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

269. Memorandum From the Assistant Legal Adviser for European Affairs (Yingling) to the Legal Adviser (Phleger)¹

Washington, February 2, 1955.

SUBJECT

• Problems of Territorial Waters and Continental Shelf in Inter-American Relations

This paper is in response to your request for comments on Ambassador Drier’s memorandum entitled “Problems of Territorial Waters and Continental Shelf in Inter-American Relations”.² The background part of that memorandum will not be considered, since it is largely derived from other memoranda or position papers of this office or of the Government. The comments will be confined to that part of the memorandum on “United States Position” and the numbered paragraphs will relate to the numbered paragraphs in the memorandum beginning on page 8.³

The suggestion that the use of discreet firm pressure on Latin American Governments should be carefully considered is strongly seconded. Recently the Mexican authorities have apparently stopped seizing American shrimp fishing boats. It has been publicly reported that this change of attitude has been brought about by threats of American shrimp fishing interests to support legislation barring the sale of shrimp in the United States markets by Mexican fishing interests. If there are any official reports in the Department on this I have not seen them. However, the story seems to make sense. Also pertinent in this connection is a recent report from our Embassy in Lima in connection with the imposition of fines on two American fishing boats which put into Callao. The Embassy reported that Peru had expressed regret at the incident due especially to its possible unfavorable effect on the tuna tariff question in Washington. It is suggested that when the Latin Americans are given to understand that seizures of our boats outside the three-mile limit no longer are going to result in easy money, but are going to be met with economic retaliation or such other measures as will make such action unprofitable, seizures will stop. Where the South American countries are actually concerned with conservation, we can meet them at least half way, but where their objective is the exaction of tribute, we might well revert to a famous historic position on that subject.

1. The suggestion that the United States position should recognize the economic interest of the coastal state in the resources of adjacent high seas is concurred in and is consistent with present United States fisheries policy as this office understands it and with the statement of policy⁴ which went to the Secretary after general departmental clearance. As indicated above, it is believed that in such matters we can meet the South Americans more than half way in an effort to conclude conservation agreements.

2. The contiguous zone principle is not inconsistent with American interests or policy as we understand them. There is already fairly general recognition in international practice of the right of coastal states to exercise jurisdiction outside of territorial waters with respect to customs, fiscal and, perhaps public health matters. However, it is believed that recognition of other rights in contiguous zones is a matter which must be developed on a worldwide basis, and that while its discussion with the Latin Americans is not precluded, agreement should be reached only on a worldwide basis.

3. This paragraph requires no comment, since United States policy and United States law recognize the right of the coastal state to the resources of the continental shelf along the lines of the ILC articles. The conflict with the Latin Americans is over the status of the waters above the shelf outside of a proper limit of territorial waters. On this United States law and policy are firm and we cannot recede.

4. While the United States might ultimately be willing to accept some wider limit of territorial waters than three miles, if world agreement could be reached thereby, it is believed that thinking along this line at the present time is not only inconsistent with United States law and policy but is premature and dangerous. The policy of the executive branch of the Government, contained in a paper “National Claims in Adjacent Seas”⁵ approved in 1953 by all executive departments having an interest in the matter, is that the United States must continue to maintain its traditional position and to oppose claims to territorial waters more than three miles in breadth. This policy was confirmed by the President in a letter to Senator Daniel and others in which he stated that there had been no change in the traditional position of the United States, and that it would continue to be the policy of the United States to assert the right of its nationals to engage in fishing on the high seas outside of the three-mile limit for territorial waters.⁶ The three-mile limit of territorial waters was written into law in the Submerged Lands Act subject to the right of the Gulf coast states to establish an historic claim limited to nine miles. It is understood that the Department of Justice will take the position in a suit soon to be filed in the Supreme Court with respect to the Tidelands Oil legislation that the Gulf coast states’ claim to more than three miles is without legal basis. Until there is a change in the law and policy our position vis-à-vis other countries is clear and even a suggestion that we might be willing to abandon the three-mile position could be disastrous. Not only is that the only breadth of territorial waters which has ever had any sanction as a general rule of international law, but it is the one most consistent with the freedom of the seas which is a cardinal position of United States policy. These views have just been affirmed in the United States comments to the United Nations on the draft articles on territorial waters submitted by the United Nations International Law Commission. Once we indicate any willingness to abandon the three-mile limit with its strong legal, traditional and logical basis, we will have had it as far as any bargaining position with other nations on such matters as fisheries, conservation of natural resources, etc. is concerned.

