812.628/9–1946
The Acting Secretary of State to the Ambassador in Mexico (Thurston)
No. 575
Sir: Reference is made to your telegram no. 841 of September 18, 1946,59 despatch no. 1186 of September 17, 1946 and despatch no. 1221 of September 19, 1946 relative to action of Mexican authorities with respect to nine United States vessels which were either fishing or assumed to be preparing to fish for shrimp in the Gulf of Mexico off the coast of Campeche. The Department has checked on the position at time of seizure of the four vessels intercepted by Mexican officials on September 8, as given in Mr. Saravia’s deposition of September 13, and finds evidence that such position was 17 miles from the Mexican coast on the 13 fathom line. From information given in the deposition of Mr. William D. Guthrie of September 13, 1946, it appears that the other five vessels were some 30 miles from Mexico at the time they were requested to come into Ciudad del Carmen.
The Department has considered carefully the action of Mexican authorities in this case in relation to the position which this Government took in 1936 with respect to the Mexican decree of August 29, 1935 defining territorial waters of Mexico as extending nine nautical miles from low-water mark on the coast. The matter has also been considered in relation to this Government’s proclamation of September 28, 1945 with respect to coastal fisheries, the declaration of October 29, 1945 by the President of Mexico with respect to his Government’s [Page 1063] claim to the continental shelf adjacent to the coast of Mexico and to the natural resources thereof, and the Department’s confidential note of January 24, 1946 to the Mexican Ambassador at Washington with reference to the declaration of October 29, a copy of which note has been sent to the Embassy previously.
Prior to making a possible protest to the Mexican Government relative to the action of Mexican officials with respect to the nine vessels referred to above, the Department is awaiting the report on the matter, which the Mexican Ministry of Foreign Affairs has stated would be given to the Embassy, referred to in a telephone conversation of September 12, 1946 between an officer of the Department and an officer of the Embassy. The Department also plans to obtain further information from the fishermen to supplement the material contained in the depositions taken at Ciudad del Carmen on September 13, 1946 by officers of the Embassy. However, in view of the time which may elapse before the report of the Mexican authorities and other information are available, and considering the statement of the Mexican Minister of the Marine reported in despatch no. 1221 of September 19, that Mexico now considers the resources of the sea off the Campeche coast as the property of Mexico, the Department agrees with the Embassy’s suggestion that the position of this Government, as set out in the Department’s confidential note of January 24, 1946 to the Mexican Ambassador at Washington, should be reiterated, and a clear statement should be made as to the area in which the United States maintains that its nationals are entitled to fish without interference.
The Department recognizes the possibility that setting forth a clear denial of Mexican jurisdiction beyond a three mile limit of territorial waters may lead to a resumption of the 1936 discussions between this Government and Mexico as to the Mexican decree of August 29, 1935 and may raise questions as to the applicability as between the United States and Mexico of that decree in the Gulf of Mexico in view of the provisions of Article V of the treaty of February 2, 184860 and of Article I of the treaty of December 30, 1853.61 On the basis of the 1936 correspondence and of earlier statements made to the British Government by the United States with respect to the 1848 treaty, Mexico may possibly contend that as between the United States and Mexico the two countries have recognized a nine mile (or three league) limit of territorial waters for the Gulf of Mexico (see in particular instruction no. 1110 of May 23, 1936;62 despatch no. 3646 of June 3, 1936;63 [Page 1064] despatch no. 3765 of July 14, 1936;64 instruction no. 1189 of August 19, 1936;65 and despatch no. 3869 of August 25, 1936)66 However, should this view be advanced by Mexico, the Department may take the position that Article V of the treaty of 1848 and Article I of the treaty of 1853 did not establish a limit of nine miles for territorial waters as between the United States and Mexico for the entire Gulf of Mexico, but merely established a point from which to start measuring the boundary line between the two countries.
In view of the fact that revival of the 1936 discussions might delay a reply by Mexico to this Government’s proposals for a fisheries treaty between the two countries, consideration was given to the possibility of phrasing the note in general terms, avoiding reference to the specific area which the United States recognizes as Mexican territorial waters. However, such a position might be viewed by Mexico as tacit recognition, at least with respect to fishing vessels, of the validity of the Mexican claim to a nine mile limit of territorial waters in the Gulf of Mexico. In that event, future seizures of vessels between three and nine miles from the coast could only give rise to further discussions, and it would be necessary at that time for this Government either to state a position clearly in support of a three mile limit or to acquiesce in Mexico’s claim to greater jurisdiction. Until the question was clarified between the two Governments, United States fishermen would be left in doubt as to the extent of the area in which they might operate while expecting the protection and assistance of their Government. Therefore, it is believed that our position should be stated clearly and precisely at this time. It is believed that the possible adverse effect on fishery treaty negotiations, as well as on efforts toward cooperation in carrying out the United States fisheries proclamation of September 28, 1945 and Mexico’s declaration of October 29, 1945 with respect to the continental shelf, will be less if this Government states its position clearly now than if such position is stated only after protracted discussions.
The Department’s conception of the proper application of this Government’s proclamation of September 28 and of the Mexican declaration of October 29, is as set out in the Department’s confidential note of January 24, 1946 to the Mexican Ambassador at Washington; that is, that the adoption of fishery conservation measures for areas of the high seas should be based on scientific investigations showing a need for such measures, and that if nationals of other countries have fished in the area affected, regulations set up for such area can be made applicable to such nationals only under agreements between the coastal [Page 1065] state and the government or governments whose nationals have fished there.
