The Development of The International Law of Marine Fisheries

THE DEVELOPMENT OB’ THE
INTERNATIONAL LAW OF MARINE

FISHERIES
by
Janes Gosselin
A thesis submitted for the degree of Doctor of

Philosophy of the Australian National University
January 1988
DECLARATION
This dissertation is entirely my original research and

all sources of information have been acknowledged.
ii
ACKNOWLEDGEMENTS
Any doctoral dissertation is, figuratively speaking, an

iceberg. Whereas the candidate whose name appears on the
title page represents, as it were, the tip, there would be
no appearance at all without massive, often unseen, support.
The present work is no exception.
I wish to express ray appreciation to the Australian Na
tional University for awarding me a scholarship to study for
the degree of Doctor of Philosophy. Without that assistance
my studies would not have proved possible. My gratitude also
extends to the French Government for granting me a special
scholarship to undertake legal research in France in connec
tion with my dissertation.
Special personal thanks go to Mr Bill Edeson, my acade
mic supervisor, whose guidance, counsel, understanding and
friendship I found invaluable. Despite his other onerous
responsibilities, his door was always open and for that I am
most grateful.
I would also like to thank other members of the acade
mic staff for both their generous assistance over the past
few years and their interest in my activities. In this re
gard particular mention must be made of Dr. J.-P. Fonteyne,
Co-ordinator of the Graduate International Law Programme,
whose advice has always proved invaluable, and to Professor
Donald Greig, who under rather pressing conditions kindly
agreed to comment on certain sections of the present work.
My thanks also go to the staff of the Law Library who
took a keen personal interest in my research and cheerfully
assisted in obtaining required publications when they were
not held by the University.
And, last but not least, I would be neglecting ray duty
if I did not also convey my appreciation to Ms Linda Cooke
and Ms Rita Harding and her staff for their unfailing admin
istrative and logistic support, greatly facilitating the
completion of this study.
iii
PREFAC E
While one naturally strives for ’objectivity' when pre

senting the results of one’s own scientific research, it
would be misleading if I did not acknowledge that I was
drawn to the present subject both as an ultimate result of
long-nascent conceptions held about the nature and potential
of international law in general as well as out of sympathy
for the aspirations of developing island countries in the
Pacific in particular. During the years in which I served
as an official in the Ministry of Foreign Affairs of one of
the new Pacific Island States, I came to form two fundamen
tal impressions of international law. The first was that,
even to me, an uninitiated fellow, international law appear
ed a useful tool for not only protecting the national inter
ests of individual (particularly weaker) States, but also,
in the longer term, for forging an international community
in which the legitimate interests of all States would be
successfully accommodated. The second, and corollary, im
pression was that the occult (at least to me) science of in
ternational law could be used not as a tool for constructing
a new world order but rather as a weapon by the initiated
against the ignorant to satisfy the former’s sometimes ex
clusive national interests while simultaneously frustrating
movement towards what I envisaged to be the ideal, more-
distant goal. In no respect was this possibility more evi
dent (or harrowing) to someone in the situation I then found
myself than with regard to the legal principles and rules
governing the use of the sea and the exploitation of its re
sources .
Several years on, the benefits of hindsight and consid
ered attention to the theoretical aspects of international
law in general as well as the particularities of the law of
the sea have not basically changed my dual impressions of
the science. On the contrary: I have found those views
shared and reflected in multifarious concrete ways by an
ever-increasing number of legal scholars who see the purpose
of studying international law being, in the words of Baron
van Asbeck,
to explore how the present law has coie to be what it is, how it is involved in the
process of refor* and extension and intensification, in order that we lay assist in
the building, stone upon stone, in stora and rain, of a transnational legal order for
States and peoples and ien;...an order which transcends power and calls for service .1
This marriage of theory and practical application of

international law has received recent consideration by Pro-
Baron F van Asbeck, ’’Growth and movement in interna

tional law"(1962) 11 ICLQ 1054, 1072; cf, eg, R Falk,
"The adequacy of contemporary theories of international
law — gaps in legal thinking” (1964) 50 VLR 231, 243;
and C Fenwick, "The progress of international law dur
ing the past forty years"(1951) 79 RDC 1, 69
iv
f e s s o r s R o n a ld S t J o h n M acDonald and D o u g la s J o h n s t o n , who
observe th a t
It is one of the «ore recent developments in the history of international law that
theoretical contributions have becoie of so«e relevance to international lawyers in
the arena of conference diploiacy and other public service activities.
The prominence, even pre-eminence, of the arena in contemporary international
law seems to nave created the need for a different kind of legal theorist, one essen
tially concerned with problem-solving in modern trans-national society, or more prop
erly, with the ’problem of problem-solving’.2
H aving s p e n t a s i g n i f i c a n t p e r io d o f tim e in t h e P a c i
f i c d e a l i n g w i t h i n t e r n a t i o n a l d e v e l o p m e n t i s s u e s , i t was
c l e a r t o me, a s i t h a d b e e n t o many o t h e r s , t h a t o n e o f t h e
most p r e s s i n g p r a c t i c a l problem s f a c in g th e r e g io n - - and,
in d e e d , num erous o t h e r p a r t s o f t h e w o rld - - c o n c e rn e d t h e
optim um u t i l i z a t i o n o f s c a r c e m a r i n e r e s o u r c e s , i n c l u d i n g ,
in p a r tic u la r , f i s h e r i e s . 3 I t w a s t h e r e f o r e my i n i t i a l i n
t e n t i o n to p ropose a d e t a i l e d le g a l regim e, p ro b a b ly i n c lu d
ing a b ro a d ly -b a se d i n t e r n a t i o n a l o rg a n iz a tio n , fo r th e con
s e r v a t i o n , management and e x p l o i t a t i o n o f m a rin e f i s h e r y r e
so u rc e s, b alan cin g th e i n t e r e s t s of a l l concerned. That
r e g im e w ould h a v e b e en b a s e d , i n l a r g e m e a s u re , on e x i s t i n g
i n t e r n a t i o n a l la w , p r i m a r i l y a s e n s h r i n e d i n t h e 1982 U n ite d .
N a t i o n s C o n v e n t i o n o n t h e Law o f t h e S e a . P relim in ary in
v e s t i g a t i o n , how ever, r e v e a l e d t h a t a c o n v e n i e n t b a s i s upon
w h ic h s u c h a p r o p o s e d r e g i m e c o u l d b e b u i l t , i n f a c t , was
not av ailab le. In th e f i r s t in s ta n c e , f o r v a rio u s re a s o n s
t h e C o n v e n t i o n d i d n o t by i t s e l f p r o v i d e a s u f f i c i e n t base.**
S e c o n d l y , a n d j u s t a s i m p o r t a n t l y , no c o m p r e h e n s i v e i n t e r
p r e t a t i o n o f t h e p r o v i s i o n s r e l a t i n g t o f i s h e r i e s was a v a i l
a b l e from w hich s p e c i a l i z e d p r o p o s a l s s u c h as t h a t i n i t i a l l y
c o n te m p la te d m ight be d e v e lo p e d . And t h i r d l y , no s y n t h e s i s
R S t J o h n M a c D o n a l d a n d D J o h n s t o n , ’’I n t e r n a t i o n a l l e
g a l t h e o r i e s : new f r o n t i e r s o f t h e d i s c i p l i n e " i n The
S t r u c t u r e a n d P r o c e s s o f I n t e r n a t i o n a l Law: E s s a y s i n
L e g a l P h ilo s o p h y D o c t r i n e and Theory (1983; R S t Jo h n
MacDonald and D J o h n s t o n , e d s ) [ v o l u m e h e r e a f t e r c i t e d
' S t r u c t u r e and P r o c e s s ' ] 1, 7
Of t h e i n t e r n a t i o n a l l a w y e r s m a k i n g t h e p o i n t s e e , e g ,
R A n a n d , ’’ ’ T y r a n n y ’ o f t h e f r e e d o m - o f - t h e - s e a s d o c
t r i n e " ( 1 9 7 3 ) 12 I n t e r n a t i o n a l S t u d i e s 4 1 6 ; W F r i e d m a n n ,
" G e n e r a l c o u r s e i n p u b l i c i n t e r n a t i o n a l l a w " (1 9 6 9 ) 127
RDC 3 9 , 7 4 ; G F i t z m a u r i c e , " T h e F u t u r e o f p u b l i c i n t e r
n a t i o n a l law and o f t h e i n t e r n a t i o n a l l e g a l s y s te m i n
t h e c i r c u m s t a n c e s o f t o d a y : s p e c i a l r e p o r t " i n L i v r e du
C e n t e n a i r e 1 3 7 3 - 1 9 7 3 : E v o l u t i o n e t P e r s p e c t i v e s du
D r o i t I n t e r n a t i o n a l (1973) 196, 260; and C P l a t o n ,
" C o n t i g u o u s z o n e s f o r f i s h i n g p u r p o s e s " (1 9 6 2 ) 37 PLJ
774, 780.
S e e I n t r o d u c t i o n , nn 9 -1 4 and a c c o m p a n y in g t e x t in fra
fo r a d iscu ssio n of th is p o in t.
v
had been attempted of the operations of existing interna
tional fishery organizations from which lessons might be ex
trapolated and principles applied in formulating a fishery
regime for the Pacific.
Given the above difficulties, it is useful to refer to
comments made by Professor Thomas Franck relating to stu
dents engaged in a UNITAR international law clinic that, mu-
tatis mutandis, are relevant to the present situation:
students were not enthusiastic about venturing into the archives; they had coie to
save the world by designing the lodel...prograi. Thus, there arose the large probles
of proving to thei that real »erit resided in taking the petit pas in bridging the gap
between world probless and their solutions. ...Students...really want to work priiar-
ily with ultiiate futures and take great imaginative leaps. ...[IInternational law is
not so futile a subject as to lake it necessary to flee fro* the present in pursuit of
the ultiiate future. ...
In sui, this is a plea for lodesty.3
There is much to be said for Franck’s recommended ap

proach. Rather than attempting the formulation of an ideal
broadly-based Pacific fishery organization at this stage,
then, the present study offers a more modest petit pas
which, following van Asbeck, aims primarily at examining how
the present international law relating to marine fisheries
has come to be what it is and how that law is involved in a
process of reform, extension and intensification to meet
current problems and those of the foreseeable future con
cerning the resource.
Any historical study such as the one undertaken is na
turally selective. Given strict limitations placed on the
length on doctoral dissertations by the Australian National
University, however, it has been necessary to abbreviate
and, in several instances, cull, much additional detail
which, I believe, merited inclusion in the study under more
flexible circumstances. Nevertheless, every effort has been
made to identify and discuss those major developments im
pacting upon and contributing most significantly to the law
as it existed at the end of the Third United Nations Confer
ence on the Law of the Sea.
With the South Pacific so heavily influenced by both
Anglo-Saxon and French legal traditions and so much of the
contemporary law of the sea requiring co-operation between
States (particularly in regard to marine fisheries), inter
est in the future development of the law of the sea in the
region has naturally (and necessarily) generated a closely-
associated interest in French contributions and approaches
to international law in general and the law of the sea in
particular. This is reflected in the numerous French
sources drawn upon in the course of the present study.
And finally, although acknowledging my sympathy for le
gitimate aspirations of Pacific Island States with which I
T Franck, "Remarks [on the subject ’Promoting training

and awareness -- the tasks of education in interna
tional law’]” (1981) 75 PASIL 159, 163, 162
vi
have long been associated, I have tried to be ever cognizant
of the need to remain as detached in my analysis as possi- >
ble, appreciating Professor Richard Falk's observation that
while non-partisanship does not imply neutrality in relation
to the outcome of any international dispute, it does neces
sitate the analysis and appraisal of the developing charac
ter of international law as an impartial expert with a point
of view transcending the national angle of vision.0 Whether
or not I have been successful in this endeavour must, of
course, be for the reader to determine.
R Falk, "Review of 'The Changing Structure of Interna

tional Law’ by Wolfgang Friedmann"(1965) 3 CJTL 256-257
vii
ABSTRACT
This dissertation traces the development of the inter

national law of marine fisheries from its origins to the end
of the Third United Nations Conference on the Law of the Sea
in 1982. Analysis is made of the law's development in terms
of both the pre-existing law and broader aspects of the con
temporary international law-making process. Where necessary,
the law's development is placed in its wider social, econo
mic, political and technological context. The discussion is
divided into three main parts.
The first part sees the development of the law from its
roots in ancient Mediterranean legal systems to the end of
World War II. Discussion focusses on fishery-related as
pects of the elaboration of the concept of maritime juris
diction in medieval law; the 'Mare Liberum' - 'Mare Liberum'
debate between Grotius and Seiden and their successors; the
gradual and widespread coalescence in State practice of
fishery jurisdiction and the three-mile limit of the terri
torial sea in the nineteenth century; and various efforts to
codify the law during the period.
The second part covers the early post-WWII period and
features the rise of the concept of the coastal State's
'special interest' in adjacent fisheries. Discussed in some
detail are the Truman Proclamations relating to fisheries
and the continental shelf which began the modern interna
tional movement towards extended coastal State fishery ju
risdiction; the 1951 Anglo-Norwegian Fisheries case before
the International Court of Justice; international reaction
to the Truman Proclamations; and the deliberations of the
first two United Nations Conferences on the Law of the Sea.
The third part discusses the development of the law
from 1960 to the end of the Third United Nations Conference
on the Law of the Sea (UNCLOS III). Attention focusses on
the spread of special fishery zones after UNCLOS II; the
1974 Fisheries Jurisdiction case before the International
Court of Justice; the proceedings and contribution of the
United Nations Sea-Bed Committee and UNCLOS III to the de
velopment of the law; and State practice from 1973 to 1982.
The study ends with a consideration of the state of the law
at the end of UNCLOS III.
viii
C O N TENTS
VOLUME I
DECLARATION ii
ACKNOWLEDGEMENTS iii
PREFACE iv
ABSTRACT viii
ABBREVIATIONS xv
LIST OF TABLES AND MAP xviii
INTRODUCTION
I. Statement of Purpose 1
II. Methodology and Limitations of the Present
Study 7
III. The Study in Outline
A. The Early Period 12
B. The Middle Period 15
C. The Modern Period 16
PART ONE:
THE EARLY PERIOD: FILLING IN THE VACUUM
CHAPTER ONE: FISHERIES IN INTERNATIONAL LAW: THE BEGINNING

I. Greek, Roman and Medieval Fisheries Law 18
II. Mare Liberum v Mare Clausum 33
A. Hugo Grotius (1583-1645) 37
B. John Seiden (1584-1654) 44
C. Seventeenth and Eighteen Century Searches
for a Compromise Position 51
1. Samuel Pufendorf (1632-1694) 52
2. Cornelius van Bynkershoek (1673-1743) 53
3. Emmerich de Vattel (1714-1767) 57
III. Conclusion 64
CHAPTER TWO: FISHERIES AND THE THREE-MILE LIMIT
I. Introduction 68
II. Thomas Jefferson and the Writings of
Publicists 73
III. Fisheries Conventions and State Legislation 75
A. The 1818 Ango-American Convention 77
B. The Anglo-French Fisheries Convention of
1839 78
C. The 1882 North Sea Fisheries Convention 83
D. State Legislation 86
IV. The Behring Sea Fur Seals Arbitration
A. Background to the Dispute 93
ix
B. The United States Position 96
C. The United Kingdom Position 101
D. The Arbitration Award 104
V. The North Atlantic Fisheries Arbitration
A. Background to the Dispute 109
B. The Arbitral Proceedings and Award 110
VI. Conclusion 115
CHAPTER THREE: EARLY CODIFICATION EFFORTS
I. Introduction 118
II. Private Codification Efforts 120
III. The 1930 Hague Conference
A. The Committee of Experts for the Prog r e s s
ive C odification of International Law 130
B. The 1930 Conference Deliberations 138
IV. Institut de Droit International Re c o n s i d e r a
tion of Fishery Issues 143
V. Conclusion 149
PART TWO:
THE M I DDLE PERIOD: RE C O G N I T I O N OF COASTAL STATE
’SPECIAL INTEREST * IN FISHERIES
CHAPTER FOUR: THE RACE FOR OFFSHORE FISHERIES BEGIN IN

EARNEST: THE TRUMAN PROCLAMATIONS
I. Introduction 151
II. The Truman Proclamations
A. The Development of United States Policy on
Marine Resource Jurisdiction
1. The Fisheries Proclamation 161
2. The Continental Shelf Proclamation 169
B. The Proclamations and International Law
1. The Fisheries Proclamation 172
2. The Continental Shelf Proclamation 178
III. Conclusion 184
CHAPTER FIVE: THE ANGLO-NORWEGIAN FISHERIES CASE
I. Introduction 186
II. The Submissions of the United Kingdom and
Norway 188
III. The Judgment of the Court 196
IV. Significance of the Judgment with Respect to
Fisheries 204
V. Conclusion 217
CHAPTER SIX: COASTAL STATES REACT: A NEW CHALLENGE TO THE

TRADITIONAL LAW OF THE SEA
I. Introduction 219
II . Latin American States and Adjacent Fisheries
A. Unilateral and Sub-Regional Claims 222
B. Regional Consideration of Fishery
Jurisdiction 232
III. Latin American Claims and International Law
A. The Latin Americans Argue Their Case 238
1. The Policy Arguments 241
2. The Juridical Arguments 245
B. Counter-Arguments are Put 261
IV. Conclusion 268
CHAPTER SEVEN: EARLY UNITED NATIONS CONSIDERATION OF

FISHERY ISSUES
I. Introduction 274
II. The International Law Commission
A. The Early Deliberations 275
B. The 1955 International Technical Conference
on the Living Resources of the Sea 286
C. Final Consideration of FisheryIssues 291
D. The ILC's Contribution to the Development
of the International Law of Marine Fisheries
305
III. The 1958 United Nations Law of the Sea
Conference 308
A. The First Committee 312
3. The Second Committee 319
C . The Third Committee 320
D. The Fourth Committee 333
E. Final Discussions in Plenary 335
IV. The Second United Nations Law of the Sea
Conference
A. The Committee of the Whole 339
B. Final Plenary Deliberations 345
V. Conclusions 349
VOLUME II
PART THREE:
THE M O DE R N PERIOD: THE RISE OF 200-MILE ZONES OF
SPECIAL JURISDICTION
CHAPTER EIGHT. THE SPREAD OF SPECIAL FISHERY ZONES
I. Introduction 356
II. The Twelve-Mile Claims
A. Europe 362
B. North America 368
C. Asia and the Pacific 374
III. The Two-Hundred Miles Claims
A. Latin America and the Caribbean
1. National Legislation 381
2. Fishing Disputes and Negotiations 385
3. Regional Initiatives
a) The Montevideo Conference1970 389
b) The Lima Conference 1970 391
xi
c) The Santo Domingo Conference 1972 393
B. Africa 399
1. National Legislation 401
2. The Search for a Common Position 405
IV. Conclusion 411
CHAPTER NINE: THE ICELANDIC FISHERIES CASE
I. Introduction 415
II. Background to the Dispute 416
III. The Legal Proceedings
A. The British and German Arguments 419
B. The Decision of the Court 427
1. The Exclusive Fishing Zone 428
2. Preferential Fishing Rights 433
IV. Observations 437
A. The Exclusive Fishing Zone 439
B. Preferential Fishing Rights 445
V. Conclusion 454
CHAPTER TEN: THE SEA-BED COMMITTEE
I. Introduction 456
II. Sea-Bed Committee Deliberations
A. The Early Years 457
B. Substantive Fishery Discussions Begin
(1971) 461
C. Fisheries and the Exclusive Economic
Zone (1972) 471
D. Fishery Proposals Proliferate (1973)
1. Coastal State Proposals for 200-mile
zones 482
2. Other Extended Economic Zone Proposals 487
3. Specific Fishery Proposals 490
4. The Special Case of Anadromous Species 492
5. The General Debates 493
III. Observations
A. The Main Problem Areas of the Law 496
1. Allocation 497
2. Conservation 498
3. Full Utilization of Resources
4. Economic Efficiency
5. Marine Scientific Research 500
6. Dispute Settlement
B. The Committee and the Development of the
Law of Marine Fisheries 501
IV. Conclusion 511
CHAPTER ELEVEN: THE THIRD UNITED NATIONS CONFERENCE ON

THE LAW OF THE SEA
I. Introduction 512
II. Conference Proceedings
A. The First Session (1973) 513
B. The Second Session (1974) 514
1. General Statements in Plenary 516
xii
2. Committee Deliberations
a) the Second Committee 519
b) the Third Committee 531
3. Dispute Settlement 534
4. Observations 535
C. The Third Session (1975) 536
1. The Second Committee
a) Introduction 537
b) Fishery Proposals 538
c) The Informal Single Negotiating
Text (ISNT) 542
2. The Third Committee 548
4. Observations 551
D. The Fourth and Fifth Sessions (1976)
1. Introduction 553
5. Observations 563
E. The Sixth Session (1977) 564
4. Observations
F. The Seventh Session (1978) 574
1. The Negotiating Groups
a) NG 4 577
b) NG 5 581
2. The Committees
a) C.II 584
b) C.III 585
3. Observations 586
G. The Eighth Session (1979)
1. The Negotiating Groups 587
2. The Committees 588
3. Observations 590
H. The Ninth Session (1980)
3. Observations
I. The Tenth Session (1981) 595
J. The Eleventh Session (1982) 597
K. The Conference Conclusion 600
III. Observations
A. General Remarks on the Convention 603
B. The Convention Regime and Contemporary
Fishery Problems
1. Conservation and management 607
2. Exploitation 616
3. The Peaceful Use of MarineFisheries 632
IV. Conclusion 638
CHAPTER TWELVE: STATE PRACTICE (1973-1982) AND

INTERNATIONAL LAW
xiii
I. Introduction 640
II. State Practice (1973-1982)
A. Fishing Activities 641
B. National Legislation 647
G. Bilateral Agreements 658
D. International FisheryOrganizations 661
III. The International Law ofMarineFisheries:
1982 666
IV. Conclusion 688
EPILOGUE: WHITHER THE INTERNATIONAL LAW OF MARINE

FISHERIES 690
* X X X *
ANNEXES
I . Evolving ConceptsofFisheryManagement 693

II. ILC Draft Articles on Fisheries 701
III. 1958 Geneva Convention on Fishing and Con
servation of the Living Resources of the
High Seas 704
IV. A Note on the Interpretation of the 1982
United Nations Convention on the Law of
the Sea 712
BIBLIOGRAPHY 721
xiv
ABBREVIATIONS
ABA American Bar Association

ABAJ American Bar Association Journal
AFAR Australian Foreign Affairs Record
AFDI Annuaire francais de droit international
AHR American Historical Review
AIDI Annuaire de 1 ’Institut de Droit International
AJIL American Journal of International Law
ALJ Australian Law Journal
ASSOC Association
B Bulletin
BCICLJ Boston College International and Comparative
Law Journal
BCICLR Boston College International and Comparative
Law Review
BFSP British and Foreign State Papers
BJIL Brooklyn Journal of International Law
BYIL British Yearbook of International Law
CEP Chile, Ecuador and Peru
CJTL Columbia Journal of Transnational Law
CL J Cambridge Law Journal
CLR Commonwealth Law Reports [Australia]
Comp Comparative
CTS Consolidated Treaty Series (C Parry, ed)
CWILJ California Western International Law Journal
CYIL Canadian Yearbook of International Law
DMF Droit maritime francais
doc document
DCSB Department of State Bulletin [United States]
ECHR European Court of Human Rights
ed editor
eds editors
EEZ exclusive economic zone
EFZ exclusive fisheries zone
EPIL Encyclopaedia of Public International Law
EPL Environmental Policy and Law
FAO Food and Agriculture Organization
FRUS Foreign Relations of the United States
[United States]
GDS geographically-disadvantaged States
GYIL German Yearbook of International Law
HILJ Harvard International Law Journal
HMS highly migratory species
HR House of Representatives
IATTC Inter-American Tropical Tuna Commission
ICCAT International Commission for the Conservation
of Atlantic Tunas
ICNAF International Commission for the Northwest
Atlantic Fisheries
ICJ International Court of Justice
ICLQ International and Comparative Law Quarterly
IDI Institut de Droit International
IFOs international (including regional) fishery
organizations
xv
IJIL Indian Journal of International Law
I L International Law
ILA International Law Association
ILM International Legal Materials
ILR International Law Reports
IYIA Indian Yearbook of International Affairs
J Journal
JAG J Judge Advocate-General Journal
JAIL Japanese Annual of International Law
JDI Journal de droit international
JMLC Journal of Maritime Law and Commerce
LCP Law and Contemporary Problems
L J Law Journal
LLGDS land-locked and geographically-disadvantaged
States
LLS land-locked States
L Q Law Quarterly
LQR Law Quarterly Review
L R Law Review
MEY maximum economic yield
MLR Modern Law Review
MPM Marine Policy and Management
MSM Marine Studies and Management
MSY maximum sustainable yield
NAFO Northwest Atlantic Fisheries Organization
NEAFC Northeast Atlantic Fisheries Commission
NILR Netherlands International Law Review
NTIR Nordisk Tidsskrift for International Ret.
Acta Scandinavica Juris Gentium
NYUJILP New York University Journal of International
Law and Politics
NZEAR New Zealand External Affairs Review
NZULR New Zealand Universities Law Review
OAS Organization of American States
OAU Organization of African Unity
ODILA Ocean Development and International Law
OED Oxford English Dictionary
OSY optimum sustainable yield
PASIL Proceedings of the American Society of
International Law
PCIJ Permanent Court of International Justice
PL J Philippines Law Journal
PYIL Philippines Yearbook of International Law
Q Quarterly
R Review/Revue
RBDI Revue Beige de droit international
RDC Recueil des Cours, Hague Academy of
International law
RDI Revue de droit international
RGDIP Revue general de droit international public
RIRI Revue iranienne des relations internationales
SBC United Nations Sea-Bed Committee
SCLR Southern California Law Review
SDLR San Diego Law Review
Soc Society
SOFA The State of Food and Agriculture [FAQ]
xvi
SPFFA South Pacific Forum Fisheries Agency
SYIL Soviet Yearbook of International Law
TAC total allowable catch
TAFS Transactions of the American Fisheries
Society
Themis Revue juridique themis de l'Universite de
Montreal
TILJ Texas International Law Journal
Trans Transactions
trans translator
TULR Tasmanian University Law Review
U university
UCLALR University of California at Los Angeles Law
Review
UDLJ University of Detroit Law Journal
UN United Nations
UNCLOS United Nations Conference on the Law of the
Sea
UNGA United Nations General Assembly
UNGAOR United Nations General Assembly Official
Records
UNLS United Nations Legislative Series
UNTS United Nations Treaty Series
VJIL Virginia Journal of International Law
VLR Virginia Law Review
VUWLR Victoria University of Wellington Law Review
WLR Washington Law Review
YFS Yearbook of Fishery Statistics [FAO]
YILC Yearbook of the International Law Commission
YUN Yearbook of the United Nations
YWA Yearbook of World Affairs
ZaöRV Zeitschrift fur Ausländisches Öffentliches
Recht und Völkerrecht
xvii
TAB LE S
after page
1. International Fishery Law: Theatres 10

of Development
2. State Participation at International Con- 138
ferences on the Law of the Sea
U)
World Marine Catches (1938-1975) 155

jn
Votes on Fishery Proposals: 316

UNCLOS I and II
er» cn
UNCLOS III Sessions and Texts 513

UNCLOS III Fishery Proposals (Caracas) 521
Selected Informal Fishery Articles 543
nj
(Geneva Session)
v d go
Selected High Seas Fishery Proposals (Geneva) 547

Selected Scientific Research Proposals 549
(Geneva)
10. Law of the Sea Convention: Selected Provisions 582
11. Chronology of Claims to Maritime Fishery 647
Jurisdiction (1958-1982)
MAP
Canadian Maritime Boundaries: Atlantic Coast 372
xviii
INTRODUCTION
"If at one tiie i t seeied likely that the historical spirit (the spirit which strove
to understand...law of all ages and cliies) was fatalistic and iniaical to refon,
that t iie already lies in the past__ Nowadays we aay see the office of historical re
search as that of explaining, and therefore lightening, the pressure that the past
lust exercise upon the present and the present upon the future. Today we study the
day before yesterday, in order that yesterday aay not paralyze to-day, and to-day aay
not paralyze to-aorrow."
Frederic Maitland12
I . S ta te m e n t of P u rp o se
On 1 0 D ecem ber 1982, th e F in a l A ct o f th e T h ird U n ite d

N a tio n s C o n feren ce on th e L aw o f th e Sea (UNCLOS I I I ) and
th e U n ite d N a tio n s C o n v e n tio n on th e L aw o f th e Sea (L O S C )
w ere opened fo r s ig n a tu re .3 A d d re ssin g th e c o n c lu d in g ses
sio n s of th e C o n feren ce, H is E x c e lle n c y Mr J a v i e r P erez de
C u e lla r, th e U n ite d N a tio n s S e c re ta ry -G e n e ra l, spoke of th e
C o n v e n tio n as h a v in g irre v o c a b ly tra n sfo rm e d in te rn a tio n a l
law so far as th e seas w ere c o n c e rn e d ;3 w h ile A m bassador
Tommy K o h , th e P re sid e n t of th e C o n feren ce, e ffu siv e ly con
c lu d e d th a t th e in te rn a tio n a l c o m m u n ity had a c h ie v e d its
fu n d a m e n ta l o b je c tiv e of p ro d u c in g th e firs t c o m p re h e n siv e
c o n stitu tio n fo r th e oceans th a t had not o n ly su c c e ssfu lly
ac co m m o d a te d th e c o m p e tin g in te re s ts of a ll S ta te s but w h ic h
w o u ld a ls o sta n d th e te st of tim e .'*
C o m p re h e n siv e th e C o n v e n tio n c e rta in ly is. C o n ta in in g
320 a rtic le s p lu s n in e annexes, th e law of th e sea tre a ty
d e a ls w ith such d iv e rse su b je c ts as tra ffic se p a ra tio n
schem es fo r sh ip s in s tra its and m in in g on th e ocean flo o r
beyond th e lim its of n a tio n a l ju ris d ic tio n .3 One o f th e
m ost im p o rta n t p a rts of th e C o n v e n tio n fo r th e b ro ad er in -
1 A Survey o f the Century , I I I The Collected Papers of

Frederic William Maitland ( 1 9 1 1 ; H F i s h e r , e d ) 4 3 8 - 4 3 9
2 UNCLOS I I I docum ent A /C o n f. 6 2 /P V .1 9 3 , at 2
3 Ibid 1 3 - 1 5
Ibid 2 2 , and A /C o n f . 6 2 /P V .1 8 5 , at 16
2
ternational community is the regime established to govern
fishery resources. With demand for fish estimated to equal
or perhaps even exceed supply by the end of the century,0, it
is imperative that the international law relating to living
marine resources contributes effectively to the management
and optimal utilization of those resources for mankind as a
whole.'7 But does the regime, in fact, accommodate the in
terests of all States with respect to the management and ex
ploitation of fisheries, and will it stand the test of time
as Ambassador Koh claims to be the case for the Convention
in general?
Before that question can be considered, one must first
answer a more fundamental question: what is the contemporary
international law governing living marine resources? While
initially it might be thought necessary simply to consult
the text of the 1982 Convention for a clear and complete
statement of the law on the subject, that is not the case.
As Professor Robert Jennings states, the Convention "is not
a document for the layman[;]...one needs even inside
knowledge as well as expertise to disentangle the very dif
ferent categories of content".® Throughout the Convention,
The Final Act of the Conference appears in Conference

document A/Conf.62/121, dated 21 October 1982, while
the Convention is found in document A/Conf.62/122,
dated 7 October 1982. They are conveniently found in
(1982) 21(6) ILM at 1245 and 1261, respectively.
See, eg, M Robinson, "World fisheries to 2000: supply,
demand and management"(1980) 4 Marine Policy 19, 26;
and by the same author, Prospects for World Fisheries
to 2000 (FAO Fisheries Circular No 722, Rev 1; June
1982) 7, 10.
Robinson (ibid 2) writes that only a part of the pro

jected increase in fish catch to the end of the century
will be realizable through increased fishing and per
haps up to 50 percent will be achieved only through
better management. See in this regard Ch 12, n 6 and
accompanying text infra.
R Jennings, "What is international law and how do we
tell it when we see it?"(1981) 37 Annuaire suisse de
droit international 59, 82. The reference to "inside
knowledge" being required for the proper understanding
of the Convention raises the possibility of there hav-
3
for example, specialized terms are employed but left unde
fined, demanding for their full appreciation an understand
ing of negotiations and agreements reached either by the
Conference or in earlier extraneous deliberations.*^ As
well, certain textual provisions stipulate only general
principles, the applicability of which depends upon specific
circumstances and due recognition being accorded Conference
negotiating history, legal precedents and norms not them
selves contained in the LOSC.XO In addition, some provi
sions give little direction as to how international co-oper
ative mechanisms should or must be formulated so as to con
form either to other Convention provisions or separate in
ternational obligations.11
The situation is further complicated in that the Con
vention attempts to both codify and develop the law of the
sea, while at the same time making no claim to being an ex
haustive statement of the law.12 It is thus necessary to
ing been 'informal' or even 'secret' agreements reached

by negotiators with respect to the interpretation of
certain provisions. This will be discussed below (see
Annex IV infra).
One such term is "optimum utilization" in reference to

living marine resources, found in Article 62(1) of the
Convention. See Ch 11, n 245 and accompanying text
infra.
See, eg, Articles 69 and 70, relating to the rights of

land-locked and geographically-disadvantaged States,
respectively, to fishery resources. See Ch 11, nn 271ff
and accompanying text infra.
Article 64, eg, simply imposes on certain States a duty

"to co-operate directly or through appropriate interna
tional organizations" for fishery-related purposes,
without providing details on how that must or should be
accomplished. See Ch 11, nn 233ff and accompanying
text infra.
The Convention's Preamble affirms that "matters not

regulated by the Convention continue to be governed by
the rules and principles of general international law” .
See also in this regard closing comments of the Presi
dent of the Conference, Ambassador Koh (A/Con.62/PV.
193, at 22).
4
lo o k beyond th e C o n v e n tio n to in q u ire w h e th e r o th e r le g a l
p r e s c r i p t i o n s 13 im p a c t upon th e tre a ty p ro v is io n s .
A nd fin a lly , g iv e n th e u n p re c e d e n te d d u ra tio n and na
tu re of th e UNCLOS I I I d e lib e ra tio n s it is a ls o im p o rta n t to
c o n s id e r w h e th e r S ta te p ra c tic e d u rin g th e decade of C o n fe r
ence n e g o tia tio n s has a lre a d y p ro v ed a s u ffic ie n t g u id e fo r
in te rp re ta tiv e p u rp o se s or has even se rv e d to g e n e ra te cus
to m a ry in te rn a tio n a l la w b in d in g on n o n -p a rtie s . In th is
re g a rd one m ay u s e f u l l y re c a ll Dr T h irlw a y ’s o b s e rv a tio n
th a t
so far fro« supplanting custoiary law, and reducing its field of operation to a nini-
■ui, the codifying of great tracts of international law will, on account of the prac
tical and political difficulties of amending «unilateral treaties, whether codifying
or otherwise, give over the developient of international law alaost entirely into the
hands of custoi, operating upon and beyond the codifying tre a tie s.1**
In su m , th e n , an u n d e rs ta n d in g of th e c o n te m p o ra ry in
te rn a tio n a l la w g o v e rn in g m a rin e fis h e rie s dem ands an a p p re
c ia tio n of th e la w beyond UNCLOS I I I and th e b a s ic tre a ty ,
A c c o rd in g t o P r o f e s s o r O s c a r S c h ä c h te r ("T h e n a tu r e an d
p r o c e s s o f l e g a l d e v e lo p m e n t i n i n t e r n a t i o n a l la w " i n
S tr u c tu re and P ro c e ss, supra P re fa c e , n 2, 745, 758-
759) ,
International legal prescriptions...can be divided for analysis into

three types of propositions: rules, principles and ends. Rules (in this
special sense) are noras that dictate a specific result. They either ap
ply to a given set of facts or not. A particular rule aay...have ex
ceptions: these exceptions fora part of the rule__
Principles, in contrast, lack this eleaent of definiteness.
They do so, in part because of their generality and abstractness. Their
te n s have a wide range of application....[P]articular situations are
covered by aore than one principle. ...The technique of balancing re
quires an evaluation of the iiportance of the coapeting interests in a
particular context. ...
A third type of legal proposition is the stateaent of an author
itative goal or purpose [ e g , peace, to protect diploaats]. These aiis
differ froa principles in that they do not directly give rise to claias
to entitlement. Standing alone, they do not provide a solution of a le
gal character. Linked to 'binding' principles and rules, they are appro
priate standards to justify choices aaong opposing principles.
H T h ir lw a y , I n t e r n a t i o n a l C u s to m a r y Law a n d C o d i f i c a
t i o n (1 9 7 2 ) 146 ( e m p h a s is a d d e d ) ; c f , eg , F i tz m a u r i c e ,
su p ra P re fa c e n 3 , 146; and S c h ä c h te r, su p ra n 13, 784
5
both in time and space. The primary purpose of the present
study, therefore, is to contribute to that understanding by
tracing the development of the major legal principles gov
erning living marine resources over the centuries and their
manifestation in and impact upon the regime enshrined in the
1982 Convention.
To date, such a detailed study has not appeared. Nu
merous texts on the law of the sea published over the years
have either treated the norms relating to marine fisheries
in very broad terms,19 or, as in the case of Professor Percy
Fenn's, The Origin of the Right of Fishery in Territorial
W a t e r s , significantly predate the momentous events of the
past two decades and must be considered in that light. Many
essays have been published in recent years relating to ma
rine fisheries but, valuable though many of them are, all
have either dealt with very specific aspects of the law
rather than the law as a whole, or have paid only passing
attention to earlier developments. Probably the most mon
umental legal work on marine fisheries, Johnston's The In
ternational Law of Marine Fisheries: a Framework for Policy-
Oriented Inquiries, presents a "value-based analysis" of
contemporary fishery problems^ rather than focussing on the
See, eg, G Gidel, Le Droit international public de la

mer (1981; reimpression anastatique de 1'edition Cha-
teauroux 1932); C J Colombos, The International Law of
the Sea (1967; 6th rev ed); and D O'Connell, The Inter
national Law of the Sea (1982) i.
Fenn's work was published in 1926. Other works which,

while dated, make substantial contributions to the in
ternational law on the subject include T Fulton, The
Sovereignty of the Sea (1911); and F Garcia Amador, The
Exploitation and Conservation of the Resources of the
Sea: a Study in Contemporary International Law (1959).
See, eg, M Dahmani, "Access of land-locked and geo

graphically-disadvantaged States to the fisheries re
sources of the EEZ under the new convention on the law
of the sea"(1983) 10 MPM 265.
See, eg, T Scovazzi, "Explaining exclusive fishery

jurisdiction"(1985) 9 Marine Policy 120.
6
development of the law over time as is being attempted
herein.
It has been widely recognized that one of the most ba
sic problems facing contemporary international law relates
to the identification of legal norms and the nature of the
law-making process itself. As Jennings observes with re
spect to UNCLOS III,
in international law, there tends to be a confusion of the ways of identifying what is

law and what is not law, and the ways of waking and changing law. It is no sur
prise...that the experience in [UNCLOS III] should be an indispensiable [sic] subject
of study for any inquirer into the nature and sources of international law .3 0
An exhaustive analysis of the matter is beyond the

scope of the present work. However, a secondary purpose of
the latter is to offer some observations on both contempo
rary international law and the modern law-making process in
sofar as conclusions can be drawn from the development of
the legal regime of marine fisheries. The topic is ideally
suited for the making of such comments in that, as will be
seen, the development of the law throughout history has
brought into play a wide range of law-making processes with
their attendant problems of norm identification.31
D Johnston, The International Law of Marine Fisheries:

a Framework for Policy-Oriented Inquiries (1965) x v .
It is known that the work was reprinted with a new In
troduction in 1987. Although it has not been sighted
by the present writer, it is understood not to have
dealt with the long-term development of the law more
than did the original edition.
Jennings, supra n 8, 79. On the general questions of

the identification of legal norms and the nature of the
law-making process see, eg, R Falk, supra Preface, n 1,
253-254, and by the same author, "New approaches to the
study of international law"(1967) 61 AJIL 477 [hereaf
ter cited 'New Approaches'], 479; A Fatouros, "Partici
pation of the 'new' States in the international legal
order of the future" in The Future of the International
Legal Order (1969; R Falk and C Black, eds) i, 317,
355; Fitzmaurice, supra Preface, n 3, 197, 208, 250-
251, 263; C Gray, "International law 1908-1983" (1983)
3 Legal Studies 267, at 280; W M Reisman, "Internation
al law-making: a process of communication" (1981) 75
PASIL 101, 103; and Q Wright, "The strengthening of
international law"(1959) 98 RDC 1, 131.
7
II - Me t h o d o l o g y a n d L i m i t a t i o n s of th e P r e s e n t Study
It is im p erativ e at th e o u tset to d is tin g u is h conceptu

a lly betw een i n t e r n a t i o n a l law a s an e l e m e n t o f i n t e r n a t i o n
al relatio n s and i n t e r n a t i o n a l law a s a s c i e n c e , and t h e o
ries a b o u t b o t h . 23 U nderstood in th e form er, prim ary,
sense, in tern atio n al law d o e s n o t e x i s t in and f o r itse lf.
R ather, as P r o f e s s o r Q uincy W rig h t o b s e r v e s , it is "a p r a c
tic a l m ethod o f d e a l i n g w i t h in tern atio n al p r o b l e m s " . 23 As
such, th erefo re, th e trad itio n al, fo rm alistic co n sid eratio n
of in tern atio n al law a s a s e t of ru le s op eratin g in a clo sed
leg al system divorced from c o n te m p o ra r y i n t e r n a t i o n a l real
ity lead s only to sterile , u n realistic resu lts in cap ab le of
useful a p p l i c a t i o n . 2 ** If one i s both to id en tify th e in ter-
S ch ach ter, s u p r a n 13, 784-785
C f , New A p p r o a c h e s , s u p r a n 2 0 , 4 7 7 ; G S c h w a r z e n b e r g e r ,
T h e F r o n t i e r s o f I n t e r n a t i o n a l Law ( 1 9 6 2 ) 4 3 ; J K u n z ,
"On t h e t h e o r e t i c a l b a s i s o f t h e l a w o f n a t i o n s " ( 1 9 2 5 )
10 T r a n s o f t h e G r o t i u s S o c 1 1 5 ; a n d M a r i o n M u s h k a t
("T h e d e v e l o p m e n t o f i n t e r n a t i o n a l law and i t s s c i e n c e "
( 1 9 8 1 ) 20 I n t e r n a t i o n a l P r o b l e m s 2 1 , 2 2 ) who o b s e r v e s
th at
It is not simple to differentiate between international law and its sci

ence ( i . e . , the scholarly interpretation of its principles). This was,
indeed, iipossible for centuries, until new developients in international
law were proaoted by the growth of aultilateral instruaents, the expan
sion of the world coaaunity, the creation of international organizations,
and the codification undertaken by intergovernaental organs.
W r i g h t , s u p r a n 2 0 , 2 8 6 ; c f , C J e n k s , T h e Common Law o f
M ankind (1958) 121; W M R eism an, " I n t e r n a t i o n a l law and
o r g a n i z a t i o n f o r a new w o r l d o r d e r : t h e U p p s a l a m o d e l ”
i n The S p i r i t o f U p p sa la (1 9 8 4 ; A G r a h l- M a d s e n and J
To m an, e d s ) 2 7 , 2 8 ; a n d S c h ä c h t e r , s u p r a n 1 3 , 7 5 4
C f, A F a t o u r o s , " I n t e r n a t i o n a l law and t h e T h i r d W orld"

( 1 9 6 4 ) 50 V i r g i n i a L R 7 8 3 , 7 8 5 ; J K u n z , " T h e c h a n g i n g
s c i e n c e o f i n t e r n a t i o n a l l a w ” ( 1 9 6 2 ) 56 A J I L 4 9 1 , 4 9 5 ;
8
n a tio n a l la w re la tin g to m a rin e fis h e rie s an d m ore r e a l i s t i
c a lly to assess th e l a w ’s c a p a c i t y to c o n trib u te to th e es
ta b lish m e n t of e ffe c tiv e m anagem ent and e x p l o i t a t i o n ar
ra n g e m e n ts it m ust be e x a m in e d from a b ro ad er, in s titu
t i o n a l 3* p e rs p e c tiv e ; th a t is ,
Like all legal systeis, international law is not a fixed collection of iaiutable
rules, i t is the dynaiic expression of a legal order, the external fonulation of con
stantly changing relations along the active participants in international law. ...
What is important, therefore, is whether and how far the rules and procedures of clas
sical international law do correspond to present-day conditions and needs__ =*■
C o n sid e ra tio n w ill th u s be p a id to b o th th e ru le s and

p rin c ip le s of in te rn a tio n a l la w and th e v a rio u s o p e ra tio n a l
a c tiv itie s and p ro ced u res by w h ic h th a t la w is a p p lie d and
a lte re d to m eet c h a n g in g c ir c u m s ta n c e s .27 That w ill re q u ire
b o th a te le o lo g ic a l and d e o n t o l o g i c a l a n a ly sis of th e Con-
M u s h k a t , s u p r a n 2 2 ; a n d New A p p r o a c h e s , s u p r a n 2 0 ,
478. S ee g e n e r a l l y , W S c h i f f e r , The L e g a l C om m unity o f
M ankind (1 9 5 4 ), and C d e V is s c h e r , T h e o ry and R e a l i t y
i n P u b l i c I n t e r n a t i o n a l Law ( 1 9 6 8 ; r e v e d ; P C o r b e t t ,
t r a n s ) e s p pp 1 3 7 -1 4 3 .
’’I n s t i t u t i o n a l ” i n t h e s e n s e e m p l o y e d i n t h e t e x t i s
used to d e s c r ib e "an e s t a b l i s h e d . . . u sag e or p r a c t ic e
. . . i n th e p o l i t i c a l or s o c ia l l i f e of a p e o p le ” r a th e r
th a n "an e s ta b lis h m e n t, o r g a n iz a tio n , o r a s s o c ia tio n ,
i n s t i t u t e d f o r t h e p r o m o t i o n o f som e o b j e c t ” { O x f o r d
E n g l i s h D i c t i o n a r y [ OED]( 1 9 3 3 ) s v " I n s t i t u t i o n " ) .
F a t o u r o s , s u p ra n 20, 3 1 8 -3 1 9 ; c f , A G ra h l-M a d se n , " I n

t e r n a t i o n a l l a w a t t h e c r o s s r o a d s ” i n T h e S p i r i t o f Up
p s a la , su p ra n 23, 16, 21; K unz, su p ra n 24, 491; B
P a r a d i s i , "La dogm e e t l ' h i s t o i r e v i s - a - v i s d e 1 ' h i s t o -
r i o g r a p h i e j u r i d i q u e " (1959) A r c h i v e s d e P h i l o s o p h i e 2 3 ,
2 7 ; a n d B R o l i n g { I n t e r n a t i o n a l Law i n an E x p a n d e d
W o r l d ( 1 9 6 0 ) x ) who w r i t e s p i t h i l y : " l a w i s n o t a c o n
s t a n t i n a c o m m u n ity , b u t a f u n c t i o n " .
C f , New A p p r o a c h e s , s u p r a n 2 0 , 4 7 7 ; S c h ä c h t e r , s u p r a
n 1 3 , 7 4 6 ; a n d W r i g h t { s u p r a n 2 0 , 2 6 9 ) who a r g u e s t h a t
We must pursue both the concrete and abstract methods for developing in
ternational law if we are to get results. We aust conceive international
law, on the one hand, as a generalization of the processes which are be
ing used to adjust controversy and conflict aaong nations, and, on the
other hand, as a precise expression of the values which all States share
and consider so important that they wish thea objectively aaintained.
9
v en tio n , o th er relev an t agreem ents and cu sto m ary in te rn a
tio n a l law ; th at is, lo o k in g at th e corpus of leg al norm s
and procedures in term s of both ends agreed upon and the
rig h ts and d u tie s of in te rn atio n a l acto rs w ith respect to
m arine fish e rie s.
G iven th e dynam ic n atu re of th e in tern atio n al leg al
system and its rela tio n to in te rn atio n a l so ciety as a w hole,
th at ex am in atio n can be made m o st illu m in atin g by e m p lo y in g
th e h isto ric a l m ethod in d icated above and m oving beyond the
s tric tly leg al co n tex t w here necessary for ex p lan ato ry pur
poses. P rofessor D aniel O 'C o n n e ll ex em p lifies th at w id ely -
shared view in h is statem en t th at deserves to be c ite d in
e x te n so :
except perhaps in the construction of hard and fast rules of treaty law, the enuncia
tion of a rule of custoaary law, especially of the unstable variety, cannot be exclu
sively a la tte r of counting the nuiber of acting and approving States, or restating a
nuiber of facts about actions and counter-actions, for the process is not of estab
lishing the record but of discerning the eaergence and operation of a principle of
conduct. Nor is that discerment independent of the ju ristic antecedents. For this
reason, the historical aethod of investigating the law of the sea is the only valid
one. It is iipossible to evaluate a situation of action and inaction isolated in ti*e
and space: the situation is a product, not only of historical forces but also of the
history of the law. ...
Since a relatively long period of instability and controversy in the law of
the sea i s. ..t o be anticipated [now that negotiations at UNCLOS III have been con
cluded], i t is iiportant that the evaluation of points of conflict have the benefit of
clear perceptions as to the derivations of particular doctrines and rules, their his
torically conditioned scope and content, their subjection to the tests of experience
and their resultant intellectual authenticity. It is the process that is significant,
not isolated events. ...The historical aethod not only assists in the grasp of the way
law and diplomacy, doctrines and policy, continuously interact, but i t alone enables
one to understand the technical problei of deteraining the point at which proposals
becoae law, claiis change the rules, lex ferenda becoaes lex la ta .= s
O ’C o n n e ll, su p ra n 15, 37, 38; c f, P G uggenheim , T r a ite

de d r o i t in te r n a tio n a l p u b lic (1967; 2nd ed) v o l i , v;
A M i l l e r , "The a d e q u a c y o f i n t e r n a t i o n a l law i n m e e tin g
t h e c h a l l e n g e s o f t h e p r e s e n t e r a " ( 1 9 6 2 ) 8 H ow ard L J
8 6 , 8 7 ; New A p p r o a c h e s , s u p r a n 2 0 , 4 7 9 ; S c h w a r z e n b e r -
g e r , s u p r a n 2 2 , e s p Ch 3 ; a n d M u s h k a t ( s u p r a n 2 2 , 2 2 )
who m a k e s t h i s p o i n t w i t h r e s p e c t t o i n t e r n a t i o n a l
a g re e m e n ts and j u d i c i a l d e c i s i o n s :
The study of international law should not be liaited to foraalistic expo

sitions and the analysis of the text of international instruaents and
judgaents; their origins aay be iaportant to the understanding of their
content and character, and of the reasons for their becoaing outdated and
overgoing change.
10
For present purposes, appreciation of the international

law relating to marine fisheries necessitates the considera
tion under the general umbrella of "historical forces" re
ferred to above of not only those forces generated through
political power processes initiated by international actors
but also selected biological, economic, social, scientific
and technological developments,2^ as each have, to varying
degrees and at different times, influenced the character of
that law. Those developments will be considered, however,
only to the extent necessary to understand the international
legal implications and resultant changes.
Besides recognizing the important influence of the
above factors on the changing character of the law, it is
also important to appreciate that the modern international
law of fisheries is not simply the product of a simple lin
ear process in which individual States have advanced unilat
eral claims to fishery resources, ultimately culminating in
the law as it applies today. Rather, as will be seen, the
law has developed in three, conceptually distinct but
closely-related 'theatres': State practice, international
conferences, and judicial or arbitral proceedings (see Table
1). Developments in State practice have not ceased while
Recent attempts to supplenent or rebuild...the law of the

sea...by altering the principles of the international systea can be prop
erly surveyed only in the light of siiilar endeavours in the past. ...
[IInternational law aust be perceived in a dialetical Banner,
connecting its present foras with those of the past and the role of this
connection in overcoaing the disparities between political realities and
their legal conceptualization.
For a brief discussion of dialectical analysis of in

ternational law see C Chaumont, "Methode d 'analyse du
droit international"(1975) 11 RBDI 32.
For a general discussion concerning the impact of sci

entific and technological developments on international
law and the law of the sea see, eg, C W Jenks, "The new
science and the law of nations"(1968) 17 ICLQ 327; E
Miles, "Technology, ocean management, and the law of
the sea: some current history"(1969) 46 Denver L J 240;
and C Rousseau, "Progres scientifique et evolution de
droit international"(1954) 5(2) Impact: science et
societe 75.
TABLE 1: INTERNATIONAL FISHERY LAW: THEATRES OF DEVELOPMENT
Date State Practice/Writings I Conferences/Multilateral Judicial/Arbitral
of Publicists Codification Activities Proceedings
THE EARLY PERIOD
c3 30BC Aristotle and Greek
City States
clOOAD Institutes of Gaius
cl25 Marcianus
533 Institutes and Digest
of Justinian
c 1175 Glossators
C1250 Italian City States
C1350 Bartolus and Post
Glossators
C1375 Baldus
1494 Treaty of Tordecillas
cl 54 0 Alphonso de Castro
C1560 Fernandos Vazquez
1609 Fisheries Proclamation
of James I
Grotius' Mare Liberum
1613 Welwood
1625 Grotius' De Jure Belli
ac Pacis
1635 Seiden's Mare Clausum
1648 Peace of Westphalia
1672 Pufendorf's De Jure Natu
rae et Gentium
1702 B y n k e r s h o e k 's De Dominio
Maris
1758 Vattel's Le Droit
des gens
1793 Thomas Jefferson
1795 Azuni
1814 The 'European C o n c e r t '
1818 Anglo-American Convention
1839 Anglo-French Fisheries
Convention
1882 North Sea Fisheries
Convention
1887 "ILA activities
1891 IDI activities
1893 Behring Sea Fur Seals
Arbitration
1894
1895
1910 North Atlantic Fisheries
Arbitration
1922 ILA activities ,
1924 League of Nations Expert
Committee
1925 IDI activities
1929 IDI activities
1930 Hague Conference
1936
THE MIDDLE PERIOD
1945 Truman Proclamations
1947 Declaration of 200-Mile
zones by Chile/Peru
1949 ’ILC activities
1951 Anglo-Norwegian
Fisheries Case
1952 Declaration of Santiago
1954 Principles of Mexico
1956 «/C. Trujillo Declaration
1958 UNCLOS I
1959 Iceland's 12-mile
fishery zone
1960 ________ UNCLOS II
THE MODERN PERIOD
1964 London Fisheries
Convention
1960s Spread of EEZs/EFZs
(see Table 11)
1969 UN SBC activities
1970 Montevideo Declaration
Lima Declaration
1971 OAU Declaration
1972 Santo Domingo Dec.
Yaounde Recommendations
1973 UNCLOS III opens
1974 (see Table 11) Icelandic Fisheries Case
c 197 6 General acceptance of
200-mile zones
(see Table 11)
1982
11
those in the other theatres unfolded. For the purpose of
the present exposition, however, it has proved necessary to
isolate particular conferences and judicial or arbitral pro
ceedings for individual consideration. Where appropriate,
reference will be made to developments in one theatre re
lated to others elsewhere.
That having been said, however, it must be explained
that in the interests of brevity it has been necessary to
place certain restrictions on the present study. Attention
will focus on the primary questions of allocation of living
marine resources, conservation and management, and the
rights and interests of the international community gener
ally in those resources. Emphasis will be placed on inter
national law as it relates to marine nektonic demersal and
pelagic fishery species,30 as they are by far the most eco
nomically significant. Legal developments concerning ben
thic species, cetaceans and other marine mammals such as fur
seals, the development of international fishery organiza
tions, detailed aspects of fishery regulation (eg, mesh
sizes), and the deliberations of international judicial and
arbitral bodies will be discussed only insofar as they re
late to the international law of marine fisheries in gen
eral. The LOSC having been signed in December 1982, it
marks the natural end of a period in the long history of the
law of the sea and has therefore been selected as the termi
nus of the present study.
Living marine resources include nektonic and benthic

groups. The former are usually divided into two gen
eral classifications: demersal and pelagic. Bottom
feeding, or demersal, species include the cod and had
dock. Surface-feeding, or pelagic, species include the
tuna and mackeral. Benthic organisms rest on, are at
tached to, crawl over, or burrow into the sea bottom,
and include crayfish and oysters. For a useful discus
sion of biological aspects of living marine resources
see Johnston, supra n 19, 4-10, and The Encyclopaedia
of Marine Resources (1969; F Firth, ed).
12
111 - The Study in Outline
While any division of history is, of course, arbitrary,

the present writer has found it useful to delimit below
three general periods, each of which features significant
developments in all three 'theatres’ mentioned above.
A. The Early Period

The initial, and by far the longest, period witnessed
the emergence of basic legal norms governing marine fish
eries, many of which would continue into modern times, al
beit in sometimes modified form. In the opening chapter, an
attempt is made to identify the earliest known legal pres
criptions governing marine fisheries, attention being fo
cussed on the European and general Mediterranean region.
The Eurocentric approach adopted in the Chapter requires
some, albeit brief, explanation.
Twentieth century legal research has revealed that in
ternational law, at least as an element of international re
lations if not as a science, is not a unique invention of
Christian Western Europe as earlier writers had often sug
gested.31 in fact, international law was found not only in
As Baron S A Korff ("An introduction to the history of

international l a w " (1924) 18 AJIL 246-247) observes,
as soon as there developed a cultural center of a certain level of civi

lization, a state of soie proiinence, there grew up simultaneously rela
tions with the outside world that soon took the shape of a whole systei
of [legal] institutions. In other words, such a systei was the necessary
consequence of any civilization and was as old as huaan culture in
general.
C f , K u n z , supra n 22, 115. Pioneering works in the in

vestigation of early international law outside Europe
include Z Cybichowski, Das Antike Völkerrecht , Zugleich
eine Beitrage zur Konstruktion des Modernen Völker
rechts (1907); M Rostovtsev, "South Russia in the pre
historic and classical period"(1921) 25 AHR 203; and P
Vinogradoff, Outline of Historical Jurisprudence
(1923). See also references in n 32 infra.
13
Greece and Rome, but also in the early civilizations of Af
rica, America, Oceania, the Indian sub-continent, China and
other parts of Asia.32 in the various regions, States often
developed laws and institutions similar to those found el
sewhere.33 As contacts between States and regions increa
sed, the laws and institutions became more widely known and
applied to govern a multiplicity of international relations.
However, research has not yet produced a definitive state
ment of the contribution made by early non-European civili
zations to the development of international law as it ap-
Cf, Korff, supra n 31, ibid; W Grewe, "From European to

universal international law: on the question of revis
ing the Euro-centric view of the history of interna
tional law"(1983) 28 Law and State 7; and Mushkat, su
pra n 22, 23. For studies and comments on internation
al law in early non-European civilizations see, eg, re
ferences cited in n 31 supra; C h ’eng Te-hsu, "Interna
tional law in early China"(1927)38 Chinese Social and
Political Science Review 251; T 0 Elias, "Africa” in
EPIL vii, 205, and by the same author, Africa and the
Development of International Law (1972)[hereafter cited
'Africa and International Law']; A El-Kosheri, "Islam"
in EPIL vii, 222; J Escarra, La Chine et le droit in
ternational (1931); M Hamidullah, The Muslim Conduct of
State (1953; 3rd ed) esp Ch 9; Korff, supra n 31; M
Lachs, "The development and general trends of interna
tional law in our time"(1980) 169 RDC 9, 21-24; W Mar
tin, "Traces of international law in ancient China"
(1883) 14 International Review 63; S Miyazaki, "Far
East" in EPIL vii, 215; C Phillipson, The International
Law and Custom of Ancient Greece and Rome (1911); W
Preiser,"History of the law of nations: ancient times
to 1648" in EPIL vii, 132; S Rosenne, "The influence of
Judaism on international law"(1958) 5 NILR 119; K Sas-
try, International Law (1941) Ch 3; N Singh, India and
International Law (1969), and by the same author,
"South and South-east Asia" in EPIL vii, 237; J Sya-
tauw, Some Newly Established Asian States and the De
velopment of International Law (1961); P Vinogradoff,
"Historical types of International Law" in Bibliotheca
Visseriana (1923) i, 3.
Korff, supra n 31, 247; M Mushkat, "Some remarks on the

factors influencing the emergence and evolution of in
ternational law” (1961) 8 NILR 341; and J Verzijl,
"Western European influence on the foundation of inter
national law" in his International Law in Historical
Perspective (1968) i, 435
14
pears to d a y .A lth o u g h it may b e a c k n o w l e d g e d , th erefo re,

th at "the in tern atio n al s y s te m 's p rin cip les and c o n c e p t s had
grown o u t o f d i f f e r e n t cu ltu res all o v e r t h e w o r l d , " 3 ® on
th e b a sis of h is to ric a l stu d ies com pleted to d ate it is
w idely a c c e p t e d t h a t m odern i n t e r n a t i o n a l law i s essen tially
b u ilt o n a W e s t e r n E u r o p e a n f o u n d a t i o n . 3Ä R esearch has
found t h i s to be e s s e n t i a l l y tru e w ith r e s p e c t to in tern a
tio n al law g o v e r n i n g liv in g m arine r e s o u r c e s . Thus, in o r
der to trace th e e v o lu tio n of th e law i t is necessary to
commence w i t h a co n sid eratio n of e a rly developm ents i n W est
e rn European l e g a l system s, p articu larly t h o s e o f G re e c e and
Rome.
W ith t h e fo u n d atio n laid in e a rly W estern c i v i l i z a t i o n ,
atten tio n w ill then tu rn to t h e most c e l e b r a t e d leg al debate
in th e e n t i r e h isto ry of th e law o f t h e s e a ; th at is, be
t w e e n Hugo G r o t i u s and John S e id e n o v e r t h e freedom of th e
Ibid 4 4 3 ; G r e w e , supra n 3 2 , 27, n 9; and K o r f f , supra

n 31, 247
M u s h k a t , supra n 2 2 , 2 3 . R P Anand ( " A t t i t u d e s o f t h e

A s ia n - A f r ic a n S t a t e s tow ard c e r t a i n problem s of I n t e r
n a t i o n a l L a w " ( 1 9 6 6 ) 15 ICLQ 5 5 , 5 7 ) , h o w e v e r , s e e m s t o
d i s a g r e e wh en h e s t a t e s t h a t
there is no connection between [the] ancient principles of international

relations found in early [non-European States] and the present rules of
International Law, even if there is to be found to be a large degree of
similarity in certain rules.
T h e locus classicus o n t h e s u b j e c t i s p r o b a b l y t h e
s t a t e m e n t o f P r o f e s s o r V e r z i j l (supra n 3 3 , 4 3 5 - 4 3 6 )
th at
there is one truth that is not open to denial or even to doubt, naaely
that the actual body of international law as it stands today, not only is
the product of the conscious activity of the European aind, but has also
drawn its vital essence froi a coaaon source of beliefs, and in both of
these aspects it is aainly of Western European origin.
F o r s i m i l a r s t a t e m e n t s s e e , eg, G A b i - S a a b , " T h e n e w l y -
i n d e p e n d e n t S t a t e s a n d t h e r u l e s o f I n t e r n a t i o n a l Law:
a n o u t l i n e " ( 1 9 6 2 ) 8 Howard L J 9 5 , 9 6 ; A n a n d , supra n
3 5 ; F i t z m a u r i c e , supra P r e f a c e n 3 , 2 0 9 ; H a m i d u l l a h ,
supra n 3 2 , 6 2 ; W P r e i s e r , " H i s t o r y o f t h e l a w o f n a
t i o n s : b a s i c q u e s t i o n s a n d p r i n c i p l e s " i n EPIL v i i ,
1 2 6 , 1 2 8 ; a n d S y a t a u w , supra n 3 2 , 3 4 .
15
seas. Although fisheries played only a small part in the
initial controversy, opposing positions were taken which
were to subsequently find expression in arguments raised to
the present day.
Chapter Two focusses on eighteenth and nineteenth cen
tury State practice and the growing trend towards equating
the limits of fisheries jurisdiction with those of the
three-mile territorial sea. Two of the most important early
arbitral decisions involving fisheries will also be
analyzed.
By the end of the nineteenth century, growing pressures
on certain fisheries in the North Atlantic gave rise to at
tempts in the Institut de Droit International and Interna
tional Law Association to codify and develop legal princi
ples to cope with the problems. The Hague Conference of
1930 also dealt., in part, with fishery issues. Although all
proved unable to formulate a widely acceptable convention
dealing with fisheries, many of the concepts and proposals
advanced in these early codification efforts sowed seeds
that bore fruit years later. Chapter Three discusses these
early conferences and their position in the broader develop
ment of the law.
B. The Middle Period

Covering the fifteen years following World War II, the
Middle Period in the development of international law rela
ting to fisheries featured the rise of the concept of the
special interest of the coastal State in littoral living ma
rine resources.
In 1945, President Truman of the United States pub
lished proclamations on the continental shelf and fisheries
which were to signal the start of the race by coastal States
for control over adjacent marine resources. Although the
proclamation dealing with the continental shelf subsequently
proved the more widely known and discussed, that relating to
fisheries is also of great importance and is the subject of
Chapter Four.
16
While the 1951 Anglo-Norwegian Fisheries case before
the International Court of Justice (ICJ) covered a wide
range of issues not directly relating to fisheries, it did
result in the Court making several pronouncements of crucial
importance for the future development of the law. Those
will be discussed in Chapter Five.
Nowhere was the impact of the Truman Proclamations
greater than among Latin American States, a number of which
gave birth to the concept of the 200-mile zone. Chapter Six
will discuss the development of that concept and its impli
cations with respect to fisheries.
By the mid-1950s pressures on fisheries had increased
and become more widespread. In part to address fishery-re
lated problems and the growing disparity of national claims
to coastal State jurisdiction, the United Nations set out to
codify and develop the law of the sea. Chapter Seven will
consider negotiations as they relate to living marine re
sources in the deliberations of the International Law Com
mission and the first two Conferences on the Law of the Sea
(UNCLOS I and UNCLOS II), and, in particular, the emergence
and general recognition of the coastal State's 'special in
terest’ in adjacent fishery resources.
C- The Modern Period

Extending from the end of UNCLOS II in 1960 to the con
clusion of UNCLOS III, the Modern Period of the law's devel
opment sees the growing acceptance in State practice of the
200-mile exclusive economic zone (EEZ) and, ultimately, an
EEZ regime becoming enshrined in the 1982 LOSC.
Significant as they were in the overall development of
the law relating to fisheries, conventions negotiated at UN
CLOS I neither reflected the changing international system
and the rapid growth of the world community nor satisfacto
rily addressed the crucial problems relating to fisheries.
Throughout the 1960s and early 1970s, coastal States enacted
legislation extended their maritime jurisdiction, particu
larly over living marine resources. While many claims fol
lowed closely proposals that had almost been adopted at UN-
17
CLOS II, numerous others -- particularly those of Third
World States -- were to 200-mile zones. This development of
the law is surveyed in Chapter Eight.
The question of the validity of extended fisheries ju
risdiction was directly addressed by the ICJ in its 1974
Fisheries Jurisdiction Judgments involving Iceland, the Fed
eral Republic of Germany and the United Kingdom. In those
Judgments, the Court recognized the concepts of coastal
State preferential rights to living marine resources and the
fishery zone extending beyond the territorial sea. The sig
nificance of the Court's finding, particularly in light of
the ongoing negotiations at UNCLOS III, is discussed in
Chapter Nine.
The chaotic situation arising from the multifarious
coastal State claims to maritime jurisdiction after UNCLOS
II led finally to a decision to convene a third conference
to negotiate a new convention on the law of the sea. The
initial deliberations and preparation for UNCLOS III were
undertaken in the Sea-Bed Committee and are the subject of
Chapter Ten. The negotiations themselves and the LOSC that
resulted are discussed in Chapter Eleven insofar as they im
pact directly upon fishery issues.
Stretching over a decade, UNCLOS III deliberations
could not avoid being influenced by — and having an influ
ence upon -- State practice outside the Conference itself.
Chapter Twelve briefly surveys that practice, and discusses
its impact on the fisheries regime as found in the LOSC. An
attempt is made to identify the international law of fisher
ies as it stood at the end of the Conference.
The present study concludes with a few observations on

the future development of the law.
PART ONE:
THE EARLY PERIOD; FI LL ING IN THE VAC UU M

18
C H A P T E R ONE
F I S H E R I E S IN INTERNA T I O N A L LAW: THE B E GINNING
[T]he international lawyer aust approach the law of the sea not only with a special
affection born of history but with a special concern for the future of international
law itself.
John R Stevenson1
I - Greek. Roman and Medieval Fisheries Law
The evolution of international law as it relates to ma

rine fisheries has been a long, gradual process. In their
earliest communities, people looked to fishery resources im
mediately adjacent to the shore for the satisfaction of
their food and occasionally other household requirements.
Rights granted individuals to exploit those resources em
anated from within the domestic community itself and were
products solely of the internal legal system. Gradually
moving into deeper ocean waters where no law was seen to ap
ply, the 'classical assumption'was made; that is, "all com
ers had common authority to use the seas as they wished, and
could not deprive others of the same freedom".2 That 'as
sumption' would remain in one form or another throughout the
entire history of the law of the sea.
Although early Mediterranean civilizations undoubtedly
developed and codified laws on some significant maritime
subjects, the paucity of remaining data -- particularly with
respect to fisheries — makes their link to the contemporary
law of the sea uncertain.3 While much more is known of the
J Stevenson, "Conflicting approaches to the control and

exploitation of the oceans [Address]” (1971) 65 PASIL
107, 108
Johnston, supra Introduction n 19, 158
3 W Gormley, "The development and subsequent influence of
the Roman legal norm of 'freedom of the seas'" (1963)
40 UDLJ 561, 565-566
19
laws of the Greek city-States, the latter's legal system and
theory insofar as it concerned the public international law
of the sea, including fisheries, appears to have been incho
ate.^* Like most of the maritime States of antiquity, writes
Coleman Phillipson, Athens, for example, claimed sovereignty
over the seas. However, it refrained from exercising tyran
nical maritime power and was, he asserts, in favour of the
freedom of the seas: "the fruits of the whole earth, declar
ed Pericles, found their way to the city".55
Indeed, it is to the Greeks that we owe the formulation
of a concept that came as to dominate international law re
lating to fisheries for centuries. It was Aristotle who
first distinguished between enacted and natural law,0 the
latter applying generally and with universal validity, being
P Fenn, The Origin of the Right of Fishery in Ter

ritorial Waters (1926) 7-8; cf, Gormley, supra n 3,
566. This may be, in large part, a reflection of the
fact that Greek property law was never as fully devel
oped as, say, that of the Romans. On this point see,
eg, A Harrison, The Law of Athens (1968) 200ff, and W
Friedmann, Legal Theory (1967; 5th ed) 5.
Phillipson, supra Introduction n 32, ii, 377-378. Al

though assertions of sovereignty over the sea and sup
port for the freedom of the seas in line with the
'classical assumption' (see text accompanying n 2
supra) appear contradictory, it may have been the case
that references to sovereignty in early writings meant
only the right, if not also the responsibility, to en
sure that the seas were safe against pirates etc. Cf,
Fenn, supra n 4, 7; Gormley, supra n 3, 567; L MacRae,
"Customary international law and the United Nations'
Law of the Sea Treaty"(1983) 13 CWILJ 181, 183, n 11;
and P Potter, The Freedom of the Seas (1924) 114-115.
The same general approach appears to have been followed
by the Romans (see nn 15 and 17 infra). For a discus
sion of the problem of piracy at the time see Phillip
son, supra Introduction n 32, ii, 370-375.
Aristotle, Nichomachean Ethics (Penguin, 1976; rev e d ;

J A K Thomson, trans) 189; cf, Friedmann, supra n 4,
10. For a discussion of natural law in relation to in
ternational law as a whole see, eg, J Egido, "Natural
law" in EPIL vii, 344; and A Verdross and H Koeck, "Na
tural law: the tradition of universal reason and autho
rity" in Structure and Process, supra Preface, n 2, 17.
20
common t o m a n k i n d . 7. N a tu re 's ro le, he w r ite s , is "to su p p ly
her o ffsp rin g w ith f o o d , " 9 and th e n atu ral means of acq u ir
in g food in clu d es fish in g .9 Thus p ro v id ed by N a t u r e , fish
belong to th e ir captor, and th e sea, being a source of food,
is by i t s very natu re, in cap ab le of a p p r o p r i a t i o n . 1-0
A r is to tle 's id eas w ere n o t fu lly developed by h i s G reek
successors, how ever, and it was n o t u n t i l Roman c i v i l i z a t i o n
flo u rish ed th a t h isto ry records th e prem ier form al ex p o si
tio n of law rela tin g to th e statu s of th e sea and t h e rig h t
to harvest its fish erie s r e s o u r c e s . 11 A r is to tle 's in flu en ce
can be s e e n in th e second cen tu ry A. D. In stitu te s of G aiu s,
w hich s t a t e th a t one means of o b tain in g p o ssessio n of a
th in g , res,
is Occupation, whereby things not already subjects of property becoae property of the
first occupant, as the wild inhabitants of...water as soon as they are captured.
For...fishes, as soon as they are captured, becoie, by natural law, the property of
the captor, but only continue such so long as they continue in his power__ 12
A r i s t o t l e , R h e t o r i c ( O x f o r d , 1 9 4 6 ; v o l x i o f The W orks
o f A r i s t o t l e ; W Rhys, t r a n s ) 1373. A cco rd in g to V er
d r o s s and Koeck ( s u p r a n 6, 1 7 - 1 8 ) ,
The 'nature' at the root of Aristotle’s conception of natural law is the

nature of aan, a nature which...is not a static fact but has an inherent
tendency to ensure its self-preservation and fulfilment. ...
Aristotle never developed...his doctrine of natural law, which re
sained soiewhat aibiguous. However, one thing appears certain: he did
not deduce natural law fros a real fact but fro« the anticipated end
toward which huaan nature is striving in order to satisfy its fundaiental
needs.
A risto tle, A T rea tise on G o v e r n m e n t (1919; W E llis,

t r a n s ) 19
Ib id 13
Fenn, su p ra n 4, 8; c f , V in o g rad o ff, supra

I n t r o d u c t i o n n 31, 213
Fenn, supra n 4, 3
E P o s t e , G a ii I n s t i t u t i o n u m I u r i s C i v i l i s C om m en tarii
Q uatuor (1890; 3 rd e d ) 184. F en n ( s u p r a n 4, 12) e x
p l a i n s t h a t t h e t e r m ' r e s ' i s u s e d i n Roman l a w t o d e s
i g n a t e t h a t w hich i s c a p a b l e o f becom ing t h e o b j e c t o f
r i g h t s a n d i n c l u d e s a l l t h i n g s w h i c h man f e e l s t o b e
re q u ire d e ith e r fo r h is p le a su re or needs. They i n -
21
The above foundations were built upon by Marcianus and

succeeding jurisconsults whose works were accepted as part
of Roman law during the classical p e r i o d . 13 Their efforts
were incorporated into the Institutes and Digest of the B y
zantine Emperor, Justinian, published in 533 A . D . 1-* Follow
ing Aristotle, they distinguish civil law from natural law,
or what they considered to be its equivalent, the ius g e n
tium, or law of n a t i o n s . 13 J u s t i n i a n ’s Institutes and Di-
clude abstractions; that is, "juridical c r e a t i o n s ” .

See also nn 16-19 and accompanying text infra.
Fenn, supra n 4, 3, 9-10. The classical period of R o

man law extended from the coming of the Principate in
117 A .D . to the beginning of the P r i n c i p a t e 's collapse
around the middle of the third century A.D. (cf, H Jo-
lowicz, Introduction to the Study of Roman Law (1952)
6, and H Wolff, Roman Law: An Historical Introduction
(1951) 103).
Fenn (supra n 4, 3) explains that the text of Marcianus

as produced in the Digest of Justinian is the first
formal pronouncement in recorded legal theory on the
legal status of the sea and the right of men to use the
sea and its products (see text accompanying nn 17 and
19 infra) . Since Marcianus lived in the early second
century A.D., the doctrine was known in written form as
early as that time, although it was not put into c o d i
fied form until the sixth century.
Justinian, of course, was Emperor in the Eastern
Roman Empire centered in Constantinople (Byzantium),
the Western Roman Empire and Rome itself having fallen
to invading barbarians in 476 A.D. When J u s t i n i a n ’s
forces retook Rome, his legislation was formally intro
duced in the West in 554 A.D.
According to J A C Thomas ( Textbook of Roman Law
(1976) 56) the Digest was to be
the coipilation of a collection of iaperial legislation and of the best

of the legacy of juristic literature which was both to have force as the
law in operation in [Justinian's] reala and to be the object of study in
the law schools; in short, the coapilation was to be the only source of
law in the eapire, unifying and replacing all existing legal literature.
The Institutes were commissioned as a briefer intr o d u c

tion to the main elements of the system. Both the Di
gest and Institutes entered into force on 31 December
533 A.D. in the East. Cf, Jolowicz, supra n 13, 490-
503, and Wolff, supra n 13, 166-169.
19
According to the Institutes ,
22
All peoples who are governed by laws and customs use law which is in part
particular to themselves, in part coaion to all ien: the law which each
people has established for itself is particular to that state and is
styled civil law as being peculiarly of that state: but what natural rea
son has established aiong all ien is observed equally by all nations and
is designated ius gentiuM or the law of nations, being that which all na
tions obey. Hence the Roman people observe partly their own law, partly
that which is common to all peoples.
( J T h o m a s , The Institutes of Justinian: Text, Transla

tion and Commentary ( 1 9 7 5 ) [ h e r e a f t e r c i t e d ' Insti
tutes' ] 4 ) .
T h o m a s ( supra n 1 4 , 6 5 ) , w r i t e s t h a t " f o r t h e
l a t e r c l a s s i c a l j u r i s t s a n d t h e r e a f t e r . . . t h e t e r m s ius
naturale a n d ius gentium i n i t s j u r i s p r u d e n t i a l s e n s e
were used interchangeably". F r i e d m a n n ( supra n 4 , 5 0 )
e x p l a i n s t h e b a c k g r o u n d to this d e v e l o p m e n t as foll ows:
Long before natural law became part of philosophical and juristic teach
ing, the practical lawyers, who in Rome and in many parts of the empire
had to administer the law to hundreds of non-Roman peoples and tribes
living under different customs, had turned the idea of natural law to
practical account. The ancient idea of citizenship [being restricted ex
clusively to Romans] made it impossible to apply Roman civil law to for
eigners. Nor could Roman magistrates apply foreign laws as such. But
they could take, from the material supplied by foreign laws and customs,
those which appeared capable of general application, such as maritime and
other commercial usages, greatly developed among the sea-faring people on
the Mediterranean, and they could mold them into general legal princi
ples. These general principles of justice and reason Roman magistrates
developed empirically from case to case, not by deduction from any gen
eral idea. What they created was not directly a body of natural law
principles, but the ius gentium as the embodiment of the law and us
ages observed among different peoples, and representing general good
sense. Gradually not only the sphere of application, but the meaning of
ius gentium widened. It was described as jus quod apud
omnes populos peraeque custoditur [see text accompanying
this n](In. I, 1), and finally as jus quod naturalis ratio
constituit [law what natural reason establishes](Dig. XII, I, 1).
Cf, G o r m l e y ( supra n 3, 572), who observes that
it is clearly recognized that what is referred to as the 'Roman law* or

Jus Gentium was in reality the law of the Mediterranean World as de
veloped by its peoples. Yet, in evaluating the Roman concept of the
freedom of the seas, one must not lose sight of the fact that they were
the dominant naval and military power and, as such, had a free hand in
legislating and acting as they alone saw fit. On the other
hand, naval supremacy, with no implication of ownership, was the prevail
ing belief, and there is no evidence to indicate that they exercised ju
risdiction beyond the enforcement of police measures designed to protect
the 'public welfare.'
23
gest present th e m ost com p reh en siv e c la ssifica tio n of res
t i l l th en attem p ted , w ith th e sea and fish e rie s reg u lated by
a leg al regim e based upon the i u s g e n tiu m . The s e a , Ju stin
i a n ’s w orks ex p lain , is res co m m u n is o m n i u m , t h a t is,
coaaon to all, both as to ownership and as to use. It is owned by no one; i t is inca

pable of appropriation, just as is the air. And its use is open freely to all len.
The saie is true of the shore, which derives its character fro« the sea. __[T]he
coast line of the states bordering the sea was not the property of the particular
state whose territory was bounded by i t, but, on the contrary, was open by the ius
gentiui to the use of all sen.1-7
B oth th e law s rela tin g to fish in g , the iu s p is c a n d i,

and th o se c o n cern in g the sta tu s of th e fish th em selv es, w ere
also d eriv ed from the sta tu s of th e sea. As for th e form er,
Fenn sum m arises th e law as c o n tain ed in J u s tin ia n 's co m p ila
tio n s :
S e e a l s o n 17 i n f r a . F o r a d i s c u s s i o n o f Roman i n
te rn a tio n a l le g a l re la tio n s g en erally , see P h illip so n ,
su p ra I n t r o d u c t i o n n 3 2 ; S V e r o s t a , " I n t e r n a t i o n a l law
i n E u r o p e a n d W e s t e r n A s i a b e tw e e n 100 a n d 650 A . D . "
(1964) 1 1 3 RDC 4 9 1 ; a n d V i n o g r a d o f f , s u p r a I n t r o d u c
t i o n n 37, ch 3.
I n s t i t u t e s , su p ra n 16, 65 ( I n . , I I , I , 1 ) . T h is ,
o b s e r v e s G o rm ley ( su p ra n 3, 5 7 9 ) , r e p r e s e n t e d no
c h a n g e o v e r t h e p r i o r 'com m on l a w ’ ( s e e , eg , t e x t
a c c o m p a n y i n g n 10 s u p r a ) .
Fenn, supra n 4, 23. A lthough th e s e a was c o n s i d e r e d

r e s c o m m u n i s o m n iu m b y t h e R o m a n s , o b s e r v e s G orm ley
(supra n 3, 5 8 4) ,
a distinction oust s t i l l be made between the legal standard and actual

practice; for no individual, group or nation would ever have been in a
position to effectively challenge the authority of the Roian State.
Clearly, the class r e s communis applied to all sen provided that
their usage conforaed to the recognized law of nations -- Jus
Gentiurn.
I n t h a t r e g a r d , h e e x p l a i n s ( i b i d ) , " t h e s e a was u n d e r
a d e f i n i t e ' g u a r d i a n s h i p ' o f t h e Roman p e o p l e , " a l
t h o u g h Rom e d i d n o t i t s e l f e x e r t e x c l u s i v e s o v e r e i g n t y
over m aritim e w a te r s :
the Rooan concept of 'p o p u li Romani e s s e ' aerely referred to the

guardianship of the Roaan people, which was not the same as contemporary
notions of sovereignty. Indeed, they guarded the seas as a 'sacred
tru st' on behalf of the 'general welfare.'
24
No one light be forbidden to fish in the sea froi the shore. The right to fish in the
sea...included that of drying nets on the shore, and of building shelters. When a
fisheraan erected a hut, he acquired a right of ownership in i t which lasted as long
as the building retained standing.i e
The le g a l p o sitio n of fish reso u rces is c o n c ise ly ex

p la in e d in th e I n s t i t u t e s and fo llo w s c lo se ly th e fo rm u la
tio n of G a iu s:
things becoie the property of individuals in uany ways: for of soie things ownership
arises by natural law which...is called the law of nations,...which the nature of
things introduced with humankind its e lf ...
Hence,...fish...as soon as they are caught by anyone, forthwith fall into his
ownership by the law of nations: for what previously belonged to no one [res nullius]
is, by natural reason, accorded to i ts captor. ...[A]ny of these things that you take
is considered to be yours so long as i t is regulated by your control; but once i t es
capes frot your custody and assuaes its natural state, i t ceases to be yours and again
becoies open to the next taker. 1 ^
"F ro m th e s ta n d p o in t of p o litic a l th eo ry and of sc ie n

tific tra d itio n ," w rite s H ans W o lff, " J u s t i n i a n 's le g is la
tio n w as th e m ed iu m th ro u g h w h ic h th e law of th e Rom an p e o
p le and E m p ire fo u n d its fin a l e x p r e s s i o n " . 20 That th e doc
trin e re la tin g to th e sea and its fish e ry reso u rces fo u n d
but little space in th e o v e ra ll c o r p u s o f Rom an la w a p p e a r s
due to Rom an s u p r e m a c y in th e M e d ite rra n e a n w o rld and a com
m on p e r s p e c t i v e sh ared by p e o p le s of th a t re g io n on th e p ro
per use of th e sea and access to its reso u rces. As Fenn
p a re n th e tic a lly o b s e rv e s , "had th e re been a F ran ce or a H o l
la n d on one s id e of th e M e d ite rra n e a n at th is tim e , w ith
R om e c o r r e s p o n d i n g to E n g la n d , it is p o ssib le th a t th e Rom an
law m ig h t have e v o lv e d a d iffe re n t d o c trin e , and one to
w h ic h a fu lle r tre a tm e n t w o u ld have been g i v e n ” . 21 N ev er
th e le ss , th e Rom an c o n t r i b u t i o n w as an im p o rta n t lin k in th e
d e v e lo p m e n t of in te rn a tio n a l la w c o n c e rn in g th e sea and its
Fenn, supra n 4, 23
In stitu tes, supra n 15, 66 (In., II, I, 11-12)
W o lff, supra n 13, 174; cf, Jo lo w ic z , supra n 13, 6
F en n , supra n 4 , 2 7 ; c f , G o rm le y , supra n 3, 5 7 2 -5 7 5 .
S e e a l s o nn 15 a n d 17 s u p r a .
25
resources and would be drawn upon by jurists and statesmen
to the present day.
Soon after Justinian’s death, the territories he had
recaptured in the West were once more lost to Germanic in
vaders, this time irretrievably, and the separation of the
Greek Eastern and Latin Western Empires became permanent.
In the East, Justinian’s legislation received further atten
tion by jurists but no new developments were made relating
to fisheries.23 Following the fall of Rome, Western Europe
entered the Early Middle Ages in which little significant
advance was made in either legal theory in general, or fish
eries law in particular.23 The European political situation
See, eg, Fenn, supra n 4, 30-31; Jolowicz, supra n 13,

512-516; and Wolff, supra n 13, 178-183.
Cf, Fenn, supra n 4, 33-35; P Vinogradoff, Roman Law in

Medieval Europe (1929) ch 1; and Wolff, supra n 13,
183. For a useful, concise survey of the main develop
ments in Western international relations (including
Islamic civilization) and law during the period from
the fall of the Roman Empire to the twentieth century
see S Dreyfus, Droit des relations internationales:
elements de droit international public (1981; 2nd ed).
It should be noted at this juncture that during
the period of the early Middle Ages in Europe, the Arab
world was making important developments in Islamic law
(shari*ah), including international law (siyar). See
generally, M Talaat al Ghunaimi, The Muslim Conception
of International Law and the Western Approach (1968);
Hamidullah, supra Introduction n 32; M Khadduri, "In
ternational law" in Law in the Middle East (1955; M
Khadduri and H Liebesny, eds) i, 349, and by the same
author, The Islamic Law of Nations: Shaybani's Siyar
(1966); and El-Kosheri, supra Introduction n 32.
While there are indications of early Islamic ju
risconsults having similar views on the legal character
of the sea to those found in Roman law (see, eg, Hami
dullah, supra Introduction n 32, 90-91), to what extent
Islamic law owes its development to early Roman juris
prudential stimulation is, in the words of Sobhi Mah-
massani, "A delicate subject which has produced con
siderable controversy"(Falsafat Al-Tashri fi Al-Islam
(1961; F Ziadeh, trans) 136. See, eg, the opposing
views expressed by S Fitzgerald ("The alleged debt of
Islamic to Roman law"(1951) 67 LQR 81), J Schacht
("Foreign elements in ancient Islamic law"(1950) 32 J
of the Soc of Comp Legislation and International Law
8), and Mahmassani supra {ibid).
26
during th at p erio d , w rites D a n i e l M cGarry, "was c h a r a c t e r i s
ed by m u l t i p l i c i t y rath er than u n ity , lo calism rath er than
cen tralizatio n , in tern al w arfare rath er than tra n q u illi
ty Under th o s e c o n d i t i o n s no S t a t e w a s i n a p o sitio n to
enforce its own u n i q u e l e g a l system a n d Roman, Canon and l o
cal law s e x i s t e d sid e by s i d e . 2® V arious sim p lified co d ifi
catio n s o f Roman a n d c u s t o m a r y law w e re made, b u t none a re
known t o have developed law c o n c e r n i n g the sea or fis h e ry
resources.
By t h e H i g h M i d d l e A g e s (ca 1050-1300), how ever, civ i
lizatio n in W estern Europe began to flo u rish . W ith in an
o v erall f e u d a l system th ere arose a number o f s t r o n g S tates
As t h e I s l a m i c c o n t r i b u t i o n t o i n t e r n a t i o n a l l a w
a p p e a r s t o be i n a r e a s o t h e r t h a n t h o s e r e l a t i n g t o
f i s h e r i e s , i t i s t h e r e f o r e beyond th e sco p e of th e p r e
s e n t s t u d y (on t h e s u b j e c t g e n e r a l l y , h o w e v er, s e e r e f
e re n c e s c i t e d above p lu s M Taube, "E tu d es s u r l e d e v e l-
o p p e m en t h i s t o r i q u e du d r o i t i n t e r n a t i o n a l d a n s 1 ’Eu
r o p e O r i e n t a l e " ( 1 9 2 6 ) 11 RDC 3 4 1 , 3 8 0 - 3 9 7 ) .
D M cGarry, M e d ie v a l H i s t o r y and C i v i l i z a t i o n (1976) 95;

c f , B P a r a d i s i , " I n t e r n a t i o n a l law and s o c i a l s t r u c t u r e
i n t h e M i d d l e A g e s " ( 1 9 6 4 ) 1 3 ( p t I I ) I Y I A 148
C f , F e n n , s u p r a n 4 , 4 9 ; E J e n k s , Law a n d P o l i t i c s i n
t h e M id d l e A ges (1 9 1 3 ; 2nd ed ) 7; M cGarry. s u p r a n 25,
110; P r e i s e r , su p r a I n t r o d u c t i o n n 32, 140; C von S a v i -
g n y , The H i s t o r y o f t h e Roman Law D u r i n g t h e M i d d l e
A g e s ( 1 8 2 9 ) ; W U l l m a n , Law a n d P o l i t i c s i n t h e M i d d l e
A ges (1975) ch s 2 and 6; and V in o g r a d o f f , su p ra n 23,
24. S e e g e n e r a l l y , H H a z e l t i n e , "Roman a n d C a n o n Law
i n t h e M iddle Ages" i n C am bridge M ed ie v a l H i s t o r y
(1926) v, 697.
F e n n , s u p r a n 4 , 4 9 - 5 0 ; a n d P K i n g , Law a n d S o c i e t y i n
t h e V i s i g o t h Kingdom (1 9 7 2 ) 2 1 6 . R e f e r r i n g t o law g e n
e r a l l y , V i n o g r a d o f f { s u p r a n 23, 37) e x p l a i n s t h a t
legal learning...did not entirely disappear with the downfall of the Em
pire. It survived to soie extent together with other reanants of ancient
culture, nore especially through the agency of the learned classes of
those days....The survivals in question, however, are not only slight and
incoherent, but, as a rule, hopelessly aixed up with the atteapt of the
early Middle Ages to effect a kind of salvage of the general learning of
antiquity. There are no definite traces or organised schools of law.
What legal learning there is reaains connected with exercises in graaiar,
rhetoric, and dialectics.
Cf, H azeltin e, su p ra n 25, 732.

