The Dispute

The Gulf of Maine is located southwest of the provinces of Nova Scotia and New Brunswick and east-southeast of the states of Maine and Massachusetts. It contains rich fishing grounds, most notably on the shallow Georges Bank, which historically was located in international waters — beyond the territorial sea. In 1977, Canada and the United States claimed fisheries zones out to 200 nautical miles that overlapped on the eastern portion of Georges Bank. ^{Footnote 13} The 8,648-square-nautical-mile overlap was due to the methods used to delimit the extent of maritime boundaries. While Canada delimited its zone in the Gulf of Maine through a straightforward application of the equidistance principle, the United States drew a modified equidistance line that took into account “special circumstances,” especially the shape of the seafloor. ^{Footnote 14}

Map 1: Limits of fishery zones and continental shelf claimed by the parties, 1 March 1977 (taken from Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America), [1984] ICJ Rep 246 at 285).

Resolution Efforts

In 1979, Canadian and US negotiators signed two treaties that were then sent to the US Senate for its “advice and consent” to ratification. The East Coast Fisheries Agreement provided for a complicated regime of transboundary fishing rights but was never put to a vote due to opposition from the US fishing industry. ^{Footnote 15} However, the Agreement to Adjudicate the Maritime Boundary received the Senate’s advice and consent. ^{Footnote 16} In this second treaty, Canada and the United States agreed to submit the dispute to a “chamber” made up of five members of the International Court of Justice (ICJ). ^{Footnote 17} They asked the chamber to delimit a single maritime boundary — that is, for both the continental shelf and the EEZ. They excluded from the chamber’s mandate the seabed and waters around Machias Seal Island (discussed below) and did so by instructing that the delimitation begin at a designated point “A” south of that feature.

In 1984, the chamber delimited a boundary out to 200 nautical miles from the US coast that divided the disputed zone almost exactly in half. ^{Footnote 18} However, the end point of the adjudicated line was only 175.5 nautical miles from the Canadian coast and, as a result, 163 square nautical miles of water column and seabed located within 200 nautical miles of the Canadian coast were left unresolved. Canada’s jurisdiction to regulate fishing in that small area, beyond the US 200-nautical-mile limit but south of the equidistance line, has not been accepted by the United States. ^{Footnote 19}

Drivers

According to Christopher Kirkey, the decision to focus Canada–US negotiating efforts on this dispute was prompted by a series of developments in 1978, including “the unrestricted fishing of cod, haddock, pollock and scallop species by U.S. vessels in the Gulf of Maine” and “the reciprocal barring of Canadian and American fishing vessels from the other’s waters.” ^{Footnote 20} These developments led to a “growing concern about the risk of being plunged into a British-Icelandic type of fish war without either side wishing it.” ^{Footnote 21} Another factor was the potential for oil and gas in the Gulf of Maine and the fact that both countries had already issued exploration licenses there. ^{Footnote 22} All of this created a situation in which, according to US negotiator David Colson, “an agreement was essential in light of the high level of human activity which occurred in the disputed area.” ^{Footnote 23} Finally, McDorman reports that the resort to adjudication rather than negotiation was caused, in part, by “the unwillingness of either the Canadian or U.S. governments to be tarred by the concerned domestic constituencies with having compromised the national position.” ^{Footnote 24}

The Dispute

Machias Seal Island is a tiny feature (0.08 square kilometres), located about eight nautical miles from Maine and ten nautical miles from New Brunswick, that is disputed between Canada and the United States. The dispute extends to two nearby islets, Gulf Rock and North Rock, as well as the surrounding water column and seabed, an area of around 210 square nautical miles. The water column and seabed are at issue because resolving the dispute over the island will determine on which side the maritime boundary is located. The dispute over the island itself dates back to the 1783 Treaty of Paris, which assigned the newly independent United States all islands within twenty leagues (sixty nautical miles) of their coast. ^{Footnote 25} However, the treaty also excluded any island that was ever part of Nova Scotia, and a 1621 Letters Patent issued by King James I for the purposes of establishing the colony of Nova Scotia includes Machias Seal Island. The western portion of Nova Scotia later became New Brunswick. In addition to the Treaty of Paris, the United States’ position is based on the proximity of Machias Seal Island to the US mainland. In addition to the British land grant, Canada’s position is based on the presence of a British (and then Canadian) lighthouse on the island since 1832 — something the United States did not protest until 1971.

Map 2: Machias Seal Island (from David H. Gray, “Canada’s Unresolved Maritime Boundaries” (1997) 5:3 International Boundaries Research Unit (IBRU) Boundary & Security Bulletin 61 at 66).

Resolution Efforts

In 1979, the dispute over Machias Seal Island and the surrounding water and seabed was excluded from the mandate of the chamber of the ICJ established to resolve the maritime boundary farther out in the Gulf of Maine. In its judgment, the chamber explained this decision on the basis that “the Parties wish to reserve for themselves the possibility of a direct solution of this dispute.” ^{Footnote 26}

Drivers

Machias Seal Island and the surrounding seabed and waters have little economic value. No oil or natural gas has been discovered in the area. Although the surrounding waters contain lobsters, which have been the subject of friction between Canadian and US fisherman, the potential fishery is not particularly large, and the two governments have exercised restraint, including by adhering to a policy of flag-state enforcement. ^{Footnote 27} These factors help to explain why the dispute has been left unresolved. As Donald McRae told the Globe and Mail in 2012, “every now and then it crops up as an issue between the two parties, and then they just simply try to put aside because I don’t think either side is interested in dealing with it.” ^{Footnote 28}

The “possibility of a direct solution” may not have been the real reason why the dispute over Machias Seal Island and the surrounding seabed and water was excluded from the mandate of the chamber of the ICJ. Governments often find it more difficult to give up (or risk giving up) territory because land generally has more domestic political significance than seabeds or water. As Bernard Oxman has explained, “maritime boundary issues do not normally seem to engage the same level of political attention as many disputes over land territory. The resultant agreements are often viewed as economic or technical.” ^{Footnote 29}

Machias Seal Island also constitutes a zero-sum negotiating situation, with most of the foreseeable results involving one country obtaining uncontested title to the exclusion of the other. This zero-sum outcome could be balanced with concessions elsewhere — for instance, in a multi-boundary package deal — or it could be overcome through the creation of a condominium, whereby both countries would share sovereignty over the island, enabling the drawing of a maritime boundary up to the low water mark at both ends. But the United States was opposed to a package deal in 1977–78, and condominiums, although not unprecedented, are rare in international law. ^{Footnote 30} Finally, it is possible that the interests of subnational governments were in play. Any Canadian concession on Machias Seal Island would diminish the size of New Brunswick, thus bringing that province’s interests (and perhaps constitutional rights) into play. Similar considerations would seem to apply vis-à-vis the state of Maine.

