Since that day when the first caveman pushed a log into an unknown river and rode it downstream, man has been concerned with the possession, exploitation, and control of the waters of the earth. The sea powers of the ancient world—the Greeks, Phoenicians, and Romans—were port powers and viewed the sea avenues between as belonging to no one. When the Phoenicians and Greeks pushed west to colonize the shores of the Mediterranean, their first concern was the seizure or construction of ports in which their fleets could lie in protected anchorage while trade with the hinterland was carried on. Rome inherited the sea power of the Greeks and Phoenicians and became like the latter a port power. Roman law came to regard the sea as common domain and free for the use of all. The riches of the sea as well as navigation were considered res nullius, i.e., unappropriated things, to be exploited or utilized by any who were able Rights of navigation and ownership of maritime products were dependent upon physical possession and utilization. Legal sovereignty pertained only to the ports themselves.
Though the maritime power of Rome was broken asunder along with the empire, the Roman concept of the common domain of the sea continued to hold sway during most of the medieval period. This concept was shattered only in 1415 when the Portuguese, pioneers of modern European expansion, launched their historic conquest of the Moorish African port of Ceuta. This event not only heralded the geographical expansion of Europe but initiated a contest for sovereignty over the seas themselves.
The expanding Portuguese African empire yielded ivory, gold, wheat, pepper, and slaves. Greed for these products sent pirate ships and semi-official raiders from Castile, Galicia, France, and Genoa—the contending Atlantic sea powers of the day—into the waters frequented by the Portuguese merchant ships on their return to Portugal. But these non-Portuguese ships found they were poachers, sailing into forbidden waters. The Portuguese claimed exclusive jurisdiction over the seas of Africa and put strength into their claims by basing armed ships in their new, strategically-located Atlantic colonies in the Archipelagoes of Madeira and the Azores. They further strengthened their claims to sovereignty by requesting papal support, which Nicholas V rendered unhesitatingly in the bull Dudum siquidem issued in 1454. The Pope conceded papal approbation of the “conquest, occupation, and appropriation of all the lands, ports, islands and seas of Africa, already conquered or to be conquered, to the kings of Portugal and to Prince Henry.” Thus, those who would contest the Portuguese claims to the sovereignty of the African seas must need challenge both the armed might of the foremost naval power of the day and the moral chastisement of the Bishop of Rome.
Nevertheless, there were those who would put to a critical test the Portuguese claim to sovereignty over the seas discovered by her, which by 1492 included nearly the entire Atlantic east of the New World. A united Spain soon entered into the contest for world domination, following the discovery of the New World by Columbus. The ultimate result of this serious challenge to the Portuguese was the Treaty of Tordesillas and the two-way division of all undiscovered land and ocean areas of the world along a meridian located three hundred and seventy leagues west of the Azores Islands.
France, Holland, and more belatedly England forced their way into the colonial race and joined issue with the Portuguese- Spanish claims to joint jurisdiction over the world’s oceans. The climax to this international maritime conflict culminated in the seventeenth century with the celebrated discussions between the exponents of the mare liberum and mare clausum theories. In general, the have-nations—Spain and Portugal—were proponents of the mare clausum or closed-seas theory and the have-not- nations—France, Holland, and England— supporters of the mare liberum or free-seas theory. Grotius, a Dutchman and the “father of international law,” led the philosophical attack on the closed seas theory, whereas such theorists as Portugal’s Freitas fought back vigorously, brilliantly, and futilely, for Portugal and Spain were destined to lose the battle in the field. The increasing naval power of Holland, England, and France proved to be judge and jury. Portuguese and Spanish colonies were stripped from their weakening grasp throughout the world. Their cherished sovereignty over the seas became as ephemeral as their vanishing colonies. By 1702 the Dutchman Bynker-shoek was able to propose in his major work, De dominis marts, that sovereign jurisdiction over the oceans be limited to those water areas adjacent to a state to a distance of a cannon shot outward from the shoreline, interpreted generally as being a marginal coastal belt measuring three nautical miles in width.
