890.0145/8–1948

Memorandum of Conversation, by Mr. Edward McEnerney of the Division of Near Eastern Affairs

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Participants:
Mr. Maclean, First Secretary, British Embassy
Mr. Jones, Petroleum Attaché, British Embassy
Mr. Hare, NEA
Mr. Dunn, GTI
Mr. Mattison, NE
Mr. Sanger, NE
Mr. McEnerney, NE
OIR/GE—Mr. Boggs
L/P—Mr. Gray
IR—Mr. Looney

Mr. Hare presented to the British representatives copies of the draft proclamation prepared by Mr. Gray on August 19 (attached),1 which had resulted from a Departmental meeting of that date.2 Mr. Hare explained that the Department had studied Mr. Bromley’s letter to Mr. Mattison dated August 7, which enclosed a proposed British draft for a declaration to be issued by the riparian states.3 He said that Mr. Gray’s new draft had been based on the British draft but had been altered in certain respects as the result of extensive discussion within the Department. He asked the British representatives to read the draft, in order that they might comment upon it. When Mr. Maclean and Mr. Jones had finished reading the draft, Mr. Jones commented that it appeared to him to be much the same as the British draft, except that the American draft re-introduced the words “jurisdiction and control” as a substitute for the words “boundaries” or “sovereignty”, which the British had previously suggested. Mr. Hare explained that the Department had found it imperative to suggest that the word “sovereignty” not be used, primarily because the division of the Department concerned with fisheries activities had felt it important for certain reasons not to depart from the language of the US declaration of 1945 affecting the continental shelf. Mr. Hare then asked Mr. Looney, representing the Fish and Wild Life section of the International Resources Division, if he would comment on his Division’s position. Mr. Looney said that inasmuch as the President had on the same date in 1945 issued two proclamations, one concerning the continental shelf and the other concerning fisheries,4 the two declarations had become linked in the minds of most observers, and that any action affecting the one might be interpreted as affecting the other. His Division felt that it was most important, however, to maintain a distinction between [Page 33]activities affecting the shelf and activities affecting fisheries in the high seas, although maintenance of this distinction constitutes a difficult problem. His Division felt that if sovereignty were declared over the continental shelf rather than jurisdiction and control, it would be inevitable for the concept of sovereignty over the shelf to be extended and to be translated to sovereignty over fisheries activities in the high seas and then over the high seas themselves. He noted that five other governments had already issued declarations of sovereignty over both the continental shelf and the high seas above it. As he believed the British representatives knew, their Government had been informed that the US had lodged complaints with three of those five governments against those declarations of sovereignty. Mr. Jones interrupted at this point to say that whereas the British had originally desired a declaration of “sovereignty” over the continental shelf beneath the waters of the Persian Gulf, they had (in order to accommodate the US desire not to use “sovereignty”) dropped that word from their proposed declaration and had suggested merely an extension of boundaries to include the shelf. Mr. Mattison and Mr. Gray then pointed out that although this was true, the Department had felt that an extension of boundaries necessarily meant an extension of sovereignty, and that the concept of a boundary extension was perhaps even stronger than a declaration of sovereignty. Therefore, the Department felt that mere omission of the word “sovereignty” did not settle the problem.

Mr. Looney then went on to note that the five countries which had proclaimed complete sovereignty were Argentina, Chile, Peru, Costa Rica and Mexico. (In the case of Mexico the declaration was not final, inasmuch as it will require constitutional amendment.) The Department, moreover, feared that other countries were contemplating similar declarations. It was feared that Iceland and Cuba were preparing them, and that Nicaragua and China might also take such action. The question of the US attitude toward such declarations of sovereignty was, therefore, assuming a world-wide scope.

