The Secretary of State to the Attorney General (McGrath)
My Dear Mr. Attorney General: Reference is made to your letter of January 22, 19522 inquiring whether, in the light of the decision of the International Court of Justice in the Fisheries Case (United Kingdom V. Norway) in date of December 18, 1951,3 the Department adheres to the statement of position given at your request on November 13, 19514 with respect to the principles or criteria governing the delimitation of the territorial waters of the United States.
The Department noted the holding of the Court that the Norwegian Government in fixing the base lines for the delimitation of Norwegian fisheries by applying the straight base line method had not violated international law, especially in view of the peculiar geography of the Norwegian coast and of the consolidation of this method by a constant and sufficiently long practice.
The decision of the Court, however, does not indicate, nor does it suggest, that other methods of delimitation of territorial waters such as that adopted by the United States are not equally valid in international law. The selection of base lines, the Court pointed out, is determined on the one hand by the will of the coastal state which is in the best position to appraise the local conditions dictating such selection, and on the other hand by international law which provides certain criteria to be taken into account such as the criteria that the drawing of base lines must not depart to any appreciable extent from the general direction of the coast, that the inclusion within those lines of sea areas surrounded or divided by land formations depends on whether such sea areas are sufficiently [Page 1657] closely linked to the land domain to be subject to the regime of internal waters, and that economic interests should not be overlooked, the reality and importance of which are clearly evidenced by long usage.5
In the view of the Department, the decision of the International Court of Justice in the Fisheries Case does not require the United States to change its previous position with respect to the delimitation of its territorial waters. It is true that some of the principles on which this United States position has been traditionally predicated have been deemed by the Court not to have acquired the authority of a general rule of international law. Among these are the principle that the base line follows the sinuosities of the coast and the principle that in the case of bays no more than 10 miles wide, the base line is a straight line across their opening. These principles, however, are not in conflict with the criteria set forth in the decision of the International Court of Justice. The decision, moreover, leaves the choice of the method of delimitation applicable under such criteria to the national state. The Department, accordingly, adheres to its statement of the position of the United States with respect to delimitation of its territorial waters in date of November 13, 1951.6
- Not printed. (711.022/1–2252)↩
- For the text of this judgment, see International Court of Justice, Reports of Judgements, Advisory Opinions and Orders, 1951 (Leyden, A. W. Sijthoff’s Publishing Company, n.d.), p. 116.↩
- Foreign Relations, 1950, vol. i, p. 885.↩
- For a fuller discussion of the Anglo-Norwegian fisheries case, see Marjorie Whiteman (ed.), Digest of International Law (15 vols.; Washington, 1963–1973), vol. 4, pp. 153 ff.↩
- In a memorandum of Feb. 11 to the Secretary of State, transmitting this letter for the Secretary’s signature, the Legal Adviser, Fisher, stated in part: “L, with the concurrence of U/FW and OIR/GE, believes that the Department should adhere to the position expressed in the letter of November 13[, 1951]. The reasons for this view have been outlined in the briefing paper prepared for your meeting with Representative [Samuel W.] Yorty and Senator [Russell B.] Long on February 4, 1952 (Tab D). This briefing paper recommended in particular that, despite the objections of Representative Yorty and Senator Long, you sign this letter to the Attorney General advising him that the Department adheres to its former position. Since that meeting, in addition, further consultations have been had with the Department of Defense upon which Representative Yorty has also urged a change of the official position of the United States with respect to the method of delimitation of its territorial waters. The Department of Defense, it is believed, will inform Representative Yorty that it does not see any necessity for such a change of position.” (711.022/1–2252) The briefing paper was not found attached to the source text.↩