278. Letter From the Acting Secretary of State to Secretary-General of the United Nations Hammarskjöld 1

Excellency: I have the honor to refer to note No. LEG 292/9/ 01, dated August 24, 1955, from the Legal Counsel,2 concerning the report of the International Law Commission covering the work of its seventh session, May 2 to July 8, 1955.

Chapter II of the report contains provisional articles concerning the regime of the high seas, and Chapter III contains draft articles on the regime of the territorial sea. The Commission has invited comments on these drafts.

1. Provisional Articles Concerning the Regime of the High Seas

Article 1 defines the high seas and Article 2 affirms the principle of freedom of the high seas. There follow thereafter three chapters: Chapter I—Navigation; Chapter II—Fishing; and Chapter III—Submarine Cables and Pipelines.

Articles 1 and 2

The Government of the United States is in agreement with the definition of high seas in Article 1 and with formulation of the principle of freedom of the seas in Article 2.

Chapter I. Navigation

The Government of the United States believes that the articles in this chapter constitute as a whole a sound exposition of the principles applicable to problems of navigation.

Chapter II. Fishing

So far as concerns the articles in this chapter, the Government of the United States submits the following comments:

Article 26: The first paragraph of this Article would enable a State operating only occasionally in a fishery to insist that a State with a substantial operation in the same fishery enter into negotiations with it for a conservation program; failing such negotiations an arbitral procedure would be invoked. In order to remove the possibility of abuse, the United States suggests the insertion of the word “substantial” before “fishing” in paragraph 1.

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Also under this paragraph, a State could request another State to enter into negotiations even though their nationals were not engaged in fishing the same stock of fish. In the view of the United States, the right of a State to request such negotiations, and consequently to initiate the arbitral procedure contemplated in the next paragraph, should be limited to instances where their nationals are engaged in fishing the same stock of fish. It is suggested, therefore, that the words “fishing in any area of the high seas” be replaced by the words “substantial fishing of the same stock or stocks of fish in any area or areas of the high seas”, and that the words “conservation of the living resources of the high seas” be replaced by the words “conservation of such stock or stocks of fish”.

Under paragraph 2 the scope of the authority of the arbitral body in making determinations under Article 26 is not clear. For example, the role of the arbitral body with regard to conservation proposals that may have been made by one or more of the disagreeing States is not indicated. Nor is it indicated whether the arbitral body would be authorized to originate proposals for conservation measures. The United States is of the opinion that, so far as proposals are concerned, the authority of the arbitral body should be limited to consideration of conservation proposals of the parties to the dispute; and that the arbitral body should not be empowered to initiate conservation proposals or to enlarge upon any that originate with the parties.

Moreover, it would seem advisable and appropriate to specify criteria for the guidance of the arbitral body in making determinations under this Article.

In the view of the United States, the arbitral procedure contemplated by the second paragraph of Article 26 should be based on criteria specifically set forth in this Article. These criteria should be:

“If these States do not, within a reasonable period of time, reach agreement upon the need for conservation or as to the appropriateness of conservation measures proposed by any of them, any of the parties may initiate the procedure contemplated in Article 31, in which case the arbitral commission shall make one or more of the following determinations, depending upon the nature of the disagreement:

  • “(a) whether conservation measures are necessary to make possible the maximum sustainable productivity of the concerned stock or stocks of fish;
  • “(b) whether the specific measure or measures proposed are appropriate for this purpose, and if so which are the more appropriate, taking into account particularly:
    • “(1) the expected benefits in terms of maintained or increased productivity of the stock or stocks of fish;
    • “(2) the cost of their application and enforcement; and
    • “(3) their relative effectiveness and practicability.
  • “(c) whether the specific measure or measures discriminate against the fishermen of any participating State as such.

“Measures considered by the arbitral commission under paragraph 2(b) of this Article shall not be sanctioned by the arbitral commission if they discriminate against the fishermen of any participating State as such.”

Article 27: The comment of the United States on paragraph 1 of Article 26, in so far as it relates to identifying the fishing with stocks of fish as against areas, applies also to paragraph 1 of Article 27.

Likewise, the comment on paragraph 2 of Article 26 that the scope of the authority of the arbitral body should be limited and that specific criteria should be set forth, applies to paragraph 2 of Article 27. The criteria suggested for Article 26 should be incorporated in Article 27.

Furthermore, the United States believes that the operation of Article 27 should be subject to an important qualification, the principle of abstention. This principle is described in detail hereinafter.

Article 28: The United States understands the special interests of the nonfishing, contiguous coastal State to be of two principal types.

  • First, the coastal State is interested in seeing that the living resources in high seas near to its coast are maintained in a productive condition, since its nationals might at some future time desire to participate in these resources. Such an interest would be protected by assurance that an adequate conservation program is being carried forward.
  • Second, the coastal State has an interest in conservation measures applied to high seas contiguous to its territorial waters in so far as these specific measures affect, directly or indirectly, resources lying inside territorial waters. Furthermore, in most instances, a fishery resource occurring in contiguous high seas will extend into the territorial waters. For these reasons the nonparticipating coastal State may have an interest in the specific conservation program referred to above. The interests described in this paragraph can be safeguarded by giving the coastal State, upon satisfactory showing of a special interest, a right to participate fully in the conservation program.

