The attached paper sets forth a study of the recent trend of the claims
asserted by coastal states in adjacent seas and makes recommendations
concerning the policy to be followed by this Government in its support of
the principle of the freedom of the seas.
A restatement of our policy concerning the drawing of the outer limit of
inland waters, the breadth of territorial waters, and rights of jurisdiction
which may be asserted in the high seas, is becoming increasingly necessary
and urgent. American fishing vessels have been arrested and seized by
Ecuador and Mexico in areas of the seas which the United States considers
high seas. The United [Page 1675] States and
Ecuador are scheduled to hold conversations on the problem in the near
future. The United Kingdom has suggested informal exchanges of views with
this Government for the purpose of working out a common approach and united
opposition to the growing trend towards extension of the areas of adjacent
seas in which coastal states claim increasingly large forms of control.2 This Government has already been called upon and
will be called upon in the future to present its views and comments on the
drafts concerning territorial waters and the high seas prepared by the
International Law Commission. It might even be necessary to contemplate in
the future the possibility of litigation with certain foreign states on some
of these issues. Hence the necessity for reexamining the position of this
Government on all phases of the problem.
Your comments and suggestions are requested on an urgent basis, and should be
received no later than March 27, 1953, in order to be taken into account in
the final redraft of the paper which will be sent to all other interested
departments and agencies. Comments and suggestions should be sent to Room
4259 New State or phoned to Extension 5066.
[Attachment]
[Washington, March 19, 1953.]
National Claims in Adjacent
Seas
From the 16th to the 18th century, states claimed extensive rights of
control over wide areas of the sea contiguous to their land domain in
order to insure respect of their territorial sovereignty, to protect
commerce entering and leaving their ports, to safeguard their fisheries
resources, and to defend themselves from attacks. These claims followed
a constant pattern of regression until the advent of the 19th century
when the principle of freedom of the seas became firmly established, and
the practice prevailed of restricting the area over which coastal states
claimed rights of control to a narrow and sharply defined rim of the sea
adjacent to their coasts 3 miles in width. Since the beginning of the
20th century, a reverse evolution has taken place and the practice of
states has shown a continuous trend towards extension of the areas of
the adjacent seas over which various forms of control are claimed. The
trend may vary in definiteness depending upon the particular [Page 1676] areas concerned, but appears
to become more accentuated as time goes on.
Inland Waters. The seaward limit of inland waters
is the base line whence the belt of territorial waters is measured. A
substantial number of states, including the United States, support the
position that this line is the low water mark along the entire coast,
and not straight lines drawn between headlands of indentations and
sinuosities. Islands off the coast are not taken into account in the
drawing of the line unless they are within the belt of territorial
waters, but an exception is made in the case of bays, gulfs and
estuaries where the line is a straight line often limited to a length of
10 miles, drawn across their opening, in the general direction of the
coast. A further exception is made, of course, in the case of historic
bays where the base-line is a straight line drawn across their openings,
irrespective of the width.
Larger areas of inland waters are secured by the coastal state when the
straight line method is applied as a general rule for the determination
of the limit between inland waters and territorial waters. Fixed points
are selected at the low water mark level on the headlands of all
indentations on the mainland and on the outer edge of off-lying islands,
rocks and reefs, and are joined together by a series of straight-lines
of no fixed length. The areas of adjacent seas enclosed within the lines
are inland waters.
The straight-line method was used by Norway as early as 1869. Sweden and
apparently Denmark applied it at the beginning of the 20th century.
Since 1934 it has been adopted as well by Cuba, Ecuador, Yugoslavia,
Saudi Arabia, Egypt and Iceland. The International Court of Justice in
the Fisheries Case upheld the legality of the use of the straight-line
method by Norway.* Since the Court’s decision,
Iceland has used the method more extensively and has applied it more
liberally, despite the protests of Great Britain that some of the new
base lines are too extreme to be in conformity with the decision of the
International Court of Justice. In the United States, legislation was
introduced in Congress in 1952 with a view to define the limit of the
inland waters of the United States by application of the straight-line
method and as far seaward as possible under international law.† In the United Kingdom,
consideration is being given to using the straight-line method in order
to close certain fishing grounds to foreign vessels, especially in
Scotland. In Australia legislation was recently introduced (and approved
by the lower house) to provide for the drawing of the baseline [Page 1677] on the northern coast by
application of the straight-line method.
