L/SPF Files, Lot 68 D 47, Box 1594
Informal Record of Discussions Between Representatives of the Department of State and the British Government Concerning Legal Problems Relating to Territorial Waters, Washington, March 22 and March 23, 1951
Note by Sir Eric Beckett of the Discussions at the State Department on the Question of the Law of Coastal Waters
A day or two before the discussions began, I gave to the State Department the attached table, marked A, enumerating the points which we should like to discuss with them, in order that they might be able to arrange to have the appropriate experts present for the different points that arose.
2. We began the discussions on the morning of Thursday, 22nd March, and had two sittings, one in the morning and one in the afternoon. There were present on the American side Mr. Fisher, the Legal Adviser, Mr. Tate and Mr. Yingling of the Legal Adviser’s Department, Professor Dickinson of the University of Pennsylvania, Mr. Ranney of the Office of British Commonwealth Affairs and, for part of the time, Mr. Byrns of the Icelandic desk. For the afternoon’s meeting there were also present Mr. Gullick and Mr. Pomeroy of the Customs Bureau of the Treasury Department and Mr. Taylor of the Fisheries Division of the Department of State.
3. It was agreed on both sides before the discussions began that the purpose of the discussions was merely an exchange of information and ideas, it was hoped that this exchange would assist the Governments in the decisions which they would have to reach in the future on the various important developments in the realm of the international law of the sea which are now taking place. There was no intention of making any agreement. It was, however, agreed that both Governments were desirous of safeguarding the free navigation of the seas and in particular of maintaining the three mile limit of territorial waters.
4. We then proceeded to discuss the question of the breadth of territorial waters and in particular the policy which should be adopted with reference to claims by other states to belts of territorial waters wider than three miles. We explained our position, which is fully developed in pages 65, 66, 79 and 80 of the United Kingdom Reply in the Norwegian Fisheries Case which can be stated in a word as being that:
- the three mile limit is the generally accepted minimum limit to which all states are entitled;
- claims to a belt wider than three miles should be resisted save in the exceptional case where it is thought that a state can establish, on the basis of prescription, a title to a wider belt.
5. We explained that in the Fisheries Case we had admitted Norway’s title to four miles on the basis that, in the very special facts of her case, she could establish her claim on the ground of prescription.
6. The American side, while appreciating that it might well have been expedient for the United Kingdom to take the line which they did in the litigation with Norway, were interested in the idea that a claim to a wider belt might be based on prescription, and in particular wondered what other states could establish claims to a wider belt on this basis. It was pointed out that Sweden was in exactly the same position as Norway but that there seemed to be no other country which had so strong a claim to a belt wider than three miles as Norway had. Perhaps Spain had the next strongest claim and the special case of Iceland is discussed below. On the American side they were at present particularly interested in the claim of Mexico to a belt of nine miles, a claim which goes back many years, which they suggested was comparable, though not quite so long standing as that of Norway. The United States had been considering whether it would be expedient for them to challenge Mexico’s claim to nine miles before the Hague Court. There was then some discussion on what would be the probable decision of the Hague Court in a case where a claim to a belt wider than three miles was in issue. While it was agreed that much would depend on the particular claim which was in issue, the possibility was that there would be a majority decision of the Court at the present time upholding some claims to more than three miles. It was, however, pointed out that, if the United Kingdom was successful in its present case against Norway, a case which related to the base lines which could be drawn for the purpose of measuring territorial waters, it might be that the reasoning of the Court in reaching that conclusion would in fact afford some support for a subsequent challenge for a belt of territorial waters in excess of three miles, and therefore it was expedient that both Governments should study this judgment with great care from this point of view. If the United Kingdom was successful in the case against Norway it would probably be on the basis of the principle that no state is obliged to recognise a claim of another state to territorial waters going beyond a claim justified by principles of international law which have general acceptance, and of course it cannot be said that any claim to a belt more than three miles has general acceptance.
7. Reference was then made to the case of Iceland as a case which will make it necessary for the two Governments to reach conclusions as to the action which they will respectively take in the immediate future. Iceland has denounced the 1901 Fishery Treaty and has enacted legislation to come into force as soon as her notice of denunciation expires, under which she adopts a four mile belt for territorial waters and methods of measurement similar to those adopted by Norway. Iceland’s [Page 1696] notice of denunciation expires about October of the present year. Both Governments have already protested against Iceland’s prospective claim to a four mile limit and to the manner in which she proposes to measure it. In the United Kingdom note reference was made to the fact that the Norwegian Fisheries Case would involve some of the same issues as those which were in dispute with Iceland and that it was then thought that the judgment of the Hague Court would be received in July next in sufficient time for discussions between Governments to take place before the new Icelandic legislation comes into force. Unfortunately, it now appears that judgment in the Norwegian Fisheries Case cannot be expected before December. I therefore suggested that it might be the best course for the two Governments, which had both protested against the new Icelandic legislation, to endeavor to persuade Iceland to defer the application of her new legislation until the judgment of the Hague Court in the Norwegian Case had been received. It was generally agreed that this course seemed expedient and it was suggested that, if the United Kingdom Government were of this opinion, they could, at a later date through their Embassy in Washington, ask the United States Government whether they would be prepared to address Iceland on the same lines. It was pointed out on the American side that there was no American fisheries interest in the waters round Iceland and the United States was really only concerned with the questions of principle concerning the breadth and measurement of territorial waters, and for political reasons the United States might not wish to make this matter a big issue between it and Iceland. Iceland probably had for 150 years been on a four mile limit. Then in 1901 Denmark brought Iceland into a fisheries convention of 1901 which provides for a three mile limit and while that Convention has been in force, Iceland has not, so far as I know, in fact claimed limit wider than three miles for any purposes against a state, though she may now argue that she adopted the three miles after 1901 merely as a concession for a particular purpose granted by convention.