It is significant that Britain, a champion of the theory of freedom of the seas (which originally meant freedom by Britain to use the seas claimed by other nations), emerged at the beginning of the nineteenth century as the world’s greatest commercial and colonial power, unchallenged mistress of the seas. This fact caused the two basic principles of sovereignty of the seas to become stabilized. These are: (1) the freedom of the high seas (as interpreted by Britain) and (2) the existence of sovereign rights of coastal states over contiguous waters (as interpreted variously by the many affected nations). The problem which remained was where to draw the line.1 This line did and still does decide the extent of waters in which the coastal state has rights of exclusive jurisdiction or sovereignty. Except where treaty or custom decreed differently, the term “freedom of the seas” meant, and still means in British and American official policy, the limitation of sovereign waters (i.e., exclusive jurisdiction) to a three-mile belt around the coast and full freedom of the high seas beyond this belt for navigation and exploitation of marine resources.
The theory of the freedom of the seas as defined here is today under attack from all sides. With such a large proportion of the nations of the world asserting claims to rights of one type or another over broad areas of the high seas, the three-mile limit inherent in the freedom of the seas is fast losing real meaning. The world has arrived at another crisis with regard to the sovereignty of the seas; a modern Grotius or Bynker-shoek is needed, though as before a stabilization of claims will be directly dependent upon the dynamics of international politics rather than upon the views of philosophers.
At present there are three major theories or bases of action which are recognized by those nations now extending territorial waters, exclusive jurisdiction, or national sovereignty seaward. Two stem from relatively recent technological developments, the third from the demands of military operations. This writer chooses to call the three theories: (1) the Continental Shelf theory; (2) the Military Expediency theory; and (3) the Biological Complex theory. The nations which have attempted in recent years to obtain recognition of claims over substantial sea areas have utilized these theories both singly and in combination. By exposing to critical examination the factors which contribute to these contemporary theories of maritime sovereignty, the near-term future course that national ambitions will most likely follow in achieving maritime political objectives can be postulated with some degree of accuracy.
The Continental Shelf Theory
The science of bathymetry, the study of the contours of the ocean floors, is a relatively new science. When still in its infancy, bathymetry discovered that the continents have sloping submarine extensions which reach outward into the sea to a depth of approximately 100 fathoms before dropping abruptly to a much lower depth, generally designated the floor of the oceans. This continental submarine plain varies greatly both in distribution and in characteristics throughout the world. For example, the Atlantic margins of the North and South Americas have wide shelves with a very shallow slope, abruptly dropping from a depth of approximately 600 feet to about three miles at the outer edge of the shelf. Likewise, the eastern edges of the Asian and Australian continents have wide sloping shelves. It has been estimated that the total area of such underwater shelves amounts to 11,800,000 square miles, or one-twelfth of the world’s sea area, with 750,000 square miles bordering the United States.
In many areas of the world these shelves are distinct structures whose limits are easily determined by normal oceanographical survey methods. However, in other parts of the world, especially in gulfs and narrow waters, the underwater continuation of the land mass, though gradually sloping, never reaches a point where the superjacent waters reach or surpass the depth of 100 fathoms. In these cases it is clear that since there is no gradual nor abrupt fall-off, the geographical term “continental shelf” loses its geographic meaning. Nevertheless, these “shallow waters” or “submarine areas” have become subject to the same economic or security exploitation as true continental shelves. Consequently, in legal and layman terminology “continental shelf” has become an accepted term which can be applied to shallow areas of the ocean, whether true continental shelves, insular shelves, or shallow waters which continue until the opposite shoreline is reached. As used herein, the term “continental shelf” will conform to the latter, accepted definition, and the geography of continental shelves will be concerned with the geography of ocean areas of depths of 100 fathoms or less.
