Office of the Historian

202. Action Memorandum From the Acting Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs (Smith) and the Legal Adviser of the Department of State (Sofaer) to Secretary of State Shultz1

Washington, December 9, 1988

SUBJECT

  • Revision of Presidential Proclamation to extend the territorial sea

ISSUE FOR DECISION

Whether to extend the territorial sea now and defer extension of the contiguous zone.

ESSENTIAL FACTORS

With your approval, the Senior Interagency Group on Ocean Policy and Law of the Sea (SIG) has recommended to the National Security Council that the President extend by proclamation the territorial sea and contiguous zone of the United States.2 Upon further reflection, the White House Legal Counsel and the General Counsels of the National [Page 573] Security Council and OMB have raised questions of Constitutional and international law regarding the President’s power to extend the contiguous zone.

At the same time, they concur in immediate extension of the territorial sea and they would like to have the President sign a proclamation early in the week of December 12.3 A consensus among the interested agencies appears to exist that for reasons of national security the President should go forward now with the extension of the territorial sea while deferring the extension of the contiguous zone until the legal questions are resolved.

BACKGROUND

On November 7, the SIG transmitted recommendations to the National Security Council for the President that he extend the territorial sea to twelve nautical miles and the limit of the contiguous zone to twenty-four nautical miles (TAB 1).4 All agencies approved these recommendations.

RECOMMENDATION

That you concur in the President extending the territorial sea now while deferring action on the contiguous zone pending further consideration.5

  1. Source: Reagan Library, Papers of George P. Shultz, Territorial Sea. Confidential. Drafted on December 7 by Hoyle and Small and cleared in L, EB, E, T, H, INM/P, PM/ISP. Sent through Derwinski. A stamped notation, dated December 12, on the memorandum indicates Shultz saw it.↩
  2. See footnote 4, Document 201.↩
  3. On December 27, Reagan issued a proclamation that extended the territorial sea of the United States to 12 nautical miles. (Public Papers: Reagan, 1988, Book II, pp. 1657–1658)↩
  4. Attached but not printed.↩
  5. Shultz initialed the approve option on December 12.↩