8. We then turned to item (b), other questions affecting the measurement of territorial waters. It was pointed out on the United Kingdom side that the principles which we upheld were those contained in the report of the second subcommittee of Committee 11 of the Hague Conference, and further set out in the United Kingdom Memorial in the Fisheries Case. It was believed that these principles were those which the United States itself held to be correct and that the views of Mr. Boggs, the Geographer of the State Department, were broadly in line with those of Commander Kennedy of the Hydrographer’s Department in the Admiralty on this question. It was therefore thought unnecessary to pursue this aspect further and it was also decided that [Page 1697] the question of artificial islands should be taken up later in connexion with the continental shelf.
9. We then proceeded to a discussion of the contiguous zone. I explained that, on this issue, we wanted to know particularly the United States position and therefore hoped we should be able to go into the matter rather thoroughly. We wanted to know the United States position particularly because the different Departments of H.M.G. had at the present time some difficulty in reaching an agreed view on the best policy to follow with regard to the question of the contiguous zone, and we hoped that the information which we would obtain from the American side might assist us in reaching a conclusion. It was agreed that the contiguous zone question had to be considered under different aspects, namely:
- customs and revenue;
- defence; and
- pollution of the sea.
It was agreed to defer consideration of aspect (3) and (4) until tomorrow’s meeting, when some representatives of the Department of Defense could be present.
10. Turning to the aspect of customs and revenue, discussions began with an explanation from the representatives of the Customs Bureau of the Treasury Department of the Anti-Smuggling Act of 1935. It was stated that the United States, continuously from the creation of the American Union, had had in its legislation provisions entitling the United States authorities to board, and if necessary to seize, all inbound vessels within twelve miles from the coast of the United States if it was thought necessary to do so for the purpose of preventing the evasion of customs and revenue laws. It was understood that this legislation was also applied against hovering vessels following enactment of the Tariff Act of 1922, except where treaties had provided otherwise. The effect of the Anti-Smuggling Act of 1935 is broadly as follows. This Act in the first place establishes as a customs zone all the waters within twelve miles of the coast. It also gives the President the power by proclamation to create customs enforcement areas opposite portions of the coast where there is reason to think that smuggling activities will be rife. A customs enforcement area may extend outwards as much as 50 miles beyond the customs zone and may extend for 50 miles on either side of the area of the smuggling threat. Inside the customs zone and in the customs enforcement areas, if they have been declared, the American revenue authorities may board and, if necessary, seize vessels of any flag suspected of attempting to smuggle goods into the United States. No customs enforcement area has in fact ever been declared under the Act of 1935 and therefore it cannot be said that there has been any international [Page 1698] acquiescence in the jurisdiction which is potentially conferred by this portion of the Act. As regards the customs zone (twelve miles), the United States authorities had only exceptionally found it necessary to use their powers in these zones, though on the other hand there is plenty of precedent for their exercise of rights within the twelve mile limit against inbound foreign vessels in the nineteenth century. The United States therefore has in force a unilaterally declared contiguous zone for customs purposes twelve miles wide, and it was agreed that the United States would not be in a position to object to other countries exercising similar rights against United States vessels within twelve miles of their coasts, though of course in this, as in other matters, objections can always be raised to an abuse of jurisdiction in any particular case. Owing to the fact that the President has not made any use of his powers to declare customs enforcement areas, the Americans were not sure that they would be precluded from objecting to similar measures put into force against American ships by other countries.