Exploitation of the Continental Shelf
The economic exploitation of the continental shelf is dependent on two factors: the existence on or above the shelf of exploitable resources and the technical ability of the adjacent nation to exploit these resources. The existence of exploitable resources has become an established fact, especially during the post-World-War-II era. Petroleum, coal, sedentary and high seas fisheries are prime among these resources. However, with the advent of new techniques and equipment, and an increasing demand for economic resources, the number and extent of exploited maritime resources are continually changing in character.
Petroleum probably has been the most important item which has urged nations to the conquest of the continental shelf. Though oil was discovered on the continental shelf off California as early as 1894, not until the post-war era did petroleum exploitation in offshore areas become a practicable endeavor. The advent of echo sounding techniques and directional drilling permitted offshore wells to be drilled at costs which compare favorably with those located inland. To date, tremendous advances have been made in the exploitation of offshore petroleum deposits. As of early 1957, offshore operations were being conducted on the continental shelves of the following nations and territories: the United States, Mexico, Cuba, Venezuela, Trinidad, Japan, Kuwait, British Borneo, Bahrain, Qatar, Saudi Arabia, Peru, the USSR, British Guiana, and Egypt.
There have been other offshore resources which have recently sparked exploitation of continental shelves. Coal is increasing in importance. Galleries of coal mines penetrate under the sea in both Great Britain and Japan. New techniques are introducing even greater efforts toward exploitation of offshore coal resources. Britain’s National Coal Board has constructed a “sea-boring tower” in the Firth of Forth. Coal has been struck at 2,000 feet. The British officials concerned have stated that the complete success of this preliminary operation has ensured the commencement of additional boring operations off the British coast. Of certainty, it will create new interest in offshore exploitation elsewhere and consequently arouse new desires to control these offshore areas.
Recent Japanese awakening to the potentialities of the continental shelf amply demonstrates the fervor which may consume a people when a little knowledge of offshore resources is had. “Billions of tons of untapped coal and oil exist beneath Japan’s continental shelf,” a Nippon Times editorial recently proclaimed. “Gold, iron, chrome and manganese deposits have also been discovered,” the newspaper reveals. Japan’s continental shelf has an area approaching 80 per cent of the non-submerged area of the country’s four principal islands. It has been estimated that some eighteen per cent of the shelf consists of potential oil fields and coal mines. Coal alone is estimated at hundreds of billions of tons, lying under the shallow coastal seas ready to be dug up. When compared to Japan’s land coal deposits of some 15,000,000 tons, the potential of the offshore reserves is evident. This new Japanese interest has culminated in a joint survey by the Maritime Safety Board and the Ministry of International Trade and Industry, in which extensive research and tests have been conducted on the underwater land bordering Japanese seacoasts. Exploitation awaits only the technical know-how and the financial support needed to get activity underway.
Though the Continental Shelf theory was derived from considerations which affected primarily the area of the continental shelf to a depth of 600 feet and secondarily to nonshelf areas of this same depth or less, the theory has been expanded both in depth and scope. From its pre-Truman roots, through the advent of the Presidential Proclamation of September 28, 1945, and on to the present, the theory has been shaped by time and practice; the offspring resembles little the parent doctrine. Therefore, a detailed examination of the origins and the course followed by nations in either accepting or rejecting the doctrine would be in order, since it has played an important part with respect to the changing concepts of maritime sovereignty.
