290. Instruction From the Acting Secretary to All Diplomatic Missions 1

CA–4339

SUBJECT

  • International Conference of Plenipotentiaries on the Law of the Sea

REFERENCE

  • CA–10106 of May 29, 1957

With further reference to the Department’s circular instruction of May 29, the Secretary General of the United Nations has now informed the Governments invited to the Conference that Geneva has been selected as the site of the meeting, and that the opening date will be February 24, 1958.2

For the Embassy’s reference there is enclosed (Enclosure A), the Eighth Report of the United Nations International Law Commission.3 This report will be the basis of the deliberations of the [Page 585] Conference. The report contains 73 articles which relate to the law of the sea in time of peace. United States preparations for the Conference are being made in terms of the articles of the report and of the special problems to which they give rise.

As an important aspect of these preparations the Embassy is requested to discuss with appropriate high-level officials of the Government the problems referred to in the present instruction.

The problems to be discussed relate to the question of the breadth of the territorial sea and the related questions of the conservation of marine resources and international fishing rights. These problems are expected to be the most controversial at the Conference and they pose the most difficult questions of policy for the Government of the United States. The Department has two principal objectives in undertaking the present round of diplomatic discussions. The first is to bring about the widest possible understanding of the United States approach to the conservation and fisheries questions. The problems involved are highly technical and governmental personnel in many countries are not familiar with them. To assist the Embassy in its discussion of some of the more difficult questions, background and explanatory memoranda are enclosed which, as indicated later, may be made available to foreign officials. The second objective of the discussions is to obtain information on governmental attitudes on the procedure of abstention and on contiguous zones for fisheries as a preliminary step in determining the final position of the United States on these questions.

It is considered highly desirable that the principal problems covered by the present instruction be discussed in the first instance by the Chief of Mission with the Foreign Minister.

At the outset of the discussions with the appropriate officials of the Government, the Embassy may indicate that these conversations are being undertaken pursuant to the recommendation contained in the General Assembly Resolution (see paragraph 11 of Enclosure 14 to CA–10106 of May 29, 1957) that the Governments “utilize the time remaining before the opening of the Conference for exchanges of views on the controversial questions relative to the law of the sea”.

Background

The problems concerning the breadth of the territorial sea originate in the main in competing national interests in the resources of the sea of states adjacent to fishing grounds and non-adjacent [Page 586] fishing states. Two separate sets of problems are apparent: Those that arise from the action of the coastal state for the conservation of marine resources and those that arise from such action on the basis of alleged or real economic dependence on fishing. The requirements of conservation have been advanced as the basis for some of the more extreme claims, such as the 200 mile claims of Chile, Ecuador and Peru. This approach is frequently associated with strong or ultranationalistic reaction to the activities of the highly mechanized industries of the fishing states. The alleged economic dependence has led to more modest demands involving claims of exclusive fishing rights in waters adjacent to the coastal state or to limited extensions of the territorial sea. In both instances, the coastal states have attempted to accomplish their objectives through unilateral action either extending the limits of their territorial sea beyond three miles or claiming exclusive or special purpose jurisdiction to exploit or control fisheries in contiguous areas beyond three miles. It is expected that they will attempt to have their claimed right to do so recognized in the conclusions of the Conference.

The extremists will find themselves in a small minority at the Conference. These are the countries that claim a very broad extension of the territorial sea; they generally argue that the three-mile rule is obsolete and the coastal state has the right to determine on its own the breadth of its territorial sea. It may be that these countries will attempt at the Conference to develop support by other means than a broad extension of the territorial sea as such to achieve their objectives. These means would most likely be: (a) recognition of the right of the coastal state to take unrestricted unilateral action for conservation purposes; (b) recognition of broad “contiguous zones” for fisheries or conservation. As a last resort some of them may join the moderates in pressing for a limited extension of the territorial sea, with the economic factor as the main supporting consideration. The principal danger to the United States position will arise at the Conference from the possibility of a majority developing in support of such a position.

