The United States has always adhered to a three-mile territorial sea and has consistently maintained that in the absence of international agreement on the breadth of the territorial sea, it has no obligation to recognize claims in excess of three miles. The author considers that continuing adherence to this position is unrealistic and may be damaging our future interests in use of the seas. The U. S. government should turn its attention toward the problem of passage through and over international straits.
The United States has always been a staunch supporter of the doctrine of freedom of the seas. It has always maintained that any extension of a territorial sea by a coastal state beyond the historically recognized three-mile limit was an illegal encroachment on that freedom. The importance of free use of the high seas by a maritime state which is also an important world power is evident. In 1953, Mr. Jack B. Tate, the Deputy Legal Adviser, Department of State, said:
Such freedom is essential to its (the United States’) national interests. It is a time-honored concept of defense that the greater the freedom and range of its warships and aircraft, the better protected are its security interests. Likewise, the maintenance of free lanes and air routes is vital to the success of its shipping and air transport. And it is becoming increasingly evident that its fishing interest depends in large part upon fishing resources in seas adjacent to foreign states. (Parenthetical expression supplied.)
Despite the U. S. position on extensive claims by other coastal states, we have not vigorously contested claims extending to 12 miles. As a consequence, we have honored those claims in fact, if not in theory.
Our failure to contest effectively claims exceeding three miles has, in effect, been an endorsement of developing customary international law on the subject. For some time there has been substantial disagreement among U. S. scholars concerning the immutable nature of the three-mile limit. At the 50th Annual Meeting of the American Society of International Law in 1956, Professor Richard R. Baxter remarked on the widespread opposition to the three-mile limit, suggested that the time had come for the United States to change its position, and concluded that the “territorial sea should not be excepted from that searching examination to which we must constantly subject all the doctrines of international law. If the reason for the law changes it is reasonable that the law should change also.”
In 1958 and 1960, international conferences at Geneva struggled unsuccessfully to fix the breadth of the territorial sea. Perhaps, if national interests can be furthered thereby, it is time for the United States to reconsider its traditional position. It is my opinion that the matter deserves careful examination against the realities of modern world development. It is my conclusion that much may be gained by surrendering our traditional position in return for international agreement on free passage through and over international straits.
The United States has adhered to the three- mile limit since 1793. In that year, the United States found it necessary to adopt a territorial sea in order to protect its neutral rights and observe its neutral obligations in the war between France and Great Britain. Mr. Thomas Jefferson, then Secretary of State, sent notes to the British and French ministers which indicated that the United States was provisionally fixing its territorial sea at “one sea league.” These communications noted the variance existing in claims of other states between one league and upwards of 20 miles. The right to enter into future international discussions on this subject was reserved.
Throughout the next one hundred years, the U. S. position was subject to discussion and examination by scholars who questioned its narrowness. In its proceedings in 1894 and 1895, the U. S. Institute of International Law recommended adoption of a six-mile limit. It persisted in this recommendation until 1926.
In 1896, the United States indicated to the government of the Netherlands that it would not be indisposed, if sufficient maritime powers agreed, to fix the breadth of the territorial sea at six miles.
Despite the flexibility exhibited in 1896, the United States did not depart, in an operational sense, from the limit provisionally adopted in 1793; in 1958 and 1960, when its proposal for a six-mile territorial sea coupled with a six-mile fishing zone had failed, Mr. Arthur H. Dean, head of the U. S. delegation to the Law of the Sea Conferences at Geneva, declared with some vehemence that three miles is “the sole breadth of teritorial sea on which there had ever been anything like common agreement,” that claims in excess thereof “are not sanctioned by international law” and “conflict with the universally accepted principle of the freedom of the sea. . . . Furthermore, we have made it clear that in our view there is no obligation on the part of states adhering to the 3-mile rule to recognize claims on the part of other states to a greater breadth of territorial sea. And on that we stand.” This remains the position of the United States today.
Regardless of the efforts of some writers, both early and modern, to relate the development of international law to some all-pervasive “law of nature,” the fact is that many accepted principles of international law are bottomed on a much more mundane foundation. They arise and develop as the result of clashes between the interests of states. Sometimes these clashes are solved by peaceful means, sometimes by armed might. But irrespective of the method of solution, each of these conflicts adds its bit to the developing law. When a sufficient body of customary law has developed, it is frequently codified by an international treaty or convention. International law can also develop ab initio by international agreement. Law embodied in a treaty or other international agreement is binding only on signatories, but these agreements are persuasive regarding the rules of law and are frequently followed by nonsignatory states.
