Freedom of the Seas

NEWS that the nuclear-powered submarine Nautilus had travelled swiftly and silently underseas from Pearl Harbor to the Bering Straits and then some 1,830 miles under the drifting, grinding Polar ice pack and on to Iceland and Western Europe--some 8,000 miles in all--thrilled the free world. The voyage under the ice which permanently shrouds the uncharted bottom of the Arctic basin was done in less than four days. The entire route was through international waters common to all, and almost all of it was in the invisible depths of the ocean.

Not even Jules Verne dreamed of finding an undersea alternative to the elusive Northwest Passage which led Cabot and Hudson and other great sea captains to the very discovery and exploration of North America. The Arctic ice crushed all hopes for a shorter route to the Pacific and the Indies from that time until our nuclear age. Thus, the accomplishment of our Nautilus, with all of its strategic and even commercial implications, reaches across the centuries of modern history. The ability to send fleets and to transport cargoes under icebound seas at vastly increased speeds over vastly decreased distances has altered the geographical and geophysical framework of our world. It takes its place in significance alongside the advent of earth satellites. Quite clearly, changes in sea power, and specifically undersea military and perhaps commercial navigation, if the problem of expense can be solved, may be the beginning of a revolution in strategic thinking. A new Mahan is needed.

This voyage, taken in conjunction with the development of a compact, solid-propellant, ballistic missile and of a launching mechanism and a special submarine to fire it, also indicates immense potentialities for a new weapons system. The Polaris submarines, of which several are under construction, will be equipped to navigate accurately for long distances underneath the water, as the Skipjack, Swordfish and Sargo have demonstrated is possible, though less dramatically than the Skate and the Nautilus. These new submarines not only pose a serious threat in time of war to a nation's surface commerce but could constitute a highly mobile and elusive striking force capable of launching missiles from beneath the water at targets many miles inland. Our use of Polaris would be entirely within our national control and would not involve complicated base agreements with other countries.

The ability of a submerged submarine to fire missiles greatly complicates defense problems, since a land defender cannot know the arc which such missiles will travel. The missile-firing submarine also has the advantage of placing a nation's nuclear striking force as far as possible from population centers.

Today Russia has about 475 submarines, more than one-third of them being long-range types which can carry mines as well as torpedoes. Further, it is fair to assume that in time the Russians can adapt some of their existing submarines to carry winged subsonic missiles such as our Regulus. And we know from our experience with the atomic bomb that once a scientific breakthrough has been achieved in one nation the scientists and production experts of other industrial nations will not be found lagging far behind. Thus, the voyages of the Nautilus and the Skate, thrilling as they are, undoubtedly mean that in the not-too-distant future the Russians will also operate nuclear-powered submarines which possibly can move under the ice packs into Hudson Bay, or down either the Atlantic or Pacific shores, there to launch solid-propellant missiles against the heartland of the United States.

Such developments highlight the importance of the recent Conference on the Law of the Sea, which convened in Geneva under the auspices of the United Nations on February 24, and was finally adjourned on April 28. One of the major proposals made at this Conference was to extend territorial limits from 3 to 12 miles, a step which would have had profound implications--among them, a dramatic increase in the threat posed by submarines. That this proposal was defeated was, as we shall see below, one of the most important achievements of the United States at the Geneva Conference.

Four conventions (and an additional voluntary arbitral convention) emerged from the Conference and are now subject to ratification.^[i] They deal with: (a) the territorial sea (the narrow maritime belt adjacent to a nation's coast over which it exercises certain sovereign rights both as regards the sea and the air space above, including coastwise trading, fishing rights for its own subjects, the laying of submarine cables, and rules for navigation); (b) the Continental Shelf (where a coastal state has exclusive jurisdiction to explore and exploit the subsoil of the ocean beyond the territorial limits, if that is feasible); (c) the high seas (all areas not constituting a part of the coastal state's territorial sea or inland waters) and the conventions dealing with, among other things, freedom of navigation on and under the high seas, freedom of fishing in them, freedom to lay submarine cables and pipelines in them and freedom to fly over them; and (d) conservation of the living resources of the high seas.

These four extremely useful conventions were the result of much debate and hard work, first in the International Law Commission of the United Nations which produced the draft articles that served as working papers for the Conference, and then in the committee and plenary meetings of the Conference itself. As adopted, they represent a significant development in the international law of the sea and, indirectly, of the air, and encompass a surprisingly large area of agreement.

