COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA DELIMITATION
DE LA FRONTIERE MARITIME
DANS LA REGION DU GOLFE DU MAINE

(CANADA/ETATS-UNIS D’AMERIQUE)

ARRET DU 12 OCTOBRE 1984 RENDU PAR LA CHAMBRE
CONSTITUEE PAR ORDONNANCE DE LA COUR
DU 20 JANVIER 1982

1984

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING DELIMITATION
OF THE MARITIME BOUNDARY
IN THE GULF OF MAINE AREA

(CANADA/UNITED STATES OF AMERICA)
JUDGMENT OF 12 OCTOBER 1984 GIVEN BY THE CHAMBER

CONSTITUTED BY THE ORDER MADE BY THE COURT
ON 20 JANUARY 1982
Mode officiel de citation :

Délimitation de la frontiére maritime dans la région du golfe du Maine,
arrêt, C.IJ. Recueil 1984, p. 246.

Official citation :

Delimitation of the Maritime Boundary in the Gulf of Maine Area,
Judgment, I.C.J. Reports 1984, p. 246.

Ne de vente : 50
Sales number 5

246

INTERNATIONAL COURT OF JUSTICE
YEAR 1984

12 October 1984

CASE CONCERNING DELIMITATION
OF THE MARITIME BOUNDARY IN
THE GULF OF MAINE AREA

(CANADA/UNITED STATES OF AMERICA)

Special Agreement between Canada and the United States of America requesting
a chamber of the Court to draw, in the Gulf of Maine area, a single line to delimit
both the continental shelf and the 200-mile exclusive fishery zone — Delimitation
between a predefined point and a predefined area — Jurisdiction of the Cham-
ber.

Delimitation area — Zone between the coasts of the Gulf and outer zone — Local
physical and political geography — Rejection of the distinction between primary and
secondary coasts — Unity and continuity of the continental shelf — Superjacent water
mass and distribution of its fishery resources — Arguments of the Parties concerning
human and economic geography.

Origins and development of the dispute — Issue by the Parties of permits for petrol
and gas exploration — Divergences apparent in the correspondence between the
authorities of the two Governments with regard to the continental shelf — Creation by
both States of a 200-mile exclusive fishery zone — Extension of the dispute to this
zone — Interim fisheries agreements and unilateral delimitation proposals.

Rules and principles of international law governing the matter — Treaty rules and
rules of customary international law — 1958 Convention on the Continental Shelf —
Enunciation of a fundamental principle of law and simultaneous prescription of a
technical method to be applied to the delimitation in certain circumstances — Basic
rule supplied by customary international law and contribution of international
Jurisprudence to its formation — Convention adopted in 1982 by the Third United
Nations Conference on the Law of the Sea — Fundamental norm recognized by the
Parties — Redefinition of such norm — Absence in international law of a body of
detailed rules concerning the delimitation of the maritime projections of adjacent
States.

Equitable criteria and practical methods applicable to the delimitation — Method
defined by Article 6, paragraphs 1 and 2, of the 1958 Convention on the Continental

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1984
12 October
General List
No. 67
GULF OF MAINE (JUDGMENT) 247

Shelf in force between the Parties — Equitable criterion underlying this method —
Application of the method of Article 6 mandatory if the only question were delimi-
tation of the continental shelf — Need in the present case to delimit both the
continental shelf and the superjacent water mass — Rejection of the argument that
application of the method of Article 6 should be mandatory for any maritime
delimitation as particular expression of a general norm of customary international
law — Rejection of the argument that the method in question is obligatory in the
present case by acquiescence or estoppel — Equitable criteria which could be applied
and practical methods which could be used — Selection according to the specific
requirements of the case — Application of criteria and methods based primarily on

geography.

Examination of the proposed delimitation lines successively put forward by the
Parties.

Criteria and methods adopted by the Chamber — Single delimitation line drawn
accordingly — Construction of such line in three segmenis.

Verification of the equitable character of the result — Non-existence in the present
case of any real danger of inequitable consequences — Need for co-operation between
the Parties.

JUDGMENT

Present: Judge AGo, President of the Chamber; Judges Gros, MOSLER,
SCHWEBEL ; Judge ad hoc COHEN ; Registrar TORRES BERNARDEZ.

In the case concerning delimitation of the maritime boundary in the Gulf of
Maine area,

between

Canada,
represented by

The Honorable Mr. Mark MacGuigan, P.C., Q.C., M.P., Minister of Justice
and Attorney General of Canada,

H.E. Mr. L. H. Legault, Q.C., Ambassador, Lega] Adviser, Department of
External Affairs,

as Agent and Counsel,

Mr. Blair Hankey, Department of External Affairs,
as Deputy-Agent and Counsel,

Mr. L. Alan Willis, Department of Justice,

as Counsel and Special Adviser,

Mr. W. I. C. Binnie, Q.C., Associate Deputy Minister, Department of Justice,
Mr. Derek W. Bowett, Q.C., Whewell Professor of International Law, Queens’
College, Cambridge,
GULF OF MAINE (JUDGMENT) 248

Mr. Ian Brownlie, Q.C., D.C.L., F.B.A., Chichele Professor of Public Inter-
national Law in the University of Oxford, Fellow of All Souls College,
Oxford,

Mr. Yves Fortier, Q.C., Member of the Quebec Bar, Past President of the
Canadian Bar Association,

Mr. Gunther Jaenicke, Professor of International Law at the University of
Frankfurt-am-Main,

Mr. Ronald St. J. Macdonald, Q.C., Dalhousie University,

Mr. Antonio Malintoppi, University of Rome (deceased, 29 May 1984),

Mr. Prosper Weil, professeur à l’Université de droit, d’économie et de sciences
sociales de Paris,

as Counsel,

Mr. Lawrence Herman, Member of the Ontario and Saskatchewan Bars,

Mr. D. M. McRae, Professor, University of British Columbia,
Miss Jan Schneider, Member of the New York and District of Columbia
Bars,

as Senior Legal Advisers,

Commander E. J. Cooper, Consultant in Maritime Boundary Delimitation,
Ottawa,

Mr. M. Sinclair, Halifax Fisheries Research Laboratory, Department of
Fisheries and Oceans,

as Experts,

Mr. A. R. Longhurst, Bedford Institute of Oceanography, Dartmouth,
Mr. R. D. W. Macdonald, Department of Fisheries and Oceans, Ottawa,
Mr. M. P. Shepard, Fisheries Consultant, Victoria,

Mr. D. F. Sherwin, Department of Energy, Mines and Resources, Ottawa,

Ms. Patricia Smith, Department of Fisheries and Oceans, Ottawa,
Mr. R. Trites, Bedford Institute of Oceanography, Dartmouth,

as Scientific and Technical Advisers,
Mr. Ross Hornby, Department of External Affairs,

Ms. Valerie Hughes, Member of the Ontario Bar,
Ms. Sarita Verma, Department of External Affairs,

as Legal Advisers,

Mr. C. Hanson Dowell, Q.C., Special Adviser, Government of Nova Sco-
tla,

Mr. D. A. MacLean, Deputy Minister, Department of Fisheries, Government
of Nova Scotia,

Mr. Henri Légaré, Deputy Minister, Department of Fisheries, Government of
New Brunswick,

as Advisers,
Ms. Anne Brennan, Department of External Affairs,
as Administrative Secretary,
GULF OF MAINE (JUDGMENT) 249

and
the United States of America,
represented by

The Honorable Davis R. Robinson, Legal Adviser, United States Department
of State, ot

as Agent and Counsel,

Mr. David A. Colson, Assistant Legal Adviser for Oceans, International
Environmental and Scientific Affairs, Office of the Legal Adviser, United
States Department of State,

as Deputy-Agent and Counsel,

Mr. Bruce C. Rashkow, Director of the Office of Canadian Maritime Boun-
dary Adjudication, Office of the Legal Adviser, United States Department
of State,

as Special Counsel,

The Honorable John R. Stevenson, Member of the Bars of New York and
District of Columbia, formerly Legal Adviser, United States Department of
State, and formerly United States Ambassador to the Third United Nations
Conference on the Law of the Sea,

Mr. Mark B. Feldman, Member of the Bars of New York and the District of
Columbia, Adjunct Professor of Law, Georgetown University Law Center,
Washington, D.C., and formerly Deputy Legal Adviser, Office of the Legal
Adviser, United States Department of State,

Mr. Ralph I. Lancaster, Member of the Bars of Maine and Massachusetts,
Regent for Canada and the New England States of the American College of
Trial Lawyers, and formerly President of the Maine Bar Association,

Mr. John Norton Moore, Member of the Bars of Florida, Illinois, Virginia and
the District of Columbia, Walter L. Brown Professor of Law and Director of
the Center of Oceans Law and Policy, University of Virginia School of Law,
formerly Counselor on International Law, Office of the Legal Adviser,
United States Department of State, and formerly United States Ambassa-
dor to the Third United Nations Conference on the Law of the Sea,

Mr. Stefan Riesenfeld, Member of the Bar of Minnesota, Professor of Law,
University of California, School of Law, Berkeley, California, and the
Hastings College of the Law, San Francisco, California, $.J.D. (Harvard),
J.U.D. (Breslau), Dott. in Giur. (Milano), and formerly Counselor on
International Law, Office of the Legal Adviser, United States Department
of State,

as Counsel,

Lieutenant-Commander Peter Ward Comfort, Judge Advocate General’s
Corps, United States Navy, on detail to the Office of Canadian Maritime
Boundary Adjudication, Office of the Legal Adviser, United States Depart-
ment of State,

Mr. Michael John Danaher, Office of the Assistant Legal Adviser for Oceans,
International Environmental and Scientific Affairs, Office of the Legal
Adviser, United States Department of State,
GULF OF MAINE (JUDGMENT) 250

Ms. Mary Wild Ennis, Office of Canadian Maritime Boundary Adjudication,
Office of the Legal Adviser, United States Department of State,

Lieutenant Neil F. Gitin, Judge Advocate General’s Corps, United States
Naval Reserve, on detail to the Office of Canadian Maritime Boundary
Adjudication, Office of the Legal Adviser, United States Department of
State, ‘

Mr. Ray À. Mever, Office of Canadian Maritime Boundary Adjudication,
Office of the Legal Adviser, United States Department of State,

as Attorney-Advisers,

Lieutenant Brian P. Flanagan, United States Coast Guard, on detail to the
Office of Canadian Maritime Boundary Adjudication, Office of the Legal
Adviser, United States Department of State,

Mr. Richard H. Davis, Supervisory Cartographer, Marine Chart Division,
National Ocean Service, National Oceanographic and Atmospheric Ad-
ministration, United States Department of Commerce,

Mr. William Hezlep, Office of the Geographer, Bureau of Intelligence and
Research, United States Department of State,

Mr. Jonathan T. Olsson, Office of the Geographer, Bureau of Intelligence and
Research, United States Department of State,

Ms. Sandra Shaw, Chief, Cartography Division, Office of the Geographer,
Bureau of Intelligence and Research, United States Department of
State,

Mr. Robert W. Smith, Chief, International Boundary and Resource Division,
Office of the Geographer, Bureau of Intelligence and Research, United
States Department of State,

as Special Advisers,

Mr. Robert L. Edwards, Special Assistant to the Assistant Administrator of
Fisheries, Northeast Fisheries Center, National Marine Fisheries Service,
National Oceanographic and Atmospheric Administration, United States
Department of Commerce,

as Expert,

Assisted by

Mr. Steven J. Burton, Professor of Law, University of Iowa College of Law,
Iowa City, Iowa,

Mr. Jonathan Charney, Professor of Law, Vanderbilt University School of
Law, Nashville, Tennessee,

Mr. Ralph J. Gillis, Member of the Bars of Massachusetts and the District of
Columbia, Plymouth, Massachusetts,

Mr. Bernard H. Oxman, Professor of Law, University of Miami, School of
Law, Miami, Florida,

Mr. Ted L. Stein, Professor of Law, University of Washington, School of Law,
Seattle, Washington,

as Legal Consultants,
GULF OF MAINE (JUDGMENT) 251

Mr. Geoffrey Bannister, Dean of the College of Liberal Arts and the Graduate
School, Boston University, Boston, Massachusetts,

Mr. Louis DeVorsey, Jr., Professor of Geography, University of Georgia,
Athens, Georgia,

Mr. K. O. Emery, Henry Bryant Bigelow Oceanographer, Woods Hole Ocea-
nographic Institution, Woods Hole, Massachusetts,

Mr. Richard C. Hennemuth, Laboratory Director, Woods Hole Laboratory,
Northeast Fisheries Center, National Marine Fisheries Service, National
Oceanographic and Atmospheric Administration, United States Depart-
ment of Commerce,

Mr. James Kirkley, Woods Hole Laboratory, Northeast Fisheries Center,
National Marine Fisheries Service, National Oceanographic and Atmos-
pheric Administration, United States Department of Commerce,

Mr. Kim D. Klitgord, Geophysicist, United States Geological Survey, United
States Department of the Interior,

Mr. Daniel McFadden, James R. Killian Professor of Economics, Massachu-
setts Institute of Technology, Cambridge, Massachusetts,

Mr. Richard B. Morris, Gouverneur Morris Professor of History, Columbia
University, New York, New York,

Lieutenant-Commander Robert Pawlowski, Commissioned Corps, Northeast
Fisheries Center, National Marine Fisheries Service, National Oceano-
graphic and Atmospheric Administration, United States Department of
Commerce,

Mr. Giulio Pontecorvo, Professor of Economics, Graduate School of Business,
Columbia University, New York, New York,

Mr. John S. Schlee, Geologist, United States Geological Survey, United States
Department of the Interior,

Mr. William L. Sullivan, Jr., Policy Adviser for International Marine Affairs,
National Oceanographic and Atmospheric Administration, United States
Department of Commerce,

Mr. Manik Talwani, Geological Consultant, Houston, Texas,

Mr. Elazar Uchupi, Senior Scientist, Geology and Geophysics Department,
Woods Hole Oceanographic Institution, Woods Hole, Massachusetts,

Mr. James Wilson, Professor of Economics, University of Maine, Orono,
Maine,

Mr. Julian Wolpert, Henry G. Bryant Professor of Geography, Public Affairs,
and Urban Planning, Woodrow Wilson School of Public and International
Affairs, Princeton University, Princeton, New Jersey,

as Advisers,

THE CHAMBER OF THE INTERNATIONAL COURT OF JUSTICE formed to deal with
the case above mentioned,

composed as above,
after deliberation,
GULF OF MAINE (JUDGMENT) 252

delivers the following Judgment :

1. By a joint letter dated 25 November 1981, filed in the Registry of the
Court the same day, the Ambassador of Canada to the Netherlands and the
Ambassador of the United States of America to the Netherlands transmitted
to the Registrar a certified copy of a Special Agreement dated 29 March
1979, and subsequently modified, by which Canada and the United States
of America agreed to submit to a Chamber of the Court, composed of five
persons, to be constituted pursuant to Article 26, paragraph 2, and Article 31
of the Statute of the Court, and in accordance with the Special Agreement, a
question as to the course of the single maritime boundary that divides the con-
tinental shelf and fisheries zones of the two Parties in the Gulf of Maine area.
By the same letter, the Government of Canada also notified the Court, in accord-
ance with Article 35 of the Rules of Court, of its intention to exercise the
power conferred by Article 31 of the Statute of the Court to choose a judge
ad hoc.

2. By a letter dated 18 December 1981, the Acting President of the Court
requested the Agents of both Parties to submit to the Court, in writing, supple-
mentary explanations or clarifications on a number of points relating to, inter
alia, certain provisions of the Special Agreement. The relevant explanations or
clarifications were given in a letter from the Ambassadors of both Parties at
The Hague, dated 6 January 1982 and filed in the Registry on 8 January
1982.

3. By an Order dated 20 January 1982, the Court, having considered the
above-mentioned letter, was of the opinion that the replies contained in it were to
be read together with the terms of the Special Agreement for the purposes of this
case, and decided to accede to the request of the Governments of Canada and the
United States of America to form a special Chamber of five judges to deal with
the case, declared that Judges Gros, Ruda, Mosler, Ago and Schwebel had been
elected to the Chamber, noted that the Acting President of the Court, in exercise
of his powers under Article 31, paragraph 4, of the Statute of the Court, had
requested Judge Ruda to give place in due course to the judge ad hoc to be chosen
by the Government of Canada, and that Judge Ruda had indicated his readiness
to do so, and declared that a Chamber to deal with the case had been duly
constituted by the Order with the composition indicated therein.

4. By a letter dated 26 January 1982, the Ambassador of Canada at The
Hague, referring to Article 31 of the Statute and Article 35 of the Rules of Court,
informed the Court that the person chosen by Canada to sit as judge ad hoc in the
case was Professor Maxwell Cohen ; by a letter from the Agent of the United
States dated 26 January 1982 the Court was informed that the United States had
no observations to make on that choice.

5. The text of the Special Agreement of 29 March 1979 is as follows:

“The Government of Canada and the Government of the United States of
America,

Recognizing that they have been unable to resolve by negotiation the
differences between them concerning the delimitation of the continental
shelf and the fisheries zones of Canada and the United States of America in
the Gulf of Maine area,

Desiring to reach an early and amicable settlement of these differ-
ences,

10
GULF OF MAINE (JUDGMENT) 253

Have agreed as follows :
Article I

The Parties shall submit the question posed in Article IJ to a Chamber of
the International Court of Justice, composed of five persons, to be consti-
tuted after consultation with the Parties, pursuant to Article 26 (2) and
Article 31 of the Statute of the Court and in accordance with this Special
Agreement.

Article IT

1. The Chamber is requested to decide, in accordance with the principles
and rules of international law applicable in the matter as between the
_ Parties, the following question :

What is the course of the single maritime boundary that divides the
continental shelf and fisheries zones of Canada and the United States of
America from a point in latitude 44° 11’ 12” N, longitude 67° 16’ 46” W
to a point to be determined by the Chamber within an area bounded by
straight lines connecting the following sets of geographic coordinates :
latitude 40° N, longitude 67° W ; latitude 40° N, longitude 65° W ;
latitude 42° N, longitude 65° W ?

2. The Chamber is requested to describe the course of the maritime
boundary in terms of geodetic lines, connecting geographic coordinates of
points. The Chamber is also requested, for illustrative purposes only, to
depict the course of the boundary on Canadian Hydrographic Service Chart
No. 4003 and United States National Ocean Survey Chart No. 13006, in
accordance with Article IV.

3. The Parties shall request the Chamber to appoint a technical expert
nominated jointly by the Parties to assist it in respect of technical matters
and, in particular, in preparing the description of the maritime boundary
and the charts referred to in paragraph 2. The Registrar is requested to
provide the expert with copies of each Party’s pleadings when such plead-
ings are communicated to the other Party. The expert shall be present at the
oral proceedings and shall be available for such consultations with the
Chamber as it may deem necessary for the purposes of this Article.

4. The Parties shall accept as final and binding upon them the decision of
the Chamber rendered pursuant to this Article.

Article LIT

1. South and west of the maritime boundary to be determined by the
Chamber in accordance with this Special Agreement Canada shall not, and
north and east of said maritime boundary the United States of America shall
not, claim or exercise sovereign rights or jurisdiction for any purpose over
the waters or seabed and subsoil.

2. Nothing in this Special Agreement shall affect the position of either
Party with respect to the legal nature and seaward extent of the continental

1]
GULF OF MAINE (JUDGMENT) 254

shelf, of fisheries jurisdiction, or of sovereign rights or jurisdiction for any
other purpose under international Jaw.

Article IV

The Chamber and any technical expert or experts are requested to utilize,
and the Parties in their presentations to the Chamber shall utilize, the
following technical provisions :

(a) All geographic coordinates of points referred to shall be rendered on the
1927 North American Datum.

(b) All straight lines shall be geodetic lines. Curved lines, including parallels
of latitude, if necessary for the judgment, shall be computed on the 1927
North American Datum.

(c) Notwithstanding the fact that the Parties utilize different vertical
datums in the Gulf of Maine area, the two datums shall be deemed to be
common.

(d) Should reference to the low water baseline of either Party be required,
the most recent largest scale charts published by the Party concerned
shall be utilized.

(e) If a point or points on a particular chart are not on the 1927 North
American Datum, the Chamber shall request the Agent of the appro-
priate Party to furnish the Chamber with the corrected datum
points.

(f} In recognition of the fact that the Parties do not utilize the same standard
set of symbols on nautical charts, the Chamber, or any technical expert
or experts shall, if necessary, confer with the Agents and their advisers to
insure proper interpretation of the symbol or feature.

(g) The Chamber, or any technical expert or experts, is requested to consult
with the Parties as may be necessary concerning any common computer
programs of the Parties for technical calculations, and to utilize such
programs as appropriate.

Article V

1. Neither Party shall introduce into evidence or argument, or publicly
disclose in any manner, the nature or content of proposals directed to a
maritime boundaries settlement, or responses thereto, in the course of
negotiations or discussions between the Parties undertaken since 1969.

2. Each of the Parties shall notify and consult the other prior to intro-
ducing into evidence or argument diplomatic or other confidential corres-
pondence between Canada and the United States of America related to the
issue of maritime boundaries delimitation.

Article VI

1. Without prejudice to any question as to burden of proof, the Parties
shall request the Chamber to authorize the following procedure with regard
to the written pleadings :

12
GULF OF MAINE (JUDGMENT) 255

(a) a Memorial to be submitted by each Party not later than seven months
after the Registrar shall have received the notification of the name or
names of the judge or judges ad hoc ;

(b) a Counter-Memorial to be submitted by each Party not later than six
months after the exchange of Memorials ; and

(c) any further pleadings found by the Chamber to be necessary.

2. The Chamber may extend these time-limits at the request of either
Party.

3. The written pleadings submitted to the Registrar shall not be com-
municated to the other Party until the corresponding pleading of that Party
has been received by the Registrar.

Article VII

1. Following the decision of the Chamber, either Party may request
negotiations directed toward reaching agreement on extension of the mari-
time boundary as far seaward as the Parties may consider desirable.

2. If the Parties have not reached agreement on the extension of the
maritime boundary within one year of the date of such a request, either
Party may notify the other of its intention to submit the question of the
seaward extension of the maritime boundary for decision by a binding third
party settlement procedure.

3. If the Parties are unable to agree on the terms of such a submission
within three months of such a notification, either Party may submit the
question of the seaward extension of the maritime boundary to the Chamber
of five judges constituted in accordance with this Special Agreement.

4. The provisions of this Special Agreement shall be applied, mutatis
mutandis, to the proceedings under this Article, and the decision of the
Chamber shall be final and binding upon the Parties.

Article VII

This Special Agreement shall enter into force on the date of the entry into
force of the Treaty between the Government of Canada and the Govern-
ment of the United States of America to Submit to Binding Dispute Settle-
ment the Delimitation of the Maritime Boundary in the Gulf of Maine Area
signed this day. It shall remain in force unless and until it is terminated in
accordance with the provisions of the said Treaty or until the said Treaty is
terminated.”

6. Pursuant to Article 40, paragraph 3, of the Statute and to Article 42 of the

Rules of Court, copies of the notification and Special Agreement were trans-
mitted to the Secretary-General of the United Nations, the Members of the
United Nations and other States entitled to appear before the Court.

7. By an Order made by the Court on 1 February 1982 pursuant to Article 92

of the Rules of Court, and thereafter by Orders made by the President of the
Chamber on 28 July 1982, 5 November 1982, and 27 July 1983, time-limits were
fixed or extended for the filing of Memorials and Counter-Memorials, and the
filing of Replies was found to be necessary and a time-limit fixed therefor. The

13
GULF OF MAINE (JUDGMENT) 256

Memorials, Counter-Memorials and Replies of the Parties were duly filed within
the time-limits so fixed or extended.

8. By an Order made by the Chamber on 30 March 1984 Commander Peter
Bryan Beazley was appointed as technical expert to assist the Chamber in respect
of technical matters and, in particular, in preparing the description of the
maritime boundary and the charts referred to in Article IE, paragraph 2, of the
Special Agreement. Before taking up his duties, the technical expert made a
solemn declaration, the text of which was set out in the Order.

9. On 2-6, 10-13, 16, 18-19 April and 3-5 and 9-11 May 1984, the Chamber
held public sittings at which it was addressed by the following representatives of
the Parties :

For Canada : H.E. Mr. L. H. Legault,

The Hon. Mr. M. MacGuigan, P.C., Q.C.,
MP.

Mr. B. Hankey,
Mr. W. I. C. Binnie, Q.C.,
Mr. Y. Fortier, Q.C.,
Mr. I. Brownlie, Q.C.,
Mr. D. W. Bowett, Q.C.,
Mr. P. Weil,
Mr. A. Malintoppi,
Mr. G. Jaenicke.

For the United States of America : The Hon. Mr. D. R. Robinson,
Mr. J. R. Stevenson,
Mr. D. Colson,
Mr. M. Feldman,
Mr. K. Lancaster,
Mr. B. Rashkow,
Mr. S. Riesenfeld.

The Government of the United States called an expert, Mr. R. Edwards, who was
questioned by Mr. Lancaster, counsel for the United States, and Mr. Fortier,
counsel for Canada.

10. In the course of the hearings questions were put to both Parties by
members of the Chamber. Prior to the close of the hearings, oral or written replies
to those questions were given by the Agents or counsel of the Parties.

11. The Governments of the United Kingdom and Bangladesh, in reliance on
Article 53, paragraph 1, of the Rules of Court, asked to be furnished with copies
of the pleadings and annexed documents in the case. By letters of 6 and 13
December 1982, after the views of the Parties had been sought, and objection
made by them, the Registrar informed those Governments that the President of
the Chamber had decided that it would not be appropriate to grant the requests
of those two Governments at that time. On 2 April 1984 the Chamber decided,
after ascertaining the views of the Parties pursuant to Article 53, paragraph 2, of
the Rules of Court, that the pleadings and annexed documents should be made
accessible to the public, and available to third States, with effect from the
opening of the oral proceedings, and they were thus at the same time made
available to the States mentioned above.

*

14
GULF OF MAINE (JUDGMENT)

257

12. In the course of the written proceedings, the following Submissions were
presented by the Parties :

On behalf of Canada,
in the Memorial :

“In view of the facts and arguments set out in this Memorial,

May it please the Court to declare and adjudge that :

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 geodetic lines connecting the following geographical coordinates

of points :

44° 11’ 12” N
44° 08’ 51” N
43° 59’ 12” N
43° 49’ 49” N
43° 49’ 29” N
43° 37 33” N
43° 03’ 58” N
42° 54 44” N
42° 20’ 37” N
41° 56’ 42” N
41° 22’ 07” N
40° 05’ 36” N

in the Counter-Memorial :

67° 16’ 46” W
67° 16’ 20” W
67° 14 34” W
67° 12’ 30” W
67° 12’ 43” W
67° 12’ 24” W
67° 23’ 55” W

67° 28° 35” W

67° 45’ 36” W
67° 51° 29” W
67° 29’ 09” W

66° 41’ 59” W" ;

“In view of the facts and arguments set out in the Canadian Memorial and
in this Counter-Memorial,

May it please the Court, rejecting all contrary claims and Submissions set
forth in the United States Memorial,

To declare and adjudge that :

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 geodetic lines connecting the following geographical coordinates
of points :”

[here follows a list of coordinates identical to those in the Memorial] ;

in the Reply :

“In view of the facts and arguments set out in the Canadian Memorial, the
Canadian Counter-Memorial and in this Reply,

May it please the Court, rejecting all contrary claims and Submissions set
forth in the United States Memorial and Counter-Memorial,
To declare and adjudge that :

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 geodetic lines connecting the following geographical coordinates
of points :”

[here follows a list of coordinates identical to those in the Memorial].

15
GULF OF MAINE (JUDGMENT) 258

On behalf of the United States,
in the Memorial :

“In view of the facts set forth in Part I of this Memorial, the statement of
the law contained in Part II of this Memorial, and the application of the law
to the facts as stated in Part III of this Memorial ;

Considering that the Special Agreement between the Parties requests the
Court, in accordance with the principles and rules of international law
applicable in the matter as between the Parties, to decide the course of the
single maritime boundary that divides the continental shelf and fisheries
zones of the United States of America and Canada from a point in latitude
44° 11’ 12” N, longitude 67° 16’ 46” W to a point to be determined by this
Court within an area bounded by straight lines connecting the following sets
of coordinates : latitude 40° N, longitude 67° W ; latitude 40° N, longitude
65° W ; latitude 42° N, longitude 65° W ;

May it please the Court, on behalf of the United States of America, to
adjudge and declare :

A. Concerning the applicable law

1. That delimitation of a single maritime boundary requires the appli-
cation of equitable principles, taking into account the relevant circum-
stances in the area, to produce an equitable solution.

2. That the equitable principles to be applied in this case include :

(a) the principle that the delimitation respect the relationship between the
relevant coasts of the Parties and the maritime areas lying in front of
those coasts, including nonencroachment, proportionality, and, where
appropriate, natural prolongation ;

(b) the principle that the delimitation facilitate conservation and manage-
ment of the natural resources of the area ;

(c) the principle that the delimitation minimize the potential for disputes
between the Parties ; and

(a) The principle that the delimitation take account of the relevant circum-
stances in the area.

3. That the equidistance method is not obligatory on the Parties or
preferred, either by treaty or as a rule of customary international law, and
that any method or combination of methods of delimitation may be used
that produces an equitable solution.

