375. Background Memorandum on the Law of the Sea1
1) At the United Nations Law of the Sea Conference held in Geneva early in 1958, agreement was reached on a number of significant matters (see State Department Bulletin of June 30, 1958). However, [Page 716] two important and troublesome questions, the breadth of the territorial sea and fishery rights in a contiguous zone, were left unsettled.
2) The UNGA, recognizing the need for general agreement on these two important subjects, agreed on December 10, 1958, to convene a Second Law of the Sea Conference at Geneva during March–April 1960. The vote was 71 for, none opposed, and 6 abstentions. Although the United States had favored holding the Conference in the summer of 1959, it voted with the majority (see State Department Bulletin of January 12, 1959).
3) In the debate preceding the UNGA vote a number of speakers made the point that all nations should work for success at the Second Conference and that actions in the interim which would make agreement less likely should be avoided. There was no dissenting voice. Thus the US considers that it was implicit in the UNGA action that unilateral acts which might prejudice the outcome of the Conference should be avoided by all. The action of the Panamanian Government subsequent to the UNGA debate to claim broader territorial seas was protested by the US and other States.
4) The US holds that meanwhile the 3-mile territorial sea is established international law and that unilateral acts of states claiming greater territorial seas are not only not sanctioned by any principle of international law but are, indeed, in conflict with the unanimously accepted principle, freedom of the seas.
5) The US believes that a narrow territorial sea is in the interest of all countries of the Free World because:
- (a)
- The non-Communist world is an oceanic grouping of states; it depends for its life on control of the seas. The navies of the Free World keep the seas free. To do so they require maximum areas for maneuvers and for dispersion.
- (b)
- Each extension of the territorial sea is an encroachment on the high seas and reduces the area which all agree should be “free”.
- (c)
- Any reduction in the area of the high seas results in a corresponding increase in the possibility of restrictions on freedom of navigation and trade which are the life-blood of the world.
- (d)
- A broad territorial sea would increase the hazards of navigation by increasing the difficulties and uncertainties of visual piloting where vessels chose because of harrassment or were required to remain beyond territorial limits.
- (e)
- Broad territorial seas would impose burdens on all nations effectively to administer and patrol a wider area; also to provide additional aids to navigation.
- (f)
- Any extension of the breadth of the limits of territorial seas would increase correspondingly the risk that the neutrality of the seas of non-belligerents would be violated in the event of a future war. Thus the likelihood that non-belligerents would become involved in the conflict would be increased.
- (g)
- Conventions adopted by the First Law of the Sea Conference provide that coastal states shall exercise jurisdiction beyond the limits of the territorial seas over the resources of the continental shelf and over such matters as customs, immigration and sanitary measures. Likewise fishery interests are, or can be, protected by conventions or agreements without the extension of territorial seas.
- (h)
- Aircraft, whether military or civil, have no right of “innocent passage” as do ships. Thus an extension of the limits of territorial seas to 12 miles would seriously restrict the freedom of flight, especially in areas which are dotted with islands. Likewise in the case of warships the right of innocent passage is not clearly established except through international straits.
6) The following are arguments which have been put forward by those who oppose a narrow territorial sea.
(a) Except for the Soviet bloc and the Arab States, most coastal states which favor a wider territorial sea apparently do so in order to obtain jurisdiction over fisheries near their shores.
Comment: It is the US view that fishery jurisdiction can be separated from sovereignty over sea areas, just as are administrative arrangements regarding customs, sanitation and immigration, and that special rights in offshore waters may be recognized without changing their character as high seas.
As regards conservation, the US believes that the most effective approach is through special arrangements or agreements between the parties concerned dealing exclusively with these problems.
(b) The Sino-Soviet bloc maintains that the determination of the breadth of the territorial sea (up to 12 miles) is the prerogative of each independent nation.
Comment: The US believes that the high seas are the common property of all and that no state can expropriate any of this common property by unilateral act. Further, the common interest and proximity of states makes uniformity as regards territorial seas necessary.
(c) The Arab bloc has favored a 12-mile limit principally in the hope that it would prevent traffic through the Gulf of Aqaba to Israel.
Comment: The following are provisions of the Convention on the Territorial Sea which was adopted by the United Nations Law of the Sea Conference at Geneva on April 29, 1958:
Article 14(1.)
“Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.”
[Page 718]Article 16 (4.)
“There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State.”
This Convention has not been signed by the Arab States.
(d) Almost 40 states now claim territorial seas of various widths greater than 3 miles. This fact is cited to refute the argument that the 3-mile rule is “established international law.”
Comment: The 3-mile limit has long had general acceptance as a rule of international law. Despite recent defections more states still recognize the 3-mile limit to the territorial sea than any other single breadth.
(e) Narrow nationalism has caused some of the newer states to claim broad territorial seas. They reason that since the 3-mile rule was established and is favored by the old colonial powers it must ipso facto be repudiated as contrary to the interests of the newly independent nations.
Comment: Logic and facts will probably convince few who put forward this emotional argument.
(f) A few states argue that a territorial sea limit of more than three miles is written into their constitutions or laws and is therefore unalterable as far as they are concerned.
Comment: There are legal and constitutional problems in several countries. However, the United States does not accept that these are insurmountable. In fact the very purpose of the Second Conference is to bring conflicting practices and laws into harmony.
7) At the Geneva Conference the US put forward a compromise proposal which in essence would have provided for a six-mile limit to the territorial sea plus an additional six-mile exclusive fishing zone, subject to fishing rights of other states established in the outer zone through fishing in the area during the preceding five years. This proposal received more votes than did any other put forward at the Conference, but failed to receive the required two-thirds of the votes cast. The US thereupon announced that, as its compromise proposal had failed of adoption, it would continue to adhere to the three-mile limit for the territorial sea as established by international law. (State Department Bulletin of June 30, 1958.)
8) The Department is actively preparing for the Second Law of the Sea Conference in the anticipation that agreement will be achieved on the territorial seas and fisheries issues. The US position will be flexible to the extent possible in relation to our overall interests. It is recognized that to be accepted by the required two-thirds majority at the Conference a formula must be found which will attract more support [Page 719] than did the US compromise proposal at Geneva. The US looks forward to an atmosphere of accommodation and conciliation during the period of the very necessary preparations which must precede the Conference and will encourage and participate in a free exchange of views to the end that a formula acceptable to the required majority may be developed. The US will approach the Conference in a spirit of good will and compromise. It is hoped that other countries will do likewise.2
- Source: Department of State, Central Files, 399.731/1–2959. Drafted by Richards. Attached to a letter from Richards to J. Harold Shulaw, First Secretary at the Embassy in London, which stated that it had been prepared to assist in briefing U.S. Ambassadors and other officials interested in Law of the Sea. Copies of the memorandum were sent to 20 Latin American posts on January 30 as an enclosure to circular airgram 6460. (Ibid., 399.731/1–3059) A copy of a revised memorandum, April 3, which includes more detail on some of the subparagraphs, is ibid., 399.731/4–859, attached to a memorandum dated April 8. It was transmitted to 63 posts worldwide as an enclosure to circular airgram 9156, April 22. (Ibid., 399.731/4–2259)↩
- Attached to the source text were 2 pages which showed voting patterns on the limits of the territorial sea at the First Law of the Sea Conference.↩