The law of the sea has developed through custom, codification, and enactment. It is not my purpose to discuss the general development of the law of the sea, but it is important to realize that its development is a continuing dynamic process based on states’ interests and requirements. It is not static.
The breadth of territorial waters has always been of primary concern to maritime states. Following the extravagant claims of coastal states to vast areas of the high seas during the 15th century, a concerted effort to reverse those claims began. This effort was signaled by Hugo Grotius’ publication in 1609 of his thesis Mare Liberum which argued that the high seas were free for navigation by all nations. Queen Elizabeth reinforced this position by the use of English naval power. By the end of the 17th century, the principle of freedom of the seas was clearly established. Concurrently, the right of a coastal state to exercise sovereignty over a narrow belt of waters adjoining its coast was also recognized. However, the appropriate width of this belt was never universally established. Claims of three, four, six, 12 miles, and up to the limits of eyesight were made and frequently honored. The maritime nations, in the interests of their fishermen, their merchant transport, and their naval power, attempted to limit territorial sea claims as much as possible. The most generally recognized limit became three miles.
It is fair to say that during the 19th century, customary international law on territorial sea breadth was three miles. By 1900, however, it was undergoing a change. The League of Nations called a Conference in 1930 to codify the law of the sea. A preparatory committee was appointed to draw up the bases for discussion. It included in its bases for discussion the statement that the breadth of territorial waters was three miles. In its observations on the bases for discussion it noted considerable variance among the states on this point. The 1930 Conference failed to reach a decision on this point and after many meetings reported, “discussions have revealed, in respect of certain fundamental points, a divergence of views which for the present renders the conclusion of a Convention on the Territorial Sea impossible. ...”
In terms of historical perspective, the position of states, at that time, on the proposal to limit the territorial sea to three miles is illuminating. Twenty states favored a three-mile limit; 16 claimed something more. But even this division is deceptive. Of the 20 states nominally in favor of a three-mile limit, several did so only if a contiguous zone was coupled with it. Mr. Jesse S. Reeves, in 1930, analyzed the situation as follows:
Summing up the position of what may be called the three-mile limit countries, only the British Commonwealth of Nations and Japan were squarely in favor without a contiguous zone; while eight among them, including Germany and France were in favor but only with a contiguous zone added, while three including the United States were noncommittal.
Later in the same article Mr. Reeves comments on the “complete absence of agreement” and goes on to suggest that it is highly unlikely that agreement on the subjects of territorial sea and contiguous zone can be secured in the future.
Mr. Reeves was a better prophet than he knew. In 1958, 86 states met at Geneva to codify the law of the sea. The 1958 Conference generally was a great success. Four conventions related to fisheries, high seas, continental shelf, and the territorial sea and contiguous zone were signed and have all become effective. However, no agreement was reached on the breadth of the territorial sea.
The Conference strongly supported a proposal which would have coupled a six-mile territorial sea with a six-mile fishing zone in which historical fishing rights were preserved. But this solution failed to secure the necessary affirmative votes for adoption. Under the voting rules, affirmative votes by two-thirds of those voting were required for adoption of any proposal.
The situation with regard to the breadth of the territorial sea and contiguous zone was ! ably summed up by Mr. Max Sorensen, in i 1958, in his paper “Law of the Sea,” when i he said:
The situation remains as ILC [International Law Commission] described it—state practice is not uniform and certain states object to a territorial sea wider than three miles. On the other hand, it also remains the position, as confirmed by the overwhelming majority of the Governments represented at the Conference, that no state is entitled to extend its territorial sea beyond twelve miles. With this point firmly established, the need for a general settlement of the remaining legal issues is as great as ever. It is fair to assume, however, that after the Conference the three-mile limit can never again be taken into consideration as a possible element of any negotiated solution. Future negotiations are bound to start where the deliberations of the Conference ended—that is, by accepting the maximum breadth of six miles, combined with certain exclusive fishing rights beyond that limit. It will also have to be borne in mind that, as time goes on, the chances of inducing states adopting a twelve-mile limit to withdraw from that limit are likely to diminish rather than increase.
On 10 December 1958 the General Assembly of the United Nations arranged for a second Conference to take up the problems not solved in the 1958 Conference. This Conference met from 17 March to 27 April 1960. Mr. Arthur H. Dean summarized the problems facing the Conference. He said: “. . . the problems which were of primary concern at this second Conference involved (a) the breadth of the territorial sea bordering each coastal state, and (b) the establishment of fishing zones by coastal states in the high seas contiguous to, but beyond, the outer limit of territorial seas of coastal states. The reciprocal rights of each coastal and fishing or maritime state in such inner and outer zones involved questions of national security, such as the innocent passage of warships, as well as of maritime and aerial commerce, and fisheries rights and conservation.”
