Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-25T08:06:17.809Z Has data issue: false hasContentIssue false
  • English
  • Français

The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Seas

Published online by Cambridge University Press:  28 March 2017

Arthur H. Dean
Get access Rights & Permissions [Opens in a new window]

Extract

The opening of the Northwest Passage between the Atlantic and the Pacific Oceans under the Arctic ice by the atomic submarines U.S.S. Seadragon and U.S.S. Nautilus heralds the conquest of hitherto impenetrable undersea depths. Yet this event is only one of many triumphs along a new frontier of oceanographic exploration and development which is uncovering untapped sources of immeasurable wealth and benefits for all peoples. But even as we confidently prepare to harness these vast natural resources of the oceans, we must seek to achieve equitable agreements on international laws of the sea by which nations will abide. Only thus can the freedom of the seas and the right to harvest its resources be ensured without the risk of anarchy and wasteful depletion; only thus can nations avoid increased risk of strife and, possibly, war over conflicting claims to the bounty of the seas.

Type
Research Article
Information
American Journal of International Law , Volume 54 , Issue 4 , October 1960 , pp. 751 - 789
Copyright
Copyright © American Society of International Law 1960

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 That earlier attempts to open the Northwest Passage contributed to man's conquest of the Arctic is indicated by the reliance placed upon the logbook of the early 19thcentury British navigator, Sir William Parry, whose soundings made possible the Seadragon's passage through some of the more treacherous straits, according to her captain. N. Y. Times, Sept. 15, 1960, p. 9.

2 U.N. Doc. No. A/BES/1307(XIII) (1958); 1958 U.N. Yearbook 381-383. The states in attendance at the second Conference were the same as at the first Conference, except for the absence of Afghanistan and the additional presence of Cameroons and Guinea. Yemen appeared but did not vote at the first Conference.

3 See map, N.Y.Times, May 11, 1960, p. 1.

4 A note of Dee. 12, 1955, from the Philippine Ministry of Foreign Affairs to the United Nations Secretariat, it was stated that “ … all waters around, between and connecting the different islands belonging to the Philippine Archipelago irrespective of their widths or dimensions, are necessary appurtenances of its land territory, forming an integral part of the national or inland waters, subject to the exclusive sovereignty of the Philippines.” Laws and Regulations on the Regime of the Territorial Sea, U.N. Doc. No. ST/LEG/SEB.B/6, at 39 (1956). By Act No. 4, published Feb. 18, 1960, Indonesia claimed as “internal waters” all those areas of the sea within straight base lines “connecting the outermost points on the low water mark of the outermost islands or part of such islands comprising Indonesian territory.” Addendum to Supp. to Laws and Regulations on the Regime of the Territorial Sea, U.N. Doc. No. A/CONF.19/5/Add.l, at 3-4 (1960).

5 1 Oppenheim, International Law 461 (8th ed., Lauterpacht, 1955) (hereinafter cited as 1 Oppenheim).

6 See ibid, at 506; U.N. Conference on the Law of the Sea, 1 Official Records, Preparatory Documents at 3-9 (U.N. Doe. No. A/CONF.13/37 (1958), hereinafter cited as Official Records with appropriate volume and document numbers).

7 See note 53 below.

8 Oppenheim 493-494; 1 Hyde, International Law 515-519 (2nd rev. ed., 1945, hereinafter cited as Hyde).

9 See note 76 below.

10 See 1 Oppenheim 487, 519, 525-529.

11 The Convention on International Civil Aviation, 61(2) Stat. 1180, T.I.A.S., No. 1591 (open for signature in Chicago, Dee. 7, 1944, in force April 4, 1947), had been ratified by 72 states as of January, 1958. U.N. Doc. No. A/CONF.13/31 (1958). Art. 2 thereof provides that national sovereignty over “ a i r space” applies to “the land areas and territorial waters adjacent thereto.” The provision in Art. 6 that “ N o scheduled international air service may be operated” except with “special permission or other authorization of … “ the subjacent state, is overcome to a large extent by other agreements signed with various states at Chicago in 1944. The United States adheres to the International Air Services Transit Agreement by which each state grants airlines of other signatory states the privileges (a) “ t o fly across its territory without landing” and (b) “ t o land for non-traffic purposes.” Dec. 7, 1944, 59 Stat. 1693, Exec. Agreement Series, No. 487. These “Two Freedoms” are supplemented by bilateral agreements, such as those between the United States and the United Kingdom, which provide for receiving and discharging passengers, mail and cargo. See the U.S.- U.K. Agreement of Feb. 11, 1946, 60 (2) Stat. 1499, T.I.A.S., No. 1507, and amendments thereto, relating to specific scheduled routes. The United States had been the foremost sponsor of the “ F i v e Freedoms” Agreement signed at Chicago in 1944, but was unable to obtain sufficient support for the principle of unqualified freedom of international navigation contained therein, and therefore withdrew from that Agreement in accordance with its terms. 1 Oppenheim 527-528; Briggs, The Law of Nations 323 (2d ed., 1952, hereinafter cited as Briggs).

12 The Soviet Union has attacked United States aircraft flying over the high seas, including the Pacific Ocean, the Baltic Sea, the Sea of Japan, and the Bering Sea, on at least a dozen different occasions since 1950. N.Y. Times, July 17, 1960, § 4, p. E 5; see note 165 below.

13 See statement of the writer in Hearings on Conventions on the Law of the Sea Before the United States Senate Committee on Foreign Eelations, 86th Cong., 2d Sess., 7-8 (1960).

14 The Icelandic people have always been dependent upon coastal fisheries for their survival, and fishing limits beyond three miles have been claimed at various times over past centuries. See notes 27 and 29 below. Most of Iceland's necessities of life have to be imported and paid for by Iceland's exports, 97% of which are fishery products. Iceland believes that it is faced with ruin as a result of overfishing, against which conservation conventions of 1937 and 1946 have been ineffective. See statement (in summary form, hereinafter indicated by the U.N. document symbol “SE.“) of the representative of Iceland at the second Conference. U.N. Doc. No. A/CONF.19/C.1/ SE.ll, at 4-10 (1960). It is hoped that the long dispute between Iceland and the United Kingdom may be ended by constructive steps through negotiations recognizing the needs of both parties. It has been stated that the social and economic conditions of Peru are closely dependent upon the prevalence of myriads of fish which thrive in the adjacent Peruvian (or Humboldt) Current, which moves up the West Coast of South America, and upon the sea birds which live upon these fish. Not only are many of Peru's people largely dependent upon fish for food and for their livelihood, but also the agriculture of Peru is dependent upon the guano deposits of millions of sea birds, including cormorants, pelicans, terns and gulls, which give Peru most of its supply of fertilizer. For example, in 1956 some 330,000 tons of this guano, which is now protected by law, were harvested. When this current occasionally changes its course out to sea or slackens, it is said an effect known as El Nino occurs, the fish disappear or move with the current out to sea, multitudes of the birds die of starvation, and the guano harvest is insufficient. It has been estimated that the bird population may be cut from a norm of 30 million to 5 or 8 million. See statements of representatives of Peru at the second Conference, U.N. Docs. Nos. A/CONF.19/C.1/SB.7, at 5 (1960) and A/CONP.19/8B.11, at 7-10 (1960); Cowen, Frontiers of the Sea 164-166 (1960); Beiff, The United States and the Treaty Law of the Sea 51, 52, 307-309 (1959); 17 Encyclopaedia Britannica 631 (14th ed., 1938). It is this dependence upon the natural cycle of the sea which has given rise to the “bioma” theory and claims of fishing jurisdiction out to 200 miles, the maximum distance from shore of the Peru Current, which at other times extends less than 100 miles. Sayan, The Position of Peru 10-13 (1958); Sørensen, Law of the Sea 219 (International Conciliation, Carnegie Endowment for International Peace, 1958); cf. Beiff, above, at 307. The Peruvian Decree No. 781 of Aug. 1, 1947, specifically asserted this guano-fishery interdependence as justification for the 200-mile claim. U.N. Legislative Series, Laws and Regulations on the Regime of the High Seas, U.N. Doc. No. ST/LEG/SEE.B/1, at 16 (1951).

15 See statements at the Conference by representatives of the United Kingdom and Japan. U.N. Docs. Nos. A/CONF.19/C.1/SB. 6, at 5-9 (1960) and A/CONF.19/ C.1/SB.9, at 5-7 (1960).

16 See statements in the Committee of the Whole at the second Conference by representatives of Norway, U.N. Doc. No. A/CONF.19/C.1/SB.11, at 17 (1960); Greece, U.N. Doc. No. A/CONF.19/C.1/SE.6, at 17 (1960); and Switzerland, which considered itself a “user of the seas,” U.N. Doc. No. A/CONF.19/C.1/SB.23, at 2-3 (1960).