11. I explained that our particular interest in this matter arose because, the United Kingdom not having at the present time nor having had since 1853, any legislation for the exercise of customs jurisdiction outside the three mile limit, the Government of the United Kingdom’s present position was that they denied the right of any state to exercise jurisdiction for customs purposes over British vessels outside the three mile limit, apart from agreement. It was indeed His Majesty’s Government’s insistence on this that caused the Hague Conference of 1930 on Territorial Waters to fail. Though His Majesty’s Government had no desire at the present time itself to exercise customs jurisdiction over vessels outside the three mile limit, the question arose whether it was possible or expedient for His Majesty’s Government to continue taking up the position of denying that international law gave states the right to exercise customs jurisdiction in the contiguous zone. Apart from the fact that the United Kingdom had itself exercised a contiguous zone jurisdiction until 1853, it was also the fact that the Privy Council had, in two recent judgments, gone out of its way to state in obiter dicta that, by international law, states were entitled to exercise such a jurisdiction. The question arose whether the United Kingdom gained anything by maintaining a point of view which was clearly contrary to that of the United States and indeed appeared to be supported by few, if any, other countries. In particular, the question arose whether the general policy of endeavouring to secure the three mile limit of territorial waters would be furthered if the United Kingdom ceased to dispute the validity of the contiguous zone. It was often objected to the three mile limit that it was totally insufficient for various particular purposes. It might be some answer to this objection if it could be said that a contiguous zone for necessary purposes was admitted. However, one of the difficulties about the contiguous zone [Page 1699] was the vagueness of its extent geographically and also the question as to what particular forms of jurisdiction could be exercised within it. A contiguous zone for customs and revenue might be more readily accepted if it could be said with some confidence that international law recognised it up to twelve miles and no more. It would become a more serious matter if states could declare contiguous zones for customs purposes of undefined and almost indefinite width. It was pointed out on the American side that, while on the basis of state practice there was a considerable ground for arguing in favour of a twelve mile limit and no more for customs and revenue purposes, such a limit might be inacceptable in regard to other matters such as defence (see page 9 below where it is agreed that the jurisdiction for defence purposes should not be placed on a contiguous zone basis). Even in regard to customs and revenue matters the United States would not be disposed to challenge a seizure of an American vessel by a foreign state outside the twelve mile limit in a case where a state had bona fide established a wider zone because its revenue protection actually required it, nor were they prepared to say that the President of the United States would in the future refrain from using the power given to him by the Act of 1935.
12. The discussion then turned to the question of the contiguous zone in relation to fisheries, and I explained that the United Kingdom was at present opposed to any contiguous zone jurisdiction in relation to fisheries (apart of course from agreement), whether the jurisdiction took the form of the enforcement of conservation measures or the reservation of fisheries to nationals. I referred to the tendency of Latin American states to claim a fisheries jurisdiction in the waters of the sea above the continental shelves which they had purported to annex and that, most regrettably, support de lege ferenda to this view was given by the Francois report and by the Secretariat memorandum, which was known to have expressed the opinion of Professor Gidel. I was, of course, aware of the Truman fishery proclamation but that, in the case of the North-West Atlantic, this had been implemented by the Convention of 1949, and there everything was done on the basis of the agreement of the interested states and no jurisdiction over the vessels of non-contracting states was asserted in the Convention. Thus Article 13 provided that, if the ships of states which were not parties came to the area and engaged in activities inconsistent with the conservation schemes, the remedy was to be by concerted representations to the Governments of the vessels concerned.
13. There was then a discussion of the Truman proclamation.1 Mr. Taylor of the Fisheries Division stated that it was the policy of the United States to regard all fishing outside the three mile limit as a high seas fishery open to the vessels of every country. It was pointed [Page 1700] out on the American side that, up to date, no action under the Truman proclamation had been taken or was immediately contemplated against foreign vessels outside the three mile limit except on the basis of agreement with the states concerned. The United States Government hoped that it would always be able to deal with such cases on the basis of agreement. It was not possible, however, to state what action the United States Government might take in a case where conservation measures had been put into force in an area with the agreement of all Governments whose vessels were interested in the fisheries at the time of the enactment of the measures, and then the vessels of a country which hitherto had not participated in the fisheries appeared upon the scene, and the Government of the country in question was unwilling to make a suitable agreement. It was quite possible that, in that event, the United States would assert a jurisdiction against foreign vessels outside the three mile limit in the absence of agreement. If that were done, it was thought that the legal justification would be sought in the doctrine that international law should entitle countries which had long-established interests in a certain fishery and had made a “capital investment” therein to protect their interests and investment against newcomers. The protection would take the form of enforcing the conservation measures against the newcomers and would not take the form of excluding them from the fisheries.
14. The investment which should be protected would be:—
- In the case of fisheries such as salmon and sea trout, the measures taken on land and in the rivers to protect and improve spawning grounds and so forth.
- The enforcement by Government vessels and so forth of limitations of catch in the interest of conservation.
- The forebearance of vessels of the United States and of other states parties to the conservation measures from taking excessive catches in one season in order to improve the fishing prospects in later seasons.
In this connexion it was pointed out on the United Kingdom side that arguments (i) and (ii) seemed to be more forcible than argument (iii). It was recognised that conservation measures could always be abused and that a state under the guise of conservation might lay down measures which had the effect of favouring its own fishing vessels even to the extent of rendering it unprofitable for other fishing vessels to go to the point at all.
15. On the United Kingdom side it was pointed out that it might in fact be very dangerous to embark on enforcing conservation measures on the high seas against foreign vessels in the absence of the agreement of the Government concerned. If this were done and became recognised as permissible under international law, it by no means followed automatically that the right to do so would be limited to [Page 1701] cases in the Truman proclamation. It had been found already as a matter of experience that each Truman proclamation was followed by legislation of other states going further. As an illustration, it was pointed out that Iceland was anxious to lay down unilaterally conservation measures regarding fisheries off her coast. Of course, Iceland would have no right to do this under the principles of the Truman proclamation, but the United Kingdom anxiety was that if once the principle that you could enforce conservation measures on high seas on foreign vessels unilaterally was admitted, one could not be sure that the right would be limited to circumstances which the United States would think justifiable under the Truman proclamation.
