The Mexican Minister for Foreign Affairs (Hay) to the American Ambassador in Mexico (Daniels)63
Mr. Ambassador: I have the honor to acknowledge the receipt of Your Excellency’s courteous note dated March 7th last, in which you are good enough to inform me that the Government of the United States reserves all rights of whatever nature so far as concerns any effects upon American commerce of the enforcement of the Presidential Decree of August 29, 1935, published in the Diario Oficial of August 31, 1935, whereby the breadth of Mexican territorial waters is extended to nine nautical miles.
In reply, I beg to inform Your Excellency that the Government of Mexico, in issuing the abovementioned Decree, bore well in mind the general principles of International Law and adhered strictly to the provisions of Article V of the Treaty of February 2, 1848, concluded between Mexico and the United States,63a which reads as follows:
“The dividing line between the two Republics shall begin in the Gulf of Mexico, three leagues from land at the mouth of the Rio Grande …”
The abovementioned paragraph leaves no doubt that reference is made to the breadth of territorial waters, which was fixed at three nautical leagues, a distance which at that time was equivalent to nine nautical miles, that is, the 16.668 kilometers mentioned in the Decree in question.
There is no question but that Article V refers to territorial waters, despite the fact that that phrase does not expressly occur, for this question has been definitely settled since 1848, in which year Mr. Percy W. Doyle, Chargé d’Affaires of the British Government, addressed to the then Minister for Foreign Affairs, Don Mariano Otero, the following note dated June 9:
“The undersigned, Her Britannic Majesty’s Chargé d’Affaires, has the honour to inform His Excellency The Minister for Foreign Affairs Don Mariano Otero, that he has received instructions by the Packet which has just arrived, to state, that Her Majesty’s Government have observed in the fifth Article of the Treaty of Peace, which was signed on the 2nd of February last between the United States and Mexico, that the boundary line between the two Republics is defined as commencing in ‘the Gulf of Mexico three Leagues from land opposite [Page 761] the mouth of the Rio Grande.’ As the tenour of this Article seems to involve an assumption of jurisdiction on the part of the United States and Mexico over the sea beyond the usual limit of one Marine league (or three Geographical Miles) which is acknowledged by international law and practice as the extent of territorial jurisdiction over the sea that waters the Coasts of States, Her Majesty’s Government think it right to declare, in order to prevent future misunderstanding, that they cannot acquiesce in the extent of maritime jurisdiction assumed by the United States and Mexico in the Article in question, and Her Majesty’s Government consider this step the more necessary because the Gulf of Mexico is a great thoroughfare of maritime commerce, and is not like a Bay or Creek which can by its nature be susceptible of being subjected to exclusive Dominion.”
John T. Crampton, Esq., Chargé d’Affaires of the British Government in the United States, addressed a similar note to the Government of the United States on April 30, 1848, protesting against the provision of Article V of the Treaty of 1848 extending territorial waters from three to nine nautical miles.
In this connection, Mr. James Buchanan, then Secretary of State of the United States, addressed to Mr. John T. Crampton on August 19, 1848, the following note,64 in which it is tacitly recognized (reconoce, al no negarlo) that Article V of the Treaty of 1848 refers to territorial waters when speaking of the three leagues:
“I have had the honour to receive your Note of the 30th of April last, objecting, on behalf of the British Government, to the Clause in the fifth Article of the late Treaty between Mexico and the United States, by which it is declared that “The boundary line between the two Republics shall commence in the Gulf of Mexico three leagues from land” instead of one league from land, which you observe ‘is acknowledged by international law and practice as the extent of territorial jurisdiction over the sea that washes the coasts of States.’
“In answer I have to state that the stipulation in the Treaty can only affect the rights of Mexico and the United States. If for their mutual convenience it has been deemed proper to enter into such an arrangement, third parties have no just cause of complaint. The Government of the United States never intended by this stipulation to question the rights which Great Britain or any other Power may possess under the law of nations.”
By virtue of the foregoing, the following conclusions are deduced:
- The territorial waters of Mexico as well as those of the United States have been fixed by the Treaty of Peace, Amity and Boundaries concluded between the two countries on February 2, 1848, at nine nautical miles or 16 kilometers 668 meters.
- Any doubts as to whether Article V of the said Treaty refers to territorial waters have been definitely settled by the exchange of notes between Mexico, the United States, and Great Britain. In his note of August 19, 1848, Mr. James Buchanan, Secretary of State of the United [Page 762] States, recognizes that the territorial waters extend for three nautical leagues as determined by the United States and Mexico in the Treaty of Peace, Amity and Boundaries signed on February 2, 1848.
- The Decree of August 29, 1935, published in the Diario Oficial of August 31, 1935, conforms strictly to the provisions of Article V of the above mentioned Treaty, since it fixes the breadth of territorial waters at nine nautical miles, that is, 16 kilometers, 668 meters.
The Government of Mexico believes that an appraisal of the foregoing facts will cause the Government of Your Excellency to consider as just and proper the decision taken by the Government of Mexico in regard to territorial waters, and therefore as unwarranted the reservation of rights made by the Government of the United States.
I avail myself [etc.]