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Parkinson’s Law notwithstanding, men (and nations) tend to graduate their efforts in proportion to the values at stake in a given controversy, and the intensity of their conflicts tends to follow the same proportion.
Regarding the world’s oceans, the primary values at stake are twofold—the right to exploit the present resources in and under the sea, and the right to use the surface for transit. In those areas where these values are at their highest, the nations have, by and large, come into accord on a legal regime governing their exploitation. Considerable progress has been made through treaties governing the allocation and conservation of the vast resources of the North Atlantic fisheries. A detailed regulation has been adopted regarding the exploitation of the immense wealth beneath the continental shelf. The freedom of the high seas, with all that such a concept implies in economic benefit to those who can use it, has been definitively settled. In sum, the nations on both sides of the Iron Curtain have gone a long way toward making an orderly disposition of the overwhelmingly larger part of the world’s ocean resources, and attitudes on both sides indicate that a reasonably orderly settlement of almost all remaining details will be forthcoming.
There is, however, one small segment of the ocean law regime which shows no sign of yielding to settlement by rational means—the issue of the breadth of the territorial sea. And it is here that we are confronted with one of the great anomalies of international maritime law—maximum intensity of conflict over a minimum of value.
This anomaly results from the fact that many nations, in making claims to extended territorial seas, are not really seeking to protect the values encompassed by these waters, but to fashion another offensive weapon for use in the diplomatic arena. In short, the 20th century has seen the conversion of the territorial sea from a matter of middling municipal concern into a potent bargaining wedge and a Cold War weapon. The issue and the claims have been divorced from the underlying values, and it is essential that the United States recognize the full import of this divorce and shape its foreign policy accordingly to preserve its interests in the marginal seas of the world.
An examination of the nominally asserted bases for territorial sea claims will illustrate the irrelevance of the usual underlying values.
The most commonly asserted bases for severe limitations on the extent of the territorial sea are the efficient and economical flow of ocean commerce, the most efficient exploitation of present ocean resources, and the burdens which extended territorial seas place on the littoral states in terms of neutrality and other police and safety functions.
These bases have been analyzed at length elsewhere, and that analysis will not be repeated here. It is sufficient at this point to note that while these considerations have significant factual relation to the values at stake, they are not, as we shall see, the primary motivations for the assertion of the “freedom of the seas” doctrine.
The usual bases advanced for the extended territorial sea claims are three: appropriation of fish resources, enforcement of customs, and state security.
It may be conceded that there are economic ties between coastal dwellers and adjacent fish resources everywhere in the world, varying in intensity from absolutely vital to merely convenient. Hence, there is a certain superficial logic to the concept that appropriation of adjacent waters to 12 miles will result in a net gain in the fishing yield exclusively available to the nationals of the coastal state. However, closer analysis reveals that even a 12-mile territorial sea would not significantly improve the position of the littoral state visa-vis adjacent fish resources. In the first place, a 12-mile coastal strip would represent but a small portion of the entire fishery. Control of a mere portion of the fishery for conservation is not sufficient, since we are dealing with an essentially migratory resource. Given overfishing or depletion of the fishery outside the 12-mile zone, the remaining fish will tend to distribute themselves evenly over the entire fishery, and the coastal state will still be powerless to control the depletion. The weakness in such a “line drawing” approach to conservation is that the fish don’t know where the lines are, and wouldn’t observe them if they did. For purposes of domestic political advantage, claims to an extended territorial sea are usually accompanied by statements that they represent a solution to the fisheries
Problem. Such assurances tend to blunt the real urgency of the need for control beyond the territorial sea, and suppress agitation for implementation of the truly effective conservation treaties which have become available. Additionally, claims of extended sovereignty interfere with the gathering of the data and information that is required to devise effective Conservation schemes.
