823.246/7–2154: Instruction

The Acting Secretary of State to the Embassy in Peru 1

confidential

Subject:

  • Declaration on Maritime Zones

A–41. While the Department appreciates the force of the views set forth in the Embassy’s despatch No. 40 of July 21, 1954,2 and would not desire to take any action which would affect adversely the situation of American fishing interests operating off the coast of Peru, nevertheless, it feels that this Government’s position must be made clear to the Peruvian Government.

As the Embassy is aware, the Department desires if possible to have the draft articles on the continental shelf recommended by the International Law Commission of the United Nations considered at the 10th General Assembly. Furthermore, the Organization of American States is planning a conference for the consideration of these and related matters in 1955.

At the instance of the United States fishing industry, the last Congress passed a law3 to reimburse American fishermen for losses sustained through the imposition of fines for fishing in areas claimed by foreign countries as territorial waters, but which claims are not recognized by the United States. Members of the Congress have indicated, in connection with this legislation and at other times, their unmistakable interest in the maintenance by this Government, in all appropriate ways, of its traditional position with respect to the freedom of the high seas.

In view of the above, the Department considers that the legal position of this Government must be brought to the attention of the Peruvian Government, and that a routine reservation of rights is inadequate. However, the time and manner in which this should be done are left to the discretion of the Embassy, which is authorized to act separately and at such time and in such manner as to remove, as far as possible, implications of coordinated United States-British pressure, [Page 1519] but the Embassy is not to take any action which will in any sense tend to mitigate against the effectiveness of the British approach, as it is the policy of the two Governments, based on an informal understanding, to consult together and to take such action as is possible to prevent encroachments on the freedom of the seas.

In accordance with the foregoing the Embassy may substitute for the note enclosed with the Department’s instruction No. A–6 of July 9, 1954,4 a note substantially along the following lines. The Embassy’s note should make clear the disappointment of this Government that despite its previous indication of nonrecognition of the Peruvian claim to sovereignty over the waters off the coast of Peru to a distance seaward of 200 marine miles, the Peruvian Government has signed at Santiago on August 18, 1952, the Declaration Regarding Maritime Zones adopted by delegates of Chile, Ecuador and Peru in conference, which declaration reiterates the previous Peruvian claim and further purports to lay the basis for the regulation of fishing and whaling in the maritime zone defined.

The position of Peru is not only contrary to the position of the United States as contained in Section 3 of the Outer Continental Shelf Lands Act, enacted on August 7, 1953,5 but is also inconsistent with the Articles on the continental shelf adopted by the International Law Commission of the United Nations at its Fifth Session, which articles the United States regards as generally expressive of international law. The Peruvian claims to jurisdiction over great areas of the high seas, which find little support elsewhere, cannot be recognized by the United States, which considers that under international law there is no obligation to recognize claims to territorial waters in excess of three miles from low-water mark on the shore.

While the United States recognizes that the conservation of the natural resources in the high seas, outside the limits of territorial waters, may be a legitimate interest of the coastal state, it feels that conservation measures must be taken in concert with the other parties to which they are intended to apply, and that they are not a matter for unilateral determination by the coastal state.

The Government of the United States must, therefore, reserve all of its rights in the event the Peruvian Government should attempt to implement the principles set forth in the declaration of Santiago under reference.6

Smith
  1. Drafted by Assistant Legal Adviser for European Affairs Raymund T. Yingling.
  2. In the referenced despatch, the Embassy reported that the Peruvian Government had recently reaffirmed its claim of 200-mile territorial waters and was currently preparing to take additional steps to strengthen the claim. It further stated that a strong protest by the United States in coordination with the British Government, which the Department was considering, raised the possibility of a “distinctly unfavorable Peruvian reaction.” Such a protest was likely to result in a stiffening of the Peruvian position and inspire Peru to concert with other Latin American governments making similar claims, which “in turn could adversely affect the hopes evidently entertained by United States fishing interests of obtaining needed port privileges and other concessions in Peru.” The Embassy suggested that the Department consider a separate, moderately-worded note reserving U.S. rights. (823.246/7–2154)
  3. Apparent reference to “An act to protect the rights of vessels of the United States on the high seas and in territorial waters of foreign countries” (Public Law 680), approved Aug. 27, 1954; for text, see 68 Stat. 883.
  4. Not printed (823.246/7–954).
  5. Public Law 212; for text, see 67 Stat. 462.
  6. Copies of notes presented to the Peruvian Government reserving U.S. rights with respect to the maritime zones issue, dated Sept. 20 and 27, 1954, were transmitted to the Department of State under cover of despatch 162, dated Sept. 28, 1954, not printed (823.246/9–2854).