the continental shelf in the Gulf of Maine area, to the negotiation and
signature of the 1979 Agreement on East Coast Fishery Resources, and
to activities within the framework of the International Convention for
the Northwest Atlantic Fisheries. The United States. on the other hand.

has relied largely upon conduct in no way associated with the rights and
jurisdiction that will be affected by this delimitation. Thus. it has
invoked such irrelevant activities as air traffic control and air defence
zones; wartime convoys; cooperative arrangements for search and rescue
purposes; eighteenth- and nineteenth-century cartographic activities; and
so on. Canada reaffirms its position that these activities - quite apart
from the inaccuracies in their presentation by the United States - are
extraneous to the legal régimein issue and cannot be taken into account.

Section 1. The United States Has Failed to Refute Canada'sPosition
Respecting Acquiescence and Estoppel

In its Mernorial and Counter-Mernorial, Canada has dernon-
206.
strated al1 the requisite elements of State conduet by both Parties,
during the 1960s. to establish that the United States acquiesced in and
recognized the use of the equidistance rnethod in the Gulf of Maine
area and the exercise of Canadian continental shelf jurisdiction on REPLYOF CANADA 79
i871

Georges Bank up to a median or equidistance line'. The conduct of the
United States has created an estoppel in favour of Canada, and the sin-
gle maritime boundary to be determined by the Court should be compat-
ible with the rights that vested in Canada during this period.

207. Canada has showii that its issuance of permits up to the
median line was a manifestly public activity; that the United States
Department of the lnterior and the Department of State were on notice
both of the Canadian claim and of the permits themselves; and that,
rather than offering any protest, the United States merely questioned the

precise "location" of the equidistance line. Indeed. as is evident from
official correspondence, the United States Bureau of Land Management
("BLM"), in fulfilling its responsibilities with regard to United States
continental shelf policy, was itself assuming the application of a median
line in the Gulf of Maine area - and apparently even a specific line
known as the "BLM line" (discussed in paragraphs 237 to 242).

208. The criticism of Canada's position in the United States
Counter-Memorial is misconceived. It fails to distinguish between the
legal elements of acquiescence and those of estoppel, and it attempts

to suggest omissions in Canada's legal presentation by inventing non-
existent "essential aspects" or "requirements" of the law. While making
factual admissions that confirm the Canadian position, the United States
nonetheless seeks to give patently implausible interpretations to the facts.
investing them with a burden that they simply cannot bear.

209. In attempting ta rebut Canada's presentation. the United
States relies upon [ive main arguments, as follows:

(a) that Canada's issuance of offshore permits lacked "notoriety" and
constituted unilateral acts that cannot support claims of acquies-
cence and estoppel;
(b) that there was no clear conduct by the United States to establish

acceptance of Canada's exercise of jurisdiction on the basis of an
equidistance line;
(c) that the official upon whoseconduct the claims of acquiescence and
estoppel are founded must have the authority to bind the State;

(d) that the acquiescence of the United States was not of sufficient
duration; and
(e) that Canada did not rely to ils detriment upon the acquiescence of
the United States2.

' Conodian Mernoriol. pp. 159-180. paras. 385-427;Conodinn Counter-MernoNol.
pp.142-155,paras.356-381.
' Unircd Store5 Counrer-Memoriol, p. 155. para. 236The United Srotes Counler-
Mernorial, p179.para.287, alsargues that "Canada'sclaim of acquicscenceignores
the fisheries andher dimensionsof thcase".This argumentis withoui rneritfor a
numberof reasans.Firsithe Canadian Memorialand Caunter-Memorialhave shown.
andthis Replycanfirms.that theCanadianline represeanequitableresulithat takes
accouni of al1 the relevantcircumstïnces. seeondly. awas demonstraledin the
Canadian Counter-Mernorial.thc 1979 Agreementon East Coast Fishery Resources
demonstratesthat the fisheriesdimensionof ihis case is consisannequidistance
baundary.80 GULF OF MAINE 1881

The following subsections will show the lack of foundation of each of
these arguments.

A. THEUNITEDSTATES HADFULLKNOWLEDG EF CANADA'S
PUBLICACT~V~TIE INSISSUING OFFSHORP EERMITS;

"NOTORIETY'I~ S ~RRELEVANT

1. The Canadian Offshore Permit Program

210. Contrary to the suggestion made in the United States
Counter-Memorial'. Canada has never argued that a State can establish

an international boundary by purely unilateral acts, regardless of the
legal position of its neighbour. The legal relevance of Canada's offshore
permit program from 1964onward lies elsewhere: that is, in the fact that
the program involved the exercise of Canada's sovereign righfs in the
context of the legal principlesrelating to the continental shelf. Since the

rights of the coastal State "exist ipsofacto and ab initio, by virtue of its
sovereignty over the land4", they do not require to be constituted by any
express declaration, proclamation or legislation, notwithstanding United
States assertions to the contrary5.

211. The Canadian offshore permits provide evidence - together
with other evidence in the form of documents and maps - of the
Canadian Government's adoption and adherence to a particular delimi-

tation of the continental shelf as between the Parties. There is no
ambiguity in this evidence and never was. The question that must be
addressed here is whether the United States was aware that Canada was
exercising its sovereign rights up to an equidistance boundary on
Georges Bank.

2. UniredStares Knowledge of the CanadianProgram

212. The United States Counter-Memorial does not dispute

Canada's issuance of the relevant offshore permits; does not deny that at
least by early 1965 the United States Government was in possession of
official maps showing the location of these permits; and does not deny
the receipt of official Canadian communications regarding the permits6.

' UnitedSlotesCounrer-Memoriol,p. 156, para. 237; pp. 173-175. paras. 272-273. The
quotation from a Canadian Government dacument in para. 272 is taken out of conter1
and misconstrued. It refcrs to the developmentof the law of the continental shelf. no1to
maritime boundary qucstions. and ir misused by the United States ta suggest that
Canada agrccs that the exercise of continental shclf rights requires a priar praclama-
tion. Ii may be nated that the doinquestion alro pointed out that:
"Canada's jurisdictional claims to minerals of the juridical continental shelf
havebeen asserted by the issuance and administration of Canada oil and gas per-
mils coveringextensiveareasof the continental shelf and slope,and portions of the
rise. by the supervision and rcgulatory contra1of aresourcactivities in
thisregion (Figure 5). as well as by declarationr in Parliament, at the United
Nations. and in other forums."
'Norih SeoConrinenrolhelfcasesICJ. Reporis1969,p. 22, para. 19.
UnitedStatesCounler-Memoriolpp. 173-175,paras. 272-273.
UniredSlotesCounier-Memoriolpp. 171-172.paras. 268-269; p. 177,para. 282.1891 REPLYOF CANADA 81

Moreover, the United States does not disavow the correspondence its
agencies entered into with Canadian officiais regarding the Canadian
permits and regarding the equidistance line within which Canada was

exercising its jurisdiction. Rather, the United States Counter-Mernorial
simply asserts that Canada's offshore permit program somehow lacked
"notoriety'".

213. This alleged requirement of "notoriety" adds nothing to the

normal legal requirement of "public activitys", and the Canadian pro-
gram was by its very nature a manifestly public activity. In any event,
the United States Counter-Meinorial admits that the Government of the

United States had knowledge of the Canadian permits and their legal
implications as early as April 19659. The official correspondence pro-
vides irrefutable evidence of this fact. Not only the United States Gov-

ernment but also state governments and interested cornpanies and
individuals were well aware of Canada's permits and Canada's use of an
equidistance linelo.

1. ThePrinciple of Acquiescence

214. The essence of the principle of acquiescence is one govern-

ment's knowledge (actual or constructive) of the conduct or assertion of
rights of the other government concerned, and its failure to protest that

'Uniied Slote~ Counrer-Memoriol. p. 173. para. 271.
8While the United Sloics Counrer-Mtmoriol. p. 156, para. 238, relieupon Professor
MacGibbon's classic article "The Scope of Acquiescence in International Law"[The

British Yeor Book of Inlernolional Low.Val. XXXI. 1954. p. 1431,the conter1 shows
that Profersor McGibban is explaining that the acquiescing State cabeoheld10have
cansented to anything beyond the prccise situation about which it had knowledgeor
aught to have had knowledge.Moreover. on pp. 176.182, MacGibbon States that formal
notification of claims no1 required and that natice ma? be constructive. especially in
the care of legislalion and public acts. Canada's activities in granting ponmithe
continentalshelf were even more public than thare connidercd rufficient to establish
acquiescence in theIsland of Polmor case. Contrary to the allcgatians in tUnited
Stores Counrer-Memoriol. p. 157. para. 239. the Court applied the doctrine of con-
structive notice in both Fisheriercase [I.C.J. Reporrs 1951pp. 138-1391and in the
Temple of Preoh Viheor case. The United States misrtates the facts in Temple of
Preoh Vihear case: Thailand had nothing to do with the preparatian af the map. but

merely accepted the results of the work of the French surveyornand cartographers. Con-
trary to the assertion of the United States, theonithe map did no1reprerent Cam-
bodian claims; it resulted from a miitake by the cartogrnpherr. Finally. the decision of
the Court was expressly based upon the failure of the Thai authorities to protest the
mistake when the map was first received in 19[I.C.J. Xeporrs 1962pp. 20-231.
United Stores Counter-Memoriol. pp. 171-172, para. 268.

'oSee paras. 234-242, and Massachusetts Special Legialative Committee10 Study the
Marine Boundaries of the Conimonwealth, Record of hearing an 31 July
1968,pp. 17-18.82 GULFOF MAINE 1901

conduct or assertion of rights". Acquiescence,then, is mere silence or
inaction wherea reaction - a prompt, clear and unambiguous protest
- is called for. There is no question of a transaction or quasi-treaty.

The knowledge, coupled with silencei,s taken to be a racir acceptance.
There is no questionof authority to bind, because it is not the statement
of a particular officialbut the inactionof the government itself that con-
stitutes acquiescenceand acceptance. The result of such acquiescenceis,

of course, that a State is later precluded from denying or going back
upon itspreviousacceptanceof the situation in question".

2. The CanadianContention

215. Canada's real contention -- as distinct from the one
attributed to it by the United States - is a limited and unexceptionable

one: that the United States, by itsconduct, communicated its acceptance
of an open and known legalposition heldby Canada when it failed to
protest in the face of public activities affecting the legal rights of the

Parties and the legal relations between them. As a matter of fact, the
United States Government,from at least April 1965, had full knowledge
of the Canadian permit program and of Canada's use of the equidistance

method of delimitation for thispurpose, and refrained from reserving its
rights in this matter until 5 November 1969" (and did not actually disa-

''H. Lauterpacht: "Sovereigniovcr Submarine Areas." The Brirish Yeor Bookoflnrer-
norionolLaw. Vol. XXVII. 1950. pp. 395-398, quoted iConndionMernorial. pp. 172-
173, para. 413. 1.C. MaeGibbon has discursed this principle in iwo important works:
"Same Observations on the Pari of Pratest in International Law.The Brirish Year
BookoflnrernorionnlLow, Vol.XXX. 1953, p. 293 and "The Scope of Acquiescence in
Iniernaiional Law."The BriiishYeor Bookoflnlernorionnl Law. Vol. XXXI. 1954. p.
143. In the latter articletaies al pp. 170-171:

"Whether silence is to be interpreted as amounting to acquiescence depends
primarily on the circumstanccs in which the silence is ob...vIt is difficult ta
believe that States will remain silent withaut good reasan in the face of acts in
derogatian of their rights if they have even the vestige of a justification for reten-
lion of the rights in question. It is a matter of observable fact that the formulation
of notes ofpratcsi is a eonstantly recurring feature of the diplomatic practice of
States. What is remarkable is their frequency and thc variety of the subject-
matters with whichthey dcal. The very plethora of notes of protest. while iending
ta vitiate facile or aptimistic generalizations canccrning their leservestoct,
characterize as noteworthy a failure to utilize this adaptable instrument in situa-
tions where ils use would normally be expected.Theformulalion of o proresr
would nppeorro be olmosi on insrincrivedgfencemechanism.and rhir circum-

sroncehosled rribunalsro scruiiniie wiih o eerroindegreeofscepricismthe reo-
sonsadvoneedby o pnrry ro excuseifs/oilure IOproresrin oppropriolecircum-
sronces."[lrolicsodded.]
Reply,Annexes, Vol. II. Part IV. Annex 19.
"This is the principle of prcclusion. the "less rigidfarm af estoppel [Conadion
Memoriol. p. 177,paras. 420-4221that farmed the basir of the decisionsof the Court in

the fallowincases:Caseeonc~rning rheArbiirol Aword madeby rheKing of Spainon
23 Deeember1906, I.C.J. Reporrs 1960. p. 213 and individual opinionof Sir Percy
Spender, p. 219:Temple of Prenh Viheor case. I.C.J. Reporls 1962. pp. 30-33 and
individualopinionof Vice-Preaident Alfaro. pp. 39-42.
" United States aide-mémoire of 5 November 1969. Conodian Memoriol. Annexes,
Val. III. Annex 13. 1911 REPLY OFCANADA 83
vow equidistance or lay claim to eastern Georges Bank until 16 October

1974"). As a matter of law, this constitutes acquiescence.

3. Consistencyof UnitedSiates Conducr

216. The factual material adduced to support the United States
assertion of conduct inconsistent with Canada's claim is either evidence
to the contrary or evidence of nothing pertinent to the issue. As Canada
demonstrated in its Counter-Memorial. the idea lhat the Truman Procla-
mation of 1945 involved a boundary claim or a statement of delimita-
lions with other States is refuted by the tex1 of the proclamation itself

and its accompanying do~uments'~.The United States attempt to take
clear indications (by the United States Department of the Interior) that
a median line was appropriate, and transform them into s statement of
protest against Canada's use of such a line, similarly requires no other
rebuttal than the texts of the letters themsel~es'~.(The United States in

this instance assumes that Mr. Hoffman of the Department of the
lnterior could have the authority to "protest" but not the authority to
accept Canada's claim, forgetting at the same time the United States'
own argument that there was no Canadian "claim" to protest in the first
instance.)

217. As a matter of fact, it mus1be recalled, the first reservation

of rights on the part of the United States Government was contained in
its aide-mémoire of 5 Novemher 1969". The United States explicitly
recognized this in its diplomatic note of 20 May 1976'O.

218. In a further attempt to show conduct inconsistent with
acquiescence, the United States Counter-Memorial makes imprecise
allegations apparently designed to foster the impression that the United

States was issuing exploratory permits for the "northeastern part" of
Georges Bank in the 1960s". This proposition cannot be retained in view
of the fact that the State Department, as late as 5 November 1969, for-
mally assured the Canadian Government that with regard to the "north-
ern portion of the Georges Bank . . . the United States has refrained
from authorizing mineral exploration or exploitation in the areaZo".

"UnitcdStaicr diplomaticnote no. 216of 16 Octakr 1974. Conodion Mernoriol.
Annexes. Vol. IIAnncr 21.

" Conadion Counier-Mernoriol,p. 160.para. 392.Compare Uniied Srore3 Counrer-
Mernoriol. p. 176.para 279.For the icrt of thcTruman Proclamation .ec United
Siofes Mernoriol, Annexes.Vol. 1. Anncx 3.
l6United Siaies Counier-Mernoriap. 175,paras274-275. Forcomplctctcntrscc Icticn
of I April1965 and 14 May 1965 from L. T.HoffmanU . niiedSiatcsDcpartmen tf
the IntcriorBureau of Land Managementi.o CanadianDcpartmcni of Northern
Affairsand National Resources.Conodion Mernoriol. Annexes. Vol. III.Annexer
I and 4.
" Canadion Mernoriol.Annexes.Vol.III.Annex13.
'Tanodion Mernoriol. Annexes,Vol.III.Annex32.
'*UniiedSraies Counier-Mernoriofp. 176.para.280.
UnitedSiater aide-mémoir ef 5 Novcmkr 1969. Canadion Mernoriol. Annexer.
Vol.III.Anncr13.84 GULF OF MAINE 1921

Apart from this formal assurance to Canada from the United States, it

mus1 be emphasized that the United States lnterior Department, at the
relevant lime, took the position that United States geophysical survey
permits do not consritirte assertions of jrrrisdiction over the areas in
question".

219.
In faci, careful study of the geophysical survey permits
issued by the United States reveals a very different situation than that
described by the United States. Far from showing conduct inconsistent
with Canada's claims of acquiescence and estoppel, they provide con-

/irwriiig evidence of United States acquiescence in Canada's use of the
equidistance method. and evidence that the United States itself adhered
to a median linc in the Gulf of Maine area in the 1960s and into the
1970s.This evidence is reviewed in paragraphs 234 to 242.

4. Explicit Acceptnnce by the United States

220. The Court need not rely upon tacit acceptance alone in the
present case, since the United States gave clear and repeated indications
to Canada that the United States considered a mcdian or equidistance
line to be an appropriate and equitable boundary in the Gulf of Maine

area. In ils letter dated 1 April 1965, the United States Department of
the lnterior (the agency responsible for the United States offshore pro-
gram) expressed its interest in identifying the offshore permits issued by
Canada "with reference IO the median line as defined in Article 6 of the

Convention on the Continental ShelP2". The lnterior Departmcnt then
repeated its eoncern about "the location of a median line" in its letter
dated 14 May 1965, and in the same letter questioned only "the ele-

ments positioning a median line" as employed by Canada2'. These letters
clearly show that the United States accepted Canada's use of the equi-
distance method.

" As has been observedby a senior lnteriar Departmentofficial. the authoriîation al off-
shoreexplorntary activitie(even thore involving drilling) "does not nccessarilyimply
that theDepartmentof the lnteriar hasassertedjurirdiction over thresources of the
sea bottom in this region". This official further explained:
"As OurSolicitor's Officc haspointedout. the Secretaryof Interiinaddition to
theOuter Conlinenta1Shelf Lands Act, is autharicedand direcicd by Iîw fa regu-
laie the activities of the citizcnsof the United Statesfor purposeof proteciing the
environment. andproiecting living organismsin thsea,evenonthe high scas....
Thur. even though the Ouier Continental ShelfLands Act war involved with the
granting of these pcrmitr, it is the opinion oour Saliciior thait docs na1
automatically imply, becnuseof the otherresponsibiliiiesof the Departmcnt of the
Interior. ihat this becomesauiomaticalan assertionol jurisdictioverthe min-
eralresourcesof thesea botiom in theseregionsunder the International Conven-
tion ontheContinentalShelK"

Letier al3 June1968from M. B.Schacfcr.ScienceAdviser. United StatesDepartmeni
al the Inierior. 10R. B. Krucgcr. Citcd in R. Kruegerci 01.:Sfudy d/ihe Ouicr Conri-
nenial Shel/Londr ofthe UniredSiores. California. Nossaman.Watcrr. Scoit. Krueger
and Riardan. 1968,p. 20.Reply.Annexes. Vol.II.Pari III. DacumeniaryAppendix 9.
" Leiter ofI April 1965.CanodianMernorial. Annexer. Vol. IllAnn~x 1.
" Letter of 14May 1965.ConndionMemoriol. Annexes. Vol.Ill.Anncx 4. 85
~31 REPLY OF CANADA

C. THEAUTHORITY OF MR. HOFFMAN AND OF THE UNITEDSTATES
DEPARTMENT OF THE INTERIOR 1sNOT IN ISSUE

1. TheAuthority of Mr. Hoflman

221. The United States Counter-Memorial errs in alleging that
the official upon whose conduct claims of acquiescence and estoppel are

made must have authority to bind the State". This "requirement" is an
invention in relation to the law of acquiescence, and a misstatement in
relation to the law of estoppelZs.Acquiescence in this case flows from the

conduct of the United States Ciovernment - from its failure to protest
when it should have done so - and not from the authority of any par-
ticular official.

222. With respect to the explicit acceptance or recognition of

Canada's use of the equidistance method in its permit program, Mr.
Hoffman was clearly writing on behalf of the United States Department
of the Interior. In the Temple of Preah Vihear case, the Court stated

that the acts and words of even junior officials acting within their man-
date would engage the good faith of their governments and preclude
those governments from subsequently changing their positionsz6.Gener-

ally, courts and tribunals have not been concerned with the status of

l4Uniied SioresCounler-Memoriol.pp. 158.162, paras. 243-251.
" In the case of estoppcl or preclusion it has always been clcar that authority can be
implied and that international courts and tribunalsaccept the idea of "appareni"
auiharity. See the passage fram Professor Bawctt quoted UniredSroresCounrer-
Memoriol, p. 158.para. 243. The United States omits the rest of ihc passage in which

he cites thSolvndorCommercia lo. caseand theRussianIndemniry case, in bath of
which minorofficialswere considercd io have appropriate authority.
"I.C.J. Reporrs 1962,pp. 24-25. Pn~fesror D. H. N. Johnson has commented on the
questionof the acts of juniar,afficials with respect to "the principle of preclusion" as
elabarated in tTempleqfPreoh Viheorcase:
"This principleir noseen 10be an extrernely signifionetin international law,

clearlya rule of substance and no1merely of procedure. The effect of this dccision
of the Court, following"panother decisio(cg., Fishericase,Amborielos case.
and case concerning thArbirrol Aword made by the King o/Spoin on December
23. 1906)should be io place governments more than ever on their guard. particu-
larly as to the acts and omissions oftheir onor neeessorilyalwoyso/ficiols
O/ the highesrronk. As Vice-Presidcnt Alfara said: 'The primary foundation of
this principle thegoad faiih that mus1 prevail in international relations. inas-
much as inconsistencyof conduct or opinionon the ofa State to the prejudice
of another is incompatible with good fai[Irolirs oddedl

"The Case concerning the Temple of Preah Vihear.The Iniernorionnl ond Comparo-
riveLow Quorierly,Vol. 11, 1962,p. 120Reply. Annexes,Val. II, Part IV, Anner 20.
Philippe Cahier has madesirnilar comments in: "Le cornpartement des Etats comme
sourcede droits et d'obligatioRecueild'étudesdedroir inrernolionalen hommageà
Pou1Guggenheim.Genève, 1968,pp. 237-244.86 GULFOFMAINE 1941

officiais, and have based their decisions upon the importance of good
faith and stability in relations between States".

223. At the very outset of his letter of 1 April 1965, Mr. Hoff-
man cited the responsibility of the Bureau of Land Management (as a
unit of the Department of the Interior) for "mineral leasing" on the con-
tinental shelf of the United Stateszs. He later stressed that his inquiries

were intended "solely in the interest of seeing if there is a basis for disa-
greement as to the location of a median line separating Our respective
jurisdictions on the Outer Continental Shelf". If there was in fact a dis-
pute, then the Bureau of Land Management had "no authority to enter

into any formal discussion of the location of a median line". If, on the
other hand, there was "a simple misunderstanding . .. of the elements
positioning a median line", the matter could then "be amicably deter-
mined without resort ta high authorityZ9".[Italics added.]

224. Mr. Hoffman's letters, in brief, must be viewed from a num-
ber of perspectives. First, they provide evidence - if evidence were

needed - of United States knowledge of the Canadian offshore permit
program and of Canada's use of an equidistance line; and in this respect
the question of his authority is irrelevant. Secondly, they provide evi-
dence of the line contemplated by the United States itself in relation to

its own offshore minera1 leasing program, actual or projected; and in this
respect his authority has not been denied by the United States. Thirdly,
as confirmed by the subsequent conduct of the United States until 5
November 1969 (and perhaps later), they provide evidence of the fact
that there was no dispute between Canada and the United States regard-

ing the assumption of both Parties that a median line boundary was
appropriate; the only questions remaining to be settled concerned the
"location of' or "elements positioning" the median line, since each side
had drawn its own line (as will he seen in the discussion of United States

geophysical survey permits in paragraphs 234 to 242). In this latter

"The UnitedSioies Counier-Memoriol.pp. 161-162.para. 252: p. 162,fwtnote I, points
out that Canada cited theCase concerningihe Arbilrol Award mode by rhe Kingof
Spain on 23 December 1906. I.C.J. Reporis 1960. p. 192, as a decisian based upon
acccptanceor recognition by conduct. and cornplains that the Canadian Memorial did
not discuss the nature of the case. While Canada agrecs with the summary of the case
in the United States Caunter-Memorial. il mubeemphasizcd ihat the Court did nat
even discuss the status of officiais. Furthenoneeof the comrnentsin the Unircd
Siores Counier-Memorio1[pp. 159-160. paras. 244-2471about the Russion Indemniiy
case contradicts the Canadian view. nor is anything in the Yukon Lumbercase incom-
patible with theanadian position. As to the quatation in the UniredSioies Counrer-
Memoriol. p. 161.para. 248, from the article in The Inr~rnolionolRegulorionofFron-
rie, Dispures,cdited by E. Luard. concerning the Argentine-ChileFrocase[Inter-
national Law Reports, Vol. 38. 1969, p. IO]. a close reading of the case will show that
the diplomatic note in question was considered to be of no significance because it was
sent whcn both parties were confused about the geography of the area and about their
own claimn.as wcllas about each othen' position.

Letter of I April 1965.ConodionMemoriolAnnexes,Vol. III.Annex 1.
Lctier of 14 May 1965.ConodionMemoriol. Annexes, Vol. III. Anner 4.[951 REPLY OFCANADA 87

respect, Mr. Hoffman's authority as a technical expert on the "elements
positioning" a median line has never been challenged.

2. The Authority of the Department of the Interior

225. In addition to questioning Mr. Hoffman's authority, the

United States Memorial disclaims the authority of the Department of
the Interior: "As Canada is well aware", the United States argues. "the
Department of the Lnterior does not represent the United States in the
conduct of foreign relation^'^".Canada, of course, has never contended
that the Department of the Interior has such authority. That Depart-

ment. however, has the authority to state the poiicy of the United States
on matters pertaining to the "Ouier Continental Shelf'. In its communi-
cations with Canadian authorities, the Department of the lnterior was
acting well within its mandate which, by statute. includes the exercise of
United States jurisdiction over mineral exploration and exploitation on

the "Outer Continental Shelr' off the United States coast". The policy
role of the Department of the lnterior is significant in the light of its
explicit acceptance of Canadian jurisdiction in the Gulf of Maine area,
up to an equidistance line determined pursuant to Article 6 of the Con-
vention on the Continental Shelf. It is also significant in the light of the

lnterior Department's own issuance of geophysical survey permits in this
area by reference, apparently, to such an equidistance line.

226. The authority of the lnterior Department has been clearly
demonstrated in recent events. On 8 December 1982, it was the lnterior
Department rather than the State Department that published a "Notice
of Jurisdiction" in the United States Federal Register asserting United

States jurisdiction for leasing and otherwise regulating the recovery of
polymetallic sulfides on the continental shelf and seabed off the Pacific
coast. The notice declared the jurisdiction of the Department of the
lnterior to extend:

". . . to the subsoil and senbed of al1 submerged lands underlying
waters seaward of the territorial sea, to and including al1 subsoil

and seabed underlying superjacent waters which admit of the
exploitation of the natural resourccs of such submarine areas3'."

227. Canada protested this assertion by diplomatic note". At
about the same time, the United States lnterior Department - again,
nor the State Department - published a "Clarification" on 19 January

"Unircd SIOIPSCounrer-Memorinl. pp. 175-176,para.277.
''OuterContinentalShclf LandsAct, 43 UnitedStates Code, secs.13el seq.
" OuterContinentalShelf, NaticofJurisdictionof the Departrncntof the lnteriorRclat-
ing toMinerats Other Than Oil, Gar, and Sulphur. United StatFederal Register,
Val. 47. December 1982. p.55313.Replj. Annexes.Vol. II,PartIVAnncx 21.

"Canadian diplornatic notno.021 of 17January1983. Thisnotewassubsequentlypub-
p. H2597.Reply.Annexes.eVal. II.PartIVAnnexd22..129.daily edition, 3 May 1983.88 GULFOF MAINE (961

1983. also in the Federal Regisrer'". This clarification specified that,

pending a study on the limits of United States continental shelf jurisdic-
tion, nothing in the previous lnterior Department notice should be con-
strued to apply to areas beyond the 200-mile limit. Whether or not it
may be labelled a formal change in United States foreign policy, the
lnterior Department's extension of jurisdiction was clearly a departure
from prior declared legal positions of the United States: and it clearly

declared the authority of the lnterior Department over the continental
shelf, both domestically and in the context of defining the exrenr of
Uniied States conrit~entalsheu claims in relation ro orherSrares. Sig-
nificantly, the State Department did not take the position, in response to
Canada's diplomatic note, that the lnterior Department's declnration
had no legal force and effect either domestically or internationally.

228. Against this background, it can be seen that the Department
of the lnterior went much less far in its 1965 letters to Canada than it

did in its recent notice of jurisdiction concerning polymetallic sulfides.
The lnterior Department's letters did not purport to state ariy new
United States policy, foreign or otherwise. Rather, they sought clurifica-
tion of Canadian policies to determine if they were compatible or recon-
cilable with exisling United States continental shelf policies - in par-
ticular with the United States viewof the limits of its continental shelf.

229. The United States assertion that acquiescence "requires pas-
sage of a substantial period of time" represents yet another invention".
The "burden of time", so to speak, rests not on the State that claims
acquiescence but on the State whose responsibility it ito protest unac-
ceptable conduct affecting its rightsJb. None of the authorities cited in

the United States Counter-Memorial actually formulates the condition
of the passage of a "substantial period of time" in relation ro acquies-

" OuterContinentalShclf, Noticeof Jurisdiciionof the Departmentof ihc IntcriorRelat-
ing to MincralrOihcr Than Oil. Cas, and Sulphur. United States Fedcrol Regisler.
Vol.48, 19January1983.p. 2450. KeplyAnnexes,Vol. II.PartIVAnncx 23. .
" UniredSrares Counler-Mernorial.p. 163. para.254.
'The Canadian protesi notc cancerningthe United States Federol Regislcr notice on
palymetallicsulfidwasprcscntedwithinsix weeksalter the publicationof ihc Noiicc.tg71 REPLYOFCANADA 89

cence and estoppel". Canada affirms the pertinence and accuracy of the
judicial authority cited in its Memorial for the view that failure to pro-

test "even in the short run" is sufficient to establish acquie~cence~~.

230. Canada further affirmsthat a period of fiveyears (or more)
- given the importance of continental shelf rights to both Parties and
given the nature of their bureaucraties and systems of communication

- is a substantial period of time indeed: only slightly less than the lime
it took for the continental shelf doctrine to take root in customary law
after the Truman Proclamation of 1945. If the requirement alleged by

the United States actually existed, it would be more than satisfied in the
present case.

The points raised in the United States Counter-Memorial on
231.
the question of "detrimental reliance" are irrelevant. First co,ntrary to
the United States allegation, the element of reliance by Canada exists in
relation to Canadian permits issued before and after the time when

United States acquiescence became apparent; for these permits could be
- and were - varied and extended in Secondly, as to Canada's

"The paragraphs fram Sperduti. Oppenheim (Laulerpacht). MacGibbon and O'Cannell.
cited in thUniied Slares Cuunrer-Memoriol, pp. 162.164, paras. 252-257, do not deal
with acouiescence and estovvel at all. but with the different doctrine of vrescrivtion.
Indeed, O'connell quotcs a'bassage from theIslandof Polmos case that &oves ihata
substantial period 01time no1 required for acquiescence to be established. In that pas-
sage Judgc Huber stated that the question of lime was relevant only to constructive
notice:

"... apart lrom the consideration that the manifestations 01 sovereignty over a
small and distant island, inhabited anly by natives, cannot be erpected to be fre-
quent,ir if no1neeessoryihai the disploof sovereignryshot<ldgo bock 10a very
for disront period. Ir moy sulfite lhor sueh disploy exisred in 1898and had
already existed as continuous and peaceful before that date long enough to enable
any Power who might have considered hersell as passessing sovereignty over the
island, oraving a claim to sovereignty, to have, according 10local conditioos,
reosonablepossibiliryforoscerroiningthe existenceof o siareof rhingscontrary
ro her reoor nllegedrighrs." [lrolier odded.]

Reporis of Iniernotionol Arbirrol Awords(UN. Series). Vol. II. p. 867. If should be
natcd that the significant acts of sovereignty began in 1895.rhreeyears belore the
critical date of 1898.The iacl that a dispute might take 50 to 60 years to10court
is irrelevant. In tFirheries case,ihe Court noted that when France learned of the
Norwegian Decrees it reacted "aonce" [I.C.J. Rcporrs1951.p. 1391.In the Templeof
Preoh Viheorcase. the Court found acquiescence in Thailand's failure to react "within
a reasonable period" of receiving the map in 190[I.C.J. Reporis 1962p. 231.In the
Minquiers ond Ecréhos case.the Caurt cansidered that French activities with respect to
thc irlandr were not suflicient ta demanstrate sovereignty nat because of the length 01
rime (which was no1even mentioned) but because of the insubstanrialnorureof those
actr[I.C.J. Reporrs 1953.p. 661. See also P. Cal: "L'arrêtde la C.I.J. dans l'affaire

du temple de PréahVihéar." Annuaire /ronCoisde Droit inlernorionol1962.p. 237.
ConadionMemorial, pp. 173-174,para. 414.
Corndian Menlorial, p. 99, para. 222; Canodian Counier-Mernorial, pp. 143-144,
para. 361;ConadionCounfer-Memoriol. Annexes, Vol. III. Chap. 1.p. 6, para. II.90 GULF OF MAINE 1981

alleged failure to protest United States geophysical survey permits. the

United States Government itself had formally assured Canada rhor
rhere were noacriviriesro prore~r'~ - and indeed there were none dur-
ing the period of acquiescence (with one possible exception where
Canada did protest").

232. The best evidence that Canada was "disarmed" by the
acquiescence of the United States may, in fact, be provided by the fact
that Canada now finds itself a Party to the present proceedings, facing a
United States claim to an "adjusted perpendicular line" that was

preceded in 1976 by an equally untenable claim to a "Northeast Chan-
nel line". If Canada had known in 1965 that the United States, some
five years later, would disavow an equidistance boundary in the Gulf of

Maine area, a treaty fixing the "exact location of the boundary" would
have immediately become a matter of urgent priority. Canada. however,
was assured that there was no dispute with the United States regarding
the applicability of the median line as the continental shelf boundary in

the Gulf of Maine area, and "disarmed" itself accordingly.

233. Canada, in any event. need not rest its case on detrimental
reliance, for the "less rigid" form of estoppel - "the principle" itself -
does not require such reliance". The authorities are clear: once having
acquiesced in and recognized an equidistance line in the Gulf of Maine

area, the United States is precluded from denying the validity of such a
boundary".

Section II. The United States ltself Issued Geophysical Survey
Permits with Referenceto the EquidistanceMethod

234. A close review of the United States geophysical permits

issued during the 1960sand 1970s not only fails to demonstrate a United
States claim to the northeastern portion of Georges Bank; in fact. it
proves just the contrary. These permits provide clear evidence that the

United States Department of the lnterior - in issuing the permits -
~ ~
" Letter of 14 May 1965: United Stntcs aide-mémoireof 5 November 1969. Conodion
Memorial. Annexes. Vol. IIIAnnexes 4 and 13.
'1This possible exception is United States permit E2-68. issued Io Exploration Survcys

Inc.. discussed ConodionMemoriol. p. 98. para. 219CanodianCounter-Mtmorial.
p. 148.para. 370Rcply.Annexes. Vol. II, Part III. pp. 542-543, para. 7.
" "The principle" rcfcrs io "preclusion" or the "less rigid" form of cstoppel. as dcfincd by
Vice-Presidcnt Alfaro in tTemple ofPreoh Viheorcase: "This principlcasI under-
stand it. is that a State party ta an international litigation is bound by its prcvious acts
or attitude whcn ihey are in contradiction with its claims in the litigation." Sce
Cenodian Mcmoriol. p. 177, para. 420 and fmtnotc 29. Sec alro commcnt by
D. H. N. Johnson quotcd ai p. 93, footnote 26. In tTemple of Preah Viheor case
ihcrcwas no detrimental reliancc rcquirforcontrary to thc United Siatcr allegationr.
the Court barcd ils decirion on Thailand's failurc iouponcfirst rcccivingthe map.
I.C.J. Reports1962.pp. 23and 32-33. Sec alro Christian Dominici: "A propos du prin-
cipc de I'atoppeen droit dcs gcns."Recueildërudes de droit internationalen hom-
mageà Paul Guggenheim .p. 356-357, 362and 363.

" CoseConcerningthe Arbitrol ~ward modeby the King of Spoinon 23 Deccmber1906,
I.C.J. Reports 1960,p213: Temple ofPrenh Viheorcase,ICJ. Reports 1962. p. 32.[991 REPLYOF CANADA 91

and more than three dozen United States oil companies - in applying
for them - al1assumed that an equidistanceboundary wasappropriate
in the Gulf of Maine area and for Georges Bank in particuiar. and
acted upon that assumption. The history of the conduct of the United

States in issuing geophysical permits in the Gulf of Maine area, as
Canada has been able to piece it together, is found in Volume II, Part
III, of the Annexes to this Reply, and is summarized below.

A. "PERMITS" AND "NORTHEASTER PORTION OF GEORGES BANK"
ARlrTERM SAVINGDIFFERENT MEANINGS FOR CANADA AND

THE UNITEDSTATES

235. As a preliminary matter, however, it iswell Io recall the dif-
ference between the claims being advanced by the Parties with respect to
their conduct in relation to the continental shelf a difference that is
made somewhat confusing because of differences in terminology. In its
Memorial and Counter-Memorial. Canada put forward claims of

acquiescence and estoppel based upon the failure of the United States to
protest Canada's issuance of offshore "permits" conferring the prospect
of exclusive productionrightsM.In response, the United States contended
that its conduct was inconsistent with acquiescence because it had
asserted jurisdiction over the northeastern portion of Georges Bank by

issuing certain geophysical survey "permits" granting temporary author-
ity to do seismic or other geophysical research in vas1areas of the high
seas in the North Atlanti~'~.These United States "permits" are similar
to what in the Canadian system are called exploratory "licences"; they
bear little or no resemblance to Canada's "permits". the closest analogue
to which in the United States system is the offshore "lease"46. It should

thus be apparent that the exercises of jurisdiction and the types of legal
instruments upon which Canada and the United States rely differ funda-
mentally, although both refer to their respective instruments as
Spermits".

236. In its Counter-Memorial at least, the United States has also
employed confusing and imprecise terminology with respect to the area

covered by its permits. The United States claims that Figure 13 of its
Counter-Memorial shows "[tlhe area of coverage of the seismic data col-
lected on the northeastern portion of Georges Bank and on nearby
areas4'". Figure 13 of its Counter-Memorial depicts the "northeasrern
portion" of the Bank and "nearby areas" as anything northeast of the

* Cnnndinn Memoriolp. 134, para. 321; p. 159. para. 387; p. 177, para. 419: p. 180,
para. 427; p.3, para. 42Canodion Counter-MernoNolpp. 154-155, paras. 380-
381; p. 187, para. 456; pp. 292-293, para. 698; p. 303, para. 725; pp. 307-310,
para.729.
'5UniredSloles Counter-Mernoria171.para. 267: p.176.para.280.
"A cornparisanof the Canadian and United States regulatoryrégimesgoverning the
disposition andadministrationnierests ailand gas is containedConodian
Counier-Mernorial, AnneVol. III. Cha1.
''United Stores Counrer-Memorpp.78-79. para. 101. 92 GULFOF MAINE [lool

Great South Channel's.It is clear, accordingly. that the United States
equates the "northeastern portion" with the whole of Georges Bank for
purposes of United States permits. In fact, however, the northeastern (or

eastern) portion of Georges Bank corresponds approximately ta the area
claimed by Canada (or to ICNAF statistical units SZej and SZem, as
the United States explicitly recognizes in Table B immediately preceding
Figure 13 in its Counter-Mem~rial'~). When Georges Bank and its
northeastern portion are accurately defined, it may be seen that the

permits relied upon by the United States did not extend into the
area claimed by Canada a! al1(with one possible exception"') during the
relevant period.

B. UNITEDSTATES PERMITS WEREISSUED WITH REFERENC EO A

"BLM LINE"

237. Chevron Oil Company was an early leader in offshore
exploratory work on Georges Bank. United States permit E3-67, which
Chevron Oil Company applied for and received in 1967 (as chairman of
a consortium of eight major oil companies), pertained to an area with a

northeastern boundary at a line crossing Georges Bank slightly to the
southwest of the equidistance line. Meanwhile, Chevron Standard Lim-
ited (The California Standard Company) had already undertaken seis-
mic exploration on the eastern side of the equidistance line under

Canadian exploratory licence 927, issued in 1965". The areas covered by
@ this permit and this licence are depicted together in Figure19.

238. In 1969. Chevron Oil Company. acting as agent for Digicon
Incorporated, and acting in collaboration this time with some 26 other
oil companies. applied for and received United States permit E2-69
(later continued as permit El-70). This permit apparently assumed the
application of an equidistance boundary, although documentation per-

taining to E2-69, dated 14 November 1969, mentions that "[plortions of
two of the lines exiend to the Canadianside ojrhe BLM lineJ'".[Italics
added.] ("BLM", it may be recalled, is the United States acronym for
the Bureau of Land Management in the Department of the Interior.) In
the same year, Chevron Standard Limited applied for and obtained

UniredSioresCounier-Memorio/.p81.Figure 13.
'PUniredSioresCounier-Memoriol.p71.Table B. faatna2.
"This passibleexceptioisUnited States permiE2-68.issuedto ExplorationSurveys
Inc.. discussedin ConodionMemorial.98.para.219:ConodionCoumer-M~moriol.
p.148.para.370 Reply.AnnexerVol.Il.PartIIIpp. 542-543para.7.
" Forfurther informationan United StatesperE3-67 and Canadianlicenc927.sce
Reply. AnnexesVol. II,PartIII.p.561. para.26 and DocumentaryAppendices 7
and8.
" Reply,Annexes.Vol. IPartIII.DocumentaryAppendix1. 94 GULF OF MAINE Ilo2]

241. Further evidence of the presumption of an equidistance
boundary on Georges Bank is also afforded by United States permit

E3-75, issued in 1975. The United States, in Volume II, Annex 40 of the
Annexes to its Memorial, cites this permit as having resulted in the
greatest number of line miles surveyed on the northeastern portion of
Georges Bank, Le., 4,400 miles. DigiconGeophysical Corporation, acting
for some 35 oil companies, initially requested a survey area up to

approximately the median line (as utilized for permit E2-72) on Georges
Bank (as shown on the map filed with the Court on 20 January 1983 by
the United States Agents'). Digicon, however. later requested or was
encouraged to request an "extended area" covering the remaining part of
the Bankis. At the same lime, while Digicon wasthus acting under a
United States permit, Digicon also obtained Canadian exploratory

licence 2414 and received authorization to conduct the same program as
@ that submitted to the United States for the "extended area" [Figure 221.
Approximately 3,200 line miles of work on the northeastern portion of
Georges Bank was done under the Canadian licence5q.

242. The foregoing examination of the United States geophysical

survey permits issued in the 1960s and 1970s confirms that, contrary to
itsallegationsbO,the United States did not authorize geophysical surveys
on the true northeastern portion of Georges Bank during the relevant
period. The United States has invoked its geophysical survey permits in
an effort to demonstrate conduct inconsistent with acquiescence in the
Canadian claim6'.This evidence, however, confirms Canada's assertions

and not those of the United States. The important points to note are
simply that:
(a) during the 1960s, Canada - with the full knowledge of the United
States - was issuing long-term permits covering the northeastern

portion of Georges Bank, while the United States had no equivalent
leases in the area; and
(b) as regards the issuance by the United States in the 1960s and early
1970s of temporary geophysical survey permits covering only the

southwestern portion of Georges Bank (with one possible
excepti~n~~),both the United States Bureau of Land Management
-

" See attachmentsto the letterof 20 January 1983fromthe Agent for the UnitedStates
to the Registrar of the Court.Seealso Keply, AnnexesVol. II. Parl III. p.546.
Figure1.
For furtherinformationon United States permit E3-75. Keply. Annexes,Vol. II,
Part III. pp. 545-547, para. 12:pp.553.556. paras.21-23. and DocumentaryAppcndin
5.
" Keply. Annexes.Val. II,ParlIV, Annex24.
" UniredSrares Counrer-Memoriol.p.78. paras.101-102.

flThis passibleexception is United States permit E2-68. issued to ExplorationSurvcys
p. 148.para.370:Reply. AnnexesVol. II.PartIII,pp.542-543. para.7.-Memoriol.

0 This possibleexception is United States permit E2-68. issued ta ExplorationSurveys
Inc.d.iscussedinCmdion Mernorialp. 98. para.219Conadion Counler-Memorio/,
p. 148.para.370;Reply. AnnexesVol. II.PartIII.pp.542-543, para.7.11031 REPLYOFCANADA 95
and several dozen oil companies acted on the assumption that a

median line boundary would apply on Georges Bank.

1.Acquiescence, Recognilion and Estoppel

243. In relation ta Canada's position on acquiescence and estop-

pel, the United States geophysical survey permits provide direct evidence
that the United States conduct from 1965 to 1972or later was consistent
with its tacit acquiescence in Canada's use of an equidistance line.
Moreover, they provide confirming evidence of the United States'
explicit acceptance of Canada's use of an equidistance line in the
Department of the Interior's letters of April and May 1965.

2. A De Facto Maritime Limit

244. Even if itdid not indisputably confirm (as it does) Canada's
claims regarding acquiescence and estoppel, the United States presump-
tion of an equidistance boundary - and apparently of a specific equidis-
tance line known as the BLM line - would still be of great significance
in this case. Insofar as Canada and the United States were, from the

early or mid-1960s through 1972 or later, bath authorizing geophysical
surveys based upon the presumption of an equidistance line, the conduct
of the Parties during that period reflected a tacit modus vivendi or a
defacto maritime limit.

245. Bath of these factors were deemed significant by the Court
in the Tunisia-Libya Continental Shelfcase. The Court found that the
line of delimitation established in 1919 by the ltalian authorities in

Libya, with its attendant "buffer zone", did "have a bearing upon the
questions with which it is concerned", because it marked a "modus
vivendi" between the parties6'. While concluding that "the evidence of
the existence of such a modus vivendi, resting only on the silence and
lack of protest on the side of the French authorities responsible for the
external relations of Tunisia,falls short of proving the existence of a rec-

ognized boundary between the two Parties", the Court nevertheless held
that:

". . . in view ofthe absence of agreed and clearly specified maritime
boundaries, the respect for the tacit modus vivendi ... could war-
rant its acceptance as a historical justification for the choice of the
method for the delimitation of the continental shelf between the two
States6'. . ."

61I.C.J. Repors982,p.70.paras9.3-94.
"I.C.J. Reporls982,pp.70-71p,ara9.5.96 GULFOF MAINE 11041

In the present case, although Canada and the United States lacked an
"agreed and clearly specified" boundary, they both for some years
respected equidistance lines that were only a few miles apart (owing to
technical differences in their construction6').

246. Canada's claims with regard to United States acceptance of

an equidistance boundary in this case, moreover, do not rest only upon
tacit acceptance, but also upon actual use of an equidistance line by both
Parties. In this context, the BLM line resembles the 26" line, "which
had been followedby the two Parties in the granting of concessions for
the exploration and exploitation of mineral resources during the period

1964-1972" in the Tunisia-Libya Continental Shelf~ase~~.The 26" line
lay in the same position as the earlier modus vivendi line or de facto
maritime limit. The Court explained that:'

"This line of adjoining concessions, whichwas tacitly respected for
a number of years, and which approximately corresponds further-
more to the line perpendicular to the Coast at the frontier point

which had in the past been observed as a de facro maritime limit,
does appear to the Court to constitute a circumstance of great rele-
vance for the delimitation6'."

The equidistance line or lines observed by Canada and the United States
for offshore exploration during the early 1960s until 1972 or later were
respected both by the Parties themselves and by several dozen oil compa-
nies with interests in the Gulf of Maine area".

247. The United States geophysical permits also provide addi-
tional evidence - over and above United States conduct in relation to
Canada's use of an equidistance line - of the nature of an equitable

delimitation in the Gulf of Maine area as seen by the United States. As
was noted in the Canadian Memorial, the position of the Canadian Gov-
ernment in relation to acquiescence, recognition and estoppel is without
prejudice to the role of the conduct of the Parties as one of the relevant
circumstances for the purposes of establishing the single maritime

boundary in this case69.Canada reaffirms its submission that the con-
ducl of the United States in relation to both Parties' use of the equidis-
tance method in the Gulf of Maine area provides "indicia . . . of the line
or lines which the Parties themselves may have considered equitable or

" Letters of 1 April 1965 and 14May 1965. Canadion MernoNol. Annexes. Vol.III.
Annexes I and 4. Forfurtherinformalienon the United States "BLM" line. sce Reply,
Annexes.Vol. II, PartIIp. 548. para. !S.
I.C.J. Reporls 1982, p.66. para.86.
I.C.J. Reporls 1982, 71.para. 96.
"See paras.237-242.

6PConodinn Mernorial,p.160. para.390. [los] REPLYOF CANADA 97

acted uponas surh",quite apart from any consideration of acquiescence
and e~toppel'~.[Ilalicsadded.]

Section III. The UnitedStates Has Failed to Refute Canada's

Position Respecting the Relevance of the 1979 Agreementon
East Coast Fishery Resources

248. The Canadian Memorial and Counter-Memorial have
demonstrated that, in the parallel negotiation, conclusion and signature

of the Special Agreement and the 1979 Agreement on East Coast Fish-
ery Resources, the United States recognized (i) Canada's traditional
participation in the fisheries of Georges Bank; (ii) Canada's status as a
coastal State in relation to Georges Bank - i.e., as a State entitled ta
extend its jurisdiction to a part of the Bank in accordance with interna-

tional law; and (iii) Canada's economic interest in the living resources of
Georges Bank".

249. In response, the United States Counter-Memorial argues,
Jrsr, that an unratified treaty creates no legal obligations or rights and
thus cannot be invoked ta the prejudice of a signatory, and secondly,
that such a treaty constitutes a negotiating offer or offer of settlement

and is not permissible evidence in a subsequent adjudication7'.

250. On the first objection offered by the United States, it is only
necessary ta say that Canada has not argued that the 1979 agreement
created binding obligations. Canada would note, however, that the
United States contention regarding the legal effect of an unratified

treaty is wrong in law". More to the point, Canada's argument has been
- and remains - that the 1979 agreement is relevant because it pro-
vides the best objective evidençe of what the Parties themselves con-
sidered an equitahle solution in the fisheries dimension, i.e., what they

'0~~~isio-LibyoConiinentalShel/care. I.C.J. Reports 1982. p. 84. para. 118.

" Canodian Mernoriol. pp. 109-115, paras. 253-276; pp. 135-136, paras. 323-325;
ConadionCounier-Mernorial,pp. 155-160.paras. 382-391; p. 187. para. 456; pp. 300-
301. paras. 719-722.
"United Sioies Counier-Mernoriof,p. 7, para.8; pp. 151-154, paras. 225-234: pp. 210-
214, paras. 330-339.
" Conventional and customary law have recognized the duty olStater to refrain from actr
that would deleat the object and purpose 01a treaty during the period betwecn signa-
ture and ratification. Thisnciple is codified in Article 18 al the ViennaConveniion
on theLaw O/Treolies. See alsa Lard A. McNair: ThLaw O/ Treaties. Oxford. Cla-
rendon Press, 1961, 199,where he writea:
". .States which havesigned a treaty requiring ratilication have thereby placed
certain limitatiupan their lreedom 01action during the period whichpreceder
ils eniry into force."

Thus. at leart during the period befcire the 1979 Agreement on East Coast Fishery
Resourceswas withdrawn [rom the Senate by President Reagan, the United States was
under a duty to relrain from acts that would deleat ils object and pfor exam-
ple, to relrain from over-exploitationol the fishcryresources in question. 98 GULF OF MAINE Il061

considered to be equitable fisheries entitlements or allocation^'^Indeed,
the agreement was expressly described as being "fair to both Parties" by
the President of the United States75.The amendment proposed in 1980
by Senator Kennedy and several other New England Senators would not
have altered the catch entitlements or shares set out in the agreement.

Instead, it would have limited the duration of the agreement and estab-
lished a different western limit for the area in which Canada would have
@ exercised primary management responsibility for ~callops'~[Figure231.

251. On the second objection offered by the United States, the
Special Agreement itself defines what evidence or arguments shall be
excluded in the present proceedings. As was noted in paragraph 94 of
this Reply, the Special Agreement provides that neither Party "shall

introduce into evidence or argument, or publicly disclose in any manner,
... proposals directed to a maritime boundaries settlement, or responses
thereto7"'. The 1979 Agreement on East Coast Fishery Resources was
not a boundary proposal but a signed fisheries treaty, and by its very
nature was a public document that would necessarily be "publicly
disclosed".

252. Quite apart from this provision of the Special Agreement,
the 1979 fisheries agreement is an integral part of the history of the dis-

pute. Further, it is an integral part of the negotiating history of the Spe-
cial Agreement. It demonstrates to the Court that the Parties have ful-
filled their obligation to negotiate before instituting these proceedings,
and it assists the Court in interpreting the Special Agreement and in dis-
charging the request put to the Court by the Parties themselves. The
United States assertion that the fisheries agreement constitutes imper-

missible evidence would deprive the Court of its power to consider a fun-
damental relevant circumstance - the conduct of the Parties - which
played so important a role, for instance, in the Tunisia-Libya Continen-
talSheiJ case's - simply because that conduct ultimately came to be
reflected in a signed but unratiîied treaty. Under the United States

The 1979 East Coast Fishcry Resources Agreement established catch "entitlements" or
allaiatians for same 13 species of particular interest io the Parties. The text of the
agreement is rcproduced in ConadionMemorioAnnexes. Vol. 1.Annex20.The catch
allocationsre set out in Annexes A and B to the agreement. In a prepared statement
delivered before a cangrcssional committee. the United States special negotiator. Mr.
Lloyd Cutler stated that "the entitlement shares established by the Agreement are fair
and equitably balanccd". See ConodionMemoriol. Annexes. Vol. II. Annex 44.
"Message of 3 May 1979 from the President of the United States to the Senate of the
United Statesransmitting the Maritime Boundary Settlement Treaty and the Agree-
ment on East Coast Fishery Resources. 96th Congrcss. 1st Session. Conndinn
Memoriol.Annexes,Vol. II,Annex 43.
" Amendment No. 1697 of15 April 1980to Agreement an East Coast Fishcry Resources.
Ex. V. 96th Congress. sesa(1979), propascd by Senatar Tsongas (speaking for him-
Reply.Annexes.Vol. Il. Part IV. Anncn 25., Humphrey, Pell, Ribocafl and Weicker).

" Special Agreement, Article V. CnnadionMernoNol,p. 5.
" ICJ. Reports1982,pp. 83-84. paras. 117-118. 11071 REPLY OF CANADA 99

approach, in other words, assertions regarding conduct would be admis-
sible, but positive proof of conduct would not.

253. In brief, the United States contention regarding the admissi-

bility of the evidence provided by the 1979 Agreement on East Coast
Fishery Resources is wrong infact; for the agreement was not an offer of
settlement, it was the fisheries settlement itself, and its want of ratifica-
tion did not transform it into a mere offer, but rather prevented the exe-

cution of the settlement. The United States contention is equally wrong
in low; for international tribunals have indeed taken unratified treaties
and other manifestations of conduct into c~nsideration'~. Finally, and

above al], the United States contention is wrong in eqirifv; for the 1979
fisheries agreement is a relevant circumstance, and the application of
equitable principles requires that account be taken of al1 the relevant

circumstances.

Section IV. The United States as Failed to Refute
Canada's Contention That the IdNAF Record

1s One of Coastal State Partnership

254. The Canadian Memorial and Counter-Memorial have
demonstrated that the United States and the International Commission

for the Northwest Atlantic Fisheries (ICNAF) explicitly and consist-
ently recognized Canada as a coastal State in relation to Georges Bank,
both in respect of Canada's membership in the ICNAF panel responsible

for Georges Bank (Panel 5) and in Canada's preferential treatment in
the allocation of national quotas for Georges Bank stockss0.In response,
the United States Counter-Memorial argues that the ICNAF coastal
State concept was used only to distinguish betwcen North American and

distant-water fleets; that the United States, for its part, was treated as a
co~sta~ S~ ~ ~in relation to ICNAF subarea 4 to the northwest to the
same extent that Canada was considered a coastal State in relation to

lsEvidenceof the negotiatioof the Treaty of Peace of 1783 was acccptcd as relevant in
applying its provisionsregarding the Si. Croix RiThe SI. Croix River-Arbilrorion,
in J.B. Moore, cd.:Hirrory and Digest qfthe lnlernotionol Arbiirorionr Io which the
Unired Sioreshnsbeen o Porry.Vol. 1.Washington, Governrnent Printing Office. 1898,
pp. 1-46.Proposais made by the parties during the workof the boundary Commissionsof
1898-1899and procecdings of a conference in 1902 wereconsidered ar the basis of the

finalboundary sctilernent by the arbitraioThe Island O/ Timor case between ihe
Netherlnnds ond Porlugol,in J. B. Scott. cd.: THogue Court Reporls, New York.
Oxford UniversityPress 1916. pp. 354-386.The tribunal considered evidenceof docu-
ments and carreîpondence dating from the period of negoiiations between the parlies
regarding the Treatics of 1783 and 1818. and il referred to the "Praposed Trcaiy of
1806" (also knownas the "unratified Pinckney Treaiyof 1806").The North Atlonrie
Coost Fish~rits cosebetweenGreat llritoin and ihe Uniied SioieinJ. B. Scott, ed.:
The Hogue Cour1 Reporrs, pp. 141-225.Sec also H. L. Keenleyridcand G. S. Brown:
Connda and ihe United Stnres:Some Aspectsof Their Hisioricol Relorions. NeYork,
Alfred A. Knopf. 1952.pp. 214-215Reply. Annexes,Vol. II. Part IV, Annex 26.
Canadinn Mernoricl.pp. 89-90. paras. 197-199Conodion Counier-Memorinl, pp. 165-
167.paras. 407-409; pp. 174-175,para. 425.1ocl GULF OF MAINE [losl

subarea 5; and that the history of ICNAF illustrates the "predominant
interest" of the United States in Georges Banks'. Each of these points is
dealt with below.

A. THEICNAF COASTAS LTATECONCEPT WASUSED TO DEFINE
STATES WITH A COASTLINA EDJACENT TO AN ICNAF SUBAREA AND TO
ACCORD SUCHSTATES PREFERENTIA QLUOTAS

255. The United States is in error in its contention that ". . . the
ICNAF coastal-State concept was used only in a regional sense, to dis-
tinguish North American from distant-water fleets8'". The coastal State

concept, in fact, was used toefine States with a coastline adjacent to an
ICNAF subarea, as a criterion for establishing membership in the
ICNAF panel for that subarea. (These panels were committees estab-
lished to review and provide recommendations to the Commission
regarding the application of the Convention ta individual subareas.)
Eventually, the coastal State concept came to be used to determine pref-

erential quota allocations for stocks in certain ICNAF subareas, divi-
sions and subdivisions.

256. Representation on ICNAF panels was determined ". . . on
the basis of current substantial exploitation in the suh-area concerned
. . . except that each Contracting Government with coastline adjacentto
a sub-area shall have the right of representation on the Panel for the
sub-areas'". [Italics added.] In the preparatory conference leading to
ICNAF's formation, Canada stated clearly that its membership in Panel

5 was based both on exploitation in and contiguity to subarea 5, of which
Georges Bank forms a part, and the United States and ICNAF sup-
ported Canada's membership in that panels'. Throughout the life of
ICNAF, and until the present proceedings, the United States never chal-
lenged Canada's coastal State status in relation to Georges Bank and
never denied the simple geographical fact that Canada has a coastline

adjacent to the Bank. This recognition of Canada's status, in the express
terms of a regional convention, is obviously incompatible with the United
States claim ta the whole of Georges Bank.

257. Beginning in 1972, ICNAF established annual, nationally-
allocated catch quotas for a number of stocks in the convention area.
Allocations were made taking into account a series of guidelines devel-
oped by the Commission's Standing Committee on Regulatory Measures
(STACREM) and complementary formulas proposed mainly by Canada

UniiedSrnres Counier-Mernorp. 75, paras. 996.nd
Uniied Sioies Counrer-Mernori75, para. 92.
" Conodion MernoNol. AnnexVol. Anner 1.artIV(2), p. 58.
8'CnnndinnCounier-Mernoriapp.165-166,ara407: pp166-167para.409.Iio91 REPLYOF CANADA 101

and the United Statess'. The criteria included historical performance and
"special needs", and provided that a portion of each quota would be
reserved for the coastal State or States. Although Commission recom-

mendations for national shares often strayed from the STACREM
guidelines and from proposais made by Canada and the United States,
they almost always reflected the principle of preferential shares for the

coastal State or States. In determining allocations for stocks on Georges
Bank subject to Canadian fisheries, Canada, the United States and
ICNAF consistently and explicitly identified Canada as a coastal

States6.

" ICNAF, Annual Meeting, June 1969, Proceedings No. II, Appendix 1. See Reply.
Annexes. Vol. II. Part IV, Annex 27.The United States initially prapased reservation of
a 25 percent share of quotas for spccial circumstances, 80 percent of which would be
allotted to the coastal State. Canada. interpreting the STACRE,M guidelines, initially
propased allocation an the basis 01a "40:40:10:1~ formula (40 percenton the basis of
perlarmance during the mas1recent three years. 40 percent on the hasinof performance
during the most recent sevenyears. 10 percent for the coastal Stale, and 10 percent lar

new entrants and non-mcmber cauntries). Canada later praposed adjusting the formula
by dcducting coastal State catches outside the Convention Arca from the quotas before
applying the "40:40:10:10 equation. Subsequently. Canada proposed deducting the
total estimated catch by the coastalSlate (regardlessof where it was harvested) and
dividing the remainder of the quota among the non-coastal States on the basis of a
"45:45:10 formula. See ICNAF, Annual Meeting. June 1970. Proceedings No. 16,
Annex 1; ICNAF. Special Meeting on Herring, January-February 1972. Proceedings
Na. 3. para. 5 and Appendix 1: ICNAF, Annual Meeting, June 1972, Commisaioners'
Documents 72/12 to 72/17; ICNAF, Special Commission Meeting, January 1973, Pro-
ceedings Na. 5. para. 3; ICNAF, Annual Meeting. June 1973. Commissioners' Docu-
ment 73/13. Reply. Annexes. Vol. II. Part IV. Annexes 28-32.

In 1971,during preliminary discussions01quota allocation in subnrea 5. Canada called
attention"... to her status as a coastal country in relation to Subarea 5 haddock". In
1972. during negotiation of ICNAF's first nationally allocalcd quotas (herring in por-
tionsolsubareas 4 and 5). the United States praposed that a combined 20,000 mt share
of the Georges Bank herring quota be rcserved for Canada and the United States
"... with relative coastal prelerence to be detcrmined". Far 1973. allocations for
subarea 5/statistical area 6 mackerel wer"... proposed an the basis of a 10%coastal
statc preference shared by Canada and USA ...". For division 5Z cod in 1973. the
United States and Canada received portions of their allocations the basis of coastal
Stateprefcrence. The 1973United States proposal for effort reduction in subarea 5/sta-
tistical area 6 cxempted bath Canada and the United States becaus"Canada and USA
are coastal fishing nation...".For subarea 5/statistical area 6 mackerel for the 1974
scason,Canada and the United States indicated that their agreement "... would be
under resewation ol their rights as coastal states". In the negatiatannoverall catch

limit for each nation in subarca 5/statistical area 6 for 1975, after il had been nated
".. .that allowance had been made for the coastal state prelerencof Canada and the
USA.. .",the United States delegat". ..stressed that shares requested by the coastal
states were linke10 their capacit...".See ICNAF, Annual Meeting, June 1971. Pro-
ceedings No. 16,Appendix II; ICNAF, Spccial Meeting on Herring. January-February
1972, Proceedings No. 3, Appendix II. para.2: ICNAF. Special Commission Mceting,
January 1973, Proceedings Na. 3. para. 9 a); ICNAF. Annual Meeting, June 1972,
Informal Record of Meetings of the ad hoc Committee an Quota Allocation. para. 14:
ICNAF. Special Commission Meeting. January 1973. Proceedings No. 4. Appendix 1.
p.4: ICNAF, Fourth Special Commission Meeting, January 1974, Proceedings No. 3,
paras.12 and 14; ICNAF, Annual Meeting, June 1974, Proceedings No. II, paras. II
and 19.Reply. Annexes. Vol. II. Part IV. Annexes 29.33-38.102 GULF OF MAINE [l1O1

B. THESTATUS OF THE U'ITEDSTATES IN RELATION 70 ICNAF
SUBAREA 4 1s GREATLE YXAGGERATED BY THE UNITED STATES

258. The United States Counter-Memorial is misleading in ils
account of United States coastal State status in ICNAF subarea 48'.
Canada does not deny that the United States was an original member of
Panel 4, having previously fished in subarea 4 and having some coastline

adjacent to a small part of that subarea. However, it is an unwarranted
exaggeration to equate United States status in subarea 4 with Canada's
coastal State status in subarea 5.

