320.22/7–2854

Record of Anglo-American Discussions on the Continental Shelf and Fishery Problems 1

confidential

A series of Anglo-American discussions on the continental shelf and fishery problems were held at the Foreign Office on July 8, 9, 12, 13, 14 and 16. Those taking part on the United States side were Mr. William C. Herrington, Special Assistant for Fisheries and Wildlife to the Under-Secretary of State who had come from Washington specially for the talks, and Mr. W. M. McClelland of the United States Embassy. The United Kingdom was represented by Sir Gerald Fitzmaurice, K.C.M.G., Legal Adviser to the Foreign Office, Mr. F. A. Vallat, Deputy Legal Adviser to the Foreign Office, Mr. R. G. R. Wall, Fisheries Secretary at the Ministry of Agriculture and Fisheries, Mr. G. M. Graham and Mr. A. S. Armstrong of the Ministry of Agriculture and Fisheries, Mr. N. J. P. Hutchison of the Scottish Home Department, and Mr. E. H. Peck and Mr. B. O. White, both of General Department in the Foreign Office. There were also present at various stages of the discussions of Mr. H. L. Lawrence-Wilson and Commander R. H. Kennedy, O.B.E., R.N. (Retd.) of the Admiralty, Mr. L. E. Dale of the Ministry of Transport and Civil Aviation, Mr. D. H. N. Johnson, Foreign Office, Mr. H. A. F. Hohler, C.M.G., and Mr. H. K. Matthews, M.B.E., both of Northern Department in the Foreign Office, and [Page 1705] Mr. M. B. Jacomb and Mr. H. F. Bartlett of the United Nations Departments in the Foreign Office.

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.

A. Measures to be taken to secure reconsideration of the I.L.C. draft articles on the Continental Shelf and of fishery problems in the Ninth General Assembly of the United Nations.

(1) Reasons for urgent action.

Mr. Herrington explained that the United States feared that in the absence of any declaration on, or active consideration of, those two questions by the United Nations, many countries, in particular the Latin Americans, would be encouraged to take and justify further steps to develop joint action to strengthen unilateral claims to jurisdiction and control over the High Seas by pleading necessity for measures to conserve fisheries and the failure to get action at the United Nations level. The United States Government therefore considered it necessary to try to secure reversal of the resolution adopted by the General Assembly on December 7, 1953,2 when it decided “not to deal with any aspect of the regime of the high seas or of the regime of territorial waters until all the problems involved have been studied by the International Law Commission and reported upon by it to the General Assembly”.

Mr. Herrington referred to the Opinion of Judge Alvarez in the Anglo-Norwegian fisheries case, and in particular to the statement that “rights [of a State to determine the extent of its territorial sea, etc.]3 are of great weight if established by a group of States, and especially by all the States of a continent”. He pointed out that the Latin American States had only been prevented by procedural arguments from putting down resolutions that 200 miles should be the limit of territorial waters for conservation purposes in an Inter-American Fisheries Conference called by the F.A.O. in 1951, and in 1952 a majority of the Inter-American Judicial Committee recommended in favour of jurisdiction to a distance of 200 miles. Finally, in 1954, the conference of the Organization of American States had resolved to call a specialized conference in 1955 to study the “juridical and economic system governing the submarine shelf, oceanic waters, and their natural resources.” So far States which claimed 200 miles had made no attempts to enforce their claims to this distance, but the situation might change if sub-continent-wide agreement were reached.

[Page 1706]

If however the United Nations were to take definite action on these questions, this would have a restraining effect on the efforts of the Latin American States in attempting to establish their claims to extreme distances. It was necessary to secure as far as possible the separation of the question of the continental shelf from that of fishery conservation, and of both those questions from that of territorial waters and this could best be done by getting United Nations approval of the Continental Shelf articles, and at the same time a decision that “conservation” problems should be considered in detail by a technical body or conference under the aegis of the United Nations.

Mr. Herrington said the United States thought it important to promote better understanding among the smaller States of the importance to them of freedom of the seas, which would be safeguarded to a large extent by the Continental Shelf Articles. It was desirable to get them to understand that this was not propaganda for the benefit of naval powers only. States that had so far sat on the fence should be shown how much they would lose in losing the freedom of the seas, and the United States and the United Kingdom should do all they could to rally and coordinate support from States who shared their views but were sometimes hesitant about acting on them. An active program should be undertaken to put the relevant argument before the Latin American States. Sir Gerald Fitzmaurice agreed that it was desirable to forestall the development of exaggerated claims by re-opening both the question of the continental shelf and that of fishery regulation in the United Nations. The United Kingdom were very much in favour of separating the questions of the continental shelf and fishery conservation from that of territorial waters, of persuading small States that the freedom of the seas was to their advantage, and of rallying support from as many nations as possible. Note was taken with approval of the United States memorandum setting out arguments for use in this connexion.

