Foreign Relations of the United States, 1952–1954, General: Economic and Political Matters, Volume I, Part 2

L/SPF files, lot 68 D 47, “Talks in London (1953)—Territorial Waters”

Record of Anglo-American Discussions on Territorial Waters and Related Problems¹

secret

A series of Anglo-American discussions on Territorial Waters and Related Problems were held at the Foreign Office on July 31, August 4, 5, 6, 7 and 10. Those taking part on the United States side were Mr. Raymund T. Yingling, Assistant Legal Adviser to the Department of State, who had crossed the Atlantic specially for the talks, and Mr. W. M. McClelland of the United States Embassy. The United Kingdom was represented by Mr. G. G. Fitzmaurice, C.M.G., Legal Adviser to the Foreign Office, Mr. D. H. N. Johnson, assistant Legal Adviser at the Foreign Office and by Mr. E. H. Peck and Miss M. E. Armstrong, both of the General Department of the Foreign Office. There were also present at various stages of the discussions Mr. B. P. H. Dickinson of the Ministry of Transport, Mr. R. G. R. Wall and Mr. A. S. Armstrong of the Ministry of Agriculture and Fisheries, Mr. T. F. S. Hetherington of the Scottish Home Department, Mr. D. C. Gordon Smith of the Colonial Office, Vice Admiral G. Grantham, C.B., C.B.E., D.S.O., Mr. C. G. Jarrett, C.B., C.B.E. and Commander R. H. Kennedy, O.B.E., R.N. (retd.) of the Admiralty.

It was agreed that the discussions would be on a purely informal and exploratory basis, without commitment on either side. The following record gives very summarily the views expressed and the general conclusions reached. (The subjects are listed as in the memorandum² given to Mr. Yingling before the talks opened.)

A. The method of delimiting the territorial belt

(1) Action by the United Kingdom and the United States

Mr. Fitzmaurice said that, contrary to what had seemed likely immediately after the Hague Court judgment,³ there had been no great rush by other Governments to draw base lines. It was true that Iceland had taken advantage of the Court’s decision, and that Denmark seemed to be in the process of doing so in a relatively moderate way in relation to Greenland, and was under pressure to do so in relation to the Faroes. But substantially it remained for consideration what the effect on other Governments would be if major maritime Powers such as the United Kingdom and the United States were to apply the new principles to any extent. It seemed undesirable that these two countries should go in for any general application of the new base line principles, but it might be possible to take advantage of them in some localities without giving too much lead to other Governments. Although no decision had been taken, Her Majesty’s Government had to reserve the right to take advantage of the new principles in relation to the Scottish coast. The reasons why Scotland wished to draw base lines, particularly in the Moray Firth area, were explained to Mr. Yingling.

Mr. Yingling said that the United States was opposed to the use of the straight line method as a general rule for the drawing of the base line of territorial waters. In commenting on the Yorty Bill the State Department had said that the Hague Court decision gave no legal justification to countries to use the straight line method unless its application could be justified on the basis of all relevant considerations, geographical, historical, and otherwise, laid down in that decision; on policy grounds they were even more opposed to any change, since it was important that the United States should not contribute to any diminution in the area of the high seas. The United States had not had occasion to consider the possibility of applying base lines only in certain areas. The idea seemed to him dangerous though on geographical grounds it might be considered justifiable to apply the judgment to coasts such as those of Scotland or Alaska. The new Submerged Lands Act and the new legislation on the continental shelf might be considered as the United States policy and as having superseded the approach of the Yorty Bill. Under the Submerged Lands Act,⁴ however, it was possible that some states of the United States might be able to show that their historic boundaries were more than 3 miles in breadth from the coast.

(2) Attitude to claims by other Governments; criteria for judging base lines.

Mr. Fitzmaurice said that the Court had accepted the general idea of base lines provided

(a) they were reasonable,

(b) they followed the general direction of the coast, and

(c) they were inter fauces terrarum.

It was very difficult to challenge base lines unless they departed from these principles, but, if they did, Her Majesty’s Government would protest as in the case of Iceland. He enquired whether the United States Government were likely to protest in similar cases.

Mr. Yingling explained that the United States would not oppose any action taken in accordance with the judgment, and, even where action went beyond the judgment, a protest might not be lodged if, e.g., as in the case of Iceland, other considerations (as political) were against it.

