28 Ocean L. Memo 1 (1986)

handle is hein.journals/ocoaslme28 and id is 1 raw text is: 

Ocean and Coastal  Law Center - School of Law  - University of Oregon  * Eugene  97403

   I Ocean Lw Mym*


May 1986

Recent Developments in Ocean and Coastal Law, 1984-85


U.S.-Canada   Gulf  of   Maine  Boundary

     On  October  12, 1984  the Interna-
 tional Court  of  Justice  (ICJ) handed
 down its  landmark  decision delimiting
 the U.S.-Canada maritime boundary in the
 Gulf of  Maine.    Delimitation of  the
 Maritime Boundary in the  Gulf of Maine
 Area (Canada/U.S.), 1984  ICJ Rep. 246.
 Pursuant to this decision, the U.S. and
 Canada are to share the great bounty of
 Georges   Bank's   fishery   resources.
 Canada is  now entitled  to  the lion's
 share of  Georges  Bank's  multimillion
 dollar scallop  fishery located  on its
 rich Northeast Peak, whereas both coun-
 tries now jointly  share several stocks
 of groundfish divided in two by the new
 boundary.  As a  practical result, this
 decision  profoundly   affects  optimum
 management of these resources and conse-
 quently mandates international coopera-.
 tion in  conservation  and  management.
 Moreover, as the delimitation marks the
 first single  boundary  ever drawn  for
 both the continental shelf and the water
 column, this decision provides a signif-
 icant milestone in the law  of interna-
 tional maritime boundaries.

     Reflecting a  century-old conflict,
the dispute over Gulf of Maine resources
began  in earnest in 1977 when  the U.S.
and Canada simultaneously expanded their
fishery  jurisdictions  to 200  nautical
miles.   In the  Gulf of Maine,  the new
jurisdictions  incorporated some of  the
world's richest fishing grounds, includ-
ing  that of  the  prized Georges  Bank,
over which  the claims  clashed irrecon-
cilably.  Bilateral  negotiations failed
to resolve  the dispute, forcing the two
countries   to   seek  outside   binding
settlement.    In  a  Special  Agreement
submitted November  1981, the  two coun-
tries asked a five-member Chamber of the
ICJ,  pursuant  to  Article  26  of  the
Statute  of  the ICJ,  to  delimit by  a
single  boundary  both  the  continental

shelf  and the water  column of the Gulf
of Maine.

     The   ICJ  based  its  delimitation
almost exclusively  on geography.  In so
doing,  it clarified the rule of custom-
ary  international  law  which  requires
that maritime boundary delimitations, in
the  absence of  agreement, be  based on
equitable principles adjusted to account
for  relevant circumstances  in order to
achieve an equitable result.  See, e.g.,
Case  Concerning  the Continental  Shelf
(Tunisia/Libya),  1982 ICJ Rep. 18.  The
court drew  an initial boundary based on
the  equitable  principle  of  coastline
geography.  The line bisecting the angle
formed  by  the  Nova  Scotia and  North
American   continent  coastal  parallels
provided  the initial delimitation.   In
making  this  initial delimitation,  the
ICJ  rejected application  of  the equi-
distance principle as defined in Article
6 of  the 1958 Convention  on the Conti-
nental Shelf  even though both countries
are party  to the treaty.  The 1958 Con-
vention  governed  only  the continental
shelf and was thus found inapplicable to
the dual-purpose boundary.  Furthermore,
the  court found  that equidistance  had
not  become a  general rule  of maritime
boundary   delimitation   in   customary
international law and the court was thus
under no obligation to follow it.

     Relevant  circumstances  considered
by the ICJ  in making its initial delim-
itation  equitable were  again geograph-
icaL: the  boundary was adjusted  by the
proportional  lengths of coastlines.  In
flatly refusing to consider certain non-
geographical  circumstances proposed  by
both parties,  the court  further empha-
sized  the relationship of  geography to
equitable delimitations.   Thus histori-
cal  fishing   patterns,  socio-economic
dependence  on  fishery  resources,  and
naturally existing ecological boundaries
delimiting  fishery  resources were  all
deemed irrelevant  to achieving an equi-
table result.

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