259. From the beginning of quota regulations in 1972, Canada's
coastal State status for Georges Bank stocks was never contested. In

contrast, the United States was not considered a coastal State for sub-
area 4 in 1972. 1973 and 1974, the first three years in which national
quotas were pre~cribed~~.Moreover, when the United States claimed
coastal State status in subarea 4 for the 1976 season, Canada contested

the magnitude of its claima'.

" United SioreCsounipr-Mernorial, p. 75. paras. 92 and 94; Unlied Siosounter-
Mernorial. lCNAFAnnex,Vol. II, p. 2. para. 5.

" In the first year of quota allocation (1972). the United Statno allocation for
the singleubarea 4 stock considered (division 4Xa-4Wb herring). The United States
receivedils Tirs1allacation for this quota for scason.and coastal State prefer-
ence was no1citedasthe basis for the allocation. For 1973.the United States received
an allocation for subarea 4 cod (subdivision4VSW). Although itr rhare was sornewhat
higher than justified by historic performance. it was allacated on the basis of "special
nccdr" (along with II other countries), whcreas Canada's augmented share wûs cxplic-
itly based on "coastal state preference". For 1974, the United States received alloca-
tionsforsubarea4 redfish and flaunders slightly higher than wauld have been justified
by historic performance. but coartal State status was not cited as the basis for the allo-
cations.On the other hand, Canada propased that ils 1974 allocations be based on
receivinga 10 percent preferential bon& and camc close ta achieving this objective for
most subarea 4 stocks. See ICNAF, Special Meetingan Herring. January-February
1972. Proceedines No.3.Aooendix 1: ICNAF. Fourth Swcial Commission Meetine-.
January 1974, p;oceedingNO 5. para. 25: ICNAF, Annual Meeting, June 1972. Infor-
mal Record of Meetings of the od hoc Committee on Quota Allocation. para. 10;
ICNAF. Annual Meeting. June 1973, Proceedings No. 10. Appendices VI and VIII;
ICNAF. Annual Meeting, June 1973. Commissiancrs' Document 73/13. Reply.
Annexes.Vol. II. Part IV. Annexes 29. 32. 35, 39and 40.
The United States claimed preferential trcatrncnt for allocations on the basis of coastal
State status for the firstfor the 1975 season (division4X cd).For 1976,Canada
disputed the magnitude of thetcd States request for an allocation of division 4Xa-
4Wb herring stock. The Canadian delcgate stat".:. Canada as the coastal state
shauld be allocated al1but a small by-catch al...".Sec ICNAF. Annual Mect-
ing. June 1974, Proceedings No. 10. par6: ICNAF, Eighth Spccial Commission
Meeting. January 1976. Proceedings. 8, para. 8. Reply. Annexer. Vol. II, Part IV,
Annexes 41-42. REPLY OF CANADA 103
[1111
C. INTHE LASTYEARS OF ICNAF, THE COASTAL STATECONCEPT

WASBROADENE DO INCI.IJDETHE CONCEPT OF NEICIIBOURINC
COASTAL STATES

260. In 1976,on the cvc of the extension of Canadian and United
States fisheries jurisdiction to 200 miles, the coastal State concept was
broadened considerably. Anticipating the new régime, under which it
was expected that Canadian and United States fishermen would con-
tinue, under bilateral agreements, to fish in the other country's expanded

fishing zone, both Parties took measures to ensure that reciprocal fishing
opportunities would be preserved. Thus, while calling for a substantial
reduction in fishing effort in ICNAF subareas 2, 3 and 4, Canada sup-
ported an exemption for the United States fishery with respect to the
southwest portion of subarea 4, on the basis of a broadened notion of
coastal State status90.(Canada proposed a similar exemption for French
vessels in subareas 3 and 4 in view of its treaty arrangements with

France vis-à-vis the French islands of St. Pierre and Miquelon. off New-
foundland.) The United States, in turn, supported a high overall catch
limit for Canada throughout subarea 5 and statistical area 6, whereas
major reductions were agreed for distant-water fleetsP1.

261. These measures were consistent with the position Canada
was promoting (without complete success) in the United Nations Con-
ference on the Law of the Sea with respect to the right of neighbouring
coastal States to grant each other preferer;tial treatment in the allocation

of allowable catches surplus to the harvesting capacity of the coastal
State. Hence, in the latter years of ICNAF, the coastal State concept
took on a different character than it had in the early years of the
ICNAF régime. Its scope was expanded in an effort to ensure reciprocal
fishing privileges for neighbouring coastal States in the new era of the
200-mile limit. Only at this tirne was the concept used in the regional
sense attributed to it in the United States Counter-Memoria19'. that is,

to distinguish between North American and distant-water fleets.

262. The Canadian effort to maintain bilateral reciprocal fishing
opportunitiesfollowing the extension of fisheries jurisdiction was eventu-
ally frustrated by the United States' failure to respect the overriding
objective of the interim reciprocal fisheries agreement negotiated by the
Parties on the eve of their extensions of jurisdiction to 200 miles and
renewed by them thereafter. As was explained in the Canadian
Memoria19',the first such interim agreement was implemented in order

to preserve existing fishing patterns. However, following its entry into

soICNAF, Seventh Special Commission Meeting, September P,roceedingsNo. 4,
Appendix1;ICNAF. SevcnthSpccial Commission Meeting, September5.ammis-
sioners' Documents 75/1X/4075/1X/42 and 75/1X/49 (2nd Revision). Reply,
Annexes.Vol. II. PartAnnexes43-46.
" ICNAF. Seventh Special Commission Meeting. September P5r.oceedingsNa. 5,
para.5.ReplyAnnexer,Vol. II,PartIV. Anner 47.
" UniiedSiores Counler-Mernorial,p. 75, para.92.
''ConodianMemoriol,pp. 102-104.paras.231-237.104 GULFOF MAINE I1I21

force in July 1977, there was a radical increase in United States fishing
effort on Georges Bank, which posed a serious threat to the future health
of the fishery. In viewof the regulatory vacuum that existed in the New

England fishery at the time, as well as the indications by the United
States that the situation would not change in the near future, Canada
had no alternative but to discontinue, for the time being, its provisional
implementation of the 1979 renewal agreement for reciprocal fishing.

The United States, in turn, closed ils 200-mile zone to Canadian fisher-
men. Both Parties, of course,expected reciprocal fishing off each other's
coast to resume with the entry into force of the 1979 Agreement on East
Coast Fishery Resources. That prospect obviously disappeared when the
United States failed to ratify the 1979 agreement. This situation is cha-

racterized by the United States as a "unilateral expulsion . . . of United
States fisherman [sic] from waters off the coast of CanadaP4", when in
fact the cessation of reciprocal fishing foroth Parties was precipitated
by United States activities.

D. THEHISTORY OF ICNAF ILLUSTRATE NSOT THE ALLEGED
"PREDOMINAN TNTEREST" OF THE UNITEDSTATES BUT THE SIIARED
INTEREST OF THE PARTIES INTHE GULF OF MAINEAREA

263. The United States relies upon fisheries research, conserva-
tion, management and enforcement activities in the years preceding the

extension of coastal State jurisdiction, in order to support its claim of a
"predominant interest" in the Gulf of Maine area9'. Although these
activities were closely related to the subject matter of what later became
the 200-mile fishing zones of the Parties, it must be recalled that they
were multilateral undertakings in support of a common high seas fishery.

Their use in prejudicing a subsequent claim of jurisdiction would be con-
trary to the letter and the spirit of the treaty under which they were con-
ducted. But Canada's principal objection to the use the United States
has made of this material is factual rather than legal.

264. Contrary to the arguments now put forward by the United
States (which are strikingly inconsistent with the views it expressed at

the material timesP6),the relationship of the Parties in ICNAF and in its

9'UniiedSioiesCounier-Memoriop. 73, par87.
UniredSioresCounier-Memoriop. 75. paras.93 96.
%The United States valued Canadian participationin5. Forexamplc, in 1959.
when doubts had bcen cxprcssed rcgardingthe effectiveness of mcsh regulations in
subarea5, the UnitedStates spokcsmanforthe Panelstatedthai:
"...he hadbecnworkingwith the Panel for ncarlyten years and withthe mesh
regulationrince its inccption.With this backgroundof cxperiencehe pointcdout
that thecientirtsof both membcrcauntrierwere warkingin u10rolvc ihc
problcmsof the Panandthai he lelt considcrablemnfidcnccin thcircompeiencc
evcntually to ralvc these problems. The Chai[G.R. Clark of Canada]
remarkcdthat hc cancurredhwrtily in this opinion,and thai the oco-tanding
operationof the scieniisis fromthe iwo muntriermiserveas an cramplc
for the rcstof theCommission."

SceICNAF. AnnualMeeting.June 1959.ProcecdingsNo10,para.8.Reply. Annexes,
Vol. II,PaIV,Anncx48. 11131 REPLYOFCANADA 105

predecessor, the North American Council for Fisheries Investigations

(NACFI), in the management of Georges Bank fisheries and other fish-
eries of the Gulf of Maine area, was one of partnership and not of
"dominance". It is only through a selective approach to the evidence and
the use of a biased geographical frame of reference that the United

States can purport to substantiate the contrary view.

265. In the spirit of cooperation that characterized Canada-
United States fisheries relations, both Parties played active and mutually
supportive roles in developing the ICNAF conservation and management
program, including the prograni with respect to the resources of Georges

Bank. Canada and the United States cooperated on an equal footing in
dealing with al1 major issues concerning the Georges Bank fisheries in
ICNAF9'. The joint efforts of the Parties with respect to scientific
research, conservation, management and enforcement in the Georges

Bank area are detailed in the Canadian Counter-Mem~rial~~.

266. The United States account of the activities of the Parties
leading up to the foundation of ICNAF, and of their later activities
within the ICNAF framework9",omits a number of important Canadian
contributions. For example, the United States neglects to acknowledge

Canada's initiative in the creation of NACFI, the forerunner of
ICNAFIm. The United States fails to mention that the highly innovative
ICNAF Scheme of Joint International Enforcement stemmed from a
Canadian-sponsored amendment to the ICNAF Convention'o',and that

Canada actively participated in the technical development of the

''Erample~ of cooperative efforts hy the Parties include development of subarea 5 mesh
regulatians; development of the ICNAF Pratacol Relating la Panel Membership;
appraisal of quota allocation procedures; a suhmission regarding conservation require-
ments for herring in the Convention Area; and proposals for herring and mackerel size
limits. With respect Io the most important stocks on GBankesthat are of interest
Io the Parties. Canada was first ta prapasc conservation action for scallops,codand her-
ring, whcreas the United States made the first propafor haddock and yellowtail
quotas. Followingthese initial steps, the Partieinclosccaaperation to elahorate
the ICNAF quota scheme for Georges Bank until the United States withdrew from
ICNAF at the end of 1976.SeConodinn Counrer-Mernorial.pp. 174-175,paras. 423-
426. Seealso ICNAF, Annual Mccting. June 1969, ProceedingsNo. 15. paras. 3-4 and
Proceedings No.17. para. 5; ICNAF, Annual Meeting, June 1971, Commissioners'
Documents 71/17 and 71/18; ICNAF, Annual Meeting, June 1975. Commissianers'
Documents 75/32 and-25/33.Reply. Annexes,Vol. Il. Part IV, Annexes 49-54.
Canodion Counier-Mernorial,pp. 172-173, para. 419: pp. 174-175, paras. 424-425;
p. 177,para. 429.
Unirrd Sloies Counrer-Mernorial, p. 75, paras. 93-96; Uniied Sloies Counrer-
Mernorial. lCNAF Annex. Vol. II. p. 1, para. 2; pp. 4-9, paras. 10-13; pp. 19-40,
paras. 23-77.

lmConodion Counrer-Mernorio!,pp. 164.165, paras. 404-406.
'O'Conodian Couilfer-Mernoriap. 177.para. 429.106 GULF OF MAINE

scheme'". The United States also fails to mention - presumably

because Canada was the leader in its development - the ICNAF pro-
gram of cooperative scientific assessment and research, perhaps the
Commission's most notable achievement and the basis for sophisticated

research programs currently in use in Canada and the United State~'~'.
Similarly, the United States claims responsibility for the Protocol Relat-
ing to Panel Membership and Regulatory Measures, even though the

Protocol was, in fact, based on submissions from both Canada and the
United States'". Canada was also largely responsible for developing
ICNAF's much-lauded statistical system'". And it was a Canadian

chairman of the Commission that launched ICNAF's initiative to
develop conservation measures going beyond simple mesh regulations

'"Canada partiripated actively in the work of ICNAF's Standing Cammittee for Interna-
tional Cantrol throughout the committee's existence and made a number of important
praposals for the overall structure of the scheme. For example. in 1974 Canada pro-
posed a cevised scheme of Joint lntcrnational Enfarcement. The United States and
Canada frequently cooperated and played mutually supportive roles in the committee's
work. An example is the joint Canada-United States proposal for cumulative catch

record.See generally, ICNAF, Annual Meetings, 1972 to 1976. Praceedings: ICNAF.
Fourth Special Commission Meeting, January 1974. Proccedings No. 6. Appendix 1:
ICNAF, Annual Meeting. June 1975. Proceedings Na. 4. Appendix 1 and Anner 6.
Reply. Annexes, Vol. II. Part IV. Annexes55-56.
IoCanada provided thc chairman for the commission'sStanding Cammittcc on Research
and Statistics during the organization's critical first three years, and for a total of nine
years from the commission's first meeting in 1951 until the United States withdrew
from ICNAF st the end of 1976. United States reoresentatives held the.mrition for a
idl.il ui ml! three )carsOuririfiihs unie pcrid. C.ioddr~os ih-lrcd A~LI une-third

(.~pproiim.itr.ini~c A, mn) :,did Unilcd Sii;, rr.preizntitivr.<)JI II Ihc re;.>rJcd
mcciinpidi IC U 2) isientif.~ rub-ddinmitirz~.iiu~rkmd ~riiup, hlorro.iC r'.2n:tdi-
ans werc prominent in major initiatives relating to the Convention Aasaa whale. For
example. Canadianr co-authared the first comprehensive reviews of conservation prob-
lems throughaut the convention area:R. J. Beverton and V. M. Hodder: "Report of the
Working Group on fishery assessment in relation to regulation problems." Supplement
to ICNAF. Annuol Proceedings.Vol. II. for the year 1960-61. Dartmouth. N.S., 1962:
W. Templeman and J. Gulland: "Review of possible conservation actions for the
ICNAF area." ICNAF, Annual Proceedings. Vol. 15. for the year 1964.65, Part 4.
Dartmouth. N.S.. 1965, pp. 47-56. In addition. W. C. MacKenîie. a Canadian. chaired
a multi-disciplinary group that prepared a comprehensive report assessingthe biological

and economic consequences of conservation actions: "Repart of the Working Group on
Joint Bialogical and Economic Assesrment af Conservation Actions." ICNAF. Annuol
Proceedings.Vol. 17.for the year 1966-67,Part 4. Dartmouth. N.S.. 1968,pp. 48-84.
ICNAF, Annual Meeting. June 1969. Praceedings No. 15. paras. 3-4 and Proceedings
Na. 17,para. 5.Reply, Annexes. Val. II, ParIV.Annexes 49-50.
'O'Dr. W. R. Martin of Canada. the Commission'sfirst Executive Sccretary (1951-1952).

and an active participant in ICNAF for several years thercafter, spearheaded the
develapment of ICNAF's atatistical syrtem. Moreover, from the first year of itr forma-
tion in 1954.and until 1976,Canadianr chaired the ICNAF subcommittee dealing with
statistica 15times. A United States representative held the post for three years.Illsl REPLY OF CANADA 107

controlling the size of fish capt~red'~~.These are only a few of Canada's
major initiatives within ICNAF, but they are sufficient to rebut the
United States claim of overall "dominance".

267. Even more significant than the omissions in the United

States Counter-Memorial, however, is the biased depiction of the facts in
the Counter-Memorial's comparison of the activities of the Parties
within ICNAF. The United States aocount refers to activities conducted

throughout subarea 5 and statistical area 6'07,a vast area extending from
the international boundary southward to Cape Hatteras. Canada's claim
incorporates approximately 7 percent of this area (excluding statistical
area 6d). The balance of the Canadian claim is in subarea 4 [Figure 241.

There is little objective value in comparing the activities of the Parties
using the biased geographical frame of reference adopted by the United
States. Nevertheless. as discussed in paragraph 204, the record of

Canadian activities even within this framework is entirely consistent with
Canada's geographical situation and its economic interest in the area.

268. The United States description of management activities

throughout subarea 5 and statistical area 6 is no1 helpful in assessing
Canadian conduct in the area properly relevant to this delimitati~n'~~.It
was not in Canada's interest to participate in management schemes for
most of the wider area referred to by the United States. Canada's par-

ticipation in management activities was limited to those stocks that were
subject to Canadian fishing on Georges Bank, and Canada acted in con-
cert with the United States in proposing regulations for this fisherylo9.

269. The United States misconstrues the extent of Canadian

research activities in subarea 5 and statistical area 6 by limiting its
review to studies submitted to the Commission1'%Canada carried out
substantial research in this ares with respect to a number of important

species that were no! regulated by ICNAF, such as herring in the Com-
mission's earlier years and lobster, swordfish and tuna throughout the
Commission's existence. VolumeII, Part IV, Annex 59 of the Annexes

to this Reply lists some of the scientific papers reporting these Canadian
research activities. Canada's participation in management and research
in subarea 5 and statistical ares 6 was always fully commensurate with
the extent of its interest and of its present claim to a portion of the area.

ICNAF, AnnuoiProeeedings V,ol. 12, forthe year 1961-62,Halifax.N.S., 19p..10,
para.3; ICNAF. TwelRhAnnualMeeting, June 1962,ProceedingsNo. 13. p.2. Repiy,
Annexes,Vol.Il, PartIV. Annexes57-58.
'O'UniredSroresCounter-Mernorini,lCNAF Annex. Val. II,Anncx 3, p.22, paras.30
and 32;p. 26,para. 43;pp. 31-32.para.54: p. 34.paras.61-62 and Table A, p. 37,
para.72; TablesBI-B25.
'.aUniiedSrntesCounler-Mernoriai.ICNAFAnnex, Vol. IIAnnex 3,pp.31-32, para.54:

p.34,paras.61-62and Table A, Tables81-825.
lm Secp. 113,footnotc97.
''OUnited Srores Mernorial, pp.72-73. para. 128; Unired Srales Counler-Mernoriai.
ICNAFAnnex. Val. IIAnnex 3.pp. 35-37.paras.63-72; Tables81.825. 108 GULF OF MAINE il161

270. The United States version of the record of enforcement
activities in subarea 5 and statistical area 6 is also biased. It is inappro-

priate to use data on vesse1boardings, as the United States has done"',
to compare the activities of the Parties under the Scheme of Joint Inter-
national Enforcement. United States boardings were primarily related to
enforcement of its domestic lobster program, as reflected in the concen-
tration of activity along the 100-fathom contour of Georges Banktt2.

Canada, on the other hand, was mainly responsible for the international
patrol of the Haddock Closed Area established by ICNAF"'. Naturally,
there were substantially fewer Canadian boardings, since Canada was
monitoring an area from which vesselswere excluded.

271. The United States comparison of quota allocations for
Canada and the United States is disingenuous"'. It is not surprising that

Canada received fewer and lower quota allocations than did the United
States in subarea 5 and statistical aies 6, since the United States fishery
extended throughout that area, while Canada's fishery encompassed only
a very small portion of the same area"'. Moreover, the comparison is

further seriously biased in that scallops, a Georges Bank resource of
great importance to Canada, were never subjecl IO quota management.
Nevertheless, for quotas relating to directed fisheries by Canada,
Canadian allocations were entirely consistent with Canada's perform-
ance vis-à-vis the United States and with Canada's position as a coastal

State in thearea.

272. It is clear, on a review of al1 the facts, that the relationship
between Canada and the United States within ICNAF was that of
coastal State partners with a shared interest in the Gulf of Maine area.
Canada and the United States both enjoyed coastal State status in rela-
tion to subarea 5 throughout the period of theii. joint membership in the

Commission. This partnership was manifested in the conduct of the Par-
ties with respect to management, research, enforcement and quota allo-
cations for the Georges Bank fisheries. The selective and biased evidence

"'UnitedSlntej Counter-Mernorial,ICNAF Annex, Vol. LIAnnex 3, p. 39. para. 75:
p. 40. para. 77; p. 41. Figure 4; p. 43. Figure 5.
@
"'Can~dion Counrer-Mernorial, pp. 175-176, para. 427; United Stores Counter-
@ Memoriol.ICNAFAnnex, Vol. IAnnex 3. p. 41, Figure 4; p. 43. Figure 5.
"'CanadionCounter-Mernorial,p. 175,para. 426.
"'United SloresCounier-Mernorial,ICNAFAnnex. Val. IAnnex 3, p. 34, paras. 61-62
and TableA.
"'ln 1972, the first year of quata allocations, Canada and the United States received
small shares of theGeorges Bank herring quota (Icss than 5 percent). However,
Canada's share was larger than that of the United States. Canada alsa received a 20
percent share of the division 5Y herring quota in thIn1973, Canada received
11 percent of the quota forod in an area extending from Georges Bankta Cape
Cod. 60th Canadaand the United States received smallshares of the subarea S/statisti-
cal area 6 mackerel quota. with the Canadian share only 15percent lessthan that of the
Unitcd States. ln 1975. Canada received a 20 percent sharc of ail subarea 5 haddock.
Over the years, Canada received small allocations for a number of athcr species (such
as yellowtail nounders). mainly to caver by-catch in Lhcdirccted fisheries mentioncd
abave. See gcncrallICNAF. Annuol Reports, for the years 1972.1976. Dartmouth.
N.S..1973-1976.[117-118] REPLY OF CANADA 10!3

presented by the United States cannot alter the record of Canadian
activity, which is more than proportionate to the small part of subarea 5
claimed by Canada.

Section V. The United States Confuses the Conduct of the Parties
and lrrelevant State Activities

273. The United States Counter-Memorial gives a brief recapitu-
lation of a series of activities, other than those related to fisheries and
the continental shelf, that the United States considers relevant to this
case. The Canadian Counter-Memorial and this Reply have explained
why Canada considers these matters to be legally irrelevant: they are

unrelated to the subject matter of the zones to be delimited, and most of
the activities referred to by the United States took place before coastal
State jurisdiction beyond the territorial sea had been contemplated. As a
factual matter, the Canadian Counter-Memorial, and especially Volume
III of the Annexes ta that pleading, have shown that when the evidence
is considered in its totality, the patterns of conduct relied upon by the
United States never existed.

274. The United States concedes that these alleged activities can-
not vest it with an historie title, but says that they reflect a "mutual
understanding" of the Parties' respective responsibilities and a "pattern
of conduct" inconsistent with the Canadian claim"? In fact, they reflect
neither, both because the historical record fails to support the United

States position and because the activities invoked by the United States
are extraneous to the legal régimein issue.
275. Canada reaffirms its position that legally relevant State
activities must be related to the subject matter of the zones to be deli-

mited, and that they must have arisen in the legal context of the sover-
eign rights and exclusive jurisdiction that coastal States may now
exercise in areas beyond the territorial sea. Other activities relied upon
by the United Statesare irrelevant.

Conclusion
276. The United States seeks to exclude central elements of the

history of the dispute, while relying upon conduct unrelated ta the his-
tory of the dispute in support of a claim of "dominance" that is not in
keeping with the facts or with equitable principles. The United States
boundary claim remains barred by virtue of the doctrines of acquies-
cence and estoppel. The equitable nature of the Canadian line stands
confirmed by the conduct of the Parties that is directly related to the
history of the dispute and the rights and jurisdiction in issue, inparticu-
lar the continental shelf activities of both Parties; the existence of a
modus vivendior defacto maritime limit at least from 1965 to 1972; the

1979 Agreement on East Coast Fishery Resources; and the recognition
of Canada's status as a coastal State in relation to Georges Bank within
the context of the International Convention for the Northwest Atlantic
Fisheries.

u6 UnitedStotesCounier-Memoriol.p. 83. para. 106. Ill91

CHAPTER V

THE RELEVANCE AND REALITY OF SOUTHWEST NOVA
SCOTIA'S VITAL DEPENDENCE ON GEORGES BANK

Introduction

277. A central issue in this case concerns the maintenance of
established fishing patterns in keeping with the relative economic
dependence of Canadian and United States coastal communities on the
fishery resources of Georges Bank. While constructing major elements of
its case upon an erroneous view of fish distributions in the Gulf of Maine
area, the United States nevertheless seeks to deny the relevance of eco-

nomic factors directly related to the distribution and utilization of these
resources. The Canadian Memorial and Counter-Memorial have demon-
strated the importance of the human dimension in the law applicable to
the delimitation of maritime zones whose primary abject and purpose are
rooted in economic considerations, and paragraphs 85 to 92 of this Reply
have provided further confirmation of Canada's view.

278. The United States Counter-Memorial conjures with fishery
statistics but avoids the significant and relevant economic comparisons
because these would demonstrate the lack of equity in the United States
claim. Instead, the United States Counter-Memorial and ils Annexes
(Volume III, Annex 4). (inaccurately entitled "a factual analysis of the
socio-economicarguments in the Canadian Memorial") seek to avoid the

issue by contrasting Nova Scotia's economic conditions with those of
remote countries and peoples that have no bearing whatever on the
present case'. The aim of the United States, evidently, is to establish
that southwest Nova Scotia is a relatively wealthy region when viewed in
global terms. Since Canada does not rely on arguments of relative
wealth - whether in relation to the United States or to the world at
large - the effort devoted to making this point is entirely wasted.

279. Canada makes no appeal to relative wealth. Canada sub-
mits, on the contrary, that the relevant economic circumstances are those
which during the relevant period linked the coastal populations of each
Party with the maritime area to be delimited. Care was taken in the
Canadian Memorial and Counter-Memorial to contras1 the presence of
the two Parties in the area during the relevant period, the degree of
dependence(if any) that each Party had developed in relation to these

patterns of economic activity, and the adverse impact (if any) that each
Party could expect to surfer as a result of the other Party's claim.
Canada has demonstrated that the Canadian line. which leavesover half
of Georges Bank to the United States, would minimize disturbance of
the existing fisheries of bath Parties on Georges Bank. The United
States line, on the other hand, would obliterate Canada's established

'Unired Srores Counier-Memoriol. Sorio-Economic Annex. Vol. III, Anne35-. pp.
42. paras.44-5Appcndin F. LI201 REPLY OF CANADA 111

economic interests on Georges Bank and severely damage the fishing
industry of southwest Nova Scotia, and with it the economic and social
fabric of that region, while securing only marginal benefits to the rela-
tively deep and diversified economy of eastern Massachusetts. Canada

has also demonstrated that other areas of New England and Atlantic
Canada would not be significantly affected in economic terms by either
the Canadian line or the United States line.

280. In these circumstances, it was submitted, equity favours the
Canadian line - itself the product of a balancing-up of relevant eco-
nomic, geographical and other circumstances - over the United States
line. Nothing said in the United States Counter-Mernorial rebuts or
qualifies these central points. To the extent that other matters marginal
to these central points are csnvassed in the United States Counter-
Memorial, the following sections will correct any misapprehension as to
the facts that may now exist.

Section 1. The United States Counter-MemorialMiscasts
Canada'sPosition Regarding Economic Dependence;
It1s the United States and Not CanadaThat Relies
on ExtraneousConsiderationsof Relative Wealth

281. The United States Counter-Memorial argues that Canada's
reliance on economic dependence would undermine the peaceful settle-
ment of disputes because, if this consideration were held legally relevant,
the "richer" of two States allegedly would never be prepared to submit
to third-party settlement2.Equally, of course, it could be argued that al1

"relevant circumstances" should be excluded [rom consideration
because, upon examination, they would tend to favour the position of one
party over the other, and thus discourage the disadvantaged party from
submitting its claim to the scrutiny of impartial adjudication. Inreality,
the peaceful settlement of disputes would be seriously prejudiced if
States were given to understand that certain relevant circumstances
would nor be taken into consideration, jus1as it would be prejudiced by
encouraging extreme boundary claims of the kind advanced by the
United States, or by encouragiiig extreme propositions such as the rejec-

tion ab inirio of any claim that might result in the division of a fishing
bank. International adjudication in these circumstances would aggravate
the very disputes it was meant to resolve.

282. As was already noted in parngraphs 45 to 48, the United
States miscasts the Canadian position by failing to make the simple but
essential distinction between economic dependence and relative wealth,
between actual exploitation and contingent prospects of exploitation of
the resources of the disputed area. Yet, notwithstanding its protestations
that relative wealth is not a relevant circumstance, the United States
Counter-Memorial, like the United States Memorial, makes frequent

UniredSroresCounrer-Mernorial,215,para. 342 and laotn2te112 GULF OFMAINE [121]

appeals to this extraneous consideration'. At one point, for example, the
United States Counter-Memorial pleads relative national poverty in
resources, as follows:

"The traditional fish stocks along the United States east Coast are
fully utilized. In contrast to the alternatives available to Nova
Scotia fishermen, there is no place for displaced New England fish-
ermen to go4."

Quite apart from the factual inaccuracy of this assertion (the United
States Memorial refers to the great flexibility of its fleet to convert to
other fisheries and resort to alternative fishing grounds in the period
from 1969 to 197g5),the presence or absence of fishing grounds outside
the relevant area is not a circumstance that ought to be considered in a

boundary delimitation. What ought to be considered, in Canada's sub-
mission, is a comparison of the established economic interests and the
associated economic dependence of the Parties vis-à-vis the area to be
delimited.

283. The United States Counter-Memorial seeks to confuse the
legally relevant economic factors of presence and dependence in relation
to the disputed area, with the legally inadmissible factor of relative
national wealth. For example: the United States notes that a Canadian
Government task force recently found that fishermen in southwest Nova

Scotia are among the most prosperous fishermen in Atlantic Canada6.
This fact, without more, would be irrelevant. The task force goes on to
point out (as the United States does not) that this comparative prosper-
ity is owed in large part to southwest Nova Scotia's continuing access to
Georges Bank. The report of the task force not only affirms the direct
functional links between Nova Scotia and Georges Bank but measures in
concrete terms the value of those links. Without Georges Bank, the pros-

perity of fishermen in southwest Nova Scotia in comparison with the
economic situation of fishermen in the rest of Atlantic Canada would
quickly disappear'. Thus placed in context, the analysis of the task force
becomes relevant.

284. Elsewhere in its Counter-Mernorial the United States
accepts the distinction between economic dependence and relative

'UniredSiaies Counter-Mernorial,pp.214-217, paras.140-148;UniredSfafer Counrer-
Memorio/, Socio-Economie Annex.Vol. 111,Annex4, pp. 15-42, paras.44-54: Appen-
dix F.The UnitedStates Mernorialmadenumeroussubmirsionsbasedessentiallyon the
relativcwealthof the two countries.The irrelevanceof thosecontentionswas dealt with
in Canada'sCounter-Memarial.See Conodion Counrer-Mernorial.pp. 115-118, paras.
286-294.
'UnitedSlores Counfer-Mernoriol.p. 216, para.347.
'UniredStates Mernorial.p. 50. para.83.
UniredStates Counrer-MernoNol,Soeio-EconornieAnnex, Val. 111,Annen 4, p. 36,
para.45 and footnote3.
'Task Forceon Atlantic Fisheries:Novigoting Troubled Woiers. A New Poliey for rhe
Aflonfic Firheries.Ottawa, Supplyand Services Canada. 1982,pp. 62 and 78. Reply.
Annexes.Val. Il. Part IV, Annex66. LI221 REPLY OF CANADA 113

national wealth. In relation Io Maine and New Hampshire, for example,
the United States does its best to establish economic links between these
areas and the Georges Bank IïsheryB,even though no significant eco-
nomic links exist. The United States' own fishery statistics show that less
than 1percent of the catch of Maine and New Hampshire is taken from
Georges Bank9, while the percentage of their catch from the area actu-

@ ally in dispute is practically non-existent [Figure IO] . anadian fisher-
men from as far north as Cape Breton Island catch more fish in the
disputed area of Georges Bank than do the fishermen from Maine and
New Hampshireto.

285. In most respects, however, the United States Counter-

Memorial altogether ignores ariy test of relevance for economic factors.
Thus, for example, the purported "Standard of Living Comparisons" in
Annex 4 of the Annexes to the United States Counter-Memorial
(Volume III, Appendix F), are entirely devoted to considerations of
"relative national wealth". In this connection, the United States is care-

ful to avoid any comparison of Nova Scotia with Massachusetts, which
of course is the only relevant comparison - if such comparisons are to
be made at all.

Section II. The United States Counter-Memorial Gives an Inaccurate

View of the Relative Presence of the Parties in the Fishery of
Georges Bank

286. The elaborate concern with which the United States Coun-
ter-Memorial treats the precise measurement of Canada's presence in
the Georges Bank fishcry shows that the United States itself regards

such presence as a relevant circumstance of major dimensions. But the
United States, in an effort to play down Canada's presence, makes
highly selectiveand inconsistent use of the data.

287. The United States attempts to inflate the importance of its
own presence on Georges Bank by using catch data from the whole of
ICNAF sub-division 5Ze, of which only 27 percent lics within the dis-
puted area. Catch data from this larger area, of course, are irrelevant to

%TheUnited States presents irrelevant matcrial in support of ils contention that fisher-
men from Maine and New Hampshire fison Georges Bank. by listing fishing vessels
that harveon Georges BankandlorJordan Basin. Since the latter fishing area is only
40 nautical miles from the Maine caast and entirely in undisputed United States waters.
il is not surprising that vesMainershould fish there. It is. however,irrelevant to
the disputUnited States Counrer-Mernorial. Documenrory AnneVol. V.Annex
25.As ta the four Maine fleetr that allegedly fish on Geornasevidence has
been introduced ta support this contention by the United States.
From 1969 ta 1978. Maine and NFWHampshire harvested 0.4 percent of the value of
the Georges Bank catch.
'OIn 1978. Canadian fishermen from Cansoand Cape Breton Island landed 4,807 metric
tansfrom the disputed portioGeorges Bank. In the same year 2,455 metric tons
from thisea uerelanded in Maine and New Hampshire. 114 GULF OF MAINE 11231

the present proceedings". For the years prior to 1967, the United States

actually includes statistics regarding its catches from as far south as
Long Island, some 200 nautical miles from any part of Georges Bank
claimed by Canada. The distortion of the relevant catch area is
aggravated by the United States misleading use of net (meat) weight for
scallops and gross (round) weight for al1 other species. in an attempt to
discount the scallop catch, which is of primary importance to Canada.

@@,The cumulative effect of these distortions is evident in Figur1sand 2 of
the Annexes to the United States Counter-Memorial (Volume III,
@ Annex 4). By way of contrast, Canada has prepared Figure 25, which is
based on the best available catch data for the years in question and
which showsthe actual state of affairs in relation to the area in dispute.

288. In Canada's view, of course, cornparisons of catch weight
tell only asrnall part of the storyA kilogram of lobster or scallops has

greater economic significance than a kilogram of dogfish or menhaden.
Economic analysis rnust ultimately concern itself with value, not kilo-
grams, yet the United States Counter-Memorial never translates its
@ weight comparisons into terms of economic value. Figure 26 shows the
,reason for this omission. Between 1969and 1978, Canada harvested 73.1

percent of the total value of thecatchfrom the whole of Georges Bank.
During the same period, Canada harvested 84.2 percent of the total
value of thecatchfrom the area of the Bank under Canadian claim.

289. The United States rejects the appropriateness of the period
from 1969 to 1978 as a basis of comparison of the United States and
Canadian fisheries because, in the United States view, Canadian harvest-
ing efforts were unduly successful in those years". This position is con-
tradicted by the United States' own acceptance of the period from 1969

to 1978 as the basis for the calculation of many of the entitlements
under the 1979Agreement on East Coast Fishery Resources.

290. The United States now protests that this period is not repre-
sentative of historic fishing patterns, but is contradicted by ils own Envi-
ronmental Impact Statement on the 1979 fisheries agreement, which
noted that the entitlements set out in that agreement "preserve historical
fishing patterns"", a conclusion that is amply supported by the evidence

"In 1967. ICNAF divided Division 52 inta subdivisions5Ze and 5Zw dong longitude
70°W, intersectingthe outeraofCapeCd and Nantucket Island. Thislongitudinal
line does not. as the United Statcs alleges, "break down catch statistics between
Memoriol. p. 55. TableA]. In fact. NantucketShaalsand the GreatSauth Channelare
includedwithinrubarca5Ze dong withGwrges Bank.Subarea5Ze is. in turn,divided
inio six statistical units. GeorgesBank is covcredby only four of these: 5Zej. 5Zcm.
5Zeh and 5Zen. NantucketShoalsand theGreat SouthChanarecoveredby statisti-
cal units5Zeg and 5Zea.See ConodionCounier-Memoriol, p. 102. Figure25.
@ UniiedStntes Counter-Memoriol, p. 54. para.71.

"Drofi Environmenfollmpoer Sioiemeon lhe Agreement Belween ihe United Sloier
nnd Conodo on Eosr Coosi Fishery Resourees. United States Departmentof Statc.
Washington,GavernmentPrintingOffice.April 1980. pp. 7-8. Annexes.Vol. II,
PartIV. Anncx61.1124-1251 REPLY OF CANADA 115

contained in Volume II of the Annexes to the Canadian Counter-
Memorial. As explained in paragraphs 308 to 313 and in Volume II,

Part II of the Annexes to this Reply, the United States is mistaken in
allcging that Canada's fishery on Georges Bank did not attain signifi-
cance until the 1950s.

291. Despitc the fact that prior to 1964 no statistical data were

collected ta measure Canadian fishing activities in the four ICNAF sta-
tistical units that together approximately comprise Georges Bank, the
United States argues that the relevant period within which to assess the
fishing activities of the Parties is not 1969 Lo 1978 but 1940 to l98Il4.

With respect to the period prior to 1964, Canada submits that
unrecorded activity cannot logically or fairly be characterised as no
activity. Since 1978, moreover, the relative fishing activities of the Par-
ties have been distorted by the Cactthat the United States has refrained

from imposing effective conservation regulations on its fishermen on
Georges Bank'l. Post-1978 catch statistics, therefore, are artificial. The
United States should not now benefit from its own failure to take appro-

priate steps to manage its fishery, particularly since post-1978 catches do
not reflcct the contemporary interests of the Parties in either relative or
absolute terms. In any event, whether the value of the catch from the
disputed area is averaged over the years from 1969 to 1978 as Canada

" United States Caunter-Memoriol. Socio-Economic Annex. Vol. III, Annex 4, p.4.
para. 8.
" Therc were no restrictions an the United States scallop fleet until 1982. As a result,
large verrelr moved into tarea from the south. harvestinevenimmature sçallaps and
quickly reducing the economic life of the beds.Even United States fishermen com-
plained: "Wait 'til this summe.. .They'll wipc us right out with al1those boats from
dorn South ... ".[Naiional Firharman. Camden. Maine. May 1980,p. II.]

Although regulations did exist for graundfish the United States did nothing to enforce
them and National Marine Fisheries Servicc afficialr "estimated that al least 75 percent
of landings came from arcas ordered closed to firhing". [M. E. Dewar: Indurr~y in
Trouble. Philadelphia. Temple University Press, 1983, pp. 183-184.1The situation was
aplly described in the United States publication Noriono1Flshermon:
"Complaints from domestic fishermen about the illegal fishery were answered
by hclpless pleas fram NMFS for vessels or patrol planes and by claims of no
funds fram the Coast Guard, which was in the middle of ils budget battle bctu.een
the Carter Administration and <:ongress.

Complaints fram Canadian scallopers. obscrving the illegal harvest in the por-
tion of Georges Bankclaimcd both by the U.S. and Canadians. got better results.
Officials in Nova Scotia callcd Canadian fisheries officia15in Ottawa; Ottawa
called Washington; Washington called the NMFS regional office in Gloucester
and Coast Guard headquarters in Boston; and planes and the cutter Unimak werc
dispatched to keep a better eye on things.
Haw good an cye? Nol very, say the fishermen who are trying 10eke out a liv-
ing withaut breaking the rules. Same fishing gear was seized and numerous cita-
tions were issved to fishermen insidc the clased area in late Aoril and earlv Mav.
but thase working legally generally agree the effort failed to significantly reduce
the now of fish from the close;ires.[Nafionol Fishermon, Camden. Maine. July

1980,p.4.1
See Reply. Annexes, Vol. II. Part IV, Annexes 62-64 116 GULFOF MAINE il261

suggests, or from 1978 to 1981 as the United States ~uggests'~,or from
1964 to 1981 as existing statistics permit, the result in each case is to

demonstrate that Canada's presence on Georges Bank is the most impor-
@ tant one [Figure 261.

292. The significance of the catch data need not be belaboured,
nor do the statistics need to be finely weighed down to the las1fish. Even
the United States view of the data corroborates a sufficient Canadian
presence in the Georges Bank fishery over a sufficiently long period of
lime to make clear the inequitable nature of the United States claim to

the whole of Georges Bank and ils resources. Canada's traditional par-
ticipation in the fishery throughout the whole of Georges Bank has been
far more than commensurate to that portion of the Bank now claimed by
Canada. The Canadian line is the only one advanced in these proceed-
ings that is consistent with the relative presence of the Parties in the
fishery of Georges Bank, and that would minimize economic disruption

for adjacent coastal populations.

Section III. The United States Counter-Memorial Gives an
Inaccurate View of the Relative Importance of the Fishery to the
Parties; It Errs in Its Portrayal of the Economy of Nova Scotia and
of Southwest Nova Scotia in Particular

293. The United States Counter-Memorial and its Annexes
(Volume III, Annex 4) refrain from making any meaningful comparison
of the relative economic dependence of the Parties on Georges Bank, and

play down the importance of the Georges Bank fishery to Nova Scotia ta
a degree that is no1in keeping with the economic realities.

294. The United States attempts to portray Canada's Georges
Bank fishery as an artificial creation of Canadian Government policy
rather than the product of genuine economic forces, but this contention
(even if it were relevant) ignores the following well-documented facts:
firsi, such Canadian Government subsidies as did exist from time to time
during the relevant period did not help the Canadian offshore fishery in

general or the Georges Bank fishery in particular, but promoted the
inshore fishery at their expense"; secondly, Canadian Government poli-
cies that provided temporary financial assistance to the fishing industry
at times when landings were reduced through overfishing by other fleets,
and when prices were temporarily low, neither harmed, nor were likely
to harm, the United States fisheries, according to determinations made

on several occasions by the International Trade Commission (the United
States Government body responsible for making such de ter mi nation^'^);

l6Canadianfishermenharvested59.2 percentof the value of the Gmrges Bankcatch in
the pericd1978ta 1981.
"Sec Re~. .Annexes, Val. II. Part .. Appendii;6. pp. 155-158, paras. 3-13 and Dacu-
rncntaryAppendix15.
l8Conndinn Counter-Mernorial, p. 113, para. 281; Conodion Counrer-Mernorial.
Annexer,Val. IVAnnex 39. ~1271 REPLYOF CANADA 117

and thirdly, the United States Government itself hasactively intervened
in support of the United States fishermen throughout the life of the
Georges Bank fishery,by the imposition oftariff and non-tariff barriers,

and by implementinggrant, loan and subsidyprograms19.

295. As to the economic dependenceof Nova Scotia on Georges
Bank, Volume II, Part 1 of,the Annexes to this Reply shows that in
terms of employment Georges Banksustains approximately 3,600 full-
time jobs in an area where there are few, if any, alternative job oppor-

tunities. The precise lossof employmentthat would be caused by lossof
access to the disputed fishinggrounds would depend on the number of
people whochose to migrate from the region in response to the deterio-
ration in economic conditions. It is likely that the drop in employment
would drive up regional unemployment by 50 percentz0. A significant

out-migration, of course, would bedisastrous for the coastal communi-
ties concerned. The United States Counter-Memorial, in dealing with
possible job losses in the United States, does not place these alleged
losses in the context of the Massachusetts economy. Accordingly, it is
appropriate to point out here that, with or without their present Georges

Bank fleets, the communities of Boston, Gloucester and New Bedford
would continue to prosper". Assuming, however,that al1jobs at risk are
in fact lost as a result of the boundary delimitation, the relevant com-
parison for the Court to make is between the loss of 3,600 jobs in a
regional employment base of 47,000 jobs in southwest Nova Scotia

(approximately 8 percent of the work force) and the possible loss of
1,500jobs in a regional employment base of 1,780,300jobs in eastern
Massachusetts (0.08 percent of the work force). In terms of employment,
Canada's dependence on the disputed fishinggrounds is thus 100 times
greater than that of the United States.

296. The United States Counter-Memorial employs unrealistic

and arbitrary calculations in its attempts to minimize the number of
Nova Scotians dependent for their livelihoodon the fishery of Georges
Bank". The assumption that the average fisherman spends 220 days per
year at sea", for example, takes no account of crew rotation practices
prevalent in the offshore fishery, or of the frequently hostile weather

conditions that limit the number of days in which the near-shore fishery
can operate".

IReply.Annexes.Val. II, Part 1,Appendix6, pp. 159-164.paras.14-23.

lReply,Annexes. Vol. IPart 1.Appendix1.pp.34-35, paras.3-6:p.41. paras.9-11.
"CanadionCounier-Mernorial.pp. 119-120.para. 300: p.292. para.697.
Uniied Sintes Counter-Mernorini.Soeio-EconornieAnnex. Vol. III. Annex 4, pp. 12-
14, paras.11-17:AppendixB.
"UnitedSioies Counier-Mernorial.Soeio-Eonornie Annex,Vol. III, Annex4, Appendix
B. sec.2,p. 13, Table 1-19fwtnote 4; p. 14. Table 1-19fmtnote4; p. 15, Table
1-1978,fwtnote 4; p. 16,Table 1-1977.faatnote4.
" Fishermenworkan averageof 12ta 16 haursperday whileat sea. whichmeanrthat a
220-day year wauld be equalta 1.5 full-time equivalent man-ycars.For a complcte
explanation.seReply. Annexes,Vol. II, Part 1. Appendix 1. p. 34. para. 4 and foot-
note7. 118 GULF OF MAINE [128-1291

297. Notwithstanding the disagreement on some aspects of these
calculations, however, the United States was obliged to concede in ils
Counter-Memorial (Volume III. Annex 4, Appendix B) that the dis-
puted portion of Georges Bank supports more jobs and generates more
value in Canada than il does in the United States". Canada and the

United States thus agree on relative impact even if they cannot agree on
the absolute number of jobs at risk. The degree of economic dependence
of southwest Nova Scotia on the fishery of Georges Bank that is
conceded by the United States, while less than ils real extent. nonethe-
less represents a dependence of major significance when compared with
@ other national and regional economies [Figure 271.

298. Although the United States suggests that any impact from

the loss of access to Georges Bank would be offset by alternative
employment opportunities in Nova Scotia for both vessels and fishermen,
the source of this alternative employment is not identifiedZ6.As is
demonstrated in Volume II, Part 1 of the Annexes to this Reply, the
alternative opportunities suggested in general terms by the United States
are illusoryZ7.Even if they did exist, of course, they would not justify the

United States claim to the whole of Georges Bank, nor the exclusion of
Canadian fishermen from their present activities on the Bank.

299. Using 1980 data, Canada estimates that the contraction of
fishing industry operations resulting from loss of access to Georges Bank
would produce a direct decline of some $64 million in Nova Scotia's
Gross Domestic Product (GDP)18.The impact of this loss would be con-
centrated in southwest Nova Scotia, where the corresponding contribu-

tion to GDP originates at present. As the initial shock worked its way
through the economic system, a further drop in GDP of $82 million
could be expectedZ9.Thus, the total decline in GDP that would result
from loss of access to Georges Bank would be in the order of $146 mil-
lion. If the whole of this decline were concentrated in southwest Nova
Scotia, it would represent a decline in regional GDP of 17 percent. In

terms of income dependence, the relevant comparison to make is between
a loss of $146 million in a regional GDP of $860 million in southwest
Nova Scotia against a possible loss of U.S.$58 million in a regional GDP
of U.S.$51,500 million in eastern Massachusetts (0.1 percent). In prac-
lice, al1of the loss will no1likely be concentrated in the regional econo-

mies, and the analysis presented by Canada in Volume II, Part 1of the
Annexes to this Reply takes into account the possible diffusion of the

" UnitedStates Counler-Mernorial.Soeio-EconornAnnex.Vol. III. Anncn4, Appcndir
B. pp.2-3, Tables I and 2.
l6United Slales Counter-Mernorial, Soeio-EconorAnnex.Vol. III, Annei;4, pp. 42-
46. paras.55-68.
"Reply. Annexes.Vol. II,Part1,pp.21-25, paras.36-49;p. 26. Figure6.
Reply.Annexes. Vol. II,Part 1, p. 7, para. 9; Appendix 1, p. 32, Table 1; pp. 36-40,
paras.7-8.Tables4-10,
Reply.Annexes.Vol. Il, Pa1,p.7,para. 10:Appendix1,p.41.Table 1,para.9.il301 REPLYOFCANADA 119
impact through the broader economy. Nevertheless, in income terms,
Canada's dependence on the fishing grounds of northeastern Georges

Bank is approximately 170 times greater than that of the United States.
300. The United States seeks to divert attention from these eco-

nomic realities,first by understating the facts in relation ta Nova Scotia,
secondly by failing to state the facts in relation to Massachusetts, and
thirdly by attempting to put such facts as are stated in a totally inappro-
priate context. For example, the United States attempts to belittle the
importance of Canadian fishing on Georges Bank by measuring its
(understated) economic value against the entire national economy of
Canada, while avoiding a similar comparison of the importance of
United States fishing in the disputed area to the United States national

economy. Such a comparison, of course, would show that the impact of
United States fishing in the area could scarcely be detected in the
United States econ~my'~.The United States justifies its insistence on
"national" rather than regional economies by invoking the Fisheries and
Fisheries Jurisdiction cases. Yet, in the Fisheries case, the Court
emphasized, as an equitable consideration, the importance of "economic
interests peculiar to a region"". (Iialics added.] And in the Fisheries

Jurisdiction (United Kingdorn v. Iceland) case, the Court emphasized,
as a decisive factor to be taken into account, the "economic dependence
... of whole cornrnunities"". [Italics added.]

301. The United States Counter-Memorial tries to minimize the
importance of "basic sector" employment to the economy as a whole".
The Canadian Memorial pointed out that the basic economic sector can
be compared to the foundation on which the rest of the economy is sup-
ported. The United States Counter-Mernorial suggests that the economic
superstructure could exist independently of this foundation, as if the peo-
ple of Nova Scotia could al1 make a living by taking in each other's

laundry after the "basic economy" had collapsed.
302. The Canadian Mernorial used a sectoral approach in
describing the importance of the fishery for two reasons:first, to convey

the essential point that the basic sector of any economy generates the
exports that provide the foundation for economic growth and develop-
ment, and secondl,~,to demonstrate the crucial importance of the fishing
industry to the vitality of the basic sector of Nova Scotia's economy.The
United States denigrates the relative contribution of the fishery to the
economy of Nova Scotia without acknowledging that ils contribution is
greater in proportional terms than the contribution of iron and steel to

IoReply,Annexes, VolII, Part 1.p. 7. paras. 11-12;Appep. 33Table2.
''I.C.J. Repwts /PSI, p. 133.
" I.C.J. Reports 1974.p.para.66:pp.197-198,para. 58.
United Stnres Counter-Mernorial.Soeio-EeonornicAnneVol.111,Annex 4, p.II.
Dara.10. 120 GULF OF MAINE LI311

the German or Belgian economy, or wine to the French economy'".
Forestry is also a very prominent economic sector in Canada, and is

internationally recognized as such, and yet forestry contributes only 0.7
percent of employment and 0.8 percent of GDP to the national economy.
(The reason for the importance of these "basic" sectors in driving the
economy, of course, is the "multiplier effect" described in Canada's

Memorial and Counter-Mernorial. and analysed in some detail in
@ Volume II, Part 1 of the Annexes to this Reply.).[Figure 27.1

303. The United States Counter-Memorial attempts to isolate the
economic damage that would be created by loss of access to Georges
Bank to five major ports where the offshore fleet isbased3'.The United
States apparently assumes that the small vessel fleet scattered in ports

along the Coastof southwest Nova Scotia never fishes on Georges Bank,
notwithstanding its close proximity and the data Canada has presented
to the contrary. The United States also appears to assume that an "off-
shore" fisherman's home is necessarily in the port where his ship anchors
(instead of in the less expensive dormitory communities outside the main

ports); that a fisherman's spending power stops at the municipal bound-
ary; and, finally, that the boat builders and suppliers of al1types of ser-
vices to the Canadian fishing effort on Georges Bank are similarly con-
fined to five main ports. These assumptions on the part of the United

States are wrong. The Canadian Counter-Memorial and Volume II,
Part 1of the Annexes'to this Reply demonstrate the pervasivieconomic
impact of the offshore fishery rhroughout southwest Nova Scotia".

~ p
" II is instructive to compare the relevant importance of major industries in othcr coun-
tries in 1978:
Percentage of GDP
lron and steel. Germany 2.6
lronand steel, Bclgium 1.4
Winc. France 0.6
Automobiles.Japan 2.3
Automobiles, UnitedStates 2.6
Forestry, Canada 0.8
These camparisons underscore the importance that mus1 be attached ta basic sector
activities. Even the Unitcd States would find il difficult to dismiss the abovc-nated
industries as economically insignificant. OECDEconomicSurveyr, 1982. Belgium, Lux-
embourg. p. 65, Table B. OECD Economic Surveys, 1980. Federal Republic of Ger-
many, p. 64. Table A. AnnuoireSlaiislique de Io France. 1982. Paris. Institut national
de la statistique et des études économiques. 1982,p. 227, Tableau 3.01-1. Slorislicol
Absrrocr of the Uniled Sioier. 1981. United States Department of Commerce. Bureau
of the Censur, p. 424, Table 707. Jopon. Sialisiieol Yeorbook. Tokyo. Statistics
Bureau. Prime Minister's Office,July 1982. p. 539, Table 348. Yeorbook of lndusfriol
Siorislics. 1980 Edition. Vol. 1. General Industrial Statistics. New York, United
Nations. 1982.pp. 47, 174, 195. 271, and 553. Ses, Reply. Annexes. Vol. II, Part
IV, Annexes65-70;UniiedStores Counler-Mernorial.Sdo-Eeonornie Annex, Vol. III.
Annex 4. Appendix A, Table 2. Employmcnt figures, by seetor, have been used Io
approximate Massachusetts statc GDP, by sectar. See Reply. Annexes. Vol. II, Part 1,
Appendix 1. p. 49. Table 20.
"United Siaies Counler-Mernorial, Socio-Eeonomie Annex. Vol. III. Annex 4. pp. 25-
26. para. 25.
'6Cnnndion Counier-Mernorial, pp. 121-124. paras. 304-317; Reply. Annexes. Vol. II.
Part 1.pp. 15-17.paras. 21-29. [132-1331 REPLY OF CANADA 121

304. In the "economic analysis" offered in its Counter-Memorial
and supporting Annexes, the United States presents data on a provincial

and state basis rather than on the basis of the regional economy. Such a
@ chan. in scale does not affect the overall result. Figure 28 compares the
relative dependence of Nova Scotia and Massachusetts on income
derived from fishing activities on Georges Bank. Nor is the overall result
changed if relative dependence is re-calculated using the understated and
erroneous estimates appearing in the Unitéd States Counter-Memorial

and its Annexes (Volume III, Annex 4)". The United States data are
used not because they are considered accurate but rather to show that
the United States cannot produce evidence to put its clairn in an equita-
@ ble light. Figure 28 makes clear why the Canadian line would minimize
any disturbance to the settled economic patterns of the Parties. while the
United States line would grievously damage the economy of southwest

Nova Scotia and produce only marginal benefits for Massachusetts.
305. The United States Counter-Memorial attempts to dismiss as

inconsequential the economic impact and social costs for southwest Nova
Scotia arising from a loss of access to Georges Bank". It is therefore
instructive IO compare the magnitude of the economic decline that would
be suffered by southwest Nova Scotia with the decline in GDP actually
suffered by OECD countries during the recent economic recession. The
very real hardships faced by western industrialized nations, such as the

United States, were generated by percentage changes in GDP ranging
[rom just f1.9 percent to - 1.0 percent". The decline in regional GDP
faced by southwest Nova Scotia resulting from loss of access to Georges
Bank would be in excess of 10 percent. The disruption to communities
and economic activities would be proportionately more severe. And it
would be permanent.

Section IV. The United States Counter-Mernorial Does Not
Suhstantiate Its Conclusions Regarding Economic Equities

306. Having presented in the Annexes to its Counter-Memorial
(Volume III, Annex 4) an "economic analysis" that avoids addressing
most of the relevant economic considerations, the United States asserts
that this "analysis leads to the conclusion that, even if economic

"The ratioof relativedependence. ovaSwtiata Masrachurcttsc.alculatedusingthe
Vol.eIIIAnnexd4.AppendixUB.pp.2-3,TablesIand 2.ernorial. Soeio-Econornic Annex.

'W~lniredSroresCounrer-Mernoriolp. 215para.344.
IV In 1981. growth oUnitcdStatesGNPslowed to +1.9percent.whiletheaggregate
GNP/GDP ofal1European OECD ountries declinedby only-0.8 percent.In 1982.
UnitedSiatcsCNPdccrcarcdby -0.9 percent.whilethcGNP-GDP of theEuropean
OECDcountrics declineby -0.1 percentOECD EconornicOurlook. Vol.33,Organi-
Reply. Annexes.Vol.IIPartIV.oAnnexD71.lopmcn J.ly 1983,p. 44.Table12. Sec 122 GULF OF MAINE il341

dependence and relative wealth were legally relevant, the adjusted per-

pendicular line proposed by the United States is a more equitable solu-
tion than any boundary crossing Georges Bankao".

307. The purported analysis does no such thing. The conclusion
stated in the United States Counter-Memorial is not even hinted at -
much less supported - by Annex 4, Volume III of the Annexes to the
United States Counter-Memorial, which at no point undertakes a com-
parison of the economic impact of the United States line on Canada with
the economic impact of-the Canadian line on the United States. Equity
requires a weighing of the relevant circumstances and not a selective

argument about only one side of the balance sheet. An equitable solution
should produce a boundary crossing Georges Bank. The United States
Counter-Memorial presents no economic data or argument to suggest a
contrary conclusion.

Section V. The United States Counter-MernorialDoes Not Impugn
Canada'sEvidence That the CanadianGeorges Bank Fishery

Has Deep Historical Roots

308. The United States Counter-Memorial does not refute the
Canadian Memorial's presentation of the history of the Canadian fishery
on Georges Bank. In response to the unequivocal evidence of Canada's
historical fishery on Georges Bank as presented in the Canadian
Memorial", the United States merely cites the fact that it is not men-
tioned in a 1945article on the Canadian fishing industrf'. This isolated

and minor point in no way supports the United States claim that "[ilt
can only be assumed that this leading reporter on Canadian fisheries was
unaware of any Canadian fishing activity on Georges Bank prior to
194543".On the contrary, the reporter to whom this quotation refers,
F. W. Wallace, is cited in the Canadian Memorial with reference to his
1914 description of the exploitation of Georges Bank by Digby fishing
vessels". Indeed, it is likely that Mr. Wallace wrote the 1916 report

quoted in the Canadian Memorial that refers to Canadian offshore fish-
ing efforts on Georges Bank'5.These articles, written at the lime of the
events they describe, are more cogent evidence of Canadian fishing on
Georges Bank than the 1945 article referred to in the United States
Counter-Memorial, which was written mostly from memory some 30
years after the events had passed. As stated in the "Foreword" to the

1945 article, Mr. Wallace admitted that "[slince printed or written

a UnitedStoresCounter-Mernoriel,p215. para.343.
''CanndionMernorinl,pp.83-88. paras.179-194.
UnitedStaresCounrer-Mernorialpp. 52-53. para.66.
'JUniredSrorerCounrer-Mernoriolpp. 52-53. para.66.
CnnndionMernorial.pp. 84-85. para.184.
''ConodionMernorial.pp.84-85. para. 184. 124 GULF OF MAINE (1361

lCNAF subarea for pre-1933 catches52. The United States assertions
concerning tbis early period, therefore, have no basis in fact. Part II,

Volume II of the Annexes to this Reply contains a detailed analysis of the
statistical data underlying the ICNAF reports and demonstrates that they
do not support the conclusions drawn by the United Statesi3,

311. Several other historical issues raised in the United States
Counter-Memorial are dealt with elsewhere in this Replys4or in earlier

Canadian pleading~'~,and need not be pursued in depth at this point. It
is sufficient to refer briefiy to these ilues at this time.

312. The United States again reverts to the legally unprecedented
position that statistical areas established under multilateral fisheries

agreements are relevant to the delimitation of boundarie~'~,an issue that
was dealt with fully in the Canadian Counter-Mernorial". The United
States seeks to demonstrate the historical importance of the eastern por-
tion of Georges Bank to the United State~'~,overlooking not only the

recent statisticalevidenceS9,but incontrovertible historical evidence that
United States haddock catches - the most important groundfish species
- were historically concentrated at the western end of Georges Bank.
The United States Counter-Memorial cites isolated examples of histori-

cal fishing on Georges Bank from the State of Maine" - none of them
really suggesting that as a proportion of the total Maine fishery, or as a
proportion of the total United States fishery on Georges Bank, this fish-
ing activity surpassed the negligible levels it has exhibited in recent

times6". The United States depiction of the evolution of the Georges
Bank scallop fishery6', showing Canadian catches beginning only in
1954, distorts the true historical picture, since it relies on purely

" Furthermore. the table for redoeshnot provide a breakdown by subarea until 1936.
The graph depictingcod catches. however, appears ta, make the arsumptian that
Canadian catches prior ta 19were takcn in subarea 4. No evidence or reasons are
offered for this assumption, which appears 10beno more than a conjectural effort by
the ICNAF staiistician to complete the reICNAF. SecondAnnuolReport./or the
year 1951-52, Pari 4. pp. 41. 49, 53. 57. 62 and 65ICNAF. SroristieolBulletin.
Vol.2./or theyear 1932,Part 1, pp. 10-12. See Reply.Annexes,Vol. II. Part il,
pp.291-292,para.27; pp. 293-294. para. 30.
I'Reply.Annexes,Val. II, Part II. pp. 290-294, paras. 25-31.
" Reply.paras. 97-9Reply.Annexer,Vol. II. Part II. pp. 279-282. paras. 2-9.

CanadionCounter-Mernorial. pp. 167-171. paras. 410-415; pp. 178-187, paras. 431-
455:ConodionCounrer-Mernorial,Annexes.Vol. III, Chaps. Ill-V, pp. 23-46. paras.
68-121.
@@ UniredSioresCounier-Mernorialp. 83, para. 105;p. 85. Figure 14;p. 87. Figure 15.
" ConodionCounrer-Mernoriol.pp. 167-171,paras. 410-415.
" UttiredSfofesCounter-Mernoriopp. 63-66, paras. 77-81.

