and also announced that it would "proceed to supervise, utilize and control the zones of fishing protection which are necessary for the conservation of this source of well-being." "

The Argentine Presidential decree of October 1946,2 broadening an earlier decree of 1944,3 proclaimed Argentina's sovereignty over both the Continental Shelf and its sea. While it recognizes the right of free navigation in the sea above the shelf, this would appear to mean no more than a right of innocent passage. The Argentine decree asserts that the United States has proclaimed its sovereignty both over the shelf and the peripheral epicontinental sea. This assertion is not, of course, accurate, for the United States stated specifically that the proclamation did not affect the status as high seas of the waters above the shelf.

In June 1947, Chile proclaimed its sovereignty over the Continental Shelf at whatever depth and over all of the waters adjacent to its coasts to the full extent necessary to reserve, protect, conserve, and make use of the natural resources within or below those seas.* It referred specifically to the control of fisheries and as a first step announced a protection zone "at present" extending 200 nautical miles from the coast.

Chile sought to justify these claims by asserting that the United States, Mexico, and Argentina had already proclaimed their sovereignty over the shelf and seas adjacent to their coasts. Clearly, this assertion misapprehends the United States position and apparently employs the Continental Shelf principle only as an argumentative concept, for Chile has a very narrow Continental Shelf.

Peru, also with a narrow Continental Shelf, followed the Chilean form of proclamation. Costa Rica, in 1948, by decree-law followed the Chilean pattern."

Ecuador, as a party to the Santiago Conference declaration of 1952,7 claims sovereignty to a distance of 200 miles seaward and over the seabed regardless of depth.

8

In 1950 Honduras claimed the Continental Shelf and the waters above as national territory, and in 1951 claimed protection and control over the Atlantic Ocean within 200 miles from the low-water line.

Certain states in support of their claims have referred to two multilateral pronouncements of the American Republics-the Decla

[Presidential Declaration, Oct. 29, 1945 (English language text in Laws and Regulations on the Regime of the High Seas, vol. I (United Nations publication ST/LEG/SER.B/1; 1951), pp. 13-15).]

2 [Decree No. 14708, Oct. 11, 1946; ibid., pp. 4-5.]

3 Decree No. 1386, Jan. 24, 1944; ibid., pp. 3-4.]

4 Presidential Declaration, June 23, 1947; ibid., pp. 6-8.]

5 [Presidential Decree No. 781, Aug. 1, 1947; ibid., pp. 16-18.] Decree No. 190, Sept. 28, 1948; ibid., pp. 8-9.]

[Conferencia de Explotación y Conservación de las Riquezas marítimas del Pacífico Sur; Declaración sobre Zona Marítima (Annex 19; República del Peru, Memoria del Ministro de Relaciones Exteriores.

Julio de 1953 (Lima, 1954), pp. 70-72).]

8

4 de Agosto de 1952-27 de

[Congressional Decrees Nos. 102 and 103, Mar. 7, 1950; ibid., pp. 11-12.]

1

rations of Panama and the Inter-American Treaty of Reciprocal Assistance.2

The first delimited certain areas of the high seas adjacent to the American Continent in which the participants declared their interest as a matter of self-defense. The latter merely described an area in which aggressive action activated certain provisions of the treaty. But neither of these furnishes a foundation for the unilateral assertion by a coastal state of sovereignty over the high seas.

It seems evident that the states making these excessive claims realize the insecurity of their legal justification. Apart from reference to these two inter-American pronouncements of an entirely different character, this is indicated by the imprecise nature of their definition: the attempts to justify them on the basis of similar action by other states with similar objectives, and the obvious misapprehension of the United States proclamations where cited as a justification.

NO INCONSISTENCY WITH FREEDOM OF SEAS

It is submitted that the doctrine of the Continental Shelf is in no way inconsistent with the principle of the freedom of the seas. The 1945 proclamations on the Continental Shelf and the Outer Continental Shelf Lands Act make perfectly clear that the claims of the United States in the shelf are not intended to modify in any way the freedom of the superjacent waters.

While, as stated in the 1950 report of your learned society, the Continental Shelf theory fills the gap in international law on this subject, the application of the new theory will create many legal problems the definitive answers to which will only become apparent with time and experience.

