The Law of the Sea, including international law relating to territorial waters, the continental
shelf, and national jurisdiction over fisheries, has been under study for several years by an
International Law Commission. It reported to the General Assembly of the United Nations last
fall and the Assembly decided to call an International Conference on the Law of the Sea to be
held either in Rome or Geneva in March, 1958. Canada has indicated its intention to be
represented at the Conference.
Since 1952 the Canadian policy on territorial waters and other matters relating to the law of
the sea has been under study by an Interdepartmental Committee under the chairmanship of the
Deputy Minister of Northern Affairs and National Resources. The Committee has been
responsible for the preparations for the Conference insofar as Canada is concerned. It has also
had prepared a comprehensive report by Mr.G.F. Curtis, Dean of the Faculty of Law, University
of British Columbia, setting out the present position of international law governing territorial
waters and examining the manner in which it could best be applied to Canadian waters, taking
into account such statements or declarations of policy as may have been made in the past.
On November 16, 1955, the former Cabinet agreed that a Cabinet Committee consisting of
the Minister of Northern Affairs and National Resources (Chairman), the Minister of Fisheries
and the Secretary of State for External Affairs, together with such other Ministers as might wish
to attend, be established to consider policy on territorial waters questions and recommendations
that would be submitted by the committee of officials. Pursuant to a report by the Cabinet
Committee, the Cabinet approved a number of recommendations as to Canadian policy on March
15, 1956.31 The principal decisions were
To decide in principle to adopt the straight baseline system for the Coast of Labrador and the
East and South Coasts of Newfoundland, subject to a guarantee of United States and French
treaty fishing rights in the affected areas. The straight base-line system was sanctioned by the
International Court of Justice in 1951 in the Anglo-Norwegian Fisheries case. The system is
particularly beneficial for deeply indented coasts like those of Labrador, probably B.C., etc. (The
question of the application of this system to other parts of the coast is still under consideration by
the Interdepartmental Committee).
Paragraphe non-déclassifié./Paragraph not declassified.
To consult the United States and the United Kingdom and France informally concerning the
To decide in principle on the extension of the breadth of the territorial sea to 12miles as an
Paragraphe non-déclassifié./Paragraph not declassified
To adopt the position that a littoral state should have the right to explore and exploit the
natural resources of the seabed and subsoil of the continental shelf to the point where it plunges
into ocean depths but where the outer edge of the shelf is ill-defined to agree to the limit being
set at the 200 meter mark. (A 200meter limit has been favoured by the International Law
Commission as the maximum depth for a continental shelf . However, much of the true
continental shelf off the east coast of Canada is more than 200meters deep.)
On July 30, the then Prime Minister, in response to questions in the House, indicated in
general terms the Government policy with regard to the adoption of baselines and the 12-mile
limit. (Hansard, July 30, 1956, pages 6700-6703). On August 3, 1956, the Government agreed
that the United States, United Kingdom and French Governments should be officially informed
of the decisions outlined in the House of Commons, i.e. that in the United Nations consideration
of the report of the International Law Commission Canada would support the adoption of a
straight baseline system for the measurement of territorial waters and would also support the
adoption of the 12-mile limit for territorial waters.
Subsequently, in 1956, confidential discussions took place between Canadian officials and
United States and United Kingdom officials. At these discussions United States and United
Kingdom officials emphasized that universal adoption of a 12-mile territorial limit would have
serious implications for security. In the light of their views, the government decided on a
modified position which would involve, as the Canadian policy:
a 3-mile limit for territorial waters proper,
a 12-mile contiguous zone (measured from the same baselines from which the territorial sea
would be measured) in which the coastal state would have the full right to impose fishing
regulations (as well as customs, fiscal and sanitary regulations as already recommended by the
It was agreed that Canada make such a proposal at the General Assembly but that it should not
exclude Canadian support for the 12-mile limit if at a later stage it appeared that no agreement
could be reached on a 12-mile contiguous zone within which the coastal state would have
adequate fishery controls. Subsequently the Canadian position on the breadth of the territorial
sea was stated by the Canadian representative in the Sixth Committee of the General Assembly
on December 7, 1956 as follows:
The Canadian delegation believes that the 3-mile limit is not adequate for all purposes. In
particular it is not adequate for the enforcement of customs, fiscal and sanitary regulations. It
is also not adequate for the protection and control of fisheries. The Commission has already
recommended a contiguous zone of not more than 12 miles from the baseline from which the
territorial sea is measured for the purpose of exercising the necessary control in the
enforcement of customs, fiscal or sanitary regulations. For Canada it is of fully as great
importance that the rules of international law should provide adequately for the regulation
and control of fisheries off the coasts of any state. One way of providing this would be by
accepting, for general application, the twelve mile breadth for territorial waters. That would
allow complete fishery, customs, fiscal and sanitary control and regulation within that limit.