The 1960 Conference also failed to reach an agreement on the proper breadth of the territorial sea. The prophetic words of Sorenson relative to the three-mile limit being dead as far as an element of a negotiated solution was concerned were amply underlined. After much negotiation and compromise, a joint Canadian-U. S. proposal was submitted.
This proposal provided for a six-mile territorial sea with an additional six-mile contiguous zone for fishing control. The coastal state was to have exclusive fishing rights in this 12-mile zone subject to continuing temporary fishing by states which could show that their vessels had fished in the outer six- mile zone during the period 1 January 1953 to 1 January 1958. These states were to be permitted to continue to fish in this contiguous zone for a 10-year period starting 31 October 1960. When no practice of fishing could be established, the coastal state could immediately claim exclusive 12-mile fishing jurisdiction.
Agreement was almost secured. Of 87 nations, 54 voted for it, 28 voted against and five abstained. Thus, if one of the negative votes had shifted to the affirmative or abstained, the two-thirds majority required by the voting rules would have been secured and the proposal adopted.
The majority of states voting against the proposal favored either a wider territorial sea or an immediate exclusive fishing zone of 12 miles or wider. Some of the states favoring the proposal did so reluctantly as the result of much persuasion and in doing so abandoned previous positions favoring broader territorial seas or broader exclusive fishing rights or both. An analysis of individual positions is not pertinent to this paper. It may be said, in all fairness, that despite the claim of the United States to the universally acknowledged legality of the three-mile limit, again expressed by Mr. Dean at the end of the Conference, that limit, as the sole breadth recognizable in international law, was in fact buried deeper by the 1960 Conference. Necessary support for even a six-mile territorial sea coupled with a six-mile contiguous fishing zone could not be mounted.
Six years have now passed since the last Conference. During that period an increasing number of states have extended their territorial sea or fishing claims to 12 miles. No less than nine states have claimed a twelve- mile territorial sea, five have claimed six miles and one has claimed 130 miles. Seven additional states have gone to twelve miles for fishing. In 1964, the 16-nation European Fisheries Conference met in London and drafted a convention to recognize the right of a party to establish a 12-mile fishing zone.
In October 1966, the U. S. Congress enacted legislation extending exclusive U. S. fishing rights to 12 miles. There is a bill before the House which would extend our fishing jurisdiction to an outer limit identical with that of the Continental Shelf. While this bill probably will not pass, the trend is clear. There is definite enthusiasm in the United States for increased limits of exclusive fishing jurisdiction. The Department of State has recognized the developing customary international law in this field and has stated that unilateral action to extend our fishing zone to 12 miles would not be contrary to international law.
Until 1 June 1966, the Navy consistently opposed the extension of fishing zones because of the definite inability of states to distinguish different kinds of jurisdictions over high seas areas. On that date the Judge Advocate General, Rear Admiral Wilfred A. Hearn, U. S. Navy, in testimony before Congress, summarized the reasons for the traditional position opposing extended fishing zones and reported withdrawal of that opposition. He said:
We consider it imperative from the standpoint of security to preserve the right of freedom of navigation on the high seas for warships and aircraft. We believe that our Security interests are best served when nations are limited to narrow territorial seas which interfere only slightly with this freedom of navigation.
Since 1793 the United States has consistently maintained a territorial sea of three nautical miles and it is our policy to protest claims of other states beyond that limit. All waters seaward of this narrow belt are high seas to which certain freedoms, including fishing and navigation are extended to all nations alike. The Navy has always strongly supported this position and because we have always been aware of the intimate identification of the territorial sea with exclusive fishing rights, we have consistently opposed the extension of exclusive fishing limits beyond the territorial sea. We have felt that as long as fish and sovereignty were lumped together, extension of fishing limits could only derogate our position on the territorial sea.
Admiral Hearn continued by noting the Department of State report, mentioned above, which assures us that extension of fishing limits to 12 miles would not interfere with our rights of navigation and would not signal a departure from the three-mile limit. In view of this, he said, “the Departments of Defense and Navy do not oppose” the passage of legislation extending our exclusive fishing claims to 12 miles.
Prior to the 1958 Law of the Sea Conference, all states were queried regarding their jurisdictional claims on the seas. The questionnaire requested information on breadth of territorial sea, continental shelf claims, and jurisdictional limits for special purposes including customs, security, criminal jurisdiction, civil jurisdiction, fishing, neutrality, and sanitary regulations. It is not my purpose to analyze that list but I note the headings covered to indicate what is included within the term sovereignty as used in connection with sea claims.