B. Concerning the relevant circumstances to be taken into account
1. That the relevant geographical circumstances in the area include:

(a) the broad geographical relationship of the Parties as adjacent
States ;

(b) the general northeastern direction of the east coast of North America,
both within the Gulf of Maine and seaward of the Gulf ;

16
GULF OF MAINE (JUDGMENT) 259

(c) the location of the international boundary terminus in the northern
corner of the Gulf of Maine ;

(d) the radical changes in the direction of the Canadian coast beginning at
the Chignecto Isthmus, 147 miles northeast of the international boun-
dary terminus ;

{e) the protrusion of the Nova Scotia peninsula 100 nautical miles southeast
of the international boundary terminus, creating a short Canadian
coastline perpendicular to the general direction of the coast, and across
from the international boundary terminus ;

(f) the concavity in the coast created by the combination of the protrusion
of the Nova Scotia peninsula and the curvature of the New England
coast ;

(g) the relative length of the relevant coastlines of the Parties ; and

(h) the Northeast Channel, Georges Bank, and Browns Bank and German
Bank on the Scotian Shelf, as special features.

2. That the relevant environmental circumstances in the area include :

(a) the three separate and identifiable ecological régimes associated, respec-
tively, with the Gulf of Maine Basin, Georges Bank, and the Scotian
Shelf ; and

(b) the Northeast Channel as the natural boundary dividing not only sep-
arate and identifiable ecological régimes of Georges Bank and the
Scotian Shelf, but also most of the commercially important fish stocks
associated with each such régime.

3. That the relevant circumstances in the area relating to the predomi-
nant interest of the United States as evidenced by the activities of the Parties
and their nationals include :

(a) the longer and larger extent of fishing by United States fishermen since
before the United States became an independent country ;

(b) the sole development, and, until recently, the almost exclusive domi-
nation of the Georges Bank fisheries by United States fishermen ;
and

(c) the exercise by the United States and its nationals for more than 200
years of the responsibility for aids to navigation, search and rescue,
defense, scientific research, and fisheries conservation and manage-
ment.

C. Concerning the delimitation

1. That the application of equitable principles taking into account the
relevant circumstances in the area to produce an equitable solution is best
accomplished by a single maritime boundary that is perpendicular to the
general direction of the coast in the Gulf of Maine area, commencing at the
starting point for delimitation specified in Article IT of the Special Agree-
ment and proceeding into the triangle described in that Article, but adjusted
during its course to avoid dividing German Bank and Browns Bank, both of
which would be left in their entirety to Canada.

17
GULF OF MAINE (JUDGMENT) 260

2. That the boundary should consist of geodetic lines connecting the
following geographic coordinates:

Latitude (North) Longitude (West)

(a) 44° 11° 12” 67° 16’ 46”
(b) 43° 29° 06” 66° 34’ 30”
(c) 43° 19° 30" . 66° 52’ 45”
(d) 43° 00’ 00” 66° 33’ 21”
(e) 42° 57’ 13” 66° 38’ 36”
(f) 42° 28° 48” 66° 10’ 25”
(g) 42° 34’ 24” 66° 00’ 00”
(h) 42° 15’ 45” 65° 41’ 33”
(i) 42° 22° 23” 65° 29’ 12”
(Gj) 41° 56’ 21” 65° 03’ 48”
(k) 41° 58’ 24” 65° 00’ 00”” ;

in the Counter-Memorial :

“In view of the facts set forth in Part I of the United States Memorial and
this Counter-Memorial, the statement of the law contained in Part II of the
United States Memorial and this Counter-Memorial, and the application of
the law to the facts as stated in Part III of the United States Memorial and of
this Counter-Memorial ;”

[here follow the identical submissions set out in the Memorial] ;

in the Reply :

“In view of the facts set forth in the United States Memorial, Counter-
Memorial, and this Reply, the statement of the law contained in the United
States Memorial, Counter-Memorial, and this Reply, and the application of
the law to the facts as stated in the United States Memorial, Counter-
Memorial, and this Reply ;”

[here follow the identical submissions set out in the Memorial].

13. In the course of the oral proceedings, the following submissions were
presented by the Parties :

On behalf of Canada,
at the hearing of 5 May 1984 (afternoon) :

“In view of the facts and arguments set out in the Canadian Memorial,
Counter-Memorial and Reply, and by Canada in these oral proceedings,

May it please the Court, rejecting all contrary claims and Submissions set
forth in the United States Memorial, Counter-Memorial and Reply, and by
the United States in these oral proceedings,

To declare and adjudge that :
The course of the single maritime boundary referred to in the Special

18
GULF OF MAINE (JUDGMENT) 261

Agreement concluded by Canada and the United States on 29 March 1979 is
defined by geodetic lines connecting the geographical co-ordinates of points
described in the Submission appended to Canada’s Memorial, Counter-
Memorial and Reply” ;

On behalf of the United States of America,
at the hearing of 11 May 1984:

“In view of the facts, the statement of the law, and the application of the
law to the facts set forth in the United States Memorial, Counter-Memorial.
Reply, and the oral presentations by United States Counsel ;

Considering that the Special Agreement between the Parties requests the
Chamber, in accordance with the principles and rules of international law
applicable in the matter as between the Parties, to decide the course of the
single maritime boundary that divides the continental shelf and fisheries
zones of the United States of America and Canada from a point in latitude
44° 11’ 12” N, longitude 67° 16’ 46” W to a point to be determined by this
Chamber within an area bounded by straight lines connecting the following
sets of coordinates : latitude 40° N, longitude 67° W; latitude 40° N,
longitude 65° W ; latitude 42° N, longitude 65° W ;

May it please the Chamber, on behalf of the United States of America, to
adjudge and declare :

A. Concerning the applicable law

1. That delimitation of a single maritime boundary requires the appli-
cation of equitable principles, taking into account the relevant circum-
stances in the area, to produce an equitable solution.

2. That the equitable principles to be applied in this case include :

(a) the principle that the delimitation respect the relationship between the
relevant coasts of the Parties and the maritime areas lying in front of
those coasts, including non-encroachment ; proportionality ; and natu-
ral prolongation in its geographic sense, or coastal-front extension ;

(b) the principle that the delimitation facilitate conservation and manage-
ment of the natural resources of the area ;

(c) the principle that the delimitation minimize the potential for disputes
between the Parties ; and

(da) the principle that the delimitation take account of the relevant circum-
stances in the area.

3. That the equidistance method is not obligatory on the Parties or
preferred, either by treaty or as a rule of customary international law, and
that any method or combination of methods of delimitation may be used
that produces an equitable solution in application of these principles, taking
account of the relevant circumstances.
GULF OF MAINE (JUDGMENT) 262

B. Concerning the relevant circumstances to be taken into account
1. That the relevant geographical circumstances in the area include :

(a) the extension of the coastal front of Maine and New Hampshire through
the Gulf of Maine and beyond ;

(b) the broad geographical relationship of the Parties as adjacent
States ;

(c) the general northeastern direction of the east coast of North America,
both within the Gulf of Maine and seaward of the Gulf ;

(d) the location of the international boundary terminus in the northern
corner of the Gulf of Maine ;

(e) the radical changes in the direction of the Canadian coast beginning at
the Chignecto Isthmus, 147 miles northeast of the international boun-
dary terminus ;

(f) the protrusion of the Nova Scotia peninsula 100 nautical miles southeast
of the international boundary terminus, creating a short Canadian
coastline perpendicular to the general direction of the coast, and across
from the international boundary terminus ;

(g) the concavity in the coast created by the combination of the protrusion
of the Nova Scotia peninsula and the curvature of the New England
coast ;

(h) the relative length of the relevant coastlines of the Parties ; and

(i) the Northeast Channel, Georges Bank, and Browns Bank and German
Bank on the Scotian Shelf, as special features.

2. That the relevant environmental circumstances in the area include:

(a) the three separate and identifiable ecological régimes associated, respec-
tively, with the Gulf of Maine Basin, Georges Bank, and the Scotian
Shelf ; and

(b) the Northeast Channel as the natural boundary dividing not only sep-
arate and identifiable ecological régimes of Georges Bank and the
Scotian Shelf, but also most of the commercially important fish stocks
associated with each such régime.

3. That the relevant circumstances in the area relating to the predomi-
nant interest of the United States as evidenced by the activities of the Parties
and their nationals include :

(a) the longer and larger extent of fishing by United States fishermen since
before the United States became an independent country ;

(b) the sole development, and, until recently, the almost exclusive domi-
nation of the Georges Bank fisheries by United States fishermen ;
and

(c) the exercise by the United States and its nationals for more than 200
years of the responsibility for aids to navigation, search and rescue,
defense, scientific research, and fisheries conservation and manage-
ment.

20
GULF OF MAINE (JUDGMENT) 263

C. Concerning the delimitation

1. That the application of equitable principles taking into account the
relevant circumstances in the area to produce an equitable solution is best
accomplished by a single maritime boundary that is perpendicular to the
general direction of the coast in the Gulf of Maine area, commencing at the
starting point for delimitation specified in Article II of the Special Agree-
ment and proceeding into the triangle described in that Article, but adjusted
during its course to avoid dividing German Bank and Browns Bank, both of
which would be left in their entirety to Canada.

2. That the boundary should consist of geodetic lines connecting the
following geographic coordinates :

Latitude (North) — Longitude (West)

(a) 44° 11’ 12” 67° 16’ 46”
(b) 43° 29 06” 66° 34’ 30”
(c) 43° 19 30” 66° 52’ 45”
(d) 43° 00’ 00” 66° 33 21”
(e) 42° 57 13” 66° 38’ 36”
) 42° 28’ 48” 66° 10’ 25”
(g) 42° 34’ 24” 66° 00 00”
(h) 42° 15’ 45” 65° 41’ 33”
(i) 42° 22 23” 65° 29 12”
(j) 41° 56’ 21” 65° 03’ 48”
(k) 41° 58’ 24” 65° 00’ 00”.”
I

14. The case concerning the delimitation of the maritime boundary in
the Gulf of Maine area was brought before the Court on the basis of the
first of the possibilities envisaged under Article 40, paragraph 1, of its
Statute, namely by notification of a special agreement, in this case the
Special Agreement signed at Washington on 29 March 1979 by the Gov-
ernments of Canada and of the United States of America and notified to
the Court on 25 November 1981.

15. By an Order of 20 January 1982, the Court in application of para-
graph 2 of Article 26 and of Article 31 of its Statute, formed a special
Chamber composed of five Members to deal with the case. Under the terms
of Article IJ, paragraph 1, of the Special Agreement, this Chamber is

“requested to decide, in accordance with the principles and rules of
international law applicable in the matter as between the Parties, the
following question :

What is the course of the single maritime boundary that divides
the continental shelf and fisheries zones of Canada and the United
States of America, from a point in latitude 44° 11’ 12” N, longitude
67° 16’ 46” W toa point to be determined by the Chamber within an

2]
GULF OF MAINE (JUDGMENT) 264

area bounded by straight lines connecting the following sets of
geographical co-ordinates : latitude 40° N, longitude 67° W ; lati-
tude 40° N, longitude 65° W; latitude 42° N, longitude 65°
W 7”

16. Article II, paragraph 4, declares that : “The Parties shall accept as
final and binding upon them the decision of the Chamber rendered pur-
suant to this Article.” Article III, paragraph 1, furthermore confirms the
final and binding character of the “single maritime boundary” to be
delimited by the Chamber, specifying that south and west of this “mari-
time boundary” Canada shall not, and north and east of it the United
States of America shall not, “claim or exercise sovereign rights or juris-
diction for any purpose over the waters or sea-bed and subsoil”. It is also to
be noted that Article III, paragraph 2, expressly reserves the positions of
each of the two Parties by providing that :

“Nothing in this Special Agreement shall affect the position of
either Party with respect to the legal nature and seaward extent of the
continental shelf, of fisheries jurisdiction, or of sovereign rights of
jurisdiction for any other purpose under international law.”

17. The task of delimitation of the maritime boundary within the limits
indicated under Article II, paragraph 1, is not the only one for which the
Special Agreement makes provision. Article VII, paragraph 1, provides
that :

“Following the decision of the Chamber, either Party may request
negotiations directed toward reaching agreement on extension of the
maritime boundary as far seaward as the Parties may consider desir-
able.”

And the following paragraphs provide that if the Parties do not reach
agreement in this connection within specified time-limits, either directly or
by submitting the question for decision by a binding third-party settlement
procedure, either Party may “submit the question of the seaward extension
of the maritime boundary to the Chamber of five judges constituted in
accordance with the Special Agreement” (para. 3). The provisions of the
Special Agreement are then to be applied, mutatis mutandis, to the new
proceedings undertaken in this way and the decision of the Chamber
therein shall also be “final and binding upon the Parties” (para. 4). This
question is, however, unrelated to the determination of the Chamber’s
jurisdiction in the present case. Such competence can in principle only
derive from the provisions of the Statute and Rules governing the Court's
jurisdiction ; the application of these provisions is no different whether the
Court is sitting in its full composition or as a Chamber. As for the Special

22
GULF OF MAINE (JUDGMENT) 265

Agreement, it defines no limitation of the jurisdiction of the Chamber
other than that resulting from the very terms of the question set forth in
Article Il, paragraph 1, which will be studied further below.

18. The Special Agreement (Art. II, para. 3) requests the Chamber to
appoint a technical expert nominated jointly by the Parties to assist it in
respect of technical matters and, in particular, in preparing the description
of the maritime boundary and the charts on which its course has to be
indicated. The technical expert was in fact appointed by an Order of 30
March 1984 and the conditions laid down for his participation in the work
of the Chamber have duly been complied with. Otherwise, the Special
Agreement requests the Chamber and the expert to comply with certain
technical provisions, set forth under Article IV, (a) to (g), and imposes
upon the Parties certain restrictions in regard to evidence and argument
(Art. V).

19. The Court, and consequently the Chamber, having been seised by
means of a special agreement, no preliminary question arises in regard to
its jurisdiction to deal with the case. A question might conceivably arise as
a result of the use, at least in the French text of the Special Agreement, of
the term frontiére maritime (“maritime boundary”), which might suggest,
incorrectly, the idea of a real frontiére (boundary) between two sovereign
States. However, it is clear to the Chamber that the task which it has been
given only relates to a delimitation between the different forms of partial
jurisdiction, i.e., the “sovereign rights” which, under current international
law, both treaty-law and general law, coastal States are recognized to have
in the marine and submarine areas lying outside the outer limit of their
respective territorial seas, up to defined limits. The rights of third States in
the areas in question cannot therefore be in any way affected by the
delimitation which the Chamber is required to effect. Apart from this
consideration, the only problem which may theoretically arise at the outset
in this context could be how far the Chamber is obliged to abide by the
provisions of the Special Agreement in regard to the starting-point of the
delimitation line to be drawn and the triangle within which this line is to
end.

20. According to the information provided by the Parties themselves,
the starting-point in question (44° 11’ 12” north, 67° 16’ 46” west), called
point A, is simply the first point of intersection of the two lines repre-
senting the limits of the fishing zones respectively claimed by Canada and
the United States when, at the end of 1976, and with effect from the
beginning of 1977, they decided upon the extension of their fisheries
jurisdiction up to 200 nautical miles. The reason for choosing this point of
intersection — rather than the international boundary terminus fixed
under the Treaty between the two States dated 24 February 1925, and
situate in the Grand Manan Channel, which might have seemed more
logical — is that to seaward of this last-mentioned point are Machias Seal
Island and North Rock, the sovereignty over which is in dispute, and that
the Parties wish to reserve for themselves the possibility of a direct solution

23
GULF OF MAINE (JUDGMENT) 266

of this dispute. It would seem that the choice of point A was influenced by
no other consideration apart from that indicated above.

21. As to the triangle enclosing the area within which the delimitation
line to be drawn by the Chamber is to terminate, according to the Parties it
was established to avoid the possibility of the Chamber’s decision in this
case prejudging such questions as that of the determination of the outer
edge of the continental margin, questions to be dealt with by negotiations
in the first instance. It goes without saying that the position and limits of
the triangle were established in the light of the respective claims of the
Parties at the time when the Special Agreement was concluded, namely in
1979. But even at present, the lines representing the maximum claims of the
two Parties still terminate within the triangle — close to the northeast apex
and the southwest apex, respectively.

22. The application of the rules of international law and the methods of
delimitation considered the most appropriate in this case might present the
Chamber with the temptation to adopt another starting-point of the line to
be drawn, or to draw a line terminating at a point outside the triangle.
However, even disregarding the somewhat improbable nature of this
hypothesis, the decisive reason why such solutions should not be pursued is
the fact that for the delimitation of a maritime boundary — whether it
concern the territorial sea or the continental shelf or the exclusive eco-
nomic zone — both conventional and customary international law accord
priority over all others to the criterion that this delimitation must above all
be sought, while always respecting international law, through agreement
between the parties concerned. Recourse to delimitation by arbitral or
judicial means is in the final analysis simply an alternative to direct and
friendly settlement between the parties.

23. If therefore Canada and the United States of America have chosen
to reserve for themselves, as the subject of future direct negotiation witha
view to an agreement, the determination of the course of the delimitation
line between the international boundary terminus and point A, and the
course of the delimitation beyond the end-point of the Chamber’s line in
the triangle, it must be concluded that their intention otherwise to have
recourse to judicial settlement must be taken within the limits in which it
was conceived and expressed. The two States have already, by mutual
agreement, taken a step towards a solution of their dispute, which does of
course require to be supplemented by a decision of the Chamber, but which
should nevertheless not be disregarded by it. The Chamber concludes that,
in the task conferred upon it, it must conform to the terms by which the
Parties have defined this task. If it did not do so, it would overstep its
jurisdiction.

24. There is a profound difference, in two important respects, between
the requests submitted by the Parties in the cases previously brought before

24
GULF OF MAINE (JUDGMENT) 267

the Court, namely those relating to the delimitation of the North Sea
Continental Shelf and the delimitation of the Continental Shelf (Tunisia/
Libyan Arab Jamahiriya), and the request currently submitted to the
judgment of the Chamber and relating to the delimitation to be effected in
the Gulf of Maine area.

25. To begin with, in the other cases just mentioned, the Court was not
required to draw a line of delimitation itself, but merely to undertake a task
preliminary to the determination of such a line, i-e., to indicate the prin-
ciples and rules of international law applicable to that delimitation, to
which, in the Tunisia/ Libya case, was added the request that the Court
should clarify the practical method for the application of these principles
and rules in the specific situation. The Parties had reserved for themselves
the final task, namely the determination of the delimitation line, to be
undertaken jointly and on the binding basis of the indications received
from the Court. However, in the present case, this task is directly entrusted
to the Chamber, without any indication being given in the Special Agree-
ment as to the sources from which it should derive its determination of
applicable principles and methods. Seen from this first aspect, the request
submitted to the Chamber is analogous rather to the request made to the
Court of Arbitration which was asked to draw the delimitation line of the
continental shelf between France and the United Kingdom.

26. The second aspect which distinguishes this case from all those
previously adjudicated is the fact that, for the first time, the delimita-
tion which the Chamber is asked to effect does not relate exclusively to
the continental shelf, but to both the continental shelf and the exclusive
fishing zone, the delimitation to be by a single boundary. Moreover,
during the oral proceedings, the Parties added — by reference to Article III,
paragraph 1, of the Special Agreement — that the single boundary line
to be drawn should be applicable to all aspects of the jurisdiction of
the coastal State, not only jurisdiction as defined by international law
in its present state, but also as it will be defined in future. In order
to determine this single boundary, the Chamber is only asked to decide
“in accordance with the principles and rules of international law
applicable in the matter as between the Parties”, without there being
any additional indication, whether of a formal or substantial character,
given in the text of the Special Agreement with regard to these “rules
and principles”.

27. With regard to this second aspect, the Chamber must observe that
the Parties have simply taken it for granted that it would be possible, both
legally and materially, to draw a single boundary for two different juris-
dictions. They have not put forward any arguments in support of this
assumption. The Chamber, for its part, is of the opinion that there is
certainly no rule of international law to the contrary, and, in the present
case, there is no material impossibility in drawing a boundary of this kind.
There can thus be no doubt that the Chamber can carry out the operation
requested of it.

25
GULF OF MAINE (JUDGMENT) 268
II

28. The area within which the delimitation sought in the present case is
to be carried out, in other words, the geographical area directly concerned
in this delimitation, lies within the ill-defined limits of what the Parties
have, in the title and preamble of the Special Agreement, called the “Gulf
of Maine area” — without, however, there giving any definition of this
expression. The Chamber considers it indispensable to achieve a greater
degree of precision as to the geographical concepts used in this context by
way of basis for the operation which it has to perform.

29. As can be seen from the maps inserted or appended to the present
Judgment, the Gulf of Maine properly so called is a broad oceanic inden-
tation in the eastern coast of the North American Continent, having
roughly the shape of an elongated rectangle. At its southwestern end, once
past Nantucket Island, the elbow of Cape Cod is reached ; from here on,
the indentation follows the approximately north-south segment at the end
of this peninsula. Within the peninsula and the imaginary line linking its
tip with Cape Ann further to the north are the two contiguous bays of Cape
Cod and Massachusetts. At the back of Massachusetts Bay is the city of
Boston. The characteristic of the western side of the above-mentioned
rectangle, which is one of its two short sides, is the general south-south-
east/north-north-west direction of the Massachusetts coast abutting on
the Gulf of Maine.

30. There then follows the short New Hampshire coastline and, with it,
the direction of the coast of the Gulf begins slightly to alter course, bending
gently towards the north-east. This trend continues with the first segment
of the Maine coastline. But soon the coast of this State, which becomes
broken and fringed with islands, bends again to pursue a steady course
west-south-west/east-north-east. From Cape Elizabeth to the interna-
tional boundary between the United States of America and Canada, which
terminates in the Grand Manan Channel, the coast of Maine forms along
this line the first of the long sides of the rectangle. It should be noted that
beyond that frontier the adjacent coast of the province of New Brunswick
also follows the same direction. But between this coast and the coast of
Nova Scotia, which lies opposite and runs almost parallel to it, is the
opening of the Bay of Fundy — more or less at the latitude of the inter-
national boundary terminus — cutting deep inland. The waters of the Bay
of Fundy merge with those of the Gulf in the stretch of sea between Grand
Manan Island, off the coast of New Brunswick, and Brier Island, the
prolongation of Digby Neck and Long Island, which run along the north-
ern coast of Nova Scotia.

31. The question has been raised whether the Bay of Fundy should be
considered to be a part of the Gulf of Maine or whether this bay should be
regarded as a closed bay, considered as though it were sealed off by a
straight line. The fact that such a line may be taken into consideration in
constructing the rectangle within the Gulf to define its geometric form in

26
GULF OF MAINE (JUDGMENT) 269

CANADA cc

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Map No. 1

GENERAL MAP OF THE REGION, SHOWING THE STARTING-POINT FOR THE
DELIMITATION LINE AND THE AREA FOR ITS TERMINATION

The maps incorporated in the present Judgment were prepared on the basis of
documents submitted to the Court by the Parties, and their sole purpose is to provide
a visual illustration of the relevant paragraphs of the Judgment.

27
GULF OF MAINE (JUDGMENT) 270

order to facilitate the search for a delimitation line does not mean that the
closing line is no longer an imaginary line drawn across the waters but
becomes a real coastal line. Nor does it mark a separation of the waters on
each side of it : judging by the evidence presented, there is no appreciable
difference in quality between the waters in the north-east part of the Gulf
and the waters in the outer part of the Bay. In fact, the part of the Bay
which is closest to its opening into the Gulf is wide, the depth of the waters
is the same, and the distance between the mainland coasts exceeds twice
the extent of the territorial sea. However, further into the Bay, the water is
less deep, and the shores are closer together so that the Bay contains only
maritime areas lying no further than 12 miles from the low water
mark.

32. Almost opposite the international boundary terminus, the coast of
Nova Scotia swings sharply round in an overall south-easterly direction, so
that if the line of this direction were extended back in the opposite direc-
tion, it would meet the line of the coast of Maine, described in paragraph 30
above, at almost a right angle. The imaginary line which runs from the
international boundary terminus across the Canadian island called Grand
Manan Island to Brier Island and Cape Sable at the two extremities of
Nova Scotia, forms the second — eastern — short side of the rectangle,
opposite to the western side formed by the coast of Massachusetts. The
quasi-parallel direction of these two opposite coasts is striking ; the dis-
tance between Cape Ann and Whipple Point on Brier Island is 206 miles,
that between the nearest point on Cape Cod and Chebogue Point on the
coast of Nova Scotia is 201 miles, and that between the elbow of Cape Cod
and Cape Sable is barely more (219 miles).

33. The second long side of the rectangle does not at any point corres-
pond to a landmass. It is formed only by an imaginary line drawn across
the waters from the south-eastern point on Nantucket Island, to Cape
Sable at the south-western end of Nova Scotia. The two Parties agree that
this is the seaward “closing line” of the Gulf of Maine. Since this line joins
the two ultimate points on land on each side in the direction of the Atlantic,
it effectively indicates, in the context of the delimitation area, the boun-
dary between the inner zone, or the Gulf of Maine in the true sense, and the
outer or Atlantic zone of the area in question.

34. To sum up, the Gulf of Maine takes the form of a large, roughly
rectangular indentation, bordered on three sides by land — except where
the contiguous bays of Cape Cod/ Massachusetts lie along the western side,
and the Bay of Fundy opens out at the inner end of the eastern side — and
on the fourth side open to the Atlantic Ocean.

35. In the above description of the Gulf of Maine there are several
references to the rectangle which appears to afford a good simplified
representation of the configuration of that Gulf, as outlined by its coasts. It
is on the basis of this approximation to a specific geometrical figure that

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the two opposite terrestrial sides of the Gulf, in essence the shores of
Massachusetts on the one hand and of Nova Scotia on the other, have thus
been presented as the short sides of the rectangle, and the similar terrestrial
side formed by the shores of Maine, which connects the other two at the
back of the Gulf, as the long side.

36. It must nevertheless be made clear that the use of these appellations,
borrowed from the terminology of geometry, must not be interpreted as an
espousal of the idea that some of the coastal fronts of the Gulf of Maine
should be considered as “primary” fronts and others as “secondary”, so
that the former would be regarded as of greater importance than the latter
for the purposes of the delimitation to be carried out in the waters off these
coasts. The very legitimacy of such a distinction which, throughout the
case, has been the subject of lengthy debate between the United States,
which supports it, and Canada, which is opposed to it, is very dubious.
Terminology of this kind may of course be employed to bring out any
difference observed between the lengths of certain stretches of coast, when
a maritime area is being described. Yet even so, while it might be logical,
from one particular aspect, to attach importance to such a difference, there
is nothing to preclude the possibility of the so-called “secondary” coasts
being of equal if not of even greater importance than the “primary” coasts
from other aspects. Above all, geographical facts are not in themselves
either primary or secondary : the distinction in question is the expression,
not of any inherent property of the facts of nature, but of a human value
judgment, which will necessarily be subjective and which may vary on the
basis of the same facts, depending on the perspectives and ends in view.
The same may be said as regards the idea put forward in the course of the
proceedings that certain geographical features are to be deemed aberrant
by reference to the presumed dominant characteristics of an area, coast or
even continent.

37. As in other previous cases, the Parties have repeatedly charged each
other with trying to refashion nature or geography in the case of this or that
feature of the area. It is not possible to accept the United States claim that
the south-westward protrusion of the Nova Scotian peninsula from the
Chignectou isthmus is an anomaly, a geographical distortion to be treated
as such, and to be considered an irregular derogation from the general
south-south-west/north-north-east trend of the eastern seaboard of the
North American Continent. It is likewise not possible to accept Canada’s
claim that the existence of so substantial a peninsula as Cap Cod may be
ignored because it forms a salient on the Massachusetts coast on the
western side of the Gulf of Maine. The Chamber must recall that the facts
of geography are not the product of human action amenable to positive or
negative judgment, but the result of natural phenomena, so that they can
only be taken as they are.

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38. Up to the present reference has been made only to the great expanse
of water within the limits of the Gulf of Maine. Yet that expanse is far from
being the whole of what must be regarded as the delimitation area in this
case. On the contrary, for the purposes of this operation, the part of this
area which includes the whole of the Georges Bank — the main focus of the
dispute — is obviously another maritime expanse, one lying over against
the Gulf of Maine, outside its closing line.

39. Bearing in mind the existence of the triangle mentioned in the
question put to the Chamber in the Special Agreement between the Parties,
one must logically deduce that the delimitation area comprises not only the
sea areas surrounded by the coasts of the Gulf of Maine, but also those
lying to seaward of, and over and against, the Gulf, between bounds
converging towards the outer edges of the triangle, for no delimitation by
the Chamber may go beyond these bounds.

40. The delimitation area as defined in the foregoing paragraphs is not to
be confused with what the Parties — each in their own terms — have called
the “Gulf of Maine area”. They have designated as part of this “area” some
portions of the Canadian and American coasts lying outside the Gulf,
portions which they have during the proceedings occasionally described as
“coastal wings” of the Gulf, together of course with the related sea areas.
Thus the eastern coastal wing of the Gulf of Maine has sometimes been the
whole southeastern coast of Nova Scotia as far as Cape Canso, or some-
times merely part of it as far as Halifax or, more modestly, Lunenburg,
according to the requirements of the particular arguments being put
foward by the one Party or the other. Similarly the name of western coastal
wing has been given to the Atlantic coast either of Massachusetts or of
Rhode Island as far as Newport, or even beyond. It is easy to see from a
map how these extensions tend to produce a shift towards one side or
another when it comes to determining the central axis of the so-called
“area”. The Parties have also referred to these coastal wings, one in order to
emphasize the importance for the economy of the neighbouring areas of
the fishing resources of the area to be delimited, or even the economic
dependence on those resources of the populations of the adjoining coastal
areas ; the other for the opposite purpose of highlighting the fact that those
areas, their industries and their general economy draw principally upon
other sources than the relatively remote ones of the area in question.

