288. Memorandum From the Under Secretary of State’s Special Assistant
(Sanders) to the Under Secretary of
State (Herter)1
Washington, October 22,
1957.
SUBJECT
- Conference of Plenipotentiaries on the Law of the Sea: Approval of
Positions on Abstention and Contiguous Zones for Fisheries
Discussion
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
Recommendations:4
- (1)
- 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).
- (2)
- 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
Washington, October 21,
1957.
Memorandum by the Under Secretary of State’s Special
Assistant (Sanders)
SUBJECT
- Conference of Plenipotentiaries on the Law of the Sea: Procedure
of Abstention
Problem
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.
Discussion
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:
U/FW
That abstention:
- (1)
- 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.
- (2)
- 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.
- (3)
- 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.
- (4)
- 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.
- (5)
- 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.
- (6)
- 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:
- (1)
- is in derogation of the principle of the freedom of the seas
which includes freedom to fish.
- (2)
- 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.
- (3)
- 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.
- (4)
- 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:
- (1)
- 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.
- (2)
- 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.
- (3)
- 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.
Conclusion:
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)
SUBJECT
- Conference of Plenipotentiaries on the Law of the Sea: Contiguous
Zones for Fisheries
Problem:
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.
Discussion
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:
- (1)
- Work for a solution of the territorial sea problem acceptable
to the majority and which will do the least damage to the US
position.
- (2)
- 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.
- (3)
- 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.
Conclusion
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