The Dispute

The Beaufort Sea is the shallow portion of the Arctic Ocean located between Alaska and Canada’s High Arctic islands, just north of the Mackenzie River delta. The dispute over the location of the boundary began in 1976 when the United States protested the line that Canada was using while issuing oil and gas concessions. ^{Footnote 31} The existence of the dispute was confirmed the following year when both countries delineated fishing zones out to 200 nautical miles and used different lines. ^{Footnote 32} The dispute is centred on the wording of a treaty concluded between Russia and Britain in 1825 (the United States took on Russia’s treaty rights when it purchased Alaska in 1867; Canada acquired Britain’s rights in 1880). ^{Footnote 33} The treaty sets the eastern border of Alaska at the “meridian line of the 141st degree, in its prolongation as far as the frozen ocean.” ^{Footnote 34} Canada claims that this treaty provision establishes both the land border and the maritime boundary and that both must follow the 141-degree meridian straight north. In contrast, the United States argues that the treaty’s delimitation applies to land only and that regular methods of maritime boundary delimitation apply beyond the coastline. In the case of the Beaufort Sea, the United States sees an equidistance line as the legally and geographically appropriate approach. ^{Footnote 35} Since the coast of Alaska, the Yukon, and the Northwest Territories slants east-southeast from Point Barrow, Alaska, to the mouth of the Mackenzie River, such an equidistance line trends progressively further east of the line that Canada prefers at the 141-degree-west meridian, running in a roughly north-northeast direction from the terminus of the land border to the 200-nautical-mile limit. As a result, within that distance from shore, an approximately 6,250 square nautical mile pie-shaped disputed sector was created. ^{Footnote 36}

Map 3: Beaufort Sea: US and Canadian claims (from Sovereign Geographic, online: <http://www.sovereigngeographic.com>).

Resolution Efforts

Drivers

The Dispute

In 1903, the United States and Britain established an arbitration panel to delimit the border between the Alaska Panhandle and British Columbia. ^{Footnote 58} At the southern end of the panhandle, the panel drew a boundary down the middle of Portland Canal to just south of where it opens into Dixon Entrance, a roughly seventy-five-nautical-mile-long, thirty-nautical-mile-wide body of water that connects the mainland coast to the open sea just to the north of Haida Gwaii (formerly the Queen Charlotte Islands). The panel designated that point just south of the mouth of Portland Canal as Point B and drew a straight line from there to Point A at Cape Muzon on Dall Island, seventy-two nautical miles away. ^{Footnote 59} The resulting “A-B line” runs along the north side of Dixon Entrance.

Canada’s position is that Points A and B are part of the arbitrated boundary delimitation, just like the other turning points, thus giving all of Dixon Entrance to Canada. The United States claims that the A-B line simply allocates title over land, leaving the maritime boundary to be decided in accordance with international law — in its view, the equidistance principle. In 1977, the United States used the equidistance principle to define a fisheries conservation zone through the length of Dixon Entrance. The difference between the Canadian and US positions amounts to 828 square nautical miles, which is spread over two areas south of the A-B line. Two small areas north of the A-B line but south of the equidistance line are, curiously but logically, not claimed by either country.

The dispute also has consequences seaward of Dixon Entrance since the location of the boundary between the two countries’ 200-nautical-mile EEZs, which Canada and the United States agree should be delimited according to equidistance, depends on the boundary that is closer inshore for its starting point. Canada’s preferred line starts at Point A and the United States’ preferred line starts at a point equidistant between Cape Muzon and Langara Island (the northernmost part of Haida Gwaii). ^{Footnote 60}

Map 4: Dixon Entrance (from David H. Gray, “Canada’s Unresolved Maritime Boundaries” (1997) 5:3 IBRU Boundary & Security Bulletin 61 at 62).

Resolution Efforts

In 1945, Canadian and US negotiators reached a tentative settlement of the Dixon Entrance dispute whereby citizens of both countries would, outside of the respective three-nautical-mile territorial seas, have the right to fish and navigate on either side of an equidistance boundary. However, the Canadian government pulled back from the settlement in the face of objections from the British Columbia government. ^{Footnote 61} In 1977, Dixon Entrance was one of the disputes included in Canada’s proposal for a package deal — a proposal that failed to receive support from the United States because of that country’s refusal to bundle disputes when negotiating.

Drivers

The Dispute

The boundary between Canada and the United States within the Strait of Juan de Fuca was settled in 1846, ^{Footnote 69} but the development of offshore rights in the mid-twentieth century led to the emergence of a new dispute just west of the strait in the Pacific Ocean. The dispute involves just 15.4 square nautical miles of EEZ, spread over two lens-shaped areas. The continental shelf is very narrow west of Juan de Fuca Strait, and the potential for oil and gas is therefore limited. However, there are salmon and halibut stocks on Swiftsure Bank, part of which falls within the lens-shaped area located closest to shore. Canada and the United States agree that the equidistance principle should be applied. The dispute turns on Canada’s straight baselines, which it adopted along the indented southwest coast of Vancouver Island in 1969. The United States immediately objected on the basis that the baselines were constructed “contrary to established principles of international Law of the Sea.” ^{Footnote 70}

The dispute became salient in 1977 when Canada declared a 200-nautical-mile-wide fishing zone. The zone was delimited using an equidistance line that was based on Canada’s straight baselines to the north and the low water mark along the US coast to the south. That same year, the United States declared its own fisheries zone, which it delimited using an equidistance line based on the low water lines of both coasts. The United States, in addition to disputing the legality of Canada’s straight baselines, contests whether straight baselines are appropriately used for the purpose of delineating an equidistance boundary.