41. The involvement of coasts other than those directly surrounding the
Gulf does not and may not have the effect of extending the delimitation
area to maritime areas which have in fact nothing to do with it. It is
ultimately only the concept of the delimitation area which is a legal
concept, albeit one developed against the background of physical and
political geography. In contrast, the concept of the “Gulf of Maine area”,

30
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as used in the present proceedings, seems elastic in extent and arbitrary toa
degree, a concept which in any event appertains to what may be called
socio-economic or human geography, rather than to pure geography.
Without wishing to deny a priori that data derived from such domains may
be important for certain purposes, it is obvious that, when it comes to
determining the boundaries of the delimitation area, material from these
fields cannot be substituted for findings dictated on the basis of more
appropriate considerations.

42. However, up to this point the Chamber’s definition and description
of the delimitation area has only brought out aspects inherent in physical
geography. Political geography has been employed solely for the purpose
of noting the location within the area in question of the international
boundary terminus between the United States and Canada. It had merely
to be made clear that the boundary between the two States — whose
historical development, recounted in the pleadings, is apparently without
influence on the issues to be decided — follows in its final stretches the
winding course of the Saint-Croix River, ending in the estuary of that river,
following which it continues as far as its terminal point in the Grand
Manan Channel. It is this latter point which marks the angle between the
long and short sides of the rectangle which, as we have seen, can be
inscribed within the Gulf of Maine.

43. It should, moreover, be added that the Chamber has only had in
mind physical geography to the extent that its purpose is to describe the
present-day aspect of the land and water surfaces of the globe. In order to
grasp not only the outward aspects but the whole of the characteristic
features of the delimitation area, there still remain to be examined various
aspects of what lies below the surface, rather under the heading of geo-
morphology and ecology than that of geology.

44. With regard to geology, the Chamber must observe that, despite the
efforts made to argue either that there are geological affinities between the
platforms of Georges Bank and Nova Scotia, or that there is a geological
continuity between Georges Bank and Massachusetts, both Parties recog-
nize that the geological structure of the strata underlying the whole of the
continental shelf of North America, including the Gulf of Main area, is
essentially continuous. They are in fact in agreement that geological fac-
tors are not significant in the present case.

45. As regards the geomorphological aspects, the conclusion that can be
drawn from the studies undertaken and taken into careful consideration by
the Parties in their pleadings is, in sum, the unity and uniformity of the
whole sea-bed, as regards both the underlying shelf of the Gulf of Maine
proper, and the shelf below the ocean beyond the Gulf, right up to the
continental margin, its edge, rise and slope. The continental shelf of the

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GULF OF MAINE (JUDGMENT) 274

whole of this area is no more than an undifferentiated part of the conti-
nental shelf of the eastern seaboard of North America, from Newfound-
land to Florida. According to generally accepted scientific findings, this
shelf is a single continuous, uniform and uninterrupted physiographical
structure, even if here and there it features some secondary characteristics
resulting mainly from glacial and fluvial action. In this wider context the
continental shelf of the area relevant to the present proceedings may be
defined as the natural prolongation of the land mass around the Gulf of
Maine ; neither Party disputes the fact that there is nothing in this single
sea-bed, lacking any marked elevations or depressions, to distinguish one
part that might be considered as constituting the natural prolongation of
the coasts of the United States from another part which could be regarded
as the natural prolongation of the coasts of Canada. Of course, within this
single, uniform expanse of sea-bed it is possible to pick out features
described as shelves, banks, basins, channels, and the Parties have given a
detailed description of these, occasionally — and very cautiously — seeking
in the existence of one or other of these geomorphological features some
support for their respective positions. These are ultimately a somewhat
insignificant body of rugosities, even if they do influence, and are probably
in fact produced by, the water circulation. But the bathymetric differences
between one spot and another — differences which do not show up on a
drawing unless there is great vertical exaggeration — are not such as to cast
doubt on the soundness of the basic finding that the sea-bed of the
delimitation area, as of all the neighbouring area — part of which is covered
with thick sedimentary layers potentially rich in hydrocarbon resources —
does not show any trace of any natural differentiation as between the
respective continental platforms of the two Parties.

46. Even the most accentuated of these features, namely the Northeast
Channel, does not have the characteristics of a real trough marking the
dividing-line between two geomorphologically distinct units. It is quite
simply a natural feature of the area. It might also be recalled that the
presence of much more conspicuous accidents, such as the Hurd deep and
Hurd Deep Fault Zone in the continental shelf which was the subject of the
Anglo-French arbitration, did not prevent the Court of Arbitration from
concluding that those faults did not interrupt the geological continuity of
that shelf and did not constitute factors to be used to determine the method
of delimitation. To return to the sea-bed of the area of delimitation in the
present case, no really abrupt change in the normal declivity of the sea-bed
is found before the vicinity of the hypotenuse of the triangle within which
the end-point of the present delimitation is supposed to be located. It is
only thereabouts that the continental slope descends more or less in
parallel with the general direction of the mainland coast, abruptly at first
as far as the 1,000 metres isobath, after which the “rise” continues down-

32
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ward, though much more gradually, towards the 2,000 metres isobath and
beyond, towards the abyssal plain.

47. The situation in the present case as regards the sea-bed of the
delimitation area is therefore different from the situation that may prevail
in areas where a natural separation does exist from the factual viewpoint
between the respective continental platforms of the Parties in dispute.
From that angle, the present case is closer to other concrete cases, includ-
ing most recently that of the delimitation of the continental shelf between
Tunisia and Libya, i.e., situations characterized, as the Court pointed out
in its Judgment of 24 February 1982, by the absence of “any element which
interrupts the continuity of the continental shelf” common to both Parties
(C.J. Reports 1982, p. 58, para. 68). When drawing a legal delimitation
line on such a shelf, there is no choice but to proceed without reference to
any real factor of natural separation of the continental shelf of the two
countries, because no such factors are discernible.

48. In addition to the sea-bed itself there is another component element
of the delimitation area which, with its characteristics, must especially be
taken into account in the present case, namely what the Parties have, in
both their pleadings and their oral arguments, called the “water column”.
© This term in fact refers to the enormous mass of water covering the whole
of the sea-bed in the area in question. It need hardly be pointed out that
this great mass of water is taken into consideration not as some inert mass,
but as the habitat of an exceptionally extensive wealth of fauna and flora.
Even more, perhaps, than the hydrocarbon potential of the sedimentary
basins under the area, it is the fishing resources of the delimitation area
which, as appears from the proceedings, have led to the extraordinarily
acute divergences of interests of the Parties and the no less strenuous
opposition which each puts up against the claim of the other.

49. But, confining itself for the moment to the mere description of the
distinctive aspects of the aquatic mass or water column reposing on the
sea-bed of the delimitation area, the Chamber considers that it should
concentrate on one of those aspects which seems to be of particular
importance.

50. As stated above, the Parties are basically in agreement that the
sea-bed of the area in question does not feature any genuinely natural
divisive element. Both have had to admit that, from the viewpoint of
natural characteristics, the sea-bed of the Gulf is a single, uniform-looking
shelf, one that also forms part of a larger continental shelf. This concur-
rence as to the nature of the sea-bed has no counterpart when it comes to
the superjacent water column. Here Canada, in its successive pleadings
and oral arguments, has laid increasing emphasis on the overall uni.ary
character of the “water column”, in particular from the viewpoint of the
distribution of fishing resources, even though it rightly stresses the exis-
tence on Georges Bank of a main concentration of the biomass and,
consequently, of the reserves of several commercially important species.

33
GULF OF MAINE (JUDGMENT) 276

Canada’s pleadings acknowledge that there is a distinct ecosystem on
Georges Bank, which is geographically defined by the Greath South
Channel and the Northeast Channel. But on the basis of its experts’
research it also submits that, despite the particularly congenial conditions
favouring the above-mentioned concentration, Georges Bank forms part
of a continuous oceanic system belonging to the Nova Scotian biogeogra-
phical province. This province, according to Canada, stretches from New-
foundland to the vicinity of the coastal alignment between Cape Cod and
Nantucket Island. East of the Great South Channel separating Georges
Bank from the Nantucket Shoals the continuity is said to give way to a
transition from northern cold-water fauna and flora to southern warm-
water varieties typical of a different, Virginian, mid-Atlantic biogeogra-
phical province. At any rate, it is only thereabouts that, according
to Canada, any kind of oceano-biological boundary is discernible ; that
boundary, however, would lie at the extreme western limit of the delimi-
tation area and therefore could not be relevant to the delimitation that has
to be carried out within the area itself.

51. For its part, the United States, on the basis of its own detailed
analysis, detects three identifiable and different oceanographic and eco-
logical régimes in the waters of the area, each with a particular type of
hydrological circulation, temperature, salinity, density and vertical strati-
fication and its own type of tidal activity. At all levels of the food chain,
says the United States, distinct ecological communities have developed
within these various régimes : that of the Gulf of Maine basin, that of the
Scotian Shelf and that of Georges Bank, this last-mentioned being linked
to that of the Nantucket Shoals. Thus the three ecological régimes, it is
submitted, are divided by natural boundaries, the most important and
clearly apparent of which runs along the Northeast Channel, which is
sometimes over 200 metres deep and which is said in fact to form a line of
separation within the area in the case of most of its commercially impor-
tant fish stocks.

52. In this respect it should be observed that the United States, realizing
that this channel does not possess the characteristics of a geological fault
which would make it possible to ascribe to it, under appropriate circum-
stances, the function of a natural boundary between distinct areas of
sea-bed, has expounded the thesis that the Northeast Channel forms a
recognizable limit in the marine environment. On that ground. according
to the United States, the Northeast Channel must be seen as a natural
boundary that can serve as a basis for drawing a single maritime delimi-
tation line valid at one and the same time for the exclusive fishery zone and,
if need be, the exclusive economic zone, as well as for the underlying
sea-bed and subsoil.

53. During the oral proceedings, each Party put up a spirited defence of
its position, one contending for: (a) the non-existence of any natural
boundary in the marine environment within the delimitation area, or at
least up to the south-western limit of that area, and in consequence for the

34
GULF OF MAINE (JUDGMENT) 277

natural unity of the area’s oceanographic and ecological régime ; the other
for : (b) the existence within the waters of the area of three distinct prov-
inces separated by dividing lines, the most clearly pronounced of which is
the Northeast Channel separating Georges Bank from the Scotian Shelf ;
however, the result was not such as to clear away all doubt, at least as
regards certain of the technical aspects debated.

54. The Chamber is not however convinced of the possibility of dis-
cerning any genuine, sure and stable “natural boundaries” in so fluctuating
an environment as the waters of the ocean, their flora and fauna. It has thus
reached the conviction that it would be vain to seek, in data derived from
the biogeography of the waters covering certain areas of sea-bed, any
element sufficient to confer the property of a stable natural boundary —
and what is more, one serving a double purpose — on a geomorphological
accident which influences superadjacent waters but which is clearly in-
adequate to be seen as a natural boundary in respect of the sea-bed
itself.

55. The Chamber accordingly considers that the conclusion to be drawn
in respect of the great mass of water belonging to the delimitation area is
that it too essentially possesses the same character of unity and uniformity
already apparent from an examination of the sea-bed, so that, in respect of
the waters too, one must take note of the impossibility of discerning any
natural boundary capable of serving as a basis for carrying out a delimi-
tation of the kind requested of the Chamber.

56. It must, however, be emphasized that a delimitation, whether of a
maritime boundary or of a land boundary, is a legal-political operation,
and that it is not the case that where a natural boundary is discernible, the
political delimitation necessarily has to follow the same line. But in any
event the problem does not arise in the present instance, since, as we have
noted, there are no geological, geomorphological, ecological or other fac-
tors sufficiently important, evident and conclusive to represent a single,
incontrovertible natural boundary.

57. At this stage the Chamber might consider whether the definition of
the outer limits of the area within which it is called upon to delimit the
single maritime boundary between Canada and the United States, and the
description of its physical aspects as regards both surface and depth, ought
not to be followed by taking into consideration other aspects also. What
the Chamber has in mind here is the human environment, and more
particularly its socio-economic conditions.

58. The Parties did take this course ; they even dealt with those aspects in
extenso. They exchanged lengthy argument on whether the fishermen of
one nationality or the other were first on the scene in the waters of the area.
They argued over the importance of the catches of the fisheries, particu-
larly those of Georges Bank, for the port activity, ship-building, food
industry and dependent industries of the land areas around the Gulf of
Maine, and of the neighbouring areas. They also argued as to their role for
the food supplies of their populations and for their exports. Comparative
analyses were made of the respective importance of the resources drawn

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GULF OF MAINE (JUDGMENT) 278

from those fisheries for what was called the one-dimensional economy of
Lunenburg County and for the diversified, urbanized economy of Mas-
sachusetts. On either side, statistics, tables and graphics were produced in
this connection. On one side, gloomy predictions were put forward regard-
ing the consequences for the Nova Scotian economy of exclusion of Can-
adian fishermen from the Georges Bank fisheries ; the other side empha-
sized the deleterious effect on the conservation of the Bank’s fish stocks
that would result from failure to ensure a system of single-State manage-
ment. The Chamber is bound to point out that the Parties sometimes gave
the impression of over-emphasizing these prospects, for it must not be
forgotten that the institution by these two North American States of a
200-mile exclusive fishery zone only dates back eight years, and that
previously in that zone, which at the time was still high seas, American and
Canadian fishing boats plied their trade alongside large high-sea fishing
fleets from distant countries. And the eviction of the latter — the justifi-
cation given for which was the need to avoid the over-fishing to which their
presence contributed — was carried out without apparent concern for the
repercussions on certain coastal areas and industries of the countries in
question.

59. However, the crux of the matter lies elsewhere. It should be empha-
sized that these fishing aspects, and others relating to activities in the fields
of oil exploration, scientific research, or common defence arrangements,
may require an examination of valid considerations of a political and
economic character. The Chamber is however bound by its Statute, and
required by the Parties, not to take a decision ex aequo et bono, but to
achieve a result on the basis of law. The Chamber is, furthermore, con-
vinced that for the purposes of such a delimitation operation as is here
required, international law, as will be shown below, does no more than lay
down in general that equitable criteria are to be applied, criteria which are
not spelled out but which are essentially to be determined in relation to
what may be properly called the geographical features of the area. It will
only be when the Chamber has, on the basis of these criteria, envisaged the
drawing of a delimitation line, that it may and should — still in conformity
with a rule of law — bring in other criteria which may also be taken into
account in order to be sure of reaching an equitable result.

II

60. The dispute between Canada and the United States, now referred to
the Chamber for judgment, is of recent origin — although the United States
has suggested that the dispute could be traced back to the attitude of the
Parties at the time of the Truman Proclamations in 1945. By these pro-
clamations, published on 28 September 1945, the United States asserted its

36
GULF OF MAINE (JUDGMENT) 279

jurisdiction over the natural resources of the continental shelf under the
high seas contiguous to its coasts, and announced the establishment of
conservation zones for the protection of fisheries in certain areas of the
high seas contiguous to the United States. The United States emphasizes
that these Proclamations were shown to Canada in advance of their being
issued and Canada made no objection to them, either then or since ; and
that the United States made it clear at the time that, in its view, the
continental shelf extended to the 100-fathoms depth line. The Chamber
will return to this question in paragraphs 153 ff., below.

61. In fact, this dispute first developed in relation to the continental shelf
of what is now the delimitation area, and did so as soon as exploration for
hydrocarbon resources was begun on each side, particularly in the subsoil
of certain parts of Georges Bank. Exploration for hydrocarbon resources
of the continental shelf in the Gulf of Maine area began in the 1960s. The
United States ratified the 1958 Geneva Convention on the Continental
Shelf in 1961 and became a party when it came into force in 1964. Canada,
confronted by constitutional difficulties related to its federal structure, did
not ratify the Convention until 1970, so that at the time its first exploration
permits were issued, it was not a party. The Canadian Government
accompanied its ratification by a declaration which the United States did
not accept, but which did not prevent the entry into force of the Conven-
tion as between the two countries. In 1953, the United States had enacted
the Outer Continental Shelf Lands Act, the primary text governing activi-
ties on its continental shelf, but because the status of Georges Bank as the
principal fishing bank on the East Coast raised important environmental
concerns, exploration proceeded slowly and development has been defer-
red. The first United States permits for geophysical exploration in this area
were issued in 1964. On the Canadian side, the first regulations authorizing
oil and gas operations in off-shore areas were issued in 1960 (Canada Oil
and Gas Regulations), and in 1964 the Canadian Government began to
issue exploration permits in the Gulf of Maine area. Canada has made it
clear that when issuing such permits, in the absence of any delimitation of
the continental shelf agreed with the United States, it treated the equi-
distance line as a working boundary, drawing its inspiration from Article 6
of the 1958 Convention on the Continental Shelf, at least-to the extent of
including, in any permits issued extending to areas beyond that line, a
caveat to the effect that the permit was issued “subject to the lands
contained in the grid areas being Canadian lands”. Before the Chamber,
Canada described the delimitation line which it had in mind, and consid-
ered that it had respected, as a “strict equidistance” line. There is no need
to pass comment upon that definition for the time being ; the Chamber will
come back to the point when considering directly the various methods that
could in principle be applied to the delimitation.

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GULF OF MAINE (JUDGMENT) 280

62. The question of the line used by the United States as a working limit
in the direction of Canada for the issue of permits in this area is contro-
verted between the Parties. Canada has claimed that a de facto equidistance
line was used by the United States Bureau of Land Management (the
so-called “BLM line”) or by companies to whom United States permits
were granted (the so-called “company median line”). The United States
has denied that these lines had any official status or even existence. The
Chamber will return to this point in connection with the arguments as to
the relevance of the conduct of the Parties (Section V, paragraphs 126 ff.,
below).

63. In 1965, the issue of Canadian exploration permits gave rise to an
exchange of correspondence, initially between a Mr. Hoffman, whose
position was that of Assistant Director for Lands and Minerals of the
United States Bureau of Land Management of the Department of the
Interior, and a Mr. Hunt, whose position was Chief of the Resources
Division of the Department of Northern Affairs and National Resources
of Canada. The correspondence began with a request by the Bureau of
Land Management for information as to the location of Canadian oil and
gas exploratory permits. Reliance has been placed by Canada on this
correspondence as constituting or indicating acquiescence by or estoppel
against the United States ; however the Chamber will not examine these
exchanges at this stage, or discuss the significance attributed to them
during the case by Canada, which has been contested by the United States.
The Chamber will come back to them when examining the state of the law
in force between the Parties. It could not, however, be said that a dispute
had at that time already crystallized between the two States.

64. On 16 August 1966, the United States Embassy in Ottawa requested
information from the Canadian Department of Mines and Technical Sur-
veys as to Canadian hydrocarbon exploration on the Pacific Coast and in
the Gulf of Maine area. On 30 August 1966 a reply from the Under-
Secretary of the Canadian Department of External Affairs outlined the
relevant Canadian policies and practices and enclosed a map showing the
sea-bed area covered by the Canadian permits, but not indicating whether
any activity by Canadian permittees was in progress or imminent in that
area. After certain diplomatic consultations and contacts in 1966-1968,
including a United States aide-mémoire of 10 May 1968 suggesting that
negotiations be opened and that there be a temporary suspension of
activities on the northern half of Georges Bank, the United States on 5
November 1969 presented a diplomatic Note requesting a moratorium on
mineral explorations and exploitation on Georges Bank. That Note con-
tained a formal reservation of United States rights and stated that :

“until the exact location of the United States-Canada Continental
Shelf boundary is agreed upon, the United States cannot acquiesce

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GULF OF MAINE (JUDGMENT) 281

in any Canadian authorization of exploration or exploitation of the
natural resources of the Georges Bank Continental Shelf”.

On 1 December 1969, Canada replied observing that the United States had
not previously protested against Canadian oil and gas permits. While
accepting the proposal that negotiations on the delimitation of the conti-
nental shelf should be undertaken as suggested by the United States,
Canada declined to agree to a moratorium. The Chamber considers that it
was at this stage — 1.e., after the American diplomatic Note of 5 November
1969 refusing to acquiesce in any authorization given by Canada to explore
or exploit the natural resources of Georges Bank, and after Canada’s reply
of 1 December 1969, refusing, inter alia, to agree to any kind of moratorium
— that the existence of the dispute became clearly established. It may
however be useful to note once again that, at that time, it was still only a
dispute relating to the continental shelf.

65. On 21 February 1970, the United States Government recorded in the
Federal Register that the United States had protested against Canadian
authorizations relating to Georges Bank. Formal negotiations between the
United States and Canada on the continental shelf boundary began in
Ottawa on 9 July 1970. The Canadian position was that no special cir-
cumstances existed in the area and the boundary should thus be the
equidistance line, as contemplated by Article 6 of the 1958 Geneva Con-
vention on the Continental Shelf to which Canada had just become a party.
When ratifying the Convention, Canada had appended a declaration to the
effect that, in its view :

“the presence of an accidental feature such as a depression or channel
in a submerged area should not be regarded as constituting an inter-
ruption in the natural prolongation”.

The United States formally objected to this declaration on 16 July 1970.
The United States position in the negotiations asserted the inequitableness
of the equidistance line in view of the existence of special circumstances
and that the boundary should follow the Northeast Channel. No drilling
activities were authorized by either State at this time, but seismic surveys
were carried out on Georges Bank by United States companies in 1968,
1969 and 1975.

66. Various exchanges of diplomatic correspondence took place in 1974.
On 18 January 1974, the United States informed Canada (among others) of
United States legislation concerning the American lobster (homarus ameri-
canus), based upon Article 2, paragraph 4, of the 1958 Geneva Convention
on the Continental Shelf (concerning the living resources of the shelf), and
gave notice that fishing for American lobster by foreign nationals on the
United States continental shelf was prohibited. The boundary indicated by

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GULF OF MAINE (JUDGMENT) 282

the United States for purposes of enforcement of this legislation was the
100-fathom contour of Georges Bank, and this line has been referred to in
these proceedings as the “lobster line”. In September 1974, however, in
order to improve the prospects for negotiation, the United States informed
Canada that it would not enforce the requirements of the lobster law
against Canadian fishermen. The lobster-protection legislation remained
in force until it was superseded by the declaration of the general 200-mile
fishery zone (paragraph 68, below). On 17 September 1974 Canada for-
mally notified the United States of its reservation concerning continental
shelf exploration activities under a permit (No. OCS E-1-74) issued by the
United States to Digicon Inc. In reply, the Department of State referred to
its Note of 5 November 1969, and asserted that the areas subject to the
permit in question were subject to the jurisdiction of the United States.

67. On 15 May 1975, the United States notified Canada of its plans to
issue a Call for Nominations — the first step towards the granting of oil and
gas leases — in respect of areas on Georges Bank ; by a Note dated 3 June
1975, Canada took the position that it could not acquiesce in acts by the
United States intended to constitute an exercise of jurisdiction in respect of
any part of the continental shelf under Canadian jurisdiction. In 1976, 206
tracts of sea-bed on Georges Bank were selected for “intensive study” in
the process of preparing the draft environmental impact statement before
leasing could be carried out ; 28 of these tracts were on the northeastern
part of Georges Bank, in the area claimed as Canadian continental shelf.
Canada protested on 2 February 1976, and on 10 February 1976 the
United States restated its position that all the tracts being studied were on
the United States continental shelf ; however the disputed tracts were
temporarily withdrawn in December 1976 from the proposed sale of leases,
in order to avoid making the negotiations more difficult. The United States
has explained that, under its policy of restraint, the leases granted were
restricted to the undisputed portions of Georges Bank. At this time there
were also exploratory negotiations in progress, beginning on 15 December
1975 and continuing into 1976, both on continental shelf delimitation and
co-operative fisheries arrangements and on zones of shared hydrocarbon
resources ; but no basis for solution of the boundary problem was
found.

68. The situation thus remained more or less unchanged when, around
the turn of the year 1976-1977, some new events occurred and added to the
continental shelf dimension of the dispute a new dimension concerning the
waters and their living resources. Early in 1977, basing themselves on the
consensus meanwhile achieved at the Third United Nations Conference on
the Law of the Sea, the two States, at an interval of three months, each
proceeded to establish a 200-mile fishery zone off its shores, the United

40
GULF OF MAINE (JUDGMENT) 283

States on 13 April 1976, with the adoption of the Fishery Conservation and
Management Act which came into force on 1 March 1977, and Canada on
1 November by the publication of the text of a proposed Order in Council
under the Territorial Sea and Fishing Zones Act, effective 1 January 1977.
This Order defined the limits for the future Canadian zone ; a notice in the
United States Federal Register on 4 November 1976 stated the limits of the
United States 200-mile fishery zone and continental shelf in areas bor-
dering Canada. Thus the dispute which had previously been confined to
the continental shelf boundary issue was automatically enlarged to include
the issue of the boundary to be established in the superjacent waters. That
only made the negotiations between the two Parties more arduous. Later,
on 10 March 1983, in the course of the present proceedings, the United
States was to proclaim an exclusive economic zone, which coincided with
the previously constituted fishing zone, but this did not of course modify
the terms of the Special Agreement.

69. Negotiations at this time were concentrated on the establishment of
interim fishery arrangements, and on 24 February 1977 an Interim Recip-
rocal Fisheries Agreement was signed, and was provisionally implemented
pending its entry into force on 26 July 1977. This Agreement provided for
the preservation of the “existing patterns” of fisheries of the east and west
coast of each State, both within and beyond the boundary regions ; on the
Atlantic coast, the method used in the Agreement was to incorporate the
1976 quotas set by the International Commission for the Northwest
Atlantic Fisheries (ICNAF) as the ceiling for trans-boundary fishing
privileges. The Agreement expired at the end of 1977, but its terms and
conditions were maintained de facto pending negotiations on its renewal ;
agreement was reached for its renewal in an amended form, but as a result
of the occurrence of a number of serious disputes during its provisional
implementation, the new Agreement never entered into force. On 2 June
1978 its provisional implementation was suspended, and trans-boundary
fishing ceased. The two States have however maintained an interim régime
of flag-State enforcement procedures in the boundary regions along the
lines of the 1977 Agreement, first pending the entry into force of a 1979
Fisheries Agreement (paragraph 75, below), and subsequently, when that
Agreement failed to come into force, pending the present proceedings. On
27 July 1977 special negotiators were appointed by the Governments to
report on the principles of a comprehensive settlement on maritime boun-
daries and related matters as appropriate ; a joint report was presented in
October 1977.

70. It is important to stress that, within the dual dimension character-
izing the dispute between the two States following the proclamation by
each of them of an exclusive fishery zone, the United States attributed
importance in particular to the fishing aspect, whilst Canada long contin-
ued to give priority to the original aspect, i.e., the continental shelf. It was

41
GULF OF MAINE (JUDGMENT) 284

therefore from this double perspective, involving both the delimitation of
the continental shelf and, more especially, its new intention to set up a
200-mile exclusive fishery zone, that the United States formalized its
position by publishing in the Federal Register of 4 November 1976 the
co-ordinates of a line delimiting both the continental shelf and the fishery
zones. This line generally corresponded to the line of greatest depth ; it
carefully separated, in the inner zone of the Gulf of Maine, the fishing
grounds of the northeastern part from those of the southwestern part, and
in the outer zone, Browns Bank from Georges Bank. Skirting the outer
edge of the latter Bank, it thus reached the slope of the continental margin
via the Northeast Channel. It is easy to discern the dominant idea underly-
ing this United States line.

71. Canada, on the other hand, having published on 1 November 1976
the co-ordinates of a line which, as has been seen, was described as strictly
equidistant, and which was intended to indicate graphically its position in
regard to the delimitation of the continental shelf in the area, decided on 14
October 1977 to modify its line. Following the Decision rendered on 30
June 1977 by the Court of Arbitration in the Anglo-French Continental
Shelf Delimitation case, while the negotiations referred to in paragraph 69
were in progress, Canada indicated that its boundary claim would be
adjusted to reflect what it regarded as the legal significance of that deci-
sion ; and it gave formal notice of such adjustment by a diplomatic Note to
the United States Government dated 3 November 1977. It was there
explained that in the view of Canada the application to the factual situ-
ation in the Gulf of Maine area of the principles of law enunciated and
elucidated in the Anglo-French Decision justified the drawing of a line
other than the strict equidistance line, in view of the existence of “special
circumstances” as contemplated by Article 6 of the 1958 Geneva Conven-
tion. The circumstances in question were the projections seawards of the
exceptionally long peninsula of Cape Cod and the islands of Nantucket
and Martha’s Vineyard, added to the marked protrusion of the United
States coastline southeast of Boston ; the delimitation line should there-
fore be an equidistance line drawn without reference to these coastal
projections. Canada however indicated that pending the then current
negotiations, it would not publicly assert or enforce its claim beyond the
equidistance line already published in 1976.

72. By a Note of 2 December 1977, the United States Government
rejected the Canadian claim ; it reiterated its rejection of the previous
Canadian line as not in conformity with equitable principles because of the
special circumstances of the area, and expressed the view that a line which
accorded with equitable principles was one taking into account the coastal
configuration of the area, particularly the distorting effect of the concavity
of the United States coastline and the protrusion on the peninsula of Nova
Scotia.

