740.00111 A.R.N.C./2113/6
The American Member of the Inter-American Neutrality
Committee (Fenwick) to the Secretary of State
Rio de
Janeiro, August 22, 1941.
Attention of the Under Secretary of State.
Dear Mr. Welles: In the course of the past two
months I have on several occasions written to Mr. Bonsal12 describing to him
the progress of the discussions in the Neutrality Committee relative to
the problem of the extension of territorial waters, submitted to the
Committee by the Meeting of Foreign Ministers at Havana.13 May I now sum up the development of the problem
for you, and at the same time enclose copies of the various projects
which I put before the Committee during the sessions at which the
question was discussed.14
When the problem first came up for study, I presented to the Committee a
tentative draft of an opinion based upon what seemed to me to be the
lesson to be drawn from the Conference for the Codification of
International Law held at The Hague in 1930,15 where, in view of
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the conflicting opinions, no agreement could be
reached. This draft (see Enclosure No. 1) proposed as a compromise that
the existing situation in respect to strict territorial waters should be
maintained; but that a limited jurisdiction or control be recognized to
a distance of twelve miles for customs, police and sanitary
administration, and to a distance of not less than twenty-five miles (as
proposed by the Uruguayan Government) for protection against hostilities
in time of war.
This compromise, however, proved unacceptable to other members of the
Committee, and a majority insisted that there must be an extension not
merely of control but of sovereignty. I raised the objection that this
would involve encroachment upon existing fishing rights on the high
seas, as well as other rights associated with the freedom of the seas;
and that these were problems that could only be settled at a general
international conference of all nations. Besides, the Committee had no
data before it to justify recommending an extension of exclusive fishing
rights, quite apart from the fact that the three-mile limit was fixed in
numerous treaties. But the objection was waived aside as of minor
consequence.
I then argued that an extension of sovereignty, being made for the
obvious purpose of protection against hostilities, would weaken the
force of the Security Zone convention now pending adoption by the
American Governments. In line with this approach I introduced a project
(see Enclosure No. 2) reciting the fact that the Havana Meeting had
indicated the determination of the American Governments to maintain the
Zone in spite of violations of it, and affirming that the pending
convention could furnish the desired protection against hostilities in
so far as the American Republics were willing to resort to sanctions to
enforce it. No mere assertion of a wider sovereignty, not accepted by
the belligerents, would have any greater effect.
This second project being unacceptable, I then insisted that before the
Committee could come to an adequate decision in respect to the variety
of questions associated with the extension of territorial waters in
addition to the primary interest of protection against hostilities, it
should be better informed in respect to the intentions of the American
Governments with regard to these problems. With that object in view I
introduced a third project (see Enclosure No. 3), reciting the fact that
there were other interests at issue as well as protection against
hostilities, and recommending that an inquiry be made of the American
Governments to find out which of the various objectives they had in mind
in asking the Committee to give an opinion on the general subject. But
this project met with no greater favor than the others.
During the course of the discussions the Chairman of the Committee
introduced a lengthy statement in answer to my objections to the
extension of territorial waters. I made a formal reply to the statement
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at the next meeting of the
Committee (see Enclosure No. 4). My reply more or less sums up the
situation as it had developed in the Committee by that time. It had no
effect in changing the opinions of the members in respect to the
advantages, as they saw them, of the extension of sovereignty. Much
stress was put upon the alleged approval which the Havana Meeting had
given, in principle, to the extension of territorial waters, by the fact
that the sub-committee had revised the Uruguayan proposal so as to make
it read that territorial waters “should be extended” instead of that it
was “desirable” to do so, I argued that the change introduced by the
subcommittee was merely one of drafting, and that the project came to
the Neutrality Committee without a prior expression of approval or
disapproval from the Meeting. But to no effect.
I enclose a copy (see Enclosure No. 516) of the dissenting opinion which I
entered in the minutes and which was attached to the copy of the
recommendation sent by the Committee to the Pan American Union. While it
was with regret that I found it necessary to disagree with the majority
of the Committee, it was better to disagree than to compromise on issues
that I felt were fundamental. Besides, the dissenting opinion gave me an
opportunity to emphasise points which it would have been impossible for
me to have introduced into the Considerando
prepared by the majority of the Committee.
The various points of view expressed by the members of the Committee
during the course of the discussions will appear in the minutes of the
sessions during June and July, which will be published in due time by
the Pan American Union. In the meantime you may find the above summary
convenient. I assume that the next Meeting of Foreign Ministers will
refer the matter to the Ninth International Conference of American
States, which is due to meet in 1943.17 By that
time the problem of hostilities in territorial waters may have been
disposed of in more effective ways.
With warm personal regards,
Sincerely yours,
[Enclosure]
Dissenting Opinion of Charles G. Fenwick on the
Extension of Territorial Waters
I regret that I am unable to concur in the opinion expressed by my
colleagues of the Neutrality Committee in respect to the question of
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the extension of
territorial waters submitted to us by the Second Meeting of
Ministers of Foreign Affairs of the American Republics. The reasons
for my dissent appear in detail in the Minutes of the Committee.
They may be summarized here, as follows:
- 1.