27
and k in g d o m s, and t h e r e w as w i d e s p r e a d e c o n o m i c a n d s o c i a l
p r o g r e s s , not th e least o f w hich in c l u d e d th e org an ized
study of l a w . 2 '7 W ith t h e d i s c o v e r y of a com plete t r a n s c r i p t
o f J u s t i n i a n ’s D ig e s t l a t e in th e elev en th century, the
school of B ologna s e t about a com prehensive stu d y of c l a s s i
cal Roman l a w , a d d in g s h o r t com m ents, or 'g lo s s e s ', b eside
p o rtio n s of th e o rig in a l t e x t . 20 W hile t h e ' G l o s s a t o r s ’ , as
t h e y came t o be known, p a i d some a t t e n t i o n to th e sea and
fish eries in Roman l a w , th eir treatm en t p resen ted no g r e a t
d ep artu res from c l a s s i c a l n o r m s . 20 T h e i r a i m w as t o apply
th e law a s found in J u s t i n i a n ’s c o m p i l a t i o n s to contem porary
s o c i e t y . 30
The i n f l u e n c e of th e B olognese j u r i s t s d eclin ed in the
m id -th irteen th cen tu ry , how ever, larg ely due to th e d is c re p
ancy betw een th e law t h e y had f o r m u l a t e d and m ed iev al S t a t e
p ractice. European m o n arch s, in endeavours to stem t h e
grow ing in flu en ce of th e C ath o lic Church i n w orldly a f f a i r s ,
s o u g h t e v e r y means t o enhance t h e ir te m p o r a l pow er, in clu d
ing e x te n s io n of th e ir ju risd ictio n over b oth f is h e r y re
sources them selves, th e r e d i t t u s p is c a t io n u m , and t h e rig h t
to fish , th e i u s p i s c a n d i . 31
See g e n e r a l l y , M cG arry, su p ra n 24, pt III.
S e e H a z e l t i n e , s u p r a n 2 5 , 7 3 5 f f ; J S c o t t , Law, t h e
S t a t e , a n d t h e I n t e r n a t i o n a l C o m m u n ity ( 1 9 3 9 ) i , c h 17;
U llm an, su p ra n 25, 8 3 f f ; V i n o g r a d o f f , su p ra n 23, 57-
70; and W o lff, s u p r a n 13, 1 8 6 -1 3 8 .
Fenn, su p ra n 4, ch 3; o f, G orm ley, su p ra n 3, 536
P a r a d i s i , s u p r a n 24, 155; U llm an , su p ra n 25, 85ff;

a n d W o l f f , s u p r a n 1 3 , 188
Fenn, s u p r a n 4, 5 2 - 6 3 , 70; M cGarry, s u p r a n 24, 359-

360. Fenn ( s u p r a n 4 , 78) e x p l a i n s t h a t
The i u s p is c a n d i seeas to be the feudal equivalent for the aodern

right of fishery. The Prince, or the Crown, has the right of fishery in
all public waters. So far as regards the public rivers, this right is a
property right. With regard to the sea, the right is liaited to the
coastal waters for an unspecified distance off shore. The source of the
right is unclear. In view of the fact that the sea had always been held
to be open freely to all, it is probable that the right is a right to
fish in certain parts of the sea, in certain p i s c a t i o n e s , off shore.
28
At t h e same t i m e , t h e d e v e lo p m e n t o f commerce and t h e
grow th o f trad e gave r i s e to lead in g focal cen ters. To p r o
tect th eir i n d i v i d u a l econom ic i n t e r e s t s ag ain st those of
th eir neighbours as w e ll as m arauding p i r a t e s , th e y began
a ssertin g v ario u s degrees of ju risd ic tio n over or ow nership
of a d ja c e n t sea areas. Perhaps th e most n o t a b l e of th e ear
l y m a r i t i m e c la im s w ere t h o s e a d v a n c e d by t h e Italian Repub
lic s, V enice, Genoa, P isa and T u scan y . Of t h o s e , V e n i c e was
th e most s u c c e s s f u l. By d i n t o f n a v a l power a l o n e , s h e had
asserted so v ereig n ty over th e e n tir e A d riatic Sea b e f o r e th e
end o f t h e th irteen th cen tu ry . Her c l a i m s were s u b s e q u e n t l y
reco g n ized in tre a tie s c o n c l u d e d w i t h n e i g h b o u r i n g S t a t e s . 33
Such i n i t i a l acts of m aritim e a p p ro p ria tio n at first
lack ed a so p h isticated ju risp ru d en tial b a s e . 33 In th e e v o
lu tio n of leg al theory, th e m edieval ju risc o n su lts adhering
to th e B olognese approach s t e a d f a s t l y m aintained th at th e
c lassical Roman l a w i n its purest f o r m w as s u f f i c i e n t for
all purposes and a l l tim e. They g a v e s p a r s e , if any, atten
tio n to assertio n s of m aritim e s o v e re ig n ty . Those t h a t did
co n sid er th e V e n e tia n and s i m i l a r claim s tended to ex p lain
th e r ig h ts recognized on t h e grounds of p r e s c r i p t i o n from
tim e i m m e m o r i a l 3^ a n d a s a n e x c e p t i o n to th e general ru les
On the high seas the Prince or the Crown had no rights of fishery, save
those which every lan had.
T F u l t o n , The S o v e r e i g n t y o f t h e S ea (1911) 3, 4; J o h n
s t o n , s u p r a I n t r o d u c t i o n n 19, 161; W Newton, " I n e x
h a u s t i b i l i t y a s a l a w o f t h e s e a d e t e r m i n a n t ” ( 1 9 8 1 ) 16
T IL J 369, 3 8 2 -3 8 4 ; A R e p p y , "The G r o t i a n d o c t r i n e o f
t h e f r e e d o m o f t h e s e a r e a p p r a i s e d " (1 9 5 0 ) 9 Fordham L R
2 4 3 , 2 5 0 - 2 5 1 ; a n d J V e r z i j l , I n t e r n a t i o n a l Law i n H i s
t o r i c a l P e r s p e c t i v e (1 9 7 1 ) i v , 13.
F e n n , s u p r a n 4, 53; J o h n s t o n , s u p r a I n t r o d u c t i o n n 19,
161; Newton, s u p r a n 32, 3 8 4 -3 8 5 . Fenn ( su p ra n 4, 59-
60) o b s e r v e s t h a t
In 1245, the doctrine of the extension of territorial jurisdic

tion over the sea adjacent to the territory froa which the jurisdiction
eaanates, was yet to be foraulated. Maritiae jurisdiction of this char
acter and origin was exercised by the states of Venice and Genoa long be
fore claiis for the exercise of a siailar jurisdiction becaae general,
and long before it received wide recognition froa the great jurists.
29
of Roman law . In any case, argued th ese ju risco n su lts,
V en etian rig h ts w ere th o se of Imperium, n o t dominium. 3=5
In co n trast, o th er w riters began seein g Roman law as
to o rig id and arch aic in certain resp ects. They sought to
fo rm u late leg al th eo ries and p rin c ip le s based on th e funda
m ental ten ets of Roman law as ad ap ted and d ev elo p ed in lig h t
of co n tem p o rary cu sto m s, usages and law s (of w hatever o ri
gin). " U se," observes Fenn, "was co n scio u sly or uncon
scio u sly , made th e criterio n of th e l a w " . 3 «5-
P r e s c r i p t i o n ( p r a e s c r i p t i o l o n g i te m p o r is ) was a m eans
o f a c q u i s i t i o n w e l l k n o w n i n c l a s s i c a l Roman l a w ( s e e ,
eg, Thom as, su p ra n 14, 1 5 7 - 1 6 5 ) .
Fenn, supra n 4, 8 2 -9 0 . Im perium h a s b e e n d e f i n e d a s

" a u th o rity , ju r is d ic tio n ; th e r ig h t to g iv e o rd e rs";
a n d dom inium a s " o w n e r s h i p " a n d d e n o t i n g " f u l l l e g a l
power o v e r a c o r p o r e a l th in g ,, th e r i g h t o f th e ow ner to
u se i t , to ta k e p ro c e e d s th e re fro m , and to d is p o s e o f
i t f r e e l y ” (A B e r g e r , E n c y c l o p a e d i c D i c t i o n a r y o f Roman
Law ( 1 9 5 3 ) ) .
Fenn, supra n 4, 95. He a d d s ( i b i d 9 5 - 9 6 ) t h a t t h e j u

d icio u s a p p lic a tio n of th e c r ite r io n of use p resen ted a
p roblem o f s u b t l e d i f f i c u l t y to th e j u r i s c o n s u l t s o f
th e tim e:
A rigid systea aust be aade sensitive to the needs of present social

life . It aust aid and not hinder the proaotion of justice. Yet this
fine task involved the use of a aethod which could very well turn freedoa
into license.
...An appeal to international practice, or to the custoas of the nations,
was valid; iraeaorial custoa could provide an uniapeachable sanction on
which to ground a law. Yet all custoas were not lawful. It was, fur
ther, debatable whether the aere passage of tiae could aake an unlawful
practice lawful. ...There were other difficulties. It would be necessary
to find an answer to the question, What is good usage? It would be
necessary to solve the problea presented by divergent custoas which were
theaselves the eibodiaent of conflicting doctrines. And these answers
and solutions would inevitably be colored by the interests of the parties
concerned. ...Once the principle of appropriation [of the sea] was ac
cepted, the problea would becoae siaply one of definition. It would not
be iapossible to find a foraula. Where international practice was in
choate i t could be freely developed. Where unifora practice did not ex
ist, i t could be created. And finally, i t was alaost always possible to
find soae sanction in the past for what justice or self-interest, under
whatever naaes they sight be called, aspired to in the present. The ap
peal to custoa or usage, then, while i t was necessary in order to v ital
ize the old law, was significant because i t was an appeal to an inchoate
and unstable eleaent in national and international life.
30
Forem ost among th o se P o st-G lo ssa to rs, as th ey came to
be known, was th e great B arto lu s of S asscferrato (1314-
1357) . He a r g u e s by an alo g y th at ju st as it is fittin g
for th e ru ler to d riv e off or p unish ev il doers on land, so
too is it fittin g for him to do lik ew ise at sea. It is so
proper th at it may b e said th at he has a rig h t to do so.
And if he has a good rig h t, th en to do so is good law . Thus,
th e S ta te 's ju risd ic tio n over th e ad jacen t sea, th e m are
a d ia c e n s , had its source in th e S ta te 's p o lice pow er. That
pow er, it appears from B a rto lu s’ w ritin g s, m ig h t be exer
cised up to 100 m iles from the co ast. He d o e s not accep t,
how ever, th at claim s such as th o se advanced by V e n ic e to do
m inium o v e r th o se w aters w ere so u n d ly based in la w .3e
See g e n e r a l l y , M Keen, "The p o l i t i c a l th o u g h t o f t h e

f o u r t e e n t h c e n tu r y c i v i l i a n s " in Trends in M edieval
P o l i t i c a l Thought (1965; B S m alley , ed) 105.
R ep p y , su p ra n 32, 277; U llm an, su p ra n 25, 108; c f , J

F ig g is , " B a rto lu s and th e d ev elo p m en t o f E uropean po
l i t i c a l i d e a s ” (1905) 1 9 ( n . s . ) Trans o f th e Royal H is
t o r i c a l Soc 156; and C W oolf, B a r to lu s o f S a s s o f e r r a t o
(1913) ch 4. Fenn ( supra n 4, 99) w r i t e s t h a t
In Spain and Portugal [Bartolus'] opinions were for a long tiie given
binding force by law. Not only is he reputed to have held firs t place in
the [law] schools, during his lifetime, even, but i t is said that in the
courts his authority was so great that the judges did not dare to contra
dict hii. Apparently, to quote Bartolus was to silence the opposing
view.
Fenn, supra n 4, 101-105; c f , F u lto n , supra n 32, 34;

and Reppy, su p ra n 32, 277. Fenn ( su p ra n 4, 101) ob
s e r v e s t h a t t h e m a t t e r c o n s i d e r e d by B a r t o l u s "se e m s t o
b e o n e o f t h o s e ' b o r d e r l i n e ' q u e s t i o n s o n w h i c h t h e me
d i e v a l m ind was a b l e t o f o c u s a t o n c e t h e o l o g y , p o l i
t i c s and l a w , " and t h a t B a r t o l u s ' r e a s o n i n g was an
am algam o f a l l t h r e e . M ore g e n e r a l l y , F e n n e x p l a i n s
( i b i d 97) t h a t a custom f o r B a r to lu s
was not aerely a custoi; nor was i t aerely a custoi invested by law with
certain attributes connected with the creation of rights and duties; it
was a potential source of law, to be used to correct the Roaan law itse lf
when that law was incapable of a beneficial and just application to a
given set of facts. It was this which he taught, and which his followers
taught after hii. The process of reasoning underlying such a position is
siaple. If the Roaan law is not applicable to the needs of the tiae, and
as the needs of the tiae are based upon facts, then i t is necessary to
adapt the law to the new conditions so that i t can be applied to the
facts in a aanner to satisfy the needs. The new conditions becoie the
31
Baldus , his most famous pupil, agrees.39 He also makes
the distinction, sometimes blurred by Roman and early medi
eval jurists, between things which were res ccmmunis and
those res nullius in bonis.**° The latter may be appropri
ated, the former may not. The sea was res communis, al
though, in effect, the mare adiacens was seen as a district
of the coastal State in which the non-proprietary elements
of the civil law of the coastal State were applicable.**1
Subsequent jurists, including Fortesque (c .1385-c.1479)
and Gregorius (d. 1595), built upon the writings of Barto-
lus, Baldus and others in holding that the State had not
only those broad jurisdictional rights referred to above,
but also the specific right to defend and protect fishermen
in the mare adiacens.**z
The jurisprudential process of unifying adjacent marine
waters to the adjoining land was completed by Alberico Gen-
tili, an Italian jurist, who, like Bartolus and others,
sought to derive his law from the analysis of contemporary
international relations. In light of the latter, he con
cluded in 1598 that "the sea is a portion of the land. ...
The adjacent part of the sea belongs to one’s dominion, and
the term ’territory’(territorium) is used both of land and
guide by which the law is altered. To appreciate the significance of

this position, with its eaphasis upon present conditions, it is only nec
essary to recall that it was taken first by the greatest jurisconsult of
the fourteenth century.
For an examination of Bartolus’ views on customary law

see Fenn, supra n 4, 97; and W Ullman, "Bartolus on
customary law"(1940) 52 Juridical R 265.
Fenn (supra n 4,105) gives his dates as 1334-1400, and

Johnston (supra Introduction n 19, 161), 1327-1406.
Berger (supra n 35) simply notes that Baldus died about
1400 .
Fenn, supra n 4, 27, 47
Ibid 77, 105-107
Ibid 119-121
32
w a t e r Th u s , from t h a t y e a r it was p r o p e r t o speak of
’t e r r i t o r i a l w aters'
P arallel to th e above developm ents re latin g to th e mare
adiacens , o t h e r m e d i e v a l j u r i s c o n s u l t s focussed n o t on t h e
leg al statu s of th e sea but ra th e r on t h a t of p u b lic fish
eries. Those a d h e rin g to th e classical Roman l a w p o s i t i o n
m ain tain ed th e ab so lu tist p o sitio n th a t th e rig h t of fish in g
in th e s e a was u n r e s t r i c t e d . That p o s itio n proved im possi
b le to reco n cile w ith actu al S tate p ractice, how ever, and
o th er ju rists, w h ile acknow ledging th e g e n e r a l v a l i d i t y of
th e Roman l a w , p o sited a s ig n if ic a n t excep tio n th ereto . The
la tte r g r o u p c o m p r i s e d two s u b - g r o u p s , d ifferin g i n t h e em
p h asis each placed on g r o u n d s ju stify in g th e ex cep tio n to
u n reg u lated fish e rie s. O ne a r g u e d th at th e ex clu siv e
rig h ts, p riv ileg es and p r e r o g a t i v e s (th e reg alia) accorded
so v ereig n s under feudal law , a llo w e d them t o grant ius pis-
candi i n t h e mare adiacens . 4 8 The s e c o n d s u b - g r o u p , w hile
a p p reciatin g th e s ig n ific a n c e of th e r e g a lia , stressed th at
in a c c o rd a n c e w ith th e g e n eral law s g o v e rn in g p r e s c r i p t i o n s ,
S tates such as V e n ic e and Genoa c o u ld a c q u i r e fish in g rig h ts
in th e mare adiacens i f th e p erio d i n w hich su ch r i g h t s had
been e x e r c is e d had been o f su fficien t len g th th at no o n e
could rem em ber t h e v a l i d i t y of those rig h ts e v e r h av in g been
T h e w o r k w as f i r s t p u b l i s h e d i n 1 5 9 8 . The e d i t i o n from
w hich t h e q u o t a t i o n g iv e n in t h e t e x t i s ta k e n i s A
G e n t i l i , De lure Belli Libri Tres ( 1 6 1 2 ) Bk 3 , c h 17
(1933; J C R o lfe , t r a n s ) 384. F e n n ( supra n 4 , 1 2 3 )
g i v e s G e n t i l i ' s d a t e s a s 1 5 5 0 - 1 6 0 8 ; a n d J o h n s t o n ( supra
I n t r o d u c t i o n n 19, 1 6 2 ) , 1 5 5 2 -1 6 0 8 .
Cf, F e n n , supra n 4 , 124-125; and R eppy, supra n 3 2 ,

278
F e n n (supra n 4 , 1 3 7 ) p o i n t s o u t t h a t ’r e g a l i a ’ i s a
word o f f e u d a l law and s u g g e s t s t h a t
The reason why the jurists were able to take the Prince's prerogative so
auch as a latter of course in the face of the precepts of the law books
of Justinian is perhaps to be found partly in the fact that the Roaan law
was forced to accept the feudal law [see text accoapanying n 25
supra], and partly in the fact that the royal exercise of the
prerogative in question had continued over so long a period of tiae that
they had becoie habituated to its existence.
33
challenged. Nevertheless, Balbus, the leading authority of
the age on prescriptions, did not take the final step and
conclude that States had dominium over adjacent marine fish
eries .^
As both the legal and political relationship between
the State and its mare adiacens became generally accepted
and the exclusive jurisdiction of the sovereign over those
waters recognized, however, the idea grew that the sovereign
exercising that jurisdiction had a certain property right in
the littoral sea itself. This view was facilitated by the
early belief that sovereignty was inseparable from ownership
of the soil, and that only in the sovereign (monarch or re
public) lay the right to exercise jurisdiction. By analogy,
reasoned jurists, since the sovereign had come to exercise
exclusive rights over the mare adiacens, he must have a
right of ownership as well. It followed further, that fish
eries in the littoral waters were also property and the
rights of fishery were property rights. The maturing con
cepts of the mare adiacens and the rights of maritime fish
ing recognized by ancient custom and the regalia thus merged
over time into a cornerstone of the law of the sea: territo
rial waters (the dominium maris)
11 - Mare Liberum v Mare Clausum
As the Late Middle Ages (ca 1300-1500) drew to a close

and the modern era of European history opened, the unity of
Fenn (supra n 4, 135-143), who comments (ibid 143),

however, that "the rights which Balbus holds may be
acquired over... maritime fisheries could not be more
extensive if they were rights of property".
Fenn, supra n 4, 130-131, 144-i45; Johnston, supra In

troduction n 19, 163. Fenn (supra n 4, 134) explains
that in medieval legal Latin, dominium maris "connotes
a mixture of the ideas expressed by the words propri-
etas and imperium. It signifies at once ownership and
lordship.”
34
Western Christendom dissolved with the disintegration of the
Holy Roman Empire into a loose association of numerous,
virtually autonomous States and the concurrent dissipation
of the secular power of the Catholic Church. City-States
and other small communities either disappeared as interna
tional actors or consolidated into larger, more viable enti
ties on the European stage. Other States, particularly Eng
land, France and Spain, increased their power. The modern
international system began to emerge. Economically, the pe
riod saw feudal relations based on natural husbandry re
placed by commercial intercourse on a large scale as Europe
recovered from the Black Death and population once again in
creased , the Hundred Years' War ended, and strong monarchs
rose to power and instituted beneficial economic measures.
To fuel the economic recovery, overseas trade expanded, fa
cilitated by greatly improved ships and the overseas explo
ration and colonisation activities of governments attempting
to both obtain essential raw materials and open up new mar
kets for local products. While feudal institutions gradual
ly waned in influence, they left as their legacy the princi
ple of territoriality of law, and that, in conjunction with
the above developments, gave rise to the concept of territo
rial sovereignty and new practices and theories concerning
the legal status of the sea and its fishery resources.'*0
In fact, by the sixteenth century European States were
generally prepared to recognize one another's exclusive ju
risdiction over their respective coastal waters, including
fishery resources found therein.'*^ However, the same was
Fenn, supra n 4, 84, 147; Gormley, supra n 3, 586, 590;

H Laski, "Political theory in the later Middle Ages" in
Cambridge Medieval History (1936) viii, 620, 641-645;
McGarry, supra n 24, pt IV; A Nussbaum, A Concise His
tory of the Law of Nations (1954; rev ed) 61-63; and
Vinogradoff, supra Introduction n 31, 728-729. See
also text accompanying n 47 supra regarding territorial
sovereignty and the status of the sea.
Fenn, supra n 4, 130-131, 133; Fulton, supra n 32, 338-

339; Gormley, supra n 3, 586; and Johnston, supra In
troduction n 19, 164
35
not the case with more extravagant claims, the most contro
versial being that contained in the Treaty of Tordecillas of
1494 between Spain and Portugal. To avoid problems generat
ed by the discovery of America by Columbus, and based on
Pope Alexander Vi's Bulls, Inter caetera and Eximiae devo-
tionis of 1493, the Treaty divided most land and sea areas
known or then yet to be discovered between the two Iberian
States by a straight line drawn 370 leagues west of the Cape
Verde Islands.30 Both Portugal and Spain enforced their
claims with the utmost vigour, forbidding other States lack
ing the prerequisite royal licenses from navigating to Por
tuguese or Spanish possessions on pain of death to the indi
vidual transgressors and confiscation of their goods.31
While successfully prosecuted for more than a century,
the claims were denounced by both affected States and ju
rists. Queen Elizabeth I of England (1533-1603), for exam
ple, although prepared to recognize that "property of sea,
in some small distance from the coast, may yield some over
sight and jurisdiction,"33 was not prepared to accept the
validity of the Iberian States' claims. Anxious to protect
the interests of her subjects, including those relating to
fisheries in the North Atlantic,33 she protested to the
Spanish ambassador in 1580, arguing that "the use of the sea
and air is common to all; neither can title to the ocean be
long to any people or private man, forasmuch as neither na
ture nor regard of the public use permitteth any possession
thereof".3^
For useful discussion of the Treaty and Bulls see, eg,

Reppy, supra n 32, 251-254; H Vander Linden, "Alexander
V I . and the demarcation of the maritime and colonial
domains of Spain and Portugal, 1493-1494"(1916) 22 AMR
1; and Verzijl, supra n 32, 15-19.
Fulton, supra n 32, 106-108; Reppy, supra n 32, 251-254
Fulton, supra n 32, 111
Ibid 105, 108-112

»■a.
Ibid 107
36
T his same p o in t was reitera te d by six te e n th cen tu ry ju
rists. A lphonso De C a s t r o (1495-1558), a S panish F ran cis
can, for exam ple, argued th at in flated claim s of Im perium or
dominium a s s e r t e d by the V en etian s, G enoese, S panish and
P o rtu g u ese, w ere co n trary to Roman l a w , th e iu s n a tu ra le ,
and the p rim itiv e i u s gentium.*** A nother em inent S paniard,
Fernandos Vazquez (1509-1566), agreed. The law of pre
sc rip tiv e rig h ts, he reasoned, rela te d e n tirely to the do
m estic sphere and co u ld not be invoked in d isp u tes b etw een
so v ereig n S ta te s. It was h is view th at th e sea had alw ay s
been and rem ain ed free for fish in g and th at its fish e ry re
sources, co n trary to th o se in riv e rs, co u ld not become ex
h au sted through u s e . 56
W hile th ere w ere scattered references to th e n atu re of
the rig h ts a S ta te m ig h t ex ercise in th e seas w ashing its
shores in th e leg al lite ra tu re of th e p erio d such as th o se
referred to im m ed iately above, "th e n atu re of th e q u e stio n ,"
Fenn observes, "is p rag m atic rath er than leg al; it is a
F en n , supra n 4, 1 5 0 -1 5 1 . P lacin g th e c o n trib u tio n of

De C a s t r o a n d o t h e r w r i t e r s o f t h e p erio d in th e broad
e r c o n te x t o f th e d ev elo p m en t o f i n t e r n a t i o n a l law as
a w h o le , J S t a r k e ( I n tr o d u c tio n to I n t e r n a t i o n a l Law
(1 9 7 7 ; 8 t h e d ) 9) e x p l a i n s t h a t
by the fifteenth and sixteenth centuries jurists had begun to take into
account the evolution of a coimunity of independent sovereign States and
to think and write about different probleas of the law of nations, real
ising the necessity for soie body of rules to regulate certain aspects of
the relations between such States. Where there were no established cus-
toiary rules, these jurists were obliged to devise and fashion working
principles by reasoning or analogy. Not only did they draw on the prin
ciples of Roaan Law which had becoie the subject of revived study in Eu
rope as fron the end of the eleventh century onwards [see text acccapa-
nying nn 28ff s u p r a ] , but they had recourse also to the precedents of
ancient history, to theology, to the canon law, and to the seai-theologi
cal concept of the 'law of nature’ — a concept which for centuries ex
ercised a profound influence on the developaent of international law.
As we h a v e s e e n , t h e s a m e o b s e r v a t i o n s m ig h t be made
w ith r e s p e c t to B a r to l u s , th e fo u rte e n th cen tu ry ju
r i s c o n s u l t ( s e e nn 37 and 38 and a c c o m p a n y in g t e x t
supra).
36
Fenn, supra n 4, 151-152; F u lto n , supra n 32, 341
37
problem in affairs before it is a problem in law books".37
This situation altered dramatically, however, in the early
seventeenth century with the festering of maritime disputes
of the Dutch with Portugal and England.
A- Hugo Grotius (1583-1645)

By the end of the sixteenth century, the Iberian mari
time claims came into direct conflict with the overseas com
mercial aspirations of merchants in the United Provinces.30
The latter commissioned Hugo Grotius, a brilliant Dutch law
yer, to vindicate their right freely to sail to, and trade
with, the East Indies. In 1609, he published Mare Liberum,
history’s most celebrated exposition of the freedom of the
seas concept.39 Thus began what Professor Alison Reppy apt
ly describes as "The Battle of the Books".ÄO
Grotius bases his arguments on the universal natural
law,01 having its source in God, and comprehending "the pri-
Fenn, supra n 4, 128

See, eg, Reppy, supra n 32, 254-258.
The actual year in which Mare Liberum first appeared is

a matter of some dispute. Fenn (supra n 4, 152), New
ton (supra n 32, 391, n 4), and O ’Connell (supra Intro
duction n 19, 10), for example, state that the work was
published in 1608. James Scott, editor of the 1916
translation of the work, in an introductory note states
that it was published in November of that year (Hugo
Grotius, The Freedom of the Seas (1916; Magoffin,
trans)[hereafter cited 'Magoffin'] v ) . Gidel (supra
Introduction n 15, i, 151), Reppy (supra n 32, 269),
and I Shearer ("Grotius and the law of the sea"(1983)
#26 B of the Australian Soc of Legal Philosophy 46, 51)
are of the view that it was first published in 1609.
Fulton (supra n 32, 342) states that the work was pub
lished in March, 1609. Frans de Pauw (Grotius and the
Law of the Sea (1965) 9, 21) agrees that the work was
published in 1609 and refers to letters of Grotius not
ing that the work was still not published on 7 March of
that year. In his exhaustive essay on the subject ("An
unpublished work of Hugo Grotius" in Bibliotheca Visse-
riana (1925) v, 1, 43) R Fruin, the Dutch historian,
states that Mare Liberum was published on 16 May 1609.
Reppy, supra n 32, 262

He writes (Magoffin, supra n 59, 5) that the law is
38
m ary or p rim itiv e law of n a tio n s " (th e iu s g entium prim aevum )
w hich is im m u tab le, and "th e secondary, or p o sitiv e, law of
n a tio n s " {iu s g entium secu n d a riu m or p o sitivu m ) w hich is m u
t a b l e . 02 D raw ing h eav ily on th e In stitu tes of Ju stin ian ,
G ro tiu s argues th at th e title to p ro p erty is based on pos
sessio n or o c cu p atio n (o c c u p a tio ),* 3 and p o ssessio n of im
m ovables im p lies some d e t e r m i n a t i o n of b o u n d a r i e s . 0“4. It
fo llo w s th at, "th at w hich cannot be o ccu p ied , or w hich has
the sane aaong all nations; and it is easy to understand, seeing that i t
is innate in every individual and iaplanted in his lind. Moreover, the
law to which we appeal is one such as no king ought to deny to his sub
jects and one which no Christian ought to refuse to a non-Christian.
A l t h o u g h i m p l a n t e d i n t h e m ind o f m an, a r g u e s G r o t i u s
( i b i d 3 ) , t h e law i s n o t u l t i m a t e l y s u b j e c t i v e , f o r
" e v e r y o n e c a n know w h a t h i s d u t y i s fro m t h e v e r y d e
m ands he m akes o f o t h e r s " .
0=2 . Ib id 53. D e s p ite n a t u r a l la w ’s u l t i m a te so u rc e , D ivine

P ro v id en ce, G ro tiu s l a t e r e x p l i c i t l y a r g u e s t h a t human
reason is a s u f f ic ie n t b asis fo r th e law o f n a t u r e ,
e v e n i f God d i d n o t e x i s t o r t a k e a n i n t e r e s t i n human
a f f a i r s (De J u r e B e l l i ac P a d s L i b r i I r e s (1625; 1853
e d ; W illia m W hew ell, t r a n s ) [ h e r e a f t e r c ite d 'G ro tiu s ']
i , x l v i ). He w r i t e s ( i b i d 9 , 1 0 ) :
Natural Law is the Dictate of Right Reason, indicating that any act, fron
its agreeient or disagreeient with the rational [and social] nature [of
■an] has in i t a ioral turpitude or a aoral necessity; and consequently
that such act is forbidden or coaaanded by God, the author of nature.
F o r t h i s r e a s o n , H om m es o b s e r v e s ( " G r o t i u s o n n a t u r a l
an d i n t e r n a t i o n a l la w " ( 1 9 8 3 ) 30 NILR 6 1 , 7 0 ) , " G r o
t i u s ' c o n c e p t o f n a t u r a l law t h u s c o n t i n u e s t h e r a
tio n a lis t lin e of th e tr a d itio n a l concept of n a tu ra l
law s i n c e A r i s t o t l e " . S ee i n t h i s r e g a r d nn 6 and 7 and
accom panying t e x t su p ra .
ÄC3 M ag o ffin , supra n 59, 2 5-26. A cco rd in g to B e rg e r

(supra n 35), o c c u p a tio is
a aode of acquisition of ownership by taking possession of a thing which

does not belong to anybody and is capable of being in private ownership.
Along such things are in the firs t place aniaals caught by...fishing....
See also tex t acco m p an y in g n 12 supra.

<S-4-
M ag o ffin , supra n 59, 25-26
39
never been occupied, c a n n o t be t h e p r o p e r t y o f a n y o n e . . . " .®3
T his p o sitio n he s u p p o r ts w ith th e p ro p o sitio n th at a th in g
so constituted by nature that although serving soie one person still suffices for the
couon use of all other persons is today and ought in perpetuity to reaain in the saie
condition as when it was first created by nature [ie, res coounis]. ...All things
which can be used without loss to anyone else cone under this category. . . . [Rjunning
water considered as such and not as a streaa is classed by the jurists aaong the
things cooon to all aanhind. ...Its use is free to all.ÄÄ
For th e above re a s o n s , a r g u e s G r o t i u s , ’’t h e s e a is one

of th o se th in g s w hich i s n o t an a r t i c l e o f m e rc h a n d is e and
w h ich c a n n o t become p r i v a t e p ro p e rty ".^ R ather, ’’t h e sea
is common t o a l l , because it is so l i m i t l e s s th a t it cannot
become a p o s s e s s i o n of any one, and b e c a u s e it is adapted
for th e u s e o f a l l . . . ” . 0,0
C itin g De C a s t r o , V azquez and o t h e r s before him , G ro
tiu s d en ies th e leg al im pact o f p r e s c r i p t i o n as a j u s t i f i
catio n for S tates' claim s to ex clu siv e rig h ts over th e sea,
statin g th a t th ere is no u n i v e r s a l au th o rity w ith th e compe
ten ce to g ra n t such r ig h t s to in d iv id u al S t a t e s . S i m i l a r
ly , claim s c an n o t be based on c u s to m , "for if th ere are cus
tom s in c o m p a tib le w ith th e prim ary law o f n a t i o n s , then...
they are n o t . . . l a w ” . ~7°
B ecause of th e n atu re of th e oceans and th e in ex h au s
tib ility o f m arine f i s h e r i e s , fish in g in th e sea, he co n
clu d es, "rem ains free and open to a l l ” . -71 G rotius does
I b i d 27
I b i d 27-28
I b i d 34
I b id 28. T his, of c o u rse, follow s th e t r a d i t i o n a l

p o sitio n o f Roman l a w ( s e e , e g , t e x t a c c o m p a n y i n g n 17
supra) .
I b id 47-50. See t e x t a c c o m p a n y i n g n 56 s u p r a .
I b id 53. See a l s o c o m m e n t by F e n n , su pra n 36.
I b i d 32, 57. In one s p o t , how ever, he does con ced e

t h a t " i n a way i t c a n b e m a i n t a i n e d th a t fish are
e x h a u s tib le ” (i b i d 43).
40
agree, how ever, th at in a c c o r d a n c e w i t h Roman p r e c e p t s ,
fish , w hile r e s n u l l i u s w he n f r e e , "if any one s e i z e s th o se
th in g s and assum e p o s s e s s i o n o f them , they c an become o b
jects of p riv ate o w n e r s h i p ” . ' 72
Of m a j o r s i g n i f i c a n c e is th e q u a lif ic a tio n of th e "sea”
to w hich G r o t i u s refers. The q u e s t i o n of freedom of th e
sea, he e x p l a i n s ,
is not one that concerns an inner sea, one which is surrounded on all sides by the
land and at soae places does not even exceed a river in breadth._CTjhe question at
issue is the outer sea, the ocean, that expanse of water which antiquity describes as
the iaaense, the infinite, bounded only by the heavens. ...[T]he question at issue
does not even concern a gulf or a strait in this ocean, nor even all the expanse of
sea which is visible froa the shore.'7'3
The d e l i m i t a t i o n of th e " se a ” th a t G ro tiu s offers, a l

low s a c o n c l u s i o n to be draw n t h a t th e in n er sea, th e m are
a d ia c e n s , m ig h t n o t be l i b e r u m .^ T his, he ack n o w led g es, is
in fact tru e, at least to a certain e x te n t w ith r e s p e c t to
m arine f i s h e r i e s . It is p erm issib le, G ro tiu s accep ts, for
an i n d i v i d u a l to f e n c e an i n l e t in th e sea for a p riv ate
fish p o n d , ^ 53 b u t t o p r e v e n t an y o n e from f i s h i n g in front of
o n e ’s r e s i d e n c e w o u ld b e a n i l l e g a l u su rp atio n of th e for
m e r's r i g h t s . ' 7®- He i s prepared also to adm it t h a t t h e C ro w n
m ight p e rh a p s have t h e rig h t by v i r t u e of th e iu s p isc a n d i
I b id 29. See t e x t a c c o m p a n y i n g n 19 s u p r a .
I b id 37. He a l s o s p e c i f i c a l l y e x c l u d e s " i n l e t s o f t h e
s e a " { i b i d ) from t h e a r e a t o w h ich h i s a rg u m e n t r e f e r s .
The e x a c t i m p o r t o f t h e t e x t a c c o m p a n y i n g t h i s n o t e i s
y et a m atter of v ary in g in te r p r e ta tio n . O 'C o n n e ll ( s u
p ra I n t r o d u c t i o n n 19, 1 6 ) , f o r e x am p le, i s o f t h e view
th a t in th e t e x t c ite d G ro tiu s " e x p re s s ly excluded"
c o a s t a l w a te r s from t h e freedom o f t h e s e a s p r i n c i p l e .
P r o f e s s o r I v a n S h e a r e r ( s u p r a n 5 9 , 5 4 ) , on t h e o t h e r
hand, s u g g e s ts t h a t " th e M agoffin t r a n s l a t i o n o f th e
t e x t makes i t a p p e a r more p l a u s i b l e a s a r h e t o r i c a l
f l o u r i s h t o make t h e P o r t u g u e s e p r e t e n s i o n s e v e n m ore
a b s u r e d [ s i c ] " . The p r e s e n t w r i t e r r e a d s t h e p a s s a g e i n
th e form er s e n s e .
C f, Fenn, su p ra n 4, 154
M agoffin, supra n 59, 32

76
I b i d 33
41
of th e reg a lia to com pel its su b jects to pay tax es for th e

rig h t to fish in m arine areas. That does not mean, how ever,
th at th e Crown ex ercises dom inium o v e r th e fish e rie s con
cerned or th e resp ectiv e m are a d i a c e n s . In th e view of
G ro tiu s,
revenues levied on aaritiae fisheries are held to belong to the Crown, but they do not
bind the sea itse lf or the fisheries, but only the persons engaged in fishing. ...[For
those individuals not subjects of the Crown,] the right of fishing ought everywhere to
be exeapt froi to lls, lest a servitude be iiposed upon the sea, which is not suscepti
ble to a servitude.7"7.
He r e t u r n s to a c o n sid eratio n of th e sta tu s of co astal

w aters in De J u r e B e l l i ac P a d s L ih ri T res, p u b lish ed in
1 6 2 5 . 7,13 W hile m ain tain in g h is e a rlie r p o sitio n on th e o u ter
sea or ocean, he appears to m o d ify h is p rio r view s reg ard in g
the leg al statu s of th e in n er s e a . 7”5' No l o n g e r is n atu ral
I b id 36. Fenn o b s e rv e s (supra n 4, 156-157) t h a t in

o r d e r t o m a i n t a i n h i s p o s i t i o n , G r o t i u s was f o r c e d t o
i g n o r e t h e f a c t t h a t t h e i u s p i s c a n d i was i n c l u d e d i n
t h e r e g a l i a b e c a u s e i t was t h e l o g i c a l o u tc o m e o f t h e
d o c t r i n e t h a t t h e Crown h ad a p r o p e r t y r i g h t i n t h e
f i s h e r y . G r o tiu s , c o n tin u e s Fenn,
could not grant any p r o p r i e t a s to the king. The result is that the
requireients of his arguaent have forced hin into a contradictory posi
tion on the fishery question where the fishery is located near the shores
of any particular state. When he is discussing the freedon of the high
seas, he is at ease, and he is carrying public opinion with hia. But
when he deals with coastal waters, and with the fisheries therein, he is
not able to nake the facts f it snugly into his theory. He divides the
coastal waters fron the high seas; he acknowledges their existence. But
whatever the basis of his division nay be — and he is not apparently
concerned to have a basis — i t is not grounded on any difference in
kind froa the sea proper.
A s e r v i t u d e i s "a l im it e d r i g h t o f an a b s o lu t e
c h a r a c t e r on som ebody e l s e ' s p r o p e r t y . Its ex isten ce
in i n t e r n a t i o n a l law d e p e n d s on c o n s e n t , r e c o g n i t i o n o r
e s t o p p e l o n o t h e r g r o u n d s ” (G S c h w a r z e n b e r g e r a n d E D
B row n ( A M anual o f I n t e r n a t i o n a l Law ( 1 9 7 6 ; 6 t h e d )
567) .
7 6
G ro tiu s, supra n 62
C f , De P a u w , s u p r a n 5 9 , 6 5 - 7 2 ; F e n n , s u p r a n 4 , 1 6 5 ,
220; J o h n s to n , supra I n tr o d u c t i o n n 19, 166; W R ip h a -
g e n , " G r o t i u s a n d t h e n e w l a w o f t h e s e a " ( 1 9 8 3 ) 1 8 2 RDC
4 1 7 , 4 2 1 , 4 2 2 ; a n d S h e a r e r , s u p r a n 5 9 , 55
42
law seen as prohibiting a coastal State from occupying mari
time waters. Rather, Grotius now writes, natural law leaves
the matter open to regulation by custom, "provided that the
size of that portion of the sea compared with the territory
be not larger than the creek of the sea compared with the
estate".QO The control exercised by the State would be lim
ited to that area of the sea in which "those who sail in
that part of the sea can be compelled from the shore as if
they were on land".*31
No direct reference is made in the work to fishery ju
risdiction in coastal waters. However, Grotius posits only
Grotius, supra n 62, 262. This treatment is indicative

of the growing, explicit preeminence given by Grotius
to positive law over natural law in his writings, par
ticularly those of his later years. Cf, P Guggenheim,
"Contribution a l'histoire des sources du droit des
gens"(1958) 94 RDC 1, 80; P Haggenmacher, "Genese et
signification du concept de ’ius gentium' chez Grotius"
(1981) 2 Grotiana 44; J Kosters, "Les fondements du
droit des gens" in Bibliotheca Visseriana (1925) ix, 1,
50-51; and Shearer, supra n 59, 55.
Grotius, supra n 62, 267. It has been pointed out by

several writers that the idea of limiting coastal State
jurisdiction to the distance of cannon shot did not
find first expression in De Jure Belli ac Pads, but
rather in the 1610 declaration of Holland's ambassadors
in London for fishery discussions. That declaration
read, in part (Fulton, supra n 33, 156, n 1; cf, Gidel,
supra Introduction n 15, iii/I, 37):
2. For that is by the Lawe of nacions, no prince can Challenge, further

into the Sea than he can Cofiand a Cannon except Gulf es w**-11" their
Land fron one point to an other.
That is not to say, of course, that Grotius was not in

volved, at least indirectly, in the formulation of the
views expressed by the ambassadors. According to Ful
ton (supra n 32, 157n), "[c]ompetent authorities be
lieve that Grotius either himself drew up the instruc
tions dealing with the fishery question or was consult
ed in their preparation...” .
O ’Connell (supra Introduction, n 15, 125-126) ex
plains that the cannon-shot rule initially developed as
"a convenient device for linking up diverse, albeit
cognate, questions concerning the protection of ship
ping in port, the salutes due to fortresses and ships
of other nations, and the limits of approach to other
shipping".
43
a single exception to the State's exclusive Imperium over
the inner sea, that is, "unarmed and harmless navigation
upon it" by foreign vessels,®2 permitting the strong infer
ence to be made that fishing in the waters delimited is no
longer free to all men.
The position set out in his 1625 tour de force, Grotius
strongly espouses in his legal opinion seven years later
that although according to Roman law ocean fishing and the
use of the shore to facilitate such pursuits must be free
to all,®® State practice had since developed allowing States
to forbid foreigners fishing at their coasts, to cannon shot
or even beyond.®-*-
Marshalling legal arguments to refute Portuguese claims
concerning the right to trade with the Indies, Grotius had
no need to consider the question of fishing rights in the
Mare Liberum. Those rights were not contested by either the
Portuguese or the Spanish, nor did the Dutch fish in waters
claimed by the former States. Rather, it appears clear that
the references by Grotius are oblique, albeit incomplete,
Grotius, supra n 62, 264
See text accompanying nn 17 and IS supra.
J Oudendijk, Status and Extent of Adjacent Haters: a

Historical Orientation (1970) 49. After noting that
the Dutch as early as 1618 promised the English that
the former’s fishermen would be forbidden to approach
the latter's coasts, and the States-General of the
United Provinces in 1620 had accepted the distance from
which the land could be sighted as the provisional dis
tance for coastal fisheries, "thus officially discard
ing the Grotian theory," De Pauw (supra n 59, 70) ob
serves parenthetically,
What has Grotius done in his [De Jure Belli ac Pads]

but to take the plea which he had written as an advocate [ie, Mare
Liberum] in order to further the“interests of the Dutch East India
Coapany at a definite tiae in certain conditions and with a particular
object, and to bring it into line with political reality?
Cf C Roelofsen, "Some remarks on the 'sources’ of

the Grotian system of international law "(1983) 30 NILE
73, 77, 79
44
attack s on co n tem p o rary E n g lish c l a i m s , a n d it is th ere
fore to E ngland th at we n o w t u r n .
B- J ohn S eiden (1584-1654)

W hereas under E lizab eth I , E ngland espoused a mare li
berum p o l i c y w i t h r e s p e c t t o m arine fisheries, that s itu
atio n was reversed on the u n io n of th e Crow ns of E ngland and
S co tlan d in 1603 and th e accessio n of Jam es I (1566-1625) of
S co tlan d to th e th ro n e. Because of th e great im p o rtan ce of
off-shore fish e rie s to the lo cal economy, S co tlan d had lo n g
im posed re stric tiv e m easures on fo reig n f i s h e r m e n . 63"7 It had
also in tro d u ced a tax or trib u te on do m estic fish erm en , th e
'a s s iz e - h e r r in g ', w hich form ed a part of Crown revenue.
B rin g in g so u th w ith him th e tra d itio n al S co ttish concerns
about liv in g m arine resources and n o rth ern co n cep tio n s of
th e leg al rig h t of th e co astal S ta te to re stric t access to
a d ja c e n t m arine fish e rie s, Jam es I co nceived th e idea of
ex ten d in g th e tax to fo reig n fish erm en as w ell, a larg e
num ber of whom w e r e co u n try m en of G ro tiu s.
In th e firs t decade of th e sev en teen th cen tu ry , d iscu s
sio n s w ere h eld betw een rep re sen ta tiv e s of th e K ing and Lon
don m erchants, th e la tte r p roposing to form a fish e rie s as-
Cf, F e n n , supra n 4 , 1 6 6 ; F u l t o n , supra n 3 2 , 346, 352;

and G i d e l , supra I n t r o d u c t i o n n 1 5 , i , 1 5 1
See tex t accom panying nn 53 and 54 supra.
F u l t o n supra n 3 2 , 7 5 - 7 6 . T his a s p e c t of e a r ly S ta te
fis h e rie s ju ris d ic tio n is p l a c e d i n i t s c o n t e x t by
G i d e l (supra I n t r o d u c t i o n n 15, i i i / I , 2 9 3 ):
Au Moyen Age, on constate deux tendances absoluaent opposees: l'une, la

plus repandue, adaet la liberte des eaux adjacentes pour la peche des
Itrangers; 1 'autre, exceptionnelle, reserve aux nationaux la peche dans
ces eaux. Cette r&erve est propre aux pays dans lesquels la p£che est
le aoyen de vie essentiel pour les populations du rivage; ainsi le droit
norvggien et le droit ^cossais excluent les pecheurs etrangers de toute
participation a la peche cStiere, parce que 1'existence des populations
dans ces pays depend veritableaent des produits de la ier et de
l ’industrie de la peche. Dans ceux, au contraire, ou la p£che ne con-
stitue qu'une source de revenus secondaire, en coaparaison des autres
aoyens de subsistence des populations, la peche est libre. C’est le cas
en France, en Alleaagne, au Daneaark, en Angleterre. Ainsi, la r£gle en
aatilre de peche au Moyen Age est, d'une aaniere generale, la liberte'
Liberte d'ailleurs restreinte par les privileges inseparables du droit
aedieval.
45
sociation based on such a tax. In return for his co-opera
tion, the King was promised substantially increased reven
ue . Cn 6 May 1609, James I issued a Proclamation "for the
restraint of foreigners fishing on the British coasts".
Pleading severe disruption to the local economy as a result
of overfishing by foreign vessels, the King proclaimed that
the theretofore English policy of allowing free access to
the "Coasts and Seas of Great Britain, Ireland and the rest
of the Isles adiacent" would cease from August 1609, and
Britain would henceforth exercise her sovereign rights and
"Prerogative Royall". All foreign fishing vessels would be
required to apply for and be granted annual licenses."
This Proclamation is the first English assertion of
sovereignty over the sea.90
Although sixteenth century British writers had on occa
sion advanced arguments supporting the Crown’s sovereignty
over adjacent marine waters,91 the perception of Mare Liber-

For the text of the Proclamation see ibid 755-756. The
decision of James I was not made purely to safeguard
the livelihood of domestic fishermen however. As Gidel
explains (supra Introduction n 15, iii/I, 294),
Cette transformation s ’explique non seuleaent par l ’aveneaent des rois

STUART sur le trone de Grande-Bretagne, aais aussi par des causes
econoaiques et par le desir des souverains anglais de se constituer une
puissance aaritiae pour laquelle il leur faudrait trouver des equipages
entraines.
At the same time, the Dutch fishing industry off En

glish coasts served as a 'nursery' of seamen for their
own navy (Johnston, supra Introduction n 19, 168).

Thomas Digges (d 1595), an English astronomer, mathema
tician, and engineer, for example, published in 1568 or
1569, a treatise entitled 'Proofs of the Queen's Inter
est in Lands left by the Sea and the Salt Shores there
of, ’ arguing that "kings absolute princes and common
weals" may obtain property in adjacent maritime areas
(Fenn, supra n 4, 170-171). Thomas Craig (1538-1608),
a Scottish jurist, writing in 1603, asserted the doc
trine of the dominium of the seas and became the first
urn a s a s e r i o u s assau lt on B r i t i s h m aritim e p r e te n s io n s , in
clu d in g ju risd ic tio n over f is h e r ie s , stim u lated attem p ts to
d irectly r e b u t G r o t i u s ' a r g u m e n t s . 92 The i n i t i a l essay was
ma de b y W i l l i a m W elwood, a S c o t t i s h law yer, who, in 1613,
became t h e first w riter to clearly en u n ciate th e p rin c ip le
th a t th e in h ab itan ts of a c o a s ta l S tate had a p rim a ry and
ex clu siv e rig h t to a d ja c e n t m arine f i s h e r y resources and
th at th e u su fru c t of th o se w aters belonged to th o se peo
p l e . ' 93 This rig h t, reasons Welwood, stem s from t h e fact
t h a t God a p p o i n t e d fish es to occupy B r i t i s h w aters at cer
ta in seasons and t h u s th e resources w ere a g i f t from t h e
A lm ighty. As w e l l , it is necessary for th e B ritish to exer
cise th e ir law fu l r ig h t s to prevent d e p le tio n of th e resour
ces through o v erfish in g . At t h e same t i m e , how ever, Welwood
concedes th at th e w aters beyond t h e m are a d ia c e n s b elo n g to
all men e q u a l l y . 9"*
B r i t i s h law yer to s t a t e t h a t a s o v e r e ig n i s th e p r o p r i
e to r of th e f i s h e r i e s in h is w a ters (i b i d 172-173).
The t e r m ' B r i t i s h ' u s e d i n t h e t e x t a c c o m p a n y in g
t h i s n o te fo llo w s th e m eanings and c o n n o ta tio n s a s c r i
b e d t o i t b y t h e OED, i e , " o f o r b e l o n g i n g t o G r e a t
B r i t a i n f r o m t h e tim e o f H enry V I I I [ie , 1509]
f r e q u e n t l y u sed to i n c l u d e E n g l i s h and S c o tc h ; i n g e n
e r a l u s e i n t h i s s e n s e from a c c e s s i o n o f James I li e ,
1 6 0 3 ]...". The t e r m ' E n g l i s h ' , m o re p a r t i c u l a r l y , i s
d e f i n e d b y t h e OED a s m e a n i n g " o f o r b e l o n g i n g t o E n g
land" , ie , " th e so u th e rn p a r t of th e is la n d of G reat
B r i t a i n , u s u a l l y e x c lu d in g W ales".
A c c o r d i n g t o Reppy ( s u p r a n 3 2, 2 6 3 - 2 6 4 ) , Mare L ib e r u m
d i d n o t a t t r a c t much a t t e n t i o n u n t i l t h e P r o c l a m a t i o n
o f J a m e s I was m a d e a f e w w e e k s l a t e r : " [ f ] r o m t h a t mo
ment on, i n t h e e y e s o f E n g l i s h a u t h o r s , and in t h e
e y e s o f t h e w o r ld a t l a r g e , Mare L ib e r u m b e g a n t o a s
sume l a r g e r s i g n i f i c a n c e . . . " . Reppy a l s o o b s e r v e s
( i b i d 263) t h a t t h e arg u m en t o f G r o t i u s
was the sane as that presented four years earlier by the English East
India Coapany in a petition to King Jaaes, who at the tiae was negotiat
ing peace with Spain, in which the right of the English to trade with the
Indies was vindicated on exactly the saae grounds as those.. .relied upon
by [Grotius in his] Mare Liberum.
F u lto n , supra n 32, 355
Ibid-, Fenn, s u p r a n 4, 176-177

47
Various subsequent writers similarly took up literary
cudgels in support of the British claim, ^ and the multifar
ious contributions were synthesised and incorporated into
the classic statement of the British position, John Seiden's
opus, Mare Clausum, published in 1635 at the request of
Charles I (1600-1649).^
The essence of Seiden's argument may be summarised as
follows.^ There is no law, divine, positive or natural,
prohibiting the sea from coming under the exclusive dominion
of States. Rather, the "Law Natural", a division of the
"universal or Primitive Law of Nations, commonly derived
from a right and discreet use of Reason" and evidenced by
"the customs of almost all and the more noble Nations that
are known to us," admits dominion of the s e a . " That domin
ion, argues Seiden, is over
the whole sea, as well as the sain Ocean or Out-land Seas, as those which are within-
land, such as the Mediterranean, Adriatic*, Aegean or Levant, British and Baltick
Seas, or any other of that kinde, which differ no otherwise froa the aain, then as
Hoaogeneous or Siiilarly parts of the saae bodie do froa the whole.99
He derides Grotius' conclusion that only lesser parts

of the sea may become property of the State. Because there
is no physical difference between marine waters, capacity to
Gerard Malynes (1586-1641), for example, advanced his

own treatise on maritime law, agreeing with the views
of Welwood. Robert Callis (fl 1634) and Lord Coke
(1552-1634) based their positions primarily upon common
and statute law, while Sir John Borough (d 1643) argued
from historical data (ibid 177-183).
John Seiden, Mare Clausum, seu de Dominio Maris Lihri

Duo (London, 1635). The work from which the following
references are drawn is John Seiden, Mare Clausum: the
Right and Dominion of the Sea, in Two Books (London,
1663; J H Gent, trans). Fulton (supra n 32, 366-367)
suggests that Seiden's activity was probably stimulated
by his desire to place himself in the King's favour.
For more detailed summaries of his position see ibid

366-377, and Fenn, supra n 4, 184-196.
Seiden, supra n 96, 41-42
Ibid 12
48
a c q u ir e dom inion sh o u ld be th e so le determ in in g facto r, not
the e x te n t of th e ocean a re a c o n c e r n e d . 100
O ther argum ents ag ain st p riv ate o w n e r s h i p b a s e d on t h e
natu re of the sea such as those ra is e d by G r o t i u s , t h a t is ,
th e sea is alw ays i n m o tio n and i s b o u n d l e s s , 101 a r e also
specio u s. As r i v e r s and f o u n t a i n s have long been s u s c e p t i
ble of p riv a te ow nership, observes S eiden, "why s h o u l d it
n o t bee acknow ledged in lik e manner t h a t t h e r e may b e O w n e r s
o f any Sea w h a ts o e v e r? S ince th e flu id n a tu re of w ater can
no m o r e h i n d e r a D om inion i n th e one, then in t h e o t h e r . ” 102
He a g r e e s w ith G ro tiu s th at "w h ere D om inions a r e d i s
tin g u ish ed , n o t h i n g c a n be m ore d e s i r a b l e t h e n know n a n d
certain Bounds i n e v e r y p l a c e . . . ” . 103 How ever, he c o n f e s s e s
a failu re to und erstan d why s h o r e s should n o t be l a w f u l
b o u n d a r ie s upon w hich t o b a se a dom inion in the sea, ju st as
trees, d itch es and o t h e r p h y sical featu res a r e on l a n d . Sim
ila rly , in th e open s e a s u s e may b e m a d e o f i s l a n d s , rocks
and ev en l i n e s d elim itin g la titu d e and l o n g i t u d e for bound
ing a t e r r i t o r y . 10-*
G r o t i u s ’ argum ent c o n c e rn in g th e in ex h au stib ility of
th e s e a s ’ re so u rc e s is lik ew ise d ism issed . A ccording to
S eid en ,
we often see, that the Sea it self, by reason of other aen's Fishing, Navigation, and
Coaaerce, becca’s the wors for hia that own's it. ...It is obvious...to every aan
that...the abundance either of Pearls theaselvs, or of those shell-fishes, which pro
duce the®, aay through a proaiscuous and coaaon use of the Sea, bee diainished in any
Sea whatsoever. Where then is that inexhaustible abundance of Coaaodities in the Sea,
which cannot be iapaired? There is truly the saae reason also, touching every kind of
Fishing.10=5
100 I b i d 172-173
101 See t e x t a c c o m p a n y i n g nn 6 4 - 6 8 supra.
-0:2 S eiden, supra n 96, 130
103 I b i d 135
10^ I b i d 135-136
1o s I b i d 141-142
49
And fin a lly , he re je c ts th e a rg u m e n ts of ju ris ts such
as V azquez and G ro tiu s who d e n y th e e ffe c tiv e n e s s of p re
s c rip tio n or c u sto m as le g a l c la im s to th e sea. Such v ie w s,
S e id e n w rite s, do not co n fo rm to re a lity and w hat S ta te s
c o n s id e r to be e x is tin g in te rn a tio n a l law :
Aliost all the principal points of the Intervenient Law of Nations, being established
by long consent of persons using thei, do depend upon prescription or ancient Cus-
toi...[a]nd truly, to deny a Title or prescription wholly among Princes, is plainly to
abrogate the very intervenient Law of Nations.1 0 Ä
He t h u s c o n c lu d e s on th e w e ig h t of h isto ric a l e v id e n c e
th a t d o m in io n over th e sea is p e rm iss ib le and th a t th e B ri
tis h have re c o g n iz e d d o m in io n over b ro ad expanses of ocean
w a te rs su rro u n d in g th e ir c o a s t s . 1 0 "7
XOÄ Ib id 170, 171. A c c o rd in g to S e id e n (ib id 1 5 ),
The Intervenient Law of Nations...take's its rise, not froa any coaaand
iaposed upon several Nations in comon, but through the intervention ei
ther of soae Coapact, or Custoa; and i t is coaaonly styled the Secondarie
Law of Nations__
10^ S e id e n ' s d e lim ita tio n o f th e a c tu a l b o u n d a rie s of th e

B r itis h seas is as im p re c ise as i t is g ra n d io se . He
c o n s i d e r s th em a s c o m p r i s i n g " t h a t w h ic h f lo w s b e tw e e n
E n g la n d and th e o p p o s i t e s h o r e s and p o r t s " . M o re s p e
c i f i c a l l y , th e y i n c l u d e , on t h e w e s t, t h e V e r g iv ia n
S e a , a ls o c a l l e d th e D e u -C a le d o n ia n Sea w here i t l i e s
a t t h e c o a s t s o f S c o t l a n d , and i n w h ic h I r e l a n d i s s i t
u a t e d ; on t h e e a s t , t h e G erm an O c e a n , l y i n g o p p o s i t e
t h e G erm an s h o r e ; a n d , o n t h e s o u t h , a l l s e a s e x t e n d i n g
a lo n g th e F re n ch c o a s t s as f a r as th e n o r th e r n c o a s t s
o f S p a in . M a ritim e w a te r s e x te n d in g to th e N o rth P o le ,
G re e n la n d and th e A m e ric a s, b e c a u s e o f th e v a s t d i s t a n
c e s in v o lv e d , c o u ld n o t a l l be c a ll e d B r i t i s h in S e i
den ' s v iew . N e v e r th e le s s , as th e E n g lis h k in g s had
v e ry la r g e r ig h t s in th o s e w a te r s , th e y have to be
ta k e n in to a c c o u n t { i b i d 1 8 2 -1 8 6 ). At th e c o n c lu sio n
o f h i s w ork, S e id e n s u m m a ris e s t h e ab o v e c la im { i b i d
459; e m p h a sis a d d e d ):
And without question i t is true...that t h e v e r y S h o r e s

o r P o r t s of the Neighbor-Princes beyond-Sea, are bounds of the Sea-
Territorie of the British Empire to the Southward and Eastward; but that
in the open and vast Ocean of the North and West, they are to be placed
at the utmost extent of those most spacious Seas, which are possest by
the English, Scots and Irish.
50
As the arguments of Grotius, Seiden and, to a lesser
extent, other writers of the period have already been ana
lyzed in depth elsewhere, the exercise need not be repeated
herein. For present purposes, however, two observations may
usefully be offered. The first relates to the internation
al context in which the arguments of Grotius, Seiden and
others were advanced. From the narrow perspective of juris
prudential reasoning, it is widely accepted that the argu
ments of Seiden were superior to those of Grotius, and in
deed reflected contemporary maritime claims.100 In the
broader realm of State practice, however, they failed to
gain currency. Rather,
the conduct of the British was so brutal, so exclusive and dosinating, over the suc
ceeding years, as to provoke a strong reaction in favour of the Grotian concept [of
the freedoa of the seas] with the result that the weaker aaritiae powers, alaost as a
natter of self-preservation, abandoned the banner set up by Seiden . 1 0 0
Thus, although perhaps relatively inferior in legal ar

gumentation, Mare Liberum, in the words of Calvo, "had the
incontestable merit of having... entered directly into the
spirit of modern civilization".110 That being acknowledged,
it is nevertheless true that States did not accept the Gro
tian concept in its absolute form, as was at least implied
in the Mare Liberum. As Reppy observes, ” [a]lthough the
world was anxious to secure the right of navigation, it
probably was not desirous of depriving states of minor
rights of property [in coastal waters] and the general
rights of sovereignty incidental to national ownership".111
100 Cf, Reppy, supra n 32, 271; and Eric Fletcher ("John
Seiden (author of Mare Clausum) and his contribution to
international law"(1934) 19 Trans of the Grotius Soc 1,
11), who writes that "the Mare Clausum was the faithful
mirror of the actual and the exhaustive record of the
past. ...Seiden based his treatise on the positive
practice of his day."
100 Reppy, supra n 32, 272
110 C Calvo, Le Droit international theorique et pratique

(1896; 5th ed) i, 476; cited in ibid
111 Ibid 273

51
Fenn agrees, pointing out that
The British claias...were extravagant to the point where they encroached upon the high
sea. When Grotius denounced such pretensions, he spoke to the nark. But he denounced
then for the wrong reason. — [T]he question, how far out to sea territorial waters
extend, is essentially different fron the question, whether there can be territorial
waters. ...The real problen was, to restrict territorial waters within reasonable
bounds.1X2
As a result of the above, writes Reppy, "the real doc

trine. ..was being hammered out as a rule of convenience on
the anvil of commercial, naval and political rivalry". 11:3
While some States, Great Britain in particular, continued to
maintain extensive maritime claims, at least in theory,
throughout the seventeenth century, there gradually appeared
a significant gap between theory and practice, as States ne
gotiated treaties and enacted domestic legislation accepting
jurisdiction over relatively narrow bands of littoral
waters.1x^
Before moving to a discussion of that practice, how
ever, it is important to make a second observation: namely,
that although the impact of the juristic writings of Gro
tius, Seiden and their predecessors on the course of State
practice relating to maritime law was mainly indirect, the
erudite endeavours of the protagonists provided both a legal
framework and a fertile source of inspiration for subsequent
scholars and statesmen as they attempted to come to grips
with the juridical underpinnings of State fishery jurisdic
tion. It is on the above beginnings that much of modern in
ternational law relating to fisheries rests.
C. Seventeenth and Eighteenth Century Searches for a

Compromise Position
After Grotius' pioneering attempt to systematize the
rules of international law, De Jure Belli ac Pads, the sev-
11=2 Fenn, supra n 4, 220; cf, O'Connell, supra Introduction

n 19, 10, 13
113 Ibid 274
xx^ Reppy, supra n 32, 273-274; O ’Connell, supra

Introduction, n 19, 125
52
en teen th and e i g h t e e n t h cen tu ries saw t h e rise of th re e d if
ferent scien tific sch o o ls: th e 'N a tu r a lis ts ,' th e 'P o s itiv
ists,' and t h e ’ G r o t i a n s ’ . 1 1S it is useful at th is stag e to
com plete t h i s alb eit cursory d iscu ssio n of th e foun d atio n s
of th e modern i n t e r n a t i o n a l law o f fish eries by n o t i n g how
lead in g fig u res from e a c h s c h o o l d e a l t w i t h the su b ject,
b u ild in g on t h e e f f o r t s of th e ir predecessors.
1 - S a m u e l P u f e n d o r f __( 1 6 3 2 - 1 6 9 4 )
The l e a d i n g fig u re of th e 'N a tu r a lis t' school du rin g
th e p erio d was S a m u e l P u f e n d o r f , a German l e g a l academ ic,
who s e t fo rth h is v ie w on t h e sea and i t s resources in De
J u r e N a tu r a e e t G entium , p u b lish ed in 1 6 7 2 . 11<5, He a g r e e s
w ith G ro tiu s th at, g en erally , "some t h i n g s , although u s e fu l
t o men, are because of th e ir ex ten t in ex h au stib le, so t h a t
th e y can l i e open to the use of a l l a n d y e t t h e u s e o f no
sin g le man b e a n y t h e w o r s e . To s u b j e c t s u c h t h i n g s to pro
p rieto rsh ip w ould be m a l i c i o u s a n d i n h u m a n e . " 1 1 '7
However, argues Pufendorf, a cen tral argum ent of G ro
tiu s a g a i n s t dom inion o v e r th e sea, th at is, th e in ex h au s
tib ility of reso u rces, is su b ject to q u a lif ic a tio n . Sup
p o rtin g S eiden, he r e a s o n s th at
fishing can be partially exhausted and becoie less profitable to aaritine peoples, if
any and every nation should want to fish along soae particular shores; especially
since it is often happens that fish...are often found in only one part, and that not
very extensive, in the sea. In such cases nothing [in natural law] prevents the peo
ple dwelling along that shore or neighboring sea froi being able to lay a stronger
11=s O p p e n h e i m ’s I n t e r n a t i o n a l Law ( 1 9 5 5 , 8th e d ; H L a u te r

p a c h t e d ) i , 94-95
11<s S P u f e n d o r f , De J u r e N a t u r a e e t G e n t i u m ( 1 6 7 2 ; T h e
C l a s s i c s o f I n t e r n a t i o n a l Law ( 1 9 3 4 ) # 1 7 ; O l d f a t h e r ,
t r a n s ). ' N a t u r a l i s t s ' , e x p l a i n s O ppenheim {s u p r a n 115,
9 5 ), i s th e term u sed to d e s c r i b e th o s e w r i t e r s d e n y in g
t h e e x i s t e n c e o f any p o s i t i v e i n t e r n a t i o n a l law w h a t
e v e r r e s u l t i n g from c u s to m s o r t r e a t i e s , w h i l e m a in
t a i n i n g t h a t i n t e r n a t i o n a l law i s o n l y a p a r t o f n a t u
r a l law . F o r a summary o f P u f e n d o r f ' s a p p r o a c h t o i n
t e r n a t i o n a l law g e n e r a l l y s e e N ussbaum, s u p r a n 48,
147-150.
1 1'7 Pufendorf, su p ra n 116, 558. See t e x t accom panying n

66 s u p r a .
53
claia to its felicity than those who dwell at a distance, nor can the rest of aankind
rightfully hate or envy that for this, any aore than because 'Not every land bears
everything’_ _ 1 1 Q
Similarly, Pufendorf echoes Seiden ’s arguments in dis

missing Grotius' contention that because of its fluid and
boundless nature the sea cannot be occupied. Rather, just
as with rivers and other small inlets of the ocean, dominion
over the sea is possible where the frontiers of the area
claimed can be reasonably delimited.110 He follows earlier
writers in positing that the extent of that dominion be that
to which effective possession is possible, or as agreed in
treaties. In case of doubt, dominion would be presumed to
extend over the marginal sea so far as may be necessary for
defence purposes.120
2- Cornelius van Bynkershoek (1673-1743)

The Anglo-Dutch debate on the extreme jurisprudential
positions expounded in Mare Liberum and Mare Clausum effec
tively ended as far as the Dutch were concerned with the
publication in 1702 of De Dominio Maris Dissertatio by Byn-
kershoek,121 the leading Positivist of his time.122
110 Ibid 562; of, the argument of Welwood, text accompany

ing nn 93 and 94 supra. See also text accompanying n
106 supra.
110 Ibid 560. See text accompanying n 104 supra.
120 Ibid 563-565
121 C van Bynkershoek, De Dominio Maris Dissertatio (2nd

e d , 1744; Classics of International Law, 1923; Magof
fin, trans). There is some dispute concerning the year
in which Bynkershoek's was originally published. Ful
ton (supra n 32, 555) and Oudendijk (supra n 84, 107, n
1), for example, state that it was published in 1703.
Scott, in his "Introduction" to the 1923 edition of the
work cited above (pg 13) states that it first appeared
in 1702. For a brief summary of Bynkershoek's approach
to international law generally, see Nussbaum, supra n
48, 167-172.
122
Oppenheim (supra n 115, 96) explain that ’Positivists'
include all those writers who in contrast to 'Natural
ists' (see n 116 supra) not only defend positive inter-
54
B ynkershoek agrees w ith S eid en th a t th ere is no p r i n c i
p le of Roman, n atu ra l, or in tern atio n al law p rev en tin g a na
tio n ex ercisin g so v ereig n ty over th e s e a . 123 "it is p o ssi
b l e , ” he a s s e r t s , "for th e sea to be u n d e r so v ereig n ty as
co m p letely as an y th in g else in th e w o r l d ” . x2-x G r o t i u s , Byn
kershoek contends, erred in claim in g th at th e sea is res
c o m m u n is a n d th e re fo re in ap p ro p riab le because it satisfies
th e needs of all to th e d isad v an tag e of none. R ather,
i t is not true that the right of occupation [ i e , ownership] flowed froi necessity
alone; utility...lust also be aade a partner in the latter. Necessity coiuanded occu
pation, utility persuaded to occupation. So that each person seeis according to the
rule of nature to have occupied what was necessary and 'useful to hia.X2!S
As a n e x a m p l e of th e above p ro c e ss he in sta n ces claim s

based on f i s h i n g req u irem en ts:
a res ccaaunis can be uade aliost useless by proiiscuous use, as often happens in a
sea which has been fished out. But even if a res coMunis offers perpetual use to ev
eryone, it will nevertheless offer a greater use, if it is private property. If, for
exaaple, there should have been given to ie alone the right to fish in this or that
sea, it will be Bore useful than if that peraission be given to everybody__ X2Ä
The e s s e n t i a l featu re of ow nership of any k in d , in Byn

k e r s h o e k ’s view , is effectiv e p o ssessio n w ith th e in ten tio n
to ap p ro p ria te. Once e i t h e r aspect d isap p ea rs, th e th in g
possessed rev erts to th e statu s of res n u lliu s and thus ca
pable of being r e a p p r o p r i a t e d . 1 2 '3F In th e case of th e 'o u t
er' or 'h ig h ' sea, he a rg u e s , ow n ersh ip is m ain tain ed by
n av ig atio n "p erp etu ally ex erc ised for keeping guard of th e
s e a ” . 120 F orm erly, th e Romans h a d owned t h e en tire M ed iter-
n a t i o n a l law r e s u l t i n g from cu sto m and t r e a t i e s , b u t

a l s o c o n s i d e r i t m ore i m p o r t a n t th a n n a t u r a l law .
12:3 B ynkershoek, s u p ra n 121, Ch I X ; see also te x t

accom panying n 98 s u p r a .
1 2 "* Ib id 29
x2=s Ib id 91. See also te x t accom panying n 66 s u p r a .
120 Ib id 91-92
127
Ib id 37-39, 54
55
ranean Sea because they possessed all of the surrounding
coasts and had guarded their claim with four fleets. How
ever, their claim to ownership subsequently disappeared with
the collapse of the Roman Empire.12“* Today, Bynkershoek
notes, no nation has legitimate claim to ownership of entire
seas or oceans; nor because of the vast areas involved are
such claims to be expected in the future.130
At the same time, however, he observes that virtually
every nations possesses ’’some little part of the [adjacent]
ocean".131 In keeping with the legal nature of the sea and
the concept of ownership, therefore, he suggests a principle
earlier adumbrated by Grotius and others; that is,
the possession of a laritiie belt ought to be regarded as extending just as far as it

can be held in subjection to the aainland; for in that way, although it is not navi
gated perpetually, still the possession acquired by law is properly defended and aain-
tained; for there can be no question that he possesses a thing continuously who so
holds it that another can not hold it against his will.132
Surveying various limits espoused by earlier writers,

it seems to Bynkershoek "a better rule that the control of
the land over [the sea] extends as far as cannon will car
ry"; that is, "the power of the land properly ends where the
force of arms ends".133 The maritime belt thus controlled
13S Ibid 46. By ’outer’ or 'high sea’, Bynkershoek means

"the sea which a state can not dominate from the
land"(ibid).
12^ Ibid 49-50, 55, 78, 86-87. But see in this regard nn
15 and 17 and accompanying text supra regarding Roman
’dominium' over the Mediterranean.
130 Ibid 55, 60, 77, 80-81
131 Ibid 80
133 Ibid 43
133 Ibid 44. According to W Walker ("Territorial waters:
the cannon-shot rule"(1945) 22 BYIL 210), Bynkershoek
didn't invent the rule, as the latter had existed in
France and many other Mediterranean countries much ear
lier, at least for neutrality. It seems to Walker that
Bynkershoek meant to do no more than approve the rule.
See also text accompanying nn 81 and 121 supra.
O ’Connell {supra Introduction, n 19, 126) observes
that it is as yet uncertain whether the cannon-shot
56
by th e c o a sta l S ta te w o u ld be mare c la u s u m ; m a r in e w a te rs
beyond, m a r e l i b e r u m . 1 3 -*
In c o n tra s t to G ro tiu s ' p o sitio n in th e Mare L ib e r u m
th a t th e S ta te possesses no m o re th a n im perium o v e r its ad
ja c e n t w a te rs, B y n k ersh o ek arg u es th a t " th e sea w hen occu
p ie d and possessed passes over in to th e o w n e rsh ip , in to th e
p ro p e rty of h im who o c c u p ie s and possesses i t . . . " . 13® In
o th e r w o rd s, fo r B ynkershoek, o c c u p a tio n and p o sse ssio n g iv e
b o th so v e re ig n ty ( im perium ) and o w n e rsh ip (dom inium ), th e re
b e in g , in h is v iew , no d i s t i n c t i o n . 130. T hus,
a nan who holds a sea after a lawful occupation of i t can also prohibit others froi
navigating i t, whether absolutely or conditionally. Absolutely, if for instance, he
were to order thea to keep away froi i t in every possible way, for fishing,...or any
other reason.137.
r u le e s ta b lis h e d f is h e r y lim its as w e ll as th o se o f

n e u t r a l i t y , and w h e th e r i t a p p lie d a lo n g th e e n t i r e
c o a s t o f a S ta te d u rin g th e p e rio d a re as y e t u n c e r
ta in . A lth o u g h t h e D u tc h c la im e d i n 1610 r h a t f i s h
e ry l i m i t s w ere th o s e o f c a n n o n -s h o t ( s e e n SI su p ra ),
t h e n e x t r e c o r d e d i n s t a n c e o f a s i m i l a r c la i m w as i n
1740, i n a m a tte r c o n c e r n in g a D a n ish f r i g a t e in I c e
la n d ic w a te rs .
1.3-». B ynkershoek, supra n 121, 81
1355 Ib id 55. See a lso te x t a c c o m p a n y in g nn 76 and 77

supra.
13<s Ib id 61. O ’C o n n e ll ( supra In tro d u c tio n n 15, 15)

e x p la in s th a t
In the doctrine that became established by 1700, the power to rule

(imperium) and the ownership of the sea (dominium) coalesced in a
single criterion of jurisdiction which dominated juristic thought for the
next two hundred and fifty years. According to this view of the matter,
imperium and dominium could exist only in conjunction, so that the
power to rule and to legislate, which is the power of imperium, could
extend only so far as the ruler and legislator possessed dominium, or
the rights of an owner [see n 35 s u p r a ] . It followed from this that
foreign ships were beyond the grasp of authority of the coastal State
when outside the boundaries of its territory. The sea, therefore, would
be either totally mare li be r um or totally mare clausum, and
the intermediate situation where the coastal State would have mere
'jurisdiction’ would be inconceivable.
13-7 B y n k ersh o ek , supra n 121, 57

57
Concurrently, however, he accepts that by natural law
fishing on the high seas is free to all men and remains so
until such time as the waters in question are legitimately
subjected to owner s h i p . 13'3
3. Emmerich de Vattel (1714-1767)

One of the leading Grotians of the t i m e , 13** Vattel was
a Swiss jurist and diplomat whose work had a particularly
profound influence on the development of international law.
His Le Droit des gens: o u , principes de la loi naturelle,
appliques a la conduite et aux affaires des nations et des
souverains, published in 1 7 5 8 , 1'*°
* quickly became widely
recognized as a classic statement of international legal
norms, particularly in Britain and the United S t a t e s . 1'*1
Following Grotius and Pufendorf, Vattel argues that "la
nature ne donne point aux hommes le droit de s'approprier
les choses dont 1'usage est innocent, indpuisable & s ü f f i
sant 'a tous . . .". 1‘*z Since the use of the high seas for
Ibid 96
13<5* Oppenheim (supra n 115, 98) explains that the ’G r o

tians ’ stand midway between the Naturalists (see n 116
supra) and the Positivists (see n 122 supra ) . They
consider positive or voluntary international law of
equal importance to natural law, devoting their i n t e r
est to both alike. In a rather caustic assessment of
their approach, Schwarzenberger and Brown, supra n 77,
17) write:
The followers of this school select fron natural law, legal aaxias, inci
dents of State practice and decisions of national and international
courts what appears to fit into their a priori iaages of inter
national law.
1^° E de Vattel, Le Droit des gens: o u , principes de la loi

naturelle , appliques ^ la conduite et aux affaires des
nations et des souverains (1753; Classics of Interna
tional Law, 1916). For a summary of his approach to in
ternational law generally, see Nussbaum, supra n 48,
156-164.
x* x A de Lapradelle, "Introduction", in ibid i, pp xxvii-

x x x i i i ; and F Ruddy, International Law in the Enlight
enment: the Background of Emmerich de Vattel’s Le Droit
des Gens (1975) 281. See also Ch 2, nn 29 and 40 and
accompanying text infra.
58
n a v ig a tio n and fis h in g is in n o c e n t and th e re s o u rc e s in e x
h a u s tib le , he o b s e rv e s , no S ta te has th e r ig h t to a p p r o p r i
a te th e m or c la im th e s o le r ig h t to th e ir u s e . 1'* 2
3 T h is r u le
is q u a lifie d o n ly to th e e x te n t th a t S ta te s m ay a c q u ir e such
r ig h ts by t r e a t y 1 '* 4* or w ith th e im p lie d consent o f o th e r
S ta te s . W ith re s p e c t to th e la t t e r , he e x p la in s
Qu'une^Nation en possession de^la navigation 4 de la peche en certains parages, y pre-

tende a un d ro it exclusif, 4 defende ^ d'autres d'y prendre part: s i celles-ci
obeissent a cette defense, avec des aarques süffisantes d'acquiesceaent, elles
renoncent taciteient 1 leur d ro it en faveur de ce lle -la , 4 lu i en etablissent un,
qu'elle peut legitiaement soutenir contre elles dans la suite, sur-tout lo rs q u 'il est
confirne par un long usage.1 **3
O th e r w is e , such r ig h ts as f is h in g on th e h ig h seas do
not la p s e th ro u g h n o n -u s e . They can be e x e r c is e d a t any
tim e , even i f th e S ta te w is h in g to fis h has not p r e v io u s ly
done so in th e w a te rs in q u e s tio n , or has not fis h e d in th e
a re a fo r a v e ry lo n g t i m e . 1 **45,
A d iffe r e n t r u le a p p lie s to litto r a l w a te rs h o w e v e r.
V a tte l s id e s w ith S e id e n and o th e rs in a r g u in g th a t
Les divers usages de la aer, pres des c3tes, la rendent tres susceptible de propriete.
On y peche, on en tir e des coquillages, des perles, de l ’ aabre 4 c. Or'a tous ces
egards, son usage n’ est point inepuisable; en sorte que la Nation a qui les cotes ap-
partiennent, peut s ’ approprier un bien, dont e ile e s tNa portee de s’ euparer, 4 en
fa ire son p ro fit, de a€&e q u'elle a pu occuper le doaaine des terres qu'elle habite.
Qui doutera que les pecheries de perles de Bahre» 4 de Ceylan ne puissent legitimeaent
toaber en propriete? Et quoique la peche du poisson paroisse d'un usage plus in^puis-
abie; s i un peuplg a sur ses cotes une p&herie particuliere 4 fructueuse, dont i i
peut se rendre aaitre, ne lu i s e ra -t-il pas perais de s'approprier ce bienfait de la
Nature cowne une dependance du pays q u 'il occupe1 '* '7; 4 s ’ i l y a assez de poisson
2 V a tte l, supra n 1 4 0 , i, 2 4 3 -2 4 4 . See te x t a c c o m p a n y in g

n n 6 6 a n d 1 1 7 supra.
3 Ibid 243
He c i t e s a s a n e x a m p le t h e t r e a t y i n w h ic h A u s t r i a r e
n o u n c e d i n f a v o u r o f E n g la n d a n d H o l l a n d t h e r i g h t t o
s e n d v e s s e ls fr o m t h e N e th e r la n d s t o th e E a s t I n d ie s
(ibid 2 4 5 ) .
s Ibid 246
0 Ibid
Cf te x t a c c o m p a n y in g nn 93, 94 and 117 supra.