73. As for the position of the United States, it was only at the beginning
of the present proceedings before the Chamber that it proposed any

42
GULF OF MAINE (JUDGMENT) 285

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LIMITS OF FISHERY ZONES AND CONTINENTAL SHELF CLAIMED BY THE
PARTIES, AT 1 MARCH 1977

(see paragraphs 68-70)

United States line —-—--—--

Canadian line eee.

43
GULF OF MAINE (JUDGMENT) 286

correction of its line of 1976. At that time, the United States also thought it
advisable to take its stand primarily on a geometrical method, that of the
perpendicular to the general direction of the coast. However, as will be seen
in greater detail later, the “adjusted perpendicular” then proposed was
nonetheless decisively influenced in the adjustments it featured, and in its
resulting rather complicated course, by the original intention of separating
the “ecological régimes” which the United States regards as distinct in
respect of the fishing resources of the area.

74. On 25 January 1978, Canada requested that certain tracts on
Georges Bank, over which continental shelf leases were to be offered for
sale on 31 January 1978 by the United States, should be withdrawn from
the sale ; these tracts lay to the south-west of the original equidistance line
claimed by Canada, but on the Canadian side of the revised line of 3
November 1977, which had not yet been made public. On 28 January 1978
the deletion of the tracts in question from the sale was announced, as being
“within the area claimed by Canada to be subject to negotiation between
the United States and Canada”, but the United States made it clear in a
Note of 3 February 1978 that it would not give any credence or recognition
to the new Canadian position. On 15 September 1978, Canada made public
its claim of 3 November 1977, by way of the publication in the Canada
Gazette of a proposed Order in Council extending the Canadian fishing
zone, which Order was published in final form on 25 January 1979. By a
Note of 20 September 1978, the United States reiterated its view that the
new Canadian claim was without foundation ; it asserted in the Note that
Georges Bank is a natural prolongation of United States territory, that in
view of the special circumstances in the Gulf of Maine area, the equidis-
tance line would not be in accordance with equitable principles, and that
there was no justification in international law for discounting the effect of
Cape Cod or Nantucket Island in determining the maritime boundary. The
United States objected further that expansion of the Canadian claim in the
midst of negotiations was not in keeping with the obligations of States
under the 1958 Geneva Convention, and indicated that it would continue
to exercise fisheries jurisdiction in the area of the expanded claim.

75. Since the submission, on 15 October 1977, of the joint report of the
two special negotiators (approved by both Governments on 21 October
1977), negotiations between them had continued, though only slowly and
with difficulty. In March 1979 agreement was reached to submit for the
approval of the Governments of Canada and the United States a package
of two linked treaties : the Treaty to Submit to Binding Dispute Settlement
the Delimitation of the Maritime Boundary in the Gulf of Maine area, and
the Agreement on East Coast Fisheries Resources ; these two instruments
were signed on 29 March 1979, and it was also agreed that further
exchanges of diplomatic correspondence on the legal merits of the posi-

44
GULF OF MAINE (JUDGMENT) 287

tions of the two Governments were not necessary in view of the package
proposed.

76. The two treaties were drawn so as to be interdependent, being
expressed to come into force together ; however ratification of them both
was not achieved. On 6 March 1981 the Fisheries Agreement was with-
drawn by the President of the United States from consideration by the
United States Senate, and proposals were made to Canada for amendment
of the boundary settlement Treaty so as to enable it to be put into force
independently. The United States Government gave the Canadian Gov-
ernment assurances that if the boundary settlement Treaty were ratified,
the United States would refrain from enforcement activities against Can-
adian fishing vessels in all areas claimed by Canada until the boundary was
established by adjudication. Instruments of ratification of the boundary
settlement Treaty were exchanged on 20 November 1981, and on 25
November 1981 the special agreement for the reference of the case to a
chamber of the Court was notified to the Registry.

77. The description, in terms of geographic co-ordinates, of the line
proposed has constituted part of the formal submissions of each Party (see
paragraphs 12 and 13, above). The Canadian line, which Canada describes,
as it did the one preceding it, as an equidistance line, consists of a line
constructed almost entirely from the nearest points of the baselines from
which the breadth of the territorial sea is measured. In this instance, this
means solely islands, rocks or low-tide elevations. An exception is however
made for the basepoints selected on the coast of Massachusetts, which have
been transferred from the outer end of the peninsula of Cape Cod and
Nantucket Island, much further to the west, to the eastern end of the Cape
Cod Canal. This is the line which Canada notified to the United States on 3
November 1977 and made public in the Canada Gazette on 15 September
1978. The line which the United States puts forward as the appropriate
boundary is somewhat more complex in its construction, though its jus-
tification is simple: it is presented as a perpendicular to the general
direction of the coast from the starting-point agreed upon by the Parties,
adjusted to take account of the relevant circumstances of the area, i.e., to
avoid the splitting of fishing banks. It differs from the “Northeast Channel
line” — the line adopted by the United States on 4 November 1976 which,
as the United States has explained, generally followed the line of deepest
water through the Gulf of Maine basin and the Northeast Channel, and
was approximately equidistant between the 100-fathom depth contours
there. According to its authors, this initial line was based upon the
“equidistance/special circumstances” rule of Article 6 of the 1958 Geneva
Convention, taking into account, as special circumstances, the configura-
tion of the coasts, the location of the land boundary, the position of the
fishing banks in the area, and the Northeast Channel. In contrast, the

45
GULF OF MAINE (JUDGMENT) 288

perpendicular to the general direction of the coast, now advanced by the
United States, has been substituted for the line of 1976, firstly because the
earlier line was not as broad a claim as that to which the United States
believed it is legally entitled ; and secondly because of the considerable
development of the law between 1976 and the date of filing of the Mem-
orials. In reply to a question by a member of the Chamber, the United
States further drew attention to explanations of the line given in Depart-
ment of State Memoranda of 1976/1977, and explained that the Northeast
Channel line — which followed the line of deepest water from the inter-
national boundary terminus to the Atlantic Ocean — gave more effect to
the geological and geomorphological circumstances of the Gulf of Maine
area than proved, in the light of the Court’s 1982 Judgment on the Con-
tinental Shelf (Tunisia/ Libyan Arab Jamahiriya), to be warranted.

78. In sum, one may say that the two successive lines put forward by
Canada were both proposed delimitation lines drawn primarily with the
continental shelf in mind, even if they are both single boundaries which are
supposed to apply to the fishery zone also. The Two United States delimi-
tation lines, on the countrary, are both proposals for single-boundary lines
drawn up initially on the basis of different considerations, but both treat-
ing the fishery régime as essential. In any case, it is certain that the gap
between the Parties’ respective positions has become noticeably wider
between the moment when the dispute appeared in their relations and the
moment of its being referred for judgment to the Chamber. There was no
sight of any rapprochement during the proceedings, except for a certain
tendency on each side to stress the merits of its initial proposal and to
emphasize the intentions that had lain behind it. The submissions formu-
lated by both Canada and the United States at the end of the oral pro-
ceedings only served to confirm the line which each Party had presented in
its initial written submissions.

IV

79. As already stated, Article II, paragraph 1, of the Special Agreement
provides that “The Chamber is requested to decide [the question submitted
to it] in accordance with the principles and rules of international law applic-
able in the matter as between the Parties” (emphasis added). The time has
therefore come to begin consideration of the problem of ascertaining the
rules of law, in the international legal order, which govern the matter at
issue in the present case. In the Chamber’s opinion, the association of the
terms “rules” and “principles” is no more than the use of a dual expression
to convey one and the same idea, since in this context “principles” clearly
means principles of law, that is, it also includes rules of international law in

46
GULF OF MAINE (JUDGMENT) 289

TT TT

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Map No. 3

DELIMITATION LINES PROPOSED BY THE PARTIES BEFORE
THE CHAMBER

(see paragraphs 71, 77-78)

United States line ——----—-

Canadian line stata

47
GULE OF MAINE (JUDGMENT) 290

whose case the use of the term “principles” may be justified because of
their more general and more fundamental character.

80. One preliminary remark is necessary before we come to the essence
of the matter, since it seems above all essential to stress the distinction to be
drawn between what are principles and rules of international law govern-
ing the matter and what could be better described as the various equitable
criteria and practical methods that may be used to ensure in concreto that a
particular situation is dealt with in accordance with the principles and
rules in question.

81. In a matter of this kind, international law — and in this respect the
Chamber has logically to refer primarily to customary international law —
can of its nature only provide a few basic legal principles, which lay down
guidelines to be followed with a view to an essential objective. It cannot
also be expected to specify the equitable criteria to be applied or the
practical, often technical, methods to be used for attaining that objective —
which remain simply criteria and methods even where they are also, in a
different sense, called “principles”. Although the practice is still rather
sparse, owing to the relative newness of the question, it too is there to
demonstrate that each specific case is, in the final analysis, different from
all the others, that it is monotypic and that, more often than not, the most
appropriate criteria, and the method or combination of methods most
likely to yield a result consonant with what the law indicates, can only be
determined in relation to each particular case and its specific character-
istics. This precludes the possibility of those conditions arising which are
necessary for the formation of principles and rules of customary law giving
specific provisions for subjects like those just mentioned.

82. The same may not, however, be true of international treaty law.
There is, for instance, nothing to prevent the parties to a convention —
whether bilateral or multilateral — from extending the rules contained in
that convention to aspects which it is less likely that customary interna-
tional law might govern. In that event, however, the text of the convention
must be read with caution. The first thing to remember in examining the
text, and sometimes even a single clause, is the distinction, the importance
of which has just been indicated, between principles and rules of interna-
tional law enunciated in the convention and criteria and methods for
whose application it might provide in particular circumstances.

83. With these premises established, a chamber of the Court, in its
reasoning on the matter, must obviously begin by referring to Article 38,
paragraph 1, of the Statute of the Court. For the purpose of the Chamber at
the present stage of its reasoning, which is to ascertain the principles and
rules of international law which in general govern the subject of maritime
delimitation, reference will be made to conventions (Art. 38, para. 1 (a))
and international custom (para. 1 (b)), to the definition of which the
judicial decisions (para. 1 (d)) either of the Court or of arbitration tribunals

48
GULF OF MAINE (JUDGMENT) 291

have already made a substantial contribution. So far as conventions are
concerned, only “general conventions”, including, inter alia, the conven-
tions codifying the law of the sea to which the two States are parties, can be
considered. This is not merely because no particular conventions bearing
on the matter at issue (apart from the Special Agreement of 29 March 1979)
are in force between the Parties to the present dispute, but mainly because
it is in codifying conventions that principles and rules of general appli-
cation can be identified. Such conventions must, moreover, be seen against
the background of customary international law and interpreted in its
light.

84. Chronologically speaking, the first multilateral convention to be
considered is, therefore, the Convention on the Continental Shelf of 29
April 1958, which both Parties have in time ratified and which they
acknowledge to be in force between them. The Chamber will examine
below the consequences of this finding for the present case. This Conven-
tion, as its title indicates, concerns only the sea-bed and its subsoil. The
Chamber notes that, at the time of its conclusion, no problem of deter-
mining boundaries for the waters superjacent to the continental shelf had
yet arisen. It would also point out in this connection that even the 1982
United Nations Convention on the Law of the Sea, which is not yet in
force, and which is intended to endorse the institution of an exclusive
economic zone, still does not provide for the delimitation of both objects
by a single line, an idea of which the present case is the first example.

85. The relevant provisions of the 1958 Convention are paragraphs 1
and 2 of Article 6, which read :

“1. Where the same continental shelf is adjacent to the territories
of two or more States whose coasts are opposite each other, the
boundary of the continental shelf appertaining to such States shall be
determined by agreement between them. In the absence of agreement,
and unless another boundary line is justified by special circumstances,
the boundary is the median line, every point of which is equidistant
from the nearest points of the baselines from which the breadth of the
territorial sea of each State is measured.

2. Where the same continental shelf is adjacent to the territories of
two adjacent States, the boundary of the continental shelf shall be
determined by agreement between them. In the absence of agreement,
and unless another boundary line is justified by special circumstances,
the boundary shail be determined by application of the principle of
equidistance from the nearest point of the baselines from which the
breadth of the territorial sea of each State is measured.”

86. Perusal of these texts discloses a concrete example in practice of
something which the Chamber has contemplated above as a theoretical
hypothesis. These two paragraphs enunciate at the same time something

49
GULF OF MAINE (JUDGMENT) 292

which is a principle of international law governing the problem of deter-
mining continental sheif boundaries between two or more States and, as
indicated in paragraph 80 above, something which appears rather as an
equitable criterion backed by a practical method to be used in certain
circumstances for effecting the delimitation.

87. The principle of international law stated in the first sentence of each
of the two paragraphs is simple, yet its importance must not be underes-
timated. It must not be seen as a mere “self-evident truth”. The thrust of
this principle is to establish by implication that any delimitation of the
continental shelf effected unilaterally by one State regardless of the views
of the other State or States concerned is in international law not opposable
to those States. The same principle also entails application of the related
rules as to the duty to negotiate with a view to reaching agreement, and to
do so in good faith, with a genuine intention to achieve a positive
result.

88. As has just been observed, the second sentence of paragraphs 1 and
2 of Article 6 of the 1958 Convention contemplates the use of specified
criteria and methods for effecting the delimitation in cases where it has
proved impossible to reach agreement. No assessment of their advantages
and disadvantages, or of the extent to which they are or are not binding in
the present dispute, is necessary at the present stage of the Chamber’s
deliberations. Such assessment will be appropriate later, when the problem
arises of the criteria and methods to be used for delimitation.

89. With regard solely, for the present, to the problem arising at this
stage, that is to say that of ascertaining the principles and rules of inter-
national law applicable to maritime delimitation, the inevitable conclu-
sion, which is definite, yet simple, is that the Convention clearly affirms a
principle the substance and implications of which have already been stated
in paragraph 87 above : the principle, in brief, that any delimitation must
be effected by agreement between the States concerned, either by the
conclusion of a direct agreement or, if need be, by some alternative
method, which must, however, be based on consent. To this one might
conceivably add — although the 1958 Convention does not mention the
idea, so that it entails going a little far in interpreting the text — that a rule
which may be regarded as logically underlying the principle just stated is
that any agreement or other equivalent solution should involve the appli-
cation of equitable criteria, namely criteria derived from equity which —
whether they be designated “principles” or “criteria”, the latter term being
preferred by the Chamber for reasons of clarity — are not in themselves
principles and rules of international law.

90. In contrast, the principle of international law — that delimitation
must be effected by agreement — which, as the Chamber has noted above,
is expressed in Article 6 of the 1958 Convention, and additionally, it may
be thought, the implicit rule it enshrines, are principles already clearly

50
GULF OF MAINE (JUDGMENT) 293

affirmed by customary international law, principles which, for that reason,
are undoubtedly of general application, valid for all States and in relation
to all kinds of maritime delimitation.

91. Following this review of the implications for the present problem of
the endeavour made in 1958 to codify the subject, it will now be appro-
priate to consider the bearing on the same problem of the Court’s Judg-
ment of 20 February 1969 in the North Sea Continental Shelf cases. That
Judgment, while well known to have attributed more marked importance
to the link between the legal institution of the continental! shelf and the
physical fact of the natural prolongation than has subsequently been given
to it, is nonetheless the judicial decision which has made the greatest
contribution to the formation of customary law in this field. From this
point of view, its achievements remain unchallenged. Rehearsing the his-
torical development of general international law on the subject, that
Judgment begins by considering the Truman Proclamation of 28 Septem-
ber 1945, which stated that, for the United States and its neighbours, the
delimitation of lateral boundaries between the continental shelves of
adjacent States should be decided by mutual agreement and “in accor-
dance with equitable principles”. “These two concepts” the Court noted,
“have underlain all the subsequent history of the subject” (.C.J. Reports
1969, p. 33, para. 47). Turning to the work of the International Law
Commission, the 1969 Judgment notes that, according to the Commission,
concepts such as that of proximity and its corollaries, and other alleged
principles variously advanced, do not comprise mandatory rules of inter-
national law. After this the Judgment restates and endorses the dual
principle “that delimitation must be the object of agreement between the
States concerned, and that such agreement must be arrived at in accor-
dance with equitable principles” (ibid, p. 46, para. 85). From this it
deduces the dual obligation for these States to “enter into negotiations
with a view to arriving at an agreement” and to “act in such a way that, in
the particular case, and taking all the circumstances into account, equi-
table principles are applied” (ibid, p. 47, para. 85), no matter what
methods are used for this purpose.

92. Subsequently, the Court of Arbitration’s Decision of 30 June 1977
on the delimitation of the continental shelf between France and the United
Kingdom confirms on this point the Court’s conclusions in the North Sea
Continental Shelf cases and enunciates as follows the general rule of cus-
tomary international law on the matter : “failing agreement, the boundary
between States abutting on the same continental shelf is to be determined
on equitable principles” (Decision, para. 70).

93. The next relevant decision is the Court’s Judgment of 24 February
1982 in the case concerning the Continental Shelf (Tunisia/ Libyan Arab
Jamahiriya). In that case, it should be recalled, the Court had to render a
judgment on the basis of a Special Agreement which, besides requesting
the Court to determine “the principles and rules of international law”
applicable to the delimitation, further requested that the Court take

51
GULF OF MAINE (JUDGMENT) 294

account of “equitable principles and the relevant circumstances which
characterize the area, as well as the recent trends admitted at the Third
Conference on the Law of the Sea” (Special Agreement, Art. 1, Z CJ.
Reports 1982, p. 21, para. 1). Referring back to the earlier Judgment in the
North Sea Continental Shelf cases, and to the proceedings and conclusions
of the Third Conference, the 1982 Judgment stresses the importance of
“the satisfaction of equitable principles ...in the delimitation process”
(ibid., p. 47, para. 44).

94. Turning lastly to the proceedings of the Third United Nations
Conference on the Law of the Sea and the final result of that Conference,
the Chamber notes in the first place that the Convention adopted at the
end of the Conference has not yet come into force and that a number of
States do not appear inclined to ratify it. This, however, in no way detracts
from the consensus reached on large portions of the instrument and, above
all, cannot invalidate the observation that certain provisions of the Con-
vention, concerning the continental shelf and the exclusive economic zone,
which may, in fact, be relevant to the present case, were adopted without
any objections. The United States, in particular, in 1983, that is to say after
the Special Agreement had come into force, proclaimed an economic zone
on the basis of Part V of the 1982 Convention. This proclamation was
accompanied by a statement by the President to the effect that in that
respect the Convention generally confirmed existing rules of international
law. Canada, which has not at present made a similar proclamation, has for
its part also recognized the legal significance of the nature and purpose of
the new 200-mile régime. This concordance of views is worthy of note, even
though the present Judgment is not directed to the delimitation of the
exclusive economic zone as such. In the Chamber’s opinion, these provi-
sions, even if in some respects they bear the mark of the compromise
surrounding their adoption, may nevertheless be regarded as consonant at
present with general international law on the question.

95. In this connection, attention should be drawn to the identical defi-
nition, in Article 74, paragraph 1, and Article 83, paragraph 1, relating
respectively to the exclusive economic zone and to the continental shelf, of
the rule of international law respecting delimitation. That identical defi-
nition is as follows :

“The delimitation of [the exclusive economic zone] [the continental
shelf] between States with opposite or adjacent coasts shall be effected
by agreement on the basis of international law, as referred to in Article
38 of the Statute of the International Court of Justice, in order to
achieve an equitable solution.”

It is thus limited to expressing the need for settlement of the problem by
agreement and recalling the obligation to achieve an equitable solution.
Although the text is singularly concise it serves to open the door to
continuation of the development effected in this field by international case
law.

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96. It should be noted that the symmetry of the two texts, relating to the
delimitation of the continental shelf and of the exclusive economic zone, is
most interesting in a case like the present one, where a single boundary line
is to be drawn both for the sea-bed and for the superjacent fishery zone,
which is included in the exclusive economic zone concept. The identity of
the language which is employed, even though limited of course to the
determination of the relevant principles and rules of international law, is
particularly significant.

97. The Chamber has now to assess the respective positions of the
Parties in the present dispute in the light of the findings that have so far
been made.

98. While stressing that, unfortunately, the points on which they disa-
greed were more numerous than those on which they agreed, the Parties
were at pains to state, when considering the “rules and principles of
international law” which, they held, should govern maritime delimitations,
that they were at one in believing in the existence of a “fundamental norm”
of international law. According to them, this norm must apply to any de-
limitation and, a fortiori, to the drawing of a single maritime boundary
like that sought in the Gulf of Maine area.

99. According to Canada’s definition, the “fundamental norm” in ques-
tion requires that this course be

“determined according to the applicable law, in conformity with
equitable principles, having regard to all relevant circumstances, in
order to achieve an equitable result”.

According to the United States definition, which recalls those in the
Court’s Judgments of 1969 and 1982,

“the delimitation of a single maritime boundary requires the appli-
cation of equitable principles, taking account of all circumstances
prevailing in the area concerned, in order to achieve an equitable
solution”.

While the difference apparent at first sight due to the absence in the United
States definition of the words “according to the applicable law” is not
negligible, the oral arguments have shown that it is in fact unimportant,
since the United States stated explicitly that it too believed that delimi-
tation should be effected on the basis of the applicable principles and rules
of international law.

100. The common conclusion of the Parties as to the “fundamental
norm” governing, in their opinion, the question of maritime delimitations
seems, therefore, to be closely related to the conclusion reached by analysis
of international case law and also, in the end, to that arrived at by the Third
Conference on the Law of the Sea.

101. However, if both Parties recognize the existence in international

53
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law of a “fundamental norm” governing maritime delimitations, that is as
far as their agreement goes. There is no longer agreement when each of the
Parties separately seeks to ascertain whether international law might also
contain other rules, possibly accompanied by corollaries, of mandatory
application in the same field.

102. In this connection Canada concentrated its efforts on deducing
these other rules of maritime delimitation from the concept of geographic
adjacency, since it was convinced that this concept constituted the “basis
of the title” of the coastal State to the partial extension of its jurisdiction to
the continental shelf and the waters of which it formed the bed.

103. This argument calls for several comments. Regarding adjacency,
the Chamber acknowledges that in most cases this concept can be credited
with the ability to express, perhaps better than that of natural prolonga-
tion, the link between a State’s sovereignty and its sovereign rights to
adjacent submerged land. It can also be acknowledged to express correctly
the link between the State’s territorial sovereignty and its sovereign rights
over waters covering such submerged land. It should not be forgotten,
however, that “legal title” to certain maritime or submarine areas is always
and exclusively the effect of a legal operation. The same is true of the
boundary of the extent of the title. That boundary results from a rule of
law, and not from any intrinsic merit in the purely physical fact. In the
Chamber’s opinion it is therefore correct to say that international law
confers on the coastal State a legal title to an adjacent continental shelf or
to a maritime zone adjacent to its coasts ; it would not be correct to say that
international law recognizes the title conferred on the State by the adjacency
of that shelf or that zone, as if the mere natural fact of adjacency produced
legal consequences.

104. It might be objected that these remarks are self-evident and that no
one seeks to contradict them. The points concerned must, however, be
clearly stated in order to show that there is a logical gulf between recog-
nizing the precise and circumscribed legal realities just mentioned and the
idea of constructing solely on that basis an alleged legal principle which is
sometimes given the name of “adjacency”, sometimes “proximity” and
sometimes, more especially, “distance”, which is, besides, quite another
thing. This is because it is from a principle thus established that Canada
seeks to deduce the existence in customary international law of rules for
delimitation between States whose continental shelves or adjacent mari-
time zones overlap. Following this line enables the Party in question
eventually to assert that international law enshrines a rule that would
concretely determine which of the two neighbouring States whose claims
are at variance is to be recognized as having a more valid claim than the
other to the attribution of certain maritime or submarine areas. Under this
rule the State any part of whose coasts is less distant from the zones than

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those of the other State would ipso jure be entitled to have the zones
recognized as its own.

105. The Chamber need not comment on the assertion that such a rule
exists, since the Court refused in the North Sea Continental Shelf cases
to

“imply any fundamental or inherent rule the ultimate effect of which
would be to prohibit any State (otherwise than by agreement) from
exercising continental shelf rights in respect of areas closer to the
coast of another State” (.C.J. Reports 1969, pp. 30-31, para. 42).

At that time the Court wished to stress that the submarine areas apper-
taining to the coastal State were not always those closest to its coasts.

106. With regard to the reasoning by which the Party concerned arrived
at the conclusion mentioned above, the Chamber merely notes that it
amounts to just one more, still unconvincing, endeavour to instil the idea
that “equidistance” — rather than “distance” — is a concept endorsed by
customary international law, since the objective is to assert that whatever
lies less far from the coasts of one State than from those of another should
automatically appertain to the former State. It is another attempt to turn
equidistance into a genuine rule of law, one to which general international
law has supposedly given expression while yet tempering it to take account
of special circumstances, and thus into something other than it is in reality:
a practical method that can be applied for the purposes of delimita-
tion.

107. It will not be disputed that this method has rendered undeniable
service in many concrete situations, and is a practical method whose use
under certain conditions could be contemplated and made mandatory by a
convention like that of 1958. Nevertheless this concept, as manifested in
decided cases, has not thereby become a rule of general international law, a
norm logically flowing from a legally binding principle of customary
international law, neither has it been adopted into customary law simply as
a method to be given priority or preference. The Chamber can best express
its thinking on this subject by quoting the comment made by the Court, in
its Judgment of 20 February 1969, on the similar contention by Den-
mark :

“In the records of the International Law Commission, which had
the matter under consideration from 1950 to 1956, there is no indi-
cation at all that any of its Members supposed that it was incumbent
on the Commission to adopt a rule of equidistance because this gave
expression to, and translated into linear terms, a principle of proxi-
mity inherent in the basic concept of the continental shelf, causing

55
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every part of the shelf to appertain to the nearest coastal State and to
no other, and because such a rule must therefore be mandatory as a
matter of customary international law. Such an idea does not seem
ever to have been propounded.” (C.J. Reports 1969, p. 33, para. 49.)

108. The United States, for its part, has not merely disputed the deter-
mining force in international law of any principle of adjacency, proximity
or distance, or of any legal rule allegedly derived therefrom. It has sought
support for its contentions in the distinction, which the Chamber has
already called unacceptable both in geography and in law, between coasts
defined as “primary”, simply because they follow the general direction of
the mainland coastline as a whole, or are parallel to it, and coasts defined as
“secondary”, simply because they deviate from that direction. Answering
the objection, made by reference to case-law, that the equality of all coasts
must be measured “in the same plane”, the United States argued that only
“comparable” coasts are entitled to comparable treatment and that not all
coasts are comparable. On this basis, therefore, which Canada has
described as an “ad hoc construction”, the United States has purported to
establish the principle of the preferential nature of the relationship
between “primary” coasts and the maritime and submarine areas situated
frontally before them. In terms of practical consequences, this preferential
relationship should allegedly prevail over the relationship with “second-
ary” coasts, even if these are closer. The maritime areas lying off the
primary coast should therefore be reserved to that coast and not to the
secondary coast, irrespective of the latter’s proximity. The “proximity”
concept should therefore yield to that of the “geographic natural prolon-
gation” of the principal coasts and that of the “extension of the coastal
front” of the State to which they belong.

109. In the Chamber’s opinion, the a priori nature of these premises and
these deductions is as patent as that of the thesis elaborated by the other
Party. In both cases the outcome of the Parties’ efforts can be said to have
been preconceived assertions rather than any convincing demonstration of
the existence of the rules that each had hoped to find established by
international law.

110. Each Party’s reasoning is in fact based on a false premise. The error
lies precisely in searching general international law for, as it were, a set of
rules which are not there. This observation applies particularly to certain
“principles” advanced by the Parties as constituting well-established rules
of law, e.g., the idea advocated by Canada that a single maritime boundary
should ensure the preservation of existing fishing patterns which are vital
to the coastal communities in the area concerned, or the idea advocated by
the United States that such a boundary should make it possible to ensure
the optimum conservation and management of living resources and at the
same time reduce the potential for future disputes between the Parties. One
could add to these the ideas of “non-encroachment” upon the coasts of

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another State or of “no cutting-off” of the seaward projection of the coasts
of another State, and others which the Parties put forward in turn, which
may in given circumstances constitute equitable criteria, provided, how-
ever, that no attempt is made to raise them to the status of established rules
endorsed by customary international law.

111. A body of detailed rules is not to be looked for in customary
international law which in fact comprises a limited set of norms for
ensuring the co-existence and vital co-operation of the members of the
international community, together with a set of customary rules whose
presence in the opinio juris of States can be tested by induction based on the
analysis of a sufficiently extensive and convincing practice, and not by
deduction from preconceived ideas. It is therefore unrewarding, especially
in a new and still unconsolidated field like that involving the quite recent
extension of the claims of States to areas which were until yesterday zones
of the high seas, to look to general international law to provide a ready-
made set of rules that can be used for solving any delimitation problems
that arise. A more useful course is to seek a better formulation of the
fundamental norm, on which the Parties were fortunate enough to be
agreed, and whose existence in the legal convictions not only of the Parties
to the present dispute, but of all States, is apparent from an examination of
the realities of international legal relations.

