320.22/8–1854: Telegram

The Secretary of State to the Embassy in the United Kingdom 1

priority

980. Following is explanatory memorandum relating to the Draft Articles on the Continental Shelf:

“At its Fourth Session the General Assembly recommended that the International Law Commission study the regime of the high seas and the regime of territorial waters (RES. 374(IV)).2 At its Fifth Session the International Law Commission completed its work on the continental shelf, and it recommended to the Assembly that it give favorable consideration to the draft articles on the Continental Shelf (Doc. A/2456).3 At its Eighth Session the Assembly 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’ (RES. 798(VIII)).4

Since the passage of Resolution 798, a number of events have taken place which lead to the conclusion that it would be desirable for the Assembly to consider and attempt to solve, one at a time, the numerous segments of the very broad general subject of regime of the high seas and territorial waters, as those segments are completed by the International Law Commission. This would seem to accord with the views of the International Law Commission itself, which has recommended consideration of its draft articles on the continental shelf and fisheries.

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One thing which has become more apparent since last year is the fact that if the Law Commission is to do its best work on these thorny problems, it will require a number of years to complete its task. For example, in the Report on its latest session, the Commission indicated that it would not be possible for it to reach final decisions regarding the breadth of territorial waters in the immediate future. Consultations with states and further useful deliberations on the part of the Commission will probably consume several more years. Hence this one aspect of the regime of the high seas and territorial waters may well require several years before final recommendations can be sent by the Commission to the Assembly. Moreover, the problems of fisheries and contiguous zones are far from solution. In addition, the problem of the regime of the high seas and territorial waters contains the following sub-items on which little or no work has yet been done by the Commission: nationality of ships, collision, safety of life at sea, the right of approach, slave trade, submarine telegraph cables, and the right of pursuit. It seems certain that their completion will require an additional number of years. Meanwhile, the number and intensity of international disputes relating to high seas and territorial waters seem to be increasing. Hence the need for agreed solutions for these problems or any part of them is apparent.

Although pure logic might seem to indicate that all of these problems can better be solved simultaneously, international law has frequently been advanced only by concentration and agreement on one small segment at a time. Frequently the process is one of reaching agreement on the less controversial segments first, and only then attempting to solve the more controversial aspects. The multisided field of the law known as the regime of the high seas and territorial waters may well be a good example of an instance in which such a process will prove very useful. Also, it may be an instance in which the reverse process of simultaneous consideration of all segments might prove completely unworkable. At best simultaneous consideration will greatly delay settlement of all of the problems in this field.

For example, there does not seem to be any basic disagreement among nations as to the conclusions reached by the International Law Commission concerning the exploration and exploitation of the resources of the continental shelf. On the other hand, there is nothing to indicate that there will be general acceptance of any solution of the question of breadth of territorial waters which might ultimately be recommended by the Law Commission. Since the whole project of regime of the high seas and territorial waters contains a number of controversial problems, the solution of the less controversial should not be tied to the solution of the more controversial. [Page 1718] Such a process might delay indefinitely the solution of the whole project.

It has been argued that since the various segments of the problem are inter-related, it will be impossible to solve one segment without prejudging or prejudicing the other segments. However, this difficulty can be overcome by disclaiming specifically any such prejudgment or prejudice. For example, in the final Assembly resolution relating to the draft Articles on the Continental Shelf, a preambular paragraph could be inserted to the effect that: ‘these articles do not purport to prejudge or prejudice future decisions relating to such matters as base lines for territorial waters, the width of territorial waters, and fishery resources of the superjacent waters.’ Such a technique should reassure those states which have expressed a fear that the solution of one segment will prejudice the solution of another.

For the above reasons, the co-sponsors believe that consideration of the Law Commission’s draft Articles on the Continental Shelf by the Assembly should not be postponed for an indefinite, and possibly great, number of years. However, since a number of governments have indicated that they would prefer to study the draft articles further before reaching conclusions in relation to all of their details, it is believed desirable to delay substantive consideration of them until the Tenth Session of the Assembly. This additional year should provide sufficient time for thorough study by all governments. The co-sponsors believe that in order to avoid undue delay the Assembly should decide at its Ninth Session to place on the provisional agenda of its Tenth Session the question of substantive consideration of the draft Articles on the Continental Shelf.”

Following is explanatory memorandum relating to Economic Development of Fisheries and Question of Fishery Conservation and Regulation.

“As part of its work relating to the regime of the high seas and territorial waters, the International Law Commission drafted Certain Articles on Fisheries (A/2456,5 p. 17). These draft Articles are the result primarily of consideration of the legal aspects of high seas fisheries. It is the view of a number of states that these draft Articles do not adequately meet certain very important technical problems of the world fishing industry. In recommending the drafting and consideration of international conventions relating to conservation of fisheries, the Law Commission itself stated: ‘The matter is of a technical character; as such it is outside the competence of the Commission.’

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At its Eighth Session, the Assembly 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.’ (RES. 798(VIII)). This process may consume a great number of years. Meanwhile the number and intensity of fisheries disputes might well continue to grow and remain unsolved.

It is believed that the philosophy underlying Assembly Resolution 798 is that the International Law Commission and the General Assembly can solve at one time all of the complex problems arising out of the regime of the high seas and territorial waters. Without putting in issue the wisdom or the validity of this philosophy, the question of high seas fisheries presents a number of special problems which are probably capable of solution by the Law Commission and the Assembly only with the assistance of an outside body. These problems are in large measure of an economic and technical character, particularly as they relate to conservation. Even assuming that the Assembly will wait a number of years before discussing any draft Articles on Fisheries, such a discussion by the Assembly of these Articles on Fisheries would probably not be productive unless the Assembly has before it the views of fisheries experts on the problems. No reason can be seen for delaying the meeting of such experts until or after the Assembly discussion. Conversely, it is felt that it is logical to have them meet as soon as possible in order that their conclusions can be forwarded to the Assembly promptly and without necessitating a delay in fruitful Assembly consideration of fisheries problems.

The co-sponsors suggest to the General Committee and the Assembly that this item on fisheries be sent to the Second Committee since it is economic development of fisheries and problems of fishery conservation and regulation that need consideration. The co-sponsors believe that after the discussion of the problem, a resolution should be adopted whereby problems of the economics and conservation of high seas fisheries would be referred either to the Food and Agriculture Organization or to a special governmental conference of experts for consideration and recommendations. The co-sponsors do not wish to submit a draft resolution at this time, because they feel that many useful points will be made in the course of discussion, and that the appropriate resolution can more easily be drafted at the conclusion of such discussion.”

Dulles
  1. Repeated to New York. The telegram was drafted by Bernard Fensterwald, Jr., and Sweeney.
  2. For text, see GA (IV), Resolutions, p. 66. The resolution was in the form of a recommendation to the International Law Commission to include the regime of territorial waters in its list of topics to be given priority.
  3. See footnote 3, p. 1697.
  4. See the editorial note, p. 1664.
  5. See footnote 3, p. 1697.