Extended claims to sovereign jurisdiction to accomplish customs enforcement are a classic example of the modern phenomenon of “overkill.” The ability to enforce customs laws ■n any given area does not depend on, or gain from, the assertion of sovereignty over that area. This interest has frequently been met in the past by the extension of a lesser competence, solely related to the enforcement °f the customs. Since 1790, the United States has met this need through the use of a “contiguous zone”—an assertion of less than complete sovereignty, limited to the customs hinction. The additional effort and expense required to exercise other police and safety functions in an extended territorial sea may actually detract from efficient customs enforcement, particularly for those nations with only limited coastal forces available.
While the breadth of the territorial sea may have borne some reasonable relation to the security of a coastal state in the days of sail and smoothbore cannon, modern weaponry has rendered a territorial sea of any extent largely academic in terms of actual security. An extended territorial sea may in fact detract from the security of the coastal state, since an inability to meet its neutrality obligations in these waters can endanger whatever neutral rights it may claim.
Such analysis leads to the conclusion that the traditional bases asserted to support claims are largely fictitious, in two senses.
First, the claiming states themselves, in some instances, probably have no real belief for example, the Soviet Union advances her coastal fishing interests as one of the bases of her claim to a 12-mile limit, and yet she has °ne of the finest distant-fishing fleets in the 'vorld. Were her over-all fishing interests a '•fue consideration in the formulation of her claims, the latter would be less extensive.
Additionally, her large investment in building a distant-fishing fleet is a tacit, but telling, admission that 12-mile claims do not significantly reduce the access of foreign fleets to fish stocks.
Second, the claiming states may entertain a genuine conviction that they are protecting the values asserted, but the conviction bears no relation to reality. In this regard, consider the assertion of Libya at the 1958 Geneva Conference:
Libya had a long seacoast, its fisheries were of great importance as a source of food; fishes and sponges constituted, in addition, valuable Libyan exports. This country had therefore a great interest in that question.
Under the Federal law of Libya, the breadth of the territorial sea was twelve miles. Libya was constantly faced with the problem of foreign fishermen who were wrongfully exploiting the resources of its territorial sea.
And, yet, a team of experts with the United Nations Technical Assistance Program had reported in 1953: “There is practically no inshore fishing in Libya, despite the length of the coast line and the abundance of fish.” And further:
One of the factors which hinder the development of the fishing industry is the very low consumer demand. The per capita consumption of fish in Tripoli is only 2 kilogrammes a year. Catches could easily be increased, since fish are abundant, but any increase is systematically and forcibly opposed by the local fishermen, because it would lead to lower prices.
It is probable that the states concerned actually believed, at some period, that they were protecting these nominal interests, but today the evidence is overwhelming that claims to plenary jurisdiction, even over 12- mile zones, will not provide adequate protection. It has become increasingly apparent that devices such as contiguous zones and multilateral treaties are the most efficient and effective way to meet the needs of coastal states.
Such hollow values cannot explain the intensity of the conflict over the breadth of the territorial sea. The nominally asserted bases are no longer the real motivations for claims to extended competence at sea. The real
motives must be sought elsewhere. An analysis of the claims made and votes cast at the 1960 Geneva Conference provides some insight.
A detailed analysis of the voting is not required here. What is important for our purposes is the general alignment of the states, the blocs that they formed, and the mortar that bound each bloc together.
The largest discernible group was that composed of the Arab States, which normally can muster 11 votes. By and large, the bloc was irrevocably committed to a territorial sea of 12 miles, in an effort to deny Israel access to the Gulf of Aqaba, and their position was never really influenced by considerations related to the nominal bases for territorial sea claims. Additionally, as newly independent states, some of the nations in this group were influenced by an “anti-colonial” bias against the three-mile limit.
The Soviet bloc, with nine votes, came to the Conference in no mood to compromise or balance interests, and openly boasted that they had 33 negative votes with which to wreck the Conference. When it appeared that the Conference might reach an agreement on a six-mile limit, the Soviet Union denounced the two-thirds voting rule and stated that it would not withdraw its 12-mile claim regardless of what the Conference adopted.