Mr. Hare pointed out that he recognized that there was in fact very little difference between the concepts of “sovereignty” and of “jurisdiction and control,” and that the difference was largely a matter of “shading”, but that it was this “shading” which seemed of great importance to the Department, since different consequences would result upon the use of one or the other. Mr. Jones said that he appreciated there was this difference of “shading.” Mr. Looney said that, although he was not prepared to comment in great legal detail upon the difference between concepts of “sovereignty” and “jurisdiction and control,” his Division felt that there was a real difference which could [Page 34]not he ignored. Mr. Gray pointed out the chief problem in the eyes of the Legal Division was that the US continental shelf declaration represented a doctrine so new that great care must be taken in any matters having to do with it, especially since there had already been proclamations by other countries which constituted perversions of our doctrine. He pointed out that the Legal Division feels that in order for any nation to assert jurisdiction, that: nation must also assume a degree of sovereignty, and that, therefore, the British were, to that extent, correct in their interpretation of our continental shelf declaration. The Legal Division, however, felt that for practical and political reasons it would be wiser to avoid the word “sovereignty”. He felt that a declaration of jurisdiction would be effective in excluding parties alien to the Persian Gulf from asserting rights there.

Mr. Maclean said that the Foreign Office position had been that the continental shelf was res nullius and that no one could assert any rights over such common property without declaring sovereignty over it. Mr. Looney replied that fish were also considered res nullius, but that it was the Department’s belief that jurisdiction and control could be applied over fish and that such an application would be fully effective in assuring rights for the party making the assertion, and that the British Government had shown a degree of acquiescence in the American position. Mr. Maclean pointed out that he felt the question of petroleum was slightly different from that of fish, inasmuch as riparian rulers would be most anxious to be quite certain that they had full property rights over petroleum. He asked Mr. Looney if jurisdiction and control would insure such property rights. Mr. Looney replied that he felt such rights would not necessarily be insured but, as a practical matter, they could be. Mr. Jones further remarked that the British felt that fish and petroleum were quite different phenomena in the sense that petroleum was a fixed and stationary phenomenon, whereas fish were migratory.

Mr. Boggs said that he felt the whole question of assertions of rights over the continental shelf was a very complicated one, especially from a geographer’s point of view, since it was quite difficult to determine exactly where the continental shelf might lie and since no matter where it lay it might not be possible, despite all modern methods of exploitation, actually to conduct petroleum exploitation throughout the shelf. Such factors as storms and currents would make it difficult to exploit everywhere on the shelf, since it might not be possible to station the necessary drilling apparatus at all desired points. Therefore, he felt that no ruler could hope to assert full sovereignty over it, inasmuch as he would be prevented by natural factors from implementing his sovereignty.

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Mr. Jones said that, whereas this might be true, it would nevertheless be necessary for any oil company receiving a concession in the given area to know with certainty that it would have the right to drill in that area. Mr. Boggs reiterated that he felt it was most necessary to be careful in any statements made concerning the shelf, which covers 11,000,000 square miles beneath the high seas, a very large area. He felt that it was the size of the total world continental shelf, for one thing, which made it wise to assert rights only over the natural resources of the shelf rather than over the shelf as a whole.

Mr. Maclean said that it was somewhat difficult for him to understand the meaning of the word “appertaining”, the US desire to avoid use of “sovereignty”, and the bearing of fisheries questions upon the continental shelf problem. Mr. Hare said that he quite agreed that the US positions seemed somewhat obscure but that it was nonetheless of importance to the Department to maintain those positions. He agreed that the British were correct in saying that a nation must possess “sovereignty” before being able to exercise jurisdiction. However, the Department felt it necessary to avoid an expression of the word “sovereignty”. Mr. Boggs, however, said that he believed there was a genuine distinction between the concepts of “sovereignty” and “jurisdiction,” and that jurisdiction could be exercised to affect something over which a nation did not have “sovereignty”.

Mr. Jones then remarked that he believed the Department’s position was one of anxiety lest a declaration of sovereignty over the seabed might lead to a declaration of sovereignty over the high seas. Mr. Gray said that this was the case, and that it was especially unfortunate that the President’s declarations were issued both on the same day, thus necessarily linking them in the eyes of most observers.

