The French Claim To The Eastern North
American Continental Shelf

Commander James D. Gass, JAGC, USN*

The diminutive French Islands of St. Pierre and Miquelon,
located only a few miles off Canada's Newfoundland coast, have
assumed an unexpected potential importance to their sovereign
with the development of deep-water-drilling techniques and
the possibility of oil beneath the Eastern North American
continental shelf. In his article Commander Gass discusses the
inadequacy of the 1968 Continental Shelf Convention in defining
the limits of claims to the shelf which is exacerbated by the
proximity of small island possessions to the coast of another
nation. He advocates a rule whereby competing claims between
mainland states and a foreign state's island possessions are
determined on the basis of their respective land-masses.

INTRODUCTION

THE FRENCH ISLANDS of St. Pierre and Miquelon are situated about fifteen miles southwest of the Burin Peninsula which juts into the Atlantic from the southeasterly portion of Newfoundland. These two islands have for over two hundred years served as a North American base for the French fishing fleet. With the development of deep water drilling techniques, and the promise of oil beneath Eastern North America's continental shelf,1 St. Pierre and Miquelon located near the Gulf of St. Lawrence, have suddenly assumed a potential value to the French Government far in excess of that which their size and previous use would indicate. Based on its sovereignty over these two islands, France is claiming extensive areas of the continental shelf. Since 1967 Canada and France have sporadically negotiated their respective shelf claims, but so far the negotiations have been fruitless.2 With the advance of technology, which in the foreseeable future may make economically feasible the exploitation of oil at great depths, and the mining of other minerals on the continental shelf and perhaps deeper, the problems posed by the islands of St. Pierre and Miquelon may be typical of many

*Commander Gass is currently serving in the International Law Division, Office of the Judge Advocate General. He received his B.S. degree from Union University in 1957, the J.D. degree from Vanderbilt University in 1965, and the LL.M. degree from George Washington University in 1972. He is a member of the Tennessee bar. 1. Miller, France Claims Seabed Oil Off Canada Coast, The Sunday Star (Washington), April 2, 1972, at A-23, col. 3, "All signs now point to the existence of a huge oil basin beneath Eastern North America's continental shelf, and the French government has served notice it wants a big piece of the action." 2. Id., “Canada and France have been holding sporadic negotiations over the Gulf of St. Lawrence since 1967, but are not even remotely near agreement.'

which will emerge as states assert extensive claims to the oceans' resources based on their sovereignty over small islands in remote areas or adjacent to the coasts of foreign states. This article analyzes the problems presented by the French Islands and offers a recommended solution to that problem as well as some criteria which should be considered when two or more states assert claims to the same ocean area.

I. STATES INVOLVED IN THE CLAIM AND THEIR CHARACTERISTICS

A. Canada

Canada is an independent state comprising somewhat over half of the North American continent, exclusive of Mexico. It has a population of about twenty million people and an area of 3,851,809 square miles. Its coastline (exclusive of irregularities, Hudson Bay and the passages among its northern islands) is a little over eleven thousand miles. About forty-five hundred miles of this coastline borders the Atlantic Ocean and its continental shelf.5 B. France

1. France is located on the European Continent, across the Atlantic from Canada and St. Pierre. Since it is a littoral state, it has its own continental shelf both in the Mediterranean Sea and the Atlantic Ocean. Although France has a population of nearly fifty million people and an area of about 213,000 square miles, these factors are not pertinent to its claim of a portion of the North American continental shelf, since those claims depend solely on the location of St. Pierre and Miquelon on that shelf.

