Foreign Relations of the United States, 1958–1960, United Nations and General International Matters, Volume II

333. Paper Prepared in the Office of the Legal Adviser for Special Functional Problems¹

Washington, February 20, 1958.

U.S. POSITION FOR THE UN CONFERENCE ON THE LAW OF THE SEA

The basic issue facing this Government at the Conference will be how to maintain the cardinal principle of the freedom of the seas, which this nation has supported since its inception, in the face of demands of many coastal states for greater areas of sovereignty.

Attention will be principally focused on two currently vital and to some extent interwoven problems. These are:

1. Seaward extent of the coastal state’s sovereignty (limit of internal waters and breadth of the territorial sea); and

2. Extension of the coastal state’s jurisdiction to include exclusive fishing rights over areas of seas adjacent to its territorial sea.

In view of the need to maintain the freedom of the seas for the nation’s security, retention of the three-mile breadth for the territorial sea is of paramount importance to the United States. Conference approval of that goal, however, is likely to require some accommodation of the concerted demands of an ever-increasing number of states for exclusive fishing rights beyond three miles from their respective shores.

So far as such demands by U.S. fishing interests are concerned the attached instructions call for the delegation to endeavor to obtain for the U.S. special rights with respect to those types of fish which the U.S., either by itself or in conjunction with other nations, restored to a fertile fishery after once having been nearly depleted. Under the U.S. proposal (the “abstention” formula), the U.S., by itself, or in conjunction with some other qualifying nation (such as Canada or the USSR) would have the exclusive right to take certain stocks of fish (such as salmon, halibut) regardless of where found.

This particular proposal is designed to operate only to the advantage of U.S. fishermen. If it were modified, however, and then adopted it could work serious harm upon some segments of the U.S. industry. But it has been determined the risk is worth taking in view of the potential benefits which would inure to the U.S. from adoption of the above noted formula. The entire industry favors the U.S. formula.

To meet other nations’ demands for comparable rights, however, the delegation is authorized to agree to extend the coastal state’s exclusive fisheries rights no more than nine miles beyond a three-mile territorial sea provided this move would preserve the three-mile territorial sea. This arrangement would protect U.S. security interests and give some added protection to U.S. fishermen operating close to our shores. It would operate to the disadvantage of that portion of the industry which fishes close to the shores of other nations. There is, however, only a minor amount of such fishing.

Less controversial but also important are the provisions on the coastal state’s rights to explore and exploit the adjacent continental shelf under the high seas. Since the proposed measures conform generally to the present U.S. approach, their adoption would confirm the fact that the oil wells sunk into the earth beneath the oceans off U.S. shores are internationally valid operations.

The delegation, however, is to make certain the continental shelf approach is limited to living resources permanently affixed to the seabed in much the same manner as the subsoil mineral resources. This is an important point because some states will endeavor to expand their control over certain fishing resources by having the shelf doctrine apply to fish, such as shrimp, which live near the bottom of the ocean but are not permanently attached to the shelf itself.

Considerable dispute is anticipated with respect to some methods of determining the point from which the coastal state begins to measure its territorial sea. The problem comes up particularly in areas where there are numerous islands or in cases of bays and similar inlets. The more latitude a coastal state is allowed for drawing artificial starting points (or baselines) the easier it is to project seaward the outer limit of the territorial sea without any change in its breadth. This problem was highlighted recently by the Indonesian claim.²

The delegation’s instructions on those points call for restricting those techniques to the utmost. In particular, the delegation will seek to have the straight baseline system restricted to situations like that already sanctioned by the International Court of Justice. And in the case of bays the delegation may accept closing lines which do not exceed 15 miles, although it is to endeavor to hold the line at 10 miles, the traditional U.S. position.

Most of the anticipated problems in the remaining two fields are essentially of a technical nature. These fields are:

a. Rights and duties with respect to submarine cables and pipelines; and

b. Rights over foreign vessels on the high seas, particularly the scope of limited jurisdiction that may be exercised for customs, fiscal ana sanitary matters on a zone adjacent to the territorial sea.

The delegation will in general seek to have the rules on those matters square with existing U.S. laws and policy.

An appended item concerns the special problems of landlocked states who, at least in theory, are entitled to share in the freedom of the seas. Their principal special problem is getting access to the sea as a matter of right through neighboring countries. Since U.S. territory does not shut off any nation from the sea, the U.S. will endeavor to be as helpful as it can to these states, short of supporting the adoption of a new rule of international law giving them such access, in order to secure their block of votes.

Two non-agenda items are likely to be raised. One involves the legality of nuclear weapons tests; the other concerns the Gulf of Aqaba.

The delegation will endeavor to dispose of the weapons testing problem as an inappropriate policy question although it will, to the extent necessary, defend as valid our use of the high seas in connection with some of the tests.

On the Gulf of Aqaba, the delegation will endeavor to have the matter put off on the ground that this complex subject of multinational bays, gulfs and the like requires extensive study which the Conference is not equipped to undertake particularly in view of the fact that the International Law Commission and the Conference Preparatory Committee did not face into the subject.

1. Source: Department of State, Central Files, 399.731/2–2058. Secret. Drafted by Pender. The source text was Tab D to a memorandum from Wilcox to Dulles, dated February 21, which transmitted a delegation list and letters of accreditation and instructions for the head of the U.S. Delegation.
2. On December 13, 1957, Indonesia declared the 3-mile limit obsolete and proposed a more extensive territorial sea.