700.022/3–1953

Memorandum by the Legal Adviser (Phleger) 1

confidential
  • Subject:
  • Position of the United States concerning National Claims in Adjacent Seas.

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]

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

  1. This memorandum and its attachment were drafted by Joseph M. Sweeney of Yingling’s staff. They were sent to the Bureaus of Near Eastern, South Asian, and African Affairs; Inter-American Affairs; European Affairs; Far Eastern Affairs; various offices within those bureaus; the Bureaus of Economic Affairs and United Nations Affairs; the Office of the Under Secretary of State’s Special Assistant for Fisheries and Wildlife; and the Office of the Special Adviser on Geography.
  2. On Mar. 4, 1953, Yingling informed Barbara Salt, First Secretary of the British Embassy, that the United States would be willing to undertake such conversations in London, but not before May 1953. (Memorandum of conversation, Feb. 27, 1953, by Yingling, 700.022/2–753)
  3. Judgment of Dec. 18, 1951, I.C.J. Reports 1951, 116. [Footnote in the source text.]
  4. Joint Resolution 373, Feb. 11, 1952; see also H.R. 676, June 9, 1952, and H.R. 684, June 11 and 26, 1952. [Footnote in the source text.]
  5. League of Nations; Acts of the Conference for the Codification of International Law, III, Territorial waters, C.351(b) M.145(b), 1930, V, 206–207, hereinafter referred to as Acts of Conference. [Footnote in the source text.]
  6. U.N., A/CN.4/53, 21–25. [Footnote in the source text.]
  7. Sources used in the compilation; Acts of Conference, especially 123–126; League of Nations, Bases of Discussion for the Conference for the Codification of International Law, II, Territorial Waters, C. 74 M. 39, 1929, V; Jens Evensen, Etendue des Eaux Territoriales (La Haye 1951); Boggs, National Claims in Adjacent Seas, 41 Geographical Review 185, 192–201 (1951); U.N., A/CN.4/53, 11–15; Telegrams, despatches and other reports from the field. [Footnote in the source text]
  8. U.N., A/CN.4/53, 11, 16–21. [Footnote in the source text.]
  9. Acts of Conference, 210–211. [Footnote in the source text.]
  10. U.N., A/CN.4/49, 4. [Footnote in the source text.]
  11. See footnote 2, p. 1665.
  12. 49 Stat. 517; 19 U.S.C.1701, 1703. [Footnote in the source text.]
  13. 59 Stat. 884–885. [Footnote in the source text.]
  14. 0059 Stat. 885–886. [Footnote in the source text.]
  15. U.N., A/CN.4/49. [Footnote in the source text.]
  16. See footnote 2, p. 1665.
  17. U.N., A/CN.4/42, 50. [Footnote in the source text.]
  18. Phleger transmitted copies of this paper to the Secretaries of Defense, Treasury, Interior, and Commerce, and to the Attorney General, under cover of letters dated Mar. 31, 1953. These officials replied on various dates between April and July 1953. In general they concurred with the Department of State’s position paper, but the Secretaries of Defense and Commerce and the Attorney General expressed reservations or made comments and suggestions regarding the specific wording or emphasis of the paper. These replies are in Department of State file 711.022.