The absolute irrelevance of the nominally asserted bases to the countries of the Soviet bloc is probably best demonstrated by the attitude of the Czechoslovakian delegation. A land-locked state, Czechoslovakia has nothing to gain and everything to lose in the event that the ocean resources are divided on the basis of front-footage. The best interests of such a state lie in the narrowest of territorial seas, and this was the position of the Czech delegation to the Hague Conference in 1930: The Czechoslovak delegation desires the greatest freedom of navigation, but not having any coastline they consider that they should abstain from proposing a definite extent for the zone of territorial waters.
Compare the position of the Czech delegation to the 1958 Geneva Conference that:
. . . each state was competent to fix the breadth of its own territorial sea in the exercise of its sovereign powers, taking into account its genuine needs.
The 1958 statement is an excellent summary of the official Soviet position on the issue, but it is clear that the Czech delegation was not “taking into account its genuine needs.”
The third influence consisted of an ill-defined, amorphous group which shared several characteristics in varying degrees. They were generally newly independent, with a built-in bias against any part of a regime which had been constructed by their former colonial masters. In terms of size, power, and maritime influence they were among the lesser states. In some, political instability tended to make fierce nationalism domestically advantageous.
Nor were those states which opted for narrow territorial seas appreciably more candid concerning their motives. While the ostensible position of the United States at the 1960 Conference was primarily one of conciliation, i.e., devising a compromise position that would satisfy the asserted needs, one of its primary motivations was the maintenance of the strategic mobility of its naval forces. Although muted by the United States, this consideration did not escape the notice of the Soviets, who did not hesitate to “shed some light on the real motives underlying the United States proposal.”
To state the proposition as merely one of mobility and unrestricted movement of naval vessels is an oversimplification, for the strategic considerations go far beyond mere freedom of surface transit. They involve an effort to preserve a legal regime that ensures the most effective use of a weapons system which is unique to the Free World—naval air power—while placing severe burdens on a system in which the Soviet bloc has at least a numerical advantage—the submarine.
Reasonable legal argument can be made for a right of innocent passage of warships through territorial seas. But even if such a right could not be enforced, surface transit would not be significantly hampered in a strategic sense, since even the Russian claims to a 12-mile limit without a right of innocent passage for warships contain a built-in “exception” for international straits. The strategic problem facing the United States flows from the fact that there is no right of “innocent overflight” in territorial sea space, a serious disability to a naval force which
places primary reliance on its air power. On the Soviet side, the problem is alleviated by the naval reliance on missiles, and entirely atuted by their absolute lack of naval air power. (It would appear that the Soviets have a considerable number of aircraft which they designate “Naval Aircraft Commands,” but they possess only two LPH-type carriers. The designation apparently refers to the targets against which the aircraft are to be used, and n°t their manner of deployment.1)
In terms of submarines, the overwhelming numerical advantage is on the Soviet side. The United States fears that these submarines might find sanctuary in the relatively deeper Waters encompassed in an extended territorial sea. Given the relative incompetence of tnost littoral states to detect the presence of submarines, and the historic inability of international law to impose effective regulation °n submarine warfare, such fears are not entirely irrational.
Additionally, the limiting claims are motivated by a desire to protect distant-fishing tnterests. U. S. nationals engage in fisheries exploitation in the Gulf of Mexico, off the Canadian maritime provinces, and off the ^est coast of South America. Great Britain as developed significant fisheries on all shores of the Norwegian Sea. Japan, in par- hcular, is concerned over the effect of expanded coastal competence on her extensive °reign fishing investments.
Examining these considerations in the con- hxt of other claims advanced by the par- Jl'cipating states, the underlying motivations 0r extended claims begin to become clear.
