351. Memorandum of a Conversation Between John H. Pender of the Office of the Legal Adviser for Special Functional Problems and the Counselor of the Portuguese Embassy (Abreu), Department of State, Washington, March 26, 19581
SUBJECT
- International Conference on Law of the Sea
Dr. Abreu called at his request for information on developments at the Conference on the Law of the Sea, and for an explanation of the United States’ position on the Canadian compromise proposal for a three-mile limit on sovereign territorial waters, and control by the coastal state up to twelve miles on fishing.
At Dr. Abreu’s request, Mr. Pender briefly reviewed the historical development of the concept of the three-mile limit, and the recent trend among a number of coastal states toward unilateral claims to much broader territorial waters. Mr. Pender indicated that the United States had first declared its support for the three-mile limit concept in 1793, and that this was still our basic policy. Our delegation to the Geneva meeting was not authorized to depart from this position. During recent years, however, and particularly since the failure of the 1930 conference at The Hague, a growing number of nations had unilaterally claimed territorial waters of varying widths, by legislation or through constitutional revision. The United States, therefore, believes that if the three-mile limit is to be preserved in international law in the face of this trend, it is essential that agreement be reached at this conference.
When the conference opened four weeks ago, the Soviet Union, with the support of the satellite nations, offered a formula by which every coastal state would be permitted to determine its own territorial sea in any width from three to twelve miles. By presenting this as the logical corollary of their newly-won independence, the Soviets quickly won the support of many Afro-Asian nations. A band-wagon movement was underway toward the Soviet formula which threatened the end of the three-mile concept.
In the face of this, Canada presented a proposal for the maintenance of the traditional three-mile territorial sea, with the extension of control of fishing up to twelve miles from the water-line. The United States supports this Canadian compromise, not so much because it believes it to be the best solution, but because it considers this to be the only chance to save the three-mile limit concept. For military and other reasons, we view the extension of sovereignty beyond three [Page 670] miles with disfavor. The right of innocent passage by merchant vessels could be prohibited by a coastal state up to twelve miles, rather than three, effectively closing off certain areas, and thus impairing the freedom of the seas. Jurisdiction over aircraft overflying territorial waters could thus be extended four times as far as it now extends, with consequent hardship for all aircraft engaged in international traffic. And, from a military point of view, the extension of territorial waters could only favor the continental or land based powers (whose communications lines were internal) over the Free World nations whose links are mainly maritime.
The Canadian compromise, we believe, offers a reasonable hope for preserving the three-mile territorial sea and preventing the conference from ending in a deadlock. Many nations claim territorial waters greater than three miles chiefly because of their dependence on fish. Granting them the right to control fishing up to twelve miles would overcome much of these nations’ fear for the depletion of off-shore fisheries resources. The Canadians were understood to be prepared to discuss with individual delegations measures which might be taken to protect what might be termed “historic” rights of many of the Atlantic nations, including Portugal, in the Newfoundland area. The rich fisheries of the Grand Banks, Mr. Pender pointed out, would, in any event, remain completely outside Canadian jurisdiction. The reasoning behind the United States’ support of this compromise was quite clear to him, Dr. Abreu said.
Finally, we stated that the United States Delegation is exploring with the Portuguese, Canadian and other Allied nations delegations all avenues in the hope of achieving a workable arrangement for all.
- Source: Department of State, Central Files, 399.731/3–2658. Official Use Only. Drafted by Sacksteder.↩