5PSeeReply,para. 288.
UnitedSraresCounter-Memariol,pp. 66-73. paras. 83-86.
" Reply.para. 284.
UnitedStoresCounier-MernoNol, p. 61, Figure 1UnitedStatu Counier-Mernorlol,
@ DocurnentoryAnnexes.Vol.V. Anner 20.126 GULFOF MAINE il381

315. The United States Counter-Memoriai and ils Annexes
(Volume 11,Annex 7) do not detract from the Canadian presentation on

the history ofthe Canadian fisheryon Georges Bank,which was outlined
in theCanadian Memorial and Counter-Memorialand reviewedin detail
in VolumeII of the Annexesto the Canadian Counter-Mernorial. More-
over, the United States version of the history of this fishery is based
upon allegedevidencethat has no probative valuein terms of the conten-
tions that the United States is attempting to advance. What emerges
from a reviewof al1 of the pleadings submiited by the Parties is thai
Canada's Georges Bank fishery has deep historical roots and that this

fishery has developed from the nineteenth century to attain ils current
leadingpositionin that area. CHAPTERVI

THE APPROPRIATEMETHOD ANDEQUITABLERESULT IN
THE PARTICULAR GEOGRAPHICAL CIRCUMSTANCES
OFTHE GULFOF MAINEAREA

Introduction

316. The United States Counter-Memorial seeks to discredit the
method of delimitation used by Canada with arguments that miscast the
Canadian position. that misinterpret the applicable law, and that both
misinterpret and misapply State practice. Here as elsewhere. the United
States refutes positions that Canada does not hold. Thus, the United
States Counter-Memorial alleges that Canada puts the equidistance

method forward as necessarily required or preferred by the applicable
law. The United States Counter-Memorial. in criticizing Canada's
description of State practice in maritime boundary delimitation gives an
erroneous picture of such practice. Through its silence on Article 6 of
the Convention on the Continental Shelf, the United States Counter-
Memorial ignores the treaty law that is binding on the Parties in the
present delimitation and that confers on the equidistance method an
obligatory force unless another line isstified by special circumstances.

317. The United States rejection of the Canadian line is based on
the view that when a land boundary is situated "within a deep coastal
concavity", the equidistance iiiethod produces an inequitable result
because it cuts off the "primary" coast at the back of the concavity from
its "seaward extension" into the open sea area bcyond the concavity. The

United States, in effect, argues thathefurrhest land dominates the sea
at the expense of the nearesr land, which is to say that one land area
dominates the other.

318. The United States seeks to support ils contentions by
appeals to examples of State practice in what it alleges are two "geo-
graphically similar areas". But the areas, when examined, turn out to be
significantly different in terms of both physical and political geography.
These instances of State practice therefore provide no guidance as to the
appropriate method in the particular geographical circumstances of the
present case.

319. The United States assertion that the Canadian line produces
an inequitable result in the Gulf of Maine area is founded, Jirsr, on a
mistaken view ofthe effects of concavities and convexities on the course
of an equidistance line, and secondly, on a selective and incomplete view
of the geographical situation in the Gulf of Mainearea. When analysed
in the context of the actual geographical situation. it isevident that the
Canadian line - driven by roughly offsetting geographical configura-

tions on the coasts of the two Partie- affords equal treatment to cor-
responding portions of either coast and avoids cutting off either coast
fromsea areas appurtenant to it.128 GULFOF MAINE (1401

320. The United States seeks to demonstrate the allegedly dispro-
portionate effect of the Canadian line by excluding from its proportion-
ality calculations the very same Bay of Fundy coastline that it uses to

establish the eastern limit of its test But the reasons advanced in
the United States Counter-Memorial for the exclusion of the Bay of
Fundy are contradicted by the inclusion of corresponding seaas and
coasts in the proportionality tests on which the United States relies.
Moreover, the exclusion of the Bay of Fundy from the proportionality
testis incompatible with the jurisprudence of the Court. When the
actual geography of the Gulf of Maine area isaken into account, it is
clear that the Canadian line satisiïes the test of proportionality, whether

expressed in terms of the relativegths of the coasts of the Parties or
in terms of the relative effects of particular geographical features on the
course of an equidistance line.

Section 1. The United States Counter-Mernorial Miscasts the

Canadian View of the Equidistance Method in the Present Case
321. The United States Counter-Memorial ascribes to Canada

the view that the equidistance method is "inherently more equitable
any other'". Canada. it is said, ignores the fact that this view was
rejected in theNorth Sea Continental Shelj cases and instead relies
upon developments in thelaw of the sea, including the emergence of the
200-mile exclusive economic zone andtate practice.

A. THEUNITED STATE SOUNTER-MEMORIA MLAKES UNFOUNDED
ASSERTION ASBOUT THE STATUS OF THE EQUIDISTANC MEETHOD
IN THEJURISPRUDENC AEND UNDER THE CONVENTION
ON THE LAW OF THE SEA

322. That Canada does not regard the equidistance method as
"inherent", or required, or preferred in law, is in fact admitted in the
United StatesCounter-Mernorial: which nevertheless proceeds to rebut
this proposition as though Canada did adhere to it. In doing so, the
United States misinterprets the way in which the equidistance method

dealt with in the jurisprudence and fails to elucidate accurately the way
in which the Court treated both proximity and equidistance in the North
Sea Continental Sheljcases. What the Court rejected in those cases was
the "idea of absolute proximity" and the notion of inherency, the "fun-
damentalist" position that would have made equidistance both universal
and compulsory, without regardto equitable principles or an equitable
result'. The Court, however, clearly did not reject the role of proximity
as an important factor and an important test, and it affirmed the value
of equidistance as a method ofelimitatio?. In brief. Canada's position

on equidistance is wholly consistent with the views expressed by the

'UniredSlorerCounrer-Mernorial,p. 137,para. 192.

UniredSroresCounter-Mernorial,p. 137.para. 192.
'I.C.J. Reporrr1969,pp.30-31. paras.41-42.11411 REPLYOF CANADA 129

Court in 1969'and with subsequent adjudications that have endorsed
those views.

323. The United States Counter-Memorial also questions the sta-
tus of the equidistance method in the delimitation of 200-mile zones on,
the ground that the new Convention on the Law of the Sea (the delimi-

talion provisions of which the linited States has specifically declined to
recognize as generally applicable under customary international law)
makes no mention of this method'. This fact is explained - as the
United States account itself makes apparent5 - by the adoption of the
principle of "consensus" as the operating rule of the Third United
Nations Conference on the Law of the Sea, and by the avoidance of vot-

ing on specific provisions except as a deadlock-breaking mechanism to be
used as a last resort. Under the consensus principle, a formula that omit-
ted any reference to "equidistance" or "equitable principles" proved to
be the only way of reconciling conflicting views on delimitation. What is
most significant in the negotiating history recounted by the United
States is that at no point was it even suggested that any other method
than equidistance - including perpendicularity - had sufficient general

validity to be included in the text.

B.THEUNITEDSTATES COUNTER-MEMORIA MLAKESUNFOUNDED
ASSERTIONA SBOUT THSI STATU S FTHEEQUIDISTANCE
METHOD INSTATEPRACTICE

324. The United States Counter-Memorial alleges that Canada
regards State practice as according the equidistance method a legally
required or preferred status in law6.Again, the Canadian arguments are
miscast, but the United States Counter-Memorial goes yet further and

tries to show that in fact the equidistance method ,bas little support in
State practice7.

325. The United States argument about the place of the equidis-
tance method in State practice is based on practicc relating only to a
particular application of that method; that is, the drawing of boundaries ,
that are strict or simplified equidistance lines. It is quite common in
maritime boundary delimitations for States to simplify an equidistance
line, but these "simplifications" are not limited 10 the modest adjust-
ments contemplated in the United States Counler-Memorial. Indeed, the

very first continental shelf boundary ever negotiated - between
Venezuela and Trinidad in the Gulf of Paria - is a single straight line
which exactly balances the areas between it and the true equidistance

'UnitedStoiesCounler-Memoriolp. 144para.212.
'UnitedStotesCounrer-Memoriolpp. 141-144.para206-212.
UnitedStotesCounier-Mernoriop. 137paras.192.193.
'UnitedStoterCounier-Mernoriopp.145-146 .ara.217.130 GULF OF MAINE

line, so that each country loses and gains the same areas: In other words
the partiésto the Gulf of Paria agreement established a line that was not

an equidistance line but that nevertheless had its origins in the equidis-
tance method. Yet ta the United States,the Gulf of Paria agreement has
nothing to do with equidistanceg.

326. The United States fails ta recognize that a modified or

adjusted equidistance line is as much an application of the equidistance
method as what the United States terms a strict or simplified equidistant
line. Hence, the United States arguments that purportedly contradict the

Canadian position are in fact irrelevant to the basic contention in the
Canadian Memorial that "the equidistance method produces an equita-

ble result in the majority of cases'"".

327. The Canadian Memorial noted that "[olut of 94 known
maritime boundaries settled by agreement, 66 of them - almost 71 per-

cent of the total - utilize the equidistance principle or a modification
thereof for al1or part of the boundary"". The United States attempts to
rebut this proposition, but in doing sa it misconstrues what was actually

done in many boundary delimitations" and only succeeds in showing

Reply,Annexes. Val. 1.Part 1,p. 10.para. 3. A former member of the United Kingdom
Foreign Office has written, "as in the Treaty of 6 February 1942 between Venezuela
and the United Kingdam relating to the submarinc arcasof thc Gulfof Paria, il is likely
that the median line will be taken as the starting-point for any negotiatians about the
boundary of the continental shclf'. J. A. C. Gutteridge: "The 1958Geneva Convention
on the Continental Shelf."BririshYeorbook qfIniernoiiono1Law, Vol. XXXV. 1959,
p. 120.

The United States includes the agreement betwccn Venezuela and the United Kingdam
relatine to the Gulf of Paria in the lis1of contine~ ~ ~ ~ ~ ~or maritime bou~dar~es that
do no; incorporate equidistance lines. United Srares Counfer-Mernoriol.Annlyricol
Annexer, Val. IV, Annex8, Chap. 2, sec. 2. pp. 16-17.

'OCanndionMemorial, p. 151. para. 362. The United States position stands in marked
contras1to that of S. P. Jagota wha, after a study of 75 agreements delimiting maritime
boundaries.cancludedjin his lectures to the Hague Academy of International Law that
"in a large majorityccases States have been salislied that the median or equidirtance
line leadr to an equitable solution or result", S. P. Jagota: "Maritime Boundary."
RecueildesCours. Vol. 171.1981, Part II, p. 131.
" ConadionMernorial. p! 151,para. 362. The total of 94 boundaries settled by agreement

was compiled by counting each signed delimitation agreement separately. Where there
was more than oneboundary areain a single agreement, as for example in the Mexico-
United States agreem&t covering the Pacific Ocean and the Gulf of Mexico, each
boundary arca was counted separately. The United States criticized this appraach
because "several agreements might apply to the same boundary". [United Srnres
Counier-MernoNol, p. 145. fwtnote 3.1 However,,many existing agreements delimit
only part of the boundaryarea,and a number of the examples advanced by the United
Stater refer ta boundaries thado not extend 10 the full ertent of coantal State jurisdic-
lion. In itr list of boundaries that da oat incarparate equidistance [UnitedStores

Counrer-Mernorial,Anolylirol Annexes. Vol. IV. Annex 8, Chap. II, sec. 1. pp. 15-16],
the United Statescounts a single boundary between France and Venezuela twice. The
United Statesalso criticizes Canada for including agreements that are no1yet in farce.
In fact, thexclusion of theseagreements makes little difierence. Almost 71 percent of
the agreements in forceuse the equidistance method or a modification thereof for al1or
part of the boundary.
" See Reply.Annexes, Vol. 1,Part 1,pp. 9-14, paras. 1-14.t1431 REPLY OF CANADA 131

that more than 70 percent of 82 boundaries referred to have utilized the
equidistance method for the whole or part of their course13.Rather than
contradicting the Canadian position, the United States presentation

confirms and reinforces it.

328. The United States treatment of the way in which the equi-
distance method is applied, and its failure to recognize the various uses
of that method in State practice, is at odds with its own documented
practice. The negotiation of the boundary agreement with Cuba has been
described by a United States official as follows:

"During the technical discussions, comparable artificial 'construc-
tion lines' were drawn along the southern Florida coastline. An equi-

distant line was then calculated by use of the Cuban straight baselines
and the artificial construction lines of the United States. Another
equidistant line was calculated by use of the relevant base points on
the low-water line of the coasts of the two countries. A third line was
then created between those two lines, which was not equidistant, but
which divided equally the area between them. The final boundary

represented a negotiated settlement based on equitable principles14."
These comments illustrate the great utility of the equidistance method in
the negotiation of maritime boundaries in accordance with equitable

principles. As in the Gulf of Pariaagreement, an equidistance linepro-
vided a touchstone or reference point for the actual construction of the
United States-Cuba line.

329. State practice, therefore, demonstrates unequivocally that
States have used equidistance far more than any other method, and in
that sense it is "preferred" in fact. Moreover, where practice is so con-
sistent and widespread, it indicates that States view the equidistance

method as producing an equitable result in the great majority of cases.
This was the point made in the Canadian Memorial and il is not gain-
said by the United States Counter-Memorial.

C. THEUNITEI)STATES COIINTER-MEMORIA ILSILENT ON THE
STATUS OF THE EQUIDISTANM CEETHOD UNDER ARTICLE 6 OF THE
CONTINENTASIH . ELFCONVENTION

There is one respect in which equidistance is required and
330.
preferred in law. Article 6 of the 1958 Convention on the Continental

"This figure is derivedby treatingal1of theagreedboundariesmentioniUnitedhe
3,as boundariesthai "utilizethe equiùistanceprincipleor a modificationihereofforal1
or partof theboundary".11agreementstarenot yet in forceare included.iherearc
92 boundaries.over66 percentof which haveuiiliredtheequidistance method.
" R. W. Smith: "The Maritime Boiindariesof the United States.Ceographicol
Review,Vol. 71. No. 4, 1981.p.Reply, AnnexeVol. II,Part IAnnex72.132 GULFOF MAINE 11441

Shelf" requiresStates, in the absence of agreement and special circum-

stances, to delimit their continental shelf boundaries on the basis of
equidistance:

"... under Article 6 the equidistance principle ultimately possesses
an obligatory force which it does not have in the same measure
under the rules of customary law; for Article 6 makes the applica-

tion of the equidistance principle a matter of treaty obligation for
Partiesto the ConventionL6."

While the United States agrees that Canada and the United States are
parties to the Convention on the Continental Shelf and that Article 6 is

"relevant to this proceeding as a source of principles and rules for
delimitation of the continental shelf"", it nevertheless avoids addressing
the status of the equidistance method in this case as a binding principle
of conventional law. Canada affirms the position taken in its Memorial

and Counter-Memorial that the "equidistance-special circumstances
rule" of Article 6 is applicable to this case as a particular expression of
the fundamental norm of delimitation and, moreover, that it has obliga-
tory force to the extent that the delimitation of a single maritime bound-

ary in the present case involves the delimitation of the continental
shelf".

Section II. The United States Rejection of the Canadian Line
1sFounded on an Erroneous Analysis of State Practice and
of the Geography of the Gulf of Maine Area

A. THEUNITEDSTATES ARGUMENTC SONCERNINC THE LOCATION
OF THE LANDBOUNDAR YND THE INFLUENC EF THE BACK OF A

DEEPCOASTAL CONCAVITY WOULDDIVORCE THE DELIMITATION
FROM THE COASTS ACTUALLA YBUTTING THE
AREA TO BEDELIMITED

331. The equidistance method, according to the United States,
prevents the innermost portions of a deepcoastal concavity from control-

IArticle 6 states:

"1. Where the same continental shelf is adjacent ta the territories of two or more
Slatcs whosc coasts arc opposite each othcr. the boundary of the continental
shclf appertaining to such States shall be detcrmined by agreement bctwccn
thcm. In thc absenceof agreement, and unlesr anathcr boundary linc ir justiiicd
by spccial circumrtanccr. the boundary is thc median linc. cvery point of which
is cquidistant from thc ncarcrt points ofthc basclines from which the breadth of
the territoscaof each State is measured.
2. Where the same continental shelf is adjacent ta the tcrritories of two adjacent
States. the boundary of the continentalhabcdctcrmincd by agreement
bctwecnthcm. In the absence of agrccmcnt. and unlcss anathcr isundary line
justified by special circumstances, the baubedetermincd by applica-
tion of the principle of equidistancehe nearesi points of thc baselines
from which the brcadth of the teseaof each State is measured."
l6Anglo-FrenchConiineniSheljaward. p. 48. para. 70.
" UnitedSioiesMemoriolp. 101.para. 165.

laCnnodionMemoriol. p. 120paras.281-282;ConodinnCounier-Mcmoriol.pp. 228-
229. paras. 547-551. 11451 REPLYOFCANADA 133

@ ling the course of the line ouiside the concavity". Figure 21 of the
United States Counter-Memorial is intended to demonstrate this point.
In paragraphs 69 to 78 of this Reply, il was pointed out that this view
simply represents another version of the United States argument con-
cerning perpendicular extensionsof "primary" coasts.For the "back of
a deep three-sided or multi-sided concavitycan project itself into the
outer area only if the effect of the more proximalecoasts that form the

opposite sides of the concavity are given a "secondary" status and dis-
counted in drawing the boundary. In arguing that "Canada's linedoes
not take into account the locationof the land boundarybetween the Par-
. ties within a deep coastal concavity,in the far northern corner of the
Gulf of Mainezo",the United States is, in effect, contending that an
equidistance linenside a concavity will always produce inequity unless
the land boundary lies preciselyin the centre of the back of the con-
cavity, dividing the "primary" Coastinto segmentsof equal length". For

only when that special requirement is satisfied will the geographical
circumstances at the back of the Gulf of Maine mirror the geographical
situation of the coastal wings, which, under the equidistance method,
control the courseof the line in the outer area.

332. In Tact,the very device used by the United States to illus-
trate its point demonstrates that the argument is ill-founded.The semi-

circle test, analogousta the rule for defining bays, indiçates whetherthe
coasts of a concavityare related to the waters outside as wellas to those
@ withinil". Figure 21 ofthe United States Counter-Memorial demon-
strates, therefore, that the Gulf of Maine is a deep coastal concavity,
with the coasts in the innares related to the waters of the inner area.
Theouterarea,bycontrast, isdominatednotbythe wasts at the backofthe
@ concavity,butbythecoastalwingsthatacluallyabuttheouterarea.Figure21

of the United States Counter-Memorialshows,moreover,that regardlessof
theposition ofthelandboundary,or oftheagreedpointofcommencementof
themaritimeboundary,anequidistancelinesystematicallydividesthewaters
withitheconcavityinproportiontothelengthofthecoastlines,aresultthatis

O @ lUnitedSrares Counrer-Memoriol,pp. 18paras291-302. Figureand 22rce
in particular p. 18294.ara.
m UniledSlores Counrer-Memorial,p. 181,para. 291.
" UnitedSiores Memoriol. p. 173.para. 285.
"SeeReply. Chap. p.61. footnotc 63. 134 GULF OF MAINE [145-1471

inevitablebecause it isequally acbieved bythe only conceivableapplication
@ of the perpendicular method to a semi-circularconcavityz3[Figu 2re.

333. Beyond the closing line of the concavity, the equidistance

line reflects the greater proximity of the two "sides" of the concavity and
the balance and symmetry of the coastal wings formed by these two
"sides" together with the coasts facing the open sea on either side of the
mouth of the concavity. The failure of the back of the concavity to con-
trol the line is justified by its comparative remoteness from the outer

@ area. Figure 21 of the United States Counter-Memorial shows that the
influence that the back of a concavity exerts upon a delimitation in the
outer area is a function of the relative dimensions of the concavity.
When the concavity is deep - that is, when its depth is equal to or
greater than the radius of the semi-circle having as its diameter the

width of the concavity at itsmouth -the back of the concavity will not
control the course of the line in the outer area. However, when the con-
cavity is shallower than the semi-circle, the "tri-point", equidistant from
the two coastal wings and the back, moves outside the closing line, and
accordingly the back of the concavity will influence the course of the line

in theouter area. Thus, it is not because the coasts of Maine and New
Hampshire have been "used up" in determining the line in the inner area
that they have no influence in theouter areaz4.They have no influence in
the outer area for the very reason that the Gulf of Maine is, as the
United States asserts, a deep coastal concavity and that the Maine and

New Hampshire coasts, accordingly, are too remote from the outer area
to determine the course of the line there.

"This conception of the Gulf of Maine as a semicircular concavity ignares the Bay of
Fundy.If borhthe Bay of Fundy and the Gulf of Maine were treatcd as "closed for
thepurpoaesof a propartionality test, the Canadian line more than salisfies the test. For
the calculationr set out below. the Bay of Fundy was "closed" and the length of the
Canadian coastline measured by the straight line from the international baundary tcr-
@O minus to Cape Sable show" in Figur24 and 25 of the United States Countcr-
Mcrnorial, the length of the United Statcs coastline on the Gulf of Maine wanmearured
by the straight lines shawn in Figure 51 of the Canadian Counter-Mernorial, and the
Gulf of Maineas "closed" by a line from Cape Sable to Nantuckct Island.
Coastlinelengths
Canada 100nautical miles
United States 286 nautical milcs
Coastline Ratios
Canada:United States 26:74
Total SeaArea 25,210square nautical miles
Sea areardividedby the Canadian line
Canada 5,4138quarenautical miles
United States 19.802square nautical miles
Areal Ratios
Canada:United States 21:79
l4Unite d&tes Counrer-Memoriolpp. 184 and189paras.296-297 .heUnited States
erroneously attributes ta Canada the argument that the Maine and New Hampshire
coasts have no influencethe outcr arca because they have bccn"used up" in the
inner area. The references to the Canadian Mernoria340and 353). on which
the Unitedtatcs relies. da no1make this argument. [148-1491 REPLYOFCANADA 135
334. The contentions of the United States on the proper effect of

the "back of the Gulf', and of the location of land boundaries within
coastal concavities, are not supported by State practice in analogous geo-
@ graphical situations. The Gulf of Venice [Figure 301 is similar to the
Gulf of Maine area; it is an embayment, a "deep coastal concavity" sur-
rounded by coasts on three sides, opening onto a broader sea. Moreover,
it contains an elongated sea area to one side - the Gulf of Trieste -

that can be likened to the Bay of Fundy.

335. In the Gulf of Venice, the land boundary between ltaly and
Yugoslavia terminales on the eastern coast of the Gulf of Trieste, with
the result that the "back of the Gulf' is constituted wholly by ltalian
@ coastline [Figur3e 01. According to the reasoning of the United States,
the coast at the "back of the Ciulf' projects seaward beyond the Gulf;
hence a boundary based on equidistance outside the Gulf would be ine-

quitable because it would deprive the northern coast at the back of the
Gulf of itsseaward extension.

336. The boundary in the Gulf of Venice does not appear to have
been influenced by such considerations. From its commencement at the
outer limit of the territorial sea, the boundary is an equidistance line
through the Gulf of Venice and out into the Adriatic Sea. Full weight is
given to the coasts of both parties within the Gulf of Venice itself and

beyond". The United States argument that equidistance produces a cut-
off effect in relation to the coast at the "back of a Gulf', and that the
seaward extension of the coast at the "back projects through and
beyond the Gulf, apparently was not perceived as having any merit in
thisexample of State practice.

337. A parallel may also be drawn with the delimitation between
Sweden, Norway and Denmark in the Skagerraki6. According to the
United States lexicon, the coast of Sweden at the "back" of the Skager-

rak, being roughly aligned with a hypothetical general direction of the
West coast of Europe, would be a "primary" coast, and the opposite
coasts of Norway and Denmark would be "secondary". Yet. in the inner
area of the Skagerrak, an equidistance line has been drawn from the
"primary" coast of Sweden and the "secondary" coast of Norway. More-
over, the boundary continues seaward into the North Sea as an equidis-

tance line governed by the "secondary" Norwegian and Danish coasts.
The "primary" Swedish coast at the back ,of the concavity does not
control the delimitation in theouter area.

"Some adjustments,nccessitatedby the prescnceof small islandrin the boundaryarea,
were made 10 the boundary lineas it proceededthrough theAdriaticsee Reply.
Annexes,Vol. 1,PartIIp.146, Figure 17.
l6SeeReply.Annexes.Vol. 1.Part Ip.130, Figur14,andp. 156, Figur19.136 GULFOF MAINE il501

B. THEUNITED STATES COUNTER-MEMORIM ALISCONSTRUES
STATEPRACTICE IN "GEOCRAPHICALL SIMILAR AREAS"

338. An erroneous perception of the geography of the Gulf of
Maine area has led the United States to invokeState practice in areas it
regards as "geographically similar": that is, areas where "the location of
the land boundary in relation to a deep coastal concavity would cause an
equidistant line to encroach upon the extension of the coastal front of

one of the States2'". But the areas said by the United States to be geo-
graphically similar - the North Sea and the Bay of Biscay - differ
fundamentally from the Gulf of Maine area, and the United States has
misconstrued significant aspects of these delimitations. Analogies with

delimitations in other coastal concavities are of no relevance unless they
display a similarity with the Gulf of Maine in terms of both political and
physical geography.

339. In any event, the United States has isolated only twoexam-
ples from a substantial body of State practice, and has given excessive
significance to them. The United States contends that these two exam-
ples "may illuminate the equitable principles that apply in the case

before the Courtis". In Canada's view, however, these isolated and
readily distinguished examples cal1to mind the admonition of Judge ad
hoc Jiménezde Aréchaga in his separate opinion in the-Tunisia-Libya
Continental Shelfcase, to the effect that principles adopted in "special

agreements accepted by the Parties . .. are not imposed by the general
rules of international law which the Court is called upon to
identifyZ9.. .".

1. The North Sea

340. The Netherlands-Federal Republic of Germany-Denmark
boundary area in the North Sea does not provide an adequate parallel to

" United Slotes Counrer-Memoriol, pp. 226-227, para. 375. Ironically, the examples of
State practice inlegcdly similar geagraphical situations dealt with by the United
Statesdemonstrate a point no1 brought out in the United States Counter-Memorial.
This is the complele irrclcvance of the perpendicular mcthod to either of the delimita-
lions in question. In neither iwasthe perpendicular method adopted. and in nei-
thecoast" in the area to be dclimited. The suggestion by the United States that thef
clasing line fCabo Ortcgal to Pointe du Raz"represcnts the general direction of the
coast in the vicinity of the Bay of Biscay" [UniledStores Counler-Mernorial,pp. 255-
256, para. 3961 mur1 be bared upon some hypothetical macrogeographical general
direction of thests.

laUnitedStoles Counler-Mernorial.p. 226, para. 374.
"I.C.J. Reports 1982, p. 130, para. 99. This caution againat seeking to derive general
principles from individualples of Statc practice appoifortiori to attempts Io
derive rules or principles fabsenceof State practice as the Unitcd States tries Io
do. Thus. thc United States argues thal sinn only 25 percent of potcntial maritime
boundaries have bccn dclimited. it is possible to conclude that the equidistance method
has been used in lcss than 8 percent of "the maritime boundary situations". Unired
Slotes Counler-Memorinl,pp. 145-14para217.il511 REPLY OFCANADA 137

the Gulf of Maine area,first, because its physical geography is dissimi-
lar - the concavity is two-sided rather than multi-sided - and
secondly, because its political geography bears no comparison with the

Gulf of Maine area at all. Indeed, the judgment of the Court in the
North Sea Continental Shelf cases stressed the fact that the inequity
wrought by the equidistance method in that area was occasioned by the
existence of three States, with the German coast having a recessive or
concave configuration in relation to the rnoderately convex coasts of

Denmark and the Netherlands on either side:

"lt will be observed that neither of the [equidistance] lines in ques-
tion, taken by itself, would produce this [inequitable and dispropor-
tionate cut-off] effect, but only both of them together30. . ."

Thus, the United States can only draw a parallel between the North Sea
and the Gulf of Maine by viewing Massachusetts and Maine-New
Hampshire as separate nation-States. This only highlights the lack of

similarity between the Gulf of hlaine and the North Sea areas.

341. But even if the North Sea had not involved three States, the
parallel would be defective, for in focusing on the concavity of its own
coast, the United States has overlooked the fact that Canada possesses a
considerably more pronounced concave feature. A true analogy would
have to take into account the concavity on the Canadian side as well as

the concavity on the United States side. In a hypothetical situation
where one or more States fronted on the innermost sector of the Gulf of
Maine, while other States fronted on the convex portions of the coastal
wings of Nova Scotia and Massachusetts, the State most prejudiced by

the application of the equidistance method would be the State with a
coastline on the Bay of Fundy".

342. An equally significant distinction between the North Sea
and the Gulf of Maine area is that the land boundary in the Gulf of
Maine area is situated deep within the interior of the concavity, or, as

I.C.J. Reporrs1969,p 17.para. 7. See alI.C.J. Reporis 1969pp. 17-18.para. 8 and
pp. 49-50. para.1. where the Court itates:
"But in the present case there are three States whore North Sea coastlines are in
Tact comparable in length and which, therelare. have been given broadly equal
treatment by nature except that the configuration of the coastlines wauld. il
thecquidiatance mcthad is used. deny toneof thesc States treatment equal or
comparable to that given the other two."
Judge Padilla Nervo in hisSeparate Opinion said. "if these lines were taken separately
and in isolation there would be no problem: il irsirnultoneuusexistence of both
lines. if constructed thraughontequidislance principles. that leads ta an inequitable
result... It is the existence of the three coasts with Germany in the middle (and its
caastal configuration) which creates the problI.C.J. Reporrs1969,p. 89. See alro
the Separate Opinion of Prerident Bustamante y Rivero. ICI Reports 1969.
pp. 61-62.
" Sec CanodionCounter-Mernorial, pp.49-50.paras. 118-119. fis51 REPLY OFCANADA 139

345. The United States also asserts that "in the Bay of Biscay.
there are no geomorphological features of a significance equivalent to
that of the Northeast Channel'' . . ."This proposition is al odds with

the facts. Close to the Coast in the Bay of Biscay lies the Cap Breton
Canyon, a geomorphological ferture considerably more pronounced than
the Northeast Channel". Moreover. the United States assertion and the
absence of bathymetric contours on the numerous maps of the Bay of

Biscay in its Counter-Memorial mask the fact that among the most
important characteristics of the Bay of Biscay area are. first,the great
depths to which the seabed descends and, secondly, the marked differ-
ence in the width of the French and Spanish continental shelves. In

implying that the geomorphology of the Gulf of Maine area ismore sig-
nificant than that of the Bay of Biscay. the United States disregards the
facl ihat it was precisely the physical structure of the seabed that domi-
nated the negotiations between France and Spain and provided the

essential rationale for the boundary.

346. The United States Counter-Memorial implies that the
rationale for the delimitation of the Bay of Biscay was found in coastal
geography. But a different explanation of the Bay of Biscay line is given

in the article (annexed to the United States Counter-Mernorial) by
Professor JoséLuis de Azcirraga. This adviser to the Spanish delegation
in the boundary negotiations wrote as follows:

"Accordingly,.the line joining points R and T, which is seemingly
unfair to Our interests, is virtually the median line equidistant
between the isobath curves at equal depths. The special circum-
stances of France's obvious advantage [sic] shelf size. . dominated

the neg~tiations'~."

347. An examination of the boundary in the Bay of Biscay shows
that the parties used an equidistance line to Point R at the foot of the
continental slope, some3,600 metres in depth. The line crossesover and
@ ignores the Cap Breton Canyon [Figure 331. An equidistance line sea-

ward of Point R would ascend the French continental slope, a result that
is avoided by the change in direction of the line at Point. R. The line then
crosses the 4,500-metre isobath at right angles and proceeds seaward in

a straight line intersecting the hypothetical closing line at Point T. where
il is equidistant from the 4,500-meire isobath on the Frenchand Span-
ish seafloor. The line effects a roughly equal division of the sea floor
beyond the 4,500-metre isobath'".

'6United Stores Counrer-Mentorip. 245.para.389.

"The Cap BretonCanyonvarierin dçpthfram 236 ta 1.330 metres. Whcreit is crossed
by the Franco-Spanish continentaslhclf boundary.the Canyon has a depth of 820
meiresanda widthof 5%nauticalmilcs.The NortheastChannelhara depthof abaui
250 metrerand variesin width from 20 to 25 nauiicil milcs. For a compapar-ve
@ trayalof the IwofeatursceConodion Counrer-Mentoriolp.74.Figure18.
"J. L. de Arcirraga: "Erpaia Suscribe. con Francic Italia.Dos Conveniossobre
Delimitacionde sus PlataformasSubmarinnrComunes."Rei.isto crpakola de dererho
inrrrnacionaVol. XXVIII. pp. 131-138. Reproducedand translaicdUnited Srores
Counier-Mcrnoriol. Analyticol AnneVol. IV.Annex 10,AppcndixA. p.4.
The delimitationin the Bay of Biscayir analyscd in moredctai~eply.Ann~.Yes.
Vol. 1.Part1.pp. 13-16.paras.15-22, 140 GULFOF MAINE 11561

348. The United States sees in the Bay of Biscay delimitation a
rejection of the equidistance method because an equidistance line was
used for only 44 percent of the distance from the land boundary to the
@ closing line40. Figure 338. however, shows that an equidistance line was
used to the end of the common continental shelf and slope, and that even
beyond that point the equidistance principle was employed, for the
boundary from Point R to Point T is a straight line joining a point equi-
distant from the coasts and a point equidistant from isobathic contours.

The very different configuration of the continental shelf in the Gulf of
Maine area is demonstrated by the fact that depths equivalent to those
at Point R are only found well to seaward of the terminus ofthe
Canadian line. The seaward limit of Georges Bank lies at a depth
@ equivalent to Point Q3 in the Bay of Biscay delimitation [Figure 33AI.

349. The United States considers that the Bay of Biscay delimita-
tion reinforces the importance of proportionality. It also states that "per-
haps [the] most important point relevant to the delimitation of the Gulf
of Maine area concerns the manner in which the Bay of Biscay boundary
respects the coastal fronts of France and Spain4'". The Bay of Biscay
boundary is said to "exemplify the principle that a boundary should not
cut off the seaward extension of the parties' coastal fronts", and to
"illustrate the manner in which coastal fronts should be extended in sit-

uations where the land boundary meets the sea within a deep coastal
concavity4'". But al1 this presupposes that the delimitation seaward of
Point R was based on the configuration of the Coast - a presumption
clearly at odds with the explanation provided by Professor de Azcirraga.

350. In short, the United States seeks to use this single instance
of State practice in the delimitation of the continental shelf, where the
nature of the seabed itself decisively influenced the line agreed to by the
parties, to draw conclusions about the determination of a single maritime
boundary in the Gulf of Maine area, where the delimitation of the water
column is of critical significance. and where the seabed bears no resem-
blance to that in the Bay of Biscay. The parallel fails both in terms of its
alleged geographical similarity and in terms of the "illumination"" that
it is meant to provide.

351. The United States argument that the Canadian line is inap-
propriate is founded on the view that an equidistance line will always

'UnircdSrorerCounrer-Memorial.pp.245-246. para. 391.
" UniredStoresCounier-Memoriol.p. 255. para. 394.
'UniredStore5Counlcr-Memoriol.pp. 261-262, para. 404.
''UnitedSloiesCounter-Memorial.p. 226. para. 374. 142 GULFOFMAINE Il581

the corresponding United States coastline from the international bound-
ary terminus to the western entrance of Penobscot Bay46.The United

States, accordingly, suffers no inequity from an equidistance line within
the Gulf of Maine; the reasonable nature of the Canadian line is
manifest.

355. In any event, the contention that the Canadian line cuts off
the United States coast from sea areas appurtenant to it is incompatible
with the conduct of the United States. Both the 1976 Northeast Channel

line and the 1974 "lobster line" (used by the United States to enforce its
claims to jurisdiction over the living organisms of the continental shelf)"
swing "in front of' the United States coast, approaching Farcloser to the
@ coast of Maine than does the Canadian line [Figure 351. These lines,
which established the limits within which the United States claimed

jurisdiction over the continental shelf for a period of eight years, make
nonsense of the argument. advanced for the first time in the present pro-
ceedings, that the Canadian line cuts off the coast of Maine from its
seaward extension.

356. If the Canadian line does not produce an inequitable cut-off

effect of the coast of Maine within the Gulf, it cannot suddenly produce
such an effect outside the Gulf. In the outer area, the equidistance line is
controlled by the opposite and essentially symmetrical coastal wings of
Nova Scotia and Massachusetts that actually abut the area to be deli-
mited, rather than by the remote coasts at the back of the "deep coastal

con~avity~~".At the northern edge of Georges Bank, the line changes
from a sourhwesrerly to a southeasrerly direction, turning back towards
the Canadian coast in response to the convex coastal wing of Massachu-
setts. However, if Cape Cod were to be used as a controlling coast, the
change in direction of the line would occur at a point significantly fur-

@) ther to the north and east" [Figures 340 and 34El. It is these incidental
aThe Canadian coast habeen measurcd by meanr of siraight lines (rom the inierna-
iional baundary terminus ta Cape Maringouin. Cape Maringouin to Cape Split. Cape
Splita Digby. Digby ta Cape St. Marand Cape St. Marys to Cap Sable. See
Conadion Counier-MemorioFigure7:pp. 56-58. paras. 138-140and fwtnotes 82-86.
@
@ " UnireSraresMernorialpp. 84-85. paras. 144-145;p. 87. Figure 16.
"The line emcrges from the Gulf near the midpoint between the coastal wings. This
@ resuli is consistent wiihthe delimitations in the Gulf of Venice [Figure 301 and in the
Skagerrak[seeReply. AnnexVol. 1.p. 130. Figure 141where the boundary emerged
from a concavity inio a more open salthe midpoint between ihc cmstal wings.
regardlers of the positioning of the land boundary within the cancavity. This rcsuli ir
also consistent with the delimitation between Norway and the Soviet Union in the
Varangerfjord. where even ihough the Icngih of the Norwcgian coast bordering the con-
cavitis3.7 limes the lengih of the Soviet coasl. the boundary intersectr the midpoint of
thehypoihetical cloring line drawn hctwccn the caartal wings ai the mouth of the con-
caviiReply. AnnexesVol. 1,Part II. p. 78. Figure 4.
The change in direction of the Canadian line occurral turning point 50. the "tripoint"
beiueen the coaris of Nova Scoiia. Mnssschurettr and Maine. which ir controlled by
hasepoints racksoff Scal Island, ai the casicrn entrance to the Cape Cod Canal. and
on Matinicus Rock. If Cape Cod iirclf wcrc given full cffect. the line would change
direction.5 nautical miles io thc norihcast ai a point twa nautical miles rcaward of
@@ iurning point 49. Conodion Memoriolp. 144. para. 348; Figures 32 and 33; and
@ Chart 4003E in the pocket. il591 REPLYOF CANADA 143

special features protruding from the United States coastal wing. in the

absence of any corresponding features on the Canadian coastal wing,
that have a disproportionate effect on an equidistance line in the Gulf of
Maine area, cutting off Nova Scotia from sea areas naturally appertain-
ing to it on the basis of adjacency, proximity, and genuine links.

Thc symmetry of the coastal wings vis-$-vis the ouier area is
357.
a function not only of the configuration of the coasts, but also of the
phvsical and human links between these coasts and Georges Bank. The
cinadian line therefore produces a balanced, reasonable and equitable

result in the light of al1the relevant geographical circumstancc~~~.

Section III. The United States Contentions Concerning
Proportionality Are Based on a Selective

Refashioning of Geography

358. The United States arguments for excluding the coast of the
Bay of Fundy from calculations of proportionality are incompatible with
other aspects of the United States case and, moreover, are internally

inconsistent. The Canadian Counter-Memorial has demonstrated the
contradictions in the United States position on the relevance of the Bay
of Fundy5'.The United States specifically identifies the Fundy coast as a
major geographical feature forming part of the Gulf of Maine area5'.

gives it a central role in its mcthod of delimitations3,and uses it to estab-
lish the eastern limit of the arca within which it applies its proportional-
ity tests4. But then the United States proceeds to exclude the very same

coast from ils calculalions of proportionality.

359. The United States Counter-Memorial advances three argu-
ments against the inclusion of the Bay of Fundy in a proportionality test,

'OFor a deiailed description of the construciian of the Canadianand an analysis of
themanner in which it reilects the caasial geography 01 the Gulf of Maarea, see
Conadion Mernorial, pp. 136-147, paras. 327-356; pp. 156-157. paras. 376-379
Conndion Counfer-Memoriol. pp. 286-290, paras. 683-692.
" Conodion Counier-Menzorial. pp. 51-53. paras. 124.125; pp. 281-282. paras. 668-671
In ils Counter-Memorial the United States argues thai the Bay of Fundy is no1
regarded as pari of the Gulf of Mairie by the lnternalional fiydrographic Or~driiraiion.
United Stores Counrer-Memoriol,p. 14,footnote 2; p. 195. footnote 4. In fact the evi-
dence submitted in support of this proposition[United Slorer Counrer-Mernoriai,
Dorurn~ni~ry Annexes,Vol. V. Anoex II] does no1pravide a definition of the Gulf of
Maine. but only olthe Bay of Fundy.

" Unired StoresMernoriol.p. 19.para. 25.
I3The United States lin" is drawn ~er~endicularto what is allegedly generaldirec-
tion of the Northmerican coast in the vicinit~of the land boundary": "ln the intcriar
of the Gulf, the coart in the vicinity of the international boundary terminus forms a
siraight line from Cape Ann. Massachuselts to the Chignecto Isthmus. along a bearing
of 54.5'." Thur, 42 perceof the Icngtof the baselinc from which thc "adjustper-
pendiculÿr line" is constructed lies wiihin the Bay of FUnired Slores Mernoriol.
@@ p. 170.para. 283; Figures 26 and 27.
" United Stores Mernorialp. 192. para. 312Uniied Sloter Counrer-MemuNol, p. 196.
para. 309.11611 REPLY OF CANADA 145

casess9.But the intent was not to refashion geography, as the United

States seeksto do with a closing line across the Bay of Fundy, but rather
to give a truer expression to dominant trends by simplifying the coastal
configuration through the eliniination of irregularities and incidental

deviations. The straight line method was suggested by the Court as a
means of establishing a "necessary balance" between States with
straight coasts, and those with markedly concave or convex coasts, so as
to reduce very irregular coastlines to their "truer proportionsb0". Since

the purpose of such a line is to measure the coast "according to ils gen-
eral direction". a single line may be used if the coast has a single general
direction; but if it has one or more major changes in direction, a series of
lines corresponding to the number of such changes must be drawn.

363. In practice. this means that minor coastal irregularities or

shallow concavities may be straightened out, provided that this does not
represent an excessive departure from the general direction of the coast
within the concavity. But a gulf or bay whose coasts are extensive and
diverge significantly from the direction of surrounding coasts must be

represented by a series of straight lines. The United States closing line
across the Bay of Fundy is almost at right angles to two Canadian coast-
lines, each more than 100 nautical miles in length; thus. it manifestly

disregards the actual general direction of the Canadian coast. By sub-
stituting a closing line of 51 nautical miles for an actual coastline of 249
nautical miles (when measured according to ils general direction) the
United States reduces the length of the Canadian coastline in the Bay of

Fundy by 80 percent. This in turn reduces the Canadian coastline within
the Gulf of Maine from 298 nautical miles to 100 nautical miles. that is.
by 67 percent". The United States proportionality test, therefore, meas-
ures nothing more than the length of its own artificial lincs.

364. The United States approach is incompatible with the man-

ner in which the Court applied the proportionality test in the Tirnisia-
Libva Conrinental Shelf case. Thc Court measured the coast both fol-
lowing its sinuosities and by a series of straight lines. In measuring the
Tunisian coast undcr the latter method, the Court drew two straight

lines to the innerniosr poinr ojrhe GuljojGabes - thus measuring the
Tunisian coast within the concavity according to ils general direction61.
It cannot be suggested that the coast of the inner portion of the Gulf of

Gabes (west of Jerba and the Kerkennahs) "faces" toward the area
being delimited, in the sense implied in the United States argument
regarding the Bay of Fundy. Judicial support for the United States posi-
tion would have required a line across the Gulf of Gabes drawn from

Ras Ajdir (or Jerba or the Zarzis peninsula) to Ras Kaboudia. That the

JeI.C.JReporis 1969.p.52, para.98.
I.C.JReporis 1969. p. 52, pa98.
" These calculations are bascd uponsiraight lincs conneciing points where there is a
majorchange inthe coastadirectionSee p. 158fwtnoie 46.

aI.C.J.Reporis 1982. p. 91. par131. 146 GULF OF MAINE il621

Court took the opposite approach in the only case in which it has actu-

ally applied a proportionality test shows the United States position to be
untenable. For, as the Court stated:

".. .the element of proportionality is related to lengths of the coasts
of the States concerned, not to straight baselines drawn around
those coasts6'."

365. The arbitrary tests used in the United States Memorial have
now been supplemented in the United States Counter-Memorial by a
test based on the 1000-fathom contour", a seaward limit that has no

' relation to the history of the dispute, to the Special Agreement, or to the
applicable law in the present case. The United States contends that this
limit is "reasonable", without explaining why, and that it "rebuts the
Canadian suggestion that the outer limit is indeterminate6'", without

explaining the basis on which the 1000-fathom contour constitutes a
limit to the area to be delimited. This new test, like the one presented in
the United States Memorial, uses the coast of the Bay of Fundy to
establish the eastern limit of the test area, but excludes that same coast

from its proportionality calculations. Canada has been unable to verify
the calculations given for this proportionality test. According to
Canada's calculations, even the arbitrary test proposed by the United
States shows that the Canadian line meets the test of a "reasonable

degree of proportionality" by reference to the parameters accepted by
the Court in applying the proportionality test in the Tunisia-Libya
Continental Shelf case66.

366. In contrast to the arbitrary tests presented by the United

States, the Canadian Counter-Memorial has presented tests of propor-
tionality in the Gulf of Maine area based on geographical criteria set out

" I.C.J. Reporrs 1982. p. 76. para. 104.
O@ " United Stoles Counter-Mernorial. Figures 24 and 25.
United Siates Counier-Memoriol, p. 197,para. 311.
According ta Canada's calculations.scaeareas beyond the low-water mark contained
in the United States proportionality test. excluding the Bay of Fundy) total 63,469
square nautical miles. Thenadian line would allacale 33.440 square nautical mites ta
Canada and 30.029 yuare nautical miles to the United States, in a ratio of 52.7:47.3.
This comparer withcoastal front ratios al Canada:United Statn 43.4:56.6. Thus. under
the United States proportionality test. the difference between the coastal front ratios
and thesea arcaratios is 9.3 percent. In the proportionality tcst appliedby the Court in
the Tunisio-Libyo Confinenla1Shelfcasc. the difierence between the coastlinc ratios
(31:69)and the ratios of the seabed arcarbelow the law water mark appertaining to
cach State fallowing the method indicated by the Court (40:60), was 9 percent. I.C.J.
Reporlr 1982. p. 91, para. 131. If the United States had used the 200-fathom contour.
instcad of the 1000-fathom contouasthe seaward limit of its tcst area. the total sea
area of 57,747 square nautical miles would be dividcd by the Canadian line s10as
~ ~ ~ ~ ~to Ca-~~a 28.648 sauarcnautical miles. and to the United States 29,099 square
nautical miles. a ratio of $9.6:50.4. The difference between the coastal front ratios
(43.456.6) and thseaarca ratim would then be 6.3 percent. 1163-1641 REPLYOFCANADA 147

in works cited in the United States Mernorial and on legal criteria iden-
tified in the Special Agreement and in the jurisprudence of the Courte'.

These tests indicate the proportionate and equitable character of the
result producedby the Canadian line.

367. In ilsconsideration of proportionality. the United States
continues to overlook theproportionate or disproportionate effects that

particular geographical features can have on the course of an equidis-
tance line. Canada hasapplied this test of proportionality to the features
alleged by either Party to havean inequitable effect onthe courseof an

equidistance line,and has demonstratedthat Cape Cod and Nantucket
Island have an effect altogether disproportionateto their size and their
real links to the areato bedelimited"n.

Conclusion

368. The Canadian line emerges from the application of a

method of delimitation that is founded in the jurisprudence and State
practice of maritime boundaries,in the treaty relations of the Parties. in
the diplomatic history of their jurisdictional claims, and in their conduct

relating to the continental shelf in the Gulf of Maine area. But the
Canadian line finds its justification not in the application of a particular
method, but in ils faithful reflection of the actual geographical relation-
ship of the Partiesin the area to be delimited. It effects a proportionate

division of maritime space when assessed against both the relative
lengths of the coastsof the Parties and therelative effects of particular
geographicalfeatureson the courseof an equidistanceline.

@@ " finudion Cuunrer-Mrmoriol. pp. 296-300. paras.711-718: Figures 51 and 52. Canada
maintains ils rcscrvationn concerning ihe applicÿaiproporiionality test. in the
form ofa cornparison of relative coïsial lengths arearIo the apen-endcd area
scaward of the Gulf of Maine. Conadian Memurial. pp. 153-155. paras. 370-374:
Canadian Counrcr-Memorio/. pp. 202-205. paras.487-495: pp. 296-297. 1.Thc 71
application of this form of proportionality tcst ta the Gulf al Maine itself demonstrates
ihai the Canadian line achievcs a proportionalc and equitable rilihc Bay al
Fundy is omitted frorn ihc tarcaas ihc United States unjurtifiproposer. See
p. 146. faatnotc 23.

@ SêeRtpIyipara. 138and Figure9. SeealroConadion Coonlcr-Mcmoriol. pp. 295-296.
paras. 705-710. [165-167)

PART III.A BALANCING-UP

369. In applying the fundamental norm of maritime delimitation,
the Court has made it clear that the result is paramount: equitable prin-
ciples have to be identified according to their appropriateness for reach-
ing an equitable or reasonable result. It follows that this test of utility
must also be applied in identifying, weighing and "balancing up" the
relevant circumstances within the framework of the applicable law.

370. It is clear from the jurisprudence that the configuration of
the coasts in the relevant area is the starting point for an equitable
delimitation, and the test of proportionality in its several forms may be
viewed as a means of judging whether the geographical situation has
been taken into account in a reasonable way. The primary importance of
the conduct of the Parties directly related to the rights and jurisdiction
in issue is also beyond challenge, for the Court has ascribed a particular

weight to such evidence of what the Parties themselves have considered
equitable. Similarly, the actual exploitation of the resources of the dis-
puted area is a consideration thatgoes to the heart of a reasonable solu-
tion that balances the interests of the Parties within the framework of
the applicable law, having regard to the Parties' mutual recognition of
established economic interests, as evidenced by their conduct, and having
regard also to the nature and purpose of the rights and jurisdiction in
issue.

371. The admitted unity of the continental shelf in the Gulf of
Maine area iia central consideration in that it dispenses with the need
to identify the natural prolongation; if would do so, of course, even if this
case involved a pure continental shelf delimitation rather than the
delimitation of 200-mile zones where the distance principle provides the
legal basis of title. Seabed features, accordingly, may be taken into con-
sideration only to the extent that such consideration would contribute to
satisfying equitable principles and to determining the solution that is
equitable in the light of al1 the relevant circumstances. These features
cannot provide a basis for contradicting such a solution. No feature of
the seabed in the Gulf of Maine area warrants being taken into consider-
ation to satisfy equitable principles; even if any were relevant, they could

not erode the combined effect of the relevant circumstances in this case.

372. The oceanographic system in the Gulf of Maine area, like
the continental shelf, is characterized by an essential unity and by par-
ticularaffinities to the northeast. On balance, it too is an objectively
neutral factor. The concentration of fishery resources on Georges Bank,
however, is directly related to the maintenance of established patterns of
fishing, the critical econornic dependence of Nova Scotia on these
resources, and the nature and purpose of the rights and jurisdiction in

issue; hence, it must be a vital consideration in terms of reaching an
equitable result.(1681 REPLY OFCANADA 149

373. Certain factors. of course, cannot be part of the balancing-
up process because they are wrong in fact or irrelevant in law, or both.
United States arguments relating to macrogeography, to "primary" and
"secondary" coasts, to "dominance" and State activities unrelated to the
subject matter of the zones to be delimited. to "ecological regimes" and
a "natural boundary", and to "single-State management" or administra-
tive convenience, al1 fall into this category. All the factors that are rele-

vant point to the same conclusion, namely, the fair and reasonable char-
acter of the delimitation achieved by the Canadian line [Figure 361.
Thus:

-The Canadian line emanates from the applicable law. including the
treaty obligations of the Parties under Article 6 of the Convention on
the Continental Shelf. The "adjusted perpendicular line" proposed by
the United States in 1982. like the Northeast Channel line it advanced
in 1976,disregards the applicable law.

-The Canadian line emanates from the particular geographical situa-
tion in the Gulf of Maine area, reflecting the general configuration of
the coasts and respecting the legal basis of title and the principle of
equality within the same order. The "adjusted perpendicular line", like
the Northeast Channel line. disregards the particular geographical sit-
uation in the Gulf of Maine area; it rests on a continental-scale geo-
graphical framework, on a geometrical conception of appurtenance, on
a false distinction between "primary" and "secondary coasts". and on
the unfounded thesis of a "natural boundary".

-The Canadian line emanates [rom the history of the dispute and from
the conduct of both Parties directly related to the rights and jurisdic-
tion in issue. The "adjusted perpendicular line", like the Northeast
Channel line, runs directly counter to the relevant conduct of the Par-
ties and rests instead on the unfounded thesis of "dominance", based

on activities that bear no relation to the rights and jurisdiction in
issue.
-The Canadian line emanates from the established interests of both
Parties in relation to the continentalhelf. as evidenced by the extant
hydrocarbon permits issued by Canada. The "adjusted perpendicular

line", like the Northeast Channel line. would seriously disrupt these
established interests.
-The Canadian line accommodates the mutually recognized established
fishing patterns of both Parties in a fair andealistic manner, in keep-
ing with the nature and purpose of the maritime zones in question.

and taking account of the relative importance of the fisheries con-
cerned to Canadian and United States coastal communities in the
Gulf of Maine area. The "adjusted perpendicular line", like the
Northeast Channel line, represents a monopolistic claim to the whole
of Georges Bank that would obliterate these established patterns for
Nova Scotia, in total disregard of the critical economic dependence of
southwest Nova Scotia on the fisheries of the Bank.150 GULFOF MAINE [169-1701

-The Canadian line is consistent with the essential unity of the conti-
nental shelf and of the oceanographic system of the Gulf of Maine
area, while effecting an equitable result in respect of the fishing
grounds of Georges Bank. The "adjusted perpendicular line", like the
Northeast Channel line, disregards this essential unity and would
divide the area on the basis of the unfounded thesis of "three separate
and identifiable ecological regimes".

-The Canadian line satisfies al1 the tests of equity relevant ta the
delimitation of a single maritime boundary, including the test of
proportionality in itsseveral forms. The "adjusted perpendicular line",
like the Northeast Channel line, fails ta meet any test of equity and
relies on an arbitrary and unreasonable appli6ation of the test
of proportionality.

-The Canadian line leaves the conservation of resources to coastal
Statc management and ta bilateral cooperation as required, in keeping
with established principles of international law. The "adjusted perpen-
dicular line", like the Northeast Channel line, relies on the unfounded
thesis of "single-State management" or administrative convenience,
and on a wholly unrealistic rejection of the obligation to cooperate in

the conservation of transboundary resources, disregarding, inter alia,
the practical irnpossibility of finding a single line to accommodate the
varied resources of the water column and of the continental shelf.
-Finally, the Canadian line leaves the avoidance of disputes to the long
tradition of good neighbourliness between Canada and the United

States. The "adjusted perpendicular line", like the Northeast Channel
line. relies on the unfounded thesis of "dispute minimization" as a
.principle of delimitation, and on a wholly unrealistic rejection of the
obligation to minimire disputes on any other basis than monopoly.

374. An equitable and reasonable result is the hallmark of a
delimitation in keeping with the fundamental norm of maritime bound-
ary law. The outlines of such a result were clear to both Parties at least
as early as 1965 and in the following years, when both Parties accepted
the application of the equidistance method and made use of very similar
equidistance lines in relation to continental shelf activities in the Gulf of
Maine area. They were clear to both Parties in terms of fisheries inter-

ests in 1979, when they negotiated and signed the Agreement on East
Coast Fishery Resources. They remain clear today. At no time has there
been a change of relevant circumstances that would give this equitable
and reasonable character to some markedly different result. PART IV. SUMMARYOF PRINCIPALCONCLUSIONS

375.The principal conclusions advanced in the Canadian plead-
ings are summarized in the following paragraphs. They retain those set
out in the Canadian Counter-Memorial and include one additional con-
clusion (printed in bold face in sub-paragraph 4(b) of Section B below)
that is based on material introduced in this Reply.

1. The single maritime boundary between the Parties iri the Gulf
of Maine area shall be determined on the basis of the applicable law in
accordance with equitable principles, taking account of al1 the relevant
circumstances, in order to achieve an equitable result.

2. The law applicable to the determination of the single maritime
boundary in the present case includes the following:

(a) The fundamental norm set out in paragraph I above;
(b) Article 6 of the 1958Convention on the Continental Shelf;

(c) The rules concerning the basis of title to the maritime zones to be
delimited, including (i) the use of the distance principle as the
sole basis of coastal State rights in a 200-mile fishing zone or
exclusive economic zone and as a sufficient basis of title inspect of
the continental shelf within 200 miles, and (ii) the principle of
equality within the same order and the related principle of non-

encroachment: .
(d) Criteria relating to the purpose and nature of the sovereign rights
and jurisdiction to be exercised inhese maritime zones; and

(e) Such other rules and principles of conventional or customary inter-
national law as may be relevant, in particular those concerning
acquiescence, recognition and estoppel.

3. In the light of al1 the foregoing, the following principles will
produce an equitable result in view of the relevant circumstances in the
present case:
(a) The principle that the single maritime boundary should leave to
each Party those areas of the sea that are closest to its coast, pro-

vided that due account is taken of the distorting effects of incidental
special features not in keeping with the general configuration of the
coast in the relevant area;
(b) The principle that the single maritime boundary should allow for the
maintenance of established patterns of fishing that are of vital
importance to coastal communities within the relevant area; and

(c) The principle that the single maritime boundary should respect the
indicia of what the Parties themselves have considered equitable as
revealed by their conduct.152 GULF OFMAINE 11741

B. THERELEVANT CIRCUMSTANCES

1. The relevant geographical circumstances are limited to those
found in the Gulf of Maine area. They include:

(a) The proximity of Georges Bank to the coasts of Nova Scotia and
Massachusetts that abut the outer part of the Gulf of Maine area, in
terms of both physical and human geography; and, in particular, the
closer proximity to Canada of the area under Canadian claim;

(b) The overall balance in the configuration, length and predominantly
opposite relationship of the coasts of the Parties to each other rela-
tive to the area to be delimited; and

(c) The distorting and disproportionate effect upon the course of an
equidistance line of the exceptional protrusion of Cape Cod and
Nantucket Island, when superadded to the general protrusion of the
coast of Massachusetts.

2. The relevant geological, geomorphological and oceanographic
circumstances include:
(a) The essential unity and continuity of the continental shelf of the
Atlantic coast of North Arnerica, and its particular affinities to the
northeast in the Gulf of Maine area;

(b) The essential unity and continuity of the oceanographic system of
the Gulf of Maine area, and its particular affinities to the northeast;
and

(c) The concentration of fishery resources in the waters over Georges
Bank, and their particular affinities to the northeast.

3. The relevant economic circumstances include:
(a) The strong Canadian presence in the fishery of Georges Bank and

the established and vitally important economic dependence of
Canadian coastal communities in the relevant area upon the fishery
resources of the Bank; and
(b) The lack of any comparable dependence on the part of United States
coastal communities.

4. The relevant circumstances pertaining to the conduct of the
Parties include:

(a) The United States recognition of and àcquiescence in both (i)
Canada's exercise of sovereign rights in respect of the mineral
resources of Georges Bank frorn 1964 to 1969, and (ii) Canada's use
of an equidistance line for thisurpose from 1965 to 1969;

(b) The existence of a modus vivendi or de facto maritime limit based
on the Canadian equidistance line and the United States "BLM
line" and respected by both Parties and by numerous oil cnmpanies
from 1965 to 1972, at least;11751 REPLYOF CANADA 153

(c) The offshore oil and gas exploratory permits issued by Canada in
respect of the area claimed by Canada, and the absence of any simi-
lar instruments issued by the United States with respect to this area;

(d) The parallel negotiation, conclusion and signature by the Parties of
the Special Agreement and the 1979Agreement on East Coast Fish-
ery Resources, recognizing Canada's traditional participation in the
fisheries of Georges Bank. its status as a coastal State in relation
thereto, its economic interest in the living resources of the area,
and the potential for bilateral cooperation in their conservation and
management;

(e) The United States recognition of Canada's interests as a coastal
State in relation to Georges Bank under the International Conven-
tion for the Northwest Atlantic Fisheries, from 1949 to 1977;

V) The regional tradition of cooperation between Canada and the
United States in the conservation and management of fishery
resources of mutual concern; and

(g)The conduct of the United States with regard to other maritime
boundaries.

C. THENATURE OF THE RESULTPURSUAN TO THE
UNITED STATE SROPOSAL

1. Neither the 1976 Northeast Channel line nor the 1982 so-
called "adjusted perpendicular line" is based on the applicable law, nei-
ther is in accordance with equitable principles, and neither takes account
of the relevant circumstances; both are founded exclusively on the objec-
tive of securing for the United States the whole or theargest possible

part of Georges Bank. the principal area in dispute in the present case.
2. Both the Northeast Channel line and the "adjusted perpen-
dicular line" are manifestly inequitable and unreasonable; they would

allocate a totally disproportionate part of the area and its resources,
including the whole of Georges Bank, to the United States; they
encroach upon maritime space appertaining to Canada; and they fail to
meet every applicable test for a single maritime boundary.

3. The "adjusted perpendicular line", moreover, is barred by rea-
son of the United States acquiescence in and recognition of Canada's
equidistance claim in the period from 1965 to 1969, as well as ils con-
tinued acquiescence in and recognition of Canada's claim to the area
between Georges Bank and the "adjusted perpendicular line" in the
period from 1969 to 1982.

1. The Canadian line is based on the applicable law and produces
a result that is in accordance with equitable principles and takes account154 GULF OF MAINE 11761

of both the geographical and non-geographical relevant circumstances in
the Gulf of Maine area, without encroachment upon areas appertaining

to the United States.
2. The Canadian line meets every applicable test for a single

maritime boundary; it represents an equitahle and proportionate result
and it reflects in a reasonable way the parity of interest of the Parties in
relation to the Gulf of Maine area and to Georges Bank in particular.
/
3. Canada's ajpplication of the equidistance method, adjusted to
correct and compensate for the distorting and disproportionate effect of
Cape Cod and ils offlying islands, is appropriate in the light of al1 the
relevant circumstances; any other method that might be employed to
determine the single maritime boundary in the Gulf of Maine area,
if applied in accordance with equitable principles, would necessarily
produce a similar line.

4. The conduct of the United States from 1965 to 1969 consti-
tutes acquiescence in or recognition of the use of the equidistance

method in the Gulf of Maine area and the exercise of Canadian jurisdic-
lion on Georges Bank, and creates an estoppel in favour of Canada; the
single maritime boundary to be determined by the Court should he com-
patible with the rights that vested in Canada during this period. PART V. SUBMISSION

In view of the facts and arguments set out in the Canadian
Memorial. the Canadian Counter-Memorial and in this Reply.

May it pleasethe Court,rejecting al1contrary claims and Submis-
sionsset forth in the United States Memorial and Counier-Mernorial,

To declareandadjudgethar:

The course of the single maritime boundary referred to in the
Special Agreement concluded by Canada and the United States on
29 March 1979 is defined by geodeticlinesconnecting the following

geographicalcoordinatesof points:

12December 1983 L. H. Legault, Q.C.
Agent for the Government

of Canada ANNEXES TOTHEREPLYOFCANADA

Volume 1
STAT ERACTlCEIN MARITIM DEELIMITAT BOANGREEMENT

PREFACE

This Annex. which is dividcd into two Parts, is subniitted in sup-
port of Part. Chapter VI, of Canada's Reply.