17 The delegate of Ethiopia made an imaginative suggestion that the territorial seas in international straits should be so delimited that “high seas channels … broad enough to permit free navigation” remained. TJ.N. Doc. No. A/CONF.19/C.1/SB.18, at 5 (1950).

18 Kennedy, A Brief Geographical and Hydrographical Study of Straits which Constitute Routes for International Traffic, U.N. Doc. No. A/CONF.13/6 and Add.l (1957).

19 See statement of the writer in introducing the U.S.-Canadian compromise proposal in the Committee of the Whole. U.N. Doc. No. A/CONF.19/C.1/SB.21 (1960).

20 The representative of Greece pointed out in the debates in the Committee of the Whole that 30% of Greek territory consists of islands which give it a very long coastline of 14,000 miles, and that an extension of the territorial sea to 12 miles would enable Greece to join all its islands in strips of territorial sea and ‘ ‘ so secure control of the Aegean.” U.N. Doc. No. A/CONF.19/C.1/SE.6, at 17 (1960).

21 l Oppenheim 486-492; Briggs 281-284; 1 Hyde 451-460; see Jessup, The Law of Territorial Waters and Maritime Jurisdiction 9-66 (1927).

22 Fulton, The Sovereignty of the Sea 106 (1911). The Bulls were obtained, immediately upon the return of Columbus, by the Spanish monarehs through an ex parte application, and subsequent disputes with the Portuguese over the equity of the line resulted in shifting it from 100 leagues west of the Cape Verde Islands to 370 leagues west by the 1494 treaty. Ibid.

23 Ibid, at 107. The Papal Bulls had purported to grant monopolies of trade, relying upon which the Spanish Ambassador complained that Drake presumed to trade in “Indian” seas, but Elizabeth refused to be barred from the “Indies.” Ibid.; see 1 Oppenheim 584; 7 Encyclopaedia Britannica 575 (14th ed., 1938).

24 See statement of the delegate from Spain at the second Conference that a territorial sea of 6 nautical miles had been asserted by Spain for two centuries under municipal law. U.N. Doc. No. A/CONF.19/C.1/SB.5, at 11 (1960). During the 19th century the United States and England refused to recognize the Spanish 6-mile claims in Cuba or elsewhere. 1 Hyde 456, notes 3, 4, and 5; Jessup, The Law of Territorial Waters and Maritime Jurisdiction 42, 53-54 (1927). See Heinzen, , “The Three-Mile Limit: Preserving the Freedom of the Seas,” 11 Stanford Law Bev. 597, 626-627, 630-631, note 133 (1959).Google Scholar

25 Fulton, note 22 above, at 118-122, 148, 150.

26 1 Oppenheim 585.

27 Fulton, note 22 above, at 108-112; Kent, , “ The Historical Origins of the Three- Mile Limit,” 48 A.J.I.L. 537, 538 (1954)Google Scholar. In the 15th century the Danes claimed all of the seas between Norway and Iceland and the Orkney and Shetland Islands. Henry V in 1415 prohibited his subjects from fishing off Iceland, but the Tudors, Henry VII and Henry VIII, negotiated treaties permitting English fishing off Iceland upon payment of customs and obtaining licenses every seven years. Disputes arose, however, and in 1602 Elizabeth complained that Danish claims were without “ colour “ under the “ Law of Nations” by which “fishing, much less passage to ships of merchandise … cannot be forbidden ordinarily” although “property of sea, in some small distance from the coast may yield some oversight and jurisdiction.” Fulton, cited above, at 110-111.

28 Kent, note 27 above, at 539-544. The early Danish practice on the coast of Norway had been to reserve fishing jurisdiction over the marginal sea within sight of land. A Danish ordinance of 1616 for fishing off the Faroe Islands was so interpreted, and a Scottish Order in Council of 1618 forbade Scottish fishermen to fish “within sight of the Island of the Faeroe.” This distance was understood in Scotland to measure fourteen miles and was expressed by that number of miles in the draft Treaty of Union (with England) of 1604, whereas in Denmark the distance was regarded as at least four leagues (of four nautical miles each in Danish practice as compared with 3 miles in English and French practice) and was so defined in the Danish ordinances of June, 1691. In Icelandic waters the maritime belt was first measured by a Danish decree of 1598 at two leagues, but varied from two to eight leagues during the ensuing century until it was finally fixed at four leagues in 1682. The four-league limit remained in force officially until 1836 when it was contracted to one league, although it had been tacitly contracted to one league in practice since 1762 at the close of the Seven Years’ War. Ibid, at 539-541, 552.

29 In February, 1691, the Danes took advantage of a temporary British and Dutch naval defeat off Beaehy Head during their long wars against Louis XIV of France by issuing a decree prohibiting in northern seas all unlicensed “navigation,” including both fishing and trading. However, Denmark was forced into a position of neutrality, and in June, 1691, issued decrees claiming protected neutrality jurisdiction over a belt of sea four or five leagues from shore. Ibid, at 540-541. Thereafter, Denmark had frequent disputes with England and Holland, particularly over fishing, and with France, particularly over prizes captured in the approaches of the Baltic, where French privateers were successful against English and Dutch trading ships. In 1740 and 1741 the Dutch complained of seizures of their fishing vessels off Greenland and Iceland within four leagues of shore. The Dutch would concede no greater fishing jurisdiction to the Danes than “ the Distance of Cannon Shot from those Shores.” The dispute with the Dutch was finally ended in 1762 with Danish permission, as a matter of grace, for the Dutch to fish within a four-league limit and Dutch official recognition of that limit. Ibid, at 543. By decrees of 1747 the Danes had already sanctioned Bussian fishing up to one league off Finmarken in northern Norway, just as a royal decree of 1745 reduced to one league the former four-league limit in the matter of taking prizes at sea. Hid. at 544; Walker, “Territorial Waters: The Cannon Shot Eule,” 22 Brit. Yr. Bk. of Int. Law 210, 227 (1945). In negotiations in 1760 over Danish complaints about French privateers, France conceded Danish coastal jurisdiction over a continuous belt of sea, but not one of four marine leagues; the French suggested instead that the maximum extent of ‘ ‘ territorial right ‘ ‘ should be limited to three miles, or one league, which they regarded as the “possible range of cannon.” Aide-Memoire handed to the Danish Envoy, Paris, Nov. 11, 1760. Kent, note 27 above, at 548-549, note 66.

30 Denmark adopted the one-league limit in 1745 to safeguard Danish neutrality in the Franco-British wars of that period. In 1758 the Swedes, allied to France in the Seven Years’ War, imposed a three-“mil” limit and subsequently, in 1779, changed their limit to one league of four miles in conformity with that of Denmark. Ibid, at 544, 550. These Scandinavian claims have remained in force to the present day. See dissenting opinion of Judge J. E. Bead in the Fisheries Case, [1951] I.C.J. Rep. 116 at 191. Both Norway and Denmark still cite a royal order or decree of 1812 asserting one league (of four nautical miles) as their basic claim of jurisdiction over the territorial sea. U.N. Legislative Series, Laws and Regulations on the Eegime of the Territorial Sea, U.N. Doc. No. ST/LEG/SEE.B/6, at 8, 35 (1956), and supplement thereto, U.N. Doc. No. A/CONF.19/5, at 30 (1960).

31 The Swedish decree of 1758 appears to go beyond a limited claim to neutrality jurisdiction, although it was directed against the taking of prizes in the Baltic during the Seven Years’ War, which lasted until 1763. The text states that the maritime belt “must be uncontestably claimed to constitute Swedish dominion.” It may be noted that there is some dispute as to whether this Swedish decree referring to a three “ m i l” belt, was referring to a nautical mile or to a league in the usage of that time, siuee the nautical mile was unknown in Swedish ordinances until the twentieth century. See Gihl, , “ The Limits of Swedish Territorial Waters,” 50 A.J.I.L. 120-122 (1956).Google Scholar

32 It appears that no known cannon in the seventeenth or eighteenth century actually had a range as great as 3 miles. In the disputes with Denmark in 1740 one Dutch diplomat remarked: “ I do not believe that there is any cannon in the world that can carry even one league, let along four leagues.” Walker, note 29 above, at 227. According to the gunnery tables which have been examined, a heavy mortar was able to attain about two and one-half miles without much accuracy at the beginning of the nineteenth century. Normal range of cannon would appear to have been about a mile and a half until the middle of the nineteenth century, when rifled steel ordnance was developed. Mouton, The Continental Shelf (1952), and Meyer, The Extent of Jurisdiction in Coastal Waters (1937), discussed in Heinzen, note 24 above, at 605, note 26; see Walker above, at 210.

