Mexico free to establish historic claims to boundaries extending more than 3 geographical miles, but limited such boundaries, if established, to 3 marine leagues from the coast.

The tendency of states to advance claims to territorial waters in excess of 3 miles has been particularly marked following the failure of the Codification Conference in 1930 at The Hague to agree on a convention on territorial waters.' However, states still adhering to the 3-mile rule represent about 80 percent of the merchant shipping tonnage of the world and most of its naval power.

POSITION OF U. S. ON INTERNATIONAL LAW QUESTION

The position of the United States is shown in its comments on the Draft Articles on the Regime of the Territorial Sea of the International Law Commission, which includes the following:

2

So far as concerns the question of the breadth of the territorial sea . . . the guiding principle of the Government of the United States is that any proposal must be clearly consistent with the principle of freedom of the seas.

That the breadth of the territorial sea should remain fixed at three miles, is without any question the proposal most consistent with the principle of freedom of the seas. The three-mile limit is the greatest breadth of territorial waters on which there has ever been anything like common agreement. Every one is now in agreement that the coastal state is entitled to a territorial sea to that distance from its shores. There is no agreement on anything more. A codification of the international law applicable to the territorial sea must, in the opinion of the Government of the United States, incorporate this unique status of the three-mile limit and record its unquestioned acceptance as a lawful limit.

This being established, there remains the problem of ascertaining the status of claims to sovereignty beyond the three-mile limit. The diversity of the claims involved bears witness to the inability of each to command the degree of acceptance which would qualify it for possible consideration as a principle of international law. A codification of the international law applicable to the territorial sea should, in the view of the Government of the United States, record the lack of legal status of these claims.3

The International Court of Justice made clear in the Norwegian Fisheries case that the delimitation of territorial waters is not a matter dependent merely upon the will of the coastal state but that "the validity of the delimitation with regard to other States depends upon international law." 4

CONSERVATION OF FISHERY RESOURCES

But while the United States does not consider that claims to territorial waters in excess of 3 miles have validity, with the possible ex

[For the records of the portion of the 1930 Codification Conference dealing with the question of territorial waters, see vol. III, "Minutes of the Second Committee," of the Acts of the Conference (League of Nations doc. C. 351 (b). 145 (b). 1930. V).]

2

M.

Report of the International Law Commission Covering the Work of Its Sixth Session, 3 June-28 July, 1954 [supra, pp. 302-321].

Regime of the Territorial Sea, Comments by Governments on the Provisional Articles concerning the Regime of the Territorial Sea adopted by the International Law Commission at its sixth session, U. N. doc. A/CN.4/90, 29 Mar. 1955, pp. 33, 34-35; Department of State Bulletin, Apr. 25, 1955, p. 699.

International Court of Justice Reports, Judgment of Dec. 18, 1951, pp. 116,

415900-57- -89

ception of historic ones generally acquiesced in, it does not consider that the considerations which motivate such claims can or should be ignored. What are these considerations? While oversimplification is dangerous, it is suggested that they relate to fishery resources. As one authority has put it, "the fishery question has been the focal point of the whole problem of territorial waters from its very beginning.'

With those states which are concerned over the depletion of high seas fisheries and desire to take measures for their conservation, the United States has every sympathy. The dictum of Grotius that the resources of the sea are inexhaustible has long since been recognized as unsound. As long ago as the Bering Sea arbitration2 the United States asserted that unrestricted destruction of the living resources of the sea-in that case, fur seals-was contrary to good morals. The United States is a party to more treaties and agreements having for their objective the conservation of the resources of the sea than any other country.

On September 28, 1945, President Truman issued his proclamation on fisheries for the purpose of "improving the jurisdictional basis for conservation measures and international cooperation in this field." This declares the policy of the United States on the establishment of fishery conservation zones in the high seas contiguous to its coasts. Where such fishing activities are maintained by United States nationals alone, it regards it as proper that regulation be exercised by the United States exclusively. But where the fishing activities have been legitimately developed and maintained jointly by nationals of the United States and nationals of other states, conservation zones may be established by agreement between the United States and such other states.

This proclamation has been misunderstood by some as implying a claim to exclusive fishing rights for United States nationals in the waters off its coasts. The proclamation asserts no such claim, and such is not the position of the United States.