PartI of this Annex provides an analysis of continental shelf and
maritime boundary agreementsa rebut the contentions in the United
States Counter-Memorial about the use of the equidistance method in
maritime dclimitation, androvide an accurate account of the dclimi-
tation of the continental shelf boundary in the Bay of Biscay. In addi-

tion, it contains an analytical table of agreements establishing maritime
boundarics.
Part II of this Annex provides a comprehensive record of State

practice in the delimitation ofme boundaries by agreement beyond
the outer limits of the territorial sea, and includes a copy of every agree-
ment mcntioned and an illustration of each boundary. PART 1. AS ANALYSIS OF CO\TINENTAL SHELF AND
MARITIME BOtiNDARY AGREEMENTS

Section 1. The Misinterpretation of State Practice
by the United States

A. THEEQUIDISTANC MEETHOD AND EQUIDISTANC LIENES

I. In the Annexes to its Counter-Memorial (Volume IV, Annex
8), the United States comments on the agreements listed in the
Canadian Memorial as examples of the application of the equidistance
method or examples of the application of some other method'. On the
basis of its ownassessmentof State practice, the United States drew up
a listof boundariesdivided into three categories: boundariesthat do not
incorporate equidistance lines, boundaries that incorporate equidistance
lines only in part, and boundaries that are wholly equidistance lines or
simplified equidistancelines2.It is clear from Annex 8 that the United

States has misconceivedboth the nature of State practice in the delimi-
tation of maritime boundaries, and the relevanceof that practice to the
present case. This is evident not onlyin the confusion between the
merhod of drawing a boundary and the line that results from the
application of that method, but also in the interpretation that the United
States places upon many of the agreements delimiting the continental
shelf or other maritime zones. Moreover, the United States includes, as
evidenceof State practice, boundariesthat weredrawn not as a result of
negotiationby States but by judicial or arbitral decision'.

1.TheSo-Called '*Non-EqufdisronB t oundaries"

2. The United States list of boundaries in force that "do not
incorporate equidistant lines" includesthree boundariesthat were in fact
delimited on the basis of the equidistance method, although in each case
the boundary itself is a modifiedequidistance line. In two of these cases
-the boundary betweenthe United Kingdomand the Federal Republic

of Germany', and that between Venezuelaand the Dominican RepublicS
- the method was equidistance but the basepoint for the measurement
of equidistancewason the coast of a third State. In each case,the choice
of such a basepoint was rendered necessary because one of the States
involvedhad effected an earlier delimitation with the third State con-
cerned on the basis of a method other than equidistance.This meant that
part of the area to be delimited was not equidistant between the two
States. The equidistance methodwas maintained, however,by using the
coast of the third State as a basepoint for the line.

UniredSroresCounler-Memoriol.AnolylicolAnneVol.IV,Anncx8, Chap1.
UnircdS~rorsounier-Memoriol.AnalyfieolAnnexVol. IV, Annex8, Chap.II.
'Thcse are the boundaries betweenTunisiaand Libya.Sharjahand Dubai. and partof
the boundarybetweenthe United KingdomandFrance,al1of whichresultedfromjudi-
cial or arbitraldecisionr.
'See PartII, Figure31.
'See Pari II. Figure73.Il01 ANNEXES TO REPLYOF CANADA 159

3. The third boundary crroncously included in Unitcd States
Anncx 8 as allegedly providiiig no support for equidistancc is that
between Trinidad and Tobago and Venezuela. It has becn shown in the

Canadian Reply that the exclusion of this boundary from those based on
the cauidistancc mcthod hiehliczhtsthe United States' inisconceution of
the application of that nicth;d.~hc boundary was dcrivcd by drawing a
linc that exchangcd cqual tircas of niaritinie space bctwccn thc partics in

relation to an cquidisttincc linc6

4. The United Statcs also cxcludes the boundary betwccn Iran
~n~ the ~n~ted Arab Eniiratcs7 from those that incoruorate cauidistancc
lincs. Ncvcrthclcss, that agreement was based upon the equidistance

nterhod. although islands werc disrcgarded as bascpoints and the lranian
island of Sirri was given only a 12-mile territorial sea. Thc deviation
from a strict equidistancc line in this case \vas in fact relatively minor.

2. Boundaries Thar Are Said to be "Equidistant in Part"

5. The United States list of "boundaries that incorporate cquidis-

tant lines only in part'" also implics that these boundarics do not provide
any support for the equidistancc mcthod. Thus. in atlempting to rebut
Canada's arguments about the equidistance method, the United States

has included these boundarics with the non-equidistance boundaries'. In
fact practically al1 of the boundaries included in this catcgory result
from the application of the equidistance niethod. In most cases the
boundary line is a modified equidistance line and the degree of rnodifica-

tion. and the reason for such modification, can be precisely ascertained.
Moreover, in several instances the variation from strict equidistance is
considerably less than the United States pretends, as the following para-

graphs make clear.

6. The United States asserts that 75 percent of thc Argentina-
Uruguay boundary follows the thalweg of the Rio dc la Plata. and that
the remaining 25 pcrccnt of the boundary "may also fullow the pcrpcn-

dicular bise~tor'~".In fact. thc "75 percent" of the boundary referred to
is bchind the comnion basclinc from which the parties incasurc their ter-

'The view that ihe Gulf of Paria agreementinvolvcd a modilication of equidisiînce has
becn expresred by thc British naval hydrographer Commnndcr P. B. Bcazley: "Mari-
time Boundaries." tnrrrtrori,»tal Ilydrogrophir Rei'iew. Vol. LIX. No. 1. 1982. p. 155.
and by a former rnembcr of the British Foreign Office. J. A. C. Guiteridgc: "Thc 1958

GenevaConvention on the Contincntol Shelf." Brirish Yearhook of It,reritoriot#ulLor:
Vol. 35. 1959.p. 120.
'Sec Part II.Figure 46.
Uniled SIoUs Col'nrer-Menaoriol. An~l)'lira/ Annexer. Vol. IV. Annex 8. Chap II.
sec. 2.

The Unitcd Si3tes' contention "thai only a minority of the baundarics in forcc -
37 pcrcent - are based exclusively upon a strict application of thc equidistance
method" (Unired Srorer C,>u>ir<~r-Menrorial.. 145.para. 217) is dcrivcd froni trcating
only the boundüriesincluded in UtriredSrar<s Couilirr-MrnloriolAnolyrir~il An!te.r~r.
Vol. IV. Annex 8.Chap. III.scc.3. as strict applications of thc cquidistancc method.
The boundarics listed in Annex 8. Ch;ipIIsecs. I and2 arcapparently no1sccnby the
Unitcd Ststeï asprovidingany support fur the equidistancemcthod.
'OUnited S10re.r Counrcr-Mrnioriol. Anolyricol Annexes, Vol. IV. Anncx 8. Chnp. 1.
sec. 1. p1160 GULF OFMA~NE 1111

ritorial sea and the boundary beyond that baseline is, according to the
agreement establishing it. "defined as an equidistant line drawn accord-
ing to the method of the adjacent toasts"". Similarly, the United States
asserts that the boundaries between Costa Rica and Panama, both in the

Pacific and in the Caribbean, are perpendicular to the general direction
of the coast, ignoring the fact that the agreement between the two coun-
triesexpresslyincorporaiesthe equidisrancemerhod for the delimitation
of these b~undaries'~.The variation from equidistance can be explained
by the fact that islands were disregarded as basepoints and that an
attempt was made in the Caribbean and the Pacific to join up with the
Colombia-Panama-Costa Rica trijunction points where the Coiombia-

Panama boundaries were not equidistant".
7. The United States analysis of the Finland-USSR boundary is

defective bccause the United States fails to acknowledge that the bound-
ary originates as a boundary through territorial waters. Established ini-
tially in 1940 and conlirmed in the 1947 Treaty of Peace between Fin-
land and the Soviet Union. the boundary, beyond the territorial sea of
the two States, follows the centre line of a high-seas corridor between
territorial waters". After leaving the area covered by the two earlier
treaties, the boundary" is an equidistance line, simplified to take account

of islands. In 1967, the boundary was extended a further 47 miles, again
utilizing the equidistance mcthodI6.Thus, the total boundary beyond the
territorial sea is 181.4 nautical miles in length, of which 164.3 nautical
miles followan equidistance line.

8. Several of the boundaries which, according to the United
States, provide no support for the equidistance method are boundaries
where equidistance has been modified to take account of islands adjacent
Io the coasi. This is truc of the agreements between Greece and Italy",
lran and Omani8, lran and Qatar", lran and Saudi ArabialO, ltaly and

Tunisia" and ltaly and Yugoslavia". In these cases, islands were either
disregarded or given partial effcct. The United States has also miscon-
strued the application of the equidistance method in the boundary
between lndonesia and Malaysia in the Malacca Strait, where in 1969
the boundary was constructed as an equidistance line between straight
baselines", and extended in 1971 by a modified equidistance line to a

" Sec PartII.AgreementNo. 39. Figure39.

"Sce PartII.Agrccmcnt Na. 77. Figurer77A and 776.
"See PartII.Figures55A and556.
"This corridorresultsframthe iact that althoughthe USSRclaimra 12-mileterritorial
sca,il did no1implcrncntthat cl10mils lull extcnt in thirîrea. Finlanonlyiar
4-mileterritorisen.
" FromPoints8 to 21.sccPartII, Figurc10.
See PartIl. Figur16.

"See PartII,Figure60.
Sec PartII,Figure44.
See PartII.Figure24.
'OSeePartII. Figure20.
" See PartII.Figure30.

"See Pari II.Figure17.
"See PartII,Figure25A.1121 ANNEXES TO REPLYOF CANADA 161

common trijunction point, which effected an exchangeof approximately
equal areasin relation to an equidistancelinez4.

9. The United States. viewof what was done in the Japan-Korea
delimitation relies on incorrect calculationsof distancesgiven in Linrits

in the Seas2'. The distances betweenpoints 3, 4 and II and Japaneseter-
ritory - reportedas 60.2. 52.5 ;and24.1 miles respectively - are in fact
46.7, 47 and 19.2 miles. The equidistance method has been employed
throughout the whole of the boundaryZ6.

10. The India-Thailand boundary is also basedon equidistance.
Like the boundaries between theUnited Kingdom and the Federal
Republic of Germany, and between Venezuela and the Dominican

Republic. this boundary utilized a basepoint (betweenturning points I
and 2) on the coast of a third State2'. In this case. Loo, the need to
choosea basepointon a third State resultedfrom the fact that oneof the
parties (Thailand) had established a boundary with a third State
(Indonesia) according ta a method other than equidistance.The problem

this posedfor the India-Thailand delimitation was resolvedby selecting
basepointson the Indonesiancoast in order to reach an equidistancetri-
point.

11. The assumption by the United States that a boundary has

been delimited in accordance with the equidistance merhod only if it
results in an equidistance line isfurther illustrated by the inclusion of
the Colombia-Panama boundary in the Caribbean Sea in the United
States list of boundariesthat incorporate equidistance lines only in part.
This boundary, in fact. provides an interesting example of the way in

which the equidistancemethod can be modified. The step-like configura-
tion of the boundary beyondturning point G follows parallels of latitude
and meridians of longitude in a way that isintimately related to and
derived from an equidistance lineZs.The boundary provided for an equal
exchangeof areas in relation to a modified equidistance line drawn to

give half-effect to the Colombian Albuquerque and SoutheastCays.and
full effect to the islands of San Andreas,and Providencia. while disre-
garding Roncador,whosesovereigntyis unresolved.The line is. in effect,
a modified equidistanceboundary.

12. The most surprising inclusionsin the United States list of the
agreements that allegedly provide little support for the equidistance
method are agreementsconcludedby the United States itself. The agree-

ment with Cuba is a classicexample of a modified equidistancebound-

"See PartII, Figure33.
" Limirs irheStar.No. 75. UnitedStates Departmentof State. Bureauof Intelligence
and Rcrearch,OfficeoftheGco.ra.hcr.1977.
"Sce Part II.Figure42A. No boundiry has been establirhedin the jointdevelapment
area (Figure42B).
"See PartII.Figure68.

'5ee PartII. Figur55A162 GULF OF MAINE il31

aryZ9,and the boundary between the United States and Venezuela is a
further example of the use of the equidistance method witha basepoint
on the Coastof a third State". As in similar delimitations, thisapproach
was made necessary because one of the parties (Venezuela)had effected

a non-equidistant delimitation with a third State. Both agreements
demonstrate the use of the equidistance method in State practice; they
do not providesupport for the United States' contentions in the present
case.

13. The United States is as unsuccessful in explaining the
Canadian delimitation with Denmark as it is' in explaining its own
delimitations. It suggests that "methods other than equidistance were
used to delimit over one third of the 1449 nautical mile boundary"". In

fact, the boundary is based on equidistance, measuredbetween straight
baselines" and taking account of the distorting effectof off-lyingislands,
or modified to effect an equal allocation of continental shelf areas to
both parties.

14. By focusing onboundaries that are "strict or simplifiedequi-
distant lines throughout the whole of the boundary", the United States
has distorted State practice in the use of the equidistance method. The
correct viewof State practice in the delimitation of maritime boundaries

is that regardless of the final result the equidistance methodgenerally
playsa central role in the processof reaching an agreed line. Logicalone
suggests that an equidistance line should be the starting point for
negotiations, for it providesa point of reference by which the fairness or
equity of a delimitation may be measured. State practice confirms that

this logic is compelling, since no matter how they are categorized,
approximately 70 percent of the boundaries settled by agreement so far
have been based onthe equidistance method, modified for the particular
circumstancesof the area in question.

15. The United States has contended that the delimitation
between France and Spain in the Bay of Biscay provides guidance for

29See Part II, Figure 62. The cxplanatian givcn by a United States officiai of the relation-
ship of this boundary io quidistance is as follaws:

"During the technical discussions, comparable artificial "canstructian lincs" wcre
culated by use of the Cuban straight baselines and the artificial construction lines
of the United States. Anathcr uiuidistantwasncalculated bv use of the relcvant
basepointson the low-water line'ofthe coasts of the two countiies. A third line was
then crcated between those Iwo lines.which was no1cquidistani, but which divided
equally the area between them. The final boundary represented a negatiated setile-
ment based onequitable ~rinc~ples."
Robert W. Smith: "The Maritime Baundaries of the United States". The Geogrophicol
Revicw, Vol.71,NO. 4,1981, p.402.

'oSee.Part II, Figu65.
" United States Counler-Mernorial, Ano/yIieoi Annexes, Vol. IV. Annex 8. Chap. 1,
scc.1,p.3.
See Part Il. Figure 40. Straight basclines officiallypromulgated by Denmark, and hypo-
thetical Canadian straight baselines.werc used in this delimitation.[14-151 ANNEXES TO REPLY OF CANADA 163

the present case because the Bay allegedly is an area "that geograph-

ically is most like the Gulf of Maine area"". The United States notes
that from Point Q (the outer liniit of the territorial seas and contiguous
zones of the two States) to Poini R the boundary is an equidistance line,
but concludes that "the boundary between Point R and Point T appar-
ently was based on a proportionality cal~ulation'~" taken from lines
drawn to "simplify" the coastlines.

16. In Canada's view, the United States description of the
method of delimitation adopted in the Bay of Biscay is incomplete. By
concentrating on proportionality calculations determined on the basis of

coastal lengths, the United States has obscured other significant factors.
Seaward of Point R the location of the boundary can be explained by
reference to the relationship of the continental shelves of the two States
rather than by reference to the coastal geography.

17. That the method of delimiting the boundary was related to
the topography of the seabed was pointed out by Professor JoséLuis de
Arcarraga, an adviser to the Spanish delegation in the Bay of Biscay
negotiations. in an article annexed ta the United States Counter-
Mem~rial'~.As Professor de Azcarraga said, the special circumstances of

France's larger continental shelf "dominated the negotiations". And a
glance at Figure A shows that while the continental shelf of France is
broad, that of Spain is extremely narrow in this area.

18. From Point Q to Poiiit R, the boundary in the Bay of Biscay
is a strict equidistance line drawn from basepoints on the coasts of the
two States. This segment of the boundary extends to the foot of the con-
tinental slope at a depth of 3,600 metres, crossing successive bathymetric
contours at right angles. If the boundary had continued from Point R as
an equidistance line drawn from the coasts, it would have cut across the
French continental slope at an oblique angle, because seaward of Point

R the French continental shelf broadens and. consequently, the seabed
contours undergo a change in orientation. Reflecting this change in the
configuration of the French continental shelf, the direction of the line
changes at Point R, after which it crosses the 4,500-metre isobath at
right angles and proceeds seaward in a straight line until it intersects the
closing line ai a point (T) equitlistant from the 4,500-metre isobath on
the French and Spanish continental slopes. This line effects a roughly

equal division of the area between the parties beyond the 4,500-metre
isobathI6.
The result of this delimitation, as Professor de Azcarraga has
19.
said, is that "the line joining Points R and T . . . is virtually the median

''United States Counier-Memoriol. p. 245. para. 388.
j4UnitedStates Counier-M~mori~l, Anolylicol Annexes.Vol. IV, Annex 10, p. 55.para.

"J. L. de A~cirriigii: "Espana Suscribe. con FraeciItâlia, Dos Conveniasobre
internacional. Vol. XXVIIpp. 131-138. Rcproducedand iranslatedin Unired Sloteserecho
Counrer-Memoriol. Anolylicol Annexes.Vol. IV. Annex 10. AppendixA.

'&area appertainingto Spaisappraxirnaiely5,121 squarenauticalmiles.iles. and the164 GULF OFMAINE 116-11

line equidistant between the isobath curves at equal depths"". The
United States takes this to mean that "at Point T on the closing line, the
boundary is roughly the same distance from the 100-fathom depth con-
tours off the respective coasts of the partie^'^"but this is incorrect, as a

glance at the figure referred to by the United States will demonstrate''.
The last contour common to the continental slopes of both States is at
4,500 metres, and Point T is equidistant from il.
20. Proportionality tests may well have confirmed the equity of
the line, but this does not mean that proportionality constituted the

methodof delimitation in the Bay of Biscay, or that the rationale for the
delimitation lay in the fact that the French coastline was longer than the
coastline of Spain. The discovery of manganese nodules within the
vicinity of PointT had served to focus the attention of the two States on
the seabed itself, and the boundary line was designed to effect a roughly
equal division of the abyssal sea floor beyond the 4,500-metre isobath.

21. The Bay of Biscay delimitation is instructive intwo important
respects. First, the Parties utilized the equidistance method out to the
foot of the continental slope. In other words, the boundary is an equidis-
tance line where there is a common shelf and slope; it is only where that
common shelf and slope come to an end that an alternative method was
chosen. Secondly, although thereafter the Parties departed from an equi-
distance line drawn from basepoints on the coasts, the equidistance prin-
ciple nevertheless retained a role in the delimitation of the seabed
beyond the common continental shelf and slope. The boundary in this

second area is a geodetic line joining two equidistant points; Point R is
equidistant from the coasts and Point T is equidistant from isobathic
contours.
22. The seabed topography in the Bay of Biscay differs substan-
tially from the Gulf of Maine area, which is an area of geological con-

tinuity comprising a single, continuous continental shelf. Figure B
demonstrates the application of the Bay of Biscay method to equivalent
depths in the Gulf of Maine. As can be seen, the equivalent of Point R
al 3,600 metres is beyond the Canadian line, and the equivalent of Point
T at 5,000 metres goes beyond any area conceivably relevant to the
present delimitation. The outer edge of Georges Bank at the 200-metre
contour would coincide approximately with Point Q3 on the France-
Spain line. Rather than citing a precedent relevant to the present case,
the United States has proposed one that, if applicable at all, could only
be applied in the seaward extension of the boundary contemplated in

Article VI1of the Special Agreement.

" UniiedSi~tes Counier-Mernorial.Anolyiicnl Annexes. VaAnnex,10.AppendixA.
p. 4.
" UniiedSiores Counrer-Mernorial.Anolyricol Annexes.VolAnncx 10p. 5.para8.
UnitedStaies Counter-Mernoriol.AnolyricolAnnexes, VolAnncx 10. Figure 2. Ilsl ANNEXES TO REPLY OFCANADA 165

Section 11. An Analytieal Table of Agreements Establishing
Maritime Boundaries

23. The table at page 21 of this Annex provides an analysis of the
agreements concluded by States for the delimitation of maritime bound-
aries beyond the outer limits of the territorial sea. The agreements are
arranged in chronological order, but where one agreement coversIwo or

more boundary areas. then each boundary area is dealt with separately.
The agreements have been classified according to type, to the geograph-
ical relationship of the parties, to the method of delimitation adopted,
and to the effect that particular geographical features have on the
boundary. Explanatory notes have been provided for each agreement or
boundary area.

1. T.vpeof Agreement

24. The agreements are classified according to whether they deli-
mit only the continental she!f or jurisdiction in the water column as well.

In conformity with the terminology used in Part II of this Annex. the
latter boundaries are designated "maritime boundaries". Some of these
boundaries were initially established as maritime boundaries dividing
both the continental shelf and the water column; others were originally
established as continental shclf boundaries and applied to the water
column by subsequent agreement.

25. The agreements are divided into three categories reflecting
the geographical relationship of the coasts: opposite, adjacent, and mixed
opposite and adjacent coasts. The distinction between cach category is

determincd on the basis of the actual relationship of the coasts of the
parties throughout the course of the boundary delimited by the agrec-
ment. In the Canadian Counter-Memorial. it was demonstrated that the
relationship of any particular point in the ocean to the coasts of two
States can be determined mathematically by the degree to which the
angle formed by the juncture of two lines from the coasts to the point of

intersection varies from O" to 180°'0. Where the angle is predominantly
between 0" and 90". the relationship between the Iwo coasts and any
particular point in the ocean is one of adjacency. Where the angle is pre-
domin;intly between 90° and 180°. the relationship between the two
coasts and the point in the ocean is one of oppositeness.

26. This analysis has been applied in determining the coastal
relaiionship in the Analytical Table. Where the angle formcd by lincs
from the coast to the boundary is predominantly between 0" and 90'.

the relationship of the coasts is designated as one of adjacency. Where
the angle formed by lines from the coast to the boundary is predomi-
~ ~

0-0 " Canadian Caunter-Mernorial, pp. 45-48,paras.12:Figures8.9and 10.166 GULF OFMAINE 119-201

nantly between 90" and 180°. thc rclationship of the coasts isdesignated
as one of oppositeness.Where. as occurs in many situations. the relation-
ship of the coasts of the parties exhibits elements of both oppositencss
and adjacency, ithas beenso designatcd. Such a relationship occurs. for
example. where two States have adjacent coasts by virtue of a common

land frontier at the point of commcncement of the maritime boundary.
but wherc an elcmcnt of opposiicness is introduced by offlying islands or
by a radical change in the direction of the coasts".

3. Merhod of Delintirarion

27. Tlic ;igrcciiicnis hlii~ bccn dividcd into thrce categorica: btrict
or sinipliiicd cquidi<tincc. inodified cquidi\tlince. ;ind non-equidit;incc.

28. The first category, that of "strict or simplified equidistance".
includcs thosc agreements where thc parties have drawn an equidistance
line strictly utilizing al1 proximatc bascpoints. or where they have "sim-
plified" the linc so drawn by reducing the numbcr of turning points and

effecting minor cxchangcs of areas.

29. The second catcgory, "modified equidistance", includes those
boundaries that havc their origin in the equidistance method, although
the actual line, modified to take account of particular circumstances.
involves a greater deviation from strict equidistance than do "simplified"
equidistance lincs. Where it is patent - or wherc ilcan be demonstratcd

- that a boundary which is not a strict or simplified equidistance line
has beenderived from the equidistance method, then the agreement has
bcen included in this category.

30. The third catcgory consists of those boundarics ivhere the
parties have. explicitly. or otherwisc. adoptcd a method of delimitation
other than equidistancc.

4. Effecr of GeographicalFeatirres

31. Undcr this heading. the agrccnients arc dividcd according to
the impact that particular geographical fcatures have on the boundary.
Thus. thc Analytical Table indicaies whether full or partial effect is
givcn Io islands. whelhcr partial effcct is givcn to islands in the boundary

area, whethcr islands have bcen complctcly disregarded, and whether a
basepoint on the Coastor a third State has been usedfor the construction
of the boundary linc.

" See for eiamplethe boundary between theUnitedStatesand Mexico inthe Pscilic
Ocesn. PartII. Figur678.1A<;llEb:1REI.ATIONS(DELIMITATI1NCEOGRAPHICAI. FEATURM168 GULFOF MAINE[251 ANNEXES IO REPLYOFCANADA 169 TYPE OF GEOGRAPHICAL METHOD OF EFFECT OF
DF.LIMITATION
AGREEMENT RELATIONSHIP GEOCRAPHICAL FEATURES TYPE OF GEOCRAPHICAL METHOD OF EFFECTOF
AGREEMENT REMTIONSHIP DELIMITATION GEOCRAPHICALFEATURES

- AGREEMENTS IN
-5c
$.~cHRoNoLOClc*L
!if ORDER
ACCORDlNG TO REMARKS
DATE OF
SIGNATURE

Thiil~ndllndonnia X X X Theboundary is 114mila in lrngth
12 17 bmkr 1911 mmmcming aiihc Indoncrial
ThailandIMalapiCommm Paini.
Ti boundiry warmmplrtd bythe
igrccmcnt oIIkmkr 1975.
(No.49)

Thr bovndary il anquidiria1inr
constructrromihc mmmon bowlinc
fiomwhich the i.rritwsiii

DenmarkIcanada X X X X The mdified portion of the boundary
40 17 (Xcrmkr 1971 cffcrfancrchnnge olquasrras
biv<cn ihcpartic,. REMARYS

msa,vrFdrrom iht

and Ihr iouihern boundaiyrollawsiho
parallslor 13e03?7'' norchlaritude.

ColombizlEcuador X X X
48 23 Avgunl1975 Thcagrsrm.", eslablilhsda ID-mi1c
widcfinhcria hurrcrronc on eiihcr
ride orlhboundary.whichrallawrihc
Wrallcl 0101027w norih laliludc. REMARKS

India/Maldire~ X X X X Tho bnindiry<.omm.nccs.t iht
56 28 Dernkr 1976 India/Sri LanXn/MaldivcrIripoiniand
ir 496 mila in Icngth.

-Nolwi in<or* REMARKS

Union olSouicl Trrriy ol Washingtonor ihcw
Socirlir< Republic3 mrrilimeboundrry.
Irnurr,/Februrrj1977

Coiornbia/Co,la Rica X X X Aibvqurrqur Cayr rpwrr io havebeen
59 17Mrrch 1977. giren luil î!fecl loi pvrpoicr of
dclimilaliun. The mîridirn ol 81°1*
vErlcunnictr ~ith thtcrrnorthe
Colornbia-NicaraguaTrcat) 011910.

ltaly/Gr~cc~ X X X X The boundnr)hrs ken modiried io
60 24 May 1917 giuc panial clllol,mailGrcrk
irlrndn.

HaililCuba X X X X ~~"a~ra r. rmrll island undrr US.
61 27 Ociokr 1977 ,orereignly. hri hren dirrrgrrdad ar
barrpoin, in Ih. conrtrvccion01th~
",=dian 1inç The caymrn Trrnch uar
dirrcgnrdçd.

UnilcdSlaio or X X X X Thr baundaryis a compromlrî
62 Amcrica/Cuba rquidirlrnce linî barcdIwo
16Decembri 1977' rquidirlrncr linrs conllruciçd
'erpciliurly klucco normal bawlinrr
andsiraighi barelines
-
Colombial X Thc boundary hn rminimum Icngih
X X X
61 Dominicrn Rcpublic of 103miles.
Il Jrnurry 1978

Colornb>r/Hrili X X X X Tbr boundary utilires ihr cquidirlanrs
64 ilFebruar 1978 mclhcd hi drnicr hlvrrnl Crysrirlur
rr rbalcpinlrorJamaicr. ÜEOGRAPHICAL MPTHOD OF EFFECT OF
I --- RPLATIONSHIP DELIMITATION CPOCRAPHICAL FEATURES

AGREEMENTS IN
i$ CHRONOLOCICAL W
L; ORDER -
ACCORDING TO REMARKS
DATE OF
SIGNATURE m < Y *i

Vcnnucla/ X X X X X 65%dthr boundary ir quidinani
65 United Slate, ktvrcnVcnrzuela and U.S.A. irlandr
of Amcrica The Nclhrrlands islandr of Curacao
28March 1978 and Bonaiic haken utililrd by
V~n.r"cla ai barrpinir ror the
rcmain,ng 35%.The Muerior Trough
sa,di,rsgardcd.

rcpuasdisrcgardrd.

4 May1918' lhrrr. Equal clchangcr of arvr
rrlvltrrromihc simplification.

India/Thailrnd X X X X X Thr boundary il quidiriani kivcon
68 22Junc1978 lndia and Indoncria from lvrning pint
1to 2. and betvacn India and
Thailankturen pinu 2 to8.Thc
hvndrry dinrcyrdn r rvbmarinr
dcprenion krwcrn India and ihr -
boundary. "7

Swedc'n/ x x X x ~hcboundnry arminatrtathesait
69 Grrman Dcmocrzti,~ andtoIhçvrnl aIhr
Rcpuhl'w Dcnma~k/Sucdco/G.D.R. iripintr.
22June1978

.hoc Yinsrir AGREEMENTS IN
" ::

ACCORDING TO REMARKS
DATE OF
SIGNATURE

Turkcy/ X X X Thc boundary ir 448 milrn in lengih
70 Union oisovict and rcrmioatcr 30 miln short olthc
Sociu1i.t Repvblics ussn/Turkcy/Romania tripoint.
23 Junc 1918

nust~alm/ X X X Th. cquidiriancc mcihd ha8bîrn
71 Prpul New Guinea vlilired lor firsthrec poinls in the
18Dcccmbcr 1978' Araiura Sea.Thcrcallcr ihc bovndary
ir non-«quidina",.

X X The boundary is ancxicnrion oiiha
Nururyl X X 1965boundary. 142miln in Ilngth.
12 Unilid Kingdom tîrminaiing at the U.K./DcnmarX/
12 Decrrnbrr 1978 Norray tripoint.

Venc7ucia/ X X X X X The bovndary comprisexlu0scgmcntr.
13 Duminicrn Repvblic Vcnczurla ha5vlilircd Curacaaoihr
1 Marrh 1q79 cas,and Aruba onIhr uar, as
bar<poinrfurdrrsmining rhc
bavndary.

~heboundary ir 33 milesin Inigth and
Denmrrk (Facrocs) X X X X extends(rom ihr U.K./Dcnmirk/
74 /Nuru"> Norway tripoin$0a pan' 1D miles
15 Junc1919 irom Denmark and Norway.
l I I I l l

Makd>~ld/Thailand X X X The boundrry ir 90 milrn in Icnglh and
75 !CulluiThailrnd) ,srminricai ihc Indonr3ir/
24 Oclokr 1919 Mala>sir/Thailand common Polni.

Frincc/Tunga X X X The agrrcrncnrtiputaics thai ihr
16 Il Jrnuiry1980 dîlimilalion bî in accordancc*ihs
aqu,di,lancc and in conrarmity
viih ihr application of (air principlsr.
----- -----
X X X In arcordancc 4th theagrcrmsnt. ihc
corvaRicrlPrnrnir Y. boundary ir a "mcdiîn linc whox
77n !çrribkrn Scïl pointarc al1quidiriani lrom the
2 ~~biurry 1980
points nearertthe baseïrom rhich ihc
width ol thterritorlsa ol cach
Staicii mrasurod".

.NO,yct>"rorcc TYPEOF GEOGRAPHICAL METHOD OF EFFECT OP
AGREEMENT RELATIONSHIP DELIMITATION GEOCRIPHICAL FUTURS

AGREEMENTS IN "
$4 CHRONOLOGICAL
ORDER
i;; ACCORDING TO
REMARKS
DATE OF
SIGNATURE

Cala Ria/Pinim X X X X
770 (Pacifik") In n-rdina.wirh the igrslmcnt. the
2 Fcbiuary 1980 boundaryYi "msdiin lin. whaw
pin* ar. il1 quidirfmm ihc
pin* of land neam10the hx from
rhich the ridih arihc ieniioriilwr~f
cich Slitr i. rnuluiod.'.

Miuriiiur/Frinec X X X Thebovndary ir 162mil- in Icngih
18 2 April 1980 andertrnds from th. Rcuni<in/
Tromdin/MauritiuLiipin10 Ipint
1W mil- from Mauritiui and
Rcunion.

unitrd stator x x x Row I~lsndandSurorw Islandire
19 Amcrici/
Cmk lilnnds uninhabitcd ha- kn givrn full
II Juno1980 cff-asbawpinir.

Vemzuela/Fr~nm X X
X The boundsry iauinrtilulsd hy the
80 Il July 1980 moridisn of62.48'Juui longitude.

r boundaryis an exisnii

Franct/Brazil X X X X
81 10Jinuary 1981 The outerlirnit of th. boundaryis noi
spiRsd. Thc boundai10ZW mila
rNmr anoichangcal arws or
appr0xim.,. quiva1sncs. AGREEMENTSIN

REMARKS

86 22 Cktobr 1981
navtical mil-. the continental shalf
hvndrry ii ~an.,itutrd bg the ouicr
limit al the bclandic E.E.Z.
A svbmarinc dcprcrnianhtu-n the
Jan Mayen Ridgc and lcslanuas
di.rsgardd.

Firncc/Au<iralii X X X X Thr boundary ir non-quidistant
87 (CoralSca) bsturçn tvrning points RI8 and R19.
A 4 Jsnuary 1982 wharc Ihc boundary iraurrnrnLord
Hovc Risr bsyond2W miles fiom ihc
<o.s,of th? pr,ics.

The lin. dslimits ihc hundary bstrcen
Frsncc/Au~iralia X X X
87 (Indian ksn) th Frrnçh E.E.Z. and the Auriralian
6 4 January1982 ZW-rnilt nîhing ronc.

Fra"cc/ X X X Permanentharhur uorkrand low.tidc
88 Unilcd Kingdom clrraiionr viihin 12milesof th. coaiis
of ihc partirs vrrc uiilircd an
24Junc1982 barcpaintr. [35-391 179

PART II. CONTINENTALSHELFAND MARITIME
BOUNDARYAGREEMENTS

lotroduction

This Part providesa comprehensiverecord of State practice in the
conclusion of agreements for the delimitation of maritime boundaries
beyond the outer limits of the territorial sea'. A distinction has been
made between boundaries that apply only to the continental shelf, and
boundaries that also apply to jurisdiction over the superjacent water
column. The latter boundaries are designated as "maritime boundaries".

Each agreement is accompanied by an illustration of the boundary,
prepared onthe basis of the information providedin the agreement or in
officialcharts attached thereto.

Where the boundary differs from an equidistance line to an extent
that would be apparent on the illustration, a hypotheticalequidistance
line has been shown. These hypothetical lines have been constructed
strictly according to the equidistance method except in the following
cases. In the illustrations of the boundaries between Abu Dhabi and
Dubai', Abu Dhabi and Qatar', Costa Rica and Panama', and Sharjah
and Umm al Qaiwains, islands have been ignored in the construction of

the hypothetical equidistance line in order to be consistentwith the prac-
tice of those States. Similarly, in the illustration of the boundary
between Colombia and Panama (Caribbean Sea)6, half effect only was
given to the uninhabited Albuquerque and Southeast Cays, and the dis-
puted Roncador and Northwest Rocks were disregarded as basepoints in
the construction of the hypothetical equidistance line. In the illustration
of the boundary between Swedenand Finland', the hypothetical equidis-
tance line has been constructed from the straight baselines used by the
parties in the delimitation of their territorialea.

Additional information, such as the location of the territorial sea
boundary, the existence of a joint resource exploitation area, straight
baselines from which the boundary has been drawn, or depth contours,
has also been provided whereappropriate. Although the scale on the
maps may differ, parallels of latitude and meridians of longitude have

been shownon each map as an indicationof scale.
Each agreement is identified by date of signature, date of ratifica-
tion where applicable, sourceof the text, and where it is known, the

jurisdiction asserted by each of the Parties in respect of the superjacent
waters. Generally a singlesource is provided forthe text of each agree-
ment. Many agreements have been obtained directly from the govern-

1Far the purposeof thisAnnex,the territoriseais taken ta ertend no more than
12 nautical miles in breadth.
Figure18.
' Figure 22.
' Figure77A and 77B.

' Figure8.
Figure55A.
' Figure36A and 36B.180 GULF OF MAINE [39-a]

ments concerned and no publishedsource has been located. Translations
from the original language have been provided by the Office of the
Secretary of State, Government of Canada. The agreements between
France and Spain and Colombia and Haiti are provided in the French
language only.

The followingsources havebeen used for published agreements:
Atlante dei Confini Sottomarini
(Atlas of the Seabed Boundaries)
edited by BenedettoConforti and Giampiero Atlas of the Seabed
Francalanci 1979 Boundaries

International Legal Materials I.L.M.
League of Nations Treaty Series L.N.T.S.

Limils in the Seas,
United States Department of State,
Bureau of Intelligenceand Research,
Office of the Geographer Limits in the Seas
New Direclions inthe Law oJthe Sea.
edited by Nordquist et al.. 10vols. New Directions

Treaties and Other International
Agreements of the United States of
America 1776 - 1949,Bevansed. T.I.A.S. (Bevans)
United Nations LegislativeSeries ST/LEG/SER.B

United Nations Treaty Series U.N.T.S. ANNEXESTûREPLYOFCANADA

CHRONOLOGICALLIST OFCONTINENTALSHELF
AND ,MARITlhll.:BOIJNDARYAGRF:KRIENTS
ACCORDIS<;TO DATEOF SICNATORE

[Noreproduced]

ALPtlABETICAI. I.ISï'OF<'ONl'1SES'l'AL St1EI.F AND
~1ARITI~lEBOUSDARY AGREEMENTS

[Norreproduced] 182 GULF OF MAINE

CONTINENTALSHELFAND MARITIME BOUNDARY
AGREEMENTS, TOGETHERWITH AN ILLUSTRATIONOFTHE
BOUNDARY,IN CHRONOLOGICALORDERACCORDING

TO DATEOF SIGNATURE

Agreement1

Date of sienat26eFebmarv1942
Date ofratikatio22~e~tembe1942
Source:205Lh'ïS 122

[Nat reproduced]

Agreement2

MARITIM BOUNDAR AYGREEME BETWEENCHILEAND &RU BYJOINT
DECUVUTIO ON THEMARITIMZEONE

Date of signat18August1952
Date of ratification:23Septembe1954
Pem 6May 1955
Source: LimiisintheSNo.86

[Nat reproduced]

Agreemen3

MARITIMBEOUNDAR AGREEME NETWEEN&RU AND ECUAWR BYJOINT
DECLARATI ONNTHEMARITIMZEONE
Date of signat18August1952
Dateofratification: 6May 1955
Ecuador7Febmary1975
Source: LimiisintheSNo.88

[Nat reproduced] ANNEXESTO REPLYOF CANADA 183

Agreement4

CONTINENTS AHLELBOUNDAR AGREEME NFIWEENNORWA AYNDTHEUNION
OFSOVIESTOCIALISREPUBLICS

Date of signature: 15Febmary 1957
Date of ratification: 24Apnl 1957

Date of signature: 29November 1957
Date of ratification: 17March 1958
Source: LimiintheSeas, No. 17

[Nol reproduced]

Agreement5

Date of signature: 22 Febmary 1958
Date of ratificaInforceon signature
Source: ST/LEG/SER.B/I 6,4W.

[Nol reproduced]

Agreement6

MARITIMBEOUNDAR AGREEMEN BEiWEEN SENEGM ANDGUINEA-BISSAU

Date of signature: 26Apnl 1960
Date of ratification: In force on signature
Source: LimiintheSens.No. 68

[Not reproduced]184 GULF OF MAINE

Agreement7

CONTINENTSAHLEBOUNDAR AGREEME NEIWEEN THNETHERLAN ANS
THE &DERALREPUBL IFGERMANY

Date of signature:ember 1964
Date of ratification: 18September1965
Source: 550UN73123

Agreemen8

CONTINENT SHELFBOUNDAR AGREEMEN BTWEENSHARIA HND
UMM ALQAIWAIN

Date of signaîure: Undated 1964
Dateof ratification: In forceon signature
Source:United StatesCounter-Memorial, Deposited Materials,
Vol.31,Do?.No. 158

Agreement9

CONTINENT SHELBPOUNDAR AGREEME NETWEENNORWA ANDTHEUNITED
KINGDOM

Date of signature: 10March 1965
Date of ratification: 29June 1965
Source:551 UN73214

[Norrepduced] ANNEXESTOREPLYOFCANADA 185

Agreement10

Dateof signature:20May 1965
Dateof ratification:25May1966
Source566 UNTS37

Agreement11

Dateof sicnature:9June1965
Dateof rat%&ion: 27May1966
Source570UNTS91

[Norreproduced]

Agreement12

CONTINENT SHLELFOUNDAR AYGREEME BFTWEENDEN~AR XNDTHE
FEDERA LEPUBUC OGERMAN (YALTICEA)
Dateof signature: 9June1965
Dateof ratification:7June 1977

Source570UNTS9 1;andGovemmentof Denmark

[Norrepmducd]186 GULF OF MAINE

CONTINENTS ALELFBOUNDAR YGREEMEN BETWEEN THENETHERLAN DND
THE UNITEDKINGDOM
Date of signature: 6 Onobcr 1965

Date of ratification: 23 December 1966
Source: 595 UNTS13
AMENDINPGROTOCOL

Date of signature: 25 November 1971
Date of ratification: 7 December 1972
Source:ST/LEG/SERB/I6, p. 430

[Nat reproduced]

Agreement14

CONTINENTS AHLELBOUNDAR AGREEMEN BTTWEENDENMAR KNDNORWAY
(NORTHSm)

Date of signature: 8 December 1965
Date of ratification:e 1966
Source:63UNTS 71

Date of signature: 24April1968
Date of ratificatiforcon signature
Source: ST/LEG/SERB/I6,p. 412

[Nooreproduced] ANNEXESTO REPLY OFCANADA

Agreement15

CONTINENTS ALELFBOUNDAR AYGREEMEN BTWEEN THEUNITEDKINGWM
AND DENMARK

Date of signature: 3 March 1966
Date of ratification: 6 Febmary 1967
Source: 59UNTS 209

AMENDINA GGREEMENT

Date of signature:November 1971
Date of ratification: 7 December 1972
SourceST/LEG/SERB/16, p.431

[Not reproduced]

CONTINENTS UH. EBOUNDAR AGREEMEN BTTWEEN FINLANDAND THUNION
OF SOVIETOCIALISREPUBLIC(BALTIC&A)

Date of signature: 5 May 1967
Date of ratification: 15March 1968
Source:640UNTS III

[Nol reproduced]

Agreement17

CONTINENT SHLELFBOUNDAR AYGREEMEN BXWEEN ~ALY ANDYUGOSLAVIA

Date of signatu8January 1968
Date of ratification: 21January 1970
Source: LimitsintheSeas,No. 9

[Not reproduced] Agreement18

Dateof signatur18February1968
Dateof ratification:Inforceonsignature
Source: NewDirections.Vol.V,p. 214

[Not reproduced]

Agreement19

CONTINENT SHLELFOUNDAR AYGREEME BNTWEENSWEDE AND NORWAY

Dateof signature:24Ju1968
Dateof ratificati18March 1969
Source:ST/LEG/SERB/I6, p. 413

[No:reproduced]

Agreement2û

Dateof sienature:24Oct~b1~ ~
Dateof ratkcation: 29~anu1969
Source:696UMS 189 ANNEXETOREPLY Of CANADA
189

Agreement21

Dateof signature:29October1968
Dateof ratification:16April 1969
Source:768UNTS253

[Nolreproduced]

Agreemen t2

CONTINENT SHELBFOUNDAR AYGREEME BETWEENQATA AND ABU DHABI

Dateof signature:30March 1969
Dateof ratification: Inon signature
Source:ST/LEG/SERB/l6, p. 403

[Nolreproduced]

Agreemen23

Dateof signatur28August1969
Dateof ratification:13May 1970
Source:769UNTS 75

[Notreproduced] Agreement4

CONTINENTSAHLELBOUNDAR AGREEME ETWEENIRANANDQATAR

Date of signature: 20September 1969
Dateof ratification: 10May 1970
Source: 787TS 165

[Not reproduced]

Agreemen25

CONTINENTSAHLEFOUNDAR AYGREEME NTIWEEMALAYS INDINDONESIA
(MALACCSATRAITNDSOUTHCHINASm)
Date of signature: 27October 1969
Date of ratification: 7 November 1969

Source: ST/LEG/SER.B/16, p. 417

[Nat reproduced]

Agreemen26

CONTINENTSAHLELBOUNDAR AGREEME NTTWEENTHFEDERA LEPUBLIC OF
GERMAN YNDDENMAR(KNORTHSU)

Date of signature: 28January 1971
Date of ratification: 7 December 1972
Source: ST/LEG/SER.B/16, p. 424

[Nat reproduced] ANNEXESTOREPLYOFCANADA 191

Agreemen2t7

CONTINENTS ALELBDUNDAR AGREEME NTTWEEN mENEIHERUND SND
THEFEDERAR LEPUBUOF GERMANY

Dateofsignature28Januar1971
Dateof ratification: 7 Dec1972r
Source:ST/LEG/SERB/I6,p. 419

[Nor reproduced]

Agreemen2t8

CONTINENTSAHLELBOUNDAR AYGREEMEN BTWEEN AUSTRAL IND
INDONES(IARANRA SEAAND P~clnc OCEAN)
Date of signatu18May 1971

Date of ratifica8November1973
Source: NewDirections,Volp91V,

[Nor reproduced]

Agreemen2t9

CONTINENTS ALELFBOUNDA RGYREEMENBTE N IRANAND BAHRAIN
Date of signatu17June1971
Date of ratifica14May 1972

Source:82UNTS 227

[Nor reproduced]192 GULFOF MAINE

Agreement30

Date of signature: 20August 1971
Date of ratification:ember 1978
Source: Limits intheSeos.No. 89

[Not reproduced]

Agreement31

Date of signature: 25 Novernber 1971
Date of ratification: 7 December 1972
Source:880UNTS 185

[Nor reproduced]

Agreement32

CONTINENTS AHLELBOUNDAR AGREEMEN BETWEENTHAILAN AND INDONESIA
Date of signature: 17December 1971
Date of ratification: 16July 1972
Source:ST/LEG/SERB/18, p. 437

[Not reproduced] ANNEXESTO REPLYOFCANADA

Agreement33

CONTINENTS HLELBOUNDAR AYGREEMENBETWEENMAIAYSI AND ~NDONES~A
(MALACCS TRAIETXT.)

Date of signature: 21 December 1971
Date of ratification: 16July 1972
Source: ST/LEG/SER.B/ISp429

[Not reproduced]

Agreemen34

CONTINENTS HLELBOUNDAR AYGREEME NWTEEN MALAYS IND'THAILAND
(ANDAMA SEA)
Date of signature: 21 December 1971
Date of ratification: 16July 1972

Source: ST/LEG/SER.B/IB, p. 429

[Nor reproduced]

Agreemen35

Date of signature: 21July 1972
Date of ratification: 12lune 1975

Source: Limitsin theSeas,No. 73

[Norreproduced] Agreement36

CONTINENT SHELFOUNDARA YGREEMEN BTTWEENFINLANDNDSWEDEN

Date of sinnature: 29Se~tember1972
Daie of ratificarion: 15January 1973
Sourre: ST/LEG/SEK.B/ 18.p. 439

[Not reproduced]

Agreemen37

CONTINENTSALELBOUNDAR AGREEMENBETWEENAUSTRAL IND
INDONES(IAIMOAND ARAFUR AEAEXT.)
Date of signature: 9 October 1972

Date of ratification: 8 November 1973
Source: ST/LEG/SER.B/18, p. 441

[Not reproduced]

Agreement38

MARITIM EOUNDAR AGREEME NTTWEENAUSTRAL INDINDONESIA
(ARAFURSAEAEXT.)

Date of signature: 26ry 1973
Date of ratification: 26 November 1974
Source:ST/LEG/SER.B/18, p. 444

[Not reproduced] ANNEXES'IOREPLYOF CANADA 195

Agreement39

MARITIMBEOUNDAR AGREEMEN BTTWEENAXGENTINAAD URUGUAY

Daie of signature: 19November 1973
Date of ratification:mary1974
SourceGovernmeni of Argcntinü

[Nor reproduced]

Agreement40

CONTINENTS HLELBOUNDAR AGREEME ETWEEN DENMAR ANDCANADA

Date of signature: 17December 1973
Date of ratification: 13March 1974
SourceST/LEG/SERB/18, p. 447

[No! reproduced]

Agreement41

CONTINENTSAHLELBOUNDAR AGREEMEN BTIWEENSPAINANDFRANCE
Date of signature: 29ry 1974
Date of ratification: 5April 1975

SourceST/LEG/SER.B/19, p. 445

[Nor reproduced] Agreement42

CONTINENTS HLELBOUNDAR YGREEMENAND ANAGREEMEN TOTESTABLISH
AJOINTDEVELOPMEZ OTNEBETWEEJAPANAND THEREPUBLICFKOREA
Date of signature: 5 Febmary 1974
Date of ratification: 22June 1978

Source:Government of Japan

[Not reproduced]

Agreement43

CONTINENTSAHLELBOUNDAR AGREEMEN BTTWEENITALAND SPAIN

Date of signature: 19ry 1974
Date of ratification: 16November 1978
Source: hiiintheSeas.No. 90

[Nol reproduced]

Agreement44

CONTINENTS HLELBOUNDAR AYGREEMENBETWEENIRANANDOMAN

Date of signature: 25July 1974
Date of ratification: 28 May 1975
Source: ST/LEG/SER.B/19, p. 450

[Noi reproduced] Agreement5

CONTINENTS AHELBOUNDAR AGREEME NETWEENINDIAANDINWNESIA
Date of signatu8August1974
Date of ratifica17December 1974
Source: LimitsintheSeNo.62

[Not reproduced]

Agreement6

CONTINENTS ALELFOUNDAR AGREEME NTTWEENIRANAND THE
UNITEDARAB EMIRATES
Dateof signatur13August1974
Date of ratification: Not yetratified
Source: LimitsintheSeNo.63

[Not reproduced]

Agreement7

MARITIM BOUNDAR AGREEME NTTWEENSENECA LNDGAMB~A
(NORTHAND SOUTH)
Dateof signatu4eJune1975
Date ofratificat27August1976
Source:LimitsintheSeNo.85

[Nnt reproduced] Agreemen48

MARITIMBOUNDAR AGREEME NTWEENCOWMBI AND ECUADOR
Date of signature: 23August 1975
Date of ratification: 22December 1975
Source:ST/LEG/SER.B/19p.398

[Nol reproduced]

Agreemen49

CONTINENT SHLELFOUNDAR AGREEME NETWEENINDONES IADTHAILAND
Date of signature: 11December 1975
Date of ratification: 18 1978
SourceOfficeof the Geographer, UnitedStatesDepartment of State

[Nor reproduced]

Agreement50

CONTINENTS ALELBOUNDAR AGREEME NTTWEENPORTUGA AD SPAIN
(NORTHAND SOUTH)

Date of signature: 12Febmary 1976
Date of ratification: Not yetratified
SourceGovemment of Spain

[NOIreproduced] ANNEXES TOREPLYOFCANADA 199

Agreement51

MARITIM BOUNDAR AYGREEME NTWEEN INDIAANDSRILANKA
(BAY OFBENGA LND INDIANOCEAN)

Date of signature: 23March 1976
Date of ratification: 10May 1976

Date of sienature: 22 November 1976

Date of ratification:uary 1977
Source: ST/LEG/SER.B/19, p. 402

[Nor reproduced]

Agreemen52

CONTINENTS ALELFBOUNDAR AGREEMEN BTTWEENMAURITAN IND
MOROCCO

Date of signature: 14April 1976
Date of ratification: Not yetd
Source: Govemment of Morocco

[Nor reproduced]

Agreement53

MARITIM BOUNDAR AGREEMEN BTTWEENKENYA ANDTANZANIA

Date of signature: 9 July 1976
Date of ratification: In force on signature
Source: Lirnirsin theSeas, No. 92

[Nor reproduced] Agreement54

MAR~T~B MEUNDAR AYGREEME NET.EEN'CUBA ANDMEXICO
.
\ Dateof signature:26July1976
Dateof ratification: Inforceon signature
Source:Governmentof Mexico

[Nol reproduced]

Agreement55

Dateof signatur20November1976
Dateof ratification:November1977
Source: Lnnitsin fheSea No. 79

[Nol reproduced]

Agreement56

MARITIM BOUNDAR AGREEME BEï'WEEINDIAAND MALDIVES

Dateof signature:28 December1976
Dateof ratification: 8June 1978
Source: LimiintheSeas,No. 78

[Nol reproduced] ANNEXESTO REPLYOF CANADA 201

Agreement57

CONTINENTS ALELFBOUNDAR AYGREEME NTTWEENINDIAAND ~NDONESIA

Date of signature: 14January 1977
Date of ratification: 15August 1977
Source: Govemment of lndia

[Nor reproduced]

Agreement58

MARITIM BOUNDAR AYGREEMEN BTEEN THEUNITEDSTATEOF ~ER~CA AND
THEUNIONOF SOVIETOCIALISREPUBLICS

Date of signature: January-Feb~ary 1977
Date of ratification: In force on signature
Source: 11TIAS(Bevans)1216;hl. B.Feldman and D.Colson,"The Maritime
Boundaries of the United States",nJournalofInremalioLow,
Vol.75, No. 4, 1981,pp. 729-730

[Norrepmduced]

. Agreemen59

MARITIMBEOUNDAR AYGREEMEN BTlWEENCOLDMB IND COSTARJCA

Date of signature: 17March 1977
Date of ratification: Not yet ratified
Source:Govemment of Colombia

[Nol reproduced]202 GULFOF MAINE

Agreement60

CONTINENTSAHLELBOUNDAR AGREEME NTTWEENITALYANDGREECE

Date of signature:ay 1977
Date of ratification: 12November 1982
Source:Govemment of Greece

[Nor reproduced]

Agreement61

MARITIM BEOUNDAR AGREEMEN BTTWEENHAIT INDCUBA
Date of signature: 27October 1977
Date of ratification: 6January 1978
Source: NewDirecri, ol.VIII, p. 69

[Nor reproduced]

Agreement62

MARITIM BOUNDAR AGREEMEN BTI'WEENTHUNITEDSTATEOF AMERICAAND
CUBA

Date of signature: 16December 1977
Date of ratification: Not yet ratified
Source:Officeof the Geographer, United States Depariment of State

[Nor reproduced] ANNEXESTO REPLY OFCANADA 203

Agreement63

Date of signature: 13January 1978
Date of ratification: 15Febmary 1979
Source:Govemment of Colombia

[Nof repmduced]

Agreement64

MARITIM BEOUNDAR AGREEMEN BTTWEENCOWMBI ANDHAITI

Date of signature: 17Febmary 1978
Date of ratification: 16Febmary 1979
Source: Govemment of Colombia

[Nofreproduced]

Agreement65

MARITIM EOUNDAR AYGREEME NETWEENVENEZUE LAD THUNITEDSTATES

OFAMERICA
Dateof sigiiatu28March 1978
Date of ratification: 24 November 1980
SourceOfficof the Geographer, United StatesDepartment of State

[Nof repmduced]204 GULFOF MAINE

Agreement66

MARITIM BOUNDAR YGREEMEN BTWEEN VENEZUELAAD THENETHERLANDS
(ARUBA,CURAÇAO .ONAIRSE, BA, VEISLAND)

Date of signature:arch 1978
Date of ratification: 15December 1978
Source:Government of the Netherlands

[Nni reproduced]

Agreement67

MARITIM BOUNDAR AYGREEME BETWEENTHEUNITEDSTATE SFAMERICAND
MEXICO(CARIBBEASNAAND PAClnCOCEAN)

Date of signature: 4 May 1978
Date of ratification: Not yet ratified
Source:Officeof the Geographer, United StatesDepartment of State

[Nooreproduced]

Agreement68

Date of signature: 22June 1978
Date of ratification: 15December 1978
Source:Govemment of lndia

[Norreproduced] ANNEXESTO REPLYOF CANADA 205

Agreement69

MARITIMBEOUNDAR AGREEMEN BETWEEN SWEDENAND THEGERMAN
DEMCERAT RIEPUBLIC

Date of signature: 22June 1978
Date of ratification: 20 December 1978
SourceGovemment of Sweden

[Nor reproduced]

Agreement70

Date of signature: 23June 1978
Date of ratification: 15May 1981
SourceGovemment of Turkey

[Nor reproduced]

Agreement71

MARI~MB EOUNDAR AYGRBEME NiWEEN AUSTRAL AAD PAPUANEWGUINU
Date of signature: 18December 1978

Date of ratification: Not yetratified
Source:Govemment of Australia

[Nor reproduced] Agreement72

F'ROTOCOSUPPLEMENTA TRYHECONTINENTS ALELBOUNDAR AGREEMENT
OF10MARCH 1965BETWEENNORWA YND THEUNITEKINGDOM

Date of signature: 22December 1978
Date of ratification: 20February 1980
Source:Atlasofrhe SeabedBoundaries.p. 30

[Nor reproduced]

Agreemen73

MARITIMBEOUNDAR AGREEMEN BTWEEN VENEZUELANAD THDOMINICAN

REPUBLIC
Date of signat3March 1979
Date of ratification: 15January 1982
Source:Govemment of Venezuela

[Nor reproduced]

Agreement74

MARITIM BOUNDAR AGREEMEN BTTWEENDENMAR AND NORWA(YFAEROES)

Date of signature: 15June 1979
Date of ratification: 3June 1980
Source:Govemment of Denmark

[Norreproduced] ANNEXESTOREPLY OF CANADA

Agreement75

CONT~NENT SHLELBOUNDAR AYGREEME NETWEENMALAYS AND THAILAND
(GULFOFTHAIUND)

Date of signature: 24October 1979
Date of ratification:y 1982

MEMORAND UFMUNDERSTAND INTHE ESTABLISHM ENATJOINT
AUTHORITFYR THEEXPLOITATIOFTHE SOURCES OF THSEABED

Date of signature: 21 February 1979
Date of ratification:ober 1979
SourceGovernment of Malaysia

[Nor reproduced]

Agreement76

MARITIMBEOUNDAR AYGREEMENBETWEENFRANC END TONGA

Date of signature: II January 1980
Date of ratification: In forceon signature
SourceGovernment of France

Thegeographical co-ordinatesof pointsforthismaritimeboundary are not yet
available and the boundary depicted in Figure76is hypothetical.

[Nor reproduced]
-

Agreement77

MARITIM BOUNDAR AYGREEME NETWEENCOSTACA AND PANAMA
(CARIBBEASEAAND PAClFOCEAN)

Date of signature: 2 February 1980
Date of ratification: IIy 1982
SourceOfficeof the Geographer, United States Department of State

[Nor reproduced]208 GULF OF MAINE

Agreement78

MARITIMB EOUNDAR AGREEMEN BiWEEN MAURITIU ANDFRANCE

Date of signature:pnl 1980
Date of ratification: In force on signature
Source: Government of France

[Not reproduced]

Agreemen79

Date of signature: 11June 1980
Date of ratification: 8 September 1983
Source:Govemment of New Zealand

[Norreproduced]

Agreemen80

MARlTlMBEOUNDAR AGREEMEN BETWEENVENEZUEL AADFRANCE

Date of signature: 17July 1980
Date of ratification: 28January 1983
Source:Government of Venezuela

[Nor reproduced] ANNEXESTO REPLYOF CANADA
209

Agreement81

MARITIM BOUNDAR AYGREEME NETWEEN BURM AND lkA1l.A~~

Dateof signature: 25July 1980
Date of ratification: 12April 1982
Source: Government ofiland

[Norreproduced]

Agreement82

TREATYBETWEENNEWZULAND ANDTHE UNITEDSTATESF ~ERICAON THE

DELIMITATIOONTHEMARITIM BOUNDAR BEiWEENTOKEUU AND THEUNITED
STATEOF AMERICA

Date of signature: 2 December 1980
Date ofacfficai3oSepremher 1983
Source: Government of New Zealand

[Norreproduced]

Agreemen83

CONTINENTSAHLELBOUNDAR YGREEMEN BTTWEENINGQNESIANDPAPUA
NEWGUINFA (PACIFICCEANEXT.)

Date of signature:cember 1980
Date of ratification: 10July 1982
Source: Government of Australia

[Norreproduced]210 GULF OF MAINE

Agreement84

MARITIMB EOUNDAR YGREEMEN BTTWEENFRANC AND BRAZIL
Date of signature: 30January 1981
Date of ratification: Not yet ratified
SourceGovemment of Brazil

[Natreproduced]

Agreement85

MARITIMBEOUNDAR AGREEMEN BETWEENST.LUCIAANDFRANCE

Date of signature:rch 1981
Date of ratification: In force on signature
Soume:Government of St. Lucia

[NOIreproduced]

Agreement86

CONTINENTSAHLELBOUNDAR AGREEMEN BEN'EENNORWA YND ICELAND

Date of signatu22October 1981
Date of ratification:e 1982
Source:Government of Norway

[NOIreproduced] ANNEXESl'OREPLYOFCANADA 211

Agreement87

MARITIM BEUNDAR AGREEME NElWEENFRANCAND AUSTRAL(IAORASLEA

AND INDIOCEAN)
Dateof signatu4eJanuary1982
Dateof ratifica9January1983
Source:GovemmentofAustralia

[Norreproduced]

Agreement8

CONTINENT SHLELFOUNDAR AYGREEME BETWEENFRANC END THUNITED

KINGDOM
Dateof signature: 24June 1982
Dateof ratification:4 Febmary1983
Source:Governmentof theUnitedgdomof GreatBritain andNorthem

lreland

[Not reproduced] CERTIFICATION

1,the undersigned, L. H. Legault, Q.C., Agent for Canada, hereby cer-
tify that the copy of each Agreement contained in Volume 1 of
the Annexes to the Reply Submitted by Canadas an accurate copy of
the text of the Agreement availabie to the Government of Canada,
whether prepared by photographic meansor by transcription.

(Signed) L. H. LEGAULTQ,.C VolumeII

SUPPLEMENTA EVYIDEN CND MISCELLANED OOUSUMENTS

PREFACE

Part 1of this Annex is submitted in support of Part II. Chapter V
of the Reply Submitted by Canada. It presents supplementary statistical
evidence of the economic dependence of southwest Nova Scotia on
Georges Bank and demonstrates the absence of any comparablend-
ence in the United States.

Part II of this Annex is also submitted in support of Part II,
Chapter V of the Reply Submitted by Canada. It presents supplemen-

tary evidence of the non-statistical and statistical history of the
Canadian fisheries in the Georges Bank area and demonstrates that the
Canadian fisheries in that area have deep historical roots.

Part III of this Annex is submitted iii supporof Part II.
Chapter IV of the Reply Submitted by Canada. It respond- tand
demonstrates the erroneous assumptions of - certain arguments
made by the United States concerning United States geophysical survey
permits.

Part IV of this Annex reproducescellaneous documents cited in
support of contentions made in the Reply Submitted by Canada. PART1. THE HUMAN DIMENSION:
SUPPLEMENTARYSOCIO-ECONOMICEVIDENCE 1. Much evidence has been presented in the Canadian Mcmorial

and Counter-Memorial respecting the important contribution made by
the Georges Bank fishery to Nova Scotia, and in particular to southwest
Nova Scotia, which is the closest landfall to the disputed fishing grounds
on Georges Bank. The benefits of this fishery are widely distributed
throughout the regional economy of Nova Scotia. The United States, in
the Annexes to its Counter-Memorial (Volume III, Annex 4. Appendix
B), concedesthat the dependenceof Nova Scotia on the disputed fishing

grounds is greater than that of New England; nevertheless, elsewherein
its Counter-Memorial, the United States endeavours to dismiss as unim-
portant the economic impact which the United States line, if adopted,
would have on Nova Scotia. Accordingly. this Part presents further sta-
tistical evidence of the economic dependence of Nova Scotia upon
Georges Bank, and the lack of any comparable dependenceon ihe part
of New England in general and Massachusetts in particular.

2. The body of this Part summarizes and places in context the
evidence presented in the technical appendices. Appendix 1 presents a
detailed analysis of the consequencesof the United States line for the

economy of Nova Scotia. Appendix 2 reproduces an economic base
rnodel for southwest Nova Scotia for 1971 and 1981. which both
explains and calculates the "multiplier" effect by which the initial eco-
nomic shock of loss of accessto Georges Bank would be magnified as it
works its way through the regional econorny. Appendix 3 examines the
dependenceof the small communities of southwest Nova Scotia on the
resourees of Georges Bank, focusing on the Clark's Harbour area.