33 The first apparent advocacy of the distance of cannon shot as applicable to the maximum permissible claim over the marginal sea is attributed to the Dutch in their 1610 fishing dispute with England. The Dutch emissaries stated in opposition to the English claims that “by the Lawe of nacions, no prince can Challenge further into the Sea than he can Comand wth a Cannon … . For that the boundlesse and rowlinge Seas are as Comon to all people as the ayre wch no prince can prohibite.” Pulton, note 22 above, at 156, note 1. Inasmuch as the dispute with England involved fishing zones and not the law of prize or neutrality, it is not clear that the Dutch intended to assert the same cannon shot rule as came to be applied by the French to the law of prize, which was literally limited to the range of actual cannon where they might be found along the shore, under whose protection a threatened ship could lie in safety. The French had accepted the portée du canon rule as law before 1700 and continued to assert it as late as the American Revolution. Walker, loc. cit. 215-221. Subsequent developments seem to indicate that both the Dutch and the French, at different times, used the distance of cannon shot as an argument to limit Danish claims to continuous, broad maritime zones. Some authorities believe that the conflict between the concept of a continuous maritime zone and the cannon-shot rule resulted in a compromise utilizing the concept of a continuous zone but limiting its width. Kent, note 27 above, at 552-553. Bynkershoek may well have been the earliest of juristic writers to take notice of the cannon-shot rule and to popularize it. Walker, note 29 above, at 211. At any rate, in the late 18th century, several Italian writers, including Galiani in 1782, suggested adopting a maritime zone of uniform width and limiting it to three miles all along the coast as the limit beyond which no cannon could possibly reach. Ibid, at 213, 229-230; 1 Hyde 453, note 5. A writing of “Vattel in 1758 can be interpreted to the same effect. Walker, above, at 226. In 1793 the United States adopted for purposes of neutrality a zone of three miles’ uniform breadth, the first adoption of the three-mile limit of which we are certain. In a note informing the British of this action, Thomas Jefferson, then Secretary of State, remarked that “the smallest distance, I believe, claimed by any nation whatever, is the utmost range of a cannon ball, usually stated at one sea league… . This distance can admit of no opposition… . “ 1 Moore, Digest of International Law 702-703 (1906).

34 Walker, note 29 above, at 211-212; 1 Oppenheim 490, 586. This principle was not original with Bynkershoek, however, for Grotius had already enunciated it a century earlier: “ … lordship over a portion of the sea is acquired in the same way as other lordships— … . by way of territory, in so far as those who navigate in that part of the sea nearest the land can be held in restraint from the land, no less than if they were found upon the land itself.” Quoted in Brown, “The Marginal Sea,” 17 A.J.I.L. 89, 92 (1923).

35 See statement of Becker, Loftus, then Legal Adviser to the State Department, 38 Dept. of State Bulletin 962, 966 (1958).Google Scholar

36 The modern 3-mile limit sprang from “pacific and economic roots” and thus in the nineteenth century came to supplant the “old war rule” of cannon range, which was always linked to the law of prize rather than to issues such as the right of passage and fishing. Walker, note 29 above, at 231. The portée du canon rule was applied in a number of declarations of neutrality, such as those of the Italian Provinces in 1778 and 1779. Ibid, at 230. By way of contrast the first treaty specifying the 3-mile limit was that of 1818 between the United States and Great Britain after the War of 1812, in Article I of which it was provided that, except in specified limited areas, the United States gave up any rights or liberty to ‘ ‘ take, dry, or cure fish, on or within three marine miles of any of the coasts, bays, creeks, or harbours, of his Britannic Majesty's dominions in America … “ Oct. 20, 1818, 8 Stat. 248, Treaty Series, No. 112. This convention proved to be a precedent for others which followed. Fulton, note 22 above, at 581.

37 In the Fisheries Case, [1951] I.C.J. Rep. 116 at 147, Judge Alvarez stated in his individual opinion: ‘ ‘ The extent of … the territorial sea, was first fixed at the range of the contemporary eannon, and later at 3 sea miles.'’

38 The Soviets cite a law on the Extension of the Maritime Customs Zone of Dec. 10, 1909, as the basic statute on their twelve-mile territorial sea claim. (Synoptical Table) U.N. Doc. No. A/CONF.19/4 (1960). However, this statute refers only to “ t h e Maritime Customs Zone within the limits of which all vessels, whether Russian or foreign, shall be subject to inspection by the Russian authorities … , “ (Supp. to Laws and Regulations on the Regime of the Territorial Sea, U.N. Doc. No. A/CONF.19/5, at 33 (I960)), which appears to be no more than a traditional customs zone which has been long distinguished from the territorial sea, and in United States practice has been maintained at twelve miles since the Act of Aug. 4, 1790. 1 Stat. 156.

39 N. Y. Times, Feb. 27, 1959, p. 3. The Russians have claimed their fishing ships are engaged in experimental work and research. Ibid.

40 N. Y. Times, June 16, 1960, p. 45.

41 See statement of the representative of Iceland in the General Assembly of the United Nations, Nov. 17, 1958. U.N. Doc. No. A/C.6/SR.583/Rev. 1 (1958).

42 At the second Conference the representative of Egypt referred to the use of naval and aircraft demonstrations close to the coasts of small nations as a possible means of intimidation. TJ.N. Doe. No. A/CONF.19/C.1/SB.17, at 3 (1960). The Iranian representative stated that ‘ ‘ many African, Asian and Latin American States'’ had been “subjects of colonialism based mainly on naval power.” Ibid, at 9. The representative of Guinea stated that the “concept” of “historic rights “ for fishing was “nothing other than a manifestation of the right of the strongest and a vestige of colonialism” which would be a “grave injustice to the young States that were struggling … for economic independence.” U.N. Doc. No. A/CONF.19/C.1/SE.18, at 3 (1960). The Venezuelan representative simply alleged that the “ t h r e e mile limit … . had been conceived in ancient times by the great maritime Powers to allow them full freedom of action on the high seas, even in the vicinity of foreign coasts.” U.N. Doc. No. A/ CONF.19/C.1/SB.6, at 3 (1960).

43 The Declaration on the Maritime Zone of Aug. 18, 1952, states that the parties “proclaim as a principle of their international maritime policy that each of them possesses sole sovereignty and jurisdiction over the area of the sea adjacent to the coast of its own country and extending not less than 200 nautical miles from the said coast.” Laws and Regulations on the Regime of the Territorial Sea, U.N. Doc. No. ST/LEG/ SER.B/6, at 723-724 (1957). In 1956 the representatives of Peru, Ecuador, Chile and Costa Rica explained to the United Nations that their respective governments had merely intended to proclaim fishing and conservation authority and had not intended to extend territorial waters to 200 miles. U.N. Docs. Nos. A/C.6/SB.486, at 28, 29; A/C.6/SE.489, at 43, 45; A/C.6/SE.496 at 84, 86; A/C.6/SE.498, at 97 (1956).

44 The Decree of the Congress of the Republic of Ecuador, Feb. 21, 1951, provides that ‘ ‘ national territorial waters comprise a minimum distance of 12 nautical miles measured from the outermost promontories of the Ecuadorian Pacific coast … “ using straight base lines between headlands. Laws and Regulations on the Regime of the Territorial Sea, U.N. Doc. No. ST/LEG/SEE.B/6, at 13 (1956).

45 The El Salvador Political Constitution, Sept. 7, 1950, states in Article 7: “The territory of the Republic within its present boundaries is irreducible; it includes the adjacent sea within a distance of two hundred marine miles measured from the line of lowest tide, and it embraces the air space above, the subsoil, and the corresponding continental shelf. The provisions of the preceding section do not affect freedom of navigation in accordance with principles accepted by International Law.” U.N. Legislative Series, Laws and Regulations on the Regime of the Territorial Sea, U.N. Doc. No. ST/LEG/SEE.B/6, at 14 (1956). The representative of El Salvador suggested at the 1960 Conference that the El Salvador claim could be interpreted in such a way as to ensure freedom of navigation, fishing and aircraft overflights in keeping with the rules of international law which might be adopted. U.N. Doe. No. A/CONF.19/ C.1/SE.3, at 6 (1960).

46 Argentinian Decree No. 14,708 of Oct. 11, 1946, includes a provision in Article 2 that “free navigation” would not be affected in this 200-mile belt of sea. U.N. Legislative Series, Laws and Regulations on the Regime of the High Seas, U.N. Doc. No. ST/LEG/SEE.B/1, at 5 (1951). Argentina's territorial sea remains at 3 miles. See (Synoptical Table) U.N. Doc. No. A/CONF.19/4 (1960).