For the practical purposes of the international lawyer, sovereignty is not a metaphysical concept, nor is it part of the essence of statehood; it is merely a term which designates an aggregate of particular and very extensive claims that states habitually make for themselves in their relations with other states.
If we examine this list we discover that most of these rights are now governed by Convention. For example, rights in the Continental shelf, by the Convention on the Continental Shelf; customs, sanitary, fiscal regulations and immigration regulations, and criminal jurisdiction to enforce them are covered by the Convention on the Territorial Sea and the Contiguous Zone. A start toward the control of fishing and conservation has been made by the Convention on Fishing and Conservation of the Living Resources of the High Seas.
Analyzed in this way, we see that when the United States goes to 12 miles or further for fishing, very little non-controlled sovereignty will be left to us except that part dealing with security. Obviously, the United States has a great interest in the security aspects of the territorial sea. As noted in the first part of this article, our interests are best served when we have freedom to navigate as close as possible to the coasts of other states of the world. This desire and this theoretical advantage has been the sine qua non of our inflexible position on the three-mile limit. But perhaps our insistence on this position has worked to our disadvantage. It is certain that our most serious opponents for now, and for the foreseeable future, do not and will not accept our position on the three-mile limit. I refer, of course, to Russia and China. The Soviet Union has long maintained that a state is free to set the breadth of its territorial waters to any limit up to 12 miles and has consistently claimed 12 miles for herself. So insistent has she been on this claim that when it appeared that the Canada/U. S. six-plus-six proposal might be adopted by the 1960 Conference, she indicated she would not be bound by it. Communist China also claims a 12-mile territorial sea. The United States has not, from a practical standpoint, effectively challenged those claims. Contrarily, our adherence to the three-mile limit permits Russian intelligence collection trawlers to lie near our coasts and record the goings and comings of our submarines and aircraft.
But the security problem which confronts us is more serious than this. Territorial sea claims by other states for security purposes which go unchallenged by us tend to develop into customary international law. The longer they are unchallenged the more difficult it is to challenge them effectively when challenge becomes essential. One particularly vexatious claim in existence today is that of Indonesia. She has adopted the straight baseline system in conjunction with a 12-mile territorial sea. The effect of this action is to convert the waters of the entire archipelago into internal waters and extend her greatly territorial sea. Her claims close off many internationally recognized sea lanes from the high seas. Under Indonesian regulations the right of warships to pass is forbidden without the prior consent of the Indonesian Government. Several other island nations could presumably take a similar stand. The point is, of course, that extensive territorial sea claims can easily enclose important international straits within territorial waters.
There are a number of articles in the Convention on the Territorial Sea and the Contiguous Zone which deal with the right of passage.
Article 5 provides that when straight baselines established under Article 4 enclose what had previously been part of the territorial sea or high seas, “a right of innocent passage” shall exist in those waters.
Article 14, 1. provides, subject to the provisions of the Convention, that “ships of all states, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.” Article 14, 2 says, “Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state.”
Article 16, 3. “Subject to the provisions of paragraph 4, the coastal state may, without discrimination amongst foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security.”
Article 16, 4. “There shall be no suspension of innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign state.”
Article 17, “Foreign ships exercising the right of innocent passage shall comply with the laws and regulations enacted by the coastal state in conformity with these articles and other rules of international law and, in particular, with such laws and regulations relating to transport and navigation.”
Article 23, “If any warship does not comply with the regulations of the coastal state concerning passage through the territorial sea and disregards any request for compliance which is made to it, the coastal state may require the warship to leave this territorial sea.”
As has already been mentioned, a state has complete sovereignty over the airspace over its territorial waters and may prohibit passage through it. No right of innocent passage exists through the air. This sovereignty is recognized by Article 2 of the Territorial Sea and Contiguous Zone Convention.
Although the Convention does not single out warships for special treatment except under Article 23, which permits their removal if they disobey regulations, it would seem they are not permitted the right of innocent passage by some states. The Russian position is reflected in the following quote from a Russian text:
A littoral state which exercises sovereignty over territorial waters naturally has the right, in the interests of its own security and defense, completely to close its territorial waters to foreign men-of-war. When a state consents to the passage of foreign ships through its territorial waters, it can make this passage subject to the observance of special regulations.
This Russian attitude was clearly stated in its reservation to the Convention on the Territorial Sea and Contiguous Zone which reads:
To Article 23 (sub-section D. Rule applicable to Warships). The Government of the Union of Soviet Socialist Republics considers that a coastal State has the right to establish procedures for the authorization of the passage of foreign warships through its territorial waters.