The Soviets have constructed an elaborate octrinal regime to foster their strategic aims. ls essential features are:
• A doctrinal assertion of the right of any ^ate j0 flx jts territorial sea limits uni- ^ terally, without restriction by the principles international law. While there are some |ndications that the Soviets would be willing 0 impose an absolute limit of 12 miles for all states, they have not expressly limited the Principle to this breadth, other than to note e International Law Commission comment
^ee E. L. Barker, “Soviet Naval Aviation,” ' S. Naval Institute Proceedings, January 1961, PP. 51-59.
on the point. At the same time, they seem to recognize the South American 200-mile claims, on the ground that they are “essentially a special zone for these States.”
• A 12-mile claim for the U.S.S.R. and all satellite states, except East Germany (three miles), Yugoslavia (ten miles) and Poland (six miles).
• Doctrinal assertion that there is no right of innocent passage for warships. It should be noted that the Russians, with their Baltic and Black Sea Fleets choked off by straits subject to Western strategic control, have included an “exception” to the rule in the case of “international straits.” This exception is based on certain alleged general principles of international law, on Article 16(4) of the Territorial Sea Convention, and on treaties concerning the Baltic and Black Sea straits.
• Extensive Soviet claims in the Arctic basin, which have ranged all the way from early claims to complete sovereignty over all the lands and waters in the Soviet Sector, through claims to all lands (discovered or undiscovered) in the sector, to claims that the Kara, Laptev, and East Siberian Seas “are in fact broad, shallow bays” which should be considered part of the inland waters of the Soviet Union.
• A regime of “closed seas” which the Soviets take to include the Baltic, Black, and Caspian Seas, as well as the Sea of Japan, and the Sea of Okhotsk. The asserted regime of closed seas provides for the unrestricted passage of all vessels of the coastal states, but excludes any transit of warships of any noncoastal state. Complementary to this regime is the assertion that any sea, regardless of expanse, may be rendered closed by the concurrence of all the coastal states which border the sea, and support for the Indonesian “archipelago” claims.
In the specific area of territorial sea claims, extended state claims inure to the benefit of the Soviets in several ways. They tend to hamper the effectiveness of Western naval air power, while potentially increasing the effectiveness of the Soviet submarine force. They tend to create points of intense and highly emotional conflict between otherwise friendly states of the Free World, even to the point where the conflict may interfere with
mutual defense measures. (Legislation has been introduced in the House of Representatives which would revoke the lease on any loaned naval vessel which participated in the seizure of any U. S. fishing vessel off the South American coast, where several countries have claimed territorial seas 200 miles wide.) The tension created by frequent territorial sea incidents (among others) helps to maintain the domestic emotional commitment required to perpetuate a revolutionary attitude.
Finally, the Russian position on the territorial sea enables it to align itself with the Arab nations and the newly independent states, and thus increase its political attractiveness in these areas. As the latest Soviet “Manual of International Maritime Law” advertised it:
The Soviet Union and other Socialist States are actively supporting States fighting for their independence and respect the laws of these states which establish the breadth of their territorial sea.
There are, of course, certain domestic political advantages that must be considered.
The Arab States. That the Gulf of Aqaba issue is at the heart of the Arab 12-mile claims has been quite evident to all observors, and frankly admitted by some of the Arab states themselves.[1] Speaking at the 1960 Geneva Conference, the Lebanese delegate stated that his:
. . . Government was concerned not so much about the width of its country’s territorial sea as about the problem of the Gulf of Akaba [sic]. Lebanon, whose tradition of liberalness and reasonableness were well known, wished to stress that, although the Conference had feigned to ignore it and had subjected it to a conspiracy of silence, that problem, together with the tragedy of Palestine, had never ceased to influence decisions one way or another.
In their desire to deny Israel access to the Gulf, the Arab states have asserted a regime which includes a state of hostilities with the Israelis which affords the Arabs belligerent rights, and the historical status of the Gulf as an Arab mare clausum. Article 16(4) of the Territorial Sea Convention is declared to be inapplicable on the ground that Israel’s presence on the Elath shore is “nothing but military control without sovereignty whatsoever.” Although a six-mile claim would result in the closing of the nine-mile Straits of Tiran, the Arabs are committed to 12-mile claims in order to extinguish the last vestige of high seas in the Gulf, which is 14 miles across at its widest point.
