OCEAN PLANNING AND THE GULF OF MAINE: EXPLORING BI-NATIONAL POLICY OPTIONS

Over the twenty-five years since a special Chamber of the International Court of Justice (ICJ) issued its decision in the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Gulf of Maine Case), legal scholars have written extensively on the significance of the ruling to influence Canada-U.S. relations specifically, and international arbitration in general.2 While the rationale behind any particular scholar’s interest in the case has varied over the years, its significance in informing deliberation surrounding maritime boundary delimitation owes much to the fact that the case presented many “firsts.” Among these were: the use of a special Chamber of the Court; the decision by Canada to submit the dispute to an international tribunal on its own behalf;4 and the request that a decision be made on a “single maritime boundary” that would include, not only the seabed beyond the limits of the territorial sea, but also the water column. In addition to its uniqueness, the significance of this request for a single boundary to delineate both seabed and fisheries resources has led many scholars, and even one of the judges of the Chamber, to question the legality and appropriateness of the request. As only the third case of maritime boundary delimitation to be heard by the Court at the time, the Gulf of Maine Case highlighted the Chamber’s novel use of a hierarchy of principles, equitable criteria, and practical methods in reaching its decision. At the same time, it has been subject to much criticism. Commentators have noted that the challenge of maritime boundary delimitation is to “reconcile conflicting claims to a maritime extension of coasts that differ in configuration, length and position in relation to the area to be delimited.” While solutions to this problem have been attempted in decisions rendered by the Chamber and the full Court over its sixty-five year history, assessing these judgments for guidance on maritime boundary delimitation is not the aim of this Article. Rather, its purpose is to focus on the issues confronting Canada and the United States after the Gulf of Maine decision was rendered and to explore how these two “friendly” neighboring states have attempted to pursue the principles of cooperation and agreement following the decision of the Court. As such, this Article is structured around five key components and is aimed at: (1) highlighting the underlying economic rationale behind why the two neighboring countries of Canada and the United States sought to clarify a single maritime boundary in the Gulf of Maine; (2) identifying the challenges confronting the parties in managing their ocean resources, after ownership had been established, particularly in light of growing energy-related exploitation demands; (3) discussing mechanisms for ocean planning and management adopted by each party to utilize its living and non-living resources; (4) presenting two examples of existing bilateral cooperation from which lessons can be gleaned for future collaborative efforts; and (5) identifying policy options and an implementation mechanism for transboundary cooperation in the Gulf of Maine that could potentially meet the objectives of both countries as they seek to implement marine spatial planning in their respective maritime zones.

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