CANADA

A historic mapping of ocean rights

Gillian MacKay October 22 1984
CANADA

A historic mapping of ocean rights

Gillian MacKay October 22 1984

A historic mapping of ocean rights

CANADA

Gillian MacKay

The most immediate interest was among the fishing fleets of Nova Scotia and New England, anxious to learn at last what spans of coastal ocean would be theirs. But the impact of a world court decision dividing the waters into national economic zones would be felt far beyond the fish wharves of Lunenberg, N.S., or Narragansett, R.I. The arbitration of overlapping Canadian and U.S. boundary claims by the International Court of Justice in The Hague would effectively allocate rights to undersea resources. It would offer guidelines for settling comparable disputes elsewhere. The court’s decision last Friday would also color CanadaU.S. relations in general—three other ocean boundary conflicts between them in particular—and help shape international maritime law. Said Charles Doran, director of Canadian studies at the Johns Hopkins School of Advanced International Studies in Washington, D.C.: “What is key here is not so much this case as what it means for other cases.”

With so much at stake, arbitration of the Atlantic water boundary was aptly protracted, expensive and ponderous. After three years of legal proceedings, more than $15 million in costs and 90,000 pages of documents, the case came to an august conclusion in the Great Hall in the United Nations court. At the bench beneath four glowing stained-glass windows in the wood-panelled chamber, wearing a black robe with a white jabot at his throat, Judge Roberto Ago of Italy delivered the majority decision of the five-judge panel in a reading that took almost four hours. Judge André Gros of France dissented. Ago, the president of the panel that included Canadian, U.S., West German and French jurists, read in hoarse, halting French to an audience of 200 Canadian and U.S. legal experts and diplomats.

Faced with opposing claims to the 30,000-square-mile wedge of ocean, which includes the bountiful Georges Bank fishing ground and potential seabed oil and gas reserves, the ruling basically split the difference between the North American neighbors. Still, Canadian officials hailed the saw-off as a modest victory. As federal Fisheries Minister John Fraser put it later in Halifax, “We didn’t get as much as we thought we might, but it was not as bad as we might have feared.”

As news of the ruling reached fishing centres on the southwestern shore of Nova Scotia, reaction ranged from disappointment to relief. Canada had sought roughly one-third of the Georges Bank and received about one-sixth. The catch from the bank contributes an estimated $140 million annually and 3,600 jobs to the Nova Scotia economy. As long as the dispute lasted, the Canadians were free to fish the area claimed. Now fishermen must pull back and await a negotiated arrangement for allocating catches. Jess Frontain, chairman of the Fisheries Council of Canada, a fish processors organization, said the scallop industry will suffer. “There will be a reduction in the fleet, there will be a reduction in the labor force for sure, so it is very disappointing to us,” Frontain said.

Still, Allan Billard of the Halifaxbased Eastern Fishermen’s Federation said it could have been worse, especially if the United States had won its claim to the whole bank. “We knew that any line was going to be a loss—we just hoped that we weren’t going to lose everything,” he said. And Ken Sweeney, who owns a dozen scallop boats in Yarmouth, said the slice of the bank awarded Canada is the historical Nova Scotia fishing ground. Said Sweeney: “I’m extremely

pleased. I think it is something we can easily live with.”

Although Canada won only half its claim, it now controls the coveted northeastern peak of the bank, a rich area for scallop and lobster and a major spawning ground for haddock. John Leefe, Nova Scotia fisheries minister, said the peak encompasses half the scallops in the area, the same ratio it has caught in recent years. He said the court-drawn boundary also gives Canadian fishermen access to more cod, haddock and lobster than under a draft 1979 treaty which was negotiated between Canada and the United States but was scuttled by Washington in 1981. A senior Canadian official said in The Hague that the Canadian zone also holds greater promise for oil and gas discoveries than the U.S. portion, although that contention was dismissed by American officials as “speculative.” Canadian scientists estimate the region could contain as much as 1.1 billion barrels of oil and 5.3 trillion cubic feet of natural gas.

Officially, the United States withheld reaction.

Explained state depart-

ment spokesman John Hughes: “It’s a 400-page judgment. We need some time to digest it.” But Mary Beth Cardozza, staff expert on fisheries for Republican Senator William Cohen of Maine, expressed disappointment. “We expected some kind of compromise but we are not happy with this. Canada got more than it could have expected.” Charles Follett, president of the Port Judith, R.I., Fishermen’s Co-operative Association Inc., was even more direct. “We got screwed,” he said.

In its ruling the world court rejected the rival claims as being based on “false premises,” and the panel majority devised its own technical criteria to reach an “equitable solution.” The four panelists agreeing were Ago, Hermann Mosler of West Germany, Stephen Schwebel of the United States and jurist Maxwell Cohen of Ottawa, who was specially assigned for the case because Canada is not represented on the regular 15judge bench. Cohen, 74, is a specialist in international law and a former cochairman of the U.S.-Canada International Joint Commission, which oversees freshwater boundaries. Gros of France proposed a jagged boundary equidistant from each coastline, while the majority drew a compromise line that took account of the rival arguments.

The majority decision, as the first such determination of a maritime boundary comprising both water and the continental shelf, sets potential precedents for a global array of disputes that followed general acceptance in the 1970s of 200-mile coastal zones of economic jurisdiction. Three ocean boundary disputes between Canada and the United States remain: in the Strait of Juan de Fuca between British Columbia and Washington state; in the Dixon Entrance between British Columbia and

Alaska; and in the Beaufort Sea between the Yukon and Alaska. Negotiations on those areas were suspended in 1979 pending the outcome of the East Coast tussle. Canada also has maritime boundary differences with the French islands of St. Pierre and Miquelon off Newfoundland and with Greenland in the Arctic. Lawyers, wary about gauging the impact of the Hague decision on other cases, are studying the fine print.

Arguments between Canada and the United States over the Georges Bank fishing grounds date from the early 19th century. The most recent attempt to set the boundary began in July, 1970. Canada claimed that it should be drawn from equidistant points on Canadian and U.S. coasts—excluding Cape Cod as “an extraordinary protuberance.” The United States contended that the whole area was a natural geological extension of its continental shelf. Each country also claimed a long tradition of fishing in the Georges Banks, a point pressed by a 12member Canadian team in The Hague led by Leonard Legault, legal adviser to the external affairs department. At one point, Davis R. Robinson, the chief U.S. legal adviser, told the court that the banks were “as American as apple pie.” In fact, long-distance trawlers from the Soviet Union and Eastern Europe accounted for the bulk of fishing in the area until 1977, when both Canada and the United States claimed 200-mile fishing zones and barred most foreigners.

In the absence of a Canada-U.S. agreement, each country was fishing the Georges Banks according to its own laws. The situation rankled with Canadian fishermen. They claimed that Ottawa limited them while U.S. fishermen were unrestricted. Eventually, both sides acknowledged the serious threat to the scallop stocks posed by overfishing, and, since 1981, each country has imposed voluntary restraints designed to maintain the shellfish stocks. Although the boundary is settled, the issue of managing the 16 fish species in the area remains. Said Sandy MacLean, deputy minister of the fisheries department in Nova Scotia: “There has to be an equitable arrangement, otherwise one side or the other could massacre the entire stock.” But the process could prove difficult. As one senior U.S. official said in The Hague: “Whether or not this will be resolved ami3 cably I don’t know, but there is going to be a fishing problem.”^