It would exclude the fishermen of other countries from the twelve mile coastal area. My
Government recognizes, however, that a general extension of the breadth of the territorial sea
to twelve miles could have consequences of importance with regard to the freedom of sea
and air navigation. Freedom of the seas is of common benefit and clearly the principle must
be given due consideration in dealing with the problem. Instead of having a general adoption
of the twelve mile breadth for the territorial sea an alternative approach which would not
affect the rights of navigation either by sea or by air would be to agree on a contiguous zone
of twelve miles as recommended by the International Law Commission, but with the
modification that it should cover fisheries as well. To be acceptable to Canada, the rights
over fisheries accorded by such a zone would have to be as complete as those that would be
afforded to the coastal state if territorial waters were extended to twelve miles.
In connection with preparations for the conference the Secretary-General of the United
Nations has requested governments to let him have any provisional comments they wish to make
on the International Law Commission's proposed rules. Ministers concerned in the late
Government had agreed that Canada should submit comments on the following four aspects of
the Commission's report of cardinal interest to Canada:
The Breadth of the Territorial Sea and Contiguous Zone. The intention here was to reiterate
the position taken by Canada at the Eleventh Session of the General Assembly.
The Employment of Straight Baselines. The intention was to support the recommendation of
the International Law Commission (which accords with the decision of the International Court of
Justice in the Anglo-Norwegian Fisheries case) that in appropriate cases states might measure
their territorial sea from straight baselines drawn from headland to headland rather than from the
sinuosities of the coastline.
The Definition of the Seaward Boundary of the Continental Shelf. The International Law
Commission has recommended a rule to the effect that The coastal state exercises over the
continental shelf sovereign rights for the purpose of exploring and exploiting its natural
resources. The Commission recommends that the boundary of the shelf should be where the
water over the shelf reaches a depth of 100 fathoms. Off the East Coast, the edge of the shelf is
generally at a greater depth. The intention was to propose that the boundary of the shelf be its
actual edge where it is well defined (as it is off Newfoundland and Labrador).
- The Régime for High Seas Fishing. Comments were submitted to the Secretary-General on
the International Law Commission's suggested rules on high seas fishing on May 7, 1956. It was
the intention to submit comments directed at modifying the proposed rules to protect adequately
the interests of states, such as Canada, in
high seas fisheries where those interests stem from investment of effort and money and
compliance with self-denying ordinances aimed at conserving particular species in particular
It is not essential that comments be put forward at this time. The Canadian position as it then
was, on the breadth of the territorial sea and on the contiguous zone is already on the UN record
as are Canadian comments on high seas fishing. The position on straight baselines coincides with
the recommendations of the International Law Commission which are likely to be generally
acceptable. Only our position on the boundary of the continental shelf is not a matter of public
record. (It has been explained informally to United Kingdom, Australian and United States
officials.) The advantage in putting comments forward is that the Canadian position will be
included in the report on the provisional positions of Governments which the Secretary-General
proposes to make available as part of the preparatory work for the proposed conference. This
will facilitate any consultation with other Governments before the Conference which it may be
deemed expedient to undertake. Since in his request for comments the Secretary-General has
asked for provisional comments the Government would not be precluded from adopting
modified views at a later date.