The Territorial Sea Issue

General

There are compelling reasons, in the view of the United States, for retaining the three-mile territorial sea limits. The United States considers that an extension of the territorial sovereignty of the individual states would be detrimental to the general interest of the international community and to the security of the free world. It is, moreover, of the view that such an extension is an impractical and unrealistic means by which to attempt to achieve the objective of [Page 587] the conservation of fisheries resources and is an overly drastic and sweeping approach to the problems raised by the economic factor. The United States is convinced that alternative solutions can be found to the problems that have created pressures for a broader territorial sea belt.

The views of the United States in support of the three-mile territorial sea are briefly stated in Enclosures B and C.5 In summary they comprise the United States views on the legal issue, on the general interest of maximum freedom for navigation and maritime trade and commerce involved in the maintenance of the three-mile territorial sea belt, and on the factors of the security of the free world that support the same conclusion. The alternative solution, as against an extension of the territorial sea, to the objective of conservation is described below. The special problems created for the United States by the pressures for an extension of the territorial sea arising from the economic factor are discussed at the end of this instruction.

Legal

While the United States position on the legal question has been repeatedly stated in recent international discussions, the principal elements of the position have been briefly restated in Enclosure B as background information for the Embassy and for such use as the Embassy may find it necessary and appropriate to make of them. There are many Governments, particularly among the newer ones, that have not fully or actively participated in discussions on the legal merits of the issues involved. The timely exposition of United States views on these issues could be useful in some countries in bringing about a better understanding of the traditional United States position on the question of law.

This aspect of the United States position should not, however, receive undue stress during the pre-Conference discussions. With many Governments the legal considerations will carry little or no weight and in any event will not be as persuasive as others advanced by the United States in determining attitudes at the Conference. The general considerations and those which relate to the security of the free world referred to in the following section and in Enclosure C are in the latter category. They state why it is in the national interest of the individual states to support the three-mile belt for the territorial sea.

[Page 588]

Security

In connection with Enclosure C entitled “Factors which Support the Maintenance of a Narrow Breadth of the Territorial Sea”, it will be recalled that substantially similar considerations were presented by the teams of naval officers which visited a number of countries in November of last year (CA–316 of October 26, 19566). The Department considers that these visits served a worthwhile purpose and, in many instances, developed an interest in the military and strategic advantages of the three-mile limit which had not been previously considered. The Department desires to keep the United States position and its supporting considerations on this crucial matter fresh in the minds of officials of friendly governments. Obviously, the considerations developed in this paper must be used on a selective basis. Separate instructions will be issued concerning this matter.

Conservation of Marine Resources

General United States Position and the ILC Fisheries Articles

With respect to the conservation issue, the United States will attempt to demonstrate that it has a sympathetic and constructive position in the matter. The United States has been the strongest and most consistent supporter of the conservation of marine resources. It is convinced that the objective in its major aspects cannot be achieved by unilateral action but only by international cooperation based on tested conservation experience.

The United States desires to develop an understanding of the technical and scientific aspects of the conservation problem which support the basic approach to the problem in the ILC recommendations. This approach is that the objective of conservation can be achieved primarily through international cooperation rather than through unilateral action of the coastal state or through an extension of the territorial sea. A memorandum for the Embassy’s use in discussing this problem and which may be made available to foreign officials is enclosed (Enclosure D).7

While the International Law Commission was unable to agree on a definition of the breadth of the territorial sea (see article 3 of its report) its recommendations on conservation were developed in detail. They are contained in articles 49-60 of the report. The [Page 589] Commission’s recommendations incorporate substantial elements of proposals made by the United States and of conclusions supported by the United States of the International Technical Conference on the Conservation of the Living Resources of the Sea, held in Rome in 1955. The Commission’s proposed articles are therefore generally acceptable to the United States. However, in their present form they raise two important problems of omission, namely:

