FOREIGN RELATIONS OF THE UNITED STATES, 1952–1954
VOLUME I, PART 2, GENERAL: ECONOMIC AND POLITICAL MATTERS, DOCUMENT 279
Memorandum by the Legal Adviser (Phleger)1
[Washington,] March 19, 1953.
- Position of the United States concerning National Claims in Adjacent Seas.
The attached paper sets forth a study of the recent trend of the claims asserted by coastal states in adjacent seas and makes recommendations concerning the policy to be followed by this Government in its support of the principle of the freedom of the seas.
A restatement of our policy concerning the drawing of the outer limit of inland waters, the breadth of territorial waters, and rights of jurisdiction which may be asserted in the high seas, is becoming increasingly necessary and urgent. American fishing vessels have been arrested and seized by Ecuador and Mexico in areas of the seas which the United States considers high seas. The United States and Ecuador are scheduled to hold conversations on the problem in the near future. The United Kingdom has suggested informal exchanges of views with this Government for the purpose of working out a common approach and united opposition to the growing trend towards extension of the areas of adjacent seas in which coastal states claim increasingly large forms of control.2 This Government has already been called upon and will be called upon in the future to present its views and comments on the drafts concerning territorial waters and the high seas prepared by the International Law Commission. It might even be necessary to contemplate in the future the possibility of litigation with certain foreign states on some of these issues. Hence the necessity for reexamining the position of this Government on all phases of the problem.
Your comments and suggestions are requested on an urgent basis, and should be received no later than March 27, 1953, in order to be taken into account in the final redraft of the paper which will be sent to all other interested departments and agencies. Comments and suggestions should be sent to Room 4259 New State or phoned to Extension 5066.
[Washington, March 19, 1953.]
National Claims in Adjacent Seas
From the 16th to the 18th century, states claimed extensive rights of control over wide areas of the sea contiguous to their land domain in order to insure respect of their territorial sovereignty, to protect commerce entering and leaving their ports, to safeguard their fisheries resources, and to defend themselves from attacks. These claims followed a constant pattern of regression until the advent of the 19th century when the principle of freedom of the seas became firmly established, and the practice prevailed of restricting the area over which coastal states claimed rights of control to a narrow and sharply defined rim of the sea adjacent to their coasts 3 miles in width. Since the beginning of the 20th century, a reverse evolution has taken place and the practice of states has shown a continuous trend towards extension of the areas of the adjacent seas over which various forms of control are claimed. The trend may vary in definiteness depending upon the particular areas concerned, but appears to become more accentuated as time goes on.
Inland Waters. The seaward limit of inland waters is the base line whence the belt of territorial waters is measured. A substantial number of states, including the United States, support the position that this line is the low water mark along the entire coast, and not straight lines drawn between headlands of indentations and sinuosities. Islands off the coast are not taken into account in the drawing of the line unless they are within the belt of territorial waters, but an exception is made in the case of bays, gulfs and estuaries where the line is a straight line often limited to a length of 10 miles, drawn across their opening, in the general direction of the coast. A further exception is made, of course, in the case of historic bays where the base-line is a straight line drawn across their openings, irrespective of the width.
Larger areas of inland waters are secured by the coastal state when the straight line method is applied as a general rule for the determination of the limit between inland waters and territorial waters. Fixed points are selected at the low water mark level on the headlands of all indentations on the mainland and on the outer edge of off-lying islands, rocks and reefs, and are joined together by a series of straight-lines of no fixed length. The areas of adjacent seas enclosed within the lines are inland waters.
The straight-line method was used by Norway as early as 1869. Sweden and apparently Denmark applied it at the beginning of the 20th century. Since 1934 it has been adopted as well by Cuba, Ecuador, Yugoslavia, Saudi Arabia, Egypt and Iceland. The International Court of Justice in the Fisheries Case upheld the legality of the use of the straight-line method by Norway.* Since the Court’s decision, Iceland has used the method more extensively and has applied it more liberally, despite the protests of Great Britain that some of the new base lines are too extreme to be in conformity with the decision of the International Court of Justice. In the United States, legislation was introduced in Congress in 1952 with a view to define the limit of the inland waters of the United States by application of the straight-line method and as far seaward as possible under international law.‡ In the United Kingdom, consideration is being given to using the straight-line method in order to close certain fishing grounds to foreign vessels, especially in Scotland. In Australia legislation was recently introduced (and approved by the lower house) to provide for the drawing of the baseline on the northern coast by application of the straight-line method.