(2) Tactics to be adopted.

Sir Gerald Fitzmaurice said that the best way of securing reconsideration of the Articles on the Continental Shelf would be for an item to this effect to be put on the General Assembly agenda; an explanatory memorandum giving reasons for re-opening the question should be submitted at the same time to prevent as far as possible the crystallisation of prejudiced views. The fishery articles were so incomplete and unsatisfactory that they would be better dealt with by proposing an item that would cover the consideration of fishery problems generally, and not of the Articles as such. This, as an economic rather than a legal item, should be dealt with by the Second Committee, which the United Kingdom regarded as [Page 1707] more favourable for the purpose. It would be advisable to word the item to this end, and if necessary to ask the Secretariat to include it in the right group before submission of the agenda to the General Committee. The accompanying memorandum would have a better reception if obviously drafted by the United States, as sinister motives were habitually attributed to the United Kingdom in connexion with these questions.

The United Kingdom did not consider that it would be satisfactory or safe to raise the questions on the I.L.C. report to the Ninth Session, or to attempt to persuade the I.L.C. to include the questions in their report contrary to the General Assembly resolution of December 7. Mr. Herrington said that the proposal of separate items seemed the best course. The United States had already taken steps to enquire from Governments whether they would be willing to support reconsideration of the questions as well as the possibility of co-sponsorship of such an item on the United Nations agenda. In the light of the replies received a decision would be made with regard to proposing reconsideration and arranging for a number of countries to co-sponsor the items. It would be as well tactically to include a number of smaller countries, e.g., Philippines, Belgium, Brazil, Greece, the Netherlands, possibly Denmark, or if possible to have the item proposed by small countries alone.

Sir Gerald Fitzmaurice agreed that the items should if possible be proposed by a smaller country or countries, but the United Kingdom were of course prepared to co-sponsor if this was thought necessary.

It was agreed that the two Governments should take steps to enlist support for their views in debate and voting in the United Nations. It was tentatively agreed that the following countries will be considered for an approach by the United States:—

Cuba, El Salvador, Guatemala, Iceland, Liberia, Norway, Saudi Arabia, Uruguay, Brazil, Canada, Ecuador, Chile, China, Egypt, Iran, Mexico, Nicaragua, Peru, Thailand, Venezuela, Bolivia, Colombia, Costa Rica, Dominican Republic, Hayti, Lebanon, Paraguay and Yemen,

and the following by the United Kingdom:—

Argentina, Czechoslovakia, Denmark, Honduras, Iraq, Luxembourg, Poland, Sweden, U.S.S.R., Pakistan, Panama, South Africa, Ethiopia, India, Indonesia, Syria, Turkey and Yugoslavia.

Mr. Herrington said that the United States might wish to comment further on this allocation after he had discussed the matter with the several desk officers in the Department.

(3) Substance of proposals.

[Page 1708]

(i) The Continental Shelf

Sir Gerald Fitzmaurice said that although the Articles on the Continental Shelf were not perfect, they were in essentials satisfactory, and it would be better, for tactical reasons, not to attempt to amend them in detail. If the Assembly could be induced to “note with approval” the Articles in their present form, this would go far toward safeguarding the existing legal position, and would provide a useful basis for protest against claims to control over superjacent waters. Such a resolution would not, however, preclude the possibility of subsequent amendment of the Articles, in the light of changing conditions or, for example, the decision of the International Court in the Australian Pearl Fisheries case, if ever the time seemed right for drawing up a Convention for signature.

“Adoption” of the Articles by the Assembly would not be so appropriate as “noting with approval”, since this would be more binding on Governments, and no less likely to meet with approval, and might also preclude amendment or supplementation of the Articles. “Noting with approval” could be represented as one step forward in dealing with the problem, and should be as effective as any other form of resolution in countering claims that conflict with the provisions of the Articles.

Mr. Herrington said that although the United States would prefer Article II to be amended, they could probably support the present form, since any attempt to amend the Articles might well stimulate other, undesirable, amendments and thereby prejudice achievement of the major aim, namely, approval of the Articles. (See Annexe I4 for revision of Article II proposed by United States.)

It was agreed that provision for bona fide scientific research could best be made by including in the draft resolution a paragraph based on the following draft proposed by Mr. Herrington: “Subject to its right to take reasonable measures to protect its interests in the subsoil and seabed of the continental shelf, the coastal state may not interfere with scientific research on or over the continental shelf”.

It was also agreed that the United Kingdom should take whatever steps seemed best to cause the International Council for the Exploration of the Sea to ask the Government of Denmark to propose the necessary addition to the draft resolution. The United States would suggest similar approaches from Western Hemisphere scientific organisations.

(ii) Fishery problems

In discussion the following points were made.