Appendix 4 records the relevant activity of the small vesse1fleet of
southwest Nova Scotia on the disputed fishing grounds. Appendix 5 out-
lines the growth and diversification of the fish processing industry in
southwest Nova Scotia in reliance on continuing aecess to Georges Bank.
Appendix 6 reviews Canadian and United States fisheries policies and
government assistanceto the fishing industry. t51
CHAPTER 1

SO\I\I,\RY OF i.vl~)i.\rtIII:\,[ .TIIFI)ISPI TI:DFISIIISC C;ROU\DS
RE OF F\R CRMlER E<OVO\llC I\lt'ORl'\hCF TOC 4\.41).\ \YI>
O\': SCOT1 TII:\S THE\ ARE10 'TIIt.I SI'Ii.11ST,\TES ,\\1>
MASSACHUSETTSIN TERMS OF EMPLOYMENTAND

3. Canada and the United States agree that employment and

income (gross domestic product or GDP) are appropriate measures for
expressing the significance of fishing activity in its economic dimension1.
With respect to the factor of non-disturbance of established economic
interests, the United States has conceded in the Annexes to its Counter-
Memorial (Volume III, Anncx 4, Appendix B), that more jobs and more
income are created in Canada by the Canadian fishery on Georges Bank
than are created in the United States by the corresponding United States
fishery. This concession is made in absolute terms.

4. Equally important, however, is the relatively greater depen-
dency of Nova Scotia on Georges Bank compared with the relative lack
of economic dependence on the disputed fishing grounds on the part of
the United States and, in particular, Massachusetts. This difference
arises from the contrasting structure of the two econornies. and the much

greater social and economic importance attached to the fishing industry
in the five counties of Nova Scotia than in the nine counties of eastern
Massachusetts.
5. Appendix 1 to this Part provides further evidence in support of

the contentions in Canada's Counter-Memorial that the regional
economy of southwest Nova Scotia, in comparison with Mas5achusetts,
is rural and one-dimensional. Southwest Nova Scotia is not as disadvan-
taged as some other areas of Atlantic Canada. where average unemploy-
ment rates are 3 to 4 percentage points higher than the rate for Canada
as a whole, and personal income per capita is some 20 to 35 percent
lower than the national average2. But southwest Nova Scotia has a rela-
tively small population and a narrow economic base. Its communities
depend heavily on financial transfers from the federal government to
maintain a standard of health, education and general government ser-

vices comparable to that enjoyed in the more prosperous regions of the
country. The fishing industry is an important element in the regional
economy in general, and in some areas is the sole source of employment
and income. Southwest Nova Scotia accounts for the largest portion of
the value of fish landings in Nova Scotia and for thc highest proportion
@ of individuals dependent on the fishery for their livelihood [Figures 1
and 21. To the extent that southwest Nova Scotia enjoys a marginally
higher standard of living than that prevailing in Atlantic Canada gener-
ally, this situation is owed to its continued access to the fishing grounds

of Georges Bank.

'United Stores Counter-Mernorial, Soeio-EconAnncx, Vol.IIIAnner 4, p. II.
para. 10.
'CanadianMemonal,Annexes,VolIV,sec. 1,TablesA-l andA-2.161 ANNEXES IO REPLY OFCANADA 217

6. Eastern Massachusetts. in contrast, has a broadly based

economy powered by a strong manufacturing sector. Its rate of unem-
ployment is generally lower than the United States average, and its
wages are generally higher'. The fishing industry is a small and declining

element in its diversified economy, and therefore fluctuations in the
value of its fishery are of lesssignificance to its population.

7. To assessthe relative importance of the Georges Bank fishery
to the economies of Nova Scotia and Massachusetts, the Parties have
agreed that two criteria are of paramount interest':

(a) the contribution of the disputed fishing grounds to gross domestic
product; and

(h) the contribution of the disputed fishing grounds to employment.

The analysis in the following sections usesCanada's economic estimates

in relation to southwest Nova Scotia and the United States economic
estimates in relation to New England.

Section 1. Contribution of the Disputed Fishing
Grounds to Cross Domestic Product

8. The United States Counter-Memorial asserts that southwest

Nova Scotia fishermen in general receive higher incomes than fishermen
elsewhere in the province'. In fact. this is true in large part because the
Georges Bank fishery yields highcr than average returns to labour and
capital when compared with other major fisheries of the Atlantic

Region. Three factors account for this:
(a) the principal species harvested, ihe sea scallop. commands a market
price significantly higher per unit of weight than other species:

(b) the sea scallop can be harvested and processed with greater effi-
ciency than other species. thus providing processors with higher

returns: and
(c) the traditional groundfish species (cod and haddock) are of greater

than average size and of higher quality than the same specicscaught
in most other areas to the north.

'The unemploymenrtaie in Masaachurcits1. 98was 5.6 percentwhilcihat of iheUnited
States was 7.1 percent. Pcr cnpita person income in Massachusetts.1980 wïs
U.S.Sl0.039 comparedto the nationaavcrageof U.S.S9.480.Emplqvmrtrr ond Eorn-
ingc United StatesDepartmcntof Labor.Burenuof Labor Statistics.Vol. 29.Na12.
Washington.GovernmeniPriniing Officc. Deccmber 1982. p. 6.Suri,e,vO/ Correni
BusinessU. nited SintesDepartmental Cornrncrce.Bureau of EconomicAnalyris.Vol.
62. No. 8. Washington.GovernmentPrintingOlfice. Augurt 1982. p. 57. Slolisiicol
Absrrocr"/th? Unircd SIOIPS.IOSI. UnitedStatesDepartmentolCommerce. Bureau of
theCensus.p. 392.SecDocurncntaryAppendix1. Documents1-3.
'UniiedSroics Counvr-hien~orial. Sociu-Econoniic Annei-. Vol. III. Annex 4. pp. 12-19.
paras.I 1-20.
'Unircd Srares Counrer-Mmioriol. Sorio-Economir Annes. Vol. III. Annex 4. p. 36.
para.45. fwtnote 3.218 GULF OF MAINE [71

9. The analysis set out in Appendix I to this Part demonstrates
that the contraction of fishing industry operations in Nova Scotia that

would result from loss ofaccess to Georges Bank would produce a direct
decline in GDP of $64 million annually'.

10. For the reasons set out in Canada's Counter-Mernorial, the
profitable Georges Bank fishery is able to support a substantial segment
of the offshore fleet and related infrastructure, and also serves as an
important source of revenue for the small vesse1fleet. The "ripple effect"
of a dccline in the Georges Bank fleet would multiply the initial reduc-

tion in GDP as the downturn worked its way through the economic sys-
tem. Canada estimates this further drop in GDP at $82 million
annually'. If the total drop of $146 million was concentrated in south-
West Nova Scotia, it would represent a decline of 17 percent of the
annual regional GDP of southwest Nova Scotia [Figure 31.

II. The United States, on the other hand, claims that its Georges
Bank fishery contributes a total of approximately U.S.$58 million to the

New England economy? This represents 0.1 percent of the regional
economy of eastern Massachusetts. The United States does not empha-
size this relatively insignificant drop in GDP:/irst, because this income
"loss" is likely recoverable from the large part of Georges Bank that
would be left within undisputed United States jurisdiction; and secondly.

because the United States does not suggest that a decline in GDP of this
magnitude (even if it occurred) would have any significant impact on the
economic vitality of Massachusetts.

12. In making ils assessment of relative economic dependence,
therefore. the Court is invited to weigh a loss of $146 million in a
regional GDP of $860 million insouthwest Nova Scotia, against a loss of

U.S.$58 million in a regional GDP of U.S.$51.500 million in eastern
Massachusetts'. Expressed in terms of income. therefore, Canada's
dependence on the disputed fishing grounds is approximately 150 times
greater than that of the United States.

6Appendix 1. Table 1. p. 32. Data from 1980. thc latest year for which informiison
availablc on most variables under conrideratioare ured throughout PartI of this
Annex.
'Appendix 1.sec.1.Table 1, p. 32.

BAppcndix 1.Table 2.p. 33.
sThe ninc cuunties of eastern Massachusettsaccount for 79 percent of the total state pay-
roll in 1980. It is therefore assumed thnt thcse counties account for 79 percent of state
GDP. MassachusettsGDP in 1980was U.S.1665.154million. Thereforç the GDP of enst-
ern Massachusetts is estimîted to be U.S.1651.500milliCuunry BiisincsPorrrrnr.
1980. Mossachus~rrr.United Staics Department of Commerce, Bureau of the Census.
CBP-80-23. March 1982, Table IE. p. 21. (Hereinafter citas Counry Busines Psot-
rerm 196'.Mossorhustrtr.) DueIo thenumber of references io this document. exccrpts
have not beenappended to this Volume. The document haï been depasitcd in full with
Canada's Reply.New Englond Eronomir in di coi or.^,Federal Reaerve Bankof Boston.
Boston. MassachusettsJune 1982. p. A-5. See Documentary Appendix 2. [8-91 ANNEXES IOREPLY OF CANADA

Section II. Contribution of the Disputed Fishing

Grounds to Regional Employment

13. A second useful comparison is to measure the number of jobs
put at risk by the respective claims of the Parties. Appendix I to this

Part demonstrates ihat the loss of accessto Georges Bank would result
in the permanent disappearanee of approximately 2,250 full-time jobs in
direct fishing activity in Nova Scotia, 1,550 in fish harvesting and 700 in
fish processinglO.The loss of thesejobs would be confined to southwest

Nova Scotia. Manufacturing supply and service companieswhose opera-
tions depend in whole or in part on the fishing industry would also be
adversely affected as fishing activity declined. The reasons for this
"multiplier" effect are outlined in Appendix 2. This wider impact would

ultimately result in further losses of employment. Canada estimates
these further lossesat about 1,350 full-time jobs". Thus, the total per-
manent loss of employment arising from loss of accessto Georges Bank
would be in the range of 3.600 full-time jobs. This represents 8 percent
of the employed work force in southwest Nova Scotia12.

14. The United Staies h:is estimated that the northeastern por-

tion of Georges Bank supports 430 jobs in fish harvesting and 453 jobs
in fish processing in New Englaiid. The United States nsserts ihat these
jobs, in turn, indirectly support another 617 jobs". Thus toial employ-
ment claimcd by the United States to be directly or indirecily supporied

by its fishery on the northeastern portion of Georges Bank is 1,500jobs.
This represents0.08 percent of the regional work force of eastern M:issa-
chusetts". But. in Tact.the United States does not daim that even these
jobs would necessarily be at risk if the Court adopted the single mari-

time boundary proposed by Canada, becausemore than half of the fish-
ing grounds of Georges Bank would remain within undisputed United
States jurisdiction. (Under the United States definition of Georges Bank,
the area within undisputed United States jurisdiction is considerably

greater still.)
15. In assessingthe relative economic dcpendcnce of thc Parties

on the disputed fishing grounds, therefore. the Court is invited to wcigh
the loss of 3,600 jobs in a regional employment base of 47,000 jobs in
southwest Nova Scotia. against the possible loss of 1.500 jobs in a
regional employinent baseof 1,780.300jobs in easiern Massiiçhusetts. In

employment terms, accordingly, Canada's dependence on the disputed
fishing grounds is 100 limes greater than that of the United States.

16. On the basis of the income and employment analysis set out
in Appendix 1, it is clear that Canada has a far greater economic

'OAppcndix1.sec.II.pp. 34-35. paras.3-6.
" Appendix 1.sec.1.Table 1. p. 32.
'ThL,ohotir Force. 198SiaiisiiCanada. Caialogue 71-001. 1980.Tablc 110.p. 130.
Sçç DucurnentaryAppendix 3.

"Unircd Siiircr Coiirrr~r-h!o,8o, ocio-Eco,zo»i,ltjiznVol. III. Anner 4. Appendix
B. Iniroduciion. Tab2.p. 3.
"Couniy Burinrr Pr<irirrn1980.hlorrirchrrrerTable 1E. p. 21220 GULF OFMAINE Il0]

dependence on the disputed fishing grounds than does the United States.
This conclusion holds true whether dependence is measured in absolute
terms, i.e.. the total contribution made by the disputed fishery to the
economy of each of the Parties, or in relative terms. Le., the importance

of this contribution in relation to the respective economies of the Parties. WOU1.D0RI.ITERATE CANADA'S ESTABLISHEDECONORllCINTEREST
INGEORGES BANK

17. Thc Canadian linc would lcavc thc relevant New England

ports with fishing grounds on Gcorges Bank whosc long-tcrm yiclds
grcatly cxcccd thc traditional lcvcl of fishing effort from thcsc sanie
ports. In the period froin 1969 to 1978. on thc wholc of Georgcs Bank.
United States fishcrnien caught an annual average of $16.1 million of
fish". The Canadian linc would leavc. within United States jurisdiction.

fishing grounds on Georgcs Bank having long-term annual yields of
$48.6 million, thus allowing for a 200 percent increase in United States
fishing effort in fishing grounds on Georges Bank to the south and wcst
of the Canadian lin^'^The effect of the line proposed by the United

States is, of course, to leavc Canada with no fishcry whatsoever on
Gcorgcs Bank (sceTables I and 2).

18. United Statcs catches norrheasr of the Canadian linc. in the
period from 1969 to 1978. avcraged $9.7 million annually. Canadian
catches sorrrhwrsr of the United States adjusted perpendicular line ave-
raged $39.8 million annually during the samc pcriod". Mcasured in '

thcsc terms. the magnitudc of Canada's depcndcncc on the disputed area
is 300 percent greater than that of the United States, even before taking
into account thc relatively greater impact each dollar of loss would have
in Nova Scotia as compared with Massachusetts.

19. In ils Counter-Memoriai, the United States has claimed that
Massachusetts fishcrmen have no other fishing grounds to which they

could switch their ope ration^'^ This is no1 the case. To begin with, the
United States would retain more than half of Gcorges Bank within ils
jurisdiction following confirmation of the Canadian line: moreover, in
recent history. the Massachusetts fieet has demonstrated conclusively
that fishing grounds south and Westof Georges Bank are adequate for its

nceds. In the mid-1960s, the Massachusetts fleet voluntarily shiftcd ils
activities away from Georges Bank for a number of economic reasons
that were no1associated with this dispute in any way. These reasonsare
outlincd in the New England Fishery Management Council's Scallop

Management Plan'?

" Baredan averageannual landinvalucdüt 1978 Canadianpriccs.

"Appendix 1.Tables 22and 26.
"Northwest Atlantic FishericsOrganirationunproceasedcomputer tapes. Relevant
exincir or prinloutrîrom ihese lapesbemade availablio ihc Ageoforthe United
Staicor ta ihc Couruponrcquest.
"Unire-d SIOIP.~COU>IICI-MP~UI~(I216. para347.
"New Englond Fishery Monagenani Council. Firhcry Monogement Plon. Finol Environ-
menial Impaci Sloicmcnt. Xpgu1oror.vRcvi/or Ailantic Seo Srollop(Placopecten
magcllanicus).nnuary1982.pp.33 and36. SecDacumcntaryAppendix4.222 GULF OF MAINE 1121

(a) the discovery of more productive scallop beds in the Great South
Channel and Mid-Atlantic areas. which offered New England Iish-
ermen the double advantage of higher catches per unit of effort and

lower operating costs owing ta their greater proximity to New Eng-
land ports:

(b) prices for finiish rose more rapidly than scallop prices in the early
1960s, causing many vesse1owners to switch ta other operations
(many New England vesselsare multi-purpose and easily converted

ta other uses);
(c) increased competition from Canadian fishermen who, operating on

the same economic principles thai caused their United States coun-
terparts to move to more productive grounds. saw eastern Georges
Bank as offering a promising fishery relative to other areas.

20. The United States itself rcfers to the period from 1965 to
1978 as demonstrating the flexibility and adaptability of the Massachu-

setts fleetiO. It is ta. be presumed that these qualities have endured and
that the Canadian line would impose no real hardships on the United
States.

TABLE 1

Georges Bank: Estimated Yield and Percentages of Total Biomass to
the East and West of the Canadian Line

l'oral Bio-
marsin 57.e Yieldin 5%e i'ield on
East ofthe Atailable GeorgesBank
Yicld Canndian Eastofthe West ofthe
Speries in5Ze' Linc2 CsnadianLine CanadianLine
(mt) (%) (ml) (ml)

Scallops 9.000 73 6.570 1.569
Cod 33.250 39 12.968 7.422
Haddock 42.000 49 20.580 8.653
Pollock 6.800 20 1,360 2.700
Cusk 1.200 21 252 427

Silver Hake 50.000 18 9.000 21.508
RedHake 25.000 22 5.500 13.336
White Hake 2.000 IO 200 847
Redfish 4.800 4 192 2.017
Herring 87.200 26 22.672 26.830
Mackerel 102.000 28 28.560 46.598
Yellowtail Flounder 7.000 40 2.800 2.218
Other Groundfish 10,000 29 2.900 3.452
Argentine 5.000 77 3.850 71
lllex Squid 20.588 12 2.471 7.922
Loligo Squid 6.471 15 971 2.615
OffshoreLobster
1,200 29 348 321
' Basedon resourcfarecastandbiologicaletirnates.

' Calculatedfrom M. Pcnningtan:"Efficient Estimaioof Abundance.for Fishand
PlanktonSurveys.Biui>i~rriVol.39. 1983.

2DUniredSrorer Mernorial. p. 50. 83ra.TABLE2 CHAPTER III

SUMMARY OF EVIDENCETHAT THE IMPACTOF LOSS OF ACCESS
TOALLOF GEORGESBANKONTHE CORIRIUNITIESOF SOUTHWEST
NOVA SCOTIAWOULD BE GREATERIN BOTH RELATIVEAND ABSOLUTE
TERiMSTHAN THE IMPACTOF LOSS OF ACCESS 70 PARTOF
GEORGESBANKWOULD BEON THE COMMUNITIES OF
EASTERN MASSACHUSETTS

Section 1. Canada

21. The United States contends that the loss of the Georges Bank
fishery would be "significant" in only five communities of southwest
Nova Scotia". The impact, in reality, would be felt throughout south-
UC~I S~I\J Scoti:~. IIIStruc th'ttthe i'iw corni~iunillc~<IIILu~ictiburg,
Ri\,ernort. S;iuliiier\~illc.I.i\,erpdul .ind Y:iriiiouih .,rc he;iiil\ dcnciidcni

upon 'Georges Bank and wouid suffer serious and continui& fjnancial
damage as a result of lossof access. Smaller communities throughout the
region, however, are also dependent on Georges Bank, as Appendix 3 to
this Part demonstrates. The economic shock they would sustain would
weigh heavily on the social and cultural wcll-being of the entire popula-
tion.

@ 22. Figures 27 and 28 of the Canadian Memorial illustrated the .
concentration of landings of finfish, scallops and lobster in southwest
Nova Scotia. Figures 29 and 30 of the Canadian Memorial illustrated
another aspect of this concentration by showing the extensive network of

processing plants in southwest Nova Scotia closest to Georges Bank.
These smaller processing plants do not reiy for their raw fish on the off-
shore fleet that generally operates out of the five principal ports identi-
fied by the United States. The mainstay of their activities is the "small
vessel" fleet. As explained in Canada's Memorial and Counter-
Memorial, many of these small vesscls regularly fish Georges Bank. so
that loss of access to the disputed fishing grounds would significantly

damage the small communities closest ta Georges Bank. Appendix 4 to
this Part presents further evidence of the activities of the small vessel
fleet on Georges Bank.

23. The same small communities that provide the home ports for
the small vessel fleet also supply the men to crew the large offshore ves-
sels and are supported to a substantial degrce by the income thus gener-
ated. This is an additional element of their dependence on Georges Bank,
over and above the activities of the small vessel fleet that represent their
economic backbone.

24. Central Port Mouton is an example of a community not
acknowledged by the United States to be vulnerabie to damage as a
result of loss of access to Georges Bank. Yet, in 1978, 36.7 percent of.
the value of Central Port Mouton's landings came from Georges Bank".

" UnitedSroresCour!rer-MenroriSocin-Lconui,id,l,~e.r, V111Anncx 4.pp. 25-26,
paras.25-26.
*'Cotiodi<Memorio;.Tablc 5.p. 76. para. 156. il61 ANNEXES TO REPLY OF CANADA 225

The community's fish plant began operaiions 35 years ago. employing

three people in saltfish production. Following a decade of slow growth,.
the company concerned became actively involved in the Georges Bank
scallop fishery. Scallops made an important contribution to the overall
profitabilityof the company and provided the büsis for the considerable

expansion of harvesting and processing capacity it experienced during
the 1960s. The company now produces a full range of groundfish,
pelagic and shellfish products. In addition to the fish supplied by its
own fleet of eight offshore vessels. the comp:iny buys fish from about
100 independent inshore fishermen from Port Hebcrt to Western Head.

In all, sonie 400 people rely on this company for a livelihood: 200 in fish
proccssing, 100on the company's vesselsand 100or so asinshore fisher-
men. Over the pas1 decade, the Georges Bank scallop fishery has
accounted for 61.4 percent of the company's gross revenues". In most
years. the company makes no profit from its groundfish operations.

Were it not for the Georges Bank scallop fishery. the plant would have
closed. If the plant now had to be closed as a result of loss of access to
Georges Bank. the loss of employment and income would not be limited
to thet generated by the scallop fishery alone. but would also extend to
al1aspectsof the company's operations.

25. Another example of the pervasive economic influence of

Georges Bank in southwest Nova Scotia may be found in Saulnicrville.
The fish plant in Saulnierville began as a fainily business in 1946, pro-
ducing herring products for the export market. The company concerned
becaine active in the scallop fishery in the laie 1950sand built on its ini-
tial successto become one of Nova Scotia's Inrgest independent harvest-

ing and processing comp;inies. In addition to its main fricilities in Saul-
nierville. the company owns and operates seven other plants, four in
southwest Nova Scotia, one in Prince Edward Island and two in Quebec.
Il is also the exclusive buyer of groundfish from three other plants in

southwest Nova Scotia. Although it relies principally on its own fleet of
17 offshore vessels for its source of raw fish. the company purchases
from independent inshore fishermen as well. It produces a full range of
fresh. frozen and cured groundfish. pelagic and shellfish products. and it
provides direct employment for about 1.000 people. only 300 of whom

are directly involved in the Georges Bank scallop fishcry. This company
acknowledges that it has grown to its present size largely on the strength
of Georges Bank scallop revenuesu. The profit;~biliiy it now enjoys
depends, to a substantial degree. on its continucd successin this scallop
fishery. A loss of accessto Georges Banks would problibly spell ruin for

this company and its affiliated enterprises. and would result in the lossof
livelihood for al1 ils employees. The hardships would no1 be confined to
Saulnierville but would also directly affect another IO or so small com-
munities in southwest Nova Scotia in which the company either carries
on businessor depends upon for its manpower requirements.

?Baird on inicrvieand canfidentiainancialrecordal C. W.McLeod FirherierLtd.

?'Baredon interviews aconfidcntialfinancialrecoorsCorneau'SealwdrLimited. il81 ANNEXES TO REPLY OFCANADA 227

isolatcd as their counterparts in southwest Nova Scotia: and rhirdl.~,
bccausc the population of these fishing ports has rcady acccssto alterna-
tive jobs in the diversified economy of the United States eastern sea-
baard. But even if a significant dependence existed (which Canada

dcnies). the minor adjustmcnts in fishing aciivitics that would be neces-
sary becauscof the Canadian liiic would be easily accornmodated within
the cxisting Massachusetts cconomy.

31. In eastern Massachusetts, particularly the Boston-dominated
countics. the service scctor itself accountcd for I million jobs in 1980,
69 pcrccnt of total regional employmenti< Fish harvesting accounts for
lcss than 1,000 jobs, being mcrely 0.07 percent of rcgional cmploymcnt,

and its contribution to total regional employment has bcen steadily
declining sincc World War II".

32. Further south, the Cape Cod countics of Barnstable, Nan-
tucket, dnd Dukes exhibit significantly diffcrcnt cmploymcnt patterns.
Thc prcdominant focus in thcse counties is on tourism. Thcy have sig-
nificantly higher proportions of total employment in the "hotels and
othcr lodging places" sector than any of the othcr counties"? Rctail

trade and tourism in 1980 accountcd for 16,000 jobs, or 40 pcrccnt of
the total in the thrce counties". Commercial lishing accounted for fcw
jobs. and apparcntly none of thcsc jobs was in any significant way
rclatcd to the Georges Bank fishcryJ2.

33. Still further south. Bristol County. in which the important
fishing port of New Bedford is located. is hcavily oricntcd toward manu-
facturing, with 77,000 jobs (47 perccnt of ils total cmployment)
accounted for by that sector. Fishing and fish proccssing account for

about 2,500 jobs, being 1.5 perccnt of county cmployment and much of
this cmployment is dependent upon imports of frozen fish". Employment
in Plymouth County is dominaled by rctail tradc, manufacturing. and
services with few jobs in the fishing industry".

34: It is cvident, thercforc. that thc sccondary (nianufacturing)
and tcrtiary (service) sectors arc dominant in eastern Massachusetts.
Thcre is littlc reliance on primary industry activity in general or fishing
activity in particular. Only 0.2 percent of total cmploymcnt is accounted

for by the agriculture serviccs/forestry/fisherics scctor. in which wagcs
are gcncrally l~wer'~. This situation stands in stark contrast with south-

(iitinrBtirin<,.crPnrt~rnr. 1080. MorrochirTable.2. pp.34-40.51-59.60-66 and
71-79.
" Cot~nryBi~sit,tr a1tcrn.r.1980. MorrachirsuTnblc 2. pp.34-40.51-59.60-66 and
71-79.

'OCou>rlyBurinesr Porrerirs.1980. Morrach8ir<,irr.Rible 2. pp. 22-79.
" C<,u>$ryuriners Porrrrnr. 1980. blosrochli.si,r2.pp. 22-24. 33-3iind59-60.
" C<i,todiu, outrrcr-M.t>rzorial.p. 56. para. 136and louinoic XI
" Cuun1.i.Burincm Porrrrns. 1080. Mosrarhirrrrrr. pp. 27-33.

" Counly Budti~srPorrrrnr. 1980. Mas.rorhor~rrr66-71.
''Counry Buriners Porrerns. 1980. Morsaehu~~ris. p22. 27.33. 34. 51.59, 60. 66
and71.228 GULF OF MAINE [19-201

west Nova Scotia, where 13 percent of total employment is accounted
for by these primary industriesJ6.

35. The obvious conclusion is that the economic impact of loss of
access to al1 of Georges Bank in the communities of southwest Nova
Scotia would be greater in bath relative and absolute terms than the
impact of the loss of access to part of Georges Bank would be in the
communities of eastern Massachusetts. In summary, the community
impact of the Canadian line in eastern Massachusetts would be negli-
gible, whereas the impact of the United States line on the communities

of southwest Nova Scotia would be serious, immediate and inequitable.

'*Appendix1.Table18,p.47. 229

CHAPTER IV

SUII~IARYOFI:\'IDESCFREFIITISGTIIE USII'EI) S'I,\'I'At.I.EÇATIOZI
'THATEC00\11<' I.O.SFS<'RE,\TED RI I.OSS OF ,\CCESSIO

CFORGES RANKWOII1.1B >EOIFSET RI'AI.TERSAlI\'EE\II'l.OYItElriT
OPPORTUNITIEIS NSOUTHWESN TOVASCOTIA

36. The United States alleges. without any supporting analysis,
that even if more jobs and income would be lost in Nova Scotia (as a
result of the United Statesline) than in Massachusetts(asa result of the
Canadian line), those engaged in the Georges Bank fishery and ils

related businesseswould find other job opportunities in southwestNova
Scotia". This allegation ispatently unsupportable.Nova Scotia suffers
chronic unemployment.If viable employment opportunitiesdid exist in
the fishing industry,or in any other industry in Nova Scotia. theywould

havealready beenexploited.

Section 1. Alternative Fishing Employment

37. In contrast with Massachusetts.Nova Scotia Jacks fishing
alternatives for the fishermenand plant workers that are dependenton
GeorgesBank for their livelihood. The United States readily concedes
that scallopresourcesavailable Io Canadaon the ScotianShelf and else-

where are insignificant when compared with those of Georges Bank.
Estimatesbasedon 1981fishing patterns suggestthat. at most. three of
the 77 scallop vesselspresently operating in the disputed area could be
accommodatedin areasother than GeorgesBankJRS . incecatch per unit
of effort would be lower on the Scotian Shelf and elsewhere,this ves-

tigial offshorescallop fleetof three vesselswould be. at best,a marginal
presence,rather than a geneiator of high incomesand profits.

38. Diverting the remaining vessels to groundfish would be
impossible.The groundfish stock in subarea 4 is already under severe
pressure.The Kirby Task Force Report,cited by the United Statesasan
authoritative study, States that there is already excessiveharvesting

capacity in al1areasexceptoff the northeastCoastof Newfoundland and
Labrador". Unallocated resourcesconsist of lessattrrictive specieslike
redfish and pollock and are concentratedon the northeasternScotian
Shelf. Groundfish in the northern fishing grounds areout of reach for

the small scallop vessels,and even the largcr scallop vesselscould not
baille the northern ice conditions. Lossof accessto GeorgesBank would
therefore mean that 97 percent of the scallop fleet now active on
GeorgesBank wouldhaveto bescrapped.

" UniredSlares Counl~r-MernoNol. Soeio-Econontic Anntr. VoAnnerI4. pp. 43-46.
paras57-68 .anlrary tthcUnited States allegation. inal177Canadia nffshore
scallovesrelscre ioperation.
'OIn 1981, 97percentofCanadias ncallolandingscame from GeorgesBank. Cwreri,
paribus 3pcrcen tfthe offshorscallopflee(threcvesselscouldbcdeploye dlse-
whcre.Appcndix1.Tablc 13. p. 43.
I9TaskForcc on AtlantiFishericr:'avigaring Troubled WOIPISNPW Polie). for rhe
Allanrie FirheriOttawaS, upplyand ServiceCenada .983.Table 2.4. p24.Sce
DocumcntaA rppcndi x. 230 GULF OF MAINE [22l

39. Relocation of the smaller groundfish vesscls of lcss than

65 fcct in lcngth would bc impossible. Small boat fishermcn would be
forccd out of the fishing industry owing to existing overcapacity in the
near shore fishcry. This would bc particularly detrimental 10 southwesi
h'ova Scotia bccause the area contains the highcst proportion of full-
tiiiie fishcrmcn (i.e.. those depcndent upon thc fishcry for 100 percent of

@ thcir incomc) in Nova Scotia [Figure Il. Sincc conversionor rclocation
to cinother fishery would not be fcasiblc, fishcrmcn would have IO look to
othcr alternative employment. In southwcst Nova Scoti:~,howcvcr, non-
fishing employment alternatives are cquully unavailablc.

40. Gcncrating non-fishing employment by ihc crcation of new
niiinufacturing enterprises dircctcd at national and intcrniitional mar-

kets. as is suggcsted somewhat fancifully by thc United States in ils
Countcr-Mernorial", is not a serious possibility for southwesi Nova
Scotia. Lack of capital, raw materials and service infrastructure. and the
costs of transporting finished products to the major population centres in

central Canada or elsewhere. render the suggestion inipracticable. as
expcriencc has demonstrated4'. Whcrc governments have on occasion
assisted the establishment of such enterprises. as in the case of the
Michelin tire plant in Bridgewatcr, Nova Scotia. the United States has

bccn in the forefront of those objecting to the marketing of thcir prod-
ucts on the grounds of "unfair ~ompetition'~'.

Section II. Non-Fishing Alternative Employment

41. Thc qu;ility of south\i,cst Nova.Scotia's forcst rcsourccs is
pour. This Pacthûs been well-documented and is illustratcd in niaps pub-
lishcd for purposcs unrclatcd to this dispute by thc Cilnada Land Inven- '

tory. Figurc 4 revcals that the majority of land in southwcst Nova Scotia
is raicd iis hiiving "inoderatcly severe lii~iitations"or "scvcrc limitations"
to the growth of coniniercial forests. Secondary activity bascd un fores-
try rcsources is largcly limited to products produccd for local use, such
as building supplies. small fishing boats and lobstcr traps". Altcrnative

'OUttirud Srnr~r Coi~tirrr-,\lcriioriol. Socio-Eco,iotrii<. An>r<,.i.Vol. II16.Anne* 4. p.
para.68.

"South Western Nova Scotiî Study Team: Tht Em>m>r,ir and Social Bore O/ Soolh
M'errrrnr\'oiSrorio.i\Study Prepnredfor theNova Scoiia Deparimentof Municipal
AIfairr.Communiiy Planning Division. May 1977. pp. 183-184. Sce Documcntnry
Appendix7.
'?K. V. Fuidu and M. F. Morrone: "The ,MichclinDecision:A PossiNcw Directionfor
U.S. Counterrailing DutLaw". in J. II. Jackson.cd.: /.ego/ Prob,>>~»rcr>iofio!!ol
Ec,,iiotiiic Kc,larCorrr. ,Aloirriol.s oTtrr 011 the r\'o,i~trol and It8lrrnl?lio>lol
Kr,g~ifoiio<,/Tronst~oriorrolEro>ro»iic Relorionr.Paul. University of Michigan.
1977.pp.789-801. Cu~iudionCotinrrr-hfu,>ioriol. Airiiurrr. Vol. IV. Anncx 44.
"South Wesiern Nor:) Scotia Study Tram: The Eronoiviic aiid Sr>c/<ilBore <,f SOUI~
Wt.rrrrtj ~\'oi,oScolio. A Study Preparrd foi ihc Nova Scoiia Deparimentof Municipal
Affairs. Community Planning Division. ,May 1977. p. 119. Sec Documentary
Appendix7. 1231 ANNEXES TO REPLYOF CANADA 231

employmcnt opportunitics for displaced fishermen in the forestry sector

arc virtually non-existent.

B. AGRICULTURE

42. A poor resource base and lack of market proximity also
explain why there is little potential for agricultural devclopment in
southwest Nova Scotia. Figirre5 shows Nova Scotia's poor soi1capabil-
ity for agriculture. Most of southwest Nova Scotia is categorized as hav-

ing "no capability" for crops or permanent Pasture. Other areas are clas-
sified as having "severc" or "moderately sevcre" limitations that restrict
the range of crops or requirc special conservation practices. An addi-
tional consiraint on the agriculiural rcsourcc base of southwest h'ova
Scotia is thc climate. The region is characterized by a short, cool grow-

ing season and inadequate sunlight. Thus. southwest Nova Scotia's
agricultural sector also offers little hope of alternative employment
opportunities for displaced fishermen.

C. MANUFACTURING

43. The United States suggeststhat displaced fishermen would be

able to find jobs in the manufacturing industry in southwest Nova
Scotia. But modern methods of manufacturing - technological develop-
ment characterized by cconomies of scale in niass production, market
orientation, and highly complex and technical production processes -
have left this region in a severely disadvantaged position.

44. Existing manufacturing activity in southwest Nova Scotia is
predominantly resource-oriented. The majority of al1establishments with

25 or more cmployccs are fish processing/wholesaling enterprises, and
many of the othcrs are suppliers to the fishing industry. Apart from the
Michelin lire plant in Bridgewater, the only other manufacturing estab-
lishments in the region are pulp and paper or wood products firms, a tex-
tile plant, a few handicraft est;iblishments and some printing and pub-

lishing enterprisesu.
45. The Michelin tire plant, which is no1 locally resource-based.

is a large facility catering to national and international markets. The
plant would not exist in the area without substantial assistance from the
government. It is unlikely that other large-scale mqnufacturing of lhis
type could be established in the rcgion without government assistance.
The limited size of the local and regional market. the high cos1of trans-
porting finished products from southwest Nova Scotia to national and

international markets, and the absenceof local labour with the appropri-
ate professional and technical skills required io sustain modern, large-

"Novo ScoJio Direr~orO/ Monu/oc~urers1979-1980. HalifaxDcparimeniof Develop-
ment. March 1980. pp. Tan5-6 and 14-19 Canadion Counrer-Afemoriol. Annexer.
Val. IV. Anner 54. 232 GULF OF MAINE [24-251

scale manufacturing enterprises, are elements that inhibit such develop-
@) ment: However, as Figure 6 demonstrates, diverse employment oppor-

tunities exist in the eastern Massachusetts manufacturing sector.

D. Tounrs~

46. Tourism is a basic industry that may provide some alternative
employment opportunities for displaced fishermen and plant workers,
notwithstanding such local disadvantages as cold waters for swimming
and foggy weather. Southwest Nova Scotia's coastal scenery and pic-
turesque fishing communities are classic tourist attractions. As well,

numerous small harbours provide suitable moorings for recreational
boats.

47. On the other hand, a major impediment to the development
of tourism in southwest Nova Scotia is its remote location relative to the
major tourist flows to the rest of the province. There are only six major
surface entry points to the province: four by car ferry (Digby, Yar-
mouth, Caribou, and North Sydney), and two by highway (Amherst and
Tignish). The majority of road travellers enter the province on the
Trans-Canada Highway at Amherst, far away from southwest Nova
Scotia, and they can visit the province's major tourist attractions, such
as Louisbourg in Cape Breton and Halifax in central Nova Scotia, with-

out passing through the southwestern portion of the province at al145.

E. OFFSHORE OIL AND GAS

48. The United States contends that the offshore oil and gis
industry in Nova Scotia is on the verge of tremendous expansion4*.This
contention is based on a misunderstanding of the relevant data. The
Venture field (which is now the subject of exploratory activity) is outside
the relevant area and is serviced from Halifax and the Cabot Strait area
rather than the ports whose boats fish the northeastern portion of

Georges Bank.
49. If the Venture field is developed, there is no question that a
number of full-time jobs would be created. However, most of these jobs
will have a short lifespan and will exist only for the four or five year
development period. Further, a majority of these jobs will require per-

sons with considerable technical skill and direct experience in offshore
gas production. Displaced fishermen are unlikely to possess these qualifi-
cations. It is estimated that afte15 years of operation only44 percent
of workers currently engaged in east Coast offshore exploration activity

<Vjsirur Trovel ro Nova Scorio. 1978. Department of Tourism, NovaScolia.
1978. pp. 11-12.See DocumentnryAppendix 8.
<'United Srares Counr~r-Memurial. Socio-EconAnnex. Vol. III, Annex 4. p. 44.
para.60. 1261 ANNEXES TO REPLYOF CANADA 233

are Nova Scotians". In the North Sea, where many oil and gas fields
have commencedproduction in the pastdecade,fcw fishermen madethe
transition from fishing 10 oil drilling, notwithstanding the considerable

decline in fishing industry employment in relevant European coastal
States.A 1980 surveyof some 2.000 crew memberson 225 supply ves-
sels operating in the United Kingdom showed that only 85 originally
worked in the fishing ind~stry'~.There is no reasonto believe that the

employment prospects for unemployed fishermen in southwest Nova
Scotia would beany different.

50: The conclusionto be drawn from this analysisis that there is
no basis forthe United States suggestionthat the economicdislocation
to southwest Nova Scotia resulting from a loss of accessto Georges

Bank could beabsorbedby other economicactivities in that region.This
fanciful hypothesisis mereempty assertionthat cannot withstand serious
examination.

"Canada Oil and Gÿs Lÿndr Administiiiiion. uopublirhed d;iia aggreg~tedfrom Canado
&oe/ilPl<itis.Augusi 1983.

'*G. A. Mack:>y: 'TUK h'orrhSua E.vp.rl>prir,!cAr. Rcpori for Mobile Oil Canada Lid..
and DPA Consuliing. November 1982.55.para, 7.24. Sec Documentary Append,x 9. GULF OF MAINE

Appendix1

THERULCOST OFLOSS OFACCES SOGEORGEB SANK

INTRODUCTION

1. This Appendix provides estimates of the direct and indirect
employment and GDP generated by fishing activities on Georges Bank.
It is divided into four sections. Section 1 presents summary tables show-
ing the relative importance to Canada and the United States of the
employment and GDP generated by the fishing activities of the Parties
on the northeast portion of Georges Bank. Section II sets out the
approach used by Canada in estimating direct employment and GDP so
generated, and outlines some of the errors committed by the United
States in preparingils estimates of the contribution of Georges Bank ta
these measures of economic activity. The basis for Canada's estimates of
indirect and induced employment and GDP generated by fishing on
Georges Bank is outlined in Section III. Section IV contains supplemen-

tary statistical tables.

Section 1. The Relative Importance to Canada and the
United States of Employment and GDP Generated
by Fishing Activities on the Northeast Portion
of Georges Bank

2. The estimates prepared by Canada use 1980 data to ensure
direct comparability with the United States own estimates of employ-
ment and GDP arising from its fishing activities on Georges Bank.
Although that year lies outside the period Canada considers relevant for
the present proceedings. the estimates of Canadian employment and

GDP arising from fishing on Georges Bank would Vary little over the
past Iwo decades, regardless of the year chosen for the analysis. The
choice of 1980 as a base year. however. does lead 10 unrepresentative
and unduly favourable results in the case of the United States. This is
clear from thelandings data shown in Table 27 of this Appendix, which
reflect very little United States fishing activity on the northeastern part
of Georges Bank prior to 1980.1321 ANNEXES TO REPLY OF CANADA 235

TABLE 1

Total Direct andIndirectEmploymentandGDP' Generatedby

CanadianFishingontheNortheastPortionof GeorgesBank, 1980

ProportionofTotal
Econamy

Canada

Percent

Employment (persans)'
Fish Harvesting 1,546 3.3 0.6 0.017
Fish Processing 702 1.5 0.3 0.008
Indirect -0.5
m' 2' 0.014
Total 3.598 7.7 1.3 0.039
1 Va-~--Added (S'000) 1 1 1 1 1
Fish Harveiling ' 33.9 3.9 0.5 0.013
29.8 3.5 0.5 0.01 1
Fish Processing
Indirect 82.2' 3' -1.3 0.030
Total 145.9 12.2 2.3 0.054
I I 1 1 I 1
' GDP is mcasuredin icrms of valueaddcdthroughout Part I of this Anncx.
Employmcnt is mcarurcd in full-timc-equivalcnt man-ycarr throughout Iof this
Anncx.

j Absolutc valuesfor indirect cmploymenl and GDP are calculatcd using the multiplier
providcd by the United States in United Siaies Counier-Mernorial. Socio-Econornic
Anncx.Vol. III. Anne4.Ap. .dix B. p.47,para. 16.footnotc 2.
A singlc cmploymcnt mull,plicr tolirno1ririctly rclcvanl auing Io the 5enriiivii) of
migraiion io changinccunumicaiti>li)Scc src III. para 10of ihir Appendix
Ciibcnthc aprnnosof ihc rcgi~nalecmomy. ihe f~ll Impact of ihc .ndircci 2nd induccd
cffecir u0u.d no1bc ianftnrd io <ouihue<!hasa Scoils. Thc lig~rc shovn asrumcr thît
only 50pcrccni of muliiplicr cffcn, abcfclt la'all)

-
Sourcc:Thc direct contributions of fish harvcsting and fish procesring arc rcpartcd in
Tablc 4of this Appcndix. lndirect employmcnt andGDP arc calculatedin sec.III
of ihir Appendix. Proportionof total ccanomyiscomputcd from toials sct out in
sec.IV. Tablc 18of this Appcndix. Figurer may no1add ducto rounding.236 GULF OF MAINE 1331

TABLE2

Total DirectandlndirectEmploymentandGDP Generated by United

States Fishingon theNortheast Portionof GeorgesBank,1980

Eirtria United
Marraehurrtts Mauaehuscttr States

Employment
(persans)
Fish Harvesting
Fish Processing
Indirect
Total

Value Added

FishHarvcsting
Fish Processing
lndirect
Total

1~sslmcs.as in TablI.that50psresniof thernultiplicreffectswouidbcfclt locally.
-
Saurcc:Absalutevaluesfor directandindirectcmploymentandGDareabstractedfrom
theuniredStolesCounrer-Memoriol.Sdo-Eonomir Annix. Vol.IIIAppsndir
B. Introduction.Table2.3.Thepropartionof totalcconamyicomputedfrom
totalssetoutinTabl7 of thisAppsndir.

TABLE3

A Comparisonof theRelativeImportanceof-the Northeast Portionof
GeorgesBankto Canadaandthe UnitedStates Basedon theFishing
Activitiesof the Parties, 1980

Proportioof RatioofRelilire
TotalEÎonomvL Irnmrtinee'

Employment
Southw'cstNova Scotia 7.6553 1 90.9
EasternMassachusetts 0.0842 1.O

1 Canada
United States
Nova Scotia
Massachusetts

Value Added
SouthwestNova Scotia 12.1950
EasternMassachusetts 0.0890

Canada 0.0540
United States 0.0022
Nova Scotia 2.2870

' FramTables Iand 2of thir Anocndir.

> Thera1.oof rclatire .rnporl1siicri~b) d udlnp ihc proporliifiuldcconarn)
forCan~da.Uova Scuimdndro~thucri\ovî Sciisib) lhcr~ircrpiindifig~i(JIihc
UnitcdSiaier.Massachii<cii2caricrn\<a,sdchuicil,i341 ANNEXES'TO REPLY OFCANADA 237

Section II. Employment and GDP Generated Directly in Canada
by Fishing on Georges Bank

3. Canada estimates employment in fish harvesting generated by

Georges Bank at about 1,500 full-time-equivalent man-years'. The
approach used to derive this estimate is consistent with Canada's
approach to measuring fisheries employment generally2, and is consistent
with the method used by the United States to estimate total fisheries

employment in Nova ScotiaJ. In this approach. the effort generated by
each full-lime fisherman is equal to a full-time-equivalent man-year. By
definition. a full-time fisherman is one who spends al1 or most of his

working time in the fishery, thereby earning al1 or most of his income
from fishing4. Because they work year-round, al1 fishermen on offshore
scallop vesselsand groundfish trawlers fall into this category'.

4. The United States estimates Canadian employment generated
by Georges Bank at 591 full-tinie-equivalent man-years. nearly one-third

of Canada's estimate6. The approach followed by the United States in
reaching this estimate relies on an incorrect perception of the fishery.
When applied to fish harvesting. the concept of a full-time-equivalent

man-year cannot be meaningfully defined simply in terms of time and
certainly not in the abstract as 3 fixed number of days spent at sea'. The
fishery is not a wage-paying industry and fishermen are not employees
who work according to a fixed set of conditions. One of the chief charac-

teristics of the fishery is its uncertainty. Fishermen fish subject to
weather. sea and climatic conditions, and also subject to the condition of
the resource. In Canada, the working year of a full-lime fisherman may

comprise fewer than 100.days. In the official statistics. however. he is
considered a full-time fisherman because he relies on the fishery for al1
or most of his income. and his lime in the fishery is considered a full-
time-equivalent man-year'.

' Sce Table 8 of this Appendix. -

I Conadian Mrnroriol. Ati»r.rc.r.Vol. IV. scc.1.para. IL
J United Slorrs Coonrer-Mtnroriol. Soria-Erononlir Ann~r. Vol. III.Annex 4. Appendix
A. Table 1
' SeeTable II of this Appendix.

Norihwcrt Atlaniic Fishcries Organi?ation. Srorirrirol Br,llerin. Vol. 30. 1980. Table 5.
See Documcntary Appendix 12.
Utiired Slorcs (o~t~r~r-M~w~~riol. ~cio-E~onon,i~A~IIP.~.Vol.111,Anncx 3. pp. IZ- 13.
para. 14,
' In dcriving its estimate of lull-timc-equivalman-ycdrs. the United Siatcs defincr a

full-iimc firherman asone wba "is ahseni (rom poran an avcragc of 220 [iic]peryear"
(Unired sr ore.Coonr~r-M~t,t~~i~l,Sociu-E<onon,icAnnqr. Val. 111. ppendix B. sec.2.
Tttble 1-1980. p. 13. fwinoie 4). This definiiion ir attributcd to the Kirby Tîsk Force on
Ailaniic Fishericr. No such definition appears in ihc Tark Farce repart. But eilthis
simplirtic definiiion war used. the fact thai firhermcn work an avcrnge ol 12 to 16 hours
per day while ai sea means ihatÿ 220-day ycar would be cqual ta ai leîi1.5 full-time-
cquivalent man-years (assuming an average man-ycÿr ol 1.950 hourr). Tbç United States
dcliniiion is alsa deficieni becauilignorrr on-land preparation lime (verscl and gear
main1en;ince.elc.). ,. ,
Conadian Mr»,oriol. Anne.re,r.Vol. IV. scc.1. para. 15.238 GULF OF MAINE 1351

5. The United States approach ta measuring Canada's Georges
Bank fisheriesemployment is not only flawedconceptually, but is incon-
sistent with the approach used bythe United States to estirnate employ-
ment generally in the fishery9. The United States Counter-Memorial

estimated Nova Scotia employment in fish harvesting at 6,904 full-time-
equivalent man-years. This estimate relies on the income-based defini-
tion of employment used in Canada's officia1 statistical publications.
However, in order to estimate employment generated by Georges Bank,
the United States switchesto its speciallycontrived time-based definition

and derivesa figure of 591 full-time-equivalent man-years.That this is a
substantial underestimate is confirmed when it is considered in relation
ta fish landings. Since the late 1960s, Georges Bank has accounted for
over 22 percent of Nova Scotia's average annual landings by v~lume'~.

The United States approach to estimating Georges Bank employment
leads to the implausible result that 22 percent of total landings are
accounted for by a mere 8 percent of total Nova Scotia employment in
fish harvesting. Canada's estimate of 1,550 full-time-equivalent man-
years, equal to about 20 percent of total fisheries ernployment, conforms

closelywith the historical proportion of Nova Scotia landings accounted
for by Georges Bank.

6. Canada and the United States are in general agreement on the
appropriate method for determining employment in fish processingaris-
ing from Georges Bank landings". However, the United States relies on

inappropriate labour-output coefficients, in relation to Canada, to pro-
duce a considerable underestimate of the contribution of Georges Bank
to Canadian empl~yment'~.Wben correct coefficients are used, analysis
shows that in 1980 Georges Bank generated 702 full-time-equivalent
man-years of employment in Nova Scotia, not 487.8as suggested by the

United States".

Cantrart the methodr used to estirnate employrnent in the Unired Sroles Counter-
Me'moriol.Soeio-EconomieAnnex. Vol. III,Appendix A. Table I and ihose uscd in
Appendix B.sec.2. Table 1.
'OSeeTable 16of thisAppendix.

" Canodian Memoriol. Annrxcr. Vol. IV. paras. 20 and 21. United Siores Counrer-
Memoriol.Socio-EconomicAnncx. Vol. III, AppendixB. sec.2. Table 3.
I2Thc United Staics relier on unruppartedassurnptionsto derivc ils labour-outputcoeffi-
cients(sec UnitedSlorer Counler-Memorio/.Socio-EconomicAnnex. Vol. III.Appen-
dix B. sec.2, Table 3. footnotc2). whereasthe Canadiancoefficientsare baredan indus-
try crtimaie(rccConndianMcmorial. Annexer .ol. IV. sec.1. pp~as.20-22).
"Uniied SlarcsCounrer-Memorial.Socio-Eonomie Annex. Val. III.pp. 12-13. para. 14.
SecTable 9 ofthir Appendix. ANNEXESTO REPLY OFCANADA 239

C. G~oss DOMESTIC PRODUCT GENERATED IN THE FISHINGINDUSTRY

7. In 1980, Canada's Georges Bank fishery contributed $63.7
million to gross domestic product. Fish harvesting accounted for $33.9
milli~n!~,or 53 percent of this total. while fish processing contributed

$29:8 million, or 47 percent".

8. The, United States estimates GDP generated in 1980 by
Canadian fishing on the northeastern portion of Georges Bank al $46.7
million'6. This estimate is abolit 25percent lower than Canada's. The
approach used by the United States to estimate GDP from fish harvest-
ing is correct, and Canada agrees with the estimate. A problem arises,

however, with regard to the United States estimate of GDP from fish
processing. Although the approach taken by the United States to esti-
mate GDP from fish processing is essentially correct, the United States
incorrectly assumes that value added per man-hour is uniform for al1
species". Value added per man-hour in scallop processing is some 10
times greater than for other species. A correction for this error (and,

minor computational errors) more than doubles the United States esti-
mate of GDP originating in fish processing from $12.8 ta $29.8 inillion
in 1980.

'TABLE4

Direct EmploymentandGDP GeneratedbyCanadianFishingon
GeorgesBank, by SpeciesCroup,1980

Ernployrnrni CDP
(prronr) (11'000)
Spcier --
Harresling Prorrrring Hsrresting Proressing

Groundlish 217.0 623.5 5,508 5.353
Scallops 1,309.0 69.6 27,756 14.276
Lobsiers 20.0 3.2 543 80
Oihers - - 5.7 -- 57 140
Total 1,546.0 702.0 33.864 29.849

Suurce:Ernploymentestimatesare{rom becII. T~bles8 and9of this Appcndix. Harvcst-
ingvalue added is lromIhr Urlirrd Srole.~Counier-Memorinl. Sociu-Ei.onui>iic
Anriex,Vol.III. Appendix sec.2.Table2-1980.p. 17. Procesringvalue ;idded is
rrorsec. IITable IOof thiAppendix.

"U,iired Siarcs Coonrer-M~morial. Soeio-Emnotnic Armer. V111.AppendixB. sec. 2.
Tablc2.1980.p. 17.
"See Table10ofihisAppcndix.
'&U!iiIed Srole-rCounrer-MenioriSueio-EronontiAnncx. Vol.III. Appcndix B. sec. 2.
Table 2.1980and Table 3.~~p. 17an21.
" Unircd Srorc$ Counvr-MrmoriolSwio-Econun~ic Annel. VolIII. Appendiii B.sec. 2.
Table3. p. 21fmtnote4.240 GULF OF MAINE i371

TABLE 5

Direct Employment and GDP Generated by Canadian Fishing on
Georges Bank as a Proportion of the Fishing Industry, 1980

Proportionof the
Firhine lndustrr

Absolute Southwest
Value Nova 1 Nova
Seotia Srotia Canada
1
Percent

Employment (persans)

Fish Processing
Total

Value Added (%'000)
Fish Harvesting
Fish Processing
Total

Source:Absolute values are fram Table 1 of this Appendix. lndustry totals for computing
proportionsarefrom Table 6 of this Appendix.

TABLE 6

Canadian Employment and GDP - Absolute Totals, 1980

Fish Firh
Harvesting Proressing Seçtoir

Total Employment.(persons)
Southwest Nova Scotia 3,957'
3.685' 47,000'
Nova Scotia 6.904' 6,399' 273,328'
Canada 14,100' 25,508' 9,354,200'
Total Value Added (9000)
Souihwest Nova Scoiia 80.2006 107.6006 859,4006
Nova Scotia 157,800' 176.331
6,380.600'
Canada 502,800' 597.799' 269,601,200'
'
From sec. IV. Table 18of this Appendix.
Estimates of man-hourr paid in fish processing are not available ai the sub-provincial
levelfor al1counties awing Io confidentiality of data. The eslimatearesderived
by applying the ratio of provincial GDP to southwest Nova Scotia GDP in fish process-
ing (ercluding rcallops) Io provincial fish processing employment. This ratio (58
percent). correspondsosely to the regioshareof provincial processingcapacity oust
over60 percent). and the region'sshare of provincialgraundfish landings (56 percent).
' The Labour Force. 1980.Statirticr Canada. Catalogue No. 71-001. 1980, p. 130. See
Documentary Appendix 3.
' Mnnu/nrfuNng Indurtries O/ Canndo: norionol ond provincial oreos. 198Statistics
Canada, Catalogue No. 31-203. December 1982.Table 3. p4-5.and Table 19. pp. 50-
51. See Documentary Appendix 10.'

United Slores Counicr-Memoriol. Socio-Eronomic AnnexVol. III. Annex 4. Appendix
B.sec. 1.Table 2ao.9.
From Table 18of this ~~pendix.
' United Slnle'~Counler-Memoriol. Socio-EconomieAnnex.Vol. III. Annex 4, Appendix
A, Table2. ANNEXES TO REPLY OF CANADA 241
1381

TABLE 7

United StatesEmploymentandGDP - AbsoluteTotals

Eastern Massachusetts 1.780.3141 51.500'
Massachusetts 2.291.6092 65,154'

United States l 99.303.000' 2.633.100*

1 couni? Burinrrr Parrrrtir. IPSO,Alcrrorhurrr,r.p. 21
'Couni? Burin?.?.<Pafrtrnr. IPSO.Uorrorhur<rrrp .. 21

Eir!plo:nrrn, and Eornin~sUnitrd States Dcpnrlmcni of Lubor. Bureïu ofLabor Stulir-
tics. Tîblc A-1. 6. Scc Ducumeninry Appendir 1.Documcnl 1
ni*. Englond Erononxirlndiro«or.?. Fcdcral RcserveBankor Boiton.Boston.Marrachu-
scitr. Junc1982.p. A-S. SecDocumeniary Ap~ndix 2.

:\'PXEnglond Eronr>r~iic1ndiroior.rp. A-5.
' Sur>.-. o/(iirrrnr Burin~rr. United Stalcs or Commcrr.~. Bureïu of Eco-
narnic Anïlysi*. Toblcr 1.1-1.2.p. 4. Sre Documînlar) hppendii 1.Duc.umenl?.

TABLE 8

Direct EmploymentCeneratcdin Canadaby Fish Harvestingon

GeorgesBank, Full-time-Equivalenthlan-years', 1980

TannageClsrs

Spcricr 0-24.9 25-49.9 50-149.9 I50+ Total
CRT GRT CRT CRT
--
Scallops' - - 136 1.173 1.309
Croundfish' 34 31 20 132 217
- - 4l
Lobrlcr' - - 0' - 2
34 31 172 1.309 1.546

i SecCanodinnMemorio/,Annaes, Vol. IV.para. 15.for ancrplanation olthe methousedto

cnimatc full-tirnc-cquivalent man-ycanThc Unitcd Statcsrelies an the rame appmach.
uniiedstotesCounrerMemotiol,Smic+EconomieAnnex V.ol. III, AppcndiA Table 1.

: oii.h.,rcr:,l I.ne," cndrc ru'.t n:ei,hcrricr *ni!tnc ieif~rl rcd. .:lentI.,1 1..-
L nic.c.i..c-i rrJn.!;.i 1hç l.r.,rgc\ Roi .c%<i.rccr~iidir ihr. \a.. S;SI: <.II~
,icci T..elc J.,r ippccit . u 4n ricrlec if 17.int ncci 77 .r.r%ï8,
lirniiaï1.. rn,p djrnenll~i I.3I',men

The numbcr of full-time.equivaleni man-ycarr gcncraicd by the groundfirh firhcry an
Ccargcr Bankir derivcd as fbllows:
CC0.g" bik Cm=" Bi1ik
Employmri8 ShirrO< Employmrmt
Toimgr Tolil Full-timc Lindi- Full-(Imc
C1.s Fi~krmro €quiiileiits (SI Eguivalcrls

0-150 CRP 1.723b 862' 9.V 85.3
150+ CRT. 952 952 I5.U' 131.5
Firhcrmcn active anCcarger Bankin the 0-24.9 CRT vcisclr classesarc classificd ar

part-lime firhcrmcn.
Totalpnri-timc fishcrmcn in NovaScotia. 1980.SecTablc II of this Appcndir.
SECTablc IIof this Appendix.

"cc Table 14of lhir Appendix.
Fishcrmenin the lSO+ GRT vesrelclarscs arc classificas lull-timc fishcrmcn.
' Offrhorc lobsler firhermen are clasaifasdfull-tims firhcrmcn and iheir effort is equiua-

lent ioafull-~im~-~q~i~~l~ ~atn-year.In 1980,ihcrc wcrc cight vessclractive. uitan
averagecrçw of icuen men. In 1980.Gcorgsr Bankaccountcd for 35 pcrccnt of landingr.
SecTablc 14 or this Appendix. GULFOF MAINE

TABLE 9

Direct Employmentin ProcessingGeneratedby the
GeorgesBankFishery, 1980

Total Procesring Full-timr-
Lsndings' Man-hourr Total Equiralent
Spçies (ml) pr tonne' Man-hourr Man-yearr'

Groundfish 24,940 48.75 1,215,825 623.5
Scallops 43.334 26.00 135.746 69.6
Lobster 194 32.50 6,305 3.2
Other Species 228 48.75 11.115 5.7

68.696 1,368.991 702.0
' NarthwcstAtlantic FisheriesOrganizaiiSfofisfical BullefVal. 30.1980.Table 5.
SeeDocumentarvAooendix 12.
, ..
SeeConodinn Mernorini, nnexesVol. IVs,ec.paras20-21,forlabour-outputcoefficients.
Thcsecoefficientsrelateta productionemployecsonly.nie man-hourfigureforsealtopsis
formeat-wei-ht. heconversionfactorfromlandedIomeatweibu is8.3.
' An averagefull-timccmployeein the firh procesringindurtry woras37.5 hoursper
week or 1.950hoursper ycar. Annuol S~arisfieolReviof ConadianFisheries.1980.
Val. 13.Ottawa. Deparimentof Fisheries andOceanr.Table 76. p. 1Sée Dacumen-
tary AppendixII. 1401 ANNEXESTOREPLYOFCANADA

TABLE 10

GeorgesBank Contributionto GDP

Originatingin the CanadianFishingIndustry,1980

Value
Georges Bank Piocesring Addcd per Total
Speier Landingr' Employment* Man-houi' ValueAdded
(ml) (man-hours) (S) (S)

Groundfish 24.940 1,437,588 10.68 15,353,440

Scallops 43.334 160.453 88.97 14.275.503
Lobster 194 7.452 10.68 79.587
Other 228 13.117 10.68 140.090

Total 29,848.620

' SeeTable9 of this Appendix.

Procesringemployment includcs boih produciion and administrative employees.since
both are included in the calculatiofvalue-addcdpcr man-hour. Administrative man-
hourr by specieare determincd on apro rata basisaccordingia the sharcoftotal proc-
cssingman-hoursaccounted forby cachspecies.

Spries

SçillopP Othei Total

Total Man-hourra 239.455 14,517,145 14.756.600
Wager 1.114.211 67.797.789 68.594.000

Costof Fuel andElectricity 225.968 7.733.032 7,959,000

Costof Materials and Supplies 67.057.952 486.202.048 553.260.000
andGoodrfor Resale
Vîluc of ShipmcntsandOther 88,361,280 646.478.720 734,840.000
Revenu:

Value Addedb 21.303.328 155,027,672 176,331,000
ValueAdded per Man-hour 88.97 10.68 1 1.95
i

Scallop processingman-hours arccrtimatcd by applying the labour-output caefficcnt
for rcallopsto total NovaScotia landingsin 1980and addingto this ligure theshareof
administrative employment attributable to rcallops. Total man-hours for the fishing
indurtry aswell as othcr aggregatr industry information appcaring in this Taare
taken from Monw/ocruring lndusrri~sO/ Conado: norionoland proi,inciooreos. 1980.
Statirtics Canada. CatalogueNo. 31-20), Tablc 19. p. 50. Data for "othcr" specicr

(groundîirh. crustaceans.pelagics)are the diffcrcnce betwcentotal industry data and
thedata for rcallap praccrsing.SccDocumentaryAppendix 10.
Value addedis calculaied net of inventory adjustmentsin thcaseof the "other" and
total industry figures.
Estimaterof scallopproccssingcortsarcbascd an information rupplicd by Nova Scotia

lish procesringcompanies.The valveof scallopshipmentsir cstimatedby applying the
averagemarket price (f.0.b. plant) ta 1980 landings.The difference between 1980
landings and 1980salesir insignificant for this overallcalculation.244 GULFOFMAINE 1411

Section III.Indirect Employmentand GDP Generated

in Canada by Fishing on Georges Bank

A. NATIONA LND PROVINCIA LONTEXTS

9. The employmentand income generated by fishing on Georges
Bank extend beyond the direct activities of the fishing industry itself.

Further employment and income are generated indirectly by the sale of
goods and services ta the fishing industry, and are induced when per-
sonal income generated directly and indirectly is re-spent in the
economy. Canada and the United States are in agreement that input-
output analysis is an appropriate method for measuringthe magnitude of
indirect and induced effects in a provincial c~ntext'~.Canada and the

United States are also in agreement regarding the specific input-output
relationshipsthat applyi9.