The principle of the freedom of the seas is as valid today as when it was established. It is even more necessary now that these highways of communication be kept open. We cannot return to the Middle Ages or the days of the Barbary pirates, when coastal states exacted tribute for rights of navigation. Nor can we return to those days when strong and enterprising states appropriated the resources of the seas by appropriating the seas themselves.

If the resources of the sea have become more important because of the needs of increased populations for food and the decrease in such resources due to wasteful exploitation, the answer is not to be found in disregarding existing international law by unilateral extension of territorial waters or new definitions of such waters. Nor is the answer to be found in the exaction of tribute for the right to fish on the high seas. Such actions have already gone far toward upsetting otherwise good relations between states.

[Res. XIV, Oct. 3, 1939; Report of the Delegate of the United States of America to the Meeting of the Foreign Ministers of the American Republics, Panama, September 23-October 3, 1939 (Department of State publication 1451; 1940), pp. 62-66.]

2

[Supra, pp. 789-796.]

Report of the Forty-fourth Conference, Copenhagen, 1950, International Law Association (1952), p. 132.

The alternative is a program of conservation of fisheries-the application by international agreement of control based on scientific principles. While due recognition must be given to the special interest of the coastal state in the resources off its coasts, the rights of the other members of the international community must also be respected.

The same principle should govern the application of the doctrine of the Continental Shelf. The right of the coastal state to the resources of its Continental Shelf cannot be made an excuse for reduction of the high seas above the shelf to the sovereignty of the coastal state, and any exploitation of its resources must be so conducted as to result in a minimum interference with the common use of the superjacent seas.

28. FISHERY CONSERVATION PROBLEMS: Article on the Conference Between Chile, Ecuador, Peru, and the United States at Santiago, Chile, September 14-October 5, 19551

Representatives of the United States met with representatives of Chile, Ecuador, and Peru at Santiago, Chile, from September 14 to October 5, 1955, to negotiate an agreement for the conservation of fishery resources of the eastern Pacific. While considerable progress was made in clarifying the views and interests of the parties to the negotiations, the delegations encountered basic problems which stood in the way of reaching agreement and led to the suspension of the negotiations in order that further consideration might be given to those problems in the respective governments.

Behind these negotiations lay a legal controversy between the United States and the Governments of Chile, Ecuador, and Peru with respect to the claims of the three South American countries to exclusive sovereignty over a so-called maritime zone extending not less than 200 miles off their coasts. Claims over such an area had been advanced by Chile and Peru individually in 1947.2 In August 1952 the Declaration of Santiago was signed by the three South American countries stating 200-mile claims in a joint manner and pledging themselves to collaborate for the protection of maritime resources in the area. Later they agreed not to enter into any international agreements affecting these claims without the concurrence of the other

3

1 Department of State Bulletin, Dec. 19, 1955, pp. 1025-1030. Footnotes which follow are in the original, unless bracketed. See also Santiago Negotiations on Fishery Conservation Problems (Department of State unnumbered publication; 1955), which includes, in addition to this article, the conference documents. 2 [See the Chilean Presidential Declaration of June 23, 1947 (Laws and Regu lations on the Regime of the High Seas, vol. I (United Nations publication STLEG/SER.B/1; 1951), pp. 6-8) and the Peruvian Presidential Decree No. 781 of Aug. 1, 1947 (ibid., pp. 16-18).]

3 [Conferencia de Explotación y Conservacion de las Riquezas marítimas del Pacífico Sur: Declaración sobre Zona Maritíma (Annex 19; República del Peru, Memoria del Ministro de Relaciones Exteriores. 4 de Agosto de 1952-27 de Julio de 1953 (Lima, 1954), pp. 70-72).]

parties to the Declaration. It was because of this pledge that the United States, which first proposed such negotiations to the Goverernment of Ecuador, agreed to negotiate simultaneously with all three South American Governments.

Despite United States protests against the claims of the three countries, which were directly in conflict with the well-established principle of the freedom of the seas, various actions by Ecuador and Peru sharpened the legal controversy. Fishing vessels of U.S. registry operating on the high seas off the coasts of Ecuador and Peru during 1954 and 1955 were seized and subjected to fines or taxes, or were otherwise molested. These incidents culminated in the seizure in March 1955 of two U.S. fishing vessels some 25 miles from the coast by an Ecuadoran patrol boat, in the process of which an American seaman was seriously wounded by gunfire.