The second Sub-Committee at the 1930 Conference for the Codification of
International Law took the position that the low water mark along the
entire coast, all points being taken into account, should be the general
rule for the drawing of the base line of territorial waters.‡ The “Report on the Regime of the Territorial Sea”
submitted to the International Law Commission by its Rapporteur,
Professor Francois, on April 4, 1952, maintains the same general
principle but provides that where the coast is deeply indented and cut
into or where it is bordered by an archipelago, the straight-line method
joining appropriate points may be employed.§
Territorial Waters. A statistical computation of
the breadths of territorial waters claimed by coastal states from 1930
until the present day reveals a clear trend towards extension of such
breadths.║
At the 1930 Conference for the Codification of International Law, the 3
mile limit received the unconditional support of Canada, China, Great
Britain, India, Japan, The Netherlands, South Africa and the United
States. Greece and Ireland were inclined to support the 3 mile limit.
Belgium, Egypt, France, Poland and Germany supported such limit on the
condition that the right of the coastal state to exercise certain
controls in a zone contiguous to its territorial waters would be
recognized. Chile, was willing to support either the 3 mile limit with a
contiguous zone or a 6 mile limit. Greece and Egypt now support a 6 mile
limit. Chile, according to the information of the International Law
Commission, now claims a belt of territorial waters of 50 km, or
approximately 27 miles, not to mention the continental shelf declaration
of 1947 which refers to its sovereignty over 200 miles of adjacent
waters. Poland may be expected to claim a 12 mile limit like other
satellites of the U.S.S.R. China cannot reasonably be counted upon at
this time as a positive supporter of the 3 mile limit. Ireland now
claims a breadth of territorial waters “in accordance with international
law”. Hence only 10 out of 16 states which gave support to the 3 mile
limit at the 1930 Conference could still be counted upon for support of
this [Page 1678] limit. This estimate
may even be too optimistic. Canada for instance would probably not be
inclined to support the 3 mile limit if such a distance were to be the
limit of its exclusive fisheries control.
Among the states which supported a breadth of territorial waters greater
than 3 miles at the 1930 Conference for the Codification of
International Law, Iceland and Finland supported a 4 mile limit and
Norway and Sweden, while also supporting a 4 mile limit, were willing to
recognize as legitimate other widths such as 6 miles. The 6 mile limit,
with the additional requirement in some cases of a contiguous zone, was
supported as well by Brazil, Colombia, Cuba, Italy, Iran, Portugal,
Spain, Rumania, Turkey, Uruguay and Yugoslavia. These 15 states could be
expected to maintain a similar position—Rumania now claims 12 miles and
Yugoslavia apparently 10 miles—and would receive the additional support
of states which have clearly abandoned the 3 mile limit such as Greece,
Egypt and Chile. If Poland were also included in this group, the same
states which divided 16 to 15 in favor of the 3 mile rule at the 1930
Conference could be expected now to support a breadth of territorial
waters greater than 3 miles by a proportion of 19 to 10, China and
Ireland being left in doubt.
The trend away from the 3 mile rule is still apparent when the statistics
are broadened to take into account an overall number of 63 coastal
states. The number of states which may be presumed to support the 3 mile
limit is brought up to 15 by the addition of Ceylon, Denmark, Dominican
Republic, Israel, and Liberia. Australia, New Zealand and Indonesia have
been considered in the past as supporters of the 3 mile limit, but there
are reports that they would not accept now the 3 mile limit if it were
to constitute the limit of their exclusive fisheries jurisdiction, and
Venezuela, which up to now also claimed 3 miles, is reported to be
considering a new constitutional provision to enlarge its sovereignty in
its adjacent seas. The claim of Panama to jurisdiction over fisheries to
the edge of the continental shelf, and the claim of the Philippines to
the entire Sulu Sea as part of its territorial waters, raise some doubts
as to their prospective support of the 3 mile limit. The number of
states which are deemed to support a greater breadth of territorial
waters increases to 28 with the addition of Lebanon, Syria, U.S.S.R.,
Bulgaria, Ecuador, Guatemala, Honduras, Mexico, and Saudi Arabia, the
support of the 6 states last mentioned having been acquired after 1930.
