The Soviet Union participated actively in the 1960 Conference. Its representatives were eminent maritime and international legal experts, an indication of the importance attributed by the Soviets to the conference. While criticizing the failure of the 1958 and 1960 Conferences on the Law of the Sea to seat the Chinese Communist regime, to resolve the question of the width of territorial waters, and to regulate fishing and living resources of the sea, they declared that the conferences were “an important step on the road to developing international law.”
For the Western nations, however, Soviet opposition constituted a relatively minor problem. Rather, it is with the difficulties remaining as a consequence of the failure to resolve the questions of the territorial sea limits and of legitimate fishing rights that we now turn, difficulties that have complicated the development of an effective alliance system and the promotion of better relations with many underdeveloped countries.
The Americas:
Although recent U. S. relations with the nations of Latin America have generally been good (Cuba is a flagrant exception), during the past decade unilateral decisions by several Central and South American republics to extend their territorial seas beyond the 3-mile limit to widths varying from 4 to 200 miles have not only raised complex commercial and legal disputes, but may, if permitted to remain, complicate the defense of the Western Hemisphere. The most prominent of these was the Declaration of Santiago, signed by Chile, Ecuador, and Peru in 1952, which laid claim to a 200-mile maritime frontier. According to the signatories, the Declaration stemmed from fears that unregulated fishing, especially by U. S. fishing fleets, would seriously deplete the fishery wealth off their coasts. The three nations sought, in particular, to limit the catch of whales and to require foreign commercial concerns to pay a license fee for fishing rights within the 200-mile zone. Latin American jurists upheld the legal basis for the Declaration of Santiago by referring to the precedent set by former President Truman in his proclamation of December 1946, which extended the jurisdiction of the United States over the Continental Shelf. In an accompanying but separate proclamation, conservation fishing zones were established in waters “contiguous to the coasts of the United States.” The United States has rejected the Latin American interpretation, maintaining that Mr. Truman delimited U. S. jurisdiction and not sovereignty. Furthermore, the freedom of the high seas was not impaired.
At the third Inter-American Conference of Jurists, held in Mexico City in January 1956, Costa Rica and El Salvador also increased their territorial sea claims to 200 miles. Soon after, Guatemala and Mexico also unilaterally extended the limits of their territorial waters. The position of the United States, since modified, held that the 3-mile maritime limit must be maintained in the Western hemisphere. The United States insists that it is consistent with freedom of the high seas, and is vital to the defense of the Western Hemisphere (it should be noted that acceptance of a 200-limit in the Caribbean, for example, would complicate significantly the defense of the Panama Canal). To meet the justifiable concern of Latin American nations for the preservation of the fishing wealth off their coasts, the United States had repeatedly expressed its willingness to negotiate fishing and conservation agreements with interested parties on a multilateral basis.
At the March 1956 special conference of the Organization of American States, the Latin American states modified their stand, at least to the point where they expressed agreement to a U. S.-supported resolution, which advocated “the submission of the territorial limits question to an international juridical body” and “much more study on fish conservation and control before adopting definitive international agreements.” At the United Nations conferences in 1958 and 1960, however, the Latin American states generally found themselves opposed to the U. S. position. As a result of the failure of the conferences, they are free to attempt to enforce exaggerated claims, which can only jeopardize inter-American solidarity.
The North Atlantic: The Iceland- United Kingdom Fisheries Dispute
A knotty dispute has arisen between the United Kingdom and Iceland over fishing rights in Icelandic waters. This dispute has prevented the effective integration of Iceland into the NATO command, which is unfortunate because Iceland is an essential link in NATO’s defensive chain.
The problem involved is characteristic of a recurring pattern: a situation where national policy is accorded precedence over a principle of international law. From the point of international law, Iceland’s extension of its territorial limits on 1 September 1958, from four to 12 nautical miles constituted another challenge to the traditional freedom of the high seas. On the other hand, for Iceland, the matter was considered one of survival; it depends upon fishing for its economic well-being. In addition to unilaterally extending its territorial limits, Iceland also closed certain of its bays and inlets which previously had been open to foreign trawlers. It also justified this move on the basis of preserving essential fishing areas.
The British government protested these actions and private organizations in Britain initiated a sales boycott of Icelandic fish. This led Iceland to turn to the Soviet Union as a market for its fish. In 1958, the U.S.S.R. took more than 50,000 tons of Icelandic fish in return for Soviet oil, grain, and cement. Though several nations have refused to recognize Iceland’s unilateral action, none have gone so far as the United Kingdom, which has used naval vessels to protect British trawlers fishing inside the 12-mile limit.
The Communist Party in Iceland has skillfully exploited this use of force by the British to arouse popular discontent with Iceland’s membership in NATO. Communist- inspired anti-NATO propaganda was partially responsible for Iceland’s request to Washington for a reduction in the number of American troops based in Iceland.
