1. 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.

2. 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.

3. 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 as follows:

   1. 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).

   2. Paragraphe non-déclassifié./Paragraph not declassified.

   3. To consult the United States and the United Kingdom and France informally concerning the action contemplated.

   4. To decide in principle on the extension of the breadth of the territorial sea to 12miles as an ultimate goal.

   5. Paragraphe non-déclassifié./Paragraph not declassified

   .

   6. 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.)

4. 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.

5. 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:

   1. a 3-mile limit for territorial waters proper,

   2. 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 Commission).
      
      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.

6. 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:

   1. 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.

   2. 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.

   3. 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).

   4. 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

      1. coastal fisheries;

      2. 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 areas.

7. 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.

8. I recommend: ³²

   1. 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);

   2. 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

PIÈCE JOINTE/ENCLOSURE

Projet d'une note
Draft 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:

1. Breadth of the Territorial Sea and Contiguous Zone
   
   The relevant recommendations of the International Law Commission are as follows:
   
   Article 3:
   
   

   1. The Commission recognizes that international practice is not uniform as regards the delimitation of the territorial sea.

   2. The Commission considers that international law does not permit an extension of the territorial sea beyond twelve miles.

   3. 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.

   4. The Commission considers that the breadth of the territorial sea should be fixed by an international conference.

   Article 66:
   
   
   1. In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to

      1. Prevent infringement of its customs, fiscal or sanitary regulations within its territory or territorial sea;

      2. Punish infringement of the above regulations committed within its territory or territorial sea.

   2. 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.

2. Straight Baselines
   
   Article 5:
   
   

   1. 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.

   2. The coastal State shall give due publicity to the straight baselines drawn by it.

   3. 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 traffic.
      
      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.

3. Continental Shelf
   
   Article 67:
   
   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 special problem.
   
   

4. High Seas Fishing
   
   The Canadian government has the following comments with regard to the draft articles indicated:
   
   Article 51
   
   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.
   
   Article 52
   
   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 suggested.
   
   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.
   
   Article 53
   
   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 not.
   
   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.
   
   Article 56
   
   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:
   
   

   1. Evidence based upon scientific research indicates that more extensive exploitation of the stock will not provide a substantial increase in yield;

   2. The exploitation of the stock is limited or otherwise regulated for conservation purposes by each party substantially engaging in its exploitation; and

   3. 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.

   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.

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.