59
pour en fournir aux Nations voisines, de se r^server les grands avantages qu'il en
peut tirer pour ie Coaaerce?1'*®
For V a tte l, it is n ecessary fo r a c o a s ta l S ta te to have

a lw a y s had p o sse ssio n of its a d ja c e n t m a rin e w a te rs and e x
e rc ise d rig h ts th e re to ; o th e rw ise , th e la tte r w o u ld be unop-
p o sa b le to o th e r S ta te s. If, fo r e x a m p le , it had once r e c
o g n iz e d th e com m on r i g h t of o th e r S ta te s to fish in th o se
w a te rs, it m ay n o lo n g e r ex c lu d e th e m , at le a st th o s e w h ic h
had e x e r c is e d th a t r i g h t . L i k e B yn k ersh o ek , h ow ever,
V a tte l a c c e p ts th a t le g itim a te p o sse ssio n g iv e s th e c o a sta l
S ta te e x c lu siv e rig h ts of so v e re ig n ty and o w n e rsh ip , ju s t as
on l a n d . ls o
R e g a rd le ss of w h e th e r a S ta te had a c tu a lly e x e rc ise d
fish e ry ju risd ic tio n over a d ja c e n t h ig h seas areas, V a tte l
a lso le n d s su p p o rt, as d id many s u b s e q u e n t p u b lic ists, to
B y n k e rsh o e k ’s p roposal fo r d e te rm in in g th e lim its of a
S t a t e ’s e x c l u s i v e ju risd ic tio n over c o a s ta l w a t e r s , 131 and
c o n c lu d e s th a t th e can n o n -sh o t ru le is g e n e ra lly re c o g n iz e d
in te rn a tio n a lly as fix in g th e e x te n t of a n a t i o n ’s m a ritim e
t e r r i t o r y . 13:2
1'*e V a tte l, supra n 140, 247
Ibid
1=50 I b i d 2 5 3 -2 5 4 . S e e t e x t a c c o m p a n y in g n 135 s u p r a .
S p e a k in g o f a n a t i o n ’s p r i v a t e and e x c l u s i v e r i g h t to
i t s t e r r i t o r y , V a tte l w r ite s ( i b i d 1 9 2 ):
Ce droit coaprend deux choses: 1° le Domai n e , en vertu duquel

la Nation peut user seule de ce pays pour ses besoins, en disposer 4 en
tirer tout 1'usage auquel il est propre. 2° L ’E m p ire , ou le droit du
souverain Coanandeaent, par lequel eile ordonne 4 dispose a sa volonte de
tout ce qui se passe dans le pays.
131 He w r i t e s (supra n 140, 249) th a t
de Nation a Nationr tout ce que 1’on peut dire de plus raisonnable, c'est
qu'en general la Doaination de 1'Etat sur la aer voisine va aussi loin
qu'il est necessaire pour sa surete 4 qu’il peut la faire respecter;
puisque d'un cote, il ne peut s ’approprier d'une chose comune, telle que
la aer, qu'autant qu’il en a besoin pour quelque fin legitiae..., 4 que
d’un autre c3te ce seroit une pretention vaine 4 ridicule de s'attribuer
un droit, que l'on ne seroit aucuneaent en etat de faire valoir.
60
The early development of international law featured a

close relationship between the efforts of leading juriscon
sults and State practice. As the Earl of Birkenhead ob
serves ,
The writings of such xen as...Grotius, Puffendorf [sic], Bynkershoek, [and]

Vattel...have undoubtedly contributed greatly to the development of rules controlling
the intercourse of States, and it is important to notice exactly how their influence
has been exerted. In some cases, by minute historical investigation, these great ju
rists have influenced practice by recalling it to the channel of an almost-forgotten
precedent. In others they have openly advocated changes which, by their inherent rea
sonableness, have afterwards procured acceptance for themselves. Here, in an indirect
and circuitous sense, works of writers give birth to law...; but the real source of
the law, the decisive criterion of its existence, is not the argument of the book...,
but the iipriaatur practically supplied by international adoption.133
The success of Vattel's Le Droit des gens, for example,

was due to its satisfying the needs of the Age of Enlighten
ment in which it appeared.153'* By the mid-eighteenth cen-
i=sa Ibid 250

133 International Law (1927; 6th ed; R Moelwyn-Hughes, ed)
23-24; of, Starke (supra n 55, 12) who writes
similarly that
Side by side there proceeded naturally a kind of action and reaction be
tween the customary rules and the works of these great writers; not only
did their systematic treatment of the subject provide the best evidence
of the rules, but they suggested new rules or principles where none had
yet emerged from the practice of States. The influence of these great
jurists on the development of international law was considerable, as can
be seen from their frequent citation by national courts during the nine
teenth century and even up to the present day.
See in the latter regard n 163 and accompanying text

infra.
1S"* R White (Europe in the Eighteenth Century (1965) 59)

writes that " [a]t no other time had talk about interna
tional law, or the law of nations, been so common” . By
the early eighteenth century, virtually all of Europe
had enthusiastically embraced the new, more seculari
sed, ’enlightened' natural law philosophy unfolded al
most a century earlier in the writings of Grotius and
finding its foremost exponent in Pufendorf (Ruddy, su
pra n 141, 34; see n 116 and accompanying text supra).
At the same time, however, the tentative princi
ples of natural law offered by publicists often failed
to find expression in State practice. Montesquieu
61
tu ry , E u r o p e was recep tiv e to , and in d eed req u ired , a clear
statem en t of accep tab le in tern atio n al leg al p rin cip les based
on n a t u r a l law w h ic h at th e same ti m e gave due r e c o g n itio n
to th e contem porary em phasis on S t a t e p ractice and r e l a t i o n s
based on a p h i l o s o p h y of ra iso n d 'e ta t. T his is ex ac tly
w h a t was p r o v i d e d by V a t t e l ’s Le D ro it d e s g e n s . 13 3 In fact,
th e la tte r co n stitu ted an im p o rtan t step in th e ev o lu tio n of
in tern atio n al leg al th e o ry . The p r a c t i c e of S tates, w hich
p lay ed such a key r o l e as a source of law in B ynkershoek's
w ritin g s, was v i v i d l y reflected in V a t t e l ’s m ore a c c e s s i b l e
and c o m p r e h e n s i v e w o r k . 130 T his paved th e way f o r th e ear-
(1689-1755), one o f th e p r i n c i p a l c r i t i c s of th e pe

r i o d , w r o te i n 1721 ( L e t t r e s P e r s a n e s ( P a r i s a la C ite
d e s L i v r e s ; 1931 e d ) L e t t e r 9 4 , 207) t h a t
Le droit est plus connu en Europe qu'en Asie; ce-pendant on peut dire que
les passions des princes, la patience des peuples, la flatterie des
ecrivains, en ont corruapu tous les principes.
Ce droit, tel qu'il est aujourd'hui, est une science qui apprend
aux princes jusques \ quel point, ils peuvent violer la justice sans cho-
quer leurs interns.
In i n t e r n a t i o n a l r e l a t i o n s , t h e m odern S t a t e - s y s
tem w h ic h d e v e l o p e d a r o u n d t h e 1648 P e a c e o f W e s t p h a l i a
p ro v id ed th e s t r u c t u r e fo r a l l a c t i v i t y , re p la c in g th e
f a d e d H o l y Roman E m p i r e . The u n d e r l y i n g p r i n c i p l e o f
t h a t s y s t e m was t h e b a l a n c e o f p o w er ( W h ite , s u p r a t h i s
n o te , 60; M A nderson, Europe in th e E ig h te e n th C e n tu ry
1 7 1 3 -1 7 8 3 (1976, 2nd e d ) 208; Ruddy, s u p ra n 142, 4 3 ) ,
r e f l e c t e d d i r e c t l y , f o r exam ple, in th e T r e a t i e s o f
U t r e c h t o f 1713 (W h ite , s u p r a n t h i s n o t e , 70) and V e r
s a i l l e s o f 1756 ( CTS x l , 3 3 1 , and x x v i i , 4 7 5 , r e s p e c
tiv ely ). T h e S t a t e now r u l e d s u p r e m e ; e a c h j e a l o u s l y
g u a r d i n g i t s own s o v e r e i g n t y , r e c o g n i z i n g n o e x t e r n a l
a u t h o r i t y (A S o r e l , E u r o p e u n d e r t h e O l d R e g i m e ( 1 9 6 4 )
9). W a r f a r e w a s t h e common m e a n s f o r s o l v i n g d i s p u t e s
b e tw e e n S t a t e s , and ’r a i s o n d ’e t a t ’ p r o v i d e d s u f f i c i e n t
ju stific a tio n . Of t h e Age, A n d e r s o n { s u p r a t h i s n o t e ,
176) o b s e r v e s :
The political and diploaatic history of the period was dosinated by war
fare...and its econoaic history profoundly influenced by it. With the
partial exception of the two decades which followed the Treaty of Utrecht
(and even then there were probably never less than half a aillion aen un
der aras in Europe) there was scarcely a year in the century during which
a large-scale struggle was not either raging or about to break cut in
soae part of the continent.
1 355
C f, Ruddy, supra n 141, 38, 55-57, 312
62
H er p h ilo so p h y of in te rn atio n a l law , based on w h a t proved
to be im p recise and perhaps in d eterm in ate p rin c ip le s of n at
ural l a w , 155'7 t o be rep laced by th e in te rn atio n a l law of th e
P o sitiv ists, th at is, leg al ten ets d ep en d in g for th eir v a li
d ity on th e fact th at S tates co n sen ted to them and fo llo w ed
them in p r a c t i c e . 133
Nussbaum , supra n 48, 161. V a tte l's a p p re c ia tio n of

th e im p o rtan ce of S ta te p r a c tic e is re v e a le d in th e
P r e f a c e t o h i s w ork ( su p ra n 140, v - v i ) :
II est certaineaent un Droit des Gens Natural, puisque la Loi de la Na

ture n'oblige pas aoins les Stats, les hosaes unis en Societe Politique,
qu’elle n'oblige les particuliers. Mais pour connoitre exacteaent ce
Droit, i l ne suffit pas de scavoir ce que la Loi de la Nature prescrit
aux individus huaains. L'application d'une regie a des sujets divers, ne
peut se faire que d'une saniere convenable a la nature de chaque sujet.
D'ou i l resulte que le Droit des Gens Naturel est une Science partic-
uliere, laquelle consiste dans une application juste & raisonnê de la
Loi Naturelle aux affaires & a la conduite des Nations ou des Souverains.
Tous ces Traites, dans lesquels le Droit des Gens se trouve stl£ 4 con-
fondu avec le Droit Naturel ordinaire, sont done insuffisans pour donner
une idê distincte, une solide connoissance de la Loi sacrê des Nations.
See also n 158 in fra .
1 S '7 A cco rd in g to S tark e (supra n 55, 24),
The general objection to theories based on the 'law of nature’ is that

each theorist uses i t as a aetaphor for soae aore concrete conception
such as reason, justice, u tility , the general interests of the interna
tional coaaunity, necessity, or religious dictates. This leads to a
great deal of confusion, particularly as these interpretations of the
'law of nature’ aay differ so widely.
T h a t was in d e e d th e c a s e , w i t h t h e i n v o c a t i o n by b o t h
G r o tiu s (su p ra t e x t acco m p an y in g n 6 1 f f ) and S e id e n
(su p ra t e x t a c co m p a n y in g n 98) o f n a t u r a l law in s u p
p o r t o f t h e i r o p p o s in g p o s i t i o n s on r i g h t s t o t h e s e a
and i t s r e s o u r c e s .
iss c f , i b i d 26 ; P G u g g e n h e im , " V a t t e l , Emer d e " i n I n t e r

n a tio n a l E n cyclo p a ed ia o f th e S o c ia l S c ie n c e s (1968)
x v i , 300. F r ie d m a n n i s e v e n m ore c a t e g o r i c a l i n h i s
assessm ent of V a tte l's c o n trib u tio n to in te r n a tio n a l
l e g a l t h o u g h t ( The C h a n g in g S t r u c t u r e o f I n t e r n a t i o n a l
Law ( 1 9 6 4 ) 7 6 ; c f , a l s o h i s w o r k s u p r a P r e f a c e n 3 , 4 1 ,
59) :
In the history of international law, the decisive break with the natural
law philosophy was effected by Vattel, even though he continued to pay
lip service to natural law. Natural law was relegated by Vattel to the
unfathoiable depths of the inner conscience of a state, while the oniy
international law that counts for practical purposes is the external law
63
As important as timeliness was Vattel's ability to
build on and adapt the theories of earlier writers into a
practical, improved statement of law.155*^ His authority was
due not so much to his own originality as to the reasonable
ness of his solutions to the legal problems of the time and
the precision of his descriptions of State practice.100 in
an era of international uncertainty, Vattel was able to ex
plain in clear, concise language the fundamental rules that
States were in practice prepared to accept. O'Connell, for
example, comments that Vattel's treatment of the rights of
the coastal State in the territorial sea, "is so developed
that there can be no doubt that he was writing with all the
authority of an official who knew what was going on in all
the chancelleries of Europe".101
As a result of the above, by the early nineteenth cen
tury his work had become, "a kind of oracle with diplomats,
and especially with consuls,"162 as well as being commonly
All real international law is derived by Vattel froa the will of the na
tions whose presumed consent expresses itself in treaties and custoas.
Lapradelle, supra n 141, xliii; of, Oudendijk (supra n

84, 119), who refers to Vattel's work as "a fluently
written and easily understandable compound of the ideas
of Grotius, Pufendorf, [Christian] Wolff [(1679-1754)]
and others".
uso Qf^ Lapradelle, supra n 141, xxxv; A Favre, Principes

du droit des sens (1974) 66; and Ruddy (supra n 141,
308), who writes that Vattel's Le Droit des gens "cor
responded to the actual state of affairs in Europe in
the mid-eighteenth century". See also text accompa
nying nn 153 supra and 164 infra.
16,1 D O'Connell, "The juridical nature of the territorial

sea"(1971) 45 BYIL 303, 321
1ä:2 r von Mohl, Die Geschichte und Literatur der Staats -

wissenschaften (1855) i, 386 (cited in Nussbaum, supra
n 48, 161); cf, L Ehrlich, "The development of interna
tional law as a science"(1962) 105 RDC 171, 235; Gug
genheim, supra n 158, ibid; and Ruddy, supra n 141,
282-284.
Anderson (supra n 154, 201) writes of the period:
The increasing iaportance of the diploaatic network which bound together

the States of Europe was reflected in the eighteenth century in the
developaent in aost countries of central institutions for the direction
64
relied upon by the j u d i c i a r y . 103 The legal regime relating

to ocean space and fisheries deduced by Vattel from the
State practice of the time became generally recognized by
European States in succeeding years, partly due to the r e i n
forcing effect of Le Droit des g e n s , and partly because of
such factors as the perceived benefits of permitting freedom
of access to overseas c o l o n i e s 1<s^ and maintaining the ba l
ance of power on the continent. The era of exorbitant
claims of maritime sovereignty was over.
III. C onclusion
Although the freedom inherent in the ’classical assump

t i o n ’ governing the use of the sea found general acceptance
in the early Mediterranean world of Greece and Rome, the
of foreign policy. Foreign offices of a sodern kind, specialised in

their functions, sub-divided into departaents with still aore specialised
duties and eaploying considerable nuabers of experts of all kinds, now
appear for the first tiae in the aajor European capitals.
The fact that French became the language of dip l o

macy during this period (ibid 200) and that V a t t e l ’s
work was written in that language increased the lat
t e r ’s impact on State practice. In this regard, D von
Ompteda (Litteratur des gesammten sowohl natürlichen
als positiven Völkerrechts (1785) 345-346 (cited in
Guggenheim, supra n 159, ibid) wrote that Le Droit des
gens was "almost the only work on the natural law of
nations that is suitable for statesmen and persons not
in the learned p r o f e s s i o n s ... and this is undoubtedly
his great service to the science of international l a w " .
X&Z3 Sir William Scott (later Lord Stowell), for example,

wrote in the Maria that "Vattel is here to be consid
ered not as a lawyer delivering an opinion, but as a
witness asserting the fact — the fact that such is the
existing practice of modern Eur o p e ” ((1799) 1 C.Rob.
340; 165 ER 199, 207). See generally, Guggenheim, s u
pra n 158, 300-301; Lapradelle, supra n 141, x x x v f f ;
Nussbaum, supra n 48, 162; and Ruddy, supra n 141, 283-
284.
xe>* Cf, R A n a n d , "Maritime practice in South-East Asia

until 1600 A .D . and the modern law of the sea" (1981)
30 ICLQ 440, 450; Fulton, supra n 33, 554-555; and
O'Connell, supra Introduction n 19, 515
65
em ergence of th e m odern S tate-sy stem in Europe d u rin g th e
M iddle Ages resu lted in co m p etin g claim s to m aritim e w aters
and th eir resources. By t h e end of th e sev en teen th cen tu ry ,
the process of claim and co u n ter-claim had led to a lim ita
tio n on th at freedom as S tates g rad u ally reco g n ized p ro p erty
rig h ts in ad jacen t w aters as far as e ffe c tiv e o c cu p atio n
co u ld be m a i n t a i n e d . 1055 As has been observed, th e m ain de
v elo p m en ts in th e early ev o lu tio n of th e law w ere th e resu lt
of p o sitio n s ad o p ted by th e m ost pow erful E uropean S tates of
th e tim e; and th o se p o sitio n s changed over th e years, o ften
rad ically , in accordance w ith a lte re d p e rcep tio n s of eco
nom ic and p o litic a l fo rtu n es and in te rests.
L ike law g en erally , th e in itia l fo rm u latio n of in tern a
tio n a l leg al th eo ry rela tin g to fish e ry resources receiv ed
but scant a tte n tio n and little , if any, p rio rity , u n til pro
blem s w ere g en erated by co m p etin g claim s — in th is case, to
th e use of ocean space its e lf, or th e la tte r com bined w ith
the resources th erein . As Fenn rem arked above, th e p ro b lem
10=5 I b i d 13. As n u m e r o u s w r i t e r s h a v e o b s e r v e d , t h e l a w o f
th e sea e v o lv e s th ro u g h a c o n tin u o u s p ro c e ss of claim
and c o u n te rc la im . P e rh a p s t h e c l a s s i c s t a t e m e n t on t h e
m a t t e r i s t h a t o f P r o f e s s o r s M yres M cD ougal an d N A
S c h l e i ( ’’T h e h y d r o g e n b o m b t e s t s i n p e r s p e c t i v e : l a w f u l
m e a s u r e s f o r s e c u r i t y " ) (1 9 5 4 - 1 9 5 5 ) 64 Y a le L J 6 4 8 ,
655-656):
Throughout the centuries of its development, one may observe the

regime of the high seas as, not a static body of absolute rules, but
rather a living, growing, customary law, grounded in the claims, prac
tices, and sanctioning expectations of nation-states, and changing as the
demands and expectations of decision-makers are changed by exigencies of
new social and economic interests, by the imperatives of an ever develop
ing technology and by other continually evolving conditions in the world
arena. From the perspective of realistic description, the public order
of the high seas is not a mere body of rules, but a whole decision-making
process, including both a structure of authorized decision-makers and a
body of highly flexible, inherited prescriptions; i t is a continuous pro
cess of interaction in which the decision-makers of individual nation
states unilaterally put forward claims of the most diverse and conflict
ing character to the use of the world's seas, and in which other deci
sion-makers, external to the demanding nation-state and including both
national and international officials, weigh and appraise these competing
claims in terms of the interests of the world community and of the rival
claimants, and ultimately accept or reject them.
66
was one of international relations before it became one of
law.1‘
s,e-
In the broader historical context, the law as it devel
oped during the period is noteworthy in a number of res
pects. First, the intimate relationship between the legal
status of marine fisheries themselves and the medium in
which they exist has been evident at least since their
treatment in early Greek and Roman law.10-7 Although the
connexion became somewhat tenuous during the early Middle
Ages with several legal systems operating simultaneously and
States moving to extend their Imperium and dominium over ad
jacent waters, the juridical link was restored with the rise
of the concept of dominium maris. That link would con
tinue to dominate legal thinking regarding marine fisheries
for more than 250 years.
Secondly, conflicting claims specifically concerning
fisheries originally arose in medieval Europe at least part
ly due to the perceived threat, real or imaginary, of for
eign fishermen exhausting local fish stocks to the obvious
detriment of the coastal populace. Two arguments were in
troduced into the debate which would also prove pervading
leitmotifs in the historical development of the law. On the
one hand, Grotius and his Spanish predecessors premised the
freedom of the seas principle in part on the supposed inex
haustibility of living marine resources. Welwood and oth
ers, in contrast, countered that resources were indeed ex
haustible, and that in accordance with natural law and theo
logical principles the coastal State had an inherent right
to those resources in littoral waters.
And finally, in common with international law general
ly, the legal principles governing marine fisheries devel
oped from a pot-pourri of sources during the early period.
Basic principles of Roman civil law and the ius gentium, as
1Ä,& See text accompanying n 57 supra.
See, eg, text accompanying nn lOff.
See text accompanying n 47 supra.

well as feudal law were built upon, embellished and amended
over the centuries by appeals to natural law (in its many
interpretations), gleanings from the Bible, the commentaries
on law offered by publicists, and the practice of States.
As has been seen, the writings of publicists had a particu
larly strong impact on the course of the law's development.
Although the early medieval jurisconsults noted above appear
more detached in their approach to the law, the character of
much of the later juridical debate has been strongly influ
enced by the fact that when Grotius and Seiden focussed
their attention on the international disputes before them,
they did so not as impartial jurists but rather as skilled
advocates advancing exaggerated arguments on behalf of two
of those States. No doubt Professor Raestad's description
of the Mare Liberum as a "plaidoyer eloquent, employant sans
scrupules la doctrine juridique dans un but politique,
would apply equally aptly to Mare Clausum. The two works
nevertheless provided the extreme parameters for subsequent
legal theories as well as many of the arguments on which the
latter would rest.
That being said, it is also important to bear in mind
that, beginning with the Post-Glossators of the fourteenth
century, steadily increasing attention was being given to
State practice in an attempt to devine contemporary legal
rules and principles governing international relations, in
cluding those concerning marine fisheries. That trend con
tinued throughout the succeeding centuries. With that in
mind, it is necessary now to consider State practice of the
early eighteenth and nineteenth centuries.
A Raestad, La Mer territoriale (1913) 89

CHAPTER TWO
F ISHER_X_ES_AND__THJE_THREE.ziM _L_IMI_T
Les politiques juridiques des differents Etats, en d£pit de la diversity ou de la con

tradiction de leurs contenus, ont en couaun la volontl des gouverneaents concernes de
determiner leurs conduites en fonction de leur propres objectifs, c ’est-a-dire de leur
interns nationaux tels qu'ils les apprecient.
Judge Guy de Lacharriere 1
I- Introduction
Commencing in the latter decades of the eighteenth cen

tury, international society, at least as recognized by Euro
pean States, began to undergo a fundamental transformation
that was to have a profound impact on the future course of
international law. Of major importance was the appearance
of first, the United States, and later, Latin American
States as international actors in their own right. By the
middle of the nineteenth century, that society had doubled
in size and for the first time had spread beyond the shores
of Europe. While initially composed of States founded on
European Christian traditions and concepts of law, that
situation began to change following the Crimean War when, in
1356, Turkey was for the first time recognized as a full
member of international society and admitted "a participer
aux avantages du droit public et du concert Europäers".=
The expansion continued when, later in the century and in
the early decades of the next, Japan and other States were
deemed ’civilised' and admitted to membership in interna
tional society, accepting in the process the system of in
ternational law that had developed in Europe.3
G de Lacharriere, La Politique juridique exterieure

(1983) 13
Art VII, General Treaty for the Re-Establishment of

Peace between Austria, France, Great Britain, Prussia,
Sardinia and Turkey, and Russia, signed at Paris, 30
March 1356, in CTS, supiâ Ch 1 , n 155, cxiv, 409
69
The end of th e N ap o leo n ic W ars (1801-1815) saw th e re
tu rn of a p erio d of peace, sta b ility and econom ic p ro sp e rity
to E urope. Once ag ain , E uropean n atio n s set out in search
of new overseas m ark ets and sources of raw m aterials for
th eir in d u strie s. Tow ard th is end, a second wave of c o lo n i
zatio n was em barked upon, th e targ e ts on th is occasio n b ein g
th o se lan d s in A frica and th e P a c ific not p rev io u sly acq u ir
ed d u rin g the co lo n ial a c tiv itie s of th e fifte e n th and six
teen th c e n tu ries
W hile several A sian and A m erican S tates th u s becam e ad
m itted to n in eteen th cen tu ry in te rn atio n a l so ciety and par
tic ip a te d in th e d ev elo p m en t of in te rn atio n a l law , not so
th e m ajo rity of p eo p les. They becam e, or rem ain ed , in th e
w ords of Judge E lias, "m ere sp ectato rs at the g am e".3
S ee, eg, K T a iju d o , " J a p a n ’s a s s i m i l a t i o n o f W estern

i n t e r n a t i o n a l l a w ” ( 1 9 7 5 ) 6 9 P A SIL 6 3 ; a n d S Oda ( " J a
p a n ’ s e n c o u n t e r w i t h t h e La w o f N a t i o n s i n t h e n i n e
t e e n t h c e n t u r y ” i n The S p i r i t o f U p p s a la , s u p r a I n t r o
d u c t i o n , n 2 3 , 2 5 0 ) , wh o w r i t e s t h a t ,
Japan, being a late-coaer, adopted the legal norms prevailing among the
European nations without questioning their validity or legality, and
tried to observe strictly the rules of international law of European ori
gin, Japan never challenged the rule of law based on Christianity and the
European tradition.
H o lin g , i n h i s s e m i n a l e s s a y on m em b e rsh ip o f
i n t e r n a t i o n a l s o c i e t y and t h e f o r m u l a t i o n o f i n t e r n a
t i o n a l law ( s u p ra I n t r o d u c t i o n , n 26 , x v ) , i d e n t i f i e s
t h r e e s ta g e s in th e l a t t e r ’s h i s t o r y : (1) t h e p e r i o d o f
t h e ’C h r i s t i a n N a t i o n s ’ (c . 1 6 4 8 - 1 8 5 6 ) ; (2) t h e p e r i o d
o f t h e 'C i v i l i z e d N a t io n s ' (c. 1 8 5 6 -1 9 4 5 ); and (3) th e
p e r io d o f th e ’P e a c e - lo v i n g N a t i o n s ’ , w hich began w ith
t h e UN C h a r t e r .
See Ch 1, tex t acco m p an y in g n 48 supra.
E lias ( A fr ic a and I n t e r n a t i o n a l Law, supra In tro d u ctio n

n 32, 21) w r i t e s t h a t
The drama of international legal relations was being played out, so far
as Africa is concerned, by European Governments among themselves in re
gard to economic, technical and cultural matters. Customary interna
tional law was developing in many respects as a result of the continuous
changes taking place in the continent, but the African dependencies were
mere spectators at the game. The la tte r's contribution, if any, lay in
the fact that it was their territories and their resources that supplied
the raw material for evolving rules and practices of international rela
tions during the hey day of colonization, 1885-1945.
70
That being acknowledged, observes Simone Dreyfus, the
nineteenth century, "c'est, par excellence, le si^cle du
d^veloppement du droit international” .0. The end of the Na
poleonic Wars signalled the demise of absolutism as the gui
ding force in European international relations.'7 Replacing
it was a new system of international co-operation based on
the leadership of the Great Powers, known as the ’European
Concert'.3 The latter pledged always to conduct their af
fairs, between themselves as well as with other States, in
accordance with "la plus strictes des principes du droit des
gens,"3 and to have their only and explicit objective the
maintenance of the general peace of Europe.10 In sum, then,
The colonial experience will be seen to have had an im

portant impact on the attitude of emerging States in
the post-1945 period to international law generally
(see Part Three infra).
Dreyfus, supra Ch 1, n 23, 29; and O Nippold, "Le de-

veloppement historique du droit international depuis le
Congres de Vienne"(1924) 2 RDC 1, 52, 53
Cf, Mushkat, supra Introduction, n 22, 40-41; H Stra-

kosch, "The place of the Congress of Vienna in the
growth of international law and organization"(1964)
13(11) IYIA 184, 191-192. See also Ch 1, n 154 and ac
companying text supra.
By the 1814 Treaty of Chaumont (CIS lxiii, 33), Aus

tria, Great Britain, Prussia and Russia agreed to unite
"in perfect concert" against Napoleon to restore peace
in Europe. In 1818, France was admitted as an equal
member of the Concert("Protocol of Conference between
Austria, France, Great Britain, Prussia and Russia,
signed at Aix-la-Chapelle, 15 November 1818, in ibid
lxix, 365). According to Nussbaum (supra Ch 1, n 48,
147), "inasmuch as the Great Powers pretended to act in
the common interest, the term came also to refer to the
general cooperation, based on international law, of the
European nations” . See generally, G Butler and S Mac-
Coby, The Development of International Law (1928) Ch
11; and S Hoffman, Organisations internationales et
pouvoirs politiques des Etats (Paris, 1954) Pt 1.
Declaration accompanying the 1318 Treaty of Aix-la-

Chapelle, quoted in Dreyfus, supra Ch 1, n 23, 29, n 15
Grewe, supra Introduction, n 32, 22; Strakosch, supra n

7 , 200
71
as Professor Stanley Hoffman writes, "the structure of the
world was marked by a double hierarchy: first, there was a
distinction between a civilised core and a frontier; second
ly, within the core, there was a hierarchy between small and
large states” .11
The law of nations referred to by the Great Powers was
not the natural law of earlier times, but rather positive
law, supported by the coercive power of the contracting par
ties. This law made its appearance in multifarious agree
ments concluded at diplomatic conferences that became in
creasingly common as the century progressed.13 While the
number of political treaties did not grow substantially,
there was a rapid increase in the number of technical, 'law-
making' treaties, particularly after 1860, as States endeav
oured to co-operate in solving their more pressing communal
problems. It was during this period that multilateral con
ventions first became numerous and included several estab
lishing collective organs designed to transform the treaty
partners into working communities.13 Because of* their ac
tive participation in the negotiation of many agreements,
the influence of the Great Powers on the normative content
of emerging international law was great.1"*
S Hoffman, "International systems and international

law" in The International System (1961; K Knorr and S
Verba, eds) 205, 218
See Butler and MacCoby, supra n 8, Chs 15 and 16; Drey

fus, supra Ch 1, n 23, 30; Hoffman, supra n 8, ibid;
Mushkat, supra Introduction n 22, 41-42; Nippold, supra
n 6, 52-54 and Ch 4; and Nussbaum, supra Ch 1, n 48, Ch
6.
Ibid 196-198. Bodies formed included the International

Telegraph Union (1865) and the Universal Postal Union
(1874).
R Anand ("Role of the 'new' Asian-African countries in

the present international legal order” (1962) 56 AJIL
383, 385) observes that
the political aechanics of the nineteenth century and the methods of cre
ating international law based on the order resulting from the Congress of
Vienna, on the doctrine of the balance of power, and on the recognised
supremacy of the states that formed the European Concert, naturally re-
72
The n in e te e n th and early tw en tieth c e n tu ries also saw
in te rn a tio n a l law d ev elo p th ro u g h im p o rtan t a rb itra l pro
ceed in g s; th e Alabam a a r b i t r a t i o n in p a r t i c u l a r 1=5 e n c o u r a g
ing th e b elief th at even th e m ost serio u s d isp u tes co u ld be
se ttle d acco rd in g to o b jectiv e leg al s t a n d a r d s . 10
suited in according a comparatively minor role to the sia lle r states.

Sometimes, when the interests of the great Powers did not fully coincide,
as, for instance, in the case of the law of the sea, the principles that
caae to be formulated did not run directly counter to the aspirations of
the snail states, but neither did they reflect their future needs fully.
Cf, e g , J C a s t a n e d a , ’’T h e u n d e r d e v e l o p e d n a t i o n s a n d
th e d e v e l o p m e n t o f i n t e r n a t i o n a l l a w ” ( 1 9 6 1 ) 15 I n t e r n a
tio n a l O rga n isa tio n 38, 39; 0 L i s s i t z y n , " I n t e r n a t i o n a l
law i n a d i v i d e d w o r l d ” (1 9 6 3 ) #542 I n te r n a tio n a l C o n ci
l i a t i o n 3, 7 -8 ; and R o lin g , supra I n t r o d u c t i o n , n 26,
x i. I n t h i s r e g a r d , C h a r l e s D u p u is ( Le P r in c ip e
d 'S q u ilib r e e t l e C oncert europeen (1909) 502, c i t e d in
N ip p o ld , su pra n 6, 50) com m ents t h a t ,
II est certain que le Concert europeen a eu tres peu de souci des theo
ries juridiques et tres peu de scrupules a empieter sur les droits de
ceux dont les pretentions genaient ses convenances. II n'a pas h^site a
imposer ses lois a qui n'avait pas la force de s ’y soustraire. Au nos de
l'in te r e t europeen, les grandes puissances, d'accord pour eviter de se
faire la guerre, ont juge bon de dieter aux faibles les conditions
qu’elles jugeaient essentielles au aaintien de leur entente.
The f o llo w in g s t a te m e n t by F r e d e r ic k P o llo c k ("T he

s o u r c e s o f i n t e r n a t i o n a l l a w ” ( 1 9 0 2 ) 2 C olum bia L R
5 1 1 , 5 1 2 ( e m p h a s i s a d d e d ) ) may b e t a k e n a s r e p r e s e n t a
t i v e o f t h e common v i e w h e l d ( a t l e a s t by t h e m a j o r
pow ers) on th e s u b j e c t :
when a ll or most of the great Powers have deliberately agreed to certain

rules of general application, the rules approved by thea have very great
weight in practice even among states which have never expressly consented
to thea. It is hardly too auch to say that declarations of this kind aay
be expected, in the absence of prompt and effective dissent by soae Power
o f t h e f i r s t r a n k , to becoae part of the universally received
law of nations within a moderate time. As among aen, so among nations,
the opinions and usages of the leading members in a community tend to
fora an authoritative example for the whole.
See also statem en t by F u lto n , tex t accom panying n 78

in fra .
J M oore, In tern a tio n a l A rb itra tio n s (1898) i, 495
J F a w c e tt, "The d e v e lo p m e n t o f i n t e r n a t i o n a l la w ” (1970)

46 I n t e r n a t i o n a l A f f a i r s 1 2 7 , 128
73
It was in the favourable legal climate of that time,
then, that the next major developments occurred relating to
marine fisheries.
II- Thomas Jefferson and the Writings of Publicists
As observed above, by the end of the eighteenth cen

tury, many European States had come to regard the cannon-
shot principle as the basis of determining the limits of a
coastal State’s maritime jurisdiction, at least for the pur
poses of neutrality.17 In 1793, Thomas Jefferson, the then
American Secretary of State, took the principle one step
further, equating the distance of cannon shot from the shore
with one marine league, or three miles.13 For the purpose
of exercising territorial protection, he explained, American
officers would be restrained for the time being to a dis
tance of "one sea league or three geographical miles from
the seashores".13 Reserving his Government's final position
Fulton, supra Ch 1, n 32, 573. See in particular in

this regard Ch 1, nn 114 and 152 and accompanying text
supra.
It appears to Fulton (ibid) that prior to Jefferson's

action "no Power had yet adopted one marine league as
the equivalent of gunshot from the shore". Similarly,
Gidel writes of the "introduction par les Etats-Unis
dans la pratique internationale de la distance de trois
milles comme representant 1 ’equivalent de la portee de
canon" (supra Introduction, n 15, iii/I, 46). However,
it should be noted that other States had earlier ex
pressed support for such an equivalence. In 1761, for
example, France "was prepared to concede a continuous
belt [of neutral waters from the coast]...and suggest
ed ... a width of three miles which was regarded as the
possible range of cannon"(H Kent, "The historical ori
gins of the three-mile limit” (1954) 48 AJIL 537, 549).
A discussion of the historical origins of the territo
rial sea per se is beyond the scope of this work.
J Moore, A Digest of International Law (1906) i, 702-

703
74
on the question, Jefferson opined that " the utmost range of
a cannon ball, usually stated at one sea league," was the
smallest distance claimed by any nation for the exercise of
territorial jurisdiction and "can admit of no opposition, as
it is recognised by treaties between some of the powers with
whom we are connected in commerce and navigation, and is as
little, or less, than is claimed by any of them on their own
coasts” .20
During the same period the three-mile limit began to
find expression in the work of leading publicists in connec
tion with fishery jurisdiction. Writing in 1795, for exam
ple, Azuni, an influential Italian jurist, agrees with ear
lier writers that living marine resources were both limited
and unequally dispersed around the globe. Since, he obser
ves, coastal States bordering fructuous seas, "have it in
their power to appropriate to themselves any productions
within their reach, in the same manner as they have assumed
the domain of the lands they inhabit, reason dictates, that
the sea should be regarded, in that case, as susceptible of
property...".21
As there was no international agreement on the limit of
coastal State territorial sea jurisdiction, it was most just
and certain to agree on three miles from land, "which is,
without dispute, the greatest distance to which the force of
gunpowder can carry a ball, or bomb".22 That distance, con
cludes Azuni, "appears conformable to the principles of uni
versal law, by which all that space is considered as terri
tory, over which officers and magistrates can cause the or
ders of their government to be executed, either by fear or
by the force confided to them".23
Ibid
M Azuni, The Maritime Law of Europe (1306 ed of 1795

text; W Johnson, trans) i, 184
Ibid 204-205. For expressions of similar contemporary

views see texts noted by O'Connell, supra Introduction,
n 15, 513, n 20.
2 3
Azuni, supra n 21, 204-205
75
111 - Fishery Conventions and State Legislation
In contrast with earlier centuries, the nineteenth cen

tury witnessed international society gradually and widely
accepting three miles as the extreme limit of both territo
rial waters and sovereignty over fisheries. By 1806, for
example, Great Britain had officially renounced the maritime
claims advanced by Seiden some 150 years before. The K i n g ’s
Advocate explained that ’’the Right of Territory extends over
the sea to the Distance of Cannon Shot from the Shore (cons
trued practically [as] one League)...".3!S This right, a Law
As late as the eighteenth century, claims to fisheries

jurisdiction varied enormously. For illustrative pur
poses the following may be noted:
(a) Iceland amended its fishing limits from two leagues
in 1598 to six and subsequently four leagues in 1682
(Raestad, supra Ch 1, n 169, 80, 103);
(b) at the Peace Conference of 1783, the United States
conceded a coastal State's exclusive fishing rights
within three leagues of the coast (F Wharton, A Digest
of International Law in the United States (1887) i,
101) ;
(c) in 1793, the United States Congress enacted legis
lation governing licensed fishing vessels up to three
leagues from the coast (US Statutes at Large, 305, 314,
s 21) ;
(d) in 1733, Denmark issued a decree prohibiting for
eigners from fishing within four leagues of the coast
of any of her Arctic possessions (Fulton, supra Ch 1, n
155, 529-530);
(e) by Article XII of the 1713 Treaty of Utrecht,
French fishermen were forbidden to fish within thirty
leagues of the coast of Nova Scotia (CTS xxvii, 475,
485-486);
(f) by Article V of the 1763 Treaty of Paris, French
fishermen were prohibited from fishing within fifteen
leagues of Cape Breton Island and three leagues of any
other British territory in North America (ibid xlii,
279, 325); and
(g) pursuant to Article IV of the 1790 Convention be
tween Great Britain and Spain, the former agreed that
her nationals would not fish within ten leagues of any
Spanish-occupied coast in the Pacific (ibid li, 67,
69) .
76
Officer noted in 1817, included "the Right of prohibiting
Foreigners from...fishing within the territorial waters in
and about His Majesty’s Dominions,” and appeared to be based
on ’’just principles” .20 While conceding that legislation
enacted during the reign of William III (1689-1702) 27> rela
ted, inter alia, to regulation of fishing in "the seas" in
or about Newfoundland, "seas” were to be understood as being
those waters "immediately adjacent to the Creeks, Harbours
and Coasts, and [as] such may be comprized within the limits
of Territory on general principles” .2®
Similarly during the same period, in the United States
the three-mile limit became recognized as encompassing
rights more than simply those respecting neutrality. In the
1812 case of The Ann, for example, Story C J , referring to
Vattel, Azuni and others, asserts that "[a]11 writers on
public law agree that every nation has exclusive jurisdic
tion to the distance of a cannon shot, or marine league,
over the waters adjacent to its shores".2® Those waters, he
continues, "are considered as a part of the territory of the
sovereign” .30
Law Officers’ Opinions to the Foreign Office 1793-1360

(1970; C Parry, prep and ed)[hereafter cited 'Parry']
i, 600-601
Ibid ii, 325
10 & 11 Wm 3, c25
Parry, supra n 25, ii, 327
1 Fed Cas No 397 (1812)(in Cases on the Law of the Sea

(1976; K Simmonds, comp and ed) i, 148, 149)
Ibid 150. For a discussion of earlier American and

British cases reflecting the general trend toward the
acceptance of the three-mile territorial sea and co
terminous zone of exclusive fisheries jurisdiction see
Fulton, supra Ch 1, n 32, 577-579; and O ’Connell, supra
Introduction n 15, 131-133.
77
A- Th e 1818 A n g lo -A m erican C o n v en tio n

The above p o sitio n s w ere re flected in th e 1818 Conven
tio n co n clu d ed b etw een G reat B ritain and th e U n ited S ta tes
to c la rify ce rtain issu es re su ltin g from th e War of 1 8 1 2 . 31
The C o n v en tio n was th e f ir s t trea ty in w hich a th ree -m ile
lim it of fish ery ju risd ic tio n was s p e c i f i e d . 32
R e fle c tin g th e at le a st ta c it accep tan ce by b o th p ar
tie s of th e above lim it as part of general in te rn a tio n a l
law , th e record of n eg o tiatio n s rev eals no d iscu ssio n of th e
su b ject. In fa ct, its o n ly m ention is in a 20 O cto b er 1818
m em orandum from th e A m erican n eg o tiato rs to John Q uincy
Adam s, th e th en A m erican S ecretary of S ta te, co n cern in g var-
(1818-1819) 6 BFSP 3 ; CIS l x i x , 2 9 4
F u l t o n , s u p r a Ch 1 , n 3 2 , 5 8 1 ; G i d e l , s u p r a I n t r o d u c
t i o n , n 15, i i i / I , 4 9 ; a n d G M a n g o n e , La w f o r t h e W o r l d
Ocean ( 1 9 8 1 ) 1 6 2 . A r t i c l e One o f t h e C o n v e n tio n ( su pra
n 31) p ro v id e d t h a t :
Whereas differences have arisen respecting the liberty claiaed by the

United States for the inhabitants thereof, to take, dry, and cure fish on
certain coasts, bays, harbours, and creeks of His Britannic Majesty’s do-
ainions in Aaerica, i t is agreed between the high contracting parties,
that the inhabitants of the said United States shall have forever, in
comaon with the subjects of His Britannic Majesty, the liberty to take
fish of every kind on [hereafter follows a geographical specification of
the areas concerned], without prejudice however, to any of the exclusive
rights of the Hudson Bay Coapany: And that the Anerican fisheraen shall
have liberty forever, to dry and cure fish in any of the unsettled bays,
harbours, and creeks of the southern part of the coast of Newfoundland
hereabove described, and of the coast of Labrador; but so soon as the
saae, or any portion thereof, shall be settled, i t shall not be lawful
for the said fisheraen to dry or cure fish at any portion so settled,
without previous agreeaent for such purpose with the inhabitants, propri
etors, or possessors of the ground. And the United States hereby
renounce forever, any liberty heretofore enjoyed or claiaed by the
inhabitants thereof, to take, dry or cure fish on, or within three aarine
ailes of any of the coasts, bays, creeks, or harbours of His Britannic
Majesty’s doainions in Aaerica not included within the above-aentioned
l ia its ; Provided, however, that the Aaerican fisheraen shall be adaitted
to enter such bays or harbours for the purpose of shelter and of re
pairing daaages therein, or purchasing wood, and of obtaining water, and
for no other purpose whatever. But they shall be under such restrictions
as aay be necessary to prevent their taking, drying or curing fish
therein, or in any other aanner whatever abusing the privileges hereby
reserved to thea.
78
ious provisions of the agreement. They explain that the ex
ception granted to the Hudson Bay Company concerning fishery
jurisdiction ’’does not affect the right of fishing in Hud
son's Bay, beyond three miles from the shores, a right which
could not exclusively belong to, or be granted by, any Na
tion” .33
Commenting on the development of the law to 1818,
O'Connell states that what had begun as a neutrality limit
in the U.S. Neutrality Act of 1794,
had now becoae a fishery liait, and this assiailation of two jurisdictions which
throughout the eighteenth century has rarely been coincidental in fact, was the prod
uct of their rationalization by reference to the property theory of the territorial
sea, eabodied first in the notion of the cannon-shot and then in its supposed equiva
lent, the three-aile liait. ...The equation of the cannon-shot and the three-iile
liait in the work of Azuni...seeas to have been the turning point in the doctrine.3 - *
B. The Anglo-French Fisheries Convention of 1839

With the conclusion of the Napoleonic Wars and the re
turn of a period of relative peace in Europe, attention on
the continent switched from the rights of belligerents and
neutrals in territorial seas to the question of fisheries
and the limits of exclusive coastal State jurisdiction. The
precedent set by Great Britain and the United States in 1818
proved most significant.33
One of the most rancorous fishery disputes concerned
the rights of English and French fishermen in the English
"Correspondence with the United States, relative to the

Negotiation of the Convention of Commerce, Limits, & c.
of the 20th October, 1818 [1815-1820]” (1819-1820) 7
BFSP 69, 167. The position taken by the United States
is not surprising, given the influence of Vattel (see
Ch 1, n 141 and accompanying text supra). Ernest Nys
(Les Etats-Unis et le droit des gens (1909) 145-146;
noted in P Corbett, Law in Diplomacy (1959) 42) re
ports, for example, that when Jefferson inaugurated the
study of the law of nature and of nations at William
and Mary College in 1779 the text used from then until
1841 was Le Droit des gens.
O ’Connell, supra Introduction n 15, 134

Ibid 514-515; Fulton, supra Introduction n 16, 581,
650, 681
79
Channel.3Ä British fishermen complained that their French
counterparts were deliberately damaging the former's nets
and gear and were ruining local fish stocks by plying their
trade too close to the coasts and at the wrong time of day
and year. At the same time, English vessels and gear were
said to be confiscated by French cruisers, even when dredg
ing for oysters fifteen miles from the French coasts.37. For
their part, French fishermen complained that the English
were wrecking havoc on the rich oyster beds along the French
coast.3S
When the dispute first developed, the French claimed
exclusive rights to the beds on the basis of long possession
and uninterrupted enjoyment without protest from foreign
powers.39 The claims to fishing rights in the Channel were
denied by the B r i t i s h , a n d subsequent attention focussed
For a detailed account of the dispute see ibid 607-621,

and O'Connell, supra Introduction n 15, 515-519. For a
selection of British and French correspondence relating
to the matter see H Smith, Great Britain and the Law of
Nations (1935) ii, 144-164.
See, eg, details contained in "Memorials, & c., to the

British Government, complaining of the Aggressions of
French Fishermen on the British coast. — 1833-1835”
(1834-1835) 23 BFSP 608-617. A Select Committee of the
House of Commons submitted a report in 1833 supporting
the claims made by the British fishermen and observing
that the fisheries were in a depressed and declining
state with the affected fishermen left destitute (Re
port from the Select Committee on British Channel Fish
eries, Pari Papers, Session 1833, No 676, 6). It rec
ommended that foreign fishermen be prevented from fish
ing "within one league, or such other distance of the
English coast, as by the law or usage of nations, is
considered to belong exclusively to (Great Britain]"
(ibid 5). Foreign fishermen should also be required to
observe the same conservation regulations as those im
posed on British fishermen along the coast.
Smith, supra n 36, 147
This position was'developed at great length by Pol-

ignac, the French Ambassador to the Court of St James,
in a note dated 11 March 1824 (ibid 144, n 2).
Note dated 25 February 1825, from Canning, the British

negotiator, to Polignac, cited in Smith, supra n 36,
80
on th e statu s of th e th ree -m ile lim it p rin cip le. The
B ritish argued th at
According to the acknowledged Law of Nations, no Country can claim acre than one Ma
rine league off her own Coasts by any other Title than Concession. . . .One Marine League
is allowed by that Law to 'be the Liait of T erritorial Jurisdiction. All that is held
by any Nation beyond that one League aust be held either by ta c it or by express agree
ment....
The French d isag reed . W hile ad m ittin g th at som e p u b li

c is ts espoused th e B ritish p o sitio n , th e F rench co n ten d ed
th at
146. T h a t t h e F r e n c h p o s i t i o n was n o t e n t i r e l y w i t h o u t
f o u n d a t i o n , h o w e v e r, was a d m i t t e d n i n e y e a r s l a t e r i n
an o p in io n from th e K in g 's A d v o c a te in r e s p o n s e to a
q u e r y from t h e L ords o f t h e C o m m ittee o f P r iv y C o u n c il
f o r T ra d e g e n e r a te d by th e re co m m e n d a tio n s o f th e H ouse
o f Com m ons' S e l e c t C o m m itte e i n v e s t i g a t i n g t h e B r i t i s h
fish e rie s (se e n 37 s u p r a ) . The A d v o c a te b e g in s by
s t a t i n g t h e g e n e r a l p r i n c i p l e o f i n t e r n a t i o n a l law
( P a r r y , su p ra n 25, x x x i i , 14, 1 6 - 1 7 ) :
i t is now, generally admitted that that portion of the Sea which his
[sic] w it h in a le a g u e , or three miles froa the Shore, is to be
considered as foraing a part of the Territory of the Nation, to whoa the
Shores belong, and that within those L iaits, she aay exercise the rights
of Sovereignty, subject however, as I apprehend, to this qualification,
that they do not interfere with the existing rights of others.
R ev iew in g th e claim s of th e F rench, he observes (ibid

26) th a t
The F act.. .appears to be that the French have for many years, been in the
habit of fishing within a very short distance of our Coasts, without
interruption, and i t aay at least be a question of very considerable
d o u b t whether they have not thereby acquired a k in d of prescriptive
right to continue i t .
I n s u p p o r t o f t h a t v i e w h e c i t e s V a t t e l ( s u p r a Ch 1 , n
150 and a c c o m p a n y in g t e x t ) , and c o n c lu d e s by n o t i n g
( i b i d 27) t h a t
there being no [doaestic] Law, which renders foreign Vessels, resorting

to our Coasts for the purpose of fishing, liable to any penalty, or which
would justify a resort to violent aeasures, to prevent then froa so do
ing; i t appears to me, that nothing effectual can be done for the protec
tion of our Fishermen, or the preservation of the Breed of Fish, except
by negotiation and treaty.
S m ith, su p ra n 36, 146

81
ces opinions ne peuvent etre considerees come loi des nations, qu'autant que les Gou-
verneaents interessÄ seraient convenus de les envisager come telies, ou bien que le
sprite de ces opinions se trouvant universelleaent, quoique tacitesent reconnu, leur
admission successive ait concourse a foraer ce qu'on pourrait appeler la jurisprudence
des nations sur cette aatiere.
_[0]n croit pouvoir, au aoins, affiraer que [1'opinion des publicistes relatê plus
haut] n’a pas ete et n'est pas mere encore accueillie par tous les gouverneients de
facon a etre consideree par eux come servant de base a un principe qui dut regir la
matiere, ou qui fit telleaent partie de la jurisprudence aaritiae d'aucun pays en Eu
rope qu’il put etre invoque de droit coaie loi des nations.
They n e v e r t h e l e s s e x p r e s s e d a w i l l i n g n e s s t o a c c e p t a
g en eral th re e -m ile ju r is d ic tio n a l lim it fo r f is h e r ie s a lo n g
th e c o a s ts of each c o u n try , so l o n g a s t h e B r i t i s h c o n c e d e d
t o them a w i d e r j u r i s d i c t i o n a l b e l t i n t h e Bay o f G r a n v i l l e
t o p r o t e c t t h e r i c h o y s t e r b e d s from e x c e s s i v e d redging."*®
On t h e b a s i s o f r e c o m m e n d a tio n s o f a m ixed c o m m is s io n and
fo llo w in g f u r t h e r d e ta il e d n e g o tia tio n s , t h e A n g lo -F ren ch
F i s h e r i e s C o n v e n ti o n was a d o p t e d i n 1839. "*"*
The C o n v e n ti o n was s i g n i f i c a n t i n a num ber o f r e s p e c t s .
F irst, i t e s ta b lis h e d lim its of e x c lu siv e fis h e ry j u r i s d i c
t i o n b e tw e e n J e r s e y (and n e i g h b o u r i n g B r i t i s h i s l a n d s ) and
t h e c o a s t o f F r a n c e , v a r y i n g i n d i s t a n c e from l e s s t h a n
t h r e e t o a b o u t 14 m i l e s from t h e m ainland."*®
Of more g e n e r a l i m p o r t a n c e , t h e C o n v e n ti o n e n s h r i n e d
f o r t h e f i r s t t i m e i n an i n t e r n a t i o n a l a g r e e m e n t p r o v i s i o n
f o r r e g u l a t i n g t h e c o n d u c t o f f i s h e r m e n i n a r e a s b e yo n d t h e
l i m i t s o f a S t a t e ’s r e c o g n i z e d z o n e o f e x c l u s i v e j u r i s d i c
t i o n . "*Ä One a r t i c l e , f o r e x a m p le , p r o v i d e d t h a t " t h e o y s t e r
f i s h e r y o u t s i d e o f t h e l i m i t s w i t h i n w h ic h t h a t f i s h e r y i s
e x c l u s i v e l y r e s e r v e d t o B r i t i s h and F r e n c h s u b j e c t s , r e s p e c -
I b i d 152
I b i d 147
(1 8 3 8 - 1 8 3 9 ) 27 BFSP 9 83; CTS l x x x i x , 221
I b id A rt I
C f, C S t e v e n s o n , " I n t e r n a t i o n a l r e g u l a t i o n o f t h e f i s h
e r i e s o f t h e h i g h s e a s " (1908) 2 8 ( 1 ) B o f t h e B u rea u o f
F i s h e r i e s [ U. S . ] 103, 113 ( P a p e r p r e s e n t e d b e f o r e t h e
F o u r t h I n t e r n a t i o n a l F i s h e r i e s C o n g r e s s i n 1908)
82
t i v e l y s h a l l be common to the subjects of both count
ries, while its successor stipulated that dredging for
oysters "between the coast of Jersey and the coast of
France" was prohibited for subjects of both countries be
tween sunset and s u n r i s e . T h o s e and other provisions were
subsequently incorporated into more detailed regulations
signed in 1843 by both France and Great Britain governing
the actions of each State's nationals "fishing in the seas
lying between the coasts of...Great Britain ... and...
France".
And finally, the Convention provided that outside of
the Granville Bay area specially delimited and noted above,
the nationals of each country were to enjoy the exclusive
right of fishery within the distance of three geographical
miles from the low-water mark along their entire respective
coasts.30 Although the three-mile fishery limit laid down
in the 1839 Convention and 1843 Regulations was only binding
on subjects of France and Great Britain, it was subsequently
Art III
Art IV
(1842-1843) 31 BFSP 165; CTS xcv, 11; Art I
Arts IX and X. There was initially some difference of

opinion as to whether the three-mile limit applied to
all of the British and French coasts or only to those
in the area of the Channel. The Queen's Advocate, At
torney-General, and Solicitor-General on 14 March 1842,
jointly opined that the Convention was applicable to
the entire coasts of both countries (Parry, supra n 25,
xxxii, 363, 365).
Three miles was an acceptable compromise for the
British since that limit conformed with the distance
contained in the 1818 agreement it had concluded with
the U.S. In an opinion dated 12 July 1823 relating to
the dispute, for example, the King’s Advocate expressed
the view (ibid xxx, 180, 181-182) that
if the distance of a Marine League, or three liles could be adopted with

out material prejudice to the Interests of either Country, there would be
a convenience in taking it, in preference to any other, as it might be
assumed fron the general use of it in other Instances, and sight thereby
avoid the danger of cavil and disagreement in the adjustment of a bound
ary line, with reference to particular local objects.
83
endorsed by the latter's Law Officers as similarly enforce
able against all foreign fishermen.31
C . The 1882 North Sea Fisheries Convention

Toward the second half of the nineteenth century, bit
ter disputes arose in high seas areas of the North Sea be
tween trawl-fishermen and fishermen using gill or drift
nets.3:2 Following an increasingly common practice,33 the
British Government in 1881 invited the Governments of Bel
gium, Denmark, France, Holland, Sweden and Norway to meet
for the purpose of "arriving, if possible, at some interna
tional agreement whereby the police of the seas, outside
territorial waters, might be effectively maintained with re
gard to fishing operations” .3^ All States approached, plus
Parry, supra n 25, xii, 294
The two modes of fishing are pithily described in Re

port of W H Higgin, Esq, Q C, on the Outrages Committed
by Foreign Upon English Fishermen in the North Sea
(1881) (C.-2878) 5-6 [hereafter cited ’Higgin'].
See text accompanying nn 12-14 supra.

Letter dated 26 April 1881, from Earl Granville to
British representatives in Belgium, Denmark, France,
Holland, Sweden and Norway ("Correspondence respecting
the Conference at The Hague and the Convention of the
6th May 1882, Relative to the Police of the Fisheries
in the North Sea", Pari Papers, Commercial No 24
(1882) (C.-3238)[hereafter cited 'Correspondence'] 1.
The stimulus for the Conference came from a report
by Higgin who was appointed by the British Government
to investigate the complaints of British fishermen. He
found, inter alia, "that grievous injury and damage had
been done to the drift nets and tackle of English fish
ermen in the North Sea by trawlers belonging to France,
Belgium and Holland," and that at that time there was
"no international law or convention between Great Bri
tain and the three states mentioned... affecting the
fisheries in the North Sea"(supra n 52, 9). He con
cluded that some international law was urgently requir
ed and that the Convention concluded between France and
Great Britain (see nn 35-51 and accompanying text su
pra) would form an "admirable basis” for such law
(ibid) .
Because nearly all of the detailed regulations en
acted under the 1839 Convention between Great Britain
34
Germany which also wanted to participate, agreed to the pro
posal, France’s agreement being explicitly based on the un
derstanding that the regulations to be negotiated would be
police rules only, intended to prevent fishing conflicts and
to secure the free practice of fishing in the North Sea be
yond limits of national jurisdiction.*** To facilitate dis
cussion, Great Britain circulated a memorandum setting out
draft fishery policing provisions based on those included in
the 1867 Convention that it had concluded with France.56 The
convention, it was proposed, would be applicable "to the
high seas generally outside the fishery limits of the coun
tries joining in the convention".57
and France (see text accompanying n 49 supra) proved

unworkable or were ignored by fishermen, and because of
considerable dispute as to what in fact were "the seas
lying between the British Islands and France" to which
the regulations were applicable, the two States con
cluded a substitute Convention in 1867. The latter
maintained the maritime boundaries agreed to 28 years
earlier, but considerably simplified the regulations
governing'fishing beyond the limits of their respective
areas of exclusive jurisdiction. Fishing outside those
areas was to be completely free, except for a close
time for oysters established in the English Channel.
Other police provisions were clarified, as were the ar
eas to which the Convention applied. It was confirmed
by the British Parliament (31 & 32 Viet, c 45 of 1868)
but not ratified by France. With the exceptions of
provisions concerning the close-time, the Convention
never became operative. For text of the Convention see
(1866-1867) 57 BFSP 8.
Letter dated 2 July 1881 from M Barthelemy St Hilaire

to Lord Lyons (Correspondence, supra n 54, 7). The un
animous support for the British proposal was no doubt
due to fishermen of other States encountering difficul
ties similar to those of the English, a point forceful
ly noted during the negotiations (ibid 79, 85, 117).
Ibid 13. See also n 54 supra. Provisions included the

marking of gear, marking and registration of vessels,
distances to be observed between working trawlers and
drift net vessels. salvage arrangements, policing by
State cruisers, and legal procedures to be followed
when prosecutions were undertaken.
Ibid. In a letter dated 27 April 1831, Earl Granville

explained to the British Ambassador in Paris that the
Government was disposed to think that a sufficient rem
edy to the North Sea’s fishery problems was the appli-
85
For the purposes of the present discussion the Confer
ence was notable both for the results it did and did not
produce. First, it succeeded in negotiating the earliest
international agreement regulating fishing activity conduct
ed solely on the high seas. While the draft provisions cir
culated by Great Britain were by and large acceptable to
other participating States, there was virtually no support
for a British proposal to leave unspecified the geographical
limits of national fishery jurisdiction. The Conference ul
timately decided that, "the fishermen of each country shall
enjoy the exclusive right of fishery within the distance of
3 [geographical] miles from low-water mark along the whole
extent of the coasts of their respective countries, as well
as of the dependent islands and banks".3®
During the Conference, the German delegate expressed
fears that North Sea fishery resources were steadily dimin
ishing and argued the necessity of taking restrictive con
servation measures to prevent the destruction of fish fry
and the harvesting of undersized fish.39 Representatives of
Belgium, France, the Netherlands and the United Kingdom,
however, disputed any such claims.,so In view of the con
flicting evidence, the Conference decided that the question
of conservation measures was "not ripe for decision", and
that it was sufficient "to call the attention of the Gcvern-
cation of the relevant provisions of the 1867 Conven

tion between the United Kingdom and France to areas of
the North Sea "beyond the 3-mile limit of territorial
jurisdiction"(ibid 2). Why the United Kingdom subse
quently proposed and argued strongly in favour of the
more vague formulation contained in the circulated
memorandum is not known.
Art II. The text of the Convention appears in ibid

164; (1881-1882) 73 BFSP 39; and CTS clx, 219.
Correspondence, supra n 54, 94
Ibid 94-95. They referred to the finding of two Bri

tish experts (Report by Frank Buckland and Spencer
Walpole on the Sea Fisheries of England and Wales
(1879) (C-2449) xxxviii) that there was no evidence
that the supply of fish generally on the coasts of
England and Wales was decreasing.
36
ments to the need of a profound examination of the question
in so far as this may not already have been effected".&:L Ac
cordingly, the Convention was limited to police regulations.
Intended to operate for an initial period of five
years, it in fact remained in force until 1964.0:2
D. State Legislation
Detailed reviews of individual State's legislation and
other nineteenth and early twentieth century practice relat
ing to fisheries have appeared elsewhere*3 and therefore
need not be exhaustively canvassed at this juncture. For
the purpose of sketching the early development of interna
tional fishery law and setting the scene for the succeeding
discussion, however, it is useful to briefly describe both
the trend that developed during the period and exceptions to
that trend, as well as innovative arrangements in both do
mestic legislation and other State practice that hinted at
the need for a fundamental reappraisal of the laisser-faire
attitude of States generally toward the regulation of inter
national marine fisheries
Correspondence, supra n 54, 95-
See Ch 8, n 29 and accompanying text infra.
See, eg, Fulton, supra Introduction, n 16, 650-630;

Gidel, supra Introduction, n 15, iii/I, 66-122, 294-
315; O ’Connell, supra Introduction, n 15, 519-520; and
S Riesenfeld, Protection of Coastal Fisheries under
International Law (1942).
The Eurocentric (including American) focus thusfar in

the discussion of the early development of internation
al law relating to marine fisheries has been necessi
tated by the unfortunate paucity of detailed informa
tion (at least in English and French) concerning early
State practice elsewhere, as pointed out in the Intro
duction supra. While some scholarly attention has been
paid to non-Western States' contributions to the early
development of international law generally (see, eg,
references cited in Introduction note 32 and Ch 1, n 23
supra; as well as C Alexandrowicz, An Introduction to
the History of the Law of Nations in the East Indies
(16th, 17th and 13th Centuries), (1967) [hereafter ci
ted 'East Indies'], and by the same author, "Treaty and
diplomatic relations between European and South Asian
powers in the seventeenth and eighteenth centuries"
87
(1960) 100 RDC 203), and the law of the sea in particu
lar (see, eg, Anand, supra Ch 1, n 165, and by the same
author, Origin and Development of the Law of the Sea:
History of International Law Revisited (1982)), only
scattered and incomplete references exist concerning
fishery jurisdiction per se. To complete the picture,
therefore, it is useful to cite some examples of early
non-Western practice.
Probably the earliest reference to fishery juris
diction by States outside Europe and America is that
found in Kautilya’s Arthasastra, written about the
fourth century B.C. and describing contemporary Indian
State practice. It notes the existence of a coastal
State’s fishing rights over adjacent (but undelimited)
maritime waters; the requirement of fishermen to pay
one-sixth of their haul for license fees; and the con
trol by the Superintendents of Ships and Ocean Mines
over fisheries, including pearl and coral fisheries,
sometimes at a considerable distance from the land
{Kautilya’s Arthasastra (1967, 8th e d ; R Shamasastry,
ed) 89, 143. See generally in this regard, Singh,
supra Introduction, n 32, and H Chatterjee, Interna
tional Law and Inter-State Relations in Ancient India
(1958) 35-36.
Later, Grotius in his Mare Liberum observes that
"the inhabitants of the entire coast of Africa and Asia
constantly used for fishing...that part of the sea
nearest their own several coasts and were never inter
dicted from such use by the Portuguese” (Magoffin, supra
Ch 1, n 59, 60). Alexandrowicz (East Indies, supra
this n, 68) suggests that "claimed” might be substitu
ted for "used” as an equally appropriate translation of
Grotius' comment, thus making the latter’s observation
even more relevant.
Similarly, later writers refer to the appearance
by the fourteenth century of a written maritime code in
the South-east Asian archipelago governing various mat
ters, including aspects of fishery jurisdiction (for
text and discussion of the Malacca Maritime Code see J
Pardessus, Collection de Lois Maritimes (1345) vii; and
S Raffles, "The Maritime Code of the Malays” (1879) 1 J
of the Straits Branch of the Royal Asiatic Soc no 3,
62-84, and no 4, 1-20), and the development of the
concept of a territorial sea among the States of the
Indonesian archipelago by the end of the sixteenth
century (G Resink, "The significance of the history of
international law in Indonesia” in An Introduction to
Indonesian Historiography (1965; Soedjatmoko, ed) 349,
363) .
While the early independent Hawaiian Kingdom did
not encounter situations in which non-Hawaiians were
fishing off the islands' coasts, there nevertheless ex
isted a legal regime governing marine fisheries similar
to that found contemporaneously in the West. According
to John Wise ("The history of land ownership in Hawaii”
88
Throughout the above period, numerous States followed
Great Britain and the United States in accepting three miles
as the limit of a coastal State's exclusive fishery juris
diction. These included in Europe besides those States p a r
ty to the 1882 North Sea Fisheries C o n v e n t i o n ,0,55 Austria-
Hungary , Greece,67 R u s s i a ,&& Turkey,0,9 and perhaps
Italy.7,0 Outside Europe, the three-mile fishery limit was
in Ancient Hawaiian Civilization (1965) 81, 84), an au

thority on early Hawaiian land law,
People living on one ahupuaa [sub-district] had a right to...fish in

the waters off their district. Their rights extended to the boundaries
of the ahupuaa and no further. If there were breakers, it was consid
ered that the ahupuaa extended to thei. If there were no breakers, it
was considered that the ahupuaa extended a aile and a half out to sea.
Beyond the breakers (or, as the case may be, a mile and
a half), fishing was free to all {ibid).
As may be seen from the above, early developments
in Asia and elsewhere reveal traces of fishery jur i s
diction doctrine similar to those evolving in the West
over the same period or, in some cases, later. Beyond
that it is impossible to draw conclusions at this time,
particularly concerning the impact, if any, such p r a c
tices may have had on international legal doctrine re
lating to marine fisheries. After initial contact with
the West, most early civilizations disappeared from the
international stage (some permanently), not to reappear
until the mid-twentieth century. When they did, they
had a profound influence on the development of i nterna
tional law. That influence will feature prominently in
succeeding chapters of this work.
Belgium, Denmark, France, Germany, Great Britain and

■the Netherlands
Fulton, supra Introduction, n 16, 658-659
Ibid 661
Ibid 656. By 1911, however, Russia had claimed a zone

of exclusive fishery jurisdiction in the Pacific of 12
m i l e s . That limit was maintained by the Soviet Union
after the Revolution in 1917 ( O ’Connell, supra Intro
duction, n 15, 155).
A Szekely, Latin America and the Development of the Law

of the Sea (Nov, 1980, release 2) binder 1, 50, n 66
O'Connell {supra Introduction, n 15, 165) and Szekely

{supra n 69, ibid) are of the view that Italy r e c o g
nized a three-mile territorial sea and fishery limit.
89
r e c o g n i z e d by s u c h S t a t e s a s C h i n a , C o l o m b i a , ^ 2 E c u a d o r , 73
El S a l v a d o r , 7’"* J a p a n , 7'55 K o r e a , 7 * and T u n i s . * "
F u l t o n , h o w e v e r , o b s e r v e d i n 1911 t h a t " i t i s d o u b t f u l
how f a r t h e t h r e e - m i l e l i m i t h a s b e e n a d o p t e d i n I t a l y ”
( s u p r a I n t r o d u c t i o n , n 16, 6 6 0 ) , and t h e I t a l i a n d e l e
g a t e t o t h e Second U n i t e d N a t i o n s C o n f e r e n c e on t h e Law
o f t h e Sea ( s e e Ch 7 i n f r a ) s t a t e d t h a t I t a l y had a l
ways had a s i x - m i l e t e r r i t o r i a l s e a and no a d d i t i o n a l
f i s h i n g zone (A /C onf.1 9 /8 , p 63).
J Cohen and H C h i u , P e o p l e ’s China and I n t e r n a t i o n a l

Law (1 9 7 4 ) i , 9. China i n t h e n i n e t e e n t h c e n t u r y a c
c e p t e d t h e s y s t e m o f i n t e r n a t i o n a l l e g a l norms t h a t had
e v o l v e d i n t h e West.
’’D e c r e e o f 6 November 1 8 6 6 , ” i n U. N. , N a t i o n a l L e g i s l a
t i o n and T r e a t i e s R e l a t i n g t o t h e T e r r i t o r i a l S e a , t h e
C o n t i g u o u s Zone, t h e C o n t i n e n t a l S h e l f , t h e High S e a s
and t o F i s h i n g and C o n s e r v a t i o n o f t h e L i v i n g R e s o u r c e s
o f t h e Sea (1970) 15 UNLS 5 8 , U. N. Doc. ST/LEG/SER. B/15
[ v o lu m e h e r e a f t e r c i t e d ’ 15 UNLS’ ] . I n 1923, t h e t h r e e -
m i l e l i m i t was e x p a n d e d t o 12 m i l e s ( s e e n 80 i n f r a ) .
’’A r t 5 8 2 , C i v i l Code, 21 November 1 8 5 7 , ” i n U. N. , Laws

and R e g u l a t i o n s on t h e Regime o f t h e High S e a s (1 951) 1
UNLS 6 7 , U. N. Doc. ST/LEG/SER. B / l [v o lu m e h e r e a f t e r
c i t e d ’ 1 UNLS’ ]
’’A r t 5 7 4 , C i v i l Code, 1860,” in i b i d 71
On o p e n i n g i t s d o o r s t o t h e West i n 1 854, J a p a n a d o p t e d
t h e European i n t e r n a t i o n a l l e g a l sy s te m p r i n c i p a l l y as
e x p r e s s e d i n t h e A m e ri c a n j u r i s t , H enry W h e a t o n ’s E l e
m e n ts o f I n t e r n a t i o n a l Law ( c f , n 3 s u p r a ) . A ccording
to P r o f e s s o r F u jio I t o , th e Jap an ese r e p r i n t e d i t i o n of
t h e C h i n e s e l a n g u a g e t r a n s l a t i o n o f t h a t work was " t h e
s i n g l e m o st i m p o r t a n t p i e c e o f l i t e r a t u r e on i n t e r n a
t i o n a l law t h a t was p r o v i d e d t o t h e J a p a n e s e p e o p l e
d u r i n g t h e p e r i o d 1865 t o 1 8 8 0 ” ( ’’One h u n d r e d y e a r s o f
i n t e r n a t i o n a l law s t u d i e s i n J a p a n " (1 9 6 9 ) 13 JAIL 19,
20; c f , H O t s u k a , " J a p a n ’s e a r l y e n c o u n t e r w i t h t h e
c o n c e p t o f t h e ’ law o f n a t i o n s ' " i n i b i d 35, 4 5 ) .
Wheaton ( E l e m e n t s o f I n t e r n a t i o n a l Law (1866 e d ;
The C l a s s i c s o f I n t e r n a t i o n a l Law S e r i e s , 1936) 2 1 4 -
2 1 5 , 2 1 7 - 2 1 8 ) h e l d much t h e same p o s i t i o n a s t h a t f o r
m u l a t e d by V a t t e l and h i s p r e d e c e s s o r s :
The aaritiae territory of every State extends to the ports, har

bors, bays, souths of rivers, and adjacent parts of the sea inclosed by
headlands, belonging to the same State. The general usage of nations su
peradds to this extent of territorial jurisdiction a distance of a aarine
league, or as far as a cannon-shot will reach froa the shore along all
the coasts of the State. Within these liaits, its rights of property and
territorial jurisdiction are absolute, and exclude those of every other
nation. ...
90
The above trend led Fulton to conclude in 1911 that
"most maritime states, and all the great ones, either by
treaty or in their municipal laws and decrees, have adopted
the three-mile limit, at least for fishery purposes".7S At
the same time, however, he cautioned that though three miles
was "the ordinary limit, it is not the only one enforced,
and it is erroneous to declare... that territorial jurisdic
tion cannot be carried further"."70 Perhaps the most note
worthy jurisdictional claims greater than three miles during
the period were those of two Scandinavian States, Norway and
Sweden, and Spain and Portugal on the Iberian Peninsula.00
The right of fishing in the waters adjacent to the coasts of a

nation, within its territorial Units, belongs exclusively to the sub
jects of the State.
While Japan did not enact legislation in the nine

teenth century establishing the limits of its exclusive
fishery jurisdiction, she did agree to regulations with
Korea respecting fisheries signed in 1889. Those regu
lations controlled fishing within three miles of the
coasts of each party and included provisions governing
license fees, closed seasons etc ((1888-1889) 81 BFSP
261) .
See treaty with Japan, supra n 75.
"Decree of the Tunisian Government for the Protection

of the Tunny Fisheries (Anchovies, Sardines). — Tunis,
April 25, 1892" (1891-1892) 84 BFSP 668, which forbade
fishing for anchovies and sardines during certain times
of the year "!i moins de trois milles de la c$te". At
the time of the Decree, the Kingdom of Tunis was a
French Protectorate by virtue of the 1883 Convention of
Marsa (CTS, supra Ch 1, n 155, clxii, 183).
Fulton, supra Introduction, n 16, 663 (emphasis added).