The entire Arab-Israeli dispute has reached such emotional heights, and the Gulf of Aqaba issue has become so politically explosive, that any rational resolution of the territorial sea problem cannot proceed until at least some partial solution has been found to the underlying political problems.
The New Nations. A combination of anticolonialism and extreme nationalism characterize these claims. Given the marginal economies and political instability of many of the emerging nations, the political attractiveness of challenging the established powers on the issue is clear.
The firm establishment of the three-mile rule as an effective legal doctrine (i-e., freedom of the seas as a limiting doctrine on national competence, producing narrow territorial seas) was the result of power concurrence in the 19th and 20th centuries. Today, that concurrence has vanished, and one of the great powers is actively asserting a conflicting doctrine. Not only has the concurrence disintegrated, but power itself, as an ascendant value, has been replaced by the doctrine of “sovereign equality” for the ministate. Without power concurrence to secure compliance, the invocation of the bare legal doctrines is of no value whatsoever in the solution of the problem at hand.
Any solution which is forthcoming will have to be based on manipulation and tradeoff of the underlying values that shaped the legal doctrines in the first instance. But even on this level, the fictitious nature of the asserted values makes complete solution improbable. For those states that are frankly aware of the infirmity of their asserted bases (i.e., the Soviet bloc) the balancing of values and accommodation of interests could not be more irrelevant. In the cases of those states which actually feel that they are protecting
the interests asserted, only a massive effort of information, persuasion and enlightened compromise can be expected to produce any results worth mentioning.
Immediately following the failure of the Joint Canadian-United States “six-plus-six” Proposal at the 1960 Geneva Conference, the United States made it clear that the proposal Was merely a compromise in the interest of unanimity, and its failure meant a reversion to the original U. S. position on the three- rnile limit, and we have nominally asserted the universality of that doctrine ever since. Every claim beyond three miles is vigorously Protested by the United States.
But even as these protests are being formulated and delivered, the United States is forming a pattern of de facto acquiescence in the extended claims. Warships and other government vessels are carefully instructed to skirt the new limits to avoid “incidents” that might impact unfavorably on other aspects of foreign relations. The fines imposed °n seized fishing vessels are paid with appropriate protest, and with distressing regularity. And when the Pueblo was seized by the North Korean government, U. S. public demands for the return of the vessel were Based, not on the illegality of the Korean 12- uule claims, but on assertions that the vessel had not violated the 12-mile limit. In only °ue instance has the United States made direct challenge to extended territorial sea Uaims, by sailing her warships to within three miles of Quemoy in the face of Com- uiunist China’s 12-mile claims.
This pattern of de facto acquiescence is extremely damaging to the U. S. position, but tt is difficult to discern a workable alternative. The present world situation and a rational balance of foreign policy objectives w°uld seem to preclude a direct power approach, except in the most urgent situations.
The ambivalence of present U. S. policy Inorninal protest/^ facto acquiescence] has two damaging effects. First, the sanction of reciprocity is no longer available. In its Present posture, the United States is enduring the burdens imposed by extended territorial seas, and very carefully refraining from Unposing those burdens on other states. Second, by entrenching itself behind a legal
doctrine which is no longer realistic, it is depriving itself of an opportunity to play a leading role in the formulation of a new doctrine. There are those who assert that the 1960 Conference marked the end of any possibility of achieving a three-mile limit. One of the staunchest allies of the United States was moved to say that we have witnessed the death of “Mr. Threemiles,” and are watching “Mr. Sixmiles” and “Mr. Twelvemiles” argue over the settlement of the estate.