In general discussion it was considered that it would be useful for the two Governments to consult one another in the event of other countries (e.g., Denmark) drawing base lines.

Mr. Fitzmaurice raised the possibility of fixing some new limit (rather greater than 10 miles but nevertheless a fixed limit) to the length of base lines.

Mr. Yingling pointed out (a) that any limit less than some of the Norwegian lines would be directly in the face of the Court’s judgment and (b) any fixed limit would itself be arbitrary, and, as the judgment was itself pioneering, it would seem better to let new criteria develop from practice and custom. He thought that the 10 mile limit was still important, even if from the point of view of practice rather than of law. He agreed with Mr. Fitzmaurice that the 10 mile limit might now be regarded as the maximum length for lines not specially justified according to the Hague Court’s principles.

(3) Right of passage through internal waters; innocent passage of warships.

Mr. Fitzmaurice drew attention to the distinction, completely ignored by the Court, between internal waters behind base lines and true inland waters like creeks and rivers. It was possible that coastal States would not try to prevent innocent passage through internal waters of the former kind, but they might try where warships were concerned. This would be particularly serious where the base lines joined islands to one another or to the mainland, as in the case of Norway, and as might happen if the Danes were to apply the new principles to the Faroes. The United Kingdom felt that, where waters had been territorial in the past (so that a right of passage existed) but these waters were now converted into internal waters through the drawing of base lines, it should be an accepted principle that the mere alteration in the status of the waters should not involve any diminution of existing rights of passage.

Mr. Yingling said he thought that there was no practical problem as yet, and that, until there seemed to be any general move towards adopting base lines, any practical problem which did arise could probably be solved bilaterally without either side’s necessarily being committed to the other’s view as to whether the waters in question were inland. He agreed that later it might be necessary to try to differentiate between waters behind base lines and true inland waters.

Mr. Fitzmaurice explained that the United Kingdom believed that the general right of passage extended to warships, and that the United Kingdom regarded the innocence of the passage, rather than the character of the vessel, as the real criterion.

. . . . . . .

B. Breadth of the territorial belt

(1) Action by the United Kingdom and United States

Mr. Fitzmaurice said that the United Kingdom would continue to claim only 3 miles.

Mr. Yingling said that the United States policy would be to continue to maintain its traditional position and to oppose claims to territorial waters more than 3 miles in breadth, but pointed out that the recent Submerged Lands Act made it possible for the United States Courts to find that certain States had historic titles to territorial waters of more than 3 miles. If that happened, the international policy of the Government might have to be revised.

(2) Attitude to claims by other Governments

Mr. Fitzmaurice said that the United Kingdom would continue to oppose claims to more than 3 miles except where there was an historic justification for a wider limit.

Mr. Yingling said that for the present the United States would maintain her opposition to claims of more than 3 miles. (The talks with Ecuador were being restricted to the practical fisheries aspects, and the legal position of each country was being left unaffected.) He agreed with Mr. Fitzmaurice that for the United States and the United Kingdom to continue to protest against claims to more than 3 miles in peacetime would greatly strengthen the justification for ignoring such claims in wartime, if necessary.

There was also some general discussion on the effect which the developing tendency of States to claim more than 3 miles in peacetime would have on the exercise of belligerent rights in wartime. While it appeared that in case of war both countries might be in the position of having to ignore all claims to more than 3 miles, it was nevertheless most important that, as far as possible, the legal justification for behaving in this manner should be preserved. This could best be done by continuing to protest against claims to more than 3 miles, even if in peacetime these protests were largely ineffective, and by avoiding cases before international tribunals which might lead to formal pronouncements being made that the 3 mile limit was no longer a rule of law.

(3) International Law Commission

Mr. Fitzmaurice commented that there was evidently no chance that the I.L.C. would recommend a strict 3 mile limit. He described the three proposals which had been put forward in the Commission, i.e., 6 miles, 12 miles with certain derogations (“12 miles minus”) and the “Spiropoulos⁵ formula” (i.e., the proposal that each State should fix its own limits “subject to the principle of the freedom of the seas”). The last had at first sight seemed attractive, since it would leave the United Kingdom free to argue that by “the principle of the freedom of the seas” was meant the 3 mile limit. On the other hand some States might interpret the formula as giving them the right to fix their own limits unless such a claim was positively turned down by an international tribunal. The 6 mile and 12 mile proposals were also unacceptable. “12 miles minus” had some superficial attractions, but at present the only derogation proposed from the 12 mile principle was that exclusive fishery rights should be confined to 3 miles, and, even if further derogations could be made, there would be a presumption that all rights not specifically excluded would rest with the coastal State up to 12 miles. The United Kingdom were therefore thinking more and more in terms of “3 miles plus”. The difficulty, however, was what to offer by way of “plus”. Most countries would not regard a contiguous zone by itself a sufficient concession, unless of course exclusive fishery rights were thrown in as well. But the United Kingdom were not prepared to regard exclusive fisheries as part of the rights that went with the contiguous zone, and it was difficult to see what they could offer in excess of the Customs, fiscal and sanitary rights which most countries claimed they already had.