16. As regards the claims that the continental shelf carried a right to control or reserve fisheries in the waters above the shelf, it was agreed that both the United States and the United Kingdom were opposed to this conception and should take all suitable opportunities to refute and oppose it. It was also mentioned that the United States had in force or in draft agreements for fishery conservation with Costa Rica and Mexico for the protection of the tuna fisheries. These agreements at present provided for investigation rather than conservation. On the American side it was admitted that, though it was unfortunate that the Truman proclamation in regard to fishing came out on the same date as the Truman proclamation with regard to the continental shelf, there was, in the United States view, no connexion between fishery conservation under the Truman proclamation with the continental shelf or for that matter with the contiguous zone.
Friday, March 23rd, 1951
The morning of the second day was devoted to a discussion of military defence zones and of the question of pollution. Captain Gladney, U.S.N., and Commander Emery Smith attended on behalf of the Navy Department.
2. The representatives of the Navy Department stated that defence zones had first been declared, they understood, in the Russo-Japanese war. The United States had declared two forms of defensive sea zones, (a) defensive sea areas, and (b) maritime control areas. The authority for creating defensive sea areas was statutory, the relevant Act being 18 U.S. Codes (old Code, Section 96), which had been passed in 1917 when the United States was still neutral but shortly before its entry into the war. The authority for creating maritime control areas, on the other hand, was the constitutional powers of the President as Chief Executive and Commander in Chief of the armed forces. The principle of both the defensive sea areas and the maritime control areas was essentially the regulation of shipping and navigation within the area for reasons of defence, and in general did not involve exclusion of shipping from the areas. Extracts from sample proclamations were read out confirming that the purpose of these defence zones is the [Page 1702] regulation of shipping, in particular by requiring ships to enter the zones only in daylight and to subject themselves to the supervision of the local naval authorities. (See the Proclamation 2543 dated 25th March 1942, published in the Code of Federal Regulations, titles 1 to 3, Cumulative Supplement page 293.) It was explained that the zones might vary in extent but some of considerable width had already been declared, for example the zone off Alaska extended up to 53 miles from shore. No less than 40 defensive sea areas had been declared during the Second World War and the Act of 1917 was still in force. One or two of the former defensive sea areas were still at any rate theoretically in effect, examples being the zones off Hawaii and Cuba. I then asked about air identification zones, some rumour of which had reached London. It was explained on the United States side that the new air identification zones are created under the Civil Aeronautics Act (49 United States Codes, Section 703). Under this Act the Secretary of Commerce, in consultation with the Secretary of Defence (or in the case of territories administered by the United States in consultation with the State Department) is authorised to establish zones in the air space above the territory or territorial waters and do not therefore involve any such concept as an extraterritorial zone. The executive order might perhaps give another impression but is misleading on this point. On the other hand, the United States representatives said that whenever a defensive sea area is declared, it carries with it an air control zone in the air space immediately above; for example, off Hawaii and the United States naval base in Cuba.
3. I asked whether there were any examples of enforcement of the defence zones against foreign shipping or aircraft. It was stated in reply that during the War the zones were enforced. It is thought however that at the present time no steps to enforce them are being taken.
4. In response to an enquiry as to the precise legal basis on which the United States would put the validity of their defence zones as against other states in the event of dispute, it was said that they were considered to be justified by the principle of an inherent right of self-defence. In this connexion the representatives of the Navy Department said that they bad been somewhat concerned to find on page 5 of the Secretariat’s memorandum what appeared to be a rejection of the existence in international law of a general principle of self-defence. It was pointed out that, in later pages of the memorandum dealing particularly with the Pan-American security zone, a position somewhat more favourable to the principle of self-defence seemed to have been taken up.
5. It was, however, pointed out on the British side that the more modern tendency had been to view with reserve any large applications of the principle of defence. For example, the Charter contemplated only cases where an armed attack occurs and the International Court [Page 1703] in the Corfu Channel Case had shown no inclination to treat the principle of defence as having any extensive application. Indeed, it had expressly decided that Albania could not invoke considerations of security to prevent the passage of warships even through its own territorial waters in an international strait, though it is probable that she could do so in ordinary territorial waters. It was agreed on the United States side that it is essential to limit carefully the concept of sea defence zones and the application of the principle of self-defence. A doctrine of this kind is a two-way doctrine and if abused by other states might lead to serious difficulties. The United States and Great Britain are great naval powers and while defensive necessities may in modern times require defence zones even by great naval powers, it is also true that great naval powers do not wish to have the freedom of their navies to operate on the high seas obstructed by defence zones decreed by small states who are taking no part in the conflict and in peace time at any rate there is the greatest difficulty in denying that small states can do the same as great states.
