711.008 North Pacific/211a

The Secretary of State to the Ambassador in Japan (Grew)

No. 1589

Sir: Reference is made to the Department’s telegrams No. 308 of November 19, 1937, 6 p.m.,22 and No. 309 of November 20, 1937, noon,23 and to subsequent communications in regard to the Alaska salmon fishery question.

As a result of careful and continuous study of this question the Department, while appreciating previous collaboration of the Japanese Government, is of the opinion that there is genuine need of and a warrantable basis for an agreement with regard to the Alaska salmon fishery situation of a more comprehensive and permanent character than that reached by the Governments of the United States and Japan on March 25, 1938.

The assurances given by the Japanese Government with regard to the fishing of Japanese nationals have had the effect of calming the immediate apprehensions of interested Pacific Coast communities, but there has been little or no disposition to regard the Japanese assurances as permanently settling the salmon fishing question. In consequence the Department has repeatedly been urged to continue negotiations with the Japanese Government toward a permanent arrangement which will give unmistakable recognition and protection to the established American interest and claim in the salmon fishery of Alaska. Although representatives of salmon fishing interests have expressed themselves as gratified with the Japanese assurances as providing a temporary expedient, they have consistently been opposed to regarding such assurances as anything more than this. Their opposition has been based on the grounds that (1) the assurances do not give explicit recognition to the special American interest and claim in the fisheries in question, (2) Japan does not waive but expressly reserves its “rights under international law”, and (3) consequently the decision as to possible future fishing by Japanese nationals in Alaskan waters rests with Japan. Thus, while American fishermen and interested communities have been encouraged by the efforts made in their behalf, they have remained disturbed and uneasy with regard to what the future may hold.

A further important consideration, and one with which the Department has been and continues to be seriously preoccupied, is the movement in the Congress to deal with the Alaska fishery situation by legislative action. This movement is led by certain members of Congress who believe that the salmon fishery problem can best be solved by an act of Congress which would authorize the assertion of jurisdiction [Page 192] by the United States over salmon fishing waters adjacent to the coast of Alaska. Supporters of the move to resort to legislation have made the Alaska salmon fishery a prominent issue in Congress; debate favorable to legislative action has ensued; and support has been won both in and out of Congress for the view that the conventional law of fisheries affords no adequate basis for the protection and perpetuation of migratory fish such as the salmon. The question of enforcement of legislation designed to protect the Alaska salmon fishery beyond the ordinary three-mile limit has also been discussed in the Congress in connection with the decision rendered in the Bering Sea Fur Seal Arbitration case of 1893,25 and reasons have been given why the decision in that case does not constitute an adverse precedent. It has been strongly asserted that the pertinent facts with regard to the Alaska salmon fishery situation clearly distinguish it from the Bering Sea fur seal fishery and that even the decision in the fur seal arbitration might have been in favor of the United States had the case been argued on less conventional and legalistic grounds. Support for this view also is found in the opinions that have been expressed to the Department from time to time by persons well qualified to consider questions of international law.

Through effective presentation of the situation of the Alaska fishery, the thesis that legislative action provides a reasonable and effective means of protecting this fishery undoubtedly gained substantial support during the last session of the Congress. This being the case, it appears unlikely, and there certainly is no assurance, that Congress will let the salmon fishery issue rest without further attempts to enact legislation. Moreover, should there be pressed in the Congress legislative proposals of less drastic nature than those previously put forward, the Department might find an opposing position untenable.

The development of public thought in regard to the fishery matter also has advanced and become an important factor in the present situation. For more than a year public attention has been focused upon the Alaska salmon fishery issue by articles in the press and magazines, by debates and committee hearings in the Congress, by radio addresses, and by the efforts of private persons and organizations. This publicity, which has been national in scope, has presented a disturbing picture of the uncertain situation of the Alaska salmon fishery with regard to its exposure to exploitation by foreign nationals.

Public attention has been drawn to the fact that while a profound change in the international fishery situation has been brought about [Page 193] by the advent and employment of highly mechanized fishing methods, refrigeration facilities, and the floating cannery, no comparable progress has been made toward the prevention of possible disastrous use of these new methods and facilities in long range deep sea fishing. It has been pointed out that not only are valuable and indispensable food resources in danger of depletion by the newer fishing methods and facilities employed by alien fishermen but that the established rights and interests of American nationals in certain fisheries are seriously threatened. Above all, the representatives of affected communities have especially emphasized the threat constituted by the floating cannery or “factory ship”, capable as it is of operating in conjunction with highly mobile auxiliary units over wide areas of the sea. The result has been the development of an almost universal conviction that the means of affording protection to certain classes of coastal fisheries, especially the salmon fisheries, have not kept pace with the expansion of world fishing activity or the development of modern fishing methods.

There has further developed from this situation a consensus of opinion that the older concepts represented by the traditional law of fisheries, including the principle of the three-mile limit, offer no adequate basis under modern conditions for the protection and perpetuation of coastal fisheries. The view is widely held that, under modern conditions, continued rigid adherence to the older and conventional views as to the maritime jurisdiction of riparian states would obstruct and possibly cancel all efforts toward equitable and peaceful arrangements with regard to important fishing interests of such states. The American public has thus definitely taken a position in support of those representatives of Pacific Coast communities and members of the Congress who are earnestly seeking a fundamental settlement of the Alaska salmon fishery problem. The general conception of the basis of the special American interest and claim in the salmon fishery remains substantially the same as that set forth in the memorandum presented by the Embassy to the Japanese Government on November 22, 1937.26 The reasonableness and the applicability of the biological, geographical, and economic factors which were emphasized in that memorandum in support of the American claim received the approval of the press, the general public, and affected interests.

The trend of American thought and opinion as herein reviewed has thus given rise to a demand for a fundamental solution of the Alaska salmon fishery question.