47 U.N. Legislative Series, Addendum to Laws and Regulations on the Regime of the Territorial Sea, U.N. Doc. No. ST/LEG/SEB.B/6/Add.l, at 9, cited in (Synoptical Table) U.N. Doc. No. A/CONF.19/4 (1960).

48 9 Stat. 922; Treaty Series, No. 207. This Mexican claim based on this treaty was stated by its delegate at the Conference many times. See U.N. Doc. No. A/CONF.19/ C.1/SB.10, at 3 (I960); see Robles, La Conferencia de Ginebra y La Anchura del Mar Territorial (1959).

49 United States v. Louisiana, et al., 363 U.S. 1, 121 (May 31, 1960). Pursuant to the Submerged Lands Act of 1953, 67 Stat. 29, 43 U.S.C§§1301-1315, the Supreme Court of the United States, in the majority opinion by Mr. Justice Harlan, held that “for domestic purposes” and as to “relationships between the Nation and a State” a 3-league boundary on the continental shelf would control the respective submerged lands claims of the State of Texas and the Federal Government for the purposes of the Act, “irrespective of the limit of territorial waters,” because “the right to exercise jurisdiction and control over the seabed and subsoil of the Continental Shelf is not internationally restricted by the limit of territorial waters.” 363 U.S. at 35-36. The Court expressly held that the issue before it of the extent of the Texas boundary “derived from a delegation of Congressional power to admit new states, not from the Executive's own power to fix the extent of territorial waters” and explicitly stated that “we intimate no view on the effectiveness of this boundary as against other nations.” 363 U.S. at 57, 64.

50 68 Stat. 883.

51 Information obtained in response to an inquiry to the Department of State, Washington, D. C. See Phleger, “Recent Developments Affecting the Regime of the High Seas,” 32 Dept. of State Bulletin 934, 937 (1955). Subsequent U.S. negotiations at Santiago in 1955 with Ecuador, Chile and Peru were not successful in solving these fishery disputes. 33 ibid. 1025-1030 (1955).

52 The Venezuelan claim dates from an Act of July 27, 1956, and the Panama claim, from an Act of Dec. 18, 1958. U.N. Doc. No. A/CONF.19/5, at 31 and 34 (1960); of. (Synoptical Table) U.N. Doc. No. A/CONF.19/4 (1960).

53 Law No. 9, Jan. 30, 1956, of the Republic of Panama, quoted in Ozores, Derecho del Mar (La Conferencia de Ginebra) 184-185 (1959). The “rights enjoyed by Panama over its historic waters” are specifically referred to in Art. 2(d) of the Act of Dec. 18, 1958, extending the Panamanian territorial sea to a width of twelve miles. U.N. Doc. No. A/CONF.19/5, at 32 (1960). At the first Conference Panama and India proposed that the General Assembly should study “the juridical regime of historic waters including historic bays,” U.N. Doc. No. A/CONF.13/C.l/L.158/Rev.l (1958), which was adopted as a resolution. U.N. Doc. No. A/CONF.13/L.56, at 8 (1958). This item was placed on the agenda of the Sixth Committee of the General Assembly, which on Dec. 7, 1959, requested that the International Law Commission undertake such a study. U.N. Doc. No. A/EES/1453 (XIV) (1959). In the debates in the General Assembly, the Panamanian representative claimed that Panama had “sovereign rights” over the Gulf of Panama from ‘ ‘ time immemorial.'’ This claim was based on what was asserted to be the criterion of international law: “The geographical configuration of a bay, its immemorial usage by the riparian State and the national defense needs of said State [which] justified the bay being regarded as historic … “ U.N. Doe. No. A/C.6/SB.644, at 9 (1959). At the second Conference the delegate of Panama mentioned the Panama Canal in stressing the historical importance of the sea to the economy of Panama. U.N. Doc. No. A/CONF.19/C.1/SB.4, at 8 (1960).

54 The Philippines’ note of 1955 to the United Nations Secretariat and the Indonesian Act No. 4, published Feb. 18, 1960, are set forth in note 4 above. Outlying mid-ocean archipelagos, including Indonesia and the Philippines, were distinguished from coastal archipelagos in a preparatory study for the first Conference by Mr. Evensen of Norway, “Certain Legal Aspects Concerning the Delimitation of the Territorial Waters of Archipelagoes.'’ The authorities collected indicate that there is general agreement that territorial waters should be measured from the islands situated most distant from the center of the archipelago with varying maximum distance between the islands of the archipelago. The Hague Conference in 1930 suggested as a possible compromise that all waters in the archipelago should be territorial waters. The study concluded that in the case of mid-ocean archipelagos, “exorbitantly long base lines, closing vast areas of sea to free navigation and fishing, are contrary to international law.” The study also concluded that whether the waters within the archipelago can be considered as internal waters depends upon “whether such water areas are so closely linked to the surrounding land domain of the archipelago as to be treated in much the same manner as the surrounding land.” 1 Official Records 289, 302 (U.N. Doc. No. A/CONF.13/37) (1958)). This conclusion closely follows the reasoning of the Court in the Fisheries coastal islands or archipelagos off Norway. It is to be noted that Art. 4 of the Convention on the Territorial Sea and the Contiguous Zone limits the enclosing of waters between islands as internal waters to the situation of the coastal archipelago: “ … if there is a fringe of islands along the coast in its immediate vicinity.” U.N. Doc. No. A/CONF.13/L.52 (1958). The Eeport of the International Law Commission on this article indicates quite clearly that the Commission was following the Fisheries Case. TJ.N. General Assembly, 11th Sess., Official Becords, Supp. No. 9 (A/3159) (1956). At the second Conference both the Philippine and the Indonesian delegates claimed that their archipelagos were historical units enclosing the claimed sea areas on the basis of historic as well as geographical right, although they admitted that their archipelago theory had not yet found general recognition in international law. See statements in U.N. Doe. No. A/CONF.19/C.1/SB.5, at 8-9 (1960), and U.N. Doc. No. A/CONF.19/ C.1/SB.14, at 5 (1960). The Philippine delegate stated that the Philippines had been considered “from time immemorial” as a “single territorial u n i t , “ citing the Treaty of Paris of 1898 as an instance, and the Indonesian Statute of 1960 similarly states that “since time immemorial the Indonesian archipelago has constituted one entity.” Ibid.; Indonesian Act No. 4, published Feb. 18, 1960, note 4 above. The United States and Canada expressly excepted the “juridical status of historic waters” from the provisions of the compromise joint proposal in the hope of obtaining support from Indonesia and the Philippines. See statement of the writer at the Conference, U.N. Doc. No. A/CONF.19/SE.12, at 3 (1960). In the Committee of the Whole, the Philippines had introduced an amendment to the original U.S. and Canadian proposals, among others, that it should “ n o t apply to historic waters.” U.N. Doc. No. A/CONF.19/ C.1/L.5 (1960).

55 The Indonesian 12-mile claim is set forth in the Act No. 4, published Feb. 18, 1960, note 4 above. The Philippine claim to territorial seas around the perimeter of its archipelago varies from less than three miles to more than twelve miles in different areas, allegedly in accordance with the Peace Treaties of 1898 and 1900 by which Spain ceded to the United States the Philippine Islands. See statements of the representative of the Philippines at the Conference. U.N. Docs. Nos. A/CONF.19/C.1/SE.5, at 8 (1960) and A/CONF.19/C.1/SE.25, at 15 (1960). The 1955 note of the Philippines to the United Nations Secretariat states that, in addition to the internal waters “around, between and connecting the different islands belonging to the Philippine Archipelago,'’ the Philippines claim as maritime territorial seas “ all other water areas embraced in the imaginary lines described in the Treaty of Paris of December 10, 1898, the treaty concluded at Washington, D. C, between the United States and Spain on November 7, 1900 … “ and supplemental treaties of 1930 and 1932 between the United States and the United Kingdom. Laws and Regulations on the Regime of the Territorial Sea, U.N. Doe. No. ST/LEG/SEE.B/6, at 39 (1956). However, Art. Ill of the Treaty of Paris of 1898, merely states that “Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands lying within the following lines: … “ Dec. 10, 1898, 30 Stat. 1754, Treaty Series, No. 343. Similarly, the Treaty of Nov. 7, 1900, which ceded certain outlying islands, merely states that Spain cedes all the islands belonging to the Philippine archipelago “lying outside the lines described in Article III “ of the 1898 Treaty of Paris in which Spain ceded the archi pelago “comprehending the islands lying within certain described lines … “ Nov. 7, 1900, 31 Stat. 1942, Treaty Series, No. 345. Thus, it would appear that these treaties referred only to the islands within certain imaginary lines, and did not intend that the imaginary lines should be interpreted as base lines enclosing all of the water areas therein.

56 17 Encyclopaedia Britannica 725 (14th ed., 1938); 1950 Britannica Book of the Year 484-485.