112. The Chamber therefore wishes to conclude this review of the rules
of international law on the question to which the dispute between Canada
and the United States relates by attempting a more complete and, in its
opinion, more precise reformulation of the “fundamental norm” already
mentioned. For this purpose it will, inter alia, draw also upon the definition
of the “actual rules of law ... which govern the delimitation of adjacent
continental shelves — that is to say, rules binding upon States for all de-
limitations” which was given by the Court in its 1969 Judgment in the
North Sea Continental Shelf cases (I.C.J. Reports 1969, pp. 46-47, para. 85).
What general international law prescribes in every maritime delimitation
between neighbouring States could therefore be defined as follows :

(1) No maritime delimitation between States with opposite or adjacent
coasts may be effected unilaterally by one of those States. Such delimita-
tion must be sought and effected by means of an agreement, following
negotiations conducted in good faith and with the genuine intention of
achieving a positive result. Where, however, such agreement cannot be
achieved, delimitation should be effected by recourse to a third party
possessing the necessary competence.

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GULF OF MAINE (JUDGMENT) 300

(2) In either case, delimitation is to be effected by the application of
equitable criteria and by the use of practical methods capable of ensuring,
with regard to the geographic configuration of the area and other relevant
circumstances, an equitable result.

V

113. The function of the foregoing discussion has been to define, in the
light of the sources examined, the principles and rules of international law
or, more precisely, the fundamental norm of customary international law
governing maritime delimitation. As has been shown, that norm is ulti-
mately that delimitation, whether effected by direct agreement or by the
decision of a third party, must be based on the application of equitable
criteria and the use of practical methods capable of ensuring an equitable
result. The Chamber must now proceed to consider these equitable criteria
and the practical methods which are in principle applicable in the actual
delimitation process.

114. On the basis of the conclusions already reached, the Chamber has
found that general customary international law is not the proper place in
which to seek rules specifically prescribing the application of any parti-
cular equitable criteria, or the use of any particular practical methods, for a
delimitation of the kind requested in the present case. As already noted,
customary international law merely contains a general requirement of the
application of equitable criteria and the utilization of practical methods
capable of implementing them. It is therefore special international law that
must be looked to, in order to ascertain whether that law, as at present in
force between the Parties to this case, does or does not include some rule
specifically requiring the Parties, and consequently the Chamber, to apply
certain criteria or certain specific practical methods to the delimitation
that is requested.

115. The starting point for this analysis may once again be an exami-
nation of the 1958 Convention on the Continental Shelf, more specifically
of the second sentence of each of paragraphs | and 2 of Article 6 which, as
we have seen, do not, like the first sentence, enunciate a principle or rule of
international law, but contemplate, inter alia, the use of a particular
practical method for the actual implementation of the delimitation pro-
cess. As already stated, this method employs a single technique for con-
tinental shelf delimitation, but in the form of a median line in maritime
areas between opposite coasts, and a lateral equidistance line where the
coasts of the two States are adjacent. This method is inspired by and
derives from a particular equitable criterion : namely, that the equitable
solution, at least prima facie, is an equal division of the areas of overlap of
the continental shelves of the two litigant States. The applicability of this

58
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method is, however, subject to the condition that there are no special
circumstances in the case which would make that criterion inequitable, by
showing such division to be unreasonable and so entailing recourse to a
different method or methods or, at the very least, appropriate correction of
the effect produced by the application of the first method.

116. In the light of these explanations the question therefore arises
whether the fact (already noted by the Chamber) that the 1958 Convention
on the Continental Shelf is in force between the Parties does or does not
make it obligatory to use, for the delimitation requested in the present case,
the method specified in Article 6 of that Convention and, by implication,
the application of the criterion on which it is based.

117. No doubts have been expressed on either side as to the fact that
both Parties regard themselves as bound by the Convention to which they
have both acceded. This case does not involve any problems of the kind
which arose in the case concerning the delimitation of the continental shelf
between France and the United Kingdom because of reservations
expressed by the former country but not accepted by the latter. The
declaration made by Canada at the time of becoming party to the Con-
vention, and objected to by the United States, is not such as to prevent the
application of the Convention to a particular situation concerning the two
States, nor has the United States claimed otherwise.

118. The Chamber therefore takes the view that if a question as to the
delimitation of the continental shelf only had arisen between the two
States, there would be no doubt as to the mandatory application of the
method prescribed in Article 6 of the Convention, always subject, of
course, to the condition that recourse is to be had to another method or
combination of methods where special circumstances so require.

119. The purpose of the present proceedings is not, however, to obtain a
delimitation of the continental shelf alone, as it might have been if they had
taken place prior to the adoption by the two Parties of an exclusive fishery
zone and the consequent emergence of the idea of delimitation by a single
line. Their purpose is — and both Parties have abundantly emphasized the
fact — to draw a single delimitation line for both the continental shelf and
the superjacent fishery zone. It is doubtful whether a treaty obligation
which is in terms confined to the delimitation of the continental shelf can
be extended, in a manner that would manifestly go beyond the limits
imposed by the strict criteria governing the interpretation of treaty instru-
ments, to a field which is evidently much greater, unquestionably hetero-
geneous, and accordingly fundamentally different. Apart from this formal,
but important, consideration, there is the more substantive point that such
an interpretation would, in the final analysis, make the maritime water
mass overlying the continental shelf a mere accessory of that shelf. Such a

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result would be just as unacceptable as the converse result produced by
simply extending to the continental shelf the application of a method of
delimitation adopted for the “water column” only and its fish re-
sources.

120. In this connection, the Chamber would also observe that it is not
possible to employ, in refutation of the foregoing, the argument that the
method contemplated by Article 6 of the Convention on the Continental
Shelf is also provided for, in similar terms, in Article 12 and Article 24,
paragraph 3, of the Convention of the same date on the Territorial Sea and
the Contiguous Zone. The situation of the territorial sea and the conti-
guous zone, conceived as subject to the sovereignty of the coastal State, or
subject to the exercise of customs controls and similar measures, intended
to prevent violations of its territorial sovereignty, cannot be treated as an
analogy. There is nothing here which is comparable with the reservation of
the exclusive rights of exploitation of resources of a maritime area extend-
ing to 200 miles ; there is therefore nothing which could justify the idea of
an extension thereto of criteria and delimitation methods expressly con-
templated for the narrow strip of sea defined for a quite different pur-
pose.

121. Furthermore the Chamber cannot accept the arguments of Canada
that, when a single maritime boundary ts to be determined, the provisions
of Article 6 of the 1958 Convention apply directly, i-e., as treaty-law, “to
the continental shelf as a component of the single maritime boundary”,
and also, but as a “particular expression of a general norm’, to the
superjacent fishery zone, as the other component.

122. Leaving aside the substantive point made at the end of paragraph
119 above, the Chamber is bound to note that the assertion that, even for
the delimitation of an exclusive maritime fishery zone, by virtue of a
general norm of international law “the equidistance method is to be used in
those cases where it produces an equitable result”, i.e., in so far as special
circumstances do not require its use to be abandoned, has no convincing
basis. To accept this idea would amount to transforming the “combined
equidistance-special circumstances rule” into a rule of general interna-
tional law, and thus one capable of numerous applications, whereas there is
no trace in international custom of such a transformation having
occurred.

123. The Chamber cannot but note in this connection that although it
was proper for Canada to derive from the Decision of the Court of Arbi-
tration on the Delimitation of the Continental Shelf between France and
the United Kingdom the expression combining in one concise definition
all the different ideas found in Article 6 of the 1958 Convention, it would
be straining the scope of that Decision to interpret it as meaning that the
“combined equidistance-special circumstances rule” (Decision, para. 68)

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GULF OF MAINE (JUDGMENT) 303

is in the process of becoming a norm of general application. What that
Decision did state is that the rule in question

“gives particular expression to a general norm that, failing agreement,
the boundary between States abutting on the same continental shelf is
to be determined on equitable principles” (Decision, para. 70),

which is a different matter. On the contrary, the finding of the Court of
Arbitration clearly shows the different levels at which the various rules
concerned are situated : the provisions of Article 6 of the 1958 Convention
at the level of special international law, and, at the level of general inter-
national law, the norm prescribing application of equitable principles, or
rather equitable criteria, without any indication as to the choice to be made
among these latter or between the practical methods to implement them.
The Chamber considers that such is the current state of customary inter-
national law.

124. In short, the Chamber does not believe that there is any argument
to justify the attempt to turn the provisions of Article 6 of the 1958
Convention into a general rule applicable as such to every maritime
delimitation. The treaty provisions in question, as the 1969 Judgment of
the Court pointed out, can have no mandatory force as regards delimita-
tion, even delimitation of the continental shelf alone, between States which
are not parties to the 1958 Convention. Similarly, they cannot have such
mandatory force even between States which are parties to the Convention,
as regards a maritime boundary concerning a much wider subject-matter
than the continental shelf alone.

125. The Chamber must therefore conclude in this respect that the
provisions of Article 6 of the 1958 Convention on the Continental Shelf,
although in force between the Parties, do not entail either for them or for
the Chamber any legal obligation to apply them to the single maritime
delimitation which is the subject of the present case.

126. The Chamber, having reached this conclusion as to the absence
between the Parties of any legal obligation deriving from treaty to apply
specific practical methods to the determination of the single boundary
between their respective maritime zones, must also examine a related
question. It must ascertain whether, as between the Parties, any other
factors have intervened which might, independently of any formal act
creating rules or instituting relations under special international law,
nevertheless give rise to an obligation of this kind. The question, which
the Parties have argued at length during the present case, is whether the
conduct of the Parties over a given period of their relationship constituted

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acquiescence by one of them in the application to the delimitation of a
specific method advocated by the other Party, or precluded it from oppos-
ing such action, or whether such conduct might have resulted in a modus
vivendi, respected in fact, with regard to a line corresponding to such an
application.

127. It was more specifically Canada which argued that the conduct of
the United States involved a kind of substantive consent by that country, in
one of these forms, to the application of the equidistance method, parti-
cularly as regards the delimitation to be effected in the Georges Bank
sector. The Chamber will therefore begin its examination of this aspect of
the question by looking at this argument.

128. According to Canada the conduct of the United States may be
taken into consideration in three ways, of varying importance : first, as
evidence of genuine acquiescence in the idea of a median line as the
boundary between the respective maritime jurisdictions, and of a resultant
estoppel against the United States ; secondly, as an indication, at least, of
the existence of a modus vivendi or of a de facto boundary, which the two
States have allowed to come into being ; and, thirdly and lastly, as mere
indicia of the type of delimitation that the Parties themselves would have
considered equitable. It should be noted that this Canadian argument
concerned, at the time of the conduct in question, the continental shelf
proper and, inter alia, that of Georges Bank. The United States strongly
disputes the contention that its conduct could have the legal or other
consequences attributed to it by Canada.

129. In the Canadian argument the terms “acquiescence” and “estop-
pel” are used together and practically for the same purposes. Canada
defines as follows the rules relating to acquiescence, regarded as a recog-
nition of rights :

“One government’s knowledge, actual or constructive, of the con-
duct or assertion of rights of the other party to a dispute, and the
failure to protest in the face of that conduct, or assertion of rights,
involves a tacit acceptance of the legal position represented by the
other Party’s conduct or assertion of rights.” (Hearing of 4 April 1984,
afternoon.)

In the case of estoppel, Canada acknowledges that in international law the
“doctrine” is still developing. According to Canada, however, all condi-
tions permitting the invocation of that principle are satisfied in the present
case, even if only the strictest are selected. Canada stated in the oral
proceedings that estoppel is “the alter ego of acquiescence”, though it
added that even if it were to be held that the conditions for the recognition
of an estoppel were more stringent than those for acquiescence (the United
States argues that a party wishing to invoke this form of preclusion must
have relied on the other party’s statements or conduct either to its own

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detriment or to the other’s advantage), this latter criterion must be
regarded as satisfied in the present case.

130. The Chamber observes that in any case the concepts of acquies-
cence and estoppel, irrespective of the status accorded to them by inter-
national law, both follow from the fundamental principles of good faith
and equity. They are, however, based on different legal reasoning, since
acquiescence is equivalent to tacit recognition manifested by unilateral
conduct which the other party may interpret as consent, while estoppel is
linked to the idea of preclusion. According to one view, preclusion is in fact
the procedural aspect and estoppel the substantive aspect of the same
principle. Without engaging at this point on a theoretical debate, which
would exceed the bounds of its present concerns, the Chamber merely
notes that, since the same facts are relevant to both acquiescence and
estoppel, except as regards the existence of detriment, it is able to take the
two concepts into consideration as different aspects of one and the same
institution.

131. The relevant facts may be summarized as follows. Canada began in
1964 to issue, on its own side of what it regarded as the median line dividing
Georges Bank, long-term options (permits) for the exclusive exploitation
of hydrocarbons. From 1964 onwards seismic research was carried out
under the authority of Canada in the northeastern portion of the Bank.
Canada alleges that it was known to the United States authorities that it
had issued permits relating to the northeastern portion of Georges Bank.
The Canadian Government had, moreover, published information on the
subject in the Monthly Oil and Gas Report. The United States replies that
the issue of offshore permits under Canadian legislation was not common
knowledge, and merely constituted an internal administrative activity
incapable of forming the basis of acquiescence or estoppel at the interna-
tional level. Before any effect could result at this level it would, at least,
have been necessary for the Canadian Department of External Affairs to
send a diplomatic communication to the United States Department of
State.

132. According to Canada, however, the United States authorities were
aware of the facts in question by 1 April 1965 at the latest. At that date the
Bureau of Land Management of the United States Department of the
Interior wrote to the Canadian Department of Northern Affairs and
National Resources enquiring as to the location of two Canadian offshore
permits with reference to the median line referred to in Article 6 of the
Geneva Convention on the Continental Shelf. The Canadian Department
replied by sending it documents showing the areas for which the permits
had been issued. By a letter dated 14 May 1965, known as the “Hoffman
letter” from the name of its signatory, the Bureau of Land Management
acknowledged receipt of the documents and mentioned, inter alia, the
question of the exact position of a median line, and the Department of
Northern Affairs replied on 16 June 1965 that the median line used was

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constructed in accordance with Article 6 of the Convention on the Con-
tinental Shelf. This was followed by correspondence, now at diplomatic
level, between the United States Embassy in Ottawa and the Canadian
Department of External Affairs, which supplied certain items of detailed
information. A letter written on behalf of the Canadian Under-Secretary
of State for External Affairs, in which the median line was explicitly
mentioned, is dated 30 August 1966, but the United States did not take this
opportunity to protest or reserve its rights. It did so only in its aide-
mémoire dated 5 November 1969, which does not refer to any previous
reservation. Canada also affirms that it was only on 18 February 1977 that
mention was first made in diplomatic correspondence of the claim
advanced by the United States in 1976 to a boundary along the Northeast
Channel.

133. The United States argues in reply that the authors of the 1965
correspondence were mid-level government officials who had no authority
to define international boundaries or take a position on behalf of their
Governments on foreign claims in this field. The United States disputes
especially the argument that the “Hoffman letter” can be regarded as
constituting explicit or tacit acquiescence in the Canadian claims. As Mr.
Hoffman explained in his letter, he had no authority to commit the United
States as to the position of a median line. Moreover, the United States
aide-mémoire of 5 November 1969 explicitly referred to the previous one,
of 10 May 1968, whereby the United States proposed that the Govern-
ments should undertake discussions at an early date on the delimitation of
the continental shelf in the Gulf of Maine and in the area of the Straits of
Juan de Fuca. This aide-mémoire said nothing about a median line or
about any other principle or method of delimitation.

134. According to the United States, Canada never issued an official
proclamation or any other publication for the purpose of making its claims
known internationally ; the United States could not, therefor infer the
existence of such claims by such indirect means. By 1964 Canada had not
published any official claim to the continental shelf under its own legis-
lation. On the contrary, if had not even taken an official stand on the
Truman Proclamation and its possible implications for the continental
shelf in the Georges Bank area which, according to the United States, was
included in its entirety therein.

135. Canada argues that, in the practice followed from 1964 until the
end of 1970, the United States did not oppose the Canadian contention
and did not implement a boundary based on the Northeast Channel. The
permits issued by the United States authorities did not relate to areas north
of a median line on Georges Bank. Canada further quotes the aide-
mémoire of 5 November 1969, which shows that the United States had
refrained from authorizing the exploitation of minerals in the northern
continental shelf of Georges Bank.

136. The United States replies that at the time in question it was con-

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fronted on Georges Bank with Canadian seismic exploration of minor
importance, which involved neither drilling nor the extraction of petro-
leum. No special action was therefore necessary on its part. Moreover,
from 1965 onwards United States exploration permits had been issued for
the northeastern part of Georges Bank, beyond a median line, e.g., permit
EL/65 issued to Shell. The aide-mémoire of 5 November 1969 already
mentioned, clearly constituted opposition to the Canadian programme for
the Bank : it stated specifically that the United States :

“cannot acquiesce in any Canadian authorization of exploration or
exploitation of the natural resources of the Georges Bank continental
shelf”.

137. The facts being as described, the Chamber does not feel able to
draw the conclusion that the United States acquiesced in delimitation of
the Georges Bank continental shelf by a median line, setting aside for the
moment both the fact that the platform of Georges Bank is only a limited
portion of the continental shelf of the area to be delimited, and the fact that
at the present time the continental shelf is only one of the two subjects of
the delimitation requested of the Chamber.

138. In the view of the Chamber, it may be correct that the attitude of
the United States on maritime boundaries with its Canadian neighbour,
until the end of the 1960s, revealed uncertainties and a fair degree of
inconsistency. Notwithstanding this, the facts advanced by Canada do not
warrant the conclusion that the United States Government thereby re-
cognized the median line once and for all as a boundary between the
respective jurisdictions over the continental shelf ; nor do they warrant the
conclusion that mere failure to react to the issue of Canadian exploration
permits, from 1964 until the aide-mémoire of 5 November 1969, legally
debarred the United States from continuing to claim a boundary following
the Northeast Channel, or even including all the areas southwest of the
“adjusted perpendicular”.

139. The Chamber considers that the terms of the “Hoffman letter”
cannot be invoked against the United States Government. It is true that
Mr. Hoffman’s reservation, that he was not authorized to commit the
United States, only concerned the location of a median line ; the use of a
median line as a method of delimitation did not seem to be in issue, but
there is nothing to show that that method had been adopted at government
level. Mr. Hoffman, like his Canadian counterpart, was acting within the
limits of his technical responsibilities and did not seem aware that the
question of principle which the subject of the correspondence might imply
had not been settled, and that the technical arrangements he was to make
with his Canadian correspondents should not prejudge his country’s posi-
tion in subsequent negotiations between governments. This situation,
however, being a matter of United States internal administration, does not

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authorize Canada to rely on the contents of a letter from an official of the
Bureau of Land Management of the Department of the Interior, which
concerns a technical matter, as though it were an official declaration of the
United States Government on that country’s international maritime boun-
daries.

140. Furthermore, while it may be conceded that the United States
showed a certain imprudence in maintaining silence after Canada had
issued the first permits for exploration on Georges Bank, any attempt to
attribute to such silence, a brief silence at that, legal consequences taking
the concrete form of an estoppel, seems to be going too far.

141. From 1965 onwards, as we have seen, the United States also issued
exploration permits for the northeastern portion of Georges Bank, that is
to say in the area claimed by Canada. Here again it would have been
prudent of the United States to inform Canada officially of those activities,
but its failure to do so does not warrant the conclusion that it thereby gave
Canada the impression that it accepted the Canadian standpoint, and that
legal effects resulted. Once again the United States attitude towards Can-
ada was unclear and perhaps ambiguous, but not to the point of entitling
Canada to invoke the doctrine of estoppel.

142. When Canada, at the level of its Department of External Affairs
and of the United States Embassy in Ottawa, clearly stated its claims for
the first time (letter of 30 August 1966), it might admittedly have expected
a reaction on the part of the United States Department of State. The
United States concedes that it was thus officially informed of Canada’s
views on the problem of delimitation. Even though the correspondence was
conducted, not between the Secretary of State for External Affairs per-
sonally and the United States Ambassador personally, but between civil
servants subordinate to them, the letter did in fact emanate from the
administrative service competent for the conduct of foreign relations and
was in fact addressed to the Ambassador representing the Government of
the United States. In waiting until 10 May 1968 before suggesting, through
diplomatic channels, the opening of discussions, while the question
remained pending, and then waiting a further year and a half, until
November 1969, before stating clearly that no Canadian permit for the
exploration or exploitation of the natural resources of the Georges Bank
continental shelf would be recognized, the United States cannot be
regarded as having endeavoured to keep Canada sufficiently informed of
its policy. It is even possible that Canada was reasonably justified in
hoping that the United States would ultimately come round to its view. To
conclude from this, however, in legal terms, that by its delay the United
States had tacitly consented to the Canadian contentions, or had forfeited
its rights is, in the Chamber’s opinion, overstepping the conditions
required for invoking acquiescence or estoppel.

143. Canada has referred, in support of its arguments, to a number of
precedents and in particular to certain judgments of the Court. The United

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States argues that such case law, and the reasoning therein, do not
strengthen Canada’s arguments. The Chamber will not discuss this subject
in any great detail but will merely show that these precedents are incon-
clusive with respect to the present case.

144. To support the argument that a State’s conduct may produce legal
consequences in its relations with other States, Canada has availed itself, in
particular, of the Judgment in the Anglo-Norwegian Fisheries case. It is
true that in that Judgment the Court found that the Norwegian authorities
had applied their system of delimitation consistently and uninterruptedly
from 1869 until the time when the dispute arose and that general toleration
of that Norwegian practice was an unchallenged fact (Z.C.J. Reports 1951,
p. 138). The Court found that such general toleration, combined with other
factors, warranted Norway’s enforcement of its system against the United
Kingdom (ibid, p. 139). The Chamber considers that the elements of fact
and of law in the Fisheries case and those in the present dispute are clearly
too dissimilar for a comparison thereof to produce legal consequences
valid for the present case. Neither the long duration of the Norwegian
practice (70 years), nor Norway’s activities in manifestation of that prac-
tice, warrant the drawing of conclusions from the 1951 Judgment that
would be relevant in the present case.

145. It is apparently the Judgment in the North Sea Continental Shelf
cases that gave the most precise definition of the conditions for invoking
the doctrine of estoppel ; but even disregarding the element of detriment or
prejudice caused by a State’s change of attitude, which distinguishes
estoppel stricto sensu from acquiescence, it nevertheless presupposes clear
and consistent acceptance (1.C.J. Reports 1969, p. 26). In the present case
the conduct of the United States, because of its unclear nature, does not
satisfy the conditions prescribed in the 1969 Judgment, either for estoppel
or for acquiescence.

146. In the Grisbadarna case concerning the delimitation of fishing
grounds between Norway and Sweden, the conduct of the two States did
play a major part ; the relevance of that case to the present one is however
debatable, since the problems of rights over maritime areas differed in
many respects from those of the present day. That case concerned terri-
torial waters, whereas the present one concerns vast areas of sea that have
only recently come under the jurisdiction of the adjacent States. The
differences between the two cases are so great that it is difficult to establish
a parallel between them. Even if these differences are minimized, it is not
possible to conclude, on the basis of the Grisbadarna precedent, from a
comparison of the conduct of Sweden and Norway with that of the Parties
to the present case, that the conduct of the United States was sufficiently
clear, sustained and consistent to constitute acquiescence.

147. The facts of the Temple of Preah Vihear case (cf. C.J. Reports
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1962, pp. 22, 23 and 32) differ so much from those of the present case that
the conclusions drawn from it are — it would seem — inapplicable. Nor is
the Judgment in the case concerning the Arbitral Award Made by the King
of Spain on 23 December 1906 a valid precedent. Acquiescence did play a
part in that case, but in reaching that conclusion the Court relied on
explicit declarations of Nicaragua, and on conduct that had continued
over a very long period, something which does not apply in the present
case.

148. On the basis of all the foregoing considerations the Chamber finds,
therefore, that in the present case the conditions have not been met for an
acquiscence on the part of the United States which would, even in the
absence of other bases, have the effect, in the bilateral relations between
the United States and Canada, of making the application of the median
line to the determination of their respective maritime jurisdictions man-
datory. The same is true as regards the possibility of an estoppel, without
prejudice to the problems that the application of this concept in interna-
tional law may raise generally.

149. Independently of the arguments derived from the conduct of the
Parties for the purpose of establishing the existence of acquiescence or
estoppel, Canada has also requested the Chamber to find that the conduct
of the Parties proved at least the existence of a “modus vivendi maritime
limit” or a “de facto maritime limit” based on the coincidence between the
Canadian equidistance line (the “strict equidistance” line) and the United
States “BLM line”, which it is claimed was respected by the two Parties and
by numerous oil companies from 1965 to 1972, at least. Canada bases this
conclusion on the reasoning and pronouncements of the Court in the
Continental Shelf (Tunisia/ Libyan Arab Jamahiriya) case U.C.J. Reports
1982, pp. 83-85). The United States not only denies that its petroleum and
gas permits respected any particular line (see the analysis of the facts
relating to acquiescence and estoppel above), but also denies the very
existence of the “BLM line”.

150. Without going into these differences of detail, the Chamber notes
that, even supposing that there was a de facto demarcation between the
areas for which each of the Parties issued permits (Canada from 1964 and
the United States from 1965 onwards), this cannot be recognized as a
situation comparable to that on which the Court based its conclusions in
the Tunisia/ Libya case. It is true that the Court relied upon the fact of the
division between the petroleum concessions issued by the two States con-
cerned, But it took special account of the conduct of the Powers formerly
responsible for the external affairs of Tunisia — France — and of Tripoli-
tania — Italy —, which it found amounted to a modus vivendi, and which the
two States continued to respect when, after becoming independent, they
began to grant petroleum concessions.

151. Moreover, in the Chamber’s opinion the period from 1965 to 1972,
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“at least”, which, according to Canada, is the one in which the modus
vivendi was instituted, is too brief to have produced a legal effect of this
kind, even supposing that the facts are as claimed. In addition, Canada’s
efforts to extend this period by attaching it to the preceding period
encounter the objections to it which the Court has already formulated with
regard to acquiescence, and which would obviously hold good for the
modus vivendi too.

152. Canada invokes the conduct of the Parties finally in support of its
arguments that both in fact regarded the use of an equidistance line as an
equitable culmination of the delimitation process. This argument is based,
in the final analysis, on the facts already advanced in support of the
acquiescence, estoppel and modus vivendi claims: in the view of the
Chamber these facts cannot support this idea any more than the others.
Each Party has adopted a clear position on what it would consider a just or
equitable balance between their respective interests, and the Chamber
cannot but take note of this. By way of conclusion it can merely reconfirm
its previous comment on the reliance placed on the conduct of the Parties
for the purposes examined above.

153. Finally, the Chamber cannot fail to mention the fact that the
United States, for its part, has invoked Canada’s conduct in relation to its
own claims to the continental shelf. It has emphasized that at the time of
the Truman Proclamation in 1945 Canada was informed, first, of the
intention of the United States to carry out the delimitation of the conti-
nental shelf by agreement and in accordance with equitable principles and,
secondly, of its determination to regard the 100-fathom depth line as the
boundary of its continental shelf zone — a boundary which includes
Georges Bank. Canada argues in reply that the Truman Proclamation did
not mention the 100-fathom depth, but the United States counters that
argument by pointing out that the depth in question was mentioned in a
Department of State press communiqué which accompanied the Procla-
mation. A copy of the latter, together with an explanatory memorandum,
had been communicated to Canada for comments approximately five
months before the publication of the Proclamation. Canada did not react.
While not arguing from this that Canada consented to a boundary along
the 100-fathom depth line, the United States does claim that Canada
acquiesced in the requirement for delimitation by agreement in accordance
with equitable principles. In addition Canada was aware, it is argued, that
any unilateral measure it might take within the 100-fathom line would be
unacceptable to the United States. Canada disputes this, claiming that it
had not been informed of the reference to the 100-fathom depth line, which
was not contained in the Proclamation itself, and that the explanatory
memorandum received at the same time merely indicated that questions of
delimitation could be left until some future time.

154. However that may be, the Chamber reiterates that the primary rule
for the delimitation of maritime areas between neighbouring States is that

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it must be effected by agreement and that, in as much as the argument of
the United States based on Canada’s failure to react to the Truman
Proclamation amounts to claiming that delimitation must be effected in
accordance with equitable principles, the United States position on that
point merely refers back to the “fundamental norm” which Canada also
relies on in the case. This comment does not derogate in any way from the
observation made above that it is impossible to conclude from the conduct
of the Parties that there is a binding legal obligation, in their bilateral
relations, to make use of a particular method for delimiting their respective
maritime jurisdictions.

155. Having concluded the two-stage analysis carried out in the fore-
going paragraphs, the Chamber is now able to give a definitive answer to
the question posed in paragraph 114 above. It has just been noted that the
Parties to the present case, in the current state of the law governing
relations between them, are not bound, under a rule of treaty-law or other
rule, to apply certain criteria or to use certain particular methods for the
establishment of a single maritime boundary for both the continental shelf
and the exclusive maritime fishery zone, as in the present case. Conse-
quently, the Chamber also is not so bound.

156. The Chamber may therefore begin by taking into consideration,
without its approach being influenced by predetermined preferences, the
criteria and especially the practical methods that may theoretically be
applied to determining the course of the single maritime boundary
between the United States and Canada in the Gulf of Maine and in the
adjacent outer area. It will then be for the Chamber to select, from this
range of possibilities, the criteria that it regards as the most equitable for
the task to be performed in the present case, and the method or combi-
nation of practical methods whose application will best permit of their
concrete implementation.

