Executive Secretariat Files: Lot 53–D250: Box 1644

Memorandum by Dr. Wilbert M. Chapman, of the Office of the Special Assistant to the Under Secretary for Wildlife and Fisheries, to the Under Secretary of State (Webb)

secret

High Seas Fishery Policy of the United States and Its Implementation

The principle of the Freedom of the Seas includes the concepts that the open oceans of the world are free to the peaceful passage of all mankind without hindrance from, or molestation by, one sovereign government with respect to the commerce of another, and that the free-moving resources of those high seas are the property of him who reduces them to his possession. This principle has been generally accepted into the body of international customs since early in the 17th century. With the development of air commerce in the 20th century this concept has been broadened to include the air column above the high seas.

[Page 889]

The concept of the marginal sea is a limitation upon the principle of the Freedom of the Seas in that the marginal sea has become, through the gradual process of usage and treaties, a part of the sovereign territory of the contiguous State. This concept has been accepted by the United States since the birth of the Republic as a tenet of international law applying to this Government. Although there is no agreement among nations with respect to the extent of this marginal sea the United States has never deviated in the past 158 years from the concept that the band of marginal sea is three miles wide. This latter concept has been generally acceptable to maritime nations throughout our history and is accepted today by those nations conducting approximately 75 percent of the world’s sea-borne commerce.

The principle of the Freedom of the Seas has been further limited on frequent occasions during its history by numerous treaties between or among nations having as their purpose the relief of particular points of friction between or among those particular nations which the uniform application of this principle would have aggravated. Some such agreements have been temporary; others have been permanent concessions (see Treaty of 1818 between the United States and Great Britain).1 Whatever their terms these treaties of limitation have uniformly been restricted solely to the commerce of the signatory nations and never have been permitted by non-signatory nations to have application, either general or specific, upon the commerce of such non-signatory nations.

At this present juncture of history this principle of the Freedom of the Seas and its companion limiting concept of the narrow marginal sea have not decreased in their vital importance to the United States. On the contrary these concepts are of greater moment now to the United States than they have been formerly by reason of the fact that the United States has become the major naval power of the world and has had thrust upon it a major portion of the responsibility for maintaining these as well as other concepts of international law.

At no time in recent history have these subject concepts been under such wide spread attack. They are being attacked both by legal and extra legal processes in international forums and at sea. They are being attacked internationally by numerous countries in North America, South America, Asia, and Europe as well as such island nations as Iceland and the Philippines. They are being attacked by important political elements domestically both on our West Coast and Gulf Coast.

[Page 890]

Within the past five years the Department has engaged in diplomatic activity ranging in seriousness from attempting to persuade the subject nation from attacking these principles to protesting the illegal and unwarranted seizure of United States commerce on the high seas or the shooting down of United States planes in the air column above the high seas with the following nations: Argentina, Chile, Peru, Ecuador, Colombia, Panama, Costa Rica, Nicaragua, Honduras, El Salvador, Mexico, Cuba, Canada, Iceland, Norway, Denmark, Portugal, Saudi Arabia, the Philippines, Korea, China, and the USSR.

In the same period of time elements of the Department’s position on this subject has been attacked by Congressmen from, or the governments of, most or all of the littoral states of the Union but particularly from those facing on the Gulf of Mexico and the Pacific Ocean.

The issue in most of the above-cited diplomatic and political activity has been attacks on the principle of freedom of access to the free-moving resources of the high seas, and it is to this subject that the remainder of this memorandum is addressed.

Each of the littoral nations which have placed themselves in opposition to this principle have done so for one of the two following purposes, or for both: (a) to reserve the resources of the high seas adjacent to its coasts exclusively to itself even if this resulted in great wastage so far as the rest of mankind is concerned through the inability of that nation to harvest those resources adequately, or (b) to raise revenue by taxing the fishermen of other nations who had the ability to harvest these resources.

Each of our own littoral States which have placed themselves in opposition to this principle have done so for one of the two following purposes, or for both: (a) to simplify as much as possible the inevitably complex task of formulating and applying conservation regulations to fisheries conducted on the high seas, and (b) to reserve to the fishermen, who by self-denial through conservation regulations have restored and maintained certain fishery resources in the high seas at a level of maximum sustained production, the fruits of that self-denial in those particular mature fisheries.

The fisheries of the United States principally affected by these contentions include (a) those for cod, haddock, rosefish, herring, mackerel, and related fisheries out of New England, (b) those for shrimp out of the Gulf Coast and Southern Atlantic Coast States, (c) those for tuna, sardine, mackerel, and related fisheries out of California, Oregon, and Hawaii, and (d) those for salmon, halibut, herring, crab, and related fisheries out of Oregon, Washington, and Alaska. These fisheries provide annually more than four-fifths of the total food yield taken by the United States from the sea and it is these fisheries which [Page 891]can be expanded as this nation’s need for protein food and animal oils expands with our growing population.

Practically speaking, the livelihood of every salt-water fisherman of the United States will be critically affected by the outcome of these contentions. Accordingly, every Senator and Representative having such fishermen in his or her constituency is abnormally sensitive to the Department’s activity, or lack thereof, in this field of its work. Numerically, the Congressmen who have indicated in the past three years a continuing, active interest in this subject amount to about 20 Senators and 50 Representatives.