6. I then asked whether the United States regarded their defence zones as constituting a form of contiguous zone or as depending on an entirely distinct principle of self-defence. The United States representatives doubted whether the defence zones could properly be treated as forms of contiguous zone. Apart from the fact that there is at present no established law allowing these zones as contiguous zones, the concept of contiguous zone was inadequate to meet the needs of self-defence. Modern defence needs might require zones much more extensive than any hitherto contemplated under the concept of contiguous zone. It was, however, recognised that the defence zones have this in common with contiguous zones, that they were a special form of extraterritorial jurisdiction. It was pointed out on the British side that the fundamental principle of contiguous zones as explained in the leading case of “Church v. Hubbart” is the right of self-defence against imminent threat of violation of the laws of the coastal state. The United States representatives reiterated, however, that it is difficult to deal adequately with defence zones under the context of contiguous zones.
7. I then emphasised not only the need to limit the possible applications of the principle of the inherent right of self-defence in regard to defence zones but to have a fairly clear cut notion how to formulate our own view of the legal justification for defence zones. Otherwise in the event of disputes there would be no definite standpoint from which to protest against what we thought were abuses of the principle by other states. For example, I said (drawing on a possible inaccurate recollection of papers I had read some time ago) Nicaragua had recently, in a somewhat confused declaration, appeared to declare a defence zone against which we had protested. In another case Venezuela [Page 1704] had arrested a British oil tanker on the alleged ground that it had infringed regulations in a naval defence zone. This case had in: fact been settled easily enough but in future cases it might be most important to have a clearly defined legal principle on which to take our stand against abusive action by another state.
8. The United States representatives agreed on the need for a definition and Professor Dickinson said that perhaps something on the following lines represented the substance of what they had in mind:—
- “Defence areas are another form of justified exercise of protective jurisdiction outside territorial waters which, in its essential nature, does not admit of restriction to belts or zones precisely defined in anticipation of events. Areas where such protective jurisdiction may be exercised must be (1) related reasonably to demonstrable requirements of protection, (2) defined generally or ad hoc to keep inconvenience to other states at a minimum”.
I said that this was an interesting suggestion which we would study.
9. The United States representatives reiterated the difficulty of dealing with defence zones under the context of contiguous zone. Professor Waldock suggested that the very name “contiguous zone” was unfortunate. The exercise of jurisdiction was not justified by the mere contiguity of the waters but by the need for protection against imminent threat of violation of laws of the coastal state. In the case of customs the zone might appear in the form of an even belt along the whole coast because such was the nature of the need in customs and revenue matters. The real justification for defence zones, however, was the particular threat and even in customs matters the United States, in the Anti Smuggling Act, 1935, had advanced the theory of special customs defence zones quite different from the normal customs zone of twelve miles. The United States representatives agreed that the phrase “contiguous zone” was not very happy and it was felt generally by both the United States and the British representatives that it is desirable to keep the concepts of the contiguous zone and of zones of defence quite distinct. If by treaty or in doctrine the two concepts were quite separate, it would diminish the risk of extraterritorial zones of jurisdiction developing into extensions of territorial waters.
10. The United States representatives raised the question of the British military areas in the two world wars and enquired on what basis we had tried to justify them. It was explained that, in the First World War, the North Sea military area had been declared rather as a counter measure against novel German naval operations than as a reprisal for illegalities. Our justification of the area had been fundamentally that the German operations had converted the area into an actual field of battle. Similarly, in the Second World War, our declarations of the Skaggerak and Kattegat and the North Sea, the Channel, the Bay of Biscay and other areas as war zones had been on the [Page 1705] basis that they were in fact areas of constant military operations between opposing combatant forces. We had during the Second World War asked the Navy Department for its view concerning war zones and had been informed that the United States considered it to be legitimate to declare areas of active military operations as “strategical areas”, irrespective of prior illegal action by the enemy. It was also said that the distinction between the British and German war zones was that the British zones derived from the fact that the areas concerned were actually battlefields, whereas the German war zones were created for the sole purpose of facilitating the destruction of commercial shipping.
11. The conclusion was that in any answers the Governments might make to questionnaires from the I.L.C., it should not be admitted that there was any contiguous zone for defence and that any statement which might be made as regards claims to jurisdiction on or over the high seas for defence should be put in a form which indicated that this matter had no connexion with the so-called contiguous zone.
12. The discussion then turned to the problem of pollution and the possible need for protective zones in this connexion. It was pointed out that, under the League of Nations, it was proposed to conclude a Convention to deal with this problem, but the outbreak of the Second World War precluded the matter from being finalized. Notwithstanding this, certain countries had, it was believed, indicated that they would comply with the provisions of the suggested Convention which included a provision which inter alia prohibited the discharge of oil or oily waste within fifty miles of any coast. The British Navy had a prohibition to this effect in King’s Regulations. The proposed Convention would not have established a contiguous zone jurisdiction but contained a set of model regulations which, it was suggested, each state should apply to its own shipping. The question has recently been raised again in the Transport and Communications Committee of the United Nations Organization and member countries are being circularized with a questionnaire of the matter. It was stated that a contiguous zone jurisdiction in regard to pollution might carry risks of abuse and it was also pointed out that the enforcement of anti-pollution regulations was, in the nature of things, extremely difficult. It was agreed that further thought would have to be given to this question and it was said on the United States side that if no agreement could be reached for a Convention concerning pollution it might be necessary to accept some exercise of jurisdiction by the littoral state and if that were done it might be regarded as a kind of contiguous zone jurisdiction.