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2. St. Pierre and Miquelon

St. Pierre and Miquelon are located about three miles apart, and about fifteen miles off the southern coast of Newfoundland. They have a combined area of ninety-three square miles and a population of about five thousand. The two islands comprise a French overseas territory and are administered by an Administrator or Governor, who is assisted by a Privy Council made up of administrative service chiefs and local leaders from the two islands.9 Four thousand of the five thousand inhabitants live in St. Pierre, which is the capital of the territory and is located on the island of that name.10

3. HAMMOND MEDALLION WORLD ATLAS, (1969), 163.

4. U.S. Dept. of State, Sovereignty of the Sea, Table II, Page 19 (Geographic Bulletin No. 3, rev. Oct. 1969).

5. Id.

6. Supra note 3, at 29.

7. U.S. Dept. of State, Bureau of Intelligence and Research Survey of the French Republic 16 (Geographic Bulletin No. 4, 1965).

8. Id., at 8.

9. Id., at 17.

10. Id., "In 1960 the population of the territory was estimated at 5,000. Of this total, 4,000 lived in Saint-Pierre, the capital of the territory, located on the island of the same name."

II. ST. PIERRE AND MIQUELON AS THE BASIS OF THE FRENCH CLAIM

A. Historical Background

The exact date of discovery of St. Pierre and Miquelon (referred to hereafter as St. Pierre) is not known. It is known that France established a fishing settlement on the islands in 1604, and ceded the islands to Britain in 1713.11 By the Treaty of Paris, dated February 10, 1763, the islands were ceded to France upon the conditions that France". engages not to fortify the said islands; to erect no buildings upon them, but merely for the conveniency of the fishery; and to keep upon them a guard of fifty men only for the police."12 The British again administered the islands during the Napoleonic wars from 1793 until 1814, and returned them to France in the First Peace of Paris treaty of May 30, 1814.13

The islands were settled by the French, and over the years have served as a recreation area for the French fishermen and a North American base of operations for that industry.14 Apparently little note had been given St. Pierre until the possible existence of oil in that vicinity was realized. Although the islands had belonged to France for over 200 years, it was not until 1967 that a French head of state visited them.15

B. What did Britain cede to France

Since the French claim to a portion of the continental shelf of North America depends solely on its island territories south of Newfoundland, it is helpful to determine what Britain ceded to France in 1763. The complete text of Article VI of the Treaty of Paris dated February 10, 1763 is as follows:

The King of Great Britain cedes the islands of St. Pierre and Miquelon, in full right, to his most Christian Majesty, to serve as a shelter to the French Fishermen: and his said most Christian Majesty engages not to fortify the said islands; to erect no buildings upon them, but merely for the conveniency of the fishery; and to keep upon them a guard of fifty men only for the police.16

11. Id., "French influence began with the establishment of a fishing settlement in 1604. The islands were ceded to Great Britain in 1713, but were returned to France in 1763."

12. A. Toynbee, Major Peace Treaties of Modern History, 1648-1967, 310 (1967). 13. Id., at 502

14. Supra note 1, "The islanders today are the descendents of the Basque and Breton fishermen who used St. Pierre and Miquelon as recreation centers an ocean away from home."

15. N.Y. Times, July 21, 1967, at 1, col. 7, "President de Gaulle told a cheering crowd here today that St. Pierre and Miquelon-those islands that are as French as can be represented France on the threshold of America.

The President was paying his first visit, and the first by a French head of state, to the small islands south of Newfoundland.

16. Supra note 12.

The provisions of the First Peace of Paris, of May 30, 1814, returning the islands to France after the Napoleanic Wars made no changes in the original cession, but simply vested in France the same rights she had prior to 1792.17 The wording of Article XIII of that Treaty makes clear that Britain is speaking only of fisheries and serves to reinforce the obvious inferences to be drawn from a reading of Article VI, of the Treaty of Paris.

The French right of Fishery upon the Great Bank of Newfoundland, upon the Coasts of the Island of that name, and of the adjacent Islands in the Gulf of St. Lawrence, shall be replaced upon the footing on which it stood in 1792.18

It is worthy to note that Article VI ceding St. Pierre to France concerns only that cession,19 and immediately precedes Article VII in which it is stated in part:

In order to re-establish peace on solid and durable foundations, and to remove forever all subject of dispute with regard to the limits of the British and French territories on the continent of America; it is agreed, that, for the future, the con-fines between the dominions of his Britannick Majesty, and those of his Christian Majesty, in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the River Mississippi.