Various high officials of the Governments of Chile, Ecuador, and Peru assured representatives of the United States that the sole purpose of the claims to sovereignty over the high seas set forth in the Santiago Declaration was to insure the conservation of the living resources of the sea which the three coastal countries considered essential to their economic development and their future welfare. The United States, in accordance with its well-established policy of promoting the conservation of fishery resources, therefore made a dual proposal to the three countries in a note handed to their Foreign Offices by the U.S. Embassies on May 13, 1955. In this note the United States proposed that the dispute over the claims by those countries to sovereignty and jurisdiction over the ocean to a distance of 200 miles from their shores be submitted to the International Court of Justice, and that negotiations be entered into between representatives of the three countries and the United States for the conclusion of an agreement for the conservation of fishery resources in which the four countries had a common concern. Such an agreement would not refer to the extent of territorial waters.

In their response to this note, the three South American countries on June 3, 1955, replied that they were not prepared to consider at the time whether or not the legal controversy should be submitted to the International Court of Justice (none of them having accepted the compulsory jurisdiction of the Court) but that they were prepared to initiate jointly the proposed negotiation of a conservation agree

ment.

U.S. AGREES TO NEGOTIATIONS

In a further note handed to the three Governments on July 9, 1955, the United States expressed regret at the unreadiness of the South American countries to submit the legal controversy to the International Court of Justice. The United States agreed nevertheless to open negotiations with the three countries for an agreement for the conservation of fishery resources of the eastern Pacific Ocean in general conformity with the conclusions on technical aspects of fishery conservation approved by the United Nations International Technical Conference on the Conservation of the Living Resources of the

Sea (Rome, April 18-May 10, 1955). It was stated specifically that any such agreement would have to be drafted without reference to the claims of any of the four Governments with respect to territorial waters or other forms of special jurisdiction over the seas adjacent to their coasts.

After the formal opening of the negotiations on September 14, 1955, by His Excellency Rear Admiral Kare Olsen Nielsen, Foreign Minister of Chile, the question of how to proceed with the negotiations was discussed. The U.S. delegation proposed the following three points, to be discussed in the order indicated: 2

1. Consideration of the principal fishery conservation problems of the southeast Pacific of concern to the participating governments; 2. Examination of existing types of conservation measures and procedures that might be useful in solving these problems;

3. Type of agreement that would be required for satisfactory resolution of the conservation problems confronted, and provisions of such an agreement.

Two days later the delegations of Chile, Ecuador, and Peru, who acted in concert throughout the negotiations, replied that in their view the negotiations could be better facilitated by the immediate submittal by the United States of proposals for a conservation agreement. The delegations of these three Governments (which became known as the CEP delegations) also urged that in making any such proposals the United States take into account the desirability of preventing repetition of incidents such as those which had taken place involving U.S. fishermen during the past months.

U.S. PROPOSALS FOR CONSERVATION AGREEMENT

Accordingly, on September 20 the U.S. delegation presented to the other delegations a full statement of its understanding of the problems of fishery conservation in the southeastern Pacific, insofar as the United States had an interest therein and knowledge thereof, and submitted, on the basis of this understanding, its proposals for a conservation agreement.*

In these documents the United States pointed out that its principal concern was with the stocks of yellowfin, skipjack, and big-eye tuna and with small bait fish used in catching the tuna. The distribution of these stocks of tuna in the Pacific Ocean was described in relation to ocean current systems. Data concerning the condition of these stocks of tuna were referred to, emanating principally from the studies carried out by the Inter-American Tropical Tuna Commission.5

The work of the Inter-American Tropical Tuna Commission was discussed, and the United States delegation pointed out that the convention which established that commission included, in its opinion,

1 For the report of the conference, see U.N. doc. A/Conf.10/5/Rev. 2. 2 Santiago Negotiations on Fishery Conservation Problems, U.S. doc. 1, p. 12. 3 Ibid., CEP (Chile, Ecuador, and Peru) doc. 1, p. 15.

Ibid., U.S. docs. 2, 3, 4, 5, 6, 7, pp. 16-30,

5 Ibid., U.S. doc. 5, p. 21.