Afternoon meeting, Friday, March 23rd, 1951.
As the first subject of discussion at this meeting was the continental shelf, Mr. Vaughan of the Department of Justice, which is much concerned [Page 1706] with the litigation in the United States in which the continental shelf is involved, came to assist at the meeting. The meeting began by considering the following formulation of the principles of international law with regard to the continental shelf which I had prepared after studying a good deal of writing on the subject:—
“The littoral state has an inchoate right over the adjacent continental shelf, a right which it may perfect by appropriate formal annexation or declaration and by thenceforward exercising vigilance to enforce its claim against others: that the shelf, while open to acquisition by the littoral state, is not open to acquisition by other states unless the littoral state allows other states to acquire prescriptive title. For this purpose the continental shelf is deemed to include all sea bed and sub soil where the depth of the water is 200 metres (100 fathoms) or less whether or not there is steep descent to greater depth at about the 100 fathom line. (Secretariat memorandum—pages 93–5). (I.L.C. Report pages 198–201). The shelf includes the surface of sea-bed as well as sub-soil.”
2. It was the general opinion of the meeting that this formulation of principles was one which both on strictly legal as well as other grounds might be conveniently adopted. It was agreed that there was nothing in this formulation which conflicted with any part of the Truman proclamation, though it clarified certain points which were not dealt with in the Truman proclamation. Under this formulation the continental shelf is not res nullius open to acquisition by occupation of any state. The littoral state has ipso facto a certain right over its shelf, but in order to perfect that right it should issue a declaration or other formal instrument making its claim to the shelf. The littoral state’s right might be regarded as an inchoate right analogous to that given by discovery and in this way might be expressed in terms already familiar and recognized in international law. On this basis, a third state could only acquire rights in the littoral state’s continental shelf by agreement or by prescription, i.e. by the littoral state taking no action against an encroachment on its continental shelf. The formulation proposes the arbitrary figure of 100 fathoms as the depth beyond which the continental shelf should not be held to extend. It was agreed that there was much to be said for urging the adoption of this arbitrary figure in the same manner as there had been more than a century ago for the adoption of the equally arbitrary figure of three miles as the breadth of territorial waters. As far as was known, there was no chance of effective exploitation of resources of the sea bed and subsoil in the reasonably immediate future when the sea bed lies more than 100 fathoms (which is over 600 feet) below the surface of the sea. On the other hand, the formulation does not make the existence of a steep descent round about the 100 fathom line a sine qua non for the existence of rights over a continental shelf so that, for this purpose, shallow seas like the Persian Gulf or the English channel [Page 1707] have below them a continental shelf which extends from shore to shore. It was agreed that the shelf must be deemed to include its surface or in other words the bed of the sea and that the minority views of those publicists who would make the bed of the sea part of the sea rather than of the shelf must be opposed.
3. In the discussion of this question there was mentioned a case which occurs sometimes where, on the seaward side of the continental self, beyond the point where the continental shelf ends, the sea bed again rises to form a submerged plateau which rises above the 100 fathom line. It was agreed that, to produce a doctrine which would allocate such submerged plateaux to one state or another would produce a great legal complication and indeed this could hardly be done without introducing a maximum breadth from the coast line within which isolated submerged plateaux would appertain to the nearest littoral state. It was most undesirable to introduce the principle of this maximum breadth from the coast because that would be lending support to the doctrines of the Latin American states on the western coast of South America, who are asserting claims to the sea bed and sub-soil within a radius of 200 miles from the coast irrespective of depth, a conception which it was agreed the United States and the United Kingdom should oppose. The claims of Chile and Peru have attracted some sympathy in the I.L.C. on the ground of inequality because on the shelf doctrine these states get nothing because the sea bed falls below 100 fathoms almost immediately. The answer of course is that geography always has and always must create inequalities in its legal consequences. Further, from the practical point of view, although there exist one or two of these submerged isolated plateaux within not too great a distance from the coast of the United States, there would be no advantage from a practical point of view either to the United States or to the United Kingdom in adopting a doctrine which attributed automatically these plateaux to the littoral state. The exploitation of these isolated submerged plateaux seems likely to be an extremely difficult problem anyhow, and almost certainly commercially impossible except by the country nearest to whose shores they lie. There would be no chance from the practical point of view of another country getting in first and exploiting an isolated submerged plateau more or less adjacent to the coasts of the United States. Only a country with much capital and technical knowledge and experience could exploit such an isolated submerged plateau and the only countries which would stand to gain by the adoption of some principle which attributed automatically to the nearest littoral state a submerged plateau would be the weak and less developed countries who, in their case, might with more reason fear that more developed countries like the United States or the United Kingdom would be able to get in first and exploit an isolated submerged plateau off their coasts. It was therefore thought [Page 1708] that, from the practical point of view, there was no danger to either United States or United Kingdom interests in the adoption of the theory that the isolated submerged plateaux were res nullius open to acquisition by the occupation of the first occupant.