The second Sub-Committee at the 1930 Conference for the Codification of International Law took the position that the low water mark along the entire coast, all points being taken into account, should be the general rule for the drawing of the base line of territorial waters.‡ The “Report on the Regime of the Territorial Sea” submitted to the International Law Commission by its Rapporteur, Professor Francois, on April 4, 1952, maintains the same general principle but provides that where the coast is deeply indented and cut into or where it is bordered by an archipelago, the straight-line method joining appropriate points may be employed.§
Territorial Waters. A statistical computation of the breadths of territorial waters claimed by coastal states from 1930 until the present day reveals a clear trend towards extension of such breadths.║
At the 1930 Conference for the Codification of International Law, the 3 mile limit received the unconditional support of Canada, China, Great Britain, India, Japan, The Netherlands, South Africa and the United States. Greece and Ireland were inclined to support the 3 mile limit. Belgium, Egypt, France, Poland and Germany supported such limit on the condition that the right of the coastal state to exercise certain controls in a zone contiguous to its territorial waters would be recognized. Chile, was willing to support either the 3 mile limit with a contiguous zone or a 6 mile limit. Greece and Egypt now support a 6 mile limit. Chile, according to the information of the International Law Commission, now claims a belt of territorial waters of 50 km, or approximately 27 miles, not to mention the continental shelf declaration of 1947 which refers to its sovereignty over 200 miles of adjacent waters. Poland may be expected to claim a 12 mile limit like other satellites of the U.S.S.R. China cannot reasonably be counted upon at this time as a positive supporter of the 3 mile limit. Ireland now claims a breadth of territorial waters “in accordance with international law”. Hence only 10 out of 16 states which gave support to the 3 mile limit at the 1930 Conference could still be counted upon for support of this limit. This estimate may even be too optimistic. Canada for instance would probably not be inclined to support the 3 mile limit if such a distance were to be the limit of its exclusive fisheries control.
Among the states which supported a breadth of territorial waters greater than 3 miles at the 1930 Conference for the Codification of International Law, Iceland and Finland supported a 4 mile limit and Norway and Sweden, while also supporting a 4 mile limit, were willing to recognize as legitimate other widths such as 6 miles. The 6 mile limit, with the additional requirement in some cases of a contiguous zone, was supported as well by Brazil, Colombia, Cuba, Italy, Iran, Portugal, Spain, Rumania, Turkey, Uruguay and Yugoslavia. These 15 states could be expected to maintain a similar position—Rumania now claims 12 miles and Yugoslavia apparently 10 miles—and would receive the additional support of states which have clearly abandoned the 3 mile limit such as Greece, Egypt and Chile. If Poland were also included in this group, the same states which divided 16 to 15 in favor of the 3 mile rule at the 1930 Conference could be expected now to support a breadth of territorial waters greater than 3 miles by a proportion of 19 to 10, China and Ireland being left in doubt.
The trend away from the 3 mile rule is still apparent when the statistics are broadened to take into account an overall number of 63 coastal states. The number of states which may be presumed to support the 3 mile limit is brought up to 15 by the addition of Ceylon, Denmark, Dominican Republic, Israel, and Liberia. Australia, New Zealand and Indonesia have been considered in the past as supporters of the 3 mile limit, but there are reports that they would not accept now the 3 mile limit if it were to constitute the limit of their exclusive fisheries jurisdiction, and Venezuela, which up to now also claimed 3 miles, is reported to be considering a new constitutional provision to enlarge its sovereignty in its adjacent seas. The claim of Panama to jurisdiction over fisheries to the edge of the continental shelf, and the claim of the Philippines to the entire Sulu Sea as part of its territorial waters, raise some doubts as to their prospective support of the 3 mile limit. The number of states which are deemed to support a greater breadth of territorial waters increases to 28 with the addition of Lebanon, Syria, U.S.S.R., Bulgaria, Ecuador, Guatemala, Honduras, Mexico, and Saudi Arabia, the support of the 6 states last mentioned having been acquired after 1930. This number can reach 33 if Argentina, Costa Rica, El Salvador, Peru, and South Korea are included on the ground that their recent claims of control over the epicontinental sea were protested by the United States as being in excess of accepted limits of territorial waters. So far as concerns Albania, Burma, Haiti, Iraq, Nicaragua, Pakistan, and Thailand, no definite or otherwise satisfactory information regarding the breadths of their territorial waters was found.
The Report on the Regime of the Territorial Sea submitted to the International Law Commission on April 4, 1952, states that a proposal to fix the breadth of territorial waters at 3 miles would have no chance of success and that agreement on this distance is out of the question. It proposes a breadth of territorial waters which…