Mr. Yingling said that, although the United States desired to keep the 3 mile limit, they might ultimately be willing to accept a 6 mile limit provided unanimous approval of the nations could thereby be obtained. However, support by the United States at this time of the 6 mile proposal would probably not be productive of international agreement. Such support would not only amount to abandonment of the traditional position of the United States but of the other powers supporting the 3 mile limit whose position would then become less tenable. The result would be to weaken the position of the maritime powers, whose interests lie in the direction of a narrow limit of territorial waters, without any compensating advantage since there is no assurance that the states claiming extensive limits for territorial waters would be agreeable to a 6 mile limit. Moreover, the I.L.C. had now given up the 6 miles proposal in favour of “12 miles minus”, and he thought the latter very unsatisfactory (a) because territorial waters implied sovereignty (i.e., complete rights and not rights subject to derogations) and (b) because, in any case, none of the countries anxious for extended territorial waters would agree to restrict exclusive fishery rights to the 3 mile belt. He entirely agreed with Mr. Fitzmaurice about the “Spiropoulos formula”; he would not like to see rules for its application settled by the International Court or a similar tribunal. It would be far better to settle such questions through the United Nations or by a conference, and he thought they would eventually have to be settled thus. It seemed better to permit limited incursions on the freedom of the high seas, as by contiguous zones for specific purposes, than to extend the areas under complete national sovereignty.

In general discussion, it emerged that it would be bad tactics for the United Kingdom and the United States to do anything at present other than adopt a strong attitude in defence of the 3 mile limit. It should be pointed out to other countries and to the I.L.C. that, so long as countries were entitled to a contiguous zone of 12 miles and provided that international agreement could be obtained on fisheries on an ad hoc basis, they did not need territorial waters of more than 3 miles. This line of approach was considered as likely to be more fruitful than conditioning agreement to a contiguous zone upon agreement on a 3 mile limit of territorial waters. It might be that, ultimately, and provided that it would lead to a general international agreement on all points, it would be in the interests of the United Kingdom and the United States to agree to some reasonable limit wider than 3 miles—say 6 miles. But that point had not been reached yet, even in the I.L.C. It seemed that, rather than reach a bad agreement, it would be better to reach no agreement at all—although again, if and when that point were reached, it might be worth having another look at the “Spiropoulos formula” as a last resort. It was agreed that that formula would settle nothing. However, provided compulsory arbitrations could be avoided, it would not necessarily do any harm and so might be acceptable faute de mieux.

C. Zones outside territorial waters

(1) Contiguous Zones

Mr. Fitzmaurice drew attention to the recent comments of Her Majesty’s Government when replying to the I.L.C. on the question of contiguous zones. He said that, on the United Kingdom side, it was felt that, if countries had a contiguous zone, they did not need territorial waters of more than 3 miles. In any event, whatever the limit of territorial waters might be, the contiguous zone should not extend for more than 12 miles from the coast.

Mr. Yingling said that there was obviously a close relationship between the breadth of territorial waters and the question of limited rights in a contiguous zone; and that the need for a contiguous zone as well as its breadth would seem to progressively diminish as the breadth of territorial waters increased. He felt that the United States would be favourable to a 12 mile overall limit for territorial waters and contiguous zones combined; it being understood that the contiguous zones were for customs, fiscal and sanitary purposes.

(2) Defence Zones

Mr. Fitzmaurice mentioned that, at the time of the Montebello tests, it had been decided that, rather than proclaim even a temporary sovereignty over, or the right to control foreign vessels in, the area of high sea which it was desired to close, warnings should be issued to shipping to keep out in its own interests. If necessary, these warnings would have been enforced.