The Presidential Proclamation of September 28, 1945
The Truman Proclamation of September 28, 1945, gave official, unilateral recognition to unofficial expansion of United Stales jurisdiction over maritime resources located beyond the three-mile belt. Following the end of the German submarine threat of World War II, there had been renewed interest in offshore petroleum exploration in the Gulf of Mexico, especially off the shores of Louisiana. By 1945 oil wells were being drilled on the shelf beneath the high seas. By 1947 as many as thirty-seven geophysical crews were at work aboard all manner of craft, from fishing boats to ex-Navy vessels and yachts. Oil companies took leases on 2,185,443 acres of sea bottom in 1948, and by Christmas of 1949 seventeen rigs were drilling holes in the Gulf’s floor. This ever- expanding activity had given rise to the Truman Proclamation, as evidenced by the introductory statements of that document. They proclaimed: (1) the existence of a world-wide need for new sources of petroleum and other minerals; (2) the possibility, according to expert opinion, of extracting these resources from the subsoil of the continental shelf by means of technological progress which had made their exploitation already practicable to a certain extent; (3) the necessity for the existence of some recognized jurisdiction over these resources in the interests of their conservation and prudent utilization; and (4) the exercise of jurisdiction over the natural resources of the subsoil and seabed of the continental shelf by the contiguous nation as being reasonable and just. After the introductory statements were concluded, the Proclamation arrived abruptly at the crux of the matter at hand. It declared that the policy of the United States would be to regard “the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States, . . . subject to its jurisdiction and control.” The Proclamation also stated: “In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles.” Most important to note is the final statement: “The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.” An accompanying press release stated that the shelf was, in general, regarded as that area extending seaward from the low water mark to the 100-fathom line.
The Presidential Proclamation of September 28, 1945, was issued during the period when the world’s attention was turned to the events brought about by the ending of World War II. The non-committal attitude of other governments with respect to the proclamation reflected this situation. The substance of the proclamation was communicated to the Governments of Canada, Mexico, the Soviet Union, and the United Kingdom, the States most directly affected by the United States claim. None of these States made public observations on the subject; only Mexico announced similar action of its own.
Action and Reaction
The action of the United States with regard to offshore claims was not to be without effects. A month after President Truman’s proclamation, Mexico took action and declared that “the Government of the Republic claims the whole continental shelf adjacent to its coasts and all and every one of the natural riches, known or still to be discovered, which are found in it, and will proceed to supervise, utilize, and control the zones of fishing, protection which are necessary for the conservation of this source of well-being.” Expressly disclaimed were the legitimate exploitation rights of third parties or denial of rights of free navigation on the high seas. The sole purpose of the action taken was announced as the conservation of “resources for the welfare of the nation, of the continent, and of the world.” The amended Article 27 of the national Constitution, however, stated that not only the seabed and the continental shelf, but also the waters covering these areas were direct national property to the extent laid down in international law. Since that time Mexico has found it prudent to limit her continental shelf claims to a nine-mile belt, but this distance she has proposed to defend to the utmost.
Argentina, seeing in the American action support to her own continental shelf proposals made in 1944, set forth the claim, in a Presidential Declaration of October 11, 1946, that the adjacent “epicontinental sea and continental shelf are subject to the sovereign power of the nation (i.e., Argentina).” The declaration added, however, that for purposes of free navigation the character of the waters situated in the Argentine epicontinental sea, i.e., above the Argentine continental shelf, remained unaffected. It is interesting to note that Argentina has subsequently attempted to bolster her claims to the British-contested Falkland Islands and to the Argentine claims in the Antarctic by means of an extension of the continental shelf theory. Geography has herein played into Argentine hands, since, though the waters between South America and Antarctica greatly exceed 100 fathoms, there are a number of connecting geological structures between the two land masses which conceivably fall within the definition of the continental shelf doctrine.
On May 1, 1947, the Nicaraguan Congress adopted a declaration which accorded Nicaraguan sovereignty to the adjacent continental shelf up to a water depth of 200 meters, and on January 22, 1948, amended the Constitution to include these claims. Nicaragua went still further in 1949 and claimed the air space over the continental shelf. Article 5 of the Constitution of 1950 subjected to claim the “continental platform and the submarine shelves,” the subsoil of territorial waters, the air space and the stratosphere above as being an integral part of national territory.2
Other Latin American states have taken legislative action of sorts with regard to the continental shelf. Costa Rica, Panama, Guatemala, Honduras, El Salvador, and Brazil all have laid down definite claims, and Cuba has been offering leases on offshore areas for some time. But the continental shelf problem has not been confined to the 21 American states. In 1948 the United Kingdom extended the boundaries of the Colony of the Bahamas. Article 2 of the Order-in-Council No. 2574 of November 26, 1948, is significant in this regard, for it states: “The boundaries of the Colony of the Bahamas are hereby extended to include the area of the continental shelf which lies beneath the sea contiguous to the coasts of the Bahamas.” Similar Orders were issued for Jamaica, British Honduras, and the Falkland Islands. Iran, Saudi Arabia, Australia, the Persian Gulf sheikhdoms, Japan, and other nations have subsequently joined the parade of continental shelf theorists, though agreement on all aspects thereof has not been achieved.
