487. Memorandum From the Special Assistant for Fisheries and Wildlife (Herrington) to the Assistant Legal Adviser for Special Functional Problems (Yingling)1
SUBJECT
- Comments on Canadian Proposals Regarding a Multilateral Convention on the Territorial Sea and Fisheries Jurisdiction
- 1.
- The proposed formula in either the 6+6 form or the 6+6 with the Brazilian-Cuban-Uruguyan amendment, would be of no substantial benefit to U.S. fishermen off the coast of the United States, particularly since [Page 1100] in no event would the USSR be a party nor would Japan be a party if the Brazilian amendment is included. On the other hand, the formula would do very substantial damage to U.S. fisheries off the coast of Latin America, particularly with the Brazilian amendment included, and lesser damage off the coasts of Canada. Consequently the United States should consider accepting the Canadian proposal only if it can be demonstrated that there would be substantial, over-riding benefits in the field of national security.
- 2.
- The threat to national security interests appears to lie in the possibility of the world, with the territorial sea problem unresolved, moving increasingly to a 12-mile territorial sea. There appear to be no indications of serious threats to go beyond this distance since the Law of the Sea Conference in 1960.
At both the 1958 and 1960 Conferences the United States based its 3-mile position on the argument that this was the only rule that had been generally accepted by the family of nations and that this rule could not be changed by unilateral actions or agreements between states, except by generally agreed upon multilateral action. It would appear therefore that a multilateral convention of the type proposed would be helpful only if generally accepted by nations. The prospects of such general acceptance can be realistically evaluated on the basis of our extensive experience at the 1958 and 1960 Conferences and our bilateral consultations with most of the participating nations in the course of our preparatory work.
Judged by this background, the results of the Canadian-UK preliminary survey of some 21 nations would appear to be more discouraging than encouraging since about half of them have attached qualifications or reservations to their support. If the Brazilian amendment is included in the formula it can be expected that the response of the Europeans would be even less favorable. On the other hand, failure to include the Brazilian amendment would lose most of the coastal states. This includes practically all of Latin America and many in Africa and Southeast Asia. The resulting document then would be primarily a North Atlantic agreement including Western Europeans, Canada, the United States and a few others. Thus it appears that the prospects of general acceptance of either of these formulas approaches the vanishing point. In fact it is most likely that an attempt on our part to get support for any form of 6+6 formula would stimulate the negotiation of a rival multilateral agreement on a 12-mile territorial sea which would gain support approaching or possibly exceeding that for ours. The chief result then would be to crystalize the division of the world into two blocs with the rival claims generating comparable status. Under these circumstances any military action by the U.S. Armed Forces which did not respect the 12-mile jurisdiction of members of the rival agreement would become substantially more subject to criticism than at present if by our own action we have admitted the right of states to [Page 1101] determine the breadth of their territorial sea by limited multilateral action. Thus a strong case can be made that the security interests of the United States would be more likely to be substantially damaged than benefited by the proposed action.
In assessing the extent of support that might be developed I have estimated that European adherence to any agreement which includes the Brazilian amendment would be very limited because of the serious threat to their fishing interests by making possible the extension of the fishing jurisdiction of the coastal states beyond 12 miles. On this assumption the possibilities of such an agreement obtaining broad and representative support are so poor as to be negligible. Should this evaluation be open to real question and it be decided that further sounding out of positions is justified, it would appear extremely desirable to first ascertain the position of the European states on the Brazilian amendment before the United States becomes publicly associated with the proposed extended exploratory project. If this check substantiates the evaluation that the European reaction to the Brazilian amendment is generally negative it should provide convincing evidence that the Canadian proposal is more likely to worsen than improve the present situation.
- Source: National Archives and Records Administration, RG 59, Central Files 1960–63, 399.731/5–2361. Secret.↩