This number can reach 33 if Argentina, Costa Rica, El Salvador, Peru,
and South Korea are included on the ground that their recent claims of
control over the epicontinental sea were protested by the United States
as being in excess of accepted limits of territorial waters. So far as
concerns Albania, [Page 1679] Burma,
Haiti, Iraq, Nicaragua, Pakistan, and Thailand, no definite or otherwise
satisfactory information regarding the breadths of their territorial
waters was found.
The Report on the Regime of the Territorial Sea submitted to the
International Law Commission on April 4, 1952, states that a proposal to
fix the breadth of territorial waters at 3 miles would have no chance of
success and that agreement on this distance is out of the question. It
proposes a breadth of territorial waters which would not exceed 6
miles.¶
High Seas. Until the 20th century, very few states
claimed rights of control over the high seas contiguous to their
territorial waters. At the 1930 Conference for the Codification of
International Law the states represented were about evenly divided on
the question whether a coastal state could exercise any rights in the
high seas, and the conference soon reached a deadlock when the great
majority of delegates insisted on qualifying their position on the issue
of the breadth of territorial waters with conditions concerning their
acceptance or refusal of the contiguous zone concept. States in favor of
contiguous zones were further divided on both the width of such zones
and the purposes for which they could be recognized.** Since that time,
claims of control over contiguous zones for customs and fiscal purposes
have become, of course, quite general. Their reported widths are seldom
over 12 miles, except in the case of Chile where the width claimed is
100 Km, or approximately 54 miles, and in the case of the United States
where the width claimed may encompass 62 miles from the coast.‡‡ The Draft Articles of the International Law
Commission on The Continental Shelf and Related Subjects, dated July 30,
1951,3 propose to limit
contiguous zones for customs and fiscal purposes to a width of 12 miles
measured from the coast. The Draft Articles also recognize such a
contiguous zone for sanitary purposes, although relatively few states
have made claims in this respect.‡‡
There were strong objections at the 1930 Conference to the claims made by
some coastal states to contiguous zones for fisheries purposes,
especially as concerned the claims which had for purpose to secure
exclusive fishing rights in such zones. Claims having for purpose to
enforce in the contiguous zone conservatory regulations were given
strong impetus by the United States proclamation of September 28, 1945,
for the Establishment of Fisheries Conservation Zones in the high seas
contiguous to its coasts.§§ The proclamation [Page 1680] issued by the United States
on the same date with regard to Rights in the Sea-Bed and the Sub-Soil
of the Continental Shelf set a precedent for the issuance by a number of
other states of similar or related types of claims.║║ The states involved are, besides the United States,
Argentina, Brazil, Chile, Costa Rica, El Salvador, Guatemala, Honduras,
Iceland, Iran, South Korea, Mexico, Nicaragua, Pakistan, Panama, Peru,
Philippines, and Saudi Arabia. Some states linked their claims in regard
to control of fisheries resources with their claims in regard to
exploitation of the resources of the continental shelf. Some states went
so far as to advance their claims in the form of an over-all claim to
sovereignty. The widths of high seas in all those claims, whatever their
form and purpose, are of extraordinary proportions, hundreds of miles
not being uncommon. The Draft Articles on the Continental Shelf and
Related Subjects prepared by the International Law Commission recognize,
subject to certain qualifications, the principle that the coastal state
may regulate and control fishing in areas of the high seas for the
purpose of preserving fishing resources from extermination, and the
principle that the coastal state may subject the continental shelf to
its control and jurisdiction for the purpose of exploring and exploiting
its natural resources.¶¶
The claims of certain states to control over a contiguous zone for
security purposes were the object of strong opposition at the 1930
Conference. The Second Report on the Regime of the High Sea presented to
the International Law Commission by its Rapporteur, Professor Francois, on April 10, 1951,4 does not consider it necessary to take such
claims into consideration.*
Policy of the United States
The general policy of the United States in regard to national claims in
adjacent seas is to support the principle of the freedom of the seas.
