496. Memorandum From the Legal Adviser (Chayes) to Secretary of State Rusk1
SUBJECT
- Multilateral Convention Embodying the Provisions of the United States-Canadian Proposal at the Law of the Sea Conference in Geneva in 1960
Background:
The United States-Canadian proposal which narrowly failed of adoption at Geneva in 1960 provided for a six-mile territorial sea plus a six-mile exclusive fisheries zone in which traditional users would have a ten-year phase out privilege. A Brazilian amendment accepted by the United States and Canada provided preferential fishing rights for the coastal State outside of twelve miles in exceptional cases. On May 15, 1961, the Canadian Ambassador left with the Acting Secretary an aide-memoire giving the results of a preliminary survey of eighteen countries made by Canada and the United Kingdom to ascertain the attitude of the eighteen countries to a multilateral treaty embodying this proposal. The Ambassador indicated that the results of the survey were considered encouraging and requested United States participation in a survey of additional countries. A similar approach was made by the United Kingdom Embassy at lower level, and I believe the United Kingdom Ambassador mentioned it informally to you. The matter was referred by the Under Secretary to Mr. Johnson.
All interested parties (Defense, Interior, L, U/FW, and the political areas of the Department) have stated their respective views in ample memoranda, and around the conference table. Defense considers that such a treaty would be adhered to only by friends of the United States and not by its potential enemies and, therefore, that it affords nothing from a security standpoint. Interior and U/FW consider that it would be disadvantageous from a fisheries standpoint and that such disadvantages are not acceptable except in exchange for substantial security benefits. L considers such a treaty the only constructive proposal and perhaps our last clear chance to stem the tide running against us toward a twelve-mile territorial sea; therefore in the long range overall interest of the United States as a whole. Moreover, it considers that substantial [Page 1116] adherence (40 to 45 countries) to such a treaty would create a blocking one-third against the adoption at another Law of the Sea Conference of any other rule not acceptable to the parties to the treaty.
After considering the views of all parties, Mr. Johnson concluded on August 26, 1961, that there did not seem to be a sufficiently clear balance of advantage to the United States to justify our joining in the Canadian proposal for a survey. However, he suggested that if this Office (or EUR for reasons of our relations with Canada) desired to pursue the matter further, a memorandum should be sent to you.2
Discussion:
We can see no substantial objection to participation in a survey as requested by Canada and the United Kingdom, and the political areas of the Department support this view. Because of his past association with this problem, I have discussed it with Ambassador Arthur Dean and he also sees no objection to such a survey.
Strong representations have been made to the Department and to our Embassy in Ottawa on this matter, and a Canadian delegation headed by Deputy Under Secretary and Legal Adviser Marcel Cadieux came to Washington on September 8, and supported by a United Kingdom delegation met with the representatives of the interested agencies to present their strong view that the United States should participate in the proposed extended survey.
The Canadian Government is under strong pressure from fisheries interests to proclaim a twelve-mile fishing limit unilaterally and its representatives indicated that this possibility should not be discounted in the event the multilateral treaty approach had to be abandoned.
This Office considers that the views of Defense and the fisheries people cannot be changed, but that the decision as to United States participation in such a survey is ultimately one for the Department.
Recommendation:
If you agree that the United States should participate with Canada and the United Kingdom in a further survey to ascertain support for a multilateral treaty on the lines indicated, that you authorize L to participate in talks with representatives of Canada and the United Kingdom to plan the next steps to be taken.3
- Source: National Archives and Records Administration, RG 59, Central Files 1960–63, 399.731/9–2761. Confidential. Drafted by Yingling, and cleared by Daniel M. Braddock (ARA), Louise McNutt (FE), M. Gordon Knox and Wharton D. Hubbard (EUR), James M. Ludlow (NEA), and Richard N. Gardner (IO).↩
- Johnson’s memorandum is ibid., 399.731/8–2661.↩
- The memorandum bears no indication of Rusk’s approval or disapproval of the recommendation.↩