But until the estate is finally settled, the lively corpse, Mr. Threemiles, may be able to make his influence felt. The U. S. position still retains some concession value in the process of formulating new regimes. It should be noted, however, that this trade-off value is steadily eroding under the pressure of the growing numbers of extended claims and being weakened by the contemporaneous pattern of de facto acquiescence.
Before proceeding to any decision on how to approach the problem, or how much we are willing to give up for a solution, it would be well to pause and ask, “Is imaginary-linedrawing really worth it? Is there really enough at stake to justify the sacrifices involved?”
These questions seem never to have evoked any direct analysis, but there is abundant circumstantial evidence of the urgency of the problem. It was apparently of sufficient concern to the United Nations to impel them to immediately convene a second Conference to deal solely with the issues of “the breadth of the territorial sea and fishery limits.” The application of the doctrines carefully detailed in the other Conventions depends on a reasonably precise and settled delimitation of the territorial sea boundary. Jessup considers it “the central problem.” McDougal and Burke frame it as “the most important issue of all . . . because of the harmful friction and tension an unresolved issue of such importance is capable of creating, and does create, even between otherwise friendly states.” To Sorenson, it is “one of the most controversial questions in contemporary international law.”
The very controversial nature of the problem shapes a ready wedge for those who would divide otherwise amicable states, for many of
the crucial decisions in this context must be made quickly at this ocean boundary, frequently by personnel at operating levels for whom the existence of a clear line is essential.
If, then, there is a great deal at stake, what should be our future policies?
The Objectives'. The first step towards some resolution of the problem appears to be the formulation of objectives which are both acceptable and attainable. The most desirable resolution, from the U. S. viewpoint, would be the widespread acceptance or codification of the minimum breadth (three miles), but such a goal seems hardly obtainable. Even the representatives of the U. S. Navy are unofficially admitting that three miles is no longer a realistic limit, and that it is high time for the United States to take the lead in fashioning a new boundary.[2]
A less desirable, but more attainable, objective would appear to be the strengthening and adoption of the moderate (six-mile) claims. Such limits, when coupled with the concept of contiguous zones, can be made sufficiently attractive to appeal to a number of states that have indicated a willingness to compromise in order to gain some settlement of this vexatious problem.
A third possible alternative would be delimitation at an extended (12-mile) breadth, with a structure of built-in “exceptions” to accommodate U. S. interests in the premises. Such an approach has been used with some success by the Soviet Union, but the benefits of such a regime would appear to be peculiar to the Soviet geographical and strategic situation. Additionally, such a regime would contain serious deficiencies. Precise formulation of “exceptions” is difficult in the international law context—at the 1958 Conference, the compromises involved in codifying the exceptions for “historic bays” and “innocent passage” resulted in formulations so vague and subjective as to be of no assistance in resolving claims. The possibility of foreseeing all the exceptions required is remote. And finally, in those situations where rights are dependent on exceptions to general regimes, states have exhibited a marked tendency to apply the exceptions discriminately, and pas-
A graduate of the U. S. Coast Guard Academy in 1961, Lieutenant Meade was navigator and operations officer of the USCGC Cook Inlet from 1961 to 1964. He commanded the Coast Guard Loran Station, Kwajalein Atoll, in 19641965, and was assigned to the Fifth Coast Guard District Rescue Co-ordination Center from 1965 until 1966, when he was enrolled at George Washington University Law School under the Coast Guard Postgraduate Program. In February 1969, he was awarded a Juris Doctor Degree.
sage rights dependent on the whim of the littoral state are highly undesirable.
One alternative that has considerable appeal at first blush is that of absolute reciprocity in the application of the territorial sea doctrine. Reciprocity has traditionally been the ultimate sanction of international law, and could relieve the United States from some of the disadvantages that flow from its present ambivalent policy. Such is already the practice of the Greek government, at least in regard to Soviet vessels, and this approach has been urged in both Houses of Congress. The theory and logic of such a policy would appear unassailable, but when analyzed in the existing factual context it exhibits two serious deficiencies. First, there are only a few nations in the world that presently have any desire or motive to approach U. S. shores- Secondly, such a move, coupled with the present policy of de facto acquiescence, would be asserted by other states as evidence of U. S. recognition of extended claims.