Map 5: West of Juan de Fuca Strait (from David H. Gray, “Canada’s Unresolved Maritime Boundaries” (1997) 5:3 IBRU Boundary & Security Bulletin 61 at 61).

Resolution Efforts

Apart from Canada’s inclusion of the dispute within its proposed package deal in 1977, no negotiations have taken place. According to Ted McDorman, “[t]he small area of disputed waters seaward of the Juan de Fuca Strait has caused little concern and has not been the subject of Canada-U.S. discussions.” ^{Footnote 71}

Drivers

There is no evidence of pressure from the fishing industry to resolve the dispute. As in the situation with Dixon Entrance, the cooperative management of the fishery under the Pacific Salmon Commission, combined with flag state enforcement, has created a workable situation for both sides. ^{Footnote 72} For this reason, public opinion does not play any role since very few Canadians and Americans are even aware of the existence of the dispute. There is some degree of regional interest, with the province of British Columbia expressing the view in the 1970s that the boundary should follow the underwater “Juan de Fuca Canyon” rather than an equidistance line. ^{Footnote 73}

As in the other Canada–US boundary disputes, both countries seem concerned that compromising on a principle of delimitation in one instance could weaken their position in another. Added to this, the same concern may exist over the law governing straight baselines. Indeed, the Canada–US dispute seaward of Juan de Fuca Strait could be linked to a dispute over straight baselines in the Arctic. When Canada adopted straight baselines around its high Arctic archipelago in 1985, they were immediately protested by the United States and the European Community. ^{Footnote 74} Both Canada and the United States might therefore be concerned that any compromise on straight baselines along Vancouver Island could weaken their position in the Arctic, where the dispute over straight baselines is linked to the much more significant dispute over the status of the Northwest Passage.

The Dispute

In 1970, Canada extended its territorial sea from three to twelve nautical miles. ^{Footnote 75} When doing so, it overlooked that the new limit extended at several points more than halfway across Nares Strait, the narrow channel between Ellesmere Island and Greenland. ^{Footnote 76} Once this consequence was realized, boundary negotiations with Denmark commenced. The boundary under negotiation was potentially quite extensive because Greenland lies within 400 nautical miles of the long eastern coastlines of both Ellesmere Island and Baffin Island, each of which is larger than the United Kingdom.

Resolution Efforts

In 1973, Canada and Denmark agreed to divide the ocean floor using an “equidistance line” — that is, a line that at every point (or, in this case, a series of agreed “turning points”) is an equal distance from the nearest point on each of the two opposing (or, in other cases, adjacent) coasts. ^{Footnote 77} Since then, the two countries have also used the resulting 1,450-nautical-mile boundary to define their fishing zones, meaning that the continental shelf delimitation has informally become an all-purpose maritime boundary. ^{Footnote 78} One provision of the Agreement on the Continental Shelf between Greenland and Canada addresses the possibility of hydrocarbon reserves straddling the new boundary. ^{Footnote 79} But unlike some more modern maritime boundary treaties, it only requires that the parties negotiate in these circumstances rather than providing a process or mechanism for resolving the matter.

The treaty does have one unusual element — namely, the way it deals with a disputed island located on the equidistance line. Hans Island, with an area of only 1.3 square kilometres, is not mentioned in the treaty. ^{Footnote 80} Rather, the maritime boundary stops just short of the south shore of the island and begins again just off the north shore of the island. As a result, the dispute over Hans Island has been rendered nearly irrelevant since it is now only about a tiny amount of land, with the surrounding seabed and water column having been allocated by treaty (and practice consistent with that treaty). Although the dispute over the island continues, neither country seems to take it very seriously. ^{Footnote 81}

Map 6: Canada–Greenland continental shelf boundary (from Canadian Hydrographic Service Chart 7000, rev. ed. (12 December 1969)).

Drivers

In 1973, there was only a small amount of commercial fishing in the southern portion of Baffin Bay. The fishery, which is mostly for turbot and shrimp, has grown in the ensuing decades and has led to several small disputes between Canada and Greenland over “straddling stocks” — that is, fish populations that move back and forth between the EEZs of different countries or between an EEZ and the high seas. ^{Footnote 82} There was some interest in the potential for oil and gas in Baffin Bay, which is made up entirely of continental shelf. In 1971, Shell obtained exploratory leases from the Canadian government for 860 square kilometres near the eastern entrance of Lancaster Sound. ^{Footnote 83} In the ensuing decades, some exploratory drilling has taken place in Baffin Bay, although only on the Greenland side and, so far, without any commercially viable deposits being found. As Bernard Oxman explains, “Canada and Denmark are said to have been motivated by the desire to avoid future disputes in a largely unsettled area where Greenland faces the Canadian Arctic.” ^{Footnote 84}

The Dispute

The Lincoln Sea is the portion of the Arctic Ocean located directly to the north of Greenland and Ellesmere Island. The Arctic’s thickest sea ice is found there, pushed into the space between the two land masses and held there for years by prevailing winds and ocean currents. In 1973, the negotiators who delimited the maritime boundary between Canada and Greenland stopped at 82 degrees, 13 minutes north where Nares Strait opens into the Lincoln Sea. Then, in 1977, Canada claimed a 200-nautical-mile fisheries zone along its Arctic Ocean coastline. The zone was bounded in the east by an equidistance line that used the low-water line of the coasts of Ellesmere Island and Greenland and several fringing islands as base points. ^{Footnote 85}

Denmark adopted its own equidistance line three years later but only after drawing straight baselines — two of which used Beaumont Island as a base point. ^{Footnote 86} Beaumont Island is just over ten square kilometres in size and located more than twelve, but less than twenty-four nautical miles from the Greenland coast. The first of the resulting baselines was 42.6 nautical miles long; the second was 40.9 nautical miles long. The use of straight baselines and Beaumont Island had the effect of pushing the equidistance line slightly westward, adding two lens-shaped areas of thirty-one square nautical miles and thirty-four square nautical miles to the Danish claim.

