Memorandum by the Assistant Chief of the Division of British Commonwealth Affairs (Parsons)

After handing original copies of the attached papers to Mr. Mahoney of the Canadian Embassy this afternoon, Mr. Dooman and I discussed how to follow up with the Canadians.

[Page 1496]

I suggested that about the middle of next week Mr. Dooman give me a progress report on his talks with representatives of other governments and request me to have Mr. Atherton pass it along to External Affairs with a further request for favorable action. Mr. Dooman agreed to this and added that it might be well to put into Mr. Atherton’s mind the thought that if the Canadian Government felt it would be victorious in the June 11 elections and if it thought it would move out on the fishery policy afterwards, we might be able to arrange postponement of publicity on the new policies until after that date.

[Annex 1]

Explanatory Statement on the Protection and Conservation of Coastal Fisheries

The Government of the United States, recognizing that it has a vital interest in fishery resources contiguous to its coasts and having in mind that the inadequacy of present arrangements for the protection and perpetuation of coastal fisheries constitutes a potentially disturbing element in the relations of states, has carefully examined the possibilities of improving the jurisdictional basis of conservation measures and international cooperation in this field. In so doing it has concluded that:

The fisheries are essential both to the coastal communities which are dependent upon them for a livelihood and to allied and related industries which furnish employment to substantially large populations.
Progressive development of new methods in fishing, utilizing the factory ship, newer types of vessels and technical devices, modern refrigeration facilities, and the like, contribute to intensified exploitation over wide areas. In important instances coastal fisheries are seriously exposed to unregulated exploitation and depletion, thus creating general anxiety for their future among the people whose economic welfare and security depend upon them. In consequence a clear need has arisen for an improved basis for the regulation and protection of fisheries in the high seas contiguous to the coasts.
Equity and justice require that natural resources which have been built up by systematic conservation and self-denying restricted utilization, together with the industries based upon them, be protected and reserved from destructive exploitation by interests which have not contributed to their growth and development.
The fisheries differ in species, abundance, and other characteristics, from sea to sea and area to area; regulatory measures having as their object the conservation of fishery resources must be diversified and adapted to conditions peculiar to each region, with due regard to the special rights and equities of the coastal state and of any other state which has participated in the fishery of the region. Regulation and control of coastal fishery resources should therefore be treated on a regional basis.
Regulatory arrangements for a particular fishing area or region should be made among the states whose continued use of or relative proximity to the affected resources gives them the interest and intimate knowledge necessary for wise and effective control, and cannot achieve full success unless made applicable to all persons and vessels of whatsoever nationality engaged in fishing therein.

The Government of the United States has concluded that fishery regulation confined to the narrow extent of territorial waters has become inadequate for the protection of the coastal fisheries as a whole; and that important fishery resources may become depleted unless a basis for the extension of protective jurisdiction for a reasonable distance beyond territorial waters is found and adopted. Accordingly, the Government of the United States considers that its policy concerning the jurisdictional status of coastal fisheries should be as follows and that such a policy would be in keeping with the realities of the situation:

In view of the pressing need for conservation and protection of fishery resources, the Government of the United States regards it as proper to establish conservation zones in those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have been or in the future may be developed and maintained on a substantial scale: Where such activities have been developed and maintained by its nationals alone, the United States regards it as proper to establish explicitly bounded conservation zones in which all fishing activities shall be subject to the regulation and control of the United States and may when conditions warrant be limited to the United States. Where such activities have been legitimately developed and maintained by nationals of other states, explicitly bounded conservation zones may be established under agreements between the United States and such other states; and all fishing activities in such zones shall be subject to the regulation and control of, and may when conditions warrant be limited to, the United States and such other states. The right of any state to establish conservation zones off its shores in accordance with the above principles is conceded, provided that corresponding recognition is given to any fishing interests of nationals of the United States which may exist in such areas. The character as high seas of the areas in which such conservation zones are established and the right to their free and unimpeded navigation are in no way thus affected.

The Government of the United States believes that, in the circumstances set forth in this statement, there exists the right and obligation to protect both the resources affected and the established interests therein. The general principle here involved was given expression by Secretary Hull in 1938 in a statement relative to the Alaska fisheries, as follows:

“It must be taken as a sound principle of justice that an industry such as described which has been built up by the nationals of one country cannot in fairness be left to be destroyed by the nationals of [Page 1498] other countries. The American Government believes that the right or obligation to protect the Alaska salmon fisheries is not only overwhelmingly sustained by conditions of their development and perpetuation, but that it is a matter which must be regarded as important in the comity of the nations concerned.”43

The foregoing policy is based upon the premise that reasonable and just bases for the exercise of jurisdiction over the fisheries of an area of the high seas in the vicinity of the coasts of a state may be found in the following factors: (a) proximity to the coasts of the state; (b) the development and maintenance of well-established fishing activities on a substantial scale by a state’s nationals; (c) the absence in that area of any well-established fishing activities on the part of nationals of states other than those seeking to exercise such authority; and (d) the existence of established conservation practices, or the need for such practices, in relation to the fisheries of the area in question.