I recommend: 32
that comments along the lines set forth in paragraph 5 be submitted to the Secretary-General
of the United Nations as the provisional views of Canada on the four points concerned, (a draft
note for the purpose is attached);
that the Interdepartmental Committee be directed to proceed with preparations for the
International Conference and to submit a complete commentary for consideration by the Cabinet
at a later date in regard to policy generally.
Douglas S. Harkness
Projet d'une note
No.August , 1957
The Secretary of State for External Affairs presents his compliments to the Secretary-General of the United Nations and has the honour to refer to Note No.LE 130(3)-9-2 dated
March 25, 1957 from the Director of the Codification Division requesting any provisional
comments which the Canadian Government might wish to make on the International Law
Commission's final report on the Law of the Sea and related matters.
The Canadian Government desires to say that it considers that the increased interest of States
in the exploitation of the resources of the sea and the consequent need for conservation and
regulation of these resources along with the need to preserve the principle of the freedom of the
seas calls for a reappraisal of the existing Law of the Sea and subsequent agreement on generally
accepted rules, whether they be existing rules reaffirmed or revised or entirely new rules.
Accordingly the Canadian Government welcomes the convoking of an international Conference
to examine the Law of the Sea and proposes to be represented at this Conference, as the
Secretary of State for External Affairs informed the Secretary-General on April 17, 1957.
Regarding the International Law Commission's Report on the Law of the Sea, the following are
the views of the Canadian Government on some of the recommendations of the Commission:
Breadth of the Territorial Sea and Contiguous Zone
The relevant recommendations of the International Law Commission are as follows:
The Commission recognizes that international practice is not uniform as regards the
delimitation of the territorial sea.
The Commission considers that international law does not permit an extension of the
territorial sea beyond twelve miles.
The Commission, without taking any decision as to the breadth of the territorial sea up to that
limit, notes, on the one hand, that many States have fixed a breadth greater than three miles and,
on the other hand, that many States do not recognize such a breadth when that of their own
territorial sea is less.
The Commission considers that the breadth of the territorial sea should be fixed by an
In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the
control necessary to
Prevent infringement of its customs, fiscal or sanitary regulations within its territory or
Punish infringement of the above regulations committed within its territory or territorial sea.
The contiguous zone may not extend beyond twelve miles from the baseline from which the
breadth of the territorial sea is measured.
The Canadian Government considers that any rules must meet the essential needs of coastal
states. The 3-mile is not adequate for all purposes. It is not adequate for the enforcement of
customs, fiscal and sanitary regulations. It is also not adequate for the protection and control of
fisheries. The Commission has recognized in Article66 (quoted above) the need for extended
jurisdiction in respect of the enforcement of customs, fiscal and sanitary regulations. The
Canadian Government considers it to be fully as important that the rules of international law
should provide adequately for the regulation and control of fisheries off the coast of any state.
One way of providing for this would be by accepting, for general application, the 12-mile
breadth for the territorial sea. That would allow for complete fishery, customs, fiscal and sanitary
control and regulation within that limit and dispense with the need for any provisions along the
lines of those contained in Article 66. It is recognized, however, that a general extension of the
breadth of the territorial sea to 12 miles could have consequences of importance with regard to
the freedom of sea and air navigation. Instead, therefore, of having a general adoption of the 12-mile breadth for the territorial sea an alternative approach which would not affect the rights of
navigation by sea or by air would be to agree on a contiguous zone of 12 miles as recommended
by the Commission but with the modification that within that zone the coastal state should have
the exclusive right of regulation and control of fishing. Rights over fisheries accorded by such a
zone should, in the view of the Canadian Government, be as complete as those that are afforded
to a coastal state within the limits of territorial waters.
Where circumstances necessitate a special régime because the coast is deeply indented or cut
into or because there are islands in its immediate vicinity, the baseline may be independent of the
low-water mark. In these cases, the method of straight baselines joining appropriate points may
be employed. The drawing of such baselines must not depart to any appreciable extent from the
general direction of the coast, and the sea areas lying within the lines must be sufficiently closely
linked to the land domain to be subject to the régime of internal waters. Account may
nevertheless be taken, where necessary, of economic interests peculiar to a region, the reality and
importance of which are clearly evidenced by a long usage. Baselines shall not be drawn to and
from drying rocks and drying shoals.
