It is a privilege to write a preface to this Symposium on Canada before International Courts and Tribunals, which includes many stimulating and insightful contributions. In this preface, I go back to the beginning and focus on Canada’s first cases at the International Court of Justice (ICJ) and before international arbitral tribunals.

Although Canada as a colonial territory was involved in early international arbitrations, Canada’s first involvement as an independent state as a party to a dispute before an international court took place just over forty years ago with the Gulf of Maine case before a chamber of the ICJ.Footnote ¹ Earlier arbitrations were cases in the name of Great Britain, and they frequently reflected imperial rather than Canadian interests. There were Canadian lawyers on the British legal team appearing before the Alaska Boundary Tribunal, but Great Britain did not always support the positions that Canada wanted to argue.Footnote ² So, we really begin with the Gulf of Maine case.Footnote ³

I was fortunate to be part of the legal team representing Canada in the Gulf of Maine case, which not only launched Canada into international litigation but also started the careers of some Canadian international lawyers. The Gulf of Maine case and the international arbitrations that followed shortly thereafter had an impact on both Canada as an international legal actor and the process of international dispute settlement. It is probably difficult to appreciate today, when international litigation is so commonplace, how significant a step it was for Canada (and, in fact, for the United States) to take the Gulf of Maine case to the ICJ. Referring the matter to the Court was a fall-back in case the East Coast Fisheries Agreement never came into effect.Footnote ⁴ Rather than drawing a boundary line in the Gulf of Maine, that agreement had provided for collaborative fisheries management. But the agreement was rejected by the United States Senate, and so the Gulf of Maine case was submitted to the ICJ.Footnote ⁵

And even the agreement to go to the ICJ was tentative. The parties had agreed that a five-person chamber of the Court — and not the full Court — would adjudicate the dispute. The membership of the chamber was stipulated by Canada and the United States. And, if the Court did not accept the composition proposed by the parties, then the case was to be withdrawn from the Court and submitted to an arbitral tribunal. The Court accepted the designation by Canada and the United States of the individual judges and so the case proceeded.Footnote ⁶ This approach was quite controversial at the time.Footnote ⁷ First, Canada and the United States were seen as imposing on the Court an obligation to accept the judges nominated by the two states rather than for the Court itself to determine the composition of the chamber. The Rules of Court do not contemplate an absolute veto on a chamber’s composition by parties that have requested its constitution.Footnote ⁸ Typically, the president ascertains the views of the parties, and then the members of the Court elect the members of the chamber. But this was the first case of a request by parties for a chamber, and no doubt the Court wanted to make the request work.

And the second reason for controversy was that, apart from the Canadian and United States judges, the chamber was composed of European judges. Moreover, it did not include the Japanese judge, Judge Shigeru Oda, who was the judge on the Court with the most experience at that time on the law of the sea and maritime boundaries. This composition was perceived in some quarters as Eurocentrist.Footnote ⁹ Given the history of the Court going back to its infamous decision in 1966 in the cases brought by Ethiopia and Liberia in the South-West Africa Cases,Footnote ¹⁰ the exclusion of Judge Oda enhanced suspicions that the ICJ was a court for western European states and not for the rest of the world.

But these were not the only controversies surrounding the case. Litigating with the United States was not popular within the Canadian Department of External Affairs — it was seen as a result of lawyers exercising too much influence in the department. Alan Beesley and Allan Gottlieb were dominant figures in the department, and Leonard Legault, the legal adviser to the department and agent for Canada in the Gulf of Maine Case, was a strong personality. In fact, Legault was the key figure in the preparation and presentation of the Canadian case. He was conscious of the precarious position that he and the legal team were in and that the outcome of the case would have enormous consequences for law in the department and in Canada’s foreign affairs more generally. He was aware of the view in the department that winning could be worse than losing because, if Canada won, the United States could be expected to retaliate in other ways with a significant impact on relations between the two countries. But Legault had the strong political support of the prime minister, the minister of external affairs, and the minister of justice. He tried to ensure that, even if there were to be an unfavourable result, there could be no question that everything had been done to ensure that the best possible case had been put forward.

This approach was demonstrated in the hiring of counsel. Given the lack of international lawyers in Canada with international litigation experience, Canada retained international legal counsel with experience both before the ICJ and in maritime boundary delimitation: Günther Jaenicke, who had argued the North Sea Continental Shelf Case for Germany;Footnote ¹¹ Prosper Weil, who later served as counsel for Malta in the Continental Shelf (Libya v Malta) caseFootnote ¹² and published a leading text on maritime delimitation;Footnote ¹³ Derek Bowett, who had argued the Anglo-French case relating to the English Channel and was also counsel for Libya in the abovementioned Continental Shelf case; as well as Ian Brownlie and Antonio Malintoppi, who both had extensive international litigation experience. In other words, all efforts were made to ensure that the best possible case would be presented by Canada.