For similar references to State practice of more power
ful States see n 14 and accompanying text supra.
Ibid 664
Besides the States cited, outside Europe other States

also claimed a zone wider than three miles for fishery-
related purposes. In 1907, for example, Argentina de
clared a 10-mile fishing zone in which fishing was free
for all but subject to certain regulations concerning
methods and types of equipment used ("A Presidential
Decree Concerning Fishing and Hunting, of 18 September
1907" in 1 UNLS, supra n 73, 51). In 1923, Colombia
amended her earlier law (supra n 72), asserting a 12-
91
The Nordic States reserved the right of fishing for their
respective residents to a distance of four geographical
miles, measured, in the case of Norway, "from the outermost
islands and islets that are not continually swept over by
the sea,"91 and in the case of Sweden, "from the land or
from the rock situated farthest from the Swedish coast which
is not continually submerged” .®2 Those exposed land masses
were linked by straight baselines from which both States'
territorial seas were measured, and behind which lay inter
nal waters likewise prohibited to foreign fishermen.®®
While there were scattered protests to the jurisdiction as
serted, the claims were generally acquiesced in by other
States, "probably owing in the main to the fact that [the
coasts in question were] but little visited by foreign fish
ermen” .®‘*
On the Iberian Peninsula, both early nineteenth century
Portugal and Spain claimed exclusive fishery jurisdiction to
a distance of six miles from their respective coasts, and
concluded numerous bilateral agreements governing fishing by
their nationals in the waters concerned.®® Although Spain
mile territorial sea for fishery protection and other

purposes (15 UNLS, supra n 72, 59).
"Royal Decree of 22 February 1812" in U.N., Laws and

Regulations on the Regime of the Territorial Sea (1957)
6 UNLS 35, U.N. Doc. ST/LEG/SER.B/6 [volume hereafter
cited '6 UNLS’]
"Royal Order No 21 of 5 May 1371 concerning the area
within which fishing on the west coast of Sweden is ex
clusively reserved to residents of the Kingdom" in ibid
563
Those baselines sometimes enclosed large areas of rich
fishing grounds. In one sector of the Norwegian coast,
for example, over 2000 square (geographical) miles were
included in internal and territorial waters, about 900
square miles of which lie outside the three-mile limit
(Fulton, supra Introduction, n 16, 673-674).
Ibid 676-677. For a detailed review of the early Nor

dic claims see ibid 669-680. A most important dispute
did arise, however, in the 1950s between Norway and the
United Kingdom, regarding which see Ch 5 infra.
92
steadfastly maintained its claim to a six-mile exclusive
fishing zone well into the twentieth century, that claim was
subjected to concerted criticism from both the United
States, which argued generally against any coastal State’s
assertion of jurisdiction beyond three miles,®® and Great
Britain, which was more concerned with fishery jurisdiction
in particular.®'7' Portugal encountered similar criticisms
and, apparently bowing to British pressure.®® passed legis
lation in 1909 which simply prohibited foreign fishing
within three miles of the coast.®® By the early twentieth
century only the three-mile limit was respected by foreign
trawlers off the coasts of the Peninsula, much to the cha-
Ibid 569. In 1878, Portugal and Spain concluded an

agreement according each country reciprocal fishing
rights for their nationals in the territorial sea of
the other, provided -that the local regulations were ob
served and certain harvesting methods were prohibited
within 12 miles of the coast ("Provisional Convention
between Portugal and Spain for the Re-establishment of
Reciprocity of Fishing Rights, signed at Lisbon, 14
July 1878" in CIS cliii, 193). For other fishery
agreements between the two States concerning 6 and 12
miles limits see ibid clxvi, 395 ; ibid clxxi, 211; and
ibid clxxviii, 249, 345.
See American correspondence relating to Spanish claims

of jurisdiction in a six-mile belt around Cuba in
Moore, supra n 19, 706-714, in which the U.S. concluded
in 1863 that it was "not prepared to admit that the ju
risdiction of Spain, in the waters which surround the
island of Cuba lawfully and rightly extends beyond the
customary limit of three miles"(at pp 711-712). For a
review of Spanish practice, including assertions in
this regard see, Riesenfeld, supra n 63, 175-176.
Smith, supra n 36, 169-198
Riesenfeld, supra n 63, 177; Fulton, supra

"Fisheries Law of Portugal. - Cintra, October 26, 1909"

(1908-1909) 102 BFSP 788. The application of pressure
by strong States to force weaker States to restrict the
latter’s maritime jurisdiction over fisheries was, of
course, not new. Kent (supra n 18, 538, 552) describes
how Denmark was unable to enforce her claims to broad
maritime jurisdiction against Holland in the 17th cen
tury, and later against England, France and Russia, and
so was forced to limit her claims to a much narrower
area around the coasts of her various possessions.
93
grin of local fishermen who were subject to the more strin
gent domestic regulations.'5'0
Portugal and Spain were not alone during the century in
both recognizing the need for fishing conservation measures
outside of their immediate zones of exclusive jurisdiction,
and in taking steps to promulgate regulations for that pur
pose. As early as 1862, for example, France had decreed
that while, except for oysters, fishing was free beyond the
three-mile limit off its coasts,
Sur la deaande des prud'homes des pecheurs, de leurs deiegues et, a defaut, des syn
dics des gens de aer, certaines peches peuvent etre teaporaireaent interdites sur une
Itendue de aer au del^ de trois ailles du littoral, si cette aesure est coaaandee par
l'interet de la conservation des fonds ou de la p§the des poissons de passage .“5*1
The opposability of such conservation measures to other

States, however, was quite a different matter, and became
the central issue of the most significant fishery arbitra
tion decision of the century.
IV- The Behring Sea Fur Seals Arbitration“^
A- Background to the Dispute

In 1867, Russia ceded to the United States "all of the
territory and dominion" it then possessed "on the continent
Fulton, supra Introduction, n 16, 667-668
"Decret du 10 mai 1862 [Art II]"in A-C Kiss, Repertoire

de la pratique franpaise en matiere de droit interna
tional public (1962) iv, 100
For detailed reviews of the dispute and correspondence

relating thereto see generally: Moore, supra n 15, i,
94
of America and in the adjacent islands",^3 including the

Pribyloff Islands in the Behring Sea. Almost 300 miles west
of mainland Alaska, the islands embrace the principal breed
ing grounds or "rookeries" of the fur seal in the eastern
part of the North Pacific. By various legislative enact
ments , the United States quickly moved to severely curtail
the commercial harvesting of the seals "within the limits of
the said territory, or in the waters t h e r e o f i n order to
preserve them from extinction threatened by deleterious har
vesting practices. Enforcement measures resulted in numer
ous arrests, culminating in protests by the British Govern-
755-961; and the following volumes of GFSP: (1887-1888)

lxxix, 1240-1306; (1888-1889) lxxxi, 1072-1091; (1889-
1890) lxxxii, 202-291; (1890-1891) lxxxiii, 306-356;
and (1891-1892) lxxxiv, 453-589. For more concise sum
maries of the dispute see Moore, supra n 19, 890-923;
Smith, supra n 36, 99-109; L Leonard, International
Regulation of Fisheries (1944) 55-82; and Stevenson,
supra n 46, 124-132. The British case is set out in
Command Paper C.6918; its counter-case in C.6920; and a
summary of both in C.6921 (all published in Great Bri
tain. House of Commons. (1893-1894) 110 Parliamentary
Papers). C.6921 is found in Smith, supra n 36, 369-
422. For a subsequent American view of the proceedings
see W Williams, "Reminiscences of the Bering Sea Arbi
tration" (1943) 37 AJIL 562; while for a British view
see T Barclay, "La question des pecheries dans la mer
de Behring” (1893) 25(1st series) Revue de droit inter
national et de legislation comparee 417.
"Convention ceding Alaska between Russia and the United

States, signed at Washington, 30 March 1867 [Art I]" in
CTS, supra Ch 1, n 155, cxxxiv, 331; (1855-1867) 57
BFSP 452. The treaty was also concluded in French, the
relevant wording being "le territoire avec droit de
souverainete" (G Martens, Nouveau recueil general des
traites (2nd series) i, 39), which, the British claimed
with some justification, should more appropriately be
translated, "the territory, together with the right of
sovereignty"(C .6921, supra n 92, 24). This, they ex
plained, was significant for the American case in that
"it expresses not merely a grant of territory, but also
of the sovereign rights over such territory. It says
nothing of sovereign rights or dominion over the sea"
(ibid) .
Act of July 27, 1868, 15 Stat 240; R S s 1954. See

also Act of March 3, 1869, 15 Stat 348; R S s 1954, and
Act to Prevent the Extermination of Fur-Bearing Animals
in Alaska, 16 Stat 180; R S ss 1960-1972 (1870).
95
ment that the jurisdiction exercised by the United States
was unlawful, and, ultimately, agreement in 1892 to submit
the dispute to arbitration.^3 The most important point
which the Tribunal was required to address was whether the
United States had "any right, and, if so, what right, of
protection or property in the fur-seals frequenting the is
lands of the United States in Behring Sea when such seals
are found outside the ordinary three-mile limit?”^3
In 1886, the US seized three British schooners engaged

in pelagic sealing in the Behring Sea more than sixty
miles from Alaskan land. Prosecution was effected, and
in the ensuing court proceedings the American judge de
clared that all waters east of the line stipulated as
the western boundary of the Alaskan territory in the
Treaty of 1867 (see n 93 supra) were ’’comprised within
the waters of Alaska, and all the penalties prescribed
by law against the killing of fur-bearing animals must
therefore attach against any violation of law within
the limits heretofore described” (Moore, supra n 15,
771) . The fishermen were found guilty and imprisoned.
The British Government protested to the US Government,
and the latter subsequently ordered the release of the
fishermen ’’without conclusion... of any questions which
may be found to be involved in [the seizures]” (ibid
772) . In 1889, five more British vessels were seized
and others ordered out of the Behring Sea by US author
ities. As a result of the above, the dispute was sub
mitted to arbitration.
Pursuant to the arbitral agreement (’’Treaty be
tween Great Britain and the United States, for submit
ting to Arbitration the Questions relating to the Seal
Fisheries in Behring Sea. — Signed at Washington,
February 29, 1892" (1891-1892) 84 BFSP 48), seven arbi
trators were chosen. The President of the US named as
American arbitrators the Hon John M Harlan, a Justice
of the Supreme Court, and the Hon John T Morgan, a Sen
ator. The British Government named as their represen
tatives , the Rt Hon Lord Hannen of the High Court of
Appeal, and the Hon Sir John Thompson, Minister of Jus
tice and Attorney-General for Canada. As neutral arbi
trators , the Baron Alphonse de Courcel, a Senator and
Ambassador of France, was chosen by the French Presi
dent; the Marquis Elilio Visconti Venosta, a Senator
and former Minister of Foreign Affairs, was chosen by
the King of Italy; and Mr Gregers Gram, a Minister of
State, was chosen by the King of Sweden and Norway
(Moore, supra n 15, 805).
Art I of the Treaty, supra n 95. In the event of the

Tribunal finding that British concurrence was required
for the establishment of appropriate fur seal conserva-
96
B. The United States Position
The United States argued that independent of any juris
diction over fur seals and the waters of the Behring Sea
that were ceded to it by the 1867 Treaty,^ it had a right
tion measures in the Behring Sea, the Arbitrators were

to determine what concurrent regulations outside the
jurisdictional limits of the respective Governments
were necessary, and over what waters such regulations
should extend (Treaty Art VIII).
There was no dispute between Great Britain and the
United States on the status of the three-mile limit for
normal jurisdictional purposes. James Blaine, the then
American Secretary of State, in a reply to a British
offer to arbitrate the points at issue wrote (Blaine to
Sir J Pauncefote [British Envoy and Minister in Wash
ington] , dated 17 December 1890, in (1890-1891) 83 BFSP
308, 309),
The second offer of Lord Salisbury to arbitrate aiounts siaply to the

subaission of the question whether any country has a right to extend its
jurisdiction more than one aarine league froa the shore? No one disputes
that as a rule; but the question is whether there aay not be exceptions.
He subsequently formulated and proposed the question

cited in the text as one of the points to be decided by
arbitration (Blaine to Pauncefote, dated 14 April 1891,
in (1891-1892) 84 BFSP 454). It was accepted by the
British Government without discussion (telegraphic mes
sage from Lord Salisbury to Pauncefote, dated 2 June
1891, in ibid 461).
As officially stated in Art VI of the treaty (su
pra n 93), the first four questions were:
1. What exclusive jurisdiction in the sea now known as
the Behring Sea, and what exclusive rights in the seal
fisheries therein, did Russia assert and exercise prior
and up to the time of the cession of Alaska to the US?
2. How far were these claims of jurisdiction as to the
seal fisheries recognized and conceded by Great
Britain?
3. Was the body of water now known as the Behring Sea
included in the phrase 'Pacific Ocean,' as used in the
Treaty of 1825 between Great Britain and Russia; and
what rights, if any, in the Behring Sea, were held and
exclusively exercised by Russia after said Treaty?
4. Did not all the rights of Russia as to jurisdiction
and as to the seal fisheries in Behring Sea east of the
water boundary, in the Treaty between the US and Russia
of the 30th March, 1867, pass unimpaired to the US
under that Treaty?
It was claimed by the United States before the Tribunal

that prior to 1824, Russia had asserted exclusive
rights of commerce, hunting and fishing on the shores
and in the waters of the Behring Sea, and that even af-
97
of protection and property in the seals frequenting the Pri-
byloffs even when outside the three-mile limit. That right
was based on "the established principles of the common and
the civil law, upon the practice of nations, upon the laws
of natural history, and upon the common interests of man
kind".^®
The heart of international law, contended the Ameri
cans, was natural law, "a code, not derived from legisla
tion, having no origin in any sovereign legislature[;]...not
derived from [a] human institution at all, but found in the
nature of man and in the environment in which he is plac
ed” . ^ Thus, the Tribunal's decision had necessarily to be
based "upon principles of right"; and by "the rule or prin
ciple of right" was meant "a moral rule” dictated by "that
general standard of justice upon which civilized nations are
agreed".100 International law was, in fact, "to be found in
the general standard of justice acknowledged by the members
of the [international] society".101 While actual State
practice and usages constituted the best evidence of agree-
ter its treaties of 1824 and 1825 with the US ("Conven

tion regulating Navigation, Fishing, Trading, and Es
tablishment on the Northwest Coast of America, between
Russia and the United States, signed at St Petersburg,
17 April 1824" in CTS lxxiv, 135) and the UK ("Conven
tion between Great Britain and Russia concerning the
Limits of their Respective Possessions on the North-
West Coast of America and the Navigation of the Pacific
Ocean, signed at St Petersburg, 16(28) February 1825"
in ibid lxxv, 95), respectively, Russia continued to
exercise exclusive jurisdiction over the Sea sufficient
to protect its own sealing interests. This included
prohibiting British subjects and vessels from entering
the Behring Sea for sealing purposes, prohibitions
which apparently met with no objection on the part of
the UK. The reference to "the Pacific" in the 1824 and
1825 Treaties guaranteeing all three States freedom of
fishing and navigation, the US asserted, did not com
prehend the Behring Sea (Moore, supra n 15, 810).
Ibid 311
" Leonard, supra n 92, 74
100 Moore, supra n 15, 827

1 O 1
Ibid
98
m e n t on i n t e r n a t i o n a l leg al norm s, "in th e absence of e v i
dence to th e co n trary , n atio n s are presumed to a g re e upon
what n a t u r a l and u n i v e r s a l ju stice d i c t a t e s " . 102 W h e r e no
precedent is to be fou n d in S tate p ractice, a ru le m ust be
deduced "from th e d i c t a t e s of n a tu ra l ju stic e to w hich n a
tio n s are presum ed to y i e l d th eir c o n s e n t " . 103
The e s s e n t i a l d isp u te concerned " 'th e p ro tectio n af
forded by a n a t i o n to its pro p erty and o t h e r r i g h t s by r e a
so n ab le and n e c e s s a r y acts o f power a g a i n s t th e citizen s of
oth er n atio n s whenever i t may b e n e c e s s a r y on t h e high sea s
w ithout re g a rd to any b o u n d a ry l i n e ' " , subm itted th e U nited
S t a t e s . 10-1 It had n o t p r o c la im e d t h e B e h r in g Sea a mare
clausum , but ra th e r had b a se d its actio n s "on t h e g ro u n d o f
a p ro p erty in te r e s t w h ich c o u l d n o t be i n t e r f e r e d w ith by
oth er n atio n s upon t h e h ig h s e a s by p r a c t i c e s w hich in them
selv es w ere e s s e n t i a l l y im m oral and c o n t r a r y to th e law o f
n a t u r e " . 10 3 That i n t e r e s t had been e x e r c i s e d by a n d l e g i t i
m ately i n h e r i t e d from t h e R u ssian s.
loz I b i d 828
103 I b id 829. A c c o r d in g t o S i r H e rs c h L a u t e r p a c h t [The

F u n c t i o n o f Law i n t h e I n t e r n a t i o n a l C o m m u n i t y ( 1 9 3 3 )
9 9 ) , t h e U n i t e d S t a t e s ' a r g u m e n t w as " t h e m o s t s p i r i t e d
d e f e n c e e v e r o f f i c i a l l y u n d e r t a k e n by a G o v e rn m e n t o f
t h e law o f n a t u r e a s t h e f o u n d a t i o n o f i n t e r n a t i o n a l
law " .
1 M oore, s u p r a n 15, 830
103 I b id 831. As f o r t h e j u r i s p r u d e n t i a l b a s i s u n d e r l y i n g
t h e i n s t i t u t i o n o f p r o p e r t y , t h e US a r g u m e n t may b e
sum m arised as f o llo w s ( i b i d 8 3 4 -8 3 5 ):
First. The institution of property springs fron and rests upon

two priae necessities of the huaan race:
1. The establishment of peace and order, which is necessary to
the existence of any fora of society.
2. The preservation and increase of the useful products of the
earth, in order to furnish an adequate supply for the constantly
increasing deaands of civilized society.
Secondly. These reasons, upon which the institution of property
is founded, require every u s e f u l thing, the supply of which is
l i m i t e d , and which is capable of ownership, should be assigned to soae
legal and deterainate owner.
99
In th e p articu lar case at issu e, it was necessary to
d istin g u ish betw een th e q u estio n of a p ro p erty rig h t in the
seals th em selv es, and th e q u estio n of a p ro p erty in te rest in
th e sealin g in d u stry . The e x i s t e n c e of a p ro p erty rig h t in
th e form er, it was claim ed , w ould perm it th e U n ited S ta te s
to e sta b lish a sealin g in d u stry and to p ro h ib it any in te r
ference w ith the seals th at was d etrim en tal to th at e sta b
lish m en t, reg ard less of th eir lo catio n at any one t i m e . 103
D id such a rig h t ex ist? W ere fur seals th em selv es ca
p ab le of o w n ersh ip ? Yes, acco rd in g th e th e U nited S ta te s.
There was no leg al p rin c ip le sta tin g th at no w ild an im als
w ere th e su b ject of p ro p erty . On t h e c o n tra ry : in fact, ac
cording to th e u n iv ersally accep ted Roman law d o ctrin e of
a n im u s r e v e r te n d i,
the essential facts which rendered aniaals commonly designated wild the subject of
property, not only while in the actual custody of their master, but also when tem
porarily absent therefrom, were...'that the care and industry of aan acting upon a
natural disposition of the aniaals to return to a place of wonted resort secures their
voluntary and habitual return to his custody and power, so as to enable hia to deal
with thea in a siailar sanner and to obtain froa thea siiailar benefits as in the case
of domestic a n ia a ls.'107'
In th is regard, the U nited S tates claim ed , fur seals

w ere to be d istin g u ish ed from "anim als in every respect w ild
and yet u sefu l, such as th e sea f i s h e s . . . [w hich] man c a n not
c o n t r o l . . . " . 103 Through A m erican e ffo rts, it was argued, the
fur seals had becom e "th e su b jects of o rd in ary husbandry, as
much a s sh e e p ...o r c a t t l e ” . 103 T here was no d ifferen ce be-
Third. The extent of the douinion which, by the law of nature,

is conferred upon particular nations over the things of the earth, is
limited in two ways:
1. They are not made the absolute owners. Their title is
coupled with a trust for the benefit of mankind. The human race is
entitled to participate in the enjoyment.
2. As a corollary or part of the last foregoing proposition, the
things themselves are not given; but only the increase or usufruct
thereof.
10Ä I b i d 3 3 1 -8 3 2
10^ I b id 832
lo e I b id 8 3 5 -8 3 6
100
tw een th e seal and an im als such as deer and bees w hich w ere
g en erally co n sid ered as p ro p erty so lo n g as they retain ed
animus revertendi. An d b esid es, asserted th e A m ericans, th e
seal fish e ry was "a larg e, and if p ro p erly m anaged, perm an
ent in d u stry , th e p ro p erty of th e n atio n on whose shores it
is c a rrie d o n ’’ . 1 1 0
G iven such a state of a ffa irs, it was asked,
could anything.. .be clearer as a moral, and under natural laws, a legal, obligation
than the duty of other nations to refrain from taking any action which would prevent
the United States, the owner of the lands to which the seal herd resorts, from per
forming the trust which i t acknowledged and had discharged?1 1 1
Even sh o u ld it be assum ed th at th ere co u ld be no prop

erty rig h t in th e fur seals th em selv es, and th at o u tsid e of
te rrito ria l w aters th e an im als w ere ferae naturae i n th e
co m p lete sense of th e term , in te rn atio n a l law s till perm it
ted it to defend its n atio n al in te rests, argued th e U nited
S tates. W h ile keen to p ro te c t th e freedom of the seas p rin
cip le , th e sea was only free "for innocent and in o ffen siv e
use, not in ju rio u s to th e ju st in te rests of any n atio n w hich
borders upon i t . . . " . 112 in th at regard, th e rig h t of se lf-
defence ex ten d ed to a ll th e m aterial in te rests of a n atio n
im p o rtan t to be d e fe n d e d and was lim ited only by th e actu al
n e cessities of th e sp e cific case. M ore p articu larly ,
wherever an important and just national interest of any description is put in peril
for the sake of individual profit by an act upon the high sea, even though such act
would be otherwise justifiable, the right of the individual must give way, and the na
tion will 'De entitled to protect itself against the injury, by whatever force may be
reasonably necessary, according to the usages established in analogous cases.1 13
Such a rig h t, it was claim ed , found ex p ressio n in S tate

p rac tic e , in clu d in g th e d o m estic law s of v ario u s c o u n tries
w hich, "if th ey are reaso n ab le and necessary for th e defense
10^ Ibid 3 3 3
110 Ibid 7 8 3
111 Ibid 8 3 7
112 Ibid 3 3 9
113
Ibid 8 3 9 - 3 4 0
101
of a national interest or right will be submitted to by oth
er nations, and if not, may be enforced by the government at
its discretion".1
11'*
Concluding its argument, the United States characteris
ed its claim as involving the application of a "universal
and necessary principle" to a novel exigency.1155 This posed
no problem since international law developed through the
process of analogy and the application of such principles to
new cases. On the other hand, if the Tribunal considered
that the instant case was outside rules previously estab
lished, determination must then be based on "those broader
considerations of moral right and justice which constitute
the foundations of international law".110
C- The United Kingdom Position

The British contested the American view that "the best
international law has arisen from precedents that have been
established when the just occasion for them arose, undeter
red by the discussion of abstract and inadequate rules".11'7’
1^ Ibid 843-844
1155 Ibid 844
Ibid
xx~p> C.6921, supra n 92, 34. On the other issues (see n 96

supra), the British contended {ibid 11) that the great
size and particular geographical features of the Beh
ring Sea were such that
no nation has the right to close the sea against the navigation of the
ships of other nations; nor to claii or assert territorial dominion over
the sea; nor to claia or assert the right of jurisdiction, nor to exer
cise jurisdiction, over the sea beyond the 3 ailes of territorial waters,
as recognised by international law.
While in 1821 Russia did initially assert exclu

sive jurisdiction over a part of the Behring Sea along
her coasts, they admitted, immediate protests from both
the UK and the US caused Russia to quickly withdraw her
assertion, the jurisdiction never subsequently being
reasserted or exercised beyond the three miles from the
coasts she claimed {ibid 26). Contrary to the American
claim (see n 97 supra), the UK argued that it was clear
from the history of negotiations that the reference to
"any part of the Pacific Ocean" in the Treaties of 1824
102
R ather, in tern atio n al law , be it "custom ary, co n v en tio n al,
or ju d ic ia l- c u s to m a ry ” , d ev elops through "a m ore t e d i o u s
p ro c e ss," its source being S tate c o n s e n t , 119 and th at
only so auch of the rules of aorals or the rules of the law of nature, as have re
ceived the inpriiatur of nations — evidenced by the assent of nations expressed or
iiplied — only so auch as has been taken up by that consent into the body of interna
tional law is in truth international law.1 1 9
No c o n t r o v e r s y h a d e v e r been settled betw een S tates by

d irec t reference eith er to n atu ral law o r to a "supposed law
of m orals", argued th e B r i t i s h . 120 As f o r th e o th er le g al
bases p o sited by t h e U n ited S tates, th ey co n tin u ed , "th ere
is no known c o d e of [th e 'la w s of N atu ral H is to ry '] and as
to th e 'common i n t e r e s t s of m an k in d ’ th e s e must be t e s t e d
by, and be d e a l t w ith upon, leg al p r i n c i p l e s " . 121
In th e in sta n t p ro ceed in g s, th e m ost b asic reco g n ized
p rin cip le was t h e freedom of th e sea; th at is, "th e rig h t to
come a n d go u p o n th e high sea w ith o u t le t or h in d ran ce, and
to tak e th erefro m at w ill and p leasu re th e produce of th e
s e a " . 122 From t h a t fundam ental ten et th ere had e v o lv e d
th ro u g h th e consent of n atio n s a more p a r t i c u l a r ru le gov
ern in g fish ery ju risd ic tio n : "in th e absence of T reaty , or
a n d 1825 ( s e e n 97 s u p r a ) e n c o m p a s s e d t h e B e h r i n g S e a ,
t h u s s t r e n g t h e n i n g t h e B r i t i s h p o s i t i o n on R u s s i a ’s
l i m i t e d f i s h e r y j u r i s d i c t i o n ( i b i d 19, 2 0 ) . A rticle I
o f t h e 1824 T r e a t y s t i p u l a t e d t h a t
It is agreed that in any part of the Great Ocean called the Pacific Ocean
or South Sea, the respective citizens or subjects of the high contracting
powers shall be neither disturbed nor restrained, either in navigation,
or in fishing, or in the power of resorting to the coasts, upon points
which aay not already have been occupied....
A rticle I of th e 1825 T r e a t y was s i m i l a r l y w orded.
11S Ib id
1X9 Leonard, supra n 92, 78
1:20 Ib id . See tex t accom panying n 100 supra.
1:21 C .6921, supra n 92, 38. See t e x t accom panying n 98

supra.
X2 2
Ib id 7
103
some claim based on acquiescence, the right of exclusive
fishing on the high sea conceded to any country by interna
tional law is limited to the 3 miles of territorial wa
ters” .123
But what about the particular exception claimed by the
United States for fur seals? Were not the latter capable of
appropriation as private property? Not according to the
United Kingdom. The common law in both England and America
was identical, closely following Roman law according posses
sion through capture.12*4 Although a landowner has "quali
fied property” in wild animals on his land, it was no more
than the exclusive right to take possession while the ani
mals were there. In the British view, fur seals were ferae
naturae, pure and simple.1255 Thus, the United States had
only "an exclusive right to take possession of the seals
while they are on the islands, and this exclusive right is
lost when the seals go into the high seas” .120 Furthermore,
argued the United Kingdom, the American assertion that the
seal fishery was the property of the nation on whose shores •
it is carried on, ’’begged the question, and was not consis
tent with any known principle of law” .12^
Similarly, the British claimed as "novel and unprece
dented” as well as "wholly devoid of legal authority”12® the
final American submission that the United States had an in
dependent right to protect the seals on the high seas. "The
exclusive right to take possession of animals on land does
not carry with it a right to protect such animals when they
left the land” .12® Nor may such a right be based on either
12:3 Ibid 15
12^ Ibid 31. See Ch 1, text accompanying n 12 and text

accompanying n 97 supra.
12S Ibid 28-30
120 Ibid 33
12-7 Ibid 34
1
Ibid 36
104
the assumption that the fish may be proceeding to a place
within which an exclusive right to take possession would
arise, or even the existence in the coastal State of an in
dustry based on the resource in question. Seals were sub
ject to the same fundamental principle as fish: "the right
of all nations to fish on the high seas is inconsistent with
the claims of any nation to protect fish or other free-swim
ming animals there".130 Excluding rights recognized by con
ventional means, the only right of a State to protect fish
and other free-swimming animals in the high seas was against
that State's own nationals. American reference to domestic
legislation of other States concerning fishing beyond the
three-mile territorial sea in support of their claim was in
applicable, the British contended, because those laws were
not enforced against foreigners.131
Finally, the United Kingdom professed itself willing to
adopt general measures for the control of the fur-seal fish
ery, provided that the measures were "equitable", "framed
with due regard to the common interest", and operated to
preserve the industry "for the enjoyment, not of the United
States alone, but of all those who may lawfully engage in
fishing".133
D. The Arbitration Award

The Tribunal’s decision was handed down on 15 August
1893.133 Excepting the American members, it decided and de
termined that the United States did not have "any right of
protection or property in the fur-seals frequenting the is-
Ibid
130 Ibid 36-37
131 Ibid 55. An example of one such law is the French de
cree of 1862 discussed above (see text accompanying n
91 supra).
13Z Ibid 63
133
"Award of the Tribunal of Arbitration, constituted
under Article I of the Treaty concluded at Washington
on the 29th February, 1892, between Great Britain and
the United States (Seal Fishery in Behring Sea). --
Paris, August 15, 1893" (1892-1893) 85 BFSP 1158
105
lands of the United States in Behring Sea, when such seals
are found outside the ordinary 3-mile limit,”13^ and that
"the concurrence of Great Britain [was] necessary to the es
tablishment of Regulations for the proper protection and
conservation of the fur-seal in or habitually resorting to
the Behring Sea...". 13:3
The Tribunal also formulated a number of regulations
applicable outside the jurisdictional limits of both parties
which would, inter alia, prohibit pelagic sealing at any
time within a 60 mile zone around the Pribyloffs and stipu
late the types of vessels permitted to undertake such seal
ing .130
Unfortunately for the purpose of tracing the develop
ment of international law relating to marine fisheries, the
13'* Ibid 1161. According to Sir Humphrey Waldock ("The

regulation of the use of force by individual States in
international law" (1952) 81 RDC 455, 466), "The Tribu
nal was clearly correct in holding that the exceptional
principle of self-defence can only apply in case of a
threatened invasion of a State's legal rights" since,
in the instant case, there was no such invasion and
therefore no right of self-protection. Cf, text accom
panying nn 129-131 supra. For the American argument on
the point see text accompanying nn 112-114 supra.
On the four questions relating to Russian juris
diction ceded to the US (see nn 96, 97 and 117 supra),
the Tribunal agreed with the UK. Russia, while ini
tially asserting jurisdiction over fur seals to 100
Italian miles from the coast, never exercised jurisdic
tion beyond "the ordinary limit of territorial waters”
after the Treaties of 1824 and 1825 (see n 97 supra);
Great Britain had never recognized any greater juris
dictional claims on the part of Russia; the Behring Sea
was included in the reference to the Pacific Ocean in
the above Treaties; and, all rights possessed by Russia
over fur seals within the limits defined by the Treaty
of 1867 (supra n 93) were ceded to the US (Award, supra
n 133, 1160-1161). Only Senator Morgan opposed the
first three decisions. The fourth decision was unani
mous. Even Williams (supra n 92, 582), who was highly
critical of the Award, thought that on these questions
the correct decisions had been taken.
Award, supra n 133, 1161

13<s Ibid. See n 96 supra regarding the Tribunal’s respon
sibility regarding regulations.
106
Treaty of Arbitration did not require the Tribunal to give
reasons for its decision, nor were any given. Any con c l u
sions to be drawn as to the then applicable legal principles
and, incidentally, the law-formation process itself, the r e
fore, must be deduced from the arguments advanced by the
disputing parties and the basic decision rendered.
It appears clear from the unanimous decision of the in
dependent arbitrators that rather than rely on abstract
principles of natural law, they favoured basing their d e t e r
mination on legal norms evidenced by the clear consent of
nations. In adopting that approach, the Tribunal followed a
jurisprudential trend increasingly prevalent since the w r i t
ings of V a t t e l .
In specific terms, the decision appeared to reflect the
a r b i t r a t o r s ’ acceptance of the freedom of the sea principle
as being the complete statement of the law governing marine
waters beyond the territorial s e a . 13'7' Nevertheless, it may
be a mistake to read into the decision an endorsement of a
State's total and unrestricted freedom of action on the high
s e a s . 130 While the Tribunal indeed rejected the American
13^ O'Connell (supra Introduction, n 19, 20) states that

"[t]he absoluteness of the freedom of the seas doctrine
reached an apogee with the a w a r d ” . Cf, Lauterpacht,
supra n 103, 99; and R Jennings ("General course on
principles of international l a w ” (1967) 121 RDC 323,
406-407), who writes that although the Tribunal's
decision
was at the time and has since been hailed as a great blow for freedom, it
could also be regarded as an all-too-characteristic failure of lawyers to
take account of, or perhaps even to comprehend, the relevance of the sci
entific data that had been put before them....
13e In this regard, Georg Schwarzenberger ("The fundamental

principles of international law" (1955) 87 RDC 195,
360) writes that "Culnder international customary law,
the right of user of the high seas...may be exercised
for any purposes not expressly prohibited by interna
tional law as, for instance, for ... f i s h i n g ," and that
the Behring Sea decision "can be invoked in order to
sustain the argument of the absolute character of this
right of u s e r "( ibid ) . He adds, however, that
In view...of the mutually exclusive character of some of these rights

[relating to freedom of the sea] and a prolonged tradition of the cour-
107
claim to exclusive right of property in or protection over
fur seals beyond the ’’ordinary limits” of territorial waters
and indicated that British concurrence was required for the
imposition of regulations impacting upon the latter's na
tionals , the circumstances of the case did not require the
Tribunal to decide whether the legal principle of the free
dom of the sea permitted unrestricted use of marine waters
and its resources by all. Any such decision was preempted
by the fact that although the British sometimes expressed
the freedom of the sea principle in absolute terms,139 they
had on many occasions indicated a willingness to co-operate
in formulating and implementing conservation measures. More
importantly, of course, the Arbitration Treaty itself pro
vided for the possibility of conservation regulations.*
1^0
Both the United Kingdom and the United States agreed
that fish were ferae naturae and hence subject to property
rights based on possession when beyond the territorial
sea.141 It seems evident that, pursuing a positivist ap
proach to the identification of applicable legal norms, the
arbitrators, excluding the American members of the Tribunal,
were not prepared to distinguish for jurisdictional purposes
between fish and fur seals. To the extent that that was in
deed the case, the decision both hardened the distinction
between the high seas and territorial seas and "consolidated
the absolute link between the fishery limit and the territo
rial sea” .1'42
tesy of the sea, the point say well have been reached when the words ’the
right of user’...should be replaced by the formulation 'the right of rea
sonable user’.
13‘
5> See, eg, text accompanying n 122 supra.
1‘4° See n 96 supra.
1-41 See text accompanying nn 107-109 and 130 supra.
O'Connell, supra Introduction n 15, 523. Cf, Shearer,

supra Ch 1, n 59, 58. It is possible, of course, that
the Tribunal might have considered that fur seals were
theoretically subject to property rights as claimed by
the United States but that the latter had simply not
made out a sufficiently strong case to decide in its
favour in this instance. In view of the general accep-
108
At the same time, however, the Tribunal declined to
take the further step and determine what were the univer
sally recognized limits, if any, of territorial waters ac
cording to principles of international law. The matter was
not considered, the arbitrators carefully explained, since
those limits were not in dispute, "having been assumed by
Article VI. of the Treaty [of Arbitration] to be three miles
from the coast". 1,43 The decision, as Professor de Martens
observed shortly after it was rendered, thus "a laiss^ une
lacune qu'il eut fallu combler depuis longtemps. ...[L]a
question si controversee de la mer territoriale est rest4e
ouverte; eile attende toujours sa solution d'un accord entre
tous les gouvernements interesses".
While the Tribunal thus invoked basic and widely-shared
principles relating to both the nature of a State's fishery
jurisdiction in adjacent maritime waters and the regulation
of high seas fisheries by international agreement, both the
nature of the dispute and the terms of the Treaty of Arbi
tration precluded a broader examination and exposition of
the overall legal parameters governing the universal appli
cation of those principles.
tance of the British position as a whole, however, it

is not thought likely that such a view was taken by the
arbitrators.
Moore, supra n 1 5 , 9 2 1 . See in this regard n 96 and

accompanying text supra.
F de Martens, "Le Tribunal d ’Arbitrage de Paris et la

mer territoriale" (1894 ) 1 RGDIP 3 2 , 36
109
V. TheJNort;h„.At lan t ic Fis h e r ies,,.,Arb.itrati_on1
Whereas the dispute between the United States and the

United Kingdom in the Behring Sea related to a coastal
S t a t e ’s jurisdiction over living marine resources beyond mu
tually recognized limits of territorial waters, those same
States were contemporaneously involved in a second, long-
running dispute with respect to fishery jurisdiction within
the territorial sea that warrants consideration.
A. Background to the Dispute

As noted earlier, the above States concluded a conven
tion in 1818 by which it was agreed, inter alia , that A m e r i
can nationals could fish within three miles of specified
coasts in British North A m e r i c a . W h i l e the agreement
provided a sufficient basis for regulating fishing activi
ties under the stable conditions of the years immediately
following its conclusion, increased competition between Ne w
foundland and New England fishermen began about 1830, gener
ating numerous disputes . Reciprocity treaties brought
See generally, C Anderson, "The final outcome of the

fisheries ar b i t r a t i o n ” (1913) 7 AJIL 1; R Bacon and J
Scott, e d s , North Atlantic Coast Fisheries Arbitration
at The Hague: Argument on Behalf of the United States
by Elihu Root (1917) [hereafter cited, ’B a c o n ’]; T
Balch, "Decision au sujet des pecheries de l'Atlanti-
que" (1911) 8(2nd series) Revue de Droit International
1; J B a s d e v a n t , ”L'Affaire de pecheries des cotes sep-
tentrionales de 1 ’Atlantique" (1912) 19 RGDIP 514; A
British Digest of International Law (1967; C Parry, e d )
pt III, Chs 7 and 8, 378-407, 508-613 [hereafter cited
'British Digest']; R Lansing, "The North Atlantic Coast
Fisheries Arbitration" (1911) 5 AJIL 1; Leonard, supra
n 92, 17-27; and J Scott, e d , The Hague Court Reports
(1916)[hereafter cited 'Hague Reports '].
i4 e
See nn 31, 32 and accompanying text supra.
110
temporary respites in 1854 and 1871,x*& but on their expira
tion the vexatious issues flared anew. With the passage in
1905 of restrictive legislation by Newfoundland, ’’affairs
reached a critical stage" .x+9 After prolonged negotiations,
a compromis was signed in 1909 by the United Kingdom and the
United States, submitting the controversy to the Permanent
Court of Arbitration at The Hague. 1=50
B . The Arbitral Proceedings and Award

The Tribunal was asked, inter alia, to decide between
two competing interpretations of the 1818 agreement relating
to fishery jurisdiction. The British contended that the
rights granted to United States residents to fish off cer
tain coasts of British North America were subject, without
American consent, to reasonable regulation the United King
dom. XS1 The United States, in contrast, argued that those
See, eg, Lansing, supra n 145, 4-7, and Leonard, supra

n 92, 17-24, for details.
x*& For text of treaties see CIS cxii, 31, and cxliii, 145.
x*** Hague Reports, supra n 143, 142

1550 Ibid 147. The arbitrators were Mr H Lammasch, Doctor
of Laws, professor of the University of Vienna, Aulic
Councilor, member of the Upper House of the Austrian
Parliament; His Excellency J A F de Savornin Lohman,
Doctor of Laws, Minister of State, former Minister of
the Interior, member of the Second Chamber of the Neth
erlands; the Hon George Gray, Doctor of Laws, Judge of
the United States Circuit Court of Appeals, former Uni
ted States Senator; the Rt Hon Sir Charles Fitzpatrick,
member of the Privy Council, Doctor of Laws," Chief Jus
tice of Canada; and the Hon Luis Maria Drago, Doctor of
Laws, former Argentine Minister of Foreign Affairs,
member of the Law Academy of Buenos Aires.
1S1 Ibid 148-149. The British gave {ibid) as examples of

the type of regulations involved:
(1) the hours, days, or seasons when fish aay be taken on the treaty
coasts; (2) the aethod, aeans. and iapleaents to be used in taking of
fish or in the carrying on of fishing operations on such coasts; [and]
(3) any other aatters of a siuilar character—
By ’reasonable', they continued {ibid), the regu

lations must be, for instance,
Ill
rig h ts w ere not su b ject to lim ita tio n s or restrain ts in do
m estic law s of G reat B ritain , Canada or N ew foundland u n less
"th eir ap p ro p riaten ess, n ece ssity , reasonableness, and fa ir
ness be d e te r m in e d by t h e U n ited S tates and G re a t B ritain by
common a c c o r d and th e U nited S tates concurs in th e ir en
f o r c e m e n t " . 155:2
A fter pro lo n g ed oral p ro ceed in g s, th e T rib u n al handed
down i t s d ecision on 7 S e p t e m b e r 1 9 1 0 . 1=53 The a r b i t r a t o r s
d eterm ined th at th e above q u e s tio n essen tially reso lv ed i t
self in to tw o in ter-related su b -q u estio n s; th at is, ” [w ]he-
th er th e rig h t of reg u la tin g reaso n ab ly th e lib erties con
ferred by t h e trea ty of 1318 resid es in G reat B ritain ", and,
if so, "w hether such reaso n ab le ex erc ise of th e rig h t is
p erm itted to G reat B ritain w ith o u t th e occord [sic] and con
currence of th e U n ited S t a t e s " . 1®^
The T r i b u n a l co n sid ered th a t th e burden lie on t h e la t
te r G overnm ent to prove its co n ten tio n sin ce,
the right to regulate the liberties conferred by the treaty of 1818 is an attribute of
sovereignty, and as such must be held to reside in the territorial sovereign, unless
(a) Appropriate or necessary for the protection and preservation

of such fisheries and the exercise of the rights of British subjects
therein and of the liberty which by the said Article I [see n 32
s u p r a ] the inhabitants of the United States have therein in common
with British subject;
(b) Desirable on grounds of public order and morals; [and]
(c) Equitable and fair as between local fishermen and the inhab
itants of the United States exercising the said treaty liberty and not so
framed as to give unfairly an advantage to the former over the latter
class.
G reat B r ita in c o n sid e re d th e id ea of re a s o n a b le

ness to in c lu d e th e q u a l i t i e s of a p p ro p ria te n e ss, ne
c e s s i t y , and f a i r n e s s . T h e US, o n t h e o t h e r h a n d ,
t r e a t e d them a s d i s t i n c t , a l t h o u g h t h r o u g h o u t t h e o r a l
a r g u m e n t ' r e a s o n a b l e n e s s ' was u s e d t o e n c o m p a s s t h e
o th e r t h r e e e le m e n ts (L a n s in g , s u p r a n 145, 1 1 ). For
t h e T r i b u n a l ’s t r e a t m e n t o f t h e ’r e a s o n a b l e n e s s ’ c o n
c e p t s e e n 1 6 3 infra.
1=5:2 Hague Reports, supra n 1 4 5 , 157
13:3 S e e Hague Reports, supra n 1 4 5 , 1 4 6 - 1 9 3 , a n d B a c o n , su

pra n 1 4 5 , l v i i i - c v , f o r t e x t o f t h e A w a r d . The T r i b u
nal heard oral argum ents from 1 June to 12 A u g u s t 1910.
1=^ Hague Reports, supra n 1 4 5 , 157

112
the contrary be provided; and...one of the essential elements of sovereignty is that
it is to be exercised within territorial Halts, and that, failing proof to the con
trary, the territory is co-terainous with the sovereignty....1"
In support of her position, the United States claimed

that the rights granted constituted an international servi
tude and thus a derogation from British territorial sover
eignty .1S<5, In the instant proceedings, it asserted, the
three essential features of an international servitude were
present; that is, ” (1) that it be created by one state for
the benefit of another; (2) that its permanency must be be
yond the control of the state by which it is created; (3)
that it makes the territory or part of the territory of one
state serve a purpose or an interest of another".
The United Kingdom countered that only by an express
grant clearly indicating the intention of the grantee could
such a servitude be created; that the 1818 treaty made no
such grant; that for an international servitude to exist
there must be a dominant territory (praedium dominans) and a
servient territory (praedium serviens), while in the present
case benefits accrued to the inhabitants of the United
States, not the territory, and thus the right rested upon
Imperium and not dominium, was personal rather than real,
and could not be considered a servitude which is basically a
real right.
The Tribunal accepted the British position and ruled
that "the right of Great Britain to make [fishery] regula
tions without the consent of the United States... is inherent
to the sovereignty of Great Britain" .xrS9
In light of that sovereignty, the burden was also
placed on the United States to prove a concurrent right of
1=5=5 Ibid
1=5Ä Ibid 159. For a definition of a 'servitude' in
international law see Ch 1, n 77 supra.
1=7 Lansing, supra n 145, 12

1=50 Ibid 13
x" Hague Reports, supra n 145, 158-166, 171
113
consent for the adoption of any regulations. As the Tri
bunal observed, such a right would affect the independence
of Great Britain, which "would be dependent on the Govern
ment of the United States for the exercise of it sovereign
right of regulation, and...such a co-dominium would be
contrary to the constitution of both sovereign States” .10,0
In support of their position, the Americans argued that
a concurrent right to co-operate in the making and enforce
ment of regulations was the only possible and proper secu
rity for their fishermen, and that such a right was implied
by the treaty. Furthermore, although the British possessed
jurisdictional rights over the waters in question, there was
"a line, beyond which it is not competent for Great Britain
to go, or beyond which she can not rightfully go” without
violating the treaty. The legal effect of the treaty did not
leave the determination of where that line was to be drawn
to the uncontrolled judgment of the United Kingdom.101
The American arguments were rejected by the Tribunal on
grounds, inter alia: (1) that every State is under an obli
gation to implement a treaty provision bona fide, and that
normal sanctions would apply for failure to observe the
treaty; (2) that any required American right of consent
would derogate from British sovereignty over the area and
was not provided by for the treaty; (3) because ”a line
which would limit the exercise of sovereignty of a State
within the limits of its territory, can be drawn only on the
ground of express stipulation, and not by implication from
stipulations concerning a different subject matter” ; (4) the
treaty contained no words justifying the assumption that
Great Britain abdicated its sovereign right to regulate
fisheries; and (5) to argue that the United States had a
right to participate in fishery regulation would also mean
that it had a right to participate in the formalization of
1ÄO Ibid 167
Ibid 169
114
B ritish in te rn a l le g is la tio n , th u s re d u c in g G reat B rita in
and her c o lo n ie s to a s ta te o f d e p e n d e n c e . 1,52
On a s t r i c t c o n s tru c tio n of th e tre a ty , th e re fo re , th e
T rib u n a l w as u n a b l e to concede th e A m e ric a n c la im . H ow ever,
it e x p la in e d , th a t d id n o t m ean t h a t th e B ritish w ere free
to im p o se any re g u la tio n s th e y a lo n e th o u g h t re a so n a b le :
Great Britain, as the local sovereign, has the duty of preserving and protecting the
fisheries. In so far as it is necessary for that purpose, Great Britain is not only
entitled, but obliged, to provide for the protection of the fisheries; always remea-
bering that the exercise of this right of legislation is liaited by the obligation to
exercise the treaty in good f a it h ....10,3
It a lso d e te rm in e d th a t by v i r t u e of th e w ay i n w h ic h
th e compromis h a d b e e n f o r m u l a t e d a n d t h e r e p r e s e n t a t i o n s by
G reat B r ita in , it w as n e c e s s a r y fo r th e re a so n a b le n e ss of
any re g u la tio n passed to be d e c id e d by an im p a rtia l a u th o r
ity in acco rd an ce w ith p ro v isio n s recom m ended by t h e a rb i
tra to rs . Thus, as one o f th e A m e ric a n counsel subse
q u e n tly o b serv ed , " th e c o n te n tio n of th e U n ite d S ta te s th a t
n e ith e r G reat B rita in nor N ew fo u n d lan d ought to be th e s o le
ju d g e of th e re a so n a b le n e ss of re g u la tio n s w as t e c h n i c a l l y
re je c te d , but in fact s u s t a i n e d " . x<s=5
102 Ibid 1 6 7 - 1 7 0
British Digest, supra n 1 4 5 , 5 9 2 . The T r i b u n a l e x

f u r t h e r ( Hague Reports , supra n 1 4 5 , 1 7 1 ) t h a t
p la in e d
Regulations which are (1) appropriate or necessary for the pro

tection and preservation of such fisheries, or (2) desirable or necessary
on grounds of public order and morals without unnecessarily interfering
with the fishery itself, and in both cases equitable and fair as between
local and American fishermen, and not so framed as to give unfairly an
advantage to the former over the latter class, are not inconsistent with
the obligation to execute the treaty in good faith, and are therefore
reasonable and not in violation of the treaty.
Ibid 1 7 1 - 1 7 2 . I n 1 9 1 2 , a n a g r e e m e n t w as c o n c l u d e d b e
t w e e n t h e US a n d t h e UK g i v i n g e f f e c t t o t h e a w a r d ( s e e
B a c o n , supra n 1 4 5 , c v , a n d ( 1 9 1 2 ) 1 0 5 BFSP 2 0 7 , f o r
t e x t ).
X&!S L a n sin g , supra n 1 4 5 , 17; cf , A n d e r s o n , supra n 1 4 5 , 11

115
In 1912, an agreement was concluded between the United
Kingdom and the United States giving effect to the award.166
From the standpoint of wider aspects of fishery juris
diction beyond those affecting the instant proceedings, the
Tribunal's Award was significant for its consideration of a
number of legal principles relating to the resource and the
fact that it provided explanations for the decisions render
ed. The Award severely limited the importance of the servi
tude as an applicable principle of international law,107,
while stressing both the sovereignty of a State over its
territorial waters and the fisheries resources found therein
as well as the need to take into consideration the legiti
mate interests of other States, settling differences by
recourse to impartial authorities.
VI - Conclusion
Whereas Azuni was able to claim at the end of the eigh

teenth century that there was no consensus among States as
to the nature or extent of jurisdiction they might exercise
over adjacent marine waters, the next hundred years witnes
sed, if not the appearance of consensus, at least a percep
tible coalescence of views among certain States. Building
See Bacon, supra n 145, cv, and (1912) 105 BFSP 207.
10-7 Cf, Basdevant, supra n 145, 514, 520; Starke, supra Ch

1, n 55, 259-261. At the same time, however, in re
jecting the American view of servitudes as applicable
in the present situation the Tribunal was not thereby
denying the existence of the principle as part of in
ternational law (cf, J Francois, "La Cour Permanente
d'Arbitrage, son origine, sa jurisprudence, son avenir"
(1955) 87 RDC 460, 501-502; D Greig, International Law
(1976; 2nd ed) 182-183).
1 ÄQ elf, Lansing, supra n 145, 16; and Leonard, supra n 92,

27
116
on a few broad legal principles that had evolved over the
centuries, the United States and the larger, more powerful
maritime nations of Europe began adopting uniform treaty
regimes and advancing analogous unilateral assertions re
garding fishery jurisdiction that subsequently stimulated
similar practices among other States, both in Europe and
elsewhere. By the early years of the twentieth century, nu
merous States had gradually come to regard the limits of a
State’s exclusive fishery jurisdiction as being co-terminous
with its territorial sea, the latter being, generally speak
ing, three miles in breadth.
In addition, arbitral tribunals assessed State practice
and, in the spirit of positivism pervading jurisprudential
thought at the time, identified two complementary legal
principles. First, it was recognized that even within the
territorial sea, the rights of the coastal State were not
necessarily unrestricted and had to be exercised with due
regard to the rights of others in the zone. As well, out
side the territorial sea, ho State had exclusive rights of
property in or protection over, fisheries, even if the fish
themselves originated in or habituated the waters of that
State before moving beyond. Effective conservation measures
for high seas fisheries demanded co-operation by all States
concerned and could only be applied with their consent. The
expiration of absolutism as a guiding principle of interna
tional law and international relations after the Napoleonic
Wars was thus reflected in the emerging norms governing
fishery jurisdiction.
That being acknowledged, care must at the same time be
taken in attributing any universal legal validity to the
above view of fishery limits and their possible equivalence
with the limits of the territorial sea. In neither of the
two major (if not only) arbitral proceedings concerning
fishery jurisdiction held during the period was that view an
issue for independent determination. And, as we have seen,
at least a significant minority of other States (all rela
tively minor maritime Powers) claimed a right to a somewhat
broader zone of exclusive fishery jurisdiction, not neces-
117
sarily equivalent in extent to their territorial seas. This
was particularly the case with those States primarily con
cerned with fishery resources adjacent to their own coasts
and not with other uses of the sea. The stage was thus set
for the fundamental battle that would dominate international
law throughout the first half of the twentieth century: the
validity or otherwise of the three-mile limit for the terri
torial sea and fishery jurisdiction.
Besides what may be called the 'quantitative' limits of
fishery jurisdiction were at least two, increasingly impor
tant and yet unresolved 'qualitative' issues. The first
concerned conservation and the legal requirements, if any,
binding on the coastal State to take into consideration the
interests of other States in adjacent high seas areas when
exploiting the resources in waters in which the former exer
cised exclusive fishery jurisdiction. The second, comple
mentary issue related to the exploitation by all States of
high seas fishery resources and the possible duty to take
into consideration the legitimate rights, if any, of other
States, particularly neighbouring coastal States, to the
same resources. Each question arose, at least indirectly,
in the major fishing controversies of the century but were
left unsettled. By the late nineteenth century, the jural
lacunae had created acute practical problems for fishermen
of numerous nations, and both legal scholars and governments
commenced discussions and negotiations aimed at formulating
binding rules accommodating the various interests involved.
It is therefore to the 'theatre' of law-making conferences
that we now address our attention.
C H A P T E R .THREE
EARLY C O D I F I C A T I O N E F F O RTS
In practice, codification stimulates development no less than development calls out

for codification - those who have taken part in the latter activity, where areas of
substantive law are concerned, will recognize that the aim of codifying is to consoli
date, certainly, but not to immobilize; on the contrary, for to what purpose does a
climber secure his foothold but to mount higher still?
Judge Manfred Lachs 1
I- Introduction
The second half of the nineteenth century witnessed

unprecedented pressures on fisheries in Northern Europe,
particularly with respect to trawling in and around the
North Sea .= Originally confined to scattered pockets of in
shore areas along the coasts in the North Sea and English
Channel regions, trawlers moved farther seaward as the cen
tury progressed and new grounds were discovered. At the
same time, vessels increased in numbers, size, speed and
storage capacity; trawl-nets became larger and more effi
cient; the wide-spread use of ice enabled the exploitation
of more distant fishing grounds; the ’fleeting’ system en
abled fishermen to stay at sea longer as other vessels col
lected the fish at regular intervals for delivery to mar
kets; and the substitution of steam vessels for sailing
M Lachs, The Teacher in International Law (1986; 2nd

rev ed) 209
Trawling has been described by Fulton (supra Ch 1, n

32, 699) as ’’the most effective and at the same time
the most destructive method of fishing ever made use
of” . Being an indiscriminate mode of harvesting living
marine resources, it not only results in the capture of
fish species for which there is little or no human de
mand (with sometimes deleterious affects on the food
chain), but also the destruction at certain times of
year of immature fish trapped in the trawl that are too
young to be marketable and too fragile to survive the
enormous pressures generated in bringing the full nets
to the surface.
119
smacks about 1373 allowed fishermen to ply their trade year
round and in deeper waters than was possible when nets had
to be hauled on board by hand and men had to contend with
harsh winter winds.3
While the British and others had claimed at the 1882
North Sea fisheries Conference that conservation measures
were unnecessary,"*- the combined effect of the above techno
logical developments was a steady and widespread depletion
of a number of fish stocks, particularly near the coasts and
banks that had been fished for many years. By 1900, one sci
entist had concluded, for example, that bottom fish were "in
rapid and continuous process of exhaustion; that the rate at
which sea fishes multiply and grow, even in favourable sea
sons, is exceeded by the rate of capture".3
Demands by fishermen for governments to take action
ameliorating the situation grew increasingly vociferous as
the century progressed. Responding to their pleadings, nu
merous inquiries were instituted, and trawler fishermen
themselves complained for the first time of impoverished in
shore areas before a 1878 British commission, advocating the
prohibition of trawling operations where small fish were
plentiful and even within 10 to 20 miles of any of the
coasts bordering the North Sea.3 The commission, however,
simply recommended that the Secretary of State be given the
power to prohibit trawling "in any of the territorial seas"
of the United Kingdom.7, A similar plea before the next com
mission in 1383 produced analogous results.3
Ibid 700
See Ch 2, nn 59-61 and accompanying text supra.
W Garstang, "The impoverishment of the sea"(1900-1903)

b(n.s') J of the Marine Biological Assoc of the United
Kingdom 1, 3
Buckland, supra Ch 2, n 60, 268-269
Ibid xxxix
Report of the Commissioners on Trawl-net and Beam-net

Fishing (1885)(C .-4328} xliii-xliv
120
In the latter year, the fishing industry met in London
for the International Fishing Exhibition, at which a number
of papers were read with proposals intended to improve the
situation. Charles Fryer, for example, pointed out the cen
tral problem faced: the absence of a universally-accepted
legal regime governing fishing activities beyond the terri
torial sea.9 The fishermen called upon the British Govern
ment to bring about an international conference to consider
the desirability of recommending legislation to prevent the
destruction of immature fish.10 Similar calls for the ex
tension of the limits of the territorial sea and interna
tional regulations beyond the limits of national jurisdic
tion continued to be advanced by fishermen throughout the
remainder of the century.11
11 - Private Codification Efforts
He explained ("The relations of the state with fisher

men and fisheries, including all matters dealing with
their protection and regulations" in The Fisheries Ex
hibition Literature (1884) ix, 57) that
So long as the fisheries are confined to the territorial seas, the laws
of a single state to which they belong can be enforced against all com
ers. But outside the three-aile liait, which is the recognized boundary
of the authority of the State, coaplications arise which only an Inter
national Law can remove. A law, for instance, sight be made providing a
close season for certain kinds of sea-fish, the capture of which takes
place in the deep sea. But if such a law were aade by one State and not
concurred in by the others interested, it would either be inoperative,
even as far as the subjects of the State sanctioning the law were con
cerned, or it would be a great hardship upon then, in preventing them
froa participating in an industry in which their foreign rivals were free
to engage unrestricted.
See in this regard, eg., Ch 2, text accompanying n 90

supra.
The Fisheries Exhibition Literature (1884) iv, 346, 355
For useful surveys of these developments see Fulton,

supra Ch 1, n 32, 702-709, and Riesenfeld, supra Ch 2,
n 63, 112-117.
121
While governments contemplated the most appropriate
course of action to adopt for the protection of their vari
ous interests, the question of marine fishery jurisdiction
came under the scrutiny of private legal experts. Although
individuals had endeavoured to codify various aspects of in
ternational law since at least the eighteenth century,13 it
was the work of the Institut de Droit International (IDI)
and the International Law Association (ILA) that proved of
greater importance for the development of the international
law of the sea and, indirectly at least, norms relating to
fisheries.
The subject was first raised by Mr (later, Sir) George
Baden-Powell in a paper dealing with the territorial sea
presented to the 1887 ILA Conference. Reviewing the devel
opment of the territorial sea concept and its limits, he
concludes that
the three-mile limit is coming to be universally acknowledged so far as the exercise

of territorial sovereignty is concerned, but in special cases and for special purposes
a wider limit, not yet specifically determined on by any common consent, is often ac
quiesced in.13
With respect to fishery jurisdiction in particular,

Baden-Powell observes, all States have a common right to use
the sea, ’’provided in so doing they do not limit or hamper a
like right in others” .1^ Although high sea fishery resour-
See C de Visscher, "La codification du droit interna

tional” (1925) 6 RDC 325, 409-413, for a brief but use
ful review of those early efforts.
G Baden-Powell, "Territorial waters, their limits and

privileges” in Report of the Thirteenth Conference of
the Association for the Reform and Codification of the
Law of Nations (1887) 66, 73. The ILA was founded as
"The Association for the Reform and Codification cTf the
Law of Nations" in 1873. It changed its name to the
International Law Association in 1895. For present
purposes the designation ILA or name "International Law
Association" will be used in reference to both the pre-
1895 and present Association.
i -*
Ibid 75
122
ces are both in ex h au stib le and r e s n u l l i u s , n o t so l i t t o r a l
resources. "The ' f r u c tu s ' of T errito rial w a t e r s , ” he a s
serts, "belong to the natio n co n tro llin g t h e m ” . 13
In p r a c t i c e , how ever, problem s som etim es arise because
"fish do n o t r e s p e c t th e th ree-m ile or ’c a n n o n - s h o t ’ l i m i t ,
and i t is n o t alw ays p r a c t i c a l for fisherm en to respect the
l i m i t " . 19 The s i t u a t i o n is aggravated by t h e fact th at
International Law...has not as yet succeeded in formulating any complete system of

rules. Local exigencies, indeed, necessitate local differences, and while it is com
monly conceded that each State has both duties and rights over the open seas immedi
ately adjacent to the coasts, yet the precise nature of those duties and rights, and
the precise area over which it is allowed they can be asserted, are matters for which
no general rule or rules have as yet received the common consent.12
On h i s recom m endation, the ILA e s t a b l i s h e d a com m ittee

to co n sid er an a p p r o p r i a t e regim e for th e te rrito ria l sea,
in clu d in g th e q u estio n of "h ow f a r rig h ts of p ro p erty in
clude all kinds of h arv ests of th e s e a " . 19
At t h e fo llo w in g ILA C o n f e r e n c e , h eld in 1390, Baden-
P ow ell r e a d a paper s p e c if ic a lly relatin g to fish ery ju ris
d ictio n . W hile r e i t e r a t i n g h is e arlier view th a t th e sea
w ard j u r i s d i c t i o n a l rem ained u n c e r ta in , he c o n c e d e d t h a t in
some c a s e s p articu lar high sea s fish eries w ere l i a b l e to be
d estro y ed u n less some " c o n t r o l l i n g au th o rity " was e s t a b l i s h
ed t o p ro tect th e in terests of a l l c o n c e r n e d . 19 He t h u s
proposed in tern atio n al a d m in istratio n of p a r tic u la r fish er
ie s , th e "g uiding p rin cip le" being t h a t all S tates concerned
be e n c o u ra g e d to estab lish and conform to agreed reg u la
t i o n s . 20
Ib id
I b i d 76
I b i d 77
I b i d 78, 30
G S a d e n - P o w e l l , " R i g h t s o f f i s h e r y i n t e r r i t o r i a l and
e x t r a - t e r r i t o r i a l w a te rs " in R eport o f th e F ou rteen th
C o n fe r e n c e o f th e A s s o c i a t i o n f o r t h e Reform and C o d i
f i c a t i o n o f t h e Law o f N a t i o n s ( 1 3 9 0 ) 1 3 8 , 1 9 2 - 1 9 3
123
The following year saw the IDI begin detailed discus
sion on the territorial sea regime.31 Professor Aubert of
Norway presented a paper defending the Norwegian method of
delimiting the territorial sea33 and advocating an extension
of the limits of a coastal State's fishery jurisdiction for
conservation purposes.33 Professor Renault, for his part,
recommended examination of a distinction between the terri
torial sea and a wider littoral sea. In the former, the
coastal State would have full sovereignty, whereas in the
latter "l’Etat riverain exercerait certain droits, sans en
avoir neanmoins la souverainete".24 The topic was placed on
the agenda for the Institute's following session.3®
At that session, held in 1892, Sir Thomas Barclay, the
rapporteur, presented his report, including replies of mem
bers on principles relating to fishery jurisdiction.30 Al
though it was universally recognized that fishing was reser
ved for nationals of the coastal State in the territorial
sea, opinions varied on the latter's breadth.37, Barclay
recommended that the three-mile limit be supported as it was
generally accepted in State practice.33 At the same time,
Ibid 197. Ey "international administration", Baden-

Powell meant "joint international agreement as to regu
lations and their enforcement over definite areas"
(ibid). His recommendations were referred to the Asso
ciation’s committee on the territorial sea established
the previous year (see text accompanying n 18 supra).
"Troisi^me Commission d ’Etudes. - Definition et Regime

de la Mer Territoriale"(1885-1891; ed abregee) 2 AIDI
863
See Ch 2, text accompanying n 81 supra.
Ibid 867ff
Ibid 882
Ibid
"Rapport et Conclusion de M Thomas Barclay, Rapporteur
[Troisi^me Commission d'Etude. - Definition et Regime
de la Mer territoriale]"(1892-1896; ed abregee) 3 AIDI
47
27
Ibid 56, 60-62
124
however, he proposed a separate draft article, largely to
cover the question of fishery jurisdiction:
En dehors des eaux territoriales, 1'usages de la ser est litre; aais il en sera use
c o m e d'un bien comun, de facon a ne porter aucun prejudice aux biens et aux person-
nes des ressortissants des Etats riverains oil a la neutrality des ces Etats.
Other members, however, considered a three-mile limit

clearly insufficient to protect marine fisheries, even
granted the second article. Richard Kleen, the Swedish min
ister plenipotentiary, for example, recommended a five-mile
limit, arguing that a shorter distance would leave parts of
fishing grounds outside national jurisdiction and thus "liv-
ree a 1'anarchie".*
3° it was in the interest of all concern
*
ed to recognize in the coastal State "qui seul est capable
de maintenir I'ordre dans son voisinage et qui seul en con-
na^t les conditions, une souverainete suffisamment etendue
sur la mer adjacente".31
Along the same lines, Aubert recommended that a State
be permitted to extend its jurisdiction for fishery, conser
vation purposes beyond the territorial sea, the laws being
applied equally to foreign and domestic fishermen. Because
of differing conditions from area to area, each State should
be permitted to fix the limits required.3=
Due to the wide disparity of views, no final decision
was taken until the 1394 session of the IDI, during which
Barclay presented his final report on the territorial sea.33
Ibid 67. See generally, Ch 2 supra.
Ibid 71
Richard Kleen, "Memorandum sur 1'etendue de ma mer

territoriale" in ibid 80, 85-86
Ibid 86
L.-M.-B. Aubert, "Communication"(1892-1396; ed abregee)

3 AIDI 87, 91-92
"Rapport et projet de conclusions präsentes a 1'Insti

tut au nom de la Commission, par M Barclay, rapporteur
[Troisi^me Commission. - Definition et Regime de la Mer
Territoriale]" (1892-1896; ed abregee) 3 AIDI 355
125
W hile th e th ree-m ile lim it had been w id ely accep ted in S ta te
p ractice, he observed, it was g en erally conceded to be in
su fficien t for th e purposes of fish e ry j u r i s d i c t i o n . :3** On
th e o th er hand, th e d istan ce of can non-shot, he co n clu d ed
was u n accep tab le, b ein g too v ast, too vague, and S tates
w ould probably not w ish to accept ju risd ic tio n over such an
area or reco g n ize th at of o th er n eig h b o u rin g S tates in case
of c o n flict. The p ro p o sals to create tw o zones of fish ery
ju risd ic tio n , the o u ter allo w in g fo reig n fish erm en en try
su b ject to reg u la tio n by the co astal S tate, B arclay th o u g h t,
w ould c re a te p o licin g pro b lem s and lead to "une o c cu p atio n
fic tiv e presque ^ p erte de vue, su sce p tib le de p ro d u ire des
c o n flits et des in ce rtitu d e s q u 'ii s ’a g it de faire d isp aral-
t r e " . 3S That b ein g th e case and n o tin g the ten d en cy of In
stitu te m em bers to recom m end th e ex ten sio n of th e te rrito
ria l sea as far as fiv e m iles, th e rap p o rteu r proposed going
Ibid 3 7 1 . In r e a c h in g h is c o n c lu s io n , he c i t e d a
B r i t i s h p a r l i a m e n t a r y r e p o r t o n f i s h e r i e s ( Report from
the Sele ct Committee on Sea Fisheries ( 1 8 9 3 ) 3 7 7 ) :
Your Committee are sensible of the difficulties of making inter

national regulations, but are nevertheless of opinion that the best
method for effectively governing the operations of the various classes of
fishermen, and, at the same time, for securing, so far as i t may be found
possible, the proper protection of spawning and immature fish, would be
to throw the responsibility of these duties, so far as the waters immedi
ately adjacent to the various countries are concerned, on those various
countries: that, for the effective realization of this object, the pre
sent territo ria l limit of three miles is insufficient and that, for fish
ery purposes alone, that limit should be extended, provided such exten
sion can be effected upon an international basis, and with due regard to
the rights and interests of all nations. Your Committee would earnestly
recommend that a proposition on these lines should be submitted to an in
ternational conference of the powers who border the North Sea.
T h a t r e c o m m e n d a t i o n was s t r o n g l y s u p p o r t e d by l i n e
an d d r i f t - n e t f i s h e r m e n who, a s l a t e a s 1 9 1 1 , d em an d ed
a n e x t e n s i o n o f f i s h e r y l i m i t s t o 1 3 m i l e s ( London
Times, 2 6 A p r i l 1 9 1 1 , 1 2 b ) . I t was n e v e r t h e l e s s o p p o s
ed by t r a w l f i s h e r m e n , and a s a r e s u l t o f t h e im p a s s e ,
th e B r i t i s h G overnm ent d e c lin e d to se ek any i n t e r n a
t i o n a l a g r e e m e n t f o r s u c h an e x t e n s i o n ( s e e n 40 and
a c c o m p a n y i n g t e x t infra) .
3S
R ap p o rt, supra n 3 3 , 374
126
one m ile fu rth er, th u s em bracing all contem porary European
S tate p r a c t i c e . 3&
B a r c l a y ’s proposal was su b seq u en tly adopted by t h e In
s t i t u t e 3 '7' a n d in c lu d ed in a set of ru les w hich e x p l i c i t l y
recognized th at th e th re e -m ile lim it was in su fficien t for
fish ery p ro tectio n purposes and t h a t "th ere is no r e a s o n to
confound in a sin g le zone th e d ista n ce necessary for th e ex
ercise of so v ereig n ty and for th e p ro tectio n of co astw ise
fish in g and th at w hich is necessary to gu aran tee th e n eu t
ra lity on n o n - b e l l i g e r e n t s in tim e of w a r " .30 The r u l e s
w ere a d o p te d in essen tially th e same form by t h e ILA i n th e
fo llo w in g y e a r . 30
In 1896, th e D utch G overnm ent drew th e o ffic ia l atten
tio n of o th er European S tates to th e above r u le s and propos
ed convening an in tern atio n al conference for fix in g th e
lim it of te rrito ria l w aters. It su g g ested as a b asis for
n eg o tiatio n th at six m iles be a d o p te d as th at lim it for all
purposes. R eactio n to th e D utch proposal was g e n e r a l l y
p o sitiv e, except for th a t of th e U n ited K ingdom . As B a r c l a y
su b seq u en tly ex p lain ed ,
the British Government was decidedly unfavourable. The reply given to the Dutch min
ister was that the extension of the limit from three to six miles was not desirable.
'When I remarked to Lord Salisbury,' wrote the minister of the Netherlands in his
despatch, 'that Great Britain, in view of the extent of her coasts and of her fisher
ies, had more than any other nation an interest in the extension of territorial wa
ters,' he answered in his usual playful manner: 'But then we could no longer come and
fish near your coast, for, however extensive ours may be, the fish are found on
yours'
Ib id 375
" E x t r a i t d u p r o c e s - v e r b a l d e s s e a n c e s d e s 2 8 , 2 9 a n d 31
m a rs 1894 [ T r o i s i e m e C o m m issio n . - D e f i n i t i o n e t Regim e
d e l a M er T e r r i t o r i a l e ] ” ( 1 8 9 2 - 1 8 9 6 ; 4 d a b r e g e e ) 2 A I D I
4 4 8 , 457
R eso lu tio n s of th e In stitu te o f In tern a tio n a l Law

( 1 9 2 0 ) 113
R ep o rt o f th e S e v e n te e n th C onference o f th e
I n t e r n a t i o n a l Law A s s o c i a t i o n [ R e p o r t s h e r e a f t e r c i t e d
' { n u m b e r ) ILA C o n f e r e n c e R e p o r t ' ] ( 1 8 9 5 ) 1 0 2 , 1 0 4
127
Because of the British position on the issue, the

Netherlands took no further action.“*1
At the end of the nineteenth century, then, almost all

international fishery agreements were aimed at maintaining
good order among fishermen and preventing the destruction of
property. Only the Behring Sea regulations and some of the
Anglo-French regulations of 1843 were directed at conserving
resources themselves.“*2
The situation did not alter significantly in the early
decades of the twentieth century. In 1912, Earclay reported
to the ILA that "the questions involved in fishery rights
are not only far from ripe for international discussion, but
are of a highly technical character, not adapted for settle
ment by international diplomacy".“*3 In a similar vein, he
proposed in revised articles on the territorial sea submit
ted to the IDI the same year "que, les questions relatives a
la protection de la p£che maritime etant en train de se
transformer, il est utile de laisser ces questions hors de
cause".“*“* Both the IDI and ILA agreed with his assessment.
T Barclay, "Territorial waters" in 21st ILA Conference

Report (1912) 81. 98. The point made by Lord Salisbury
was confirmed and discussed by Fulton (supra Ch 1, n
32, 737):
Since foreign coasts have been exploited with immediate financial success
to the trawling companies, their interest in the North Sea has diminish
ed. They fear that if the question of fishery regulations beyond the
ordinary three-mile limit is opened up with foreign Powers in the inter
est of the North Sea fisheries, proposals may be made, as a quid pro quo,
by some of the other Powers for similar regulations on their coasts,- and
it is evident from the statements made in Parliament that this view has
hitherto prevailed.
Barclay, supra n 40, ibid
Cf, Stevenson, supra Ch 2, n 46, 111
Barclay, supra n 40, 104
"Rapport de Sir Thomas Barclay [Sixieme Commission (I).

La Mer Territoriale]"(1912-1913; ed abregee 1929) 6
AIDI 368, 377
128
That transformation process had not been completed by
the end of World War I . I n a paper on the territorial sea
read before the 31st Conference of the ILA in 1922, Captain
Segundo Storni commented that "le droit de peche doit faire
1 ’objet d ’un regime special,'^3 and that ” [l]e regime gen
eral de la p£che devra...etre organist; mais a cet effet il
sera necessaire de completer les etudes oceanographiques,
economiques et legales"
In a paper read to the 33rd Conference of the Associa
tion two years, later, Thorvald Böye, a judge of the Norwegi
an Court, reiterated the view that there were no generally
recognized rules regarding the jurisdictional limits of
States in coastal waters, nor, under international law, any
principle requiring those limits to be the same for all pur
poses. ’’Every special purpose requires special rules,” de
clared the judge.^
At the same time, Böye denied that three miles was the
limit of a coastal State's fishery jurisdiction. In his
view, the calls by various sectors of national fishing in
dustries merited serious study and ought to be the subject
of a conference specially called for that purpose.
The following year saw Böye's view supported by Barclay
in the latter’s preliminary report to the IDI aimed at revi
sing the 1894 draft provisions."*S
9 While submitting that
*
within three-miles of low-water mark "la souverainete de
l'Etat riverain est absolue", with respect to fisheries he
proposed that "les Etats se mettent d ’accord sur 1'etendue
de la zone reservee a la peche riveraine, les divergences
S Storni, ”La mer territoriale” in 31st ILA Conference

Report (1922) ii, 93, 104
Ibid 105
T Eoye, "Territorial waters, with special reference to

Norwegian legislation" in 33rd ILA Conference Report
(1924) 294, 320, 322
Ibid 323

129
actuelles etant trop grandes pour qu'une zone unique puisse
resuiter sans negociations".so In the latter regard, he saw
no difficulty with recognition of different jurisdictional
limits, depending on local circumstances.
In 1927, however, Barclay changed his mind. Together
with Professor Alejandro Alvarez, a Chilean jurist, he pro
posed regulations that would have recognized both a six-mile
territorial sea and a contiguous zone ("une zone supplemen-
taire") of no more than a further six miles where a coastal
State would be permitted to take necessary measures and ap
ply laws and regulations for neutrality, sanitary and cus
toms purposes.551 At the succeeding session in 1928, the
regulations were discussed at length, altered, and, by a
vote of 23 to 21 with four abstentions, adopted. The regu
lations provided for, inter alia, a three-mile territorial
sea and an additional nine-mile contiguous zone in which the
coastal State "peut prendre les mesures necessaire a sa s4-
curite au respect de sa neutralite, 'a la police sanitaire,
douaniere, et de la pec he" .55:2
Having found their initial codification efforts come to
nought in 1896 with the refusal of the United Kingdom to
consider a general recognition of fishery jurisdiction be
yond three miles, were the above provisions to suffer the
same fate? The answer lay in the hands of the League of
Nations and the deliberations of States.
T Barclay, "Rapport preliminaire [Quatrieme Commission

(I). - Revision des Resolutions prises par 1 ’Institut
relativement a la mer territoriale]"(1925) 32 AIDI 146,
162-163
(1927) 33 AIDI i, 55, 99

S2
(1928) 34 AIDI 755 (emphasis added)
130
III. The 1930 Hague Conference
A- The Committee of Experts for the Progressive

Codification of International Law53
The Hague Peace Conference of 1907 recommended the as
sembly of a third Peace Conference about eight years later
and the establishment of a preparatory committee which
would, inter alia, ascertain what subjects were "ripe for
embodiment in an international regulation” .^ The deterio
rating international situation and the outbreak of World War
I postponed any attempt to appoint such a committee or con
vene a conference. However, in 1924 the League of Nations
agreed to establish a group of experts "representing the
main forms of civilization and the principal legal systems
of the world", with the responsibility of preparing "a pro
visional list of the subjects of international law the regu
lation of which by international agreement would seem to be
the most desirable and realisable at the present moment".33
The history and activities of the Committee are exhaus

tively reviewed in S Rosenne, League of Nations Commit
tee of Experts for the Progressive Codification of In
ternational Law [1925-1928] (1972) [hereafter cited,
’Expert Committee'] i, pp xxix-civ.
"Final Act of the Second International Peace Conference

-- Signed at The Hague, October 18, 1907" in The Hague
Conventions and Declarations of 1899 and 1907 (1915; J
Scott, ed) 1, 29-30. The Hague Conferences were among
those many law-making conferences called in the 19th
century and referred to above (see Ch 2, n 12 and ac
companying text). For a discussion of the Conferences
and agreements reached see, eg, W Hull, The Two Hague
Conferences and Their Contributions to International
Law (1908); Nippold, supra Ch 2, n 6, 79-90; and de
Visscher, supra n 12, 417-425.
Expert Committee, supra n 53, vii. As an essential

part of their task, the Committee considered the mean
ing to be given to 'international codification'. After
much discussion, Professor de Visscher expressed his
view, of which extracts may usefully be cited (ibid
25) :
131
That lis t w ould be com m unicated to S tates and on th e b a sis
of the rep lies receiv ed the com m ittee w ould report to the
League on actio n th at m ig h t best be taken. In December of
th at year a seventeen-m em ber expert com m ittee was approved
by t h e League, a ll m ales, and a ll but fiv e of w hich w ere Eu
r o p e a n s . 3-7
Codification night be taken in the strict sense. It was then...a re

statement, .. .an assembling of texts of agreement giving legal force to
customs which were fairly widespread and well defined and concerning
which there was general agreement except for differences of detail or ap
plication.
Codification in this sense was a task which consisted in stating
or defining the existing system of law. If the Committee wished to go
further and to give the term 'codification' a wider sense, it would have
to invite the opinions of the Governments on questions which were the
subject of controversy, or which related to subjects of international law
which had been insufficiently explored. The Committee would thus be en
tering on what has been described as the sphere of legislation. ...
Codification, even in the strictest sense, always implied a cer
tain legislative element, as it aimed at achieving a certain uniformity
and at reducing to a minimum the differences which existed between the
various schools. ...
The Committee must aim at encouraging the conclusion of new con
ventions between States. To attain this object it does not seem either
necessary or useful to determine in the abstract what belonged to the do
main of strict codification or to the domain of legislation.
The C o m m itte e a g r e e d w i t h d e V i s s c h e r , and no f u r

t h e r d i s c u s s i o n on t h e m a t te r to o k p l a c e . For a u s e fu l
r e v i e w o f t h e v a r i o u s e a r l i e r v ie w s e x p r e s s e d by t h e
o t h e r m e m b e rs o f t h e C o m m i t t e e s e e ibid x l v i - l i i .
Ibid v i i
T h e m e m b e r s o f t h e C o m m i t t e e w e r e : C h a i r m a n : Mr H j a l m a r
H am m arskjöld (S w ed en ), fo rm e r P rim e M i n i s t e r o f Sweden,
G overnor of th e P ro v in c e of U ppsala; V ice-C hairm an:
P r o f e s s o r G D iena ( I t a l y ) , P r o f e s s o r o f I n t e r n a t i o n a l
Law a t t h e U n i v e r s i t y o f P a v i a ; M e m b e r s : Mr C h r i s t o b a l
B o t e l l a ( S p a i n ) , f o r m e r l y P r o f e s s o r o f Law a t t h e U n i
v e r s i t y o f M a d rid , L e g a l A d v is e r to t h e S p a n is h Em bassy
a t P a r i s , P r e s i d e n t o f t h e F ra n c o - G e r m a n M ixed A r b i t r a l
T rib u n a l; P r o f e s s o r Jam es B r i e r l y (G rea t B r i t a i n ) , P ro
f e s s o r o f I n t e r n a t i o n a l Law a t t h e U n i v e r s i t y o f O x
f o r d ; Mr H F r o m a g e o t ( F r a n c e ) , L e g a l A d v i s e r t o t h e
M i n i s t r y f o r F o r e i g n A f f a i r s o f t h e F r e n c h R e p u b l i c ; Dr
J G ustavo G u e rre ro ( S a lv a d o r ), M in is te r o f S a lv a d o r in
P a r i s ; Dr B C J L o d e r ( t h e N e t h e r l a n d s ) , f o r m e r M ember
o f t h e Suprem e C o u rt o f t h e N e t h e r l a n d s , Ju d g e and l a t e
P re s id e n t of th e Perm anent C ourt of I n te r n a tio n a l J u s
t i c e ; Dr B a r b o s a d e M a g a l h a e s ( P o r t u g a l ) , P r o f e s s o r o f
Law a t t h e U n i v e r s i t y o f L i s b o n , B a r r i s t e r , f o r m e r M i n
i s t e r o f F o r e i g n A f f a i r s , J u s t i c e a n d E d u c a t i o n ; Dr
132
The first session of the Committee of Experts for the
Progressive Codification of International Law was held from
1 to 8 April 1925. During the session, agreement was
reached on a list of subjects on which reports were to be
Adalbert Mastny (Czechoslovakia), Czechoslovak Minister

in London, President of the Czechoslovak Group of the
International Law Association; Mr M Matsuda (Japan),
Doctor of Law, Minister Plenipotentiary; Dr Szymon
Rundstein (Poland), Barrister at the Court of Appeal at
Warsaw, formerly Legal Adviser to the Ministry of For
eign Affairs; Professor Walther Schucking (Germany),
Professor at the Higher School of Commercial Sciences
at Berlin; Dr Jose L4on Suarez (Argentina), Dean of the
Faculty of Political Science at the University of
Buenos Aires; Professor Charles de Visscher (Belgium),
Professor in the Faculty of Law at the University of
Ghent, Legal Adviser to the Belgian Ministry for For
eign Affairs; Dr Wang-Chung-Hui (China), Deputy-Judge
of the Permanent Court of International Justice; and Mr
George Wickersham (United States), formerly Attorney-
General of the United States, Member of the Interna
tional Law Committee of the American Bar Association
and President of the American Law Institute.
The Council of the* League was unable to complete
the appointment of a Muslim jurist in time for the
opening session of the Committee as had been recom
mended by Sir Eric Drummond, the Secretary-General.
Subsequently, Sir Abdur Rahim, a member of the Execu
tive Committee of the Governor of Bengal was nominated.
However, he was unable to accept the appointment and
later, after the Committee’s first session, Sir Muhamad
Rafique, former judge of the High Court of the United
Provinces, was appointed (ibid xxxiv-xxxv).
The fact that no women had been selected for the
Committee generated widespread protest among certain
women’s groups, particularly the International Council
of Women. Their protests were to no avail however
(ibid cviii-cix).
Of the 55 States members of the League of Nations
at the time of the Committee's formation, 25 (45%) were
neither from Europe nor North America (excluding Aust
ralia, New Zealand and the Union of South Africa)(H
Aufricht, Guide to League of Nations Publications
(1966) 505-508). It is difficult to draw conclusions
about over- or under-representation of certain areas or
legal systems, however, as the selection process was
largely undertaken at the request of the League by a
Swede (since Sweden had proposed the Conference in the
first instance), who assumed "the diplomatic responsi
bility for the actual composition of the Committee
through the normal processes of consultation and nego
tiation ... then customary in the League of Nations"
(Expert Committee, supra n 53, xxxiii).
133
presenred at the succeeding session. Included were "prob
lems connected with the law of the territorial sea, consid
ered in its various aspects", and "whether it [was] possible
to establish by way of international agreement rules regard
ing the exploitation of the products of the sea".50 The
former thus comprehended questions relating to fishery re
sources in the territorial sea, while the latter was largely
intended to cover those resources beyond the waters of any
State.
Reports on both matters were submitted to the second
session of the Committee, held in 1926. That dealing with
the territorial sea included a draft convention. Referring
only briefly to fishery issues, Article 2 stated, inter
alia, that "[o]utside the [three-mile] zone of sovereignty
no right of exclusive economic enjoyment may be exercised,”
and "[e]xclusive rights to fisheries continue to be governed
by existing practice and conventions".00
Explaining his reasons for proposing what was essen
tially a deferral of the entire question of fishing rights,
Schucking, the sub-committee’s rapporteur, noted the close
connection between the geographical condition of littoral
waters and the extension of fisheries. For that reason, he
Ibid 39-40, 43. Dr Suarez was perhaps more concerned

with fishery questions than any other member of the
Committee with the possible exception of Dr Magalhaes.
It was the former who initially proposed the subject
for study, explaining to the Committee’s first session
that he wanted to include in the study "everything
which concerns the resources of the sea" (ibid 39).
Early doubts were expressed throughout the session how
ever. The Chairman "thought that it would be impossi
ble to make a general regulation covering the exploita
tion of all kinds of resources of all the seas of the
globe"(ibid). Brierly considered the subject a very
difficult one for examination by a legal committee and
thought it more a matter for discussion by technical
experts (ibid 39-40). Recognizing the importance of
the subject, however, it was unanimously agreed that
Suarez would produce a report for the Committee's sec
ond session (ibid 40).
Ibid ii, 55-101