[Page 1709]

Apart from examples which might be mentioned in speeches designed to show what the problems were and to suggest ways in which they might be tackled, it would be better to avoid any discussion of substance in the General Assembly. Even if the United States and United Kingdom were agreed on a set of draft articles beforehand to present them to the General Assembly would probably alienate sympathy and arouse suspicion. Different facets of the problem could be presented in speeches, but to ask delegations without any technical knowledge of fisheries to decide immediately on a draft would be to court defeat.

It was hoped that discussions would take place in the Second Committee, and that the Committee would agree on a draft resolution pointing out the urgent need for international agreement on regulation of fisheries if continued high productivity of fishery resources were to be ensured, and proposing that the problem should be dealt with (1) by reference to the Economic and Social Council for committal to the Food and Agriculture Organisation, or alternatively direct to F.A.O. or (2) by reference to a special meeting of technical experts to be called together from various countries for that purpose. The former course might be accompanied by a recommendation that the Fisheries Division of F.A.O. should be asked to prepare draft articles for eventual consideration at a technical conference. In view of the inexperience of F.A.O. in this particular problem it would be advisable for the recommendation to say that the Organisation should take into account in carrying out its task any points made in the discussion in the Assembly, and any comments that might be received subsequently from Governments.

It would be necessary to consider further exactly what form the reference to F.A.O. should take, in consultation with United States and United Kingdom officials and experts who had taken part in F.A.O. meetings, and to make provision for any interested Governments not represented in F.A.O. to take part in any technical conference.

It was agreed that the two Governments should continue to consult on the form of the draft resolution on fishery problems in the light of the points made above, and that the text should be agreed by the delegations in New York when replies had been received from other Governments consulted.

(4) Discussion of the Articles on the Continental Shelf.

It was agreed that the text of the Articles should not be amended for purposes of action by the General Assembly, but the following points were made in discussion:—

Article 1. No comments.

Article 2. The United States would prefer the form quoted in Annexe I. The inclusion of “natural resources” would lead to dispute, [Page 1710] and although the I.L.C. comments on the Article were useful, e.g., in determining where the distinction was to be drawn between “sedentary” fish and “swimming” fish, those comments had no definite legal status. The United States would be prepared to allow that “attached” species could be regarded as part of the natural resources of the sea bed, but thought it dangerous to admit species which were unattached, or which moved, even if they moved only a few yards. They also felt that “sovereignty”, even as qualified by Articles 3 and 4, encouraged some States to argue that sovereignty over the shelf must include the superjacent waters and air space.

The United Kingdom stated that they would prefer to keep “sovereignty” in the Article because sovereignty had been the basis of a number of Orders-in-Council extending the boundaries of certain Colonial territories to include the continental shelf. They could not accept the argument that because trawling might affect the sea bed, the coastal state should have a consequential right to prohibit trawling over its shelf.

Mr. Herrington agreed, and said that as trawling did not usually take place where attached fish are found, the right to trawl usually would not conflict with the right to protect sedentary fisheries.

Article 3. No comment.

Article 4. No comment.

It was agreed that Articles 3 and 4 were of such importance that it was worth accepting minor imperfections in other Articles to secure the Assembly’s approval of these two.

Article 5. If Article 2 were ever amended as proposed by the United States, it might be necessary to amend the first part of Article 5, but the right referred to here did not exclude the possibility of other rights of the coastal State or even of other States.

Article 6. If Article 2 were amended, the beginning of 6.1 might also need amendment.

Article 7. “Special circumstances” might lead to dispute, but there seemed no way of avoiding this. It was considered that the problem of “offlying portions” of the continental shelf was covered by the comment on Article 1.

Article 8. It was agreed that this Article was necessary to make Articles 5, 6 and 7 effective, although there was the possibility that if the Articles were ever incorporated into a Convention some States might accept it with reservation on Article 8.

(5) Discussion of Fishery Problems.

It was agreed that, although it would be inappropriate to present or mention draft Articles in discussing the question in the United Nations, it would be useful to see how far agreement could be reached on a set of draft Articles as a basis for action in F.A.O. or a technical conference.

[Page 1711]

Annexe II contains a set of draft Articles proposed by Mr. Herrington on the second day of the meeting as a result of discussions on the previous day, and an alternative set proposed by the United Kingdom after further discussion. Much of the discussion was devoted to the principle of abstention introduced in Article 1(c) of the United States draft. Article 2.2(b and c) of the United Kingdom draft represents the maximum concession which the United Kingdom felt able to make to the principle of abstention.

Among points made in discussion were the following:—

It was agreed that problems should be worked out as far as possible by the nations concerned in regional agreements. Where agreement could not be reached it would be better to appoint ad hoc arbitrators than to have to refer to some single comprehensive international body which could not have specialised knowledge of all the different fisheries.