Article 30: The United States understands that this Article is intended to safeguard the interests of the nonfishing States whose nationals may depend on the products of the fishery or who might some day desire to participate in fishing the resource. Specifically, [Page 545] the interest is in the continued productivity of the resource and should be exercisable through assurance that such States have an opportunity to challenge the fishing States as to the adequacy of the over-all conservation program for the resource, as distinguished from a voice in the specific conservation measures. In this connection, specific criteria should be established for the guidance of the arbitral body, as well as language which would clearly except from challenge the programs of States within their own boundaries, for example, the erection of dams which might affect the runs of anadromous fish.

The United States suggests that the words “If no agreement is reached within a reasonable period, such State” in the second paragraph of Article 30 be replaced by the words “If satisfactory action is not taken upon such request within a reasonable period, such requesting State …. “3 The United States also suggests that the following criteria be incorporated in this Article:

“The arbitral commission shall, in procedures initiated under this Article, reach its decision and make its recommendations on the basis of the following criteria:

  • “(a) whether scientific evidence shows that there is a need for measures of conservation to make possible the maximum sustainable productivity of the concerned stock or stocks of fish; and
  • “(b) whether the conservation program of the States fishing the resource is adequate for conservation requirements.

“Nothing in this Article shall be construed as a limitation upon the action a State may take within its own boundaries.”

Article 31: With respect to the appointment of an arbitral commission when the parties have not agreed upon a method of settlement, the United States would suggest the following modifications:

The Commission should be composed, in any combination, of seven members well qualified in the legal, administrative or scientific fields of fisheries, depending upon the nature of the dispute.

Three of these members should be from countries neutral to the dispute and might be appointed, at the request of any State party to the dispute, either by the Secretary-General of the United Nations or as follows: one, who shall act as chairman, by the Secretary-General of the United Nations; one by the President of the International Court of Justice; and one by the Director-General of the Food and Agriculture Organization.

If the dispute involves only two States, each should appoint two members of the arbitral commission. If there is more than one State on either side of the dispute, each side, irrespective of the number of [Page 546] States on that side, should appoint a total of two members of the arbitral commission. If either side fails to appoint its members within three months of the date of the original request for settlement, these appointments should be made by the Secretary-General of the United Nations.

Under this proposal, a situation could conceivably arise, for example, under Article 26, where the dispute would involve a divergence of views of three or more States, thereby creating an issue not clearly divisible into two sides. The opportunity to initiate an arbitral procedure should not be defeated by this fact. In the view of the United States, it is essential that any State should be enabled to challenge, bilaterally, in turn if necessary, any of the other States in disagreement.

Article 33: The determinations of the arbitral commission should be by a simple majority of four votes and should be based on written or oral evidence submitted to it by the parties to the dispute or obtained by it from other qualified sources.

Additional Comments: The United States desires to call to the attention of the International Law Commission the absence from the draft articles of two propositions which the United States feels are essential to their completeness. The first of these concerns a definition of the term “conservation” as applied to the living resources of the sea. Since the principal purpose of these articles is to codify a set of rules to guide States in their relations with one another in regard to the conservation of such resources and it is proposed that States accept certain responsibilities and commitments in order to assure adequate conservation regimes, it would be essential to define specifically the key term “conservation” in the context of the articles. The Rome Fisheries Conference considered this matter and concluded that the “principal objective of conservation of the living resources of the seas is to obtain the optimum sustainable yield so as to secure a maximum supply of food and other marine products” and that “When formulating conservation programmes, account should be taken of the special interests of the coastal State in maintaining the productivity of the resources of the high seas near to its coast.” It will be noted that the “special interest” aspect of this conclusion has been worked into and given expression by the proposed articles themselves, thus obviating any necessity for defining or clarifying that particular term. The following draft article would cover the balance of the definition of conservation for the purpose of the International Law Commission articles on high seas fisheries.

“For the purpose of these articles, conservation of the living resources of the sea is defined as making possible the optimum [Page 547] sustainable yield from those resources so as to secure a maximum supply of food and other marine products.”

The second proposition relates to situations where States have, through the expenditure of time, effort and money on research and management, and through restraints on their fishermen, increased and maintained the productivity of stocks of fish, which without such action would not exist or would exist at far below their most productive level. Under such conditions and when the stocks are being fully utilized, that is, under such exploitation that an increase in the amount of fishing would not be expected to result in any substantial increase in the sustainable yield, then States not participating, or which have not in recent years participated in exploitation of such stocks of fish, excepting the coastal State adjacent to the waters in which the stocks occur, should be required to abstain from participation.