It was also evident in the care taken in managing the ways in which the judgment was to be received — win or lose. In this, there was a common interest in Canada and the United States where engaging in international litigation was also very controversial. Legault worked with the United States agent, Davis Robinson, to ensure that, whatever the outcome, neither side would announce the result in a way that denigrated the other side — in other words, there would be no gloating. Both sides agreed that this would facilitate the acceptance of the result by both governments and the general public.

The care taken in the selection of international counsel and planning for the outcome was also shown in the way in which the case was prepared and argued. The design of the case and the drafting of the written pleadings were in the hands of the Canadian legal team, under the control of, and closely monitored by, Legault. The role of international counsel was to give general comments on the drafts of the written pleadings and then to present oral argument at the hearing. This core legal team consisted of Legault, Blair Hankey as deputy agent (both from the Department of External Affairs), and Alan Willis (Department of Justice). They were supported by Ross Hornby (Justice), Valerie Hughes, Sarita Verma, and me, all linked to the Department of External Affairs. Jan Schneider, an American lawyer, also worked with the legal team.

Thus, the intellectual content of the Canadian position was largely developed in-house, and, in this connection, the role of Allan Willis was vital — in respect of his conceptualization of arguments, his elegant writing skills, and his oral advocacy. And while most of the international counsel drafted their own oral pleadings, they were controlled and approved by the agent, Legault. Nothing was included in the written pleadings or stated by counsel before the ICJ that had not been approved in advance by him. This came as a shock to some international counsel who had not worked previously on a case where the agent was not just a political figure representing the state. Here, they were dealing with an agent who was politically, intellectually, legally, managerially, and emotionally completely involved in the case.

Before the oral hearing, two eminent Canadian counsel were also engaged. Ian Binnie, who at the time was on leave from private practice and an assistant deputy minister in the Department of Justice, and Yves Fortier, who had a distinguished litigation practice and had been president of the Canadian Bar Association. Ronald St. J. Macdonald, one of the founders and the first president of the Canadian Council on International Law and the leading Canadian international lawyer of his time, was also involved in these later stages of the case. Further, Lawrence Herman, who had formerly been a lawyer in the Department of External Affairs, was engaged to work with Fortier.

Maritime boundary cases involve maps and charts, showing the geographical area, the relevant coasts, where lines are to be drawn and adjusted. The question facing the Canadian legal team was as follows: how could we show all this effectively to the ICJ? Canadian lawyers present at the oral pleadings stage before the Court in the request by Italy to intervene in the Continental Shelf (Libya v Malta) dispute observed that the judges on the bench simply could not see the detail on maps placed on an easel beside counsel who pointed to features in support of their legal argument. This led to the development of a “lightbox,” a large wooden and glass structure in which coloured transparencies of maps were moved automatically on a roller by a small electric motor. The system was backlit so that there was a very clear image that could be viewed easily by the Court. It was the first attempt to provide real clarity in the presentation of graphic evidence to the ICJ. When the case was over, the light box was donated to the Court archives and, no doubt, has since been thrown out.

The line drawn by the ICJ in the Gulf of Maine case was regarded very positively in Canada, and it was accepted by the United States. This success and the experience gained made it possible a few years later for Canada to agree to litigating its disputes with France concerning French fishing vessels in the Gulf of St. Lawrence and the maritime boundary around St. Pierre and Miquelon.Footnote ¹⁴ Since, following the Nuclear Tests Cases,Footnote ¹⁵ France had withdrawn its acceptance of the jurisdiction of the ICJ, both disputes were resolved by arbitration. The fishing vessels case (the La Bretagne arbitration)Footnote ¹⁶ concerned the right of Canada as the coastal state to regulate the technology on foreign vessels otherwise entitled to fish in its waters. France had sought to include a 49.9-foot factory trawler (La Bretagne) amongst the ten French vessels under fifty feet in length entitled to fish in the Gulf of St. Lawrence under the 1972 fishing agreement between Canada and France.Footnote ¹⁷ Canada had rejected the vessel because of the belief that the catch capacity of such a factory trawler would have too great an impact on the stocks and lead to excessive demands for quotas.

The arbitration, held in Geneva before a three-member tribunal,Footnote ¹⁸ was of much smaller scale than the Gulf of Maine case. It involved a team of lawyers from the Department of External AffairsFootnote ¹⁹ and the Department of Justice,Footnote ²⁰ with some consultation with international counsel.Footnote ²¹ However, in this case the historic difference over whether responsibility for international litigation rested with the Department of Justice or the Department of External Affairs came to the fore. The agent and lead lawyer for the case, Philippe Kirsch, was a member of the Department of External Affairs. The senior legal counsel for the case from the Department of Justice, T. Bradbrooke Smith, who was an assistant deputy minister of justice, took the view that the lead role in international litigation constitutionally belonged with the Department of Justice. This tension created some difficulties in the organization and preparation of the case, although it was largely resolved pragmatically by cooperation between more junior lawyers from Justice and External Affairs and the lead role of the agent from External Affairs was therefore preserved. However, it indicated that, in future litigation, there had to be better cooperation between the two departments.

