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


  • Conference of Plenipotentiaries on the Law of the Sea: Approval of Positions on Abstention and Contiguous Zones for Fisheries


We are about to undertake pre-Conference diplomatic discussions in connection with the US preparations for the Conference on the Law of the Sea.

Two issues on which there are differing views within the Department and with other agencies require resolution before diplomatic [Page 575] discussions can commence. These issues concern the procedure of abstention (Tab A) and the question of contiguous zones for fisheries as a possible alternative to widespread claims for a limited extension of the territorial sea (Tab B).

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).2 It will be held in Geneva, February 24, 1958. The problems before the Conference are covered by the Eighth Report of the International Law Commission. The report deals with such major 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 …”.3


Abstention: It is recommended that pre-Conference negotiations be undertaken on the procedure of abstention as a preliminary step in determining the final position of the Government on the question (Tab A).
Contiguous Zones for Fisheries: It is recommended that, as a preliminary step in determining the final position of the Government on the question, guarded inquiries be undertaken to ascertain the attitudes of key governments towards the recognition of such zones as a substitute for widespread claims for a limited extension of the territorial sea (Tab B).5

[Page 576]

Tab A

Memorandum by the Under Secretary of State’s Special Assistant (Sanders)


  • Conference of Plenipotentiaries on the Law of the Sea: Procedure of Abstention


U/FW considers that abstention as a general rule of international law is essential to the US position on fisheries and conservation at the Conference. The Legal Adviser disagrees and recommends that the US not propose abstention at the Conference.


Abstention as previously proposed by the US consists of the concept that where the maximum sustainable yield of any stock of fish is already being obtained and its maintenance and development are dependent on an existing conservation program, states not participating in the program shall abstain from fishing such stock. Any dispute as to whether the required conditions for its application exist is subject to arbitration.

The following are the opposing views:


That abstention:

is technically and scientifically sound on its merits as a conservation measure and is the only known procedure which gives states participating in a conservation effort a strong enough incentive to develop, restore and maintain the productivity of new or badly depleted fishery resources.
is the only procedure capable of protecting US salmon, halibut and fur seal fisheries against Japanese and other threats arising from the unrestricted exercise of the freedom to fish and of meeting certain potential coastal fishery conservation problems in New England and along the US coast in general. Abstention is therefore essential if the US is to accept the principle of freedom to fish. This position does not contradict our position on freedom of the seas any more than does our acceptance of other restrictions on that freedom proposed by the International Law Commission in the interest of conservation.
has united the US fishing industry in its stand on the territorial sea issue; without abstention the industry would prevent US acceptance of any comprehensive agreement on fisheries and conservation such as proposed by the International Law Commission, and major segments of the industry would vigorously press for a considerable extension of territorial sea limits.
may be subject to the danger of abuse, such as its extension to justify claims to exclusive or closed areas on the high seas for fisheries or other purposes. However, this danger already exists since abstention has been proposed to and discussed by the ILC and in any event is no greater than that posed by other claims to extended jurisdiction based on economic and other considerations. Safeguards against abuse can be provided by including criteria specifying conditions for its application and the obligation to arbitrate.
would have the advantage of enabling the US to support the fishery articles proposed by the Law Commission to meet the conservation issue. This in itself would warrant taking the potential risk arising from reiteration of US support for abstention.
has reasonably good prospects of wide acceptance once its merits as a conservation measure and the restriction on its application are understood. What is needed is a vigorous educational campaign.6

The Legal Adviser:

That abstention:

is in derogation of the principle of the freedom of the seas which includes freedom to fish.
can be used to defeat the principle of freedom of the seas by incorporation of economic and other criteria to justify the establishment of exclusive control over areas of the high seas, not only for fisheries but for security and political purposes. This could be detrimental to US economic as well as security interests.
is so patently discriminatory in favor of the US that it is naive to expect other states to accept it as a principle of international law. Previous efforts to sell the principle have been unsuccessful.
can be developed through other means, such as the conclusion of bilateral or regional multilateral conventions.7

The above opposing views raise the following basic issues:

[Page 578]

Is abstention:

essential to protect our Northwest Pacific and other coastal fishery conservation interests to the point that the US cannot accept the historic principle of freedom to fish on the high seas without it?

Comment: While the Northwest fisheries represent important national interests, there are other although less certain methods to protect them which make unnecessary and undesirable the adoption of a stand that is obviously prejudicial to the US position on the freedom of the seas. A provision in a formal agreement on fisheries containing the substance of the abstention proposal but without the force of a rule of law, is a possibility. A conference recommendation is another. We should be prepared to fall back to such methods if we find that abstention as a general rule lacks adequate support.

susceptible of being used to defeat the position of the US on the freedom of the seas by being expanded at the conference or later on the basis of precedent to justify the setting up of exclusive or closed areas of the high seas for economic, security or political reasons?