It is realized that by taking a position in opposition to unilateral implementation, beyond a three mile limit of territorial waters, of the Mexican declaration of October 29, 1945, we may give some grounds to other governments to protest any unilateral action which this Government may take to establish fishery conservation zones in areas of the high seas under the fisheries proclamation of September 28, 1945. However, it is believed that such distinctions as would be necessary in that event could be drawn on the basis that prior to the commencement of United States fishing operations in areas off the coasts of Mexico that country had not announced any fishery conservation regulations, based on scientific investigations showing a need for such measures, for those areas. Therefore, it does not appear that this Government would be taking an untenable position in establishing fishery conservation zones, unilaterally, for areas in which United States nationals alone engage in fishing activities, while at the same time insisting that arrangements between the United States and Mexico are necessary before fishery regulations may be made applicable to United States nationals engaged in fishing on the high seas off the coast of Mexico.
In order that the Mexican authorities may understand clearly the position of the United States with respect to recognized jurisdiction over United States fishing vessels, you are requested to transmit to the Mexican Minister for Foreign Affairs a note along the following lines:
With reference to the declaration of October 29, 1945 of the President of Mexico with respect to Mexico’s claim to the continental shelf adjacent to Mexico and to the natural resources thereof, the United States Government continues to hold firmly to the views expressed in the Department of State’s confidential note of January 24, 1946 to the Mexican Ambassador at Washington. It maintains that United States fishing vessels have the right to continue to fish in waters off the Mexican coast beyond the limits of territorial waters. Pending the conclusion of a fisheries treaty between the United States and Mexico providing for such regulation of the fishing activities of the nationals of the two countries as may be necessary for the conservation of fishery resources of mutual interest to the United States arid Mexico, the United States Government maintains that its nationals are entitled to fish freely in such waters off the coast of Mexico as are beyond the three mile limit of territorial waters. The Government of the United States is reserving, until such time as it receives a report of the investigation by the Mexican Government, any statement on the recent action of Mexican officials with respect to certain United States fishing vessels which were operating in the Gulf of Mexico.67
In view of the close attention which officers of the Embassy have been giving to this matter, the Department would appreciate receiving any suggestions which you may have for changes which you believe should be made in the general outlines of the note prior to delivery. You will note that reference to the amendment to Article 27 of the Mexican Constitution, which amendment is understood to be necessary to make the declaration of October 29, 1945 effective in Mexican law, has been omitted. This omission has been made because the Department wishes to avoid any statement which might give the impression that this Government will recognize any effect of the declaration on United States vessels prior to such time as appropriate arrangements have been made by treaty between the United States and Mexico.
At the time of presenting this note to the Mexican authorities, or shortly thereafter, as you may deem appropriate in the circumstances, you are requested to bring to the attention of Mexican officials, in such manner as the Embassy considers proper, the fact that this Government is still interested in the proposals for a fisheries treaty presented to them last September, and would appreciate receiving the Mexican views on these proposals at an early date. At the same time, you might point to our expectation that the conclusion of such a treaty would advance the two countries’ mutual interest in conservation of important fishery resources and provide a solution for some of the questions relative to fisheries which might have an adverse effect on present excellent relations between our two Governments.
The Department has not issued any statement relative to action of Mexican officials with respect to the vessels referred to in this instruction, and does not intend to issue any statement prior to transmission to the Mexican Government of the above-mentioned note. However, in view of public interest in the matter, it may become necessary for the Department to make a statement prior to receiving Mexico’s reply to this note. In that event the Department proposes, if the Embassy perceives no objection, to issue a statement along the following lines:
The Embassy in Mexico City has delivered a note to the Mexican authorities stating that the United States continues to maintain that its nationals are entitled to fish in waters off the coast of Mexico beyond the limits of territorial waters. With reference to the declaration of October 29, 1945 of the President of Mexico with respect to his Government’s claim to the continental shelf adjacent to the coast of Mexico and to the natural resources thereof, the United States has advised the Government of Mexico that pending the conclusion of a fisheries treaty between the United States and Mexico providing for the conservation of fishery resources of interest to the two countries and for recognition of the rights and interests of the United States and its nationals in such resources, the United States maintains that [Page 1067] its nationals are entitled to fish in waters off the coast of Mexico beyond the three mile limit of territorial waters.68
I take this opportunity to express the Department’s commendation of the manner in which officers of the Embassy have handled the problems arising out of the action of Mexican authorities with respect to the nine United States fishing vessels referred to in this instruction.
[Here follow comments on a question of an individual’s claim of discovery.]
Very truly yours,
- Not printed.↩
- For treaty of peace between the United States and the United Mexican States, concluded at Guadalupe Hidalgo, February 2, 1848, see 18 Stat. (pt. 2) 492.↩
- For treaty of limits, isthmus transit, etc., between the United States and Mexico, concluded December 30, 1853, see 18 Stat. (pt. 2) 503.↩
- Foreign Relations, 1936, vol. v, p. 762.↩
- Ibid., p. 764.↩
- Foreign Relations, 1936, vol. v, p. 764↩
- Ibid., p. 768.↩
- Ibid., p. 769.↩
- This paragraph was quoted in note No. 571. December 10. 1946, from Ambassador Thurston to the Mexican Minister for Foreign Affairs, copy of which was transmitted to the Department in despatch 2320, December 24.↩
- Ambassador Thurston, in despatch 2320, December 24, 1946, expressed the opinion “that, unless new seizures of American fishing vessels are made by public vessels of Mexico, a statement should not be issued at the present time.” (812.628/12–2446)↩