Such freedom is essential to its national interests. It is a time
honored principle of its concept of defense that the greater the freedom
and range of its warships and aircraft, the better protected are its
security interests. It is axiomatic of its commercial interests that the
maintenance of free sea lanes and air routes is vital to the preeminence
of its shipping tonnage and air transport. And it is becoming evident
that its fishing interests depend in part, and may come more so in the
future to depend, upon fishing resources in high seas adjacent to the
coasts of foreign states. Hence the national interests dictate
opposition to the trend towards extension [Page 1681] of the areas of adjacent seas in which coastal
states claim rights of control.
Inland Waters. When the limit of inland waters is
determined by application of the straight-line method, such limit is
brought forward from the coast and so by cumulative affect, the outer
edges of both territorial waters and contiguous zones. Sea areas
immediately in front of the coast which under the sinuosities method
would be considered territorial waters become inland waters. Such waters
are, for all intent and purposes, assimilated to the land territory of
the coastal state and no right of innocent passage may be claimed
therein. Sea areas further out from the coast which under the
sinuosities method would be regarded as high seas become territorial
waters. Such waters, except for a right of innocent passage, and the
airspace above these waters, are subject to the sovereignty of the
coastal state. The greater the degree of curvature of the coast and the
longer the lines joining the salient points, the larger the areas of
adjacent seas over which the coastal states acquire absolute or quasi
absolute control.
The straight-line method offers alluring possibilities to states desirous
of gaining control of large areas of the seas adjacent to their coasts,
whether it be used alone or in combination with claims to wide breadths
of territorial waters. As used by Norway it has been sanctioned by the
International Court of Justice, a fact which, irrespective of the terms
of the decision, serves to clothe the method with a reputability it did
not previously have. Accordingly, the limited application which it now
receives in the practice of states may be expected to develop
substantially in the future.
The United States has opposed and should continue to oppose the use of
the straight-line method as a general rule for the drawing of the
base-line of territorial waters. The success which it may hope to obtain
in the matter would be impaired, however, if the United States itself
should at the present juncture decide to define the limit of its inland
waters by application of the straight-line method, as recently proposed
in the Congress. The risk that other states would seize upon such a
precedent cannot be ignored. The numerous claims which followed the
United States proclamations of 1945 suggest that in taking the
initiative in the matter, the United States might again precipitate some
sort of uncontrollable chain reaction.
The ultimate failure or success of a policy of opposition to the
straight-line method may turn in part upon the construction which will
be given in the future to the decision of the International Court of
Justice in the Fisheries Case. The Report to the International Law
Commission on the Regime of the Territorial Sea of April 4, 1952,
proposes that the base line should be established by [Page 1682] the straight-line method where a coast
is deeply indented and cut into, or where it is bordered by an
archipelago. The Report appears to construe the Court’s decision as
sanctioning the use of the straight-line decision wherever a coast is
jagged, or presents some special geographical peculiarities. The United
States should retain a flexible position in this matter by reserving its
position until it determines what support may exist or can be generated
for a restricted construction of the decision among other governments
with similar interests. It should be prepared, however, to adhere to any
reasonable interpretation of the decision commending substantial support
among other states and likely to result in the formulation of fairly
definite principles concerning the drawing of the base lines.
Territorial Waters. The last 20 years have
witnessed the abandonment of the 3 mile limit by a substatial number of
states claiming territorial waters of varying breadths in excess of 3
miles. The steadfast opposition of the United States during the same
period has not been effective in preventing such claims. Nevertheless,
the United States should not support the 6 mile maximum limit of
territorial waters proposed in the Report to the International Law
Commission on the Regime of the Territorial Sea. The objective of the
proposal—to promote recognition in international law of a definite
limit—is sound. However, support by the United States at this time of
the 6 mile proposal would not further this objective in a sense
favorable to United States interests. Such support would amount to
repudiation of the traditional position of the United States on the 3
mile limit and abandonment of the other maritime powers supporting the 3
mile limit whose position would then become untenable. There would then
be no real deterrent left in the way of states desirous of expanding
their territorial waters. The net result would be that the maritime
powers whose interests lie in the direction of a narrow limit of
territorial waters would have surrendered their position and moved in
the direction of those maritime states claiming extensive limits for
territorial waters without any compensating advantage since there is no
assurance that such states would find the 6 mile limit acceptable.
