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

287. Memorandum From the Under Secretary of State’s Special Assistant (Sanders) to the Under Secretary of State (Herter)¹

Washington, September 27, 1957.

SUBJECT

• Authority to Undertake Diplomatic Discussions on the Conference on the Law of the Sea; Approval of Various Positions

Discussion

Authorization is requested to undertake pre-Conference diplomatic discussions as part of the US preparations for the Conference on the Law of the Sea. It is proposed at the same time to ascertain the attitudes of certain key governments toward a Canadian and similar suggestions to recognize a limited contiguous zone for fisheries as an alternative to an extension of the territorial sea. Approval is also requested to present in the course of the diplomatic discussions the position on arbitration (Tab A)² relative to the fisheries and conservation problems. In connection with the same problems, the interested offices of the Department have been unable to agree on a position on abstention (Tab B) on which a decision is requested.³

The subject Conference was provided for in a United Nations General Assembly Resolution which was sponsored by the United States and 22 other countries (Tab C). It will be held at Geneva, February 24, 1958.

The problems before the Conference are covered by the Eighth Report of the International Law Commission. The report contains 73 articles, which comprehensively cover the law of the sea in time of peace, including such controversial issues as the limits of the territorial sea, freedom of the high seas, international fisheries, and rights over the continental shelf. The Conference is to examine the law of the sea “taking account not only of the legal but also of the technical, biological, economic, and political aspects of the problem ….”⁴ The results of the Conference’s deliberations may be embodied in “one or more international conventions” or “other instruments”.

Pre-Conference diplomatic discussions are considered essential to achieve the widest possible understanding and acceptance of the US positions on the most important issues to come before the Conference. Among the problems of the greatest concern to the US are those which arise from wide-spread attempts to extend the territorial sea as a means to establish preferential or exclusive rights to fish or to control fisheries for conservation purposes. For this reason the first round of diplomatic discussions would concentrate on these problems. The articles of the Commission’s report on fisheries and conservation appear generally acceptable to the United States and should be helpful in offering alternative solutions to some of the problems. The Commission’s proposals raise, however, the policy questions for the United States described in Tabs A and B.

Other issues will be presented for decision as the US preparations progress. One of the most important of these concerns the position of the United States on the related questions of territorial sea limits and contiguous zones for fisheries. For purposes of the first round of the recommended diplomatic discussions, the traditional position of the US on these questions—of three miles for the territorial sea with no contiguous zones for fisheries—will be maintained. However, as a step in reviewing this position, it is proposed that American diplomatic posts in certain key countries be instructed to inquire concerning the attitudes of the Governments toward the recognition of a limited contiguous zone beyond the territorial sea within which the coastal state could exercise exclusive control over fishing. It is hoped that on the basis of information received, the Department will be able to determine the support which such a proposal might receive as a substitute measure for wide-spread claims for a limited (6 to 12 miles) extension of the territorial sea. These claims are generally based on economic considerations and probably represent the greatest threat to the US position on the territorial sea.

Recommendation

That you authorize the diplomatic discussions and approve the attached positions.⁵

1. Source: Department of State, Central Files, 399.731/9–2757. Official Use Only.
2. Tabs A–C were not found attached.

3. In a memorandum to the files dated October 2, Fisher Howe, Director of the Executive Secretariat, defined the positions taken by the interested offices of the Department concerning the major issues to be discussed by the Conference on the Law of the Sea in February 1958, as follows:

   • “3. The issue of arbitration and criteria is agreed within the Department and should cause no difficulty.
   • “4. The issue of ‘abstention’. This relates to the desire of the Fisheries people [i.e., U/FW], opposed by L, to establish as a matter of international law the illegality of fishing in areas where, by long term agreements, there has been a mutual abstention from fishing.
   • “5. The issue of ‘contiguous rights’. This involves the position on the area between the three-mile limit and the twelve-mile mark in territorial seas and the fishing rights related thereto. Apparently L is prepared to work out a fall-back position and believes that this is essential if we are not to lose on the whole matter; U/FW is not willing to concede that we should even probe to see whether a fall-back position is feasible.” (Department of State, Central Files, 399.731/10–257)

4. Ellipsis in the source text.
5. Concurrences of several offices in the Department of State, and of the Departments of Defense and Interior are indicated on the source text, but not initialed. Nor is there any indication of action taken by Under Secretary Herter. It is clear, however, from Sanders’ memorandum, infra, that the Under Secretary approved the recommendation.