L/SPF files, lot 68 D 47, “Memoranda and
Articles—Territorial Waters”
Memorandum by the Legal Adviser (Phleger) to the Secretary of
State
confidential
Washington,
November 26, 1954.
1
- Subject:
- Effective Defense of the Principle of Freedom of the Seas
Discussion:
It is the traditional policy of the United States to support the principle of
freedom of the seas. Such freedom is essential to its security, commercial
and fishing interests. The principle is under serious attack. A growing
number of states, including friendly states, are claiming control of
extensive areas of adjacent seas heretofore considered high seas by the
process of extending their territorial waters.
The detrimental effect of a claim by a given country to territorial waters in
excess of the traditional three miles cannot properly be assessed by
considering it by itself or within the narrow context of our established
political or commercial relations with that country. Each claim contributes
to the deterioration of the principle, and the point has been reached where
the cumulative effect of these new claims is a threat to the principle
itself. What is in issue each time is not only freedom in a greater or
lesser number of square miles of water in a given area, but the freedom of
United States vessels and aircraft the world over. United States interest in
the principle cuts across geographical boundaries and established patterns
of political policy.
[Page 1721]
Effective defense of the principle calls for a course of action determined by
taking into account all of the developments in the field and judging them
from a global point of view. This points to centralized handling by one
office in the Department having overall responsibility in the matter.
Effective defense of freedom of the seas also requires expert knowledge of
the complex of legal problems embraced by the principle such as
determination of baselines, width of territorial waters, jurisdiction in
contiguous zones, and exploitation of the resources of the continental shelf
and superjacent waters in a manner consistent with their status as high
seas.
In 1950 the British Government expressed the desire for informal talks on the
subject of territorial waters and related matters.2 The Legal Adviser of the Foreign Office and two
associates from the Admiralty came to Washington for that purpose. The
Secretary assigned responsibility for the conduct of the talks to the Office
of the Legal Adviser. In 1953, at the request of the British Government,
further talks were held in London and an assistant legal adviser of the
Department represented the United States. L has continued, in practice, to
exercise a large measure of responsibility in the subsequent efforts to
develop and maintain the United States position and to protect United States
interests in this field.
Recommendation:
It is suggested that, in view of the increasing need for urgent and
determined action on our part in this field, L’s responsibility be confirmed
and made known to the whole Department. Of course, there would be
consultation with the appropriate political and other officers.
[Attachment]
Statement of Policy of the United States on
Freedom of the Seas
- 1.
- It is the traditional policy of the United States to support the
principle of freedom of the seas. Such freedom is essential to its
national interests. The effective defense of its security, the
maintenance of its pre-eminence in commercial shipping and air
transport, and the prosperity of its fishing industry would all be
hampered by any serious compromise of the principle of freedom of
the seas. It is unnecessary to discuss the whole complex of naval
and economic warfare to show that the value to the United States of
the world’s greatest navy is lessened if large areas of high seas
are
[Page 1722]
removed from the
region of war. It is sufficient for this paper to point out that
such areas thus become safe havens in which enemy naval and merchant
vessels are immune from destruction or capture and in which
suspected neutral merchant vessels are free from belligerent
examination. It is likewise unnecessary to do more than point out
that sea lanes and air routes free from national prohibitions or
restrictions are a decisive factor in commercial shipping and air
transport. Finally, the effect on American fishing operations of
attempts by coastal states to close off large areas of the high seas
is being impressed upon us every day by what is happening in Latin
America.
- 2.
- Freedom of the seas is under serious attack. The attacks take
various forms. Some states increase the area of their inland waters
by defining their seaward limit by the method of drawing straight
lines from headland to headland on the coast and then from this
base-line, which may be many miles out at sea, measuring the width
of their territorial waters. Many states simply extend the width of
their territorial waters by decree or other unilateral act. More
recently, a favored technique has been for states to claim exclusive
control of the waters over their continental shelf and beyond their
territorial waters. Whether those methods are used separately or in
combination, excessive claims are not uncommon, and there are
several instances of claims to territorial waters to a breadth of
two hundred or more miles from the coast.