The international phase of this problem has been brought into a critical phase through the program instituted by the Mexican Government to obtain de facto control over fisheries developed by United States citizens in the high seas off the coast of Mexico both in the Pacific and the Gulf of Mexico. One of the tactics used by Mexico in recent years to further such control is the seizure by Mexican gunboats of United States fishing vessels operating as much as thirty miles off the coast and the subsequent claim that those vessels were fishing in Mexican territorial waters without proper permits. This has been brought to a head by a seizure of this nature on April 23, 1950 of five United States shrimp vessels off the coast of Mexico about 150 miles south of Brownsville, Texas.

In choosing the site of this most recent incident Mexico obtained a geographical situation which carried maximum embarrassment to the United States position. The State of Texas contends that the three-mile concept of a band of territorial waters does not apply to the waters off its coast because the sovereign territory of the State of Texas encompasses a band of margin sea three leagues (about 10½ statutory miles) in width. Other Gulf Coast States have similar exaggerated claims which they have supported with more or less vigor in the past, but always with respect to their own citizens or the citizens of other States of the Union, and not as a matter of foreign relations.

This domestic squabble with respect to the breadth of the marginal sea among the Gulf States is always on the verge of becoming enmeshed in the even broader based domestic squabble among the States and between the States and the Federal Government with respect to the ownership of subsoil resources under the marginal sea and the tidelands.

In consequence the Department has been forced into a position of taking a very firm stand internationally in an area of the utmost delicacy with respect to domestic politics. Of necessity the solution of the international aspect of the matter must relate itself to the local domestic situation because the international problem can probably only be solved permanently through treaty between the United States [Page 892]and Mexico, and such a treaty could not receive Senate assent to ratification if the Senators of the Gulf Coast States were in opposition to it.

The other domestic hot spot weakening the Department’s position on this subject internationally is that related to the fully mature salmon, halibut, herring and sardine fisheries of the West Coast States and Alaska. This is an even more critical and sensitive problem with respect to domestic politics than is the Texas problem.

Should, for instance, the fishermen of a foreign nation now enter the salmon fishery of Alaska there would be such a storm of protest raised on the West Coast that the Department would be forced by public and Congressional reaction to take diplomatic action to secure the removal of these foreign fishermen, as it was so forced to do in 1937 and 1938 when Japanese fishermen began to enter the salmon fisheries centering on Bristol Bay, Alaska.

Should the United States be forced to take such diplomatic action on account of this serious domestic reaction, that action would have the effect of devastating our position with respect to maintaining freedom of access to the resources of the sea in other areas of the world.

Accordingly, it would appear to be ordinary prudence to seek treaties of mutual denial with the nations who are able practically to send their fishermen into those fisheries, in order to prevent such embarrassment to, or weakening of, the Department’s position with respect to freedom of access to the resources of the sea, and the broader issue of the Freedom of the Seas. Such nations are two: Russia and Japan.

In order to contribute to a solution of this complex problem of protecting the principle of the Freedom of the Seas, U/FW requests permission to draft and negotiate, with the concurrence of the appropriate geographic desks and the Legal Adviser, separate treaties with Russia, Japan, and Mexico.

These treaties would have the following substantive points in common:

1.
They would express a mutual self-denial by each of the signatory nations of fishing in certain areas of the high seas and, in consequence,
2.
They would be a limitation, with respect to each signatory nation, upon the principle of Freedom of the Seas and freedom of access to the free-moving resources of the seas.
3.
They would specifically exclude from their effect the fishermen of non-signatory nations.

As an example there is attached a Draft Convention Among the United States, Canada and the USSR for the Preservation of Certain Fisheries of the North Pacific Ocean and Bering Sea.2

[Page 893]

In consideration of this request the following historical and political facts should be borne in mind:

1.
It has been possible to maintain the principle of the Freedom of the Seas for upwards of three hundred years only because of the major limitation upon its effects of the concept of a band of marginal sea which is the sovereign territory of the contiguous nation.
2.
It has been possible to maintain the concept of a narrow band of marginal sea for more than two hundred years only because nations have been willing from time to time to place limitations upon the application of this concept to their relations with other particular nations through treaties in order to alleviate specific aggravations between or among themselves which the general application of the concept would have advanced.
3.
One type of such limitation that has been frequently utilized by nations, including the United States, is voluntary limitation of its fishermen from certain areas of the high seas.3

  1. Signed at London, October 20, 1818; 8 Stat. 24 or Treaty Series No. 112 or Hunter Miller (ed.), Treaties and Other International Acts of the United States of America, vol. ii, p. 658. The specific reference here is to Article I of the treaty.
  2. Not printed.
  3. Strong exception was taken to this memorandum by the Bureau of Economic Affairs, which set forth its views in an undated memorandum, not printed. The United States paper argued that the treaties proposed were unnecessary (domestic political pressures were exaggerated), constituted a reversal of established treaty policy (substituting the principle of mutual exclusion for the principle of equal access), and would run contrary to this Government’s general foreign economic policy (by providing extreme and excessive protection to a domestic industry). Additional reasons were advanced against concluding such a treaty with Japan, based on the inferior international position held by the Japanese state at that time.