The United Nations
The continental shelf doctrine had received such world-wide attention and had attained such importance by 1951 that the United Nations International Law Commission attended this problem during its third session. As a result, the Commission adopted a series of draft articles on the continental shelf and related objects, which in accordance with the terms of the Commission’s statute were given publicity and were communicated to UN governments for consideration and comment. The Commission concluded that technological progress had created a situation which had to be dealt with, but that the immediate solution must be one which would afford opportunity for future growth. It is notable that the main difficulty encountered by the Commission was the definition of the “continental shelf” itself. Their final conclusion to this point, after great deliberation, was that: “The term ‘continental shelf’ refers to the seabed and subsoil of the submarine areas contiguous to the coast, but outside the area of territorial waters, where the depth of the superjacent waters admits of the exploitation of the natural resources of the seabed and subsoil.”
An examination of this definition will find many important questions unanswered. First of all, there is no universal agreement as to the extent of territorial waters. Nations now claim full or partial sovereignty over contiguous waters ranging from three to 200 miles. There is a second question with which the UN definition does not come to grips. Where are the limits of exploitation of submarine resources in this modern technological world? Petroleum and coal are being obtained at offshore points further from shore and in waters deeper than ever before. The latest offshore test well in the Gulf of Mexico is located 63 miles from shore. A French bathyscaphe has reached a depth of over 13,000 feet under the ocean’s surface. Can we say that nations will not be able eventually to exploit the submarine resources at any point and any depths of the oceans? Where then will the UN definition be?
Despite the complexity of the problems involved, many authorities believe that the United Nations alone can provide the compromises to which all nations can acquiesce. Australia has submitted to the review of the International Court of Justice her claims to the resources in the adjacent Arafura Sea (primarily pearling fisheries). This has given many people great hope that the UN, which has formed a permanent committee to study the problems related to territorial waters, will eventually be successful in solving these problems. The advocates of international power politics, on the other hand, state that the UN is ineffective with regards to final solution of the continental shelf problems, since the UN is only an instrument of power politics. Therefore, regardless of any solutions worked out in the UN, these will only be honored as long as the member nations wish to honor them. Meantime, nations that claim to control extensive territorial waters will continue to do so on an international political basis. Thus, those who hold this view see chaotic conditions ahead, and see the territorial waters problems extended to ownership of the airspace above the disputed waters, pointing out in support of their argument the recent Nicaraguan move in this direction.
One thing is certain. The status quo which lasted for 250 years with regards to the regimen of the seas no longer exists. Spurred on by new technology and demands for resources, nations are extending their territorial boundaries outward into the until now international seas. Where these boundaries will stop no one now can tell. But it is clear that one attempt to halt these boundaries at a reasonable limit, i.e., the introduction of the Continental Shelf theory, is slowly but surely being by-passed for something else.
The Military Expediency Theory
A theory which is even less rational than the Continental Shelf theory, but which is receiving increasing support and practical application, is what might be termed a Military Expediency theory. This theory has its origins deeply enmeshed in the Pacific war operations of World War II and in the requirements of the Supreme Commander for the Allied Powers imposed on the Japanese as a condition of their surrender. Before the war, fish provided eighty per cent of the total animal protein intake of the Japanese people. At the moment of surrender, food was in extremely short supply and distribution facilities were immobile. An adequate supply of maritime products to maintain even the barest existence for the Japanese became essential for the success of the occupation. The Supreme Commander was quick to realize this. On September 14, 1945, only three weeks after the effective cessation of hostilities, Rear Admiral J. J. Ballentine, U. S. Pacific Fleet liaison officer with SCAP, granted permission for the operation of Japanese wooden vessels in Japan’s coastal waters. A restriction placed on such vessels limited their operations to an area lying within twelve miles of the coast of Japan*, “except” as the order stated, “where special permission to go outside these coastal waters is obtained.”