Although the somewhat meager coverage in the United States press gave the impression that the only objective was to determine the legal limit of the territorial sea, the Conference in fact faced a host of other problems. Among these were rights of a coastal state in the adjacent Continental Shelf; the method of determining the base lines from which the territorial sea of a coastal state is to be measured; the right of innocent passage of surface vessels through, or aircraft over, straits which lie within a nation's territorial sea but connect international bodies of water; the existence and extent of a contiguous zone (a zone in accordance with the convention on the high seas adopted at the Conference, not to exceed 12 miles in breadth, in which the coastal state may exercise controls necessary to prevent infringement of customs, fiscal, immigration and sanitary regulations); the conservation of fisheries and crustacea and other living resources of the sea; the right to use the high seas for atomic tests and military manœuvres; the rights of landlocked countries; the terms and conditions of the grant of nationality to ships; and other problems equally involved and more than a little charged with political and economic connotations.

The United States and its delegation realized when they entered the Conference that it would be a difficult one. World conditions seemed favorable for Communist and newly-created nations to upset the existing law of the sea developed and evolved over many years largely by the major maritime Powers. To some of the newer countries the fact that most of these were also colonial Powers was a profound source of irritation. Indeed, what we usually regard as a long historical fight for the freedom of the seas may seem to them to have indirectly conferred upon foreigners a right to come within a short distance of their coasts to filch their natural resources without paying any compensation.

For military and political reasons the Soviet bloc was insisting on a 12-mile or even greater limit for territorial seas. No such breadth had ever been recognized in international law, and it was vigorously opposed by the United States and other maritime nations as unduly restrictive. The Soviet Union was also espousing an absolute right of transit by a landlocked country across the territory of an adjacent coastal state, including free access to its ports and duty-free entry of goods. If such a proposition were adopted it could have considerable political significance, especially in case the landlocked country were hostile to the coastal state.

The Soviet Union also was demanding that nuclear tests be banned on the high seas, which would have had the effect of preventing the recent tests at Eniwetok and would have made largely futile the subsequent negotiations on that subject at Geneva. In making this demand, the Soviet Union conveniently forgot that it recently closed Peter the Great Bay--which is 120 miles across --in order to protect two of its missile bases and had otherwise violated freedom of the seas by sealing off vast bodies of waters and terming them inland waters.

The heated dispute over Israel's right of passage through the Strait of Tiran connecting the Gulf of Aqaba and the Red Sea unfortunately colored the attitude of some of the Arab countries toward the law of the sea and caused certain of them to vote for the Soviet proposition regarding the breadth of the territorial sea. And several states which nourish hard feelings toward their former colonial rulers showed a desire to exercise their new-won sovereignty with complete freedom and to make their own decisions regarding the rights of other nations to fish off their coasts, to navigate in their waters or to fly over their territorial sea.

The economic difficulties of many Latin American countries, caused in part by the decrease in the exports of coffee (due to increased production of African coffee), wool, cotton, sugar, tuna, shrimp, lead, zinc and copper, and by the decline in the prices of these commodities, brought their needs in conflict with ours. Mexico's approach was colored by her acrimonious and sometimes bloody dispute with our shrimp fishermen, involving questions both of the breadth of the territorial sea and of a coastal state's rights in the Continental Shelf.

There were many other special situations. Iceland, which has been selling a large part of its fish in the Russian and East European markets, favored extending the limit of the territorial seas to 12 miles--a claim which aroused Britain and other Western European nations long accustomed to fish close to Iceland's 3-mile limit.^[ii] Canada also claimed the right to regulate fishing for 12 miles off its coasts in order to control the abundant fishing off the Grand Banks of Nova Scotia and the halibut and salmon fishing on the Pacific coast. This claim, which ran afoul of the historic rights and practices of other nations, aroused strong feelings among Western European nations dependent in large part on cod for their protein diet.

India, Burma, Thailand, South Viet Nam, Cambodia, Korea and several other states were interested in excluding Japan's fishing vessels from their territorial seas and therefore wished to extend the breadth of their territorial seas. Some had already done so by their own statutes.

Chile, Ecuador and Peru claimed 200 miles of territorial sea off their coasts in order to control the rich tuna and whale fisheries in that area and to protect the marine fauna which feed the birds whose guano deposits provide fertilizer for domestic agriculture as well as for export. Although these claims used the 1945 Truman Proclamation on the Continental Shelf as a point of departure, they were grounded primarily on natural law, i.e. "The right of conservation of economic factors is inherent in all States." Such claims clearly are not consistent with the Truman Proclamation in respect to preserving the waters above the Continental Shelf as high seas, open to all for navigation and fishing, for these states assert jurisdiction over the waters (and over the air space above them) for 200 miles. In any case, they have a very narrow Continental Shelf, measuring less than 2 miles at points and extending to a distance of 60 to 80 miles in only one section.