Iceland has been particularly bitter over what it regards as the United Kingdom’s double standard. Specifically, it noted the United Kingdom’s stated opposition to any change in the 3-mile limit for fear that outposts in Aden, Gibraltar, and Singapore might be jeopardized. Yet, as the Iceland government has pointed out, the British made no protest, nor did they take any action, when the Peiping regime unilaterally extended its territorial waters (which now theoretically encompass the island of Hong Kong) on 4 September 1958.
More important, Iceland criticized the United Kingdom for concluding an agreement with Denmark concerning fishing rights around the Faroe Islands in which the British recognized, in principle, the 12-mile limit (with the exception that British trawlers were granted the exclusive right to fish up to six miles off the islands).
There is hope, however, for a settlement. On 12 May 1960, the British Trawlers Federation announced that British fishing vessels will not fish within the 12-mile limit imposed by the Icelandic government for a period of three months which may be further extended. During this interval the two countries will search for a solution.
The Far East: Japan and South Korea
There are many persisting sources of tension between South Korea and Japan that have hampered efforts by the United States to develop a viable alliance system in the Far East. In addition to the problems raised by differing claims to territorial waters, these tensions stem from the continued demand of South Korea “for the return of Korean cultural treasures removed to Japan, property claims, restitution of Korean gold reserves that Seoul says were appropriated by Tokyo, and payment of compensation to thousands of Koreans in Japan” who were originally brought there as “forced labor.” Relations between the two were further strained by the Japanese decision in early 1959 to permit the repatriation to Communist North Korea of Koreans resident in Japan.
Of the above problems, the most prominent is perhaps that resulting from South Korea’s extending its sovereignty to 60 miles. To protect rich Korean fishing areas, the South Korean government has laid claim to open seas areas extending this far off the coast. Japanese fishing vessels crossing the so- called “Rhee Line” have been seized. Not only are the Japanese prohibited from fishing in these Korean-claimed waters, but they must also make sure that they do not cross the proscribed areas en route to permitted areas for fear that they will be seized by Korean naval vessels. This arbitrary policy has greatly increased the operating costs for Japanese fishermen who are now required to take the long, circuitous course to their fishing grounds in the Yellow Sea.
The Japanese government has complained bitterly over South Korea’s actions, contending that the arbitrary extension of Korean sovereignty violates international law. To the Japanese, access to the fishing grounds is vital, for fish is a staple of the Japanese diet. There the controversy rests. There are, however, two variables that may have a decisive effect on the future of South Korean-Japanese relations. On the one hand, the policy of the new South Korean government may not be as intransigent on this question as that of the previous Rhee regime. On the other hand, as Japanese naval strength grows, the Japanese government may be reluctant to maintain its present policy of patient diplomacy.
Southern Asia:
The seeds of conflict have also been sown in Southern Asia. For example, on 23 March 1956, the Indian government announced the extension of its territorial waters from three to six nautical miles. President Rajendra Prasad made this declaration “notwithstanding any rule of law or practice to the contrary which may have been observed in the past, in relation to India or any part thereof.” In this respect India has followed the lead of many other nations. The Indian position, however, is complicated by an additional claim to “full and exclusive sovereign right over the sea bed and subsoil of the Continental Shelf adjoining Indian territory and beyond its territorial waters” to a distance of 100 miles.
Although Ceylon regards the Indian claim as an infringement upon its territorial waters, it has contented itself thus far with notes of protest. As a result of the failure of the 1960 conference, the issue remains a source of discord between these two nations.
An Indonesian claim to 12 miles, if upheld and applied strictly to Indonesia’s 3,000- island archipelago, could endanger Australia’s trade routes and SEATO’s lines of communication. Though there is little prospect of Indonesia’s attempting to close the major sea lanes in the near future, the problem could become critical at another time.
Concluding Remarks
In conclusion, two observations seem appropriate. In the first place, the wishes of all nations, including the smallest and the landlocked, must be taken into consideration in any future attempt to codify, change, or create international law. The ability of a small number of countries to band together and block the desires of a large majority will not be lost on the countries which sent delegations to Geneva in 1958 and 1960. While in the past it could be said that “the usage of the great maritime states must always exercise a weighty influence on the development of the international law of the sea,” in the future it must be phrased thus: “the votes of any good-sized bloc of countries must always exercise a weighty influence on the development of the law of the sea.”
Second, despite their insistence that the 3- mile limit remains the only rule, the major maritime powers must realize that the failure of the conferences may encourage other nations to adopt any territorial limit that they feel will contribute the most to their national self-interest. At the very least, the failure of the 1958 and 1960 Geneva Conferences leaves the world confronted with a multitude of problems that will take the highest degree of skill and patience to resolve.