Of these alternatives, resolution at the moderate breadth seems to embody the best combination of desirability and attainability’ It allows for some compromise on both sides, and, coupled with a contiguous zone, should provide a sufficient scope to satisfy the real or imagined needs of other littoral states- In return for abandonment of the three-mile position, the United States would receive the benefit of a solution to a vexatious problem which has caused discord and bitterness out of all proportion to the real values at stake. There is substantial value in just having an end to the controversy.
At the same time, the United States should
Seek clarification of the right of innocent passage for warships. If such a right could be firmly established, and some doctrinal acceptance of a right of overflight in interna- honal straits is achieved, many of the strongest objections to expanded claims would be eliminated.
The Methods: Large multinational conferences, such as those of 1958 and 1960, °nce held promise of impressive and complete solutions to this problem, and some members °f Congress still feel that an acceptable resolution can be achieved in this manner. But tnany experienced observers express less faith in such an approach, and their pessimism would appear to have some solid foundations. No such conference could hope to achieve a “complete” solution, since the Soviet bloc and certain Arab states have made it clear that they would not be bound fiy any conference solution which would compromise their claims.
The conference format appears to have several significant drawbacks. It tends to encourage the formation of opposition blocs and mcrease the effectiveness of their efforts. Issues become confused in the rhetoric and are difficult to isolate and clarify. This failure to isolate and precisely frame the issues, coupled with the sheer volume of discussion, obscures the actual value of the compromises offered. There is also the relative procedural uaste of multinational conferences, with the mtendant inability to adjourn for extended evaluation of proposals. Finally, the need for relative unanimity tends to produce marginal compromises which result in a product of relatively poor quality.
bilateral, or smaller multilateral conferences would appear to hold out more promise m the present context. The “salami-slicing” technique seldom evokes effective opposition until it has achieved relative success.
A protracted series of negotiations would Permit clarification of the issues. The true value of compromise positions could be emphasized. The willingness of the United
States to abandon fishery rights in the South Pacific, and perhaps arrange settlement of outstanding related monetary claims, could be emphasized as a solid concession, rather than a hurried proposal on the conference floor. Such an approach has the additional advantage of limiting the scope of the negotiations to the immediate concerns of the nations involved, without the distracting influence of generalized and abstract discussion. Several frameworks already exist in which such efforts could be carried out. The nature of such organizations as NATO, CENTO, and SEATO could make them particularly responsive to the naval aspect of the U. S. position.
It must be admitted that there is a danger inherent in such a piecemeal approach. Specific agreements between the United States and other nations codifying the breadth of the territorial sea could be asserted by other states as evidence that there is no longer any general principle of international customary law limiting such claims. However, this pitfall could be avoided by the proper formulation of the specific agreements.
Two ingredients are essential to the success of such a piecemeal approach facts and patience. The major number of negotiable claims have the fisheries problem at their heart, and are generated by the uncertainty that results from our relative ignorance of the true nature of fisheries exploitation and conservation. The acquisition and dissemination of such knowledge is one of the essential steps in influencing future claims.
If the number and intensity of incidents in the territorial sea conflict can be minimized, patience will yield dividends. The passage of time will diminish the anticolonial bias and dissipate intense nationalism. With developing economies, many more states will come to have a greater stake in the world’s oceans, which will alter considerably their outlook.
Until then, the tedious search for a legitimate heir to Mr. Threemiles will continue.
★
[1] See C. F. Salans, “Troubled Waters,” U. S. Naval Institute Proceedings, December 1968, pp. 54-62.
[2] See G. E. Carlisle, “Three Mile Limit, Obsolete Concept?” U. S. Naval Institute Proceedings, February 1967, pp. 24-33.