«so
Ibid 98.
134
posited, "a general uniform regulation of all fishery rights
could not be applied to territorial w a t e r s ” .61 Clearly, he
continued, "it would be necessary to preserve all those
rights which are essential for the conservation of fishery
rights, for example, the right to police fisheries".62 Al
though laying down specific boundaries for territorial wa
ters while simultaneously maintaining rights beyond those
limits may be open to criticism, conceded Schucking, there
appeared no other solution.03
Stressing that Mthe marine species of use to man will
become extinct unless their exploitation is subjected to in
ternational regulation," Suarez in his report argued that
the latter was most required for waters nearest the coast
(ie, where the depth does not exceed 200 meters) for it is
there that the species most useful to man are to be found.65“*
Observing that fishery treaties to that time focussed on po
licing measures to ensure reciprocity and commerce and not
biological factors, they were as a consequence inappropriate
for regulating modern fisheries. "The riches of the sea,"
he explained, "are the patrimony of the whole human race,"03
Ibid 100. Other members of the sub-committee were M de

Magalhaes and Mr Wickersham (ibid i, 44). On the point
made by Schucking see also, eg, text accompanying n 30
supr a.
Ibid
In connection with the right of the coastal State to

reserve fishing rights in the territorial sea exclu
sively for its own nationals, Schucking asked (ibid 77-
78)
whether the right of supervision over fishing can be extended so far as

to include the power of refusing access to the sea to all foreign
fishing-boats whatever. Such a step would, of course, constitute the
aost effective aeans of putting down illegal fishing, but it would con
flict with the right of free passage which is established for all
vessels.
Ultimately, however, he simply proposed (ibid 98, Art

7) that "all vessels without distinction shall have the
right of pacific passage through the territorial sea".
•S.-4-
Ibid 147, 148. See in this regard Ch 11, n 238 infra.
135
and the Committee had to take action before it was too late.
In the view of Suarez,
the only thing to be done is to discard the obsolete rules of the existing treaties,
which were drawn up with other objects, to take a wider view, and to base a new ju
risprudence, not on the defective legislation which has failed to see justice done but
on the scientific and econoaic considerations which, after all the necessary data has
been collected, aay be put forward, coapared and discussed at a technical conference
by the countries concerned.,s,&
There was general support amongst Committee members for

the sentiments expressed by Suarez as well as the overall
thrust of his recommended strategy. His report, as well as
that of Schucking, was transmitted to governments for com
ment .^
While the great majority of governments replying to
Schucking's report favoured consideration of the territorial
sea at the codification conference, few commented specifi
cally on fishery issues.*® Portugal was the most explicit,
demanding a 12-mile territorial sea in order to protect
valuable fishery resources crucial to her economy. Many
other States were in the same position, she asserted, and
"the present needs of the nations are of more importance
than traditions and ancient usage".09 If a 12-mile territo
rial sea was unacceptable, conceded Portugal, she was pre
pared to accept a six-mile territorial sea, so long as
States had the right "in order to satisfy their vital needs
or those of their defence, to exercise administrative rights
Ä=s Ibid 149

,&,s Ibid. Experts attending such a conference, he ex
plained (ibid 151), would include, besides jurists,
those persons engaged in applied marine zoology and in
marine industries. This was not a revolutionary sug
gestion. Nussbaum (supra Ch 1, n 48, 200) points out
that beginning about 1860 international conferences
were less formal than previously and delegates "were
preponderantly, in a broad sense, technicians".
Expert Committee, supra n 53, 101-105
For an analysis of replies received see ibid ii, 288-

O Q O
jL. .
S 9
Ibid 217-213
136
over a further zone of six miles beyond the zone of their
sovereignty” .70
Of the 23 Governments commenting on Suarez's proposals,
21 responded favourably."7,1 France was one of the more en
thusiastic supporters of a fishery conference, opining that
it was "desirable, practical and urgent” to regulate the ex
ploitation of marine fisheries by international agreement.73
In her view, the conference could "without undue difficulty”
conclude a general convention for that purpose and question
ed whether preliminary conference arrangements might not be
accelerated.^
In stark contrast, the United Kingdom considered that
regulation of international fisheries was not feasible,
since the necessary considerations upon which regulation
would depend were technical rather than legal, and available
information led to the conclusion that regulation "should be
attempted... by particular conventions relating to particular
products and particular areas between the countries inter
ested," rather than by means of a general convention.74
For some of the responding Governments, even those with
extensive coastlines, fishery questions were not of critical
importance. India, for example, declined to comment as
"there is not intensive exploitation of such products" along
her coasts.73 Similarly, Egypt replied that she had "no
special interest" in the questions posed by Suarez.7'0
The Committee at its 1927 session considered replies
received and agreed that territorial waters ought to be
Ibid
For an analysis of replies received see ibid 305-308.
Ibid 190
Ibid
Ibid 172; cf, views of Japan, ibid 193
Ibid 196
7 6
Ibid 285
137
dealt with by an international conference.77 In a separate
report to the Council of the League of Nations it declared
that the exploitation of the products of the sea was one of
the subjects the regulation of which by international agree
ment to be most desirable and realisable.7’® The Committee
pointed out, however, that the question had to be considered
in greater depth and for a longer time than had previously
been the case if international agreement was to be reached;
that regulation of "less migratory species" of marine fauna
might be accomplished by means of bi- and multilateral
agreements; and that other migratory species of fauna, such
as the whale, might be regulated by means of a general con
vention. A conference of experts of the type recommended by
Suarez, the Committee suggested, was "the proper body to
formulate an opinion on these problems and on many other
proposals arising from this question, and also on the best
method of formulating rules without undesirable delay” .7’®
Without taking any final decisions on the above, the
League of Nations' Council transmitted the reports to the
Assembly where on 27 September 1927 it was resolved, inter
alia, to hold a "First Codification Conference" to examine
three subjects, including "Territorial Waters".®0 It was
also decided to study in collaboration with the Internation
al Council for the Exploration of the Sea and other inter
ested organizations "the question whether and in what terms,
for what species and in what areas, international protection
of marine fauna could be established".®1 It would then be
decided whether a conference of experts should be held. The
Economic Committee of the League undertook consideration of
the question of marine products, and a Preparatory Committee
Ibid i, 226
Ibid 240
Ibid 246
Ibid xciv
3 X
Ibid
138
w as a p p o i n t e d to arrange for the convening of th e F irst Cod
ifica tio n C onference.
B. The 1930 C o n f e r e n c e D e l i b e r a t i o n s 82
F o rty-seven S t a t e s , plus th e S o v i e t Union i n an ob
server cap acity , atten d ed th e C o d ific a tio n C onference held
i n T h e H a g u e f r o m 13 M a r c h t o 12 A p r i l 1930 (se e T able 2 ).
To f a c i l i t a t e d elib eratio n s, th e P r e p a r a t o r y C om m ittee had
circu lated q u e stio n n aires to in v ited governm ents seeking
th eir view s on, in ter a l i a , th e lim its of, and r i g h t s to be
ex ercised w ithin and a d j a c e n t t o , th e t e r r i t o r i a l s e a . ® 321*
A t h o r o u g h r e v i e w and a n a l y s i s o f e v e n t s i m m e d ia te ly
l e a d i n g t o t h e Hague C o n f e r e n c e a s w e l l a s i t s d e l i b e r
a t i o n s i s found in S R osenne, League o f N a tio n s C o n fe r
e n c e f o r t h e C o d i f i c a t i o n o f I n t e r n a t i o n a l Law [ 1 9 3 0 ]
( 1 9 7 5 ) [ h e r e a f t e r c i t e d ’Hague C o n f e r e n c e ' ] v o l i , x i i i -
lv i. F o r b r i e f e r r e v i e w s o f t h e C o n f e r e n c e s s e e M H ud
s o n , "The f i r s t c o n f e r e n c e f o r t h e c o d i f i c a t i o n o f i n
t e r n a t i o n a l l a w " ( 1 9 3 0 ) 24 A J IL 4 4 7 ; a n d J R e e v e s , " T h e
c o d i f i c a t i o n o f t h e law o f t e r r i t o r i a l w a t e r s " i n i b i d
486 .
The q u e s t i o n n a i r e s d e r i v e d fro m t h e e a r l i e r work o f t h e

C om m ittee o f E x p e rts d i s c u s s e d above and w ere i n f l u
e n c e d by o t h e r d e v e l o p m e n t s , i n c l u d i n g t h e p r i v a t e c o d
i f i c a t i o n e f f o r t s o f t h e I D I a n d ILA. The C o m m itte e
r e p o r t e d ( " S e c o n d R e p o r t s u b m i t t e d t o t h e C o u n c i l by
t h e P r e p a r a t o r y C om m ittee f o r t h e C o d i f i c a t i o n C o n f e r
e n c e " i n Hague C o n f e r e n c e , s u p r a n 8 2 , i i , 225) t o t h e
League t h a t in p re p a rin g i t s 'b a s e s fo r d i s c u s s i o n ’ i t
h ad " b o r n e c o n s t a n t l y i n mind t h e r e s o l u t i o n s a d o p t e d
i n t h e p a s t f e w y e a r s b y t h e [ I D I ] a n d [ I L A ] on t h e
s u b j e c t s com ing w i t h i n t h e s c o p e o f t h e f i r s t C o n f e r
ence" .
W ith r e s p e c t t o t h e t e r r i t o r i a l s e a , t h e C o m m ittee
q u e rie d ( i b i d 240), i n t e r a lia , w hether
whatever might be the existing law, is it considered possible

and desirable to embody in a convention an agreement upon one of the fol
lowing alternatives:
(1) a uniform breadth for territorial waters would be fixed for
all States and for all purposes;
(2) a uniform breadth for territorial waters would be fixed for
all purposes but the breadth might be different for different States in
the ground of special circumstances;
(3) the territorial waters in which the State exercises
sovereignty would be limited, but beyond such limits, within an area to
be determined, the State would be entitled to exercise special rights as
might be specified.
TADLE 2
STATE PARTICIPATION AT INTERNATIONAL CONFERENCES
ON THE LAW OF THE SEA
HAGUE U N CLOS
CONFERENCE I II 1 III
Afghanistan X X
Albania X X X
Algeria X
Angola X
Antigua & 3arbuda X
Argentina X X X
Australia X X X X
Austria X X X X
Bah a m a s X
Bahrain X
Bangaldesh X
Barbados X
Belgium X X X X
3enin X
Bhutan X
Bolivia X X X
Botswana X
Brazil X X X X
Bulgaria X X X X
Burma X X X
Burundi X
B y e l o r u s s i a n SSR X X X
Canada X X X X
C ape V e r d e X
C e n t r a l A f r i c a n Rep X
C had X
Chile X X X X
Chin X X X X
Colombia X X X X
C o m o r o s Islands X
Co n g o X
C o s t a Rica X X X
Cuba X X X X
Cyprus X
Czechoslovakia X X X X
Danzig X
Kampuchea X X X
DPR of K o rea X
Dem Y e m e n X
Denmark X X X X
Djibouti X
Dominica X
Dominican Republic X X X
Ecuador X X X
E gypt X X X X
El S a l v a d o r X X X X
Equatorial Guinea X
Estonia X
Ethiopia X X
Fiji X
Finland X X X X
France X X X X
Gabon X
Gambia X
German Dem Republic X X
Fed R e p u b l i c of G e r m a n y X X X X
Ghana X X X
G reece X X X X
Grenada X
Guatemala X X X
Gu i n e a X X
Guinea-Bissau X
Guyana X
H aiti X X X
H o l y See X X X
Honduras X X X
Hungary X X X X
Iceland X X X X
India X X X X
Indonesia X X X
Iran X X X X
Iraq X X X
Ire l a n d X X X X
Israel X X X
Italy X X X X
I v o r y C oast X
Jamaica X
Japan X X X X
Jordan X X X
TABLE 2 (con *t )
HAG U E UNCLOS
CONFERENCE I II III
Kenya X
Laos X X X
Latvia X
Lebanon X X X
Lesotho X
Liberia X X X
Libya X X X
Liechtenstein X
Luxembourg X X X X
Madagascar X
Malawi X
Malaysia X X X
Maldives X
Mali X
Malta X
Mauritania X
Mauritius X
Mexico X X X X
Monaco X X X X
Mongolia X
Morocco X X X
Mozambique X
Nauru X
Nepal X X
Netherlands X X X X
New Zealand X X X
Nicaragua X X X X
Niger X
Nigeria X
Norway X X X X
Oman X
Pakistan X X X
Panama X X X
Papua New Guinea X
Paraguay X X X
P eru X X X X
Philippines X X X
Poland X X X X
Portugal X X X X
Qatar X
Rep of K o r e a X X X
Romania X X X X
Rwanda X
S a i n t L u cia X
St V i n c e n t & G r e n a d i n e s X
Samoa X
San M a r i n o X X X
Sao T o m e & P r i n c i p e X
Saudi Arabia X X X
Senegal X
Seycelles X
S i e r r e L eone X
Singapore X
S o l o m o n Islands X
Somalia X
South Africa X X X X
Spain X X X X
Sri L a n k a X X X
Sudan X X
Suriname X
Swaziland X
Sweden X X X X
Switzerland X X X X
Syria X X X
Thailand X X X
T ogo X
Tonga X
Trinidad & Tobago X
Tunisia X X X
Turkey X X X X
U k r a i n i a n SSR X X X
USSR X X X X
U Arab Emirates X
UK X X X X
U Rep o f C a m e r o o n X X
U Rep of T a n z a n i a X
U SA X X X X
Upper Volta X
Uruguay X X X X
Venezuela X X X
Viet-Nam X X X
Yemen X X
Yugoslavia X X X X
Z aire X
Zambia X
Zimbabwe X
139
The views of States were many and varied. At what
might be taken as one extreme, the United Kingdom's position
was typical of numerous others. "A convention fixing a uni
form breadth [for the territorial sea] of three miles for
all States and for all purposes is both possible and desir
able,” she c l a i m e d . T h e r e were no known special circum
stances justifying a greater limit, and particular needs of
coastal States beyond three miles might be met by "arrange
ments ... embodied in bilateral conventions between the States
concerned” .e=s
At the other extreme, Portugal again presaged much
later discussion by relating territorial sea limits and a
coastal S t a t e ’s rights beyond that area directly to the need
to protect national fishery interests. Either a single 18-
mile limit should be established for the territorial sea in
order to accommodate all coastal State interests, it was ar
gued, or different limits should be set for different pur
poses. Often, coastal populations were heavily dependent on
adjacent fishery resources and the latter were threatened by
foreigners overfishing local stocks, observed Portugal. Be
cause regulation of littoral resources must be constantly
and strictly supervised over a sufficiently wide area to be
effective, it is both costly and primarily affects the State
whose interests were linked with the exploitation of those
waters. Therefore, control can be maintained and exercised
"only by a State within a zone under its sovereignty or as
signed to its exclusive use".96 For those reasons, con
cluded Portugal, "the breadth of the territorial sea for
purposes of fishing and with a view to giving States exclu
sive fishing rights should be much more than six miles".3-7
The fundamental difference of views remained in the
Conference itself. While not directly addressing the issue
Ibid 247
Ibid
Ibid 249-250
Ibid
140
of fisheries, Italy's delegate expressed the sentiments of
many in denying that claims to a territorial sea wider than
three miles would represent a change in existing interna
tional law: "Ctjhere is only one international principle...
and that is...the State’s right to possess territorial wa
ters. The question of the breadth does not depend on a
principle of international law; it is a matter to be settled
by agreement” .130
In an attempt to reach a compromise, a number of States
primarily interested in coastal fishery resources offered to
modify earlier demands for broad territorial waters. Portu
gal's representative, for example, was willing to accept a
six-mile territorial sea, provided that there was also a
six-mile "adjacent zone" where the coastal State would be
accorded "rights over certain matters and, in particular,
police rights over fisheries. . . " . While the coastal State
would not be able to exclude foreign fishermen from the
zone, it would be permitted to apply its domestic fishing
regulations to avoid over-exploitation of resources and con
comitant harmful effects on fish stocks in the coastal
State's own territorial waters.30
Iceland's delegate, while supporting a four-mile terri
torial sea, "provided it were possible to have some rules
for protecting the fisheries in certain areas outside the
territorial waters",31 proposed that consideration be given
to the desirability of the coastal State participating in
scientific research concerning fisheries in adjacent wa
ters.32 On the basis of research results, he continued, "it
might be a subject for consideration whether the rules for
Ibid iv, 1338
Ibid 1221, 1327, 1357
Ibid 1335-1337
Ibid 1344
92
Ibid 1390.
141
controlling fisheries in territorial seas could not be ex
tended to certain areas outside these limits".993
Unswerving opposition to extensive coastal State juris
diction in any form came, however, from the major maritime
nations. The Japanese representative, for example, refused
to recognize that the coastal State should have exclusive
rights with respect to fisheries in territorial waters be
yond three miles, "as that would be equivalent to admitting
that a part of the high sea should be treated more or less
as if it formed part of territorial waters".94
The British spokesman, for his part, consistently main
tained that the width of the territorial sea was ”and has
always been a limit of three miles". 9,55 The most appropriate
means of solving fishery problems such as those raised by
Portugal, he claimed, would be for the various nations
concerned to attempt to reconcile differences by individual
agreements rather than by a single convention governing the
world’s fisheries as a whole.®®
The American delegate, although conceding that ” [s]ome-
times the conservation of fisheries has... been mentioned as
a reason upon which a State may take measures upon the high
sea adjacent to its marginal sea," and that three miles may
be insufficient for fishery regulation,®"7 nevertheless "ac
cepted three marine miles as the breadth of territorial wa
ters subject to the sovereignty of the State".9*® In Confer
ence discussions, the United States did not refer substant-
Ibid 1391. The Icelandic initiative was supported by

Finland {Ibid 1375), while similar comments were made
by Denmark’s delegate {ibid 1227).
Ibid 1223-1224
Ibid 1222 (emphasis added)
Ibid 1343
Harvard Law School Research in International Law. Am

erican Journal of International Law. Special Supple
ment. Codification of International Law (1929) 23: 334
Hague Conference, supra n 32, ii, 244; iv, 1325

142
iv ely to th e q u estio n of fish e rie s beyond th e te rrito ria l
sea.
Because of th e co m p lete lack of agreem ent on t h e
b readth of th e te rrito ria l sea and lim ited tim e for d iscu s
sio n on t h e v ario u s su b stan tiv e issu es, no d e c i s i o n s w ere
tak en on t h e q u estio n of fish ery ju risd ictio n . The C om m it
tee d iscu ssin g th e te rrito ria l sea sim p ly noted in its re
port th a t "certa in d eleg atio n s p o in ted out how i m p o r t a n t it
was th a t th e co astal S tate should have in th e co n tig u o u s
zone e f f e c t iv e ad m in istratio n of its fish erie s law s and th e
rig h t of p ro tectin g f r y ”. ' "
The C o n f e r e n c e itse lf, how ever, in a recom m endation to
th e League d id reaffirm th e im p o rtan ce of co n serv in g fish ery
resources b o th w ith in and beyond th e te rrito ria l sea and
urged th a t th e research w ork being u n d ertak en by t h e League
c o n t i n u e . 100 W hile t h e L e a g u e 's C ouncil endorsed th e recom
m en d atio n s of th e C onference and d i r e c t e d th a t th ey be acted
upon, d eterio ratin g in tern atio n al co n d itio n s u ltim a tely pre
vented th e proposed tech n ical conference from being h e l d . 101
w Ibid 1 4 1 3
100 The r e c o m m e n d a t io n r e a d , i n p a r t , a s f o l l o w s ( " F i n a l A ct

of th e C onference fo r th e C o d ific a tio n of I n te r n a tio n a l
Law h e l d a t t h e H a g u e i n M a r c h - A p r i l 1 9 3 0 " i n i b i d i i i ,
371) :
Taking into consideration the importance of the fishing industry to cer

tain countries;
Recognizing further that the protection of the various products of the
sea must be considered not only in relation to the territorial sea but
also the waters beyond it;
And that it is not competent to deal with these problems nor to do any
thing to prejudge their solution;
Noting also the steps already initiated on these subject by certain or
gans of the League of Nations,
Desires to affirm the importance of the work already undertaken or to be
undertaken regarding these matters, either through scientific research,
or by practical methods, that is measures of protection and collaboration
which may be recopized as necessary for safeguarding of riches consti
tuting the common patrimony.
See a l s o te x t accom panying n 81 supra.
101 Ibid v o l 1, pp x x x i v , xxxvi

143
IV. Institut de Droit International Reconsideration of

Fishery Issues
Although the fishery technical conference did not even

tuate as had been generally hoped, the years immediately
subsequent to the 1930 Hague Conference did witness some
further discussion within the IDI of the legal aspects of
marine fishery jurisdiction and exploitation, and insofar as
they may be said to link certain trends begun in this early
period with those in later years, the proceedings merit at
least brief consideration.
Stimulated in large measure by the decision of the Lea
gue in 1927 to begin work on the general question of fisher
ies,102 the Institute at its 1929 session decided to estab
lish a special committee to prepare a report on the "fonde-
ment juridiques de la conservation des richesses de la mer".
Co-rapporteurs were Professor George Grafton Wilson and Sir
John Fischer Williams.103
In their 1936 report10"*- to the the Institute, the rap
porteurs advance a number of "practical conclusions" as to
the then state of marine fisheries and the international le
gal principles relating thereto. With respect to the latter,
they conclude that the regulation and exploitation of marine
resources involve two distinct problems: first, the estab
lishment of regulations; and second, the imposition of sanc
tions. For the former, it is necessary both to have access
to scientific data for each species and for governments to
have confidence in expert advice. As for the latter, sanc-
102 See text accompanying n 31 supra.
103 Wilson was appointed in 1929 ((1929) 35 AIDI i, 206-

207; ii, 356), and Williams in 1932 {(1932) 37 AIDI
610) .
1 0 -4-
(1936) 39 AIDI 329
144
tions may only be set in place and imposed by means of rati
fied international agreements.1055
More generally, observe Wilson and Williams, States in
the fishery conservation measures they had taken, particu
larly in recent years, had not been preoccupied with estab
lishing a juridical base for their actions. Juridical
principles, if there were any, are implicit and not ex
pressly proclaimed. Thus, the law is in the process of de
velopment and incapable of being formulated a priori. In
their view, it was possible that the complete solution of
the juridical problem of conservation awaited future devel
opments, although some aspects were finalized and others
were beginning to be clarified.*
1°
5
4
3
2&
ios ibid 359-360. Other conclusions reached (ibid 358-359)

may be briefly summarized as follows:
(1) because fish species differ markedly one from the

other in biological characteristics, each required a
special study and it was not possible to legislate for
fish in general;
(2) likewise, species differ widely in their economic
value, both in macroeconomic and unit terms. While
some species such as whales and fur seals with high
unit values could be pushed almost to extinction, with
others, such as herring, fishing activity would cease
when it became uneconomic, usually at a level far below
that likely to threaten the extinction of the fish
themselves;
(3) marine fish were international in their habits, re
specting neither national sovereignty nor the limits of
territorial waters ("ni la souverainete nationale ni
les limites des eaux territoriales"). The problem of
conservation is therefore international. Efforts in
that regard began slowly at first but increased in the
20th century as more international agreements were con
cluded ;
(4) there were already sufficient scientific organiza
tions in existence to study marine life, and interna
tional action had to be based on such studies; and
(5) with higher standards of living and improved tech
nology in many countries, certain fish species were
threatened with extinction. It was important that ap
propriate regulations be formulated and applied.
los Ibid 360-361. The relationship between conservation

and exploitation of marine resources the co-rapporteurs
described thus ((1936) 39 AIDI 329, 331):
145
Focussing on the la tte r conclusion, W ilson and W illiam s
posed and attem pted to discuss, if not answer, three in te r
related questions. What were the juridical principles un
derlying international action taken to conserve living ma
rine r e s o u r c e s ? 1 0 "7 What was the juridical relationship be
tween governm ents and, through them, men, on the high seas?
And finally, must this relationship be defined by affirm ing
that the sea is either res nullius o r res communis, o r m u s t
one search for another s o l u t i o n ? 100
Commencing from the I n s t i t u t e ’s 1927 resolution pro
claim ing each S ta te 's freedom of fishing on the high
s e a s , 100 the co-rapporteurs note that, as referred to above,
dans [la] conception de conservation nous incluons necessairement celle

de protection. En effet, i l s ’agit de la conservation d'un fonds de
richesses continuellement renouvelees au moyen d'une protection permet-
tant une exploitation raisonnable, et non de la conservation d'un etat de
choses iaauables.
1 ° ‘7’ W ilso n and W illia m s i n t e r p r e t e d " r i c h e s s e s de la

m e r "{ibid 3 3 5 - 3 3 6 ) a s c o m p r i s i n g :
les comaodites ou facilites d’une valeur economique qu’on peut tire r de

1’exploitation des eaux et du fond de la mer. Et dans la langage ordi
naire ces valeurs economiques consistent jusqu’a present presque entiere-
ment dans les produits aniaaux de la vie Marine -- les poissons, y ccm-
pris toute espece de crustaces, de baleines, de phoques et d'autres sam-
aiferes de quelque fapon que les savants les classent. ...
Dans ce Rapport...on coaprendra 'les richesses de la aer’ coame
etant les produits de la vie animale et vegetale existant dans les eaux
ou adherant au fond de la haute aer.
lo e Ibid 3 6 1
100 In 1927, t h e I n s t i t u t e had a d o p te d t h e f o l l o w i n g r e s o

l u t i o n a s s u r i n g freedom of th e se a s w ith o u t making th e
p r i n c i p l e c o n tin g e n t upon a c c e p ta n c e of p h ra se s such as
res nullius, res communis usus, o r e v e n t h e i r c o m b i n a
t i o n a s res nullius communis usus ( ( 1 9 2 7 ) 3 3 A I D I 3 3 9 ) :
The Institute of International Law Declares that the principle

of the freedom of the high seas includes notably...
I. Freedom of navigation on the high seas under the exclusive
control, in the absence of a convention to the contrary, of the state
whose flag the vessel flies;
II. Freedom to fish in the high seas under the same conditions.
A ccording to S c o t t ("The I n s t i t u t e of I n t e r n a t i o n
a l L a w " ( 1 9 2 7 ) 2 1 AJIL 7 1 6 , 7 2 6 ) , w h o w a s a t t h a t t i m e
P r e s i d e n t o f t h e I D I , " t h e o u t c o m e was d u e t o t h e f e e l
i n g , a p p a r e n t l y g e n e r a l , t h a t res nullius m e a n t o n e
146
”il peut etre desirable...que cette liberte, au moins par
rapport ^ certaines especes de vie marine, soit soumises ^
des restrictions” .110 They suggest that ”il soit possible
de supposer qu'il doit etre sous-entendu que cet usage [ie,
de la peche en haute mer] soit raisonnable et destructif de
son propre objet” .*
111
* Law and the practice of mankind give
all men and all States rights over the sea in the nature of
servitudes, but do not affirm the right of ownership of the
sea itself, as a body of water, much less indicate the na
ture of such a right.
Granted that many aspects of international law relating
to marine fisheries were still in the process of develop
ment, what could be said definitely at present? According
to Wilson and Williams, the concepts of res nullius and res
communis could not usefully be applied to either the high
seas or their resources. Having their origin in land law
and the purposes for which land was used, neither concept
could explain the legal nature of the waters of the sea, nor
were they necessary with respect to fisheries. As for the
former, a res nullius is normally capable of being the ob
ject of individual ownership, but not so the sea. If one
wished, on the other hand, to consider the latter as res
communis, a common property, and not as the object of cer
tain common rights, one encountered the difficulty that wa
ters do not respect limits of the territorial sea and thus
one minute may be territorial while the next minute not.
For this reason, they argue,
Ni dans l ’histoire ni dans 1'usage contemporain on ne peut trcuver un appui

pour la th&se que les conceptions soit de res nullius soit de res comunis peuvent
etre appliquees utileient a la aer. La aer est phenomene sui generis. Elle est su-
jette a certains droits communs, aais ce serait nous egarer qui de lui donner
1'appellation d'une propriete c o m u n e . 1 1 2
thing, and res communis an inconsistent thing, and that

the best way out of the difficulty was to drop phrases
and cling to the substance".
110 (1936) 39 AIDI 329, 362-363
111 Ibid 363

1 1 2
Ibid 364
147
The problem of ownership of fish, they conclude, is

simpler. The concepts of res nullius and res communis are
unnecessary. As ferae naturae, fish are only subject to
ownership upon their capture.113
Concluding their report, Wilson and Williams urged a
scientific study of marine resource conservation needs and
the early adoption of such measures as may be necessary.*
11-*'
As for the perhaps more thorny problem of the fundamen
tal principles underlying marine resources conservation, the
co-rapporteurs adopted a de facto wait-and-see attitude,
urging the IDI to reserve the subject for later study.113
Comments by IDI members on the report were generally
favourable. Only the French jurist, Ernest Lemonon, specif
ically referred to the debate on the nature of the high
seas. He maintained that "la haute mer doit £tre consid^ree
comme une res communis, comme un bien commun a tous les
Etats, dont 1'administration est indivise entre tous".116
Others, however, did join Lemonon in expressing regret that
Wilson and Williams had been unable to explain in detail the
juridical nature of the sea or formulate a draft conserva
tion convention for consideration. A number agreed with the
Norwegian jurist, Raestad, that although Roman law concepts
could only be applied with some difficulty to the sea,”il
serait tres interessant de trouver une base juridique, etant
donn^ qu ’il faut opposer aux Etats ne voulant pas se lier
113 Ibid 368
11 Ibid 372. Various specific measures were also suggest

ed to implement their proposal, including the estab
lishment of expert committees, members of which would
be named by the States whose nationals fished in the
waters in question. Those committees would make such
regulations based on scientific studies as might be
necessary for fishery conservation and protection in
the area concerned. In the case of dispute regarding
any proposed regulation, matters would be submitted to
an arbitral tribunal (ibid 372-373).
1155 Ibid 373-374

1
Ibid 391
148
pour collabcrer a la conservation des richesses de la mer
des regies juridiques claires et irrefutables” .11'7
Nevertheless, the Institute did adopt a resolution en
dorsing two main principles of the Wilson-Williams report;
that is, the application of scientific studies in the formu
lation and enactment of conservation regulations, and the
delegation of authority to make such regulations to techni
cal commissions. It also recommended that while a complete
set of international agreements was being negotiated, States
make such urgent provisional conservation arrangements as
may be required.113
Significantly, the IDI's recommendation contained one
of the first -- if not the first -- attempt to codify the
principle that a State has a duty to act in such a way as to
protect and conserve the resources of the sea;
un Etat aanquerait a ses devoirs international^ s ’il negligeait de prendre les aesures
appropriees pour eap$cher les pratiques qui, a la luaiere de la science, sont notoire-
aent contraires a 1 ’exploitation et ^ la protection rationnelles des richesses de la
ier.119
While the Institute had devoted much time and effort to

the subject of fishery jurisdiction, its proposals too suf
fered the same fate as those of the 1930 Hague Conference.
The latter years of the decade were not propitious for stim
ulating concerted international co-operation in such rela
tively mundane matters as fishery conservation. Efforts in
that regard would require fresh impetus and the latter would
not be generated until 1945.
(1937) 40 AIDI 93, 97
11Q Ibid 96, 128, 131, 240
Ibid 131
149
V. Conclusion
The codification efforts, both private and government

al, undertaken in the late 19th and early 20th centuries
must be judged failures insofar as they did not result in
the formulation of a legal regime to regulate marine fish
eries. Nevertheless, they did throw valuable light on the
state of the law at the time in three main respects, each of
which being noteworthy in this conclusion to the review of
the early period in the evolution of international fishery
law.
First, the 1930 Conference proceedings reveal that the
disparate views of States that had developed during the 19th
century continued to be strongly espoused. Because the
three-mile co-terminous territorial sea and fishery limit
had become the most clearly distinguishable single position
adopted by States, those holding that position argued that
the latter was, in fact, 'the law'. On the other hand, a
second group of States considered that the territorial sea
might extend beyond three miles and that the latter's limits
were not necessarily identical to those over which fishery
jurisdiction might be exercised. This second group of
States included those primarily concerned with protecting
littoral fishery resources for their coastal populations.
While the former group of States, mainly comprising major
maritime nations, refused to countenance any alternative to
their own view, States in the latter group refused to sur
render what rights they claimed to already possess. Under
those conditions it was impossible to either codify or de
velop the law by means of a general convention. States had
no recourse but to continue to rely on unilateral measures
to safeguard their own fishery interests, and the negotia
tion of disputes on a case by case basis.
Secondly, the deliberations of the IDI and ILA both be
fore and after the 1930 Hague Conference reveal that the
science of international law had not as yet identified clear
principles relating to marine fishery conservation. Whereas
150
in earlier times natural law would have allowed scholars to
advance principles a priori, 19th and 20th century positiv
ism demanded a posteriori identification of normative prin
ciples based on assessment of State practice. When the lat
ter proved inconsistent, jurists had no alternative but to
acknowledge the legal vacuum, wait for the situation to be
come clarified, and call for further study of the jurispru
dential basis of fishery jurisdiction and conservation.
Finally, and on a more positive note, the discussions
reviewed above indicate a growing awareness on the part of
governments and scholars alike, that the formulation of an
efficacious legal regime governing fisheries would require
not only consideration of possible new legal prescriptions
and the accommodation of multifarious national interests,
but also a better understanding of biological, economic and
other non-legal factors affecting the availability and con
dition of the resource itself. No longer was a satisfactory
solution to fishery problems to be found simply in agreement
on territorial sea delimitation. Arriving at that solution
would be a far more complicated process, and it is to a
study of the latter that we now turn.
PART TWO:
THE M I D D L E PERIOD; R E C O G N I T I O N OF C OASTAL STATE

’SPECIAL INTE RE ST * IN FISHE R I E S
C.HAPTER.__.FOUR
THE RAC E JFO_R___OFjLSHQBE_O.SHERIE.S_BjgGO^jS_JCN_JEARNE^T-L

THE ._TR Q MAN_Itl.S_HE R,I_E,S..,„,P,R,Q_C^
The origin of the crisis in the law of the sea with regard to fisheries is to be found
in the Proclamations by President Truman (28 September 1945)
Judge de Castro1
I- Introduction
In many ways, World War II marked the end of one era in

human history and the beginning of another. A kaleidoscope
of political, social, economic and scientific/technological
developments during the global conflict impacted one upon
the other, generating over the succeeding years both a new
pattern and arena of international relations, quantitatively
and qualitatively distinct from that which had previously
existed.
Of primary importance for the present discussion were
the significant dual transformations of the world political
structure after 1945.= In the following decade, the multi
plicity of major actors that had been a feature of interna
tional society at the time of the Concert3 and even earlier,
gave way to a bipolarity as European States, weakened by the
war, coalesced behind the two superpowers, the Soviet Union
and the United States, forming two opposing blocs.
Fisheries Jurisdiction (United Kingdom v. Iceland),

Merits, Separate Opinion of Judge de Castro, I.C.J.
Reports 1974, 73, 82
See generally: J Frankel, International Relations

(1969; 2nd ed); Hoffman, supra Ch 2, n 11; H Mergen
thau, Politics among Nations: The Struggle for Power
and Peace (1978; 5th ed rev) Ch 21; F Northedge and M
Grieve, A Hundred Years of International Relations
(1971) Chs 11 and 12; and M Steinert and H Kapur, "New
configurations of power in international relations" in
International Relations in a Changing World (1977) 123-
162.
See Ch 2, nn 1-11 and accompanying text supra.

152
At the same time, and just as important, there began a
broad, horizontal expansion of international society. A re
sult of numerous inter-related factors, the parameters of
the international community at last became geographically
and politically universal as a host of poor, non-European
States began to make their appearance on the world stage as
independent entities."*
Within that evolving structure, the nature of interna
tional political relations was undergoing significant
changes as well. The termination of hostilities in 1945
signalled not a return to the classic forms of international
relations and the balance of power principle characteristic
of the previous century, but rather a further development of
the 20th century 'total war’ philosophy: the ’Cold War'.3
Although cast in ideological terms,0 the Cold War that
erupted in the early post-war period between the two super- -
Of the 63 States at one time members of the League of

Nations, 31 were of non-European origin (including nine
from Latin America)(Aufrieht, supra Ch 3, n 57, 505-
508). By 1960, out of 99 United Nations members, 35
were of non-European origin and had not previously been
members of the League (United Nations Handbook 1983
(Wellington, New Zealand; 1983) 5-6). For a useful
summary of early Afro-Asian States' participation in
international conferences and organizations see S
Sinha, New States and the Law of Nations (1967) 24-25.
Whereas in preceding centuries States sought to main

tain a balance of power amongst themselves, wars were
fought primarily for limited political or territorial
objectives, and national aspirations sought and largely
found satisfaction on the colonial frontier (see, eg,
Hoffman, supra Ch 2, n 11; and Morgenthau, supra n 2,
355-356, 358-359), the disappearance of the latter by
the early 20th century for the first time brought the
great European nations into two, face-to-face global
military conflicts in which States mobilized their to
tal resources for the purpose of achieving complete
victory over their adversaries. See also in this regard
R Aron, Les Guerres en chalne (1951); Morgenthau, supra
n 2, Ch 22; F Northedge, The International Political
System (1976) 288-291; and n 7 and accompanying text
infra.
See, eg, John Foster Dulles’ reference to ”a great ter
ror - the black plague of Soviet Communism” ("New as
pects of American foreign policy”(1950) 44 PASIL 48);
153
powers and their respective allies was, like the two ’hot
wars' before it, ultim ately a struggle for world d o m i n a n c e . 7'
a n d E K o r o v i n ' s r e f e r e n c e t o ’’t h e p o l i c y o f a g g r e s s i o n
and w a r” b e in g i n s e p a r a b l e from " c o n te m p o r a ry d e c a d e n t
c a p i t a l i s m ( i m p e r i a l i s m ) ” and "U.S. i m p e r ia li s m as th e
b u l w a r k and c e n t e r o f w o r l d r e a c t i o n ” ( " C o l d War: t h e
o ry and p r a c t i c e " ( J u n e , 1959) I n te r n a tio n a l A f f a i r s
[Moscow] 6, 1 1 ) .
N o rth ed g e (supra n 5, 290; o f, M orgenthau, supra n 2,

246) o b s e r v e s t h a t t h e
advent of total war gave rise to an increasing interpretation of the

conflict on both side as the eternal struggle between good and evil,
light and darkness, civilization and barbarism, the issues no longer con
ceived as limited ones of territory or the revision of treaties, but as
though the thing at stake was the total triuaph of the 'way of lif e ' of
one side or the other.
P i e r r e V e r g n a u d ( " L a g u e r r e f r o i d e " ( 1 9 5 8 ) 6 2 RGDIP

220-221) e x p la in s t h a t t h i s rem ained th e c a se d u rin g
t h e C o l d War:
Certes, le aonde a longtemps vecu sous une politique d'dquilibre —

dgfinie au Congr^s de Westphalia, puis reprise au Congrks de Vienne —
qui correspondait a des competitions par pesees alterndes, circonscrites
dans l ’espace, reduites dans leur objet. Mais depuis les guerres mondi
ales, s'e st developpe une politique de preponderance marquee non plus par
des tensions d’equilibre, mais par des tensions d'hegeaonie....
C f , H o f f m a n , s u p r a Ch 2 , n 1 1 , 2 2 4 ; M o r g e n t h a u , s u p r a n
2, 3 8 6 -3 8 7 ; N o rth e d g e and G r ie v e , su p ra n 2, 2 5 0 -2 5 1 ; P
P a r t r i d g e , "The c o n f l i c t o f i d e o l o g i e s ” in P a th s to
Peace (1957; V W a lla c e , ed) 89, 100; and Evan Luard
( T h e C o l d War: a R e a p p r a i s a l ( 1 9 6 4 ) 1 0 ) , who s u g g e s t s
that
It is indeed arguable that the contest has at all times been at root a
power struggle between dominant nations, for which ideological explana
tions have merely provided a convenient, and morally appealing,
rationalization. It has derived above all from apprehensions, of both
leading powers and their allies on each side, concerning their own
security, believed to be threatened by the actions of the other.
Such i s in d e e d th e a rg u m e n t o f P i t i r i m S o r o k i n
("The r e a l c a u s e s o f t h e R u ssia n -A m e ric a n c o n f l i c t "
( 1 9 4 9 ) 3 ( n . s . ) W o r l d A f f a i r s 1 1 3 , 1 2 1 ) , wh o w r i t e s t h a t
naked power politics, with its incessant conflicts is inherent in the

contemporary disintegrating world. The polarization of the basic con
flic t between Russia and the United States, with their satellites, is due
neither to the vices nor to the virtues of these nations but to their
doubtful privilege of emerging from the war as the two most powerful mil
itary forces. ...
154
Because both sides feared indiscrim inate damage that would
result from outright war, direct m ilitary engagem ents were
avoided.® N evertheless, m ilitary preparedness rem ained
high, and both sides sought to secure global p olitical, eco
nomic and strategic superiority over their opponent. In the
words of Peter F leiss, it was "war w ithout w arfare".®
An e s s e n t i a l elem ent in the developm ent of economic
power was the possession of natural resources or, if actual
possession within n a t i o n a l boundaries w a s i m p o s s i b l e , conve
nient access to them e l s e w h e r e . 10 W hile em phasis was large-
These, then, are the real reasons for the continued 'cold war'.
The prevalent explanations of i t in terms of inherent differences, or of
the 'aggressiveness' of the opposite party contrasted with the 'pure no
b ility ' of one's own party, is a mere smoke-screen hiding the ugly
realities.
S ee f u r t h e r , eg, H B orch, " P o l i t i s c h e p a r a d o x i e n des

a t o m z e i t a l t e r s " (1951) 2 A u s s e n p o litik 459; P F l e i s s ,
I n t e r n a t i o n a l R e l a t i o n s i n t h e B i p o l a r W orld (1 9 6 8 ) 6 2 -
64; H K i s s i n g e r , " F o rc e and d ip lo m ac y i n t h e n u c l e a r
a g e " ( A p r i l , 1956) 34 F oreign A f f a i r s 349; M o rg e n th a u ,
s u p ra n 2, 1 2 6 -1 2 8 ; N o r t h e d g e , su p ra n 5, 2 9 2 - 2 9 3 ; and
N o rth e d g e and G r i e v e , su p ra n 2, 255.
F l e i s s , supra n 8, 64. This s t a t e of world a f f a i r s b e

came l a b e l l e d ' p e a c e f u l c o e x i s t e n c e ' . Of t h e v o l u m i
nous l i t e r a t u r e on t h e s u b j e c t s e e , i n p a r t i c u l a r , G
Keenan, " P e a c e fu l c o e x is te n c e : a W estern view" (Jan u
a r y , 1960) 38 F o r e ig n A f f a i r s 171, and N K h r u s h c h e v ,
"On p e a c e f u l c o e x i s t e n c e " ( O c t o b e r , 1 9 5 9 ) 3 8 F o r e i g n
A f f a i r s 1. F o r l e g a l d i s c u s s i o n s o f t h e te rm s e e , eg,
E McWhinney, " P e a c e f u l c o e x i s t e n c e and S o v i e t - W e s t e r n
i n t e r n a t i o n a l l a w " ( 1 9 6 2 ) 56 A JIL 9 5 1 , and G T u n k i n ,
" C o - e x i s t e n c e a n d i n t e r n a t i o n a l l a w " ( 1 9 5 8 ) 9 5 RDC 1 .
In 1952, eg, t h e U n i t e d S t a t e s ("A m a t e r i a l s p o l i c y f o r

the U nited S ta te s : Report of the P r e s id e n t's In te rn a
tio n a l M aterials P o l i c y C o m m is s io n " ( J u l y 14, 1952) 27
DCSB 5 4 , 5 5 , 5 7 ) argued th a t
There is a Materials Problem of considerable severity affecting the

United States and the industralized nations of Western Europe. Unless
the problem is effectively met, the long range security and economic
growth of this and other free nations will be seriously impaired....
The report emphasizes that 'there is no such thing as a purely
domestic policy toward materials that a ll the world must have; there are
only world policies that have domestic aspects’. The Commission states
its conviction that if the United States and other free nations are, in
the years ahead, to enjoy economic growth and national security 'they
must coordinate their resources to the end of common growth, common
safety and common welfare’.
155
ly on important strategic minerals,11 food resources were
not neglected, and many nations gave considerable attention
to the development of the latter, including marine fisher
ies.12 As a result of government assistance, increased ef
fort, and improved technology,13 the estimated world catch
of living marine resources (excluding whales) increased from
20 million tons in 1947 to approximately 34 million tons in
1960 (see Table 3).1'* During the 1960s, the six largest
producers (the Republic of China, Japan, Norway, the Soviet
Union, the United Kingdom, and the United States) accounted
for approximately half that total.13
By and large, the newly-independent Afro-Asian States
sought to remain outside the Cold War tussels, stressing in
stead outstanding problems of colonialism and the need to
strengthen their own political and economic positions vis-a-
vis the more industrialized States.10 Like the latter,
See, eg, ibid 56.

See, eg, annual issues of SOFA for details, particu
larly that of 1956, which reviews the fishery develop
ment activities of a number of major fishing nations.
For a discussion of food as an element of national
power see, eg, Morgenthau, supra n 2, 120-122, and J
Aviel, Resource Shortages and World Politics (1977) Ch
4.
Technical developments included improved trawl design,

the introduction of faster fishing vessels with greater
cruising radius, the use of electronic echo sounders to
detect schools of fish, and better methods of fish pro
cessing (J Dugan, "Behind the global ’fish war'” (21
September 1958) The New York Times Magazine 22, 23;
SOFA 1948, 178, and SOFA 1958, 135).
SOFA 1956, 100; and S Holt, "Marine fisheries"(1978) 1

Ocean Yearbook 38, 41
SOFA 1956, 100

i e.
As concrete expressions of these aspirations see, eg,
the various resolutions and declarations of the 1955
Bandung Conference of Asian and African States (Kee-
sing's Contemporary Archives (May 7-14, 1955) 14181-
14185).
By way of explanation, Pierre Hassner ("Le 'Sys
teme international’ et les nouveaux Etats" in La Com-
munaute internationale face aux jeunes Etats (1964; J-3
TABLE 3: WORLD MARINE CATCHES
A. ANNUAL CATCHES IN MILLIONS MT
T o ta l, e x c lu d in g F ish a n d S h e llfish , A nnual

T o ta l W h ales E x c lu d in g A n c h o v e ta % In c re a s e
1938 .............. . . . . 2 1 .9 18.8 18.8

1948 .............. . . . . 19.8 17.7 17.7
1950 .............. . . . . 2 0 .7 18.6 18.6
1955 .............. . . . . 2 7 .7 2 5 .5 2 5 .4 4.1
1956 .............. . . . . 2 9 .3 2 7 .0 2 6 .9 5.9
1957 .............. . . . . 2 9 .7 2 7 .5 26 .7 - .7
1958 .............. . . . . 3 0 .3 2 8 .0 2 7 .2 1.9
1 959 .............. . . . . 3 3 .8 3 1 .5 2 9 .5 8 .5
1960 .............. . . . . 3 6 .2 3 3 .9 3 0 .4 3.1
1961 .............. . . . . 3 9 .4 3 7 .0 3 1 .7 4.3
1962 .............. . . . . 4 2 .3 40.1 3 3 .0 4.1
1963 .............. . . . . 4 3 .1 4 1 .2 3 4 .0 3 .0
1964 .............. . . . . 4 7 .2 4 5 .4 3 5 .6 4 .7
1965 ............ . . . . 4 7 .3 4 5 .6 3 7 .9 6 .5
1 966 .............. . . . . 5 0 .7 4 9 .4 3 9 .8 5 .0
1967 ............ . . . . 5 3 .9 52 .7 4 2 .2 6 .0
1968 ............ . . . . 5 6 .9 5 5 .9 4 4 .6 5.7
1969 .............. . . . . 5 4 .4 5 4 .4 4 4 .7 .2
1970 ............... . . . 6 1 .9 6 0 .9 4 7 .8 6 .9
1971 .............. . . . . 6 1 .9 6 1 .0 4 9 .8 4.2
1972 ............ . . . . 5 6 .9 5 6 .2 5 1 .4 3.2
1973 ............ . . . . 5 7 .4 5 6 .7 5 4 .7 6.4
1974 ............ . . . . 6 0 .9 6 0 .4 5 6 .4 3.1
1975 ............ . . . . 5 9 .6 5 9 .3 5 5 .8 - 1 .1
B. AVERAGE ANNUAL % INCREASE
T o ta l, e x c lu d in g A nnual
T o ta l W h a le s % In c re a s e
1 9 5 0 -5 5 . . . ......... 5 .7 6.2 6.2

1 9 5 5 -6 0 . . . ____ 5 .8 5 .9 3.7
1 9 6 0 -6 5 . . . ____ 5 .5 6.1 4 .5
1 9 6 5 -7 0 . . . ____ 5 .5 6 .0 4 .7
1 9 7 0 -7 5 . . . ____ - .8 - .5 3.1
1 9 5 0 -7 5 . . . ......... 4 .3 4.7 4 .5
Source: Sidney Holt, "Marine Fisheries" (1978) 1 Ocean Yearbook 38-

-83, at 41
156
T hird W orld S t a t e s too recognized the im portance of n a tu r a l
resources for th e enhancem ent of t h e i r econom ic power and
set about fo rm u latin g v ario u s strateg ies for th e developm ent
of th e ir resource-based i n d u s t r i e s , 1"7 i n c l u d i n g th e ir gener
ally in ch o ate fish in g i n d u s t r i e s . 13
G iven th e in tim ate relatio n sh ip betw een th e natu re of
in tern atio n al so ciety and t h e ru les governing its opera-
D u r o s e l l e and J M e y r i a t , ed s)[h ereafter cited 'S y s

te m e '] 11, 1 6 -1 7 ) w r i t e s th at,
Preincrement, en effet, les pays nouvelleaent independants as-

pirent au non-alignement__
DeuxiCieaent, leur position par rapport aux deux blocs n’est pas
determinee au premier chef par la relation de ces deux blocs - ou par la
guerre froid elle-ieae; ils sont nationalistes ou anticolonialistes avant
d’etre neutralistes, et tres souvent, ils sont ceci parce qu'ils sont
cela. Dans cette mesure, leurs reactions aux probleaes de la guerre
froide sont subordcnnCes aux incidences de ceux-ci sur les problCmes du
colonialisme. Des lors, la 'relation de tension majeure' par laquelie
ils se dlfinissent n'est pas pour eux la relation Est-Ouest, mais ce
qu'on commence Na appeler la relation Nord-Sud.
C f , eg, S G u p ta , " G r e a t power r e l a t i o n s and t h e T h ir d

W orld" i n S u p e r P ow ers and W orld O rder (1971; C H o l-
b r a a d , e d ) 1 0 5 ; L Hamon " N o n - e n g a g e m e n t e t n e u t r a l i s m e
des nouveaux E t a ts " in Les Nouveaux E t a ts dans l e s r e
l a t i o n s i n t e r n a t i o n a l e s (1962) [ h e r e a f t e r c i t e d ’Nou
v e a u x E t a t s ' ] 3 5 3 , 4 3 6 - 4 3 7 ; K K n o r r , The Power o f N a
t i o n s : t h e P o l i t i c a l Economy o f I n t e r n a t i o n a l R e l a t i o n s
(1 9 7 5 ) 2 2 7 -2 3 6 ; M M u sh k at, "The A f r i c a n a p p r o a c h t o
some b a s i c p r o b le m s o f i n t e r n a t i o n a l law " (1 9 6 7 ) 7 I J I L
3 3 5 , 3 3 9 -3 4 1 ; F P a r k i n s o n , "Bandung and t h e u n d e r d e v e l
o p e d c o u n t r i e s " ( 1 9 5 6 ) 10 YWA 6 5 , 6 6 - 6 7 ; a n d J - L Q u e r -
monne, "Les e n g a g e m e n ts i n t e r n a t i o n a u x d e s no u v eau x
E t a t s " i n N ouveaux E t a t s , su p ra t h i s n, 323, 352.
R e f l e c t i n g t h i s t r e n d , t h e R e s o l u t i o n o n E c o n o m i c C o
o p e r a t i o n o f t h e 1955 A s i a n - A f r i c a n C o n f e r e n c e ( s u p r a n
16, 14133) i n t e r a l i a , "recom m ended t h a t A s i a n - A f r i c a n
c o u n t r i e s s h o u l d d i v e r s i f y t h e i r e x p o r t t r a d e by p r o
c e s s i n g t h e i r raw m a t e r i a l s w h e n e v e r e c o n o m i c a l l y f e a
s ib le before e x p o r t..." . S ee a l s o on t h i s p o i n t F a -
t o u r o s , s u p r a I n t r o d u c t i o n , n 24, 7 9 5 -7 9 6 , and S i n h a ,
s u p r a n 4 , C hs 2 a n d 3 .
X 3
S e e , eg, M F r a n k , " F i s h e r i e s o f S o u th A m e r i c a " (March
2 5 , 1 9 4 4 ) F o r e i g n C o m m e r c e W e e k l y 8 ; R M o r g a n , "Some
c o m p a r a t i v e a s p e c t s o f w o r l d s e a f i s h e r i e s " ( 1 9 5 1 ) 36
G eography 111, 116; B O s o r i o - T a f a l l , " B e t t e r u t i l i z a
t i o n o f f i s h e r i e s r e s o u r c e s i n L a t i n A m erica" (1951) 4
FAO F i s h e r i e s B 3 , 6 - 7 , 1 1 , 2 3 ; a n d SOFA 1 9 5 6 , 1 2 5 .
157
t i o n , 1^ i t is not su rp risin g th at the fundam ental tran sfo rm
atio n s ex p erien ced in both th e stru ctu re and f u n c t i o n i n g of
th at so ciety in th e e a rly and m i d - t w e n t i e t h cen tu ry o u tlin ed
above le d to what num erous w r i t e r s describ ed as a 'c r is is '
in in tern atio n al law , both as a system or c o lle c tio n of
ru les b i n d i n g members o f in tern atio n al so ciety and as a sci
e n c e . 20 On o n e s i d e sto o d th e m ajor W estern S t a t e s , con
cerned w ith the w i n n i n g o f t h e C o l d War a n d , tow ards th a t
g o al, th e need to m ain tain th e sta tu s q u o a s much a s p o ssi
b le concerning th e co n ten t of tra d itio n a l norms o f i n t e r n a
tio n al law t h a t th e y had d e v e lo p e d over th e cen tu ries in or
der to p ro tect th eir m u ltifario u s g lo b al in terests, and th e
degree of c o n tro l they ex ercised o v e r t h e m anner i n w hich
norms w e re f o r m u l a t e d . P itted ag ain st them w e re t h e oth er
p ro tag o n ists o f t h e C o ld War, t h e Com m unist S t a t e s , p articu
larly th e S o v i e t U nion (at least in th e e a r ly years), as
w ell as T hird W orld S t a t e s , many o f t h e la tte r only r e c e n tly
having g a in ed independence. W hile r e c o g n i z i n g both th e po-
S e e , eg. In tro d u ctio n , tex t a c c o m p a n y i n g nn 2 2 f f supra.
S e e , eg, A b i-S a a b , s u p r a I n t r o d u c t i o n , n 36, 102; K unz,

s u p r a I n t r o d u c t i o n , n 2 4 , 4 8 8 ; L i s s i t z y n , s u p r a Ch 2 , n
1 4 , 1 0 ; H S m i t h , T h e C r i s i s i n t h e Law o f N a t i o n s
(1 9 4 7 ); J S to n e , " A f r o - A s ia n n a t i o n s and i n t e r n a t i o n a l
l a w " i n O f Law a n d N a t i o n s ( 1 9 7 4 ) 3 4 9 , 3 5 7 ; S y s t e m e ,
s u p r a n 17, 39; and G van d e r M olen, "The p r e s e n t c r i
s i s i n t h e law o f n a t i o n s " i n S y m h o la e V e r z i j l (1958)
238 .
A ccording to P r o f e s s o r R ichard F alk ( " H i s t o r i c a l
t e n d e n c i e s , m o d e r n i z i n g and r e v o l u t i o n a r y n a t i o n s , and
t h e i n t e r n a t i o n a l l e g a l o r d e r " (1 9 6 2 ) 3 Howard L J 128,
131) ,
A transitional crisis in international law is an aspect of the larger

crisis [in international society], and finds itself fully involved in the
transformation and the obstacles to its achievement. The dilemma of
transformation stands over and above the perception of transitional cri
sis which we find describes most accurately the current status of inter
national law.
In a s i m i l a r b u t som ew hat more c o n s e r v a t i v e s t a t e

m ent, F i t z m a u r i c e ( s u p r a P r e f a c e , n 3, 214) w r i t e s t h a t
" [ i ] t i s from g ro w in g p a i n s r a t h e r t h a n any f u n c t i o n a l ,
s t i l l l e s s o r g a n i c d i s o r d e r t h a t t h e i n t e r n a t i o n a l com
m unity i s s u f f e r i n g in th e l e g a l f i e l d " .
153
ten tial of international law to protect the weaker members
of that society as w ell as the validity of many traditional
norms, w ith some ju stificatio n they considered numerous
other legal principles to be sim ply outdated m echanism s es
tablished by the older, European States to preserve the la t
te r's privileged political and economic p o s i t i o n . 21 Since
those principles were no longer seen as conform ing to the
real state of international society they were unacceptable,
and revisions of both specific norms and the law -m aking pro
cess were d e m a n d e d .22
A ccording to Professor Stone (supra n 20, 352),
even as among the older States who were already legal actors in 1939 [the
date he chooses for reference to 'traditional' international law ] aany
of the rules reflected the interests of the stronger States rather than
those of the community generally. ...The rules concerning territo rial
waters and the high seas favoured the great maritime nations, who of
course also included the major naval Powers. And they naturally favoured
the interests of the metropolitan territories of these States rather than
of their colonial possessions.
Cf, L G r e e n , " T h e i m p a c t o f t h e new S t a t e s on i n t e r n a

t i o n a l law" (1969) 4 I s r a e l L R 27, 39; H o lin g , supra
Introduction , n 26, x i ; and S i n h a , supra n 4, 2 3 -2 4 .
S e e a l s o Ch 2 , n 14 a n d a c c o m p a n y i n g t e x t s u p r a .
S in h a 's p e r s p e c tiv e (ib i d 26-27) is t y p ic a l of that of

many T h i r d W orld S t a t e s on t h e s u b j e c t :
the States of Asia and Africa.. .question some of [international law's]

premises, and they are keen to have their say in its future development
or, wherever necessary, in its revision. ...
[T]his attitu d e.. .derives from the fact that the economic condi
tions, the structure of social relations, and the interests for which
these rules were developed are different from those of the new states.
The new states are critical of some of the norms and institutions of tra
ditional international law...as having been created by colonialist powers
of Europe in order to promote their own interests. Consequently, they
are also critical of the bases of international law which uphold these
norms and institutions and to which they never gave their consent.
...International law, for [the new states] must become an instrument of
transformation of the status quo, which originated in inequality.
...They do not find all traditional rules of international law adequate
for the purpose of achieving their national interests.
The a p p r o a c h o f t h e S o v i e t U nion t o traditional

i n t e r n a t i o n a l la w was e x p r e s s e d i n s i m i l a r term s. Pro
f e s s o r G re g o ri Tunkin ("The S o v ie t Union and i n t e r n a
t i o n a l l a w " (N ovem ber, 1959) I n t e r n a t i o n a l A f f a i r s [Mos
cow] 4 0 , 41) w r i t e s t h a t R u s s i a " r e f u s e d to recognise
159
Of primary importance for present purposes was the
struggle that developed immediately after World War II be
tween the major, Western maritime Powers, led by the United
States, and numerous, economically weak States, led by sev
eral in Latin America,33 concerning the legal regime govern
ing the territorial sea and marine resources, especially
fisheries.3-*- The former States were increasingly keen to
secure legal rights to both living and non-living resources
in littoral waters while simultaneously safeguarding their
other strategic and global interests in more distant seas
through a vigorous defence of the traditional law of the
sea. Third World States, on the other hand, had more paro
chial concerns, being interested almost exclusively with re
sources off their own coasts. Following the War, however,
reactionary rules of International Law which were an expres

sion of colonial oppression and domination. The Soviet
Union never rejected democratic principles and rules."
Latin American States, although originally of European

descent, are widely included within the classification,
'Third World', or 'new States' because of their general
level of economic development (c f , R Falk, "The new
States and international legal order” (1966) 118 RDC 1,
19-20; Fatouros, s u p r a Introduction, n 24, 734); W
Friedmann, "Half a century of international law"(1964)
50 V i r g i n i a L R 1333, 1335; and Parkinson, s u p r a n 17,
65) .
Parkinson ( i b i d 66-67, 73) points out that, gener
ally, Latin American States were active from an early
stage in seeking to improve their international econo
mic position; while Friedmann ( s u p r a this n, 1334-1335)
notes that the Calvo clause and the Drago doctrine of
Latin American States that appeared earlier in the 20th
century
were not so auch expressions of any specific 'Latin Aaerican' approach to

international law, but the first expressions of revolt of the economical
ly under-deveioped states against the use of international law on behaif
of the dominant and economically developed nations.
C f , Anand, s u p r a Ch 2, n 14, 391; and Green, s u p r a n

21, 33.
2 -4 -
On the importance of this topic for Third World States
see generally, Fitzmaurice, s u p r a Preface, n 3, 215,
217-219; Friedmann, s u p r a n 23, 1344-1346; Jennings,
s u p r a Ch 2, n 137, 380-386, 408; and Sinha, s u p r a n 4,
113-120.
160
the latter States found themselves facing a situation in
which the major fishing nations recognized only narrow ter
ritorial seas and interpreted the freedom of the sea princi
ple in broad terms. With previous codification efforts hav
ing failed, and lacking institutional means to achieve a
general and immediate recognition of a revised legal regime
to govern marine fisheries that more adequately met their
particular interests, many States asserted unilateral claims
to offshore resources that were to have profound consequen
ces in future. While an exhaustive review of those claims
is beyond the scope of the present work, it is useful to be
gin consideration of the middle period in the law’s develop
ment by focussing on a number of the most important claims,
as well as the disputes they subsequently generated.2=5 Iron
ically, in light of subsequent events, the inspiration for
most, if not all, later claims is to be found in actions
taken by the United States.
For more detailed consideration of the broad interna

tional context in which the law developed see, eg, the
works cited supra and the following: Abi-Saab, supra
Introduction, n 36; Anand, supra Ch 2, n 14; Castafieda,
supra Ch 2, n 14; J-P Colin, ”Le röle des Etats nou-
veaux dans les transformations de droit international"
(1974) 1 Annales Africaines 11; L Henkin, How Nations
Behave: Law and Foreign Policy (1979; 2nd ed) Chs 5 and
6; Lissitzyn, supra Ch 2, n 14; Holing, supra Introduc
tion, n 26, Ch 5; M Sahovic, "Influence des Etats nou-
veaux sur la conception du droit international: inven-
taire des positions et des problemes" (1966) 12 AFDI
30; S Sinha, "Perspectives of the newly independent
States on the binding quality of international law"
(1964) 14 ICLQ 121; and Q Wright, "The influence of the
new nations of Asia and Africa upon international law”
(1958) 7 Foreign Affairs Reports [New Delhi] 33.
161
II. The Truman Proclamations
A- The Development of United States Policy on Marine

Resource Jurisdiction
1- The Fisheries Proclamation
The American interest in maintaining a three-mile limit
for the exercise of marine resource jurisdiction exhibited
in the 19th and early 20th centuries began to wane during
the presidency of Franklin D Roosevelt. Stimulated by fish
ery disputes with Japan and encouraged by domestic fishery
interests T 6 Roosevelt in 1937 echoed arguments advanced by
Portugal at the Hague Conference seven years earlier in di
recting his officials to study the possibility of adopting a
new policy safeguarding offshore salmon fishing in Alaska.
That policy was to be based, said Roosevelt, "on the fact
that every nation has the right to protect its own food sup
ply in waters adjacent to its coast...".2-7
With the outbreak of World War II and the consequent
elimination of the immediate problem of policing Alaskan
fisheries, official attention was diverted to other areas.
In 1943, however, Harold Ickes, the then American Secretary
of the Interior, wrote to Roosevelt, arguing that as the war
had shown the importance of augmenting the nation's natural
resources, it was necessary to exploit fully the resources
of the continental shelf and superjacent waters. He acknow
ledged that "in the international field, it may be necessary
to evolve new concepts of maritime territorial limits beyond
three miles".2® Roosevelt quickly endorsed Ickes' proposal
to study the idea, commenting that he had long felt "that
For a detailed discussion of this point see A Hollick,

U. S. Foreign Policy and the Law of the Sea (1981)
[hereafter cited 'Foreign Policy ’] 20-28, and Leonard,
supra Ch 2, n 92, 121-136.
M Whiteman, e d . Digest of International Law (1965) iv,

945; cf, text accompanying n 86, Ch 3 supra.
2 Q
Ibid 946-947
162
th e o ld th re e -m ile l i m i t . . . s h o u ld be su p e rc e d e d by a ru le of
com m on s e n s e " . 2 9
On 3 1 M a rc h 1945, R o o s e v e lt a p p ro v e d th e fo llo w in g
fis h e ry p o lic y :
In view of the pressing need for conservation and protection of fisheries re
sources, the...United States regards it as proper to establish conservation zones in
those areas of the high seas contiguous to the coasts.. .wherein fishing activities
have been or in the future aay be developed and aaintained on a substantial scale.
Where such activities have been developed and aaintained by its nationals alone, the
United States regards it as proper to establish explicitly bounded conservation zones
in which all fishing activities shall be subject to the regulation and control of the
United States and may when conditions warrant be liaited to the United States. Where
such activities have been legitiaately developed and aaintained by nationals of other
states, explicitly bounded conservation zones aay be established under agreeaents be
tween the United States and such other states; and all fishing activities in such
zones shall be subject to the regulation and control of, and stay when conditions war
rant be liaited to, the United States and such other states. The right of any state
to establish conservation zones off its shores in accordance with the above principles
is conceded, provided that corresponding recognition is given to any fishing interests
of nationals of the United States which aay exist in such areas. The character as
high seas of the areas in which such conservation zones are established and the right
to their free and uniapeded navigation are in no way thus affected.3 0
As fram ed, the Proclam ation sought to protect American

coastal and distant-w ater fishing interests w hile m aintain
ing traditional navigation f r e e d o m s . 31 From a legal per-
I b id 947. A ccording to H o llic k ("U .S. oceans p o lic y :

t h e T r u m a n p r o c l a m a t i o n s ” ( 1 9 7 6 - 1 9 7 7 ) 17 V J I L 2 3 [ h e r e
a f t e r c i t e d ’ O c e a n s P o l i c y ' ] , 3 5 ) a n d D W a t t ( ’’F i r s t
step in the en clo su re of the o c e a n s: the o rig in s of
T ru m an 's p r o c l a m a t i o n on r e s o u r c e s o f t h e c o n t i n e n t a l
s h e l f ” (1979) 3 M arine P o l ic y 211, 2 1 6 -2 1 7 ), R o o s e v e lt
u l t i m a t e l y a c c e p te d th e p o p u la r view t h a t th e Ja p a n e s e
had b een f i s h i n g f o r sa lm o n o f f A la s k a d e s p i t e J a p a n e s e
a s s u r a n c e s to t h e c o n t r a r y and la c k o f p o s i t i v e e v i
dence s u b s ta n tia tin g the a lle g a tio n s .
Memorandum by t h e A c t i n g S e c r e t a r y o f S t a t e and t h e
S e c re ta ry of th e I n t e r i o r (Ickes) to P re s id e n t Roose
v e l t , 2 2 J a n u a r y 1 9 4 5 , i n FRUS ( 1 9 4 5 ) i i , [ h e r e a f t e r
c i t e d ' G r e w / I c k e s ' Memorandum'] 1490 ( e m p h a s is added)
F o r e ig n P o l i c y , s u p r a n 2 6 , 4 7 . Rear Adm iral Claude

R i c k e t t s a n d L t ( J G ) S t a n l e y B e c k o f t h e US N a v y w r o t e
i n 1956 ("F reedom o f t h e s e a s , t h e t e r r i t o r i a l s e a , and
t h e d o c t r i n e o f t h e c o n t i n e n t a l s h e l f " ( J u n e , 1 9 5 6 ) J AG
J 3, 4) t h a t
153
spective, the adoption of the policy was seen by United
States officials as "a new step forward in the development
of international law, but... believed to be a reasonable and
logical development of existing general principles rather
than an action at variance with accepted international law
standards... ” .33
To facilitate consultations with foreign governments,
an "Explanatory Statement on the Protection and Conservation
of Coastal Fisheries” was prepared by the State Department’s
Office of the Legal Adviser. The Statement listed five con
clusions reached by the Government. First, littoral fisher
ies were economically significant for coastal populations
and industries. Secondly, technological developments had
led to intensified exploitation and threatened depletion of
resources. The result was "a clear need...for an improved
basis for the regulation and protection of fisheries in the
high seas contiguous to the coasts".33 Thirdly, equity and
justice require that resources increased through "systematic
conservation and self-denying restricted utilization" by the
coastal State should be protected and reserved from destruc
tive exploitation by others.3-*- Fourthly, because fishery
resources are so varied, regulation must be undertaken on a
regional basis "with due regard to the special rights and
equities of the coastal state and of any other state which
The United States is a maritime nation. The role of our Navy in keeping
the seas free for international commerce must not 'De underestimated.
Moreover, the interest of the United States as a member of the family of
nations in preserving the peace is best served by affording maximum free
dom and range to warships and aircraft of the U.S. Navy.
Memorandum prepared by William W Bishop, Attorney, Of

fice of the Legal Adviser, and Eugene Dooman, Office of
Assistant Secretary of State Dunn, 3 July 1945, for
Secretary of States James F Byrnes; in Whiteman, supra
n 27, 954
Memorandum by the Assistant Chief of the Division of

British Commonwealth Affairs (Parsons) [Annex 1], 26
April 1945, in FRUS, supra n 30, 1495, 1496-1497
[hereafter cited ’Parsons’]
Ibid
164
has participated in the fishery...".33 And finally, region
al regulations must apply to all those exploiting the fish
ery and "should be made among the states whose continued use
of or relative proximity to the affected resources give them
the interest and intimate knowledge necessary for wise and
effective control...".3S
The policy, it was explained, rested on the premise
that reasonable and just bases for the exercise of fishery
jurisdiction in high seas contiguous to the coastal State
may be found in four factors: proximity of the fisheries to
the coast; development and maintenance of substantial fish
ing activities by the State’s nationals; the absence of such
activities by States other than those proposing to exercise
authority; and the existence of, or need for, conservation
measures in the area in question.37'
As for the possibility of limiting fishing in certain
circumstances,30 the Explanatory Statement observed that it
was not envisaged "that the establishment of conservation
zones under [the] policy [would] effect any general exclu
sion from all such zones of all fishing enterprises of na
tionalities other than of the United States and other states
establishing the zone".30 Similarly, it guaranteed that
” [u]nder the policy the rights of all states which have
taken any substantial part in the fishery are preserved".'*0
The Statement concluded by confirming that high seas
freedoms in the conservation zone "other than fishing would
remain unaffected", and that the adoption of the proposed
measures was "not to be regarded as in conflict with the
general principles of international law, and especially
Ibid
Ibid. Cf, Ch 3, text accompanying nn 31 and 86 supra.
Ibid 1498
Parsons, supra n 38, 1498
Ibid 1499
165
those rules relating to navigation and other aspects of the
freedom of the seas” .41
With the death of Roosevelt, it was left to his succes
sor, President Truman, to enunciate the new American policy.
In the six months interval between the initial approval of
the policy by Roosevelt and its announcement by Truman, the
United States consulted 12 foreign governments, seeking
their support,42 Only Cuba and the United Kingdom responded
substantively, although Canada informally indicated her
position. Cuba alone supported the American proposal, her
endorsement nevertheless being contingent upon accommodation
of Cuban fishing interests in established zones.43
The British were far more cautious. They considered it
reasonable that a State which had alone been responsible for
the development of a high sea fishery had a right to expect
others to conform to measures required to keep the fishery
in satisfactory condition. They also agreed that fisheries
should be regulated regionally rather than globally. How
ever, the United Kingdom strongly preferred emphasis placed
on the principle of the three-mile territorial limit and in
ternational rather than national control of fisheries beyond
Ibid
Canada, Mexico, the Soviet Union and the United Kingdom

were informed of both the fisheries and continental
shelf policies (see n 57 and accompanying text infra).
Cuba, Denmark, France, Iceland, the Netherlands, Norway
and Portugal only received notice of the fisheries po
licy (Memorandum by Mr Eugene H Dooman, Special Assis
tant to the Assistant Secretary of State (Dunn), to Mr
William Phillips, Special Assistant to the Secretary of
State, 15 June 1945, in FRUS, supra n 30, 1510). New
foundland, which did not have a mission in Washington,
was sent copies (Memorandum of Conversation, by Mr Eu
gene H Dooman, Special Assistant to the Assistant Sec
retary of State (Dunn), 9 May 1945, in ibid 1504, n
47). Cf, Memorandum by the Deputy Assistant Secretary
of State (Thorp) to the Secretary of State, 17 August
1945, in ibid 1525 [hereafter cited 'Thorp']. New
foundland became a province of Canada on 31 March 1949.
The Cuban Charge (Baron) to Mr Eugene H Dooman, Special

Assistant to the Assistant Secretary of State (Dunn),
19 June 1945, in ibid 1513
166
that distance. They feared that the American approach, al
though perhaps appropriate in the Western Hemisphere, might
sow confusion in European fisheries and encourage coastal
States to assert exclusive fishery rights to the detriment
of British interests. The United States was therefore re
quested to redraft the policy statement excising any refer
ence to limiting zones to certain States and adding words
restricting the policy to the Americas.44 The British were
advised that the matter had gone too far to consider amend
ing the policy statement as proposed, although it was
thought that appropriate clarification could be included in
a press release that would accompany the Proclamation.455
Although Canada and Newfoundland had "contributed mate
rially in the formulation of the statement on f isheries ,"4,s
they too had grave misgivings about the American approach.
Canada felt that while greater control was required over ma
rine fisheries beyond the three-mile limit, it should be
achieved through international agreement rather than unila
teral action. Anticipating future developments, Canada
warned that the United States might face trouble when other
countries adopted similar policies.4-7.
In spite of the comments and reservations expressed by
the United Kingdom and Canada, Truman signed the fisheries
proclamation on 28 September 1945.49 Following closely the
Correspondence from the Counselor of the British Embas

sy (Wright) to Mr Eugene H Dooman, Special Assistant to
the Assistant Secretary of State (Dunn), dated 13 June
and 4 July 1945, in ibid 1512, 1513, 1516 and 1517
Memorandum of Conversation, by Mr Eugene Dooman, Spe

cial Assistant to the Assistant Secretary of State
(Dunn), 5 July 1945, in ibid 1518
Letter from the Secretary of State to the Secretary of

the Interior, 19 December 1944, in ibid 1488-1489
Unpublished memorandum from Francis A Linville (Com

modities Division) to Mr Kennedy (CD) and Mr Wilcox
(International Trade Policy), 27 July 1945, describing
conversation with Dr Finn, Canadian Deputy Minister of
Fisheries; quoted in Foreign Policy, supra n 26, 59-60
167
p o licy earlier approved by R o o s e v e l t and th e com panion Ex
p lan ato ry S tatem en t, The P r o c l a m a t i o n stressed th e im por
tan ce of p ro tectin g and p erp etu atin g fish ery resources con
tiguous to A m erican co asts and im p roving th e ju risd ictio n al
b asis for co n serv atio n m easures and in tern atio n al co-opera
tio n in th at regard, b earing in m ind p articu la r reg io n al
co n d itio n s. It n o ted th e "sp ecial im p o rtan ce" of fish erie s
to co astal com m unities as a source of liv elih o o d and to th e
n a tio n 's food and in d u strial resources. A fter assertin g
"th e sp ecia l rig h ts and e q u i t i e s of th e co astal S tate" and
acknow ledging th o se "of any o th e r S tate w h i c h may h a v e e s
ta b lish ed a le g itim ate i n t e r e s t ” in th o se fish erie s, the
P ro clam atio n d eclared th a t:
Where such activities have been or shall hereafter be developed and maintained by its
nationals alone, the United States regards it as proper to establish explicitly
bounded conservation zones in which fishing activities shall be subject to the regula-
N o t a l l b r a n c h e s o f t h e US G o v e r n m e n t w e r e i n f a v o u r o f
th e co u rse u ltim a te ly adopted. In 1944, f o r exam ple,
t h e O f f i c e o f Econom ic A f f a i r s o f t h e S t a t e D e p a rtm e n t
e x p r e s s e d t h e view t h a t " s o s i g n i f i c a n t a d e p a r t u r e
fro m p a s t p r a c t i c e s u n d e r t h e law o f n a t i o n s c a n n o t be
w h o l l y s e p a r a t e d from t h e m eth o d by w h ic h i t m i g h t be
p u t i n t o e f f e c t " . The c o u r s e p r o p o s e d , t h e O f f i c e a r
g u e d , m ig h t " l e a d t o m i s u n d e r s t a n d i n g , s u s p i c i o n , and
o p p o s i t i o n on t h e p a r t o f many o t h e r c o u n t r i e s ” . It
s u g g e s te d t h a t t h e c o n c u r r e n c e o f a number o f c o u n t
r i e s , in c lu d in g C anada, N ew foundland, th e U n ite d K ing
dom, t h e S o v i e t U n io n , M e x ic o an d E c u a d o r , was " e s s e n
t i a l " b e f o r e t h e US a l o n e t o o k a n y a c t i o n s u c h a s t h a t
p r o p o s e d (M emorandum by t h e O f f i c e o f E c o n o m ic A f f a i r s ,
2 3 S e p t e m b e r 1 9 4 4 , i n FRUS, supra n 3 0 , 1 4 8 5 - 1 4 3 7 ) . T h e
f o llo w in g y e a r, th e D e p a rtm e n t's I n t e r n a t i o n a l T rade
P o l i c y D i v i s i o n recom m ended t h a t i n s t e a d o f u n i l a t e r a l
a c t i o n and in l i g h t o f t h e p o o r r e s p o n s e from o t h e r
g o v e r n m e n t s t o t h e A m e r i c a n i n i t i a t i v e , " i t w o u ld seem
m ore a p p r o p r i a t e e i t h e r t o f o l l o w up t h e m a t t e r d i r e c t
ly w ith th e v a r io u s g o v ern m en ts, or to u se th e a p p ro p
r i a t e i n t e r e s t e d a g e n c y , t h e FAO, a s a m e a n s t o d e v e l o p
a n i n t e r n a t i o n a l p o l i c y ” ( T h o r p , supra n 4 2 , 1 5 2 5 ) .
I n t h e l i g h t o f s u c h c o m m e n t s , why t h e n d i d t h e US
proceed to ta k e u n i l a t e r a l a c tio n ? A c c o rd in g to H ol-
l i c k ( O c e a n s P o l i c y , supra n 2 9 , 5 4 ) ,
The unilateral issuance of the Truman Proclamations can be traced to the

persistence of the Interior Department under Secretary Ickes [which
wanted to enhance its bureaucratic authority] and the inability of two
Presidents and a succession of Secretaries of State to give sustained
consideration to offshore policy.
I6S
tion and control of the United States. Where such activities have been or shall here
after 'be legitimately developed and maintained jointly by nationals of the United
States and nationals of other States, explicitly bounded conservation zones may be es
tablished under agreements between the United States and such other States; and ail
fishing activities in such zones shall be subject to regulation and control as pro
vided in such agreements.^"3
A similar right in accordance with the above principles

was conceded to other States, provided that "corresponding
recognition is given to any fishing interests... in such ar
eas" of American nationals.550 Removed from the Proclamation
was any reference of a right to exclude other States from
established zones.*1 However, neither the Proclamation nor
Proclamation No 2668, 10 Fed Reg 12304; 3 CFR, 1943-

1948 Comp 68; 59 Stat 885. A companion Executive order
(No 9634; 10 Fed Reg 12305; 3 CFR, 1943-1948 Comp 437)
contemplating the establishment of fishery conservation
zones, issued by President Truman, was signed on the
same day. Both the Proclamation and the Executive Or
der are in Whiteman, supra n 27, 954-956, and 1 UNLS,
supra Ch 2, n 73, 112-113.
Ibid
None of the above sources explain the background to the
decision made by the US to amend the fishery policy as
requested by the British (see text accompanying n 44
supra). A memorandum from the Acting Secretary of the
Interior (Fortas) to the Acting Secretary of State,
dated 17 September 1945 (FRUS, supra n 30, 1527) simply
stated that the former was sending the latter the re
vised Proclamation for his action.
Patricia Kinsey ("The tunaboat dispute and the in
ternational law of fisheries"(1969) 6 CWILJ 114, 116)
asserts that "the Proclamation itself is not law, but
an expression of national policy. As such, it is not
enforceable against foreign nationals who might enter
and fish in areas regularly fished by United States
nationals."
The present writer has been unable to find any
support among official statements for such a position,
and it would appear from the accompanying press release
(infra text accompanying n 52) and the wording of the
Executive Order that the policy was meant to have legal
effect (cf, E Allen, "Legal limits of coastal fishery
protection"(1946) 21 Washington L R and State Bar J 1;
and Szekely, supra Ch 2, n 69, 65). Perhaps among the
best evidence that the Proclamation and Executive Order
(at least the latter) were considered as valid American
domestic law is the fact that they were incorporated
within the US Statutes at Large, and that the Supreme
169
the accompanying press release32 stated that the proclaimed
policy related only to the Western Hemisphere, as had been
requested by the British.3:3
2. The Continental Shelf Proclamation

By the late 1930s it was possible to drill for oil on
the continental shelf in the Gulf of Mexico, and both pri
vate interests and the United States Navy were pressing the
Government for extension of jurisdiction to cover shelf
resources. Roosevelt was in favour of such a step. At the
same time, he recognized that "new principles of interna
tional law might have to be asserted...".3'*
On 31 March 1945, the same day as the fishery policy
discussed above was approved,33 Roosevelt agreed that hence
forth American policy would be that "the natural resources
of the subsoil and sea bed of the continental shelf beneath
the high seas but contiguous to the coasts of the United
States [were to be regarded] as appertaining to the United
States, subject to its jurisdiction and control".30
Positing the need for clarification of jurisdictional
rights over continental shelf resources if the latter were
to be utilized, conserved and developed rationally, a second
"Explanatory Statement" circulated to several foreign gov
ernments, argued that the American policy was "reasonable
Judicial Court of Massachusetts clearly considered them

as having legal import (Commonwealth v Trott, Common
wealth v Malone, 120 NE 2nd, 289, 292).
Whiteman, supra n 27, 956-957
See text accompanying nn 44 and 45 supra.
Unpublished memorandum from Roosevelt to the Attorney

General and Secretaries of State, the Navy and the In
terior, dated 1 July 1939; cited in Foreign Policy,
supra n 26, 30. "Such principles,” suggested Roosevelt
"would not in effect be wholly new, because they would
be based on the consideration that inventive genius has
moved jurisdiction out to sea to the limit of inventive
genius"(ibid).
Grew/Ickes' Memorandum, supra n 30, 1492

