Ecuador, in connection with the seizures of the fishing vessels Notre Dame, Sun Pacific, Equator and Venus, studied the points of view of the two countries with respect to territorial waters and innocent passage; That the Conference heard the statements of the United States and Ecuadoran Delegations with respect to the legislation and jurispru dence of their respective countries relating to territorial waters and innocent passage; That the Conference noted the substantial differences in the positions of the two countries; and That the powers of the Delegations do not extend so far as reconciling these differences or recommending measures in the international field which would affect world interests; AGREES: That it is not within its competence to resolve differences in legal dispositions and juridical concepts of the United States and Ecuador regarding territorial waters and innocent passage, the principles of which in any event are not susceptible of bilateral determination since these principles are matters for determination only by the general agreement of maritime States. IV The Conference on United States-Ecuadoran Fishery Relations, with reference to Agenda Point 3, RESOLVES: To take note that natural and juridical persons and other organizations of foreign nationality which conduct fishery operations on land or sea areas under Ecuadoran jurisdiction, are required, in their relations with Ecuador, to subject themselves to Ecuadoran fishing laws, decrees, and regulations. V The Conference on United States-Ecuadoran Fishery Relations, with reference to Agenda Point 3, RECOMMENDS: 1) That as an interim measure and as soon as may be convenient the validity of fishing licenses issued to United States vessels by the Government of Ecuador be extended to include the territorial waters of her continental coast.' 2) That as an interim measure and as soon as may be convenient fishing licenses be granted by radio by Ecuador, subject to adequate controls.1 3) That the United States Government review as soon as may convenient its current law and practice with respect to be a) Clearances for United States fishing vessels with destination 1 Subsequently authorized by Ecuador. "the high seas", including "via la pesca", and "touch and trade", and b) Professional qualifications of officers and condition of navigability, supplies, and so forth, of fishing vessels with such destination, in order to determine what modifications may be needed to obviate or minimize problems in the territorial waters of Ecuador. 4) That, being convinced that there are other measures to be considered which will promote the solution of problems and development of activities beneficial to both the United States and Ecuador, a second conference on fishery relations be held as soon as practicable, preferably by the end of May, 1953 in the United States, to deal with the following agenda: 1 a) The advantages and disadvantages to be achieved by making permanent the measures recommended under 1) and 2) above, relating to licenses to fish including Ecuadoran continental waters, and to the issuance by radio of licenses to fish, to determine what modifications might be needed. b) Consideration of possible changes in law and practice in the United States concerning the issuance of clearances to United States fishing vessels bearing destination "the high seas", "via la pesca", and "touch and trade". c) The granting to fishing vessels holding fishing permits for Ecuadoran territorial waters the same port privileges granted to merchant vessels. d) The granting to fishing vessels not holding such fishing permits, of port privileges under circumstances of necessity, and a point by point clarification of the privileges and responsibilities of vessels permitted such entry. e) The possibility of the Governments or private interests of the United States or Ecuador establishing a fueling station in Ecuadoran territory on the Island of San Cristobal of the Colon Archipelago, or on whatever other island is more suitable, to take care of fueling requirements of the merchant and fishing fleets of the United States and Ecuador in accordance with existing regulations. f) The developing of measures for effective interchange of information concerning fishery laws, decrees, and regulations of the two countries affecting foreign fishing vessels. 2 g) Consideration of the objectives and research program of the Inter-American Tropical Tuna Commission and the advantages which might accrue to Ecuador through adherence to the InterAmerican Tropical Tuna Convention. h) Consideration of other problems and activities, the inclusion of which shall be agreed upon by the Governments of both countries. 