Subject: British Proposal for Informal Talks re Territorial
Waters
In discussing the British request for informal conversations regarding the
present state of international law relating to territorial waters, reported
in Mr. Chapman’s memorandum of June 5,3 it appeared
desirable to have further clarification of British thinking and intentions
on this matter. Accordingly I took up one or two points informally with Mr.
Tebbit of the British Embassy,4 who thereupon volunteered to
state the substance of his instructions in a personal letter. In doing so,
he wished me to point out that this information was for our confidential use
only, was based largely on very informal communications received by the
Embassy from the Foreign Office, and must not be taken as any definitive or
official statement of the British position.
It will be noted that the proposed talks would deal chiefly with the question
of the three-mile limit and policies which might be [Page 1686] adopted by the British, or jointly by the British and
United States Governments, to uphold this limit. The Embassy, however, like
BNA, is under the impression that the
general state of international law and individual national practices
relating to territorial waters would probably come under review in the
course of such conversations.
A copy of Mr. Tebbit’s letter is attached.
[Attachment]
The Second Secretary of the British Embassy (Tebbit) to Mr. F. Gamer Ranney
of the Office of British Commonwealth and Northern European
Affairs
confidential
by safe hand
Washington
, 23rd June
1950.
Ref: 1271/19/50
Dear Garner: I am writing in response to your
request for further clarification of the nature of the proposal about
territorial waters which Mr. Fawcett and I recently put to you and Dr.
Chapman.
2. His Majesty’s Government attach the greatest importance to the
maintenance of the three-mile limit, particularly in relation to
neutrality in time of war, and with regard to fishing. While they are
continuing to protest against any claims to territorial waters outside
three-mile limits, they are concerned at the manner in which the
practice of claiming greater limits is growing. The difficulties of
arresting the practice are all the greater since it is quite uncertain
whether the Hague Court would give a judgment in favour of the
three-mile limit if a case were brought before it.
3. It was the hope of His Majesty’s Government (and, we believe, of the
United States Government) that the Hague Codification Conference of 1930
would end in a Convention being signed laying down that the limit of
territorial waters was three miles. The fact that the Hague Conference
broke up without producing any convention seems to have encouraged a
number of governments to claim by their domestic laws territorial waters
to a breadth greater than three miles. These governments seem to have
felt that the absence of agreement at the Hague entitled them to take
this action. Our feeling is that, while it may be difficult to prove
that Ruritania is not entitled to claim more than three miles, it is
equally difficult to prove that if she does so the United Kingdom, for
example, is obliged by international law to accept her claim.
4. As you are aware, we at present have a case with Norway under
examination by the Hague Court. Owing to the fact that the Scandinavian
four-mile belt is really older than the three-mile limit, Norway’s [Page 1687] claim to four miles would
probably have been more difficult to defeat in the Court than any other
claim in existence to a limit greater than three miles. For this reason
in the Norwegian Fisheries case the question which the Court will be
deciding is not the breadth of territorial waters but the manner in
which the complicated coast of territorial waters may be measured.
Roughly speaking, Norway contends that she may measure territorial
waters by drawing long lines from headland to headland, thereby
enclosing large areas of sea which (according to the United Kingdom
view) are not territorial waters at all. We are somewhat afraid,
however, that the greater the success of the United Kingdom on this
issue before the Court, the more likely will it be that other States
wishing to enclose wide areas of sea will adopt the method of claiming a
wider territorial belt because the other method (that of drawing long
lines from headland to headland) will have been declared wrong by the
judgment of the Hague Court.
5. In future cases which may arise, however, it may not be possible to
avoid the direct question of the breadth of territorial waters. In these
circumstances we are considering what, if anything, can be done to
render it more likely that a majority at the Hague Court would decide in
favour of a three-mile (or at most a four-mile) limit in the event of a
case being put to them in those terms.
6. With this object in mind we have been reviewing the tactics which the
British delegates pursued at the Hague Conference in 1930. There were
before that Conference drafts (which had a great deal of support) in the
first place prescribing three miles as the breadth of territorial
waters, and secondly admitting a contiguous zone outside the three-mile
limit in which the littoral state could exercise jurisdiction over
foreign shipping to the extent necessary to protect its revenue and
fiscal interests. The French writer, Gidel (who was both a French
delegate at the Conference and is, perhaps, the greatest authority on
the international law of the sea) says in his book that if the ardent
supporters of the three-mile limit, such as the United Kingdom, had
chosen to accept the proposal relating to the contiguous zone, they
would probably have succeeded in obtaining very wide acceptance for a
Convention prescribing the three-mile limit for territorial waters.
Gidel goes on to say that these Powers made a capital mistake in not
doing so, particularly having regard to the fact that in the past
practice both of the United States Government and the British Government
there was ample authority for the view that the proposals relating to
the contiguous zone did not go beyond existing international law.
7. The British Government have since 1930 protested against claims by
other States to exercise jurisdiction in the contiguous zone. They [Page 1688] have, in consequence, found
themselves in conflict with certain States about actions which they
would not have had to challenge if the contiguous zone theory had been
admitted. All these protests have been ineffective. Moreover, so far as
we can see at present, there is no practical objection to the admission
of the contiguous zone provided that its extent and what can be done
there is carefully limited.
8. For all these reasons His Majesty’s Government have under
consideration the possibility of a change in their policy, namely the
acceptance for the future of the contiguous zone as a means of
strengthening the case for the three-mile limit. It can be demonstrated
that a three-mile limit is not sufficient for the customs protection of
a large number of countries; if, however, the contiguous zone is
admitted, this objection to the three-mile limit falls.
9. If the British Government should decide to change their policy in this
way, the question will arise as to the manner in which they should try
to implement their decision. Our thoughts on this aspect are naturally
not yet very far advanced but I think you should know that we do not think that it would be helpful to call
another Conference on territorial waters.
10. Before pursuing the matter further, the Foreign Office would very
much welcome the opportunity of a confidential exchange of views with
American officials, particularly in view of the keen interest which they
have expressed in the Norwegian Fisheries case. We have, therefore, been
asked to ascertain whether the United States Government would like to
engage in entirely unofficial and private discussions on this matter. If
this suggestion should commend itself to you the Foreign Office would be
prepared to consider sending someone over to Washington from the United
Kingdom, like Sir Eric Beckett5 or Professor Waldock who are
perhaps more conversant with this question than anybody else on our
side. The idea would be that they should meet and exchange ideas with
one or two United States experts. I should like to emphasize that the
conversations would be entirely unofficial. Nevertheless, we think that
they might be of considerable benefit to both sides.
11. Although I have gone into this question at some length in order to
make the position as clear as I can, I should be grateful if you would
regard this letter as entirely unofficial and informal. I shall look
forward to receiving your views on the questions which I have
raised.
Yours ever,