170
and j u s t " , b earing i n mind s i x f a c t o r s . 3^ F irst, on g e o g r a
phic and p h y s i o l o g i c a l grounds, th e co n tin en tal sh elf may b e
regarded as "n atu rally app u rten an t to ," and an e x t e n s i o n of,
the ad jacen t la n d m ass. Secondly, sh elf resources may b e
part of a pool or d e p o s it w ithin th e S ta te itse lf, and e x
p lo itatio n may a f f e c t resources of the S ta te . T h ird ly , ef
fectiv e co n serv atio n and u t i l i z a t i o n of th e resources w ould
depend upon c o a s t a l S tate co -o p eratio n and p r o t e c t i o n .
F ou rth ly , self-p ro tectio n req u ires th e c o a s ta l S tate to
carefu lly m onitor a ctiv itie s conducted from i n s t a l l a t i o n s on
th e sh elf. F ifth ly , co n serv atio n and u t i l i z a t i o n of s h e lf
resources demand a c l e a r governm ent p o lic y reg ard in g ju ris
d ictio n . And f i n a l l y , ju risd ictio n and c o n t r o l of those re
sources is most l o g i c a l l y ex ercised by t h e contiguous
co astal S tate.
S i n c e no o t h e r S tate was e x p l o i t i n g co n tin en tal sh elf
resources o f f A m erican c o a s t s , continued th e S tatem ent,
a clear distinction aay be drawn between steps taken for the protection of coastal
fisheries, in which recognition aust be given to established fishing activities and
interests of nationals of one country off the coasts of another country, and measures
which lay be adopted with a view to protecting undersea lineral resources contiguous
to the coast.55'5'
U sing th e analogy of s e d e n ta ry fish e rie s, it w as a r g u e d

th at "a s t a t e may a c q u i r e by o c c u p a t i o n and c o n t i g u i t y
rig h ts of the land ben eath th e high se a s, provided th at the
freedom o f n a v i g a t i o n is not thereby i m p a i r e d ” .*5,0 In e x e r
cisin g such r i g h t s , how ever, th e U nited S tates e x p licitly
denied any i n t e n t i o n eith er to ex ten d its te rrito ria l sea or
assert ju risd ic tio n or in te rfe re w ith fo reig n v essels on t h e
high s e a s .
Parsons [Annex 2 ] , s u p r a n 3 3 , 1495. For governm ents

advised s e e n 42 s u p r a .
I b i d 1500-1501
I b i d 1501
« so
I b i d 1502
171
The S tatem en t co n clu d ed by n o tin g th at th e c o n tin e n ta l
sh e lf was u su ally d efin ed as "th at part of the undersea lan d
m ass ad jacen t to th e co ast, over w hich th e sea is not m ore
than 100 fathom s (600 feet) in d e p t h , ” and th at w here th e
sh e lf was shared w ith an a d jacen t S tate, the b o u n d aries
w ould p ro p erly be d ecid ed "upon a fair and e q u ita b le b asis,
as th e u tiliz a tio n of undersea resources p r o g r e s s e s " . 01
In lig h t of th e alm o st to ta l lack of in te rn atio n a l re
actio n among S tates co n su lted co n cern in g th e proposed p o l
icy , on 28 S eptem ber 1945, P resid en t Trum an p ro claim ed to
g eth er w ith th e p o licy rela tin g to fish e rie s, th e "P o licy of
th e U nited S tates w ith respect to the N atu ral R esources of
th e S u b so il and Sea Bed of th e C o n tin en tal S h e lf" , e x actly
as it had been e a rlie r approved by h is p r e d e c e s s o r .62
Ibid 1 5 0 2 - 1 5 0 3
T h e P r o c l a m a t i o n ( P r o c l a m a t i o n No 2 6 6 7 , 10 Fed Reg
1 2 3 0 3 ; 3 C F R , 1 9 4 3 - 1 9 4 3 Comp 6 7 ; 5 9 Stat 8 8 4 ) a n d i t s
c o m p a n i o n E x e c u t i v e O r d e r (No 9 6 3 3 ; 1 0 Fed Reg 1 2 3 0 5 ; 3
CFR, 1 9 4 3 - 1 9 4 8 Comp 4 3 7 ) a r e i n W h i t e m a n , supra n 2 7 ,
7 5 6 - 7 5 9 , a n d 1 UNLS, supra C h 2 , n 7 3 , 3 8 - 4 1 . The
P ro clam atio n read in p a rt as fo llo w s:
WHEREAS recognised jurisdiction over [petroleum and other miner-

als underlying the continental shelf] is required in the interest of
their conservation and prudent utilization when and as development is un
dertaken; and
WHEREAS i t is the view of...the United States that the exercise
of jurisdiction over the natural resources of the subsoil and sea bed of
the continental shelf by the contiguous nation is reasonable and just,
since the effectiveness of measures to utilize or conserve these re
sources would be contingent upon cooperation and protection from the
shore, since the continental shelf may be regarded as an extension of the
land-mass of the coastal nation and thus naturally appurtenant to it,
since these resources frequently form a seaward extension of a pool or
deposit within the territory, and since self-protection compels the
coastal nation to keep close watch over activities off its shores which
are of the nature necessary for utilization of these resources;
NOW, THEREFORE, I, HARRY S TRUMAN,...do hereby proclaim the fol
lowing policy of the United States...with respect to the natural re
sources of the subsoil and sea bed of the continental shelf.
Having concern for the urgency of conserving and prudently u ti
lizing its natural resources, . . . the United States regards the natural re
sources of the subsoil and sea bed of the continental shelf beneath the
high seas but contiguous to the coasts of the United States as appertain
ing to the United States, subject to its jurisdiction and control. 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
172
B - l.be__Prg_c1amati ons__^d_rn ternati onal_Law

1• The Fisheries Proclamation
The extent to which Truman's Proclamation on fisheries
asserted a new norm of international law has been debated
since its publication, in large measure because of its im
plications, the significant questions left unanswered, and
the fact that it was never implemented. The Proclamation,
for example, did not specify what jurisdiction the United
States would purport to exercise in a zone prior to a con
servation regime being negotiated with other States. Ac
cording to Johnston, it may be inferred from the Proclama
tion that prior to a conservation regime being agreed to
among the States concerned, the coastal State may enforce
its own regulations. In addition, he continues, it appears
implicit in the Proclamation that "if the United States
should be the sole adjacent coastal State included among the
exploiters, it would have a superior prescriptive authority
over conservation".03
The policy’s Explanatory Statement6^ makes no direct
reference to the unilateral imposition of a conservation
regime prior to agreement being reached with other States.
the United States and the State concerned in accordance with equitable
principles. The character as high seas of the waters above the continen
tal shelf and the right to their free and uniapeded navigation are in no
way thus affected.
As for the argument that the Proclamation/Execu

tive Order were not law but merely expressions of pol
icy (see also n 51 supra), Louis Henkin (Foreign Af
fairs and the Constitution (1972) 56-57) writes: "Pres
ident Truman made law when he proclaimed the right of
the United States to exploit the resources of the con
tinental shelf"; of, Szekely, supra Ch 2, n 69, 62-63.
As with the fisheries Proclamation, it is also possible
to refer as evidence the appearance of the continental
shelf Proclamation and the Executive Order in the U.S.
Statutes at Large.
Johnston, supra Introduction, n 19, 333; cf, E Allen,

"The fishery Proclamation of 1945" (1951) 45 AJIL 177,
178
«•■a-
i “70
X / ^
R ather, it sim ply e x p re ss e s the b elief th at the fe w S t a t e s

having "any r e a l or co n sid erab le in terest" in a p articu lar
fish ery w ill a g r e e on r e g u l a t i o n s and " o t h e r states would
h a v e no v a l i d reason for o b jectio n to th e m easures taken by
states p rim arily c o n c e r n e d " . 6S W hat w o u l d h a p p e n i n the
event o f d i s a g r e e m e n t among t h e m o s t i n t e r e s t e d S tates, or
p rio r to the reg im e b e in g a g re e d upon (p articu larly given
"th e sp ecial rig h ts and e q u i t i e s of th e c o a s ta l s ta te " 06) ,
is not ex p lain ed .
By v i r t u e of th e p olicy p ro v isio n th at "w here [fish in g ]
a ctiv itie s have been or shall hereafter be d e v e l o p e d a n d
m ain tain ed by i t s n atio n als alone" t h e U n i t e d S t a t e s re
garded it as p ro p e r th a t in any c o n s e r v a t i o n zone to be
estab lish ed fish in g would be s u b j e c t to th e ir reg u latio n
and c o n t r o l t h e P roclam ation im p licitly allow s for
newcom ers b e in g p r o h i b i t e d from f i s h i n g in a zone, d esp ite
th e la tte r r e m a i n i n g h i g h s e a s . 60 As n o t e d above, both th e
P a r s o n s [ A n n e x 1 ] , supra n 3 3 . This d id n o t n e c e s s a r
i l y m e an t h a t i n d i v i d u a l c o u n t r y q u o t a s w i t h i n a n o v e r
a l l c o n s e r v a t i o n r e g im e w e re c o n s i d e r e d p o s s i b l e . Ac
c o r d i n g t o W a l t e r C ha pm an ( " U n i t e d S t a t e s p o l i c y o n
h i g h s e a s f i s h e r i e s " ( J a n u a r y 1 6 , 1 9 4 9 ) 20 DOSB 6 7 , 7 1 ,
80) ,
the goal at which the United States aims [is] to provide the possibility
of management for each high seas fishery in the world to the end that the
population of fish upon which the fishery works will be kept at that
level at which a maximum crop can be harvested year after year.
The nations of the world could not possibly agree at this time
on who will get what share of that crop.
That part of the problem must be left, for the present, to free
enterprise and competition. There is a crop to be taken in the interna
tional common. Each takes according to his ability. When the safe crop
is taken, all stop the harvest.
I t may b e n o t e d i n p a s s i n g t h a t g i v e n t h e c o m p a r a
t i v e l y h i g h l y d e v e lo p e d s t a t e o f t h e A m erican f i s h i n g
i n d u s t r y a f t e r t h e w a r , t h e US n a t u r a l l y w a s n o t d i s a d
v a n t a g e d by s u c h " f r e e c o m p e t i t i o n " .
See t e x t a c c o m p a n y i n g nn 3 5 a n d 49 supra.
See t e x t a c c o m p a n y i n g n 4 9 supra.
T h a t t h e f i s h e r i e s P r o c l a m a t i o n w as d e s i g n e d to allow
fo r th e e x e rc is e of ex clu siv e fis h in g rig h ts by t h e US
174
policy statem ent as originally approved by R oosevelt and its
accom panying Explanatory Statem ent asserted such a right of
lim itation, although the latte r also did not anticipate any
exclusions actually e v e n t u a t i n g . 69 Even if total exclusion
b e y o n d t h e t e r r i t o r i a l s e a was t h e a c c e p t e d i n t e r p r e t a
t i o n of a number of A m erican e x p e r t s w r i t i n g im m e d ia te
ly fo llo w in g th e p o l i c y 's announcem ent. In e a r l y 1946,
f o r e x a m p le , Edwin B o r c h a rd o f t h e Board o f E d i t o r s o f
t h e AJIL w r o t e t h a t t h e P r o c l a m a t i o n " g a v e a s o m e w h a t
r a d i c a l s o l u t i o n " t o t h e p r o b l e m o f t a k i n g B r i s t o l Bay
s a lm o n on t h e h i g h s e a s , and m arked " a n i n n o v a t i o n i n
i n t e r n a t i o n a l law" as i t so u g h t a " f i s h i n g monopoly in
p l a c e s h e r e t o f o r e r e g a rd e d as r e s n u lli u s [ s i c ] " and
ev id e n c e d "not a growing i n t e r n a t i o n a l i s m but a w e ll-
d efin ed natio n alism " ("Resources of the c o n tin e n ta l
s h e l f " ( 1 9 4 6 ) 40 AJIL 5 3 , 5 4 ) . He a d d e d ( i b i d 5 5 ) t h a t
" [ s j in c e th e U nited S ta te s claim s th e se r ig h ts fo r i t
s e l f , i t cannot o b ject to s im ila r or p o ssib ly even
g r e a t e r e n c r o a c h m e n t s on t h e h i g h s e a s by o t h e r
nations".
S i m i l a r l y , P r o f e s s o r J Bingham w r o te c o n t e m p o r a n e
o u s ly ("The c o n t i n e n t a l s h e l f and th e m a rg in a l b e l t " in
i b i d 173, 176) t h a t t h e t r a d i t i o n a l A m erican p o l i c y
invited foreign fishing in areas where [its] fishermen believed the [US]
should exercise exclusive control and if foreign invasion should result,
[its] case for excluding the invaders would be jeopardized by [its] unre
voked previous declarations of policy. ...
The course adopted by.. .President Truman...is wise and progres
sive statesmanship. It at once warns foreigners that the old invitation
to invasion is withdrawn — a warning which generally will be heeded —
and i t gives legal protection in advance to national interests of great
importance which politically [the US] could not abandon or easily compro
mise. There is no doubt that any state with power to do so would defend
its coastal interests in like manner.
Cf, R B axter, "The te rrito ria l s e a " (1956) 50 PASIL 1 1 6 ,

121 .
S o j i Yamamoto ( " T h e a b s t e n t i o n p r i n c i p l e a n d i t s
r e l a t i o n t o t h e e v o l v i n g i n t e r n a t i o n a l law o f t h e s e a s "
( 1 9 6 7 - 1 9 6 8 ) 4 3 WLR 4 5 , 5 6 ; e m p h a s i s a d d e d ) w r i t e s t h a t
th e b a s ic u n d e rly in g th e o ry of Truman’s f i s h e r i e s P ro
c l a m a t i o n s h a r e d a common b a s i s w i t h t h e p r i n c i p l e o f
a b s t e n t i o n s u b s e q u e n t l y p r o p o s e d b y t h e US a t UNCLOS I
( s e e Ch 7 , n 9 1 a n d a c c o m p a n y i n g t e x t i n f r a ) , i e ,
'proximity' of a coastal nation to ocean resources and exploitation and

conservation of natural resources on large scale [sic] by a coastal na
tion or by other nations were regarded as important. It was explained
that these two basic elements could justify creation of certain conserva
tion areas wherein a nation could enforce regulatory measures regarding
all fishing activities. It was also asserted that proximity and conser
vation would even justify exclusion of newcomers in the fishing areas.
Therefore, contrary to the prevailing understanding in Japan as to the
175
leaning of the proviso in the declaration ( i e , . . . t h a t the nature of

'high seas' in the conservation area should be conserved), the proviso
should 'oe understood as merely guaranteeing that the declaration is not a
declaration of territorial jurisdiction while rejecting the traditional
principle of free access and free competition with respect to ocean re
sources.
Y a m a m o to d o e s n o t i n d i c a t e who m a d e th e e x p la n a tio n s or
a s s e r tio n s r e f e rr e d to above.
See te x t a c c o m p a n y i n g n 3 9 supra. H o llic k (Foreign

Policy, supra n 2 6 , 4 7 ) c o m m e n ts t h a t
In virtually all respects, the policy and its rationale were designed to
protect U.S. salmon resources from the Japanese. ...[Tjhis was made ex
plicit by the inclusion in the [Explanatory Statement] of a statement by
Secretary [of State] Hull in 1938, in the context of the U.S.-Japanese
dispute. 'An industry.. .which has been built up by the nationals of one
country cannot in fairness be left to be destroyed by the nationals of
other countries.' The message was clear. New entrants were not to be
allowed into a developed fishery.
T h a t t h i s re m a in e d th e i n t e n t o f th e p o l ic y as f i
n a l l y e n u m e ra te d i s p e rh a p s r e f l e c t e d by a s ta t e m e n t in
t h e a c c o m p a n y i n g p r e s s r e l e a s e ( W h i t e m a n , supra n 2 7 ,
95 6 -9 5 7 ) t h a t
As a result of the establishment of this new policy, the United

States will be able to protect effectively...its most valuable fishery,
that for the Alaska salmon. Through painstaking conservation efforts and
scientific management the United States has made excellent progress in
maintaining the salmon at high levels. However, since the salmon spends
a considerable portion of its life in the open sea, uncontrolled fishery
activities on the high seas, by nationals of either the United States or
other countries, have constituted an ever present menace to the salmon
fishery.
T h e p o s i t i o n o f t h e US o n t h i s i m p o r t a n t p o i n t a p
p e a rs to have s h if te d s ig n i f ic a n tl y in a s h o rt p e rio d
o f tim e . I n a n o t e fro m D oom an, S p e c i a l S e c r e t a r y t o
th e A s s i s t a n t S e c r e ta r y o f S t a t e , to W rig h t, C o u n se lo r
o f t h e B r i t i s h E m b a s s y , d a t e d 2 0 J u n e 1 9 4 5 ( FRUS , supra
n 30, 1515; s q u a re b r a c k e ts in o r i g i n a l ) , th e fo rm er
w ro te :
We contemplate assertion of control only 'where such [fishing]

activities have been developed and maintained by its [United States] na
tionals alone.' Even in such cases, we would not contemplate the exclu
sion in principle of nationals of other countries.
In r e s p o n s e to th e s u b s e q u e n t s p e c i f i c s u g g e s tio n
b y t h e UK t h a t t h e p o l i c y s t a t e m e n t r e f r a i n f r o m l i m i t
in g to A m e ric an n a t i o n a l s f i s h i n g o p e r a t i o n s c o n tig u o u s
t o A m e ric a n c o a s t s d e v e lo p e d by A m e ric a n n a t i o n a l s
( W r i g h t t o D o o m a n , supra n 4 4 , 1 5 1 6 , 1 5 1 7 ) , D o o m a n o n 6
176
of new com ers to a pro claim ed fish ery zone w ere n o t tru ly
co n tem p lated by t h e p o licy , acco rd in g to P rofessors M cDougal
and B urke, th e P ro clam atio n "appears to en v isag e th a t th e
reg u latio n s adopted by t h e U nited S tates sh all apply to new
com ers to th e fish ery irresp ec tiv e of th e ir u n w illin g n ess to
abide by t h e r e g u l a t i o n s " . 70
The s p a t e of u n ilatera l claim s by o t h e r S tates fo llo w
ing th e Trum an P r o c l a m a t i o n s g en erated o b je ctio n s from th e
U n ited S t a t e s ' 71 a n d attem p ts by t h e la tte r to c larify th e ir
in ten tio n s in m aking th e 1945 announcem ents. In 1950, for
exam ple, th e U n ited S tates advised Norway t h a t th e fish e rie s
P ro clam atio n did not represent a new c o n c e p t in in te rn a tio n
al law nor d id it alter "in a n y way t h e p re-ex istin g regim e
of th e high s e a s " . ' 72 The p o l i c y related so lely to U n ited
J u l y 1 9 4 5 a d v i s e d W r i g h t t h a t t h e US c o u l d n o t s e e
t h e i r w ay c l e a r t o m e e t i n g t h e s u g g e s t i o n . He e x p l a i n
e d ( FRUS, s u p r a n 3 0 , 1 5 2 2 - 1 5 2 3 ; e m p h a s i s a d d e d ) t h a t :
The saliion fisheries in Alaska, for example, have been developed

exclusively by nationals of the United States. There have been attempts
by foreigners to participate in these fisheries which, had they been al
lowed to continue, would inevitably have exhausted this important food
resource. It would be wholly unrealistic if this Government, in seeking
to establish new principles for the conservation of our fishery resour
ces, were to give foreigners the impression that it would not assert pre
emptive control over such fisheries.
M McDougal and W B u rk e , The P u b lic O rder o f th e Oceans

(1962) 966
S e e Ch 6 i n f r a .
FRUS 1 9 5 0 , i , 3 9 3 ( e m p h a s i s a d d e d ) ; b u t s e e t e x t a c c o m
p a n y i n g nn 2 8 , 2 9 , 32 a n d 4 1 , a n d nn 48 a n d 69 s u p r a .
A lth o u g h he d o es n o t c o n s i d e r th e P r o c la m a tio n in d e
t a i l , P r o f e s s o r W aldock s e e s t h e f o r m e r a s n o t m e r e ly a
r e - s t a t e m e n t o f t h e t r a d i t i o n a l law o f t h e s e a ("T h e
l e g a l b a s i s o f c l a im s to t h e c o n t i n e n t a l s h e l f " (1951)
36 T r a n s o f t h e G r o t i u s S o c 1 1 5 , 1 3 8 ) :
International legislation taking the rudimentary form which it does, the

undertaking of reciprocal treatment in the fishery Proclamation suggests
to an international lawyer an invitation to other States to join in a de
liberate and legislative development of customary law.
Chapman, S p e c i a l A s s i s t a n t t o t h e A m e ric a n S e c r e
t a r y o f S t a t e , w e n t someway t o w a r d s e n d o r s i n g t h o s e o b
s e r v a t i o n s i n h i s 1949 a r t i c l e ( s u p r a n 6 5 ) . The v a r i
ous u n i l a t e r a l , b i l a t e r a l and m u l t i l a t e r a l a rra n g e m e n ts
177
States nationals and merely declared the intention to regu
late where necessary their fishing activities in high seas
contiguous to American coasts,73
High seas fishery conservation measures, the United
States subsequently explained, "must be taken in agreement
with other countries having legitimate interests in fishing
in such waters".74 Furthermore, they added, there was no
rule of international law allowing any coastal State "unila
terally to claim sovereignty over adjacent waters heretofore
recognized as high seas".75
If the interpretation subsequently placed by the United
States on their 1945 fisheries Proclamation indeed reflected
the parameters of the ’new' policy and no right was claimed
that was not already possessed by States, what then is the
significance of the Truman Proclamation for the development
of the law? That question might best be answered by consid-
made by the US for managing fisheries in international

waters, he said, were based upon principles "wholly
within the presently accepted tenets of international
law "{ibid 70). Unfortunately, he continued, technolo
gical advances in fishing practices such as the use of
mother ships "may outmode these types of agreements be
fore they can be fully put into force"(ibid) and for
that reason "a modification in international legisla
tion" was required {ibid 71; emphasis added). Because
of the need to "prevent a third nation from sending a
mother-ship expedition to skim the cream off... halibut
banks" built up by mutual sacrifice, expense and strict
regulation of their fishermen by Canada and the US,
Chapman explained, Truman's fisheries Proclamation was
issued. The purpose of the Proclamation, he added,
"was to provide for new means, under law, to protect
fishery resources lying in international waters from
over-exploitation" {ibid; emphasis added).
FRUS 1950, i, 394
Instruction from Acting Secretary Herter to the Ameri

can Embassy, Manila, dated 31 January 1958; in
Whiteman, supra n 27, 961-962
Ibid 962. According to Watt {supra n 29, 224), how

ever ,"whatever the lawyers of the State Department and
the Department of Justice may now say, the records all
show that they were directed to find a way out of
breaking the universality of the doctrine of the free
dom and commonality of the seas".
17S
ering briefly the import of its companion Proclamation on
the continental shelf and its relation to the freedom of the
sea principle.
2- The Continental Shelf Proclamation

Unlike the fisheries Proclamation, at no time did the
United States deny that its Proclamation on the continental
shelf introduced a new element into the international law of
the sea. Rather, as indicated above, they continually as
serted that, properly construed, the doctrine filled a legal
void in the regime governing marine resources and was con
sistent with general principles of international law, espe
cially that of the freedom of the sea.76 For a better un
derstanding of the development of legal norms relative to
fisheries it is useful at this point to consider briefly the
Anglo-American position on international legal rules, if
any, impacting upon the exploitation of continental shelf
resources beyond the territorial sea, the relevance of the
freedom of the sea principle, how the doctrine enunciated by
Truman was considered compatible with that freedom, and the
manner by which norms governing the use of marine resources
might be generated over time.
Probably the most detailed early legal argument sup
porting the American initiative was that of Professor Hersch
Lauterpacht in 1950.~7~7 He concludes that although there was
no specific reference to sovereignty over the shelf in the
Proclamation, the latter "used words and assumed powers
which in fact can have no other result".7S Such an asser
tion would be a "drastic change" in the law of the sea only
if it could be proved that the law actually prohibited, in
stead of being silent on the matter.7"3 There had been no
See text accompanying n 60 supra, and H Phleger, "Re

cent developments affecting the regime of the high
seas"(June 6, 1955) 32 DOSE 934, 939.
"Sovereignty over submarine areas"(1950) 27 BYIL 376
Ibid 389; cf, R Young, "Recent developments with re

spect to the continental shelf"(1948) 42 AJIL 849, 355
179
such change. W hile le g al o p in io n s had v aried , th ere was in
su fficie n t S tate p ractice to g en erate a ru le and, in fact,
th e situ a tio n was c o m p l e t e l y n o v el.
The r i g h t s claim ed, alth o u g h not co n trary to any s p e c i
fic leg al norm , w ere n e v e r t h e l e s s su b ject to "such lim ita
tio n s as fo llo w from in tern atio n al law and, in esp ecial,
from any r e a s o n a b l e req u irem en ts of th e p rin cip le of th e
freedom of th e s e a , ” h e r e a s o n s . 90 For L au terp ach t, th e es
sence of th e n o tio n of th e freedom of th e seas is "th e rea
so n ab ly co n ceiv ed p rin cip le of freedom of n av ig atio n and e x
p lo itatio n of th e ir rich es not dependent for th e ir p ro tec
tio n upon th e exclusive e ffo rts of th e co asta l S t a t e " . 91 A l-
L a u t e r p a c h t , s u p r a n 77, 393-394
I b i d 391; c f , R A lle n , " T e r r i t o r i a l w a te r s and e x t r a

t e r r i t o r i a l r i g h t s " (1953) 53 A J IL 4 7 8 , 4 79, 4 8 0 ; and
W a l d o c k , s u p r a n 7 2 , 137
L a u t e r p a c h t , s u p r a n 77, 378. The p a r a m e t e r s and im

p o r ta n c e o f th e freedom o f th e se a p r i n c i p l e have c h a n
ged o v er th e c e n t u r i e s , d ep e n d in g p r i m a r i l y upon th e
d e g r e e o f p o w er and n a t u r e o f t h e i n t e r e s t s h e l d by t h e
v a r i o u s c o n s t i t u e n t s o f t h e i n t e r n a t i o n a l com m unity
( o f , O ' C o n n e l l , s u p r a I n t r o d u c t i o n , n 15, 1, 1 9 - 2 0 ;
G i d e l , s u p r a I n t r o d u c t i o n , n 15, i , 1 2 5 -2 0 0 ; 0 H o u sto n
"Freedom o f t h e s e a s : t h e p r e s e n t s t a t e o f i n t e r n a
t i o n a l l a w " ( 1 9 5 6 ) 42 ABAJ 2 3 5 ) . By t h e m i d - 2 0 t h c e n
t u r y , i t was g e n e r a l l y a c c e p t e d t h a t , i n t h e w o rd s o f
O p p e n h e i m ( s u p r a Ch 1 , n 1 1 5 , 5 8 9 ) ,
The t e n 'freedom of the open [, or high] sea’ indicates the

rule of the Law of Nations that the open sea is not, and never can be un
der the sovereignty of any State whatever [; that]...no State has as a
rule a right to exercise its legislation, administration, jurisdiction,
or police over parts of the open sea[, nor]...a right to acquire parts of
the open sea through occupation__
The r a t i o n a l e f o r t h e p r i n c i p l e , a c c o r d i n g t o O ppenheim
( i b i d 5 9 3 - 5 9 4 ) , i s t h a t w hich le d G r o t i u s o r i g i n a l l y to
a tta c k p re te n s io n s to e x te n s iv e m a ritim e s o v e re ig n ty ,
nam ely,
the freedom of communication, and especially commerce, between the States

which are separated by the sea. The sea being an international highway
which connects distant lands, it is the common conviction that it should
not be under the sway of any State whatever. It is in the interests of
free intercourse between the States that the principle of the freedom of
the open sea has become universally recognized and will always be upheld.
180
though, he notes, the original legal arguments advanced by
Grotius in support of the freedom of the sea principle (ie,
that effective occupation of broad expanses of ocean space
is impossible and marine resources are inexhaustible®3 )
might no longer be applicable, that did not render the prin
ciple irrelevant. The principle, explains Lauterpacht,
"cannot be treated as a rigid dogma incapable of adaptation
to situations which were outside the realm of practical pos
sibilities in the period when the principle first became
part of international law " .®3 Rather, it must be applied
in accordance with its true purpose and the ever valid test of reasonableness. Its
true purpose is to ensure freedom of navigation, unhampered by exclusive claims of in
dividual states, and freedoa of utilization of the resources of the sea to a degree to
which they can be equitably utilized by all.®**
Although, strictly speaking, States exploiting contin

ental shelf mineral resources might disturb previously un
hindered navigation, according to Lauterpacht the freedoms
guaranteed in the Truman Proclamation®55 must be read "sub
ject to reasonable interpretation" and accordingly "may of
fend against the theory but not the true object of the free
dom of the seas” .®®
In the text accompanying this note Lauterpacht

goes further than the above, specifically mentioning
resources.
See Ch 2, text accompanying nn 68 and 71 supra.
Lauterpacht, supra n 77, 399; cf, comment by Professor

Sandiford in 43rd ILA Conference Report (1948) 179
Lauterpacht, supra n 77, 407
Lauterpacht, supra n 77, 403; cf, Waldock, supra n 72,

118; R Young, "The legal status of submarine areas be
neath the high seas"(1951) 45 AJIL 225, 238-239; and
Schwarzenberger (supra Ch 2, n 138, 363) who writes .
-
If reasonableness is the test of the compatibility of any particular type

of user with the freedom of the seas, a user cannot be excluded on the
grounds of its novelty and of theoretical impairment of established forms
of user alone.
181
As for the equitable u tiliz a tio n of resources by a ll
S tates, he argues that m ineral resources on the continental
shelf "cannot be feasibly and reasonably u tiliz e d by a l l .
They can be so u tiliz e d m ainly by the adjacent coastal
s t a t e . T h e Truman Proclam ation, continues L auterpacht,
went a long way in the direction of supplying what may be called the philosophy of the
new doctrine in terms of national and international interest, of modern scien tific
progress, and of geographical propinquity which make the u tilizatio n of the resources
of the submarine areas by the coastal state feasible and essential. ...[The .American
and other claims] appealed to the te st which is decisive in relation to the freedom of
the sea, namely, the te st of reasonableness and of legitimate common and particular
in terest. For unless the exploitation of submarine resources is to become a source of
frictio n , disorder and uncertainty, i t must be consistent, as a rule, with economic
considerations. Moreover, i t is the only solution compatible with the security of the
coastal state. The coastal state cannot be expected to tolerate permanent in sta lla
tions, of potential military importance and erected by any state however distant, in
the neighbourhood of its maritime fro n tier.53,3
The above te s t does not necessarily preclude S tates

taking u n ila te ra l action to protect th e ir in te re sts in high
seas living m arine resources, he explains. A ctions such as
T rum an's fish erie s P roclam ation,
although amounting in some way to a claim to exercise jurisdiction on the high seas in
areas in which fishery rights have hitherto been exercised only by citizens of the
United States, may not necessarily be inconsistent with a rational interpretation of
the principle of the freedom of the seas so long as its primary object is not the ex
clusion of nationals of foreign states. The same applies to the assertion of ju ris
diction, even though exercised by individual states, for the purpose of safeguarding a
general in terest. . . . I f the freedom of the seas is interpreted so as to result either
in a regime of waste or disorder on the high seas — such as must follow from the ab
sence of effective agreement in the matter of protection of fis h e r ie s ...— or in the
s tiflin g of properly conceived interests of individual states, its authority will dis-
L a u t e r p a c h t , supra n 77, 407. S c h w a rz e n b e rg e r (supra

Ch 2 , n 1 3 8 , 3 6 5 - 3 6 6 , a n d 3 5 9 ( w o r d s w i t h i n s e c o n d s e t
of b ra c k e ts )), how ever, argues th a t
If a litto r a l S ta te .. .claims jurisdiction not only over installations ac

tually erected, but also an exclusive right of appropriation of mineral
or other contents of the sub-soil of the continental shelf, .. .any such
claim [because enforcement can only be effected at the ocean’s surface]
amounts to pretension of exercising exclusive control ever a portion of
the high seas. Thus, prima facie, i t constitutes a challenge to one of
the basic rules underlying the principle of the freedom of the seas
[ i e , in times of peace, each subject of international law exercises ex
clusive jurisdiction on the high seas over a ll ships which are entitled
to fly its own flag, but not over others].
a s
L auterpacht, supra n 77, 414
182
appear and it will be increasingly flouted by unilateral assertions of selfish and 10-
nopolistic interest.3 *5*
That the Truman Proclamations and other similar pro

nouncements are consistent with the freedom of the sea prin
ciple is evidenced by the absence of protests, claims Laut
erpacht,30 as well as the positive involvement of the United
States and the United Kingdom, both major maritime powers,
and each having a "traditional attachment" to the freedom of
the sea principle and the customary limit of the territorial
sea.31
In contrast, certain other unilateral claims, even
those restricted to assertions of sovereignty over the high
seas solely to protect and exploit fishery resources, were
inconsistent with the freedom of the sea principle, Lauter
pacht argues. While they almost invariably guaranteed free
dom of navigation, "the freedom of the sea comprised other
freedoms in addition to that of navigation".33 Because the
waters of the high seas were already governed by the freedom
of the sea principle, he posits, "the normal extent of ter
ritorial sovereignty expressed in the principle usque ad
coelum does not apply [to the continental shelf beyond ter
ritorial waters]...in relation to the superincumbent sea
...".33 In the words of then Professor (later. Sir) Hum-
Ibid 407-408 (emphasis added). Lauterpacht is silent

on whether claims having as a secondary object the ex
clusion of foreign nationals would be contrary to the
freedom of the sea principle object the exclusion of
foreign nationals would be contrary to the freedom of
the sea principle, and how to distinguish a primary
from a secondary object. This is particularly true of
the Truman Proclamation, given the history of the lat
ter's development. Lauterpacht, however, appears to
accept the later American interpretation of the Procla
mation’s import (see text accompanying nn 71-75 supra).
Cf, Phleger, supra n 76, 938
Lauterpacht, supra n 77, 394; cf, Waldock, supra n 72,

137
Lauterpacht, supra n 77, 413

IS 3
phrey Waldock, "the freedom of the superjacent waters [is]
...the dominant principle".9'*
In a similar vein, the American State Department's Le
gal Adviser argued in 1956 that the answer to overexploita
tion of fishery resources was not to be found in di sr e g a r d
ing existing international law by unilateral extension of
territorial seas, new definitions of the latter, or the "ex
action of tribute for the right to fish on the high seas"
Rather, the solution lie in the application by international
agreement of conservation measures based on scientific pr i n
ciples. "While due recognition must be given to the special
interest of the coastal state in the resources off its
coasts," he accepted, "the rights of other members of the
international community must also be respected",96 In that
regard, coastal State rights to continental shelf resources
do not give the former sovereignty over the superjacent high
seas .
In sum, then, from the Anglo-American perspective, the
Truman Proclamation on the continental shelf expounded novel
principles consistent with the existing law of the sea. The
fisheries Proclamation (at least according to later inter
pretations), on the other hand, laid no exclusive claim to
high seas fisheries. Control over, and ownership of, those
resources continued to be governed by the freedom of the sea
principle, the parameters of which were to be determined in
the present age by the ever valid test of reasonableness and
Ibid 391; cf Waldock, supra n 72, 143. With the d e

velopment of aviation in the early 20th century, there
was a need to fill a vacuum in the body of intern at io n
al legal principles governing sovereignty of the air
space above a country's territory. In a relatively
short time, a principle of private law, cujus ast solum
ejus usque ad coelum (whose is the soil, his is also
that which is above it) became recognized as applying
in the international sphere (I Brownlie, Principles of
International Law (3rd e d ; 1979) 121).
Waldock, supra n 72, 137
Phleger, supra n 76, 939-940

96
Ibid
184
legitimate common and particular interest of States. Legal
norms regulating marine resources had necessarily to develop
consistent with rather than in conflict with that principle.
III. Conclusion
Despite ambiguities concerning its precise juridical

meaning, there is little doubt but that the fisheries Pro
clamation in asserting the "special rights and equities of
the coastal State” with respect to living marine resources
of the high seas constituted a frontal attack by the world's
foremost maritime Power on a fundamental feature of the tra
ditional freedom of the sea principle endorsed in the Beh
ring Sea Fur Seals Award: that is, "each and every State has
equal and independent rights of user of the high seas in
time of peace".97
As significant as the claim itself, of course, were the
grounds upon which it was based. The fisheries Proclamation
went some way in addressing the need for a juridical base to
fishery claims noted in the 1936 Wilson-Williams report to
the IDI."5'0 Predicated on the broad bases of the need for
conservation and the economic interests of the coastal
State, those 'special' rights were at the same time careful
ly circumscribed so as to conform to the freedom of the sea
principle and the ever valid test of "reasonableness and le
gitimate common and particular interest"“5"5' -- as interpreted
and determined by the major maritime Powers.
Not all States shared the lat ter ’s perspective, how
ever, and the action taken by the United States was immedi
ately emulated by other States, with consequences to be felt
for more than three decades. Before moving to a discussion
Waldock, supra n 72, 116
See Ch 3, nn 104ff and accompanying text supra.
See text accompanying n -33 supra.

135
of reaction to the Truman Proclamation, however, it is nec
essary to return to the judicial 'theatre' for a brief con
sideration of a contemporary dispute that would in the
broader context support the American initiative.
CHAPTER FIV E
THE ANGLO-NORW EGIAN FISH E R IE S CASE
[The] type of case which coies before the International Court of Justice will often be
of such a kind that a considerable element of legal policy will and, within permissi-
ble legal l i i i t s , should enter into the process of deciding them, taking account of
the c liia te of opinion of the day, and of prevailing social and econoiic tendencies.
Sir Gerald Fitzmaurice*

1*
I - In tro d u ctio n
A lthough d ecisio n s of th e In te rn atio n a l C ourt of Jus

tic e (IC J) are only b in d in g on th e p arties to a d isp u te ,3
they are at th e sam e tim e o ften v alu ab le in stru m en ts for
id en tify in g general leg al n o rm s.3 F u rth erm o re, n otes Pro
fessor D onald G reig , in some c a s e s ,
the Court's decision has been so strikingly different froi what was considered to have
been existing custoiary law, that the conclusion seeis inescapable that the decision
aay be regarded as a source of law in its own right. Probably the best known illu s
tration of 'law-making' by the International Court was its [1951] decision in the
[Anglo-Norwegian] Fisheries case.'*
S i r G e r a l d F i t z m a u r i c e , ’’J u d i c i a l i n n o v a t i o n - - i t s
u s e s an d i t s p e r i l s - - a s e x e m p l i f i e d i n some o f t h e
w ork o f t h e I n t e r n a t i o n a l C o u r t o f J u s t i c e d u r i n g L ord
M c N a i r ’ s p e r i o d o f o f f i c e " i n C a m b rid g e E s s a y s i n I n -
t e r n a t i o n a l Law: E s s a y s i n H o n o u r o f L o r d M cN a ir ( 1 9 6 5 )
2 4 , 25
A rticle 59, S tatu te of th e IC J
G r e i g , s u p r a Ch 2 , n 1 6 7 , 4 0 - 4 1 ; c f , S tark e, s u p r a Ch
1 , n 5 5 , 5 3 - 5 5 ) who o b s e r v e s t h a t
The great reliance upon pronouncements of the Court...can be explained on

the ground, not that they are themselves sources of international law,
but that they are the best evidence of the rules of international law re
ferred to in the course of the decision.
G reig , s u p r a Ch 2 , n 1 6 7 , 4 1 ; c f , H L a u t e r p a c h t , T h e
D e v e l o p m e n t o f I n t e r n a t i o n a l Law b y t h e I n t e r n a t i o n a l
C o u rt (1 9 5 8 ) 186; and J V e r z i j l , The J u r is p r u d e n c e o f
t h e W o r ld C o u r t: A C a se b y C a s e C o m m e n ta ry ( 1 9 6 6 ) i i ,
100, 115-116. Dr E d v a r d Ham bro ( " T h e r e a s o n s b e h i n d
th e d e c is io n s of th e In te r n a tio n a l C ourt of J u s tic e "
(1 9 5 4 ) 7 C u r r e n t L e g a l P ro b le m s 2 1 2 , 2 1 5 ) e x p l a i n s t h a t
" [ i ] t i s t h e r e a s o n i n g b e h in d th e ju d g m e n t and n o t th e
187
While much of the deliberations, argumentation and

Judgment® relates to matters not directly relevant to the
present topic and need not be canvassed herein,® several as
pects of the case are pertinent to broader aspects of marine
fishery jurisdiction. Indeed, the Judgment had significant
implications for international law relating to marine fish
eries, making it useful at this time to consider selected
arguments put to the Court and the latter’s decision.
operative part which creates law in the broader sense

and contributes to the development of international
law” .
Fisheries Case, Judgment of December 18th, 1951: I.C.J.

Reports 1951, p 116
Much of the discussion concerned the proper method of

delimiting baselines, the nature of bays and interna
tional straits, etc. For more general reviews of the
case see: M Bourquin, ”La portee g4nerale de 1 ’arret
rendu le 18 decembre 1951 par la Cour International de
Justice dans 1'Affaire Anglo-Norvegienne des Pecheries”
(1951) 22 NTIR 101; J Evensen, ”The Anglo-Norwegian
Fisheries case and its legal consequences” (1952) 46
AJIL 609; L Green, ’’The Anglo-Norwegian Fisheries case,
1951” (1952) 15 MLR 373; D Johnson, "The Anglo-Norwegi
an Fisheries case” (1952) 1 ICLQ 145; T Kobayashi, The
Anglo-Norwegian Fisheries Case of 1951 and the Changing
Law of the Territorial Sea (1965); H Lauterpacht,
’’Freedom of the seas: implications of the Norwegian
Fisheries Case” (18 January 1952) The Times [London] 7;
H Smith, ’’The Anglo-Norwegian Fisheries case” (1953) 7
YWA 283; Verzijl, supra n 4, 100; C Waldock, ’’The
Anglo-Norwegian Fisheries case”(1951) 28 BYIL 114; and
R Young, ’’The Anglo-Norwegian Fisheries case” (1952) 38
ABAJ 243.
188
II. The Submissions of the United Kingdom and Norway
The dispute brought by the United Kingdom concerned the

validity under international law of a Norwegian Royal Decree
of 12 July 1935, delimiting an exclusive fishery zone along
Norway's northernmost coast. The United Kingdom asked the
Court to declare the principles of international law appli
cable in defining the baselines by reference to which Nor
way was entitled to delimit "a fisheries zone, extending to
seaward 4 sea miles from those lines and exclusively reser
ved for its own nationals...".-7.
The British contended that no State was entitled to
claim exclusive fishery rights beyond its territorial sea.®
And, since the territorial sea "is an appendage to the geo
graphical coast line of a State,"® it followed that "under
general international law the base-line of a State's mari
time belt and fisheries zone is primarily the line along its
entire coast marking the division between land and sea".10
Because, they argued, "the primary rule of maritime law is
that the seas are free,"11 exceptions had to be justified by
Fisheries Case (United Kingdom v. Norway): Pleadings,

Oral Arguments, Documents [hereafter cited 'Pleadings']
i, 11
Ibid 56; ii, 413. Norway did not, in fact, do so. She
explained (ibid iii, 238) that
La zone de peche deliiitee par le decret de 1935 est consid^r& cone do-
laine laritiie norvegien et non cone une partie de la haute *er sur la-
quelle la Norvege pr£tendrait exercer certaines coipetences speciales.
See also n 47 infra.
Ibid i, 56
1o
Ibid 59
189
th e c la im a n t S ta te . T hose e x c e p tio n s w ere " stric tly lim ite d
by i n t e r n a t i o n a l la w , and, w hen. . . a llo w e d , th e b a se -lin e s
may b e d r a w n o n l y by g e o m e tr ic c o n stru c tio n from th e p h y si
cal fa c ts w h ic h ju s tify th e e x c e p t i o n " . 12
A lth o u g h "fo r v ery e x c e p tio n a l reaso n s" sh e d id not
c o n te st N o r w a y 's rig h t to a fo u r-m ile te rrito ria l sea, as a
g en eral p ro p o sitio n th e U n ite d K in g d o m w as n o t p rep ared to
accept a lim it g re a te r th a n th re e m i l e s . 13 The t h r e e - m i l e
d is ta n c e w as b r o a d l y based in S ta te p ra c tic e , and a lth o u g h
th e 1930 H ague C o n fe re n c e fa ile d to re c o g n iz e th re e m ile s as
a u n iv e rs a l ru le , th e C o n feren ce d id not c re a te a ru le sanc
tio n in g a g re a te r b re a d th , e x p la in e d th e B r i t i s h . 1** A ny
w id e r c la im , e ith e r to a te rrito ria l sea or w ith sp e c ific
referen ce to fish e ry ju risd ic tio n , had n e c e ssa rily to be
based on an h i s t o r i c title or th e a c q u ie sc e n c e of th e S ta te
a g a in st w h ic h it is i n v o k e d . 13
I b i d 58
I b id 57. Those e x c e p tio n s r e l a t e d to bays, is la n d s and

o th e r e l e v a ti o n s o f th e se a bed ( i b i d 8 3 -8 4 ).
I b i d 18; i i , 399. W ald o ck ( s u p r a n 6 , 1 26) e x p l a i n s

t h a t t h e UK " a c q u i e s c e d i n N o r w a y ' s f o u r - m i l e l i m i t
. . . o n l y a s an h i s t o r i c l i m i t o l d e r th a n t h e c u s t o m a r y
th ree-m ile lim it" .
S e e Ch 3 , nn 8 2 f f and ac c o m p a n y in g te x t supra.
P le a d in g s, supra n 7, i i , 398. T h e UK c i t e d i n s u p p o r t
o f h e r p o s i t i o n on f i s h e r y j u r i s d i c t i o n t h e f o ll o w i n g
s t a t e m e n t b y t h e N o r w e g i a n j u r i s t , R a e s t a d ( s u p r a Ch 1 ,
n 169, 180 -1 8 1 ; c i t e d in P l e a d in g s , s u p ra n 7, i i ,
399) :
Lorsque la peche cotiWe a ete reservee, en Europe, aux habitants des

pays respectifs, les grandes Puissances laritiies se sont arrfctees'a la
liiite de trois ailles. Elies sont egaleient obligees de reconnaltre aux
autres pays le droit de s ’approprier la p£che cotiere jusqu’^ ladite dis
tance. Mais, lorsqu’il s ’agit d'une innovation, elles ne sont pas, ^ non
avis, obligees de respecter une zone plus large que celle de trois l i l
ies. Les circonstances particulieres peuvent §tre d'une telle nature
qu'il serait, considere cone un acte peu aaical de s ’opposer l l'eta-
blisseient d'une zone elargie; lais d'obligation, il n'y en a pas. Par
contre, lorsqu'une zone de peche reservee plus etendue que de trois
lilies a existe et a ete reconnue avant 1’adoption, par les Puissances,
de la liiite de trois lilies, alors elles sont bien obligees de la re
specter: un regiie ordinaireient legal ne devient pas illegal de fait que
la pluralite des Puissances en adoptant un autre.
190
In the view of the United Kingdom, post-war claims by
certain Latin American States10, to very broad jurisdictional
limits reflected misinterpretations of the Truman fisheries
Proclamation. The latter was merely "an announcement of an
intention to establish national and international control of
off-shore fisheries, not to assume exclusive sovereignty
over the high seas” .17 It was the proper approach to adopt.
"High seas fisheries are a common heritage of States,” con
cluded the United Kingdom, and the ’’acceptable solution is
progressive international cooperation in conservation and
protection of fisheries...” .10
Norway requested the Court to rule that the delimita

tion of her "zone de peche” was not contrary to internation
al law.19 The law of the sea, she argued, was not a well-
established system composed of a series of precise rules as
the British had claimed. Rather, the law was in a constant
state of evolution as compromises were made between mare
liberum and mare clausum. In that regard, the freedom of
the sea principle was not the primary rule of maritime law
as posited by the United Kingdom, but co-existed with an
other equally valid principle: the sovereignty of the coas
tal State over adjacent waters. ’’C'est leur conciliation
(et non la subordination de l ’un a 1 ’autre) qui donne la
clef du droit international moderne de la mer," observed
Norway.30
See Ch 6 infra.
Pleadings, supra n 7, ii, 405
Ibid 409, 411
Ibid iv, 369. Norway, although referring to a "zone de

peche” , nevertheless claimed no fishing zone distinct
from the territorial sea. See n 8 supra and n 47
infra.
20
Ibid i, 419
191
In c o n s is te n t S ta te p ra c tic e and la c k of s u ffic ie n t e v i
dence of o p in io ju r is m eant t h a t th e tw o n e c e s s a r y e le m e n ts
fo r th e c re a tio n o f c u s to m a ry in te rn a tio n a l la w had never
e x is te d w ith resp ect to th e th re e -m ile lim it of th e te rrito
ria l s e a . 21 B e s id e s , a rg u e d th e N o rw e g ia n s , th e re g im e e s
poused by th e U n ite d K in g d o m w a s f a t a l l y fla w e d :
Un systeie juridique qui pretendrait iiposer aux Etats des regies precises, rigides et
unifories ne serait concevable que loyennant un jeu coipliquS de soupapes de surete
qui, s ’il devait etre süffisant pour r£pondre aux besoins reels des Etats, priverait
le systeie des avantages de l'uniforiite, sans lui donner cependant la veritable soup-
lesse dont il aurait besoin. De telles constructions lanquent leur but.2 2
The a b s e n c e of p re c is e ru le s d id not le a v e a le g a l vac

uum , h o w e v e r, N o rw a y e x p l a i n e d . The 1930 H ague C o n fe re n c e
re c o g n iz e d a m u ch m o r e g e n e r a l p rin c ip le , th a t is , th e need
fo r c o a s ta l S ta te s to e x e rc is e s o v e re ig n ty o v e r a d j a c e n t w a
te rs in o rd e r to p ro te c t th e ir le g itim a te in te re s ts . S in c e
th e la tte r v a rie d b e tw e e n S t a t e s , an d e v e n w ith in S t a t e s , no
p re c is e rig id ru le s w e re a g re e d upon a t th e C o n f e r e n c e . 253
It fo llo w e d th a t th e c o a s ta l S ta te had th e rig h t to e x te n d
its te rrito ria l w a te rs w ith in re a s o n a b le l i m i t s . 2 “* N e v e r
th e le s s , th a t rig h t w as s u b j e c t to tw o c o n d i t i o n s . F irs t,
it w as r e s t r i c t e d "aux ea u x a d ja c e n te s , a c e lle s qui peuvent
Ib id 531; i i i , 229, 271; iv , 321. A g e n e ra l d is c u s s io n

o f th e e v o lu tio n o f th e d o c tr in e o f s o u rc e s i s beyond
t h e s c o p e o f t h e p r e s e n t w o rk . S e e , e g , G u g g e n h e im ,
s u p r a Ch 1 , n 8 0 . W ith r e s p e c t t o c u s t o m a r y i n t e r n a
t i o n a l l a w , G u g g e n h e im o b s e r v e s ( i b i d 5 1 ) t h a t b y t h e
2 0 th c e n tu r y
Les auteurs se divisent en deux groupes, ceux qui assiiilent la coutuae a

une convention tacite [ e g , Anzilotti], et ceux pour qui la coutuie est
obligatoire sans que le consenteient des Etats soit indispensable. Mais
les deux ecoles sont en general d'accord pour adiettre que le caractere
obligatoire de la coutuie suppose la realisation de deux eluents:
l'el&ent «ateriel consuetudo consistant en la repetition prolong^ et
constante des leie actes exterieures, et l'eleient psychologique opinio
juris sive necessitatis consistant en la croyance au caractere obliga
toire de la regie ainsi creee.
P le a d in g s , su p ra n 7, i, 33
Ib id 5 2 6 -5 3 1
2 -*
Ib id iii, 11
192
4 tre co n sid erees corame l'a c c e ss o i r e de la terre ferme" . *2 ®
The la tte r, how ever, was a "co n d itio n n ecessaire, m ais non
c o n d itio n s ü f f i s a n t e " . 20. In ad d itio n , ” [i]l faut encore que
les in t4 re ts leg itim es de 1 'E tat cö tie r ju stifie r ses pre
t e n t i o n s " . 2-7
’L eg itim ate i n t e r e s t s ’ , N orway e x p l a i n e d , in clu d ed not
only se cu rity concerns but a lso econom ic and so c ia l in te r
e sts, tak en in th eir broadest sense. To be ’le g itim a te ',
how ever, th o se in te rests had to be "en harm onie avec les
co n cep tio n s dont s ' in sp ire 1 ’o r g a n is a tio n de la so ci4 te in
tern a tio n a le et des rap p o rts recip ro q u es des E t a t s " . 2®
In sum th en , it was argued, in d elim itin g the ex ten t of
a co astal S t a t e ’s m aritim e so v ereig n ty ,
C'est affaire d epreciation que de determiner quelles sont ces limites du raison-
nable, etant donne qu'il faut prendre en consideration les facteurs topographiques et
hydrographiques, les conditions economiques et les in te n ts vitaux de la population
riveraine, 1 'usage seculaire et les regies juridiques qui se sont degagees au sein de
l'Etat en question.2 ®
253 Ibid i , 3 7 2 . A t t h e s a m e t i m e (i b i d 3 7 3 ) , N o r w a y e x
p la in e d t h a t th e c o a s t a l S t a t e ' s "dom aine m a ritim e s e r a
l i m i t e . . . p a r l a p o s s i b i l i t e d ’y a s s u r e r , d e l a c o t e , l e
r e s p e c t de son o rd e r ju r id iq u e e t p ar la n e c e s s ite ,
com m andee p a r s e s i n t e r e t s l e g i t i m e s , d ’u s e r d e c e t t e
p o ssib ilite ".
2<9> Ibid i i i , 2 7 4
2^ Ibid i , 3 7 2 . T h e r e l a t i o n s h i p b e tw e e n t h e tw o c o n d i
t i o n s N o r w a y e x p l a i n e d ( ibid i i i , 2 7 5 ) a s f o l l o w s :
C'est 1 'importance des in te n ts ae l ’Etat cotier qui explique et ju stifie

sa souverainete sur la partie de la mer voisine de ses cotes. Si cet es-
pace maritime est considere comme un accessoire de la terre, ce n'est pas
uniquement pour des raisons g4>graphiques, mais bien parce qu'on ne pour-
ra it pas la soustraire a 1 'autorite de l'Etat sans compromettre les in
terets essentiels de ce dernier. Les conditions geographiques ont as-
sureient leur importance dans 1 'appreciation de ces interets. . .. Ils
pourront m&e peser d’un poids decisif. Mais la raison qui ju stifie
1’inclusion de la mer territoriale dans la sphere de souverainete de
l ’Etat — et qui, du seme coup, ju stifie l'Äendue attribuee a cette mer
ce sont les interets de l'Etat, quelles que soient les circonstances
g«)graphiques ou autres, dont ils portent la marque.
20 Ibid i , 534
29
Ibid i i i , 11
193
In her own case, observed Norway, the legitimate inter
ests included the heavy economic dependence of the coastal
population of the region in question on adjacent fishery re
sources: "[c]'est la peche qui a attire les hommes dans cet-
te region, c ’est la peche qui leur permet d ’y vivre".30
In her view, the coastal State did not, in principle,
have to justify its own maritime delimitation, that being a
manifestation of its own sovereignty and thus presumed va
lid. Nevertheless, if it went beyond legitimate interests
in that delimitation it was possible for other States to
claim abuse of right and the dispute to be submitted to in
ternational adjudication.31
Replying to Norway's submission, the United Kingdom

countered that the 'legitimate interests' concept was total
ly devoid of legal validity. The coastal State judging the
legitimacy of its own interests would be tantamount to say
ing that maritime delimitation was a matter for the former’s
arbitrary discretion.33 if, however, 'legitimacy' was to be
assessed by reference to the interests of the international
community, the Norwegian concept lacked "any element which
may act as a solvent of the inevitable conflict between the
two opposing interests".33 The "jumble of vague phrases"
used by Norway3** to define 'legitimate interests’ would make
it impossible for a protesting State to frame a legal chal
lenge to any delimitation.30 Because a potential and uni
versal opposition always existed between the freedom of the
Ibid iv, 179
Ibid i, 534; iii, 230
Ibid ii, 415
Ibid 416

3 » Ibid 586
194
sea principle and coastal State maritime sovereignty, ”a
certain degree of precision” was required in the governing
legal rules, the United Kingdom argued.3®
Similarly, there was no legal authority supporting
’reasonableness' as the test of what may be claimed as ter
ritorial waters. While reasonableness might be the test in
certain matters, it was unsuitable for maritime boundary de
limitation.3"^ In the end, "the alleged safeguard [of rea
sonableness] is illusory,” they contended, for "it leaves
everything to the free appreciation of the coastal State
which may determine what is reasonable by reference to its
own estimate of complex geographical, economic, defence, po
litical and other factors” .3®
Furthermore, the British submitted, "international law
...has never taken into account, in the determination of the
limits of territorial waters, of [sic] the alleged economic
interests of the coastal State” .3® As for fisheries in par
ticular ,
it is quite irrelevant for the ieasure*ent of territorial waters whether the best
fishing grounds are inside or outside the dividing line; whether the population of the
State concerned are fisherien dependent on fishing or whether they are not; whether
trawling is or is not daiaging to stocks of fish.'40
There was no rule of international law requiring mari

time boundary delimitation in relation to fishing grounds or
to simplify the work of fishery protection vessels. On the
contrary, the United Kingdom countered, fishing grounds "are
where the Creator of the world put them,” and the British
system permitted no variation in favour of either coastal
Ibid 416
Ibid iv, 42-43
Ibid 400
Ibid 161
40
Ibid 30
195
S ta te s or fish in g n a tio n s in reg ard to th e p o sitio n of such
g r o u n d s . "*x
In r e p l y to th e above, N o rw a y r e i t e r a t e d her p o sitio n

th a t th e in te re sts o f th e in te rn a tio n a l c o m m u n ity h ad t o be
c o n sid e re d in d e lim ita tio n and t h a t an y s y s te m had to be
fle x ib le in o rd e r to m eet r e a l needs of S ta te s . A lth o u g h
her c r ite r ia f o r d e te rm in in g m a ritim e l i m i t s w ere l e s s p re
c ise a n d b r o a d e r t h a n t h o s e a d v o c a t e d b y t h e U n i t e d K in g d o m ,
th e y w ere n e v e r t h e l e s s su ffic ie n t to e n a b le a ju d g e to se t
tle a d isp u te " s u r u n e b a s e j u r i d i q u e ” . -*=
As f o r th e B r itis h c o n te n tio n th a t th e concept of ’le g
itim a te in te re sts' w as t o o v a g u e t o c o n stitu te a n o rm o f i n
te rn a tio n a l la w , p a rtic u la rly g iv e n th e in h e re n t c o n flic t of
in te re sts b e tw ee n c o a s t a l and o t h e r S t a t e s , N o rw a y r e s p o n d e d
th a t th e s a m e c o m p l a i n t c o u l d b e m ad e a b o u t o t h e r r e c o g n i z e d
le g a l p rin c ip le s, such as 'd u e d i l i g e n c e ' , w h ic h p la y e d s u c h
a key r o l e in m a tte rs of S ta te r e s p o n s i b i l i t y . -***3 S im ila rly
w ith r e s p e c t to 'r e a s o n a b l e n e s s * . The c r i t e r i o n " n ’e s t pas
du t o u t , comme o n l ' a p re te n d u , une c o n d itio n illu s o ire , car
le s E ta ts e tra n g e rs a u ra ie n t c e rta in e m e n t le d r o i t d 'in v o -
quer c e tte c o n d itio n pour c o n te s te r la v a lid it4 du c h o ix q u i
a e te fa it p a r 1 ' E t a t r i v e r a i n ” . -*-*
x Ibid 3 8 4
'= Ibid i i i , 2 3 0 , 272, 277
3 Ibid. N o rw a y e x p l a i n e d {ibid 2 7 8 ) th a t,
II serait...difficile de pr&endre que les diff£rends international^ re-

latifs a l'etendue des eaux territoriales sois plus frequents que les
autres et, notaiient, que ceux qui lettent en jeu les regies de la re-
sponsabilite des Etats.
La notion de 1 '’effectivite’ et celle de la 'diligence due’ non
certaineient pas plus de precision que celles de 1’'appropriation* et des
'interets legitines'. Le droit international cependant s'en content, et
l ’experience prouve que la jurisprudence trouve en elles un guide süff
isante pour resoudre les litiges qui lui sont souiis.
Ibid i v , 508
196
In general, then, Norway had always believed that in
ternational law had sufficient flexibility to take account
of diverse situations and avoid abuses without sacrificing
vital and legitimate interests of coastal States.'*®
Ill. The Judgment of the Court
On 18 December 1951, the ICJ rendered its Judgment.**®

By varying, substantial majorities, the Court found in fa
vour of Norway with respect to the specific issues in dis
pute, and went far towards endorsing the Norwegian view of
the general law relating to maritime boundaries.'*'^
Ibid 322
See n 5 supra. The UK had instituted proceedings on 28

September 1949. Oral proceedings were held between 28
September and 19 October 1951.
By ten votes to two, the Court decided that the method

employed by Norway in its 1935 Decree for delimiting
its fishery zone was not contrary to international law.
And, by eight votes to four, it further held that the
specific baselines fixed by the Decree were not con
trary to international law. The two dissenting judges
on the first question were Sir Arnold McNair (UK) and
Judge J E Read (Canada). They were joined in dissent
on the second question by Judge Hsu Mo (China) and a
fourth Judge whose name was not given.
In rendering its Judgment the Court made clear
that while the 1935 Norwegian Decree referred to a
fishery zone, the dispute and its Judgment concerned
the regime applicable to what Norway considered to be
its territorial sea: "that is how the Parties argued
the question and that is the way in which they submit
ted it to the Court for decision” (Judgment, supra n 5,
57). See nn 8 and 19 and accompanying text supra.
Although the UK had requested the Court simply to
state the general regime of delimitation (see text ac
companying n 7 supra), the ICJ declined, explaining
that while the relevant definitions, principles or
rules for settling the dispute "are elements which
might furnish reasons in support of the Judgment,
[they] cannot constitute the decision...[and] may be
197
The ICJ began by noting the "very distinctive configu
ration" of the coast in question ;‘*ts that the various lit
toral waterways served as a means of communication for the
local populace which inhabited the adjacent islands as it
did the mainland; and that the people of those "barren re
gions" had exploited the rich fishing grounds of the area
from time immemorial and derived their livelihood predomin
antly from fishing. "Such," the Court stated, "are the re
alities which must be borne in mind in appraising the valid
ity of the Norwegian Decree"
Considering those realities, it saw in the Norwegian
system only "the application of general international law to
the specific case".30 In rejecting the British claim that
the Norway's delimitation was invalid, however, the Court
hastened to emphasize that
The deliiitation of sea areas has always an international aspect; it cannot be depen
dent «erely upon the will of the coastal State as expressed in its «unicipal law. Al
though it is true that the act of deliiitation is necessarily a unilateral act, be
cause only the coastal State is coipetent to undertake it, the validity of the deliii
tation with regard to other States depends upon international law.o x
taken into account only in so far as they would appear

to be relevant for deciding the sole question in dis
pute" {ibid 126).
Ibid 127. The coastline of northern Norway features

many fiords, often penetrating far inland. Within the
fiords and along the coasts are an estimated 120,000
islands. All of the islands, islets, rocks and reefs
are known by the name 'skjaergaard' (literally, ’rock
rampart’). The Court determined {ibid 128) that "it is
the outer limit of the 'skjaergaard’ which must be ta
ken into account in delimiting the belt of Norwegian
territorial waters. This solution is dictated by geo
graphic realities."
See, eg, S Boggs, "Delimitation of seaward areas
under national jurisdiction" (1951) 45 AJIL 240, at
249, for a brief discussion of delimitation in the
region.
Judgment, supra n 5, 128
Ibid 131
31
Ibid 132 (emphasis added). On this point, at least,
Judges McNair {Fisheries Case, Dissenting Opinion
(McNair), I.C.J. Reports 1951, 158, 160) and Read
{Fisheries Case, Dissenting Opinion (Read), I.C.J. Re-
198
The Court identified three "basic considerations inher

ent in the nature of the territorial sea" which expose c e r
tain criteria which, although not precise, can be adapted to
factual aspects of particular delimitation disputes, provid
ing courts with an adequate basis for reaching de c i s i o n s . 592
First was the close dependence of the territorial sea upon
the land domain. Although the State must be permitted lati
tude to adapt its delimitation to practical needs and local
requirements, the drawing of baselines must not depart to
any appreciable extent from the general direction of the
coast since "it is the land which confers upon the coastal
State a right to the waters off its c o asts".593
Second was the extent of the relationship between
coastal sea areas and the land formations dividing or s u r
rounding them. This consideration was of "primary i mpor
tance" in the present case, observed the Court:
The real question raised in the choice of base-lines is in effect whether certain sea
areas lying within these lines are sufficiently closely linked to the land doiain to
be subject to the regiie of internal waters. This idea... should be liberally applied
in the case of a coast, the geographical configuration of which is as unusual as that
of Norway.59“*
ports 1951 , 190) in their dissenting Opinions were in

agreement.
Judgment , supra n 5, 133
Ibid. Later (ibid 143), the Court found that the d i f

ference in views between the Parties as to where the
line across one of the fiords should go was "neg l i g
ible" and that "this question is purely local in c h a r
acter and of secondary importance, and...its settlement
should be left to the coastal State". This, in J o h n
son's opinion (supra n 6, 170) "seems to substantiate
the conclusion that the Court approaches the law of
territorial waters with a bias or presumption in favour
of the coastal State". C f , Green, supra n 6, 377; Ko-
bayashi, supra n 6, 36; and Waldock, supra n 6, 150,
171. See also in this regard text accompanying n 115
infra.
Judgment , supra n 5, 133. The C o u r t ’s reference to

"internal waters" is somewhat ambiguous in that the
Judgment describes "the more or less close relationship
existing between certain sea areas and the land forma
tions which divide or surround them" as being one of
199
And finally, the ICJ noted, one consideration extending

beyond purely geographical factors must not be overlooked:
"that of certain economic interests peculiar to a region,
the reality and importance of which are clearly evidenced by
a long usage".35
The Court briefly referred to the above considerations
and the role to be played by reasonableness in rejecting a
British contention that one of the Norwegian baselines was
invalid because it did not respect the general direction of
the coast. The latter rule, explained the Court, while jus
tified, "is devoid of any mathematical precision," and when
the delimitation complained of is examined in the context of
"the general direction of the coast” and not one sector
alone, the divergence is not invalid.55®- Even if the diver
gence was too pronounced, the ICJ added, historical evidence
supported the idea of the survival of traditional fishing
rights within the baselines delimited in 1935. Such rights,
founded on the vital needs of the population and attested by very ancient and peaceful
usage, «ay legitiiately be taken into account in drawing a line which, loreover, ap
pears to the Court to have been kept within the bounds of what is loderate and reason
able.^
"certain basic considerations inherent in the nature of

the territorial sea"(see text accompanying n 52 supra).
Given that the Court’s attention was focussed on the
baseline question, and hence the dividing line between
internal waters and the territorial sea, it would ap
pear that the ICJ, while stating that there need be a
more or less close relationship between the territorial
sea and adjacent land masses, the relationship between
the latter and internal waters need necessarily be
closer. See in this regard n 107 infra.
Ibid (emphasis added). The use of the indefinite arti

cle ’a', rather than the definite article, 'the', is an
indication, of course, that the Court is commenting
here on the general rules of international law relating
to maritime boundary delimitation. Cf, Lauterpacht,
supra n 6, 195.
Judgment, supra n 5, 142

3 7 Ibid. Elsewhere (ibid 136; emphasis added), the Court
referred approvingly to a note from the French Govern
ment to the Norwegian Government in which the former
200
A lth o u g h it was w id ely reco g n ized th at th e C ourt was

b ein g c a lle d upon to a d ju d ica te issu es h av in g im p o rt far be
yond th e in stan t p r o c e e d in g s ,30 th e Judgm ent its e lf is re la
tiv ely b rief and lack s a d etailed ju risp ru d e n tia l an a ly sis
of th e p rin cip les ap p lied by th e C o u rt.39 G iven th e ir po-
s t a t e d t h a t i t was p r e p a r e d t o a c c e p t t h e l a t t e r ' s d e
l i m i t a t i o n as r e s ti n g upon "a p r a c t i c a l stu d y o f th e
c o n f i g u r a t i o n o f t h e c o a s t l i n e and o f th e c o n d itio n o f
th e in h a b ita n ts '* .
S e e , e g , t h e s t a t e m e n t b y t h e C o u n s e l f o r t h e UK o p e n
in g t h e l a t t e r ' s o r a l p r e s e n t a t i o n , i n P le a d in g s , supra
n 7, iv , 23; th e s e p a ra te O p in io n o f Judge A lv a re z , in
J u d g m e n t, s u p ra n 5 , 1 4 5 ; E v e n s e n , s u p ra n 6 , 6 2 8 ; K o-
b a y a s h i , supra n 6, 2 1; S m ith , supra n 6 , 2 9 3 ; W ald o ck ,
supra n 6, 114; and Young, supra n 6, 244.
C f, G F i t z m a u r i c e , " T h e l a w a n d p r o c e d u r e o f t h e I n t e r
n a tio n a l C o u rt o f J u s t ic e , 1951-1954: p o in ts o f su b
s t a n t i v e l a w . - - " ( 1 9 5 4 ) 31 B Y IL 3 7 1 , 3 8 8 ; G r e e n , s u p r a n
6 , 3 7 6 ; J o h n s o n , supra n 6 , 162, 1 6 4 -1 6 5 ; K o b a y a s h i,
supra n 6 , 24; S m ith , supra n 6 , 2 9 4 ; and W aldock,
supra n 6, 197. The l a t t e r i s p r o b a b ly t h e m ost c r i t i
c a l , co m m enting t h a t
The Court has here made some very iaportant pronouncements on general in
ternational law apparently against the weight both of state practice and
ju ris tic opinion without adequately explaining why i t rejected a ll the
fo n e r authority or how i t fe lt able to present i ts own conclusions as
rules of international law binding upon states.
L au terp ach t (supra n 4, 195), on th e o th er hand,

rem arks th a t
c r itic is i on account of the element of subjectivity and generality, of

the Judgient in the Fisheries case must be tempered by the consideration
that innovation by way of legislative judicial action cannot properly aim
at fu ll elaboration and exhaustiveness. Any such method would tend to
formalise the process of judicial legislation which, unavoidable as i t
■ay be on occasions, must not assume the complexion of express legisla
tive regulation.
W ritin g a p p a r e n tly in r e p ly to W ald o ck 's c r i t i

cism , Ham bro (supra n 4, 222) e x p l a i n s t h a t
judgments of the Court are the result of collective drafting. ...[T]his

■ay explain why the reasoning is not always as full and as cogent as
could be wished for. It is necessary to reach a common result and often
that means no more than the highest common denominator. Because the
Court is so very reluctant to reverse its own decisions and i t s own rea
soning, i t is to be expected that the pronouncements will be very econom
ical in that respect.
201
te n tia l e x p la n a to ry v a lu e , th e re fo re , it is u s e fu l to lo o k
b rie fly at i n d i v i d u a l O p in io n s in th e c a s e .* 0
Of t h e tw o s e p a r a t e O p i n i o n s appended to th e J u d g m e n t,
t h a t o f Judge A lv a re z is m ost r e l e v a n t , as h e c o m m e n te d o n
w hat he c o n s id e r e d to be th e g e n e r a l in te rn a tio n a l la w u n
d e rp in n in g th e d e c is io n s .* 1 F lo w in g from h i s 'New I n t e r n a
tio n a l Law ’ p h i l o s o p h y * 2 w ere a num ber o f p r i n c i p l e s w h ic h ,
E d v a r d H am bro ( " L e s o p i n i o n s i n d i v i d u e l l e s e t d i s s i -
d e n t e s d e s m e m b e rs d e l a C o u r I n t e r n a t i o n a l d e J u s
t i c e ” (1 9 6 4 ) 34 NTIR 1 8 1 , 1 9 2 , 193) o b s e r v e s t h a t
pour une comprehension plus exacte de chaque decision de la Cour, il est

essentiel de coiprendre aussi les opinions individuelles et dissidentes.
Elles jettent une luiiere sur ce que la Cour a decide. ...[L]es opinions
individuelles et dissidentes donnent...une base assez solide pour coi
prendre ce qui a 4te decisif et ce qui n'a pas et£ essentiel pour la
■ajorite.
S im ila r ly , L a u te rp a c h t ( supra n 4, 66) e x p la in s th a t

su ch O p in io n s
far froi detracting froa the Standing of the Judgaents or Advisory Opin
ions, add to their vitality, a comprehension and usefulness and greatly
facilitate the fulfillment of the indirect purpose of the Court, which is
to develop and to clarify international law.
C f , R A nand, "The r o l e o f i n d i v i d u a l and d i s s e n t i n g

o p i n i o n s i n i n t e r n a t i o n a l a d j u d i c a t i o n " ( 1 9 6 5 ) 14 ICLQ
7 8 8 , 8 0 3 ; an d J o h n s o n , t e x t a c c o m p a n y in g n 78 i n f r a .
E l s e w h e r e , h o w e v e r , H am bro a l s o s u g g e s t s t h a t t h e im
p a c t o f a n i n d i v i d u a l O p i n i o n may b e d i f f i c u l t t o s p e c
i f y ( s e e n 80 i n f r a ) .
J u d g e H su Mo’ s s e p a r a t e O p i n i o n e x p l a i n e d why h e f e l t
n o t a l l o f t h e s t r a i g h t b a s e l i n e s f i x e d by t h e 1935
N o rw e g ia n D e c re e c o n fo rm e d w ith i n t e r n a t i o n a l l e g a l
p r i n c i p l e s ( F i s h e r i e s C a s e , S e p a r a t e O p i n i o n (H s u Mo)
su p ra n 5, 1 5 4 ).
The p h i l o s o p h y o f A lv a r e z i s e x p l a i n e d i n d e t a i l i n h i s
bo o k s, Le D r o i t I n t e r n a t i o n a l Nouveau dans s e s r a p p o r t s
a v e c l a v i e a c t u e l l e d e s p e u p l e s (1959) and Le D r o i t
I n t e r n a t i o n a l Nouveau: so n a c c e p t i o n , so n 4 tu d e (1 9 6 0 ),
and i n a num ber o f h i s a r t i c l e s . O th e r p u b l i c a t i o n s
r e l a t i n g t o t h e 'New I n t e r n a t i o n a l L a w ’ i n c l u d e R
Dupuy, L e s P r i n c i p e s fo n d a m e n ta u x d e d r o i t i n t e r n a t i o n
a l d a n s l a d o c t r i n e d e M. A l e j a n d r o A l v a r e z ( 1 9 5 8 ) , a n d
M S a m o r e , " T h e New I n t e r n a t i o n a l Law o f A l e j a n d r o A l v a
r e z ” ( 1 9 5 8 ) 52 A J I L 4 1 . A u s e f u l s u m m a ry o f h i s p h i l o s
ophy i s a l s o to be fo u n d in I H u s s a in , D i s s e n t i n g and
S e p a r a t e O p i n i o n s o f t h e W orld C o u r t (1 9 8 4 ) 8 3 - 9 6 .
202
Alvarez claimed, the Court "must bring to light, adapt if
necessary, or even create, with regard to the maritime do
main and, in particular, the territorial sea".*3 They may
be briefly summarized as follows:
Given the great variety of economic and geographical
conditions of States it is impossible to set uniform rules
governing territorial sea limits and delimitation. There
fore, each State may determine both the extent and bound
aries of its own territorial sea, provided that it is done
in a reasonable manner having regard to the State's land
territory and needs of its population; reasons and justifi
cation are provided; the rights of other States are not in
fringed; and it is possible to effectively exercise juris
diction over the area concerned. Besides rights over their
territorial sea, coastal States also have duties, particu
larly concerning fisheries.'®'* In addition, States may fix
an area beyond their territorial sea "over which they may
reserve for themselves certain rights".Ä5S The above rights
Fisheries Case, Separate Opinion (Alvarez), supra n 5,

150. The role of the Court, Alvarez wrote in his Opin
ion, was to resolve cases submitted to it and to de
velop international law (see also n 4 and accompanying
text supra). Because of the profound changes in inter
national society since WWI, the latter function had be
come increasingly important. It had also become more
and more common that on any given topic either no law
existed or else that which did was either obsolete of
suffered from lacunae. Thus, he argued (ibid 146),
the Court lust develop the law of nations, that is to say, it lust remedy
its shortcomings, adapt existing principles to these new conditions and,
even if no principles exist, create principles in conformity with such
conditions.
The principles, he continued, originated in the

legal consciences of peoples and to date had been re
flected in conventions, custom, and the opinions of
qualified jurists. To those must now be added others,
including ICJ decisions (ibid 148-149).
These were not specified in the Opinion.

Evensen (supra n 6, 626) points out that Alvarez "did
not take up for discussion the interesting question of
whether a state has a right to reserve for its nation
als the fisheries in such contiguous zone". No doubt,
203
"are of great weight if established by a group of States,
and especially by all the States of a c o n t i n e n t . A n y
other State may object if it considers that the action taken
by the coastal State regarding the above is contrary to in
ternational law, and all disputes must be settled "in accor
dance with the provisions of the United Nations Charter".
More generally, the sovereignty of States is limited by both
the rights of other States and the factors which make up the
'New International Law' based on social interdependence.0,0
given the Judge's flexible position on the territorial

sea limits, an additional exclusive fishery zone was
not considered necessary.
Alvarez Opinion, supra n 63, 150. Alvarez {ibid) cites

as an example the countries of Latin America which "in
dividually or collectively...[have] reserved wide areas
of their coastal waters for specific purposes...[inclu
ding] the exploitation of the wealth of the continental
shelf".
By this, Alvarez is taken to mean "negotiation, en

quiry, mediation, concilation, arbitration, judicial
settlement, resort to regional agencies or arrange
ments, or other peaceful means of [the disputing par
ties'] choice"(Art 33, Charter of the United Nations).
In adapting general principles to the conditions of

modern life or creating new principles, the starting
point for Alvarez is the fact that the traditional in
dividualistic international regime had been replaced by
a new regime of interdependence and, consequently, "the
law of social interdependence is taking the place of
the old individualistic law"(ibid 149). The character
istics of the former law are as follows:
(a) This law governs not aerely a conunity of States, but an

organized international society.
(b) It is not exclusively juridical; it has also aspects which
are political, economic, social, psychological, etc. It follows that the
traditional distinction between legal and political questions, and be
tween the doiain of law and the do*ain of politics is considerably Modi
fied at the present tiae.
(c) It is concerned not only with the deliaitation of the rights
of States but also with harionizing thea.
(d) It particularly takes into account the general interest.
(e) It also takes into account ail aspects of the every case.
(f) It lays down, besides rights, obligations towards interna
tional society. ...
(g) It condeins abus de droit.
(h) It adapts itself to the needs of international life and de
velops side by side with it.
204
In light of the above, Alvarez concluded that Norway --
in common with all States -- was entitled to determine both
the breadth and how to delimit her territorial sea. In do
ing so, her Decree was reasonable, did not constitute an
abus de droit, and simply reflected "the needs of the popu
lation of the areas in question". Accordingly, Norway
could prohibit other States from fishing within the pre
scribed limits.
The opposite view was expressed by Judges McNair and
Read in their dissenting Opinions. The former Judge, whose
Opinion addressed most directly the above issues, objected
that while the coastal State is permitted by international
law to make minor adjustments in its maritime boundaries
when required "in the interests of clarity and its practical
object, it is not authorized to manipulate its maritime
frontier in order to give effect to its economic and other
social interests".'70 Such an authorization was a novelty,
opined McNair, and without legal foundation. Approbation of
such a practice, he warned, "would have a dangerous tendency
in that it would encourage States to adopt a subjective ap
preciation of their rights instead of conforming to a common
international standard".7,1
IV. Sinnificance of the Judgment with Respect to Fisheries
Although the dispute did not directly relate to fisher

ies per se, the Judgment had an indirect impact of both a
particular and general nature on the development of the law.
Particularly, the Court’s reference to both the role of in-
Ibid 153
Dissenting Opinion (McNair), supra n 51, 161
Ibid 169
205
ternational law and the relevance of economic interests in
matters concerning maritime jurisdiction were of import far
beyond the instant proceedings. Before examining the lat
ter, however, it is necessary to note that the legal value
of the Court’s dicta as standards against which the validity
of national claims to maritime jurisdiction over fisheries
may be assessed“72 is influenced by uncertainties generated
by the economical reasoning of the Judgment itself."73 As
Sir Gerald Fitzmaurice remarks, " [t]here is room for genuine
difference of opinion as to the effect of the Court’s deci
sion on many points".'7'* While attempting so many years
later and with the benefit of hindsight to produce the defi
nitive interpretation of the Judgment would for present pur
poses be an unnecessary and probably sterile exercise, it is
useful nevertheless to note briefly the difficulties encoun
tered by analysts at the time in assessing the implications
of the Judgment, the hermeneutics that resulted, and the
fundamental contribution of the Court to the development of
the law.
First, as noted above, although the Court agreed unani
mously that the validity of any maritime delimitation de
pends upon international law,"70 there was no comprehensive
jurisprudential exposition in the Judgment of the founda
tions upon which the decisions were based that would allow
the positive identification of principles and rules of law
governing aspects of maritime jurisdiction other than those
See n 3 and accompanying text supra.
Fitzmaurice, supra n 59, 426, n 1; cf, Smith, supra n

6, 294; and Johnson (supra n 6, 163) who writes that
In so far as the decision of the Court is to be regarded as a precedent

of general application -- and it is a latter of great difficulty to de-
teraine how far the judpent should be treated as such a precedent and
how far lerely as an ad hoc solution to a very exceptional problea -- in
ternational law on the subject of territorial waters can hardly be said
to have been clarified by it.