B. REGIONAC LONTEXT

10. The wider economic implicationsin terms of employmentloss
in southwest Nova Scotia arising from loss ofaccess to Georges Bank

are estimated using an economic base model of the regionZ0.An eco-
nomic basemodel dividesa regional economy intotwo sectors: the basic
sector and the non-basic sector.The model operates on the assumption
that the basic sector serves export markets while the non-basic sector
serves onlythe local market. A change in spendingon goodsand services
produced by the basic sector changes the level ofincome and employ-

ment in the basic sector. The income change leads to a change in
demand for, and productionof, non-basicgoodsand services.As a result,
the incomes of residents employedin the non-basic sector also change.
Through successiveroundsof spending changes,the regionwillachievea
new economic equilibriumcharacterized by higher or lower income and

employment levels, depending on the direction of the initial change in
basic sector activity.

11. The economic basemodel employment multipliers (1981) for
southwest Nova Scotia range from 1.20to 2.18. The size of the multi-
plierdepends on the magnitude of migration inducedby the economic
shock involved.The multiplier of 2.18 isassociated with loss ofaccess to
Georges Bank.

Section IV. Supplementary Economic and Fisheries Data

12. This section consists of statistical tables containingthe infor-
mation necessary to derive the estimates of employment and GDP for

Canada, and the information necessary to place the fishing activities of
the Parties in the proper economic context.

"Conadion Memoriol. pp. 79-80. para.167;Unired Slores Counier-Memoriol. Socio-
EconorniAnnex. Vol.IIIAppendix B.sec.5.pp. 47-48. par16.
leUnircd Slarcs Counier-Mcmoriol. Socio-Eonomic Annex. VIll.AppendixB. sec5.
pp. 47-48. para. 16.

'OIii,nr>feaiiblIO dc\clopdn inpui.ouipui mode. ai ihc ,ub-rcgonal Itlrnccdn
ihc indirrci ind ind~ccdeffecisoI~iof Gcorgci B~nklu,uuihucri \maJScoiiaimair i42l ANNEXES TO REPLYOFCANADA 245

A. SUPPLEMENTA DAYTAUSED TO DERIVE EMPLOYME ANND GDP

TABLE Il

Estimateof Fishing Effort in Primary Fishinign NovaScotia, 1980

Numberof Conversion Man-years
Classifiration' Fishermen Factor in Fishing

Full-rime' 5.519 1.O00 5.5 19
Pari-iirne 1.723

Occasional 4,190 0.125

Total 11,432 6.905

' bsed on percentof total incomeeariied from fishing.
Full-lime: 76.100 percentof income
Part-time: 26-75 percental income
Occasional:0-25 pcrcentof income
A conversionfactor of 1.0irusedfor full-lime fishermenbccausemost fishermen in
thiscategoryhavelitrle no supplcmentarysourcesof employment incomeSec Task
Forcean Atlantic FisheriVovigorittgTroubled Waters. A New Poliq'for th? AIIOIIC
Fisheri~p. 57,See DocumeniaryAppendix6.
-
Source:Annuol Starirticol Revier, ofConodian Fiiheri~sVol. 13,Table78.p. 116.

'TABLE12

Estimateof FishingEffort
in Primary Fishingin SouthwestNovaScotia, 1980

Number of Conversion Man-years
Clarrifieation' Fishermen Factor in Fishing

Full-tirne1 3.452 1.O00 3,452

Part-tirne 609 0.500 304
Occasional O.125
1,608 2
Total 5.669 3,957

' Baredon percentoftotal incomeearncdfrom fishing.
Full-lime:6-100percentof incamc
Part-lime: 26-75 perctf incomc
Occasional0-25percentofincomc

A conversionfdctaof 1.000isusedfor full-time fishermenbecausemost fishermenin
thiscntcgory havelittlcnorsupplementarysourcesof ernploymentincarne.See Tark
Farceon Atlantic FisheriNavigatiirg Trouhlrd WoreArNew Poli-./orthe Arlonric
Fishrriusp. 57.See DacumentaryAppendix6.

Source:CanadaDcpartrnentof Fisherics andOceans.unpublisheddaiu.246 GULFOF MAINE

TABLE 14

Georges BankGroundiishandLobslerLandingsasa Proportionof
Nova Scotia Landings bySpeciesandTonnageClass,1980
(RoundWeighl)

Groundilrh hndings

Tot.1
Tonnage Clas Novi Srorii' Ceorgcr Bankz Totil
(ml) imt) (%)

0- 24.9 2.476 3.9
25- 49.9 62.984 2.267 3.6
50-149.9 1.522 2.4
I50+ 135.245 18.675 13.8

LobnterLandingr

T0IP.l
TonnageC1.s Novi SotiiJ Ccorgcr Bank' Total

(niil (ml) i%)
- -
0- 24.9 5.9-3 - -
25- 49.9
50-150 319 157 49.2
l5O+ 234 37 15.8

' From Table IS ofthirAppcndir. This figurç sxcludcsIrndinhom e~elvrivclyinshorc
vcssclrin ihc 0-24.GRT vcrrcclassoihcr thun Gcorgçr Bank landingr. Mort othe
6.500 vcrrelin the0.24.9GRTclarr fircrelunivclynshorc andIhefirhermenarc clar-
rificd asacasional.

' Unired Stores Counler-Mernorial. Socio-E~onornic an ne^.Vol. 111,Appcndir E
Tablc 6.
From Tablc 15al thiApwndix. 247
t441 ANNEXES IOREPLYOFCANADA

TABLE 15

nova Scotia Catch hy Species and Tonnage Class
(Round Weight)

Source:AnnuoiSlorisricolRevofwt7onodianFisheries.19Vol. II. Table 32. p. 51
and Table45, p. 64Annuol Slorisricol RevofwCanodionFisheries.1980,
Val. 13. Table 41, p. 56 and Table 54,SeeDocurnentaryAppendicesII
and 13.248 GULF OF MAINE

TABLE 16

Total NovaScotia Landings - All ICNAF/NAFO Areas vs.
NovaScotia LandingsfromGeorgesBank, 1964-1981
(RoundWeight)

Total
Year Al1ICNAFINAFO Georges Bank' Total
('000ml) ('000 ml) (%)
-
1964 309.7 73.9 23.9
1965 354.2 67.8 19.1
1966 404.4 82.1 20 3
1967 380.7 73.1 19.2
1968 429.0 77.3 18.0
1969 364.8 52.2 14.3
1970 320.8 41.9 13.1
1971 347.6 53.0 15.2
1972 338.3 39.3 11.6
1973 328.0 39.5 12.0
1974 344.5 56.6 16.4
1975 356.5 70.0 19.6
1976 367.9 73.7 20.0
1977 407.1 121.1 29.7
1978 444.9 125.8 28.3
1979 421.2 91.2 21.7
1980 436.8 68.4 15.7
1981 467.5 84.3 18.0

' Referstostatisticunit-arcasSZej,5Zern.5Zehand 5Zcn

Source:AnnuolSlolislicol ReviewO/ ConodionFisheries. 1955-1976. Vol. 9.Canada
Department of FishériandOceans, Table 16.p. 51AnnuolSrarirricolReviewof
ConodionFisheries.1978,Vol. IITablc 22. p.41;ConadionCounler-Mernorial.
Annexes. Vol.IV. Annexes 45 and 46; Annuol Slnti~licol RevieO/ Conodian
Fisheries.1980Vol.13,Table23. p. 42Scc Dacumcntary Appcndix 13.id61 ANNEXESTOREPLYOFCANADA

TABLE 17

GeorgesBankLandingsas a Proportionof Total Landingsin Southwest

NovaScotia, 1964-1981
(RoundWeight)

Total Southwest
Nova Seotia GeorgesBsnk' Southwcst
Year Landings Landings No~sScotla
1 ('000 ml) ('000 ml) (%)

183.0 73.9 40.4
214.5 67.8 31.6
263.8 82.1 31.1
73.1
275.3 26.6
319.4 77.3 24.2
256.5 52.2 20.4
224.5 41.9 18.7
200.8 53.0 26.4
224.9 39.3 17.5
213.5 39.5 18.5
246.3 56.6 23.0
251.5 70.0 27.8
250.3 73.7 29.4
294.1 121.1
41.2
307.2 125.8 41.1
269.0 91.2 33.9
272.7 68.4 25.1
309.3 84.3 21.3
~ ~~
' Referstostatistical unit-arcas SZej. SZemand 5Zen

Source: CanadaDepartmentof FisherieandOceans.unpublishedkits B. SUPPLEMENTARY DATAUSED TO DETERMINE TIIE RELATIVEECONOMIC ~MPOKTANCE

OF TIIE GEORGEB SANKFISHERY TO CANADA AND THE UNITEII STATES

TABLE 18

EmploymenlandCross Domeslic Product(GDP), Canada', Nova6cotia1andSouthwestNovaScotia'

Minursrturing and
Prima.). ron,truction Servirri

T.."l..
Coinm.and Fin.Ina. Public
A i Sub- hlsnu- Construc- Sub- Other .nd 0th~ Adminil- sub-
lorratry ~ining lirhinb culture total lrrcuiing nion cat.~ litiliti~rirade RC~I ~sf.trseriires mtire total 0th.. TO~I

Employmrnt

<'m)