Comment: The risks seen by the Legal Adviser are present but they can be minimized and any effort to expand abstention to include other considerations would probably have even less support than the original proposal.

so patently recognizable as a measure designed primarily to protect US economic interests rather than to promote conservation that it cannot hope to receive adequate support at the Conference?

Comment: Available evidence is not conclusive one way or the other. Pre-Conference diplomatic discussions would give a more reliable estimate of governmental attitudes. They would also provide a better basis than we now have for a decision on how to proceed in protecting our interests involved in the abstention proposal consistently with a maximum acceptance of the freedom to fish.


That pre-Conference negotiations concerning the US proposal on abstention be undertaken as a preliminary step in determining the final position of the Government on the question.

[Page 579]

Tab B

Memorandum by the Under Secretary of State’s Special Assistant (Sanders)


  • Conference of Plenipotentiaries on the Law of the Sea: Contiguous Zones for Fisheries


Should exploratory pre-Conference discussions be undertaken by the US to determine whether the recognition of limited contiguous zones for fisheries is an acceptable alternative to claims for an extension of the territorial sea? The Legal Adviser and U/LS recommend that this be done. U/FW disagrees.


The principal pressures for an extension of the territorial sea arise from claims based on alleged concern for the conservation of marine resources or from alleged or real economic needs, which include employment, food and foreign exchange. The conservation motive has led to the more extreme claims. These are unlikely to rally support at the Conference. Claims based on economic considerations are generally modest and are more likely to win widespread support for departures from the three-mile rule. They constitute the main threat to the established US position and to a conclusion at the Conference acceptable to the US.

Available information indicates that the countries that can be counted upon to remain firm in support of the three-mile territorial sea will be in a small minority at the Conference. Canada has recently left this group, proposing a twelve-mile territorial sea, or, alternatively, retention of the three-mile limit but recognition of a nine-mile contiguous zone for fisheries.

The choices for the US are three, as follows:

Work for a solution of the territorial sea problem acceptable to the majority and which will do the least damage to the US position.
Accept the probability of a failure at the Conference on this question and face the prospects of a continuation on a worsening scale of the present situation that creates tensions and conflicts between the US and many of its friends.
Face the possibility of a vote for an extension of from six to twelve miles of the territorial sea, which would be prejudicial to US [Page 580] and free world security interests and which would confront us with the situation mentioned in (2), with the added disadvantage of such a pronouncement of principle.

It is clear that alternative (1) would require some flexibility in the US position on the territorial sea question.

U/FW opposes the contiguous zone concession on the ground that it would seriously affect some important American fisheries, would not solve the basic problem, and would set a precedent which would encourage further pressures not only for wider contiguous zones for fisheries designed to “fence in” marine resources but for a wider territorial sea.

The Legal Adviser and U/LS consider the proposed inquiries a necessary step in the review of the US position in the matter. A tentative estimate is needed on whether a limited contiguous zone for fisheries, as an alternative to an extension of the territorial sea, would result in a conclusion acceptable to the majority at the Conference. While the retention in the formula of the three-mile limit may create a difficult obstacle, the proposal may be found acceptable as a compromise by countries that for economic reasons are pressing either for a modest extension of the territorial sea or, like Canada, for contiguous zones for fisheries.

In undertaking the inquiries and until a final decision is made in the matter, the traditional position of the US would be maintained.


That the US should explore the possibility of arriving at an acceptable solution to the territorial sea question and, to this end, undertake guarded pre-Conference inquiries to ascertain the attitudes of key governments toward the recognition of limited contiguous zones for fisheries as a substitute for widespread claims for a six to nine miles extension of the territorial sea.8

  1. Source: Department of State, Central Files, 399.731/10-2157. Confidential.
  2. Not printed.
  3. Ellipsis in the source text.
  4. The source text indicates that Herter approved the following recommendations on October 24.
  5. The source text contains the following statement under concurrences: “L and U/FW have approved the presentation of the positions in regard to Tabs A and B and concur in a meeting to resolve the issues.”
  6. A fuller exposition of the views of the Office of the Special Assistant for Fisheries and Wildlife is included in a “Position Paper on Abstention”, dated October 21, prepared by Herrington, Fred E. Taylor of Herrington’s staff, and William M. Terry of the Office of Fisheries and Wildlife in the Department of the Interior. (Department of State, Central Files, 399.731/10-2157)
  7. A fuller exposition of the views in the Legal Adviser‘s Office is included in Yingling’s memorandum of October 2 to Becker. (Ibid.)
  8. An unsigned draft of Tab B, dated October 10, and prepared presumably by Sanders, noted that the Department of Defense was receptive to the concept of the contiguous zone if such concession would be helpful in securing retention of the 3-mile limit at the Conference; it pointed out that the geographic bureaus of the Department of State did not object to guarded inquiries concerning the contiguous zone. (Ibid., 399.731/10–1057)