The whole affair of the twelve-mile limit thus imposed on Japanese fishing activities was initiated by military occupation requirements. The Supreme Commander, in recognition of the problems of providing foodstuffs to the Japanese during the early critical period of the occupation, permitted limited fishing and transport operations; arbitrarily, a twelve-mile line was designated as the outer limit of these operations. Though no mention was made of territorial waters in the grant to Japanese fishing interests, and though probably no thought was given to such problems at that time, the twelve-mile limit thus designated was to have far-reaching effects at a later date.
Subsequently, the fishing area authorized by SC A JAP was adjusted in the Sea of Japan and Okhotsk Sea and was extended into the Pacific in order to include additional rich pre-war fishing areas. It is noteworthy that, after September, 1945, the area was not extended north where friction with the slowly expanding Soviet fishing industry would be encountered, west where conflict with the two Koreas, North and South, was threatened, nor southwest where the two Chinas, Nationalist and Communist, were creating problems. Thus, by the time of the outbreak of the Korean War, the Japanese had become accustomed—though not without numerous attempts toward expansion of the authorized area—to confining their activities to this specified area which was delimited by the line generally known as the MacArthur Line.
The Rhee Line
The Communist regime in North Korea launched its infamous attack against the Republic of Korea in July, 1950, and the well documented Korean conflict ensued. The sea war in Korean waters was never fierce. Indeed, the United Nations found little naval opposition, other than an irritating employment by the Communists of mine warfare and coastal batteries. However, in order to control the Korean seas for the safety of maritime transportation, amphibious operations, carrier warfare against land targets, and to prevent smuggling and seaborne agent infiltration, the United Nations command found it necessary to restrict fishing activities in Korean waters. To restrict the Japanese was a relatively simple problem, since General MacArthur, in his capacity as SCAP, continued to limit Japanese fishing activities to the areas enclosed by the MacArthur Line. South Korean fishing craft, the only other friendly, non- UN vessels in the combat zone, received special means of identification and were restricted both to area and time of operation.
These means served the naval requirements of the Korean War until early 1952. The Japanese Peace Treaty which had been signed in San Francisco on September 8, 1951, became effective on April 27, 1952. Japan became sovereign, and the MacArthur Line was wiped out with a stroke of the pen. Hut the memory of the line lived on in the minds of Korean and Japanese statesmen, and diplomatic cudgels were taken up by both nations in the matter of fisheries important to both.
Following the signing of the Peace Treaty in San Francisco on September 8, Japan and South Korea entered into negotiations to solve outstanding problems. The really sticky problem facing the two nations was the fishing rights controversy which had as an objective the dominance of the fisheries off the coasts of Korea. These offshore waters were rich pre-war Japanese fishing grounds. None knew this better than President Syngman Rhee, South Korea’s fiery leader. At Rhee’s urging, on January 19, 1952, the Korean government established a “fixed peace line” enclosing these fisheries. Japanese shipping and fishing fleets were warned to remain away from the area or risk sinking or capture and confiscation. Since that time the restrictions of the Rhee Line have been extended to include Communist China’s vessels. In effect, Korea has claimed sovereignty over the demarcated area.
By September, 1952, naval operations in the Korean War necessitated the establishment of a sea zone surrounding Korea which under international law can be interpreted as a “special zone” for war operations. Officially desigrated the Korean Sea Defense Zone, and commonly referred to in many quarters as the Clark Line after General Mark Clark, then Commander-in-Chief of the United Nations Command, the zone was defined as the water area contiguous to the coast of Korea and within a specified line. Though this new war zone did not coincide with the area enclosed by the Rhee Line, the requirements of war did in effect restrict merchant shipping and fishing activities in the waters contiguous to Korea.