Mr. Yingling said that United States thinking was the same on this point. He confirmed that all United States defensive sea areas were now inside territorial waters.

(3) Fishery Conservation Zones

Mr. Fitzmaurice said that many claims to increased territorial waters were due to the desire to control coastal fisheries. Countries also declared conservation zones outside territorial waters on a non-discriminatory basis, but carefully closed the area only to the type of fishing carried on by foreigners. In the Truman declaration even the United States had seemed to claim in the last report the right to declare conservation zones unilaterally.

Mr. Yingling said that although the language of the Truman proclamation on fisheries might seem broad enough to permit the United States to declare and enforce conservation measures, even to the exclusion of nationals of foreign countries who had not agreed to those measures, nevertheless the proclamation had not yet been implemented, and the United States were at present definitely opposed to the unilateral formulation and enforcement of conservation regulations on the nationals of other countries outside territorial waters.

Mr. Fitzmaurice agreed that it was undesirable to permit unilateral claims but wondered whether it was possible to provide that the coastal State could obtain the right to institute conservation measures provided it obtained the agreement of the majority of the other States concerned.

Mr. Yingling thought that there would be great difficulty in deciding which states were concerned, and what was a majority; also in enforcing any measures which were not unanimously agreed. The United States would probably also be opposed to this approach on policy grounds. It would be very easy for, say, the countries in a certain area to get together and exclude all others from the nearby fisheries. There would also be the difficulty of determining whether the proposed measures were really designed for conservation and not discrimination.

United States fishing problems were mostly off the coasts of other states. If such a state announced that it intended to claim 9 or 12 miles territorial waters for fishery conservation purposes the United States would try to secure recognition of the 3 mile limit and then come to some separate agreement on fishery conservation. However, at least one state (Mexico) had refused to discuss fisheries problems outside of their claim to territorial waters.

Mr. Fitzmaurice said that the Icelandic attitude had been similar to the Mexican. The United Kingdom hoped, however, that Denmark and other European countries would be prepared to discuss the question of conservation and prohibited zones on a technical basis. In answer to a question from Mr. Yingling he explained that the Russians had now said they were ready to discuss the renewal of the agreement whereby British ships were allowed to fish up to within 3 miles of the Russian coast in spite of the Russian claim to 12 miles territorial waters. He pointed out that this example was the converse of the idea now under discussion, which was that of fishery concessions to the coastal State in return for the limitation of territorial waters.

Mr. Yingling explained the policy of the United States as typified in their agreement with Canada and Japan on the North Pacific fisheries. The United States were firmly opposed to the idea of one general fisheries Convention, with international regulations fixed by a single Commission. Each area should be regulated by the countries with established rights, and by the coastal State even if it had no established rights (not necessarily because it had a “proprietary right”, but simply because it clearly had an inherent interest). The important new principle was abstention from fishing in certain areas and under certain conditions. Countries without established rights should abstain altogether if the maximum productivity of the stock of fish was being fully exploited. If outsiders tried to fish in the area the Contracting Parties would confer upon the steps to be taken. The Governments taking part in the Pacific agreement were all more or less committed to the 3 mile limit.

In general discussion, it emerged that fisheries problems were probably best settled by regional agreements on an ad hoc basis. As far as possible they should be kept separate from problems of territorial waters, because, as things were at present, there was no doubt that pressure for wider exclusive fishery limits was the chief cause of claims to wider territorial waters, with all the harmful strategic implications that the latter involved. The factors rendering difficult a solution of the North Sea problem were explained to Mr. Yingling. It seemed that, if that problem could be solved, it would have a most beneficial effect upon the territorial waters situation generally.

D. Continental Shelf

Mr. Fitzmaurice commented that he did not know exactly what conclusions had been reached by the I.L.C. at their present meeting, but he had heard that they had fixed a maximum depth of 200 metres and had declared in favour of “sovereignty” and “natural resources”. This last decision would be particularly welcomed by the Australians, who were concerned to preserve certain sedentary fisheries outside territorial waters (to some of which they might not have an historic right) and who for that reason had not liked the phrase “mineral resources”.

Mr. Yingling said that the United States position was set out in the President’s 1945 proclamation⁶ which did not define the term “continental shelf”. However, the contemporaneous press release stated that “Generally, submerged land which is contiguous to the continent and which is covered by no more than 100 fathoms (600 feet) of water is considered as the continental shelf”. So that the United States could probably agree to the reported I.L.C. draft although it had not objected to the formulation in the first draft based on the depth which was possible of development.