Arbitration and Criteria: The Commission’s proposed articles contemplate agreement on rights over fisheries of the high seas going beyond existing international law. They thus provide for acceptance by states of an obligation to cooperate in the conservation of high seas fisheries, including a commitment to observe, in certain circumstances and under certain conditions, conservation regulations adopted by the coastal state and other states. That is to say, States would accept potential restrictions on their freedom to fish, one of the freedoms of the high seas, in the interest of international cooperation for conservation. It is evident that many states, including the United States, cannot accept such restrictions in the absence of an obligatory procedure for the settlement of disputes as to whether the circumstances and conditions specified exist. Although the Commission’s proposal of a procedure for compulsory arbitration recognizes this fact, the United States contemplates proposing certain modifications to strengthen the procedure and to insure that the criteria for determining the circumstances and conditions mentioned are included in the terms of reference of the arbitral tribunal. There is enclosed (Enclosure E)8 an explanatory memorandum on this question which may be left with foreign officials. For the Embassy’s information there is also enclosed (Enclosure F)9 a classified memorandum on this subject.

Abstention: The United States also contemplates at this stage of its preparations proposing at the Conference that the procedure of abstention with respect to certain developed fisheries be incorporated in any conclusions on conservation reached by the Conference. The United States looks upon this procedure as one which provides incentive to develop, restore and maintain the productivity of fisheries resources and therefore as a sound conservation measure worthy of general application. The United States abstention proposal is little understood by most countries. It is our hope that pre-Conference diplomatic discussions will not only promote understanding and acceptance of the proposal but reveal the strength of the opposition [Page 590] to it, and whether prospects for a wide acceptance can be improved. The final United States position on this matter will depend on the results of the pre-Conference discussions. There is enclosed (Enclosure G)10 an explanatory memorandum on this question which may be left with the foreign office officials with whom the subject is discussed. For the Embassy’s information there is also enclosed (Enclosure H), a classified memorandum which presents the considerations which have determined the United States proposal on abstention.11

The Economic Factor

The United States has heretofore maintained that the problem of the exploitation of the resources of the sea arising from economic considerations can be met by special agreements suited to the particular circumstances of each case rather than through a general rule extending the territorial sea or the application in the field of fisheries of the principle of contiguous zones. This position should be maintained during the diplomatic discussions undertaken pursuant to this instruction.

For the information of the Embassy, in view of the direct threat it will present to the United States position at the Conference, this problem is now under interdepartmental review. A separate instruction on this question will be sent to all American diplomatic posts.

Herter
[Page 591]

Enclosure H12

MEMORANDUM ON THE U.S. POSITION ON ABSTENTION IN RELATION TO THE ILC FISHERY ARTICLES

I. Definition

The United States has proposed to the ILC that in addition to the limitations which the ILC would place upon freedom of fishing on the high seas in the interest of fisheries conservation, an additional limitation, generally termed the “concept of abstention”, should be placed upon the freedom for the same reasons. The concept provides that when a stock of fish under exploitation by the nationals of one or more states meets the following requirements:

(i)
the stock is subject to adequate scientific investigation with the object of determining and taking the measures required to make possible the maximum sustainable yield;
(ii)
the stock is under such regulations by the fishing states as are required to make possible the maximum sustainable yield;
(iii)
the stock is under such exploitation that an increase in the amount of fishing will not be expected to result in any substantial increase in the sustainable yield; and
(iv)
the current yield is dependent upon the conservation program;

then the states whose nationals are not fishing the stock or have not done so in the recent past, excepting the coastal state adjacent to the waters in which the stock occurs, shall abstain from fishing the stock. In the event of disagreement as to whether a stock of fish qualifies for abstention, the arbitral procedure contemplated by the ILC may be utilized.

II. Origin of Abstention

Abstention had its origin in our northwest fisheries. In this area, the Government of the United States and Canada working independently in some cases and together in others have, through the expenditure of extensive effort and funds for research and strict regulation of their fishermen preserved the great salmon and halibut resources of the northwest from reduction to the minimum economic level of productivity, as happened in similar situations elsewhere, and are in the process of restoring these resources to their maximum sustainable productivity. The incentive for carrying out these extensive activities has been preservation of an important source of food for our people and increased returns to our fishermen. During the [Page 592] 1930’s Japanese fishermen engaged in exploratory work for salmon in Bering Sea, preliminary to extensive exploitation of these stocks of fish by Japanese fishermen. Following strong representations by the United States, Japan agreed to restrict her fishermen from this area. Had the Japanese embarked upon the exploitation of these resources, the incentive for the United States and Canada to continue the conservation program would, for all practical purpose, have been removed.