57 N. Y. Times, June 20, 1960, p. 56.

58 By Presidential Proclamation of Nov. 29, 1956, India proclaimed the right to establish “conservation zones in areas of the high seas adjacent to the territorial waters of India, but within a distance of one hundred nautical miles from the outer limits of those waters” in order to regulate fisheries and establish conservation measures, etc. Supp. to Laws and Regulations on the Regime of the Territorial Sea, U.N. Doc. No. A/CONF.19/5, at 13 (1960). By Presidential Proclamation of March 22, 1956, India had claimed a territorial sea of “ s i x nautical miles.” Laws and Regulations on the Regime of the Territorial Sea, U.N. Doe. No. ST/LEG/SEE.B/6, at 23 (1956).

59 Selak, , “ A Consideration of the Legal Status of the Gulf of Aqaba,” 52 A.J.I.L. 60 (1958)Google Scholar. In 1950 Egypt occupied the islands in the Straits of Tiran. Gross, , “The Geneva Conference on the Law of the Sea and the Eight of Innocent Passage Through the Gulf of Aqaba,” 53 A.J.I.L. 564, 565 (1959)Google Scholar. However, in 1957, Saudi Arabia claimed these islands with the apparent acquiescence of Egypt (U.A.B.). Selak, loo. cit. at 666.

60 (Synoptical Table) U.N. Doc. No. A/CONF.19/4 (1960). The Saudi Arabian Decree of Feb. 16, 1958, replacing the former Decree of 1949, contains detailed provisions defining “inland waters” to include waters between the coast and “ shoal” waters or islands out to twelve miles. U.N. Legislative Series, Supp. to Laws and Regulations on the Regime of the High Seas, U.N. Doc. No. ST/LEG/SEE.B/8, at 29 (1959).

61 At the second Conference the Saudi Arabian delegate made a sweeping historic claim for the Arab bloc as a unified whole: “ T h e shores of the Arab States extended from the Atlantic to the Persian Gulf, and included the Gulf of Aqaba which was under the exclusive jurisdiction of Saudi Arabia, the United Arab Eepublic and Jordan.” U.N. Doc. No. A/CONF.19/C.1/SB.20 at 16 (1960). Although the delegate of the U.A.E. denied that the Arab position had anything to do with political problems in Arab waters, U.N. Doc. No. A/CONF.19/C.1/SB.17 at 4 (1960), the delegate from Lebanon forthrightly stated that the Aqaba problem was the only reason why it was supporting the 12-mile limit, and that the Gulf of Aqaba and “ t h e tragedy of Palestine … had never ceased to influence decisions one way or another.” U.N. Doc. No. A/CONF.19/SR.13 at 4 (1960).

62 Gross, cited note 59 above, at 566-567. This claim was set forth in a memorandum and speech of 1957 to the General Assembly, in which the Saudi Arabian delegate claimed that the Gulf of Aqaba comprised historic Arab waters because it had been the traditional route to the holy places of Mecca for fourteen centuries. Ibid.; Selak, loc. tit. note 59 above, at 679. Saudi Arabian municipal legislation is cited for the claim that the Gulf is under Arab sovereignty. U.N. Doc. No. A/C.6/SB.644, at 5 (1959).

63 Selak, cited note 59 above, at 679. One authority states that “armistices or truces, in the wider sense of the term, are all agreements between belligerent forces for a temporary cessation of hostilities. They are in no wise to be compared with peace … because the condition of war remains … on all points beyond the mere cessation of hostilities… . Everybody agrees that belligerents during an armistice may, outside the line where the forces face each other, do everything and anything they like regarding defence and preparation of offence… . “ 2 Oppenheim, International Law 546-551 (7th ed., Lauterpacht, 1952).

64 Selak, note 59 above, at 679, quoting from a statement of the Saudi Arabian representative in the General Assembly on Oct. 2, 1957. The Egyptian Economic and Political Review, February, 1957, stated that Israeli troops had occupied Elath in 1949 without legal authority after the withdrawal of the British at the end of the Palestnie Mandate. Ibid, at 668-669. Israel was awarded Elath and the Southern Negev under the Palestine Partition Plan of November 29, 1947. The Israeli advance into the area was effected in early March, 1949, after the signing of the Egyptian-Israeli Armistice Agreement of Feb. 24, 1949. The Israeli occupation displaced Jordanian troops which had been in the area, a fact which was recognized and sanctioned in the Jordanian- Israeli Armistice Agreement of April 3, 1949. Ibid, at 680, and authorities cited therein.

65 U.N. Doc. No. A/CONF.13/L.52, at 6 (1958).

66 In 1 Oppenheim 45, it is stated that “ the Municipal Law of every State is prevented by the Law of Nations from having rules, for instance, conflicting with the freedom of the high seas, or prohibiting the innocent passage of foreign merchantmen through its maritime belt… . “ For the general proposition that international law is supreme over municipal law and established by recognition of other states, see Briggs 43-48, 60-65.

67 The bases of this recognition are specifically enumerated in Art. 38(1) of the Statute of the I.C.J., 59 Stat. 1060, Treaty Series, No. 993. In 1 Oppenheim 17, i t is stated that “common consent” can only mean “ t h e expressed or tacit consent of such an overwhelming majority of the members [of the International Community] that those who dissent are of no importance as compared with the community viewed as an entity… . “ This was referred to by the representative of Saudi Arabia at the second Conference in protest against adopting a convention by a two-thirds’ vote when one-third refused to give their consent. U.N. Doc. No. A/CONF.19/SB.11, at 4-6 (1960).

68 The International Law Commission, which was set up by the General Assembly to prepare draft conventions for the codification of international law, published a provisional list of suitable topics including the regime of the high seas and the regime of the territorial sea. Ibid, at 67, note 2. The Commission recommended, and the General Assembly decided, that an international conference should be summoned “ t o embody the results of its work in one or more international conventions or such other instruments as it may deem appropriate.” International Law Commission Report, U.N. General Assembly, 11th Sess., Official Records, Supp. No. 9, par. 28 (A/3159) (1956); Bes. 1105 (XI), Feb. 21, 1957, Official Records, Vol. II, U.N. Doc. No. A/CONF. 13/38, at xi (1958).

69 The Conference did not include a large body of commercial maritime law, such as. marine insurance, salvage, navigational rules, and other aspects of “admiralty” law, much of which has already been covered by international conventions. See Jessup, “The United Nations Conference on the Law of the Sea,” 59 Columbia Law Rev. 234 (1959).

70 Article 13 of the U.N. Charter prescribes that the General Assembly shall initiate studies and make recommendations for the purpose “ o f encouraging the progressive development of international law and its codification.” Pursuant thereto, the Second General Assembly in 1947 set up the International Law Commission with the dual purposes of “codification” and of “progressive development” of international law, as set forth in Art. 15 of the International Law Commission Statute. General Assembly Res. 174 ( II ) , Nov. 21, 1947, 1947-48 United Nations Yearbook 210-213; of. 1 Oppenheim 66-67.

71 See Sørensen, Law of the Sea (International Conciliation, Carnegie Endowment for International Peace, 1958); Dean, , “The Geneva Conference on the Law of the Sea: What Was Accomplished,” 52 A.J.I.L. 607 (1958)Google Scholar.

72 In the Convention on the Continental Shelf the definition of the continental shelf in Art. 1 limits the coastal state's rights to the “seabed and subsoil of the submarine areas adjacent to the coast,” and Art. 3 provides that such rights “ d o not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters.” U.N. Doc. No. A/CONF.13/L.55 (1958); see Whiteman, , “Conference on the Law of the Sea: Convention on the Continental Shelf,” 52 A.J.I.L. 629, 635-636, 640-641 (1958).Google Scholar

73 Art. 14(4), Convention on the Territorial Sea and the Contiguous Zone, U.N. Doc. No. A/CONF.13/L.52 (1958).

74 See above, pp. 767-768.

75 There were reservations requiring prior authorization or consent by the coastal state before passage of foreign warships would be permitted through the territorial sea by the Soviet bloc, Bulgaria, Byelorussian S.S.B., Hungary, Rumania, Ukrainian S.S.B. and U.S.S.B., and a declaration to the same effect by Colombia because of a provision in the Colombian Constitution. See Jessup, cited note 69 above, at 265-266.

