Foreign Relations of the United States, 1958–1960, China, Volume XIX

205. Telegram From the Department of State to the Embassy in Poland⁰

Washington, October 22, 1958, 8:25 p.m.

502. USUN for Lodge. Beam-Wang Talks. Following is guidance for 82nd meeting:

Our preliminary appraisal is that Chinese Communist Defense Ministry statement October 20 cancelling bombardment suspension order and subsequent shelling of Quemoy does not presage resumption large-scale continuing attack. Fire though heavy described as sporadic and desultory. With respect to Chinese Communist charges, LSD accompanied by one destroyer was engaged night 19–20 October in retrieving amphibious craft from Quemoy. No supply craft were unloaded and two vessels approached no closer than 15 miles to Quemoy. Two other destroyers named by Chinese Communists could have been in general area but not involved in operation. While Chinese Communists may have felt obliged retaliate against what they regarded as open defiance of their suspension of fire announcement, seems much more likely they have merely been waiting for pretext to demonstrate that ceasefire cannot be taken for granted and to try to cause rift in GRC–US relations. Secretary’s trip Taiwan may have prompted them act at this particular time. This Chicom action probably represents move of essentially political rather than military nature which may be repeated from time to time in continuing de facto truce situation with intention of maintaining sense of tension and keeping pressure on US and GRC. Thrust of your presentation this meeting should be on one hand to condemn Chinese Communists’ resumption of attack on Quemoy and express hope it will be short lived and on other hand vigorously to deny Chinese Communist charges US intrusions, including strong refutation validity their territorial waters and airspace claims.

Your presentation should be along following lines: On October 20 artillery bombardment of Quemoy resumed following Chinese Communist statements alleging US military escort operations to within six miles of Quemoy. This is distortion of truth; actual facts are as follows. Night 19–20 October US LSD was engaged in retrieving landing craft from Quemoy; did not escort any supply vessels and at no time approached closer than 15 miles to Quemoy. No US destroyer escorted LSD; any US destroyers in that area of Taiwan Straits engaged in normal operations in international waters. US deplores this unprovoked reversion by Chinese Communists to military force, particularly that it should have occurred apparently by intent, at very time when US Secretary of State enroute Taiwan on mission of peace. All who love peace cannot but condemn this Chicom action which is clearly designed to prevent an easing of tensions in the Straits and defies hopes of entire world for peaceful settlement of dispute in Taiwan area: While the world can only hope that this resumption of fighting will be short lived, it is becoming clearer and clearer that a relaxation of tensions in the Straits is not in accordance with Chicom wishes.

Since Chinese Communists’ original ceasefire declaration October 6 they have repeatedly issued statements accusing US warships and aircraft of intruding into their territorial waters and airspace. US categorically denies that any such intrusions have taken place. In this connection you instructed reiterate that Government of US cannot accept Chinese Communist declaration of Septembers, 1958 that “Extent of territorial waters of PRC been set at 12 nautical miles.”¹ This declaration is clear violation of widely accepted principles of international law and also contradicts para 5 of Chinese Communists’ proposed agreed announcement of September 15, 1958.²

Legal validity of three mile limit recognized by United Nations International Law Commission when it stated in report covering work of its seventh session that “international law does not require states to recognize a breadth (of territorial sea) beyond 3 miles.” [U.N.Doc. A/2934, p. 16]³ US considers this to be correct statement of legal situation and denies that there is any obligation on part of states adhering to 3 mile rule to recognize claims on part of other states to greater breadth of territorial sea.

Position of United States concerning breadth of territorial sea determined by its attitude toward doctrine of freedom of seas. There is no doctrine of international law more universally recognized than principle that high seas are res nullius and that no part of them can be unilaterally appropriated by any state to its own use without the concurrence of other states.

At recent UN Conference on Law of Sea, position of US stated as follows:

“… 3 mile rule is established international law; that it is only breadth of territorial waters on which there has ever been anything like common agreement; 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 universally accepted principle of freedom of seas.⁴

There is universal agreement that each state is entitled to a territorial sea of a breadth of 3 miles or one marine league. But this cannot be said of any claim to a greater breadth, each of which claims has been protested by many states.”