The Korean government interpreted the establishment of the Clark Line as evidence of a victory over Japan in their unsettled dispute concerning the Rhee Line. ROK patrol craft suddenly began enforcing the government’s previous threats. Japanese vessels were fired upon, chased, and seized. Japanese fishermen were tried in Korean courts and imprisoned in Korean jails for trespassing ROK “fishing grounds,” for violating the “territorial waters of Korea,” or for “trespassing the Rhee Line.” The seizures and trials continued throughout 1953, reaching a minor climax in September of that year when the No. 2 Kyo Maru, a patrol boat of the Japanese Fisheries Agency, was seized by the ROK. Despite strong protests by the Japanese government, the Fisheries Agency vessel was confiscated by the Koreans, though the crew was “repatriated” to Japan. A major climax was reached in February, 1954 when the Japanese Maritime Safely Board Sado was attacked and temporarily seized by a ROK naval craft. Japan’s Foreign Minister Okumura filed a strong protest against this act with the ROK minister in Japan. The Sado was released after a matter of hours, but not before her skipper was forced to sign a statement to the effect that he would “never violate the Rhee Line again.” The incident, though never reaching major international proportions, created uneasiness and distress among Japanese fishing interests in southern Japan, who habitually exploited the fishing grounds of the East China Sea and the Korean coastal waters. The very fact that a Japanese patrol vessel had been seized accomplished more to bolster Korean claims in a few hours than all the Korean threats up to that time.
The Rhee Line and its international implications are still a focus of attention of the world as Japan and South Korea parry each others’ direct and indirect actions to gain their ends with respect to the disputed fishing grounds. Whatever happens in the Rhee Line dispute, the result will have an important bearing on the changing concepts of territorial waters. Already the Rhee Line concept has caused Communist China to establish a similar line off the coast of China, commonly referred to as the Mao Line. The Soviets only last year closed the Okhotsk Sea and a large portion of the Northwest Pacific, placing the area behind an artificial barrier commonly called the Bulganin Line. Though the protection of fisheries has been given as the reason for the establishment of these restricted zones, they have resulted in the extension of sovereignty over wide areas of what formerly was called “high seas.” In a sense, it can be said that they sprang from the MacArthur Line concept, a strictly military occupation imposition, and more immediately from the Rhee Line, which can claim its inception as being possible because of military expediency.
The Biological Complex Theory
To such nations as Peru, Chile, and Ecuador the continental shelves and the theory derived therefrom provided no adequate answer to their own maritime territorial ambitions. These nations theorized that the Truman Proclamation, reinforced by the subsequent proclamations of Mexico, Argentina, Brazil, el at., had incorporated into international maritime philosophy certain new concepts and that the Proclamation might one day be recognized “as one of the decisive acts of history, comparable to the discoveries of Columbus.” Further, they pointed out, the primary reason for the initiation of the Truman Proclamation was the overwhelming necessity of the United States to protect marine resources of vital importance to her. That is, there were exploitable resources geographically not within the boundaries of the United States but which were located in an area contiguous to her territory and consequently most susceptible to exploitation by the United States. These resources had special significance with respect to the economy and wellbeing of the people of the United States.
Maritime resources of great value lay off the coasts of Peru, Chile, and Ecuador, but for these nations the concept of the submarine platform or continental shelf was insufficient for jurisdiction over their exploitation. This shelf or platform is narrow along the Pacific coasts of South America, at points measuring less than two miles, and extending to a distance of 60-80 miles in only one section. There were two prime reasons why these nations, especially Peru, place great value on maritime resources: (1) the diet of their populations have a protein deficiency which can be supplemented from the excellent fisheries off the coasts; and (2) the marine fauna of the coastal areas serve as food for the guano birds whose deposits provide fertilizer for domestic agriculture as well as contributing a substantial percentage of national exports. For these reasons, unilateral proclamations were issued by the three nations claiming “national sovereignty and jurisdiction” over the continental shelf and insular shelves to “whatever may be the depth and the extent of the said shelf.” It was further stated that the action was being taken following similar actions of other states and that the new theory of proclaiming sovereignty and national jurisdiction over the “submarine shelf, as well as the epicontinental waters which cover it and over the sea waters adjacent to them . . . has been incorporated in practice into the international order.”