Panama wished to protect her claim that the Bay of Panama is an historic water which can be legally excluded from the high seas, on the theory--denied by us--that she would then be able to bargain over the right of a ship to enter the Canal. The result of this would be in large measure to violate our treaty rights.

The Philippines and Indonesia asserted special rights for archipelagoes. They asked that the waters "around, between and connecting" the islands of an entire archipelago should be treated as internal waters and that the surrounding areas, determined from straight base lines, should be treated as territorial sea. This proposition would have converted vast areas of the high seas into internal waters and would have closed vital navigation and aerial routes between India, the Far East, Australia and New Zealand. The implications to the free world of this doctrine are enormous.

There were other difficulties in the way of reaching an accord at the Conference. There were the usual Soviet tactics of delay, deceit and detour, supported by a bland disregard of facts and by expressions of pious altruism toward the newly-created nations completely at variance with actual Soviet practices. There was the fact that almost all of the nations at the Conference belonged to some recognizable group with similar geographic, ethnic, economic or political interests which they sometimes attempted to assert collectively--the Arab nations, the Afro-Asian group of nations, the Western Europeans, the Latin Americans, the Central Americans, the members of the British Commonwealth and the Soviet Union and its satellites. And there was the fact that countries geographically close to the Soviet Union or to Arab states, or those, like Austria, whose international position is governed by special treaties, were led to take a somewhat neutral position on controversial questions.

In addition, at this Conference there were representatives of the landlocked states--Afghanistan, Austria, Bolivia, Czechoslovakia, Hungary, Laos, Luxembourg, Paraguay and Switzerland--all with interests somewhat different from those of coastal states.

If any accord was to be reached, all of these disparate forces had to be reconciled. Moreover, any conventions adopted had to pass through a time-consuming procedural machinery which required that the amendment furthest removed in substance be voted upon first, followed by the amendment next furthest removed, and so on, until all amendments had been put to the vote of the 86 nations represented. The Soviet and Mexican delegations were past masters at calling for a divided vote which would split an integral proposal into several parts and in moving to strike out key words, or key definitions, or of ruining by slight changes the patient work of drafting committees.

II

In spite of these varied and numerous difficulties and obstacles, the Conference reached agreement on a series of complex and controversial issues and produced conventions which represent significant milestones in the development of the law of the sea. Given the scope of the problems involved and the many conflicting interests which had to be reconciled, the results exceeded the expectations with which many of the participants--including the United States--had entered into the Conference.

True, no binding accord was reached on the inordinately difficult, controversial and much-publicized question of the legal limit of the territorial sea. But even here the United States and the other principal maritime nations were successful in preserving the traditional limit of 1 league or 3 nautical miles;^[iii] for since the Conference was unable to agree by a two-thirds vote either on the 3-mile or any greater limit of the territorial sea, it adopted no provisions which would alter the traditional rule.

When it became apparent that a 3-mile limit would not be adopted by the Conference, the United States offered a compromise designed to accommodate the sincere interests of all the states represented. After conferring with the representatives of many delegations, and supported most constructively by the British delegation, we suggested that the limits of the territorial sea be extended to 6 miles and that recognition be given to the right of coastal states to regulate fishing for another 6 miles, subject to certain historical fishing rights. In plenary session this compromise received a majority of votes--45 for and 33 against --falling short of the two-thirds necessary for adoption, but nevertheless giving the United States at least a moral victory. No other proposal received a majority vote and, indeed, all the others were resoundingly defeated.

The desire of the United States to maintain a relatively narrow territorial sea and, more particularly, to prevent any extension to 12 miles was based not merely on the fact that the 3-mile limit has long been recognized in international law but also on compelling military and commercial considerations. To reduce the area of the high seas by transforming important waters into territorial seas, closed to free navigation (and with the air space above closed also), would decrease the security of the United States by reducing the efficiency of its naval and air power and increasing the risk of surprise attack. In many straits there would be no high seas left. In the Aegean Sea and the Eastern Mediterranean, and in the seas around Indonesia, the Philippines and Japan, an extension of each island's territorial sea would inhibit the operational ability of our fleet and air force. For navigational purposes it would change a large Pacific area into a series of unconnected "lakes" of high seas. Surface warships and transports might operate in the straits connecting the international bodies of water, but this right would not, in the absence of a treaty, extend to an aircraft's right to fly over them or to a submarine's right to operate under the surface of them.