(In aside conversations with Mr. Hare, Mr. Boggs, and Mr. Gray during the course of the above discussion, Mr. Dunn suggested that the “sovereignty”–“jurisdiction” controversy might be resolved by abandoning both words in favor of the following: “declares its title to and its exclusive right to regulate the exploitation of the natural resources, etc.” The suggestion was approved. It was decided, however, that the above substitute wording would not be proposed to the British unless the Foreign Office, proved adamant in its refusal to accept “jurisdiction and control.”)

Mr. Hare suggested that, inasmuch as the American side had made clear to the British representatives the Department’s position regarding the problem of “sovereignty,” it would then be in order for the meeting to consider certain other points. One of these was a suggestion made by Mr. Sanger to the effect that it might be advisable to delete from the draft proclamation a reference to the high seas of “the [Page 36]Persian Gulf,” changing the reference to simply the “high seas” contiguous to one of the riparian nations, wherever the seas might lie. This might be advisable because certain of the nations involved in a Persian Gulf division might also have “continental shelf” in the Gulf of Oman, These nations would be Iran, Trucial Oman and Muscat and Oman, and it would seem wise for them to assert rights over “continental shelf” contiguous to all of their shores rather than merely to their shores on the Persian Gulf. In addition Saudi Arabia might have some “continental shelf” lying on the Red Sea. Mr. Jones remarked that he felt the discussions so far had been confined to the Persian Gulf “continental shelf”, and that the question of shelf belonging to Persian Gulf States but lying outside of the Gulf had not yet come up for consideration. Mr. Hare indicated, however, that the American side would like to have the words “Persian Gulf” removed.

Mr. Jones remarked that in the paragraph numbered 1(b) of Mr. Gray’s August 19 draft it was stated that the transversal boundaries would be determined between rulers “in accordance with fair and equitable procedures.” He remarked that the British draft had not referred to any such procedures but had suggested simply unqualified bilateral discussions between neighbors. Mr. Jones felt the American wording suggested that the bilateral agreements might be considered subject to review by third parties as regards the fairness and equitableness of the agreements. Mr. Boggs said that he felt the American language made it perfectly possible for bilateral agreements to be reached but that it offered the advantage of providing by implication an avenue of escape for one of the two parties should serious difficulties arise in any efforts to establish boundaries.

Mr. Jones inquired if it would be desirable from the American point of view for some kind of statement to be issued by the US and the UK to American and British oil companies, once the final division of the subsoil had been worked out by the riparian rulers. Mr. Mattison said that it would be advisable for such a statement to be issued but that the State Department would be most anxious to concert with the Foreign Office before any statements were issued.

Mr. Jones then asked if the American side had any other doubts or reservations concerning the proposals which had been submitted by the British Foreign Office. Mr. Mattison said that the Department was somewhat concerned about the consequences of the British suggestion that the UK unilaterally approach the Sheikhdoms under their protection about three weeks in advance of the parallel US–UK approaches to the other riparian states. The Department feared, for example, that if the Sheikh of Kuwait were approached by the British in this fashion in advance, King Ibn Saud might in some way or other learn [Page 37]of such an approach and feel that he had been unfairly dealt with in not having been consulted at the same time. Mr. Maclean said that he could appreciate the difficulties and embarrassments which might arise should something of this sort take place, but he believed that the Foreign Office felt they were obliged, in view of their special relations with the Sheikhs, to mention such a matter as this Persian Gulf question to them in advance of any communication to the other riparian states. He also said that apparently the Foreign Office was anxious to insure that should Iran desire to take any unfavorable action such as a declaration of Iranian rights on the western side of the Persian Gulf (such as over Bahrein) the Foreign Office considered it desirable that the Sheikhs be prepared in advance to take action countering such possible Iranian action. Mr. Dunn said that the State Department was not actually afraid that the Iranians would take any such action as the British had in mind, but that the State Department was seriously worried about the manner in which the Iranian Government might react if any steps were taken about which they had not been consulted. Mr. Dunn felt that the British suggestion in Mr. Bromley’s letter to Mr. Mattison that the Iranians be “warned” did not seem a desirable proposal. Mr. Jones said that the Foreign Office was afraid that it would take the Sheikhs a long time to achieve the necessary work involved in issuing their declarations, and that this was another reason why the Foreign Office desired to approach them in advance. Mr. Dunn said that nonetheless he felt that all of the states should be approached simultaneously. Mr. Jones said that although he recognized the danger which Mr. Mattison had foreseen in terms of a “possible leak”, from one of the Sheikhdoms to a ruler such as Ibn Saud, it would nonetheless probably be difficult for the Foreign Office to contemplate handling the situation any other way. Mr. Hare suggested that possibly the Foreign Office might be able to inform British representatives in the Sheikhdoms of what was being contemplated without actually informing the local rulers themselves. Thus a great deal of time might be saved from an administrative point of view, and yet no approach would have been made to a Sheikh in advance of the approaches to the other rulers. Mr. Jones said that he would inquire about this possibility.

