Foreign Relations of the United States Diplomatic Papers, 1937, The Far East, Volume IV

711.008 North Pacific/170

The Secretary of State to the Chairman of the Senate Committee on Commerce (Copeland)⁶¹

Washington, August 4, 1937.

My Dear Senator Copeland: Reference is made to your letter of June 19, 1937,⁶² transmitting on behalf of the Senate Committee on Commerce a copy of S. 2679 “To protect and preserve the salmon fishery of Alaska, and for other purposes”⁶³ and requesting that I furnish the Committee with such suggestions as I may deem proper concerning the merits of the bill and the propriety of its passage. Reference is also made to my acknowledgment of your letter under date June 24, 1937.⁶²

Officers of the Department have given careful study to the bill, and I now offer for the consideration of the Senate Committee on Commerce comment thereon, as follows:

The provisions of the bill which appear to be of chief concern to the Department are contained in Sections 2 and 3 (a) which read as follows:

• Sec. 2. The salmon which are spawned and hatched in the waters of Alaska are hereby declared to be the property of the United States, and it shall be unlawful for any person, firm, or corporation to fish for, take, or catch any of said salmon in the waters adjacent to the coast of Alaska, except under such reasonable rules and regulations as the Secretary of Commerce may provide. Jurisdiction of the United States over the waters adjacent to the coast of Alaska for the necessary protection and preservation of the salmon fishery shall extend, subject to all valid treaties, in all cases outward from the coast of Alaska a distance of four leagues, and in addition thereto to all the waters adjacent to the coast of Alaska, east of the international boundary in Bering Sea between the United States and the Union of Soviet Socialist Republics, the depth of which is less than one hundred fathoms, and which the President has found and declared to be salmon-fishery law-enforcement areas as hereinafter provided.
• Sec. 3. (a) Whenever the President finds and declares that in any place or within any area on the waters adjacent to any part of the coast of Alaska any vessel or vessels hover or are being kept off the coast of Alaska for the purpose of catching or taking Alaska salmon which are en route to the lakes, rivers, or other inland waters of Alaska to spawn, such place or area so found and declared shall constitute a salmon-fishery law-enforcement area for the purposes of this Act. Only such waters shall be within a salmon-fishery law-enforcement area as the President finds and declares are in such proximity to such vessel or vessels that the area so defined is used or is likely to be used by such vessel or vessels for the fishing for, taking, or catching of Alaska salmon. No salmon-fishery law-enforcement area shall include any waters more than one hundred nautical miles from the place or immediate area where the President declared such vessel or vessels are hovering or being kept, and, notwithstanding the foregoing provision, shall not include any waters more than four leagues from shore unless said waters are less than one hundred fathoms deep, or any waters lying west of the boundary between the United States and the Union of Soviet Socialist Republics in the Bering Sea. …⁶⁴

There is transmitted under separate cover, for the inspection of your Committee, a copy of the Hydrographic Office Chart No. 68 on which is shown: (a) the line described in Article I of the treaty of March 30, 1867, ceding Alaska to the United States,⁶⁵ which is the line referred to in the foregoing provisions as the “International boundary in Bering Sea between the United States and the Union of Soviet Socialist Republics”, (b) the limit of waters within twelve nautical miles (four leagues) of territory of the United States and (c) the one hundred fathom submarine contour line.

In regard to the merits of the bill, while the Department is sympathetic with the purposes which the bill seeks to achieve, it is to be noted that the bill is based upon principles extending jurisdiction on the high seas which would appear to be without legal precedent. More specifically, the bill, breaking with the generally established principle that in the absence of a treaty granting rights on the high seas jurisdiction of the United States should be asserted only to the distance of three nautical miles from the coast, would provide for the possibility of extension by presidential proclamations of jurisdiction of the United States up to the line established by the abovementioned treaty of March 30, 1867, on the basis of the unprecedented depth principle of one hundred fathoms.

It will be observed that under the provisions aforementioned of the bill the jurisdiction of the United States could be asserted over waters as far distant as 200 nautical miles from the coast and with respect to Bristol Bay as far as 135 nautical miles from the coast. The effect of this provision would then be to afford the possibility of extension by presidential proclamation of salmon-fishery law-enforcement areas, to any of the waters east of the line established by the treaty of 1867 and north of the 61° north latitude and to nearly one-half of all the waters between that latitude and the Aleutian Islands and east of the above-mentioned line. The dangers of international controversies and dissensions inherent in such a proposal are at once apparent.

Furthermore, it is to be pointed out that should this bill be enacted and if similar claims as to jurisdiction and to the right of enforcing such claims were made by another nation this Government would find it difficult to object to the application of the principle against our own nationals and vessels. It would therefore be desirable that study be made in this connection of how the rights of American vessels to fish in waters off the coast of Newfoundland, British Columbia and Mexico would be affected by an assertion by the government concerned of claims as to jurisdiction analogous to those proposed in the bill.

Notwithstanding the foregoing comments, it is my view that the question of the possible extension of the present three mile limit for territorial waters should not be dismissed simply because that limit has heretofore been largely accepted. It is recognized that under modern conditions an extension of the limit might be helpful in connection with questions such as fisheries and hovering. The Department will therefore expect to continue to give careful thought to this phase of the matter and to the supplemental question of how international agreement upon this subject, if an extension should be considered advantageous and desirable, might be brought about.

With regard to the propriety of passage of such a bill, the problems presented by the prospects of participation by nationals of other countries in the salmon fisheries off the coast of Alaska is one which has for some time been engaging the Department’s constant and earnest attention. After careful study of these problems, the Department has come to the conclusion that the solution should be sought through the medium of diplomatic negotiations with the governments chiefly concerned. For the confidential information of the Committee, it may be stated that the Department has already taken appropriate preliminary steps to this end. It is obvious that discussion of the subject through diplomatic channels has required careful preparation by the Department and can be pursued successfully only under circumstances and conditions which are propitious for an advantageous solution of the problem. The enactment of such a bill, by reason of its controversial assertions as to jurisdiction, would seriously embarrass the course of negotiations which the Government might otherwise be in a favorable position to pursue with other governments in regard to this matter; moreover, the debates and discussions incident to the consideration of the bill in Congress might, by arousing public feeling over the question both in the United States and in the foreign countries concerned, prove prejudicial to effective action by this Government in regard to the existing situation and to a successful outcome of the negotiations.

It is my considered belief that pending the outcome of negotiations by this Department, the enactment by Congress of such legislation, irrespective of its merits, would be inopportune.

Sincerely yours,

Cordell Hull

61. The Department wrote similarly to the Chairman of the House Committee on Merchant Marine and Fisheries (Bland).
62. Not printed.
63. Introduced by Senator Bone, June 18, Congressional Record, vol. 81, pt. 6, p. 5953.
62. Not printed.
64. Omission indicated in the original letter.
65. Foreign Relations, 1867, pt. 1, p. 388.