641.576/2–2352
The Secretary of State to the Chairman of the House Judiciary Committee (Celler)
My Dear Mr. Celler: Reference is made to your letters to the Department of February 22 and February 23, 19521 concerning Joint Resolution 373 which was introduced in the House of Representatives by Mr. Yorty on February 11. The purpose of the Resolution is to declare the boundaries of the inland or internal waters of the United States to be as far seaward as is permissible under international law, and to provide for a survey of such boundaries to be made by the United States Coast and Geodetic Survey in the light of the Anglo-Norwegian Fisheries Case. You request the comments of the Department in the matter.
Two major questions are raised by the Resolution. The first concerns the proper interpretation of the decision of the International [Page 1661] Court of Justice of December 18, 1951 in the Fisheries Case (United Kingdom V. Norway). The second concerns the policy which it is in the best interest of the United States to pursue as a result of this decision.
The Resolution relies on the decision of the International Court of Justice in the Fisheries Case to declare that the seaward boundaries of inland or internal waters of the United States shall be a series of straight lines running between headlands of all indentations on the mainland and, where there are off-lying islands, rocks, or reefs, a series of straight lines running around the outer edges of the farthest off-lying islands, rocks and reefs. The Resolution asserts that in establishing such boundaries the United States would be acting in conformity with the principles of international law which control the Fisheries Case. The Department does not agree with this contention.
The Fisheries Case concerned the method of determination of the base line, or seaward limit of inland waters from which Norway measured its territorial waters and thus its fisheries zones. The issue was whether the base line selected by Norway and the method employed in the drawing of this line were in accord with international law. The reasoning through which the Court reached a conclusion favorable to Norway involved essentially three points. The first point was that the straight line method was not, as such, an exceptional system of determination of the base line since there were various methods available. The second point was that the delimitation of the base line must conform to certain basic criteria in order to be deemed valid in international law. Since it is the land which confers upon the coastal state a right to the waters off its coast, the Court stated, the drawing of base lines must not depart to any appreciable extent from the general direction of the coast and the inclusion within these lines of sea areas surrounded or divided by land formations depends on whether such areas are sufficiently closely linked to the land domain to be subject to the regime of internal waters. In addition, the Court indicated, certain economic interests peculiar to a region should not be overlooked, the reality and importance of which are clearly evidenced by a long usage. The third point was that the selection of the straight line method and its application were, in the case of Norway, conformed to these criteria and thus were not contrary to international law.
The latter point deserves particular attention since it deals with the factors to which the Court attached significance in reaching its conclusion. From the beginning of its opinion the Court emphasized the distinctive configuration of the Norwegian coast, the presence of insular formations, designated as skjaergaard, which were in truth but an extension of the mainland, and the necessity of taking [Page 1662] these insular formations into account when drawing the base line since they constituted a whole with the mainland. On the basis of these considerations, the Court found that the principle underlying the drawing of the base line was inspired by the geographical characteristics of the Norwegian coast. The Court also found that, under the Norwegian system, the base line had to follow the general direction of the coast. Being satisfied with respect to these criteria, the Court turned to the inquiry whether the system was consistently and notoriously applied by Norway and whether there had been objections from other states to this application of the straight line method. The Court found in favor of Norway on this issue and summarized its findings at that stage thus:
“… the method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast; … even before the dispute arose, this method had been consolidated by a constant and sufficiently long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law.”2 (p. 139)
The Court did not stop there, but proceeded to examine the question whether the specific lines involved were in fact consistent with the principles on the basis of which they were purportedly drawn. The Court reached thereupon the final conclusion that neither the method nor the base lines actually drawn in application of the method were contrary to international law.
The decision does not hold, therefore, that a state would necessarily be acting in conformity with international law if it arbitrarily selected the straight line method and applied it to the determination of its base line in the manner suggested in the draft Resolution. It is not permissible, accordingly, under the terms of the decision, for a state such as the United States to redefine its base line on the basis of the straight line method unless the selection of the method and its application to the coasts of the United States are justified on the basis of all relevant considerations, geographical, historical and otherwise.
Important considerations of policy are at stake, in addition, in the issue which is raised by the Resolution. To discuss the implications of the Fisheries Case solely in terms of seaward boundaries of inland waters is technically correct, but of necessity somewhat deceptive. The significance of the determination of the seaward limit of inland waters is threefold: the waters included within the limit are in all respects assimilated to the land territory of the coastal state and thus subject to its absolute control; the limit is at the [Page 1663] same time the base line whence the belt of territorial waters is measured in which the state exercises complete control, in particular over fisheries, but subject to the right of innocent passage; beyond the limit of territorial waters lie the contiguous zones in which coastal states frequently exercise control for certain purposes, such as customs enforcement. To hold that the Fisheries Case permits the arbitrary adoption by a state of a straight line method which runs the base line to the farthest off-lying islands, rocks and reefs is, therefore, to hold that a state may transform large areas of waters heretofore regarded as high seas into areas assimilated for all intents and purposes to its land territory, establish its belt of territorial waters many miles out at sea, and exercise some form of control in contiguous zones extending beyond this belt. To support such a construction of the decision of the Court is to invite, therefore, considerable restrictions upon the principle of the freedom of the seas which the United States has traditionally supported.
In the circumstances, the national interests of the United States might not be furthered by the proposed Resolution but might indeed be jeopardized thereby. The risk that other nations might seize upon the precedent which would be afforded to them by the United States if the Resolution became law is not illusory. This Government has had occasion in recent years to protest in several instances claims made by a number of nations with a view to extending their territorial waters anywhere from 12 to 200 miles. Even then, these nations did not have the benefit of so persuasive a reason as would result from the combination of an International Court of Justice decision and a United States construction of that decision. Moreover, the obvious interests of nations which are not, like the United States, strong maritime powers are more likely to be served by an extension of their control over their adjacent waters at the expense of the principle of freedom of the seas, whereas the interests of the United States would seem to lie the other way, whether they concerned fishing, commercial shipping and flying, or naval and air activities in time of peace and of war.
The Department has been advised by the Bureau of the Budget that there is no objection to the submission of this report and that enactment of the proposed legislation would not be in accord with the program of the President.3
[Page 1664]Sincerely yours,
Assistant Secretary
- Neither printed.↩
- Ellipsis in the source text.↩
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H.J. Res. 373 was sent to the House Judiciary Committee on Feb. 11, 1952. On May 26, Chairman Emanuel Celler asked the Speaker of the House, Sam Rayburn, for unanimous consent that his Committee be discharged from further consideration of the resolution. There was no objection.
On May 29, 1952, President Truman vetoed Senate Joint Resolution 20 concerning title to offshore lands. His veto message stated that the lands in question were those under the open sea off the Pacific, Gulf, and Atlantic coasts and that under the terms of the resolution title to these areas would be transferred to the States that happened to border on them. The text of the President’s veto message is printed in Public Papers of the Presidents of the United States: Harry S. Truman, 1952–1953 (Washington, 1966), p. 379.
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