76 The state of the law has been disputed by the Soviets, but all proposals at the first Conference which required either prior notification or authorization for passage of warships through the territorial sea were rejected, thus showing the intent not to include such provisions or limitations. Hearings on Conventions on the Law of the Sea Before the United States Senate Committee on Foreign Relations, 86th Cong., 2d Sess., at 92 (1960). The other provisions of the convention indicate a general establishment of the right of innocent passage for all ships, which is underscored by the special requirement that submarines, which are warships, are limited to innocent passage on the surface and must show their flag. In Sec. II, “Right of Innocent Passage,” Sub-Sec. A, “Rules Applicable to All Ships,” Art. 14(1) provides that, subject to the other provisions of the convention, “ships of all States … shall enjoy the right of innocent passage through the territorial sea“; and in Sub-Sec. D, “Rules Applicable to Warships,” Art. 23 provides that if any warship does not comply with regulations ‘ ‘ concerning passage through the territorial sea” or disregards requests for compliance therewith, “the coastal State may require the warship to leave the territorial sea.” Convention on the Territorial Sea and the Contiguous Zone, U.N. Doc. No. A/CONF.13/L.52 (1958).

77 See Jessup, note 69 above, at 255-257.

78 Convention on the High Seas, U.N. Doc. No. A/CONF.13/L.53 (1958). This provision followed the “ link “ theory of cases involving the nationality of international claims, which was applied by the International Court of Justice in the Nottebohm Case, [1955] I.C.J. Rep. 4.

79 Advisory Opinion of the International Court of Justice, June 8, 1960, on the failure to include Liberia and Panama on the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization of the United Nations. [1960] I.C.J. Rep. 150; digested below, p. 884.

80 U.N. Conference on the Law of the Sea, Official Records, U.N. Doc. No. A/CONF. 13/38, at 132-147 (1958); see Jessup, note 69 above, at 263-264.

81 U.N. Doc. No. A/CONF.13/L.52 (1958); 52 A.J.I.L. 834 (1958).

82 U.N. Doc. No. A/CONF.13/L.53 (1958); 52 A.J.I.L. 842 (1958).

83 U.N. Doc. No. A/CONF.13/L.54 and Add. 1 (1958); 52 A.J.I.L. 851 (1958).

84 U.N. Doc. No. A/CONF.13/L.55 (1958); 52 A.J.I.L. 858 (1958).

85 U.N. Doc. No. A/CONF.13/L.57 (1958); 52 A.J.I.L. 862 (1958).

86 N.Y. Times, May 27, 1960, p. 56.

87 This information has been made available by the Secretariat of the United Nations.

88 The Secretariat of the United Nations prepared “Provisional Rules of Procedure,” U.N. Doc. No. A/CONF.19/2 (1960), and a memorandum thereon, U.N. Doc. No. A/CONF.19/3 (1960). These Rules of Procedure were debated at the first two “Plenary Sessions” of the General Committee of the Conference and adopted after a few amendments. TT.N. Doc. No. A/CONF.19/7 (1960).

89 In accordance with the usual United Nations practice, Rule 35 of the Rules of Procedure adopted provided that in Plenary Session (General Committee) voting on all matters of “substance” would require a two-thirds majority, whereas matters of “procedure” would only require a simple majority of the representatives present and voting. Rule 32 provided further that once a proposal had been adopted or rejected, it could not be reconsidered except upon the vote of a two-thirds majority. When the Conference was being conducted in the form of the Committee of the Whole, however, a simple majority of representatives present and voting was sufficient in accordance with Rule 49. U.N. Doc. No. A/CONF.19/7 (1960).

90 U.N. Doc. No. A/CONF.13/C.l/L.77/Rev.l (1958). See statement of the Canadian representative, Mr. George Drew, at the first Conference. 3 Official Records 51-53, U.N. Doc. No. A/CONF.13/39 (1958).

91 The original Canadian fishing zone proposal was made on March 17, 1958. Ibid. On April 1, 1958, the United Kingdom first suggested the compromise of a 6-mile territorial sea, U.N. Doc. No. A/CONF.13/C.1/L.134 (1958), which may be regarded as an historic event in international law. The United States incorporated the 6-mile territorial sea plus 6-mile fishing zone (“6-plus-6“) compromise in a proposal dated April 15, 1958, U.N. Doc. No. A/CONF.13/C.l/L.159/Rev.l (1958). Canada followed suit by submitting revised proposals on April 16 and 17, 1958, U.N. Docs. Nos. A/CONF.13/C.l/L.77/Eev.2 and Eev.3 (1958).

92 U.N. Doc. No. A/CONF.19/C.1/L.4 (1960).

93 U.N. Doc. No. A/CONF.13/C.1/L.159 (1958).

94 By revisions to allow for modification of historic rights by subsequently negotiated agreements, the United States had hoped to obtain the support of nations such as Canada. See U.N. Docs. Nos. A/CONF.13/C.l/L.15'9/Bev.l and Kev.2 (1958).

95 U.N. Doc. No. A/CONF.19/C.1/L.3 and Annex (1960).

96 U.N. Doc. No. A/CONF.19/C.1/L.10 (1960). This U.S.-Canadian compromise proposal omitted the detailed provisions of methods of measuring the level of fishing activities which had appeared in the U. S. proposal and its Annex because of criticisms during committee debates that these detailed provisions would be too unwieldy. See U.N. Doc. No. A/CONF.19/C.1/SE.24 at 11 (1960).

97 U.N. Doc. No. A/CONF.19/C.1/L.10 (1960).

98 U.N. Doc. No. A/CONF.19/C.1/L.1 (1960).

99 U.N. Doc. No. A/CONF.19/C.l/L.2/Rev.l (1960).

100 The “18-Power” proposal, U.N. Doc. No. A/CONF.19/C.l/L.2/Rev.l (1960), closely followed the “16-Power” proposal, U.N. Doc. No. A/CONF.19/C.1/L.6 (I960), and corresponded to the U.S.S.R. proposal, U.N. Doc. No. A/CONF.19/C.1/L.1 (I960), in its first two articles, as the Yugoslavian delegate pointed out. U.N. Doe. No. A/ CONF.19/C.1/SR.25 at 2 (1960). Subsequently this U.S.S.R. proposal was withdrawn “ i n favor of” the “18-Power” proposal, because the latter “incorporated” the former, as the Soviet delegate explained. U.N. Doc. No. A/CONF.19/C.1/SR.27 at 8 (1960). It may be noted that this “18-Power” proposal originally appeared only in Russian, while its versions in other languages were referred to as “Revision 2 , “ but this was subsequently corrected so that the version in all languages was referred to as “ Revision 1 . “ See U.N. Docs. Nos. A/CONF.19/C.l/L.2/Rev.l, Rev.2 and Rev.2/Corr.l (1960).

101 U.N. Doc. No. A/CONF.19/C.1/L.2 (1960).

102 U.N. Doc. No. A/CONF.19/C.1/L.10 (1960).

103 U.N. Doc. No. A/CONF.19/C.1/8B.28 (1960).

104 U.N. Doe. No. A/CONF.19/L.4 and Annex (1960). The first proposal adopted by the Committee of the Whole provided that coastal states “overwhelmingly dependent” upon their fisheries for their “livelihood or economic development” should have “preferential rights” to the extent rendered necessary for conservation purposes under the procedures for peaceful settlement of disputes provided in the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas. The U.S.-Canadian joint proposal was adopted as the second proposal of the Committee of the Whole.

105 U.N. Doc. No. A/CONF.19/SB.13 at 8 (1960).

106 U.N. Doc. No. A/CONF.19/L.9 (1960).

107 U.N. Doc. No. A/CONF.19/SE.12 at 10 (1960).

108 The Mexican delegate, in submitting the “10-Power” proposal in Plenary Session, stated that he hoped to receive the support of nearly all of the 18 sponsors of the “18- Power” proposal in the Committee of the Whole. U.N. Doc. No. A/CONF.19/SB.10 at 8 (1960). In the official rote after the defeat of the U. S.-Canadian joint proposal as amended, this in fact occurred, except that the Philippines abstained. U.N. Doc. No. A/CONF.19/SE.13 at 10 (1960).

109 See U.N. Doc. No. A/CONF.19/SE.13 at 10-11 (1960). The representative of Colombia explained that his delegation's vote should have been recorded in opposition rather than as an abstention, thus changing the initial tally of 32 in favor to 38 against, with 18 abstentions. Ibid.

110 U.N. Doc. No. A/CONF.19/C.1/L.11 (1960).

111 U.N. Doc. No. A/CONF.19/C.1/L.8 (1960).

112 U.N. Doc. No. A/CONF.19/C.1/L.9 (1960).

113 U.N. Docs. Nos. A/CONF.19/C.1/L.7 and L.7/Rev.l (1960).

114 U.N. Doc. No. A/CONF.19/C.1/SB.28 (1960). The Peruvian proposal was withdrawn before voting occurred in the Committee of the Whole, U.N. Doc. No. A/CONF. 19/L.4 at 6 (1960), and the Cuban proposal in the Committee of the Whole, U.N. Doc. No. A/CONF.19/C.1/L.9 (1960), was “reserved.” See statement of representative of Cuba, U.N. Doc. No. A/CONF.19/C.1/SB.26 at 12 (1960). However, in Plenary Session the same Cuban proposal under a new number, U.N. Doc. No. A/CONF.19/L.6 (1960), was resubmitted but failed to receive a majority. See U.N. Doc. No. A/CONF.19/SB.14 at 2 (1960).

