Foreign Relations of the United States Diplomatic Papers, 1936, The American Republics, Volume V
The Ambassador in Mexico ( Daniels ) to the Secretary of State
[Received July 20.]
Sir: With reference to my despatch No. 3646 of June 3, 1936, and other correspondence on the above mentioned subject, I have the honor to enclose herewith for the Department’s consideration a copy and translation of the Foreign Office’s note number 5470 of July 8, 1936, which was written in reply to the Embassy’s note No. 1635 of June 3, 1936.
The Mexican Minister for Foreign Affairs ( Hay ) to the American Ambassador ( Daniels )
Mr. Ambassador: I have the honor to acknowledge the receipt of the courteous note of that Embassy, number 1635, of the 3rd of June [Page 765] last, with respect to the extension of the territorial waters of Mexico and the United States.
The Government of Mexico notes that the Government of the United States does not reject the interpretation which my Government has given to the first paragraph of Article 5 of the Treaty of 1848, regarding the extension of the territorial sea in the Gulf of Mexico, which is the same that Mr. James Buchanan expressed concerning the matter in the note which he addressed to the Chargé d’Affaires of Great Britain on August 19, 1848; likewise, it judges that it should not be concluded that the whole of the territorial waters of Mexico extends 9 miles, in view of the fact that that extension has been fixed in a definite area.
Moreover, the Government of the United States concludes that the extreme western limit of the United States and Mexico terminates on the coast of the Pacific Ocean. To that effect a paragraph of Article 5 of the Treaty of 1848 is cited, which reads:
“And, in order to preclude all difficulty in tracing upon the ground the limit separating Upper from Lower California, it is agreed that the said limit shall consist of a straight line drawn from the middle of the Rio Gila, where it unites with the Colorado, to a point on the coast of the Pacific Ocean, distant one marine league due south of the southernmost point of the port of San Diego. …”
This interpretation of Article 5 is not in accord with the purposes of those who signed the Treaty, since the paragraph cited does not refer expressly or implicitly to the territorial sea, but has exclusively as its object the avoidance of difficulties by indicating the tracing of the terrestrial dividing line between Upper and Lower California, without this signifying that they prescinded their inalienable right to the corresponding territorial waters.
Accordingly, there is no basis whatsoever for supposing that the extreme western limit between Mexico and the United States terminates on the coast of the Pacific Ocean.
Moreover, the Government of the United States never objected to Fraction I of Article 4 and Article 5 of the Law of December 18» 1902, in which it was stated precisely that Mexico had absolute sovereignty over the territorial sea which bathed its coasts.
Moreover, in Article 10 of the Convention of December 23, 1925,67 signed by Mexico and the United States, both countries recognized in a categorical manner the unquestionable existence of the territorial sea which bathes its coasts on the side of the Pacific Ocean.
“Article 10.—The High Contracting Parties agree that the waters dealt with under this Convention shall be the waters of the Pacific coasts of California, United States of America, and Lower California, [Page 766] Mexico, including both territorial and extra-territorial waters, the latter being the westward extension of the former.”
As can be observed, this Convention abstained from fixing the extension of the territorial sea of Mexico and the United States with respect to the Pacific Ocean because it considered that, for the purposes of the treaty, all waters off (a partir de) the coasts of the two countries would be jurisdictional waters.
Finally, the “International Fisheries Commission—United States and Mexico”, created by Article 11 of the Convention of 1925, adopted unanimously the following resolution on June 21, 1926:
“With the object of making effective the program of conservation of both Governments and in accordance with Clause 10 of the Treaty between Mexico and the United States, the International Fisheries Commission establishes in this act a zone of fifty nautical miles west of the respective coasts. It is understood that the said zone of fifty nautical miles shall be applied in like manner to the islands located in the waters embraced in Clause 10 of the Treaty, and that all of the marine products existing in the said zone or extracted from it shall be considered the property of the Nation off whose coasts they may exist or may be extracted.”
Later, the Government of the United States was not in accord with the decision of the Commission.
The Government of Mexico, after signing the Treaty of 1848 and at every opportunity which arose, fixed with diverse countries an extension equal or greater than that which was stipulated for territorial waters in the said Treaty of 1848. Besides that Treaty, Mexico has in force the following:
With Guatemala.—Treaty on Limits, of September 27, 1882.68 . . . . . . . . . . . . . . . . . . . . . 16.668 kilometers (3 marine leagues).
With Ecuador.—Treaty of Friendship, Commerce, and Navigation, of June [July] 10, 1888.69 . . . . . . . . . . . . . . . . . 20 kilometers.