157. There has been no systematic definition of the equitable criteria
that may be taken into consideration for an international maritime delimi-
tation, and this would in any event be difficult a priori, because of their
highly variable adaptability to different concrete situations. Codification
efforts have left this field untouched. Such criteria have however been
mentioned in the arguments advanced by the parties in cases concerning
the determination of continental shelf boundaries, and in the judicial or
arbitral decisions in those cases. There is, for example, the criterion
expressed by the classic formula that the land dominates the sea ; the

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criterion advocating, in cases where no special circumstances require cor-
rection thereof, the equal division of the areas of overlap of the maritime
and submarine zones appertaining to the respective coasts of neighbouring
States ; the criterion that, whenever possible, the seaward extension of a
State’s coast should not encroach upon areas that are too close to the coast
of another State ; the criterion of preventing, as far as possible, any cut-off
of the seaward projection of the coast or of part of the coast of either of the
States concerned ; and the criterion whereby, in certain circumstances, the
appropriate consequences may be drawn from any inequalities in the
extent of the coasts of two States into the same area of delimitation.

158. With regard to these and other possible criteria, the Chamber does
not think it would be useful to undertake a more or less complete enu-
meration in the abstract of the criteria that are theoretically conceivable, or
an evaluation, also in the abstract, of their greater or lesser degree of
equitableness. As the Chamber has emphasized a number of times, their
equitableness or otherwise can only be assessed in relation to the circum-
stances of each case, and for one and the same criterion it is quite possible
to arrive at different, or even opposite, conclusions in different cases. The
essential fact to bear in mind is, as the Chamber has stressed, that the
criteria in question are not themselves rules of law and therefore manda-
tory in the different situations, but “equitable”, or even “reasonable”,
criteria, and that what international law requires is that recourse be had in
each case to the criterion, or the balance of different criteria, appearing to
be most appropriate to the concrete situation.

159. Unlike the equitable criteria by which the delimitation must be
guided, the practical methods that can be used for effecting the material
delimitation have of course been the subject of certain a priori analyses. In
this connection, mention may be made of the observations in the Court’s
Judgment in the North Sea Continental Shelf cases regarding the work done
on the subject by the International Law Commission and Its request for
advice from a Committee of Experts (.C.J. Reports 1969, p. 35, para. 53).
During the course of that work mention was made of the use, according to
circumstances, of the method of the lateral equidistance line or the median
line, the method which was finally adopted by the Commission (and later
by the 1958 Convention) as applicable, provided always that special cir-
cumstances do not justify the use of another method. But, as the Court also
recalled, mention was then made concurrently of other possible methods :
that of drawing a line perpendicular to a coast, or to the general direction of
a coast; that of drawing a boundary prolonging an existing division of
territorial waters, or the direction of the final segment of a land boundary,
or the overall direction of such boundary. This list was moreover by no
means exhaustive. These different methods, and others, have been used in
turn in different delimitations effected by direct agreement between neigh-
bouring States ; in this connection statistical considerations afford no
indication either of the greater or lesser degree of appropriateness of any

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particular method, or of any trend in favour thereof discernible in inter-
national customary law.

160. The Chamber nevertheless considers that it must repeat, with
reference to these practical methods, the observation already made with
reference to the equitable criteria whose effective application should be by
the use of these methods. This is another area in which comparisons in the
abstract are most unlikely to yield useful results. On the general level all
that can be done is to comment on the possible consequences of the rapid
changes that have taken place in what is the very subject-matter of a
maritime delimitation. The methods taken into consideration in a still
relatively recent past — in this particular field ideas age very quickly — were
few in number and of very similar inspiration. This limited choice was
justifiable when these methods had to be applied over small distances, e.g.,
along boundaries between the territorial seas of adjacent States ; but the
same choice may seem less justifiable when boundaries have to be estab-
lished which cover hundreds of nautical miles and are intended, not to
delimit jurisdiction over the waters immediately abutting on the coast, but
in fact to share out the potential mineral wealth of continental shelves
extending to the continental margin, or the biological resources of mari-
time and ocean areas of hitherto unimagined proportions. Obviously the
preference given to a particular method for drawing a boundary over a very
short distance from the coasts may no longer be justifiable where the
delimitation has to extend a great distance from its starting-point and
where different factors have to be taken into account.

161. It is true that, until the emergence of the present dispute, the
problem of “long distance” delimitation, so to speak, had only come before
an international judicial or arbitral body in relation to the continental
shelf. This is the first time that a delimitation has been sought by request-
ing a chamber of the Court to draw a single line which will be valid both for
the continental shelf and for the superjacent waters. It is, of course, quite
possible, even at the theoretical level, that one method may seem prefer-
able for the delimitation of the continental shelf, whereas another would be
appropriate for the delimitation of an exclusive fishery zone or an exclusive
economic zone. It will be remembered that a question put to the Parties
during the hearings in the present case was : in the event that one particular
method, or set of methods, should appear appropriate for the delimitation
of the continental shelf, and another for that of the exclusive fishery zone,
what they considered to be the legal grounds that might be invoked for
preferring one or the other in seeking to determine a single line. In its reply,
the United States noted that in such circumstances there appeared to be no
legal grounds to be invoked a priori for preferring one or another method,
and that the applicable principles and relevant circumstances should be

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considered as an integrated whole. In the view of the United States,
circumstances relevant to the functional effectiveness of a boundary rela-
ting to both the water column and the sea-bed should be given greater
weight than circumstances relating to only one of them. Canada expressed
the opinion that preference as to method should depend on the degree of
relevance to be attached to a given factor in relation to the delimitation of
all or any part of the boundary. It explained that such degree might differ
in each of the two areas under consideration : the Gulf of Maine itself, as
far seaward as the Cape Sable-Nantucket closing line, and the outer area
that includes Georges Bank. It concluded that preference as to method
should be dictated by the relevant circumstances of each of the two
areas.

162. Here again the essential consideration is that none of the potential
methods has intrinsic merits which would make it preferable to another in
the abstract. The most that can be said is that certain methods are easier to
apply and that, because of their almost mechanical operation, they are less
likely to entail doubts and arouse controversy. That explains to a certain
extent why they have been used more frequently or why they have in many
cases been taken into consideration in preference to others. At any rate
there is no single method which intrinsically brings greater justice or is of
greater practical usefulness.

163. The Chamber considers, therefore, that there are not two kinds of
methods, those which are intrinsically appropriate, on the one hand, and
those which are inappropriate or less appropriate, on the other. The greater
or lesser appropriateness of one method or another can only be assessed
with reference to the actual situations in which they are used, and the
assessment made in one situation may be entirely reversed in another. Nor
is there any method of which it can be said that it must receive priority, a
method with whose application every delimitation operation could begin,
albeit subject to its effects being subsequently corrected or it being even
discarded in favour of another, if those effects turned out to be clearly
unsatisfactory in relation to the case. In each specific instance the circum-
stances may make a particular method seem the most appropriate at the
outset, but there must always be a possibility of abandoning it in favour of
another if subsequently this proved justified. Above all there must be
willingness to adopt a combination of different methods whenever that
seems to be called for by differences in the circumstances that may be
relevant in the different phases of the operation and with reference to
different segments of the line.

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GULF OF MAINE (JUDGMENT) 316
VI

164. Bearing in mind the considerations set forth in the preceding
section, the Chamber now proposes, before turning to the concluding
phase of its work, to examine the respective criteria and methods whose
application to the delimitation is proposed by each of the Parties, and to
undertake a comparative analysis of the four lines resulting from the
application by them of these criteria and methods.

165. The review carried out in previous paragraphs of the origin and
development of the dispute between the Parties showed that when the
dispute definitively acquired its present dual dimension the two Parties
took care to specify and publish their respective claims. To support those
claims they proposed the application of very different criteria and the use
of very different practical methods. On these bases each Party proposed
two delimitation lines, one after the other, constructed according to
entirely or partially different methods, although each, in its new choice,
showed continuity with its previous approach.

166. The Chamber would first recall that the United States, whose
particular interest in the “maritime” or “fisheries” aspect of the subject of
the dispute it has already emphasized, originally proposed in 1976 the
application of a criterion which, as appears particularly from the recent
explanations given by that Party, accorded decisive importance, for the
purposes of delimitation, to natural factors, that is, the geomorphological,
and, indeed especially, the ecological aspects of the area. The method
proposed by that Party for the practical implementation of this criterion
amounted, therefore, to adopting a line which corresponded approxi-
mately to a line of the greatest depths. The main objective thus pursued was
to keep intact the unity of each of the various ecosystems which, according
to that Party, were clearly distinguishable throughout the area to be
delimited. The line resulting from the use of this method remained more or
less equidistant throughout its entire length from the 100-fathom lines. It
ran first in a south-south-westerly, then a south-south-easterly direction in
the inner part of the Gulf in such a way that on the left Canada would
receive German Bank on the Scotian Plateau, and the United States the
Gulf of Maine basin, on the right. On reaching the closing line of the Gulf
in Georges Basin it curved to follow the Fundian Channel, and then the
Northeast Channel, as far as the continental margin.

167. The United States, when reiterating in the oral proceedings the
merits it discerned in that line, also repeated that it was in conformity with
Article 6 of the 1958 Convention. In so doing it obviously emphasized not
so much its own endorsement of the method referred to in that Article, but
primarily the importance to be attached, in the present case, to the cor-
rection of that method, which is also provided for in that Article and which,
in its opinion, is made necessary in the present case by the special cir-
cumstances of the area. In the Chamber’s opinion, this reference to the
1958 Convention seems to be a courteous gesture in the direction of an

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instrument recognized as being still in force between the Parties rather
than a manifestation of any intention to implement its substance. In actual
fact, the 1976 line was not inspired by the idea of a delimitation primarily
concerning the continental shelf, which is the sole purpose of Article 6, or
indeed by the idea of a delimitation resulting from any particular geo-
metrical method, but by the objective of a distribution of fishery resources
according to a “natural” criterion.

168. The possibility of applying this criterion, which was originally
advocated by the United States and to which it is still, to a certain extent,
attached, and especially of applying it so exclusively to the present delimi-
tation, prompts serious reservations. In so saying, the Chamber leaves
aside any consideration as to the uncertainty of the distribution of the fish
resources of the area according to the different ecosystems identified by
the United States experts, and the reservations that may be prompted by
the thesis of single-State management as justifying the award to one Party
in toto of the resources of Georges Bank, which is the real subject of the
dispute. The fundamental fact remains that the criterion underlying the
United States line of 1976 was too much geared to one aspect of the present
problem for it to be capable of being considered equitable in relation to the
characteristics of the case. This criterion may have been justified for a
delimitation concerning exclusive fishery zones alone, but less so for a
“single” delimitation, in whose purpose the continental shelf and espe-
cially the resources of its subsoil also play a most important part. When
such a delimitation is made it is just possible that the choice of a criterion
and a practical method that are manifestly appropriate for fishery delimi-
tation may be the right one for determining a particular segment of the line,
were it to appear that, in the area delimited by that segment, the conti-
nental shelf is not of decisive importance. The exceptional aspect of such a
solution must, however, be acknowledged, and it is obviously impossible to
employ, for the determination of the entire length of a single delimitation
line which, as in the present case, simultaneously concerns two distinct and
important objects, a criterion and a method that would be suitable for
delimiting the one but not for delimiting the other.

169. The new line proposed when the Memorial of the United States
was filed in September 1982 seems, especially at first sight, to be based on
an entirely different conception. This conception belongs to a more recent
context, comprising the recent important arbitral and judicial decisions of
1977 and 1982 on the delimitation of the continental shelf, together with
important delimitations effected by agreement, such as that of the Franco-
Spanish maritime boundary in the Bay of Biscay and, latterly, the adoption
by the Third United Nations Conference on the Law of the Sea of the new
codification convention which covers, and extends, the field of the 1958
Conventions, and departs substantially from them in the content of the
relevant articles.

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170. An effort was clearly made by the United States to remedy the
earlier omission of other important geographical aspects, and by a new
approach to the problem which the other Party has criticized as macro-
geography. The United States thus fixed its final position on the central
idea of the general direction of the coast, on which it has based a series of
observations and distinctions which may be summarized as follows :

(a) recognition of the priority to be given, in all respects, to consideration
of the general southwest and northeast direction of the eastern sea-
board of the American Continent ;

(b) a distinction — already mentioned above — between “primary coasts”
and “secondary coasts”, according as they follow the general direction
of the coast or, on the contrary, deviate from it ;

(c) the classification, inter alia, of the Atlantic coast of Nova Scotia as one
of the “primary” coasts and of the coast of Nova Scotia abutting on the
Gulf of Maine — like the coast of Massachusetts abutting on that Gulf
— as “secondary” coasts ;

(a) a finding that the coast of Maine abutting on the Gulf follows a
direction corresponding to the “general direction” and is, therefore, a
“primary” coast ; and that Georges Bank, situated off and opposite the
coast of Maine, is oriented in the same direction.

The “equitable criterion” that must be applied in delimiting the single
maritime boundary in the area thus becomes that of the projection or
- frontal extension of the primary coastal front, which the United States
identifies with that of natural prolongation, not in the geological or geo-
morphological sense, but “in the geographical sense”. As has also been
pointed out, the United States puts forward, as additional equitable cri-
teria, those of avoidance of encroachment and cut-off and that of pro-
portionality.

171. Using this set of criteria, the dominant one now being that of the
frontal projection of the primary coastal front, the United States therefore
proposes, as a method for determining the course of the boundary line, the
vertical line, perpendicular to the general direction of the coast. To be
consistent with the system, this perpendicular would have to be drawn
from the terminal point of the international boundary, thus being a per-
pendicular to the continuous horizontal line formed by the coasts desig-
nated as principal coasts of Maine and New Brunswick. This is imprac-
ticable, however, since the perpendicular drawn from this point would
intersect Grand Manan Island and what is more the Nova Scotia penin-
sula, cutting off part of its territory. Moreover, if the United States were to
adopt a line of this kind it would infringe the express clause of the Special
Agreement which provides that the starting-point of the line of delimita-
tion to be drawn shall be à particular point situated about 39 miles from the
terminal point of the international boundary. The United States therefore
declares its willingness to accept an initial adjustment of the line originally
drawn in accordance with the criterion theoretically selected — an initial

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adjustment that is necessary, in its opinion, for adaptation to the relevant
circumstances of the area. It therefore accepts that the vertical line, per-
pendicular to the coast, be drawn from point A.

172. It becomes clear that other adjustments are also necessary, how-
ever, to deal with another relevant circumstance, the circumstance which
principally inspired the line first proposed by the United States in 1976,
namely, total respect for the unity of the ecosystems or ecological régimes
identified in the delimitation area. Two additional modifications of the
perpendicular, now starting at point A, are therefore proposed. Their
purpose is to ensure that jurisdiction over the two fishing banks on the
Nova Scotia plateau (German Bank and Browns Bank), should belong
entirely to Canada, and so to affirm and confirm the principle that a single
State should be entrusted with the management of the fish resources of the
principal banks of the area. This also creates the basis for the parallel
award to the United States of exclusive jurisdiction over Georges Bank. It
is also apparent that the new line no longer follows the thalweg of the
Northeast Channel, as did the previous one, but is situated in proximity to
its northeastern edge.

173. This results in the double-stepped configuration of the present
United States proposal for the delimitation of the single maritime boun-
dary with Canada. Rather than being an application of the “adjusted
perpendicular” method, as defined by its proponent, this proposal in fact
represents a compromise solution between two fundamentally different
methods : the geometrical method of the perpendicular to the general
direction of the coast and the ecological method, so to speak, of respect for
the unity of the distinct ecosystems, which, it is held, are identifiable in the
delimitation area, and distribution on that basis between the two neigh-
bouring States.

174. The Chamber has already expressed its views on the criterion
which, irrespective of how it is presented, is essentially ecological or, if one
so prefers, ecogeographical. The criterion and method more recently
advanced, and which are intended to be combined in some way with the
first, prompt an entirely different comment. Compared with the criterion
of recognizing the predominant influence, for the purposes of a maritime
delimitation, of seaboards which, in the delimitation area, follow the
general direction of the mainland coast, and with the resulting method
involving the use, at least at the outset, of the perpendicular to the general
direction of the coast, the present case seems to the Chamber a clear
illustration of the soundness of the observation made at the start, namely,
that the advantages and disadvantages of a particular criterion and a
particular method cannot be assessed and judged in the abstract but only
with reference to their application to a specific situation.

175. On the subject of the method, and of that only, the method of the
perpendicular to a coast on which the territories of two States meet and the
other method, which is really a variation of the first, of the perpendicular to

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the general direction of the coast, are, as has been seen, two of the four
methods on which the International Law Commission asked the Commit-
tee of Experts for its views. The method of the perpendicular was probably
the oldest method to come to mind when problems arose in the delimita-
tion by adjacent States of their territorial sea. The same method was also
found to be conveniently, though only partially, applicable to the delimi-
tation of the continental shelf in some bilateral agreements.

176. It is almost an essential condition for the use of such a method in a
specific case that the boundary to be drawn in the particular case should
concern two countries whose territories lie successively along a more or less
rectilinear coast, for a certain distance at least. The ideal case, so to speak,
would be one in which the course of the line would leave an angle of 90° on
either side. On the other hand, it is hard to imagine a case less conducive to
the application of this method of delimitation than the Gulf of Maine case,
in which the starting-point of the line to be drawn is situated in one of the
angles of the rectangle in which the delimitation is to be effected. This
situation cannot be remedied by introducing as a criterion the abstract
concept of the “general direction” of the coast, which may indeed be used
as a corrective where the real direction of the coast at which the land
boundary ends deviates only insignificantly from this “general direction”.
It is not in fact apparent how the method of the perpendicular drawn with
reference to the general direction of the coast of a continent could be
applied to a portion, a limited but nevertheless substantial portion, of that
coast, where the real geographical configuration differs so markedly from
such general direction.

177. That being so, an argument ignoring even the existence of real
coasts, and disregarding them on account of their allegedly “secondary”
character, cannot resolve the insurmountable difficulties that result from
the forced application of a criterion and of a method which are not at all
appropriate having regard to the real geographical configuration of the
area. Nor will alterations made a posteriori in the perpendicular in order to
convert it into an exclusively maritime boundary line, and make it more
compatible with ecology, make this criterion and this method any less
markedly unsuited to the present case. In a word, the method of delimi-
tation by the perpendicular to the coast or to the general direction of the
coast might possibly be contemplated in cases where the relevant circum-
stances lent themselves to its adoption, but is not appropriate in cases
where these circumstances entail so many adjustments that they com-
pletely distort its character.

178. The Chamber will now examine the lines proposed successively, at
the end of 1976 and at the end of 1977, thus in quick succession, by Canada.
The Chamber believes they can be considered together, since the two lines

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are essentially based on the same criterion and both purport to be the result
of applying a single method. This criterion, already mentioned above, has
been defined as that of the equal division of the disputed areas, and the
method is that broadly designated by the term “equidistance”.

179. It should first be considered whether, just as it was right to express
reservations as to whether a criterion and a method that are manifestly
appropriate for only the water portion of the complex object to be delimi-
ted can be applied to the determination of a single boundary, there may not
also be some doubt about the application to the determination of such
single boundary of a criterion — and especially of a method — which had
been intended to be applied only to the land portion of the object to be
delimited. The Chamber may, however, disregard this aspect of the matter,
as it will have an opportunity to comment on it elsewhere (see paragraph
202, below).

180. The Chamber has already demonstrated, in paragraphs 121 ff., the
unacceptability of the Canadian argument that the application to the
delimitation between the United States and Canada of the “equidistance
method”, is mandatory. As we have seen, this method is claimed to be
mandatory, under Article 6 of the 1958 Convention as regards the portion
of the delimitation concerning the continental shelf and, in the case of the
superjacent fishery zone, under what is alleged to be a practically identical
tule of customary international law prescribing the application of the same
method to every maritime delimitation, except in so far as special circum-
stances warrant the use of a different method. The only further comment
the Chamber has on this question is that, while it is of the opinion that
Canada has relied on a false premise in successively proposing two dif-
ferent lines, one called a strict equidistance line and the other a corrected
equidistance line, this does not imply that Canada was bound to refrain
from using any such method for drawing the boundary line that it intended
to propose. The absence of an obligation to do something must not be
confused with an obligation not to do it. Each Party has the undeniable
right to propose the free adoption of the method or methods it considers
most appropriate for delimiting the single maritime boundary which is the
subject of this case. The Party must merely meet two conditions : (a) it
must show that the use of the method chosen, while in no way mandatory,
is nevertheless specially recommended by its equity and by its adaptability
to the circumstances of the case ; (b) it must ensure that the application of
that method which is proposed in concrete terms has due regard to those
circumstances and is, moreover, correctly carried out.

181. That being so, the way in which Canada believes it can apply the
method chosen to the specific circumstances must be examined more
closely. It has been said that Canada, when first drawing the delimitation
line that it thought appropriate to the present case, manifested the inten-

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tion to keep to a line which it defined as a line of strict equidistance. One
year later, however, it changed its position because it had in the meantime
discerned the possibility of taking certain special circumstances into
account and modifying accordingly the line already put forward.

182. Canada, however, instead of taking into account other special
circumstances which might be present in the area to be delimited and
which might — with perhaps greater justification — have suggested the
desirability, or even the necessity, of correcting the original line by dis-
placing it towards the Nova Scotia coast, only took into account a special
circumstance which might operate in its favour and enableit to displace the
line still more towards the opposite coast of Massachusetts. In Canada’s
opinion, the special circumstance of decisive significance was the protru-
sion formed by the island of Nantucket, and more especially by the
peninsula of Cape Cod. To establish the course of its corrected equidis-
tance line, Canada therefore felt justified in removing these alleged geo-
graphical anomalies and substituting the Cape Cod Canal for the outer
coast of the peninsula of the same name as western basepoint for calcu-
lating equidistance. Nor did Canada feel obliged also to displace the
eastern basepoint for the calculation of the same line from Seal Island to
the coast of Nova Scotia. The effect of this alteration on the Georges Bank
dividing line need not be emphasized ; the effect is considerable, which
does not mean it is justified.

183. These are not, however, the only reservations to be suggested in this
context by an examination of the line proposed by Canada, since, in the
Chamber’s opinion, merely reverting from a corrected equidistance line to
a strict equidistance line like that originally proposed by the same Party
would not be enough automatically to make the Canadian suggestion
suited to the geographical configuration of the area, or even convert it into
a correct application of the method which Canada carefully derived from
the text of Article 6 of the 1958 Convention.

184. An initial comment immediately suggests itself. When the con-
figuration of the Gulf of Maine was described above, as were the features
of the elongated rectangle representing that configuration in simplified
geometrical form, attention was drawn to the fact that the only part of that
rectangle to be formed by a Canadian coast is the short right side, as viewed
by an observer from outside, whereas the short left side and the entire long
side connecting the other two are formed by coasts of the United States. If
we then move from geometrical figures to geographical realities it is also
obvious that the length of the coasts belonging to the United States, as
measured on the perimeter of the Gulf, is considerably greater than that of
the coasts belonging to Canada, even if part of the Bay of Fundy coasts is
included in the calculation of this perimeter. This difference in length is a
special circumstance of some weight, which, in the Chamber’s view, jus-
tifies a correction of the equidistance line, or of any other line. In several
specific cases the respective lengths of the coasts of the two Parties in the

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delimitation area have been taken into consideration as a ground for
correcting a line basically derived from the application of a given method.
Some cases involved settlement by agreement (e.g., that of the shelf boun-
dary between France and Spain in the Bay of Biscay) while others were
submitted to judicial decision (e.g., that of the delimitation of the conti-
nental shelf between Tunisia and Libya). Yet, in comparison with these
various cases, in the present case the difference in the length of the coasts
of the two States within the delimitation area is particularly notable.

185. In making this comment the Chamber remains aware of the fact
that to take into account the extent of the respective coasts of the Parties
concerned does not in itself constitute either a criterion serving as a direct
basis for a delimitation, or a method that can be used to implement such
delimitation. The Chamber recognizes that this concept is put forward
mainly as a means of checking whether a provisional delimitation estab-
lished initially on the basis of other criteria, and by the use of a method
which has nothing to do with that concept, can or cannot be considered
satisfactory in relation to certain geographical features of the specific case,
and whether it is reasonable or otherwise to correct it accordingly. The
Chamber’s views on this subject may be summed up by observing that a
maritime delimitation can certainly not be established by a direct division
of the area in dispute proportional to the respective lengths of the coasts
belonging to the parties in the relevant area, but it is equally certain that a
substantial disproportion to the lengths of those coasts that resulted froma
delimitation effected on a different basis would constitute a circumstance
calling for an appropriate correction. In the Chamber’s opinion, the need
to take this aspect into account constitutes a valid ground for correction,
more pressing even than others to which the United States has attached
great importance when criticizing the Canadian position and the proposed
delimitation reflecting that position, even if the Chamber cannot deny, or
at any rate not as radically as Canada has done, that those criticisms may
be justifiable.

186. In the Chamber’s opinion, however, the delimitation line proposed
by Canada prompts other objections. In this connection one preliminary
comment is necessary. Paragraphs 1 and 2 of Article 6 of the 1958 Con-
vention on the Continental Shelf contemplate two distinct hypothetical
situations. As the Chamber has already observed (Section V, paragraph
115 above), this does not mean that the basic criterion, that of equal
division, which underlies these provisions is not one and the same, or that
the method by which this criterion is applied does not involve the use of the
same technique. The distinction between the two hypotheses in question is
due to the difference between the geographical situations to which the two
texts refer. In the case of a delimitation between two adjacent coasts, the
application of the technique referred to produces a lateral equidistance

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line, whereas in cases where the two coasts are opposite, the application of
the same technique produces a median line.

187. The authors of the 1958 text were right to make a precise distinc-
tion between two different situations. Subsequently, international juris-
prudence has done much to clarify the necessary distinction between the
situations to which the method in question may be applied. While noting
that the various methods used shared the same inspiration, that jurispru-
dence, including the Decision of the Court of Arbitration on the Delimi-
tation of the Continental Shelf between France and the United Kingdom,
emphasized this point. By reference to an observation in the 1969 Judg-
ment of the Court in connection with one characteristic of the equidistance
method, the Court of Arbitration found that that characteristic of the
method emphasized the “difference between a geographical situation of
‘opposite’ States and one of ‘adjacent States’ in the delimitation of con-
tinental shelf boundaries” (Decision, para. 86). Further on, in the final
summing-up of its theory, the Court of Arbitration concluded :

“Furthermore, in appreciating the appropriateness of the equidis-
tance method as a means of achieving an equitable solution, regard
must be had to the difference between a ‘lateral’ boundary between
‘adjacent’ States and a ‘median’ boundary between ‘opposite’ States.”
({bid., para. 97.)

It is also obvious — but this point merits particular emphasis because of its
relevance to the present case — that, as the jurisprudence referred to, and in
addition the Court’s Judgment in the Continental Shelf (Tunisa/ Libyan
Arab Jamahiriya) case, has shown, the coasts of two States may be adjacent
at certain places and opposite at others. On this latter hypothesis, however,
difficulties might arise, of a practical nature in particular, since every effort
should be made to prevent the partial relationship of adjacency from
ultimately predominating over the partial relationship of oppositeness, or
vice-versa. It might become apparent that adjustments were necessary for
this purpose, or even, as a last resort, recourse to a different method, since
in some cases a radical change in the mutual relationship between the
coasts of the two States concerned might be one of the special circum-
stances contemplated by Article 6 itself as a ground for having recourse to
a method of delimitation other than that indicated as priority method by
that text.

188. In the light of the foregoing considerations, it is clear how impor-
tant it is that Canada seems not to have appreciated the significance of the
change in the respective positions of the coasts of the United States and
Canada which occurs at a particular point within the Gulf. The description
of the delimitation area, in Section IJ (paragraph 32) above, shows that in
the innermost part of the Gulf of Maine the straight line running along the

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Maine coast from Cape Elizabeth to the international boundary terminus,
and the equally straight line along the Nova Scotia coast and extending it
across the waters and across Grand Manan Island to that terminus, meet
almost at right angles. It was therefore correct to regard the coasts of the
two States at that place as “adjacent” coasts, between which it was quite
conceivable to consider drawing a lateral equidistance line, the problem
being however how far such line should go.

189. But in putting forward its proposals for the delimitation, Canada
has failed to take account of the fact that, as one moves away from the
international boundary terminus, and approaches the outer opening of the
Gulf, the geographical situation changes radically from that described in
the previous paragraph. The quasi-right-angle lateral adjacency relation-
ship between part of the Nova Scotia coasts, and especially between their
extension across. the opening of the Bay of Fundy and Grand Manan
Island, and the Maine coasts, gives way to a frontal opposition relationship
between the remaining coasts of Nova Scotia and those of Massachusetts
which now face them. It is this new relationship that is the most charac-
teristic feature of the objective situation in the context of which the
delimitation is being effected. Moreover, when the geographical charac-
teristics of the delimitation area were described it was shown that the
relationship between the lines that can be drawn, between the elbow of
Cape Cod and Cape Ann (on the United States side), and between Cape
Sable and Brier Island (on the Canadian side), is one of marked quasi-
parallelism. In this situation, even a delimitation line on the basis of the
equidistance method would have to be drawn taking into account the
change in the geographical situation, which Canada did not do when it was
necessary. In any event what had to be avoided was to draw, the whole way
to the opening of the Gulf, a diagonal line dominated solely by the rela-
tionship between Maine and Nova Scotia, even where the relationship
between Massachusetts and Nova Scotia should have predominated.