As the Secretariat of the United Nations has pointed out in its Memorandum on the Regime of the High Seas: "There is a fundamental difference between the United States Proclamation on Fisheries and the Latin American texts which have followed it." President Truman's proclamation specifically stated that "The character as high seas of the areas in which such conservation zones are established and the right to their free and unimpeded navigation are in no way thus affected." The sole purpose of the proclamation was to make possible by appropriate legal means the prevention of the depopulation and destruction of international fishing grounds.

Notwithstanding this, the United States proclamations on fisheries and on the Continental Shelf have been used by some states as a

1 Riesenfeld, Protection of Coastal Fisheries under International Law (1942), p. 3. 2 [See John Bassett Moore, History and Digest of International Arbitrations to Which the United States Has Been A Party, etc., vol. I (Washington, 1898), pp. 755-961.]

3 Department of State Bulletin, Sept. 30, 1945, p. 486 [10 Fed. Reg. 12304). U.Ñ. doc. A/CN.4/32, July 14, 1950, p. 47.

justification for attempts to extend their sovereignty over large areas of the high seas. The International Law Commission of the United Nations no doubt had these measures in mind when it pointed out in connection with its draft articles on fisheries adopted at its fifth session (1953) that regulations issued by a state for the conservation of fisheries in any area of the high seas outside its territorial waters are binding only upon its nationals and that such unilateral measures resulting in the total exclusion of foreign nationals are "in disregard of the law as it stands at present."

INTERFERENCE WITH FISHING ON THE HIGH SEAS

So far as the United States is concerned, the immediate impact of these claims of South American states has fallen upon its fishing industry, whose vessels fish in the Pacific as far south as Peru. There has resulted a series of incidents ranging from molestation of American fishing vessels by local authorities at points far off the coast, to the seizure of the craft and their detention until heavy fines are paid.

To insure that these losses should not fall upon private persons, the Congress on August 27, 1954, enacted a statute providing that, where a United States flag vessel is seized by a foreign country on the basis of claims in territorial waters or the high seas not recognized by the United States and a fine must be paid in order to secure a release of the vessel and crew, the owners shall be reimbursed by the Treasury upon certification by the Secretary of State. Several claims for such reimbursement are pending at the present time.

Perhaps the most conspicuous example of the efforts to enforce claims of sovereignty to the high seas was the seizure last November by Peruvian war vessels and aircraft of five whaling vessels owned by A. S. Onassis flying the Panamanian flag. According to information furnished by Panama to the Organization of American States, two of the vessels were captured approximately 160 miles off the Peruvian coast; two others were attacked with bombs and machinegun fire by Peruvian naval and air units while 300 miles off the coast; and later the factory vessel was attacked by a Peruvian plane 364 miles offshore. These vessels were taken into a Peruvian port and detained until fines of $3 million were paid. Insurance against this hazard was held by Lloyd's (90 percent) and by insurers in the United States (10 percent). Panama, the United Kingdom, and the United States protested to Peru concerning the incident.

On March 27, 1955, Ecuador seized two American flag fishing vessels, the Arctic Maid and Santa Ana, some 14 to 25 miles west of the Island of Santa Clara off the Ecuadoran coast. In the course of the seizure, an American seaman was seriously wounded by gunfire from an Ecuadoran patrol vessel. Although the United States made a strong protest against these illegal acts, fines of more than $49,000 were imposed on the two vessels.

1 Report of the International Law Commission Covering the Work of Its Fifth Session, 1 June-14 August 1953, U.N. doc. A/2456, p. 17.

268 Stat. 883.

UNITED NATIONS ACTIVITIES IN THIS FIELD

The draft articles on fisheries prepared by the International Law Commission of the United Nations have not yet been considered by the General Assembly. However, the Assembly at its ninth session (1954) convoked an international conference to consider the economic and technical aspects of the living resources of the high seas to meet in Rome on April 18 of this year. It is hoped that this conference will recommend measures for the regulation and conservation of high seas fisheries that will satisfy the legitimate interests of coastal states while at the same time preserving the freedom of the seas.

