THE NOTION OF EQUITY IN THE DETERMINATION OF MARITIME BOUNDARIES AND ITS APPLICATION TO THE CANADA-UNITED STATES BOUNDARY IN THE BEAUFORT SEA

Abstract

Of the maritime boundaries yet to be delimited between Canada and the United States, the Beaufort Sea might be the more pressing one, considering its strategic location in a rapidly developing Arctic region and its vast economic potential. In accordance with the Law of the Sea Convention (UNCLOS), maritime boundaries are to be delimited by agreement on the basis of international law as referred to in Article 38 of the Statute of the International Court of Justice, in order to reach an equitable solution. When an agreement cannot be reached, parties can resort to third-party arbitration. While jurisprudence has determined that international law does not mandate a particular method of delimitation, it requires the consideration of equitable principles, also called special circumstances or factors. The notion of equity is therefore the foundation of boundary determination. But, what is equity and how is it applied? This thesis examines the various forms of equity, their origins in legal philosophy and domestic law and how they have been incorporated in international law. The main focus, however, is to analyse the differences between how international tribunals or courts have interpreted and applied equity in boundary determination and how States have applied it in negotiated agreements. While tribunals have tended to consider equitable principles as equivalent to geographical proportionality, States have considered those principles more in keeping with the notion of distributive justice and, more and more, are taking a globalised approach to boundary determination. On the basis of this analysis, this thesis evaluates the potential outcome of a third-party arbitration of the Beaufort Sea boundary dispute between Canada and the United States as well as the options for settlement negotiations between the Parties. In the Beaufort Sea area where hydrocarbon development is intrinsically linked not only to the development of the local population but also to the entire Arctic region, be it on issues related to the environment, navigation or security, the thesis concludes that a third-party adjudication would not serve the interests of the States. As delimiting boundaries nowadays is only one aspect of the management of oceans related issues, interests are best served when delimitation is understood as part of this global approach.