Following World War II the question of Japanese fishing in the Northeastern Pacific once more became a problem of very considerable importance. Various proposals were considered within the U.S. to keep the Japanese from operating in the Eastern Pacific but none was found to be acceptable to the various segments of the United States fishing industry and the United States Government. Finally a proposal for abstention similar in substance to the above definition but less restrictive in conditions, was proposed as a concept that would cover the stocks of fish restored and maintained by United States and Canadian action, but otherwise not restrict Japanese fishing in the same area. This proposal, after much study within the United States Government, was finally approved as the basis for developing a United States position for negotiation with Japan. In informal discussions with Canada prior to the negotiations, the proposal was accepted by that Government. It was the key element in the United States position at the Tripartite Fisheries Conference in Tokyo (1951). At that Conference abstention was accepted as an essential part of the North Pacific Fisheries Convention and has been in operation since that Convention entered into force.

III. Development of a United States Position on ILC Fishery Articles

The ILC, since its establishment in 1947, has been engaged in the codification and progressive development of law of the sea, including a series of articles on fisheries. Prior to 1955 the United States took no position on preliminary drafts of the ILC fisheries articles. United States fishery interests are so diverse, ranging from one extreme, e.g. tuna, shrimp, desiring complete freedom to fish everywhere, to the other extreme, e.g. salmon, halibut, which would close broad areas to fishing by other countries, that the United States had not been able to develop an over-all position. As the ILC progressed with its draft articles on fisheries in directions contrary to United States interests, it became increasingly important that the United States exercise its influence in shaping the ILC articles to avoid being presently faced with a completed set of articles contrary to its basic interests. During 1952-54 U/FW convened a series of meetings with advisers from all segments of the United States [Page 593] fishing industry concerned with the problem. Agreement finally was developed on a series of proposals on fisheries. These proposals stemmed in large part from United States experience in successful cooperation with other countries in solving high seas conservation problems through international conventions and commissions.

In these proposals abstention occupies a key position. It meets the problems posed by salmon, halibut and fur seal. It meets certain potential coastal problems in New England and along our coast in general and does not damage the U.S. position with regard to tuna, shrimp and New England otter trawling. It is rational and based on sound biological and conservation concepts. It is supported by all major fisheries interests, by the Fish and Wildlife Service, and U/ FW.

Abstention is in the best interests of the United States fishing industry whose over-all interests are not served by complete freedom of fishing on the high seas. While such overseas fisheries as the shrimp fishery and the tuna fishery have in recent years been much in the public eye because of the threats to their operations and prosperity, it is coastal fisheries which make up the greater part of the United States industry. Some 75 per cent of United states fishery production comes from waters relatively close to the U.S. coast from stocks of fish most of which are confined to nearby coastal waters. It is unlikely that this percentage will change substantially in the foreseeable future. Freedom of the seas offers little to these coastal fisheries. Indeed, their interests are best protected by extension of jurisdiction. Although a relatively modest extension of the territorial sea or the creation of a narrow contiguous zone would offer protection for some of these coastal fisheries, it would offer no real solution to the conservation problem which faces the halibut and salmon fisheries of the Northwest, the trawl fisheries in New England and other stocks which extend beyond the narrow coastal zone. The abstention principle does offer protection to these, and it does this by dealing with stocks of fish, not areas of the sea.

Abstention is not discriminatory. On the contrary, it is proposed for general application in a uniform manner and would apply to large states as well as small states if the circumstances for its application exist. The fact that comparatively few States have as yet advanced their conservation programs to the point where abstention would apply does not detract from the soundness of the concept as a conservation procedure. As additional countries advance in fisheries conservation the situations where abstention will apply will increase. The high seas fisheries of the world are by no means static.