115 The Cuban proposal on preferential coastal rights, U.N. Doc. No. A/CONE.19/L.6 (1960), was opposed by the Soviet bloc in the Plenary Session voting. U.N. Doe. No. A/CONF.19/SK.14 at 2 (1960).

116 U.N. Doc. No. A/CONF.19/C.1/L.10 (1960).

117 U.N. Doc. No. A/CONIU9/L.4 and Annex (1960).

118 U.N. Doc. No. A/CONF.13/L.54 and Add. 1 (1958).

119 See note 122 below.

120 U.N. Doe. No. A/CONF.19/L.12 (1960).

121 Ibid. A similar provision upholding other fishing conventions and agreements was also added as a new paragraph 5 to the U.S.-Canadian joint proposal and introduced in this newly revised form in Plenary Session. U.N. Doc. No. A/CONF.19/L.11 (1960). This new paragraph 5 was then incorporated in the corresponding provision in the Brazil-Cuba-Uruguay amendment just before this amendment to the joint proposal as adopted by the Committee of the Whole was put to a vote. U.N. Doc. No. A/CONF. 19/SE.13, at 6-7 (1960).

122 The Cuban delegate emphasized just before the voting in Plenary Session, U.N. Doe. No. A/CONF.19/SB.12, at 7 (1960), that this amendment related to the joint proposal as approved in the Committee of the Whole, and not to another and later U.S.Canadian proposal, U.N. Doc. No. A/CONF.19/L.11 (1960).

123 U.N. Doc. No. A/CONF.19/SB.13, at 7 (1960).

124 U.N. Doc. No. A/CONF.19/L.12 (1960).

125 N. Y. Times, June 16, 1960, at 45, 48. In 1958 Japan's catch of tuna in such distant areas as the Caribbean and off Latin American coasts was substantial. Similar large catches were reported in Italian waters. By 1959 about 200 Japanese fishing vessels were based in foreign countries on a joint fishing or concession basis, and fishery enterprises were operating or planned in over 35 foreign countries. 1960 Britannica Book of the Year 257.

126 See, for instance, statements expressing fear of distant-water fishing by representatives of Viet-Nam and the Philippines. U.N. Docs. Nos. A/CONF.19/C.1/SB.3, at 4-5 (1960) and A/CONF.19/C.1/SB.5, at 9 (1960).

127 U.N. Doc. No. A/CONF.19/SB.13, at 8 (1960). Cambodia supported the 6-mile limit until faced during the second Conference by a claim of Viet-Nam to the Phu-Du Archipelago about 6 miles off the Cambodian coast. See the statement of the Viet- Nam representative, TT.N. Doc. No. A/CONF.19/C.1/SE.3, at 4 (1960), and the reply by Cambodia, U.N. Doc. No. A/CONF.19/C.1/SB.12, at 3 (1960). Cambodia had voted in favor of the 6-mile proposals of Canada and the United States at the first Conference. 3 Official Records 176, 180 (U.N. Doc. No. A/CONF.13/39) (1958).

128 See note 43 above.

129 See note 44 above.

130 The delegate from Ecuador denied that there could be any historic fishing rights off its coast in the face of its “paramount and special right” expressed in its fishery zone because “each State was free to fix the breadth of its territorial sea, within reasonable limits … “ U.N. Doc. No. A/CONF.19/C.1/SE.18, at 6-9 (1960). The delegate from Peru maintained that “the delimitation of the territorial sea … was, by its very nature, a matter of unilateral state action.'’ U.N. Doc. No. A/CONF.19/C. 1/SB.7, at 3 (1960).

131 See statements of representatives of The Netherlands on March 29, U.N. Doc. No. A/CONF.19/C.1/SE.6, at 12-15 (1960), of Italy on March 29, U.N. Doc. No. A/CONF. 19/C.1/SE.7 (1960), of Portugal and Japan on March 30, U.N. Doc. No. A/CONF.19/ C.1/SE.9 (1960), and of the United Kingdom on April 11, U.N. Doc. No. A/CONF.19/ C.1/SE.23 (1960).

132 It should be noted that Ecuador was bound by an agreement of Dec. 4, 1954, entered into with Peru and Chile supplementing the 1952 Declaration on the Maritime Zone and providing for a standing committee and court to enforce the claims to the 200- mile fishing zone, and providing further that “ the entire cash proceeds of the fines recovered or seizures made” should be distributed “ i n equal shares among the Contracting Parties “ after covering expenses of the court. U.N. Legislative Series, Laws and Regulations on the Regime of the Territorial Sea, TJ.N. Doc. No. ST/LEG/SER.B/6, at 731 (1957). It should be further noted that this supplemental agreement of Dec. 4, 1954, followed immediately after the autumn, 1954, seizures of the whaling vessels and factory ship of A. S. Onassis, who was required to pay fines of three million dollars. Reiff, The United States and the Treaty Law of the Sea 303, 311 (1959). Ecuador's determination to prevent depletion of its fishery resources by such “large fishing undertakings” was clearly expressed at the second Conference.

133 U.N. Doc. No. A/CONF.19/C.1/SR.18, at 9 (1960). 133U.N. Doc. No. A/CONF.19/7 (1960).

134 U.N. Legislative Series, Laws and Regulations on the Regime of the Territorial Sea, U.N. Doc. No. ST/LEG/SEE.B/6, at 723 (1957).

135 Ibid, at 730. This agreement was one of several entered on Dec. 4, 1954. See note 132 above.

136 See statements on April 25 by representatives of Saudi Arabia, U.N. Doc. No. A/CONF.19/SE.11, at 5 (1960), and the Soviet Union, U.N. Doc. No. A/CONP.19/SE. 12, at 9 (1960).

137 See statements of representatives of Saudi Arabia and the Soviet Union on April 26, U.N. Doc. No. A/CONF. 19/SR.13, at 11 (1960), and U.N. Doc. No. A/CONF. 19/SE.14, at 11 (1960).

138 U.N. Doc. No. A/CONF.19/SR.13, at 11-13 (1960). Rule 32 of the Conference Rules of Procedure provided that reconsideration of a proposal once voted upon, whether adopted or rejected, would require a two-thirds’ majority. U.N. Doc. No. A/CONF.19/7 (1960).

139 U.N. Doc. No. A/CONF.19/SB.13, at 8 (1960), and U.N. Doc. No. A/CONF. 13/38, at 39 (1958).

140 U.N. Doc. No. A/CONF.19/SK.13, at 10 (1960); see note 109 above. In 1958 an “8-Power” proposal, U.N. Doc. No. A/CONF.13/L.34 (1958), supported by the Soviet Union, 2 Official Records 38 (U.N. Doc. No. A/CONF.13/38) (1958), had received 39 votes in favor, with 38 against, and 8 abstentions. 2 Official Records 40 (U.N. Doc. No. A/CONF.13/38) (1958). The motion actually proposed by the Soviet Union in 1958, U.N. Doc. No. A/CONF.13/L.30 (1958), which would have permitted territorial sea claims out to 12 miles but which made no provision for fishing rights, received only 47 affirmative votes. 2 Official Records 40 (U.N. Doc. No. A/CONF.13/38) (1958).

141 U.N. Doc. No. A/CONF.19/C.1/L.2, Rev. 1 (1960).

142 U.N. Doc. No. A/CONF.19/L.9 (1960).

143 See editorials in the N. Y. Times, April 18, 1960, and the N. Y. Herald-Tribune, March 18, 1960; see also a report in the London Observer, March 20, 1960.

144 U.N. Doc. No. A/CONF.19/SE.13, at 8 (1960).

145 Ibid. The representative of El Salvador indicated that his country's constitutional claim to a 200-mile belt of sea would receive interpretation so as to ensure that it did not conflict with ‘ ‘ internationally agreed rules,'’ if any resulted from the Conference. U.N. Doc. No. A/CONE.19/C.1/SB.3, at 6 (1960); see note 45 above.

146 U.N. Doc. No. A/CONF.19/SR.13, at 8 (1960). The independent policy pursued by Iran is not to be confused with the policy of the states of the Arab League or Arab bloc. The de facto recognition of Israel which the Shah of Iran has expressed in the face of Arab protests was made the occasion of a verbal attack upon the Shah by President Nasser of the U.A.R. on July 26, 1960, as a result of which Iran severed diplomatic relations with the U.A.E.N.T. Times, July 28, 1960, p. 1. Protests against Iran's recognition of Israel were also made by Iraq, N.Y. Times, July 28, 1960, p. 5, and a boycott of1* Iranian companies and ships was put into effect by the Arab League. N.Y. Times, July 29, 1960, p. 1.

