In 1952 the Interdepartmental Committee on Territorial Waters began a general study of Canadian territorial waters and continental shelf problems having regard to certain international and domestic events that had taken place since the last general study in 1937. The principal new events were the following:

(a) The Union of Newfoundland with Canada

Shortly before the Union of Newfoundland with Canada the Prime Minister stated in the House of Commons on February 8th, 1949:

"We intend to contend, and hope to be able to get acquiescence in the contention that the waters west of Newfoundland constituting the gulf of St. Lawrence shall become an inland sea. We hope, that with Newfoundland as a part of Canadian territory, the gulf of St. Lawrence west of Newfoundland will all become territorial waters of Canada, whereas before there would be only the usual off-shore portion that would thus become part of the territorial waters. Of course that is a matter which is not governed by statutes; it is governed by the comity of nations. It is our intention to assert that position and it is our hope that it will be recognized as a valid contention."

(Hans., Can., Feb.8, 1949, at p.368)

Also, during the negotiations for Union in 1948, in response to an enquiry by the Newfoundland delegation, the following answer was given on behalf of Canada:

"With respect to the establishment of territorial waters it is our understanding that the "headland to headland" rule, as it now applies to Newfoundland, will continue to apply."

(b) The Anglo-Norwegian Case

The decision of the International Court of Justice in the Anglo-Norwegian Fisheries case in 1951 upheld the Norwegian "baseline" system. Norwegian territorial waters are measured, not from the coastline but from baselines drawn between promontories and islands along the coast. It was indicated that in certain circumstances this was a proper way of delimiting territorial waters. The decision has led to a re-examination of territorial waters by many countries.

(c) The Continental Shelf

In 1945 the Government of the United States by proclamation, inaugurated a new era by claiming jurisdiction over the continental shelf off the shores of the United States to its outermost seaward limit.

(d) Work by the International Law Commission

The International Law Commission has for some time been considering and seeking the views of states on a territorial waters and a continental shelf doctrine. Draft articles have been circulated to the various states, including Canada, for study and comment.

On the recommendation of the Interdepartmental Committee in 1952 the Government retained Mr. G.F. Curtis, Dean of the Faculty of Law, University of British Columbia, to prepare a memorandum 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. This memorandum includes a survey of the international legal position, the results of a close study of policy in relation to Canadian and Newfoundland waters, a technical comparison of the physical characteristics of the Canadian and Norwegian coasts and an economic survey of fishing and other activities on the Canadian coast. A summary of the memorandum? (apart from the technical annexes) is attached hereto.

In the course of its study the Interdepartmental Committee sought information and advice from the Departments of External Affairs, Fisheries, Mines and Technical Surveys, National Defence, National Revenue, Northern Affairs and National Resources, Transport, Justice, the Canadian Maritime Commission and the Royal Canadian Mounted Police.

On November 16, 1955, the Cabinet agreed that a Cabinet Committee consisting of the Secretary of State for External Affairs, the Minister of Fisheries and the Minister of Northern Affairs and National Resources, 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 on this matter by officials studying the problem. The Committee met on December 6, 1955 and February 28, 1956.

I. TERRITORIAL WATERS

The expression "territorial waters" is ambiguous. In exact use it comprises both the sea areas enclosed by land formations to which the term "inland waters" in strictness applies; and also the marginal belt lying seaward from the coast and the closing lines of inland waters concerning which the expression "territorial sea" is more apt.

(a) Baselines

[Paragraphe non déclassifié./One paragraph was not declassified.]

(b) Breadth of the Territorial Sea

Up to the present time it has been Canada's policy to regard the three mile limit as being applicable to Canada. There is no international agreement on a uniform limit, and the International Law Commission has so far been unable to reach agreement on the point. Beginning in April the Commission is again considering the matter in an effort to decide on an agreed draft article.

The United Kingdom and the United States are traditionally opposed to any limitation on the freedom of the seas, particularly to an extension of the breadth of the territorial sea beyond three miles. Other countries however, particularly since the close of the war, claim wider limits, variously fixed at 4, 6 and 12 miles, the 12 mile limit being claimed by the Soviet Union and its satellites among others.

Canada, as a possessor of extensive coastal fisheries on the Atlantic and Pacific coasts, does not share the interests of the United Kingdom and United States in narrowing the territorial sea to three miles. On the Canadian Atlantic seaboard it is necessary in the interest of fishery conservation to restrict fishing by Canadian draggers to areas beyond a 12 mile limit, but as matters now stand foreign draggers are permitted to fish up to the three mile limit.

Canadian fishing interests, therefore, would best be served if the breadth of the territorial sea was 12 miles. However, for Canada this is an ultimate goal, and as the matter is still a subject of international discussion and as the United States and United Kingdom are actively resisting claims to limits beyond three miles, it would appear advisable for Canada to await international developments. After the results of the discussion in the International Law Commission are known, the Canadian position should be reviewed and a decision then made regarding what steps Canada should take.

[Quinze paragraphes non déclassifiés./Fifteen paragraphs were not declassified.]

II. THE CONTINENTAL SHELF

Canada has never made any formal international claim to the continental shelf lying off the Canadian coast. Generally speaking, the shelf on the east coast is quite extensive. On the Pacific coast the shelf is much narrower and in some places is less than a mile in width. The International Law Commission has circulated for study by states a draft article which, in the interests of attaining uniformity throughout the world, suggests fixing the seaward limit of a nation's shelf at the point where the water over the shelf reaches a depth of 100 fathoms. Such a role would be quite undesirable for Canada because the 100 fathom mark is reached in places on both the east and west coasts of the mainland at points well within the continental shelf as clearly defined by nature.

It appears to the Committee that the placing of an arbitrary depth limit on the shelf as proposed by the Commission is contrary to the whole shelf principle and the premise on which the doctrine rests. On the other hand, in some parts of the world it is difficult to determine limits of the shelf. It would seem that Canada should advocate that a littoral state should have the right to explore and exploit the natural resources of the seabed and subsoil of the whole shelf lying off the coasts of that state to the point seaward where the shelf plunges into the ocean depths, but that, where the outer edge of the shelf is ill-defined, a depth limit might be set such as the 100 fathom mark. Virtually the entire shelf off Canada, except in certain Arctic areas, is clearly defined and this approach would give Canada rights to the entirety.

The Department of Mines and Technical Surveys has prepared a scientific description of the shelf, together with a chart showing the actual shelf and also the limits of Canada's rights under the Law Commission's 100 fathom rule. As discussion on this doctrine will come up at the United Nations almost certainly in 1956, it is necessary that Canada's policy in this respect be decided as soon as possible.

It is not recommended that Canada make any formal claim to the shelf at the present time along the lines of the United States 1945 proclamation. Under the continental shelf doctrine as proposed by the International Law Commission, Canada would acquire rights to the shelf in any case, and our position would not be strengthened if any claim were put forward at the present time.

SUMMARY OF RECOMMENDATIONS

In detail it is recommended that the following decisions be taken at this time.

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(e) To decide in principle to the extension of the breadth of the territorial sea to 12 miles as an ultimate goal, but to await the outcome of the deliberations of the International Law Commission on this question at its forthcoming session in April before determining how this policy might be implemented.

[Deux paragraphes non déclassifiés./Two paragraphs were not declassified.]

Continental Shelf

(h) To make no formal claim to the continental shelf pending the outcome of discussions in the United Nations.

(i) 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 the 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.

JEAN LESAGE