[Page 594]

IV. Progress in Promoting the United States Position on Abstention

At the 1955 Rome Conference on Conservation of the Living Resources of the Sea the United States advanced the concept of abstention as a general rule for certain situations concerned with international conservation of fisheries. The United States Delegation to that Conference had instructions to promote abstention “as a principle”.

The rationale advanced by the United States at the Rome Conference was persuasive to a considerable number of countries. However, with the pressure of other matters it was not possible to obtain full understanding of this concept by the majority, particularly those with little background in fishery conservation. In the circumstances, rather than put it to a vote with the possibility of having the proposal defeated, the United States Delegation succeeded in having abstention described in the Report of the Conference as a procedure for handling high seas conservation problems such as those of the U.S. salmon and halibut fisheries.

As a result of the Report of the Rome Conference the ILC in 1955 completely redrafted its fishery articles. It included many of the concepts proposed by the Rome Conference but did not include some of the newer ideas proposed by the United States such as abstention. Subsequently, the United States submitted to the ILC rather extensive comments on its 1955 draft13 in which the United States stated, with regard to the fisheries articles, that the principle of abstention is “essential to their completeness”. At the 1956 ILC meeting these and the comments of other countries were considered at length. The ILC members at first were completely unfamiliar with the new concept but it gradually gained support as understanding developed. The Swedish member, supporting it, expressed the favorable view when he said he “regarded the principle more as a product of the conflict between the fundamental principle of the freedom of the sea, on the one hand, and the interest of all States not to discourage the adoption of measures of conservation on the other, the second consideration having precedence over the first”. However, because of the proposal of the member from Mexico to broaden the concept to include economic as well as conservation criteria and the Commission’s lack of competence in scientific and economic matters, it made no proposal but included the following comments to Article 53:

“This proposal, the purpose of which was to encourage the building up or restoration of the productivity of resources, and the proposals of some other Governments, based on the concept of vital [Page 595] economic necessity, may reflect problems and interests which deserve recognition in international law. However, lacking the necessary competence in the scientific and economic domains to study these exceptional situations adequately, the Commission, while drawing attention to the problem, refrained from making any concrete proposal”.

In brief, abstention as formulated in the proposed principle is newly arrived upon the international scene. The problem it was developed to handle arose with the increased efficiency of fishing methods. The abstention procedure is made possible by recent advances in research and management methods for conservation programs and might thus be properly classed as a development in the science and technique of high seas fisheries conservation. Since the United States (and Canada) first proposed abstention to world circles in 1955 (Rome Conference) as a general procedure for meeting certain international fishery conservation problems, it has received increasing support from states and international experts in the field. There is reason to believe that much further progress can be made at the Geneva Conference in 1958 by an intensive preparatory campaign and consultation with other governments directed toward an understanding of the soundness of the concept and its conditional application. Whether two-thirds or majority support for abstention can be developed in the short time remaining will not be fully apparent until the Geneva Conference gets underway.

V. Implications of Abstention as a Precedent for Economic Claims

Proposals for extending jurisdiction of the adjacent state over high seas areas, based on real or alleged economic need, inevitably will be strongly argued by some states at the World Conference. This will be done regardless of whether or not the U.S. continues to support abstention. The important question is whether the chances of their success would be materially enhanced by the continued advocacy of abstention by the U.S. The answer seems clearly to be in the negative.

Abstention was proposed by the U.S. Delegation to the Rome Conference in 1955 and strongly advocated in the U.S. comments to the ILC covering the 1955 draft articles. Abstention has also been proposed by Canada and it can be expected that it will be actively supported by Canada at the World Conference. Moreover, on the recommendation of the Committee of Experts the UN Secretariat has arranged for a background paper for the Conference covering the economic and scientific background of the principle of abstention.