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The treaty then goes on to specify certain cessions and agreements by both Britain and France. It is significant that none of those cessions or agreements place restrictions on the use of the territory concerned or limit fortifications or construction in those territories.

The Treaty of Paris (1763) was the final settlement of French and British claims to the territories of America. The agreement was made between two sovereign states which were traditional enemies and which not infrequently engaged in war with one another. They were then, in effect, dividing up the North American Continent. The islands of St. Pierre and Miquelon were located far from any other territory which the treaty granted to France. They were in fact only fifteen miles from the southern bank of Newfoundland and were less than one hundred and fifty miles east of Cabot Strait, which is an entrance to the Gulf of St. Lawrence and ultimately the St. Lawrence River. If the islands were fortified and suitable harbor facilities constructed, they could be of military value in the event of hostilities between Britain and France. The possible strategic value of the islands would explain why the provisions prohibiting the construction of fortifications and the erecting of buildings ". . . but merely for the conveniency of the fishery. . .", as well as the severe limits on the number of men assigned to the island as guards, were inserted in the treaty. The language of Article VI and its separation from the other treaty provisions determining which territory went to each sovereign, would seem to indicate that, notwith

17. Supra note 13.

18. Id.

19. Supra note 12. 20. Id.

...

standing the use of the term "cede", the cession was in fact for a limited purpose, i.e., to permit France to support its fishing fleet off Newfoundland, as contrasted to providing any sort of extensive grant to France.

Another factor for consideration is that no thought had been given to a continental shelf in 1763, and Britain no doubt considered that she was sovereign only over the islands and their territorial sea. The situation is not unlike that in the Abu Dhabi Arbitration in which Lord Asquith concluded that, as late as 1939, a contract referring to all lands and seas did not contemplate the continental shelf outside the territorial sea since the concept did not emerge until after that date.21

It would then be strange indeed, under all the circumstances, for Britain to make a sweeping cession to France of any territory in excess of that absolutely required to support the fisheries operation. Since no thought could have been given to a continental shelf because the concept was not recognized at that time, it may be concluded that Britain did not knowingly cede any part of the shelf to France in the Treaty of Peace (1763). France's claim to the continental shelf thus cannot be based on cession by Britain. Her claim must then depend on her sovereignty over St. Pierre, and the extent of her claim is limited by the amount of shelf which appertains to those islands either through convention or customary law.

III. CONVENTION ON THE CONTINENTAL SHELF

The Convention on the Continental Shelf came into effect on June 10, 1964.22 Both Canada23 and France24 have acceded to the convention and each have made reservations and declarations on the occasion of their accession as permitted by Article 12 of the Convention.25

A. Applicable Articles of the Convention

Two articles of the convention would seem to be pertinent to the dispute between Canada and France as to France's portion of the continental shelf. Article 1 states:

21. Petroleum Development LTD. v. Sheikh of Abu Dhabi, 18 I.L.R. 144 (1951) (Lord Asquith of Bishopstone, Umpire), "Placing oneself in the year 1939 and banishing from one's mind the subsequent emergence of the doctrine of the 'shelf' and everything to do with the negotiations, I should have thought this expression could only have been intended to mean the territorial maritime belt in the Persian Gulf, which is a three mile belt; together with its bed and subsoil...."

22. Convention on the Continental Shelf, opened for signature April 29, 1958, T.I.A.S. No. 5578, 499 U.N.T.S. 311.

23. Letter from Constantin A. Stravopoulos, The Legal Counsel, United Nations, to The Secretary of State, Washington, D.C., March 4, 1970.

24. Convention on the Continental Shelf, Accession by France, June 14, 1965, 538 U.N.T.S. 336.

25. Supra note 22, "At the time of signature, ratification or accession, any State may make reservations of the Convention other than to Articles 1 to 3 inclusive."