147 Ibid. See statement of representative of Ghana that “the success of the Conference was more important than its own interests.'’ U.N. Doc. No. A/CONE.19/SR.10, at 8 (1960). See statement of representative of Ethiopia that Ethiopia had been willing to sacrifice its preference for a 12-mile territorial sea in order to make the Conference a success. U.N. Doc. No. A/CONF.19/SE.14, at 5 (1960).

148 U.N. Doc. No. A/CONF.19/SE.13, at 8 (1960).

149 Ibid..

150 The Indian delegate stated that “small countries feared encroachments by foreign warships coming into their adjacent waters and remaining there for long periods,” U.N. Doc. No. A/CONF.19/SK.12, at 7 (1960), though the “small countries” failed to confirm this. The Indian delegate admitted that this Indian proposal meant “leaving the coastal States full territorial rights in a twelve-mile zone” except for “ free” navigation “ by foreign merchant ships and airlines.” Ibid, at 8.

151 The delegate of Ghana explained that the proposed amendments, U.N. Doc. No. A/CONF.19/L.10 (1960), were withdrawn because it was realized they “would not achieve their purpose” of reaching common agreement. U.N. Doc. No. A/CONF.19/ SR.10, at 8 (1960).

152 U.N. Doc. No. A/CONF.19/SB.13, at 8 (1960).

153 This Ethiopia-Ghana-Liberia proposal, U.N. Doc. No. A/CONF.19/L.8 (1960), was adopted by vote of 68 to 0, with 20 abstentions. U.N. Doc. No. A/CONF.19/SR.13, at 9-10 1I960). The Liberian representative thanked the United States and the United Kingdom for their support, and noted that the resolution was of particular importance for underdeveloped countries which would greatly benefit from expansion and modernization of coastal fishing, particularly as distant-water fishing countries eventually withdrew from other nations’ coasts. U.N. Doc. No. A/CONF.19/SK.12, at 18 (1960). The representative of Ghana also stressed the need for assistance to coastal states in developing their local fishing resources. Ibid, at 20. Extensive efforts are being undertaken by Ghana to modernize its native fishing and marketing methods by obtaining mechanized fishing vessels and refrigeration equipment. Ghana hopes thus to expand its fish catch and consumption and provide both an improved diet for its people and export earnings. N.Y. Times, July 28, 1960, p. 35.

154 At the close of the International Oceanographic Congress in 1959, Dr. Columbus Iselin pointed out the urgency and complexity of the problems involved in dividing the vast potential resources of the sea on an “equitable basis.” The problem arises, for instance, in the possibility of mining manganese nodules from the deep sea bed of the ocean. Dr. Iselin stated that, in his judgment, the economic, social, and political problems involved in serious exploitation seem “more formidable than the remaining unsolved scientific problems.” Cowen, Frontiers of the Sea 295 (1960); 1960 Britannica Book of the Year 517.

155 Echo-sounding devices have recorded extensive diffuse sound-refleeting layers, often at about 250 fathoms, which rise at night and sink by day. This “deep-scattering layer” has never been clearly seen by bathysphere divers, though Cousteau and others, including William Beebe as far back as the 1930's, have observed that the density of organisms seems to increase with depth. Such findings run counter to theories of classical marine biology, which have maintained that most marine life is located quite near the surface. Cowen, op. cit. note 154 above, at 225 ff. Simultaneous observations with echo sounders and underwater television have, however, shown that there is a high correlation between strong echos received and fish observed. Backus and Barnes, “Television- echo Sounder Observations of Midwater Sound Scatterers,” 4 Deep Sea Research 116-119 (April, 1957).

156 Ibid. 166 ff., 172 ff. The (British) National Institute of Oceanography and the Woods Hole Oceanographic institution have started a two-year study of sub-surface ocean currents first discovered during the IGY. The Pacific counter-current was explored during the IGY by scientists of Scripps Institution of Oceanography. Ibid.; 1960 Britannica Book of the Tear 517. It is now known that the Cromwell Current extends some 3500 miles across the Pacific until it disappears near the Galapagos Islands. Knauss, “Measurements of the Cromwell Current,” 6 Deep Sea Besearch 265 ff. (June, 1960).

157 Cowen, cited note 154 above, at 186 ff.

158 1959 Britannica Book of the Year 350.

159 The U. S. National Science Foundation has awarded the Woods Hole Oceanographic Institution $3,000,000 for a new deep-sea research vessel, and the United States Congress has held prolonged hearings on a prospective ten-year program, including 70 new research vessels, at an estimated cost of $650,000,000. 1960 Britannica Book of the Year 517; Cowen, note 154 above, 293-294. The Columbia University research ship Verna reported finding a connection in the mid-ocean ridges which lie beneath all the oceans between the Atlantic and Indian Oceans, and detection in Bermuda of an underwater explosion 12,000 miles away off Australia. N. Y. Times, Sept. 23, 1960, p. 2.

160 1959 Britannica Book of the Year 519.

161 1960 Britannica Book of the Year 257; N. Y. Times, June 16, 1960, p. 45. The Soviet fisheries and ocean research fleet, including ships under construction, will total a reported 100 ships or so when complete, including two ice-breakers of 12,000 tons. The submarine has the ability to cruise with fishing fleets observing fish behavior and the operation of fishing gear, which the Soviets report has already yielded information resulting in improved trawl designs. See Cowen, cited note 154 above, at 293.

162 The first plant at Freeport, Texas, is expected to be completed within a year and to produce a million gallons per day. Half the output will be consumed by the Dow Chemical Company petrochemical facilities. Other saline water conversion plants are planned for such locations as San Diego, California, and Roswell, New Mexico. N.Y. Times, Aug. 31, 1960, p. 10.

163 The writer, as Chairman of the United States Delegation, stated at the end of the Conference that the offer to agree to a 6-mile territorial sea had been made only in the hope of achieving agreement at the Conference; rejection of the offer left the preexisting situation unchanged. The 3-mile limit was regarded by the United States as international law, the only limit on which there had been anything like common agreement, and which offered the greatest opportunity to all nations without exception. Unilateral claims to greater breadths conflicted with the universally accepted principle of the freedom of the seas. U.N. Doc. No. A/CONF.19/SR.14, at 6 (1960).

164 N.Y. Times, July 14, 1960, p. 8. The U. S. Navy Chief of Information stated that this Soviet “ s p y “ trawler had remained unmolested by the U. 8. Navy, since it had remained in international waters at all times, although closely approaching various points on the Atlantic Coast, because the United States would “abide by international law.'’ Ibid. See statement of U. S. Ambassador Lodge at the United Nations. N. T. Times, July 27, 1960, p. 4.

165 There have been dozens of such attacks over the last few years. See N.Y. Times, July 17, 1960, §4, p. E5. On July 1, 1960, the Soviet Union attacked a United States BB-47 reconnaissance aircraft over international waters, attempted to force it off course into Soviet territorial waters, and upon failing to do so, subsequently shot it down at a point far out from Soviet territorial waters over the Barents Sea about 200 miles from the location where the Soviet Union claimed the aircraft was intercepted. The aircraft did not even overfly any sea areas, such as the White Sea, which have been recently claimed by some Soviet writers. The United States offer to have the facts thoroughly investigated under United Nations auspices was summarily rejected by the Soviet delegate at the Security Council. N. Y. Times, July 26, 1960, p. 4; see memorandum on Historic Bays, U.N. Doc. No. A/CONF.13/l(1957), prepared by the United Nations Secretariat, 1 Official Records 3-9, 19 (U.N. Doc. No. A/CONF.13/37) (1958). The Premier of the Soviet Union has also threatened to shoot down any aircraft flying over the Black Sea along the Soviet border. N.Y. Times, Sept. 8, 1960, p. 1.

166 On July 7, 1960, a Soviet warship stopped the S.S. Ocean Eva, a U. S. freighter of about 10,000 tons, when she was on the high seas about 350 miles from the Soviet-held Kurile Islands. N.Y. Times, July 22, 1960, p. 1.

167 As proof of the reasonableness of the 6-mile territorial sea plus 6-mile fishing-zone concept incorporating a 10-year phasing-out period as a basis for international agreements, the United Kingdom and Norway are understood to have formulated such an agreement as to Norway's territorial sea and fisheries claims, thus putting into effective practice this U. S.-Canadian compromise as proposed at the second Conference. N. Y. Times, Sept. 29, 1960, p. 2.