Foreign Relations of the United States, 1955–1957, United Nations and General International Matters, Volume XI

268. Memorandum Prepared in the Department of State¹

Washington, undated.

COMMENTS ON ILC DRAFT ON THE REGIME OF THE TERRITORIAL SEA

The Representative of the United States of America to the United Nations has the honor to refer to the note LEG 292/9/01, dated August 31, 1954,² from the Principal Director in Charge of the Legal Department, concerning the Draft Articles on the Regime of the Territorial Sea of the International Law Commission set out in the Report covering the work of its sixth session, 3 June–28 July 1954.³

The Commission prepared a provisional text for all but four of the articles of the proposed draft and requested the comments of Governments on these articles. Among the articles for which no text has yet been drafted is Article 3 concerning the breadth of the territorial sea. With respect to this article, the Commission requested views and suggestions which might help it to formulate a concrete proposal.

So far as concerns the articles now drafted, the Government of the United States believes that they constitute, as a whole, a sound exposition of the principles applicable to the regime of the territorial sea in international law. The Government of the United States has, however, certain suggestions to make with respect to Articles 5 and 19.

Article 5 provides inter alia that where circumstances necessitate a special regime because the coast is deeply indented or cut into “or because there are islands in its immediate vicinity” the base line may be independent from the low-water mark and may be a series of straight lines. The Government of the United States presumes from the comments which follow the article that it was not intended that the presence of a few isolated islands in front of the coast would justify per se the use of the straight line method. The islands, as the comments indicate, would have to be related to the coast in somewhat the same manner as the skjaergaard in Norway. In the view of the Government of the United States, the words “or because there are islands in its immediate vicinity” are too general and do not convey as accurately as desirable what the Commission apparently had in mind.

With respect to Article 19, the Government of the United States is satisfied that the text incorporates principles upheld by the International Court of Justice in its judgment of April 19, 1949, in the Corfu Channel case,⁴ but it believes that the comments on this article should include a short statement of the factual circumstances upon which the court was ruling, since such a statement would point up and illustrate the significance and meaning of the principles embodied in Article 19.

So far as concerns the question of the breadth of the territorial sea and the various suggestions set out in paragraph 68 of the Report,⁵ the guiding principle of the Government of the United States is that any proposal must be clearly consistent with the principle of freedom of the seas. Some of the proposals amount to a virtual abandonment or denial of that principle. In this connection it must be pointed out that the high seas are an area under a definite and established legal status which requires freedom of navigation and use for all. They are not an area in which a legal vacuum exists free to be filled by individual states, strong or weak. History attests to the failure of that idea and to the evolution of the doctrine of the freedom of the seas as a principle fair to all. The regime of territorial waters itself is an encroachment on that doctrine and any breadth of territorial waters is in derogation of it; so the derogations must be kept to an absolute minimum, agreed to by all as in the interest of all.

That the breadth of the territorial sea should remain fixed at three miles, is without any question the proposal most consistent with the principle of freedom of the seas. The three-mile limit is the greatest breadth of territorial waters on which there has ever been anything like common agreement. Every one is now in agreement that the coastal state is entitled to a territorial sea to that distance from its shores. There is no agreement on anything more. If there is any limit which can safely be laid down as fully conforming to international law, it is the three-mile limit. This point, in the view of the Government of the United States, is often overlooked in discussions of this subject, where the tendency is to debate the respective merits of various limits as though they had the same sanction in history and in practice as the three-mile limit. But neither 6 nor 9 nor 12 miles, much less other more extreme claims for territorial seas, has the same historical sanction and a record of acceptance in practice marred by no protest from other states. A codification of the international law applicable to the territorial sea must, in the opinion of the Government of the United States, incorporate this unique status to the three-mile limit and record its unquestioned acceptance as a lawful limit.

This being established, there remains the problem of ascertaining the status of claims to sovereignty beyond the three-mile limit. The diversity of the claims involved bear witness, in the opinion of the Government of the United States, to the inability of each to command the degree of acceptance which would qualify it for possible consideration as a principle of international law. Not only does each proposed limit fail to command the positive support of any great number of nations, but each has been strongly opposed by other nations. This defect is crucial and, in view of the positive rule of freedom of the sea now in effect in the waters where the claims are made, no such claim can be recognized in the absence of common agreement. A codification of the international law applicable to the territorial sea should, in the view of the Government of the United States, record the lack of legal status of these claims.

While unilateral claims to sovereignty or other forms of exclusive control over waters heretofore recognized as high seas cannot be regarded as valid, this is not to say that the reasons, legitimate or otherwise, which motivate such claims should be ignored. In some cases, at least, these attempts of the coastal state to appropriate to its exclusive use large areas of the high seas seem to be based on a real concern for the conservation of the resources of the sea found in such waters. Efforts of the Commission and of the nations to settle such problems should be unceasing. But the remedy is not unilateral action in defiance of long established and sound principles of law applicable to other matters. In many cases the nations taking such action would seem to have little to gain from abandonment of such principles and reversion to a condition of anarchy on the high seas. The sounder approach would appear to be an effort to reach agreement on the principles applicable to the real matters at issue, such as conservation of natural resources and rights to fish.

1. Source: Department of State, Central Files, 320.31/1–3155. Sent to USUN in A–249, January 31, for transmittal to the United Nations. The note verbale sent to the United Nations was dated February 3.
2. Not printed. (Ibid., 320.22/9–1554)
3. For text of this report to the General Assembly, see ILC Yearbook, 1954, vol. II, pp. 140 ff.
4. For text of this judgment, see International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, 1949 (Leyden, A.W. Sijthoff’s Publishing Company, no date), p. 4.
5. Reference is to the nine divergent opinions on the question of the breadth of the territorial sea expressed during the Commission’s debates. For text of paragraph 68, see ILC Yearbook, 1954, vol. II, p. 153.