“Stock” v “Area”. The United Kingdom conceded that ideally the concept of stocks of fish provided a better basis for conservation measures than that of area, and that the present Whaling Convention suffered from the “area” concept, but thought that countries mainly interested in fisheries like those of the North Sea where the separation of stocks was by and large impossible would regard the introduction of “stocks of fish” as novel and possibly impracticable. It might however be possible to get the idea accepted by a technical conference, subject to certain safeguards, and this was yet another reason for not putting the articles directly to the General Assembly.

Abstention (see Annexe II). 5

The United States view was that where a State or States had extensively studied and regulated a fishery to bring it to high sustained productivity and were fully utilising the stock on a sustainable yield basis, it was reasonable that other States should abstain from the fishery. The United Kingdom agreed that in certain special cases, such as the halibut and salmon fisheries shared by the United States and Canada, there were good arguments for abstention by other countries, and that provision should be made for these special cases, but that as a matter of general principle newcomers should be admitted to fisheries provided they observed measures already in force there. Even where a regulated fishery could not support an unlimited number of newcomers, the United Kingdom would prefer to see some newcomers admitted under a licensing system, rather than that there should be total exclusion.

[Page 1712]

Annexe I

Continental Shelf

article 2

The subsoil and seabed of the continental shelf appertain to the coastal state and are subject to its jurisdiction, control and power of disposition.

Annexe II

Draft Fishery Articles (U.S.)

article 1

a.
A State whose nationals are engaged “on the High Seas” in fishing “any stock of fish not being fished by” nationals of other States, may regulate and control fishing activities for “that stock” for the purpose of “making possible the maximum sustained yield from that stock.”
b.
If the nationals of two or more States are engaged in fishing “the same stock of fish” the States concerned shall prescribe the necessary measures by agreement.
c.
If subsequent to the adoption “and application” of such measures the nationals of other States (“desire” to) engage in fishing for these stocks, they shall observe the measures in effect. Provided however that if the concerned stock reasonably fulfils the following conditions:
(1)
It is the subject of scientific research for the purpose of determining measures necessary for making possible the maximum sustained yield.
(2)
It is under regulations for the same purpose.
(3)
Any further increase in fishing would not result in any substantial increase in sustained yield; the other States will abstain from fishing that stock.
d.
In the event that agreement is not reached regarding the measures referred to in 1 b., or if the other States referred to in 1 c. do not agree with the measures in force, or if there is disagreement as to whether a stock reasonably fulfils all the conditions for abstention listed in 1 c., the question shall, at the request of one of the interested parties, be referred to the international body envisaged in Article 3.
e.
None of the provisions of this Article shall be construed as preventing
1)
A State from regulating its nationals for any purpose;
2)
Two or more States by agreement from regulating their nationals for any purpose.

Fisheries

article 2

With respect to any stock of fish in waters contiguous to the territorial waters of a coastal State, the coastal State is entitled to take part on an equal footing in any system or agreement for the purpose of research on and regulation of that stock, even though its nationals do not carry on fishing for that stock, (provided that participation in regulation shall be contingent upon participation in any programme of research.)

article 3

States shall be under duty to accept the decisions of the international authority defined below with respect to the questions referred to it under Article 1 preceding. The international authority shall be constituted as follows:

If a State or States questions the qualifications for abstention or the measures in effect, the questioning State or States shall appoint one arbitrator, the regulating State or States shall appoint one arbitrator, and the two arbitrators shall appoint a third arbitrator.

In the event that the first two arbitrators are unable to agree within one month upon the third arbitrator, such third arbitrator shall be appointed by the President of the International Court of Justice. In the event that either the challenging State or States or the regulating State or States, shall have failed to appoint an arbitrator within one month at being notified of the appointment of the arbitrator of the other side, the President of the International Court of Justice shall appoint such arbitrator.

Questions to be determined by the arbitral tribunal shall be limited to the following:

1.
With respect to abstentions:
a.
Does the stock of fish reasonably satisfy the following:
1.
Is the stock subject to reasonably adequate scientific investigation with the objective of determining measures required to make possible the maximum sustained yield.
2.
Is the stock under regulation for the purpose of making possible the maximum sustained yield.
3.
Is the stock under such exploitation that an increase in the amount of fishing will not result in a substantial sustained increase in yield.
2.
With respect to conservation measures: [Page 1714]
a.
Are the regulations based on appropriate scientific findings.
b.
Are the regulations necessary to make possible the maximum sustained yield.
c.
Are the regulations reasonable.
d.
Are the regulations designed to, or in fact do they, discriminate against any State.

[Here follow draft articles for a general multilateral fishery regulation convention proposed by the United Kingdom.]

  1. Prepared in the British Foreign Office and transmitted to the Department of State by the Embassy in London under cover of despatch 300, July 28, 1954. (320.22/7–2854)
  2. See the editorial note, p. 1664.
  3. Brackets in the source text.
  4. Below.
  5. Below.