Mr. Dunn said that if for any reason the Foreign Office did not desire to participate directly in a parallel approach by the US and the UK to the Iranian Government, the American Ambassador in Tehran, to suit the convenience of British, might approach the Iranian Government on behalf of the US and the UK. The Department would be happy to arrange this, if it would make it easier for the British to agree to an approach to Iran simultaneous with the approaches to the other countries. Mr. Jones said that he appreciated this offer and would report it to London.

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Mr. Maclean said that he would transmit to London a copy of Mr. Gray’s draft proclamation of August 19 together with a statement of the points made by the Department in explanation of that draft to him and to Mr. Jones at this meeting. He said that in addition Mr. Jones would be leaving Washington for London on the 24th and he would be able then to explain in person at the Foreign Office the various positions taken by the State Department, Mr. Jones pointed out again that the British were most anxious to arrive at a solution to the whole problem as soon as possible, inasmuch as the various oil companies involved were pushing Saudi Arabia to come to a decision on the offshore concessions and the UK would be most unhappy if the Saudis were to take any action which might not “fit the bill,” in the eyes of the US and the UK.

[Annex]

Text of Draft Proclamation

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Whereas it has become technically possible to utilize the natural-resources of the sea bed and subsoil beneath shallow seas;

Whereas it is just that the submarine platform extending to a reasonable distance from the coasts should appertain to and be controlled by the nation to which it is adjacent;

Whereas in the interest of protection, conservation and orderly development, it is the duty of a maritime state properly to control and regulate the use of the natural resources of the sea bed and subsoil adjacent to its coasts;

Whereas the right of a maritime state to exercise its control over the natural resources of the subsoil and sea bed of the submarine platform or continental shelf adjacent to its coasts has been established in international practice by the action of other states;

Now, therefore, we _____, the _______ of _______, in pursuance of all powers enabling us in that behalf, are pleased to proclaim, and it is hereby proclaimed, as follows:—

1.
The ________ of _____________ regards as appertaining to the __________ of ___________ and subject to its jurisdiction and control the natural resources of the sea bed and subsoil of the submarine platform which lies beneath the high seas of the Persian Gulf contiguous to the territorial waters of the ____________ of ____________ within the following area:
(a)
between the outer limits of the territorial sea and a line extending lengthwise in the center of the said gulf, and
(b)
within limits common with the two contiguous sheikhdoms, which will be subsequently more precisely defined in accordance with fair and equitable procedures.
2.
Nothing in this proclamation shall be deemed to affect questions concerning sovereignty over Islands.
3.
Nothing in this proclamation shall be deemed to affect the air or the character as high seas of the waters of the Persian Gulf above the submarine platform and outside the limits of territorial waters.
4.
Nothing in this proclamation shall be deemed to affect any fishing or pearling rights.

  1. Infra.
  2. Memorandum of conversation by Mr. McEnerney not printed.
  3. Neither printed.
  4. Both proclamations were covered in the press release issued by the White House on September 28, 1945, printed in Foreign Relations, 1945, vol. ii, p. 1528.