VII

190. The consideration set forth in Section V as regards the equitable
criteria and practical methods applicable in the abstract to maritime
delimitation, and the critical assessment in Section VI of the particular
criteria and methods proposed by the Parties for application to the de-
limitation at present required, will now serve the Chamber as a guide in
approaching its task of carrying out that delimitation. The conclusion
reached by the Chamber shows clearly that it must undertake this final
stage of the task entrusted to it and formulate its own solution indepen-
dently of the proposals made by the Parties.

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191. That being so, the Chamber has evidently to keep in mind its
obligation to comply with the fundamental norm provided by general
international law where this subject-matter is concerned. In this final
phase of the decision-making process, the Chamber must therefore arrive
at the concrete determination of the delimitation line that it is required to
draw (a) while basing itself for the purpose on the criteria which it finds
most likely to prove equitable in relation to the relevant circumstances of
the case and (b) while making use, in order to apply these criteria to the
case, of the practical method or combination of methods which it deems
the most appropriate ; all this with the final aim in view of reaching an
equitable result in the above circumstances.

192. Hence as regards, in the first place, the choice of the criteria on
which the Chamber should base its decision, all the foregoing considera-
tions point to the advisability of its formally precluding the application of
any criteria, however apparently equitable in themselves, which can now
be seen as inappropriate to the delimitation of one or other of the two
objects that the Parties’ Special Agreement requests it to delimit. In this
connection, the Chamber must again stress the responsibility laid upon it
by the fact that the delimitation that it is required to carry out is, for the
first time in international judicial or arbitral practice, a delimitation of two
distinct elements by means of a single line. This is an unprecedented aspect
of the case which lends it its special character and accordingly differen-
tiates it from those that were the subject of previous decisions. To note this
fact does not of course in any way imply that the criteria applied in those
decisions must ispo facto be held inapplicable to the present case ; all that is
meant is that the fact that the criteria in question were then found equitable
and appropriate for the delimitation of the continental shelf does not
imply that they must automatically possess the same properties in relation
to the simultaneous delimitation of the continental shelf and the superja-
cent fishery zone. It is necessary that the adaptability of those criteria to
this essentially different operation should first be verified in relation to its
specific requirements.

193. In other words, the very fact that the delimitation has a twofold
object constitutes a special aspect of the case which must be taken into
consideration even before proceeding to examine the possible influence of
other circumstances on the choice of applicable criteria. It follows that,
whatever may have been held applicable in previous cases, it is necessary,
in a case like the present one, to rule out the application of any criterion
found to be typically and exclusively bound up with the particular charac-
teristics of one alone of the two natural realities that have to be delimited in
conjunction. In commenting on the delimitation criteria proposed by the
Parties, the Chamber has already pointed out the difficulty, if not the
impossibility, of adopting, for the purpose of such a dual delimitation, a
criterion disclosed by objective analysis to be essentially ecological. It so
described the criterion initially proposed by the United States, whereby it
should take as its main guideline the idea of a correspondence between the
line to be drawn and the natural separation of the various ecosystems

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formed by the aquatic fauna of the delimitation area. As the Chamber then
observed, a criterion of this kind could scarcely be adapted also to a
delimitation which had not only to divide a volume of water but had also to
effect a division of the underlying continental shelf, in respect of which the
criterion in question could not be appropriate. Conversely, it may be
remarked that, in a concrete situation where distinctive geological char-
acteristics can be observed in the continental shelf, such as might have
special effect in determining the division of that shelf and the resources of
its subsoil, there would in all likelihood be no reason to extend the effect of
those characteristics to the division of the superjacent volume of water, in
respect of which they would not be relevant. These are merely two of many
examples that could be cited.

194. In reality, a delimitation by a single line, such as that which has to
be carried out in the present case, 1.e., a delimitation which has to apply at
one and the same time to the continental shelf and to the superjacent water
column can only be carried out by the application of a criterion, or
combination of criteria, which does not give preferential treatment to one
of these two objects to the detriment of the other, and at the same time is
such as to be equally suitable to the division of either of them. In that
regard, moreover, it can be foreseen that with the gradual adoption by the
majority of maritime States of an exclusive economic zone and, conse-
quently, an increasingly general demand for single delimitation, so as to
avoid as far as possible the disadvantages inherent in a plurality of separate
delimitations, preference will henceforth inevitably be given to criteria
that, because of their more neutral character, are best suited for use in a
multi-purpose delimitation.

195. To return to the immediate concerns of the Chamber, it is, accord-
ingly, towards an application to the present case of criteria more especially
derived from geography that it feels bound to turn. What is here under-
stood by geography is of course mainly the geography of coasts, which has
primarily a physical aspect, to which may be added, in the second place, a
political aspect. Within this framework, it is inevitable that the Chamber’s
basic choice should favour a criterion long held to be as equitable as it is
simple, namely that in principle, while having regard to the special cir-
cumstances of the case, one should aim at an equal division of areas where
the maritime projections of the coasts of the States between which delimi-
tation is to be effected converge and overlap.

196. Nevertheless, it is not always the case that the choice of this basic
criterion appears truly equitable when it, and it alone, is exclusively
applied to a particular situation. The multiplicity and diversity of geogra-
phical situations frequently call for this criterion to be adjusted or flexibly
applied to make it genuinely equitable, not in the abstract, but in relation
to the varying requirements of a reality that takes many shapes and forms.
To mention only the situation involved in the present proceedings, it is a
fact that the Parties, and one of them in particular, with the aid of com-
parisons with situations considered in previous cases, persistently empha-

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sized the importance they attached to one concrete aspect or another of the
geographical situation in the present case. The Chamber cannot but re-
cognize, to a certain extent, that the concerns thus expressed were not
wholly unfounded. It does not here intend to enter into detailed consi-
derations, for it will be sufficient to note in general at this stage that, in the
present case, the situation arising out.of the physical and political geo-
graphy of the delimitation area does not present ideal conditions for the
full, exclusive application of the criterion specified at the end of the
previous paragraph. Some corrections must be made to certain effects of its
application that might be unreasonable, so that the concurrent use of
auxiliary criteria may appear indispensable. Having regard to the special
characteristics of the area, the auxiliary criterion which the Chamber has
particularly in mind is that whereby a fair measure of weight should be
given to a by no means negligible difference within the delimitation area
between the lengths of the respective coastlines of the countries concerned.
It also has in mind the likewise auxiliary criterion whereby it is held
equitable partially to correct any effect of applying the basic criterion that
would result in cutting off one coastline, or part of it, from its appropriate
projection across the maritime expanses to be divided, or then again the
criterion — it too being of an auxiliary nature — involving the necessity of
granting some effect, however limited, to the presence of a geographical
feature such as an island or group of small islands lying off a coast, when
strict application of the basic criterion might entail giving them full effect
or, alternatively, no effect.

197. At this point, accordingly, the Chamber finds that it must finally
confirm its choice, which is to take as its starting-point the above-men-
tioned criterion of the division — in principle, equal division — of the areas
of convergence and overlapping of the maritime projections of the coast-
lines of the States concerned in the delimitation, a criterion which need
only be stated to be seen as intrinsically equitable. However, in the
Chamber’s view, the adoption of this starting-point must be combined
with the parallel and partial adoption of the appropriate auxiliary criteria
in so far as it is apparent that this combination 1s necessitated by the
relevant circumstances of the area concerned, and provided they are used
only to the extent actually dictated by this necessity. By this approach the
Chamber seeks to ensure the most correct application in the present case of
the fundamental rule of international law here applicable, which requires
that any maritime delimitation between States should be carried out in
accordance with criteria that are equitable and are found more specifically
to be so in relation to the particular aspects of the case under considera-
tion.

198. The equitable nature of the criteria adopted in the light of the
circumstances of the case will emerge the more convincingly — one might
almost say tangibly — after the transition from the preliminary phase of
choosing equitable criteria to the next phase, in which these criteria are to

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be reflected in the drawing of a particular delimitation line with the aid of
appropriate practical methods.

199. As regards these practical methods, it can be said at the outset that,
given the equitable criteria which the Chamber feels bound to apply in the
case referred to it for judgment, the choice to be made is predetermined.
Methods must be chosen which are instruments suitable for giving effect to
those criteria and not other criteria of a fundamentally different kind. Just
as the criteria to which they must give effect are basically founded upon
geography, the practical methods in question can likewise only be methods
appropriate for use against a background of geography. Moreover, like the
underlying criteria, the methods employed to give them effect must, in this
particular case, be just as suitable for the delimitation of the sea-bed and its
subsoil as for the delimitation of the superjacent waters and their fishery
resources. In the outcome, therefore, only geometrical methods will
serve.

200. It would however be going too far to infer from this finding that the
practical methods suitable for use in the present case must necessarily be
identifiable with the method adopted in Article 6 of the 1958 Convention,
so that all that the Chamber need do (even if, as already stressed, it has no
obligation so to proceed) is to make use of that method, subject to the
correction of certain effects as required by any special circumstances. In
fact there are also other methods, differing from it in varying degree even
while prompted by similar considerations, which may prove equally appro-
priate or even distinctly preferable, given that the task is to delimit not only
a continental shelf, as provided for in the 1958 Convention, but also the
volume of superjacent waters. Nor should one overlook the possibility that,
over the whole course of a long delimitation line, various, though related,
methods may successively appear more appropriate to the different seg-
ments.

201. In this connection, the Chamber would emphasize the necessity of
not allowing oneself to be too easily swayed by the perfection which is
apparent a priori, from the viewpoint of equally dividing a disputed area, in
a line drawn in strict compliance with the canons of geometry, i.e., a line so
constructed that each point in it is equidistant from the most salient points
on the respective coastlines of the parties concerned. In an apposite pas-
sage of the 1969 Judgment on the North Sea Continental Shelf cases U.C.J.
Reports 1969, p. 36, para. 57), the Court showed how, in determining the
course of a delimitation line intended to “effect an equal division of the
particular area involved” between two coasts, no account need be taken of
the presence of “islets, rocks and minor coastal projections, the dispro-
portionally distorting effect of which can be eliminated by other means”.
In pursuance of this remark, the Chamber likewise would point out the
potential disadvantages inherent in any method which takes tiny islands,
uninhabited rocks or low-tide elevations, sometimes lying at a consider-
able distance from terra firma, as basepoint for the drawing of a line

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intended to effect an equal division of a given area. If any of these geo-
graphical features possess some degree of importance, there is nothing to
prevent their subsequently being assigned whatever limited corrective
effect may equitably be ascribed to them, but that is an altogether different
operation from making a series of such minor features the very basis for the
determination of the dividing line, or from transforming them into a
succession of basepoints for the geometrical construction of the entire line.
It is very doubtful whether a line so constructed could, in many concrete
Situations, constitute a line genuinely giving effect to the criterion of equal
division of the area in question, especially when it is not only a terrestrial
area beneath the sea which has to be divided but also a maritime expanse in
the proper sense of the term, since in the latter case the result may be even
more debatable.

202. Furthermore, a line which, on account of the refinements in the
technical method used to determine its course, follows a complicated or
even a zigzag path, made up of a succession of segments on different
bearings, might, if need be, seem acceptable as a boundary dividing the
sea-bed alone, i.e., a boundary to be observed in the exploration and
exploitation of the resources located in given areas of the subsoil. But there
would seem to be far less justification for adopting such a line as a limit
appropriate to maritime fishery zones, Le., areas whose exploitable
resources are not, for the most part, resources attached to the soil. Exploi-
tation of the sea’s fishery resources calls for the existence of clear boun-
daries of a constant course, that do not compel those engaging in such
activity to keep checking their position in relation to the complicated path
of the line to be respected.

203. In sum, just like the criteria to be applied to the delimitation, the
methods to be used for the purpose of putting those criteria into practice
cannot fail to be influenced by the special characteristics and requirements
pertaining to the delimitation by a single boundary of both the continental
shelf and the superjacent water column which, far from being a genuine
column of definite shape, is in reality a volume of liquid in movement,
forming the habitat of mobile fauna. Undeniably, a degree of simplifica-
tion is an elementary requisite to the drawing of any delimitation line in
such an environment.

204. The correctness of the foregoing observations will appear even
more evident as the Chamber now passes from abstract considerations to
the concrete choice and practical application of the methods it deems
appropriate for use in the case referred to it for judgment, thereby effec-
tively implementing the equitable criteria by which it has resolved to be
guided.

205. Regarding the choice and use of methods, one general observation
must be made. The delimitation line to be drawn in a given area will
depend upon the coastal configuration. But the configuration of the Gulf
of Maine coastline, on which the delimitation to be effected between the
maritime and submarine zones of the two countries depends throughout its

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length, is such as to exclude any possibility of the boundary’s being formed
by a basically unidirectional line, either over the whole distance between
the point of departure and the terminal triangle or even over the sector
between the point of departure and the closing line of the Gulf.

206. The Chamber has already considered this aspect in Section VI,
paragraphs 188-189, in commenting on the delimitation line proposed by
Canada. It then expressed its disagreement precisely in relation to the fact
that the Party in question had proposed a delimitation that failed to take
account of the fact that a change in the geographical perspective of the
Gulf is to be noted at a certain point. Given the importance of this aspect,
the Chamber considers that it will here be apposite, by way of reminder, to
repeat its observation that it is only in the northeastern sector of the Gulf
that the prevailing relationship of the coasts of the United States and
Canada is that of lateral adjacency as between part of the coast of Maine
and part of the Nova Scotian coast. In the sector closest to the closing line,
the prevailing relationship is, on the contrary, one of oppositeness as
between the facing stretches of the Nova Scotian and Massachusetts
coasts. Accordingly, in the first sector, geography itself demands that,
whatever the practical method selected, the boundary should be a lateral
delimitation line. In the second, it is once again geography which pre-
scribes that the delimitation line should rather be a median line (whether
strict or corrected remains to be determined) for delimitation as between
opposite coasts, and it is moreover geography yet again which requires that
this line, given the almost perfect parallelism of the two facing coasts
involved, should also follow a direction practically parallel to theirs.

207. In the Chamber’s view it is therefore obvious that, between point A
and the line from Nantucket to Cape Sable, considered as the closing line
of the Gulf, the delimitation line cannot be unidirectional. A line of that
nature would inevitably have the effect of neglecting either the coast of
Massachusetts or that part of the Nova Scotian coast which abuts upon the
Gulf. Either way, this would be unacceptable. In the view of the Chamber,
the conclusion imposed by geography is, therefore, that the part of the
delimitation line which is to be drawn within the limits of the Gulf of
Maine proper must be a line with two segments, meeting at a pivotal point
the most appropriate location of which remains to be determined.

208. It is therefore on the basis of this conclusion that the Chamber will
now apply itself to successively determining the two segments of that part
of the line which will run between point A and the closing line of the Gulf.
It will then go on to determine the third segment, which will remain to be
drawn between that line and the terminal triangle.

209. The first of the two segments is, then, the one belonging to the
innermost sector of the Gulf, the sector closest to the international boun-
dary terminus. As regards this sector, the Chamber is convinced that it
constitutes the most appropriate location for effecting as far as possible —
since there is no special circumstance standing in the way — an equal

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divison of the area of overlapping created by the lateral superimposition of
the maritime projections of the coasts of the two States.

210. As it indicated in its comment on the line proposed by Canada, the
Chamber has objections as to the advisability — or even the possibility — of
making use, were it only in this sector, of the technical method whereby a
lateral equidistance line, as defined by geometry and by the terms of
paragraph 2 of Article 6 of the 1958 Convention on the Continental Shelf,
would be drawn between the two adjacent coasts, and it has two grounds
for these objections. In the first place, the Chamber must point out that a
line drawn in accordance with the indications given by that provision
(“equidistance from the nearest points of the baselines from which the
breadth of the territorial sea of each State is measured”) might well epi-
tomize the inherent defects of a certain manner of interpreting and apply-
ing the method here considered, as stressed in paragraph 201 above ;
inasmuch as the likely end-result would be the adoption of a line all of
whose basepoints would be located on a handful of isolated rocks, some
very distant from the coast, or on a few low-tide elevations : these are the
very type of minor geographical features which, as the Court and the
Chamber have emphasized, should be discounted if it is desired that a
delimitation line should result so far as feasible in an equal division of the
areas in which the respective maritime projections of the two countries’
coasts overlap.

211. In the second place — and here is the main reason for the Cham-
ber’s objections — the determination in the sector envisaged of the course
of a lateral equidistance line, from whatever basepoints established, would
encounter the difficulty of the persistent uncertainty as to sovereignty over
Machias Seal Island and the Parties’ choice of point A as the obligatory
point of departure for the delimitation line. Point A was taken into con-
sideration for the purposes of the Special Agreement only as the point
where the lines then representing in graphical terms the Parties’ respective
claims happened to intersect. Hence it is not, as it should be in order to
constitute an equidistant point, derived from two basepoints of which one
is in the unchallenged possession of the United States and the other in that
of Canada. And it is equally certain that point A is not a point that can be
located on the path of any equidistance line traced by the Chamber or
constitute the starting-point of any such line.

212. The Chamber is therefore of the opinion that, on these grounds,
and the better, moreover, to ensure the effective implementation of the
criterion by which it has every reason to be guided, it is necessary to
renounce the idea of employing the technical method of equidistance. It
considers that preference must be given to a method which, while inspired
by the same considerations, avoids the difficulties of application pointed
out above and is at the same time more suited to the production of the
desired result. The essential premise of the operation, as the Chamber sees
it, is to take note of the fact that the point of departure of the delimitation

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line to be drawn, and hence of its first segment, must be point A and no
other point, whatever its justification. That understood, the Chamber
considers that the practical method to be applied must be a geometrical
one based on respect for the geographical situation of the coasts between
which the delimitation is to be effected, and at the same time suitable for
producing a result satisfying the repeatedly mentioned criterion for the
division of disputed areas.

213. Accordingly, to put the above requirements into practice, one may
justifiably draw from point A two lines respectively perpendicular to the
two basic coastal lines here to be considered, namely the line from Cape
Elizabeth to the international boundary terminus and the line from that
latter point to Cape Sable. These perpendiculars form, at point A, on one
side an acute angle of about 82° and on the other a reflex angle of about

. 278°. It is the bisector of this second angle which the Chamber considers
that it should adopt for the course of the first segment of the delimitation
line. The Chamber believes that this practical method combines the
advantages of simplicity and clarity with that of producing, in the instant
case, a result which is probably as close as possible to an equal division of
the first area to be delimited. It also believes that, in relation to the sector
under consideration, the application of this equitable criterion is not open
to any serious objections.

214. The Chamber has thus fixed the direction of the first of the two
segments of the delimitation line to be drawn within the Gulf of Maine,
and has done so from the starting-point given by the Parties. As for this
segment’s finishing point, this will be automatically determined by the
intersection of the line carrying it with the line which is to contain the next
segment. Accordingly the Chamber will now turn its attention to the
establishment of this second segment, which, though it may be the shortest,
will certainly be the central and most decisive segment for the whole of the
delimitation line.

215. For the purpose of this operation, the Chamber considers, on
account of the considerations already set forth, that it has first to make its
choice of an appropriate practical method for use in provisionally estab-
lishing a basic delimitation, and that it must then ascertain what correc-
tions to it are rendered indispensable by the special circumstances of the
case. A two-stage operation is therefore entailed.

216. The first stage involves the choice and concrete utilization of the
practical method to be applied for the above-mentioned purposes. In that
connection, the Chamber has found repeated occasion to express its con-
viction that the choice of method to be used is essentially dependent upon
geography. In this context, it need only recall the reiterated emphasis it has
laid on the necessity of according full weight to the relationship now
confronting the Chamber — a distinctly different one from that which
existed between part of the coast of Nova Scotia and the coast of Maine —
namely the relationship between the coasts abutting on the Gulf of Maine,
of Massachusetts on the one hand and of Nova Scotia on the other. More

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specifically, the Chamber would once again stress the quasi-parallelism
between the line which, on the Massachusetts coast, links the promontory
of Cape Ann to the elbow of Cape Cod and the line which, on the coast of
Nova Scotia, joins up Brier Island and Cape Sable. To use once more the
terminology to be found in conventions and case law, there can be no
doubt, in the Chamber’s opinion, that, in the locations indicated, the coasts
of the two States are opposite coasts. Here they do not possess that
relationship of lateral adjacency which underlay the determination of the
first segment of the delimitation line but face each other in confrontation.
In such a geographical situation, the application of any method of geo-
metrical origin, no matter which, including that propounded in paragraph
1 of Article 6 of the 1958 Convention, can in practice only result in the
drawing of a median delimitation line. In this specific case, such a line can
only be one approximately parallel to the approximately parallel lines of
the two opposite coasts.

217. The second stage calls perhaps for more thorough examination. To
adopt the actual median line as final without more ado would be simple
and might at first sight appear very plausible in the light of the equitable
criterion, so abundantly endorsed by the Chamber, of the equal division —
so far as feasible — of areas where the maritime projections of the coasts of
the two States overlap. Indeed it would be difficult to imagine a better
opportunity for applying this criterion than that offered by the existence of
two opposite and practically parallel coasts, midway between which it is
proposed to draw a median line. However, this would be to cling to a very
superficial view of the matter. A solution of that kind would be absolutely
legitimate if the international boundary between the United States and
Canada ended in the very middle of the coast at the back of the Gulf, in
Penobscot Bay for example, when the starting-point of the line would
accordingly have been situated offshore from that bay and practically
opposite the midpoint of the distance between the coasts of Massachusetts
and Nova Scotia. It could then have been said that the prolongation of the
median line between those coasts to the point where it met the coast at the
back of the Gulf definitively represented the perfect delimitation line
between the respective maritime areas of the two countries in the Gulf.

218. However, itis a far cry from this hypothesis to geographical reality.
The back of the Gulf is entirely occupied by the continuous coast of Maine,
1.e., a component state of the United States, and the terminal point of the
international boundary with Canada is situated much farther to the north-
east, in the Grand Manan Channel, at a corner of the rectangle which
geometrically represents the shape of the Gulf proper. That being so, it is in
the Chamber’s view impossible to disregard the circumstance, which is of
undeniable importance in the present case, that there is a difference in
length between the respective coastlines of the two neighbouring States
which border on the delimitation area. Not to recognize this fact would be
a denial of the obvious. The Chamber therefore reaffirms the necessity of
applying to the median line as initially drawn a correction which, though

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limited, will pay due heed to the actual situation. In Section VI, paragraph
157, the Chamber has recognized in principle the equitable character of the
criterion whereby appropriate consequences may be deduced from any
inequalities in the lengths of the two States’ respective coastlines abutting
on the delimitation area. As the Chamber has expressly emphasized, it in
no way intends to make an autonomous criterion or method of delimita-
tion out of the concept of “proportionality”, even if it be limited to the
aspect of lengths of coastline. However, this does not preclude the justified
use of an auxiliary criterion serving only to meet the need to correct
appropriately, on the basis of the inequalities noted, the untoward con-
sequences of applying a different main criterion.

219. The auxiliary criterion in question is, moreover, not the only one
that could equitably be employed for that purpose. The United States has
endeavoured particularly to secure acceptance of its contention that it is
necessary, in the present instance, to reject the applicability of any cri-
terion or method likely — as in the case of equidistance, in particular — to
have the effect of cutting off a given coast or part of a coast from the
seaward projection to which it is said to be entitled. The Chamber is able to
concur only in some measure with the argument of the United States. It
cannot so concur when the United States seeks to draw a parallel between
the detrimental effects upon its interests that would in its view be produced
by any application of the equidistance method in the present case owing to
the “concavity” of the coast of the United States, and those that such an
application would have produced for the Federal Republic of Germany on
account of the concavity of the German coast, if the Court in 1969 had not
adopted another solution. In fact, the Chamber considers that there are
appreciable differences between the two situations. Be that as it may,
however, in the view of the Chamber, the facts of the present case must be
considered in themselves.

220. That said, the Chamber cannot endorse Canada’s refusal to
acknowledge that there is any substance in the concern to which the United
States has given expression. Even a division by median line — which as such
would be more acceptable than a division by lateral equidistance line
where such a line is not called for — might produce an unreasonable effect
if uncorrected, in that it would attribute to Canada, simply because the
coast of Nova Scotia abuts upon the Gulf, precisely the same overall
maritime projection in the delimitation area as that country would obtain
if the entire eastern side of the Maine coast belonged to Canada instead of
the United States. Here the Chamber, in noting this fact, does not intend to
draw from it any direct conclusions, for it naturally does not propose to
double, on the basis of a new criterion, the correction which it considers
that it has already to make to the median line on account of the difference
noted in the respective lengths of the coastlines of the two countries. The
point in question does however serve to strengthen its conviction of the
need to make that correction.

221. To return to this specific task of correction, the Chamber notes
that, according to the technical information at its disposal, the total length

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of the United States coastline in the Gulf, as measured along the coastal
fronts from the elbow of Cape Cod to Cape Ann, from Cape Ann to Cape
Elizabeth and from the latter to the international boundary terminus, is
approximately 284 nautical miles. The overall length of the Canadian
coastline, as similarly calculated along the coastal fronts from the terminal
point of the international boundary to the point on the New Brunswick
coast off which there cease to be any waters in the bay more distant than 12
miles from a low-water line (45° 16’ 31” N and 65° 41’ 01” W), then from
that point across to the corresponding point on the Nova Scotian coast
(44° 53’ 49” N and 65° 22’ 47” W), thence to Brier Island, and from there to
Cape Sable, is approximately 206 nautical miles. In this respect, the
Chamber wishes to emphasize that the fact that the two coasts opposite
each other on the Bay of Fundy are both Canadian is not a reason to
disregard the fact that the Bay is part of the Gulf of Maine, nor a reason to
take only one of these coasts into account for the purpose of calculating the
length of the Canadian coasts in the delimitation area. There is no justi-
fication for the idea that if a fairly substantial bay opening on to a broader
gulf is to be regarded as a part of it, its shores must not all belong to the
same State. The Chamber would also recall that in the 1982 Judgment in
the case concerning the Continental Shelf (Tunisia/ Libyan Arab Jama-
hiriva), the Court was not deterred from including in its calculation of the
length of the coasts of Tunisia in the delimitation area the whole of the
coastal fronts of Tunisia on that area, including those of the Gulf of Gabes,
by the fact that the coasts of the Gulf are wholly Tunisian.

222. The ratio between the coastal fronts of the United States and
Canada on the Gulf of Maine as defined in the previous paragraph, is thus
1.38 to 1. In the view of the Chamber, this ratio should be reflected in the
location of the second segment of the delimitation line. For this purpose,
the Chamber considers that the appropriate method should be to apply the
ratio selected to a line drawn across the Gulf where the coasts of Nova
Scotia and Massachusetts are nearest to each other, i.e., between a point
near the northeastern tip of Cape Cod, at 42° 00’ 31” N, 70° 01’ 36” W, and
Chebogue Point, Nova Scotia (43° 43’ 57” N, 66° 07’ 18” W). In the view of
the Chamber it would then be proper to shift the median line drawn
initially between the opposite and quasi-parallel lines mentioned in para-
graph 216 above, which join, on the Massachusetts coast, the elbow of
Cape Cod to Cape Ann and, on the coast of Nova Scotia, Cape Sable to
Brier Island, in such a way as to reflect this ratio along the line Cape Cod-
Chebogue Point. Here, however, the Chamber has employed the condi-
tional tense because there still remains one aspect which, though minor,
might have some influence on the calculations. This is the presence off
Nova Scotia of Seal Island and certain islets in its vicinity. The Chamber
considers that Seal Island (together with its smaller neighbour, Mud
Island), by reason both of its dimensions and, more particularly, of its
geographical position, cannot be disregarded for the present purpose.

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GULF OF MAINE (JUDGMENT) 337

According to the information available to the Chamber it is some two-
and-a-half miles long, rises to a height of some 50 feet above sea level, and
is inhabited all the year round. It is still more pertinent to observe that as a
result of its situation off Cape Sable, only some nine miles inside the
closing line of the Gulf, the island occupies a commanding position in the
entry to the Gulf. The Chamber however considers that it would be
excessive to treat the coastline of Nova Scotia as transferred south-west-
wards by the whole of the distance between Seal Island and that coast, and
therefore thinks it appropriate to give the island half effect, so that, as
explained in the Report of the technical expert, the ratio to be applied for
the purposes of determining the location of the corrected median line will
be approximately 1.32 to 1 in place of 1.38 to 1. Since it is only a question of
adjusting the proportion by reference to which the corrected median line is
to be located, the result of the effect to be given to the island is a small
transverse displacement of that line, not an angular displacement ; and its
practical impact therefore is limited.

223. The central segment of the delimitation line will thus correspond,
over its entire length, with the corrected median line as so established. It
will begin where this line intersects, within the Gulf, the bisector drawn
from point A and constituting the first segment, and end on reaching the
oft-mentioned closing line of the Gulf. It will be noted that the meeting-
point of the first and second segments of the delimitation line, i.e., the
pivotal point where this line changes direction, is located about as far into
the Gulf as Chebogue Point, a feature of the Nova Scotian coast which
marks the transition from the part of this coast in an adjacency relationship
with the coast of Maine to the part facing the Massachusetts coast in a
relationship of oppositeness.

224. There now remains to be determined the course of the third seg-
ment of the delimitation line, 1.e., the longest portion of its entire course.
This is the segment concerning that part of the delimitation area which lies
outside and over against the Gulf of Maine. Nevertheless, it appears
beyond question that, in principle, the determination of the path of this
segment must depend upon that of the two previous segments of the line,
those segments within the Gulf which have just been described and whose
path so obviously depended on the orientation of those coasts of the
Parties that abut upon the waters of the Gulf. In fact, the portion of the line
now to be determined will inevitably, throughout its length, be situated in
the open ocean. From the geographical point of view, there is no point of
reference, outside the actual shores of the Gulf, that can serve as a basis for
carrying out the final operation required. That being so, it appears obvious
that the only kind of practical method which can be considered for this
purpose is, once again, a geometrical method. Within the range of such

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methods, the most appropriate is that recommended above all by its
simplicity, namely in this instance the drawing of a perpendicular to the
closing line of the Gulf.