This proposed rule takes into account the fact that under the stated conditions the continuing and increasing productivity of the stocks of fish is the result of and dependent on past and current action of the participating States and that the participation of additional States would result in no increase in the amount of useful products. Rather than increasing production the advent of additional States is almost sure to stimulate the abandonment of such conservation activities through removing the incentive for maintaining expensive and restrictive conservation programs. In fact, such advent very probably would encourage the idea that if the resource declined to a less productive level, it would offer less inducement to distant States. In recognition of a “special interest” on the part of a coastal State, the adjacent coastal State could be excepted from the operation of the rule. Strict and precise criteria should be laid down in the qualifications of a fishery for the rule, and questions arising as to qualifications made arbitrative. These criteria should include (a) whether the stock is subject to reasonably adequate scientific investigation with the object of establishing and taking the measures required to make possible the maximum sustainable yield; (b) whether the stock is under reasonable regulation and control for the purpose of making possible the maximum sustainable yield, and whether such yield is dependent upon the program of regulation and control; and (c) whether the stock is under such exploitation that an increase in the amount of fishing will not reasonably be expected to result in any substantial increase in the sustainable yield.

Chapter III. Submarine Cables and Pipelines

The Articles in this chapter appear to state principles which are, generally speaking, already applied by the United States. The Government [Page 548] of the United States, however, would question whether it is necessary to include in the draft the specific requirement in Article 37 that every State shall regulate trawling. In the view of the United States, it would be preferable that this Article, instead of being a mandate, be a recommendation, and that the recommendation be couched in general terms and not single out trawling gear.

2. Articles on the Regime of the Territorial Sea

This draft is organized in three parts: Chapter I—General; Chapter II—Limits of the Territorial Sea; and Chapter III—Right of Innocent Passage.

Chapter I. General

The Government of the United States has no particular comments to make with respect to the Articles in this chapter.

Chapter II. Limits of the Territorial Sea

The Government of the United States has the following comments to make with respect to Articles 3, 5 and 7:

Article 3. This Article concerns the breadth of the territorial sea. The Government of the United States agrees with paragraph 1 of this Article as a statement of fact. However, the Government of the United States does not agree with it as a proposition of law, except in so far as it recognizes that the traditional limitation of territorial waters is three miles. For the reasons indicated in its previous comments, the Government of the United States considers that there is no valid legal basis for claims to territorial waters in excess of three miles. Since it considers that claims in excess of three miles are not justified under international law a fortiori it agrees with the statement of law in the second paragraph that international law does not justify an extension of the territorial sea beyond 12 miles. Consistently with these views the United States is also in agreement with the statement of law in the third paragraph that international law does not require States to recognize a breadth of territorial waters beyond three miles, i.e., that it does not require recognition of claims based on unilateral determination and lacking common acceptance. The United States practice has been uniformly consistent with this position as witness its formal protests against claims of foreign governments to territorial waters in excess of three miles, except where such claims could be justified on an historical basis.

Article 5. This Article deals with straight base lines. The Government of the United States was in agreement with the draft of this Article previously adopted by the Commission. In the view of the Government of the United States the Article as now drafted is too [Page 549] broad and lacks the safeguards which were present in the former draft. The removal of the 10-mile limit on the length of the base lines which may be used, and the removal of the requirement that the base lines should not be further away from the coast than 5 miles, open the way for abuses of a principle which should be restricted to extraordinary cases as was made clear by the International Court of Justice in the Fisheries Case between the United Kingdom and Norway.

Furthermore, it seemed to be implicit in the previous draft that, aside from historical reasons, the only circumstances which would justify use of straight-base lines were a deeply indented coast or islands in its immediate vicinity. With reference to the latter the previous comments of the United States are apposite.

Although it appears to have been the intention of the Commission to predicate this article on the decision of the International Court of Justice in the Fisheries Case, the Article now drafted appears to go beyond that decision in that it recognizes as grounds for using straight base lines either a deeply indented coast or the presence of islands in its immediate vicinity or the existence of peculiar economic interests, whereas the Fisheries Case was not based on any one of these factors but on a combination of factors.

With respect to the sea areas lying within straight-base lines, Article 5 proposes that they must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. This amounts to no more than saying that water cannot be treated as inland unless such treatment is justified, an impractical and completely circular standard.

With the provision that base lines shall not be drawn to and from drying rocks and drying shoals the United States is in agreement.

Article 7. This Article is concerned with bays. The Government of the United States cannot agree to the proposal in paragraph 3 that the entrance to bays not exceeding 25 miles could be closed by a straight line drawn across their mouth. The Commission indicated in its comments on this paragraph that the 25 miles length was chosen because it was slightly more than twice “the permissible maximum width of the territorial sea as laid down in paragraph 2 of Article 3.” Even if it agreed that the permissible width of the territorial sea could be 12 miles, which it does not, this Government does not see why it necessarily follows that the opening of a bay susceptible of closing by a straight line should be 25 miles.

It would seem to this Government that since there has been no serious objection in the past to the 10-mile principle that this limit should be maintained.

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Chapter III. Right of Innocent Passage

The Government of the United States has no specific comments to make with respect to the Articles in this chapter.

Accept [etc.]

For the Acting Secretary of State:

Herman Phleger 4
The Legal Adviser
  1. Source: Department of State, Central Files, 320.31/3–956.
  2. Not printed. (Ibid., 320.31/9–255)
  3. Ellipsis in the source text.
  4. Printed from a copy that bears this typed signature.