In time of war observance of the rules of international law unfortunately becomes very often a question of expediency. But a nation such as the United States which has regard for the rights of mankind and respect for a legally ordered society cannot lightly envision the disregard of international law as it applies to the territorial seas of neutral nations. As noted above, the extension of the territorial sea of neutral nations might in many instances increase the striking power of enemy submarines. This is because normally submarines cannot safely operate within 3 miles of the shore. However, if the territorial sea were extended to 12 miles, an enemy submarine (particularly a nuclear submarine which could operate silently for long periods without surfacing) would be able to move about undetected in a neutral state's territorial sea, whereas our surface ships could not operate there without violating the state's neutrality.^[iv]

The operation of commercial shipping by water or air would also be subjected to delay and navigational difficulties. Indeed, it would seem to have been part of the Soviet purpose in backing extensions of the territorial sea to hamper the commerce of the free world. As a continental Power with limited access to the sea, the U.S.S.R. had little to lose by embracing a 12-mile limit.

The proposal would have made necessary new treaties or agreements with states through whose territorial waters merchant ships would then pass. The right and ability of such ships to schedule the most economical routes, to enter and leave harbors freely, and to move at will without interruption or delay would be jeopardized. Similarly, the routes and practices of freight and passenger aircraft would be subject to disruption, and new agreements might be required giving the right to fly over territorial seas newly created from the high seas.

Clearly, then, the rejection of attempts to extend the territorial sea represented an achievement in the preservation of the freedom of the seas and of the air space above them. When it became apparent that agreement on this matter could not be reached, the writer, as chairman of the American delegation, stated:

Our offer to agree on a 6-mile breadth of the territorial sea provided agreement could be reached on such a breadth under certain conditions was simply an offer and nothing more. Its non-acceptance leaves the preëxisting situation intact.

We have made it clear from the beginning that in our view the 3-mile rule is and will continue to be established international law, to which we adhere. It is the only breadth of the territorial sea on which there has ever been anything like common agreement. Unilateral acts of States claiming greater territorial seas are not only not sanctioned by any principle of international law, but are indeed in conflict with the universally accepted principle of freedom of the seas . . . .

We have made it clear that in our view there is no obligation on the part of States adhering to the 3-mile rule to recognize claims on the part of other States to a greater breadth of the territorial sea. On that we stand.

Another complex and controversial problem which the Conference faced was the claim of many nations that the base line from which the territorial sea is measured need not be the actual coast line at low tide but under some circumstances may be a line drawn between points on the shore. Such straight base lines, as distinguished from those following the real shore line, leave areas of open water between the coast and the base line.

The prior law in this connection had been set forth by the International Court of Justice in the well-known Norwegian Fisheries case. It limited the use of straight base lines to the unusual cases "where a coast is deeply indented and cut into," as in the case of Norway's northern coast. Efforts at the Conference to expand this rule to permit states with merely irregular coast lines to extend their territorial seas were resisted.

The convention adopted by the Conference on the question of a nation's rights in its Continental Shelf is the first world-wide accord on the subject and is highly satisfactory to the United States. The sea bed and its subsoil adjacent to the coast and extending beyond the territorial limit as far as the depth of the water admits of exploitation of the natural resources are defined as the Continental Shelf in which the coastal state has exclusive rights of exploration and exploitation. Although the convention uses the term "sovereign" when referring to these rights, such rights are clearly limited to the sea bed and subsoil and do not extend to the seas and air space above.

The United States was especially anxious to preserve the character of the waters above the Continental Shelf as high seas. It also was concerned with the assertion by some states that crustacea such as shrimp were within the domain of the coastal state. The Conference defined natural resources as the mineral and other non-living resources of the sea bed and subsoil, together with living organisms which at the harvestable stage either are immobile or under the sea bed or are unable to move except in constant physical contact with the sea bed or subsoil. The latter provision gives coastal states such as Australia the right to control oyster beds and pearl fisheries.

