L/SPF Files, Lot 68 D 47, Box 15941

Memorandum by Mr. F. Garner Ranney of the Office of British Commonwealth and Northern European Affairs 2

restricted

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

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,

Donald
  1. Files of the Office of the Assistant Legal Adviser for Special Political Functions, Department of State.
  2. Addressed to Wilbert M. Chapman of the Office of the Special Assistant to the Under Secretary of State for Fisheries and Wildlife (U/FW); Henry R. Labouisse, Jr., Director, Planning Staff, Bureau of European Affairs; Edward G. Miller, Jr., Assistant Secretary of State for American Republic Affairs; Livingston T. Merchant, Deputy Assistant Secretary of State for Far Eastern Affairs; Raymond A. Hare, Deputy Assistant Secretary of State for Near Eastern, South Asian, and African Affairs; John O’Gara, Deputy Assistant Secretary of State for Economic Affairs; Jack B. Tate, Deputy Legal Adviser.
  3. Memorandum not found in Department of State files.
  4. Donald C. Tebbit, Second Secretary, British Embassy.
  5. Legal Adviser, British Foreign Office.