- 3.
- The concern of the Department of State with this development led
to the formulation in the spring of 1953 of a study entitled
“National Claims in Adjacent Seas”, which was cleared by the
Departments of Commerce, Defense, Interior, Justice, and Treasury.
It is attached as an Appendix.3 The first section of
the study analyzed the gradual deterioration of the principle of
freedom of the seas. The second outlined the policy to be followed
by the United States in the matter: continued opposition to claims
to control of the high seas and concerted action with nations having
a like interest.
- 4.
- Although numerically more countries have departed from the
three-mile rule than still adhere to it, the latter including the
British Commonwealth, most of Western Europe, Germany, Japan and the
United States represent not only most of the powerful states of the
world but according to estimates made by the late Geographer of the
Department they represent about 80% of the total registered merchant
shipping tonnage of the world. They also represent practically all
the naval power there is outside of the Soviet bloc. These facts are
eloquent indication why a number of small states are more interested
in establishing a legal right to the resources of the
[Page 1723]
sea off their coasts
than they are in maintaining the freedom of seas which they do not
use.
- A major difficulty in the effective implementation of the policy
of continued opposition to claims to control extensive areas of the
high seas has been the fact that the proponents of such claims
include many nations with which we have or want friendly relations
or even closely integrated defensive and diplomatic policies. For
example, the states applying the straight line method to the
determination of their base-line of territorial waters include, inter alia, Iceland, Norway, Saudi Arabia and
Yugoslavia. Those claiming breadths of territorial waters in excess
of three miles include, inter alia, Egypt,
Greece, Italy, Iran, Spain, and Turkey. Those claiming some form of
control over the waters superjacent to their continental shelf
include the Republic of Korea and a number of American states, such
as Argentina, Brazil, Chile, Ecuador, Panama, and Peru.
- 5.
- With respect to these countries, the United States has to balance
its interest in freedom of the seas against its political interests.
The general objective is to maintain the traditional position of the
United States on the freedom of the seas but to avoid action which
would jeopardize political relationships. The problem in each case
is to determine how much weight should be given to our interests in
freedom of the seas, how far the United States can lean on the side
of these interests as against the risk of disturbing the
others.
- 6.
- The more recent practice of the United States generally has been
to avoid assuming risks of political friction for the sake of its
interests in freedom of the seas. It has not geared its actions to
the degree of danger presented to United States interests in freedom
of the seas by the claims involved. Rather it has taken, as a rule,
the minimum remedial action available, and has even desisted on
occasions from opposing a claim at all or from defending its own
interests in freedom of the seas when offered a legitimate forum to
do so. Thus, it was persuaded not to protest the extensive claims
made by Iceland in 1948, and to forego in 1953 supporting in the
Sixth Committee of the General Assembly of the United Nations
consideration of proposed articles on the continental shelf,
submitted by the International Law Commission pursuant to the
directives of the General Assembly, which articles fully supported
the United States position on freedom of the seas.
- 7.