4. There was then discussion on the nature of the rights which a state should have over its shelf, whether the right should be that of sovereignty or whether it should be a right of jurisdiction and control over the resources in the shelf. It is the second conception which is to be found in the text of the Truman proclamation. On the other hand, the orders of proclamations or other instruments issued by other states regarding the continental shelf all adopt the first doctrine, including all the Orders in Council issued by the United Kingdom and the proclamations of the British protected states in the Persian Gulf. It does not seem to be very clear on the United States side why the Truman proclamation did adopt the second conception, though it appears that two factors may have contributed to it. The first factor was an idea (for which I can find no support and it did not appear that most of those on the United States side thought there was much support for it either) that, if sovereignty was claimed over the shelf below, there would follow from that automatically some change in the position of the high seas above, but that no such change would follow from an assertion of jurisdiction and control over the resources in the shelf below. A second factor may have been expressed in the phrase that ‘sovereignty and ownership go together’. Insofar as this idea was influential, it raises questions which only have any application within the sphere of the domestic law of the United States. Sovereignty and ownership do not go together so far as international law is concerned. Indeed, international law as such has nothing to do with ownership, which is a creature of municipal law and not of international law. Under the United States Constitution, however, and as between the Federal Government on the one hand and the state governments on the other hand, this dictum may have some practical application. It was not the case, however, as we at one time thought, that the reason for the adoption of the second conception in the Truman proclamation was the fact that, under the Constitution of the United States, the President could not have declared the shelf under the sovereignty of the United States without the participation of Congress.
5. It was clear on the United States side that, whatever actual words the Truman proclamations used, they intend to exercise virtually the same powers and rights which they could have exercised if the proclamation had declared the shelf under the sovereignty of the United States, and it was not thought that the fact that the United States on the one hand was pursuing the conception of jurisdiction and control over natural resources and the United Kingdom and other countries [Page 1709] were pursuing the conception of sovereignty over the shelf would be likely to lead to any conflict which would make it desirable to resolve the difference by one country or the other abandoning the conception on which it was working. It was pointed out that the conception of sovereignty over the shelf is simpler in various ways. In the first place it is easier to deduce from and attach to the existing corpus of international law. In the second place it does not introduce such a totally new conception in international law as a state’s right to control the exploitation of natural resources in an area which is not under its sovereignty. A divorce of mineral rights from ownership of land is known to municipal law but no such divorce is at present known to international law. Further, a conception of sovereignty over the shelf automatically solves certain subsidiary questions which arise, such as criminal jurisdiction over acts done in the exploitation of the shelf. For instance, a murder committed in a tunnel lying below the shelf, whereas under the other conception the same result may be desired but it does not follow automatically by the application of existing principles to the situation. Further, the conception of the possession of jurisdiction and control over mineral rights without sovereignty over the grounds where the minerals are being exploited is quite new in international law. The right to do whatever is necessary to protect your mineral rights is to say the least of it something which cannot be deduced from existing principles of international law.
6. Some consideration was then given to the question of the effect which the right to the continental shelf has on navigation in the waters above the shelf, and in particular the question of interference with navigation by the artificial structures which are erected extending from the surface of the shelf to above the surface of the sea over it. It was agreed that this is a question which should be solved on the footing that neither the right of exploitation of the shelf nor the right of navigation over the high seas automatically took precedence of the other in any case of possible conflict that arose. The principle was rather that there must be no unreasonable interference with navigation.
7. The principle that there should be no unreasonable interference with navigation is fully realised and indeed applied by the United States in those areas where such artificial structures exist off the coasts of the United States. Thus, the War Department, which in the United States system is concerned with coastal navigation, can exercise a control over the structures erected by United States oil companies and can and does on occasion require that their structures are placed in one position rather than another, even though this may require the drilling for the oil to go down obliquely instead of vertically and other requirements in the interest of navigation are in force.[Page 1710]
8. There was then discussion with regard to the artificial structures erected for the purpose of exploitation of the shelf and after that to the question of artificial islands in general. It was agreed that the artificial structures for exploitation of oil should not be considered as islands carrying a belt of territorial waters round them. They are for the most part erected on piles. If the analogy can be made at all, they are regarded as similar to a permanently anchored vessel and jurisdictional and other questions are determined on that basis. At present the United States has made no special claim to any jurisdiction or control over the waters immediately surrounding these structures, but it is noted that the International Law Commission has suggested that these structures should be surrounded by a security belt, perhaps about 500 yards radius. The meeting was of the opinion that if this notion of the security belt were adopted, it should not take the form of a narrow belt of territorial waters round the structure, that is to say, an area of water which is under the full sovereignty of the state to which the structure belongs. On the contrary, it should be a small area in which the state, to which the structure belongs, would be able to exercise a jurisdiction strictly limited to the prevention of occurrences which would endanger the structure or the operations conducted there, the analogy, if any, being rather to the limited jurisdiction exercised in a customs zone or defence area. The Americans told us that though it may be that practical issues will render it necessary for them to take up a position and perhaps legislate with regard to the waters immediately surrounding these structures, they have not yet devoted a great deal of thought to the question. In this connexion we were told that the area off the coast of Louisiana may require legislative attention before long because areas of shelf are already parcelled out under leases and, if each lessee erects a structure, the structures will be so numerous that, if each had a 500 yard belt of territorial waters round them, virtually the whole area of sea concerned would become territorial waters.