Canada objected to the Danish straight baselines and particularly the use of Beaumont Island as a base point for four reasons: “Beaumont Island is somewhat west of the other islands, thus it is not part of a fringe of islands; the straight baselines are long; they do not follow the trend of the coast; they do not cross the mouths of the intervening fjords but are farther offshore.” ^{Footnote 87} These reasons seem to be derived from the seminal ICJ decision on straight baselines, namely the 1951 Anglo-Norwegian Fisheries Case. ^{Footnote 88}

Map 7: Lincoln Sea (from David H. Gray, “Canada’s Unresolved Maritime Boundaries” (1997) 5:3 IBRU Boundary & Security Bulletin 61 at 64).

Resolution Efforts

In 1982, Canadian and Danish diplomats met to discuss the Lincoln Sea boundary dispute “with neither side moving from their respective positions.” ^{Footnote 89} In 2004, the scope of the dispute was reduced when Denmark modified its straight baselines, replacing the 40.9-nautical-mile baseline east of Beaumont Island with a series of shorter baselines, including one that connects Beaumont Island to John Murray Island, the next island in the chain. ^{Footnote 90} The Danish changes reduced the size of the northernmost disputed area almost to the point of eliminating it, while also strengthening the case for using Beaumont Island as a base point. ^{Footnote 91}

These developments may have contributed to the announcement by the Canadian and Danish foreign ministers in 2012 that negotiators “have reached a tentative agreement on where to establish the maritime boundary in the Lincoln Sea.” ^{Footnote 92} Apparently, the only issue left for negotiation was a joint management regime for any straddling hydrocarbon deposits. This issue could not be dealt with solely by the Danish and Canadian negotiators, for while Denmark retains control over Greenland’s foreign policy, the Greenland government has since 2008 exercised control over natural resources, including on the continental shelf. ^{Footnote 93} However, joint management regimes have become a standard component part of maritime boundary treaties, and there was (and is) no reason to expect problems during the Canada–Greenland negotiations.

Drivers

The Lincoln Sea boundary dispute was of little practical significance for four reasons: (1) the parties agreed that the equidistance principle should be used; (2) the dispute was over a very small area of EEZ; (3) any resources in the disputed zones would have been exceedingly difficult to access and therefore unlikely to become commercially viable; and (4) there was never any difference of opinion over the location where the adjoining Canadian and Danish jurisdictions would meet at 200 nautical miles from shore, which meant that any dispute with 200 nautical miles of shore was of little legal relevance to a delimitation of the extended continental shelf beyond 200 nautical miles. Like the 1973 treaty on the boundary between Canada and Greenland, it seems the main reason for seeking to resolve this dispute was to deal with a situation before any problems arose.

The dispute was of little political significance. From the Canadian perspective, it was located within exclusive federal jurisdiction and in the most remote part of the Arctic, which meant that there was virtually no public knowledge or engagement on the issue. Finally, the opening of negotiations was related to Canada’s 2010 Arctic Foreign Policy Statement, which expressed an intent to resolve all of the country’s Arctic boundary disputes and not just in the Beaufort Sea where interest in oil and gas was growing. ^{Footnote 94} The negotiations with Denmark and the United States were launched at about the same time, ^{Footnote 95} which suggests that resolving the easier dispute in the Lincoln Sea might have been seen as a way to create some momentum for the more difficult dispute in the Beaufort Sea.

The Dispute

St. Pierre and Miquelon is an archipelago of eight islands with a total landmass of 242 square kilometres. Located just thirteen nautical miles from the coast of Newfoundland, the islands were claimed by Jacques Cartier on behalf of France in 1536. The islands changed hands several times during wars between France and Britain but have remained uncontested French territory since 1815. They support a population of around 6,000 people with an economy based on fishing and tourism. The dispute over maritime zones around St. Pierre and Miquelon began in 1966 when the Canadian and French governments exchanged diplomatic notes setting out their positions with respect to the delimitation of the continental shelf. ^{Footnote 96} The exchange of views was prompted by both countries granting oil and gas exploration licenses in the area. ^{Footnote 97} In 1970, Canada extended its territorial sea from three to twelve nautical miles; one year later, France did the same.

Resolution Efforts

In 1972, the two countries concluded a maritime boundary treaty resolving overlaps within twelve nautical miles of the coasts of Newfoundland, on the one hand, and St. Pierre and Miquelon, on the other. ^{Footnote 98} Canada and France then spent years negotiating over an extension of the boundary out to 200 nautical miles (that is, the EEZ) before agreeing in 1989 to send the matter to an ad hoc arbitral tribunal. ^{Footnote 99} In 1992, the tribunal issued a highly unusual decision. ^{Footnote 100} It awarded France a twenty-four-nautical-mile-wide band around the seaward side of the islands, plus a 10.5-nautical-mile-wide corridor extending 188 nautical miles southwards from the islands. If the corridor was intended to allow France access to its territorial sea and EEZ without having to pass through Canada’s EEZ, it failed to accomplish this since Canada’s zone extends farther offshore and therefore around the stem of the mushroom-shaped French zone.

Map 8: Illustrative map (from “Court of Arbitration for the Delimitation of Maritime Areas in Canada and France: Decision in Case Concerning Delimitation of Maritime Areas (St. Pierre and Miquelon)” (1992) 31 ILM 1145 at 1148).