Chinese Communist declaration September 4 unilaterally claiming territorial sea of twelve miles is completely inconsistent with Chinese Communist proposed agreed announcement of September 15, 1958, which states: “. . . that freedom and security of navigation on and flight above the high seas in the Taiwan Straits must be insured.” Freedom of navigation on high seas means the essential liberty of maritime transportation and communication unfettered by requirement of consent by any foreign state. This principle is clearly violated by Chinese Communist declaration extending territorial waters to breadth of 12 nautical miles coupled with statement that:

“C—Without permission of Government of People’s Republic of China, no airplane or military vessel of any foreign country shall enter territorial waters of China or skies above such territorial waters. All foreign ships navigating in territorial waters of China must observe related laws and ordinances of Government of People’s Republic of China.”

It is a well-established principle of international law that laws and ordinances of coastal state may not extend beyond three mile limit except for very special and limited purposes.

It is likewise well-established that a country is not free to choose whether its territorial sea will be measured from low water mark on the coast, the normal baseline, or whether it will use as baseline straight lines connecting salient points or offshore islands. Straight baseline method is permissible only in circumstances and subject to criteria set forth in Article 4 of Convention on Territorial Sea and Contiguous Zone adopted by recent Geneva Conference on Law of Sea.⁵ It is clear that Chinese coast along which straight lines described in statement of September 4, 1958 are drawn does not conform to geographic conditions set forth in Article 4. Still less is there any legal basis for drawing straight baselines from outermost points on a group of islands and claiming waters thereby enclosed as internal waters. Similar attempts by other countries to claim as internal waters large areas of high seas within groups of islands or archipelagoes have been protested by many countries. Straight baselines described in statement of September 4, 1958 are regarded by US as completely arbitrary and without any basis in recognized international law.

Chinese Communist declaration unilaterally extending width of territorial waters constitutes encroachment on freedom of high seas and concomitant freedom to fly over high seas of world which belongs to all peoples and states alike. This freedom denied entirely in air space over those waters now designated as territorial by Chinese Communists. Since there is no right of innocent passage for aircraft over territorial seas as distance from right of innocent passage for vessels through such seas, any extension of territorial waters beyond three miles results pro tanto in diminishing freedom of flight.

Chinese Communist representative at last meeting declared that peaceful solution to dangerous situation in Taiwan Straits could only be achieved by negotiation on basis Chinese Communist proposal September 22. This proposal embodies completely one-sided and distorted approach to problem, implying that US responsible for tension in Taiwan Straits area and requiring that all US armed forces in area be withdrawn. Chinese Communists on other hand would not be committed under proposed announcement to cease their threat and use of force in area which provoked present crisis. As stated before and now reiterated proposal wholly unacceptable to US and cannot provide basis for meaningful discussion.

Obvious that international dispute does exist, not one limited to presence of US forces in area as maintained by Chinese Communists but one caused by Chinese Communist resort to force in attempt realize territorial claims. As international dispute it should be susceptible of resolution by means commonly employed to deal with such disputes. US has expressed its readiness to seek solution through various such means including negotiation, mediation, conciliation, arbitration, or judicial settlement. If Chinese Communist representative sincerely prepared to work for negotiated settlement rather than merely reiterate unacceptable demands for unconditional surrender, he should respond to this US initiative or make some constructive alternative proposal.⁶

FYI. Purpose of Secretary’s trip Taiwan is to explore all aspects of public opinion problem faced by US and GRC and attempt agree on lines of action best calculated preserve and strengthen support for Free China.

Herter

0. Source: Department of State, Central Files, 611.93/10–2258. Secret; Priority; Limit Distribution; Verbatim Text. Drafted by Lutkins and Frank Boas of the Office of the Assistant Legal Adviser for Special Functional Problems; cleared in draft by Becker, in substance by Reinhardt, by Parsons and Martin, and in draft with OSD; and approved by Herter. Repeated to USUN and to Taipei.
1. See footnote 4, Document 66.
2. See Document 91.
3. Brackets in the source text.
4. All ellipses are in the source text.
5. Adopted on April 27, 1958; for text, see American Foreign Policy: Current Documents, 1958, pp. 264–269.
6. Telegram 508 to Warsaw, October 23, modified the guidance in this telegram. It stated that after presenting the U.S. legal position on international waters, Beam should stress that in actual practice U.S. vessels on normal patrol had kept well out in international waters. It suggested that he begin his presentation by deploring “unprovoked reversion by Chicoms to military force” and that the information regarding LSD operations set forth in paragraph 2 of this telegram be given only if Wang inquired. (Department of State, Central Files, 611.93/10–2258; see Supplement)