279. Memorandum From the Special Assistant for Fisheries and Wildlife (Herrington) to the Legal Adviser (Phleger)1


  • Positive U/FW Activity Vis-à-Vis the Territorial Waters Problem

During the discussion in Assistant Secretary Holland’s office on February 9, 1956 concerning plans for the coming Ciudad Trujillo conference, certain references were made to U/FW’s position and activities with respect to the territorial waters problem, which implied some lack of knowledge in this field. I am taking this opportunity to attempt to rectify this lack.

For several years prior to 1953 U/FW strongly advocated effective counter measures to the increasing incidents developing from interference by several Latin American Governments with the operation of U.S. fishing boats on the high seas. Our concern with this accelerating trend toward the expropriation of areas of the high seas found little reflection in the Department. To highlight this “galloping trend” U/FW prepared a study of this subject which was finalized in February 1953 and circulated in the Department. A copy is attached.2 For your convenience, particular attention is called to the “Conclusions” beginning on page 14 and our “Recommendations” commencing on page 15. I quote the following from the Conclusions and Recommendations:

[Page 551]


“At the present stage of events, what alternatives does the United States have to its present semi-spectator’s role? It appears that it has three, not necessarily mutually exclusive, courses of action:

  • “(1) Persuade as many of the claiming states as possible that extension of the breadth of territorial waters is against their national interests;
  • “(2) Apply economic and/or political pressures to induce individual states to agree on limits which the United States can accept;
  • “(3) Take the issues to the International Court of Justice, before the positions of the extreme claimants are further consolidated by additional claims and by joint action.

“It is obvious that no philosophy of the high seas is now extant which, of itself, convinces the non-seafaring nations that a narrow band of territorial waters is in their interest. However, some arguments to this effect do exist but require to be further developed and discreetly brought to the attention of the states concerned. This is, essentially, a long-range program which cannot be realized soon or expected, by itself, to have great influence on the trend of events. Nevertheless, it should certainly be undertaken, but in connection with alternatives (2) and (3) above.

“Alternative (2) is the most practical and the only one likely to yield a band of territorial waters anywhere near three miles in breadth and base-lines applied within narrow limits. Success of this approach depends primarily upon how far the United States is willing to go with counter pressures in order to minimize territorial and inland waters. The objective would be to obtain agreement on three miles or a little more for territorial waters, and on the use of straight base-lines only in special situations clearly justifying them, such as a highly irregular coast line, as in the case of northern Norway, and then to be drawn between relatively close points of land. It is important to achieve conservative use of straight baselines, by some concessions on breadth of territorial waters if necessary, in order to minimize inland waters through which there is no right of innocent passage.”


  • “(1) That special attention be given to developing arguments and projects for convincing the claiming states of the advantages of restricting territorial waters to a narrow coastal belt;
  • “(2) That the United States determine as expeditiously as possible the desirability and practicability of applying effective counterpressures, [Page 552] particularly against those states whose high seas claims have been implemented to the detriment of United States interests;
  • “(3) If pressures are found undesirable or impracticable, that the United States consider adjudication of the issues before the International Court of Justice. In this connection, it should be noted that any action looking to such adjudication of Ecuador’s baseline system and a ruling on the scope of innocent passage would necessitate proposing to Ecuador the negotiation of a special agreement for that purpose.”

It will be noted that we suggested, as the first and key counter-move by the United States, the use of economic and/or political pressures, measures which comprise the real substance of present Department plans for overcoming the tidal wave confronting it. Had these recommendations been taken more seriously at that time, the situation today in the matter would, to say the least, not be so crucial.

I think the record indicates that U/FW has not been asleep or lacked initiative in proposing counter measures. Our regret is that we have not been sufficiently eloquent or noisy to persuade the Department that the trend was as rapid and contrary to U.S. interests as it appeared to us. However, in extenuation, I must point out that we haven’t enjoyed a particularly responsive audience until recently.

  1. Source: Department of State, Central Files, 720.022/3–956. Confidential.
  2. This 16-page study, dated February 20, 1953, entitled “The Problem of Territorial Waters Claims”, is not printed. (Ibid.)