Canada. 1980 68.7 170.2 4 477.0 730.0 1.8515 455.6 2,3071 842.7 1,5554 517.1 2.766.4 635.5 6.317.1 - 9.354.2
~~~~p-~~
Nova Scoiia.

Scotia. 1980 4.5 1.5 802 17.0 101.2 243.3 57.1 300.6 73.0 120.2 11.2 118.7 72.5 455.6 859.4

' United Slorer Caunlrr-Msmor;al. Sorio-Eronowic Annex. Vol. III. AppendixA. Tabler 1and 2

Sec Tabls 19al thir Appcndix.ANNEXESTO REPLYOF CANADA TABLE 20

EmploymenlandCrossDomesticProduct,United States andMassachusetts

omm. ."d Fin. In,. Publie
1F 1n i 1h i 1 1 1 f C ' iS 1 r d S ? 1% 1 1 Othcr1 TN.1 1
. 1 - O
Emplqmrnt' C
- - -
United Statcr' 1.012 1.149 2:550 19.719 4.074 23.793 4.903 17.134 4.949 16.266 16.305 59.557 85.900 n
MassachuseitrJ ,114 1.277 3.706 4.261 9.358 697.19387.224 784.417116.476568.612 160.418640.438 - 1,485944 11.8902,291609 3
2
GDP (Billions i5
of 197U.S.5)
Unilid Stutcr' - 21.6 - 34.2 60.7 351.2 53.3 404.5 140.8 243.2 237.9 189.0 177.3

Massa~h~sctt~~ - - - - - - - - - - - - - - - 37.945

' United Stafiguresain '000,000: Marrvchuscttarc i'000.
Survqvof CurrenrBusiness.1982, United States Dcpartmcnt of Commerce. Bureau ofp.4. Sec DaumcnlaAppcndir1Documcni2.
' CountyBuriners PairrrnsMoxsochu$eliTable IB. pp. 3-14.
'New England EconomicIndicaiors. FRcscrvBank of Barton. Boston. MarsaJunc1982. p. A-5. See Documeniary Appendir 2. ANNEXES TO REPLY OF CANADA

TABLE 21

LabourForce bySector, 1980
Souihweri Eastern
NovaScoiia hlassaçhureiir'

(persans1 (%) 1(perrons1 (%)
I
Other Primary 3,785 7.2 4.398 0.2
TOTALPRIMARY

Oihcr Manufacturing 6.855 13.3 499,426 0.2
Construction 1 3.475 1 '::: 1 69.5221 '1:; 1
TOTAL SECONDARY 17.345 32.9 572.826 32.2
TOTAI. TERTIARY 27.685 52.5 1.187.101 66.7
Othcr 1.710 3.2 12.283 0.7

TOFORCEABOUR 52,710 100.0 1.780.314 100.0

Camprehcnsilabofarcdataat theindustryor sectorlevelare no1rendilyavailable
forindividualcountier.This isnoterpecansignilicantbiasin thedirtri-
-butionshown.
SoidrCounry Btirinar Parlerris. 1980. MUnited Siatcr Depaofment
Commerce.ureaof theCensus.Ma198andTabl18ofthir Appendix.254 GULFOF MAINE [SI]

TABLE22

Volumeof Canadianand UnitedStates Landings(All Species)
fromGeorgesBank', 1964-1981

Year
i

Refers to stalistiareai5Zej5.Zem.5Zçhand5Zen.

SourcsCanada Department of FisheriesOceans.unpublished data. United States
Department of Commerce. National MaFisheries Service. Data Management
and Statistics Division. cornputer priniouts.(521 ANNEXES TO REPLY OF CANADA 255

TABLE 23

value' of CanadianandUniicd States Landings(All Species)
fromGeorgesBank', 1964-1981

Canada UniteS,iter

Yen, (SOOO) l (90) 1 ISOOO) I (90)

'Lïndcd vnlucr calculalcd uring priccr set ou26.n Tablc
>R~ferr io rvïiisticaarcï5Zcj. SZcm. 5Zch and 5Zcn.
-
Source:Canada Dcpïrtmçnt of Fi,hïriçand Oeîanr.unpublirhçd data. UnitSiuler
Dcwrimcnt of Cammcrcc. SïiionaMarine FirhcricService. Dala Managemrnt
and Statiriics Division. computcr printoulr.

TABLE 24

Volumeof Canadianand UnitedStates Scallop Landings
fromGeorgesBank', 1964-1981

Can~da United Srxier

I Year (ml) 1 (90) I (ml) I (90)

-
SourrcCanada Dcprtmcnt or Firhcricr and Occans.unpvblirhcd data. UniSiaicr
Dcparimcni of Commerce. Notional Marinc Fishcricr ScDataManagcmcnl
and SiaiirtiDivision. compuicr priniouir.256 GULFOFMAINE i531

TABLE 25 AverageAnnualPrice of Offshore Catch by Species - NovaScotia', 1964-1981

(S/Metric Ton)

1% 1965 1966 1961 1968 1969 1910 1971 1972 1973 1974 1915 1916 1971

Amcrican Plaice --- - - 98 114 115 116 144 170 169 185 208
--- - - 998
AlInntic Halibul 528' 651 612 665 1.083 695 859 1.018
Cod 88 92 101 98 104 102 95 102 116 139 185 189 194 227

Curk 86 106 81 36 47 39 46 53 68 93 104 112 108 102
Haddock 114 122 130 35 144 152 186 190 214 288 340 344 355 367

Herring - - - 29 26 22 25 32 37 44 71 39 63 110
- - - - - 1.728 1.497 1.761
Lobitcr 2.383 2.582 2.603 2,844 3.199 3.185
Mailcicl - - - - - 112 134 !41 133 ISI 170 134 191 1?5

Pollock 54 67 73 '73 58 53 57 70 81 91 123 127 125 130
Redlish 71 67 73 62 61 64 71 79 91 111 112 119 124 148

Scallops 117 146 109 156 235 236 290 311 425 ,395 353 383 417 380
- - 143 148 202 116
Skaicr 24 52 104 24 47 40 37 56
Suordfirh 575 787 746 1.209 1.774 1.271 1.012 - - 194 - 414 1.611 1.846
- - - -
Sqvid - - 184 203 - - - - 191 213
Whiic Hake - 60 73 44 59 43 46 50 76 '109 103 156 166 101

Winiçr Flounder 80 81 95 94 91 55 110 Il6 119 145 129 153 173 172
- - - - -
Wifih 118 132 132 134 164 191 192 199 228
Yclloufailrlounder 78 68 67 61 74 95 106 104 98 106 23 120 135 157
-
Ansler - - -----------
Rcd Hakc - - - -----------

Silvcr Hake - - - - - - - - - - II 9 - -
- - - -----------
Sumrncr Flounder
WollCi~h 64 - 65 64 64 - - .- - - - - - -

'Pricrs shown arefor I.unenburg.

Source: Cnnsdr Depîrimcni of Fishcrics and Oce~ns.~~~~bliahcddniï.258 GULF OF MAINE [55-561

TABLE27

Sourcu:CanadaDepartmentof FishericsanOccans. unpublisheddata United States
Departmeniol Commerce.National Marine FisheriesService.Data Management
andSiatiitics Division.compuierpriniouts. ANNEXES TO REPLYOFCANADA 259

, . I
Appendix2

SOUTHWE STVASCOTIA Ë:ONOM BAISEMODEL,1971AND 1981

[Fp.59-10113-124no1reproduced]260 GULF OF MAINE [los]

TABLEA.2A

FinalAllocations,Basic andNon-Basic Sectors, 1981

Exp.Lbr. Allae. Serlor Allocation
Force Code Basie Non-basic

AGRICULTURE 1.325 150 1.175
Farms 1.260 LQ 142 1.118
Services Incd. to Agriculture 65 LQ 8 57
FORESTRY 780 780 -
645 E 645 -
Farestry Services 135 E 135 . -

FlSHlNG AND TRAPPlNG 3.785 3,752 33
Fishing 3.720 ALQE 3.688 32
Fishcry Services 65 ALQE 64 I
MINES. QUARRIES AND OIL
WELLS 80
Misc. Metal Mines 5
Crude Petroleum& Natural Gas 20
Gypsum Mines 10

Oiher Coniraci Drillingetroleum 25

Mirc. Scrv. Incd. to Mining 15
MANUFACTURINC 13.870
FOOD AND BEVERAGE
Meat & Pouliry Rroducts
LQ
Fish Products ALQE
Fruit& Vegetable Procesring N
Dairy Products N
Flour& Breakfast Cereal
Product
Bakery Products
Misc Fwd Industries
Beverage Industries
RUBBER AND PLASTICS
PRODUCTS
Rubber Products Industries
Plasticsabricating

LEATHER
Shae Factories
Lug.. Hbag& Sm. Lgaods
Mfgr.

cordage& Twine Industries
Canvas. Cotto& Jute Bagr
Miac.Textile Industries

/ KNlTTlNG MlLLS 30 16
Knitting Mills (Expt. Hosiery) 30 LQ 16 14262 GULF OF MAINE 11071

TABLE A.2A

Final Allocations,Basic and Non-Basic Sectors, 1981 (Continued)

Residenl Final Seetor Allocation
Exp. Lbr. Alloe.
Force Code Basic Non-basic

TRANSPORTATION
EQUIPMENT
Truck Body& Trailer
Manufacturer
Shipbuildin& Repair
Boatbuildin& Repair

ELECTRlCAL PRODUCTS
Communications Equip.Mfgr.
NON-METALLIC MINERAL
PRODUCTS
Clav Produets Manufacturers
. ~toie Products Mfgr.
Cancrete Products Mfgr.
Ready-mix Cancrete Mfgr.
Glass& Glass Products Mfgrs

Misc. Non-metallic Minerals
PETROLEUM AND COAL
PRODUCTS
Peiroleum Refineries
Misc. Pctraleu& Coal
Products

CHEMICAL AND
CHEMICAL PRODUCTS
Plastics Synthetic Resins
Mlgr.
Paint& Varnish
Manufacturers
Soap & Cleaning Compounds
Mfgrs.
Toilet Preparatianr Mlgr.
Industrial Chemicals Mfgr.

Misc Chemicalr Mfgr.
MISCELLANEOUS
. MANUFACTURING
Scientif&c Professional
Equip.
Jcwellcr& Silverware
Sporting Good& Toy

Industries
Misc.Manulacturing Ind. Nes
CONSTRUCTION 3,475 131 3.344
Building Construction 815 ALQP 89 726
Highway. Bridge& Street Const 500 ALQP 6 494
Other Construction 260 ALQP 36 224
Special Trade Contractors 1,900 ALQP - 1.900

TRANSP. COMM. AND OTHER
UTlLITlES 2,850 ANNEXESTO REPLY OFCANADA
Il081

TABLEA.ZA

FinalAllocations,Basic andNon-Basic Seçtors, 1981 (Conrinued)

Resident Final SectorAllocation
Exp.Lbr. Alloc.
Industry Force Code Basic Non-basic

TRANSPORTATION
Air Transport ALQ
Serv. Incd. ta Airsport
Railway Transport ALQ
ALQ
Watcr Tranroort E
Serv.Incd.; Watcr Transporl E
~Woving& Storage ALQ
Oiher Truck Transport ALQ
BusTrans.. Interurb&n
Rural ALQ
UrbanTransit Syriemr w
Taxicab Operations ALQ
Highway & Bridge
Maintenance ALQP
Misc. Serv.Incd. toTranspart ALQ
Other Transportation ALQ

STORAGE
Other Starag& Warehousing ALQ

COMMUNICATION
Radio& TV Brondcasting ALQ
TelephoneSystems ALQ
Telegraph& CableSyrtrrns ALQ
PusiOflice ALQ
ELECTRIC POWER. CAS
AND WATER

Electric Powcr ALQ
Watcr Systemr ALQ
Other Utiliiies ALQ
TRADE

WHOLESALE
Wralersof PetroleumProducts ALQ
WsalerrofPapcrProducts ALQ
Wsalersof General
Merchandise ALQ
WralersofFood ALQ
Wsalersof TobaccaProducts ALQ
Wsalerr of Dru&rToilet
Prcp. ALQ
Wsalers oApparcl& Dry
Goods ALQ
Wsalcrsof Hhald Fur&.Fur. ALQ
WralersofMotar Vhcle Acc.
ALQ
Wralersof ElecMach.Equip. ALQ
Wralersaf Farm. Mach.
Eaui~. , ALQ
\v&ier; af Mach. Equip. Ncs ALQ
WsalerrofHdwr. Plum.& Ht.
Equip. ALQ
Wsalersof Metal Nes ALQ
WsalersofLumb. & Build.
Mot. ALQ
Wsalersaf Scra& Wnsie
Mnt. ALQ
WholeralcrsNei ALQ GULFOFMAINE

TABLEA.2A

FinalAllocations,Basic andNon-BasicSectors, 1981 (Continued)

Resident Final Seetar Allocation
Exp. Lbr. Alloc.
lndustry Force Code Basic Noa-basic

RETAIL 6,700
952 5.748
FoodStores 1.535 ALQ 335 1,200
Gcneral Merchandise Stores 1.300 ALQ - 1,300
Tire. Batte&y Access.Starcs 150 ALQ - 150
Gasoline ServiceStations 515 ALQ 139 376
Motor VehicleDealers 635 ALQ 210 425
Motor VehicleRepair Shops 435 ALQ 6 429
Shoe Stores 45 ALQ - 45
Men'sClathing Stores 40 ALQ - 40

Wamen'sClothing Stores 145 ALQ - 145
Clothing& Dry Gaods Store
Nes 200 ALQ 29 171
Hardware Stores 130 ALQ - Il0
Hhld. Furn.& Appl. Stores 410 ALQ 116 294
Radio TV & Elec. Appl.
Repair 35 ALQ - 35
Drug Stores 340 ALQ 96 244
Book & Statianery Stores 40 ALQ - 40
Florists Shops 60 ALQ - 60
JewelleryStores 110 ALQ 15 95
Watch & Jewellery Repair
Shopr 5 ALQ - 5
Liquar Wine& Beer Stores 90 ALQ 6 84
Retail Stores Nes 480 ALQ - 480

FINANCE. INSURANCE AND
REAL ESTATE 1,350 33 1.317

FINANCE 830 33 797
Banks & Othr DepositAccp.
Est 685 ALQ - 685
Other Creditgencies 120 ALQ 33 87
Security Broker& Dealers 5 ALQ - 5
Investrnen& Holding
Cornpanier 20 ALQ - 20

INSURANCE AND REAL
ESTATE 520 - 520
Inrurance Carriers 90 ALQ - 90
Inrurance& Real Estaie
Agency 285 ALQ - 285
RealEsiate Operators 145 ALQ - 145

COMMUNITY. BUS. & PERSL.
SERV. 11.095[Il01 ANNEXESTO REPLYOFCANADA 265

TABLE A.2A

Final Allocatioos, Basic and Non-Basic Sectors, 1981 (Conrinued)

'Resident Final
Exp. Lbr. Alloc.
Force Code Basic Non-basic

EDUCATION AND RELATED 2.855
Kindergartens & Nursery
Schaol 40 C
Elcmentary& Sccandary
Schmls 2.330 C
Schwl of Art& Perf. Ar1 35 ALQ
Voc. Cire Trad& Bus.
Schmls 55 ALQ
Post Sec. Non-uni". Inst. 5 ALQ
Universities & Colleges 175 ALQ

Libr. Museum & Othr
Repository 200 ALQ
Education& Related Serv. 15 ALQ
HEALTH, WELFARE AND
RELlGlOUS ORG.
Hoipitals
Related Health Carc lnst
Offices of Physic&an
Surgeon

Officesf Para-mcd Personnel
Officesof Dcntirtr
Diagnosti& Thcrap. Serv.
.e.- ALQ
Welfare Organizatians C
Religious Organizationr C

Entert.
Misc Amuse. & Recreation
Serv.

SERVICES TO BUSINESS
MANAGEMENT
Empl.Agencies& Persl Supplr ALQ
Computcr Services ALQ
Sccurity BiInvestigation Sew. ALQ
Offices of Accountants ALQ
Advertising Sem. ALQ
Offices of Architects ALQ
Engineerin& Scientilic Serv. ALQ
Offices ofwycrs & Notaries ALQ
Offices of Mang&.Bus.
Consli.
Misc. Serv. Bus.Mangi.266 GULFOFMAINE Il111

TABLEA.2A

FinalAllocations,Basic and Non-BasicSectors, 1981 (Concluded)

Residenl Final SeçrorAllocalion
Exp. Lbr. Alloc.
Induslry Farce Code Basie .Non-basic

PERSONAL SERVICE 840 14 826
Shoe Repair Shaps 5 ALQ - 5
Barber& Beauiy Shops 285 AL: I 284
Privait Houreholds 335 - 335

Laundry Clean& Pressing 70 ALQ - 70
Self-serv. Laund& Dry
Cleaner 25 ALQ 13 12
Funeral Services 65 C - 65
Misc. Persanal Services 55 ALQ - 55
ACCOMMODATION AND
FOODSERVICE 2,325 820 1.505
Hotelr& Motels 805 E 805 -

Lodging Hauses& Resid.
Clubs 1O LQ 3 7
Camp Crounds & Trailer
Parks 50 LQ 12 38
Restaurantsaterers&
Tavernr 1.460 LQ - 1.460

MISCELLANEOUS
SERVICES 510 - 510
LabourOrgan. & Trade Assoc. 50 ALQ - 50
PhotographieServices Nes 30 ALQ - 30
Automobile& Truck Rcntal 20 ALQ - 20
Machinery & Equip. Rental 1O ALQ - 1O
Blacksmiths& Welding Shops 40 ALQ - 40
Misc. Repair Shops 45 ALQ - 45
Serv. to Buildin&s Dwellers 55 ALQ - 55
Misc. Services Nes 260 AL9 - 260

PUBLIC ADMINISTRATION
AND DEFENCE
DefenceServices
Other Federal Administration
Provincialdministration
Local Administration

TOTAL11121 ANNEXESTO REPLY OF CANADA 267
Final Allocation Codes for Tables A.2 and A.ZA

N = Assigned to Basic Sector because of workers working out-
side the region. . .

C = Assigned to Non-Basic Sector because output of industry is
consumed in region.

E = Assigned to Basic Sector because of specialized nature of
production.
R = Allocation based on the ratio of Basic and Non-Basic Sec-

tors in al1other industries.
LQ = Allocated based on initial allocation.

ALQ = Allocated based on region-national location quotient.

ALQP = Allocated based on region-provincial location quotient

ALQE = ~llocaied based on region-national less exports location
quotient.
ALQO = Allocated based on region-national cxcluding Ottawa-Hull

and southwest Nova Scotia location quotient.
ALQH = Allocated based on region-provincial excluding Halifax and
southwest Nova Scotia location quotient.268 GULFOFMAINE

Appendix3

SURVERYEPOR-TCLARKH'SARBOUCOMMUNI TYUSTER

[Norreproduced]

Append4x

THESMALVLESSELLEEOFSOUTHWE STVASCOTIA

[Notreproduced] ANNEXESTO REPLYOF CANADA

Appendix 5

GROWTH AND DIVERSIRCATION

INTRODUCTION
1. This Appendix presents the relationships between landed

prices, market prices and processing costs for scallops and groundfish.
These data form part of the refutation of the United States contention
that Canada has exaggerated the contribution of fishing on Georges
Bank to the economy of southwest Nova Scotia'.

2. The United States alleges that fishing on Georges Bank makes
a significant contribution to only the economies of five ports1.Part 1of
this Annex has proven this to be false for a number of well-documented
reasons'. This Appendix demonstrates that Canada's participation in the
Georges Bank fishery has been sufficiently profitable to allow companies
engaged in scalloping on Georges Bank to grow and diversify at a rate
that would have been impossible without access to this resource.

The Relationship Between Landed Prices,
Market Prices and Processing Costs

3. Scallops are sold by fishermen to processors in a form that
requires little further processing before being marketed. Scallop process-
ing is limited to washing, freezing and packaging. Groundfish. on'the

other hand, requires considerable processing before going to market.
This relatively labour-intensive activity includes sorting. washing. fillet-
ing, packaging and freezing. Processing costs per uni1of weight are sub-
stantially higher for groundfish than for scallops. With a greater abso-
lute difference between landed and market prices and a smaller
processing cost per unit of weight, the returns to the processoi are sub-
stantially higher for scallopsthan for groundfish.

4. Data on the landed prices, market prices and processing costs
for scallops and groundfish are shown in Table 1 for the years 1977 to
1980. These data show that. in 1978, processors earned profits on both
scallops and groundfish. although scallop profits were substantially

higher per unit of weight. However. in 1980, with adverse market condi-
tions and rising costs, the market price received for groundfish products
fell below the overall cost of production (landed price plus processing
costs). Scallop prices remained buoyant and processing costs low,
thereby continuing to generate profits for processing companies. For
companies engaged in both scallop and groundfish production, ground-
fish losses were wholly or partially offset by scallop revenues.

'UtziredSiores Counrer-Memoriul. Socio-EcononzicAtrVol. 11Anner 4.pp.20-29.
paras. 21-27.
'Unired Stores Counrrr-M~n,orial. Soeio-Econo>nicAVol. IIIAnnex 4.pp.25-26.
para. 25.
'See Part 1pp.15-17paras.21-29. GULFOFMAINE [1501

TABLE 1

Market Prices, Landed Prices And Processing Costs:
GroundfishAndScallops, Nova Scotia, 1977-1980'

1977 1978 1979 1980

Groundlish

Market Price
Litndçd Price
ProcessingCosi2

M.<~ut~r~aIs

Overhead
Totsl Cost
Net Revenue' 0.23 0.16 0.09 (O.13)

Scallops

Market Price 4.89 8.07 8.85 11.34
Landed Price 3.13 4.83 6.91 8.09
ProcessingCosl'

Labour 0.21 0.26 0.28 0.30
Materials 0.09 0.10 0.11 0.13
Overhead 0.07 0.09 0.10 0.11
Total Cos1 -.29 -7.39 8.64

Net Revenue' 1.39 2.78 1.46 2.70

'All Iandcdand msikct prices arc annuîl averagesfor Nova Scotia.Pricesare drawn
fruni Annunl Sl~rirrical Ruviewof Conadion Fi.?hrrier. 1Vol. II.Table23. p. 42:
Table 52. p. 74: Annuol Srarisiical &vie%, of Coirodion Fisheria.1980. Vol. 13.
Table 24.p.42:Table62. p. 80.SeeDocumcniaryAppendices II and 13.
'Gruundlish procersingcortrarebared on data [rom ihcTask Force onAtlantic Fisher-
ies: Novigoring Tmubled Warers. ANe*, POIICJfor theArlanric Fish~riesTable5.15.

p.95and p.275.SeeDocumentaryAppendir 6.
'Set revenue rcfcrstothediffcrencebetueenmarket priceand ihe sumof lsndedpricc
and procesringcortr.
'Sc.illop prwc\r.nidri.are dcrnrd (rom dxia rupplicdb! prur.r.rr.nrcumpaniçCu>!<
for 19S0rang frum50ji/Kg tuIO 53/Kg Forth.\ dn~l!,i, ihr.highefigurei,~,çd ANNEXESTO REPLYOFCANADA

Appendix 6

CANADIA AND UNITED STATEF SISHERIE POLICIES

Section 1. Canadian Fisheries Policies

Introduction

1. The purpose of this Appendix is twofold: jirsr,to refute the

United States allegation that Canadian fishing activity on Georges Bank
is uniquely a result of government policies'; and secondly. to correct the
erroneous suggestion that the United States fishing industry did not ben-
efit from financial assistance2.

2. The United States coiitention regarding government policies is
two-pronged: the first part of the argument alleges that Canadian vessels

fish on Georges Bank becausc they receive financial assistance: the
second part of the argument alleges that Canadian vessels fish on
Georges Bank because the Government of Canada prevents thern frorn
fishing elsewhere. 60th contentions are patently wrong and are attempts

to disguise the simple fact that economics, i.e.. supply and demand for
certain fish products, determines where fishing activity occurs.

A. GOVERNMENA TSSISTANCE TO FISHERIE N CANADA

3. As in the case of al1 other industrialized countries', Canada
renders financial assistance of various kinds to its fishing industry. Like
the provision of roadS and airports, it is a standard obligation of govern-

ments to provide infrastructure, such as breakwaters and docking facili-
ties. to assist the fishing industry.

4. In Canada, the acknowledged social need to maintain a large
labour-intensive inshore fisheries sector means that financial assistance
has been provided to improve the incomes of this sector'. This aid has lit-
tle bearing on the offshore fishery of Georges Bank. and the United

States has not taken issue with such assistance'.

' UnircdS~OIP Sounltr-M~moriol. Soeio-Erononiir Annrx. Vol. III. Anner 4. pp. 33-35,

paras.36-43.
'Unired Sroies Counrer-Mernorial. Sorio-Econornic A,!nrx. Vol. III. Annex 4. pp. 33-35.
paras.36-43.
'See the following publicationsof ihe Organisatilor Economic Cwperation and
Develapment:Finoneiol Supporr ro ihc Fishing Indurrry of Ot'DC Mentber Counrries.
Paris. OECD. 1965: Finoncial. Support ro the Firhing lndusofyOECD Metnbcr
Coonrries. Paris. OECD. 1971: Finonciol Support ro lhe Firhing IndofrOECD
Mcrnber Counrries. Paris.OECD. 1980.
'Thç Groundfi~hBridàing Pr.igr3m dii1.rdcccssorth< Gru~ndfi.h Ttmpurÿr) .\\r,it.
soce Pr<igrdm.uercJrc.'gnei.pruvldcpricrr~ppii di.i1me of JJ.,J>I~~LeI>r<?r~r?
uc.<kner<in gru~ndfi~m:~rleiThcx' piogr;im\ ucr.ncflcit frdm 1971ta 977

'The United States supportsils contentionsrcgiirdinggroundfirh pricc supportswith an
article on rcallopstockassesrmentwhich it doer not annex. Sec Unil~d Srara Counrer-
Mcrnoriol. Socio-EconornicAnna. VoIII.Anncx 4. AppendixD.p. 3. fooinole6.272 GULFOFMAINE il561

5. The United States does take issue with the use in Canada of
vessel-construction subsidies, stating:

". . . duein large measure Io the vesse/-construction subsidy pro-
gram of the Canadian government, by 1964, the new and expand-
ing Canadian scallop fleet on CeorgeS.Bank was taking about one-
half of the scallops from the Bank6". [Italicsadded.]

This is an unusual argument for the.U,nited States to advance in light of
the vessel-construction subsidy programs that were in operation in the
United States at the same tirne. The Fishing Fleet lmprovement Act
provided vessel-construction subsidies of up to 50 percent of the cost of
construction'. The main beneficiary of this program was the New Bed-
ford scallop fleet8.

6. Furthermore, the United States has based its allegation, for
the period prior to 1961, on an article which says that subsidies might
have been a consideration in the expansion of Canada's Georges Bank
scallop fleet9. The United States fails to point out that in the immedi-

ately preceding paragraph the authors conclude that:
"The expansion of the offshore [Canadian scallop] fleet in itself
suggests the profitability of the fishery. There were apparent

advantages in exploiting more intensively the high-unit value scal-
lop fishery on the readily accessible Georges Bank scallop grounds.
The scallop resource was quite unlike the low-unit value product
(groundfish) traditionally landed in the Provinces. It would also
appear that the differential between ex-vesse1 prices - usually
from 5@ to IO$ a pound lower in Canada - was such that costs in
Canada were sufficiently low to justify such an expansion'"."

The authors, accordingly, agree with Canada that economics determine
where fishing takes place.

7. The Canadian legislation which the United States has objected
to was established to "provide assistance to Canadian shipping and ship-
yards1'" and not to the fishing industry. The objective is to lower the
price of Canadian-built vessels so that they are cornpetitive with vessels
from foreign shipyards. Canadian customs records show that vessels have
continually been imported into Nova Scotia. This is proof that vesse1

UniredSioies Counier-Memorial. pp.59-60. para.74.
'MargaretE. Dewar:Indusrry in Trouble. Philadelphia.Temple University Press.1983,
p.68.See DocumentaryAppendix14.

MargaretE. Dewar:Indusrry in Trouble. ~hiladel~hia.Temple University Press.1983,
p.68.See DocumentaryAppendix14.
'R. M. Doherty.G. P. Drahcim.D. J. Whiteand CL. Vaughn: "SeaScallop lndustryof
Canada."Commercial Fish~riesReview. Val. 25. No. 7. July 1963. p. 12. UniredStores
Memoriol, Doeumenrary Annexes.Vol. IIAnnex 21.
Io~niied~iaies Memoriol. Docomen1or.Annexes.Val. II,Annex21. p. 12.
"Propasalsfor AssistingShippinand Shipyards."Record of Cobinei Deelsion. 6 Sep-
tember.1961. Ottawa. Privy Council Office. Scptcmbcr 1961. See Docu'mentary
Appendix15.11571 ANNEXESTO REPLYOF CANADA 273

subsidies have not given Canadian fishermen any advantage that they
would not have had with free access to foreign shipyards. It is now felt
that. in many instances when a subsidy is given to boat-buyers. the vesse1
price rises and the subsidy is passed on to the boatbuilderll.

B. CANADIAN FISHERIEP SOLICIES HAVEPREVENTE IHE
OVER-EXPLOITATIO OF GEORGES BANK
BY CANADIAN FISHERMEN

8. The United States contends that Canada has solidified its posi-

tion on Georges Bank due to its inflexible fisheries policy. which
allegedly does not allow the offshore scallop fleet to exploit other species
in inshore areas or in resource-rich areas off Newfoundland. It further
contends that the Nova Scotia offshore groundfish fleet, due to a conflict
between Nova Scotia and Newfoundland. has been forced to fish on
banks to the south and West, Le., on Georges Bank. These contentions
reflect the United States incomprehension of the Canadian fishing
industry.

9. It has already been demonstrated that the operations of
Canadian offshore vessels were restricted by the Government of Canada
before the mid-1950s". Alter these restrictions were relaxed. Canada's
Georges Bank fishery quickly expanded. Canada. because of ils depend-
ence on fishing resources. has limited entry into the offshore scallop fish-
ery, and indeed into al1 fisheries. As a result, Canada has prevented its
150 groundfish trawlers from being diverted to scalloping when scallops

have been abundant. Canada has also acted responsibly in prohibiting
the use of factory-freezer trawlers on Georges Bank.

10. Beginning in the late 1960%Canada recognized that, if fish-
eries were to be managed in accordance with economic objectives. lim-

ited entry was necessary. Since Canada's offshore flcets had acquired
economic advantages (e.g.. ecoiiomies of scale) by spccializing in certain
fisheries, andbecause ICNAF regulations were already on a species-by-
species basis, Canada instituted limited entry for species groups (off-
shore scallops 1973, groundfish 1973). This was the first tentative step
towards rationalizing the Canadian fishing industry in relation to
economic objectives and preparing Canada for extended fisheries
jurisdiction.

II. Since 1977 the Nova Scotia trawler fleet, as a result of
Canada's Atlantic Groundfish Plans, has been encouraged to fish the
northern groundfish stock to the north and east ratherthan to the south

~ ~
"Sec D. M. Baker:The Fishing Vpsrtl A.vsirronccProgrornin Nova Scorio. Hisroricol
Perspeeiiveand EeonornicAiralunpublishethesisKingston.Queen'University.
March1983.
"Con~dion Memoriolp. 86. para.188.274 GULFOF MAINE [1581

and Westas the United States suggests. In 1977, Canada instituted quo-
tas and other controls in the offshore groundfish fisheries following the
extension of jurisdiction to 200 miles. At this time, it faced the following
problems:

(a) The Gulf of St. Lawrence redfish stock was depleted and the inshore
and offshore fleets based in the Gulf had excess harvesting capacity

in relation to the resource. As a result, "outside" (non-Gulf of St.
Lawrence) trawlers of Newfoundland and Nova Scotia were di-
verted as much as possible out of the Gulf.

(b) Displacement of the outside trawler fleet from the Gulf of St. Law-
rence caused problems for the processing plants in the south coast of
Newfoundland and the Sydney Bight area of Nova Scotia. These
plants relied on obsolete side trawlers and low-powered stern trawl-
ers which had been heavily dependent on Gulf of St. Lawrence red-
fish. Not only were these trawlers cut off from this redfish stock.
they now faced competition for other stocks on their doorstep and
did not have the seaworthiness to be diverted to more distant banks.
As a result, the side trawlers and low-powered stern trawlers were
given preferential allocations on the eastern Scotian Shelf and the
south coast of Newfoundland.

(c) Giving preferential treatment to these older trawlers in the area of
the entrance to the Gulf of St. Lawrence caused problems for the
higher powered stern trawlers that sailed chiefly from Riverport,
Lunenburg and Canso in Nova Scotia. Resources were scarce in the
Scotian Shelf/Georges Bank areas at that lime, so that these trawl-
ers had to find opportunities on the Grand Banks and to the north,
where they had never traditionally fished. The only stocks in these
areas that were not fully exploited at this time were cod and redfish

off Labrador.

12. In subsequent years. the groundfish plans followed the initial
pattern set in 1977. with marginal adjustments being made on the basis
of the followingcriteria:

(a) adjacency to resource;
(b) relative dependence of coastal communities and the various fleet sec-

tors; and
(c) economic efficiency and fleet mobility.

13. Canada's management system minimizes the element of
instability in the fisheries. and as a result. Canada's economic depend-
ence on the Georges Bank fishery has increased over time. With the
present United States open-access system. stocks are often depleted, thus
leading to greater instability. The importance of the New England fish-
ing industry has decreased over time. and although the United States has
attempted to create the illusion that its increased 1977-1981 activity is
part of a historical cycle, is merely an aberration. ANNEXESIO REPLYOf CANADA

Section II. United States Fisheries Policies

Introduction

14. In its Counter-Memorial. the United States has continued to
suggest that the United States fishing industry has not benefited from
financial assistance". In fact, there have been a number of United States
federal assistance programs specifically directed to the fishing industry,

and numerous other federal and state programs which may and do pro-
vide financial assistance to the fishing industry. Some of the programs
provide assistance for fishing vessel construction or renovation, some
benefit fish processors, and others indirectly assist the fishing industry
by improving public on-shore facilities. This section will identify many of
these sources of assistance to the fishing industry in the United States.

A. FEDERAL GOVERNMEN ATSSISTANC TO THE FISHINGINDUSTRY IN
THE ~JNITED STATES

15. There are a number of United States federal financial assist-
ance programs specifically designed to benefit the fishing industry. Since
the United States was particularly critical of the Canadian vessel-con-
struction subsidy program, it is of particular interest here to note that

the United States Government had a comparable program designed to
meet similar needs. On 12 June 1960, the United States Congress passed
a fishing vessel Subsidy Act, thestated purpose of which was "[tlo pro-
vide a program of assistance to correct inequities in the construction of
fishing vessels and to enable the fishing industry of the United States to
regain a favorable economic e ta tus'^.. .". In fact, the Act was intended
primarily to enhance the status of the New England fishing industry. As

is stated in the Report of the House Committee on Merchant Marine
and Fisheries summarizing the "need for the legislation":
"At the present time, the New England fishery is in dire Straits

by reason of the fact that imports of frozen fish fillets at prices
below the cost of production have caused severe losses. . .
The New England industry is forced to compete not only with

the lower wage costs of its competitors in Canada, Iceland, Britain,
and elsewhere, but with the lower cost of vessel construction in
those c~untries'~."

''Unircd Sraies Counrer-Memoriopp.59-60para.74.
'sUnire-dSrnr~SubsidyAcr,PublicLaw 86-516, 74 United States StatutLarge 212.
1960 (codificd at 46 United States Code, sec. 1401,as amendedin 1964 and 1970. and
subrequenilydeleted).

'6ance for the ConstructiofFishing Vessels".House of Reprcscntatives.Report Na.
770, 86th Congress. 1st Session, 1959, p. 3. See DocurnentaryAppendix 16.See also
"Providinga Programof Assistance Ior the Constructionof Fishing Vessels".House of
ReprescntaiiveReportNo. 1589. 86thCongrcss.2ndSession, 1960.276 GULF OF MAINE I601

Moreover, al least during ils early years, the Subsidy Act turned
out to be of benefit only to the New England fishing industry, as also
observedby the House Committeeon Merchant Marine and Fisheries:

"Section 4 of the 1960 act restricted subsidy to vesselsto be oper-
ated in a fishery suffering injury from which escape clause relief
was recommended by the Tariff Commission but denied by supe-
rior authority. The practical effect of this provision was to limit
the application of the acr to the New England ground-fish

jishery". . ." [ItaIics added.]

16. The House Committee later noted, in relation to the Subsidy
Act, that "the program has probably provided more incentive for the
construction of privately owned fishingvesselsthan any other single fac-

tor affecting the industry", and that 400 to 500 new vesselshad been
constructed from private funds as a result of the operation of the Sub-
sidy Act in the 1960sI8.At least for the next two-year period, 1971and
1972, $20,000,000 per fiscal year were then authorized to carry out the
purposesof the Act.

17. The United States Counter-Memorial particularly com-
plained about Canadian vesse1 subsidies insofar as they aided the
Canadian scallop fleet onGeorges Bank.In this connection, it is interest-
ing to note that, according to the Committee on Merchant Marine and
Fisheries of the United States House of Representatives, the United
States scallop industry on Georges Bank benefited enorrnously from the

Subsidy Act. After its first four years of operation when it assisted only
the New England groundfish industry, as mentioned above. the Subsidy
Act was amended, and the New Bedford scallop industry became a
major -or the major - beneficiary; 10 New Bedfordvesselswere built
in four years under the 1964 amendments to the Subsidy Act, with the
result that in 1968"[tlhe catch of scallopsby subsidizedvesselsamounts

to approximately 21 percent of the total catch of domestic ves~els'~".

18. There are a number of other federal assistance programs
designed to enhance the status of the United States fishingindustry. Five
of these, al1 administered by the National Marine Fisheries Service
(NMFS) of the National Oceanic and Atmospheric Administration

" HouscComrnitteeon Merchant Marine and Fisheries, "Fishig essel Construction".
House of Representatives.ReportNo. 1524. 88th Congress,2ndSession. 1964, p. 2. See
alroScnatc Cammiitecan Commerce."FishingVessel Construction Bi. enate Report
Na. 481. 88th Congress. 1st Session. 1963. p. 21. See Documentary Appendices17
and 18.
"House Commitieean MerchantMarine and Fisheries, "Extensioonf UnitedStates Fiah-
ing Fleet lmprovement Act".House of Representatives, Rt o. 394, 91st Congress.
1st Session. 1969,p. 8. See DocumentaryAppendiiSee.also Senate Committeon
Commerce. "UnitedStates Fishing Fleet lmprovernent Act".Senate Report No. 888,
91st Congress.2ndSession, 1970.
" H~uscCdmmiice on \Icrch=n\hr.ne 2nd Ft<heiiei."t:rienr.onof Lnltcd Siaie< bi*h-
ing blcei ImprovcmcniAit"Hdurr df Rcprc,cnt3ii\c.. Rcphoi 393. 91\1 Congrcii.
1sScbiion.1969.p 7 SccDoz~meni~r)ippendix 19[1611 ANNEXES IO REPLY OF CANADA 277

(NOAA), which is part of the Department of Commerce,are especially

important:
(a) The Fishing VesselObligation Guarantee ProgramZnprovidesguar-
anteesof up to 87% percentof the actual cost or depreciatedactual

cost of a fishing vessel.The program providesa vesselpurchaseror
owner with loan terms of longer than usual maturities (up to 25
years), at lower interest rates. in larger amounts and on more flex-
ible financing terms than the typical fishing vessel owner could

expectto obtain in a purely commercial setting.
(b) The Fishing VesselCapital Construction Fund2'affords the fishing
industry an extraordinary, and seemingly unique,type of financial

assistancein the form of deferral of federal taxes. Under this pro-
gram, a vesselowner or operator can usepre-ta%dollars rather than
after-tax dollars to construct a new vessel, buy a used vesselor
reconstruct a vessel - effectively an--interest-free loan of tax

monies.
(c) The Fisheries Loan Fund Program" usesa revolving fund to make

loans for financing or refinancing the cost of purchasing,construct-
ing, equipping, maintaining. repairing or operating newor usedcom-
mercial fishing vesselsor gear. The revolving fund was increased
from $10 million to $20 million in 1958.

(d) Under the Fishermen's Protective Actz3. a Fishermen's Protective
Fund iscreated. the broad purposeof which is to provide for reim-
bursementof lossesand costs incurred as the result of seizureof a

United States fishing vesselby a foreign governmenton the basisof
jurisdictional claims not recognizedby the United States. In 1977.a
new Fishing Vesseland Gear Compensation FundZ4 wasaddedto the
Fishermen'sProtective Act, to provide compensationto the owners
or operators of United States fishing vessels for vessel damage

attributable to foreign vessels,and for gear damageattributable to
foreign or United Statesvesselsand to actsof God.

(e) Another recent sourcewhich providesbenefits to the United States
fishing industryis the Fishermen'sContingency FundzJ.The purpose
of this fund is to compensatecommercial fishermen for actual and
consequentialdamages,including lossof profits. owing to damageto
or loss of vesselsand equipment resulting from incidents associated

with oil and gas exploration, developmentand production activities
on the continental shelf.

:o'lhcprcdccc,roror ihc prercnlprogrîmua, sulhdritcdb) the UniiedSt=ierShip Idri-
g3gcAci 011920. 16 Lnircd SraicsC.de. seci1 sr ~$q Thc 1;irhingVcsOblgga-
lionGu~raniccProcramirnau suth<ir!xdundcrlilcXI of ihc Xfcrch~nihlarlnc,\ci
of 1936146UnitedStatecode s&s. 1271n seq.(as amcndcd).

" FishingVesrelCapitalConstruction Fu4.6 UnitedStates Codes.ecs.1elreq
FisherieLoanFundPragram.16UnitedStatesCade.scc. 742(c).
" Fishcrmen'rProtecliveAct. 22 UnitedStatesCode.secs.1971erseq.
" FishingVerselandGear Compensation Fun2d2. UnitcdStates Codes.ec. 1980(1).

" Fishermen's Contingency Fu4n3. nitcdStatcrCodsecs.1841Crseq.278 GULF OF MAINE [1621

19. In addition to the above National Marine Fisheries Service
programs, there are several other significant sources of financial assist-

ance to the United States fishing industry. They include, among others,
the following:

(a) The Economic Development Administration within the Department
of Commerce has a number of programs from which fishermen and
fish processors may obtain financial assistance. These include Busi-
ness Development Loans (which can provide up to 65 percent of a
project's cost) and grants under Title IX of the Public Works and

Economic Development Actz6. Title IX is also available for assist-
ance for acquisition or improvement of harbour infrastructure and
other public on-shore facilities, and TitleI of the Public Works and
Economic Development Act offers additional assistance for on-shore
facilities.

(b) The fishing industry, including both fishermen and fish processors,is
also eligible for financial aid under three separate programs of the
Small BusinessAdministrations (SBA): direct loans and loan guar-

antees under Section 7a of the SBA Acti': Local Community
Development loans and loan guarantees under Section 502 of the
same Actz8; and loans and loan guarantees under the Disaster and
Economic lnjury ProgramZq.In addition. there may bc other SBA

programs. such as Economic Opportunity loans for small businesses,
for which members of the fishing industry are eligiblc.
(e) The Farmers Home Administration (FmHA) within the Department

of Agriculture also provides financial assistanceto the fishing indus-
try. Such assistance may be in the form of FmHA guarantees for
loans (up to 90 percent of principal and interest) to businessesand
industries or direct loans to public bodies. Assistance may also be
afforded to the fishing industry through the Farm Credit System in

the form of Production Credit Association loans'"of up to 75 per-
cent of value). The Southeastern New England Production Credit
Association has been a major lender to fishermen in
Massachusetts"; and it may come through the Farmers Credit Sys-
tem Banks for Cooperatives program".

(d) The Trade Adjustment FundJ' of the Department of Commerce pro-
vides a number of forms of financial assistance lo communities that
qualify under the Public Works and Economic Development Pro-

gram. mentioned earlier. It also provides loan guarantees for

"Public Worksand EconornicDevelaprnent ct. 42 UnitcdSt~lcsCode.secs.3121a sep.

"Small BusinesAct. 15 UnitedStatesCode.sec.636(a).
" 15 UnitedStatesCode.sec.696.
lP15 UnitedStatcsCode.sec.636(c).
'oProductionCrçditAssaciatian. 2 UnitcdStatesCodsecs2071el sry.

" MossorhuwrrsFirhtrier: A Hepor1of the 200 Mile F;,vhrhr.sork (;roui>. Boston,
Cummunwealthof Massachuettr. 1977, p. 19. ConodionCou,,ter-Mo~zorial.Annexes.
Vol. IV. Anncx38.
"Banks for Caoperativ. 2 UnitedStates Cod. ecs.21elsey.
"Trnde AdjuslmcntFund.19UnitedStatesCode.secs. 2101rl scy. il631 ANNEXES TO REPLYOF CANADA 279

projects taking place in trade impacted areas, which could be very
helpful to the New England fishing industry (both harvesting and

processingsectors).
(e) The Department of Housing and Urban Development Community

Development Block Grants" could be usedto Financeon-shorefish-
ing facilities. A number of Massachusettsfishing ports, including
New Bedford, Bostonand Gloucester,are eligible for suchg~ants'~.

V) Thirty percent of the grossreceiptscollected by United States Cus-
toms on fisheries products is paid into the lmport Duties F~nd'~
managedby the Secretaryof the Interior. This $10 million fund is to

promote domestically-produced fisheries productsby conducting a
fisheries educational service, and technological, biological and
related researchprograms (although prior to recentamendmentsthe
fund was used entirely to finance the National ,Marine Fisheries

Service).
20. The abovelist doesiiot exhaust the sourcesof Unitcd States

federal assistanceta the fishing industry. Some of the above United
States programs of assistance are discussed in the OECD study of
Financial Supporr ro rhe Fishing lndustry of OECL) Member
Countries", which Canada has deposited with the Court. AI1 of the

abovesources,and other fcderal sourcesas well, have beenidentified as
available to assist the Massachusettsfishing industry in Massachusetts
Fisheries:A Report oJrhe 200 Mile Fisheries Work Grorip (hereinafter
"Massachuse~tsFi~heries")'~ ,hich Canadahasalsodeposited.

B. REGIONALASSISTANC TO THE FISHINC INDUSTRY
IN THE UNITEDSTATES

21. In addition to the above federal programs. Massachuserts
Fisheries identifies a number of regional and Commonwealthof Massa-
chusetts programs providing financial assistanceto the fishing indusiry.
They include, for example,the following:

(a) The New England Regional Economic Commission participatesin
what is describedas a "highly successful" revolving loan program

administered under the aegisof the Cape Ann Commercial Fisher-
man's Fundjg.

Y Community BlockCrranir42 UnitedStateCade ec. 5303(d).

"Mossoduseirs Fishcries: A ReporO/ rhe 200 Mile FisherieWork Groiip. p. 21
Canadian Counier-Mernoriol. Annexes.Val. IV. A38.x
lmportDuliesFund.15 UnitedStateCode sec.713c-3.
"Organisationfor Economjc Cooperation and Development, Finoneiol Supporr ro rhe
Fishimg IndusiO/ OECD Mentbcr Counrries. ParisOECD. 1965. pp. 213-218 and
246.

" Massochusetis Firherier: A RepoO/iht Mnssaehuseirs 200 Mile FirheriWork
Group.pp.3-24. Canadion Coumer-MernoriaAnnexer, Vol. IV. Annex 38.
"Mossoehuseirr Fisheries: A ReporO/ihe Morrochorerrs 200 Mile FirherieWork
Group.p.6. ConodionCounier-Mernorial. Annexes, Val. IV. 38.ex280 GULF OF MAINE 164

(b) The Massachusetts Community Development Finance Corporation
provides financing for the purpose of reducing "conditions of blight,
economic depression or widespread reliance on public assistance"; it
has been identified as a potential source of assistance for vessel con-
struction and renovation and for private on-shore facilitie~'~.

(c) The Massachusetts lndustrial Mortgage Insurance Agency can be
called upon to provide state loan guarantees for land-based fisheries

support facilities4'.
(d) Massachusetts lndustrial Development Finance Authorities and Eco-
nomic Development lndustrial Commissions can provide assistance

to large-scale ship repair yards and other on-shore activitie~'~.
(e) The Massachusetts Division of Land and Water Use has authority

to construct or reconstruct piers or waterfront terminals, and also ta
provide as much as 50 percent financing for harbour improvements
(75 percent for dredging operations)".

V) The Massachusetts Business Development Corporation makes loans
to any private, profit-making firm that is Massachusetts based and
contributes to the expansion of employment opportunity in the
state".

22. In addition to the above, Massachusetts Fisheries identifies
other potential and actual state and local sources of financing to the

fishing industry. With its much greater resource base, Massachusetts can
much more readily assist its fishermen, fish processors and fishing sup-
port industries than can the relatively disadvantaged Province of Nova
Scotia.

Conclusion

23. The United States has tried to suggest that the Nova Scotia
scallop industry has been unfairly or improperly advantaged by

Canadian federal subsidies for vessel construction. In fact, this is not the
case, since - among other reasons - the United States provided com-
parable assistance ta New England fishermen under ils own federal Sub-
sidies Act. Like most developed countries (including Canada), the
United States has a considerable number of financial assistance pro-

grams at federal, regional, State and local levels aiding its fishermen,
fish processors and the fishing industry generally.

Mossachuseirs Fisheries: A Reportof the Mosrachus~ris200 Mile Fisheries Work
Group. pp.8 and 24.Canodion Coonter-M<morinl. Aiinexa. Val. IV. Annex 38.
"M~ossochuserisFirheries: A ReportO/ rhe ~assoch~r~lrs200 Mile Fisheries Work
Group, p. 7Canodinn Counier-Mernorial, Annexps. Vol. IV. Annex38.
"Massachuserrs Fisheries: A Reporrof ihe Mossachusnts 200 Mile Firherier Work
Group. p. Canodion Counier-Mernoriol, Annexes, Vol. IV, Anncx 38.
"M~orsnchuseirs Fisheries: A ReporO/ the Mossochuseris200 Mile Fisheries Work
Group. p. Conodian Counrer-M~morial. Annexes. Vol. IV. Anner 38.

UMossoehus~tis Fisheries: A ReportO/ rhe Mosrochuseirs200 Mile Firheries Work
Group.p.8. Conodian Counier-Memorio/. Annexes. Vol. Annex 38. DOCUMENTARYAPPENDICES TO PART1

Doeumeotary Appendi1x

Document I: Excemt form Emolovmen!andEarnines. Vol.29. No. .2.
United States ~é~artmentgf Lbor, Bureau of libor ~tatiktia,
Washin~ton.Government Printinp.Office, December 19P.6
-. -
Document 2: Excerpts from SurveyojCurrent Business.Vol.62, No. 8,
United States Department of Commerce, Bureauof EconomicAnalysis,
Washington, Government RintingOfficeAugust 1982p. 57
Document 3: Exccrpt from Srarisrl bsrracrof the Un~redStares. 1981,

United States Departmcnt of Commerce, Bureau ofthe Cenp.392

[No! reproduced]

DoeumeotaryAppendix2

[Nol reproduced]

DoeumcntaryAppeodix3

EXCERP TROM 7kELABOU oRC+ 1980,STATISTICCSNADA C,ATALOGUE
No. 71-001,1980P.130

[Norreproduced] DocumeotaryAppendix4

IMPACT REVIEFO RTLANTISCU SCALLOP(PLACOPECM TEA~ELUNICUS),
JANUARY1982PP.33AND 36

[Nor reproduced]

DocumeotaryAppendi5

[Nor reproduced]

DocumeotaryAppend6x

EXCERP ROM TASKFORC ENATLANTF IISHERIENAVIGATINTROUBLED

WATERS,A NEW POLICFORTHEATLANT ISHERIESOT~AWA M,INISTOF
SUPPL YNDSERVICCESANADAD,ECEMB1 E82,PP24.57.9AND 275

[Not reproduced]

DocumentaryAppendix7

[Not reproduced] ANNEXESTO REPLY OFCANADA 283

DocumentaryAppendix8

EXCERFTFSROMVISIJOR%VU 70 NOVASCOTIA ,978D,EPARTMEN OF
TOURISMP.~OVINCOF NOVASCOTIA ,P.11-12

[Nof reproduced]

DocumentaryAppendi9

EXCERF TROUG. A.MACKAS7 ,kr UK NORTHSEEASPERIESC E.REPOR TOR
MOBILEOILCANAI>ALm. AND DPACONSULTING N, VEWBE1R982P.55

[Norreproduced]

DocumentaryAppendix10

EXCERPT FSOM MANUFAOURING INDUSTRIEOSCANADAN :ATIONAL AND

PRovr~CurAnus, 1980S,TATISTICANADAC ,ATALOGU NO.31-203,
DECEMBE1 R982PP.4-5AND 50-51

DofurnentarAppendix11284 GULFOFMAINE

DmimentaryAppendix12

[Notreproduced]

DonimentnryAppndix13

EXCER~ FROMANNUAS LTATISTICREVIEWOFCANADIA RSHERIE 1S,8,
VOL .1OTTAWD A,PARTM ENFISHERI ESD &UNS, PP42,51,64,
74 AND80

[Notreproduced]

DoeumentaryAppendi14

DommentaryAppendix15

"P~orns~~FORASSISTINSHIPPINAND SHIPYARDSRECORDOF CABINEI-
DEISION ,SEF'TEMBE1961, O~TAWA,PRICOUNCI LFFICE,
1I SEPTEMB1E961

[Norreproduced] ANNEXESTOREPLYOFCANADA 285

DoeumeotarAppendix16

Exc~nprsFROMHOUSECOMMITT EEMERCHAN TARIN ENDRSHERIES,
"PROVIOINAGPROGRA MFASSISTAN ORTHE CONSTRUCTI OFFISHING
VESSELSH",OUOF &PRESENTATIVEREPORNTO.770.86~~CONGRESS,
ISTSESSIO1,95PP.2-3

[Norreproduced]

DoeumeotnrAppeodix17

EXCERPT FOM HOUSECOMMIITE ENMERCHAN TARIN ENDRSHERIES,
"RSHINGVESSECLONSTRUCTION";HO OFSEEPRESENTATIVREPORT
NO.1524,881~CONGRES2S,0SESSIO1, 6PP.2-3

[Norreproduced]

DoeumeotnrAppendix18

Excm FROMSENATCEOMM~TE ONCOMMERC "EI,SHIVESSEL
CONSTRUCTIB OLL",SENATEPORT NO.481,88~~CONGRESIS,TSESSION,
1963,PP20-21

[Nof reproduced]286 GULFOFMAINE

DocumentatyAppendix19

EXCERF 'SOMHOUSCEOMMITT O NMERCHAM NTARINENDFISHERIES,
"EXTENSIOOFUNITESDTATEFSISHIGEETIMPROVEM AENT",OUS EF
REPRESENTATR IEPO,NTO.394.91~~CONGRE~S,SESSIO19,6PP.6-9

[Norreproduced]PARTII. THEHISTORYOFTHE CANADIANFISHERIES:
SUPPLEMENTARYEVIDENCE288 [2791

INTRODUCTION

1. The United States alleges that Canada had no fishery on
Georges Bank until the 1950s and that the United States fishery in that
area was an exclusive one until that time. This allegation is demonstra-

bly erroneous for three reasons. First, the general historical sources
relied upon by the United States deal with the existence of a United
States fishery during the historical period from the nineteenth century to
the present and simply do not address the existence or importance of a
Canadian fishery. Secondly. the direct evidence of a Canadian fishery
during the historical period, as set oui in Volume II of the Annexes to
the Canadian Counter-Memorial. is abundant and unequivocal. Thirdb.
the statistical evidence relied upon by the United States as the basis for
comparison of Canadian and United States fish catches is derived from
sources that did not even arrempr ro measureCanadian catchesby area

of captureduring mosrof the historical period.

Section 1. The Non-Statistical Evidence:
Commentary on Annexes to the United States Counter-Memorial
(Volume IV, Annex 7)

2. The United States challenges the Canadian Memorial's presen-
tation of the history of the Canadian fishery on Georges Bank. stating
that Canada has produced insufficient and questionable evidence in sup-
port of its contentions'. In its Counter-Memorial, the United States
offers three lines from a 1945 article to contradict Canada's evidence'.
In addition. the Annexes to the United States Counter-Memorial

(Volume IV. Annex 7) contîin a paragraph-;y-paragraph commentary
on the history of the Canadian fishery as presented in the Canadian
Memorial.
Volume II of the Annexes to the Canadian Counter-Memorial,
3
entitled "A History of the Canadian Fisheries in the Georges Bank
Area". reviews in detail the development of the Canadian fishery from
its inception in the nineteenth century. The several volumes of evidence
filed with the Court in support of Volume II answer any criticism as to
the insufficiency of evidence provided by Canada. Indeed. this incontrov-
ertible evidence refutes the United States allegation that the Canadian
Georges Bank fishery in the nineteenth century was isolated and insig-
nificant'. Moreover, it amply supports the statements by Thomas
Knight. H. W. Johnston and the 1928 Royal Commission that it was the
practice of Nova Scotia fishermen to resort to Georges Bank'.

4. The comments in the Annexes to the United States Counter-
Memorial (Volume IV, Annex 7) do not impugn the direct evidence

'Unired Siorrs Counrer-Mrnroriol.pp. 52-53. para. 66: Uiiired SIor~r Colinfer-
Mcn~uriol.A!io/yriro/Annc.v<r. VolAnnex 7. p10.para. 15: p. 14. para 22.
Unirvd Siorrs Counrer-Mrn?orial, p. 5266.îrî.
'UniiedSrarrr Coun!er-Mpnzoriol, ~tto~rica/Anneres. Val. IV.7.p. 1. pnrî. 2.

'Canadion Mrmarial. p.83. para 181: pp. 85-86. para. 186.i2801 ANNEXES TO REPLYOF CANADA 289

relied upon by Canada IO support its assertions concerning ihc history of
the fishery. It is no answcr to cal1into question the accuracy of ncwspa-
per reports and Canadian Govcrnment documents'. Moreovcr. the DocrrL

tpienrs and Proceedings of rhe Halifax Conttpiissioti. 1877. cited once
again by the United States as evidencc that only one Canaditin vesse1
fished on Georges Bank during the ninctcenth ccntury. report that ves-
sels from the western portsof Nova Scotia were trawling on Gcorgcs

Bank in the latc 1860sor early 1870s6.

5. The United States has reproduced cxcerpts from F. W. Wal-
lace's article cntitled "Thirty Years Progressin Canadti's Fish Industry.
1914-1944'". Wallace's estimates of the numbcr of vessels fishing off-

shore in 1914 from Shclburne. Yarmouth and Digby arc scriously defi-
cient. This is evident from a rcview of the annual report of the Dcpart-
ment of Marine and Fishcrics for 191 3-1914.. II should bc notcd that
Wallace wrotc the accouni somc 30 years aftcr the cvcnts in question.

In the "Foreword" to tlic :trticlc. he stated that "[slince printcd or writ-
ien records are fragnicntary. or difficult to secure without lcngthy
rcsearch ....". it had bcen neccssaryfor him ". .. 10 rely to ;iconsidcr-
able cxtent upon mcniory . . ."for which he niadc ". . . no claims to

i?fallibilityO . . .".It is more priidcnt to rely on sources produccd at thc
timc of the cvcnts thcy dcscribc, such as the statemcnis niadc by Wal-
lace himself during the pcriod from 1914 to 1922. whcn he wrote of

Canadian activity on Gcorgcs Bank during those yearss0.

6. The United Staics Countcr-Mcmorial denies the existence of a
Canadian Georges Bank fishery prior to 1922". evcn in ihc kice of cvi-
dence published by the United Statcs recording C:~nüdi;in Izindings of

Georges Bank fish in United Statcs ports. The Kc,porr/.s/ of rhr Uttirrd
Srares Cot>tt~tissior~eo rf Fisheries for thc ycars 1918 to 1922 documcnt
that one-third of rccordcd Canadian landings made at thc United Sititcs
ports were taken from Gcorgcs Bank".

7. The Annexes io ihc United States Countcr-Meniorial (Volume

IV, Anncx 7) dispute Can;ida's contention that Nov;i Scotia cntrc-
preneurs registercd thcir vcssels in the narncs of United St;itcs owricrs

'Uiiirrd Srarrr (oi,?rrrr-Mr,>rori<i/. ,I,~uli.ri<<rl AnnrVol. IL'. Anncx 7. p. 10.
püra. 15:p. 14. para22.
Conadion (ù,,!,rrr-Mo!roriri1. ,~,z,~r.r<~r.'~"IlIHiriury01 the C;in;idiaI:ishcriein
ihc Gcorpes Bnnk /\rea". p. II. para. 19andfuotnotc17.
'Unil<d Slores Counler-Men~oriol. AnoIyli~oI An»~.res .ol. IV, Anncr 7. pp. 6-7.
para. II.

Fory-Sr~,e!llh Arzn,,olKrpori r>/rhu Buporr,iiunr o/ blorittaii<l IïrhrriurIYIJ-14.
Fi.rherier. SessionalPïper No. 39. Oliara.King's Printer. 1914. pp. 90-95. SÇE OOCU-
nieniaryAppendix 1
Unired S10re.vfi>t~~~ler-M~»~<,ri/l!l,~~lyri~aAlII~IP.~~V~o.l. IV, Annçr 7. ~\ppcA.ix
p. 3.

'aCnnadion illei>iorinl. p. 84. piira. 184r,i~~tnd I6. Ii i< likçth;itW;lIl:icw;is;ilru
ihs authuror thcslatçi>icnquoicd in lhc iri<rdioiiAfpi>ioronip US.p:irs. 1x4.
"Unired S1ule.s C,>enlcr-Miv,iuriii1. ~I~.,li.ricol A>riir.vtr. Vol~~inçii7. p. 12.
pïra. 19.
'2Conodion(I>,,>?,rr-hlrr,ioriu,Iri>ie,,Vol. II. pp. 25-26, par39: p.27.Tablc I290 GULFOF MAINE 12811

who had little more than nominal ownership interests in order to circum-
vent United States laws prohibiting direct marketing of foreign catch in
that country". As explained in the Canadian Memorial", these "iiag of

convenience" vessels often sailed out of Nova Scotia ports and were
crewed by Canadian seamen. In the Annexes to the United States
Counter-Memorial (Volume IV, Annex 7) the United States contends

that its laws would have prevented such a practice". However, in his
autobiography, F. W. Wallace explained that:

"American law. however. decreed that the skipper be a United
States citizen. To comply with this, one member of the crew held
citizenship papers and acted as nominal captain in entering and

clearing the shipih."

8. It is curious that the United States cites only pre-1874 evi-
dence in support of its contentions concerning the loss of lire in the
Gloucester fisheries". This evidence appears to be based on lists of

names of lost men whose origins in most instances were not stated. In
contrast. the evidence produced in Volume II of the Annexes to the
Canadian Counter-Memorial. concerning Canadian men lost in the
Gloucester fisheries. covers the periods 1891 to 1900 and 1909 to 1916,

when information in the Notice of Loss documented the nationality of
the deceasedlB.Contrary to the United States admission that "Canadian
fishermen occasionally sailed as crew members aboard United States

vcssils sailing from New England p~rts'~", Volume II of the Annexes to
the Canadian Counter-Memorial confirms that the average percentage
of Canadian men lost in the Gloucester fisheries during the period 1891

to 1900 is 52.4 percent: during the years 1909 to 1916 the average is
72.7 percentio.

9. The quotations in the Annexes to the United States Counter-
Memorial (Volume IV. Annex 7) from N. Bourne's Srallops and rhe
oJJrhore fishery of rhe Maririn~es conlirm the evidence adduced by

Canada that the voyage of the Mary E. Ketmny in 1945 marked the
beginning of the Canadian scallop fishery on Georges Bank". It should
be noted, however, that the United States references IO Bourne's article

"Uttited Slore.~ C~~<t~te~-Afct~t~>aln.olyricol AnoeuprVol. IV. Annex 7. p. II.
para. 17.
"Conodian Menmriol. p. 86. para. 187.

I5Uniled SIOIP.~Cot~nler-,if~n~oriol. Atroli'licol Anne.~e.rIV. Anncr 7. p. II.
pïr3. 17.
l6F W. \Vallace: Rovinx Firhe~nion An Aii~obio~rophyRcroiintinx Ptr.ronol E~p~ri~ncr.~
iii the ConrnzercialFi.rhitig Flcurr ond Fi.rh ofdConoda ond the United Stores.
1911-1924. Gîrdcnvale.Quebec. Canndian Fishcrman. 1955. p.101.See Documeniary
Appendix 2. See also Coi!odiou Cosnter-Menloriol. Airne.ve.r.Vol. II. p. 13. para. 22.
faalnate24.

"U!rired Stores Couirrrr-Mr>i,orinlA,,alyricaAntrcrcr. Vol. IV. Annex 7. p. 14.
p3rû 22.
IBConadion (ouirtrr-Mrmoriol,Annei-P.. ol. II. p. 161.Appendix II.

United SI(II<.YCo~nl~r-M~n,~riol. Ano(vli~(11A>I"c.v.I-PVI.ol. IV, 3.par,, a..
'°Canadi~n Coonrer-Alcnroriol. A,tnc.rcr. Vop. 161.Appendix II.
I'United Slolrr Counter-Afrnzorial. Analjricol Ann<.ver. Vol. IV. Annex 7. pp. 17-19.
para 24.12821 ANNEXES TO REPLYOFCANADA 291

are selective and the emphasis has thus been altered. Following his com-
ment that the Canadian scallop fishery "continued in a rather sporadic
fashion uniil 1953='". Bourne continues on the same page as follows:

"Such boats as the Elaine W.. Janet Douglas. Charlotte 1, Mispah

and Aristoci;it were al1 rigged as offshore scallopers and for the
most part made rewarding trips. All boats. however, only scalloped
offshore in the good-weather months. April 10 November. During
the winter they either laid up or switched to groundfishing in
inshore waters. In some years the boats went swordfishing when

that proved more profitable but nevertheless interest in offshore
scalloping slowly grew and more boats were involved"."[ltalics
added.]

Thus, Bourne's article does not derogate from Canada's assertion that

"[bly 1947. Canadian scallop draggers were making regular trips to
Georges Bank. and during ihe early 1950s the. Bank's scallop grounds
became a major engine of growth in the Nova Scotia fishery"".

10.. The paragraph-by-paragraph commentary on paragraphs
179-196 of the Canadian Memorial as contained in the Annexes to the
United States Counter-Memorial (Volume IV. Annex 7) in no way con-

troverts Canada's case on the history of the Canadian fishery. The
Canadian pleadings have demonstrated unequivocally that this fishery
has deep historical roots, and that the United States allegation that
there was no Canadian fishery on Georges Bank until the 1950s is

demonstrably erroneous.

Section II. The Statistical Evidence

II. The Unitcd States cornparisons of Canadian and United
States fish catches on Georges Bank are based entirely upon two reports
issued by the International Commission for the Northwest Atlantic Fish-

eries (ICNAF) in 1952. These reports depend upon a historical data
base that did not identify the location of catch: thus they provide no
information as to which fishing grounds were actually used by the
Canadian fieet. The United States evidence on this subject is accordingly

devoid of probative value. Moreover. as the following paragraphs demon-
strate. the absence of Canadian catch statistics for this area in the pre-
ICNAF era in no way signifies the absence of a significant Canadian
fishery.

"Unired S1aie.r (i,iri!r~r-Mr>?8orio/, A.ooli.ricul. ol. IV, Annex 7. pp. 17-19.
para. 24.
?'N. Baurnc:Srallopr utjd ihe o/JT~oT~/~SI<th? Mo~itinl?.SI.Andrews. Fish~ries

Rercarch Board of Canada. Bulletin No. 145. 1964. p. 22. See Dacumentnry
Appendix 3.
" Conadion Mmtorial, p. 87. para. 190.292 GULFOF MAINE t2831

12. An "official" statistical account of the fisheries of Canada's
Maritime Provinces has been recorded annually since 1869. As was
stated in the Canadian Memorial and Counter-Memorial, however, the

systematic collection of statistics on the location and quantities of cat-
ches did not develop until recent yearsZi.

13. During the period 1869 to 1910, annual fisheries statistics
were composed of estimates by local fishery officers of quantities and

values of fish products originating from various districts in each prov-
ince. These estimates were tabulated and published in the annuel reports
of the Department of Marine and Fisheries'". Landings of groundfish

were first recorded in 1910-1911, when a new system of monthly report-
ing was introduced that distinguished between the quantities of fish
landed and the quantities marketedi'. The monthly statistical returns did

no1reflect area of capture and, therefore, the annual statistics published
by the Department of FisheriesZnreported the quantity and value of
landings with no indication as to whrre thefish were cairghtZ9.In 1917,

revisions to the system of data collection resulted in more detailed statis-
tics, particularly with respect to the processing of fish catches. A signifi-
cant development took place in 1918, when the published statislics first

included a table identifying the proportion of catch taken offshore. How-
ever, there was still no idetlrificatio~~ of thefishing groundsused"'.

14. Attempts were made, shortly after the North American
Council on Fishery Investigations (NACFI) was formed in 1920, to

develop a Canadian statistical system that would reflect the location of
catches so that the statistics would serve biological as well as economic
purposes. These attempts, prompted by the passage of resolutions by

NACFI (then the International Committee on Marine Fishery Investiga-
tions)", were not successful. The program depended for its success on

1s(Uttadiun Mettzoriol. p. 83. para. 180: ConodionCotinrir-M<,nlorial. p. 135. para. 343.
IbSee. for exarnplç. Twrizy-Ninrh Aiiiriral Keplir,jrhu Oup<irri,>r,O/ Mariiieutrd Firh-
rrirs. 1896. Firherier. Ottawa. Quccn'r Prinicr. 1897. pp. 9495. reproduced in Docu-
mentary Appcndir 4.

" Ferry-Fuurih A>riiiiol K<.porO/ rhr Brpnrr>>w>rrof i\f<iri,ic u>!d FirIr<,ri. 910- 11.
Firherius. Scssional Paper Nu. 22. 0tt;iwa. King's Prinier. 1911. pp. rx-rxiSec Docu-
mentary Appendix 5.
laThe expieasion "Department of Fisheriea"ih uscd hcre to designate the dçp;irtrnenof
governmcnt known by thai name during certain periods. but known b) other names (e.g..

Depïrtment of Marine and Fishcries. Department of Naval Services. Firherier Branch)
at other pcriods.
IPSce.for cxîmpie. For!?-Foiirih Aiitiiial Krpor<ifth<,Orpurr>iiu>8rifM<iri>!rond Firh-
rrir.~. 1910-Il. Frrheriur. pp. 126-129. reproduced in Docurneniary Appendix 5.
'"ce. for cxaniple. Firherir. Siuli?rics. 1918 Oitawa. Duminiun Burcïu or Statistics.

King's Prinicr. 1920. pp. xxvi-xxix and 14-29. reproduccd in Ducunien1;iry Appcndix 6.
3 "Resoluiion,. Meeting Of lnicrnaiional Conimittee On Marine Firhery Inuesiigütionr.
Montreal. Junr 23rd. 1921". p. 1. Resalution No. 1: Minutçs olsecond meeting orIntçr-
national Cornmiltee on Marine Fishcrv Investieations. Boston. Noveniber 4th. 1921p. I.
Resalution Nu. 1. See Dacurnentary ~ppcndi&s 7 and 8. See alsu leiter of 14 Februacy
1922 irom A. Johnston. Deputy Minibiçr of Marine and Fisheries. ta al1 "Ownerr of
Bank Fishing Vrs~cls". reproducrd in Ducumcniary Appendix 9. (2841 ANNEXESTO REPLYOFCANMA 293

cooperation and participation by the fishing captains. which was not

forthcoming. As noted in the Fi/r),-Si.rrh Anrttral Reporr of the Fisher-
;esBranch,Deparrt>rerto tf Marine artdFisheries.For The Year 1922:

"The number of captains who complied with the departmeni's
request for this information was relatively small. It is hoped, how-
ever, that a greater number will CO-operatencxt season"."

The obstacles, however, were never overcome. The North Anterican
Council on Fishery Investigations.Proceedings 1921-1930. No. 1
records the failure and eventual abandonment of this program:

"Efforts to obtain more detailed statistics of the place and tirne of
the catches of the offshore grounds were iniiiaied at the first meet-

ing of the council in 1921 by a resolution recommending that they
be obtained 'in as greai deiail as may prove to be feasible.' At that
lime the monthly catches in a large number of districts on the
Canadian Coastwere recorded but no information was available on

the places where the offshore catches were made.

Later in 1921 a form for the use of vesscl capt, ,lins was recom-
mcnded by the council. The form included ;i piiri on which to
record the position of the vesse1ench day and the amount of gear
used and a second part for the catches each day of the various spe-

cies of ground fish (with size categories for cod and haddock). The
Canadian authorities met with considerable difficulty in their
attempts to induce the fishing captains to use these forms and they
were finally abandoned"."

This outcome was, in fact. predicted at the outset of the program by a
Canadian fisheries official who wrote that the cooperation of skippers

". . .will probably prove to be a real difficulty. at first, as masters who
discover a prolific spot on some fishing bank are usuiilly very chary
about imparting information as to its exact location"".

15. Another factor thiit contributcd to the failure of this system
of data collection was the complexity of thc forin requircd to bc filcd by

ihe fishing captains. As noted in the document quoted in p;iragraph 14,
the form required inforniation as to the numbcr of days spent fishing.
the grounds used each day. the hours fished. the gear used and the
aniounts and varietics of fish caught each day. The fishermcn were

reluctant to report thcir activities in such time-consuming detail. In the

" Ffi-Sixrh Annual Repor tf rhcFisherieBsronchD ,eporrnte nrMarine and Fisher-
ipsForrheYw 1922.SessioonlPaper No. 29. Ottawa. King'sPrinicr. 1923. p.Sec.
DocumcniaryAppcndix10.Scealno.leitcrof 17 March 1923irom W. A. Found.Assisi-
ant Dcputy Ministcroi FishcrieIO Ward Firhrr. Chicf lnrpectoroi Firheries.which
siatesthat ". . . whitea numberai captainssentin returnsas dcsired.the rto thee
nppealwasnoivcrygcneral".Sce DacumcntiiryAppendixII.
" iVorrhA~>rrri<a>C~~ii~~ otilFirhe- Itti~r.\rig<rPnr.eeditt,~110.>1-193 i0..1.
Ottawa. King'sPriniçr. 1932. pp.19-2See DocumenlaryAppcndix12. A copyof ihc
furm refcrrcd io i, rçproduiicdin OocunientÿryAppendix 13. togellicr wiih r;iiiiplç
cupicsofothei statisticalfurins.

"J. J. Covic: "hlcnio ior Mr. roun- Iniernation~lCo-operïiiuriin ihe Culleciionof
Sen FirheriesInform~iion."Otiawa. 21 Junç 192SecDacunieniaryAppendix14.294 GULF OF MAINE (2851

United States, on the other hand, the system of port reporting required

an identification of broad area of capture for each fishing trip as a
whole. This, together with the long tradition of catch reporting estab-
lished in cooperation with the industry itself as a measure to assis1fish-
ermen in locating the best grounds, contributed to the greater successof

statistics collection by United States officialsJs.
16. Although the published Canadian statistics distinguished only

bctween "inshore" and "offshore" catches': certain unpublished data
classified landings into three broad regions on the east Coastof Canada.
These were: (i) the banks Westof Halifax: (ii) the banks east of Halifax:
and (iii) the Gulf of St. Lawrence. A memorandum prepared about 1924

- "Memo. For Mr. Cowie. Re Fishery Statistics" - appears to have
originated the practice. It said that statistics should be kept on the fol-
lowing basis:

"Similarly, divide the banks into sections. Three would be
enough,.- those west of Halifax, those east of Halifax, and those
in the Gulf would be a reasonable division, and make a statement
.
of each kindof fish caught as in No. ln."

The minutes of the ninth annual NACFI meeting held in 1925 indicate
th31 Canada brought this innovation to the attention of the organization

-
portions of the Gulf of Maine a&".

17. In 1931. a practice uJasinitiated of categorizing catches in
the published tables according to the statistical areas defined hy
NACFI. However. the relevant figures do no1 reflect the carchrs taken

from fishing grounds within those areas. Raiher. they 'represeni landitrgs
at ports located within the coastal regions corresponding to the NACFI
areas. The format of the tables could poteniially have given rise to mis-
understandings on a casual reading. but there is no real doubt about the

"i\'orrhAnierican Counril on Firherj Im,e.rli~alionr. Proc~cdingr 1921-l'?.{O. Aio. 1.
pp. 8-9. Sec Documentary Appendix 12.
'*Sec examplesof published fisheries riatirtics repiaduced in Documeniary Appendix 15.

""Memo. For Mr. Cowie. Rc Fishery Stalislics." See Documtniary Appendix 16. The
memorandum ir unsigned and undaled. but ir believed to be circa 1924.
's"Minuiesof the Ninih Meeting. held in the McAlpin HoielNew York. N.Y.. on Fri-
day. May 8th. 1925." NACFI. 1925. p.1.See Documeninry Appendix 17.
"In ihc ~\'orrh Anicriron Coirncor!Fisher? Inie.r~igariunr. Procerdinpr 19?1-1910.
No. 1. it ir siaieri.20:
"ln 1925. houever. the Canadiîn rtalirrere impraved ...ahen ihe offshore cai-
ches rcre given fur threc arear-tgulf of Si. I.arrencc and ihe Ailantic banksensi
and aert of Halilax. But ihis Icfi mvch to be desircd buth in ihe Iack ol suflicient
detail and in the recarding of the data by fishery olficers an short rather ihan by the
capiainr."

See Documentary Appendix 12. 1286.2871 ANNEXES TO REPLY OF CANADA 295

nature of the information they contain. As examinaiion of the tables
makes clear. the. total catches shown for each NACFl statistical area

generally correspond to the sum of landings in the various couniies or
districts adjacent to that statistical area'".

18. Thus. "Area 22". which corresponded in the NACFI system
to ICNAF subarea 5 (except that it included the northern half of the
Bay of Fundy) is described in the following terms in the footnote that

was appended to each of the post-1937 tables:

"Comprises the counties of Albert. St. John and Charlotte and the
Bay of Fundy side of Westmorland county in New Brunswick"."

In other words. Area 22 was treated in the statistical tables as a srrerch

of coasrin whichlandingsweremade. and nor as an area of the sea in
which ~hefihery wascondircred.Similar definitions were given for Area
19 (the Gulf of Sl. Lawrence coasts) and Area 21 (the Nova Scolia
coast outside the Gulf of St. Lawrence) [Figirre 1). Consequenlly. the

statistics for Area 22 represent the total landings in ports along ihe
Fundy shore of New Brunswick. including those taken in Ara 21 on the
southern side of the Bay of Fundy. Similarly. the statistics for Area 21

represent the total landings on the Atlantic coast of Nova Scotia -
including catches taken from grounds in the Gulf of St. Lawrence (Area
19) and Georges Bank (Area 22)42.

19. In a memorandum dated 15 October 1932, it was stated that
"in many cases the inspectors calculate the catch figures by working
back from the processed quantities"". This is corroborated in a study

entitled Hisrorical SrarisricsOf Canada:

"Before the recent procedures [based on sales slips] were intro-
duced, in the nineteen-fifties, heavy reliance was placed on working
back from data on processedfish and fish products. with the use of

conversion factors to estimate the landings in primary form from
the processedform data'4."

Obviously, this method could not provide information on thc place of

capture, particularly frorn the offshore areas where the correlation

'OScc examplesof port-1930 siïtistitables reproduced in Documentary Appcndix 18.
This practicc ofcîtcgorircatchesby NACFI stîtirtical arcîs continucd until 1951.

'1Seeerampler orrisiisiical tables reprnduccd in Documenlary Appendix 18.The practice
of appendingihcrc fooinoics to ihc siaiisiical tablesoriginaied in 1938.
"Only one crcepiion io the patiern of rccording catchesby area of landing appearsin ihc
publirhed rtaiiriicr and in ihc Coolnotesihcreia. Nova Scotia landings from the Grand
Banks (Arca ?O)wcre pecilically excluded from the siatisiicr and shawseparaie
eolurnn. Therc quantitiwereestimated by firherofficerin ihe ports concernedand
are prabably litile bciier than educaiedguesses.According io thc footnotcs to the tables.
ha~,ever.theswere the on/? ~.ÿtchesihwerc not recordeon ihc basisof the are3 in
which they were landcd. Sccexamplcs of staiisiicîl tables reproduccd in Documcniary
Appendix 18.
""Memorandum Rç: Appendix A or the Minutes of ihr 1931 Meciing of ihe North

American Cauncil." 15October 1912.p. 1.See Doçumcntary Appcndir 19.
'<M. C. Urquhsrt and K. A. H. Buckley. edr.: Hisrorirol Slorisr>Canodo. Cam-
bridge. The University Press.1965.Secihl,p. 388.Sec Documcniary Appcndix?O.296 GULF OF MAINE t2881

between the place of landing and the placeof capture is necessarily Far
lcss consistent for this portion of ,the fleet. As was stated in a 1941
memorandum:

"The statistics provide information on the catches of various spe-

cies ai various places and limes which is relatively complete and.
detailcd for the inshore Iisheries but much lessso for offshore fish-

cries's."

20. Amoiig a great variety of records that were used in collecting
statistics. only one reporting form was specifically designed to providc
information on offshore landings; but it did nor reqirire 0n.v reportitig of

the area in which the catches were made. This form, introduccd in the
1940s. was cntitled "Report of Landings by Vessels Fishing Offshore".
and was known as the "F.S. 13" form'e. As was stated in a Department

of Fisheries mcmorandum dated 29 March 1951 entitled "Collcction Of
Fisherics Statistics. (Landing statistics)" prepared for the 1951 ICNAF

Meeting:

"Thc catch is reported for each individual vessel. the port of land-
ing is indicated, the date sailcd and the date landed. Howevcr. tio
ttietitioti is !>rade as ro the area where rhejisli is cairght"." [Italics

added. ]

Moreover, even this limitcd reporting system extended to only a portion
of the Canadian fishing fleet48.

21. The instructions and manual? for fishing officers periodically
issucd by the Department of Fisheries also confirm that no effort was

made IO ideniify the source of the catch, except for a general scparation
of "inshore" and "offshore" catchesJ9.

"A. W. H. Ncedler: "Mcmorandum Re Impro\,ement Of FishericsStaiirlics For Biologi-
cal Purpascs Fi"hçrics Rcsearch Board of Canada. April 1941.p. 2. Sec Documeniary
Appcndir 21

'Vxaniplcs of the "l'.S. 13" and other rtaiirtical farerreproduced in Documentary
Appendix 13.
""Collcction of FishericsSiatisiics, (Landing statistics)." Ottawa. Depnrtmcnt of Fisher-
ies. Markets and Economics Service. 29 March 1951. p. 3. See Documentary

Appendix 22.
'W. K. Martin: "Canadi:in Atlaniic Fisheries Siatisiics Mccting. Si. Andrews. New
Brunswick, M;irch 12.15. 1952."Otiawa. ICNAF. 20 Mïrch 1952.p. 2: "Noies Re Stü-
tistical I>ircussiuns.Si. Andrews. N.B.. March 13-15. 1952". Ottawa. 18 hlïr1952.
p. 2. Sçc I)ocunicntary Appendices23 and 24.

49See.for example. Fiihr-.O//icer.dtottual.Insiruciions 10Fishcry Officers and Stnff of
Dep~rinicnt of Firhçries. Oitawa. I May 1948.Part 1.Sec. 15. B. l(c). ivhich reads:
"(ç) The catch. i.~quaniiiies landed. should be reportas accurately8s possible.
Fish buyeri ;ind processorsshould repart both the landingsof their own baatsand their
purchasesof unprocessedfish from independent fishermen landing catches wiihin ihc
districi-includingfishermcn (Canadi~n or foreign) making the disirici tempararily

their homeport.
If there ian 'off-shore' lishcry in the districi ihe in-shore and off-shore caichcs
should be rhown separaicly. By ihe off-shore catch ir rneant thc ontthe dccp-sea
fishing grounds. In general. ihis vould be the total for the manih of ihe catcher
repiried aeekly on ihc F.S.13 form--includingthe landings by the sali b~nkers(con-
vertcd 10'-esh drawn weight)."

SceDa'u. .y Appendix 25.12891 ANNEXES IO REPLY OF CANADA 297

22. One reason why catches were not recorded in terms of the
area of capture is that Canadian starisricswere collecredprimarily /or

econo»ricrarher rhan biological reasons. Thus a Fisheries Research
Board memorandum of April 1941 States that "the fisheries statistics as
they are now collected are intended primarily as trade statisticssO".

Along with the economic orientation of the statistical system. a further
reason why Canadian statistics did nor arret>rprro record the specific
area where carcheswere made n1osthe geographical dispersionof the

/ishrry. In the United States the fishery was concentrated in a handful
of large ports. such as Gloucester and Boston. but the Canadian fishery
was spread over hundreds of villages and towns - as it is today.
This geographical dispersion of the fishery is cited in a report dated

18 December 1951 as the principal reason for the deficiency of the
Canadian catch statistics5'. Indeed. it has beencited as a hindrance to
the collection of accurate statistics as early as 1910. in a memorandum

for the Deputy Minister of Fisheries:
"Many difficulties at present stand in the way of the collection

of absolutely accurate fishery statistics in Canada; amongst the
chief of these being the enormous multiplication of small fishing
hûmlets scattered along great distances of coast-line, and the

impossibility of having a reporting officer a1each" . ."

23. Consequently, although the Canadian statistics were in many
respects both sophisticated and thorough from an economic perspective,
they provided no information on the volume of catches from individual

offshore banks. The problem was clearly recognized by the Canadian
authorities in an interna1 report written shortly after ICNAF came in10
being:

"The basic statistics required by the Commission will be
vided by the majority of countries fishing in the Northwest Atlan-

tic area. covering the year 1951 and in many cases back years.
United States statistics have been published monthly and annually
in detail. The European groundfish statistics for the Convention
are3 do not present a great problem since small iieets of large ves-

sels lish a small number of trips each year. and land their catches
in a relatively small number of Iishing ports. Canadian starisrics.
on the orher hand.are noradegirare,forConinrissionpirrposes.and

WA. W. H. Ncedler: "Memorandum Re lmprovcment of Fisherics Slatistics For Biological
Purpases". p. 1See Documentary Appendix 21. The new lorm recommcnded in this
report was ncvcrpu1inla cffect.
3' R.W. Martin. Acting Executive Secreiary. ICNAF: "Memorandum 10: A.W.H. Nee-

dler. Canadinn advisrr. Re: Canadian St~tirtics for the Iniernational Commission for
the Northwest Atlantic Fisheries". 18 Decembcr 1951. pp. 3-4. Scc Documentary
Appendix 26.
" J. J.Cowie: "Mcmorandum for the Dsputy-Ministcr re Fishcries lntclligcnce and Slatis-
tical Work." Oitawa. 21 April 1910. p. 2. See Documentary Appçndix 27. See alro
"Mcmorandum Re: Appendix A of the Minuter of the 1931 Meeting of the North
American Council". where it is staied p.2:
'II ujuld sc:m impurrible Iard~r ii~fcr.ei~c~lleci uiih~;turdr.)dnd iaiiiplci~.nï~,
ihe 1nform3tion coniriiiplaicIf ilir l~nd nuere ion:entrJtci:iltuo i>1hrr.cporir.

in,irad of king nudr ainu! plxr\. the rit~.ition ui>ulJ br <i\r."u
Sec Documcntary Appendix 19.298 GULF OF MAINE [2901

at present represent the weak link in the chain of statistics

required for a compilation of records of Northwest Atlantic fishing
by al1countries.

The problem is very much greater in Canada than in other coun-
tries fishing in the Convention area, since the Canadian Atlantic
groundfish catch is taken by a large fleet of boats and vessels
landingfrequenrly at a great manyfishing ports spreadout overa

longcoastline"." [Iralics added.]
24. It is evident that before ICNAF commenced operations in

1952. Canadian fisheries statistics recorded the area in which the catch
was landed - i.e.. the coastal area in which the ports were located -
instead of the area in which the fish were caught. The data as collected
made no provision for reference to the location of capture. In a letter

dated 28 February 1941, Dr. A. H. Leim, the then-Director of the
Atlantic Biological Station of the Fisheries Research Board of Canada,
described the system as follows:

"The biological value of the fishery statistics largely depends on
knowing where the catches are made. The 'Fisheries Statistics of
Canada' as at present published are deficient in this regard in that
the catch as landed is referred to the place of landing rather than

to the place of catching"."

The pre-ICNAF data thus represent landings from any source al points
along the Coast within a designated area, and not landings/rom grounds

within that same areaJJ. It is therefore not possible to quantify the
Canadian catch from any particular location. such as Georges Bank. on
the basis of the official statistics collected and published during this
period.

25. The documentation produced by the United States in support
of its statistical comparisons for the pre-ICNAF era consists of two

reports prepared by the ICNAF Secretariat in 1952, shortly after

"K. W. Martin: "Memorandum 10: A.W.H. Needler. Canadian advirer. Re: Canadian
Stÿtistics lor ihe InternationCommission lor.the Northwest Atlantic Firherier".
pp. 3-4. Sce Documentary Appendix 26. Similarly. a report by M. A. Graham dated
May 1963entitled The Drvrlopn,enrOfThe New, Srorisricol Sysre»i The Moritime
Provincerdescribed the problem at p. 1 as lallowr:
"Landingi [upta the early ycarr ol the 1950rJ were baran indelinite 'inshore'