Drivers

Fisheries provided the principal motivation for the negotiations and the eventual recourse to third party dispute settlement. ^{Footnote 101} In 1972, Canada and France agreed to phase out fishing by vessels from metropolitan France in Canadian waters in the Gulf of St. Lawrence and to limit, but not phase out completely, fishing by vessels from St. Pierre and Miquelon. ^{Footnote 102} French fisherman responded by spending more time in the disputed waters around St. Pierre and Miquelon. ^{Footnote 103} The two countries also disagreed over the quantities of fish that could be caught sustainably in the area. ^{Footnote 104} As McDorman explains,

McDorman also explains that “Canada had to provide an enticement in order to get the French to agree to adjudicate,” in the form of three years of access to 2,950 tonnes of cod in undisputed Canadian waters. ^{Footnote 106} The possibility of oil and gas reserves added a further motivation. Hydrocarbons had already been discovered on either side of the disputed zone, and, as mentioned, the two countries had independently issued overlapping exploration licenses in the zone itself. As McDorman explains, the potential for hydrocarbons was “of particular interest to France which is overwhelmingly dependent upon imported oil and gas.” ^{Footnote 107}

The Disputes

Negotiations between Norway and its maritime neighbours began in the 1960s when the oil and gas potential of the North Sea became apparent. In 1962, Phillips Petroleum, a US-based company, approached the Norwegian government with a request to initiate drilling. ^{Footnote 108} The next year, the government issued a royal decree stating that the seabed and subsoil of the submarine areas off the Norwegian coast were under its jurisdiction with regard to natural resources. ^{Footnote 109} This move provided an impetus to delimit Norway’s maritime boundaries with the United Kingdom and Denmark in areas that were previously high seas. One of the challenges facing Norway concerned the 1958 Geneva Convention, the first article of which defines the continental shelf as “the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas.” ^{Footnote 110} Norway had chosen not to sign the convention because of its wording regarding the 200-metre limit. It was concerned that the United Kingdom and Denmark might argue that the Norwegian shelf was bounded by the Norwegian Trench, which drops to 350 metres just off the west coast of Norway and to 700 metres just off the south coast. ^{Footnote 111}

However, it turned out that none of the states around the North Sea wished to base a boundary regime on the 200-metre limit. ^{Footnote 112} This limit was, of course, rendered conditional and therefore uncertain by the subsequent clause within Article 1, namely “to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas.” Since offshore drilling technology was certain to improve over time, the question became not whether the Norwegian Trench constituted a limiting factor but, rather, whether the equidistance principle or some other criterion would be applied to delimit the opposing continental shelves.

Resolution Efforts

A key development occurred in 1964 when the United Kingdom informed Norway that it wished to start negotiations based on the equidistance principle. ^{Footnote 113} Britain wanted an agreement with Norway before dealing with other, more complicated boundary issues further south with Denmark, Germany, the Netherlands, Belgium, and France. ^{Footnote 114} The offer to use the equidistance principle was a major concession because Britain ratified the Geneva Convention that same year. Norway’s response to the British offer was immediate and positive. The Norwegians were also pleased by the willingness of the British negotiators to accept a boundary calculated from straight baselines drawn between outer islands and reefs along Norway’s highly fragmented west coast. ^{Footnote 115} Those straight baselines had previously been challenged by the United Kingdom before the ICJ, which ruled in Norway’s favour in the 1951 Anglo-Norwegian Fisheries Case. ^{Footnote 116} That said, the United Kingdom benefitted from the fact that the Shetland and Orkney Islands were likewise granted full effect with regard to the calculation of the equidistance line. The agreement between Norway and the United Kingdom was concluded in 1965, just one year after the negotiations began. ^{Footnote 117}

The negotiations with Denmark were more difficult. Denmark had ratified the Geneva Convention in 1963 ^{Footnote 118} and could have been expected to argue that Norway’s continental shelf was bounded by the Norwegian Trench, the deepest part of which lies between Norway and Denmark. However, Denmark had a strong interest in seeing the equidistance principle applied to the south to define its boundary with West Germany. It was West Germany’s position that the location of the boundary should not be based on a simple application of the equidistance principle but should instead take into account the length of its coastline. ^{Footnote 119} The West Germans took this position because the German coast of the North Sea is concave in shape, while the Danish and Dutch coasts on either side are convex.

Denmark would have also been aware that an argument based on coastal length was likewise available to Norway since the length of the Norwegian coast facing Denmark greatly exceeds the length of the Danish coast facing Norway. Accepting the application of the equidistance principle with Norway enabled Denmark to be consistent in its legal arguments and to avoid the worst-case scenario of having to make concessions based on coastal length in both the south and the north. Norway and Denmark concluded their boundary agreement in 1965. ^{Footnote 120} Denmark was also interested in a quick settlement of the boundary with Norway so that oil exploration in the northern portion of its North Sea continental shelf could begin. ^{Footnote 121} Oil exploration in the southern portion was forced to wait, however, because West Germany was unwilling to make any concessions with regard to its legal position. West Germany, Denmark, and the Netherlands eventually agreed to send the matter to the ICJ, which, in 1969, ruled largely in favour of West Germany. ^{Footnote 122}

The Norway–Denmark boundary agreement was a win-win result for both countries. Denmark was able to secure a straightforward application of the equidistance principle in the north before being forced to accept qualifications to that principle in the south. Norway avoided any challenge to its position that might have been based on the Geneva Convention and gained jurisdiction over a portion of the North Sea equal in size to its entire land mass. ^{Footnote 123} The quick resolution of the dispute enabled both countries to open their respective portions of the previously disputed area to oil and gas exploration. Having agreed to a straightforward application of the equidistance principle in 1965, Norway and Denmark had no difficultly agreeing to do so again when, in 1979, they settled the boundary between Norway and the Faroe Islands. ^{Footnote 124}

Drivers

In 1965, the maximum breadth of coastal state jurisdiction over the continental shelf was not yet clearly defined. The 1958 Geneva Convention was unclear on the point, containing both a depth-based limitation of 200 metres and a technology-based limitation that would allow ever-expanding claims as offshore drilling technology improved. ^{Footnote 125} Norway seized the moment to conclude maritime boundary agreements with the United Kingdom and Denmark that took the most expansive possible view of the international law, dividing large portions of the North Sea between them using the equidistance principle. Other countries could have challenged these actions, but they would have been arguing, not for their own rights, but, rather, for the rights of all states to access the areas in question. Moreover, most of those areas were in deep water, beyond the reach of the drilling technologies of the time. For these reasons, the Norway–UK and Norway–Denmark boundary treaties went unchallenged and, with time, became unopposable by other states. Norway’s new boundaries were reinforced when international oil companies began drilling under leases granted by the Norwegian government. ^{Footnote 126} Given the balance of power in international politics at the time, it was likely to Norway’s advantage that most of the oil companies involved were American. ^{Footnote 127}