Recognition of a contiguous zone of 9 miles for customs, fiscal and
sanitary purposes in return for recognition of the 3 mile limit is
sometimes suggested as a means of securing agreement on a definite limit
of territorial waters. But the numerous states already claiming
unlimited rights in a belt broader than 3 miles could hardly be induced
to revert to the 3 mile limit by an offer to recognize limited rights
outside the 3 mile limit already widely recognized any way. Recognition
of an adjacent zone of 9 miles for exclusive fisheries jurisdiction may
become the pivotal point of any realistic [Page 1683] effort to obtain agreement on a definitive limit
of territorial waters. The reported opposition of states like Canada,
Australia and New Zealand to the 3 mile limit for exclusive fisheries
purposes is evidence in point. Yet the United States could not support
such a concept now for very much the same reasons that it could not
support the 6 mile proposal.
The United States policy in the circumstances, must be to continue to
maintain its traditional position and to oppose claims to territorial
waters more than 3 miles in breadth. At the same time, steps should be
taken on as urgent a basis as possible to explore with other governments
having similar interests what solution would be favorable to such
interests.
High Seas. As early as 1790 the U.S. claimed
jurisdiction beyond the 3 mile limit for customs purposes. It was also
the first state to assert claims in the continental shelf. Its
pioneering in the first case led to the development of a moderate and
recognized practice. Its pioneering in the second case led to the
gravest threats yet directed to the principle of the freedom of the
seas.
Explanation for the difference of results must be sought primarily in the
difference between the circumstances prevailing in 1790 and thereafter,
and those prevailing in 1945. In 1790, the principle of freedom of the
seas had just crystallized and thereafter gained, rather than lost, its
strength. In 1945, strong forces had been at work since the turn of the
century to break down the restraints imposed by the principle of the
freedom of the seas, and to increase the scope and extend the range of
the powers of control of coastal states over their adjacent seas. Hence
the United States proclamations of 1945 provided the catalyst necessary
to the release of these forces and its claims were seized upon by other
states as justification or excuse for broader claims of control. It is a
fast accomplishment not now susceptible of correction, as the
ineffectiveness of our protests against these claims well
illustrates.
Some other factors may also have been responsible in part for the
startling after effects of the proclamations of 1945. The concurrent
issuance of the two proclamations was perhaps unfortunate since it
tended to confuse their separate and distinct subjects, and may have
been responsible for the tendency of some states to treat claims in the
shelf and the waters above it as one and the same thing. No rational
justification has yet been produced, moreover, for the issuance of the
fisheries proclamation. If it only subjects United States nationals to
conservatory regulations, and not the nationals of other states unless
such other states agree, why then announce by Presidential proclamation
what is merely an exercise of normal legislative and treaty functions by
the United States? The formality of a proclamation coupled with its
timing, may have [Page 1684] given, and
may still give, rise to suspicion that the proclamation was intended to
assert much broader claims than its bare text indicates. For the sake of
the record and of our general policy, it might be advisable for the
United States to issue a new proclamation definitely dissociating the
proclamations of 1945 and clarifying the scope and meaning of the
fisheries proclamation.
In the light of the events which followed the proclamations of 1945, the
United States should seek to remove or prevent the recurrence of any
similar excuse for exaggerated claims to jurisdiction over waters
heretofore regarded as high seas. In this connection the continued claim
of the United States to a right of jurisdiction in the high seas up to
62 miles from its coasts for customs purposes is an invitation to other
countries to make similar or more extensive claims (if 62 miles is
proper, why not 80, 100, 200), not to mention the fact that the claim is
not in accord with the practice of states. Hence it would seem advisable
for the United States to forego the claim and accept the limit of 12
miles measured from the coast proposed in the Draft Articles of the
International Law Commission on the Continental Shelf and Related
Subjects.
With respect to all claims of control in the high seas, the United States
policy of opposition to claims of control which go beyond the scope of
its own should be maintained.
Conclusion
The immediate objective of the United States is to arrest, if possible,
the present trend towards extension of the claims of coastal states over
their adjacent seas.
To this end, the United States should attempt to rally the active support
of states which, like itself, have traditionally adhered to the
principle of freedom of the seas based on a 3 mile limit of territorial
waters.
Informal discussions with the governments of these states should be held
to determine the extent to which their overall position accords or
differs with our own and the compromises which might be necessary to
achieve a uniform position predicated on continuing support of the 3
mile limit.5
