275. Letter From the Acting Assistant Secretary of State for Congressional Relations (Kirlin) to the Director of the Bureau of the Budget (Hughes)1

Dear Mr. Hughes : Reference is made to the letter from Mr. Jones of September 21, 1955,2 requesting the views of the Department concerning a proposal by the Secretary of Defense that, subject to the approval of the President, certain areas of the Outer Continental Shelf be restricted from exploration and exploitation pursuant to the provisions in Section 12(d) of the Outer Continental Shelf Lands Act of August 7, 1953 (67 Stat. 462) which provides in part as follows: [Page 533]

“The United States reserves and retains the right to designate by and through the Secretary of Defense, with the approval of the President, as areas restricted from exploration and operation that part of the outer Continental Shelf needed for national defense; …3

(1)

In Section 2(a) of the Outer Continental Shelf Lands Act, the Outer Continental Shelf is described as the submerged lands lying seaward of the three-mile limit and “of which the subsoil and sea bed appertain to the United States and are subject to its jurisdiction and control”. Section 2(a) appeared in exactly the same words in the Senate bill which eventually became the Outer Continental Shelf Lands Act. In connection with this section, the Senate Committee on Interior and Insular Affairs stated in its report:

“The Continental Shelf is defined as the extension of the land mass of the continents out under the waters of the ocean to the point where the continental slope leading to the ocean bottom begins. This point is generally regarded as a depth of approximately 100 fathoms, or 600 feet, more or less”. Report No. 411, 83d Cong., 1st Session 4 (1953)

It will also be noted that, when the United States first claimed jurisdiction and control over the resources of the continental shelf in the Presidential Proclamation of September 28, 1945, the Press Release accompanying the proclamation stated:

“Generally, submerged land which is contiguous to the continent and which is covered by no more than 100 fathoms (600 feet) of water is considered as the continental shelf”.4 Senate Report No. 411, 83d Cong., 1st Session 53 (1953).

It is thus clear that in proclaiming the jurisdiction and control of the United States in the continental shelf adjacent to its coast, this Government meant, both in 1945 and in 1953, to claim jurisdiction and control of submerged lands up to the 100 fathom line.

A large number of the areas which the Secretary of Defense proposes to restrict from exploration and exploitation extend beyond the 100 fathom line. To the extent that they do they appear not to be within the purview of Section 12(d) of the Act and consequently not appropriate for designation by the Secretary of Defense thereunder.

The position adopted by this Government with respect to the 100 fathom line has become an accepted feature of the continental shelf principle as it is now understood in international law. It has [Page 534] been embodied in the drafts prepared on this subject by the International Law Commission of the United Nations.

One of the most serious difficulties with which the United States has to cope in this field is the attempt by a number of states to claim, by invoking the continental shelf principle, rights which have no direct genuine relationship to it. An order purporting to extend the control and jurisdiction of the United States beyond the edge of the continental shelf could only serve to reinforce the contention of these states that they do not have to limit their claims to the continental shelf. It would clearly weaken our own position, as well as the strength of the international support which our position presently receives.

Yet, these adverse consequences would be incurred without any prospect of securing a worthwhile advantage in return; for the exploitation of resources beyond the edge of the continental shelf is generally not considered, so far as can be foreseen at present, to be a practical possibility, and hence there is no need to prohibit such exploitation.

(2)

The designation of restricted areas in those portions of the continental shelf where there is a boundary problem with adjacent states seems premature and could lead to undesirable controversies.

The Presidential Proclamation of September 28, 1945, stated with respect to boundary problems which might arise in connection with claims relating to the continental shelf:

“In cases where the continental shelf extends to the shores of another state, or is shared with an adjacent state, the boundary shall be determined by the United States and the state concerned in accordance with equitable principles”. 59 Stat. 884.

No action has yet been taken to determine the boundaries between our continental shelf and that of Canada and Mexico. So long as the termini of our boundaries with these states have not been extended from the coast to the edge of the continental shelf, it is advisable to restrict from exploration and exploitation only such areas as are sufficiently remote from the boundary region to be clearly within our jurisdiction and control.

In the present order, however, certain of the areas or parts of the areas which have been designated as restricted are located in boundary regions and may not be within our jurisdiction and control. If the eastern terminus of the United States-Canadian boundary were extended to the edge of the continental shelf, the eastern edge of Area No. 1 and the whole of Area No. 6 in the proposed order might well be on the Canadian side of the shelf. And Area No. 76 appears to embrace portions of the continental shelf [Page 535] belonging to Mexico since they are located far south of the western terminus of the United States-Mexican boundary.

Moreover, a special problem is raised by Areas No. 49 and No. 50. Their eastern edge embraces a portion of what appears to be a submerged area of a depth of 100 fathoms or less, separated from the Florida Keys in the North and from Cuba in the South by channels deeper than 100 fathoms. The status of this area is by no means clear, but Cuba might conceivably also claim some jurisdiction and control over it.

(3)
What has been said above relates solely to the proposed restrictions on the exploration and exploitation of the outer continental shelf as shelf and is not to be taken as the expression of any views as to the use of the superjacent seas and air space for the defense purposes indicated. It has been the position of this Government since the Presidential Proclamation of 1945 that the rights of a state in the continental shelf cannot affect the legal status of the superjacent waters as high seas or the legal status of the air space above them, a position which has been endorsed by a large number of nations and by the International Law Commission of the United Nations as representing a correct statement of applicable international law. In order to avoid any implication that the defense activities planned in the superjacent waters or air space necessarily rest on claims to the continental shelf it would seem preferable to designate the restricted areas simply by their geographical limits and without reference to specific military purposes.
(4)
The Department of State believes that it is not in the interest of the United States, from the standpoint of its foreign relations, for the President to approve the proposed order as it is now drafted.

Sincerely yours,

Florence Kirlin 5
  1. Source: Department of State, Central Files, 711.022/9–2155. Limited Official Use. Drafted by Yingling and Joseph M. Sweeney.
  2. Not printed. (Ibid.)
  3. Ellipsis in the source text.
  4. The full text of the White House press release is printed in Foreign Relations, 1945, vol. II, p. 1528.
  5. Printed from a copy that bears this typed signature.