- This policy has been based on the implied assumption that it
should be adequate to make a record, by a pro
forma protest or otherwise, of our position with respect to
freedom of the seas. Practice shows the assumption cannot be
maintained any longer. The claims made by friendly states, added to
those of the Soviet bloc
[Page 1724]
and others, continue to gather a cumulative effect which is well on
the way to reduce the strength of the principle of freedom of the
seas to the danger point, and the United States is now being faced
with situations where it has no choice but that of accepting the
risks of friction if it is going to continue its defense of freedom
of the seas. Iceland, whose claims in 1948 were directed to the
extension of its base-line further out to sea, does not appear to
preclude a claim to all the waters above its continental shelf as
territorial waters. Our protests against the claims of South
American States, apparently considered by such states as little more
than pro forma actions, are not deterring
Chile, Ecuador and Peru from planning concerted action to enforce
their 200 miles claims and the planes and ships of Peru’s navy have
apparently attacked the boats of a foreign fishing fleet within the
waters covered by its claims. The special conference on the
submarine shelf and related problems planned to be called in 1955 or
1956 by the Organization of American States threatens to be the
occasion for further coalescing of South American policies in the
matter, contrary to United States interests. United States efforts
at the last General Assembly of the United Nations to obtain a
reversal of the 1953 decision of the Assembly not to consider the
articles on the continental shelf recommended by the International
Law Commission, and to have these articles placed on the agenda of
the 1955 session were unsuccessful and thus we lost a strong
argument to prevent the convening in 1955 of the proposed conference
of the Organization of American States on the submarine shelf.
Instead the Assembly by resolution requested the International Law
Commission to devote the necessary time to the study of the regime
of the high seas, the regime of territorial waters and all related
problems in order to complete its work on these topics and submit
its final report in time for the General Assembly to consider them
as a whole and decided to include the final report of the
International Law Commission on these topics in the provisional
agenda for the 11th session of the Assembly (1956). As a result, all
of the related drafts of the International Law Commission on
determination of base-lines, breadth of territorial waters,
contiguous zones, and continental shelf will come up for discussion
at the same time. Instead of being able to divide its opponents and,
if at all possible, win or neutralize one of the issues at a time,
the United States will then confront a coalition of opponents welded
together, despite the variety of their claims, by their opposition
for one reason or another to freedom of the seas.
- 8.
- The United States, in the circumstances, must modify its policy to
take into account the constant deterioration of its position with
respect to freedom of the seas, and stengthen its support of
[Page 1725]
the principle to the
maximum possible extent consistent with its political and defense
policies.
- 9.
- In doing so, primary attention must be given to the fact that many
coastal states are genuinely concerned about the possible depletion
of fishery resources of the seas off their coasts through over
fishing by foreign interests, and that their claims to large areas
of such seas are motivated by a desire to reserve such resources for
themselves. The international technical conference on conservation
of the living resources of the sea to be convened at Rome in April
1956 [1955] as a result of action taken at
the last General Assembly of the United Nations affords the United
States a major opportunity to contribute to the solution of fishery
conservation problems through international agreement. A
constructive effort in that direction could do much toward
maintaining the United States position on territorial waters and
freedom of the seas. It is perhaps not too much to say that a
satisfactory solution of fisheries problems would cause most of the
more extreme claims in those areas to disappear.
- 10.
- At the same time, realistic recognition must be given to the fact
that our interests in freedom of the seas and the interests of many
of the countries involved are opposite. From such a conflict of
interests some friction is bound to develop. It necessarily exists
the moment a claim adverse to freedom of the seas is made, simply
because the action is taken in the face of the known adverse
interest of the United States. To desist from opposition to such
claims or to oppose them only pro forma, on
the ground that we cannot afford friction harmful to our friendly
relations with the states involved, would be to give up our
interests in freedom of the seas and to place a greater value on the
friendship of the states involved than they place on ours.
- 11.
- In determining to what extent the United States must assume the
risk of friction inherent to the situation, much greater weight must
be given to the interests of the United States in freedom of the
seas than has heretofore been the case. The risk of friction must,
of course, be kept to a minimum and considerable effort must be made
to conciliate the political considerations involved in each case.
But, it is the seriousness of the foreign action involved, expertly
analyzed in the light of its effect on freedom of the seas and the
extent to which the over-all interests of the United States in such
freedom are jeopardized, which must determine to what extent the
assumption of such risk may be necessary.
- 12.
- The United States must continue to rally as actively as possible
the support of states having a like interest in freedom of the seas,
and to promote with their help consideration by the United Nations
of the drafts prepared by the International Law Commission
[Page 1726]
on the basis most
favorable to United States interests in freedom of the seas.