9. There was then a brief discussion on the question of artificial islands. It was agreed by both sides that some artificial islands certainly should be held to carry territorial waters round them. The case of Eddystone lighthouse in the United Kingdom or the case of the artificial islands which are made from time to time off the coast of Florida on the other hand were quoted as cases in point. The artificial islands off the coast of Florida are made by the erection of more or less circular walls in shallow water and then filling up with coral all the space inside the walls, with the result that very soon, under the action of weather, an extremely firm and durable island is created. I mentioned that, in a recent consideration of the question in London, we had summarized the tests which an artificial island must satisfy before it would carry a belt of territorial waters under the words “visibility, [Page 1711] solidity and permanency”. Subject to the point that permanency must be a very relative term, it was thought that these words described principles which might properly be held to be applicable for this purpose. In particular it was agreed that nothing on piles should be regarded as an island for this purpose. Visibility was necessary as one of the tests for an artificial island for the same reason that it is necessary as the test of a very small natural island. One has to distinguish between a rock which is awash and is not an island and a rock which stands well above the surface of the water. The court’s decision in the Norwegian Fisheries case may provide a ruling on this point where natural islands are concerned but will not so far as can at present be foreseen touch the question of artificial islands.
9a. It was mentioned that the question of artificial islands might be of some importance in connexion with the division of the continental shelf in the Persian Gulf and the possible danger was mentioned that interested parties might cause new artificial islands to be created just for the purpose of increasing their claims to valuable continental shelf. To this two comments were made. In the first place a distinction might be drawn between new artificial islands created after the issue of the continental shelf proclamations and those which were in existence before and were merely maintained, and secondly that this possibility was an additional reason for pushing on with the actual delimitation of the continental shelf in the Persian Gulf, a work which, as the meeting were aware was being taken in hand. It was agreed that no state could place a new artificial island on a piece of shelf which belonged to another state. The question of new artificial islands would be most difficult in cases where the actual allocation of the shelf between contiguous states had not been made and the structure was situated on a place which, at the time it was placed, it was very difficult to say should belong to one state or the other.
10. A brief reference was then made to the question of cables and oil pipes laid on the shelf. Of course, on the United States doctrine, which claims only jurisdiction and control over the natural resources of the shelf, no use would be made of anything which would be United States territory by laying either a cable or a pipe line on the top of a shelf belonging to the United States and therefore it would appear that such cables or pipe lines could be laid along the continental shelf of the United States without requiring the permission of the United States. The position might be rather different, however, where a state has acquired sovereignty over its shelf. In that case it might be said that the consent of the sovereign of the shelf was required before either a new cable or a new pipe line could be laid which rested on its territory, just as, for instance, the consent of the littoral state is required for the purposes of laying a cable in territorial waters. It was thought, however, there would be much to be said for the view that, [Page 1712] so far as cables were concerned, international law had already recognised the right of laying cables beneath the high seas without the leave of anybody before any sovereignty over the continental shelf was held to have been acquired and that therefore sovereignty over the continental shelf might be held to be subject to a sort of servitude under which cables might be laid without the leave of the sovereign of the shelf. (Compare the right of innocent passage through territorial waters.) On this doctrine, however, the distinction could be made as regards the laying of oil pipe lines because it cannot be said at the present time there is an acquired right to lay oil pipe lines beneath the sea because, up to now, there have been few, if any, cases where such pipe lines have ever been laid.
11. The discussion concluded with a discussion of the attitude which the two Governments might adopt to demands for international conferences about the law of the sea and territorial waters and to questionnaires of Governments issued by the I.L.C. and the eventual reports on these subjects by the I.L.C. itself. As regards the latter question, it was agreed that, by their answers to questionnaires, Governments had their chance of influencing the ultimate report of the I.L.C. itself and that, as such reports were likely to have considerable persuasive value, both Governments had an interest in returning clear and carefully prepared answers to these questionnaires and that the answers returned by the two Governments would have a far greater chance of being influential if they were in substance the same and did not conflict. As regards international conferences, there was already and was likely to be a demand for conferences on these subjects aired in the United Nations and it was agreed that such conferences at the present time were unlikely to do any good and there was a considerable danger that they would actually do harm. Therefore the two Governments seem to have a common interest in discouraging and if possible getting turned down demands for such conferences. Their efforts to get them turned down were, however, perhaps unlikely to be successful unless the Governments busied themselves with persuasion before the question came up to the vote in the United Nations, and therefore further consultation on the desirability of such action is advisable.