5) That the Governments of the United States and Ecuador study the possibility of periodic meetings for the analysis of their fishery 1 This conference had not been held as of Dec. 31, 1955. ? Established in 1950 under the Inter-American Tropical Tuna Convention between the United States and Costa Rica, May 31, 1949; entered into force Mar. 3, 1950 (TIAS 2044; 1 UST 230). problems and for the consideration of recommendations derived therefrom. 6) That the Governments of the United States and Ecuador investigate means to embody in a fishery convention the results achieved at this Conference together with other ways and means of bringing about greater cooperation in fishery matters of mutual interest and benefit to the two countries. 27. RECENT DEVELOPMENTS AFFECTING THE REGIME OF THE HIGH SEAS: Address by the Legal Adviser of the Department of State, May 13, 1955 2 At no time during more than a century have those areas of international law relating to the rights of states in the waters outside their land limits been the subject of such concern as they are at the present time. I have thought it would be of interest to consider this evening what those rights are, the developments that challenge them, and the position of the United States respecting them.3 History has a way of repeating itself, and, since the development of this phase of the law has a bearing on our current problems, I ask this learned group to bear with me while I recall some historic facts. DEVELOPMENT OF LAW OF THE SEA The history of the law of the sea is a reflection of the changing interests of the centuries and of the influence of economics and technological developments. Most important maritime states, at one time or another, have claimed sovereignty over large areas of the seas. The Roman Empire claimed the Mediterranean as Mare Nostrum. In later centuries Venice levied tribute on vessels navigating the Adriatic. Genoa claimed sovereignty of the Ligurian Sea. England's claim to sovereignty of the "English Sea" has been characterized as "in a class by itself." This, Selden in 1635 described as "that [sea] which flows between England and the opposite shores and ports," which would include at least the North Atlantic, the North Sea, and the English Channel. No more modest were the conflicting claims of Spain and Portugal. resolved by Pope Alexander in 1493 by partitioning the Atlantic Ocean between them. 1 Herman Phleger. 2 Address made before the American Branch of the International Law Association, New York, N. Y.; Department of State Bulletin, June 6, 1955, pp. 934-940. Unless bracketed, the footnotes following appear in the original. 3 [The position of the United States as stated in this address was substantially the position as set forth by the U.S. delegations to the Santiago Negotiations on Fishery Conservation Problems Among Chile, Ecuador, Peru and the United States, Sept. 14-Oct. 5, 1955 (see infra); to the Third Meeting of the InterAmerican Council of Jurists, México, D. F., Jan. 17-Feb. 4, 1956; and to the Inter-American Specialized Conference on "Conservation of Natural Resources: The Continental Shelf and Marine Waters," Ciudad Trujillo, Mar. 15-28, 1956.] Such was the situation when Grotius, in 1609, published "Mare Liberum," attacking on broad grounds of equity the whole principle of national dominion over the seas. Although Selden's "Mare Clausum," in 1635, sought to establish that the sea was capable of appropriation and that England was sovereign in the English Sea, it did not prove to be an adequate answer to Grotius. As one author observes, "The reason why Mare Liberum' acquired a historical significance was its earnest and powerful appeal for complete freedom of the high seas for the innocent use and mutual benefit of all." The same author continues: "Grotius spoke in the name of humanity as against the selfish interests of a few. It was his lofty moral ideas which, in combination with the profound legal and historical exposition, gave his work its reputation." With "Mare Liberum" the modern doctrine of the freedom of the seas had been born. During the early 18th century it was to become established law, and by the 19th century it was axiomatic. Freedom of the seas as a principle of international law means that the open sea is not, and cannot be, under the sovereignty of any state. It signifies that in time of peace vessels may not be interfered with on the high seas. To this principle there are certain limited exceptions. Thus, it has long been recognized that a state may suppress piracy. It may seize a vessel flying its flag without authority. The right of hot