Foreign Relations of the United States, Diplomatic Papers, 1940, The American Republics, Volume V

740.00111A.R.–N.C./154

The Acting Chief of the Division of the American Republics (Bonsai) to the American Member of the Inter-American Neutrality Committee (Fenwick)

Washington, November 16, 1940.

My Dear Professor Fenwick: In further reply to your letter of October 31 [21], and with particular reference to the project presented by the Uruguayan Delegation at Habana on the Extension of Territorial Waters, I take pleasure in transcribing for your personal information the following statement prepared by Mr. Hackworth on this subject:

“It seems to me that Professor Fenwick should endeavor to prevent any definite recommendation by the Neutrality Committee for the acceptance of the 25-mile belt. I say this for the following reasons:

“The question as to the width of the belt of the territorial waters is one which, as Professor Fenwick knows, has given rise to much discussion, and while the United States, Great Britain, and a number of other countries adhere to the 3–mile rule, certain other countries have claimed jurisdiction for certain purposes to a greater extent but without uniformity, as for example, in connection with fisheries, enforcement of customs laws and regulations, etc. These claims have not been recognized by countries adhering to the theory of the narrower belt. United States customs enforcement officers are authorized to board vessels within 12 miles of our shores when they are suspected of being engaged in smuggling, but prior to the adoption of the 18th amendment to the Constitution, the exercise of such jurisdiction was, for the most part, confined to American vessels. In order to take care of the complaints of foreign governments with respect to the boarding of their vessels outside the 3-mile limit, conventions were entered into with various countries, beginning with Great Britain in 1924,¹⁰ containing reciprocal provisions regarding the boarding of vessels within one hour’s sailing distance from the shore under certain conditions. Some of these conventions declared the intention of the parties to uphold the principle of 3 marine miles as the limit of territorial waters while others declared that the parties retained their rights on the question of extent of territorial jurisdiction.

“The Anti-Smuggling Act of 1935¹¹ gives the President authority to declare customs enforcement areas on the high seas adjacent to American waters for the purpose of dealing with hovering vessels engaged in smuggling operations, but this act can hardly be regarded as a criterion for general purposes since it relates only to smuggling and has not been put to any international test.

“The subject of territorial waters was discussed at The Hague Conference in 1930¹² for approximately a month after more than two years’ preparation by the League of Nations for the conference, resulting in failure of agreement. If the American Republics should be able to come to an agreement on the subject there is no assurance that their claim of territorial jurisdiction would be acquiesced in by other Powers but there is every reason to believe that it would not be respected by Powers whose interest came in conflict with the rule as laid down. Moreover, it would require a considerable amount of study to determine how our interests would be affected by a rule different from that to which we are now accustomed. It is certain, however, that the fisheries industry would be prejudiced in waters adjacent to the coasts of other countries.

“…there is little reason for supposing that a 25-mile belt would necessarily be more desirable than one of a greater or lesser width. So many factors need to be considered, such as narrow straits, channels of navigation, historic bays, waters surrounding islands, etc. etc., that the matter does not lend itself to decision in an arbitrary manner.”

Mr. Hackworth is of the opinion, in which I concur, that this is probably not a matter which lends itself to satisfactory determination at the present time. It does not appear that the Department expressed any views on this question at Habana other than to suggest that it be referred for consideration to the Committee of Experts on the Codification of International Law.

With cordial personal regards,

Sincerely yours,

Philip W. Bonsal

10. See Foreign Relations, 1924, vol. i, pp. 157 ff.
11. Approved August 5, 1935; 49 Stat. 517.
12. See Foreign Relations, 1930, vol. i, pp. 204, 207, 213, 214, 223.