In referring to the development and maintenance of fishing activities by a state’s nationals the emphasis is upon the nationality of those conducting the fishing enterprise, rather than upon occasional individuals employed on vessels of some nationality other than their own. It should be noted that the statement of policy is applicable only to areas in which fishing activities have been or in the future may be developed and maintained on a substantial scale; other areas remain unaffected.

The statement of policy declares that fishing activities within the conservation zones established when all the conditions are met, “may when conditions warrant be limited to”, the United States, or to the United States and the other states joining in the establishment of the zones, as the case may be. Although the jurisdiction asserted extends so far as to permit the limitation of fishing activities to the states having the right to establish the conservation zones, when those states deem such action necessary, the Government of the United States does not contemplate that the establishment of conservation zones under this policy will effect any general exclusion from all such zones of all fishing enterprises of nationalities other than of the United States and the other states establishing the zone.

Upon consideration of the more important high seas fisheries in which the United States has a present or potential interest, it is evident that in each fishery only a limited number of countries, often only one or two, have any real or considerable interest. In case the states having a real interest in each fishery agree upon and establish a regime of conservation and regulatory control for that fishery, it is believed that such conservation efforts should have a good chance for success [Page 1499] and that other states would have no valid reason for objection to the measures taken by the states primarily concerned.

Under the policy the rights of all states which have taken any substantial part in the fishery are preserved. It is not intended to disturb in any way well-established or historic fishing activities which have been habitually carried on by nationals of other states. In areas where such activities have been carried on, the cooperation of such states with the United States in the control and regulation of the fisheries is contemplated. In like fashion, the Government of the United States expects that other governments which may adopt similar policies will respect the established interests of American fishing activities off their coasts.

No extension of territorial waters is embodied in the policy, but rather the establishment of clearly defined conservation zones in areas of the high seas contiguous to the coasts. Such areas would retain their legal character as high seas. The freedom of their use for navigation and purposes other than fishing would remain unaffected. The adoption of these measures looking solely to the conservation and economic utilization of marine resources is not to be regarded as in conflict with the general principles of international law, and especially those rules relating to navigation and other aspects of the freedom of the seas.

The Government of the United States is prepared to cooperate with any interested government in making practical application of the principles set forth above. It would welcome the opportunity to join with other governments in the working out of necessary arrangements for the determination and establishment of conservation zones in waters of common concern. Such a procedure would afford a practical basis for the conservation and utilization of high seas coastal fisheries, with fairness and justice to the coastal state and to other established fishing interests, and the Government of the United States would welcome the adoption by other governments of a similar policy as a substantial step toward this general objective and toward the improvement of the bases of international cooperation in the fisheries field.

[Annex 2]

Explanatory Statement on the Proper Utilization and Development of Natural Resources of the Subsoil and Sea Bed of the Continental Shelf

The Government of the United States, aware of the long-range world-wide need for new sources of petroleum and other minerals, holds the view that efforts to discover and make available new supplies of these resources should be encouraged. Its competent experts are [Page 1500] of the opinion that such resources underlie many parts of the continental shelf off the coasts of the United States, and that with modern technological progress their utilization is already practicable or will become so at an early date. Oil wells are now in operation beneath the waters of the Gulf of Mexico and off the California coast, while mines extend under the sea from the coasts of England, Chile, and elsewhere.

The utilization and development of the natural resources of the subsoil and sea bed beneath the high seas cannot proceed with assurance, however, in the absence of recognized jurisdiction over such resources. As a result these resources will not in fact be put to practical use until a definite government policy with respect to the jurisdiction under which operations will be carried on has been made known. There is a natural reluctance to make the necessary investments, and to install the expensive structures and machinery required for wells or mines, until there is reasonable assurance of title to the resultant products and of necessary governmental protection. In certain places off the coasts of the United States the beginning of operations awaits only this step. Recognized jurisdiction over these resources is also required in the interest of their conservation and prudent utilization when and as development is undertaken. In view of present needs, and of the availability of technological means for utilizing the resources beneath the shallow seas outside territorial waters, it is believed that the jurisdiction over such resources should be defined without delay.

Accordingly, the Government of the United States considers that its policy with respect to the jurisdictional status of the natural resources of the subsoil and sea bed of the continental shelf off its coasts should be as follows:

Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another state, or is shared with an adjacent state, the boundary shall be determined by the United States and the state concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.

The foregoing policy is based upon the premise that the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous state is reasonable and just in view of the following factors: (a) the continental shelf may be regarded on geographic and physiographic grounds as an extension of [Page 1501] the land mass of the coastal state and thus naturally appurtenant to it; (b) these resources often form part of a pool or deposit extending seaward from within the state and their utilization may affect resources therein; (c) the effectiveness of measures which may be adopted to utilize or conserve these resources would be contingent upon cooperation and protection from the coastal state; (d) self-protection compels the coastal state to keep close watch over activities off its shores which are of the nature and relative permanence necessary for utilization of resources of the subsoil and sea bed of the continental shelf; (e) prudent conservation and practical utilization of these resources are dependent upon a clear governmental policy defining their jurisdictional status; and (f) the government of the country to whose shores the resources are contiguous is clearly the logical government to exercise jurisdiction and control over these resources.