From these considerations it follows that any precedent deriving from the proposal of abstention already is set; the remaining question is whether adoption of the concept would materially increase [Page 596] the support for claims to extended jurisdiction based on economic consideration. In considering this it must be recalled that the U.S. advances abstention as a procedure to assure an adequate conservation program in certain special situations, which does not restrict participating or adjacent coastal states and does not extend jurisdiction over areas of the high seas. Proposals of extended jurisdiction to meet real or alleged economic needs involve displacing participating states and jurisdiction over areas. Thus, two entirely different concepts are involved. It does not follow that a State favoring the abstention concept for conservation purposes would support its enlargement for an entirely alien purpose, namely to advance economic interests. Nor does it follow that a State opposed to abstention as proposed by the United States would necessarily support it if its terms were extended to include economic considerations. In any event, it should be noted that if the States desiring extended fisheries jurisdiction for economic advantage can muster sufficient strength to have abstention accepted on economic grounds, they will be strong enough to have other, broader types of jurisdiction accepted, types which better suit their purposes.

VI. Relationship of Abstention to United States Acceptance of ILC Fisheries Articles

If adopted the ILC fisheries articles would place certain new limitations on the right to fish on the high seas. At the same time they would preclude other limitations. To accept Articles 49 (right to fish) and 53 (new entrants to a fishery) without abstention being included in the series of articles would be tantamount to inviting all non-participating States to participate in the rich halibut, salmon, and fur seal resources along our coasts, built up and maintained at great cost and effort by the United States and the United States and Canada (in the case of fur seal, by the U.S., Canada, and Japan). Further, we would have no effective general international procedure open to us for handling similar problems now developing along other sections of our coast.

  1. Source: Department of State, Central Files, 399.731/11–857. Official Use Only. Cleared by several officers of the Department and in draft by the Interdepartmental Committee. The committee, an informal group, normally consisted of representatives of the Departments of State, the Treasury, Defense, Interior, Commerce, and Justice and the Federal Communications Commission. The message was repeated to Bucharest, Budapest, Moscow, Prague, and Warsaw. Two earlier drafts of the message, dated August 29 and October 2, were transmitted by Sanders to various officers of the Department for comment in memoranda of September 11 and October 3, respectively. (Ibid., 399.731/9–1157 and /10–357)
  2. Constantin A. Stavropoulos, the Legal Counsel of the United Nations, informed the Secretary of State in letter LE 130(3–4–1), August 26, that to avoid overlapping with other U.N. meetings it was necessary to begin the Conference of the Law of the Sea at Geneva on February 24, 1958, a few days earlier than anticipated in the General Assembly resolution. The conference was expected to last for 9 weeks. The letter was transmitted to the Department by the U.S. Mission at the United Nations in despatch 178, September 3. (Ibid., 399.731/9-357)
  3. See footnote 2, Document 281.
  4. See footnote 2, Document 286.
  5. Entitled, respectively, “Historical Summary of the United States Position on the Legal Aspects of the Breadth of the Territorial Sea” and “Memorandum on the Factors which Support the Maintenance of a Narrow Breadth of the Territorial Sea”, neither printed.
  6. This reference should be to circular telegram 316. The correction was made in circular airgram 5160, December 11, 1957. (Department of State, Central Files, 399.731/11–857)
  7. Entitled “Memorandum on the Conservation of the Living Resources of the Sea in Relation to the ILC Fishery Articles”, not printed.
  8. Entitled “Memorandum on Arbitration and Criteria in Relation to the ILC Fishery Articles”, not printed.
  9. Entitled “US Position on Arbitration and Criteria in Relation to the ILC Fishery Articles”, not printed.
  10. Entitled “Memorandum on Abstention as an Essential Conservation Procedure in Certain Situations”, not printed.
  11. Because of the technical and complex nature of the concept of abstention, the Department anticipated supplemental diplomatic discussions, with the assistance of experts from Washington. The plan called for William Terry of the Department of the Interior to visit Ankara, Athens, Bangkok, Karachi, New Delhi, and Tehran in November and December (telegram 1612 to Ankara, November 15; Department of State, Central Files, 399.731/11-1557); and for Special Assistant Herrington to visit Bonn, Lisbon, London, Madrid, Oslo, Stockholm, The Hague, and Copenhagen in December (telegram 1339 to Bonn, November 18; ibid., 399.731/11–857, and telegram 954 to The Hague, November 27; ibid., 399.731/11–2757).
  12. No drafting information is given on the source text.
  13. See Document 278.