With the Dominican Republic.—Treaty of Friendship, Commerce, and Navigation, of March 29, 1890.70 . . . . . . . . . . 20 kilometers.
The absence of a precise limitation of the extension of the territorial waters of both countries in the Pacific Ocean, for the purposes of the Treaty, is due to an understandable omission since, evidently, it was considered that by analogy, the precedent having been established, the extension fixed for the littoral of the Gulf of Mexico should be adopted also for the Pacific Ocean.
In this respect, it seems to be inferred from the note of that Embassy, number 1438 of March 7, that the extension in question should be [Page 767] three miles instead of the nine, to which the Presidential Decree of August 29, 1935, makes reference.
All of the jurists and authors of treatises on International Law have recognized expressly and have agreed unanimously that: there exists no fixed rule for determining the extension of the territorial sea, and that up to the present time it has not been possible for the States to arrive at a general agreement in the matter.
It would be too prolonged to cite textually the opinions of these authors. Accordingly, I shall limit myself to mentioning the names of some of them of recognized authority:
Samuel Pufendorf.—Elementorum Jurisprudentiae Universalis Libri Duo (1660) Definition V #8.
Cornelius van Bynkershoek.—De Dominio Maris Dissertatio (1702) Chapter II.
Emerich Vattel.—Le Droit de Gens ou Principes de la Loi Naturelle (1758) Chapter XXIII.
Bobert Phillimore.—Commentaries upon International Law (1854) Volume 1, Part III, Chapter VIII.
L. Oppenheim.—International Law (1905) Volume 1, Part II, Chapter 1, #186.
Frantz von Liszt.—Derecho International Publico (1917) (Translation) Book II, Chapter IV.
“Be that as it may, the question arises how far into the sea those waters extend which are coast waters, and are therefore under the sway of the littoral State. Here, too, no unanimity exists as to the breadth of the belt or the point on the coast forma (sic) which it is measured” (Oppenheim)
“The zone of three miles is, as we have seen, insufficient. It would be advantageous to extend it to such a point that would enable the littoral State to exercise its effective sovereignty and assure the defense of its interests. If it is not desired to recognize in each State the right to determine the zone of its littoral waters by the range of its coast batteries, an international agreement on the maximum limit of the said zone would be extremely advantageous (six or ten nautical miles)” (von Liszt).
Almost all of the States admitted the urgent need of putting an end to the uncertainty which existed concerning the extension of the territorial sea, and to this end the “Conference for the Codification of International Law”, which was held at The Hague in 1930,71 was convoked.
Unfortunately, the diversity of points of view prevented an agreement being reached, since while some countries proposed three miles, others proposed four, six, and even twelve.
The Conference, in the Final Act, recommended to the Governments that the matter continue to be studied.[Page 768]
“B. Territorial sea.
“I. The Conference
“Notes that the discussions have revealed, in respect of certain fundamental points, a divergence of views which for the present renders the conclusion of a convention on the territorial sea impossible but considers that the work of codification on this subject should be continued. It therefore
“Requests the Council of the League of Nations to invite the various Governments to continue, in the light of the discussions of this Conference, their study of the question of the breadth of the territorial sea …”
In view of the fact that the Treaty of 1848 is not clear concerning the extension of the territorial sea in the Pacific Ocean and that Article X of the Treaty of 1925 did not fix its extension concretely either and, whereas neither the doctrine nor the practice are in accord with respect to the same and the Conference for the Codification of International Law had to suspend its work without having reached the said agreement, the Government of Mexico considers that there is no basis for maintaining that the territorial waters of Mexico and the United States should have an extension of three miles in the Pacific Ocean.
The Government of Mexico, on issuing the Decree of August 29, 1935, considered that the only way of arriving at a definitive solution regarding the Pacific Ocean, consisted in taking into account the precedents previously established between Mexico and the United States. In this special case, Article 5 of the Treaty of 1848, in referring to the Gulf of Mexico, established a precedent which cannot be ignored immediately either by Mexico or by the United States.
By virtue of the foregoing, Mexico believes that the precedent established by the Treaty of 1848 with respect to the Gulf of Mexico and the principles invoked should be taken into consideration by the United States in fixing the extension of its territorial waters in the Pacific Ocean in so far as Mexico is concerned; an equitable solution which, by placing the two countries in the same position, permits a better and more rational utilization of the resources which nature has placed at the disposition of both respectively.
I avail myself [etc.]