740.00111 A.R.N.C./2113/6

The American Member of the Inter-American Neutrality Committee (Fenwick) to the Secretary of State

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 [Page 8] 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 [Page 9] 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,

Charles G. Fenwick

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 [Page 10] 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:

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.
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.
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 [Page 11] futile for the American Republics to proceed with the draft convention for the maintenance of the Security Zone.
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.
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.
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 [Page 12] 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.
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

  1. Philip W. Bonsai, Acting Chief of the Division of the American Republics. Letters not printed.
  2. For text of Resolution VIII of the Habana Meeting, see Department of State Bulletin, August 24, 1940, p. 134.
  3. Enclosures 1, 2, 3, and 4 to this document not printed, but see Atas.
  4. For correspondence on this Conference, see Foreign Relations, 1930, vol. i, pp. 204 ff.
  5. The enclosure printed below.
  6. The Ninth International Conference of American States which was scheduled to meet in Bogotá and which under ordinary circumstances would have convened in 1943 was, on January 6, 1943, postponed. The Conference was held in Bogotá March 30–May 2, 1948.
  7. Foreign Relations, 1939, vol. v, p. 36.