PROCLAMATION ON THE CONTINENTAL SHELF

On September 28, 1945, the same date as his proclamation on fisheries, President Truman issued another proclamation which is also important in any consideration of this subject. This is the proclamation on the Continental Shelf.2

It sets forth the view of the United States that the exercise of jurisdiction over the natural resources of the subsoil and seabed of the Continental Shelf by the contiguous nation is reasonable and just for the following reasons:

1. The effectiveness of measures to use or conserve these resources would be contingent upon cooperation and protection from the shore; 2. The Continental Shelf may be regarded as an extension of the land mass of the coastal nation and thus naturally appurtenant to it; 3. The resources under the shelf frequently form a seaward extension of a pool or deposit lying within the territorial limits; and

4. Self-protection compels a coastal nation to keep close watch over the activities off its shores which are necessary for utilization of these resources, i.e., drilling and mining operations.

In the interest of law and order, jurisdiction over the activities in these offshore areas should be determined. It is submitted that it is reasonable that this jurisdiction should inhere in the coastal state since these activities must receive cooperation and protection from the shore and they affect the safety of the coastal state.

The proclamation declares that the United States regards the natural resources of the subsoil and seabed of the Continental Shelf as appertaining to the United States and subject to its jurisdiction and control. Where the shelf extends to the shore of another state, the boundary is to be determined by the interested parties on equitable principles. Finally, the proclamation declares, "The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected."

The draft articles on the Continental Shelf prepared by the International Law Commission describe the rights of the coastal state over

1 Department of State Bulletin, Jan. 10, 1955, p. 64, and Apr. 25, 1955, p. 696. [U. N. International Technical Conference on the Conservation of the Living Resources of the Sea, Rome, Apr. 18-May 10, 1955]

2 Ibid., Sept. 30, 1945, p. 485 [10 Fed. Reg. 12303].

the shelf as "sovereign rights for the purpose of exploring and exploiting its natural resources," thus recognizing that the rights are over the shelf and not merely over its resources. The term "sovereign rights" was preferred by the drafters over the expressions "jurisdiction and control" advocated by some nations and "rights of sovereignty" preferred by others. In explanation, the International Law Commission stated that the formulation "sovereign rights" rather than "sovereignty" was employed in an effort "to avoid language lending itself to interpretations alien to an object which the Commission considers to be of decisive importance, namely, safeguarding the principle of the full freedom of the superjacent sea and the airspace above it." 1

This principle is made clear in the Truman proclamation and is reaffirmed in the Outer Continental Shelf Lands Act (Sec. 3 (b)), which provides:

the character as high seas of the waters above the outer continental shelf and the right of navigation and fishing therein shall not be affected.?

The principle is also declared in articles 3 and 4 of the International Law Commission's 1953 draft, which state that the rights of the coastal state over the Continental Shelf do not affect the legal status of the superjacent waters as high seas or the legal status of the airspace above the superjacent waters.3

The term "Continental Shelf" is not defined in the Truman proclamation. However, the accompanying White House press release stated that generally the subsoil and seabed of the submarine areas contiguous to the coasts of the United States was considered to be limited to submerged land covered by no more than 100 fathoms (600 feet) of water. This limitation-defined in article 1 of the International Law Commission's draft as 200 meters-would seem to cover all practicable needs for the foreseeable future and to have the advantage of definiteness. If future technical advances should render this formulation inadequate, it can be reconsidered in the light of intervening experience.

That the principles of the Truman proclamation on the Continental Shelf were considered fair and reasonable is evidenced by the fact that no nation protested the claim and that it has been followed by similar claims by numerous other states. Certain United Kingdom practice and the pronouncements with respect to the Persian Gulf are comparable, in considerable measure, to the Truman proclamation. The Latin American practice differs, however, as I will now point out.

ERRONEOUS APPLICATION OF CONTINENTAL SHELF DOCTRINE Following the United States proclamation, Mexico announced its claim to the adjacent Continental Shelf and its natural resources 1 Report of the International Law Commission, Fifth Session (cited ante), pp.

12, 14.

2 67 Stat. 462.

3 Report of the International Law Commission, Fifth Session (cited ante), p. 12. Department of State Bulletin, Sept. 30, 1945, p. 484.

4