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Published online by Cambridge University Press: 30 March 2017
1 The Proceedings and Pinal Act of the Conference are contained in the document entitled “Final Act of the Conference and Becord of Proceedings” (hereinafter referred to as Record), available in records of the Department of State.
2 Judgment of April 9, 1949, I.C.J. Reports, 1949; this Journal, Vol. 43 (1949), pp. 558–589.
3 Smith, H. A., The Law and Custom of the Sea (N. Y., 1950), p. 33 Google Scholar.
4 Westlake affirms that a ship in innocent passage is in the territorial sea as a matter of right and not merely by permission of the littoral State. Westlake, John, International Law (2nd ed., Cambridge, 1910), Vol. 1, p. 187 Google Scholar.
5 Jessup, Philip C., The Law of Territorial Waters and Maritime Jurisdiction (N. Y., 1927), p. 123 Google Scholar.
6 Smith, op. cit., p. 33.
7 Harvard Draft Convention, this Journal, Spec. Supp., Vol. 23 (1929), p. 244.
8 Memorandum on the Regime of the High Seas, U.N. Doc. A/CN.4/32 (July 14, 1950), p. 37; Louisiana v. Mississippi (1906), 202 U. S. 1, 52; L. Oppenheim, International Law (7th ed., by H. Lauterpacht), Vol. 1, p. 446; Daggett, A. P., “The Regulation of Maritime Fisheries by Treaty,” this Journal , Vol. 28 (1934), p. 704 Google Scholar.
9 This Journal, Spec. Supp., Vol. 20 (1926), p. 105 (italics added). The North Sea Fisheries Convention, signed at The Hague on May 6, 1882, by Great Britain, Germany, France, Belgium, Denmark, and The Netherlands, provided in Art. II that: “The fishermen of each country shall enjoy the exclusive right of fishing within the distance of three miles from low-water mark along the whole extent of the coasts of their respective countries, as well as of the dependent islands and banks…. The present Article shall not in any way prejudice the freedom of navigation and anchorage in territorial waters accorded to fishing-boats, provided they conform to the special police regulations enacted by the Powers to whom the shore belongs.” 73 British and Foreign State Papers 39, 41.
10 Mr. Bayard, Secretary of State, to Mr. Manning, Secretary of the Treasury, May 28, 1886, I Moore’s Digest 721; Foreign Relations of the United States, 1902, App. I, p. 356.
11 Record, p. 25.
12 Ibid., p. 44.
13 Ibid., pp. 56–57.
14 Ibid., pp. 58–59.
15 Ibid., pp. 59–60. The statement attributed to Charles Cheney Hyde, International Law, Chiefly as Interpreted and Applied by the United States, was reported as in Vol. I, p. 515. There are two editions of Hyde, the first published in 1922, the second in 1945. Vol. I, p. 515, of the 1922 edition has nothing to do with territorial waters or related topics. It is obvious that the Ecuadoran delegate was referring to the 1945 edition. However, at no point in either edition does Hyde recognize a right on the part of a coastal state to deny innocent passage to inoffensive fishing vessels. In Vol. I, p. 518, of the 1945 edition he states that innocent passage requires passing foreign vessels “to refrain from interference with, or destruction of, the fisheries.” He states in Vol. I, p. 277, of the 1922 edition that the interests of the whole world are concerned in the possession of the utmost liberty of navigation for the purposes of trade by the vessels of all states. This statement is repeated in Vol. I, p. 516, of the 1945 edition, with the addition of a phrase to the effect that the concern of these interests now “does not fail to embrace the common needs in time of peace of vessels that may not be engaged in trade.”
16 Record, p. 61. For text of 1926 report, see this Journal, Spec. Supp., Vol. 20 (1926), p. 94. Art. 7 actually used the expression “pacific passage,” which apparently is synonymous with “innocent passage.” For text of the 1930 report’s articles on innocent passage, see I Hackworth’s Digest 649–651.
17 Record, p. 61. The U. S. Delegation was paraphrasing the Italian delegate’s comment. It cited the Italian delegate as actually saying: “We are dealing with passage of vessels through territorial waters, and it cannot be conceived that a fishing vessel may have the right to fish.” Ibid.
18 Ibid., pp. 61–62. Hyde’s position would seem to be that the activities of foreign fishing vessels passing through the territorial sea may be limited by legislation enacted by the shore state for the protection of its coastal fisheries, but that innocent passage may not be denied such vessels so long as their passage is truly innocent, i.e., they are merely transiting the territorial sea and are engaged in no activity harmful to the local fisheries. Hyde, op. cit., Vol. I (1945 ed.), pp. 515–518; Vol. I (1922 ed.), pp. 277–278.
19 Record, p. 62.
20 Ibid., pp. 62–63.
21 Ibid., pp. 64–65.
22 Ibid., p. 65.
23 Ibid., p. 66.
24 Ibid., p. 65.
25 Ibid., pp. 67–70.
26 Ibid., p. 8.
27 “Report on the Eegime of the Territorial Sea,” by J. P. A. François, Special Rapporteur, U.N. Doc. A/CN.4/53 (April 4, 1952), p. 11.
28 See Laws and Regulations on the Regime of the High Seas, United Nations Legislative Series, Vol. I (U.N., N. T., 1951); and Whittemore Boggs, S., “National Claims in Adjacent Seas,” The Geographical Beview, Vol. XVI (1951), pp. 185–209 CrossRefGoogle Scholar.
29 The note continued by stating that the U. S. position with respect to the breadth of the territorial sea is that it extends three marine miles from the coasts, and that the U. S. will not consider its nationals or vessels bound by the Honduran decrees. Text from records of the Department of State.
30 The Inter-American Council of Jurists proposed a “Draft Convention on Territorial Waters and Belated Questions” in 1950, wherein it was stated, inter alia:
“Article I. The signatory States recognize that present international law grants a littoral nation exclusive sovereignty over the … waters of its continental shelf….”
“Article 4. The principles of international or treaty law heretofore recognized between the Parties with respect to territorial waters, and specifically those referring to the exploitation of natural resources and the rights of navigation, are applicable to the continental shelf.”
Document entitled “Draft Convention on Territorial Waters and Related Questions,” Inter-American Juridical Committee, Fan American Union, Department of International Law (Wash., D. C, November, 1952), p. 1.
31 Registro Oficial, No. 756, March 6, 1951.
32 Text from records of the Department of State.
33 Note 2 above.
34 This Jouenal, Vol. 43 (1949), pp. 576–578.
35 Op. cit., Vol. I (1945 ed.), p. 517; Vol. I (1922 ed.), p. 278.