L/SPF files, lot 68 D 47, “Memoranda and Articles—Territorial Waters”

Memorandum by the Legal Adviser (Phleger) to the Secretary of State

  • Subject:
  • Effective Defense of the Principle of Freedom of the Seas


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.


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.


Statement of Policy of the United States on Freedom of the Seas

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
  1. The editors are of the opinion that this document may not be correctly dated on the carbon copy used as the source text. This opinion is based on paragraph 9 in the attachment, which discusses the international technical conference to be convened at Rome “as a result of the action taken at the last General Assembly of the United Nations”. This action was taken by the Assembly on Dec. 14, 1954, more than 2 weeks after the date on Phleger’s memorandum.
  2. For text of the letter of June 23, 1950, from the Second Secretary of the British Embassy to Ranney, see Foreign Relations, 1950, vol. i, p. 876.
  3. See the attachment to Phleger’s memorandum, Mar. 19, 1953, p. 1675.