Similar reservations were made by the other bloc countries. This question was a very difficult one at Geneva and without exploring it in detail perhaps it can be summed up by the following quote from Mr. H. Arthur Smith’s The Law and Custom of the Sea.
The report of the International Law Commission (Art. 26) proposes that warships should have the right of innocent passage ‘save in exceptional circumstances,’ which is indeed the normal practice between friendly powers. In any case warships must conform to all the regulations of the coastal State. No formal agreement was reached at the 1958 Conference. The draft Convention evades the question of the legal right of passage, and confines itself to saying that warships must conform to the local regulations (Art. 23). In any case it is certainly open to the shore State to prohibit or restrict the passage of warships for special and temporary reasons, such as may arise during a period of international tensions.
What does all of the above discussion point to? It is difficult to be certain but it seems to me that a rational picture is as follows:
A state has the right to exercise certain sovereign rights of jurisdiction in her territorial sea. Those rights are limited only in that she must permit the innocent passage of ships through those waters. She is not obliged to permit aircraft to fly through the skies over her territorial sea. Passage is innocent only as long as it is not “prejudicial to the peace, good order or security of the coastal state.” The only guaranteed right of passage through international straits is the “right of innocent passage.” High seas, including international straits, which historically have been free to the unrestricted passage of all ships may become territorial sea as the result of recognized claims or the adoption of the straight baseline system. There is a lack of inclination to test excessive territorial sea claims and customary international law is continuing to develop in support of such claims not in excess of 12 miles. Warships, in the opinion of certain important states, do not have the right of innocent passage through territorial seas. However, the Corfu Channel case1 confirmed the right of innocent passage for warships through territorial seas which are also international straits. Some states may refuse to recognize the Corfu ruling.
In any event, the test established by the Convention as to what constitutes innocent passage is largely a subjective one applied by the coastal state. In theory it must be applied reasonably. In practice states often act unreasonably in support of national interests. In a world which has no supreme council to make binding determinations in this area a state clearly can control passage of warships when it considers such passages prejudicial to her good order and security. This control may extend to a requirement that warships secure prior approval before transiting territorial seas. And it would follow that inclusion of high seas, previously considered international straits, within territorial seas could place the same burden, with regard to those straits, on warships wishing to transit them. Aircraft, not having a right of innocent passage, could be excluded from airspaces over such areas without reason.
In short, a reasonable conclusion to be drawn from this examination is that the greatest danger to our freedom of movement may not lie in the extension of territorial seas per se, but in the possibility that by reason of such extension, innocent passage of our warships through international straits may be hampered. It should be noted that the United States does not concede that innocent passage through international straits can be interfered with by the action of a coastal state. This is the law as determined in the Corfu Channel case. But it seems to me that although the right of innocent passage is clear enough in theory, in actual practice coastal states may attempt to interfere unreasonably with innocent passage of warships. This suggests that we should work toward a guaranteed right of passage if we are to protect our security interests adequately.
The three-mile limit as the only enforceable breadth is no longer a meaningful principle of international law. Adherence to this principle may not be in the best interests of the United States. This is not to say that we should lightly abandon it without receiving something in return. It is my conclusion that the prime U. S. defense interest is in the right to sail our warships and fly our aircraft through and above those territorial sea and high sea areas long recognized as international straits. This right as regards warships is in serious and imminent danger. The right for airplanes should be procured.
It is my belief that regardless of the present doubtful status of the three-mile limit, the U. S. position thereon commands considerable respect among the other states of the world. I think that this respect, which, of course, stems from uncertainty as to future U. S. attitudes and actions toward territorial sea claims by other states in excess of three miles, might be turned to our advantage. It seems that the United States might trade a recognition of 12-mile territorial sea claims for a guaranteed right of free, as opposed to innocent, passage through international straits. Ideally, this should be done by an international conference. If this is not practicable, the bilateral approach should be explored.
The advantage of removing a serious area of controversy from the field of international law is apparent. The need to enact or otherwise develop rules governing free passage through and over international straits is a challenge we cannot avoid.
1. After its ships were damaged in the Corfu Channel Case on 22 October 1946, the British Government on 12 and 13 November 1946 dispatched some minesweepers to the area which, it will be recalled, was within the territorial waters of Albania. Although Albania protested, the minesweeping operation was nevertheless carried out in order to secure the corpora delicti. The Albanian Government charged that the British Government had thereby violated its sovereignty. The British Government justified its action, first, as an application of the theory of intervention and, secondly, as a method of self-protection or self-help. The Court rejected both arguments.—B. H. Brittin and L. B. Watson, International Law for Seagoing Officers. (Annapolis: U. S. Naval Institute, 1960).