The Disputes

Jan Mayen is a small island located roughly 250 nautical miles east of Greenland and 360 nautical miles northeast of Iceland. It has been part of Norway since 1930. There is no permanent population on Jan Mayen, but the EEZ around the island supports a sizeable fishery. In June 1979, Iceland adopted an EEZ of 200 nautical miles, just as Norway had done along the coast of its mainland three years earlier. ^{Footnote 128} The new Icelandic zone came within 200 nautical miles of Jan Mayen, and so Norway responded by declaring its own 200-nautical-mile EEZ around the island, creating an overlap. ^{Footnote 129} Norway then took the view, consistent with its approach to other maritime boundaries, that the equidistance principle was an appropriate solution. Iceland, in contrast, took the view that it should have a higher proportion of the disputed zone, given that the rights of the two states were generated by a small, remote, and uninhabited island, on the one hand, and a significantly larger, populated island country, on the other. ^{Footnote 130}

A second boundary dispute was created in 1980 when Denmark extended its 200-mile fisheries zone northwards along Greenland’s east coast, creating an overlap with the Norwegian zone on the northwest side of Jan Mayen. ^{Footnote 131} Denmark argued that it deserved a larger proportion of this second disputed zone because Greenland’s coast is much longer than Jan Mayen’s and because the population of Greenland, living much closer to the area, deserved privileged access to fish stocks located there. ^{Footnote 132} Norway held firm to the equidistance principle, and, after years of unsuccessful negotiations, Denmark submitted the dispute to the ICJ in 1988. ^{Footnote 133}

Resolution Efforts

The dispute between Norway and Iceland was resolved through a conciliation committee consisting of three members: one from Norway, one from Iceland, and one from the United States as the neutral third member. ^{Footnote 134} An agreement was signed in 1981 whereby the Icelandic continental shelf was recognized as extending a full 200 nautical miles from the Icelandic coast in the area between Jan Mayen and Iceland, notwithstanding the proximity of the Norwegian island. ^{Footnote 135} Iceland thus gained a much larger continental shelf than it would have had under the equidistance principle. At the same time, a resource-sharing regime was incorporated into the new boundary agreement. Norway gained the right to participate in 25 percent of the oil and gas exploration on a portion of Iceland’s continental shelf just south of the new boundary, while Iceland gained the right to participate in 25 percent of the oil and gas exploration on a portion of Jan Mayen’s continental shelf just north of the new boundary. ^{Footnote 136}

As for the Norway–Denmark dispute, the ICJ delimited a single maritime boundary between Greenland and Jan Mayen in 1993. ^{Footnote 137} The court began with an equidistance line on a provisional basis and then considered whether “special circumstances” justified any adjustments in order to achieve an “equitable result.” The court concluded that the longer length of the Greenland coast required a delimitation that tracked closer to Jan Mayen and that the line should also be shifted somewhat eastwards to allow Denmark equitable access to fish stocks. Norway and Denmark implemented the judgment through a boundary treaty concluded in 1995. ^{Footnote 138}

Drivers

Norway’s willingness to concede to Iceland’s position was based on several political and economic considerations. First, insisting on the equidistance principle in the context of a small, remote, and unpopulated island would have damaged relations between Norway and its smaller Nordic cousin. ^{Footnote 139} Second, Norway had already discovered large oil fields in the North Sea, while Iceland had no equivalent resources. ^{Footnote 140} Third, the most promising oil and gas prospects between Iceland and Jan Mayen were located close to the smaller island, in an area that Norway received despite its concession. ^{Footnote 141} Just in case, the Norwegians made sure that the boundary treaty provided them with a 25 percent share of oil and gas development on the Icelandic side. ^{Footnote 142} They also insisted that the waiver of the equidistance principle was not a precedent for other negotiations. ^{Footnote 143} The dispute has also been connected to larger considerations regarding membership in the North Atlantic Treaty Organization (NATO) and anti-NATO sentiment in Iceland at the time. ^{Footnote 144}

In 2008, as the prospect of actual oil and gas activity came into view, Norway and Iceland concluded a follow-up treaty providing a more detailed framework for cooperative exploration of straddling deposits ^{Footnote 145} and deposits within the two zones of 25 percent participation. ^{Footnote 146} According to Norwegian Foreign Minister Jonas Gahr Støre, the arrangement provided the predictability that the oil companies needed. ^{Footnote 147} This joint hydrocarbon regime, although not unprecedented, ^{Footnote 148} was the first to be established in Arctic waters. Regardless of these developments, conditions around Jan Mayen are relatively inhospitable for petroleum development, with difficult ice conditions and deep water. ^{Footnote 149}

Fisheries interests played a role in both disputes, though the interests were mostly on the side of Norway’s negotiating partners. To some degree, this was recognized in the ICJ’s judgement, which adjusted the Norway–Denmark boundary to accommodate Greenland’s interest in a potential capelin fishery. ^{Footnote 150} As for the Norway–Iceland boundary, Icelandic fishermen had been pursuing capelin southeast of Jan Mayen for some time, while Norwegian fishing in the disputed zone had only just begun. ^{Footnote 151}

The Dispute

The Barents Sea lies north of Norway’s Finnmark region and Russia’s Kola Peninsula and between Norway’s Svalbard archipelago to the northwest and two of Russia’s archipelagos — Franz Josef Land and Novaya Zemlya – to the northeast and east. Roughly 500,000 square nautical miles in size, it has an average depth of only 230 metres. The entire seabed constitutes a continental shelf, making the Barents Sea a prime location for fish, oil, and gas. For more than three decades, Oslo and Moscow have contested roughly 50,000 square nautical miles or about 10 percent of the Barents Sea. Moscow has argued that a number of “special circumstances” were relevant to the boundary delimitation: the length and shape of Russia’s coast; the size of the respective populations in the adjacent areas; ice conditions; fishing, shipping, and other economic interests; and strategic concerns. It also argued that the 1920 Svalbard Treaty prevented any points on that archipelago from influencing the delimitation. ^{Footnote 152} In Moscow’s view, all of these factors combined to justify a sector line along the 32 degree, 04 minutes, 35 seconds east meridian, with that line being adjusted east of Svalbard only, so as not to infringe on the area defined under the Svalbard Treaty. ^{Footnote 153}