206
w ith w h ic h th e C o u rt w as im m e d ia te ly s e iz e d . In fin d in g
fo r N o rw a y , th e n , o n e m ig h t ask w h e th e r th e IC J e n d o rse d th e
u n d e rly in g p h ilo s o p h y of Judge A lv a re z c o n c e rn in g th e rig h ts
of S ta te s to litto ra l w a t e r s P r o f e s s o r Joh n so n o b se rv e s
th a t fro m one p e rs p e c tiv e , A lv a re z ' O p in io n a p p e ars to m ake
e x p lic it c e rta in n o tio n s w h ic h m ay b e im p lic it in th e Judg
m ent and
has the nerit of foraulating a general principle, which is at least readily in te llig i
ble and which gives shape to the Court’sjudgient, that is to say, the principle of
complete freedoa of action for the coastal State subject only to the test of reason
ableness and the check provided by the notion of abas de droit. If this interpreta
tion of the Court's judgment is correct, then Judge Alvarez' Opinion should be read in
conjunction with i t , only as supplying a deficiency in the judgaent, as i t is often
the role of an Individual Opinion to do.-7®
P ro fe sso rs H u s s a in and V e rz ijl a re of th e v ie w th a t in

la y in g dow n e c o n o m ic needs and g e o g ra p h ic re a litie s as c ri
te ria fo r a p p ra is in g th e v a lid ity of m a ritim e d e lim ita tio n ,
th e C o u rt w as in s p ire d by A l v a r e z . " 7,9 A c c o rd in g to V e rz ijl,
" [t]h e C o u rt has e v id e n tly h e s ita te d to o p e n ly fo llo w th e
le a d g iv e n to it b y . . . A lv a re z . . . . B ut w hat e ls e , in re a lity
has th e C o u rt d o n e ? " 00
S ee s ta te m e n t by th e C o u rt, supra n 47, and n 59 and

a c c o m p a n y in g t e x t s u p r a .
See nn 6 3 -6 9 and a c c o m p a n y in g te x t supra.
Jo h n so n , supra n 6, 1 7 4 -1 7 5
H u s s a in , s u p ra n 6 2 , 125; V e r z i j l , s u p ra n 6 , 1 1 4 . It
a p p e a r s t h a t L a u t e r p a c h t ( s u p r a n 4 , 1 9 2 ) h o l d s m uch
t h e sam e v ie w w h en , w i t h o u t m e n tio n in g A l v a r e z , h e
w rite s :
It is probable that in the Fisheries case the refusal of the Court to

recognise the validity of the widely accepted rules relating to base
lin e s... sprang froa the conviction, articulate or otherwise, of the un
satisfactory nature of these rules under lodern conditions, in particular
in relation to the geographical and economic circuistances of the situa
tion with which i t was confronted and which involved the very livelihood
of a fishing population threatened by foreign coapetition araed with aod-
ern and efficient equipient.
See nn 63 and 64 a n d a c c o m p a n y in g te x t supra. C f n 119

and a c c o m p a n y in g te x t infra.
207
S in c e th e J u d g m e n t c o n ta in s no c a te g o r ic a l s ta te m e n t in
th a t re s p e c t, a d e f in it iv e re s p o n s e to th a t q u e s tio n is im
p o s s ib le .® 1 As P ro fe s s o r S m it h c a n d id ly re m a rk s , ’’ t h e num
ber of le g a l p h ilo s o p h ie s is about equal to th e num ber o f
p h ilo s o p h e r s " , and " d iffe r e n t ro a d s m ay l e a d to th e sa m e
p o in t" .® 3 A lth o u g h it is h a r d ly lik e ly th a t A lv a r e z ’ ap
p ro a c h to m a r itim e d e lim ita tio n r e c e iv e d th e consent of th e
o th e r ju d g e s , S m it h a rg u e s , he n e v e r th e le s s concedes th a t
th e c o n c lu s io n s re a c h e d by A lv a r e z ® 3 appear to s ta te c o r
r e c tly what is o th e r w is e to be g a th e re d fro m s c a tte re d pas
sages in th e c o lle c tiv e J u d g m e n t.® * *
S m ith h im s e lf a p p e a rs to le a n to w a rd s th e v ie w s of A l
v a re z in id e n tify in g fo u r " b a s ic c o n c lu s io n s " to be d ra w n
fro m th e J u d g m e n t:
1. Within reasonable lia its aaritiae States are entitled by law to prescribe
the width of their zones of te rrito ria l waters and also to define the base lines fro i
which these zones are to be ieasured i f they do not follow the...coast__
2. The word ’ reasonable' iaplies (i) a legitimate reason or lotive, ( ii) re
spect for the acquired interests of other States, and ( i i i ) the conforaity of the zone
to the general line of the coast.
3. The protection of fisheries or other iaportant interests fo n a le g itiia te
reason for a delimitation which is also reasonable on other grounds.
4. Historical facts aay properly be cited as evidence of t it le to la ritia e
territo ry. I t seeas probable, though this does not clearly appear froa the judgaent,
that historical evidence could not ju s tify the appropriation of any water areas which
at any given tiae had clearly been part of the high seas.®®
In fu tu re , he re a s o n s ,
V e r z ijl, supra n 6, 114
T h i s i s t y p i c a l o f s u c h O p i n i o n s , a s H a m b ro (supra n
6 0 , 1 92 ) e x p la in s : " [ c j ’ e s t d i f f i c i l e de se f a ir e une
id e e c l a i r e e t n e t t e s u r l a v a l e u r e t 1 ' im p o r t a n c e d e s
o p in io n s d is s id e n t e s e t i n d i v i d u e l l e s . On n e p e u t j a
m a is s a v o i r q u e l a 4 t e l e u r e f f e t . " See a l s o , h o w e v e r,
h i s e a r l i e r , m o re p o s i t i v e s t a t e m e n t o n t h e v a lu e o f
i n d i v i d u a l O p i n i o n s (supra n 6 0 ) .
S m it h , supra n 6, 295
See te x t a c c o m p a n y in g n 69 supra.
S m it h , supra n 6, 295; cf, Johnson, supra n 6, 176, n

60
8 3
S m it h , supra n 6, 300
208
So long as...claiis are restrained within ’reasonable’ liiits -- and this is essen
tially a question of fact -- it is unlikely that they can be successfully challenged
in proceedings before the World Court. It seeis certain that the coibined result of
these claiis will be to enlarge the areas withdrawn froi the high seas and placed un
der national sovereignty .0 0
Perceived from a different perspective, however, other

writers at the time were much more reluctant to interpret
the decision as permitting the coastal States such rights.
Shying away from the "extreme” views of Alvarez in favour of
the "more cautious" views of Judge Hsu Mo37 they saw the
Judgment as more restrictive of coastal State rights.00
Probably the most detailed, early analysis of the Judg
ment's implications for fishery jurisdiction from the latter
viewpoint was that of Fitzmaurice who, in 1954, put a tradi
tional interpretation on the Court’s decision. The adjudi
cation of the dispute on the basis of the area in question
being understood by both Parties as a claim to a territorial
sea indirectly affirmed the principle that "a claim to exer
cise exclusive rights within a certain sea area necessarily
implies and involves a claim to that area as territorial wa
ters", he argued.00 Such an inference logically derives
Ibid 293-294; cf, Young, supra n 6, 244-245. In this

respect it is also important to note that the Judgment
also had the important effect of not only expanding the
limits of a coastal State's exclusive fishery jurisdic
tion outwards but also increased the maritime area that
could be claimed as internal waters in which fishing
was also reserved for coastal State nationals.
Johnson, supra n 6, 175. Judge Hsu Mo (Separate Opin

ion, supra n 61, 154) emphasized that the Norwegian
method was a deviation from general international law
and justified "because of her special geographical con
ditions and her consistent past practice which is ac
quiesced in by the international community as a whole".
See, eg, Fitzmaurice, supra n 59, 395-399, 402-403,

426-427; Johnson, supra n 6, 175-176; and Waldock,
supra ii 6, 153.
Fitzmaurice, supra n 59, 375. This principle, he ex

plained (ibid 372), was an important consequence of a
more general principle found in the dissenting Opinion
of Judge McNair (Dissenting Opinion, supra n 51, 160)
which, although not dealt with by the majority of the
209
from t h e statu s of th e sea beyond t e r r i t o r i a l w aters as be
ing res communis i n w h i c h no e x c l u s i v e r i g h t s , fish ery or
o th er, a re reco g n ized . In o t h e r w ords, "a c la im to ex clu
siv e rig h ts in any se a a r e a c a n o n l y b e enforced o n a b a s i s
o f dom inion o v er t h a t area, and t h i s in v o lv es th at th e area
co n sists of t e r r i t o r i a l or n a tio n a l w a t e r s 90
A S tate claim ing r ig h ts in a 'fis h e rie s z o n e ', co n tin
ued F i t z m a u r i c e , w as a s s e r t i n g one o f th r e e th in g s: (1) a
claim to deny o th e r S ta te s th e r ig h t to t h e common f i s h e r y
of th e high s e a s , w h ic h would h e n c e be i n v a l i d ; (2) a rig h t
to a te rrito ria l sea, th e v a l i d i t y of th e claim d e p e n d i n g on
w hether th e w a te rs in q u estio n tru ly fit in to th at categ o ry ;
or (3) th e rig h t to a contiguous zone fo r fish ery pur
p o s e s . 9X R ights e x e rc is e d in th e la tte r type of zone, he
stressed , d id not in clu d e c o a s ta l S tate ex clu siv e fish in g
rig h ts sin ce th e la tte r w ere n o t r e c o g n i z e d on t h e high
seas.
W hile t h e C o u r t ’s p ro n o u n cem en t t h a t m a r itim e d e l i m i t a
tio n a l w a y s d e p e n d s u p o n #i n t e r n a t i o n a l law s p e c i f i c a l l y re
lated to th e method o f d e m a r c a t i n g t e r r i t o r i a l w a t e r s , o b
served F itzm au rice, its ap p licatio n to th e breadth o f t h e
te rrito ria l s e a w as i m p l i c i t and i n e v i t a b l e , "sin ce th ere
w o uld b e no o b j e c t in in tern atio n al law g o v e r n i n g s u c h m a t
ters as th e p o in ts and l i n e s from w h i c h t h e t e r r i t o r i a l sea
C ourt, is e n t i r e l y c o n s is te n t w ith th e la tte r 's

d ecisio n :
To every State whose land territory is at any place washed by the sea,
international law attaches a corresponding portion of aaritiae territory
__ No aaritiae State can refuse [territorial waters]. International law
iiposes upon a laritiae State certain obligations and confers upon it
certain rights arising out of the sovereignty which it exercises over its
aaritiae territory.
F itzm aurice, supra n 5 9 , 376
Ibid
92
Ibid 3 7 7 - 3 7 3 . He e x c l u d e d f r o m h i s d i s c u s s i o n t h e
q u e s ti o n of what r i g h t s in r e s p e c t of f i s h e r i e s a
c o a s t a l S t a t e m ig h t be e n t i t l e d t o e x e r c i s e i n a c o n
tig u o u s zone co n cern in g c o n s e rv a tio n , as th e s u b je c t
w as a t t h e s a m e t i m e b e i n g d i s c u s s e d b y t h e I n t e r n a
t i o n a l Law C o m m i s s i o n ( s e e Ch 7 infra) .
210
was to be draw n, if it did not at th e sam e tim e govern th e
b read th to w h i c h it co u ld be e x t e n d e d . . . " . 9* As a n au to
m atic consequence, he co n tin u ed ,
international law lust also prescribe a standard maximum breadth, universally valid
and obligatory in principle, even though variations lay be allowed in particular
cases, e.g., on the basis of long continued (historic) usage. If this is not so, then
international law would not govern the question of the extent of the territo ria l sea,
since there is no practical difference between saying that international law pre
scribes no standard breadth for that sea, and saying that States are free to deteriine
the breadth as they please.9 '*
That d istan ce rem ain ed th ree m iles, asserted F itzm au -

rice. A lthough m any S t a t e s had d ep arted from th at lim it
sin ce th e 1930 Hague C o n fe re n c e , it s till rem ain ed th e sta n
dard for by far th e larg est sin g le group of S tates and m ust
th erefo re be co n sid ered as th e so le correct m ileag e in th e
absence of sp ecial (eg, h isto ric ) grounds. T his was so, he
co n clu d ed , sin ce
the cancellation of an existing l i i i t lust be accompanied or coipleted by the substi

tution of a new one, or else, in effect, limitation has gone. To displace must be to
replace. ...In the field of territo rial waters, i t can fairly be said that i f interna
tional law no longer recopizes the rule of the larine leape, i t has not replaced it
by any other specific limit — for there is even less general recognition for any
other one limit (be i t 6, 9, 12 or 200 miles) than there is for the marine leape. On
this basis, therefore, international law would no longer govern the breadth of the
territo ria l sea at a ll. But i t has been shown [above] that this is precisely what it
must do. The conclusion is inescapable; if international law has not replaced the
rule of the marine leape with any other one standard breadth, then the marine leape
rule has not been displaced at all, and s t i l l remains.9 *
It w ill be seen from th e above th at w id ely v ary in g in

terp reta tio n s can, and indeed have been, g iv en to th e Judg
m ent c o n c e rn in g th e g e n e ra l p r i n c i p l e s and ru le s of in te rn a
t i o n a l law g o v e r n in g m a r itim e d e l i m i t a t i o n and, by im p l ic a
tio n , th e rig h ts of c o a sta l S ta te s to l i t t o r a l w a t e r s . G iven
both th e n a tu r a l p re d ile c tio n of th e C ourt (a t l e a s t in i t s
early years) to refrain from pronouncing on q u estio n s not
Ib id 383
Ib id 385
9 0
Ib id 386
211
essential to the dispute with which it was seized, and, gen
erally, avoiding so far as possible making dogmatic state
ments of the law,®® no interpretation of the Judgment can
legitimately claim to be both comprehensive and definitive
with respect to extended implications of the various judi
cial statements (nor, in fact, do the above writers make
such claims). With that qualification, the present writer
would suggest that while, on the one hand, the conclusions
drawn by Smith from the Judgment may perhaps be excessively
concessive concerning the rights of the coastal State to ad
jacent waters (the dicta are too general to be more defini
tive in this respect), the conclusions reached by Fitzmau-
rice, on the other hand, appear overly restrictive.
First, it is questionable whether, in fact, the ICJ's
determination of the dispute as one involving a claim to
territorial waters necessarily implies a blanket rejection
by the Court at the time of the legal validity of fishery
zones distinct from the territorial sea. Recognizing both
the forementioned tendency of the Court towards judicial
caution, as well as the acknowledgment by Norway that her
claim was not to an exclusive fishery zone but a territorial
sea,9"7 it would appear safer to conclude that the Judgment
left the status of such zones open for further discussion.’ ’®
Given its restriction to consideration of the territo
rial sea regime, it is suggested that the Court made a mod
est but nonetheless fundamental contribution to the develop
ment of legal principles relating to marine fisheries by ex
plicitly confirming that the validity of maritime delimita
tion depends upon international law. The importance of that
contribution increases if, as Fitzmaurice argues and the
See, eg, W Friedmann, "The International Court of Jus

tice and the evolution of international law" (1970) 14
Archiv des Völkerrechts 3C5, 317, 319; Lauterpacht,
supra n 4, 77ff; and statement by the Court, supra n
47.
See n 3 supra.
9 0
Cf, Evensen, supra n 6, 629, and n 65 supra.
212
present writer considers likely, that confirmation logically
extends, albeit implicitly, to comprehend the breadth of the
territorial sea.99
With respect to the latter, however, it neither inevit
ably nor logically follows that the breadth of the territor
ial sea need always be expressed as a precise numerical dis
tance as Fitzmaurice claimed. The ICJ found that the rule
of the low-water mark along the coast was not binding law
with respect to baseline delimitation, despite having behind
it "as much authority in state practice and in juristic
opinion as any customary rule that has ever been canvassed
before an international tribunal".100 It is arguable, at
least, therefore, given the far more disparate State claims
concerning the breadth of their territorial waters, that the
Court would have similarly declined to endorse the three-
mile limit as universally binding customary international
law.101 a lacuna would not necessarily have been the re
sult, even if, as Fitzmaurice claims, that rule had at one
time been customary law, and accepting his contention that
" [t]o displace must be to replace".102 The Court made clear
It can be argued that such a conclusion can logically

be drawn from the Court’s Judgment, given the reasoning
advanced by Fitzmaurice as well as, inter alia, the
"basic considerations inherent in the nature of the
territorial sea" identified by the Court (see text ac
companying n 52 supra). Cf O'Connell, supra Introduc
tion, n 15, 161; and McDougal and Burke (supra Ch 4, n
70, 491) who argue that the Court's statement cited
above (see text accompanying n 51 supra) is "one of the
most authoritative rejections of the claim that a state
has exclusive competence to determine the width of the
territorial sea...". Referring to the statement, they
opine (ibid 492) that
Nothing in the context reiotely suggests that this declaration would not
be regarded as relevant also to a claiied determination of the width of
the territorial sea. The all-inclusive ten 'sea-areas’ would seem coa-
“ prehensive enough.
100 Waldock, supra n 6, 137
101 See Ch 6 infra.

102
See text accompanying n 95 supra. Other writers agree
ing that 'to displace must be to replace’ include R
213
in its Judgm ent t h a t even in th e absence of p re c ise ru les
governing d e lim ita tio n s , th ere w ere c e r t a i n p rin cip les by
w hich t h e v a l i d i t y of th e la tte r can be j u d i c i a l l y d eter
m ined i n lig h t of ’’b a s i c co n sid eratio n s in h eren t in th e na
tu re of th e te rrito ria l s e a ” . 103 It m ight in d e e d have
r e a c h e d t h e same c o n c l u s i o n w i t h r e s p e c t to th e b readth of
th e te rrito ria l sea if it had b e e n r e q u i r e d to co n sid er th e
q u estio n .
It is w ith r e s p e c t to th e s ig n ific a n c e of those "basic
co n sid eratio n s" th a t th e ICJ made a s e c o n d p a r t i c u l a r con
trib u tio n to th e law c o n c e r n i n g m a r in e f i s h e r i e s . In f i n d
i n g f o r Norway, th e C ourt accorded "the first au th o rita
t i v e " 10** a n d "realistic reco g n itio n t h a t econom ic i n t e r e s t s
-- as w ell as th o s e of d e fe n se , p o lice power and n a t i o n a l
p rid e -- are im p o rtan t j u s t i f i c a t i o n s f o r seaw ard ju risd ic
t i o n " . 1055 C h aracteristically , how ever, it d eclin ed to ex
p lain g en erally i n w h a t way s u c h in terests are to be c o n s i d
ered in determ ining th e v a lid ity of claim s to c o a s ta l w aters
K e a rn e y , " S o u r c e s o f i n t e r n a t i o n a l law and t h e I n t e r n a

t i o n a l C o u r t o f J u s t i c e " i n The F u tu r e o f t h e I n t e r n a
ti o n a l C o u rt o f J u s t i c e (1976; L G ro s s, ed) i i , 610,
6 9 4 - 6 9 5 ; O ’C o n n e l l , s u p r a I n t r o d u c t i o n , n 15, 3 1 ; an d K
S k u k i s z e w s k i , " E le m e n ts o f cu sto m and t h e Hague C o u r t"
( 1 9 7 1 ) 31 ZaÖRV 8 1 0 , 8 4 6 . T here i s n o t, how ever, u n i
v e r s a l a g r e e m e n t on t h e s u b j e c t . W r i t e r s t a k i n g t h e o p
p o s i t e view i n c l u d e G re ig , s u p ra n 3, 20; and Eduardo
J im e n e z d e A r^ c h a g a ( " I n t e r n a t i o n a l law i n t h e p a s t
t h i r d o f a c e n t u r y " ( 1 9 7 8 ) 1 5 9 RDC 1 , 2 1 ) who a r g u e s
t h a t t h e p o s i t i o n e s p o u s e d by F i t z m a u r i c e
iaposes an excessive rigidity upon custoaary international law. It is

true that the aodification or withdrawal of assent by a single State, or
a group of States, cannot abrogate an existing custoaary rule. But the
evidence of the absence of a general consensus in respect of a custoaary
rule causes its disappearance even before the replacing custoaary rule
has aatured.
10:3 See t e x t a c c o m p a n y i n g n 52 s u p r a .
10* Comment b y M a n l e y H u d s o n , 22 J u l y 1952, in (1952) Y IL C

i , 172
1os
" I n t e r n a t i o n a l law - - n a t u r e and e x t e n t o f s o v e r e i g n t y
- - I n t e r n a t i o n a l C o u rt u p h o ld s N orw ay’s b a s e l i n e s drawn
b e t w e e n s e l e c t e d p o i n t s o n o u t l y i n g i s l a n d s ” ( 1 9 5 2 ) 65
H a rv a rd L R 1453, 1455
214
o th er th an th o se advanced by N orw ay. P reclu d ed from m aking
a d e ta ile d an aly sis th ereo f by the m eagre references to
th o se in te rests in th e J u d g m e n t , 10,0 w r i t e r s rev iew in g th e
case deduced sim p ly th at, w h ile not a source of leg al rig h ts
in t h e m s e l v e s , 1 0 "7 e c o n o m i c in te rests are to be co n sid ered
alo n g w ith geographic and o th er f a c t o r s 100 in d eterm in in g
th e reaso n ab len ess, and hence the v alid ity , of sp ecific
c l a i m s . 100
100 See tex t accom panying nn 56 and 57 supra.
1 0 "5F F itz m a u ric e (supra n 59, 402) w r ite s t h a t " f t ] h e e v a lu

a t i o n o f econom ic n eeds i s to o s u b j e c t i v e an o p e r a t io n
to be a c c e p ta b le as a b a s is o f l e g a l r i g h t s " ; c f, Lau
t e r p a c h t , s u p r a n 4, 193, 195
lo e E vensen (su p ra n 6, 630; em p h asis added) rem ark s t h a t

th e Judgm ent r e f l e c t s th e f a c t t h a t c o n s id e r a tio n s to
be ta k e n in to acco u n t in th e i n t e r n a t i o n a l le g a l r u le s
g o verning th e t e r r i t o r i a l sea
are those such as the vital econoaic interest of the regions involved,
the practical needs and the local requireients of the coastal population,
the historic eleient in the case as a proof of such needs and the «ore or
less close relation between the water areas in question and the land. It
seeas only natural that the Court in this regard has not stated all the
elements which lay be of iiportance in the individual case. The elements
expressly lentioned were eleaents of actual iaportance in the case pend
ing before the Court. In other cases new facts and eleaents lay play an
iaportant role and the intrinsic value of the eleaents aentioned say vary
in each case. The Court stressed, however, that in considering these
various eleaents as the basis for deteraining the territo ria l waters of a
state, this territo ria l belt aust not, to any appreciable extent, depart
froa the general direction of the coast.
l o '* L a u te r p a c h t, su p ra n 4, 193; c f , S m ith , su p ra n 6, 295-

296; and S i r G e r a ld F i t z m a u r i c e ("T h e law and p r o c e
d u re s o f th e I n te r n a t io n a l C o u rt of J u s t i c e , 1951-1954:
g e n e r a l p r i n c i p l e s an d s o u r c e s o f l a w " ( 1 9 5 3 ) 30 B Y IL 1,
6 9 - 7 0 ) , who w r i t e s t h a t t h e c o n c e p t o f l e g i t i m a t e i n
t e r e s t s , s u c h a s e c o n o m i c i n t e r e s t s , may p l a y a p a r t i n
th e f o rm a tio n o f a r u l e o r r i g h t in a num ber o f w ays:
i. Legitiaate interests Bay be the inspiration, lotive power or

force behind certain practices of States leading to the evolution of a -
custoaary rule of general international law. But of course the source of
the eventual rule is the custoa or practice: the interests involved are
only the reason for it.
i i. Siailarly, State interests aay be the reason or aotive for
the building up by prescriptive leans of a historic title or special
right not noraally accorded by law. But again, i t is the usage or cus
toa, acquiesced in by other States, that constitutes the legal foundation
215
Among t h e q u estio n s le ft unansw ered by th e C ourt is
w hether, in a ll c a s e s , econom ic in te rests need be ’’c l e a r l y
ev id en ced by a long u s a g e ” . 110 A lthough th o se in te rests
w ere so ev in ced in th e case before the IC J, as L au terp ach t
observes, it is not certain th at a lo n g usage is, or sh o u ld
be, a co n d itio n of th eir relev an ce. E conom ic in te rests may
arise w hich, a lb e it new, are n ev erth eless, d eserv in g of
r e c o g n i t i o n . 111
A num ber of w riters com m ented sh o rtly after th e d eci
sio n was rendered th at th e c rite ria id en tified by th e C ourt
for d eterm in in g reaso n ab len ess of d e lim itatio n s w ere, in S ir
H um phrey W a ld o c k 's w ords, "for th e m ost part su b jectiv e,
[and] c o n stitu te on ly th e vaguest kin d of leg al y ard stick
for m easu rin g th e v alid ity of c l a i m s " . 112 A m ajor pro b lem ,
he e x p la in e d , was th at "reaso n ab len ess i s . . . a su b jectiv e
test, b ein g dependent on th e scales and stan d ard s w hich are
ad o p ted a n d on t h e w eigh t g iv e n th e i n t e r e s t s o f o th er
sta te s in th e freedom of th e s e a s " . 113
The resu lt of h av in g so much d e p e n d on the d isc re tio n
of th e co astal S tate, observed Johnson, is th at it had be-
or source of the right [here mentioned are the Court’s statements cited
in text accompanying nn 55 and 57 supra].
i i i . When the legitimacy of an act depends as a latte r of law on
its reasonableness, the existence of special interests such as economic
ones iay be a justificatory factor, or at any rate a factor to be taken
into account. ...
1X0 See tex t acco m p an y in g n 57 supra.
xxx L au terp ach t, supra n 4, 195, n 18
11:2 W aldock, supra n 6, 169
11=3 I b id 150; c f , F itzm au rice (supra n 59, 411), who

com m ents t h a t
the difficulty inherent in any estimate of what is moderate and reason

able in a base-line is not merely the subjective one: i t is also a ques
tion of the premises — of the point of departure. What lay seem
'moderate and reasonable' from the point of view of the coastal State,
lay not seem so to other States, particularly those whose nationals may
have been accustomed for lany decades to fish in the waters that, by a
'liberal interpretation'[see text accompanying n 54 supra] of principles
already themselves liberal, have been withdrawn from the general and
coimon use, and given over to the exclusive service of a purely local
interest.
216
com e " v i r t u a l l y im p o s sib le to a d v ise w hat th e la w i s in any
p a rtic u la r c a s e " . 11** Such a s i t u a t i o n w o u ld i n c r e a s e th e
lik e lih o o d of d isp u te s a n d m ake t h e i r s e t t l e m e n t m ore d i f f i
c u lt. In so f a r as th e Judgm ent te n d e d to fav o u r th e e x c lu
siv e in te re sts o f th e c o a s ta l S ta te , he c o n c lu d e d , it had
a lso becom e m ore d i f f i c u l t to p ro cu re in te rn a tio n a l ag ree
m ent w ith r e g a r d to th e c o n se rv a tio n of th e re m a in in g a re a s
of th e h i g h s e a s . 1 1=*
O th e r w r i t e r s a t th e tim e to o k th e c o n tra ry v ie w .
A g a in , S m i t h w as p e r h a p s t h e m o s t p o s i t i v e , c o n c lu d in g t h a t
c ritic ism of th e te st of re a so n a b le n e ss as b e in g to o vague
w as u n w a r r a n t e d sin c e th e te st w as t o b e m ade i n acco rd an ce
w ith c r i t e r i a id e n tifie d by t h e C o u r t . 1 1 0 The t e s t w as, he
e x p la in e d , "a f a m i l i a r and n e c e s s a r y fe a tu re of a ll n a tio n a l
s y s te m s o f la w , and i t s h o u ld p r e s e n t no s p e c i a l d i f f i c u l t y
in th e la w o f n a t i o n s " . 1 1 "7
L a u te rp a c h t, w h ile c o n c e d in g t h a t th e t e s t w as " n o t
free o f d i f f i c u l t y , " 110 n e v e r t h e l e s s arg u ed th a t c ritic ism s
o f th e e le m e n ts of su b je c tiv ity and g e n e r a l i t y fo u n d in th e
Judgm ent m ust n e v e r t h e l e s s be te m p e re d by t h e re a liz a tio n
th a t
When faced with a situation in which practice is not unifoni and in which the prepon
derant practice does not yield a rule which, in the case before it, renders possible a
solution deeaed to be in accordance with justice and econoaic or geographic reality,
the Court »ay deea itself justified in adopting a solution which, although far fro*
achieving certainty, is deeaed to eabody the rational principle best suited to provide
the basis of the general rule.1 1 9
It is w ith r e s p e c t to th e la tte r th a t t h e C o u r t m ad e a n
im p o rta n t, m ore g e n e r a l , c o n trib u tio n to th e ju risp ru d e n tia l
Johnson, s u p ra n 6, 162; cf, L a u t e r p a c h t , supra n 6
S e e n 53 a n d a c c o m p a n y in g t e x t supra.
S m ith , supra n 6 , 296
1^ Ibid 2 9 3 - 2 9 4
11Q L a u te rp a c h t, supra n 4 , 195
119 Ibid 1 9 5 - 1 9 6 . See a ls o h is sta te m e n t c ite d in n 79

supra .
217
un d erp in n in g s of the law o f t h e s e a and, in so d o in g , proved
both a tu r n in g p o in t in th e h isto ry of th e law and a c a t a
ly st for su b seq u en t developm ents. W hile, as noted above,
th e Judgm ent l e f t th e law " i n a somewhat f l u i d and i m p r e c is e
s t a t e , " 120 t h e C o u r t a t t h e same t i m e s i g n a l l e d th a t th e
la tte r must in fu tu re be c o n s i d e r e d fro m a new, d ifferen t
p ersp ectiv e. R ather th a n e n d o rsin g a view o f t h e law a s
com prising a s e t of s ta t ic , rig id and p r e c i s e ru les, th e ICJ
adopted a broader, m ore d y n a m ic and f l e x i b l e approach; one
reco g n izin g th at c o n te m p o r a r y law n e ed more c l o s e l y reflect
th e re a litie s of changing, m odern i n t e r n a t i o n a l relatio n s,
in clu d in g a c c o r d i n g an a p p r o p r i a t e ap p reciatio n of fa c to rs
not p rev io u sly and w id e ly c o n s i d e r e d r e l e v a n t . 121 As F i t z -
m aurice o b serv ed y e a rs later,
There can be little doubt that, even if only sub-consciously, the lajority opinion of
the Court in this case reflected a view which was gaining even greater currency out
side (with the eiegence [sic] of the newer nations and the necessity for aid to the
under-developed countries) that the law of the sea, as it had been evolved by the
older «aritiae countries, was unduly restrictive of the rights, and above all of the
econoiic interests, of the coastal state.122
V. C onclusion
As i s tru e of any j u d i c i a l pronouncem ent (and t h e leg al

comments t h e r e o n ) , t h a t made by t h e ICJ i n th e Fisheries
c a s e was n o t f o r m u l a t e d in a vacuum. O u tsid e th e C ourt
cham bers, as F itzm au rice in d ic a tes, num erous, sm all c o a s ta l
1:20 Johnson, supra n 6 , ISO
121 cf, E v e n s e n , supra n 6 , 6 3 0 ; F i t z m a u r i c e , supra n 1 ,

3 9 ; R J e n n i n g s , "A c h a n g i n g i n t e r n a t i o n a l l a w o f t h e
s e a s " ( 1 9 7 2 ) 31 Cambridge L J 3 2 , 3 4 - 3 5 ; K o b a y a s h i ,
supra n 6 , 2 6 ; L a u t e r p a c h t , supra n 4 , 1 9 7 ; a n d C d e
V i s s c h e r , " R e f l e c t i o n s on t h e p r e s e n t p r o s p e c t s o f i n
t e r n a t i o n a l a d j u d i c a t i o n " ( 1 9 5 6 ) 50 AJIL 4 6 7 , 4 7 3 .
12:2 F i t z m a u r i c e , supra n 1 , 4 0 ; cf, G r e e n , supra n 6 , 3 7 7 ;

J o h n s o n , supra n 6 , 1 7 0 ; K o b a y a s h i , supra n 6 , 3 6 ; L a u
t e r p a c h t , supra n 6 ; a n d W a l d o c k , supra n 6 , 1 5 0 , 1 7 1 .
218
States were beginning to challenge the traditional norms
governing the nature and extent of their rights over off
shore resources. In doing so, they came into direct con
flict with the major maritime Powers. Given the signifi
cance of ICJ decisions generally, that rendered by the Court
in 1951 was eagerly welcomed by the smaller coastal States
as bolstering their legal claims to marine resources includ
ing fisheries. While not serving to structure the arguments
advanced by those States ab initio, the Court’s decision had
an undoubted impact on the way those arguments subsequently
unfolded over the years and lent jurisprudential credibility
to the basic grounds upon which the claims rested. It is to
the early post-war conflict between the major maritime Pow
ers and smaller, coastal States that we now turn.
CHAPTER SIX
C O ASTAL STATES R E A C T : A NEW C H A L LENGE

TO THE TRADITIONAL LAW OF THE SEA
On r&iste a 1'invasion des araees; on ne resiste pas a 1' invasion des idees.
Victor Hugo1
I- Introduction
The Truman Proclamations were widely interpreted by

smaller, less powerful coastal States as the ultimate ac
knowledgment of a universal legal right to claim marine re
sources in similar waters off their own shores.2 In the
months and years immediately following the Proclamations,
numerous States lodged analogous or even more extensive
claims to maritime resources.3 The latter generated, in
Histoire d ’un crime, La Chute x

The significance of the American claim can be better
appreciated if one recalls the position of the US after
WWII. David Horowitz (’’International relations since
1957” in Encyclopaedia Britannica (1974; 15th ed) viii,
764) comments:
For a decade and lore prior to 1957, the United States stood as the
supreie and unchallenged arbiter of international relations in the non-
Conunist world. U.S. power was extended politically, ailitarily, and
econoiically in a pervasive global pattern, displacing the prewar eipires
of Europe and Japan, and replacing the» with a Pax Aaericana throughout
the 'free world'.
See also n 105 infra.
See generally: E Brown, "Maritime zones: a survey of

claims" in New Directions in the Law of the Sea (1973;
R Churchill, K Simmonds and J Welch, eds)[volume here
after cited 'New Directions'] iii, 157; and L Focsane-
anu, "Le Droit international maritime de 1'ocean Paci-
fique et de ses mers adjacentes"(1961) 7 AFDI 171.
National legislation proclaiming the unilateral
right to take fishery conservation measures beyond ter
ritorial seas without claiming exclusive rights to
those resources include Canada's Fisheries Act 1952, in
Supplement to Laws and Regulations on the Regime of the
High Seas (Volumes I and II) and Laws Concerning the
Nationality of Ships (1959) 8 UNLS, U.N. Doc ST/LEG/
SER.B/8 [volume hereafter cited '8 UNLS’] 22-23; Cuba's
220
many cases, objections from the major maritime Powers that
the claims exceeded recognized legal parameters. Such ob
jections, in turn, were met with rebuttals from affected
States that those protesting were either misinterpreting the
law of the sea or that the traditional legal principles no
longer reflected contemporary reality and therefore had to
be changed. A ’crisis' developed in the law of the sea sim
ilar to that which was at the same time plaguing interna
tional law generally.'*
The most outstanding example of the divergent positions
held and conflicts generated by the competing claims to ma
rine fishery resources in the immediate post-war period is
that involving the United States and a number of States in
Latin America. To place this important stage in the evolu
tion of the international law of marine fisheries into its
proper context, therefore, it is advantageous to summarize
very briefly the history of claims made and the results of
regional negotiations, followed by a discussion of the mul
tifarious arguments brought to bear by the opposing States
in support of their respective positions.
"Legislative Decree No 1948", dated 25 January 1955, in

A Szekely, Latin America and the Development of the Law
of the Sea (November 1980) ii, booklet 7, doc 15); Ice
land's "Law No 44, concerning the scientific conserva
tion of the continental shelf fisheries, 5 April 1948",
in 1 UNLS, supra Ch 2, n 73, 12-13; India's "Proclama
tion regarding fishing in adjacent seas, 1957" in 8
UNLS, supra this n, 25; and Venezuela's "Act concerning
the territorial sea, continental shelf, fishery protec
tion and air space" of 27 July 1956 (in Szekely, supra
this n, booklet 20, doc 7).
Focsaneanu (supra this n, 182) observes that
claims took the form of internal laws (constitutional
laws, decrees etc) and international proclamations
(declarations, notes verbales etc), often used jointly.
Cf ibid 174; M Kaplan and N Katzenbach, The Political

Foundations of International Law (1961) 148, 150; D
Loring, "The United States-Peruvian 'fisheries' dis
pute" (1971) 23 Stanford L R 391, 395; M McDougal and W
Burke, "Crisis in the law of the sea: community per
spectives versus national egoism" in Studies in World
Public Order (I960; M McDougal et al, eds) 844; and
Szekely, supra n 2, i, Pt 1, 21. See also Ch 4, nn 19-
24 and accompanying text supra.
The following discussion must be prefaced by the obser
vation that, at least until recently, Latin American States
have not had a single position on the law of the sea, nor
has the view of any State in the region toward that law re
mained static over the years.53 Given the benefit of hind
sight, and bearing in mind that much has already been writ
ten on Latin America and the law of the sea,0 the present
discussion will focus on those claims having probably had
the greatest impact on the development of the international
law relating to fisheries: Chile, Ecuador and Peru (here
after referred to collectively as the CEP States).
Cf Brown, supra n 3, 160; A de Soto, "The Latin Ameri

can view of the law of the sea" (1973) 29 Indian Q 126;
Szekely, supra n 4, 10, 60
The 209-page bibliography provided by Szekely (.supra n

4, i, Pt I) is a comprehensive guide to the major works
on the subject. In preparing the comments below, the
following general publications were found useful: O
Abadie-Aicardi, "Ibero-america, el mar territorial y la
lucha por la soberania" (1972) 122 Revista de Politics
Internacional 83; B Auguste, The Continental Shelf: the
Practice and Policy of the Latin American States with
Special Reference to Chile, Ecuador and Peru (I960); E
Brown, "Latin America and the international law of the
sea" in Latin America: the Search for a New Interna
tional Role (1975; R Heilman and H Rosenbaum, eds) 247;
F Garcia Amador, Latin America and the Law of the Sea
(1972), and by the same author, "The Latin American
contribution to the development of the law of the sea"
(1974) 68 AJIL 33 [hereafter cited 'Contribution']; K
Hjertonsson, The New Law of the Sea: Influence of the
Latin American States on Recent Developments of the Law
of the Sea (1973); R Porpeta, "Doctrina hispanoameri-
cana en torno al problema del mar territorial"(1956) #s
86/87 Revista de Estudios Politicos 205; J Samet and R
Fuerst, The Latin American Approach to the Law of the
Sea (1973); Szekely, supra n 4, i; J Yepes, "Les nou-
velles tendances du droit international de la mer et le
droit international americain"(1956) 60 RGDIP 10; and R
Zacklin, "Latin America and the development of the law
of the sea: an overview" in The Changing Law of the
Sea: Western Hemisphere Perspectives (1974) [volume
hereafter cited 'Western Hemisphere Perspectives'] 59.
222
II - Latin American States and Adjacent Fisheries
A. Unilateral and Sub-regional Claims

Although in early years the three-mile limit was recog
nized for some maritime purposes in Latin America, the im
portance of local economic interests meant claims tended to
wards 12 miles, with an additional zone for the exercise of
fishery jurisdiction.'7' That tendency was much stimulated by
the appearance of the Truman Proclamations.
Initial reaction came in the form of unilateral claims;
the first, albeit an aborted one with respect to fisheries,
being that of Mexico. The month after Truman's announce
ments, President Comacho declared that Mexico was claiming,
inter alia, the natural resources of the continental shelf
and "taking steps to supervise, utilise and control the
closed fishing zones necessary for the conservation of this
source of well-being".0 At the same time, Mexico pledged to
recognize the lawful rights of other States based on reci
procity and confirmed the continuation of high seas naviga
tion freedoms.0 Subsequently, however, the necessary legis-
For a survey of pre-1945 claims see Szekely, supra n 4,

24-28 and 37-39. He suggests that the tendency to
claim a contiguous zone was possibly the most signifi
cant contribution made by Latin American States to the
law of the sea before 1945. "It was the force of the
contiguous zone," posits Szekely, "that probably did
away with the three-mile limit and opened an era in the
law of the sea".
"President Declaration with respect to continental

shelf, 29 October 1945” in 1 UNLS, supra Ch 2, n 73,
13-14(emphasis added). That Mexico reacted as quickly
as she did is no doubt due, in part at least, to having
been forewarned of the American initiative (see Ch 4, n
42 supra).
9
On 24 January 1946, the US advised Mexico (Whiteman,
supra Ch 4, n 27, 1221-1222) that it was prepared to
recognize the latter’s extension of jurisdiction over
high seas areas solely for the purpose of conserving
223
la tio n was n e v e r p r o m u l g a t e d , it b e in g e x p la in e d th a t in c lu
d in g as " p ro p e rty of th e n a tio n th e w a te rs of th e sea th a t
cover th e c o n tin e n ta l sh e lf and t h e c o n t i n e n t a l te rra c e " w as
c o n sid e re d c o n tra ry to in te rn a tio n a l l a w . 10
News o f t h e M e x i c a n s e c o n d - t h o u g h t s cam e t o o la te fo r
A rg e n tin a , fo r, c itin g b o th th e T rum an P r o c l a m a t i o n s and th e
M ex ic a n D e c l a r a t i o n as p re c e d e n ts , she d ecreed in 1946 t h a t
her e p ic o n tin e n ta l sea and c o n t i n e n t a l s h e l f w ere s u b j e c t t o
" th e so v e re ig n p o w e r o f t h e n a t i o n " . *11 The " d o c t r i n e " ,
c la im e d A rg e n tin a , w as b o t h " implicitly a c c e p t e d in m odern
in te rn a tio n a l la w " an d s u p p o r t e d by m o d ern s c i e n t i f i c
s t u d i e s . 12
and p r o t e c t i n g f i s h e r y r e s o u r c e s so lo n g a s its fish e ry

i n t e r e s t s in th e a r e a re m a in ed u n a f f e c t e d .
C o n t r i b u t i o n , supra n 6 , 3 5 ; cf , B A m or, " D e r e c h o d e

m ar. A p u n t e s s o b r e e l s i s t e m a l e g a l M e x i c o " ( 1 9 7 2 ) 13
Foro Internacional 2 3 2 , 2 4 4 , a n d by t h e s a m e a u t h o r ,
" M e x i c o a n d t h e l a w o f t h e s e a " i n Western Hemisphere
Perspectives, supra n 6 , 8 1 , 8 6 - 8 7 ; a n d S z e k e l y , supra
n 4 , 66
" D e c r e e No 1 4 , 7 0 8 , c o n c e r n i n g n a t i o n a l s o v e r e i g n t y o v e r
e p i c o n t i n e n t a l s e a and th e A rg e n tin e c o n t i n e n t a l s h e l f ,
11 O c t o b e r 1 9 4 6 ” , i n 1 UNLS, supra Ch 2 , n 7 3 , 4 - 5 .
C o m m e n tin g o n t h e c l a i m t o s o v e r e i g n t y , L o r i n g ( supra n
4, 399) e x p la in s :
The Anglo-Aierican concept of 'sovereignty' has retained its ab

solute quality since Chief Justice John Marshall's 1812 definition that
it is 'necessarily exclusive and absolute...susceptible of no liaita-
tion.' Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 287, 293
(1812). Latin Aaerican lawyers by the iid-1940's, however, regarded
'sovereignty'(soberania) as synonyious with 'jurisdiction,' for an asser
tion of jurisdiction is considered an exercise of sovereignty. Spanish
'soberania'(as used in Latin Aierica) could therefore be liiited or qual
ified and would not necessarily be equivalent to English 'sovereignty' in
all cases.
Cf, J-M H o e f f e l , " L a Z o n a m a r i t i m e p e r u v i e n n e d e

' s o v e r a i n e t e e t d e j u r i d i c t i o n n a t i o n a l e s ' ( Le P ^ r o u e t
l e s 2 0 0 m i l l e s ) " ( 1 9 7 5 ) 79 RGDIP 4 2 2 , 4 3 7 .
S e e a s w e l l , h o w e v e r , n 1 5 8 infra a n d Ch 8 , n 7 5 ,
f o r c o m m e n ts r e g a r d i n g t h e c a s u a l m a n n e r i n w h i c h t e r m s
s u c h a s ' s o b e r a n i a ' w e re u s e d i n L a t i n A m e ric a n c l a i m s .
As w i l l b e s e e n , t h e r e w a s e v e n c o n f u s i o n am ong L a t i n
A m e ric a n j u r i s t s th e m s e l v e s a s t o t h e im p o r t o f t h e i r
c l a i m s ( s e e infra t h i s Ch a n d Ch 7 , n 13 infra).
12
D ecree 1 4 ,7 0 8 , supra n 11 ( e m p h a s i s a d d e d )
224
Panama t h a t same y e a r follow ed s u i t , d ecreein g "n atio n
al ju risd ic tio n " over t e r r i t o r i a l w aters above th e e n t i r e
co n tin en tal sh elf for general fish ery purposes, and t h a t
fish catch es w ere "a n a t i o n a l p roduct" and s u b j e c t to th e
D e c r e e . 13
W hile t h e above claim s r e l a t e d to w aters s u p e rja c e n t to
th e c o n tin e n ta l sh elf, C h ile and P eru to o k th e ir claim s a
step fu rth er. On 2 9 J u n e 1 9 4 7 , C h ile c o n firm e d and d e c l a r e d
her "n atio n al s o v e re ig n ty ” over her c o n tin e n ta l sh elf,
whatever aay be their [sic] depth below the sea...

[as well as] over the seas adjacent to its coasts whatever aay be their depths, and
within those Units necessary in order to reserve, protect, preserve and exploit the
natural resources of whatever nature...placing within the control of the goverment
especially all fisheries and whaling activities with the object of preventing the ex
ploitation of natural resources of this kind to the detriment of the inhabitants of
Chile and to prevent the spoiling or destruction of the said riches to the detrinent
of the country and the Aierican continent.1**
F u tu re dem arcation of th e "p ro tectio n zones" fo r deep-

sea fish in g , added th e D ecree, w o u ld b e made a s c o n v e n i e n t
and " t o conform w ith th e know ledge, d isco v eries, stu d ies and
in terests of C h ile"; but "p ro tectio n and c o n t r o l " w a s imme
d iately d eclared to a d istan ce of 200 n a u t i c a l m i l e s from
th e c o a s t . 10
" D e c r e e No 4 4 9 , f o r t h e r e g u l a t i o n o f s h a r k f i s h i n g by
fo re ig n v e s s e ls in w aters under th e j u r i s d i c t i o n of th e
R e p u b l i c , 17 D e c e m b e r 1 9 4 6 " , i n i b i d 1 6 . A ccording to
H o l l i c k ( F o r e i g n P o l i c y , s u p r a Ch 4 , n 2 6 , 7 1 ) , o v e r t
c o n f l i c t s w e r e a v o i d e d a n d no A m e r ic a n p r o t e s t s w e re
lo d g e d d u e , a t l e a s t i n p a r t , t o P a n a m a's w i l l i n g n e s s
t o l i c e n s e US f i s h i n g v e s s e l s a t a r e a s o n a b l e r a t e , a n d
t h e e f f o r t s o f t h e A m e ric an T u n a b o a t A s s o c i a t i o n and
A m erican Embassy o f f i c i a l s t o s e t t l e d i s p u t e s i n f o r m a l
ly "and to p e rs u a d e th e Panam anians to back o f f t h e i r
claim s".
" P re s id e n tia l D eclaratio n concerning c o n tin e n ta l sh elf,

23 J u n e 1 9 4 7 " , i n 1 UNLS, s u p r a Ch 2 , n 7 3 , 6
Ib id . P i l a r A rm anet ("The eco n o m ic i n t e r e s t u n d e r l y i n g

t h e f i r s t d e c l a r a t i o n on a m a r i t i m e z o n e " i n T he E x c lu
s i v e E c o n o m ic Z o n e : A L a t i n A m e r ic a n P e r s p e c t i v e ( 1 9 8 4 ;
F V i c u n a , e d ) 2 7 ) a n d Ann H o l l i c k ( " T h e o r i g i n s o f 2 0 0 -
m i l e o f f s h o r e z o n e s " ( 1 9 7 7 ) 71 A J I L 4 9 4 ) b o t h e x p l a i n
t h a t i t w a s t h e I n d u s t r i a l C om pa ny o f V a l p a r a i s o ( I N
DUS) , a l o c a l c o m p a n y d e p e n d e n t o n w h a l e s f r e q u e n t i n g
225
The Decree concluded by recognizing similar legitimate
rights of other States on the basis of reciprocity as well
as those of high seas freedom of navigation.
Peru followed Chile on 1 August 1947, issuing a similar
Decree.16 It was noted that "the right to proclaim sover
eignty and national jurisdiction over the...waters which
cover [the continental shelf] and the adjacent seas in the
area required for the maintenance and vigilance of the re
sources contained therein" had been recognized in the above
declarations "and practically admitted in international
law".1"7. The Decree went beyond that of Chile in not recog
nizing claims of other States to fishery resources in Peru
vian waters, whether on a reciprocal basis or otherwise.1®
Chilean waters, that prodded the Government to issue

the Decree. INDUS was fearful of competition from bet
ter equipped European whalers expected to return to the
region after the war. While INDUS only required pro
tection within 50 miles of the coast, the Government
was persuaded by legal experts that for international
recognition of the claim to be realized, a precedent
must be located to lend it legitimacy. That precedent
was thought to be found in the Declaration of Panama of
1939, signed at the International Conference of Ameri
can States in Panama (for text see (1940) 34 AJIL
(suppl) 17), that established a security zone around
the Americas, excluding Canada. While the width of the
zone actually varied from 300 to 500 miles, it was mis
takenly thought that the limit off Chile was approxi
mately 200 miles and this was reflected in the Chilean
Decree. See, at the same time, however, nn 66 and 67
and accompanying text infra for a discussion of the im
portance of oceanographic factors in the determination
of the 200-raile limit.
"Presidential Decree No 781, concerning submerged con

tinental or insular shelf, 1 August 1947", in 1 UNLS,
supra Ch 2, n 73, 16-17. That Peru's actions followed
closely on the heels of Chile's is at least partly ex
plained by the fact that while INDUS was lobbying the
Chilean Government (see n 15 supra), it was simultane
ously holding discussions with private fishing concerns
in Peru (Armanet, supra n 15, 28; Hollick, supra n 15,
499) .
Presidential Decree, supra n 16 (emphasis added)
This, according to Hollick (supra n 15, 500) was due to

Peru's waters having abundant fishery resources and
hence Peru had little interest in fisheries elsewhere.
226
As w e l l , P eru c la im e d h e r a c ti o n s w ere n e c e s s a r y in p art be
cau se of th e sp e c ia l im p o rta n c e o f guano d e p o s i t s to her na
t i o n a l econom y, th e b ird s p ro d u c in g th e guano fe e d in g on t h e
fish of th e area.
The a b o v e c l a i m s w e re f o l l o w e d o v e r t h e n e x t fe w y e a r s
by t h o s e o f o t h e r S t a t e s s e e k in g sim ila r c o n tro l of fis h e r
ie s over th e ir c o n t i n e n t a l s h e l v e s o r e v e n b e y o n d . 1^ They
a lso e lic ite d p ro te sts from o t h e r S ta te s and fo re ig n fish in g
c o n c e r n s . 20 On 2 J u l y 1948, f o r ex am p le, th e U n ite d S t a t e s ,
L o r i n g ( supra n 4 , 4 0 0 ; of , S z e k e l y , supra n 4 , 1 5 2 )
s u g g e s t s t h a t n o m e n t i o n w as m ade o f ' l e g i t i m a t e ' i n
t e r e s t s o f o th e r S ta te s p ro b a b ly b e ca u se n a tio n a ls o f
o t h e r S t a t e s w ere n o t f i s h i n g o f f P e ru a t t h e tim e .
S e e a l s o n 2 2 infra.
S e e , eg, C o s t a R i c a ’ s " M a r i t i m e F i s h i n g a n d H u n t i n g
A c t , e n a c t e d 2 8 S e p t e m b e r 1 9 4 8 " a n d " D e c r e e - L a w No 8 0 3 ,
c o n c e r n i n g c o n t i n e n t a l an d i n s u l a r s h e l f , 2 N ovem ber
1 9 4 9 " i n 1 UNLS, supra Ch 2 , n 7 3 , 8 - 1 0 ; E c u a d o r ’ s " D e
c re e c o n c e rn in g th e l im it s o f th e t e r r i t o r i a l s e a , 6
N o v e m b e r 1 9 5 0 " i n 8 UNLS, supra n 3 , 9 - 1 0 , a n d " C o n g r e s
s i o n a l D e c r e e c o n c e r n i n g t h e c o n t i n e n t a l s h e l f , 21 F e b
r u a r y 1 9 5 1 " i n 1 UNLS, supra Ch 2 , n 7 3 , 3 0 0 ; E l S a l v a
d o r ’s " P o l i t i c a l C o n s t i t u t i o n , o f 7 S e p te m b e r 1950" i n
6 UNLS, supra Ch 2 , n 8 1 , 1 4 ; t h e H o n d u r a n " P r e s i d e n
t i a l D e c r e e No 9 6 , o n 28 J a n u a r y 1 9 5 0 " i n S z e k e l y , su
pra n 3 , b o o k l e t 1 2 , 1 9 - 2 1 ; I c e l a n d ' s "Law No 4 4 " , su
pra n 3 ; a n d t h e R e p u b l i c o f K o r e a ’ s " P r e s i d e n t i a l P r o
c l a m a t i o n o f S o v e r e i g n t y o v e r A d j a c e n t S e a s , 18 J a n u a r y
1 9 5 2 " i n 8 UNLS, supra n 3 , 1 4 - 1 5 .
H o l l i c k ( Foreign Policy, supra Ch 4 , n 2 6 , 8 4 )
s u g g e s ts t h a t th e " f lo o d o f c la im s " sw e e p in g th ro u g h
L a t i n A m e ric a a t t h e t i m e ,
aay have been linked to the heating up of the cold war via the outbreak
of war in Korea, as well as the influx of new U.S. fishing vessels [part
ly due to the failure at the sane tine of the California sardine fishing
industry, leaving aany vessels idle]. Indeed, soae of the claias of the
period aade specific reference to security zones. In addition to the im
petus given to wartiae uncertainty and fears of resource shortages [see
Introduction to Ch 4], the Korean War diverted the attention of the
United States, by then the aajor opponent of expansionist offshore
claias.
See a l s o n 22 infra.
A d e t a i l e d s u r v e y o f t h e p r o t e s t s m a d e by S t a t e s t o t h e
v a rio u s c la im s i s beyond th e sco p e o f th e p r e s e n t w o rk ,
and t h i s d i s c u s s i o n w i l l be l i m i t e d t o t h e A m e ric a n
p r o t e s t s , w h ic h a r e t y p i c a l o f t h o s e lo d g e d . M ore com
p l e t e r e f e r e n c e s a r e f o u n d i n M M o u to n , The Continental
227
w hile e x p re s s in g sym pathetic su p p o rt for co n sid eratio n s re
latin g to fish ery co n serv atio n t h a t had le d A rg e n tin a to
take u n ila te r a l actio n , at t h e same tim e p r o t e s t e d th a t ’’t h e
p rin cip les u n d erly in g th e C la tte r 's ] D eclaratio n d iffer in
l a r g e m e a s u re from t h o s e o f t h e U n ite d S t a t e s P roclam ations
and a p p e a r t o be a t v a r i a n c e w i t h t h e g e n e r a l l y accepted
p rin cip les of in tern atio n al l a w ” . 21 The A m e ric a n p r o t e s t
p articu larly concerned claim s of so v ereig n ty "over th e con
tin e n ta l sh elf and o v e r t h e s e a s a d jac e n t to th e co asts of
A rgentina o u tsid e th e g e n erally accepted lim its of t e r r i t o
rial w aters", and t h a t th e D e cla ra tio n failed "w ith re s p e c t
to fish in g , to accord re c o g n itio n to th e rig h ts and i n t e r
ests of th e U nited S ta te s in th e h igh se a s off th e co asts of
A r g e n t i n a " . 22
S h e l f ( 1 9 5 2 ) 8 9 - 9 6 , a n d ( 1 9 5 6 ) 51 I n t e r n a t i o n a l Law
S i t u a t i o n a n d D o c u m e n t s ( U . S . N a v a l War C o l l e g e ) [ h e r e
a f t e r c i t e d ' I n t e r n a t i o n a l Law S i t u a t i o n ' ] 4 0 1 - 5 0 2 , r e
l a t i n g t o p r o t e s t s b y t h e UK ( t o t h e CEP S t a t e s , C o s t a
R i c a , E l S a l v a d o r , H o n d u r a s a n d I c e l a n d ) , t h e US ( t o
A r g e n t i n a , t h e CEP S t a t e s a n d E l S a l v a d o r ) S w e d e n ( t o
t h e CEP S t a t e s ) , a n d B e l g i u m a n d t h e N e t h e r l a n d s ( t o
Icelan d ). I n t h i s c o n n e c t i o n , i t may b e n o t e d t h a t o n
7 A p r i l 1 9 5 1 , F r a n c e a d v i s e d t h e UK t h a t t h e r e wa s no
duty to p r o te s t in th e absence of form al ad v ice of a
c l a i m ( s e e M outon, s u p r a t h i s n, 9 1 ) .
W hitem an, s u p r a Ch 4 , n 27, 793
Ib id . S i m i l a r p r o t e s t s w ere a d d r e s s e d on t h e same d a t e
to C h i l e ( i b i d 796 -7 9 7 ) and P e ru { i b i d 7 9 8 - 7 9 9 ) . As f o r
t h e e x t e n t o f A m erican " r i g h t s and i n t e r e s t s " in th o se
w a te r s a t t h e tim e , L o rin g {su p ra n 4, 400; em phasis
added) s t a t e s t h a t
No United States fishing interests existed in 1947 within the areas af
fected by the Argentine, Chilean and Peruvian claias, but the booling
southern California tuna fleet expected to expand its operations off Peru
and Chile in the near future. The United States thus had evidently ais-
calculated. Its Fisheries Proclaiation -- recognizing the 'right' of
other coastal states to establish 'explicitly bounded' high seas conser
vation zones, provided United States fishing interests 'which lay exist
in such areas' were 'adequately' recognized [see Ch 4, text accoipanying
nn 30 and 50 supra] — had failed to provide for future U.S. interests.
C f, Sam et and F u e r s t , s u p r a n 6, 75; and H o l l i c k

{ s u p r a n 1 5 , 1 7 , e m p h a s i s a d d e d ) , who w r i t e s t h a t E c u a
d o r and P e ru s u p p o r te d C h i l e ’s i n i t i a t i v e and i s s u e d
t h e i r own c l a i m s t o p r o t e c t t h e i r f i s h i n g f l e e t s a s
" t h e p r o s p e c t o f A m erican tu n a f i s h i n g i n w a te r s o f f
228
In 1951, th e U n ite d S t a t e s m ad e a s i m i l a r p ro te st to
E cu ad o r, s ta tin g , in ter a lia , th a t th e fo rm er had " in common
w ith th e g r e a t m a jo r ity of o th e r m a ritim e n a tio n s , lo n g a d
h ered to th e p rin c ip le th a t th e b e lt of t e r r i t o r i a l w a te rs
e x te n d s th re e m ile s from t h e c o a s t s " . 23 It th e re fo re re
served its rig h ts and i n t e r e s t s a s w e ll a s t h o s e o f A m e ric a n
t h e i r s h o r e s w as g r o w i n g " . E lse w h ere ( F oreign P o lic y ,

s u p r a Ch 4 , n 2 6 , 8 2 ) s h e s t a t e s :
Since the 1930s, the U.S. has had only liiited whaling operations and
relatively few tuna boats fishing off Ecuador. Only after the discovery
in 1947 of a rich tuna fishing ground sixty liles off the Peruvian coast
did the level of U.S. fishing efforts there increase significantly.
A u g u s t e ( s u p r a n 6 , 1 0 7 , n 7) w r i t e s w i t h r e s p e c t
t o t h e A m e ric an p r o t e s t t o A r g e n t i n a t h a t t h e r i g h t s
r e f e r r e d t o w e re t h o s e o f f i s h i n g by a l l S t a t e s on t h e
h ig h s e a s , r a t h e r th a n to any r i g h t s t h a t m ig h t h av e
b e e n a c q u i r e d by e a r l i e r a c t i v i t i e s o f A m e ric a n f i s h e r
men o f f A r g e n t i n e c o a s t s . He s u g g e s t s ( i b i d 1 0 9 ) t h a t
t h e p r o t e s t "w as an e x a m p le o f t h e c i t i n g o f i n t e r n a
t i o n a l la w , l e s s b e ca u se o f a S t a t e ’s i n t e r e s t s in th e
r u l e o f la w , b u t f o r t h e m ore i m p o r t a n t d e f e n c e o f i t s
own n a t i o n a l i n t e r e s t s " . In th e l a t t e r r e g a r d , he co n
t i n u e s ( i b i d 243, n 2 ),
the U.S. was sore concerned with the econoiic side of the question [of
extended laritiie claias] than international law, per se, but utilized
the legal weapon as it was the only possible resort. With the existence
of the Cold War. . . it was unlikely that severe econoaic pressures or ex
tensive ailitary action would be instituted, as it was iapossible to
foretell the reactions of the Latin Aaerican States or the repercussions
of such actions.
A d i f f e r e n t v ie w o f A m e ric a n in v o lv e m e n t i n L a t i n
A m e r i c a n f i s h e r i e s w as e x p r e s s e d b y S e n a t o r G r e e n , t h e
t h e n C h a i r m a n o f t h e US S e n a t e F o r e i g n R e l a t i o n s Com
m i t t e e , w ho, o n 17 A u g u s t 1 9 4 9 , s t a t e d t h a t " t h e t u n a
f i s h e r y o f th e w e st c o a s t o f L a tin A m e r i c a . . . i s a m ost
v a l u a b l e f i s h e r y and h as been d e v e l o p e d e x c l u s i v e l y b y
U nited S t a t e s f i s h e r m e n . ( c i t e d in S B a y itc h , I n t e r -
a m e r i c a n Law o f F i s h e r i e s ( 1 9 5 7 ) 1 2 , n 8 ; e m p h a s i s
ad d ed ).
W h ite m a n , s u p r a Ch 4 , n 2 7 , 8 0 1 . No s p e c i f i c r e f e r e n c e
t o t h r e e m i l e s w as c o n t a i n e d i n e a r l i e r p r o t e s t n o t e s .
Nor d i d an y A m e ric a n p r o t e s t n o t e r e f e r t o P r e s i d e n t
R o o s e v e l t ' s 1 9 3 9 a d v i c e t o t h e B r i t i s h t h a t t h e US t e r
r i t o r i a l w a t e r s e x t e n d a s f a r a s r e q u i r e d b y US i n t e r
e s t s an d n o t n e c e s s a r i l y t o o n l y t h e 200 m i l e s s p e c i
f i e d i n t h e l a t t e r ' s A n ti-S m u g g lin g A ct o f 1935 ("R e
g im e o f t h e h i g h s e a s [M em orandum p r e s e n t e d b y t h e S e c
r e t a r i a t ] ( A /C N . 4 / 3 2 ) " i n ( 1 9 5 0 ) Y I L C i i , 6 7 , 8 1 ) .
229
nationals and vessels in regard to the claim. Ecuador re
sponded by seizing American fishing boats.2**
Feeling threatened by rhe above protests and the pos
sibility of economic sanctions,20 the CEP States in 1952
convened the First Conference on the Exploitation and Con
servation of the Maritime Resources of the South Pacific.
There they adopted the Declaration of Santiago on the Mari
time Zone, proclaiming "as a principle of their internation
al maritime policy” that they each possessed "sole sover
eignty and jurisdiction" over adjacent maritime waters
"extending not less than 200 nautical miles from their
coasts".20 At the same time, however, "innocent and inof
fensive passage"' of vessels through that zone would be per
mitted .27
Following the Conference, the CEP States initiated more
rigorous enforcement of their claims, seizing American and
other fishing vessels. Perhaps the most noteworthy capture
at this time was that of fishing vessels belonging to Aris
totle Onassis which had been sent from Germany with the spe
cific intent of challenging Peru's 200-raile limit.20
Loring, supra n 4, 402; B Smetherman and R Smetherman,

"The CEP claims, U.S. tuna fishing and inter-american
relations" (1970) 14 Orbis 951 [hereafter cited
'Smetherman'] 952
Loring (supra n 4, 402) notes that at this time the

American tuna industry was putting pressure on the US
Government to impose tariffs against imported tuna
which would have threatened the Peruvian industry.
"Declaration on the Maritime Zone, adopted on August

18, 1952 in Santiago, by Chile, Ecuador and Peru", in 6
UNLS, supra Ch 2, n 81, 723-724
Ibid. The CEP States also indicated their intention to

sign agreements or conventions giving effect to their
policy and to establish general regulations for the
control and protection of hunting and fishing in their
respective maritime zones.
Loring, supra n 4, 403-404; and Auguste, supra n 6,

156-158. Seizure of American fishing vessels by Ecua
dor led to bilateral negotiations between the two coun
tries in 1953 at which certain measures were formulated
relating to the granting of fishing licenses. At the
230
Faced with increased fishing activity by foreign ves
sels off their coasts, further protests by various States,
international efforts by the United States to secure support
for their position, and the adoption by the latter of the
Fishermen's Protective Act of 1954,^ the CEP States moved
to ratify and integrate into domestic law agreements reached
at their 1952 Conference30 and met in December 1954 for a
second tripartite conference. There, they signed a declara
tion agreeing to present a united front in support of their
200-mile claims, and not to unilaterally reach any agreement
with other States implying a diminution of sovereignty over
their proclaimed zones.31
As a result of further seizures by Ecuador of American
fishing vessels in early 1955, the CEP States met with the
United States in an attempt to settle outstanding differ-
same time, however, both States maintained their res

pective positions concerning the applicable legal prin
ciples, it being agreed that the latter were "matters
for determination only by the general agreement of
maritime States"(Whiteman, supra Ch 4, n 27, 1093).
P L No 680, August 27, 1954; 89 Stat 660 (1965). The

Act provides for the reimbursement to fishermen of
fines and payments incurred in areas regarded by the US
as high seas, and for the Government to take such ac
tion as it deems appropriate in regard to the State in
question.
See Chilean Decree No 432, September 23, 1954, in Di-

ario Oficial, November 22, 1954; Ecuador’s Executive
Decree No 275, February 7, 1955, in Registro Oficial,
24 January 1956; and Peru’s Legislative Resolution
12305, May 6, 1955, in El Peruana, 12 May 1955.
"Agreement Supplementary to the Declaration of Sover

eignty over the Maritime Zone of Two Hundred Miles,
adopted on December 4, 1954, in Lima, by Chile, Ecuador
and Peru", in 6 UNLS, supra Ch 2, n 81, 729-730.
The three States also adopted at the 1954 Confer
ence agreements relating to penalties; measures of
supervision and control in their maritime zones; the
issue of permits for the exploitation of marine re
sources ; the regular annual meeting of a Standing Com
mittee they had established in 1952; and a special mar
itime frontier to prevent disputes involving nationals
of any of the CEP States in the maritime zones of ei
ther of the other CEP States (ibid 730-735).
231
ences.32 The negotiations were concerned, at one level,
with the conservation of fishery resources of the southeast
ern Pacific, but, more fundamentally, with the legal rights
of coastal States to those resources. The United States
suggested the establishment of an international fishery com
mission in which each State would have equal representation.
A State would be considered as having an interest in the
conservation of a particular fish stock if it either fished
for that stock or the latter occurred in its adjacent coas
tal waters. The commission would determine appropriate
conservation measures and recourse would be had to arbitra
tion to settle disputes.33
The CEP States rejected the American proposal, suggest
ing instead an agreement recognizing their exclusive control
of fisheries to 12 miles from the coast as well as beyond
"in areas traditionally exploited by the coastal State".3**
The latter extended some 50 to 60 miles beyond the 12-mile
limit and included the richest fishing grounds. Special
permits would be required for other States to fish within
the 12-mile zone as well as in the second zone for those
States which had not done so for at least 30 years.30 In
the remainder of the 200-mile zones, fishing for tuna and
bait fish would be allowed subject to existing conservation
regulations. The coastal State would have exclusive juris-
See Whiteman, supra Ch 4, n 27, 1101-1110 and 1201-1207

for a detailed review of the deliberations and the doc
uments relating thereto. In May, 1955, the US proposed
to the CEP States that the matter be submitted to the
ICJ for settlement, but that was not acceptable. Peru
is reported to have said that "it does not admit of her
sovereignty being judged"("Territorial waters and the
Onassis Case"(January, 1955) 11(1) The World Today 1
[hereafter cited 'World Today'] 3).
Whiteman, supra Ch 4, n 27, 1104-1105
Ibid 1203
The 30-year provision would have eliminated virtually

all distant-water fishing fleets (except whalers), as
they had only begun arriving in the area in the 1930s,
and then only in limited numbers (Foreign Policy, supra
Ch 4, n 26, 90; see also n 22 supra).
232
diction to enforce regulations throughout the entire 200-
mile zone as well as a preferential position with respect to
harvesting quotas.
The United States was prepared to consider proposals to
deal with special problems or situations involving small CEP
coastal fishing communities dependent directly upon marine
fisheries for their sustenance, such proposals being "justi
fied on humanitarian grounds” .37 Nevertheless, she was not
willing to concede the basic CEP position and no agreement
was reached.
Following the Santiago discussions, however, private
negotiations were held between representatives of the Ameri
can Tunaboat Association and the individual CEP States, and
mutually acceptable regulations were devised that managed to
postpone the legal problems involving the four States until
the 1960s.
B. Regional Consideration of Fishery Jurisdiction3’5*

The CEP States sought support for their position by
both encouraging other Latin American States to advance sim
ilar claims and by seeking endorsement of their position at
the regional level. In 1952, the Inter-American Juridical
Committee submitted to the Inter-American Council of Jurists
a "Draft Convention on Territorial Waters and Related Ques
tions"."*0 Influenced strongly by the CEP States and others
that had made similar or more extensive maritime claims, it
recognized the sovereignty of the coastal State, inter alia,
Whiteman, supra Ch 4, n 27, 1203-1204
Ibid 1106
Loring, supra n 4, 405

For general reviews of this topic see, eg, Abadie-
Aicardi, supra n 6, 113-119; Garcia Amador, supra In
troduction, n 16, 101-108; and A Garcia Robles, "Opin
ion on the breadth of the territorial sea” in Inter-
American Juridical Committee (Rio de Janeiro, 1965) 24-
31.
International Law Situation, supra n 20, 238-239.

233
over the w aters of th e c o n tin en tal sh elf and th e rig h t to
e sta b lish "an area of p ro tectio n , co n tro l and econom ic ex
p lo itatio n ” to 200 m iles from th e s h o r e . ' * *12 B razil, C olom bia
and th e U nited S tates argued th at th e D raft went beyond th e
C o m m itte e ’s m andate and was co n trary to in te rn atio n a l law .
In 1953, th e C ouncil retu rn ed th e D raft to th e C om m ittee for
fu rth er stu d y .^
In 1954, the T enth In ter-A m erican C onference au th o rized
th e co n v en in g of an OAS C o n f e r e n c e on "C o n serv atio n of N atu
ral R esources: th e C o n tin en tal S h elf and M arine W a t e r s " . 4*3
At a m eetin g of th e C ouncil of Ju rists to prepare for the
C onference, th e CEP S t a t e s and some o th er S tates com bined
th eir e ffo rts and under som ewhat c o n tro v ersial circu m stan ces
en g in eered th e ad o p tio n of a R eso lu tio n d eclarin g "th e P rin
c ip le s of M e x i c o " . ' * 4* R ejectin g th e th ree-m ile lim it of ter-
Ib id
I b i d 2 3 8 ; F o r e i g n P o l i c y , s u p r a Ch 4 , n 2 6 , 9 2 ;
W h i t e m a n , s u p r a Ch 4 , n 2 7 , 1 0 9 6 - 1 0 9 7 ; a n d S a m e t and
F u e r s t ( s u p r a n 6 , 1 3 ) , who o b s e r v e t h a t
The Draft Convention of 1952 was a preiature atteipt to gain a consensus

along the Latin Aierican nations on the question of state jurisdiction
over the ocean. At this point in tiie the Majority of the Latin Aierican
nations were not prepared to sake such extensive claias. In light of the
earlier claiis lade by the United States, their reluctance can not be un
derstood easily.
W hitem an, s u p r a Ch 4 , n 27, 1096-1097
I n t e r n a t i o n a l Law S i t u a t i o n , s u p r a n 2 0 , 2 4 4 - 2 4 6 . Ac
co rd in g to P r o f e s s o r J o s e f Kunz ( " C o n t i n e n t a l s h e l f and
in te rn atio n a l la w : c o n f u s i o n a n d a b u s e " ( 1 9 5 6 ) 50 A JIL
828, 847), t h e US o b j e c t e d t o t h e P r i n c i p l e s o n s e v e n
procedural grounds:
(1) There were no preparatory studies by the Perianent Coaaittee of the

Inter-Aierican Council of Jurists, which [the Council] has consistently
recognized as indispensable.
(2) The resolution was based on a nine-country draft resolution (Argen
tina, Chile, Ecuador, El Salvador, Guateiala, Mexico, Peru, Uruguay,
joined later by Costa Rica). In its presentation no stateient was aade
by any of its proponents in explanation or justification of its contents.
(3) There had been virtually no study, analysis, or discussion of the
substantive aspects of the resolution.
234
rito ria l seas as in su fficien t and not co n stitu tin g a ru le of
in te rn atio n a l law , th e C ouncil in term s very rem in iscen t of
th e IC J ’s 1951 F isheries Judgm ent reco g n ized th at each S tate
was com petent to e sta b lish its te rrito ria l sea "w ith in rea
so n ab le lim its, tak in g in to account g eo g rap h ical, g eo lo g ical
and b io lo g ical facto rs, as w ell as th e econom ic needs of its
(4) Pronouncements of the resolution were based on econoiic and scienti

fic assumptions which were debatable and for which no support had been
offered.
(5) In the drafting of the resolution the United States had no part. The
resolution was submitted to Committee I; and despite fundamental consid
erations raised by the United States and other delegations against the
resolution, there was no discussion of those considerations at the one
and only session of the Committee held to debate the document.
(6) The proponents refrained from answering questions and observations of
the states which later voted against or abstained, and they rejected ap
peals for more time to consider the proposal.
(7) The resolution was clearly designed to serve political purposes and
therefore exceeded the competence of the Council of Jurists as a tech
nical-juridical body.
C f S B a y itc h , " " I n t e r n a t i o n a l f i s h i n g p ro b lem s in th e

W e s t e r n H e m i s p h e r e " ( 1 9 5 7 ) 10 M ia m i L Q 4 9 9 , 5 0 1 - 5 0 3 ; H
R e i f f , The U n i t e d S t a t e s a n d t h e T r e a t y Law o f t h e S e a
(1959) 313; S z e k e l y , s u p ra n 4, 239; and M W hitem an,
" T h e t e r r i t o r i a l s e a " ( 1 9 5 6 ) 50 PASIL 1 2 5 , 1 3 1 - 1 3 2 .
R i c h a r d Young ("P a n A m e ric a n d i s c u s s i o n s on o f f s h o r e
c l a i m s ” ( 1 9 5 6 ) 50 A J I L 9 0 9 , 9 1 3 ) o p i n e s t h a t " t h e r e s o
l u t i o n was in d e e d d e s i g n e d a s a p o l i t i c a l m a n e u v e r
r a t h e r th a n a j u r i d i c a l p ro n o u n cem en t," g iv e n , i n t e r
a l i a , t h e f a c t t h a t t h e r e s o l u t i o n was a d o p te d a t t h e
s a m e t i m e a s t h e I n t e r n a t i o n a l Law C o m m i s s i o n ( I L C ) w a s
ab o u t to b eg in i t s f i n a l c o n s id e r a tio n of th e m a tte r
( s e e Ch 7 i n f r a ) p r i o r t o r e p o r t i n g t o t h e UN G e n e r a l
A ssem bly.
I n t h e l a t t e r r e g a r d , W hitem an ( s u p r a t h i s n , 132)
p o i n t s o u t t h a t a l t h o u g h some L a t i n A m e ric a n S t a t e s
p r e f e r r e d p o s tp o n in g th e C iudad T r u j i l l o C o n fe re n c e a t
w h ic h t h e P r i n c i p l e s o f M exico w e re t o be d i s c u s s e d
( s e e n n 5 1 - 5 8 a n d a c c o m p a n y i n g t e x t i n f r a ) , t h e US
s tro n g ly su p p o rted h o ld in g th e C onference as sch ed u led
a s " [ i ] t was o f t h e e s s e n c e , i n t h e U n i t e d S t a t e s v ie w ,
t h a t t h e A m erican R e p u b lic s r e c o n s i d e r t h e s u b j e c t
p r io r to th e m eetin g of th e [ I L C ] . . . " .
S z e k e ly ( su p ra n 4, 279, n 9 1 ) , on t h e o t h e r h an d ,
su g g e sts th a t w hile
[t]he draft had clearly been prepared previously with the intention of
taking the meeting by surprise [and]...the move was seen as a political
one,...(w]hat counts...after a ll is that the majority of States voted
[for] the Resolution instead of rejecting i t . . . .
235
p o p u la tio n , and its se c u rity a n d d e f e n s e ” . -*® At th e sam e
tim e , how ever, it w ent f u r th e r in d e c la rin g th e rig h t of a
c o a sta l S ta te to a d o p t and a d m in iste r n o n -d isc rim in a to ry
fish e ry c o n se rv a tio n m easu res in h ig h seas areas c o n tig u o u s
to its te rrito ria l sea, as w e ll as
the right of exclusive exploitation of species closely related to the coast, the life
of the country, or the needs of the coastal population, as in the case of species that
develop in territorial waters and subsequently Migrate to the high seas, or when the
existence of certain species has an iiportant relation to an industry essential to the
coastal country, or when the latter is carrying out iiportant works that will result
in the conservation or increase of the species.-*0
The R e s o l u t i o n w as a d o p t e d by a v o t e of 15 t o 1 (th e
U n ite d S ta te s) w ith fiv e a b ste n tio n s (B o liv ia , C o lo m b ia ,
C uba, D o m in ic a n R e p u b lic a n d N i c a r a g u a ) . -*"7 In v o tin g
a g a in st th e R e s o lu tio n , th e U n ite d S ta te s argued, in ter
a l i a , t h a t much o f t h e R e so lu tio n w as b o t h c o n tra ry to in
te rn a tio n a l la w a n d w as " c o m p le te ly o b liv io u s of th e in te r-
In tern a tio n a l Law S i t u a t i o n , s u p r a n 2 0 , 245
Ib id . G a rc ia A m ador (supra In tro d u c tio n , n 16, 69, 70)

n o te s th a t
The records of the Council Meeting do not shed sufficient light on this
part of [the] resolution.. .to enable use to see what the bases of these
various cases of exclusive exploitation are.
...The Inter-Aierican Specialized Conference, which net a few weeks later
[see nn 51-58 and accoapanying text infra], decided nothing on this point
and did not even consider it directly.
I n t e r e s t i n g l y , i n l i g h t o f s t r e n u o u s A m e ric a n o p
p o s i t i o n t o t h e R e s o l u t i o n , t h e r i g h t b e i n g a s s e r t e d by
t h e C o u n c i l w as i n p a r t t h e sam e r i g h t c l a i m e d by t h e
US i n t h e B e h r i n g S e a F u r S e a l s A r b i t r a t i o n ( s e e Ch 2 ,
nn 1 0 8 -1 1 6 an d a c c o m p a n y in g t e x t s u p r a ) , an d i n p a r t a
r i g h t w h i c h w o u l d b e c l a i m e d i n f u t u r e b y t h e US w i t h
r e s p e c t t o a n a d r o m o u s s p e c i e s ( s e e Ch 7 , n 9 1 a n d
ac c o m p a n y in g t e x t i n f r a ) .
I n t e r n a t i o n a l Law S i t u a t i o n , s u p r a n 2 0 , 2 4 6 - 2 5 5 . The
S m eth erm an s ( s u p r a n 2 4 , 961) s u g g e s t t h a t t h e i n c r e a
s e d s u p p o r t f o r t h e CEP b y o t h e r L a t i n A m e r i c a n S t a t e s
"w as p a r t i a l l y an e x e r c i s e i n Y ankee b a i t i n g . But i t
a l s o h a i l e d a n ew c h a p t e r i n t h e i n c r e a s i n g l y p r o b l e m
a t i c , w o rld w id e q u a r r e l b e tw e e n t h e d e v e lo p e d m a ritim e
n a t io n s and th e u n d e rd e v e lo p e d c o a s t a l n a t i o n s " . In
t h i s r e g a r d s e e a l s o n 52 an d a c c o m p a n y in g t e x t i n f r a .
236
ests and rights of States other than the adjacent coastal
States in the conservation and utilization of marine re
sources” and the recognized need for international co-opera
tion for conservation p u r p o s e s . B e c a u s e of the above ob
jections and abstentions, as well as the less than whole
hearted support for the Resolution expressed by Brazil,
Guatemala, Honduras. Panama and Venezuela,'*'9’ the Council by
a vote of 11 to 9 reduced the status of the Resolution to a
"preparatory study" and transmitted it to the forthcoming
specialized conference.590
That Conference was held at Ciudad Trujillo, Dominican
Republic, in 1956.31 The ultimate product of the Conference
was the Resolution of Ciudad Trujillo, adopted by unanimous
agreement, which dealt with the continental shelf, marine
resources and territorial waters.32 The Resolution stated
International Law Situation , supra n 20, 254-255. See

also n 44 supra.
Ibid 246-247, 252-254
Whiteman, supra Ch 4, n 27, 70; Foreign Policy , supra

Ch 4, n 26, 93-94
For general discussions of the Conference see "Problems

relating to the economic and legal regime of the high
seas: the Inter-American Specialised Conference on Con
servation of Natural Resources: Continental Shelf and
Marine Waters, Ciudad Trujillo, March 15-28"(May 28,
1956) 34 DOSB 894 [hereafter cited ’Problems’]; and
Whiteman, supra Ch 4, n 27, 1111.
See International Law Situation , supra n 20, 255-264,

for the text of the Resolution and appended statements
of various delegations.
David Browning ("Inter-American fisheries re
sources -- a need for cooperation” (1966) 2 Texas I L
Forum 1, 20) states that the Principles of Mexico con
stituted the most extreme public expression of the US-
Latin American conflict over fisheries, and it was
thought at the time that the very unity of the Americas
would be at stake if the Latin American States insisted
on their position at the Ciudad Trujillo Conference.
As a result of considerable behind-the-scenes negotia
tion and persuasion, the compromise resolution was suc
cessfully adopted.
237
that "cooperation among states is of the utmost desirability
to achieve the optimum sustainable yield of the living re
sources of the high seas, bearing in mind the continued pro
ductivity of all species".533 Attempts by some Latin Ameri
can States to broaden the scientific objectives of conserva
tion to include those of a social and economic character
proved fruit less .
The Resolution pointed out that co-operation "may be
achieved most effectively through agreements among the
states directly interested in such resources" and that the
coastal State had "a special interest in the continued pro
ductivity of the living resources of the high seas adjacent
to its territorial sea".33 The significance of the latter
acknowledgment was much reduced, however, by the fact that
the Conference could not agree on either the nature or scope
of the 'special interest' of the coastal State or how econo
mic and social factors should be considered in conservation
programmes .
• The Resolution concluded by noting the diversity of
opinion on the breadth of the territorial sea and recom
mending simply that it and other matters upon which agree
ment had not been reached be kept under further study.
At the final Conference session, a number of States ar
gued that the Resolution of Ciudad Trujillo did not affect
the Resolution of Mexico City.®'7' The United States, how-
Porpeta (supra n 6, 117-118) describes how "El De-

partamente de Estado restablece la 'Pax yanqui’ via
memorandum".
International Law Situation, supra n 20, 256. In doing

so, the Conference followed the definition of objec
tives of conservation endorsed by the UN International
Technical Conference on the Conservation of the Living
Resources of the Sea, held in Rome the previous year
(see Ch 7, nn 54ff and accompanying text infra).
Problems, supra n 51, 396

International Law Situation, supra n 20, 256
Ibid 256-257
37
See, eg, comments by Mexico (ibid 257-258).
238
ev er, m a in ta in e d th a t th e fo rm er R e so lu tio n c o n stitu te d " th e
la te s t and m ost a u t h o r i t a t i v e e x p re ssio n of th e O rg a n isa tio n
o f A m e ric a n S ta te s on t h e s u b je c ts d isc u sse d t h e r e i n ” . 3®
The C iu d a d T ru jillo m e e tin g w as t h e fin a l, m a jo r m u lti
la te ra l exchange of v ie w s on t h e le g a l re g im e g o v e rn in g
fish e rie s p rio r to th e firs t U n ite d N a tio n s C o n f e r e n c e on
th e Law o f th e Sea. B efo re tu rn in g to th e la tte r, how ever,
it is u sefu l to c o n s id e r in m ore d e t a i l th e a rg u m e n ts ad
vanced in su p p o rt of th e L a tin A m e ric a n c la im s and th e
c o u n te r-a rg u m e n ts, and to m ake som e o b s e r v a t i o n s re g a rd in g
th e s ta te of th a t re g im e on t h e eve of th e C o n feren ce.
Ill- L a tin A m e ric a n C la im s and In te rn a tio n a l Law
A. The L a t i n A m e ric a n s A rgue T h e ir C ase

The m a ritim e c la im s advanced by L a t i n A m e ric a n S ta te s *
d u rin g th e p e rio d under re v ie w (1 9 4 5 -1 9 5 8 ) w ere m u l t i f a r i o u s
in form and e x p r e s s io n , w h ile , at th e sam e tim e , th e a m b ig u
ous te rm in o lo g y co m m o n ly u t i l i z e d , p u rp o se ly or o th e rw ise ,
in th e in stru m e n ts th e m s e lv e s m akes in te rp re ta tio n and c la s
sific a tio n d i f f i c u l t . 3 '5' The p ro b le m of d e te rm in in g th e p re-
Ib id
On t h e d i f f i c u l t i e s g e n e r a t e d by am b ig u o u s te rm in o lo g y ,
S z e k e l y (supra n 4 , 6 0 ) c o m m e n ts t h a t
The problei steamed, probably, froi the fact that the different laws were
dealing with soae new law of the sea concepts, based on principles or
doctrines hardly yet developed, such as the eaerging Continental Shelf
legal concept. Having few or no precedents to borrow fro«, the laws were
basically very iaperfect instruaents, leaving rooa for the speculative
iaagination of the interpreter. It is often difficult, therefore, to de-
teraine exactly what type of an instruaent it is that is being dealt
with, to which aaritiae areas or resources i t applies, what the nature of
the claiaed authority is, and what liaits are established.
Cf, B r o w n , supra n 6 , 2 5 0 ; a n d Z a c k l i n , supra n 6 ,