The coastal State shall give due publicity to the straight baselines drawn by it.
Where the establishment of a straight baseline has the effect of enclosing as internal waters
areas which previously had been considered as part of the territorial sea or of the high seas, a
right of innocent passage, as defined in Article 15, through those waters shall be recognized by
the coastal State in all those cases where the waters have normally been used for international
This recommendation is acceptable to the Canadian Government as reflecting the decision of
the International Court of Justice in the Anglo-Norwegian Fisheries Case. The Canadian
Government agrees that the employment of straight baselines as outlined by the Commission
should be recognized universally as being a proper means of establishing the datum-line for
measuring the territorial sea or contiguous zone, in appropriate cases.
For the purposes of these articles, the term `Continental Shelf' is used as referring to 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 (approximately 100 fathoms), or, beyond that limit, to
where the depth of the superjacent waters admits of the exploitation of the natural resources of
the said areas.
In its final report on the Law of the Sea (United Nations Document A/3159) the International
Law Commission stated that it accepted the idea that the coastal state may exercise control and
jurisdiction over the continental shelf, with the proviso that such control and jurisdiction shall be
exercised solely for the purpose of exploiting its resources... The Commission believed,
however, that the legal boundary of the continental shelf should be a fixed limit in terms of the
depth of the superjacent waters because a boundary defined in terms of the admissibility of
exploitation as the Commission's first draft of 1951 proposed, would lack the necessary
precision and might give rise to disputes and uncertainty . The 200-metre depth was selected by
the Commission as the limit of the continental shelf because it considered that this depth is
where the continental shelf in a geological sense generally comes to an end and that the limit
proposed would be sufficient for all practical purposes at present.
Against the contingency that exploitation of the seabed at depths greater than 200 metres
might prove technically possible the Commission recommended at its eighth session that the
continental shelf in the legal sense might be considered as extending beyond the 200-metre depth
mark to areas at greater depths where the superjacent waters admit of the exploitation of the
resources of the seabed of these areas.
This additional provision reintroduces the uncertainty which led the Commission to favour a
fixed limit in terms of the depth of superjacent waters for determining the legal boundary of the
shelf. It is considered that the foreseeable possibilities of exploitation at greater depths than 200
metres might be provided for without sacrificing the element of certainty concerning the extent
of States' rights to exploit the resources of the seabed. It is understood that in 90 percent of
instances, excluding polar regions, the edge of the continental shelf is well-defined
geographically. It is suggested, therefore, that in these cases the boundary of the shelf should be
its actual edge. Where, however, the edge of the shelf is ill-defined or where there is no shelf in a
geographical sense, the boundary might be set at such a depth as might satisfy foreseeable
practical prospects of exploitation.
It should be added that this suggestion might also solve the special problem raised by the
International Law Commission regarding submerged areas of a depth less than 200 metres which
are separated from the main shelf by narrow channels. While the scarcity of soundings in many
areas makes it impossible to be definite concerning the number of such submerged areas it is
thought that if the actual edge of the shelf were considered to be the boundary, by far the greater
number of these islands would then be included as part of the shelf and would so not create a
High Seas Fishing
The Canadian government has the following comments with regard to the draft articles
There is a possibility that in a given area the nationals of one state could be exploiting one
kind of living marine resource and at the same time the nationals of another state could be
exploiting another kind of resource. The Article, as presently drafted, does not seem to take
account of such a situation. It refers to an area rather than to a particular resource. A more
explicit statement appears to be desirable.
The Article, as drafted, might be interpreted as applying only to a case where the nationals of
two or more states fished the same stock or stocks of fish in any one area. In some instances, to
provide adequate conservation measures it would be desirable to have them applied to the same
stock of fish even though it were fished in different areas. A clarification in wording is therefore
The criterion suggested by the Commission (see paragraph Iof its commentary to Article 52)
for invoking the procedure envisaged in this Article is that a state be regularly engaged in
fishing. Under Article 53 an existing régime does not apply to a newcomer unless he is engaged
in substantial fishing (see Paragraph 2 of the Commission's commentary on Article 53). It would
seem reasonable therefore that under Article 52 a state ought only to be allowed to call for the
establishment of a régime if it is engaged in substantial fishing, subject of course to Articles 54,
55 and 56.