Oslo responded that the Soviet Union had drawn the sector line in 1926 for the sole purpose of defining the territorial status of several offshore islands, without any intention of delimiting maritime zones. It argued that a median line should instead be drawn from the mouth of the Varangerfjord, a narrow inlet between Finnmark and the Kola Peninsula, within which a territorial sea boundary had been agreed in 1957. ^{Footnote 154} Such a line would be equidistant, at all points, from the Norwegian and Soviet mainland coasts; further out, it would be equidistant from Svalbard in the west and Novaya Zemlya and Franz Josef Land in the east. ^{Footnote 155}

The dispute arose in the 1960s when Norway and the Soviet Union both relied on the 1958 Geneva Convention to claim offshore rights. ^{Footnote 156} It acquired greater consequence in 1977 when the two countries asserted 200-nautical-mile EEZs encompassing both fish and seabed resources. ^{Footnote 157} Then, in 1996 and 1997 respectively, Norway and Russia ratified UNCLOS, Article 76 of which recognizes that a coastal state may exercise sovereign rights over an extended continental shelf more than 200 nautical miles from shore, if and where it can demonstrate a “natural prolongation” of its land mass. ^{Footnote 158} However, Article 83 of UNCLOS also stipulates that a continental shelf delimitation between states with opposite or adjacent coasts “shall be affected by agreement on the basis of international law … in order to achieve an equitable solution.” The same stipulation is made in Article 74, which deals with the delimitation of overlapping EEZs. As a result of UNCLOS, the Barents Sea boundary dispute expanded in scope, providing more room for compromise and mutual benefit.

Resolution Efforts

Negotiations over the Barents Sea boundary stretched over four decades, after being formally launched in 1974. ^{Footnote 159} The talks gained momentum in 1988 when a provisional line between the two positions was drawn and Soviet Prime Minister Nikolai Rysjkov announced that a settlement was possible — if agreement could be reached on the joint exploitation of resources in the disputed area. ^{Footnote 160} The talks, however, came to a standstill after the Soviet Union collapsed. Norway was also unrelenting in its demand for a settled boundary before any shared resource scheme was implemented.

In 2005, Russian President Vladimir Putin and Norwegian Prime Minister Kjell Magne Bondevik announced that Norway and Russia would initiate “strategic cooperation” on petroleum development in the Barents Sea. ^{Footnote 161} Negotiations on the boundary dispute were resumed later that year. In 2007, the two countries signed a revision of the 1957 agreement on the boundary within the Varangerfjord. ^{Footnote 162} The revision, which provided a clear starting point for the boundary farther out, was an essential step for the complete resolution of the dispute. ^{Footnote 163}

The breakthrough on the rest of the boundary came in 2010 when the two countries committed to an all-purpose boundary that would be drawn “on the basis of international law in order to achieve an equitable solution,” recognizing “relevant factors ... including the effect of major disparities in respective coastal lengths” while dividing “the overall disputed area in two parts of approximately the same size.” ^{Footnote 164} The resulting treaty, with geodetic lines connecting eight defined points, was ratified by the Norwegian and Russian governments after the Norwegian Storting and the Russian Duma gave consent in 2011. ^{Footnote 165}

The treaty sets a single “multi-purpose” maritime boundary as it delineates both the EEZ and continental shelf within 200 nautical miles from shore and for the extended continental shelf beyond that. It is a question of only limited interest as to “whether the agreed boundary is best described as a modified median line (as argued by Norway) or a modified sector line (as argued by Russia),” ^{Footnote 166} since the treaty divides the previously disputed sector almost exactly in half. The treaty also includes provisions on the co-management of any hydrocarbons that straddle the boundary through the conclusion of a “unitization agreement” for the exploitation of any such deposit and on the access of private companies to drilling rights on either side of the boundary. ^{Footnote 167}

Map 10: Norway–Russia Maritime Boundary in the Barents Sea (“Norway and Russia Sign Treaty to End Boundary Dispute in Barents Sea,” Eye on the Arctic, online: <http://www.rcinet.ca/eye-on-the-arctic/2010/09/16/norway-and-russia-sign-treaty-to-end-boundary-dispute-in-barents-sea/>).

Drivers

The settlement of the dispute was due to several factors, of which the potential for oil and gas is most frequently cited. ^{Footnote 168} In 1975, the two countries agreed on a moratorium on oil and gas exploitation in the area. ^{Footnote 169} Notwithstanding the moratorium, some seismic surveying did take place in the dispute zone on the Russian side, ^{Footnote 170} while exploratory wells were drilled — and oil and gas discovered — in the undisputed waters on either side. However, low prices and high costs combined to restrain development until the 2000s, when several large projects were realized. On the Norwegian side, the Snøhvit gas field and the Goliat oil field came on stream in 2006 and 2016, respectively.

There has been less activity on the Russian side, as there are more easily accessible resources either onshore or closer to shore in the Yamal/Nenets region further east. ^{Footnote 171} However, both sides of the Barents Sea are thought to contain considerable hydrocarbon reserves. ^{Footnote 172} Moreover, ice-free conditions, a relatively hospitable climate (compared with other offshore parts of the Arctic at similar latitudes) and relatively good coastal infrastructure (especially compared to the North American Arctic) make the Barents Sea attractive for oil companies. ^{Footnote 173}

In 1988, the massive Shtokman gas field was discovered on the Russian side of the Barents Sea. In 2007, Gazprom entered into a consortium with Norway’s Statoil (then StatoilHydro) and France’s Total to develop the field. In 2012, technical problems, disagreements among the partners, and declining prices (especially in the United States, due to the fracking revolution) led to the project being shelved. ^{Footnote 174} The development phases of the Shtokman field correlated with the signing of the 2007 Varangerfjord Agreement and provided impetus for the 2010 Boundary Treaty. ^{Footnote 175}