'olfshore' breakdown.Sometimes landings had Io be calculated by applyconver-
sion factors to product weights. Monthly figurer on production were mercly an erti-
mate ol ihe probable disposition or the catch expressedin landed weight."

See Documentary Appendix 28.
" Letter of 28 February 1941 from Dr. A. H. Leim. Director. Atlantic Biological Station.
to D. H. Sutherland, Fisherics Kesearch Board 01 Canada. Sec Documentary
Appendix 29.
"See cxamples of statistical tables reproduced in Documentary Appendix 18. See nlio
M. C. Urquhart andK. A. H. Buckley. edr.: Hirroricol Slarisrics ofCanado. Section M.
pp.387-407. Sec Documentary Appendix 20.300 GULFOF MAINE 12921

official sourceswercinherently incapableof providing a reliable basisfor
such estimates.Although the post-1930tables in the published Fisheries
statistics used the NACFl areas Io record total catches, the figiires
represeritedrhe area in which rhe carcheswere landed andtior rhr area

where [hl$ wereacroall}' niade.

28. A description of the method used to estimate Canadian
groundfish landings from 1933to 1951appearsas "ltem B" attached to
a letter dated 6 June 1952 from the Acting Executive Secretary of
ICNAF. ItStatesthat groundfish landings hadbeen"allocated by aren

of capture in the annual published 'Fisheries Statistics of Canada' since
193Iw0".Paragraphs 17 to 24 have shown unequivocally.however, that
this was simply not the case.even though the format of the published
statistics couldwell have been misleading. This ICNAF document also
indicatesexactly how the figureswere "estimated" up to 1947from offi-

cial sources:
"The landings from areas 19, 21 and 22 [reported in Fisheries

Srarisricsof Canada] were totalled to give landings [i.e.. presumed
catch] from Subarea 4and those from Area 20 provided data for
Subarea 3"."

As the Canadian statistics recorded catches by area'of landing rather
than capture, the figuresin the ICNAF tables for subarea 4 do not
represent Canadian catches from that subarea. at least up to 1947.
Rather. they report al1 landings - other than the Grand Bankscatches
that were segregatedin the original statistics - made at ports in the

Gulf of SI. Lawrence (Area 19). the Fundy shore of New Brunswick
(Area 22) and the Atlantic Coastof Nova Scotia (Area 21). Canada's
GeorgesBank Iandingswere thus absorbed into rhis total Jïgure and
misrepresentedassubarea4 catches.

29. The samedocument - ltem B - also indicates that, for the
period 1947to 1951, specialfisheriesstatistics collectedby the Canadian

Fisheries ResearchBoard were utilized by ICNAF in compiling ils
tables. rather than the official statistics usedfor the previousyears.This
program was described in a Fisheries ResearchBoard circular of May
1952,entitled "1947 Landings Of FreshGroundfish By Offshore Vessels
At Nova Scotia Ports6'". Data collection involved a review of F.S. 13

forms detailing groundfish landings statistics collectedfrom fish buyers.
Statistics of areafished, gear used.and fishing effort for individual trips
were collected directly from fishingcaptains using a systemof log-book
recordssupplementedby wharf interviews. However.there are a number

of reasonswhy this program was not helpful in determining Georges
Bank groundfish landings during that period:

9 Letier016 Junc 1952fram Acting ExecutivcSecretdryof ICNAF ta Stewart Baics.
Canadian Dcpuiy Minirter of Fisheries. withattachments. See Documcntary
Appendix30.
LcttCr016June 1952lrom Acting ExeculivcSecretnryof ICNAF io Sicwart Bates.Scc
DoeumentaryAppendix30.

"W. R. Mariin andF.D.McCrackcn: "1917 LandingrofFresh GroundfiRy Offshore
VcsselsAt NovaScotia Ports."St. AndreN.B. .isheriesRcrearchBoard.Statirtical
Series.Na. 1. 1952.SccDocumcntaryAppndix 31.12931 ANNEXES TO REPLY OFCANADA 301

(a) only a sample of the fleet (six large dory schooners and six large

otter trawlers) was usedto determine area of capture;
(b) while the identity of the 12 vesselsis unknown. the charts illustrated
in the circular show that these vessels concenirated their efforts

almost wholly on the banks easi of Halfax; the sainplc was there-
fore strongly biased in favour of'the Halifax fleet, while the south-
wesr Nova Scotia Jeer was in al1 probabilhy exclrrded/rom rhe
sample6';

(d) only "pure trips" (those made to a single bank) were included,
whereas al1 or most groundfish trips to Georges Rank would have
involved at least some en roule îishing on the other southwestern

banks.
30. The foregoing analysis deals with the tables coniained in Part

4 of Infernalional Cornmissiorrfor the Norrhwesr Arlar~tir Fisheries.
Second Annual Report./or theyear 1951-52. As noted above, the Com-
mission shortly thereafter published a further report, Inrernatio~ial
Commissionfor the Norrhwesr Allanlic Fisheries. Sralistical Bulletirr.
Vol. 2,/or theyear 1952. which depicted some of this information in the

form of graphs with commentary by the Commission statistician. In this
supplementary document, the statistician appears 10 have made some
entirely unfounded assumptions and to have compounded the problem
through interna1 inconsistencies. As stated above, the tables published in

the SecondAnnual Report attempt no breakdown by subarea until 1933,
and therefore provide no evidence as, to the location of the Canadian
fishery prior to that dateb'. However, one of the six graphs in the Statis-
rical Bullerin - the one dealing with cod - appears to make the
assumption that Canadian catches prior to 1933 were taken in subarea

4". No evidence or reasons are offered for this assumption. which
appears to be no more than a conjectural effort by the siatistician to
complete the record. The other graphs in the Srarisrical BitIletin that
extend back 10 the period before 1933- relating io haddock. halibut

and flounders simply depict the total Canadian landings from the
Convention Area during that period, and do not attempt a breakdown by
subarea. Hence the graphs in the Srarisrical Bulletin, like the tables in
the SecondAnnual Report on which they are apparently based. provide
no support for the United States comparisons of Canadian and United

While it ir possiblethat samcvesselsfrom the LunenburgIlcet. which frequcntedthe
bankreastal Halifax. wereincludedin thesample.it ir highlyunlikelythat vesscls(rom
portsfurthcr 10thesouthwestwere inçludcd.
Moreover. the breakdown withrespectto redfirhbeginronlyin 1936.
"UniiedSlortsMemorio/ .ocbrnenrory Annexes. Vol. III. Annex 46. p. 10. Sec. how-
ever."Corrections and Additions" ioInrernorionoClonznrirrioir rhu Norihn.rsr
AilonticFishericsS.larirrilaullerinVol.2,for ihcycor1952. whercil isindicaicd
that pre-1933landingsattributcd ta subarea4 includelandingrfrom sub;irea3. Again.
however.no explanationis affcrcd for the assumptionthat theselandingswere from
eithersubarea or rubarea4. Sec DocumentaryAppendix32.302 GULF OF MAINE 12941

St;ites catches6$. Furthcrmore. whilc the graphs purport to rcpresent
catches by subarea for the later period, thcy were presumably based on
the figures in the tables which h;ivc alrcady been shown to provide no

rcliable cvidence on the areas whçre the Canadian fishery was actually
conductcd

31. In sunimary, the 1952 ICN.i\F rcports, which form the sole
basis of the United States historical comparisons of Canadian and
United States catches. were bascd upon a fundamcntal misunderstanding

of the statistical record. The official sources that provided the bulk of
the data did not even purport to indicate the area of capture. and the
Fisheries Research Board surveys used as a supplementary source of
data for the last few years were incomplete and provided no reliable

information on the fishing patterns of the southwest Nova Scotia fleet.
Even on their face. morcover. the reports provide no information what-
ever on the area of pre-1933 catches (apart from a conjectural surmise
in the graph dealing with cod). and the basis for the United States asser-

tions regarding this early period remains shrouded in mystery.

32. As shown in the passage from the report of 18 Dccember
1951 quoted in paragraph 23, it was recognizcd immediately after the
creation of ICNAF that Canadian statistics were deficient in providing

the information on the area of capture that was requircd by the Com-
mission. There is cvidence that measures were gradually taken to
improve the situation. For example. it was recognized that many vessels

were not using the F.S. 13 form (the reporting form for offshore land-
ings) to report fishing activity. and steps were taken to expand ils use*".

33. In 1954, a major report on the Canadian statistical systcm
was prepared by Dr. S. Sinclair: A Srarisriral ServiceFor The Fisheries
of rhe Maririnie Provinces:A Reporr ro rhe Working Coniniirreeof the
lntvrdeporrn~~ntolConin~itreeon Maritime Fisheries Srarisrirs*'. This

study recommended the introduction of a new statistical system based on
purchase slips (vouchers recording the transaction at first sale of fish as
landed). an innovation that was brought into general use in 1957 after

an experimental test period from 1954 to 1956. These data, which did
not include information on area of capture. were used in conjunction

b51nthecase of hadduckand hslibui. the textual cornmencarysuggeststhat mosl of the
landingrcornefrornrubarea4. butno evidenceorrcasonrare givenfor thir oppÿrently
conjecturalstatemenl.
iMemorandumfrornJ. N. Lewisto 1.S. MacArthur: "Re:Offshore Landingr".22 Feb-
ruïry 1952. pp. 2-3. Sec Dacumentary Appcndix 33. See also. circuladirective.
E. 1)Fraser:"To four District ProtectiOlliccrrinNova Scoril andlaur District
ProtectioOfficers in New Brunswick". Halifax. 21 March 1952. See Dacumcntary
Appendix34.

"Dominion Bureauof ~talistics.1954.SecDocumentaryAppendix35.304 GULF OF MAINE i2961

36. The cornparisons in the United States pleadings of Canadian
and United States catches from Georges Bank are without any founda-
tion in fact because they are based cxclusively on sratistical evidence

that does not reveal the area of capture of the fish landed in Canadian
ports. The evidence relied upon by the United States is therefore inher-
ently incapable of supporting its contentions concerning the Canadian
Georges Bank fishery prior to the introduction by Canada of a modern
statistical system in the late 1950sand early 1960s. DOCUMENTARYAPPENDICES TOPARTII
THEHISTOR OFTHECANADIAFISHERIESS:PPLEMENTEARIYENCE

Dmmeotnry Appendi1

Exc~nmsFROMFORTY-SEVENATNNUA L~RT OFTHEDEPARTME OFT
MARINEANDRSHER 913-14RSHERIES,90-95GULF OF MAINE 1901

G GEOllGE V.,A. 1916[g11 ANNEXES TO REPLY OFCANADA
SESSIONALPAPE Na. 39

Eli.
2
E l
=dr,
2
e
2 %.
t"R
w:5
.$0i
ua:-
2w
aa.s
5 0
WU
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8 $
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gE?
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1Qça

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P; 308 GULF OF MAINE 1921

G GEOIIÜE V., A. lUl5
Il~<~i.uirliubviiigtliu Niiiiilicr iiiiil VirloEoVutirulxiiiid llu;itx,ziisdLItii(iiiiiiiLiiiiiil
Ynririoiith, i'iuviiiuuul NOV;L Suotii~,

....-..... ................... .......................... ..............-........................

V<.*xi,l*.IlaiitiLI11wyitX~~~~~ULH.
I .... [931 ANNEXES TO REPLY OF CANADA 309
SliSSIUNALIJAIJL:IN I u. 39

(luiiiig tliu ywir IVl3~l*l. olo., itsu<liii Lliu I'ixliiiig 1:iidiuLry iii Lliu Cuiiiily uf

...... .. .............................................. ... . . . I'.
Uy,.
Il<inltUtY~I.. iiuii?n. Ul1,"r344,Lt,"i4,1.
... . . ....

. Nuln,<II<;. -- .- ...-- -- ,_ __ __ _

O $ O 6 Y
Ill" JllI......
......
......

................. .. ............. ;.
.....

-. ..- ...-. 310 GULFOFMAINE Pd]

G GEOIIGE V., A. 101Ci
Ilii~i~uii~liuiviiigIliu NitiiiLci vl I"islivi~iiio&,c., LlaoNiiiiiLoririiil V~iluu of Vosrula iiiiil
1iidilati;yiiitliu UuiiiiLy ul Digby, l'iuviiiïu
.- ~ ~ .. .. .. __ _ ___ .. ..,
... . . ... -.......... .......-............ .. .-
I l I ANNEXES TO REPLY OF CANADA 311

SESSIONAL lPAI>El'INu. 3U
IlulrLa, iiiiiiL1isi 1JiiiiiiLiLy tiiiil Virlitu ul irll Ii'isliiii~ (juiii., ibc., iisui; iii Lllu 13'iiliiiig

..... .II . ,,. .. .C ~hii.iii. ...,..itiii.I'JI3.l~l. . , .... .. .
.-. ,......... ,........ ......... .. ..... . . .. .......... . . . . . -

Ifliiil~illiiir: UV \Il . Doeumentary Appendix2

EXCERF TO M F.W. WALLACE R.OVINGFISHERMAN.ANAUTOBIOGR~PHY
RrcOu.r7l.VPERSUVAL EXPERIE.VCEF IN THE CO.U.WERCFISIIINGFLE~ AN0
FISHIKDUSTRY OF CAVADA A.SD THE U.VITED STATES. /9//./P.101

DoeumentaryAppendix3

ExCERFT FROM N. BOURNE SCALLOPS AN0 THEO~~SHOR FISHERYOF THE
MARITIMES P.22 ANNEXESTOREPLYOFCANADA 313

DocumentaryAppendix4

Exc~nprs FRûM ~~VENTY-NINANNUALREFORT OF THDEPARTME ONT
MARINEAND FISHERIE1,896,F~SHERIPS,94-95 GULFOF MAINE
314Lw ANNEXESTO REPLY OF CANADA 315

I I
6 !
J t

.....

". I _ ..
O ' .......... . --..
z, '.pq '.iur!3 .................
: 1 I . -- ....-
3- I "['q 'U.%!.<<J[V O .c . .O ..1 :BU---?.T. SXS
i 3 IN 15 - le lz-

......... "......
.......... '.........
.......... . .

. .

..
..........-

. .

...
. .

.5 !
0 8
-2 :
C 1
C j
-""..'.'.L-,-rn~3-^ir:-r te="
i --*-+ ---316 GULFOF MAINE

DwumentaryAppeudix5

EXCERP TROMFORTY-FOURA THNUA LEPORT Of THDEPARTME NT
MARINEAND FISHERIES,191@1RSHERIE P.XX-XXI AND126-129

[Nor reproduced]

Dwumeutity Appendix6

EXCERP RSOMFISHERIESSTATISTICS,1918, PP. XXVI-XXIXAND 14-29

[Nol reproduced]

DocumentaryAppeudix7

[Nat reproduced]

DwumeotaryAppendix 8

[Not reproduced] ANNEXES TOREPLYOFCANADA 317

DocumentaryAppendi9

[Nol reproduced]

DocumentaryAppeodii10

EKCERP FRON FIFTY.~XTHAKKUAL REPDR TF THFISHFRIESRANCH,
DEPARTMEWO MFARIV VB F)sHERIE OR THEYEAR 1922P.12

[Norreproduced]

DocumentaryAppendii11

[Norreproduced]

DocumentaryAppendjx12

[NG reproduced] DoeumentaryAppendix13

EXAMPL ESSTATlSlIC~PORTINF CORMS

[Norreproduced]

DoeumeutatyAppendix14

[Not reproduced]

DoeumeotaryAppendix15

/Natreproduced]

Doeumentary Appeodx6

"MEMO F.ORMR.COWIER . FISHERSTATISTICS"

[Not reproduced] ANNEXES TO REPLYOFCANADA 319

DocumeutaryAppeodi17

EXCERP FROM NORTH AMERICA NOMMITT EEFISHERIYNVESTIGATIONS,
"MINUTES OF THNINTH MEETINGH,ELDIN THMCALPIN HOTELN, EWYORK,
N.Y.,ON FRIDAYM, AY8TH,1925,.I

[Norrepmduced]

DocumeotsryAppendi18

EXAMPL EfSPOST-193PUBLISHECDANADIA NSHERIESTATISTICS,
COMPARATIS VEUDYP,.412-41AND F~SHERISESATISJIOFCANADA1,938,
DOMINIOB NUREA UFSTATISTICKI,G'SPRINTER1,94PP.56-11AND 225

[Norreproduced]

DocumentarAppeodix19

"MEMORANDU REM:APPENDI XOF THEM~NWE SF THE1931MEETIN GF THE
NORTH AMERICA CNOUNCILP",P.1-2

[Norrepmduced]

DofumeotaryAppendiîû

EXCERP ROM M.C. URQUHAR TNDK.A. H.BUCKLEE Y, SHISJORICAL

SJAT~STIOF~CANADA SECTIOMN.P.388

[Norreproduced]320 GULFOFMAINE

[Notreproduced]

DocumentaryAppeodix22

[Norreproduced] '

Dmmentary Appendix23

[Notreproduced]

DocumentaryAppendix24

EXCERP FTOM "NOTER SESTATISTIC DILCUSSIOS NI., NDREWN S.,B.,
MARCH 13:-15,952"P.2

[NOIreproduced] ANNEXES TO REPLYOF CANADA

Documentary Appendix25

[Nor reproduced]

DonimentaryAppendix26

E-CERP~ SROM "MEMORANDU MO:A. W. H. NEEDLER CANADIAN ADVISER.
RE:CANAI>IAS STATISTIC FSR[HE IVIERNATIOSALCOI~MISSIO FSR THE
NORTHWES IIUNTIC FISHERIES "..3-4

[Nor reproduced]

Documentary Appendix27

[Nor reproduced]

Documentary Appendix28

Exctnns FHOU M. A.GRA~IAM R.IFUEVCLOP.WC.WO TFENEW STATISIICAL
SVSTE.WFOR THEMAHI~I.wEh0~7NCt-S.PP. 1-4ANI> 8-9

[Nor reproduced] DoeumentaryAppendix29

LmER OF28FEBRUAR1Y 941FROMDR.A. H.LEIM,DIRECTOR A,TLANTIC
BIOLDGICASLTATIOT, D. H. SUTHERLANFD, HERIESESEARCBHOARDOF
CANADA

[Norreproduced]

DocumentaryAppendi30

LETTEROF^JUNE1952 FROMACTINGEXECUTIVS EECRETAROYICNAF

[Norreproduced]

Documentary Appendi3x1

EXCERPT FROM W.R. MARTINAND F. D. MCCRACKE"V,947LANDIUG SF
FHSHGROUSDFIS 8YOFFSHORV EESSFISTNOVA SCOTlAPORTS",
PP3-6

[Norreproduced]

DocumentaryAppendi32

"CORRECTIO NND ADDITIONSTO INTERNATION COLMMISSI ONR THE
NORTHWEST ATUNTIC FISHERIESTAT~ST~C BULLETINVOL.2,FOR THEYUR
1952

[Norreproduced] ANNEXESTOREPLYOFCANADA 323

DocumentaryAppendix33

Exc~ms FROMMEMORAND FROM1.N.LEWI SO 1.S.MACARTHU "R,E:
OFFSHORELANDINCS PP2-3

[Nor reproduced]

DonimentarAppeodix34

[Nor reproduced]

DocumentarAppendix35

EXCERF'TSFROMSINCLAI R, TATISTICELRVICEFOTREFISHERIESOF THE
MARITIM~OVINCU: A REPOR TO THWORKINC GOMMI~E OF THE
IWERDEPARTME NTMIMI~EONMARITIM FISHERIESTATISTICS,
PP.1-4

[Nol reproduced]

DocumentarAppendix36

EXCER ITOMA REFOR TONCERNING TNEEO FORCONSOLIOAT IIGHERIES
STATIST~LRESPONSIBIL IITHEMARITIM EEA, P4

[Nor reproduced] PART III.THECONDUCï OFTHE PARTIES:
SUPPLEMENTARY EVIDENCO EN CONTINENTALSHELF
ArnVrnES 15411 325

INTRODUCTION

1. The following paragraphs respond to - and demonstrate the
erroneous assumptions of - certain arguments made by the United
States concerning United States geophysical survey permits. In its

Memorial and Counter-Memorial. the United States suggeststhat it has
been routinely issuing geophysical permits for the northeastern part of
Georges Bank since 1964. This, quite simply, is no1the case. On the con-
trary, in the 1960s. the agency responsible for United States policy with
regard to offshore permits was apparently assuming the use of a median
line boundary on Georges Bank. It was no1until some time in the 1970s,
after the United States decided to reverse ils policy regarding a median

line boundary, that geophysical surveys were carried out pursuant 10
United States permits in what had by then become the disputed area. A
close examination of the United States permits themselves reveals that
no work was actually done under the authority of United States explora-
tory permits on the northeastern part of Georges Bank in the 1960s.
What exploratory work was later done in the disputed area appears to

have been conducted pursuant to the authority of both United States
permits and Canadian licences and authorizations.
Before discussing the United States contentions and the United
2.
States permits themselves, however, it is helpful to recall the differences
in the terminology used by the Parties. United States geophysical "per-
mits" grant temporary authority to do seismic or other geophysical
research in large areas off the coasts of the United States, and they are
generally equivalent in form and purpose to what Canada calls explora-

tory "licences". Canadian "permits", on the other hand. are long-term
instruments that confer the prospect of exclusive resource production
rights, and they are therefore analogous to United States offshore
"leases". The United States. having issued no continental shelf leases
covering the northeastern portion of Georges Bank. seeks to support ils
continental shelf claims by invoking geophysical permits that authorized
seismic research involving no fixed operations and seldom requiring con-

tact with the continental shelf. Canada, by contrast, has invoked ils issu-
ance of permits conferring the prospect of exclusive production rights;
unlike the United States. Canada does not rely upon temporary explora-
tory licencesfor high seos ociivities in support of its contentions regard-
ing the conduct of the Parties. (The "Eastern United States Coastal and
Ocean Zones Data Atlas". published by the United States Government

@ and reproduced in part as Figure 31 in the Canadian Counter-Memorial.
shows the offshore areas under United States lease or Canadian permit
as of thattime.)

3. It is also useful to point out that, in its discussion of United
States continental shelf activities. the United States Counter-Memorial
defines the "northeastern portion of Georges Bank" as including the
whole ore0 of the Bank, commencing at the Great South Channel and
extending to the northeast tip of the Bank'. This view is inconsistent with

1 UnirpdSrorpsCounler-Memorio/,pp. 78-79. para. 101:pFigure 13326 GULFOF MAINE i5421

that advanced by the United States Counter-Mernorial in its discussion
of the fishing activities of the Parties, where it is noted that "[tlhe
Northeastern Portion of Georges Bank refers to Sintictical Units 5Zej
and 5Zem. ..f". Canada regards the northcast portion of Georges Bank
as comprising generally that part of the Bank claimed by Canada (Le..

roughly equivalent to the area included in ICNAF statistical units SZej
and SZem).

Section 1. The Contentions in the United States Memorial

and Counter-Mernorial Are Misleading and Ambiguous

4. Analysis of whatthe United States has actually claimed - or.
rather. failed to claim - with regard to ils gcophysical "permits" is
revealing. The fact is that neither in its Memorial nor in ils Counter-

Memorial has the United States denied that it regarded a median line as
an equitable and appropriate boundary in the Gulf of Maine area in the
1960s.

5. In ils Memorial, the United States makes the expansive claim
that:

"Beginning in 1964. the United States Geological Survey issued
permits for geophysical exploration of areas covering the continen-
tal shelf off New England, including Georges Bank.. .Since.1964.
approximately 19,185 miles (30,869 kilometers) of geophysical

data have beencollected, under some 24 United States' exploration
permits. in the northeastern part of Georges Bank alone'."

6. The first sentenceof the above quotation says in quite general
terms that United States permits covered areas off the New England
coasts, and that some included Georges Bank; it does not indicate

whether they included that part of Georgcs, Bank which is in dispute.
The second sentence does contend quite specifically that a certain num-
ber of line miles of seismic research on the "northeastern part" of
Georges Bank was conducted under some 24 permits. listed in the
Annexes to the United States Memorial (Volume II, Annex 40. which

includes permits issued until 1982). Close scrutiny of the permits them-
selves. however. refutes this claim; indeed. it demonsirates that no work
was actually done pursuant to United States geophysical permits on the
northeastern part of Georges Bank until the 1970s.probably 1972'.

7. Only four of the permits listed in the Annexes to the United
States Memorial (Volume II.Annex 40) date from the period before the
United States reversed its acquiescence in a mcdian line boundary on

Georges Bank in late 1969; and. judging from the "Reproduction" maps

UniredSrarcsCoonrrr-M~moriol.p. 71. TabB.foolnote2.

UniiedSroresMemorial. p. 58. pa93.
'The fîct thai Ihc United Statesdefinesthe "northenportionof GeorgesBank" as
includingihc whalc area of tBank. cammencingai the Great South Channeland
ericndingto the norihearttip of the Bmay.explainthe canflictbetweenthe United
Statescontentionandtheevidenceofferedin supportof thosccontentions.f5431 ANNEXES TO REPLY OF CANADA 327

provided by the United States'. of thcsc four. only the "sample" permit
contained in ihc Annexcs to the Unitcd Staies Menlorial (Volume II,

Annex 40) may have :iuihorized operations cxtending into the part of
Georges Bank claimed by Canada" This possible cxception is United
States permit E2-68. issuedin ihe spring of 1968 io Exploration Survcys,

Inc. This same company, having writtcn to the Can;idi:in Governinent
offcring for sale the rcsults of its survey on Georges B:ink, w;ts advised
that no work could be donc in thc areii of Georges Bank claimed by

Canada except pursuont to authority granted by the Canadian Govcrn-
ment. The company indicated. however, that al1of its operations during
1968 had been "ofTshorc New Jersey and Long Island . .'" and assured

the Canadian Government ihat "(nlo work was donc in thc arca in qucs-
tion [Le., that pari of Georges Bank claimed by Canada] during
1969.. .'".

8. The United States made much more limiied assertions in its

Counter-Memorial with regard to its continental shclf activitics. Para-
graphs 100 and 101 of the United States Countcr-Memorial rcquire
particularly careful scruiinyq. B:isically, thcre is a threc-stcp proccss of

misleading assertions:

(a) The United Siatcs Counter-Mcmorial first contcnds th:it:
"ln 1960, a program io explore the contincntnl shelf off the

east Coast of the Unilcd States was begun, and permits for
exploration of the continental shelf off New England were
issucd beginning in 1964'0."

This says nothing about any United States gcophysical permits

authorizing work on the Canadian side of the median linc.

3 The "Reproduciian" mïps were filcd wiih thc Court togçther with :i lelier dated 20
Januÿry 1983 from ihc Agcni Torthe Uniicd States.

a Althuugh the mîp subrniticd by ihc rompany Io the United Siïtçs Gcologic;il Survey
with the lelier of application included nll of Gcorger Bank aarc3eiu be surveyed. thc
Uniicd Staies Geological Survey authurizçd the company to conduci ils oper;ition "in
thai portion ofrhc rryue.vrurru which lier in the 'outer Coniinçnial Shcasihat icrni
is derincd in Seclio2of the Outer Continental Shelf Lands Aci of Augusi 7.1953..
[lrolic.~ odded.] See Unircd Srorur hlr,iloDocir»lenrory Ai!tieicr. Vol. II. ,\""ex 40.
Section >(a)al the Ourer (i>nririrnral SheI/Laildr Act defines "outcr Coniinenial Shelr'
3s "a11subrncrged lands . . . bencaih navigable wate.. . anduïwhich ihc subroil and
reabcd îpperiain to the United States and are subject to its jurisdiciion and control".
The corcoi containcd in the leitcr authi>rizing ihe cornpany's nperatiuns suggertr ihÿi the
Uniicd States Gcalagical Survey tipprovçd only ihose operations conducion thaip3ri

of Georges Bank not clnintcd by Canada.
Lettcrof 13 Octaber 1969 tu M. Bcll. Conservelion Engineer. Rcource Administration
Diviaion. Canadinn Departrnem of Energy. Mines and Resaurces. from Shclby 0. Pitlr.
Senior Vice-Preridcni. Exploration Survcys Inc. Conadian Mo,,oriol.An>,',.r<,.r.Vol. II.
Anner 50.
Letier of 3 December 1969 tu 1).G. Crosby. Chief. Resaurce Administration Diuisiun.

Can~dian Department of Energy. Mines and Resourccs. from Shelby 0. Piits. Senior
Vice-Presideni. Explorïiiun Surveys Inc. Cnnndian M~nroriol. A Vol. II.
Anncx 50.
Unired Srorer Counler-Mpnroriul."p. 78-79, paras. 100-101
'oUnirpd Stores LOunre~-M~n~oriol.p. 78. para. 100.328 GuLFoF MAINE 15441

(b) The United States Counter-Memorial then proceeds to state that
"[tlhe first United States exploration permit pertaining to Georges
Bank was issued in 1965"". Again. this says nothing about any pur-

ported exercise of United States jurisdiction on the Canadian side of
the median line.

(c) Finally, the United States Counter-Memorial asserts that "[mlany
other such permits have followed" and that ". . .over 20,000 nauti-
cal miles of seismic survey lines have been collected on the north-
eastern portion of Georges Bank alone"". This says nothing about
any United States permits authorizing surveys on the Canadian side
of the median line at any-paelar lime - say prior Io the early or
mid-1970s.

9. In any event. as has been noted in the-eanadian Counter-
Memorial". when Canada in the 1960swas issuing offshore permits con-

ferring lasting rights based on the median line - with full awareness by
the United States - Canada neither knew nor had any reason to know
of any United States temporary geophysical perm&authorizing surveys
on the northeastern portion of Georges Bank (other than the Exploration
Surveys Inc. case, discussed in paragraph 7). Indeed, it is Worth pointing
out once more that. as laie as 5 November 1969. the United States

Department of State assured the Canadian Government in an aide-
mémoireas follows:

"The Government of Canada has already issued exploration per-
mit~ for the northern portion of the Georges Bank continental
shelf. The United States is concerned that. pending settlement of
the boundary question, substantial investment in exploration and
exploitation of the area could greatly increase the difficulty of
negotiating a satisfactory boundary. For this reason. the United

Srares has .refrainrd /rom aurhorizing mineral exploraiion or
exploirarion in rhe area"." [Iralics added.]

Section II. The United States Assumed the Use of
a Median Line Boundary on Georges Bank

10. It is not surprising that the United States should experience
difficulties in its efforts to imply that it was authorizing seismic research
on the northeastern portion of Georges Bank in the 1960s in view of the
fact that, as the evidence shows. the United States authorities at the
time were of the view that a median line was an equitable and appropri-

ale boundary on Georges Bank. Among the strongest evidence of this
fact is, of course, the correspondence between the United States Depart-
ment of the Interior and the Canadian Department of Northern Affairs
and National Resources. which has already been discussed in the plead-

" Unircd Sroier Counier-Hen~oriol. 78-79.para. 101.
" Unirrd Slarer Counier-hfenioripp.78-79.para.101
" Canodion Counier-Menlurio/. pp. 1and 147.para.366.
"United States aide-mémoireof 5 November 1969.Conodion Mernorial. Annexe5.Vol.
III.Annex 13:United SIorc.~M~morinl. Bocumenlory Annexes. Vol. IAnnex 56.(545-5461 ANNEXES TOREPLY OFCANADA 329

ings of both partie^'^.This dialogue over the "precise" location of the
median line as defined in Article 6 of the Convention on the Continental
Shelf need not be repeated here. It must be noted. however. that even if

the United States had been issuing geophysical permits authorizing sur-
veys beyond the median line. that hypothetical fact would be irrelevant
for al least two reasons:

(a) The United States geophysical permits. as is apparent from the
pleadings of the United States itself, authorized seismic, gravity and
magnetic work only16. This work involves solely navigational or

research activities, and seldom requires any contact with the conti-
nental shelf or ocean floor. Thus. in contrast to Canada's "permits",
which are long-term instruments that confer the prospect of exclu-
sive resource rights over the areas in question. the United States

"permits" may be understood as conveying no rights in the shelf and
as constituting simply an exercise of regulatory jurisdiction over the
activities of United States nationals (since al1of the permittees listed
in the Annexes to the United States Memorial (Volume II. Annex

40) doappear to be United States corporations) on the high seas.
(b) The United States, moreover, never claimed in connection with its

early permits that such exercises of regulatory jurisdiction con-
stituted "proprietary" claiiris. Indeed, the solicitor of the United
States lnterior Department look the position that the United States
permits were no/ tantamount to assertions of jurisdiction in respect

of the areas in question".

Section 111.The United States Permits Reflect a
Median Line Boundary

II. Apart from the fact that close examination of the United
States geophysical permits revesls that the United States was not in fact
authorizing research in the northeastern portion of Georges Bank before

the 1970s (with the possible exception discussed in paragraph 7), these
permits are of interest for another reason as well. The United States per-
mils appear to demonstrate quite clearly that, through the 1960s and
into the 1970s.at least some United States authorities and several dozen

oil Companies in their operations presumed the use of a median line or
similar boundary on Georges Bank. and the United States Geological
Survey issued permits accordingly.

12. The assumption that the boundary would divide Georges
Bank is readily evident from a review of the history of United St;ites

"Conadion Memoriol. pp. 93-96, par:lr. 206-210; pp. 162-167. paras. 393-403: Utiired
Srnres Mpmoriol. pp. 82-83. paras. 136-140:CBnodian Counrer-Mentoriol, pp. 151-152.
para.377; tinired Srores Counrer-Mernorial, pp. 171-177. paras. 267-284: Canodion
Reply. paras.220 and 223-224.

l6Unirrd Srorcr Meniorial. Boci~nie,Annexer. Vol. II. Anner JO.
"Leitrr of 3 Junc 1968 fram DrM. B. Schacfer.ScienceAdviser. United States Depart-
ment ofthe Interior. to R. Kruegrr.Cited in R. Krucgcr.Pr al.: Sritdy ojrhe Ourer
Cao/inenrol ShdfLondr ojrhr Unilrd Slolrr. Washington. 1968, p. 20. A copyihe
letteirreproducedin Documentary Appendir 9.330 GULF OF MAINE i5471

permit E3-75. In the Annexes to the United States Memorial (Volume
II. Annex 40) it is alleged that this permit covered the grcatest number
of line miles in the northeastern portion of Georges Bank (4400) -
although, in fact, as depicted on the map filed by the United State~'~,
permit E3-75 impinges on the northeastern portion of Gcorges Bank

scarcely or not at al1 [Figure Il. Permit E3-75 also warrants special
study for the further reasons that it was issued to Digicon Geophysical
Corporation acting for a group of approximately three dozen oil compa-
nies, and because it clearly seems to follow an approximate median line
boundary on Gcorges Bank.

13. In order to understand the information conveyed by permit
E3-75, il is necessary to examine the background to at lettst three previ-

ous United States geophysical permits: E2-69. El-70 and E2-72Iv.These
permits were also issued to Digicon. Canada's information on these per-
mils. however. is iar from complete, since the materials filed with the
Court by the United States on 20 January 1983do not provide a11of the

pertinent information. Therefore. although Canada has obtained numer-
ous additional documents, some of what follows is necessarily an exercise
in deductive reasoning.

14. In 1969. United States permit E2-69 was issued to Digicon
Inc. For reasons that Canada does not understand. this permit was omit-
ted from the list of permits in the Annexes to the United States
Memorial (Volume II, Annex 40) and from the materials filed with the

Court by the United Stateszv. It was requested by Chevron Oil Com-
pany. acting as Digicon's agent and in collaboration with 26 other oil
companies. and al1of the companies together were known as the "1969

"See p. 543. faotno5.

" Unitcd Statcr permEl-74 ir alro of interest in this regard. The United Stoter har filcd
with thc Court ccrtain documents pertaining to peEl-74. including a map purport-
ing ta show that the arear rurveyed exlended in10that part of Gcorges Bÿnkclaimed by
Canada. Canada has obtained ather documents relating to this permit tending to show
thnt the survcy îma cxtendedonly to an approximate mrdinn onnGeorges Bank. It is
drnwn. Documentspertaining to permiEl-74oare reproducedin Docurncntary Appendir
4.A large-scde mîp dcpicting tharcassurveyedhîr beendcpositcd with the Court.

"Operations under permit E2-69werc suspendcdbcfore rcïching the Georges Bankarea.
and this might be thereasan for the omission. The same is true. however. for ather
United States permitr that were listed and included in UniredSrares Menzoriol. Docu-
meniary Atine.res, VoII. Anncx40.Permit E2-68 (the Exploration Survcys Inc. permit
discussedin para7) isanexample,and therc may be otherr.1548-5491 ANNEXES TO REPLY OF CANADA 331

Easi Coast Joint Survey"". Ailachment V to one of the documentspcr-
taining to this permit notes the following:

"Permit E2-69 authorized operations along the numbcrcd lines
shown on plat rcccived with the applicntion insofar as thcy lie

within the 'outcr Continciital Shclr as dcfincd in Scciion 2 of the
Outer Contincnt:tl Shclf Lands Act of August 7. 1953. Portiotisof
two of the littes exrerrdto the Catindian side (,jrhe &LM line.
Operations undcr the pcrrnit conimenced Septembcr 13. 1969, and

are currcntly in progress. The large plat is in U.S.C;.S. files"."
[Iralics added.]

1 This referencc to certain lines crossing thc "HLM line" rein-
forces the conclusion froni thc corrcspondence bctween the Unitcd States
Bureau of Land Management (BLM) and the Canadian Deparimeni of
Northern Affairs and National Resources that, ihrough the 1960s. the

United States authorities wcrc assuming the application of a certain
boundnry on Georges Bank, arid that the boundary in question was a
median line. In its corrcspondcnce in the 1960s. the Hurcau of Land
Management did not indicate hi~wit constructed its rncdian line, and the
United States has not filcd witli thc Court the plats refcrred ta in the

passagequoted in par:igr:iph 14.

16. Thc year following the issuancc of permit E2-69, Chevron Oil
Company, acting as agent for Vigicon Inc. and in collaboraiion with 25
oiher oil companies. again rcqucsted the United States nuthoritics to
issue a research permit io Digicon. Permit EI-70 (which is listcd in the

Annexes ta the United States Memorial (Volume II. Anncx 40) and is
includcd in the materials filed by the United States) states ihai it was a
continuation of E2-69. In connection with their 1970 application. the
group of oil companies refcrrcd ta themselvcs as the "1969-70 East

"The oil companiescollabarÿiing in the East Coast Joint Survey acre thc following:
Chevron Oil Company- Choir»!on: Anadarko Production Company: Ailantic Richlield
(farmcrly Sinclair): Cities Service Oil Company: Columbia Gas Company: Continçntal
Oil Company: Celty Oil Conlpliny: Gulf Oil Comp-nyU.S.: Hïmilion Brothers Oil
Company: Highland Rçsources.Inc: Humble Oil & Refining Conipîny: Kerr-McCee
Corporation: Louisiana Land & IJxplorntion Company: Marathon Oil Ciimpany: Mobil
Oil Corporation: Occidenttl PetroCorporation: Pan Ameriwn PelroleumCorpora-
iion: Phillips Petroleum Company: Skelly Oil Company: SunOil Cumpïny: Superiur Oil
Company: Texîco. Inc: Tçxas liasicrn Transmission Corporation: Tçras Gulf Sulphur
Company: Transocean Oil Cunipony. Inc.; Union Cnrbide Petroleum Corporation: and
Union Oil Company of California.
" Aitachmeni V ir reproducedin Docunicntary Appendix 1.tugether with athcr documents
pertaining to United States permit E2-69. 1553-5551 ANNEXESTO REPLYOFCANADA 333

19. Thus, il appears that somc 28or more oil companies assumed
that a large part of Georgcs Bank was "Canadian". As to the prccise
boundary they considcred io be applicable - bcaring in mind that it was

generally thc same group of companics that participatcd in the 1969
East Coast Joint Survcy under permit E2-69. where refcrence was madc
10the "BLM line" - ilis logical to conclude that they adopted an cqui-
distance boundary. which was indeed the case. Moreover, the corre-

spondcncc from the Bureau of Land Managcmcnt (discussedat length in
the plcadings of boih Parties to date"), confirms that the Bureau was
using a median or cquidistancc line.

20. The BLM line rcfcrrcd to in the documentation pertaining IO

permit E2169 is dcpictcd in Figiire 5. The boundary line uscd by the 28
or more oil companics in conncction with permit E2-72 (as shown on thc
maps deposited with the Court) is close to this line, although the compa-
nies (and pcrhaps the Unitcd St:ites Bureau of Land Management) may

have movcd tlic cquidistancc litic slightly to the northcast, bascd on a
dilfcrcnt tcchniuuc of construction.

21. Permit E3-75 was issued to Digicon Geophysical Cor-
poration". In ihis instance, Digicon was acting for a group of 35 oil

companies callcd the "1975 Atl;intic Ocean Group Seismic Survey"".

22. The designation of the survcy arca for the 1975 Atlantic
Ocean Group Seismic Survey, as appears from the permit materials îïled
by the United States, was on the samc base map that was used to dcsig-

natc the area for the 1972 Atlantic Occan Group Seismic Survcy under
permit E2-72 (Figiire 31. Thc nialcrials filed by the United States do not
reveal that there wcre. in Tact, no1 one but IH'O maps submittcd to thc

"See p. 545, foatnotc 15.

"On 31 March 1975.Digicon Inc. transfcrred rubsiantially ailgeophysicïlcollection
data and procesring operations to a new whally-owncd rubridiary. Digicon Gcophysical
Corporation. The purposeof this transfcr of both assctsand liabilities wzisto allow thc
parent company to divcrsily intu other linesof business.through scparatesubsidi;iries.
inThe follawing comp:inies ivere participants in the 1975 Atlantic Occan Croup Seismic
Survey:Allied Chemical Company: ,\mcrüda Hess Corporation; American Independent
Oil Company. American Petrofina E~ploration Co.: Amoco Production Company: Atlan-
ticRichfield Company: Burmah Oil and Gas Company: Buttes Gas & Oil Company:
CNG Producing Company: Chevroo Oil Company: Citier Service Oil Compny:
Columbia Cas DevelopmentCorporation:ContinentalOil Campany: Diamand Shamrack
Corporation: Exxon Corporation: Farmcrs Union Central Exchange.Inc.: Gull Oil Com-
pany - U.S.: Hamilton Brothers Oil Company: Kerr-McGee Corporation: Louisiana

Land & Exploration Company: Mar;ithon Oil Company: Mobil Oit Corporation: Ocean
Production Company: Pennzoil Company: Phillip6 Pctroleum Company: Shrll Oil Com-
pany: Skelly Oil Company: Sanot Exploration Company: SunOil Company: Superior Oil
Company: Tenneco Oil Company: Texaco Incorporatcd: Texas Eastern Transmisrion
Company: Transco Exploration Company: and Union Oil Company ofcal if or Docu-
ments pcrtaining ta United States permit Eare5reproducedin Documeniary Appcn-
dix 5.334 GULF OF MAINE 1556.5601

United States Geological Survey in connection with permit E3-75. The
unitid States Geological Survey initially approvcd seismic research on
15 May 1975 for thc arca shown on the map filed by the United States,
and later approvcd the addition of an "extended area" on 28 August
1975. Thcsc arcas appcar on thc second map, depicted in Fig~rrc6 (com-

pare Figirre 1).
23. It will be noted that the line designating thc original area cov-
ered by perniit E3-75 isin the general vicinity of Canada's equidistance

line and of the boundary assumed for permit E2-72, ,and that the
cxtended area later designated under the same permit extends beyond
these lincs to includc the whole of Georges Bank. It would seem. there-
forc. that a large number of oil companies acted on the assumption that
a nicdian line or somcthing approxiniating a incdian line was a de facto

boundary on Georges Bank, an assumption prcsum;ibly pre-dating the
reference to the BLM linc in permit E2-69, issued for the 1969 East
Coast Joint Survcy involving the samecore group of companies.

E. UNITEDSTATESPERMITE16-75

24. United States permit E16-75 (another permit omitted from
the matcrials filed by theUnitcd States) isalso of interest?*.This permit

was issucd to Columbia Cas System, a company which was a participant
inthc 1969 East Coast Joint Survey but no1in the subsequcnt joint sur-
veys. Figrtrr 7 reproduces a map provided by Coluinbia Gas System to
the United States Geological Survey in connection with permit E16-75,
and it clearly shows that the company was assuming the use of an
approximate median line boundary on Georges Bank. This line appears

tocoincide with the equidistance line followed by the numerous other oil
companies participating in the joint surveys discussedabove.

25. The foregoing examination of the United States seismic per-
mit~ issued in the 1960s and 1970s confirms a number of important
points made by Canada. First, as is apparent from the correspondence
betwecn the United States Bureau of Land Management and the
Canadian Department of Norihern Affairs and National Resources, the

Bureau assumed a median line as an appropriate and equitable bound-
ary, pursuant ta Article 6 of the Convention on the Continental Shclf,
and had a particular line in mind, apparently known as the BLM line.
Secondly, some three dozen or more oil companies and Digicon made
and acted upon a similar assumption, and applied to the United States

for geophysical permits based on that assumption. And thirdly, United
States permits reveal no evidence to contradict or in any way cal1 into
question the assertions made by Canada concerning United States
acquiescencein Canada's useof the equidistance line.

lqdocument^pertaining la United States pE16-75are reproduced in Documentary
Appendix 6. [561-5621 ANNEXES IO REPLY OFCANADA 335

F. CO~IPARISOS 01: USITEDSTATIISPIIK~IITS ,\SI)CASA~>IAS LICESCES
26. Applications to the United States for reseitrch on the south-

western portion of Georges Bank u,cre nlntched by concurrent ûpplica-
tions io Canada for research on the northelistern portion of Georges
Bink. In both couniries. it appears thiit Chcvron Oil Compitny look the
lcad in offshore exploraiion on Cicorgcs Bank In 1965. Chcvron Stand-
ard Liniited (The California Stiindnrd Coiiipany) applied for and

received Canadian exploratory licence 927. and was :iuihorized to do
rcsenrch up to the median or equidist;incc linc on the northeastern por-
tion of Georges Bank [Ffgirr~ SI. Two yciirs Iiiicr, in 1967. Chevron Oil
Company, acting on bchalf of an cight-compnny combine"', applied for

and rcccived United States periiiit E3-67. for rcscarch on the southucst-
ern portion of Georges Bank [Figure 9)

27. Subsequently, il was iignin Chevron Oil Coinprtny that look
the lead in applying for United Stiites perniiis E2-69 and El-70. as
Chairman of the 1969 Easi Coast Joini Survey. and the next year as
Chairman of the 1969-70 East Coast Joint Survcy. Both of these permits
werc for scismic work on the southwestern portion of Georges Bank

[Figirrr 21. although. as discussed in pir:igrnph 15. two of the proposcd
1969 scismic survey lines apparently strayed over the BLM line. At the
same iinie. in 1969, Chevron Standard Limited applied for and received
Canadian exploratory licence 1283, and was authorized to conduct seis-

mic work on the northeastern portion of Georges Bank" [Figirrr IO].

CONC12USIC)N

28. The nnalysis in the preccding pitr;igraphs confirnis that offi-
cials rcsponsible for the United St;iies offshore exploration progreni wcre

assuming that the continental shelf boundiiry in the Gulf of hlaine area
would divide Georges Bank. The correspondence between the United
States Bureau of Land Ma.nagement and the Can~idiiin Department of
Northern Affairs and National Resources. as confirnicd by close study
of the United States permits. reveals that United States officials. in par-

ticular ihose in the Bureau of Land M;in:igçiiicnt within the Department
of the Interior, were presuming the use of 3 inedian linc in accorditnce
with Article 6 of the Convention on the Continenial Shclf - a linc
apparently known as the BLM line. The conduci of ihc Canadian Gov-

ernment iind ihe United States Governmcnt in conncction with the issu-
ance of offshore exploration licences and pcrinits affords evidence of
whai both government and corporate officials considered to be equitnble
and acied upon as such; and ihc aciivities of the oil and survey conipa-
niesLirelogical only on ihis basis.

joThe çighicompanieisnvolvedin ihccoiiibincapplyingfor UnitcSiatçrpermit E3-67
wcrethefollowingC: hevroOil Company - ('irointr<C<!niineniOlilCompanyG : ulf
Oil Corporation: urnblcOil8;RefiningCunipanyM: obilOilCompany: PanArnerican
PctroleurCorp.:Tçnneco Oil Company: andUniunOil Company of CaliTurnia.ocu-
ment, peridinintaUnited StatespermitE3-67 arcrcpiuduccdin Documeniariylpwn-
dix7.
" I>ocurnenptseriÿinito theC2nadi;inerplon~orylicencediscubaeidparas .6 and 21
arereprnlurcdin DocurnîniarAppendir 8.336 GULFOFMAINE

DOCUMENTARY APPENDICESTOPARTIII
THECONDUC OTFTHEPARTIES:PPLEMENTE ARIDENCOECON~~NENTAL
SHELAFCTIVITIES

Ducumeotary~pkndix 1

DOCUMEN PERTA~N~NTOUNITESTATE SERMIE2-69

[Nol reproduced]

DocumentaryAppeodix2

DOCUMEN PESRTNNINTGUNITESTATE PSERMTl-70

[Nol reproduced]

Documentary Appeoxi

DOCUMENP ESRTAINIOGUNITESTATEPSERMIT2-72

[Nor reproduced]

Ducumeotary Appendi4x

DDCUMEN TERTAINITOGUNITESTATEPSERMITl-74

[Nol reproduced] ANNEXETO REPLYOFCANADA

DocumentaryAppendix5

DOCUMENTS PERTAININGUNITEDSTATEPERME I3-75

[Norreproduced]

DoeumeutaryAppendix6

DOCUMEN TRTAININGTOUNITEDTATE SERMEI16-75

[Norreproduced]

DoeumeutaryAppend7x

DOCUMENTS PERTAININGUNITE DTATEPERMITE3-67

[Norreproduced]

DoeumentaryAppend8x

D~CUMENTS PERTAlNlNGCANADIA NXPLORAT OICENC9E2SAND1283

[Nol reproduced]

DocumentaryAppend9x

[Norrepmduced] PARTN. MISCELLANEOUSDOCUMENTSCITEDIN THE
REPLYSUBMlTïED BY CANADA

Aooex1

EXCER~ FROM H.~UTERPACHT, we DEVELOPMENTOF~~~ERN LAWNBAL
THEINTERNATIONA COURT,NEWYORK,FREDERICA K.PRAECER,
P213

[Nolreproduced]

Annex2

EXCEHY IROM A.L.W. MCSKWA~".ADJUDICATIO NVDADIUSIMEST -
~NTER~ATIOSAL JUDICIDECISIONASD TllE S~LL~IEOFTERRITORIAI. AhD

VOL X LVI,1972-1973,P.100-102

[Nolreproduced]

Annex 3

EXCERPT FROM INTERNATIONABLOUNMRY COMMISSIOJ N.INTREPDRTUPON

THESURL'EYA.XD UE.UARCATIO.V OBOU.\,DYRBtl U'F~.VUNIT~DSTAiE.5
AVD CAVADA FROWTHFSOLRCEOF THEST .R01 RIVFRr0THFATU.VTICOCEA.V,
WASHISG~OV .OVERSUEV hlh~lhü OFFICE1934(DDCCMENT1 SAND 2)
Document 1Appendix 1p. 145

Document 2:AppendixII,pp.162-163

[Norrepmduced] ANNEXES TO REPLYOF CANADA

Annex4

EXCERP~ XOW INTCRVATIOVAL BOU4DARYCOU\~~SS~ JOl7.~MRT uPOV
THE SIIRI'CY AAU DE.WARCATIO.VOF THE BOU.YDARY BITU'EC.V THt UV~TCDSJATES
ANDCANADF AROMTHESOURCEOFTHC ESRO.IXRIVETOTHEATUNTICOCEAN.
WASHINGTON G,OVERNMEN PTINTINOFFICE ,934, P1-18

[Norreproduced]

Annex 5

Annex6

JS.SCHLE AND K.D. KLITGORD",GEOLOGICSLTTlNG OF THGEORGEB SANK
BASIN"INP.A.SCHOLLE ANDC.R.WENKAME . DS.. EOLOGICASTUD~EOFTHE
COST NOS.G-IA.VDG-2 WELLS.U.VITESIA TENORTIIA TUMIC OUTER
~O.V~/.\'E.SHLLF,UNITEI)STATESEPARTME OFTHE INTERIORGEOLOC~ICAL

[Nolreproduced]

Annex7

EXCERITFROM L.K.SCHULTZ AND R.L.GROVER ", EOLOG YFGEORGEB SANK
BASIN",TMEAMERICA ANSSDCIATIONF PETROLEUMGEOLOCIS~ SULLETIN,
VOL.58,No. 6,PART11,1974P.1164

[Notreproduced]340 GULFOF MAINE

Aonex8

[Not reproduced]

Aooex9

EXCER PTOML.R.SYKES,"INTRAPLA SEISMICI TY,CTIVATIOOF
~REEXISTINGZONES WEAKNES ALKALINEMAGMATIS AN,OTHER
TECTONISMPOSTDAT INONTINENT FRLAGMENTATIR ON"I,EOF
GEOPHYSI CNDSPACEPHYSICSVOL .6,NO.4, 197P.674

[Not reproduced]

Annex10

IMPLICATIONS".GEOLOGICALSOCIOFAMERIC BULLETI N,L89,NOVEMBER
1978DOC. NO.81106P.1656ANDFIGURE 1,2;3AND 9

[Nat reproduced]

Aooex11

[Nat reproduced] ANNEXESTOREPLYOFCANADA

Aooex12

Exc~m FROMD. A. GREENBE"G.NUMERICM AODEILNVESTIGAT ~ON
TIDALPHENOME NATHEBAYOFFUNDYAND GULFOFMAINE" , AIUNE
GEODESVYO, ., No2,197P.172

[Noreproduced] Annex13

CANADIA AND UNITED STATED SIPLOMA~N COTES OF 19JUNE1974
(DOCUMENTS 1AND 2)

Document I: Canadian Diplomatic Note No. FLA-362of 19lune 1974
Document 2: United States Diplomatic Note No. 106of 19June 1974

=UMENT 1:CANADIAN DlPLOMATlCNOTE NO. FIA-362 OF19 JUNE 1974
Department ofExtemal Affairs Ministèredes Affaires extérieures

Canada
Ottawa,June 19,1974.

No. FU-362
Excellency,
1have the honour to refer to the discussions between reoresentativesof our
Go\emments in Washington,D.C.and inOtiawa c~ncerni~~theestablishmcnt
ofjoint pollution contingency plansfor watersof mutual interest,leadingto the
de\,eloument of a ioint Canada-United States Marine Contineencv Plan for
-.
spillsif oil and othernoxious substances.
1 have the honour to propose that the joint Canada-United States Marine
Contingency Plan for spillsof oiland other noxious substances, shallbe prom-
ulgated by the Canadian Ministry of Transport and the United States Coast
Guard and shall be maintained in force, as amended from time to time, to
coordinate responses to significant pollution threats to the waters covered by
the orovisions of the Plan.
liwould be the responsibilityof the Canadian Ministryof Transport and the
United StatesCoast Cuard to administer and maintain the Plan as orornul-
eated. or as amended from time to time.
- ~ü'intenünceofthe Plan and anions thcreundcr would bc withoutprejudice
tothe ~ositionsof the Govemmenrs of the United States and of Canada. with
respect tocoastal statejurisdiction over pollution,and without pIOjanyce

other positions ofheIWO Governments regarding the extent of territorial or
maritime jurisdiction.
If the foreeoine orooosals are acceotable to the Government of the United
States.1havethe honoirto thatthis Note.whichisequally authenticin
Englishand French,and Your Excellency'sreplyshallconstitutean Agreement
betwccnCanada and the Unitcd States whichshall cntcr into forcc on the date
of your reply.
Accept, Excellency,the renewed assurances of myhighest consideration

(Signed) Mitchell SHA~P

Secretaryof State
forExtemal Affairs
His Excellency,The Honourable William J.Porter,

Ambassador of the United Statesof America, Ottawa.1755-7581 ANNEXESTO REPLYOF CANADA 343

DOCUMENT 2: UNITEDSTATESDlPLOMATtCNOTE NO.106 OF 19JUNE 1974

EMBASSYOFTHE
UNITED STATESOF AMERICA

Ottawa,June 19,1974.
No. 106

Sir:
1have the honor to acknowledge receiptof your note No. FLA-362of June
19,1974which reads as follows:

I have tLihonour to refer to the discussions betweenrepreseniativesof
our Governments in Washington, D.C. and in Ottawa conccrning the
establishment of ioint oollution contineencv olans for waters of mitual

interest, leading io thé development of a'joint Canada-United States
Marine Contingency Plan for spills of oil and other noxious substances.
1 have the honour to propose that the joint Canada-United States
Marine Contingency Plan for spills of oil and other noxious substances,
shall be promulgated by the Canadian Ministry of Transport and the
United StatesCoast Guard and shall be maintained in force,as amended
from time to time, to coordinate responses ta significant pollution threats

to the waterscovered by theprovisions of the Plan.
It would be the responsibility of the Canadian Ministry of Transport
and the United StatesCoast Guard to administer and maintain the Plan as
promulgated, or as amended from time to time.
Maintenan~ ~ ~ -~~~ ~ ~ ~nd actions~~.~--~ ~er would be without
prejudice to the positions of the Government of the ~nited States .&d

of Canada. with resoect to coastal state iurisdiction over ~ollution, and
without prejudice to'any other positions of the two Govemments regard-
ing theextent of territorial or maritimejurisdiction.
If the foregoing proposals are acceptable to the Government of the
United States,1havethe honour to proposethat this Note, which isequally
authentic in Englishand French,and Your Excellency'sreplyshallconsti-
tute an Agreement between Canada and the United States which shall

enter into force on the date of your reply.
Accept, Excellency, the renewed assurances of my highestconsidera-
lion."

1havethe honor to informyou that the foregoingproposals are acceptableta
theGovernment of the United Statesof Americaand to confirmthat vourNote.
which isequallyauthentic in Englishand French.and this replyshaliconstitutc
an Agreement betwcenOurtwo Governments which shall enter into force on
the date of this reply.
Accept, Sir,the renewed assurances of my highestconsideration.

(Signed)William J. PORTER

The Honourahle Mitchell Sharp, P.C.,
Secretaryof State for External Affairs,
Ottawa344 GULF OF MAINE

Aooex14

EXCERITFROMG.J.VERMEU B,I~RAPHYAND ADAPTATIOPNA: TTEROF

MARINELIFE,BOSTONH,ARVAR DNIVERSITY PRES1978PP.2-3

[Norreproduced]

Annex15

ANDNORTHERN VIRGINIAFAUNA ROVINCES.UNITEDSTATEDSEPARTME NT

[Norreproduced]

Annex16

STATEMEN OFSENATOGREORGJ E. MITCHELLFFECTON NEWENGLAN DF
CANADIA TIDAL DEVEWPMENT:HEARINGBEFORE THCOMMITTE ON
ENVIRONMEN AND PUBLIC WORKSU.S.SENATE9,TH CONGRES ST SESSION,
25JULY1983,AUGUSTM A,AINE

[Norreproduced] ANNEXES TO REPLY OF CANADA

Aooex 17

UNITED STATES DIPLDMATI COTE OF 27AUGUST 1981

The Department of Staterefen the Embassyof Canadato the possiblecon-
struction of tidal power damsin the Upper Bayof Fundy.
It is the Depariment's understandinnthat two areasare now beina investi-

gatedby canadian scientistsand enginëerswith regardto severaldamsitesin
thc Upper Bayof Fundy, in particular ShepodyBayand Minas Basin. Itisthe
Department's concernthat theseproposals.if they areto beimplementcd with
resultanttidal flow impedimcnt. would havepronounced cflccts on the entire
Gulf of Maine, hundredsof kilometersremovedfrom theactualdamsites.This
is becausethe proposeddamswill enhancethe natural tidal resonanccof both
the Bayof Fundy and Gulf of Maine.
The Deoartment hasbeeninfonned that oresentestimatesof changesin iidal
behavior indicate that the mean tidal &nge in Portland, ~ainë, will be

increasedby 8 to 28centimeters,while for Boston, Massachusettsi,ncreasedby
8 to 30 centimeten relative to the She~odvBav and Minas Basin ~roiects
respectively. Indeed, al extreme bigh wate; periods in Portland, thé Minas
Basin project alone may increasethe meantidal rangeby asmuch as45 cen-
limetek. Tidal currentvelocitieswould alsobealtered~ovelÏargeoortions of the
Gulfof Maine.Theseefîeas would berealizedfrom thesouthem Rayof Fundy
to southof BostonandtheciTeaswould beadditive if morethan onetidal dam
is wnstructed.

The wnsequencesof altering the tidal regime either incrementally or mas-
sivcly, are widespread.An incrcmcntal increaseof just a few centimeten may
disni. .eauilibriums of manh and flat surfacesand afîea oatternsof oroduo
iivity. lncreasesof 15centimetersor morewould inundate Lowlandsar;d accel.
erate loss of beachcs.The cxtent of potential adverseenvironmental impacts
resultinn from theconstructionoftidsl dams atShe..dvBava.d Minas Basin
would --e-~ ~s~ ~.
The Department thereforerequescsthatthe Emhassyprovide clarification as
to the statusof the SheoodvBav and Minas BavTidal Proieas. or anv other
projects that may beunder ConGderationinvolvi& constru&ion of tidal dams

inthe Bayof Fundy.

Department of State,
Washington, August 27,1981. Annex18

ExcEna FROM LETTEFROM HON.~RRY LEITZEL L,SISTANADMINISTRATOR
FORFISHERIENS,MFS-NOAA, U.S. DEPARTMEOFTCOMMERC TESENATOR
WILLIAMS.COHEN2,1 DECEMBE 979,INMARITIMEB~UNDA SEITLEMENT
~RE~TYAND EASTCOAST FISHERYRESOURCEASGREEMEN "H,EARINGBEFORE
THE COMMI~T ONEFOREIGRNELATIONUN,ITEDSTATESSENATE",
96THCONGRES2 S, OSESSIO1,98PP.185-186

[Nat reproduced]

EXCERP FROM1.C. MACGIBBO" T,HESCOPEOFACQUIESCEN ICINTER-
NATIONALLAW",THEBRITISHYEARBOOK OF~NTERNATIONALLAWVOL.XXXI,
1954,PP170-171

Annex20

EXCERP FROMD.H. N.JOHNSON;'TH EASECONCERN TNETEMPLEO PREAH
VIHEAR"T,HEINTERNATIONANL COMPARAT IVEwQUARTERL VO,LI1,
1962P.1203

[Nat reproduced]ANNEXESTO REPLYOFCANADA 347

Annex21 CULFOF MAINE

palconlololly. iocio-economics. and si.
."~li!". Wei Conunent.1 yicii: Notlso 01
Jurl.dlcUon 01Ihc üepartmcnt or the .ubmsrine.rro..diir.nl to*..o.,t. but
IfiIarIw ReIallnp 10 MlneRIs. Othci ouliideUieace0-1th. hrnlonsl sra. ii
go%ernmentanënriei *,th an ,nipieriin Thin 011.Ga.. and Çulphur deplhof tm melem or.begond ihallimilIo
Lhil planninn ana and 813fvlvre whersthr deplhol~hesupefiarenf uaicr
managrmrnn are r<,qurslcd io mals h.r AOTMCI: MinersIs Management Service. adrnili oflheeiploi!alionothenaiuiil
1nli"or. rrsourrssof suchiubmirine irei; and
con~rbs rnorn on or belore %ta=+ II. IBIThe wakd ind subioil of<imiler
ln81 Comment, acd TP~LCII. 101f~rlner aubmarine areaiadirrent tothe roartof
.nfom.ac,un shu.ld br d rrr!cd toMac iiii"di.'

seebed of il1 submeged land*
rrlci"nl tu th? pcrnniog pro<,.. and undîrlying waters seaward of the
olhrr vertncnt mrtenrls ma) bc lerriforisl ses. ioend includinaaU
eismined at the Grand Imri.on Uaiinrt
O~ce bciwren Z30a.i and1:15p.m.. .ubroil and ..abad "nderlying
."p.riacent wa,Lr,whirheda.i,af Lh*
Monday ihmugh Friday. crriloiisiionof I~Pnatly.1 le.OYTCe. 01
au& iubmarinc sreai.rhe svbroi~and
ieabed af ihc areasof luan de Fuca and

Corda Ridge in the patific ocoan. wert
of IheStates of Washington and Oregon
conlain palymefallic sulfido sl a waler
d.p,h which idmil. of crploi,a,ion and
are wilhin the ngulafory jxirdictian
and conml of DOL

Uonuna; RcalIy AsUon:Exshrnge

comc,ion interio; announc.d the deve~;pment ofa
InFR Doc. 82-307W bcgiming on pogc program for the leasingofminerals ofher

Y1783 in the issue of Tuesday. Nouemher lhan ail. sas. and iulphur on the Onter
9.1982. make the followingconeclion: Conlinenhl Shrlf (OCSI. This program
On page 50783,nuddle column. ir aufharized by section 8(k) of the OCS
eighfeenlh line from the botlom. "w Land3 Acl.43U.S.C. 1331. which
~bavld resd "NE?

.#&#W corn 9-14

Mlnorals Management servici

Eilenibn of Comment Period for LM
LPOD sich ro>a.#)rrni.1ini(o,tri irnn.
Minerils Managoment Servlre .'drono., or, i<in< s.<i.iir,mir
PIOPOSC~Helhodfor Exchanglng O11 rrrr<!ine.lthcime of on.nn8ihcin Ir?
ml. Land. ..A.*

The Mincralr hfanagemrnt Service The term "Oufer Continental Shelf' ii
rcquerted puhl,ccommen, on il. delincd by scciion 2lal of the OCS
Pmposed hlelhod for Exchangin8 Oil Land, Aci. 43 USC. 1131. Lomean:
Shale Lands in ihc Fedenl ~egister of . ..
Oclober 12.1982.Page3 11-4889. .II .ubrni~?d landsIyingiesrard
indoutridi *Ihs.rr. olI.nd, b."..,h
Thi. notice provided for a Wday narig.bl. rater..,derincd inirrlion201
rommînl period anding Decemher 11. theEubmrr8.d Lands Aci.andof which the
1982. <"b<0!l."d .eelnd spp.r*in >athe""ilrd
The Minerala Management kn.ice SI.,.. and .rr iub,.n,oii,iunrdirtion.nd
ha* received reqvesfs fiam the public for CD",,O~,

an extension of the commenl period. Scclion 2 of Ihe Submerged Lands Art.
The comment period is thcrsfore 43 USC. lm. defines "lands beneslh
exlsnded Lalanvary 12.1983. "a\.i*ahle waters- tabe thoae which

Drlcd. No.rmbsr2G ,982
lohn B.Rip.
Aria>oieDirrc~<irlorOl~~honr>~n~rn8 ~ ~
opm,>ons. stid na, morc ihan 3 marine 1eaguesinto
the Cullof Mexico.
,mm U-Fd.~12~JYI.,_, The Decp Seabed Hard hfinerals
YWD CO<I 4 I i U U Resavrccr AC,. 30u.s~. irm(ioso).
defines "Cantinental Shelf' lo mean: [55314] ANNEXES TO REPLY OF CANADA 349

the nauiel r..a~rroolihc idbruil and produrlion 01Anc #andiin ah.llor onahon 'rechnologyConferencc May
teabcd of suchstra the DO1rill rskn and hss aiso hein "3rd iIhr 4-7.iiouiion OTC 4ts7 pp mi*.
snno~nceoenadicaili ihoac irealof ihe trro$e<~ali IJmm'ramplr of couard. M 1.and D A Kcmp.1881.
mcia Ii!eror. mddsand bnnes fmm chs De,rloomeni ol9ahcd Drv Ons
Red se, ai depihl gnalci ,han2m ~fmalph~~Ch.mb.n Fo,9mcci. ns
and Il M
metcri I\ld.caliA 2 Hydmarbani FromDIP~ WRe.on, Ollihom
Amsnn l9W The RedS. Rro lot \laminal And 5~ ~ ~
Minin~1c IW!O:Oflihon ~&hnology ~ ~ ~ h nan~~c~ente.~a~ 67.
Canfcrencc.Houalon.U.S.A.. Hou,lon. OTC 3857,pp.41-53)end decp
Rocecdinsl Na.07C38971 ... lm-210.1 drill ho~r~ ~n.rntde.thaIn rrcesr01
Thiiire'h fechnologicalLmblemr i. 3.m meters.(Edgar.Saunders,cl ml..
thir epproach. 1973.Initial Reportof DecpSeaDrilling
Cmstaof mclallileroua oiidra or Roiecl. V.1% Weahinston US.
a.lcdcs may a.30bepre.ent ln theIran t~;i&,~nipri~i& 6trics.pp.1-1137.)
de Fuca and Carda Rdge arcai Ltining
o11h.m CTY~IS(<),Id rntr.1 ~hcraeol Decpeenfedmaaaifor stockwark
avlfide depoaifr wavld be amenahleIo
cemoiel) conlro.ed boilom s~pponrd solulion mininn.reauitins the
m,n:ng mari.ne..p0r.r.d and p.netration olihe deposi b) dnil hole..
conlrollc* lrom a iubmsnnc~n in themanne, of011and gsi orFcasrh
."Il",lD<.iPIY Ihese ~.CLI..<IY..am
weii pco$eno~landi~amaha~.T. lm.
Sal~clonM.n.nn Rorccdingi Of
%mina, Foi Alnian Eiocrlr on ticu

M~~~~~M~~~o~..uN~Ec~ At.iroRO~.
USSR.1-14.lune) and havebien
dernon3tratedin the production ol
cooper.wanium. sali. sutfur. and polai.
One ofthe major technical pmblcms
which diver. wiih eaçhombody is the
methodured fo ensurepsrcolslionaltho
disaoluingnuidIn the caaeof dccp
aubmatinedepoaifs.thehendlingaf the
circulafing fiuids would he ramcwhal

anslanousio iechnbues usrdfor aiand

ptimarily for aerare&e reaeirch. decp
ail recaueiy. and deepreebed minlng.
har iender~dthe depoaital
polymetallic aulfidintheJuande Fuca
and torda Ridgeareas svailshle lor
eroloi!ation. Technoloevavailahle lor

&Ploitarion of decpGbed rcrourcei
hasmovedbcyond ihei rrquirid lor
explaralion. Under thesacimumrlanccs.
the luan de Fucaand GardaRidgearrar
arc clearly wilhin theregulatory
im+sdictianand conirol of DO1for
OBPI PI of mineral exploitaiion.

Nominations for the lollowing
prapertieabaingcansideredfor listing ln
the National Regi3t.r were rercived by

the Nsliansl Parkservice brfore
Novembei 28.19az.Rirauant IoP Ml3
0138CFRPar! W wrillen CommrnlS
conceming theaignificanccofihcic
sn epproechha, hem elfeciiv~ in the propenics underthe National Rcgiiler350 GULF OF MAINE 1787.7911

DIPLOMAT CIORRESPONDE NONECERNlNG THEUNITED STATEF SEDERAL
REGISTE NROTICEOF 8 DECEMBE 1982(DOCUMENIT SND 2)

Document I: Canadian Diplomatic Note No. 021of 17January 1983

Document 2: United StatesDiplomatic Note No. 49 of23ebmary 1983

DDCUMeN 1:CANADIANDlPLOMATlCNOTENO. 021 OF 17JANUARY 1983

Canadian Embassy Ambassadedu Canada

FILE/CIRC/DIARY
C.CA. MBASSADOR

J.ROY
Marc LORT~E

NoieNo.021

The Embassyof Canada presenis iiscomplimentsto the Departrnent of State
and has the honour to referto the "Notice of Jurisdiction of the Departrnent of
the Interior Relatingto Minerals,otherthan Oil,Gasand Sulphur" on the outer
continental-~~~~f~of the United Stat.s.~~~~-~~~ed in the Federa~ R~~~s-er
(Volume47,number 236, 55313-14)on December 8, 1982.
The said notice purnoris to assert thejurisdiction of the Department of the
lnterior of the ~nited'states over "the subsoil and seabed of the areas of Juan

de Fuca and &da Ridge in the Pacific0&an". The Department of State will
be aware that the Juan de Fuca area includes areas of the seabed and subsoil
that clearlvall within the iurisdiction and sovereien riehts of Canada under
internationallaw. The ~ovérnmcntof canada &stk& clcarthat it dois not
recoanizeas valid any assertion of iurisdinion on the part of the United States
Govërnment or anv of its deoartmënts or anencieswith reeard to anv resources
of the scabedor s;hsoil witliinthe limitsofÏhe &niinen12 shelfof canada oiî
the PacificCoast. to thc seaward limii defined in Section 2 of the Canada Oil

andGas An and IOthe southern limitof Canadian FishingZone 5described in
Canada Gozerre.Part II. VolumeIII Exira. IJanuary 1977;the Government of
Canada formallvreservesal1its riahts conceminp.the matten touched won in
the notice unde; referenceand, in-panicular, wichesto emphasize ihat the site
ofrherecentdiscovcryoCpolymerallic onulcfudaede Fuca Ridgeinthe
vicinityof48dearees North latitude, 129dearees Westlongitude.lieswithinthe
continental~ ~ii~o~ Canada as defined abo;e. and that aliactivitieu relatine to
these resources fall under canada's jurisdkion and conirol.
The Government of Canada funhcr wishcsto express ils profound wncern

that the Government of the United Statesshould have authorized the ~ublica-
lion of an official notice ihat could be ink-prcted as asserting unitid Staies
jurisdinion over an arca of the continental shelf undisputably appertaining to
Canada, and that wbolly ignores Canada's sovereignrights and geographic
presence inthe region.The Government of Canada expectsthat such assertions 1791-7951 ANNEXESTO REPLV OF CANADA 351

willnotberepeated infuture and that theGovernment of the United Stateswill
not take anv action in resDectof anv Canada/USA maritime boundarv reeion
, -~
without prcor notice and consultaiion. The outstanding maritime boundary
questions hctweenthc iwocountriesare such thai iiisincumbcnton both sides
10refrain from measuresthat would exacerbatedisputes and make them more
difficultto resolve.
The Canadian authorities, on another point, note that the document under
reference also appears to assert jurisdiction over the continental shelf off the
Pacific Coast of the United Statesbeyond the seaward limit ofthe continental
margin and beyond the seaward limit ofthe 2M)milefishing zone ofthe United
States, on the basis of the "exploitability test"in the 1958Convention on the
Continental Shelf.The Canadian authorities would begratefulto learn whether
this assertion represents the official policy ofthe United States with regardto
the outer limit of the continental shelf under international law. At the same
time, they would be grateful for information on the statutory basis, under
United States law, for the assertion of United States jurisdiction over the
seabed within200miles ofthe Coastbut beyond the outer edgeof the wntinen-
ta1margin.
The Embassy of Canada avails itself of this opportunity to renew to the

Department of Statethe assurances of ils highest consideration.

Washington, D.C.
January 17,1983.

ooCUMENT 2: UNITED STATESDIPLOMATIC NOTENO. 49OF 23 FEBRUARV 1983

EMBASSYOF THE
UNITED STATESOF AMERICA

No. 49

The Emhassyofthe United Statesof Americapresents itscomplimentsto the
Department of External Affairs of Canada and refen to the Embassy of
Canada's Note No. 21,delivered in Washingtonon Januaty 17,1983.
Theattention oftheGovernment of Canada isdirected tothe FederalRegisrer
Notice of January 19, 1983, Vol.48, No. 13,p. 2450.That Notice, a copy of
which is attached, clarifies that pending further study of the limits of United
States Continental Shelf JurisdictionheFederalRegisrer Notice of December
8,1982at p. 55313isnotintended to affectareasbeyond 200nauticalmilesfrom
the baseline from which the breadth of the territorial sea is measured. In this
connectionthe United States Government confirms that it has not modified ils
maritime boundary position ai stated in theFederalReg;xrer on November 4,
1976.Vol.41, No. 214,p. 48619.48620,This isthe casc with regard to thc yeo-
graphic coordinates set forth in the sectionof ihat notice entitled US.-Canada
Juan de Fuca. and the explanatory staiement wntaincd in that noticc which
stiiic5tha:"The limits ofthe maritimcjurisdiction oithe United States.. .are
intended to be without ~reiudice to anv neaotiations with Canada or to any
positions whichmayha\,; béenormay béadoptedrespeningthe limitsof mari-

time iurisdictioninsuch areds." Asthat notice indicaies,ihe Uniied States and
canada have not aereed on maritime boundaries seaward of the Strait of Juan
de Fucaand the ~Gted Statesdoes not accept al1ofthegeographiccoordinates352 GULF OFMAINE I7951

which have been published by Canada as defining the limilsof ilsjurisdiction
in this area.
nie Government of the United Statesassumes thatthe Notice ofJanuary 19,
1983and this Note clarify manen suK~cientlyso that there is no need to
resoond further to al1ooinls in Embassv Note No. 021.
fhe Embassyof thc'united Statesof ~merica takes this occasio10renewto
ihe Department of ExiernalMdirs the assurances of its highestconsideration.

Attachment

Embassyof the United Statesof America
Ottawa, Febmary 23, 1983. ANNEXES TO REPLY OF CANADA 353

Annex î3

EXCERP IROMFEDERALREGISTER, VOL4.8.19JANUARY 1983,P.2450 354 GULFOF MAINE [2450]

A delailed deicrlptioof the pmpoKd
dnlling program ii .vailable foi reuiew
duting nomal business houn In the
following office. [undei Serlal Numbci
W-839501:Bureauaf Land MenrgemenL
2615Warren Avenue, Cheyenne. Oaled:IsnuarylZ1-
wyami* BZWl.and the Bureau af Land Ilirnl8. Doiny.
bfanagemenl. 13W Thlrd Slnict, DireciorMlnemlr MonqamrnlSe~ics

Reliins. Wyoming 82301. i* -*l<llr,ldld-LU..I
l'hl nolice of iniilationwibc llYlD car Uluu
publi=had uithia newepaper ancecach
week for fwo canaecutivormka
beetqn ns Lr -cri uf janurq 17 1981.
and n tnr Faderal Rsgirter An)part?

aludyofthe ümits"ofUS. Coolinenlal

Sh.lfjunadictian.nothlng in thNouv
dafed December 8.lesta.i page 56313of
lheFaderal Rsdstsi by ihc Deparment
of thelnteriaiahalbc canslmed Io
Bzrnl. aoolv $0ireai bevond na nsuiical milrs
The forqoing noticei, publishedin <&.the bereline; from which the
theFsdaid Rdaier purausot lo Tifla 43 braadfb of the fernfonsl ma of the
of ihe Code of Federel Regulations.
Bureau01Ldnd Management &3410.2-1~d11~1.
.-..~. Daid:Iiouy 12<-
IV1*19%n1 Hd C. S--b Hwld E Dot~. Ir.
Ch,$ Bmmh @mew*f;ned.
Wyomlnp: InvitiUon for Cod Inmo-i~r".di.ieP..,d nimur.
Exploration Uccnrc Arh land --UI- ,na~<.nw<-iur,ar,
Company .ive ma '3,-

Mineral. Manapemsnt Scnl-

Outer Conlloenlal Shen Advlsov

Boar* Rcnewa4
Thii nolise ii publiihcd in eccordanca
wilh the piavisions of3eclion 71rl of the
Office of Manugrmeni and Budget
Circular A-63 [Rrvised]. PuriuonfIo the
ACI~OM Vu.i~eof a.ailxbil.tof
aufhatityrontamed in section Irla) 01 onirunnriitsl uorumïna vn,perrd Io,
the Fedcrel Advisory Cornmiltee Act OCS mnrril prelrarrand etploral8on
T.U N..R.m ,V. Pub. L. 82-4611,CheSecrelsryaf the proposa., a, theNiala OCS
Sec. 1loll 1.FWWI INWlii. ! t"rioha%dctîmined thal renewal of
T.24 N. R.B1W.. the Ourei Confinenlnl Shelf [OCS)
SE. 1%W\NEI.SI: Advinary Board is nccessaryand in the
%E.L9.SISEI.NEINW'..SE>.SEX. public intcr.,t.
T. U N.R.BI W.. The purpose of the Oc3 Advisay
k.1. lot 2.5WSXEX.SWINWX. SWX: Board istopmndr adviu lo the
Çrr L SEISE*:
Sc. II.SWLSE<.SE'.NWI. EXSIVI. Secietsry and othcr ofilccn oliha
Swkswr.: DP~ertmeo,of the hfe"0, in the
Sc. 1,.SWLÇW'.:
Sc<.14. ElNLh'lYV.,SI.%NI:
Sm.?,,WI&T1.NE:.NW*ihTl..EI~X,
EIWI.SEI:
Sec.2%EXNES, NXMYI<:
Sec.18El. EXSWI:
Slc. 3EINWL.
T 24N..R.BI W..
sec 3BEXSWI. W\SZl.
ConlaiMn8 2911.M ama. ANNEXESTOREPLYOFCANADA 355

Anneî4

DOCUMENP TSRTAININGCANADIAEXNPLORATOLRYENC2414 GULFOFMAINE 18001

Fa,,cuin w
llvdun Dry - Iludraii SIrisO
"-1 Cwril O

OlslRTUENT OS EN(AC". MINES AND rn<*""CII

RSLOURCEMANAGEMENT ANDCONSERVATION BRANCH
OPERATIONSAND CONSERVATIONOlVlSlON

Offshore Program Notice

Th. Holie. i$ mbmillrin con<pli>nieWth Lition Sial lb "Cinidi Oit ind Gr5 Linil Ilcgulilioni"

op,.,ioni,Diri

hao~rommlrcm~nl: ... Aug. 20,. 1975.. ........... hwmx durrciiin: ...45. diy~. .................

~ni-as rosi: an-plmit ........................... of~~rmi~ . $L,x~,wo.w. .............

Typ.I.orX .... Reflcctlonscianic .. sppraxiraiely3,m3 . nile....... .......................
.......................................

Equ,pmni k no. o< pran. toD. .mployrd: inludi".
........................................................................
...................

... .DFS~.3Rec0~Pln~.Inrtwrnti,. .hlr. ~<ai,.8@X7i.. strcan.-r. iible,.bCDpersonr . .
........................................................................
..................

hm~Conirictor: . .DiCiCYn.Erplaratiao.Lid.,. ......................... l'lian.20,.3115.. ...
fi12 505 4~h Ave. S.U.,
Addrirr .......... CBICBiy;.Albéi<a:. ...................................................
........................................................................
................

... ........................................

............ .rrnrser.. ..................
.. '.""'"."y:.oii?C?".Ex????et!? ............

ND,"180~1 ANNEXESTO REPLYOFCANADA

DigiconGeophysical Corp.,
3701Kirby Drive,
Houston, Texas 77006

Telephone: 713526-5611
Cable: oictco~
Telex: 762577

November 21, 1975.

MI. G. R. Yungblut,
Chief, Operations and Conservation Division,
Energy, Minesand ResourcesCanada,
580Booth Street,
Ottawa, Canada KIA OE4

Re: 8624-Dl-6P
Gentlemen:

No written report has been submitted since October 23, 1975due to letters
being retumed by postal department.
The M/V Atlantic Seal has recorded only 14miles since Ourlast report on
October 23,1975.The lastrecordingwason November4,and on November 17,
1975it wasdetermined survevwould be called complete.
The vessclhas bcen in poritwelve days ofthis pe;iod.
This givesa roial of 3176milesof linc recorded in the survey.
1bclicvc Mr. AJ.Stirlinghas becn reporting frorn Calgary by telephone.

Sincerely,

DICICON GEOPHYSICC ALRPORATION

(Signed)Vernal D. CLARK
Operations Coordinator
VDC: njs

cc: MI. A.1.Stirling358 GULF OF MAINE

Anne25

AMENDVEN NT.16970~15APRI. 980~0AGREEMEKTEANSTCOASFISIIERY
R~sou~c~s,EXCCIJTV~96THCO~ÜRFSSITSESSIO(1979).PROPOSDi'
SENATO RSONGA(OR SENATO~NNEDY. FOHIMSEL FNDSENATORCSAFEE.
DURK HINM,PHREYELLL,BICO ANFWEICKER)

[Norreproduced]

Annex26

EXCERW FROMH.L.hENLEYSlDE ANG.S. BROWNCANADAAND THEUNITED
STATESS:OMASPECTOFREIRHISTORICARLEUTIONS.EWYORK,
ALFREDA.KNOPF1,952PP214-215

[Norreproduced]

Annex 27

ICNAF, ANNUAMLEETINGJ, NE1969,PROCEEDINGS.II, APPENXI1

[Norreproduced][817-8211 ANNEXES TO REPLYOF CANADA 359

ICNAF, ANNUALMEETINGJ ,UNE1970,PROCEEDING NS. 16,APPENDIX 1 AND
ANNEX1

[AppendixI not reproduced]

USProposalonNational Quotasin theAd Hoc WorkingCroupon
Subarea 5Fisheries
US oronosesthat the conclusionsof STACREM bea~plied to the haddock
stocks'inkubarea 5 - and assumingthat the Commi&ion takes regulatory

action onyellowtail flounder, to thosestocksin Suharea- in two stages,an
"interim" itage and a "long-tenn" stage.
1. - For the "interim" staeethe US oroDosesthat. to offset thecatastronhic
e&cts UScoastalfish;ry ofthe debletion of haddock srocks,fishini for
haddockstocksin Suharea5bereservedtothe US.with incidental catchesonly
ne~ ~tted ~- ~he fishennen of other memhernovernmentsand with somesoe-
cial consideration for Canadian fishermenin-view of the longstandingbpeiial
relationship betweenCanada and US in the haddock fishenesin Subareas 4
and 5.The US proposesfurther that thisintcnm regimecontinue in force until
the haddockstocksin Subarea 5arerestoredto normal yield level,.
2.- For the "long.term" stagethe USproposesthe following:

(a) the allowable catchof haddock in Subarea5hedivided into two portions,
oneequalta 75%ofthetotal, theother equalto25%of thetotal:
(b) of the 25%portion, 80%be allotted to the coastalstateand the remaining
20% he left unallotted as an allowance for non-member statesfishing in
Subarea5andnewentrantstates:
'(c)the75% portion of the quota be allotted among Commission memherson
two bases,80% in proportion to theaverage catchesof haddock during the

ten-year period ending on December31, 1964,the remaining 20%in pro-
portion to theaveragecatchesduring thethree-yearperiod 1967-1969inclu-
sive;
(d)in the eventthat it is necessaryin any yearto reducethe quota below the
maximum sustainahleyield as calculated hy STACRES, the coastalstate
sharewill not be reduced below an absolute amount equal to the coastal
stat~. -rcentaeea..lied to themaximumsustainablevield:
(e, in the e\,entthat a membercountry takesmore than iü allocation in iiny
ycÿr, its allocation in the following year is automatically reducedhy an
amount equalto theexcessplusanamountdeterminedby STACRESto be
necessarytooffsettheimpactof theexcesscatchonthcstock:
fi the regimewill remain in effen for a penod of five yeûrswith a mandatory
reviewdurine thefifth vearand oiher reviewsat theontion of a maioritv of

thememher&f panel <dunng thefive years.360 GULFOFMAINE

Annex29

ICNAF, SPECIMLEETINONHERRINJ G,NUARY-FEBRU 1A72,
PROCEEDIN NOS.AND APPENDIC ESNDII

[NOIreproduced]

Annex3ll

ICNAF,ANNUAM LEETINJU,NE1972,COMMISSIONDERCS' MEN7S/12
TO72/17

[NOIreproduced]

Annex31

ICNAF,SPECIA COMMISSIM ONETINJA,NUAR1973,PROCEEDINNOS5

[Notreproduced]

Annex32

ICNAF,ANNUAM LEETIN G,NE1973,COMMISSIONDEORSUME7N3/13

[Norreproduced] ANNEXESTOREPLYOFCANADA 361

Annex33

ICNAF,ANNUA LEETINGJUNE1971~OCEEDINGSNO.16,APPEND IX

[Norreproduced]

Annex34

ICNAF,SPECIA COMMISSI OENETINGA,NUAR1973,P~OCEEDINNO.3

[Not reproduced]

ICNAF,ANNUAM L EETINJU, 1972INFORMALRECOR DFMEEIlNGOFTHE
ADHoc COMMIIT ONEQUOTAALLOCATION

[Not reproduced]

ICNAF,SPECIACLOMM~SSMION~NG,JANUAR 1973,P~OCEEDINNOS4,
APPEND IX

[NOIreproduced]362 GULFOFMAINE

Annex37

ICNAF,FOURTS PECIACLOMMISSIMOENETINJA, NUA1974,
PROCEEDIN NO.3

[Nat reproduced]

AnnexXl

ICNAF,ANNUAM L EETINGu,E1974,PROCEEDINNGO.II

[Noorreproduced]

Annex39

ICNAF,FOURTS PECIACLOMMISSIMOENETING,NUAR1Y974,
PROCEEDIN NO.5

[Nor reproduced]

ICNAF,ANNUAM LEETING J, 1973,PROCEEDIN NO.10,APPENDICVEIS
AND VI11

[Nor reproduced] ANNEXESTOREPLYOFCANADA 363

Annex41

ICNAF, ANNUAML EETING,NE1974PROCEEDlNGNO.10

[Norreproduced]

ICNAF, EIGHTHPECIALOMMISSIMOEETINJG,NUAR1Y976,
PR~.EEDIN Go.8

[Nor reproduced]

Annex43

ICNAF, SEVENTSPECIACLOMMISSIMOEETINGS,ITEMBE1975,
PROCEEDIN GOS.4,APPENDIANDATTACHMEN ITSD2

[Nol reproduced]

ICNAF, SEVENTSPECIACLOMMISSIONEE~INS, PTEMB1E75,
COMMISSIONERDOCUMEN 75/IX/40

[Nat reproduced] Annex45

ICNAF. SEVENTSPECICOMMISSI OENETINE,PTEMB1975,
COMMISSIONERDOCUMEN75/IX/42

[Norreproduced]

Annex46
ICNAF,SEVENT PECIACOMMISSI OENETINE,FTEMB1975,
COMMISSIOND ERS' MEN5/1X/49 (2NDREVISN)DATTACHME NTS
AND 2

[Norreproduced]

Annex47

ICNAF, SEVENTHPECIALMMISSIMOENETINE,PTEMB1975,
PROCEEDINNOS.5

[Norreproduced]

Annex48

ICNAF,ANNUAM LEETINJU,N1959,PROCEEDINGO.10

[Norreproduced] ANNEXESTOREPLYOFCANADA

Annex49

ICNAF,ANNUAM LEETIN u,E 1969,PROCEEDINNG.15

[Nor reproduced]

Annex50

ICNAF,ANNUAM LEETINJG,NE1969,PROCEEDINNG.17

[Nolreproduced]

Annex51

ICNAF,ANNUAM LEETIN G,NE1971,COMMISSION ERCU'MEN7/17

[Nor reproduced]

Annex52
ICNAF,ANNUAM LEETINJGU,N1971,COMMISSIONDERCS' MEN/18AND

CORRIGENDA

[Nol reproduced] Annex53

ICNAF,ANNUAM LEETINJU,N1975,COMMISSION ERCS'MEN7/32

[Nor reproduced]

Annex54

ICNAF,ANNUAM LEETINJU,N1975,COMMISSIONDERCSUME7N/33

[Nat repmduced]

Annex55

ICNAF,FOURTSHPECIACOMM~SSM ~EETINJANUAR Y974PRoCEEDINGS
No.6,APPENDI1X

[Not reproduced]

Annex56

ICNAF,ANNUAM LEETIN U,NE1975,PROCEEDING.4,APPENDIXAND
ANNEX 6

[Nor reproduced] ANNEXESTOREPLYOCANADA

Annex57

ExcEnm FROMICNAF,ANNUAL ~ROCEEDING,OL.12FORTHEYEAR1961-62,
HALIFANX.,S., 1P.10,PAR3.

[Nol reproduced]

Anne58

ICNAF,TWELFT AHNNUAML EETING,NE1962,PROCEEDINNOS.13

[Nol reproduced]

Annex59

[Nol reproduced]

Annex60

EXCERP TSOMTASKFORC ENATLANTF IISHERINS,VIGATINTROUBLED
WATERA S,NEWPOLICFORTHEATUNTIC FISHERIOS,TAWAS, PPLYND
SERVICCESNADA 1,982,PPAND78

[Nol reproduced] Annex61

[Norreproduced]

Annex62

EXCERP FROMNATIONARLSHERMAN C,AMDENM, AINE,MA1980P.II

[Nooreproduced]

Annex63

[Norreproduced]

Annex64

EXCERPT FROMNATIONARLSHERMANC,AMDEN , AINJULY1980 ,4

[Norreprodueed] ANNEXESTO REPLYOF CANADA 369

Annex65

OECD ECONOMICSURVE 19S,,BELGIUMLU, XEMBOURP.6,5,TABLB

[Nol reproduced]

Annex66

EXCERP FROM OECD ECDNOMS IURVEY1 S,80,FEDERALEPUBUC OF
GERMAN Y.,64,TABLA

[Nol reproduced]

Annex67

EXCERP TOM ANNUURESTATIS~IQUED FRANCE1,982,PARI~NSTITUT
NATIONALDE LA STATISTIQUEET DES~ÉCONOMIQU1E 98,P.227,
TABLEA3.01-1

[Nol reproduced]

Annex68

EXCERP TOM STATISTIC ALRACT OF THEUNITEDSTATES1,981,
WASHINGTOU N, ITSTATEDSEPARTME OFTCOMMERC BU,REAUF THE
CENSUS P:424,TABL707

[Nol reproduced] Anne69

ExcEnm FROJAPANSTATISTI YEALRBOOTK, YS, ATISTBUSREAUR, IME
MINISTERO'SFICE, L198P.539, TABL48

[Norreproduced]

Aooex70

[Norreproduced]

Aooex71

EXCERPFTOM OECDECONOMO IU~LOOVKO, .3,ORGANISAT ION
ECONOM CIC-OPERAT IONDEVELOPME JNT,1983P44,TABLE12

[Norreproduced]

Annex72

[Norreproduced] CERTIFICATION

1.the undersigned.L.H. Legault, Q.C.. Ageni for Canada. herebycer-

tify ihal the copyof eachdocumentattachcdas a DocumentaryAppen-
dix or Annex in Volume IIof the Annexesto the Reply Submitted by
Canada isan accuratecopy.whether preparedbyphotographi eeansor
bytranscription.

Document Long Title

Reply of Canada