The Article, as drafted, would make conservation measures adopted pursuant to Articles 51
and 52 applicable to other states only in the case of fishing for the same stocks of fish in the
same area. From the conservation point of view the provision is inadequate. It is the stocks of
fish which must be protected regardless of the fact whether they are fished in the same area or
In paragraph 2 of the Commission's comment on this Article, it is stipulated that the
regulations should be applicable to newcomers only if they engage in fishing on a scale which
would substantially affect the stock or stocks in question. It would be preferable to have this
stipulated in the Article, for instance, by adding after any of the interested parties in paragraph
2 of the Article the words, engaged in the fishing on a substantial basis.
Although there may, in certain circumstances, be some justification for a state not engaged in
fishing in an area not contiguous to its coast requesting a fishing state to take certain
conservation measures, care should be taken that this request would not extend to measures
necessarily having to be taken within the boundaries of the fishing state. This Article, therefore,
should be qualified to indicate that the fishing state would be under no obligation to take
measures within its boundaries.
The Government of Canada is of the opinion that these Articles should be subject to the
abstention principle which was considered at the Technical Conference on the Conservation of
the Living Resources of the Sea held in Rome in 1955 and which is stated in the Report of the
Conference (page 7, paragraphs 61-62) namely:
61. A special case exists where countries, through research, regulation of their own fishermen
and other activities, have restored or developed or maintained stocks of fish so that their
productivity is being maintained and utilized at levels reasonably approximating their maximum
sustainable productivity, and where the continuance of this level of productivity depends upon
such sustained research and regulation. Under these conditions, the participation of additional
States in the exploitation of the resource will yield no increase in food to mankind, but will
threaten the success of the conservation programme. Where opportunities exist for a country or
countries to develop or restore the productivity of resources, and where such development or
restoration by the harvesting State or States is necessary to maintain the productivity of
resources, conditions should be made favourable for such action.
62. The International North Pacific Fishery Commission provides a method for handling the
special case mentioned above. It was recognized that new entrants in such fisheries threatened
the continued success of the conservation programme. Under these circumstances the State or
States not participating in fishing the stocks in question agreed to abstain from such fishing when
the Commission determines that the stock reasonably satisfies all the following conditions:
All of the above comments are, of course, provisional at this stage. The fact that comments
have not been submitted on other matters does not indicate that the remainder of the draft articles
are necessarily acceptable to the Canadian government as they now stand. The comments are
submitted with a view to facilitating the exchange of views among countries that will be
essential in working out agreed provisions on the Law of the Sea.
Evidence based upon scientific research indicates that more extensive exploitation of the
stock will not provide a substantial increase in yield;
The exploitation of the stock is limited or otherwise regulated for conservation purposes by
each party substantially engaging in its exploitation; and
The stock is the subject of extensive scientific study designed to discover whether it is being
fully utilized, and what conditions are necessary for maintaining its maximum sustained
productivity. The Convention provides that, when these conditions are satisfied, the States which
have not engaged in substantial exploitation of the stock will be recommended to abstain from
fishing such stock, while the States engaged in substantial exploitation will continue to carry out
the necessary conservation measures. Meanwhile, the abstaining States may participate in fishing
other stocks of fish in the same area.
31 Voir/See Volume 22, Document 316.
32 Approuvé par le Cabinet le 27 août 1957.
Pour le texte officiel de la lettre adressée au Secrétaire général le 10 septembre 1957, voir Chambre des Communes, Débats, volumeII, 1957-1958, pp.1737 à 1740.
Approved by Cabinet on August 27, 1957. For the official text of the letter to the Secretary-General dated September 10, 1957, see House of Commons, Debates, Volume II, 1957-58, pp.1653-1656.