225. Indeed, a line on an azimuth thus determined offers a number of
advantages in the present case. The direction of the closing line of the Gulf,
with which that line would form a right angle, corresponds generally to the
direction of the coastline at the back of the Gulf, and it will be recalled that
the United States had proposed, as a basis of departure for the second
delimitation lineit advanced, a perpendicular to the direction of that coast.
As for Canada, attention may be drawn to the fact that the strict equi-
distance line for which it originally contended, before falling back on the
proposal of a new corrected equidistance line using Cape Cod Canal as a
basepoint, would necessarily have been eventually governed by the two
most advanced basepoints consisting of the southeastern tip of Nantucket
Island, on the one hand, and Cape Sable on the other. The final segment of
the line would therefore have exactly coincided with a perpendicular to the
closing line of the Gulf. More generally, it is noteworthy that the Deputy-
Agent of Canada stated at the hearing of 4 April 1984 (morning) :

“The line in the outer area is roughly perpendicular to the closing
line of the Gulf, to the coasts of Maine and New Brunswick at the back
of the Gulf, and to the average general direction of the Atlantic coasts
of Nova Scotia and Massachusetts and Rhode Island on either side of
the Gulf.”

The orientation of the final segment of the line proposed by the Chamber is
therefore practically the same as the orientation given by the two Parties
to the final portion of the lines they respectively envisaged. Hence the
Chamber can see no reason for adopting a different orientation.

226. Such being the Chamber’s choice, the essential question remains to
be resolved, namely that of determining the precise point on the closing
line of the Gulf from which the perpendicular to that line should be drawn
seawards. However, if it is considered necessary to remain guided by
geography, all the considerations already set forth in regard to the deter-
mination of the final segment of the line militate in favour of having this
new choice coincide with the very point where the corrected median line
encounters the closing line of the Gulf. Indeed the Chamber has borne
constantly in mind the problem of determining the final segment of the
delimitation line when applying itself so meticulously to the task of estab-
lishing the previous segments. It would be unthinkable that, in that part of
the delimitation area which lies outside and over against the Gulf, the
dividing line should not follow or continue the line drawn within the Gulf
by reference to the particular characteristics of its coasts. If one were to
seek for a typical illustration of what is meant by the adage “the land
dominates the sea”, it is here that it would be found.

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227. Starting from the point indicated in the previous paragraph, the
envisaged segment of the delimitation line crosses Georges Bank between
points on the 100-fathoms depth line with the following co-ordinates :

42° 118 N 67° 11°30 W
41° 101 N 66° 17°99 W

The Chamber will return in Section VIII below (paragraphs 238 ff.) to the
consequences of this line for the division of the fishing and mineral
resources of the Bank.

228. As for the terminus ad quem of this final segment of the delimita-
tion line, a point which has to be situated within the triangle defined by
the Special Agreement between the Parties, the decisive criterion, in the
Chamber’s view, should be recognition of the fact that the delimitation to
be drawn must equitably divide the areas in which the maritime projections
of the two neighbouring countries’ coasts overlap. It will therefore coincide
with the last point the perpendicular reaches within the overlapping of the
respective 200-mile zones claimed by the two States and established from
appropriate basepoints on their coastlines.

229. In conclusion, taking point A as a fixed point and assigning letter B
to the meeting-point between the first two segments as above defined,
letter C to the meeting-point between the second and third segments on the
closing line of the Gulf, and letter D to the point where the first segment
reaches, to seaward, the last place on its path where the claims of the two
Parties overlap, the delimitation line fixed by the Chamber between the
maritime jurisdictions of Canada and the United States will be the line
successively connecting points A, B, C and D.

Vill

230. The fundamental rule of general international law governing mari-
time delimitations, the rule which provided the Chamber with its starting-
point for the reasoning so far followed, requires that the delimitation line
be established while applying equitable criteria to that operation, with a
view to reaching an equitable result. It is precisely by the adoption of a
basic criterion whose equitable character is generally admitted and has
been sanctioned by the authority of the Court, and by also resorting, where
necessity arose, to auxiliary criteria which are also equitable, and, finally,
by putting those criteria into practice through the methods judged most
appropriate to that end, that the Chamber has succeeded in drawing the
delimitation line requested of it by the Parties. Its last remaining task
before formulating its final decision will be to ascertain whether the result
thus arrived at may be considered as intrinsically equitable, in the light of

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all the circumstances which may be taken into account for the purposes of
that decision.

231. In fact, such verification is not absolutely necessary where the first
two segments of the line are concerned. Within the Gulf, Le., landward of
its closing line, it would scarcely be possible to assess the equitable char-
acter of the delimitation there carried out on the basis of any other than the
dominant parameters provided by the physical and political geography of
the area. And it is precisely those parameters which served the Chamber as
a guide in determining the parts of the line which are to take effect in this
portion of the delimitation area. Moreover, attention may be drawn to the
fact that the Parties did not make any special reference to the fishing
resources of this portion of the delimitation area when pointing out the
general importance of those resources for their economies ; neither did the
Parties refer to any explorations carried out in this sector with a view to the
discovery and exploitation of petroleum resources.

232. The question may take on a different complexion, however, in
regard to the third segment of the line, whose effect will be felt in that part
of the delimitation area which lies outside and far from the shores of the
Gulf and which, not so long ago, was part of the high seas. For present
purposes, it must be borne in mind that this final segment of the line is the
one of greatest interest to the Parties, on account of the presence of
Georges Bank. This Bank is the real subject of the dispute between the
United States and Canada in the present case, the principal stake in the
proceedings, from the viewpoint of the potential resources of the subsoil
and also, in particular, that of fisheries that are of major economic impor-
tance. Some enquiry whether, in addition to the factors provided by the
geography of the Gulf itself, there are no others that should be taken into
account, 1s therefore an understandable step. It might well appear that
other circumstances ought properly to be taken into consideration in
assessing the equitable character of the result produced by this portion of
the delimitation line, which is destined to divide the riches of the waters
and shelf of this Bank between the two neighbouring countries. These
other circumstances may be summed up by what the Parties have presented
as the data provided by human and economic geography, and they are thus
circumstances which, though in the Chamber’s opinion ineligible for con-
sideration as criteria to be applied in the delimitation process itself, may —
as indicated in Section IT, paragraph 59, above — be relevant to assessment
of the equitable character of a delimitation first established on the basis of
criteria borrowed from physical and political geography.

233. In the eyes of the United States, the main consideration here is the
historical presence of man in the disputed areas. It believes the decisive
factor here to be the activities pursued by the United States and its
nationals since the country’s independence and even before, activities
which they claim to have been alone in pursuing over the greater part of
that long period. This reasoning is simple and somewhat akin to the

98
GULF OF MAINE (JUDGMENT) 341

invocation of historic rights, though that expression has not been used.
This continuous human presence took the form especially of fishing, and of
the conservation and management of fisheries, but it also included other
maritime activities concerning navigational assistance, rescue, research,
defence, etc. All these activities, said greatly to exceed in duration and scale
the more recent and limited activities of Canada and its nationals, must,
according to the United States, be regarded as a major relevant circum-
stance for the purpose of reaching an equitable solution to the delimitation
problem.

234. On the other hand it was Canada which, in the course of the
proceedings, laid the greater emphasis on what it considered to be the
decisive importance of socio-economic aspects. However, it was not a
question, in its view, of invoking any historic rights such as might compete
with those rights on which the United States was in effect relying. The only
period which in Canada’s eyes should be regarded as relevant was the
recent one leading up to, or even continuing beyond, the time when both
States finally decided to go ahead with the institution of exclusive fishery
zones. Canada was of the view that attention should be especially con-
centrated on two aspects : the distribution of fish stocks in the various
parts of the area, and the fishing practices respectively established and
followed by the two Parties. As already noted in Section IV, paragraph 110,
it sought to erect into an equitable principle, of determining force for the
purposes of delimitation, the idea that any single maritime boundary
should ensure the maintenance of the existing fishing patterns that are in
its view vital to the coastal communities of the region in question. In other
words, the Chamber, in carrying out the delimitation, should aim to avoid
in any way harming the economic and social development of the centres of
population in Nova Scotia, bearing in mind that that development had
been possible thanks to the contribution made by the product of the
Canadian fisheries established on the Georges Bank, especially in the last
15 years.

235. The Chamber cannot adopt these positions of the Parties. Con-
cerning that of the United States, it can only confirm its decision not to
ascribe any decisive weight, for the purposes of the delimitation it is
charged to carry out, to the antiquity or continuity of fishing activities
carried on in the past within that part of the delimitation area which lies
outside the closing line of the Gulf. Until very recently, as the Chamber has
recalled, these expanses were part of the high seas and as such freely open
to the fishermen not only of the United States and Canada but also of other
countries, and they were indeed fished by very many nationals of the latter.
The Chamber of course readily allows that, during that period of free
competition, the United States, as the coastal State, may have been able at
certain places and times — no matter for how long — to achieve an actual
predominance for its fisheries. But after the coastal States had set up
exclusive 200-mile fishery zones, the situation radically altered. Third
States and their nationals found themselves deprived of any right of access

99
GULF OF MAINE (JUDGMENT) 342

to the sea areas within those zones and of any position of advantage they
might have been able to achieve within them. As for the United States, any
mere factual predominance which it had been able to secure in the area was
transformed into a situation of legal monopoly to the extent that the
localities in question became legally part of its own exclusive fishery zone.
Conversely, to the extent that they had become part of the exclusive fishery
zone of the neighbouring State, no reliance could any longer be placed on
that predominance. Clearly, whatever preferential situation the United
States may previously have enjoyed, this cannot constitute in itself a valid
ground for its now claiming the incorporation into its own exclusive fishery
zone of any area which, in law, has become part of Canada’s.

236. In any case, the purpose of the delimitation cannot conceivably be
held to lie in the maintenance of such a position, or even of its restoration in
the event of its having weakened in the course of time. To a certain extent,
moreover, the same considerations hold good as regards the position of
Canada, even if it appears undeniable that, from some aspects, the devel-
opment of this country’s fisheries is more notably a phenomenon of the
present day and has been having an obvious socio-economic impact on the
communities inhabiting certain counties of Nova Scotia. But the fact
remains that Canada, like the United States, has preferred the policy of
reserving for itself an “exclusive” fishery zone to that of free-for-all com-
petition in the exploitation of an open sea. To take such a step may give rise
to drawbacks alongside the unquestionable advantages. However, there is
no reason to consider de jure that the delimitation which the Chamber has
now to carry out within the areas of overlapping apparent as between the
respective exclusive fishery zones must result in each Party’s enjoying an
access to the regional fishing resources which will be equal to the access it
previously enjoyed de facto. Neither is there any reason why the delimi-
tation should provide a Party in certain places with a compensation
equivalent to what it loses elsewhere.

237. It is, therefore, in the Chamber’s view, evident that the respective
scale of activities connected with fishing — or navigation, defence or, for
that matter, petroleum exploration and exploitation — cannot be taken
into account as a relevant circumstance or, if the term is preferred, as an
equitable criterion to be applied in determining the delimitation line. What
the Chamber would regard as a legitimate scruple lies rather in concern lest
the overall result, even though achieved through the application of equi-
table criteria and the use of appropriate methods for giving them concrete
effect, should unexpectedly be revealed as radically inequitable, that is to
say, as likely to entail catastrophic repercussions for the livelihood and
economic well-being of the population of the countries concerned.

100
GULF OF MAINE (JUDGMENT) 343

238. Fortunately, there is no reason to fear that any such danger will
arise in the present case on account of the Chamber’s choice of delimita-
tion line or, more especially, the course of its third and final segment. This
crosses the waters covering Georges Bank at such a distance from that
feature’s extremity in the direction of the Northeast Channel as to leave on
the Canadian side the greater part of the “Northern Edge and Peak” of the
Bank, where the greatest concentrations of the sedentary species — in
particular scallop — exploited by Canadian fishermen are to be found. In
fact, according to the information furnished by Canada, in the period
1972-1976, i.e., prior to the two neighbouring countries’ institution of their
exclusive fishery zones, Canadian fishermen were responsible for the
major part of scallop landings ; the Canadian catches were taken mainly
from the “Northern Edge and Peak” of Georges Bank, while those of the
United States came mainly from the vicinity of the Great South Channel.
Thus Canada may still be sure of very nearly all the major locations of its
catches ; and it will be remembered that it is precisely the product of these
fisheries that Canada regards as important for the economy of Nova Scotia
and its ports. Conversely, the localities in which the same sedentary species
have been traditionally fished by the United States, which are clustered
mainly in the vicinity of the Great South Channel, will lie entirely on the
United States side of the dividing line. As regards lobster-fishing, the
Canadian fisheries are mainly concentrated in Corsair Canyon, on the
northeastern side of the line, whereas those of the United States are
concentrated rather on its southwestern side. In the case of other fisheries,
more particularly those concerning free-swimming fish, the calculation is
not so simple, and is necessarily less precise. By and large, however, an
examination of the statistics, which are sometimes difficult to compare,
leads the Chamber to the conclusion that nothing less than a decision
which would have assigned the whole of Georges Bank to one of the
Parties might possibly have entailed serious economic repercussions for
the other.

239. As regards the other major aspect to be viewed from the same
angle, it may be pointed out that the delimitation line drawn by the
Chamber so divides the main areas in which the subsoil is being explored
for its mineral resources as to leave on either side broad expanses in which
prospecting has been undertaken in the past and may be resumed to the
extent desired by the Parties.

240. Moreover the Chamber considers that there is no need to overes-
timate any difficulties that may arise from the division of Georges Bank,
with the resources of its waters and subsoil, resulting from the delimitation
line which it has drawn in accordance with law and with the equitable
criteria whose application is called for by the law itself. It is unable to
discern any inevitable source of insurmountable disputes in the fact that its
decision has not endorsed the single management of this Bank’s fisheries,
and the assignment to one country of the task of conserving them, which
the United States would have preferred to see instituted. Nor can it
imagine that incidents due to navigational errors or possible infringements

101
GULF OF MAINE (JUDGMENT) 344

occurring after the establishment of the delimitation line could not be
settled directly and adequately. Canada and the United States have to their
credit too long a tradition of friendly and fruitful co-operation in maritime
matters, as in so many other domains, for there to be any need to fear an
interruption of that co-operation, which clearly now becomes all the more
necessary, not only in the field of fisheries but also in that of hydrocarbon
resources. By once more joining in a common endeavour, the Parties will
surely be able to surmont any difficulties and take the right steps to ensure
the positive development of their activities in the important domains
concerned.

241. In short, the Chamber sees in the above findings confirmation of its
conviction that in the present case there are absolutely no conditions of an
exceptional kind which might justify any correction of the delimitation line
it has drawn. The Chamber may therefore confidently conclude that the
delimitation effected in compliance with the governing principles and rules
of law, applying equitable criteria and appropriate methods accordingly,
has produced an equitable overall result.

242. In accordance with Article II, paragraph 2, of the Special Agree-
ment, the course of the boundary is defined below, in the operative clause
of the present Judgment, in terms of geodetic lines connecting geographic
co-ordinates of points. Furthermore, as requested in that paragraph, the
course of the boundary has been depicted, for illustrative purposes only, on
copies of Canadian Hydrographic Service Chart No. 4003, and United
States National Ocean Survey Chart No. 13006, which have been supplied
by the Parties respectively !. An explanatory Report by the technical
expert is annexed to the Judgment. In accordance with Article IV of the
Special Agreement, the said geographic co-ordinates of points are ren-
dered on the 1927 American Datum.

' Copies of these charts, reproduced in black and white and reduced in size for ease of
handling, will be found in a pocket at the back of the fascicle containing this Judgment,
or inside the back cover of the volume of Z.CJ. Reports 1984, as the case may be. For
clarity, the delimitation line is reproduced on these copies as a red line. (Note by the

Registry.)
102
GULF OF MAINE (JUDGMENT) 345

243. For these reasons,
THE CHAMBER,
By four votes to one,

Decides

That the course of the single maritime boundary that divides the con-
tinental shelf and the exclusive fisheries zones of Canada and the United
States of America in the area referred to in the Special Agreement con-
cluded by those two States on 29 March 1979 shall be defined by geodetic
lines connecting the points with the following co-ordinates :

Latitude North Longitude West

A 44° 11% 12” 67° 16’ 46”
B 42° 53’ 14” 67° 44’ 35”
C 42° 31’ 08” 67° 28’ 05”
D 40° 27’ 05” 65° 41’ 59”

IN FAVOUR: President Ago; Judges Mosler, Schwebel; Judge ad hoc
Cohen ;

AGAINST : Judge Gros.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twelfth day of October one thousand
nine hundred and eighty-four, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government
of Canada and the Government of the United States of America respec-
tively.

(Signed) Roberto AGo,
President of the Chamber.

(Signed) Santiago TORRES BERNARDEZ,
Registrar.

Judge SCHWEBEL appends a separate opinion to the Judgment of the
Chamber.

Judge Gros appends a dissenting opinion to the Judgment of the
Chamber.

(UInitialled) R.A.
(Initialled) S.T.B.

103
GULF OF MAINE (JUDGMENT)

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DELIMITATION LINE DRAWN BY THE CHAMBER

104
GOLFE DU MAINE (RAPPORT TECHNIQUE) 347

Délimitation de la frontière maritime
dans la région du golfe du Maine

RAPPORT TECHNIQUE

PRÉSENTÉ À LA CHAMBRE DE LA COUR PAR LE CAPITAINE DE FRÉGATE DE LA
ROYAL NAVY PETER BRYAN BEAZLEY (O.B.E., F.R.I.C.S.), À LA RETRAITE,
EXPERT TECHNIQUE NOMME, EN EXECUTION DE L'ARTICLE II, PARAGRAPHE 3,
DU COMPROMIS, PAR L'ORDONNANCE DE LA CHAMBRE DU 30 MARS 1984

[Traduction]

1. Ainsi que le prévoient l'article II, paragraphe 2, et l’article IV, ali-
néa bj, du compromis, et pour assurer la concordance entre la ligne de
délimitation et la méthode utilisée pour sa construction, il est entendu
que toutes les lignes sont des lignes géodésiques.

2. En vue de l’application pratique des méthodes indiquées dans l'arrêt
pour la détermination des deux premiers segments de la ligne, les calculs
ont été faits sur le quadrillage UTM (Universal Transverse Mercator)
s'appuyant sur un méridien central 68° ouest. Lés tracés de la ligne de
fermeture du golfe et de la perpendiculaire à cette ligne ont été déterminés
d’après les azimuts géodésiques. Les calculs se réfèrent à l’ellipsoïde de
Clarke de 1866. Les points de base ayant été déterminés à une seconde
d’arc près, les positions finales de la ligne de délimitation sont elles aussi
définies en secondes d’arc entières.

3. Les positions des différents points côtiers sont dans ces conditions les
suivantes :

Nom Latitude nord Longitude ouest Carte

Extrémité S-E de

Vile de Nantuc-

ket 41° 15° 04” 69° 58’ O1” 13241 Etats-Unis
Position de la laisse

de basse mer pour

la détermination

de la limite de 200

milles 41° 15 56” 69° 57° 37” 13241 Etats-Unis
Coude du cap Cod 41° 38’ 35” 69° 57’ 15” 13248 Etats-Unis

Position sur le cap
Cod la plus pro-
che de la pointe
Chebogue 42° 00’ 31” 70° O1’ 36” 13246 Etats-Unis

105
GOLFE DU MAINE (RAPPORT TECHNIQUE)

Nom
Cap Ann
Cap Elizabeth

Point terminal de la
frontière interna-
tionale (TP 15)

Céte nord de la baie
de Fundy

Côte sud de la baie
de Fundy

He Brier (Whipple
Point)

Pointe Chebogue

Cap de Sable .

Ile Seal (pointe sud-

Latitude nord Longitude ouest

42° 38’ 12”
43° 33’ 41”

44° 46° 3573

45° 16’ 31”

44° 53° 49”

44° 14’ 11”
43° 43’ 57"
43° 23’ 22”

43° 23’ 33”

70° 34 27”
70° 12’ 02”

66° 54’ 1173

65° 41’ 01”
65° 22’ 47”
66° 23’ 50”
66° 07’ 18”
65° 37’ 23”

66° 01’ 21”

Carte

348

13279 Etats-Unis
13290 Etats-Unis

4010 Canada

4010 Canada

4324 Canada
4326 Canada
4216 Canada

4330 Canada

ouest)

4. Toutes les positions sont établies en fonction de la station origine de
la triangulation nord-américaine de 1927. Les positions des cartes cana-
diennes ont été corrigées d’aprés les indications fournies dans la lettre de
l'agent du Canada au Greffier en date du 18 avril 1984. L’annexe donne les
coordonnées UTM des diverses positions.

5. Les deux positions dans la baie de Fundy ont été déterminées par
report en tenant compte du fait que la pointe la plus orientale d’une limite
de 12 milles (en fonction des laisses de basse mer de Quaco Ledge et de la
rive sud de la baie) se trouverait approximativement a 45° 04’ 21” de
latitude nord et 65° 31’ 11” de longitude ouest.

6. Pour le calcul de la proportion des longueurs de côte, les distances vraies
suivantes, exprimées en milles marins, ont été obtenues :

Du coude du cap Cod au cap Ann 65,7
Du cap Ann au cap Elizabeth 57,9
Du cap Elizabeth au point terminal de la frontière

terrestre 160,0

TOTAL pour la façade côtière des Etats-Unis 283,6 (284)
Du point terminal de la frontière internationale à la

rive nord de la baie de Fundy 59,9
De la rive nord à la rive sud de la baie de Fundy 26,1
De la rive sud de la baie de Fundy à Whipple

Point 59,0
De Whipple Point au cap de Sable 60,9

205,9 (206).
106

TOTAL pour la façade côtière du Canada
GOLFE DU MAINE (RAPPORT TECHNIQUE) 349

Par conséquent le rapport entre les longueurs des façades côtières des
Etats-Unis et du Canada est de

1,38 à 1.
7. Pour déterminer le tracé de la bissectrice, constituant le premier seg-

ment de la ligne, les gisements par rapport au quadrillage UTM se défi-
nissent comme suit :

Point terminal de la frontière terrestre au cap Elizabeth 243° 16’ 24”
Point terminal de la frontière terrestre au cap de Sable  145° 09’ 30”

(par conséquent les perpendiculaires à ces lignes tracées à partir du point À
sont, respectivement, à

333° 16° 24”
55° 09’ 30”
et la bissectrice correspond au gisement suivant dans le quadrillage :
194° 12’ 57”).
8. Pour déterminer la direction de la ligne médiane, qui constitue la base
du deuxième segment de la ligne de délimitation, il convient de tenir

compte d’un changement d’échelle entre les extrémités sud-est et nord-
ouest des deux lignes qui en commandent le tracé

Du coude du cap Cod au cap Ann 336° 36’ 3275
Du cap de Sable 4 Whipple Point 325° 07’ 1479

9. Un point situé à mi-chemin entre Whipple Point et la ligne cap Ann-
cap Cod aura dans le quadrillage, 4 partir de Whipple Point, un gisement
de

240° 51° 53°77
et coupera la ligne à la position
1) 42° 32’ 2976 N 70° 30’ 4978 W.
Après correction d’échelle, le point milieu de la ligne se trouve à
2) 43° 24’ 2770 N 68° 29’ 0370 W.
10. De même, un point à mi-chemin entre le coude du cap Cod et la ligne

Whipple Point-cap de Sable se trouve sur le gisement inverse qui coupe la
ligne a

3) 43° 24’ 38"4N 65° 38’ 3177 W
et le point milieu corrigé est
4) 42° 32’ 5071 N 67° 49’ 4279 W.

107
GOLFE DU MAINE (RAPPORT TECHNIQUE) 350

11. Le gisement dans le quadrillage de la droite joignant ces deux points
milieux corrigés est la direction de la ligne médiane, à savoir :

150° 52’ 3473.

12. Pour déterminer la position du deuxième segment de la ligne, j’inter-
prète les instructions données par la Chambre comme signifiant qu’un
demi-effet doit être attribué à l’île Seal en appliquant la proportion selon
laquelle la ligne entre la pointe Chebogue et le point le plus proche du cap
Cod (la ligne de positionnement) doit être divisée. Pour cela, l’île Seal doit
être considérée en rapport avec la pointe Chebogue et la ligne de posi-
tionnement plutôt qu’avec la côte la plus proche de ladite île.

13. La longueur (géodésique) vraie de la ligne de positionnement est
de

372 088 mètres
et le gisement dans le quadrillage à partir de la pointe Chebogue est de
239° 04’ 3671.

Une ligne parallèle à la ligne cap de Sable-Whipple Point (représentant la
façade côtière de la Nouvelle-Ecosse) tracée à partir de l’extrémité sud-
ouest de l’île Seal coupe la ligne de positionnement à la distance vraie de
14 234 mètres de Chebogue Point. Un point situé sur la ligne de position-
nement à 7117 mètres de la pointe Chebogue représenterait dans ces
conditions une position théorique donnant un demi-effet à l’île. Si l’on
applique la proportion de 1,38 à 1 à la ligne de positionnement entre le cap
Cod et le point donnant un demi-effet à Vile, la ligne se trouve divisée à un
point à 153 349 mètres du point de demi-effet, soit

160 466 mètres (distance dans le quadrillage 160 418 mètres)

à partir de la pointe Chebogue. Cela représente une division de toute la
ligne de positionnement selon un rapport de 1,319 à 1 (1,32 à 1). Les
coordonnées de ce point sont

(5) 43° 00’ 1978 N 67° 49 5677 W.
14. Une ligne ayant dans le quadrillage un gisement de 150° 52’ 3473 à
partir de ce point coupe la bissectrice tracée de A 4 la position
B 42° 53 14” N 67° 44! 35" W
constituant le premier point de changement de direction de la ligne de

délimitation. Une ligne de méme gisement coupe la ligne géodésique entre
Nantucket et le cap de Sable a la position

C 42° 31 08" (,35) N 67° 28 05” (,33) W
qui constitue le second point de changement de direction de la ligne de
délimitation.

108
GOLFE DU MAINE (RAPPORT TECHNIQUE) 351

15. L’azimut de la ligne géodésique entre Nantucket et le cap de Sable à
la position C est

N E
56° 39’ 49”
S WwW
de sorte que la perpendiculaire requise a un azimut de
S 33° 20’ 11” E.

Le dernier endroit sur le parcours de cette perpendiculaire où les reven-
dications des deux Parties se chevauchent est un point situé 4 200 milles
marins du point le plus proche de la laisse de basse mer des Etats-Unis
d'Amérique. Le point pertinent de la laisse de basse mer est indiqué au
paragraphe 3 ci-dessus, et intersection entre la perpendiculaire et un arc
de 200 milles marins tracé à partir de ce point se trouve à la position

D 40° 27 05" N 65° 41" 59” W

qui est en outre dans la zone spécifiée à l’article II du compromis.

16. La ligne de délimitation est donc définie par des lignes géodésiques
joignant successivement les positions suivantes, dont les coordonnées sont
indiquées en fonction de la station origine de la triangulation nord-amé-
ricaine de 1927:

A 44° 11712” N 67° 16’ 46” W

B 42° 53’ 14” N 67° 44’ 35” W

C 42° 31’ 08” N 67° 28’ 05” W

D 40° 27°05” N 65° 41’ 59” W.
Cette ligne coupe l’isobathe des 100 mètres qui définit le banc de Georges
sur la carte canadienne 8005, aux positions :

42° 11:8 N 67° 110 W
et 41° 1071 N 66° 1739 W

mais ces positions ne font pas partie de la définition de la ligne de déli-
mitation.

Fait en un exemplaire, en langue anglaise, 4 La Haye, le 3 octobre
1984.

(Signé) P. B. BEAZLEY.

109
GOLFE DU MAINE (RAPPORT TECHNIQUE)

ANNEXE AU RAPPORT TECHNIQUE

352

Liste des coordonnées rectangulaires sur la projection de Mercator
de certaines positions mentionnées dans le rapport. Méridien central
68° ouest ; ellipsoide de Clarke de 1866.

Position

Coude du cap Cod

Position sur le cap Cod la plus
proche de la pointe Chebogue

Cap Ann

Cap Elizabeth

TP 15

Whipple Point
Pointe Chebogue

Cap de Sable
Ile Seal

A

(1)

(2)

(3)

(4)

(5)

B

C

” Abscisse
337 251,1

332 170,6
288 940,0
322 270,6
586 787,5
627 994,2
651 274,2
692 521,4
660 159,4
557 590,2
293 572,8
460 796,9
690 908,9
514 074,6
513 658,6
520 972,0
543 688,4

Ordonnée
4 611 778,0

4 652 505,7
4 723 466,6
4 825 296,1
4 958 487,9

4 899 161,2

4 843 661,5
4 806 592,0
4 806 086,4
4 892 641,9
4 712 756,3
4 805 966,2
4 808 905,2
4 710 338,6
4 761 224,3
4 748 097,5
4 707 324,0

(La position C se trouve sur la ligne géodésique entre le cap de Sable et
Nantucket à 7 mètres environ de la ligne de quadrillage joignant ces

points.)

110