The immediate concern of the Department is with the prospect that in the next session of the Congress further attempts will be made [Page 194] to pass legislation which probably would have the effect of undermining if not of nullifying the existing arrangement with Japan. As already indicated, the Department would probably find a position of opposition difficult to take or maintain should legislation having the support of public opinion and sentiment be pressed in the forthcoming Congress.

These considerations, coupled with the desire of the American Government to take any practicable step toward promoting stabilization of the existing relations of the United States and Japan, prompt the Department to request that the Embassy ask the Japanese Government whether in the light of circumstances herein stated the Japanese Government would be disposed to reopen discussions in regard to the Alaska salmon fishery with the object of achieving a settlement of this matter which would serve to remove it more definitely from the field of possible future controversy, public agitation and debate. Upon receiving the response of the Japanese Government with regard to this question the Department would be prepared, should the response be in the affirmative, to present definite proposals for the consideration of the appropriate Japanese authorities. For your background information, but not for direct use in connection with your first approach to the Japanese Government, the proposals which the Department has under consideration are set forth in the form of a tentative draft of an agreement, copy of which is enclosed herewith.

It is not believed that any proposal looking toward the conclusion of a general fishery convention by powers interested in the North Pacific fisheries can usefully be put forward at this time. The probabilities are that both American and Canadian fishing interests would vigorously oppose the conclusion of any fishery convention with Japan which did not in effect prohibit Japanese salmon fishing in the offshore waters of Alaska and British Columbia, and there would seem to be little, if any, prospect that Japan would become a party to a convention which did have this effect. There also has been indication that the fishery authorities of the Canadian Government are not hopeful of obtaining through a convention the necessary protection of the North Pacific salmon fisheries.

The Embassy, of course, will understand that it is not the purpose of this instruction to indicate any conclusion at which the Department has arrived or may arrive in regard to the question whether legislation should be enacted. The purpose is to stress to the Japanese Government the importance to our people of a great industry and the danger of permitting the future of that industry to be undermined, and furthermore, to emphasize the trend of public thought in the United States and the possibility of legislative action. The Department regards the matter as urgent and hopes that the Embassy will be able [Page 195] soon to ascertain as definitely as possible the attitude of the Japanese Government.

In its approach to the Japanese Government the Embassy may utilize such portions of the substance of this instruction (but not the enclosure) as may seem advisable. The Department desires that the response of the Japanese Government be reported by telegraph.

Should the Embassy have any views to offer with regard to the timeliness of the action herein contemplated, or suggestions relative to possible alternative action, such views or suggestions should be telegraphed and action be deferred pending receipt of further instructions.

Very truly yours,

Cordell Hull

Draft Outline of Salmon Fishing Agreement27

Recognizing that Japan and the United States have in common vital interests in the fishery resources of the North Pacific and that the protection and perpetuation of the salmon resources in particular give rise to special problems involving collaboration of the Governments of the two countries, and encouraged by the beneficial effects in the United States of the assurances given by Japan on March 25, 1938, with regard to the Alaska salmon fishery situation, the American Government has given careful consideration to the possibility of effecting an arrangement of even more definite and comprehesive character than is represented by the Japanese assurances already given. Having in mind that the undetermined status of certain coastal fisheries has long constituted a disturbing element in the relations of states, the American Government, in the interest of good relations between the United States and Japan, is desirous of reaching such clear understanding with the Japanese Government in regard to the Alaska salmon fishery as will tend to obviate further agitation or controversy in the United States relative to this matter. Accordingly, the Government of the United States proposes the conclusion of a constructive agreement which will supplement and clarify the assurances previously given with regard to the Alaska salmon fishery and which will contain provisions substantially as follows:

The Governments of the United States and Japan recognize (a) that wherever fisheries have been developed and conserved in waters adjacent to the territories of either country primarily by the efforts of their respective nationals, in cooperation with their Governments, [Page 196] there is created in such fisheries a prior interest and claim in behalf of the nationals concerned; (b) that the migratory habits and biological characteristics of the salmon render this species of fish especially exposed to ruinous commercial exploitation by uncontrolled fishing methods, in consequence of which the protection and conservation of the salmon fisheries require the taking of special measures; and (c) that the conditions of the development of the salmon fisheries of the North Pacific, and practical considerations of justice and equity flowing therefrom, definitely sustain the right of each of the two Governments to protect in its off-shore waters the interest and claim of its nationals in such fisheries.

Prompted by the considerations set forth in the preceding paragraph the Governments of the United States and Japan hereby agree (1) that the two Governments shall reserve for the benefit of their respective nationals all salmon fishing waters adjacent to their respective territories in which the nationals of such territories have established a prior interest and claim; (2) that the salmon fishing waters thus to be reserved shall be stipulated by the Government of the country adjacent to those waters, the details of which stipulation to be made the subject of friendly consultation and agreement; (3) that the salmon fishing waters to be reserved to the nationals of either Government shall be determined with due regard to the hydrographic features and the configuration of the bordering land areas of such waters; and (4) that in order to give effect to the foregoing commitments, and as a matter of equity and comity, the nationals and vessels of each of the two Governments shall be prohibited from engaging in salmon fishing in waters which have been reserved to the nationals of the other.

  1. Foreign Relations, 1937, vol. iv, p. 761.
  2. Ibid., p. 763.
  3. See award signed August 15, 1893, by tribunal of arbitration under Treaty of February 29, 1892, between the United States and Great Britain, Foreign Relations, 1894, Appendix i, p. 109.
  4. See telegram No. 309, November 20, 1937, noon, to the Ambassador in Japan, Foreign Relations, 1937, vol. iv, p. 763.
  5. Marked “Tentative, strictly confidential, and for purposes at present of consideration only.”