It is believed that no foreign state would have reason to object to utilization and conservation by the United States of undersea mineral resources within a reasonable distance of its coasts. No oil wells, mines, or similar installations are operated off the coasts of the United States by foreign enterprises. Therefore, a clear distinction may be drawn between steps taken for the protection of coastal fisheries, in which recognition must be given to established fishing activities and interests of nationals of one country off the coasts of another country, and measures which may be adopted with a view to protecting undersea mineral resources contiguous to the coast.

In the exercise of its right of self-protection and as a matter of national defense, the United States could not view without serious concern any attempts by a foreign Power or the nationals thereof to exploit the resources of the sea bed or subsoil of the continental shelf off the coasts of the United States at points sufficiently near the coast to impair or endanger the security of the United States, unless such activities were undertaken with the approval of the Government of the United States. The relative permanence of the structures required for the extraction and utilization of petroleum or other mineral resources of the continental shelf would make such operations a matter of concern to the coastal state. This becomes evident in the light of the possible utilization of such installations as potential bases, refueling depots, and the like.

For many years, in some cases for centuries, certain states have claimed the right to the control and exclusive exploitation of sedentary fisheries on the sea bed of the high seas in proximity of their coasts; and these claims appear to have become established by acquiescence and to be recognized by other states. Such claims extend to oyster beds, pearl banks, chank fisheries, sponge fisheries, coral, and the like. Such rights are understood to be asserted off Ceylon and India, off [Page 1502] Bahrein, off Ireland, off Tunis, and in other parts of the Mediterranean, off the coasts of Australia, and elsewhere. States have likewise long been recognized to have the right to erect lighthouses, or to keep lightships permanently anchored, in locations well outside their territorial waters.

The foregoing examples indicate that as a matter of international law a state may acquire by occupation and contiguity rights of the land beneath” the high seas, provided that the freedom of navigation is not thereby impaired. The rationale of the open sea being free and forever excluded from occupation on the part of any state is that it forms an international highway connecting distant lands and securing freedom of communications and commerce between states separated by the sea. There is no reason for extending this concept of the freedom of the high seas to the sea bed and subsoil beneath its bed. In the case of the sea bed and subsoil there is no reason to apply either the theoretical argument that occupation is impossible because it can take place only with respect to a determined thing, or the practical argument that the freedom of the waters of the open sea is essential to the freedom of intercourse between states.

The recognition of special jurisdictional and property rights in particular areas of the bed or subsoil of the high seas for the long-accepted purposes of sedentary fisheries or for the utilization of mineral resources does not conflict with the common enjoyment of the freedom of navigation. This statement of policy regarding the conservation and economic utilization of the natural resources of the sea bed and subsoil of the continental shelf off the shores of the United States contemplates no general extension of territorial waters and no assertion of jurisdiction over or interference with foreign vessels navigating the high seas. It is recognized that such utilization of the sea bed and subsoil resources should not be allowed to result in pollution of the sea by oil or other noxious substances, that unreasonable interference with navigation as a result of structures erected on the bottom or anchored in place must be avoided, and that all due precautions should be taken, by the use of lights and other appropriate devices, to prevent dangers to navigation. So long as these precautions are taken it would seem clear that the general benefit resulting from the orderly utilization of valuable undersea mineral resources must be regarded as outweighing other considerations.

This statement of policy is expressed in terms of the continental shelf off the coasts of the United States. As is well known, the continental shelf extends seaward for varying distances off the shores, and in most places terminates in a fairly definite “drop off”. The continental shelf is usually defined as that part of the undersea land mass adjacent to the coast, over which the sea is not more than 100 [Page 1503] fathoms (600 feet) in depth. Although the term “continental shelf” may be something of a misnomer in connection with islands, the policy is intended to apply in the shallow waters around this nation’s islands as well as off the continental United States. At the present time, methods of utilizing the natural resources of the sea bed and subsoil are such that operations would be confined to much shallower areas than the maximum of 100 fathoms.

There are obviously situations where the continental shelf off the coasts of the United States is shared by an adjacent state, and in such cases it will be necessary to work out the boundary between the resources appertaining to the United States and to its neighbors, when the utilization of such resources becomes imminent. In certain locations the continental shelf extends from United States territory to the territory of a foreign country on the other side of a portion of the high seas. In such cases, likewise, the determination as to which resources will fall to each country will become necessary. The appropriate division would appear to be a proper matter for settlement between the countries immediately interested, upon a fair and equitable basis, as the utilization of undersea resources progresses. In as much as it would appear that for some time to come installations will be comparatively near shore and that there will be little practical necessity for delimitation, it would seem that this may be left until some future time when a wise and fair solution may be found in the light of the actual needs.

  1. This statement appeared first in telegram 309, November 22, 1937, to the Ambassador in Japan, Foreign Relations, 1937, vol. iv, pp. 763, 768. The text of the telegram was released to the press on March 25, 1938 (Department of State Press Releases, March 26, 1938, p. 412).