Another controversy which was successfully resolved by the Conference was the right of "innocent passage" for foreign ships through international straits and such parts of territorial waters as are used as highways for international traffic. The convention adopted makes clear that there shall be no suspension of the right of "innocent passage" of foreign ships, including warships, through straits which are used for international navigation between one part of the high seas and another or to reach the territorial seas of another state. This represents a significant reaffirmation of freedom of the seas and clearly applies to the Arab-Israeli controversy over the Strait of Tiran, giving Israel a legal right of innocent passage through the Gulf of Aqaba to the Red Sea.^[v]

Another striking accomplishment was the adoption of a comprehensive convention regulating the conservation of the natural resources of the sea. Significantly, this convention defines conservation as "the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products." It provides for a new system of international coöperation and spells out new rights and duties for both the fishing and coastal states which become parties to it. Thus, a state whose nationals fish anywhere in the high seas where nationals of other states do not fish must adopt conservation measures when necessary. Under another provision, if the nationals of two or more states fish the same stocks of fish in a given area of the high seas, these states shall, upon the request of any of them, enter into negotiations to prescribe necessary conservation measures. Once measures have been adopted, other states which subsequently fish that area are obligated to apply them. This convention further recognizes that a coastal state has a special interest in the conservation of the living resources of adjacent high seas even if its nationals do not fish there. Thus, if negotiations with the interested fishing states have not led to agreement within six months, a coastal state may unilaterally promulgate non-discriminatory conservation regulations which will be binding upon other states. In addition, the convention provides for a compulsory and speedy settlement by a special commission of disputes arising under its articles and sets forth criteria to be applied in determining the necessity for conservation measures. Although the doctrine of abstention was not adopted, much progress was made in educating the nations on the need to refrain from fishing certain stocks of fish, especially salmon and halibut, on the high seas.

III

For many years scholars and jurists have worked to establish the concept of a world-wide code of international law of the high seas. They become impatient when international law in this field evolves step by step as did the common law. But it is too much to expect that complete and uniform agreement can be reached easily and quickly among the nations of the world on questions of tremendous economic and security importance.

It must be remembered that so-called historic doctrines of the freedom of the seas do not have the same appeal for newly-formed nations which possess little shipping or lack deep-sea fishing equipment. Maritime nations fish off their coasts without paying license fees, duties or taxes and their heavy trawlers may injure the seines and set lines of the native fishermen.

Solutions to these difficult questions will be found only by a careful and objective sifting of the facts without avoiding the actual issues by reliance on technicalities and historic principles which may be inapplicable to the local situation. The United States is in a unique position to be helpful in this respect since it can economically afford a reasonably objective approach. It also can make scientific and research facilities available to the newly-created nations and can help in promoting the doctrines of conservation and abstention.

Many nations did not support the proposal of the United States regarding the breadth of the territorial sea because of constitutional or statutory reasons or because of objections to its arbitration provisions as violating national sovereignty. Nevertheless it was supported enthusiastically by all the NATO nations except Iceland, and by all of the British Commonwealth except Burma and Canada. Many others praised the United States for making a constructive and imaginative attempt to achieve an agreement on the breadth of the territorial sea even though, as was well known, it had wished to retain the 3-mile limit.

The United States thus emerged from the Conference with considerably enhanced good will and prestige due to the sympathetic interest it had shown for the problems of other nations, small as well as great. It would be a mistake to think that the failure to accept one proposal was due to anti-Americanism per se. Apart from the Soviets and their satellites, the cause of non-acceptance was generally a divergence of economic interests--the fishing disputes concerning Mexico, the west coast Latin American states and Canada; Canadian resentment of our surplus wheat sales; our restrictions on oil imports which affect oil production in Canada, Venezuela and other countries; the inability of Canadian subsidiaries of American corporations to accept orders from Communist China; local boundary disputes; archipelago questions; our protective tariff policies on mineral and wool imports from Latin America; the Arab-Israeli problem; and many other problems.

We must continue to seek solutions of such problems in a spirit of fair compromise. We must work to overcome the distrust of the newer nations for their former colonial masters and for the great maritime Powers. We must also continue to seek understanding of the problems of the older nations, which are very real and must be examined carefully. All this will take patience, time and much creative effort. The achievements of the United States at the Conference in these respects should not be misread as failure but regarded as what they were, leadership in the free exchange of ideas.

^[i] Each of these conventions is open for signature until October 31, 1958, and will come into force upon ratification or accession by 22 nations. A number of nations signed at Geneva and others have signed since.

^[ii] Iceland has since unilaterally extended its claim to exclusive fishing rights to 12 miles off its coast. As this article is being written, the British Admiralty has announced protective measures for its trawlers. France, the Netherlands and other West European states also are not expected to recognize the Icelandic announcement.

^[iii] The Scandinavian countries historically used a league equivalent to 4 nautical miles.

^[iv] Although one of the articles adopted at the Conference requires submarines when navigating in a territorial sea to stay on the surface and to show their flag, it is not realistic to assume that belligerent submarines would obey this law in time of war.

^[v] The right to make the waters of large bays internal waters and thus not subject to the right of innocent passage was restricted to bays not more than 24 miles wide at the mouth.