- The chief objective of the proposal of the Government of
Uruguay is to secure better protection against the
commission by belligerents of acts of hostility within the
waters adjacent to neutral coasts; and it appears to be the
belief of the Government of Uruguay, as it is also the
belief of the majority members of the Neutrality Committee,
that this objective would be more adequately attained if the
sovereignty of the state were extended over a wider area of
adjacent waters than that over which it now legally
extends.
- 2.
- In so far as concerns the war now in progress, in respect
to which the American Republics are at this moment neutral,
I am unable to find any reason for believing that an
assertion of sovereignty over adjacent waters to a distance
of twelve miles would be any more effective than the
proclamation of the Security Zone made by the Declaration of
Panama.18 The belligerents
would be under no legal obligation to respect a mere
assertion of sovereignty which they themselves had not
agreed to; and it is to be anticipated that the same reasons
that might lead the belligerents to violate the Security
Zone would lead them to conduct their hostilities in the
wider area of waters over which the majority of the
Committee recommends that sovereignty be extended.
- 3.
- But in addition to the ineffectiveness, with respect to
present hostilities, of a mere declaration that sovereignty
should be extended to a distance of twelve miles, there is
the more important consideration that such a declaration
would greatly weaken the effectiveness of the convention for
the Security Zone now pending adoption by the American
Governments. The resolutions taken at Havana clearly
indicate that the American Republics did not intend to
retreat from the Declaration of Panama establishing the
Security Zone. Rather they expressed their determination to
stand by the Security Zone; and they called upon the
Neutrality Committee to draft a solemn treaty reaffirming
the principles underlying the Security Zone and proposing
measures of cooperation for the enforcement of the Zone. If
now the Uruguayan project were to be adopted, under
circumstances clearly indicating that the object in so doing
was to secure greater protection against hostilities by the
belligerents, the belligerents would naturally interpret
such action as a confession that the Declaration of Panama
went too far and that the American Republics were now
prepared to modify their original demand. Under such
conditions it would be
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futile for the American Republics to proceed with the
draft convention for the maintenance of the Security
Zone.
- 4.
- In so far as concerns protection against hostilities in
some future war, I am of the opinion that it would be the
part of wisdom not to anticipate the future; and that the
Committee should limit its recommendation to the suggestion
that the problem of greater protection for neutral states
against hostilities should be considered at a general
international conference at the close of the war. The
experience of the present hostilities convinces me that the
protection desired will be more adequately attained by the
cooperative action of all nations to outlaw acts of
aggression, rather than by accepting the legality of war and
then attempting to regulate the conduct of belligerents. But
whether or not this forecast be correct, it would seem to be
better at this time to leave the decision as to the best
means of securing in more permanent form the desired
protection against hostilities until an international
conference can be called at which a general legal agreement
might be reached.
- 5.
- There remains the question of the desirability of
extending territorial waters to attain other objectives than
the primary one of protection against hostilities by the
belligerents. Such other objectives include the extension of
exclusive fishing rights over the wider area of territorial
waters, the enforcement of customs and sanitary regulations,
police control in the interest of preventing crimes
initiated outside territorial waters, and jurisdiction over
acts performed on board vessels entering territorial waters.
These matters are of greater importance for some of the
American States than for others; and it is not clear that a
uniform rule would be the most convenient regulation of
them. I agree that in the presence of an emergency these
matters could and should properly be subordinated to the
more important objective of the prevention of hostilities.
But in as much as the proposed extension of territorial
waters does not carry with it, in my opinion, any greater
protection against present hostilities, I see no reason why
the other problems involved in the extension of territorial
waters should be set aside without due consideration.
- 6.
- Not only are these other problems involved in the
extension of territorial waters important in themselves and
worthy, in the interest of the individual American
Republics, of more careful study than it has been possible
to give them, but they are problems in which other,
non-American, nations have vital interests at stake and have
traditional rights solidly founded in international law.
Hence the solution of these problems should await an
international conference at which all of the nations could
be represented. The American Republics do not have it in
their power to change the law of the sea. I believe that the
Declaration of Panama in respect to the Security Zone was
justified by the fact that the belligerents themselves had
departed from the
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traditional law of the sea by the unlawful use of the
submarine and by the establishment of combat zones and the
imposition of unwarranted restraints upon neutral trade. But
that is as far as we can go,—defense against illegal acts of
the belligerents. We are not justified, in my opinion, in
proposing to change the law of the sea in respect to other
matters which have no connection with emergency defense
against hostilities. At this time when international law has
been shaken to its foundations by the lawless acts of the
Axis Powers, it is all the more incumbent upon us to
maintain the fundamental principles of the equality of
states and of the freedom of the seas, and to avoid doing
anything that might be interpreted by other nations as an
attempt to introduce new rules of law without taking into
account not merely the interests of the American Republics
but the interests of all members of the international
community.
- 7.
- The proper procedure for our Neutrality Committee appears
to me to be to give an opinion (1) calling attention to the
pending draft convention for the maintenance of the Security
Zone and pointing out that in so far as the American
Republics are prepared to enforce it the convention would
give as much protection against hostilities as is obtainable
during the present war; and (2) recommending that at the
close of the war the American States participate in a
general international conference at which they may consider
whether a united and collective demand for a further
extension of territorial waters may not be the best means
for protecting neutral states against hostilities in the
future, if other more comprehensive measures for the
prevention of war itself should fail.
C. G. Fenwick
Rio de Janeiro,
August 8,
1941.