Since 2010, petroleum-related cooperation between Norway and Russia has expanded. The Russian company Lukoil applied to operate on the Norwegian continental shelf, acquiring initial approval in 2011. It has since gained stakes in a number of licences in the Norwegian portion of the Barents Sea, mostly near the boundary with Russia. ^{Footnote 176} In addition to oil and gas, fisheries have long been at the forefront of the cooperative maritime relationship between Norway and Russia. ^{Footnote 177} The Barents Sea contains the world’s largest cod fishery. ^{Footnote 178} Effective management cooperation has, over the last decade, enabled Norway and Russia to increase their science-based quotas — to the point where the cod stock provides more than US $2 billion in sustainable annual catches. ^{Footnote 179} However, fisheries did not act as an incentive for the conclusion of the boundary treaty in 2010. ^{Footnote 180} As explained by Geir Hønneland, some Russian fishermen instead voiced concern that a clear delineation would deny access to some historically important fishing grounds. ^{Footnote 181} After the agreement was signed in 2010, critical voices at the local level in northwest Russia have continued to question the wisdom of the decision. So far, however, both countries have enforced the treaty through their respective coast guards ^{Footnote 182} as well as initiating discussion on unitization in the case of any discovery of transboundary hydrocarbons. ^{Footnote 183}

Beyond economic interests, Arild Moe, Daniel Fjærtoft, and Indra Øverland argue that Russia’s desire to affirm the primacy of the UNCLOS regime and “tidy up its spatial fringes” are additional factors explaining the 2010 settlement. ^{Footnote 184} Indeed, Russia benefits enormously from the right that every state has to an EEZ because of its extremely long coastline. And the shallow nature of the Arctic Ocean means that it will also benefit from the UNCLOS rules on extended continental shelves, perhaps more than any other country. Eliminating the legal and political uncertainties associated with unresolved maritime boundary disputes is one way of securing these benefits. ^{Footnote 185} Finally, Russia’s interest in resolving its disputes, and thus strengthening the UNCLOS regime, may have been influenced by the fact that non-Arctic countries are effectively excluded from the Arctic’s vast continental shelves as a result of these rules. In both Russia and Norway, a newfound emphasis on Arctic affairs as well as a desire to reaffirm the Arctic maritime legal regime (UNCLOS) has acted as an additional driver of dispute settlement. We will return to this point in the second part of this article.

The Dispute

Svalbard is located less than 400 nautical miles from Greenland, and both Norway and Denmark claim 200-nautical-mile EEZs around their respective islands. The resulting overlap came to approximately 44,000 square nautical miles. ^{Footnote 186} Norway’s sovereignty over the Svalbard archipelago was recognized by the Svalbard Treaty, which was adopted as part of the Paris Peace Accords at Versailles in 1920. ^{Footnote 187} The treaty, which is open to all states, gives the citizens of its parties the right to economic access to the islands — subject to Norway’s right to regulate activity on a non-discriminatory basis and to raise taxes for the purposes of providing services and infrastructure. In 1977, Norway claimed a 200-nautical-mile fisheries protection zone around Svalbard and argued that this zone is not covered by the treaty because this innovation in maritime law did not exist in 1920. ^{Footnote 188} The fisheries protection zone is important to Norway because the shallow waters around Svalbard serve as a nursery for large numbers of juvenile Atlantic cod. ^{Footnote 189}

To avoid escalating a dispute with other countries over the scope of the treaty and the possible rights of access to offshore oil and gas resources, Norway has not claimed an EEZ around Svalbard. ^{Footnote 190} However, under international law, a state does not need to claim a continental shelf, which is automatically generated by the adjoining territory. ^{Footnote 191} Norway claims that Svalbard does not have a continental shelf in its own right and that the continental shelf around Svalbard is solely under Norwegian jurisdiction as an extension of the mainland’s continental shelf. Although other countries dispute this, ^{Footnote 192} the Norwegian view received some support from the Commission on the Limits of the Continental Shelf, which, in 2009, issued recommendations that recognized the existence of a Norwegian extended continental shelf to the north of Svalbard. ^{Footnote 193} In 2015, the Norwegian government launched a licensing round for oil and gas exploration and production that included blocks on what would, otherwise, be Svalbard’s continental shelf. Russia delivered a diplomatic protest, and, so far, no activity has commenced in those blocks. ^{Footnote 194}

Resolution Efforts

Norway drew straight baselines around Svalbard in 2001, while Denmark drew straight baselines around Greenland in 2004. ^{Footnote 195} Then, in 2006, Norway and Denmark concluded an all-purpose maritime boundary between Svalbard and Greenland. ^{Footnote 196} Roughly 430 nautical miles long, the boundary is based on an equidistance line, adjusted slightly to take into account the presence of Denmark’s Tobias Island some thirty-eight nautical miles off the Greenland coast. ^{Footnote 197} By concluding the treaty, Denmark implicitly recognized that Svalbard generates both fishing and continental shelf rights. The treaty includes a provision on straddling mineral deposits, whereby either party can initiate negotiations on possible cooperative solutions without committing the two parties to any result. The preamble of the Svalbard–Greenland Delimitation Agreement also points out that the treaty does not set the boundary between their respective extended continental shelves — a matter that the parties will have to address at some future point. ^{Footnote 198}

Drivers

Economic interests seem to have provided some motivation for the Norway–Denmark negotiations. Oude Elferink explains how the 2006 treaty’s provisions on straddling mineral deposits are based on the 1995 treaty on the boundary between Jan Mayen and Greenland, while going into more detail with regard to how exploitation would occur. ^{Footnote 199} The inclusion of these detailed provisions anticipates oil and gas activity along the new boundary at some point.

For Norway, another clear goal was the acquisition of international recognition for its position on the fishing zone and continental shelf around Svalbard. Although some argue that Norway abandoned its policy of equidistance when settling its boundaries with Greenland and Russia, ^{Footnote 200} by doing so, it succeeded in removing two potential causes of further debate and discord over Svalbard. The status of the waters and seabed around the archipelago is not yet fully settled, but Norway’s position is stronger now than it was before.