The majority of the tribunal decided that Canada did not have the authority to regulate whether the French trawlers admitted under the 1972 agreement could process their catch on board. It might be queried whether today a tribunal would interpret the powers of a coastal state so restrictively. In any event, it turned out that La Bretagne was not a viable form of fishing vessel, and no further trawlers like La Bretagne materialized.

The dispute over the maritime boundary around the French islands of St. Pierre and Miquelon, which lie off the coasts of the Canadian provinces of Newfoundland and Labrador and Nova Scotia, resulted in a much more substantial international arbitration some seven years later.Footnote ²² This time, the arbitration involved a five-member tribunal, which sat in New York.Footnote ²³ The organization of the Canadian legal team was more along the lines of the Gulf of Maine case, with the agent and the deputy agent being from External Affairs, with a mixture of lawyers from both the Department of JusticeFootnote ²⁴ and the Department of External Affairs,Footnote ²⁵ together with international counselFootnote ²⁶ and Canadian counsel external to government.Footnote ²⁷ In this case, the two departments cooperated very effectively. As in the Gulf of Maine case, the written pleadings were prepared by the Canadian legal team in Ottawa, but, unlike the Gulf of Maine case, the oral arguments were presented predominantly by Canadian lawyers.

The case represented a challenge for the Canadian legal team since the approach had to be different from that taken in the Gulf of Maine case. There, the Canadian position relied on the principle of equidistance. But, in the case of the islands of St. Pierre and Miquelon, the equidistance approach favoured France, and, indeed, it was the basis of the French argument. Thus, the notion of radial projection of coasts developed in the context of the Gulf of Maine case was not part of the Canadian position in the arbitration between Canada and France.

Another deviation from what had occurred in the Gulf of Maine case related to the use of technology to present visual material to the tribunal. By the time the Case Concerning the Delimitation of Certain Maritime Areas between Canada and France (St. Pierre and Miquelon case) was being prepared, advances in geographical information systems (GIS) meant that images could be projected onto a computer or video screen with much more flexibility. Coasts could be depicted, and lengths calculated, and lines could be redrawn and adjusted in real time. While the “lightbox” made an appearance during the oral hearing, it was by now outdated technology. Using GIS in the St. Pierre and Miquelon case was the precursor to what is now the normal method of presenting graphic material in maritime boundary litigation. The result in the St. Pierre and Miquelon case was not very favourable to France, which received only a twenty-four-nautical-mile area around the islands and a ten-nautical-mile “baguette” to the south out to the two-hundred-nautical-mile limit.Footnote ²⁸ In effect, it meant that any activity by France within that narrow zone would require cooperation with Canada.

Canada’s first cases before the ICJ and international tribunals involved important questions of the law of the sea. However, with the conclusion in 1987 of the Canada-US Free Trade Agreement (NAFTA), with its own dispute settlement mechanism, Canada’s involvement in international litigation shifted to another field — state-to-state litigation over international trade issues before five-member panels modelled on dispute settlement under the General Agreement on Tariffs and Trade. Footnote ²⁹ And following the conclusion of NAFTA in 1994, which incorporated investor-state dispute settlement provisions, another avenue opened for international litigation — three-member tribunals along the model of dispute settlement under the International Centre for Settlement of Investor Disputes (ICSID).

This increase in international litigation meant that the question of who leads in international litigation — the Department of Justice or the then Department of Foreign Affairs and International Trade (DFAIT) — had to be resolved. This was done by setting up a joint unit of the Department of Justice and DFAIT lawyers who would prepare and plead cases for Canada within the World Trade Organization (WTO) or under NAFTA and cover both trade and investment disputes, including disputes brought by investors under both NAFTA and other international agreements. This approach to managing international litigation in the trade and investment fields has been highly successful in developing the skills and expertise of lawyers over a significant volume of disputes. Canada, which is an active participant in the WTO’s dispute settlement, is one of the few countries that utilizes its own lawyers rather than relying on large multinational law firms.

The Gulf of Maine case, as well as making major contributions to the international law of the sea on such matters as the single maritime boundary and the use and adjustment of equidistance, was a landmark for Canada in international litigation. Canada’s experiments in developing techniques for presenting visual material to the ICJ and international tribunals, started in Gulf of Maine and continued in the arbitration between Canada and France, were the precursor of practice in the presentation of visual material in international litigation today. The Gulf of Maine case developed Canadian expertise in dispute settlement, which became evident in future trade and investment dispute settlement conducted almost exclusively by Canadian government lawyers. Moreover, a number of individuals on the Canadian legal team went on to independent careers in international dispute settlement.Footnote ³⁰

All of this is part of the legacy of the Gulf of Maine case where Canada showed that it could litigate at the international level and litigate with the United States without the dire consequences that some in the Department of External Affairs at the time foresaw. Indeed, a broader willingness by Canada to accept the principle of state-to-state dispute settlement in international agreements and to engage in litigation was built in part on that earlier experience. The commitment and dedication that epitomized Canada’s involvement in the Gulf of Maine case had at its fount the tireless efforts of Leonard Legault, as agent, who was determined to show that Canada could engage in, and succeed at, international litigation.