The President’s proclamation also used the term “natural resources” and the United States would probably not have been willing to go along with a limitation to “mineral resources.”

So far as “sovereignty” was concerned the United States preferred “jurisdiction and control” as being more consistent with the facts since traditionally sovereignty over land has included superjacent waters and airspace. However, the United States could probably go along with “sovereignty” if all other States preferred that term. The Francois formula “sovereign rights of jurisdiction and control” seemed to him worse than either of the two simpler formulations.

Mr. Fitzmaurice said that he had much sympathy with Mr. Yingling’s views as to “jurisdiction and control” and that, if other states preferred that formula, the United Kingdom could probably agree to it.

Mr. Yingling agreed with Mr. Fitzmaurice that if any state tried to claim that trawling for swimming fish damaged that state’s continental shelf, the onus of proof would be on it.

E. Methods of coordinating the policy of the two countries

Mr. Fitzmaurice suggested it might be worth while holding a meeting of maritime countries with roughly similar interests and issuing a common declaration on territorial waters policy.

Mr. Yingling said that although numerical majorities were illusory, and major maritime countries could and should have more influence than others on these problems, he felt that a joint statement of the kind suggested might be regarded as an attempt to influence the I.L.C. by power politics. He agreed that the Commission had shown itself anxious to receive indications of opinion, but thought it might be more useful for each power to approach the I.L.C. separately. However, he also felt that it was very desirable to do anything possibly to prevent the I.L.C. from making radical recommendations, and agreed to put the idea of a joint statement to the State Department.

In discussion, it emerged that the time was probably not yet ripe for any common declaration by the maritime Powers, but that the occasion might come if and when the I.L.C. looked like issuing a really bad report or failing to reach any conclusions at all. For the time being it was best to proceed by way of individual replies to the I.L.C., though the United Kingdom and the United States should continue to consult each other over these replies and over problems of territorial waters generally. If it ever became necessary to issue a common declaration, it would be better for it to proceed not from the United Kingdom and the United States alone, but also from such countries as France, Belgium, the Netherlands, and possibly Germany and Japan.

In answer to an enquiry from Mr. Yingling, Mr. Fitzmaurice said that the United Kingdom would probably now wish to consult other European countries. Any reference to the present talks with the United States would be in very general terms.

Mr. Yingling explained that the State Department had not fully considered the matter of referring “test cases” to the International Court when the first talks were held in 1951. They had since themselves decided against taking the Mexican case there. Mr. Fitzmaurice said the Icelandic case might be taken, but so far the Icelanders had refused to submit it.

Mr. Yingling said that as there was clearly no hope of persuading the Latin Americans to accede to the United States views at this time, the United States had persuaded them to give the matter further study.

Mr. Yingling enquired whether there had been recent talks with the Commonwealth countries and the colonies on the subject of territorial waters. Mr. Fitzmaurice replied that there had been none, and that it might be useful to hold some fairly soon. He did not think that Canada or Australia or any of the other Commonwealth countries were seriously thinking of extending the width of their territorial waters or of radically changing their policy in the matter of base lines. It seemed likely that the Australian needs would be met by the I.L.C. recommendations on sedentary fisheries. There were a few colonies who might benefit from the introduction of base lines, but the pressure was not such as was likely to affect United Kingdom policy if the United Kingdom decided that on general grounds the adoption of base lines would be harmful.

[London,] August, 1953.

1. Prepared in the British Foreign Office.
2. Copy not found in Department of State files.
3. The judgment of the International Court of Justice in the fisheries case involving the United Kingdom and Norway.

4. Public Law 31, approved May 22, 1953; it fixed the seaward boundaries of coastal states as a line 3 geographic miles from their coastlines and conveyed to these states title to ownership of lands beneath navigable waters within their boundaries and the natural resources within such lands and waters. For text of P.L. 31, see 67 Stat. 29.

   Public Law 212, the Outer Continental Shelf Lands Act, approved Aug. 7, 1953, defined the term “Continental Shelf” as the submerged lands lying seaward and outside the area covered by P.L. 31 and declared it the policy of the United States that the subsoil and seabed of the outer continental shelf appertained to the United States. For text of P.L. 212, see 67 Stat. 462.

5. Jean Spiropoulos, a member of the International Law Commission.
6. See footnote 2, p. 1658.