The original proclamations and claims of Peru, Chile, and Ecuador in 1947 were based on their own interpretations of the Continental Shelf theory. They very blithely ignored the fact that the area (up to 200 miles from the coast) and the substance (epicontinental waters as well as the subsoil) were not consistent with the Truman Proclamation nor with a strict interpretation of the Continental Shelf theory. They realized the international weakness of the position to which their interpretations relegated them. Therefore, they acted to produce a new theory, one which had a natural law basis similar to that of the Continental Shelf theory, i.e., as they stated, “The right of conservation of economic factors is inherent in all States.” The result was the Biological Complex theory, which has as its basis a scientific study by Robert Cushman Murphy.
Murphy, an employee of the Peruvian government, conducted an exhaustive study of the cold current which bathes the coasts of South America, the economic fisheries of the area, the guatiay and piquero (the principal species which produce guano fertilizer), and the anchovies prevalent in the area (the key to the cycle of the biological complex). His report, published in 1954, concluded that measures had to be taken to protect the anchovies or the life cycle (biological complex) would be destroyed, thus resulting in destruction of the fisheries and the guano fertilizer deposits. The Comite de Proteccion a la Naturaleza, after thoroughly studying Murphy’s recommendations, petitioned the Peruvian government to declare anchovies to be a national preserve.
Garcia Sayan, Peru’s Minister of Foreign Affairs in 1947 when Peru first proclaimed jurisdiction over the coastal waters to a distance of 200 miles, has proposed that in further action by the United Nations concerning territorial waters the actual conditions of each maritime nation be examined and the degree and area of sovereignty should depend upon the situation peculiar to each nation. For example, for those countries, such as the United States, where an extensive continental shelf provides an adequate answer to territorial expansion ambitions, the Continental Shelf theory should be utilized. For Peru, Chile, and Ecuador, specifically, and perhaps for other states, the Biological Complex should be the basis for the establishment of territorial waters boundaries. This approach to the problem would abolish inequalities among states and prevent the establishment of a situation of privilege for certain states if only one theory were utilized.
Though such an appeal has certain rationality, Garcia Sayan did not reckon with the “sovereignty” phobia which now possesses the world. Costa Rica and El Salvador have declared almost identical claims (200 miles) as have Peru, Chile, and Ecuador, even though the two former claimants are not fortunate enough to be blessed with a Biological Complex off their coasts, such as are the three South American nations. Further, Turkey has agreed with the views of Peru, Chile, and Ecuador that the exploitation of maritime resources can occur where no continental shelf exists or outside the continental shelf where one does exist. But in Turkey’s case she cannot claim a 200- mile territorial limit, geographical and other factors not permitting such action. Therefore, to what theory should Turkey turn.
It may be concluded that the Biological Complex will be unacceptable as a general solution to the pressing problem of “the regimen of the seas,” i.e., expanding national jurisdiction over large areas of the sea. It must be pointed out, however, that the theory may prove acceptable and of worth in establishing territorial maritime boundaries off the Pacific coast of South America. Especially will this be so if Garcia Sayan’s proposal is accepted and the situation of each maritime nation be considered and territorial waters established accordingly on its own merits.
1. See “Where Are Our Seaward Boundaries?” by A. L. Shalowitz, p. 616, June, 1957 Proceedings.
2. See “Decatur’s Doctrine—A Code for Outer Space” by Lt. Cdr. R. G. Alexander, USN, and Lt. W. L. Read, USN, p. 938, September, 1957 Proceedings.