pursuit is accepted. The enforcement, on the part of coastal states, of revenue and sanitary laws is recognized. Finally, in this modern age, the right of a state, for defense or security purposes, to take preventive measures on the high seas is in process of development. U. S. SUPPORTS FREEDOM OF THE SEAS It is the traditional policy of the United States to support the principle of freedom of the seas. Early in its history its refusal to compromise that principle was one of the causes leading to the War of 1812. The effective defense of the United States, the maintenance of its commercial shipping and air transport, and the prosperity of its fishing industry would all be prejudiced by any serious compromise of this principle. The appropriation by any state of areas of the high seas is as unsound morally today as when Grotius wrote. In an age when technological advancement and increased population have made us indeed one world, it is more important than ever that those natural avenues of intercourse between peoples-the sea lanes and the air routes above should remain free. ATTACKS ON FREEDOM OF THE SEAS Nevertheless, the freedom of the seas is under serious attack. It might be expected that, as in the past, attempts to bring large areas of the high seas under national domination would originate with powerful and maritime states. But the contrary is the case. Today the 1 Meyer, The Extent of Jurisdiction in Coastal Waters (1937), p. 23. attempts to encroach upon the freedom of the seas are being made for the most part by small coastal states. These attempts take various forms. Some states enlarge the area of their inland waters by drawing lines from headland to headland and then, from this baseline, which may be many miles at sea, measuring the width of their territorial waters. Others simply extend the width of their territorial waters by decree. More recently, a favored technique has been to claim exclusive sovereignty over the waters above the Continental Shelf and beyond territorial waters. Some claims to territorial waters extend to a breadth of 200 miles. On August 18, 1952, Peru, Chile, and Ecuador signed a declaration claiming "exclusive jurisdiction and sovereignty" over waters contiguous to their coasts "up to a minimum distance of 200 nautical miles" as well as "exclusive sovereignty" over the subsoil and seabed in this maritime zone. The declaration purports further to make provision for regulating fishing and whaling in this zone. The United States protested these claims on the ground that under international law there is no obligation to recognize claims to territorial waters in excess of 3 miles. Other South American states, including Argentina, Honduras, and El Salvador, have also claimed large areas of the high seas as territorial waters.2 In 1952 Korea, by Presidential proclamation, asserted sovereignty over the seas adjacent to its coasts. There are indications that the Philippines may claim the Sulu Sea as territorial waters." U. S. ADHERES TO 3-MILE LIMIT Consistent with its support of the principle of the freedom of the seas, the United States has always adhered to the 3-mile rule. From the time of Jefferson, the principle that the marginal belt extends one marine league (3 geographical or nautical miles) from the low-water mark has been supported by the State Department, by court decisions, and by treaties. Recently in the Submerged Lands Act, approved May 22, 1953,5 the Congress declared that the boundaries of the coastal states are limited to 3 geographical miles into the Atlantic and Pacific Oceans. By the same act, the Congress left the states bordering the Gulf of 1 [Conferencia de Explotación y Conservación de las Riquezas marítimas del Pacífico Sur: Declaración sobre Żona Marítima (Annex 19; República del Peru, Memoria del Ministro de Relaciones Exteriores... 4 de Agosto de 1952-27 de Julio de 1953 (Lima, 1954), pp. 70-72).] 2 [Respecting Argentine legislation in this field, see the Argentine Decree No. 1386, Jan. 24, 1944 (English-language translation in Laws and Regulations on the Regime of the High Seas, vol. I (United Nations publication ST/LEG/SER.B/1; 1951), pp. 3-4) and Decree No. 14708, Oct. 11, 1946 (ibid., pp. 4-5); for Honduras, see the Honduran Congressional Decree No. 102, Mar. 7, 1950 (ibid., pp. 11-12) and Congressional Decree No. 103, Mar. 7, 1950 (ibid., p. 12); for El Salvador, see article 7 of the Political Constitution of El Salvador, adopted Sept. 7, 1950 (ibid., pp. 300-301).] 4 3 [Presidential Proclamation of Jan. 18, 1952.] [As of the end of calendar year 1955, no official public action had been taken in this direction.] 567 Stat. 29. |