While it may be true that “only a minority of nations would support us” on the three-mile position, if “minority” is based on a head count, the implication that this position cannot therefore be maintained does not necessarily follow. As pointed out in the statement of policy recently sent to the Secretary, the states still adhering to the three-mile rule represent not only most of the powerful states of the world, but they represent a great preponderance of its merchant shipping and naval power. It is not likely that any matter of such serious concern to these nations as freedom of the seas is going to be determined ultimately on a head count, except in a superficial sense. This is not to say that the views of the less powerful countries can or should be ignored, or that our efforts to change their position by one legitimate means or another can be relaxed. It is to say that our position cannot be abandoned simply because it is faced by a numerical majority.

5. Perhaps the most adamant adherent of the three-mile position, and the policy to support that position, is the Department of Defense. It is because of the effect which a change in that policy would have in wartime, perhaps more than any other single reason, that the United States must maintain its traditional position on the three-mile limit. It is doubted, however, that there will be any serious conflict on this aspect of the matter with the Latin American countries.

The proposal for special consultations with individual countries of Latin America as early as possible in 1955 is believed to be a good one, provided the necessary preliminary preparation is made. Such preparation would necessitate close collaboration between L and ARA. It is suggested that such conversations should have two general objectives: (a) to assure the Latin American countries that the United States is sympathetic to their desires for fisheries conservation in the waters off their coasts and is prepared to work out with them agreements concerning conservation and fishing rights; and (b) to persuade the Latin American countries to change their views concerning the breadth of territorial waters.

With respect to (a), it should be made clear in whatever way is most feasible that, while the United States recognizes their interest in the resources of the sea off their coasts and is willing to negotiate agreements which will protect the interests of all parties concerned, it is not going to pay tribute for the exercise of its right to fish in the high seas. As pointed out in our statement of policy sent to the Secretary, the International Technical Conference called by the United Nations to meet in Rome in April 1955⁷ affords the United States a major opportunity to contribute to the solution of fisheries conservation problems through international agreement. It is not known whether the position to be taken by the United States at that Conference has yet been fully developed. The major responsibility for this is U/FWs, but it is hoped that the position will be developed in conjunction with the other interested offices of the Department.

With respect to (b), it should be made clear that in the view of the United States the extreme positions taken by the Latin American countries with respect to territorial waters are without legal sanction, that they cannot win in the long run and that in the meantime they can only be harmful to good relations with the United States and with other friends of Latin America, and that they are not the right way to achieve such legitimate objectives as motivated them.

. . . . . . .

1. Source: Department of State, L/SFP Files: Lot 68 D 47, Box 1594. Confidential.
2. Document 267.
3. The numbered paragraphs in Yingling’s memorandum do not coincide with those in Ambassador Dreier’s memorandum of December 31, 1954. Apparently, Yingling used the revision of January 6, 1955, as his reference source; see footnote 4, ibid.
4. Not further identified.
5. Dated March 19, 1953; for text, see Foreign Relations, 1952–1954, vol. I, Part 2, p. 1674.
6. See the memorandum of October 29, 1953, from Under Secretary of State Smith to the President, ibid., p. 1695.
7. For text of Resolution 900 (IX), adopted on December 14, 1954, see United Nations, Official Records of the General Assembly, Resolutions Adopted by the General Assembly during Its Ninth Session from 21 September to 17 December 1954, p. 51.