62. F or a tte m p ts to c l a s s i f y and a n a ly z e in d e t a i l th e
v a r i o u s c l a i m s s e e , eg, B r o w n , supra n 6 , 2 5 7 - 2 6 6 ; G a r -
239
c is e ju rid ic a l n a tu re of th e v a rio u s zones p ro c la im e d is
com pounded by th e s o m e tim e s s h iftin g in te rp re ta tio n s g iv e n
by g o v e rn m e n t re p re s e n ta tiv e s to th e c l a i m s ,00 and even, in
c i a A m a d o r, s u p r a n 6 ; S a m e t a n d F u e r s t , s u p r a n 6 , 4 2 -
68; and S z e k e ly , su p ra n 4 , 7 3 -1 0 2 . T he sam e s i t u a t i o n
as th a t d e s c rib e d above p r e v a ile d in to th e 1960s and
e a rly 1970s. S e e Ch 8 , n n 7 4 a n d 75 a n d a c c o m p a n y in g
te x t in fra .
As f o r t h e p o s s i b l e i n t e n t o f t h o s e f o r m u l a t i n g
n a t i o n a l c la i m s i n a n a m b ig u o u s f a s h i o n , H o e f f e l ( s u p r a
n 1 1 , 4 4 0 - 4 4 1 ) c o m m e n ts t h a t w i t h r e s p e c t t o P e r u
En n'adoptant pas une position claire, i l e ta it plus facile au Perou de

voir, face aux reactions ou protestations d'autres Etats, jusqu'ou i l
pouvait aller dans ses pretentions sans etre lis entiereaent 'hors la
lo i'.
See a ls o re g a rd in g th e above n 160 and a c c o m p a n y in g

te x t and Ch 7 , n 13 i n f r a .
A t t h e C iu d a d T r u j i l l o C o n f e r e n c e ( s e e nn 5 1 -5 8 a n d
a c c o m p a n y in g t e x t s u p r a ) , e g , P e r u 's r e p r e s e n t a t i v e
s t a t e d ( c i t e d i n G a r c i a A m a d o r, s u p r a I n t r o d u c t i o n n
1 6 , 7 9 ) t h a t P e ru w as «
only trying to prevent the existence of the immense wealth in the sea
which bathes its coasts froi being jeopardized by wholesale and
indiscriiinate fishing. ...Peru has no intention of excluding foreigners
from fishing in its maritime zone. All that it desires is that they
should, in the same way as Peru's nationals, accept and coiply with the
measures for conservation laid down, and thus preserve for the future an
iiportant source of wealth.
I n t h e sam e v e i n , G a r c ia A m ador ( i b i d 7 8 - 7 9 ) c i t e s
c o m m e n ts m a d e a t t h e s a m e C o n f e r e n c e b y P r o f e s s o r J u l i o
B u s t a m a n t e , w ho h a d e a r l i e r s i g n e d t h e S a n t i a g o D e c l a
r a t i o n on b e h a lf o f C h ile :
Chile's aims...are to ensure the sost economic exploitation by man of

scare [sic] marine resources. ...The means of achieving thea are a sec
ondary question. . . .Any foraula will be satisfactory if i t makes possible
and hastens the achievement of this important aim.
G a rc ia A m ador c o n c lu d e s (ibid 79) th a t
If [the above] statements are really tantamount to an interpre

tation of the right proclaimed by the [CEP States], they radically change
the juridical nature of the 200-mile maritime zone as stated in the San
tiago Declaration. It is no longer a question of a zone of exclusive ex
ploitation in which the freedom to fish is not recognized but rather of
another area of sea in which the coastal States are vested only with the
power of regulating and supervising that freedom.
Cf G a r c i a R o b l e s , s u p r a n 3 9 , 42.
240
some cases, conflicting concurrent positions held by senior
representatives of the same government as to the precise na
ture of the latter's claim. ■®,x Nevertheless, a common leit
motif of the vast majority of claims is the purported need,
and right, of the coastal State to protect, conserve, and
(in some cases) reserve, the living resources of the adja
cent maritime waters for the benefit of its own nationals .
Thus, rather than attempt an analysis of the various types
of claims asserted, it is more profitable for present pur
poses to examine the arguments underpinning the rights
claims over fishery resources.
Although rarely, if ever, do States of the region ex
plicitly admit that any of the arguments supporting the
above claims are anything but expositions of basic legal
principles, it is clear that some arguments function main
ly as a factual or policy base upon which rest others of a
primarily juridical nature.0"* Consequently, like the Truman
Hoeffel (supra n 11, 436-437) notes that President Bus

tamante y Rivero and his Minister of Foreign Affairs at
the time, Enrique Garcia Sayan, the two signatories of
the Peruvian maritime decree (see n 16 supra) disagreed
between themselves on the exact juridical interpreta
tion of the pronouncement. For Garcia Sayan's analysis
of the Peruvain claim see his Notas sobre la Soberania
Maritima del Peru: Defensa de la 200 Millas de Mar
Peruano ante las recientes Transgresiones (Lima, 1955).
Cf, Auguste, supra n 6, 160; and S Oda, "New trends in

the regime of the seas: a consideration of the problems
of conservation and distribution of marine resources"
(1957) 18 ZaöRV 61, 93. See text accompanying nn 8 and
14 for illustrations of this point.
Szekely, supra n 4, 124
C R Bath ("Latin American claims on living resources of

the sea” (1973) 27 Inter-American Economic Affairs 59,
70-71) divides the arguments of the CEP States into 3
main categories: ecological or environmental, economic,
and political and legal. Szekely (supra n 4, 122)
terms "extra-juridical" physical, biological, economic,
social, political and other considerations of a non-
legal nature. Those which refer to the law he terms
"juridical". The former, he explains (ibid),
241
P ro c la m a tio n s b e f o r e th e m , as tim e p a s s e s o n e o r m ore a r g u
m e n ts of b o th ty p e s becom e i n t e r t w i n e d and a d v an ced in sup
p o rt o f e a c h c la im , e ith e r by S t a t e s th e m s e lv e s o r in th e
w ritin g s of le g a l sc h o la rs. N ot a l l of th e a rg u m e n ts a r e
found in any s in g le c la im , nor a re th e y a ll advanced in any
sin g le w o rk . N e v e rth e le ss, it is u sefu l at th is p o in t to at
le a st id e n tify and d i s t i n g u i s h th e m a in a r g u m e n ts o f e a c h
c a te g o ry so as to be in a b e tte r p o sitio n to assess th e ir
u ltim a te p o sitio n in and i n f l u e n c e on t h e d e v e lo p m e n t o f t h e
la w .
1- The P o l i c y A rsu m e n ts
U n d e r p i n n i n g m any o f t h e L a t i n A m e r i c a n c l a i m s w as t h e
arg u m en t t h a t c o a s t a l S ta te s sh o u ld be a llo w e d to d e lim it
th e ir m a r itim e z o n e s on t h e b a sis o f g e o g r a p h ic a l and g e o lo
g ic a l r e a l i t i e s . 1,5,55 That p o s itio n was h i g h l y d e v e l o p e d by
t h e CEP S t a t e s , w h ic h a r g u e d t h a t t h e i r c la im s to m a ritim e
s o v e re ig n ty had t h e i r sc ie n tific b a sis in th e d e fe n se of th e
’ b io m a ' o f t h e S o u th A m e ric an w e s t c o a s t ,® * "and n o t m e re ly
atteipt to justify the need, and the latter t h e r i g h t s . The

needs behind the aaJdng of a claii fori the policy of the State. The
right that a State claiis to possess is the result of the State's concep
tion of what the law is, independently of whether or not an appropriate
law-deteriining authority would uphold such a contention. Thus, in this
last respect, it is up to the claiiing State to offer evidence of the le
gal validity of its rights according to the law in force. Since such ev
idence was not always properly presented, soae juridical arguaents, by
not successfully proving legal validity, would ultiaately fall in the
extra-juridical category.
G a rc ia Sayan, supra n 61, 41; and S z e k e ly , su p ra n 4,

128
A lo n g t h e w e s t c o a s t o f S o u th A m e ric a t h e A ndes d e s c e n d
a lm o s t v e r t i c a l l y , i n to th e P a c i f i c O cean, w ith one r e
s u l t b e in g th e v i r t u a l t o t a l a b se n c e o f a c o n t i n e n t a l
s h e lf. R i v e r s f lo w in g r a p i d l y from t h e m o u n ta in s p r o
d u c e m a s s i v e l a n d e r o s i o n , d u m p in g r i c h m i n e r a l and
b i o l o g i c a l e le m e n ts i n t o c o a s ta l w a te rs . C o m b in e d w i t h
n u t r i e n t s a l t s b r o u g h t t o t h e s u r f a c e from t h e o c e a n
d e p t h s b y u p w e l l i n g g e n e r a t e d b y t h e H u m b o lt c u r r e n t ,
t h e y r e s u l t i n t h e p r o d u c t i o n o f c o p i o u s a m o u n t s o f ma
r i n e o r g a n i s m s a n d m ak e t h e w a t e r s o f f t h e CEP c o a s t s
am ong t h e r i c h e s t a r e a s o f p e l a g i c f i s h i n t h e w o r l d .
S e e i n t h i s r e g a r d , e g , t h e 1952 D e c l a r a t i o n o f S a n t i
ago ( s u p r a n 2 6 ) , and G G a ig , " A s p e c to s d e l d e re c h o s o -
242
th e c o n se rv a tio n of s to c k s of fis h in w h ic h o th e r c o u n trie s
may h a v e a c o m m e r c i a l i n t e r e s t . . . " . s7 The "p erfect u n ity
and in te rd e p e n d e n c e am ong t h e c o m m u n itie s th a t liv e in th e
sea, th e e n v iro n m e n t t h a t su sta in s th e m , and th e c o a sta l
p o p u la tio n w h ic h needs b o th fo r its s u rv iv a l", th e y c la im e d ,
w as th e concept "from w h ic h th e p re fe re n tia l rig h t of th e
c o a sta l S ta te , in th e s c ie n tific fie ld , d e r i v e s " . ‘s,°
b r e l a s o b e r a n i a y j u r i s d i c c i o n d e l a 200 m i l l a s d e l
M ar P e r u a n o " ( 1 9 7 3 ) 3 4 4 R e v i s t a d e M a r i n a 3 2 1 .
A c c o r d i n g t o t h e CEP S t a t e s , " [ t ] h e W e s t e r n l i m i t
o f t h i s b io m a v a r i e s , b e i n g w i d e r i n t h e C h i l e a n c o a s t
and n a rro w e r in f r o n t o f E c u a d o r, b u t i t a v e ra g e s a p
p r o x im a te l y 200 m i l e s . . . " ( S z e k e l y , s u p r a n 4 , 1 3 2 ).
H o e ffe l ( su p ra n 11, 428, 429) c o n c lu d e s t h a t
Ce chlffre de 200 lilies n’a pas ete deteriine arbitraireient. II repose

sur des considerations scientifiques. En effet, le P&ou s'est trouv£
devant une situation particuliere en raison de la presence le long du
littoral du courant de Huibolt, appeld' aussi courant de P^rou. L’exis
tence du Huibolt expliquera le choix de la distance de 200 lilies. ...
C’est sur la base de [1'influence du courant de Huibolt] et du
fait que les uesures de conservation, pour £tre efficaces, devaient con-
cerner l ’enseible de 1'ecosystMe que la distance de 200 lilies a ete
choisie.
C f A u g u ste , su p ra n 6 , 1 8 8 -1 8 9 . I t w o u ld t h u s appear
t h a t th e e x p la n a tio n o f th e o r ig i n o f 2 0 0 -m ile c la im s
o f f e r e d by A r m a n e t a n d H o l l i c k ( s e e n 15 s u p r a ) sh o u ld
be te m p e re d , a s th e ab o v e r e f e r e n c e seem s to i n d ic a te
t h a t b i o l o g i c a l f a c t o r s may w e l l h a v e h a d s o m e in flu
e n ce in th e s e l e c t i o n o f th e 2 0 0 -m ile l i m i t .
Q u o te d i n A u g u s te , s u p r a n 6, 189. A u g u ste e x p l a i n s
( i b i d 1 8 9 -1 9 0 , 201) t h a t
the te n 'bioia' designates the whole of the coiplex living cosaunities

of a region, which under the influence of the cliiate and in the course
of centuries, becoies aore hoaogeneous, until in its final phase, it be
comes a definitive type.
. . . I t is this eco-oceanographical thesis that constitutes the policy of
the C.E.P. States. ...Basically, i t was the saae policy propounded by the
other Latin Aaerican States, only that the C.E.P. States eipnasized their
own unique conditions which were not all coaaon to the coastal areas of
the other Latin Aaerican States.
S z e k e ly , su p ra n 4, 133. S ee e x p r e s s i o n s o f t h e sam e
a r g u m e n t a d v a n c e d by M C i s n e r o s , "T h e 200 m i l e l i m i t i n
t h e S o u t h P a c i f i c : a n ew p o s i t i o n i n i n t e r n a t i o n a l l a w
w i t h a hum an an d j u r i d i c a l c o n t e n t " ( 1 9 6 4 - 1 9 6 5 ) A . B . A .
S e c t i o n o f I n t e r n a t i o n a l a n d C o m p a r a t iv e Law, P r o c e e d
in g s 56, 58-59.
243
More generally, it was argued that the Humbolt current
prevented the formation of clouds and rain over South Ameri
can west coast areas, resulting in poor agricultural condi
tions and hence a heavy dependence of the CEP States on
fishery resources as a source of food as well as for econo
mic development purposes.10^
Economic motives, in fact, lay at the heart of the en
tire Latin American position on fisheries. Fundamental to
an understanding of that position is an appreciation of the
Latin American States most basic policy goal: national and
regional security. The latter was seen to be based not on
military strength, but rather on the economic development of
the countries of the region: jointly and severally. A key
feature of economic development plans was the better utili
zation Of natural resources, emphasis being placed on adja
cent marine fisheries both to supplement land-based food
supplies and to provide valuable resources for industriali
zation programmes and international trade."7,0
The advancement of national claims to littoral seas was
made to overcome what the Latin Americans considered to be
the major impediment to the accomplishment of those aims:
the wasteful exploitation of fishery resources off their
coasts as a result of unrestricted fishing by foreign ves
sels. Complaining of the "excessive and exhaustive exploi
tation" of fisheries by such vessels, the 1945 Mexican Dec
laration, for example, noted the urgent need to "adequately
protect, work and develop the exceptionally rich fish re-
While Szekely observes that there was rarely, if

ever, an explicit distinction made between what he
terms "extra-juridical" and "juridical" arguments (see
n 64 and accompanying text supra), it would appear that
such a distinction is at least implicitly recognized in
the reference to "scientific field" in the text accom
panying this note.
Bath, supra n 64, 74-76; Cisneros, supra n 68, 59;

Hoeffel, supra n 11, 428-429; and Szekely, supra n 4,
133
Auguste, supra n 6, 192-197, 268-271; De Soto, supra n

5, 136; Szekely, supra n 4, 134-135. See generally in
this regard Introduction to Ch 4.
244
sources with which it has been endowed by nature...".7l it
was essential that control and supervision be extended to
"the places and zones indicated by science for the develop
ment of high-seas fisheries, irrespective of their distance
from the coast".'7’3
Similarly, Peru justified her claim by arguing the need
to "protect, maintain and establish a control of fisheries"
in coastal waters,"in order that these resources which are
so essential to our national life may continue to be exploi
ted now and in the future in such a way as to cause no det
riment to the country's economy or to its food production
t* 73
It was sentiments such as the above that led the 1954

Inter-American Conference of American States to resolve that
it was in the general interest to conserve and utilize ma
rine resources properly "for the benefit of the riparian
State, the Continent and the community of nations,”“7'* and to
reaffirm that coastal States had a "vital interest in the
adoption of legal, administrative, and technical measures
for the conservation and prudent utilization of the natural
resources" in adjacent waters.73
Policy statements enshrined in national claims and re
gional declarations and resolutions such as those noted
above, clearly reflect a growing economic nationalism on the
part of Latin American States, a sentiment usually placed by
the latter within the context of the struggle between econo-
Presidential Proclamation, supra n 8
Ibid; cf, Peru's Presidential Declaration, supra n 16.

For a summary of similar references to the vital eco
nomic importance of fisheries expressed in national
claims see Auguste, supra n 6, 197-198.
Presidential Declaration, supra n 16
"Resolution LXXXIV on conservation of natural resour

ces: continental shelf and marine waters" Tenth Inter-
American Conference of American States (Caracas; March
1-28, 1954), in Szekely, supra n 4, doc 27
73
Ibid
245
m ically p o w e rfu l and w eaker S t a t e s for access to, and con
tro l of, r e s o u r c e s . 76
2. The J u r i d i c a l A rgum ents

To a i d them i n th eir stru g g le, L atin A m erican S t a t e s
inv o k ed a b road p an o p ly of ju rid ical argum ents, p red icated
upon t h e i r own c o n c e p t i o n o f t h e n a t u r e and r o l e of in te rn a
tio n al law a n d m o u ld e d by t h e e x t e r n a l environm ent in w hich
th e y w ere s i t u a t e d . Most f u n d a m e n t a l l y , they argued, th e
S tate had t h e r i g h t to self-p reserv atio n and to p ro tect its
own v i t a l i n t e r e s t s . 7’”7’ The l a t t e r , as w itn e sse d above, were
defin ed p rim arily in econom ic te rm s and e n c o m p a s s e d two p r i
m ary o b j e c t i v e s : satisfy in g essen tial food re q u ire m e n ts of
O f A b a d ie - A i c a r d i, su p ra n 6, 106-107; A uguste, su p ra n
6, 3 4 9 - 3 5 0 ; B B uzan, "The c o a s t a l S t a t e m ovem ent" i n
T o w a r d s a New I n t e r n a t i o n a l M a r in e O r d e r ( 1 9 8 2 ; F L a u r -
s e n , e d ) [v o lu m e h e r e a f t e r c i t e d ’NIMO'] 15, 19; R
F r i e d h e i m , U n d e r s ta n d in g t h e D e b a te on O cean R e s o u r c e s
( 1 9 6 8 - 1 9 6 9 ) 3 - 4 ; L H e n k i n , " O l d p o l i t i c s a n d new d i r e c
t i o n s " i n New D i r e c t i o n s , s u p r a n 3 , 3 , 6 ; S a m e t a n d
F u e r s t , s u p ra n 6, 7 3 -7 4 ; Sm etherraan, s u p ra n 24, 951,
961; S z e k e l y , s u p ra n 4, 140; and Z a c k l i n , su p ra n 6,
60 .
The N o r t h - S o u t h a r g u m e n t was commonly p h r a s e d i n
term s of p o w erfu l m aritim e n a tio n s s e e k in g to m a in ta in
t r a d i t i o n a l norms a t t h e e x p e n s e o f p o o r e r S t a t e s .
G a rc ia Sayan (su p ra n 61, 2 0 ), e g , w r i t e s :
Coaprendese que las grandes potencias aantiaas coio Gran Bre-

tana y Estados Unidos, se nieguen a adiitir derogaciones a los conceptos
tradicionales de las tres lillas y del aar libre, pues 4stos son los uni-
cos que pueden periitirles a las poderosas organizaciones pesqueras de
sus nacionales seguir incursionando, coio hasta ahora, en todos los aares
del aundo, para extraer frente a costas de otras naciones los recursos
que no se encuentran o se hand agotado en las proprias.
F rie d h e im ( su p ra t h i s n, i b i d ) p o i n t s o u t t h a t
" [ t ] h e ' S o u t h ' s t a t e s do n o t h a v e a m o n o p o ly on n a t i o n
a l i s m i n w o r d o r i n d e e d wh en d e a l i n g w i t h o c e a n r e
s o u r c e s , " i n s t a n c i n g , i n t e r a l i a , t h e Truman P r o c l a m a
tio n s. S e e i n t h e l a t t e r r e g a r d , B o r c h a r d , s u p r a Ch 4 ,
n 68.
T G a r a i o c a , "The c o n t i n e n t a l s h e l f and t h e e x t e n s i o n o f
t h e t e r r i t o r i a l s e a " ( 1 9 5 6 ) 10 M ia m i L Q 4 9 0 , 4 9 4 , 4 9 8 ;
L o r in g , su p ra n 4, 4 1 9 -4 2 0 ; S z e k e ly , su p ra n 4, 156;
and Y e p e s , s u p ra n 6, 12. For f u r t h e r d i s c u s s i o n of
t h i s p o i n t s e e nn l O S f f and a c c o m p a n y i n g t e x t i n f r a .
246
th e p o p u la tio n and p ro m o tin g e c o n o m ic d e v e lo p m e n t by th e op
tim u m u tiliz a tio n of a d ja c e n t m arin e reso u rces. W h e th e r th e
la tte r w ere v ie w e d as sim p ly b e lo n g in g to th e S ta te ab Ini
tio;™ h a v in g been b e s to w e d upon it by n a t u r e ; 79 or ap p ro
p ria b le by v irtu e of e ith e r th e ’v i t a l in te re sts' of th e
c o a sta l S ta te ® 0 o r th e in te g ra l re la tio n sh ip b e tw e e n m a rin e
and te rre s tria l e n v i r o n m e n t s ® *1 (o r a c o m b in a tio n th e re o f),
th e above rig h t of s e lf-p re se rv a tio n becam e tra n s la te d in to
a d u ty encum bent upon in d iv id u a l g o v e rn m e n ts to co n serv e and
m anage th o se reso u rces so as to a c h ie v e th e above n a tio n a l
o b je c tiv e s .® 2 Thus th e e s se n tia l lin k b e tw e e n p o lic y and
ju rid ic a l a rg u m e n ts is fo rg e d .® 3
A m ajo r le g a l im p e d im e n t to th e a c h ie v e m e n t of th e ir
o b je c tiv e s w as seen to be th e tra d itio n a l law of th e sea,
S e e , eg, ’’R u l e s o n F i s h i n g in C o l o m b i a n W a t e r s ” o f 13
D ecem ber 1957 ( in S z e k e ly , supra n 3 , b o o k le t 5, doc
11) .
S e e , eg, t h e M e x ic a n D e c la ra tio n of 1945, supra t e x t

a c c o m p a n y in g n 71.
See, eg, C o s t a R i c a ’ s " D e c r e e Law No 1 1 6 ” o f 2 7 Ju ly

1948 (in S z e k e l y , supra n 3 , b o o k l e t 6 , d o c 4 ) .
S e e , eg, t h e CEP S t a t e s ' a r g u m e n t c o n c e r n i n g th e

’ b i o r a a ’ ( n 6 7 a n d a c c o m p a n y i n g t e x t supra).
T h i s i s c l e a r l y e x p r e s s e d i n t h e CEP S t a t e s ' 1952

D e c l a r a t i o n o f S a n t i a g o (supra n 2 6 ) :
1. Governments are bound to ensure for their people access to

necessary food supplies and to furnish them with the means of developing
their economy.
2. It is therefore the duty of each Government to ensure the
conservation and protection of its natural resources and to regulate the
use thereof to the greatest possible advantage of its country.
3. Hence, i t is likewise the duty of each Government to prevent
the said resources from being used outside the area of its jurisdiction
so as to endanger their existence, integrity, and conservation to the
prejudice of peoples so situated geographically that their seas are irre
placeable sources of essential food and economic materials.
A u g u ste o b serv es (supra n 6 , 191) th a t
i t is in the coupling of...economic, biological and oceanographical cri

teria with the duty of the country or countries concerned in the general
local interest, that the policy of the C.E.P. States should be under
stood.
247
and, in p articu lar, th e freedom of th e sea p rin cip le and t h e
th ree-m ile lim it of c o a sta l S tate ju risd ictio n w hich e n a b le d
fo reig n fish in g v essels to ex p lo it fish e rie s near shore.
Views c o n c e r n i n g th e freedom of th e sea p rin cip le
ranged from an a b s o l u t e d e n i a l th a t th e p rin c ip le com pre
hended freedom of fish in g (at l e a s t u n d e r modern c i r c u m
stan ces), to accep tan ce of th e p r in c ip le in su b stan tially
m odified form .
Maximo C i s n e r o s , f o r exam ple, argued th at fo r G rotius
th e freedom of f i s h i n g was o n l y a c o n s e q u e n c e o f t h e freedom
of tra d e , 'th e tru e p rin cip le of th e Freedom o f t h e Sea’ ,
and w h ile t h e la tte r was u n d e n i a b l e and e t e r n a l , th e la tte r
c o u l d d i s a p p e a r . ® -* T h a t w a s w h a t i n d e e d h a d co me t o pass,
he re a s o n e d , because th e resources had proved e x h a u s t i b l e
and l a r g e - s c a l e fish in g ex p ed itio n s had harm ed t h e e co n o m ie s
of sev eral less-d ev elo p ed c o u n tries. T h e r e w a s now a new
leg al situ atio n i n w h i c h Man h a d b e c o m e a " p r e f e r e n t i a l sub
ject" of in te rn a tio n a l law.®® The p o s i t i o n adopted by c o u n
tries s u c h a s P e r u was t h u s a le g itim a te defense of "human
v alu es, th e ph y sical and econom ic s u b s i s t e n c e of a peo
ple".® ® T h e r e a s o n why i n t e r n a t i o n a l l a w w as e t e r n a l , C is-
C i s n e r o s , su p ra n 68, 58. G a rc ia R obles ( su p ra n 39,

36) c i t e s a r e p o r t o f t h e D e p a rtm e n t o f L e g a l A f f a i r s
o f t h e P a n A m e r i c a n U n i o n ( B a c k g r o u n d M a t e r i a l on t h e
A c t i v i t i e s i n t h e O r g a n i z a tio n o f A m e rica n S t a t e s R e
l a t i n g t o t h e Law o f t h e S e a ( D e c e m b e r , 1 9 5 7 ) 8 - 9 )
w hich n o t e s t h a t L a t i n A m erican r e p r e s e n t a t i v e s a t t h e
1956 m e e t i n g i n M exico C i t y ( s e e nn 4 4 f f and a c c o m p a n y
ing t e x t s u p r a )" p o in te d o u t t h a t th e p r i n c i p l e of
'fre e d o m o f t h e s e a s ' r e f e r r e d o n ly t o t h e p r i n c i p l e of
freedom o f n a v i g a t i o n . . . " .
A c c o r d i n g t o G a r c i a A m a dor ( s u p r a n 6 , 7 7 - 7 8 ) , t h e
CEP S t a t e s a t t h a t m e e t i n g ,
upheld the view that the Declaration [of Santiago] was consistent with
the principle of the freedoa of the seas in that it explicitly acknowl
edged the right of all States to innocent and inoffensive passage. As
they clearly stated, that right did not include the freedoa to fish or,
at any events, such freedoa could not be claiaed in any zone of the sea
over which a 'definite State jurisdiction' extended.
C is n e ro s , su p ra n 68, 61. In h i s p a p er C is n e ro s does

n o t d i s c u s s how h e a r r i v e d a t th a t conclusion.
243
neros ex p lain ed , Mi s its cap acity for co n stan t ev o lu tio n ,
for ad ap tatio n to changes in facts so as t o serve th e r e
quirem ents of j u s t i c e " . 37 Thus, th e freedom o f th e sea
p rin cip le "m ust e v o l v e and n o t i n t e r f e r e w ith th e v i t a l
needs of p e o p le and t h e i r rig h t to s u r v i v a l " . 33 S ince th e
resources of c o a s ta l w aters are "in flu en ced d ecisiv ely " by
ad jo in in g land m asses, "it is obvious th at a natural p r e f e r
en tial r i g h t must be e s t a b l i s h e d in favour of c o a s ta l
s t a t e s , " Q-5* h e c o n c l u d e d . And b e c a u s e o f M a n ’ s p r e f e r e n t i a l
p o sitio n in in tern atio n al law , "fish eries should p r e f e r e n
tia lly have a s o c ia l a n d huma n p u r p o s e r a t h e r th a n sim ply a
com m ercial and p r o f i t s e e k in g p u rp o s e and t h e la tte r purpose
sh all be l i m i t e d by t h e r e q u i r e m e n t s of th e f o r m e r " . 30
Ibid 6 0 . Cf t h e 1 9 5 4 d e c l a r a t i o n o f t h e P e r u v i a n F o r
e i g n M i n i s t e r t h a t " t h e w o rld must a c c e p t t h e f a c t t h a t
A m e r i c a i s e l a b o r a t i n g i t s own c o d e o f r i g h t s b a s e d o n
s o c i a l n e ed s w hich a r e a t v a r i a n c e w ith t h e freedom o f
t h e s e a s "(World Today, supra n 3 2 , 2 ) .
C isneros, supra n 6 8 , 58
Ibid 6 1 ; cf , G a r c i a S a y a n , supra n 6 1 , 15-16; and Yepes

(supra n 6 , 3 7 ) , who w r i t e s :
II y aura...une collusion entre deux droits et deux obligations. Et na-

turelleient, le droit et 1'obligation d'un ordre sup&ieur auront la pri
ority. Entre la libertl absolue de la navigation et le devoir de aettre
les richesses de la aer a la disposition d’une huaanite dont les rich-
esses aliientaires diiinuent de plus en plus par l'accroissenent inoui de
la population aondiale, on ne peut pas hesiter. Le vieux principe clas-
sique de la liberte absolue de la ier doit etre assoupli pour ne pas de-
venir une lenace contre la vie *e*e des homes.
C i s n e r o s , supra n 6 8 , 61 ( e m p h a s i s a d d e d ) ; cf, G a r c i a
S a y a n , supra n 6 1 . S e e a l s o t h e s i m i l a r a r g u m e n t by
t h e US i n t h e B e h r i n g S e a F u r S e a l s A r b i t r a t i o n ( supra
Ch 2 , n 1 1 0 - 1 1 2 a n d a c c o m p a n y i n g t e x t ) .
C i s n e r o s , supra n 6 8 , 6 1 . T h e a p p r o a c h t a k e n by C i s
n e r o s e t al r e f l e c t s t h e s t r o n g i n f l u e n c e o f n a t u r a l
law on L a t i n A m e r ic a n t h e o r i s t s g e n e r a l l y . Szekely
(supra n 4 , 1 4 6 - 1 4 7 ) n o t e s t h a t m o s t L a t i n A m e r i c a n i n
t e r n a t i o n a l la w y e r s h av e b een and c o n t i n u e t o be t r a i n
ed u n d e r t h e i n f l u e n c e o f t h e t h e o l o g i c a l and l a y n a t u
r a l law s c h o o l s w h ic h e m p h a s iz e c o n c e p t s e n u n c i a t i n g
m o s t l y p r i n c i p l e s e i t h e r de lege ferenda o r r e g a r d e d a s
so s i m p l e and r e a s o n a b l e t h a t t h e y m ust be u n i v e r s a l l y
v alid . S e e a l s o a s i m i l a r a r g u m e n t a d v a n c e d b y t h e US
249
While agreeing with many of the above arguments, Felix
Garcia Amador, a Cuban jurist, followed a somewhat different
tack, linking changes in the principle of freedom of fishing
to the 'doctrine of abuse of rights'. Because fishery re
sources had proved exhaustible, he reasoned, freedom to fish
could no longer be conceived in terms of a right "of abso
lute and unlimited use".91 Restrictions to that freedom
were now necessary because of the important position of
fishery resources in world economics and their role as a
valuable food source. Traditionally, only the concerted ac
tion of all States concerned with the conservation of a par
ticular fishery resource was compatible with the freedom of
fishing principle, Garcia Amador observed. However, compet
ing commercial, economic and social needs of modern society
revealed "certain loopholes and fundamental deficiencies" in
the rigid application of a system of collective regulation
for conservation purposes. Most importantly, he noted, it
was possible for a single State to render a conservation
programme ineffective by failing to cooperate on the imple
mentation of measures. Allowing such a situation to con
tinue would mean "subordinating the interests in the conser
vation of the riches of the sea to their exploitation, as is
occasionally done for purely commercial and private ends” .93
Although in the past it was impossible to 'abuse' the free
dom of fishing principle, he admitted, that was no longer
the case, and it may be necessary and justified to take
steps to avoid that happening. When considered from the
position of the coastal State, he continued, it was even
more difficult to admit the unrestricted exercise of the
freedom to fish, particularly in cases when fishery re
in the Behring Sea Fur Seals Arbitration (supra Ch 2,

text accompanying n 113) and Ch 8, n 102 infra.
91 Garcia Amador, supra Introduction, n 16, 22. McDougal

and Schlei (supra Ch 1, n 166, 663; emphasis added)
argue that "[f]reedom of the sea is...no absolute and
never has been".
92 Garcia Amador, supra Introduction, n 16, 147

9 3
Ibid 165
250
s o u rc e s w e re s ig n ific a n t to th e econom y of th e c o a s ta l S ta te
or th e fe e d in g of its p o p u l a t i o n . 9 **
G iv e n th e above c r itic is m of th e fre e d o m of fis h in g
p r in c ip le , it is not s u r p r is in g th a t L a tin A m e r ic a n S ta te s
s h o u ld s im ila r ly a tta c k a second and r e la te d m a jo r te n e t of
th e c la s s ic la w of th e sea -- th e th r e e - m ile lim it of t e r r i
to r ia l w a te rs . As e x p la in e d by P ro fe s s o r A n d re s A ra m b u ru y
M enchaca, th e lin k b e tw e e n th e tw o is c le a r :
The enlargement of the te rrito ria l sea would deprive other states of the freedom to
fish which they now enjoy. But i t is necessary nowadays to see whether this activity
is legal or ille g a l. The freedom of the seas grants rights of usage. And as such the
freedom to fish existed. But modern techniques deplete the fisheries and what was
once a right of usage has turned into an illegitim ate usufruct.9 0
As w ith th e fre e d o m of f is h in g p r in c ip le , o p in io n s v a r
ie d as to th e le g a l v a lid ity th ro u g h o u t h is to r y of th e th re e
- m ile lim it of te r r ito r ia l w a te rs . Som e a u t h o r i t i e s , such
as P ro fe s s o r Y epes, a C o lo m b ia n ju r is t, w e re of th e v ie w
th a t " la p re te n d u e r e g le des tr o is m ille s , que d 'a u c u n s vou-
d r a ie n t e r ig e r en dogm e du d r o it in t e r n a tio n a l, n 'a ja m a is
re u n i le s e le m e n ts n ^ c e s s a ir e s pour e tre c o n s id e r e e com m e u n
p r in c ip e in d is c u te de d r o it in t e r n a tio n a l c o u t u m i e r " . 9<s
O th e rs conceded th a t w h ile at le a s t u n til th e daw n o f
th e 2 0 th c e n tu ry " te r r ito r ia l w a te rs w e re c o n s id e r e d u n iv e r
s a lly and w ith o u t q u e s tio n to m ean a b e l t of th re e n a u tic a l
Ibid 1 6 6 . G a r c i a S a y a n (supra n 6 1 , 3 ) e x p la in s t h a t
i t was b e c a u s e P e ru w as fa c e d w it h j u s t such a s itu a
t io n t h a t she to o k u n ila t e r a l a c tio n :
El Peru, con mayores razones s i cabe que los paises que lo antecedieron
en su proclamacion, necesitaba dar une solucion pronta y definida a su
probleaa sin esperar el lento cuando no inalcanzable consenso de la co-
munidad internacional, y mediante una formula que le permitiera oponerse,
desde luego, a las intrusiones de expediciones pesqueras extranjeras que
comprometieran los intereses ecoriomicos del pais.
A A ra m b u ru y M e n c h a c a , " C h a r a c t e r a n d s c o p e o f th e
r i g h t s d e c la r e d and p r a c t ic e d o v e r th e c o n t in e n t a l sea
a n d s h e l f " ( 1 9 5 3 ) 4 7 AJIL 1 2 0 , 1 2 2
Y epes, supra n 6 , 1 2 ; cf, B a t h , supra n 64, 76. S e e Ch

5 , n 21 supra f o r an e x p la n a tio n o f t h e e le m e n ts n e e d e d
f o r th e r e c o g n i t i o n o f a n o rm o f c u s to m a ry i n t e r n a t i o n
a l law.
251
m iles from t h e l o w - w a t e r mark a l o n g t h e c o a s t s . . . " f97 G i d e l
w as n e v e r t h e l e s s correct in deducing from t h e failu re of th e
1930 Hague C o n f e r e n c e t o a g r e e on a t h r e e - m i l e bread th for
te rrito ria l w aters th a t ”[i]l e s t desorm ais im p o s s ib le de
p a r ie r de la 're g le d e 3 m i l l e s ' comme c o n s t i t u a n t u n e r e g l e
de d r o i t in tern atio n al commun p o s i t i f " .
In th e a b se n c e o f su ch a u n i v e r s a l l y v alid ru le, it was
w idely argued th at each S ta te is free, under c e rta in co n d i
tio n s , to u n ilaterally d eterm ine the lim its of i t s own m a r i
tim e ju risd ic tio n .^ In th e first p lace, th eo rists obser
ved, u n ilateral acts had lo n g been r e c o g n i z e d as im p o rtan t
sources o f both g e n e r a l in tern atio n al law and t h e law o f t h e
" S t a t e m e n t o f r e a s o n s s u b m i t t e d by t h e s p o n s o r s [ A r g e n
t i n a , C h i l e , P e ru and M exico] o f t h e D r a f t C o n v e n tio n
on t h e T e r r i t o r i a l W a t e r s a n d R e l a t e d Q u e s t i o n s o f t h e
I n t e r - A m e r i c a n J u r i d i c a l C om m ittee" In te r -A m e r ic a n J u
r i d i c a l C o m m itte e (R io d e J a n e i r o , 1 9 5 2 ) [ h e r e a f t e r
c i t e d 'S t a t e m e n t o f R e a s o n s ' ] , i n S z e k e l y , s u p r a n 4,
P t I I , d o c 1 6 ; c f , G a r c i a A m a d o r , s u p r a n 6 , 26
G G i d e l , "La mer t e r r i t o r i a l e e t l a z o n e c o n t i g u e "

( 1 9 3 4 ) 48 RDC 1 3 7 , 1 9 3 . See in t h i s r e g a r d , eg, G a rc ia
R o b le s , s u p r a n 39, 23; A Aramburu y M e n c h a c a , "E l s y s -
t e m a m a r i t i m o d e l P a c i f i c o S u r y l o s p r i n c i p i o s d e Mex
i c o " ( 1 9 5 8 ) 14 R e v i s t a d e l a F a c u l t a d d e D e r e c h o ( U n i -
v e r s i d a d C e n t r a l de V e n e z u e la ) 183, 185; S t a t e m e n t o f
R e a s o n s , s u p r a n 9 7 , 2 ; t e x t a c c o m p a n y i n g n n 44 a n d 45
s u p r a ; a n d Ch 3 , n 9 9 a n d a c c o m p a n y i n g t e x t s u p r a .
Yepes (su p ra n 6, 26-27), eg, argued th at
Le seul principe certain c’est le droit que possede tout Etat saritiie a
exercer sa propre souverainete sur une zone plus ou aoins large de la ser
baignant ses cotes. ...
[L]e probleie de l ’ltendue de la ier territoriale est une de ces
questions qui, selon le droit international, appartiennent au doiaine re
serve de 1’Etat. N'&ant pas reglee par le droit international et, plus
encore, ne pouvant pas etre reglee par ce droit, cette question releve de
la coipetence nationale de 1'Etat. C'est la, done, un probleie que tout
Etat a le droit de deteriiner d'une saniere autonoae et, il va sans dire,
en respectant strictesent les droits acquis des autres Etats et les
principes reconnus du droit international.
C f, Aram buru y M en ch aca, s u p r a n 9 5 , 123; G a r c i a S a y a n ,

s u p ra n 61, 41; and A A lv a r e z G i l a r d o n i , P F e rn a n d e z y
F e rn a n d e z , and 0 S o r i a n o , " P l a t a f o r m a c o n t i n e n t a l "
(1952) 3 R e v is t a d e la F a c u lta d d e D erecho y C ie n c ia s
S o c ia le s 485, 502.
252
sea -- in c lu d in g th e b re a d th of te rrito ria l w a t e r s . 100 in
p a rtic u la r, n u m e ro u s L a tin A m e ric a n S t a t e s and w r i t e r s c ite d
as le g a l p re c e d e n ts fo r th e p ro ced u res a d o p te d to advance
n a tio n a l c la im s s im ila r m e th o d s ad o p te d by o t h e r c o u n trie s -
- e sp e c ia lly th e T r u m a n P r o c l a m a t i o n s . 101 In s u p p o rt of
th e ir p o sitio n s th e y a lso referred to th e Judgm ent o f th e
IC J in th e 1951 F ish e rie s case d isc u sse d a b o v e . 102
J u rid ic a lly sig n ific a n t fo r th e L a tin A m e ric a n s w as n o t
o n ly th e m e c h a n ism e m p lo y e d by t h e U n ite d S ta te s to advance
th e ir c la im s but a lso th e le g a l g ro u n d s u p o n w h ic h th e y w ere
based. As A l f o n s o A ria s-S c h re ib e r w as t o n o te som e y e a r s
1 00 S e e , e g , A ram buru y M e n c h a c a , s u p r a n 9 5 , 1 2 0 ; G a r c i a
S ayan, su p ra n 61, 17; and Y e p e s, su p ra n 6, 5 6 -5 8 .
The L a t in A m e ric a n s , o f c o u r s e , a r e n o t a lo n e in h o ld
in g t h i s p o s iti o n . S e e , e g , Ch 1 , n 1 6 6 s u p r a .
XQX S ee, e g , C is n e r o s , su p ra n 68, 6 0 -6 1 ; and G a rc ia S ay an ,

su p ra n 61, 16. F o r r e f e r e n c e s t o t h e T rum an P r o c l a m a
t i o n s i n n a t i o n a l c l a i m s s e e , e g , t h e A r g e n t i n i a n D e
c r e e o f 1 9 4 6 ( s u p r a n 11 a n d a c c o m p a n y i n g t e x t ) ; a n d
C h i l e 's D e c l a r a t i o n o f 1947 ( s u p r a n 1 4 ) . A ram buru y
M en ch ac a ( s u p r a n 9 5 , 1 2 0 ; e m p h a s is a d d e d ) w as t y p i c a l
o f m any w r i t e r s i n c o n c l u d i n g t h a t a s a c o n s e q u e n c e o f
th o s e P ro c la m a tio n s ,
by a unilateral act, the United States has proclaiaed that i t has rights
over xean space beyond the traditional distance of three niles;
and...thereby the United States is abandoning the three-«ile rule which
it has defended until recently.
C f, G a rc ia Sayan, supra n 61, 20; and Y epes, supra n 6,

44 -4 5 .
102 O bserved Y epes (supra n 6, 29), for e x a m p le ,
La Cour a d£cid£ que la Norvege etait dans son droit en fixant

unilateraleaent la liaite de ses eaux territoriales sans egard pour la
pretendue 'regle' des trois nilles. L'arr&t est fonde sur 'les
particularites des eaux norvegiennes, les indentations de la cote, la
profondeur, 1'elevation aeae des c3tes, les besoins des populations, les
titres historiques, etc., etc.', c’est-a-dire a peu pres les senes
circonstances que nous avons indiquees pour justifier notre these d’une
aer territoriale speciale pour chaque pays ou groupe de pays.
C f, A ram buru y M en c h a c a , s u p r a n 9 5 , 1 2 2 -1 2 3 . See a ls o

Ch 5 , p a r t i c u l a r l y n n 5 0 f f a n d a c c o m p a n y i n g t e x t s u p r a .
253
later, "P resid en t Trum an did not m en tio n any in tern atio n al
law p rin c ip le ; he sim p ly adduced econom ic reasons for con
serv atio n and defense, based on n a tio n al in te rests and the
rig h ts of the co astal S t a t e " . 10:3
As in d icated above, those self-sam e reasons, in fact,
w ere su b seq u en tly used by L atin A m erican S tates to ju stify
th eir own c l a i m s . The 1947 P eru v ian D ecree, for in stan ce,
invoked th e Trum an P ro clam atio n s and p rev io u s L atin A m erican
d e c la ra tio n s as ev id en ce of its rig h t to make a sim ila r
claim "in fu lfillm e n t of its so v ereig n ty and in defence of
n atio n al econom ic i n t e r e s t s " . 1 0 **
10:3 A A rias-S ch reib er, F o u n d a tio n s o f th e M a ritim e

S o v e r e i g n ty o f P eru (L im a, 1970) 4 ( c i t e d i n B a th ,
supra n 64, 64). G a r c ia S a y a n ( s u p ra n 6 1 , 17) e x
p l a i n s ’th e r i g h t s o f c o n s e r v a tio n and d e f e n s e ’ as
fo llo w s:
En lo que concierne a las pesquenas y otros recursos existentes en las

aguas, el alcance del derecho de los Estados riberenos seria regulable en
funcion de la necesidades aliaenticias e industriales de su poblacion y
de la naturaleza del coiplejo biol6gico a preservar. La jurisdiccion
reclaiada viene a ser, segun esto, una jurisdiccion ipso-jure y los dere-
chos correlativos, derechos ' preexistentes' a su foraal reinvindicacion
por el Estado ribereno frente a la coiunidad internacional. ...
Este es, en suaa, el contenido de las nociones 'derecho de con-
servacion', 'derecho de auto-defensa' o de 'auto-proteccion', indistinta-
uente eipleadas para justificar la posicion adoptada por el Peru y otros
Estados. No son ellas, por cierto, una creacidn arbitraria. La razon de
ser del sar territo ria l, con su cl^sica liiitacion, se sustenta ya en la
nocion del derecho de conservacion o perservacion del Eastado.
Thus, he c o n c lu d e s ( ib id 40), ” [ l ] o s soberanos

a t r i b u t o s reclam ad o s en la s d e c la r a c io n e s d e l Pertu y
o t r o s E s t a d o s no i m p l i c a n t r a n s g r e s i 6 n d e la ley in
tern acio n al . . ." .
io-* p r e s i d e n t i a l D ecree, supra n 16. L o rin g (supra n 3,

4 0 1 - 4 0 2 ) com m ents t h a t
The [Aierican] protest against the [CEP claias] surprised and

angered the South Aiericans. They considered the distinction between the
principles underlying their actions and the Truaan Proclaiations to be
intellectually dishonest, since all of the 'principles' used to justify
the latter were cited in the preaibles of their respective decrees.
...The United States appeared to iaply either that i t alone had authority
to deteraine the course of international law — even as applied to wa
ters off the coast of South Aaerica -- or that only i t possessed the le
gal skill to accurately perceive the law.
254
R e fe rrin g to b o th th e U n ite d S ta te s and L a tin A m e r ic a n
c la im s , C is n e ro s p o s its th a t
the juridical position is identical in a ll cases. To extend the sovereignty of the

country for the purpose of preserving certain wealth that foris the basis of its sub
sistence and fundaiental econoiy. All these positions are equally just and irre
proachable.1 o s
L e ig h R a tin e r ( " U n ite d S ta te s o cean s p o lic y : an

a n a l y s i s " ( 1 9 7 1 ) 2 JMLC 2 2 5 , 2 2 7 -2 2 8 ) s u g g e s ts :
What the United States Governient did not know then, but what i t
has since learned, is that when an iaportant nation asserts the un ilat
eral right to take certain action, what lay be copied by other nations is
not necessarily the action its e lf but rather the basis upon which the ac
tion was taken. Thus, Chile, Ecuador and Peru did not believe theiselves
to be constrained by the text of the Truian Proclaiations when they
agreed on the Declaration of Santiago....One of their arguaents is that
i f the United States had a unilateral right to claia the resources of the
seabed adjacent to i t s coasts to the exclusion of a ll other countries,
they, too, had a sia ila r unilateral right to lake claias consistent with
th eir own national in terests.
C f s ta te m e n ts by B o rc h a rd and B in g h a m , supra Ch 4, n
68.
xos C is n e ro s , su p ra n 6 8 , 6 0 -6 1 . Such a r a tio n a le , a c c o rd

in g to Y epes ( su p ra n 6 , 1 2 ) , i s b a s e d on fu n d a m e n ta l
ju ris p ru d e n tia l p rin c ip le s :
Si 1’Etat a le droit d 'e x ister — et ce droit est unaniaeient reconnu —

i l a le droit a tous les ioyens n^cessaires pour conserver et aaintenir
son existence. ...Sans la souverainete sur [une zone plus ou loins large
de la aer qui l ’entourne] les droits de conservation et de defense — in-
herents a la nature i£ae de l'E ta t, de tout Etat — ne se concevraient
que d ifficileaen t. Le droit naturel lui-aeae est done le fondeaent ul-
tiae de la reconnaissance de la aer te rrito ria le .
R e fe rrin g to th e T ru m a n f i s h e r i e s P ro c la m a tio n and

th e D e c la ra tio n o f S a n tia g o , h e a g r e e s ( i b i d 77) w ith
A ria s -S c h re ib e r and C is n e ro s th a t th e r e a l g o a l o f th e
U n ite d S ta t e s an d th e CEP S t a t e s w as i d e n t i c a l :
le veritable but des Etats-Unis est de reserver, pour le benefice ex-

clusif de leurs ressortissants, certaines pecheries 4tablies deja dans
quelques regions de la haute le r, notaaaent au large des cötes de
1 'Alaska [see Ch 4, nn 68 and 69 and accoipanying text supra]. ...[ C j’est
exacteaent la neue chose realisee par les [Etats CEP]___
[L]a 'Proclaiation' de Truaan et les instruaents sud-aaericains
s ’inspirent de aeae esprit et obeissent a la aeae tendance: reserver les
richesses de la aer, en preaier lieu, pour le benefice exclusif de la
population cfltiere.
255
W hile some S tates restric te d th eir fish e ry claim s to
rig h ts of ju risd ic tio n and co n tro l for co n serv atio n pur
p o s e s , 100 o th ers went fu rth er and claim ed ex clu siv e rig h ts
of e x p lo ita tio n based on so v ereig n ty over th e w aters super
jacen t to th e co n tin en tal sh elf — and beyond. The g r e a t
m ajo rity began th eir defense w ith references to th e Trum an
P ro clam atio n s, p articu larly th at co n cern in g th e co n tin en tal
sh elf. Y epes, for exam ple, argued th at th ere was no sub
sta n tiv e d ifferen ce betw een th e term s "co n tro l and ju risd ic
tio n " in the la tte r P ro clam atio n , and "so v ereig n ty " in cer
tain L atin A m erican S tates c l a i m s . 10-7, in ad d itio n , th e su-
XO€> See, eg, leg isla tio n c ited n3 supra.
1 0 Y epes, s u p r a n 6, 3 8 -3 9 ; c f , A ram buru y M enchaca, s u p ra

n 95, 121; and G a rc ia S ayan, su p ra n 61, 24; and G eor
ges S c e lle ("P lateau c o n tin e n ta l e t d r o it in te r n a tio n -
a l " ( 1 9 5 5 ) 5 9 R G D IP 5 , 1 9 ) , who r e a s o n s t h a t T r u m a n i n
h is c o n tin e n ta l s h e lf P ro clam atio n fo rced h im self to
m i n i m i z e a s m uch a s p o s s i b l e t h e c o n t r a d i c t i o n i m p l i e d
b etw een t h e P r o c la m a tio n and t h e freed o m o f t h e s e a :
II ne reclame pas la souverainete, ni aerne un contrGle integral sur le

plateau, *ais seuleaent la propriete des giseients et leur controle
lorsqu’ils seront en exploitation. Cette these e ta it juridiqueient sans
consistance. On ne voit pas comment un Etat peut reclamer un droit de
propriete, aerne reduit a l'ancienne notion de propriete 4inente, sur des
biens dont i l n'aurait pas la souverainet£__
C'est bien de souverainete qu'il s ’agit coaie l'ont iaaediate-
aent coapris la plupart des gouverneaents qui se sont engages dans le
sillage de Washington et ont ete droit au but.
C f, A ram b u ru y M enchaca (supra n 95, 121, 122), who

argues th a t
It becoaes inexplicable to claia rights in the products of a deterained

place without previously establishing a right in the place itse lf. The
fundamental problem in this aatter is created by the right over the wa
ters that cover the shelf in connection with the principle of freedom of
the seas. But there is nothing which allows us to iaagine the existence
of original domains superimposed, which arises from the conception of a
right held by the international community (whatever its nature may be)
over the waters, and of another right, the particular right of each
state, over the soil and subsoil. Much less in international law. The
right to occupy the bed of the sea (beyond three miles) recognized as it
is, one aust [also] recognize that the water and the air are accessory
elements subject to the fate of the principal. ...
It is not only antijuridical, but impossible [to hold other
wise] ; impossible because the exercise of the one right naturally affects
the other. The exploitation of the soil or subsoil would alter the
corresponding oceanic conditions.
256
p e r j a c e n t w a te r and a i r c o lu m n m u st s u b m it t o th e sam e j u
rid ic a l re g im e as th e sea-b ed and s u b - s o i l b e lo w , o th e rw ise
th e re w o u ld b e a c o n t i n u a l so u rce of c o n f lic t.
For th o se re a so n s, he e x p la in e d , L a t i n A m e ric a n S t a t e s
in te rp re te d and a p p lie d th e p rin c ip le s c o n ta in e d in th e T ru
man c o n t i n e n t a l sh e lf P ro c la m a tio n to a p p ly to w a te rs above
th e s h e l f . 100 In sta n c in g th e 1945 M ex ic a n c l a i m to m a rin e
fish e ry reso u rces above th e c o n tin e n ta l s h e l f , 100 Y ep es a r
gued t h a t " [l]a p e n s e e d u P r e s i d e n t T ru m a n n ' e s t pas tr a h ie .
B ie n au c o n t r a i r e , e ile e s t m ie u x p r e c i s e e et f o r m u l e e . M110
At th e sam e t i m e , h o w ev er, it w as a r g u e d th a t so v er
e ig n ty of th e c o a sta l S t a t e m ust n o t be r e s t r i c t e d to w a te rs
over th e c o n tin e n ta l s h e lf. A lth o u g h t h e c o n tin e n ta l sh e lf
p re se n te d th e a ttra c tio n of a n a tu ra l g e o g ra p h ic dem arca
tio n , it had th e d is a d v a n ta g e s of v a ria b le c o n fig u ra tio n and
of not e x istin g ev ery w h ere. A c c o rd in g ly , s u g g e s t e d A ram buru
y M enchaca, a b e t t e r sy ste m c o n sis te d in lin e s p a ra lle l to
th e c o a s t. W h ile n o t w edded t o th e 2 0 0 -m ile d is ta n c e , he
conceded, w h a te v e r d i s t a n c e is chosen ’’m u s t i n c l u d e w i t h i n
its p e r i m e t e r t h e w e a l t h w h ic h c o n s t i t u t e s its reaso n fo r
b e i n g ” . 111
See a ls o in t h i s r e g a r d , Ch 4 , nn 9 2 - 9 4 and
a cc o m p a n y in g t e x t s u p r a .
xo& Y epes, su p ra n 6, 3 7 -3 8
1°'s* S ee n 8 and a cc o m p a n y in g t e x t supra.
1X0 Y epes, su p ra n 6, 46
11x A ram b u ru y M e n c h a c a , s u p r a n 9 5 , 121. A u g u ste (su p ra n

6, 163) e x p l a i n s t h a t
the 'Shelf concept [was] relegated to the position of a scientific fac

tor in support of the principle of the conservation of natural resources.
The purely geological definition of the 'Shelf' had not been adequate,
given the aotives and iaportance of the 'Shelf' claia. This resulted in
a partial detachaent of the 'Shelf' idea fron the reala of pure scien
tific definition. The final aeaning was in tens of the aotives that
were to be realized, and as a result, the 'Shelf' enconpassed an area to
be defined in teras of the factors necessary for the conservation of nat
ural resources.
257
It was la r g e ly on th e b a s is of th e above e c o -o c e a n o -
g r a p h ic and ju r id ic a l a rg u m e n ts th a t th e CEP S t a t e s and
w r ite r s advanced th e th e o ry of c o m p e n s a tio n in o rd e r to b u t
tre s s c la im s to an e x te n d e d m a r itim e zone. A c c o r d in g to
th a t th e o ry , th e r e c o g n itio n of r ig h ts to th e c o n tin e n ta l
s h e lf and its re s o u rc e s b e s to w s tre m e n d o u s b e n e fits upon
S ta te s w ith b ro a d s h e lf a re a s . S ta te s la c k in g th e la tte r ,
p a r tic u la r ly on S o u th A m e r ic a ’ s w est c o a s t, a re c o rre s p o n d
in g ly d is a d v a n ta g e d . A c c o r d in g to Y epes, one of th e fo re
m o s t e x p o n e n ts of th e th e o ry , w it h o u t an e q u ita b le fo r m u la
to c o rre c t th e s h o r tc o m in g s of n a tu re , "u n g ra n d p r in c ip e de
d r o it in t e r n a t io n a l g e n e ra l e t s u rto u t de d r o it in t e r n a t io n
a l a m e r ic a in : l'e g a lit e ju r id iq u e de to u s le s E ta ts s e r a it
fla g r a m m e n t v i o l e " . 112 S uch a s itu a tio n , he c o n c lu d e s , is
u n a c c e p ta b le in a w o r ld a s p ir in g to liv e under th e a e g is of
ju s t ic e and la w . P ro g re s s of s c ie n c e and th e needs of hu
m a n ity dem and an e q u ita b le and r e a s o n a b le s o lu tio n to th e
p r o b le m . In Y epes’ v ie w ,
Le seul aoyen de retablir cet equilibre necessaire a l ’harionie de relations interna

tionales, ce serait de reconnaltre que les Etats aaritiae -- come [les CEP] — qui ne
sont pas en aesure, pour des circonstances naturelles, d'exercer leurs droits sur le
plateau puissent invoquer — coaae une juste coapensation exig6e par l'e g alite ju r i
dique des Etats — le droit d'exploiter dans leurs benefice exclusif une zone plus
large de leur aer te rrito ria le .1 1 3
T he a b o v e c o n s id e r a t io n s w e re r e f le c t e d i n th e
f o l l o w i n g s t a t e m e n t b y E c u a d o r a t t h e C iu d a d T r u j i l l o
C o n f e r e n c e ( c i t e d i n A u g u s t e , supra n 6 , 1 9 1 - 1 9 2 ) :
the iaportant thing is not the contour of the subaarine areas but the
aaritiae resources....[W]e know fu ll well that the stocks of fish in the
subaarine areas...aay be abundant but aay also be scanty, despite the
scie n ti-fic view that the epicontinental sea is the richest in
fish....B ut we aust also adait that there aay be abundant stocks of fish
where no subaarine terrace exists and scanty stocks on extensive and well
defined terraces....
1X 2 Y epes, supra n 6, 63
1 X 3
Ibid 6 4 ; c f G a r a i o c a , supra n 7 7 , 4 9 7 - 4 9 8 ; a n d U l l o a
( c i t e d i n A u g u s t e , supra n 6 , 1 9 1 ) . On t h e t h e o r y o f
c o m p e n s a t i o n s e e a l s o H o e f f e l , supra n 1 1 , 4 3 1 - 4 3 5 a n d
S z e k e l y , supra n 4 , 1 5 9 - 1 6 1 .
253
F in ally , and m ost fu n d am en tally , L atin A m erican S tates
d eclared th at th eir claim s m et what L au terp ach t d escrib es as
th e d ecisiv e test in rela tio n to th e freedom of th e sea;
th at is, 'r e a s o n a b le n e s s ' and sa tisfy in g 'le g itim a te common
and p articu lar i n t e r e s t ' . 1 1 "* The general L atin A m erican po
sitio n reg ard in g th e test was w ell stated by a C hilean rep
resen tativ e to th e U nited N atio n s when d i s c u s s i n g law of th e
sea m atters: 'r e a s o n a b le n e s s ' depended on th e g eo g rap h ical
and econom ic co n d itio n s proper to each co u n try , and a lim it
reaso n ab le in A m erica m ig h t p o ssib ly not be so e l s e w h e r e . 113
G iven th e r e g io n 's p articu lar geographic and econom ic co n d i
tio n s , th e L atin A m ericans c o n sid ered th eir claim s reason
ab le in th at th ey rep resen ted a defense of v ita l in te rests
and th e p ro tectio n of th eir p e o p l e s . 110
1 1 ‘* See Ch 4 , n 88 and acco m p an y in g tex t supra.
1153 UN d o c A / C o n f . 1 3 / 1 9 , 4 9 6 t h m eetin g , p 391; cf, G a r c i a

S a y a n (supra n 6 1 , 2 5 - 2 6 ) , who w r i t e s :
Las disparidades que resultan de la posicion geografica de los Estados

riberenos, de la conforiaciön geologica y aorfologica de su zocalo sub-
larino, del coiplejo biologico de los lares adyacentes y de los intereses
econîlcos de las poblaciones, se oponen a la adopcion de reglas uni-
foraes para el ejercicio de la jurisdiccidn o soberania sobre el zocalo
subaarino y los aares adyacentes. ...Todo esto lleva a adaitir una regia
flexible en cuanto al zocalo continental y diferentes extensiones de
aguas territoriales, de acuerdo con la posicion geografica de los paises
y a los deiis factores que deterainan la extension y el alcance de los
derechos que se reivindican. Europe tiene diferentes sisteaas de aguas
territo ria le s__ Las proclaaaciones de los paises aaericanos, por razon
de la posicion geografica de nuestro heaisferio frente a dos grandes
ocânos, no han afectado otros derechos que los que pudieran invocarse en
noabre de la libertad de pescar en alta aar. Para los pafses del Paci-
fico la situaci6n es adn aas despejada que para los del Atlantico en la
zona del Caribe. Podrian por lo aisao, foraar aquellos un sisteaa.
11<s A cco rd in g to th e C h ile a n r e p r e s e n t a t i v e r e f e r r e d to

above ( t e x t accom panying n 1 1 5 ), 'd e f e n s e ' m ust be u n
d e r s t o o d from a b r o a d e r p e r s p e c t i v e th a n p r e v i o u s l y :
" t h e d e f e n c e f a c t o r i s a w id e r and m ore g e n e r i c c o n
c e p t : t h e f a c t o r o f n e c e s s i t y w h i c h now h a s i m p o r t a n t
econom ic and s o c i a l a sp e c ts" (U N doc A /C o n f.1 3 /1 9 , 4 9 6 th
m eetin g , p 389).
C om m enting on L a u t e r p a c h t ’s r e f e r e n c e t o " l e g i t i
m a t e c o m m o n a n d p a r t i c u l a r i n t e r e s t " ( s e e Ch 4 , n 8 8 a n d
a c c o m p a n y i n g t e x t supra), A u g u s t e (supra n 6 , 2 4 4 , n 3 )
argues th a t
259
As for 'common interests', a glance at the interna
tional community generally reveals "very little common and
much largely varied interests", observed Auguste.11-7 The
general community interest concerning fishing on the South
American west coast was represented essentially by the Uni
ted States and Latin American States. ” [I]s it logical to
assume,” he asked, "that in the absence of other representa
tive interests, save that of the disputants, the Interna
tional Community's interests are violated because Latin
American and U.S. policy conflict in this area?"11® The
concept of community interest demands representation of all
interests and the combined efforts of all participating
States to realize community values and objectives. When
there are conflicting views, all States should be heard and
consideration given to "the principle of the majority and
preferential groups".11®
Instancing serious violations of the International Con
vention for the Regulation of Whaling120 off South America,
Auguste indicated another shortcoming of the 'community in
terest’ concept: even agreed objectives of the broader in
ternational community can be frustrated by the intervention
of national interests. Thus,"in establishing the Interna
tional Community (ie, interests of) as the objective stan
dard for determining the reasonableness of [the Latin Ameri-
’Legitimate' and 'vital' do not necessarily mean the saae thing.

An interest lay be legitiaate and yet not vital, or it may be vital and
not legitiaate. But legitiaate aay refer to the contrary of illegiti
mate, i e , in the strict legal sense, or it aay refer to the existence
of interests that are vital and necessary. I aa of the opinion that
Lauterpacht utilized the word in the latter sense. If he did not, it
seeas that he was not subaitting a new criterion for it was quite clear
that any claim to the high seas was in fact illegal. The usefulness of
the criterion, i e , based on legitiaate in the strict legal sense, would
be doubtful.
lx^ Ibid 308
110 Ibid 309
X1^ Ibid 318-319
120 (1953) 161 UNTS 74

260
can] u n ila te r a l a c ts , it m ust be c o n s id e r e d in practice a n d not
as an abstract i d e a " . 1 2 1
E ven th e n , g iv e n th e o v e r a ll d e fic ie n c ie s o f th e con
c e p t, he a rg u e d , th e in te r e s ts o f th e in te r n a tio n a l com m u
n ity w as o n ly one fa c to r to be b o rn e in m in d in d e te r m in in g
’ r e a s o n a b le n e s s ’ , and m ust be c lo s e ly r e la te d to o th e r fa c
to rs o f com m on, p a r tic u la r and le g itim a te a s p e c t s . 122
C o n s id e r in g th e m any d is p a r a te v a lu e s , p o lic ie s and in
te re s ts r e fle c te d in S ta te p r a c tic e , A u g u s te c o n c lu d e d ,
there seeis to be no positive objective standard of reasonableness, but rather a lim

ited and qualified expression of o b je ctivity that aust be seen in relation to each ex
is tin g situation and qualified appropriately as a factor in the assessient of reason
ableness. ...What is reasonable then, is what the State thinks is of necessary in te r
est to i t , when other aeasures have failed or are inconsistent with the position
taken: in fact, what i t judges as such aeasured in te n s of fu lfilm e n t of the pat
tern, that is aeasured against the precedents set by other States.1 2 3
W h ile c la im s in v o k e d by L a tin A m e r ic a n S ta te s as p re c e
d e n ts fo r th e ir ow n a c tio n s w e re d iv e r s e in n a tu re , n o te d
A u g u s te , th e y w e re o fte n vast and ’’ a l l d iffe r e n t a s p e c ts o f

a p a tte rn of b e h a v io u r d e fe n d e d c o n s is te n tly on th e g ro u n d s
o f ’ r e a s o n a b le n e s s ’ . The o n ly ju d g e w as th e S ta te c o n c e rn
e d . ” 1 2 ** C o m p a r in g th e m w ith subsequent L a tin A m e r ic a n S ta te

p r a c tic e , he c o n c lu d e d th a t th e la tte r d id not exceed th e
g e n e ra l s ta n d a rd o f o th e r S ta te s ’ b e h a v io u r in s im ila r c ir
c u m s ta n c e s . 123
121 A u g u s te , s u p ra n 6, 319
1=22 Ib id 3 1 9 -3 2 0
123 Ib id 320
12^ Ib id 322
12* Ib id 323; c f , G a r c ia S a y a n (supra n 61, 21), w ho

a rg u e s , in f a c t , th a t
Pese a las liaitaciones que contiene y a las precauciones de

lenguaje acuauladas al enunciarla, la proclaiaci6n Truaan puede resultar,
en sus dos aspectos, de un alcance aucho aayor que la declaracion
peruana.
261
B. Counter-Arguments are Put
In reply to the above arguments, major maritime nations
and numerous writers countered that the Latin American
claims (particularly those of the CEP States) were based on
faulty jurisprudential reasoning and, in fact, constituted a
frontal assault on the fundamental tenets of the law of the
sea. Noting the elementary distinction in international law
between the territorial sea and the high seas, then Profes
sor (later, Judge) Oda argued that "claims by coastal states
to high seas fisheries are contrary to the concept of the
freedom of the high seas. In order to make a deviation from
established principle acceptable, proper justification must
be proved.”120
Two basic criticisms of the Latin American claims flow
ed from the above. The first concerned the territorial sea.
It was widely thought, and not without some justification,
that many Latin American claims were, in fact, attempts to
extend territorial waters so as to secure exclusive rights
to high seas fisheries.12"7 In response to criticism that
the 1930 Hague Conference sounded the death-knell for the
three-mile territorial sea (and hence, the distance within
which coastal States had exclusive fishery jurisdiction), it
was widely argued that the maximum breadth of the territo
rial sea nevertheless remained narrow. The United States,
for example, held that, strictly speaking, the legal breadth
of territorial waters remained three miles, that being the
distance adhered to by countries possessing about 80 percent
120 Oda, supra n 62, 94; cf, Kunz, supra n 44, 844
12-7 See, eg, ibid. For references to territorial seas or

territorial waters in Latin America claims and the com
ments of writers see, eg, text accompanying nn 13, 45,
95 and 104 supra. Richard Baxter ("The territorial
sea"(1956) 50 PASIL 116, 121) notes that such motiva
tion was not necessarily restricted to the Latin Ameri
can claims under discussions and that, in reality, "ex
tensions of the territorial sea have, more often then
not, been motivated by the idea of controlling fisher
ies” . At the same time, however, see nn 59 and 60 su
pra regarding ambiguous terminology used in connection
with Latin American claims.
262
of th e w o r ld 's m erch an t s h ip p in g to n n a g e and m ost o f its
naval p o w e r . 12®
Legal w rite rs, on th e o th e r hand, w ere g e n e r a l l y w ill
in g to concede th a t w h ile
It cannot be said...that the three-iile liait is a universally established rule of in

ternational law,...nevertheless it is strongly supported by tradition and internation
al usage. The fact is that any country claiaing the three-iile liait is considered to
be within its international legal rights, but claias for aore than three ailes are
open to objection and are difficult to support on legal grounds.1 2 ®
P ro fesso r Josef Kunz p o i n t e d out th a t a lth o u g h th e IC J

re c o g n iz e d th e rig h t of th e c o a sta l S ta te to d e lim it its ow n
te rrito ria l sea, it a lso e m p h a siz e d th a t lim its a lso depend
ed upon in te rn a tio n a l la w fo r th e ir v a lid ity v is-a -v is o th e r
S t a t e s . 130
12e S e e , eg, M e m o ra n d u m b y D r W i l b e r t M C h a p m a n t o t h e O f
f i c e o f th e S p e c ia l A s s is t a n t to th e U nder S e c r e ta r y
f o r W ild lif e and F i s h e r i e s , to th e U nder S e c r e ta r y o f
S t a t e ( W e b b ) , d a t e d 2 9 M ay, 1 9 5 0 , i n FRUS ( 1 9 5 0 ) i ,
889; and H P h l e g e r , " R e c e n t d e v e lo p m e n ts a f f e c t i n g th e
r e g i m e o f t h e h i g h s e a s " ( J u n e 6 , 1 9 5 5 ) 3 2 DOSB 9 3 4 ,
935.
129 Y K is a b u ro , "The freed o m o f th e s e a s in p e r i l " (1958) 5

Japan Q 143m 1 4 4 ; cf, Y o u n g , supra n 4 4 , 9 1 3 . Even t h e
US a t o n e p o i n t c o n c e d e d ( " D i s s e n t i n g O p i n i o n o f t h e
D e l e g a t e s o f B r a z i l , C o lo m b ia an d t h e U n ite d S t a t e s i n
r e l a t i o n t o t h e D r a f t C o n v e n tio n on t h e T e r r i t o r i a l
W aters and R e la te d Q u e s tio n s o f th e I n te r - A m e r ic a n J u
r i d i c a l C o m m i t t e e ” i n S z e k e l y , supra n 3 , P t I I , d o c
27, 304) t h a t
the doctrine in force in international law is that the territorial waters

extend to various distances, froi the three ailes accepted traditionally
by the aajority of the States, to the six ailes preferred by several
Latin Aaerican countries and also by soae European countries, such as
Spain, Portugal and Yugoslavia, and the 12 ailes claiied by the Soviet
Union.
I n a c o n f i d e n t i a l m em orandum d a t e d 23 J u n e 1 9 5 0
("T h e S eco n d S e c r e t a r y o f t h e B r i t i s h E m bassy ( T e b b i t t )
t o Mr F G a r n e r R a n n e y o f t h e O f f i c e o f B r i t i s h C om m on
w e a l t h a n d N o r t h e r n E u r o p e a n A f f a i r s " i n FRUS ( 1 9 5 1 ) i ,
1 6 8 6 ) , t h e B r i t i s h e x p r e s s e d t h e v ie w t h a t " i t i s q u i t e
u n c e r t a i n w h e t h e r t h e H ag u e C o u r t w o u ld g i v e a ju d g m e n t
in fa v o u r o f th e t h r e e - m i l e l i m i t i f a c a s e w ere
b ro u g h t b e fo re i t " .
263
A second and r e la t e d b a s ic o b je c tio n w as th a t th e L a tin
A m e r ic a n a s s e r t io n th a t S ta te s m ig h t d e t e r m i n e th e lim its of
t h e ir t e r r it o r ia l w a te rs in a c c o rd a n c e w ith t h e ir e c o n o m ic ,
m ilita r y and o th e r in te r e s t s c o n s t it u t e d "a tre m e n d o u s
th re a t to th e fr e e d o m of th e seas a n d m ay le a d to in te r n a
t io n a l a n a r c h y " . 131
T h is p r o s p e c t w as v ie w e d p a r tic u la r ly s e r io u s ly by th e
U n ite d S ta te s . H e rm a n P h l e g e r , h e r th e n L e g a l A d v is e r , as
s e rte d in 1955 th a t th e im p o r t a n c e of th e fr e e d o m of th e sea
p r in c ip le fo r th e in te r n a tio n a l c o m m u n ity g e n e r a lly m ade
” [t]he a p p r o p r ia tio n by any s ta te of a re a s of th e h ig h seas
...as unsound m o r a lly as when G r o t iu s w r o t e " . 1 3 2 ' F u rth e r
m o re , he n o te d , A m e r ic a n d e fe n s e , c o m m e r c ia l s h i p p i n g and
a ir tra n s p o rt, and th e p r o s p e r ity of her fis h in g in d u s tr y
a ll w o u ld be p r e ju d ic e d by a n y s e r io u s c o m p r o m is e of th a t
p r i n c i p l e . 133
130 K u n z , supra n 4 4 , 8 4 1 ; cf, H A c c io ly , "L a l i b e r t e des

m e rs e t l e d r o i t d e p 4 c h e e n h a u t e m e r ” ( 1 9 5 7 ) 61 RGDIP
1 9 3 , 1 9 5 ; W H e r r in g to n , " U . S . p o l ic y on f i s h e r i e s and
t e r r i t o r i a l w a te r s " ( June 30, 1 9 5 2 ) 2 6 DOSB 1 0 2 1 ; P h le
g e r , supra n 1 2 8 , 9 3 6 ; a n d M W h ite m a n , " T h e t e r r i t o r i a l
s e a " ( 1 9 5 6 ) 50 PASIL 1 2 5 , 130
131 K i s a b u r o , supra n 1 2 9 , 1 4 1 ; cf, A c c i o l y , supra n 1 3 0 ,

1 9 5 ; a n d H e r r i n g t o n , supra n 130
132 P h le g e r , supra n 1 2 8 , 9 3 5
133 Cf W a l t e r C hapm an (supra n 1 2 8 , 8 8 9 ) , w ho, in a s e c re t

1 9 5 0 memo, e x p la in e d th a t
[the] principle of the Freedoi of the Seas and its coipanion Uniting
concept of the narrow larginal sea have not decreased in their vital im
portance to the United States [since the country’s independence]. On the
contrary these concepts are of greater aoient now to the United States
than they have been formerly by reason of the fact that the United States
has becoie the lajor naval power of the world and has had thrust upon i t
a lajor portion of the responsibility for laintaining these as well as
other concepts of international law .
E ls e w h e r e ( " U n i t e d S t a t e s p o l i c y o n h i g h s e a s
f i s h e r i e s " ( J a n u a r y 1 6 , 1 9 4 9 ) 20 DOSB 6 7 ) h e w r i t e s t h a t
th e n a rro w n e s s o f th e band o f t e r r i t o r i a l w a te rs " i s
a s s u r e d b e c a u s e t h e n a v a l p o l i c y a n d t h e c o m m e r c ia l
p o lic y - - and o r d i n a r i l y th e f is h e r y p o lic y - - o f th e
m a j o r m a r it im e n a t io n s dem and t h a t t h e s e a s be o p e n e d
t o u n im p e d e d n a v i g a t i o n " .
264
The Truman Proclamations, properly construed, did not
violate that principle, it was contended.13'* Latin American
States, on the other hand, had misinterpreted and erroneous
ly applied the principles contained in those Proclamations,
particularly that relating to the continental shelf. Ac
cording to Professor Richard Young, for example, the CEP
claims were much different from the ’’limited doctrine" of
the continental shelf found in the 1945 Proclamation, and
”[s]tripped of these fashionable allusions to the shelf, the
claim appears in its true guise as more effort to win for a
coastal state rights over the high seas...".1383
Referring to the argument that superjacent waters were
necessarily subject to the same legal regime as that of the
continental shelf below, Young observed that a horizontal
division of rights was by no means unknown, particularly in
civil law countries, where a surface owner might not be en
titled to sub-surface minerals .13e>
As for Latin American justification of their claims in
terms of conservation needs, Oda argued that while there
were disadvantages to strict adherence to the freedom of the
sea principle, "there is no reason, why control and regula
tion of fisheries should be vested in any one state".13'7’
Such authority exercised by a single State could lead to the
imposition of unacceptable conditions or even prohibiting
nationals of other States fishing in the area. It can be
said without exaggeration, he submitted, that claims to ex
ercise fishery jurisdiction for conservation purposes had
been asserted primarily to gain a favourable share of the
13“* Phleger, supra n 12S, 936, 939; cf, Kunz, supra n 44,
844. See Ch 4, nn 63ff and accompanying text supra for
a more detailed discussion of this point.
t35S R Young, "The over-extension of the continental shelf"

(1953) 47 AJIL 454, 455; cf, Oda, supra n 62, 67
i3<s Young, supra n 135, 455. See n 107 and accompanying

text supra.
13-7 Oda, supra n 62, 95

265
harvest for the State making the claim,13® and it was ques
tionable whether such was sufficient justification for devi
ating from the freedom of the sea principle. The extension
of fishery jurisdiction by the coastal State to regulate and
control exploitation, concluded Oda, "would clearly involve
a benefit to the coastal state completely at the expense of
the legitimate interests of other states".13,3
Reversing the 'abuse of rights’ argument advanced by
some Latin American writers,*
1-*0 Professor Zengo Ohira made
the same point. In using the sea, he argued, each State
"should live strictly up to two conditions: equality and
t e m p o r a r i n e s s " If national control hampered the use of
the sea by others, it would become "an abuse of a right, and
ultimately consitute [sic] a violation of international law,
thus giving rise to the responsibility of damages to the
other nations".1-*2
On other Latin American arguments, the United States
argued that 'biomas' emphasized by the CEP States were basi
cally localized manifestations of major, world-wide physical
phenomena which "far outweigh any which may be related to
the human communities" of the States concerned, and that
there was no relationship between the natural boundaries of
the biomas and those created by man on land.1-*3
Oda, while not denying that offshore fisheries were
connected to the coast, submitted that ” [s]uch a scientific
concept can not become per se a legal concept" and scholars
130 See also in this regard similar comments made regarding

the Truman fisheries Proclamation, supra Ch 4, n 69 and
accompanying text.
13® Oda, supra n 97; of, Kisaburo, supra n 129, 148-150
1-*° See nn 91-94 and accompanying text supra.
1-*x z Ohira, "The freedom of the seas and Japan” (1954) 5

The Annals of the Hitotsubashi Academy 86, 95
Ibid
1-*3 Cited in Auguste, supra n 6, 189-190, n 4.
266
such as Aramburu y Menchaca "fail to cite authority that
this concept has been accepted in the field of law".
The theory of compensation advanced by Latin American
writers was similarly subjected to harsh criticism. Kunz,
for example, argued that "a new norm concerning the conti
nental shelf can only apply to states which have a continen
tal shelf."*
1'** Furthermore, the 'principle of juridical
equality of States’ referred to by Yepes, "means equality
before the law, but not necessarily equality in law".1'*0.
Criticisms were also voiced concerning the manner in
which Latin American States sought to change the law. Kunz,
for example, complained that it had become too frequent that
States invoked "mere proposals de lege ferenda or unilateral
claims as norms of the 'new' international law", and far
from being a 'progressive' law, they constituted, in fact,
"a strong and dangerous step backward".1'*-7’
The United States agreed. "To discard and abandon
traditional concepts of international law in favor of uni
lateral action and claims by each nation facing on an in
ternational sea would lead only to chaos,” claimed one
1'*'* Oda, supra n 62, 94. See also nn 66-69 and accompany
ing text supra.
1‘*ss Kunz, supra n 44, 839
Ibid; cf, Accioly, supra n 130, 196-197; and "Informal

record of discussions between representatives of the
Department of State and the British Government concern
ing legal problems relating to territorial waters,
Washington, March 22 and March 23, 1951: Note by Sir
Eric Beckett of the discussions at the State Department
on the question of the law of coastal waters" in FRUS
(1951) i, 1707.
A somewhat broader view is taken by Scelle (supra
n 107, 11), however, in his observation that
Sans doute peut-on [dire] que l'inegalite est la condition naturelle des
Etats_ _
On peut cependant etre d'avis different. Le progfes des systeaes ju-
ridiques consiste non seuleaent a proclaaer l'egalite theorique dite de
droit, aais a coapenser, dans la aesure du possible, les inegalitas de
fait.
1-*^ Kunz, supra n 44, 839-840

267
s p o k e s m a n . 1'*0 For th a t reaso n , he c o n tin u e d , it w as A m e ri
can p o lic y " to b u ild on th e past in d e v e lo p in g s o lu tio n s to
new p ro b le m s by m eans of jo in t a c tio n w ith n e ig h b o r na
t i o n s " . 1 ‘*0
The answ er to th e p ro b le m of d im in is h in g fis h sto c k s
and g ro w in g fo o d re q u ire m e n ts, e x p la in e d P h le g e r,
is not to be found in disregarding existing international law by unilateral extension

of territorial waters or new definitions of such waters. Nor is the answer to be
found in the exaction of tribute for the right to fish on the high seas. ...
The alternative is a prograoe of conservation of fisheries -- the applica
tion by international agreeient of control based on scientific principles.1550
The p u rp o s e of fish e ry d e v e lo p m e n t, th e U n ite d S ta te s

e x p la in e d , " is to p ro d u ce fis h , p rim a rily fo r food, w h e th e r
fo r c o n su m p tio n by th e c o a sta l s ta te its e lf or fo r s a le in
o th e r m a r k e t s " . 101 T hus, its p o lic y re g a rd in g h ig h seas
fis h e rie s w as " to m ake p o s s i b l e th e m axim um p ro d u c tio n of
fo o d fro m th e sea on a su s ta in e d b a s is year a fte r y e a r " . 152
As fo r w h at w as te rm e d th e " p sy c h o lo g ic a l p ro b le m ” of
c o a sta l p o p u la tio n s o b se rv in g fo re ig n fis h in g v e sse ls "on
th e h ig h seas o ff th e ir c o a s t s " , 1550 b y 1955 th e U n ite d
1'*e H e rrin g to n , supra n 1 3 0 , 1021
Ibid
130 P h l e g e r , supra n 1 2 8 , 940; cf, H e r r i n g t o n , supra n

130, 1021; and Y oung, supra n 1 3 5 , 4 5 6
131 " U .S . p o s i t i o n on c o n s e r v a t i o n o f f i s h e r i e s r e s o u r c e s "

( A p r i l 2 5 , 1 9 5 5 ) 3 2 DOSB 6 9 6 [ h e r e a f t e r c i t e d ’ US
p o s i t i o n ’ ] 697
133 C hapm an, supra n 1 3 3 , 67
133 H e r r i n g t o n , supra n 1 3 0 , 1 0 2 2 . T h e a u th o r e x p la in e d
(ibid ) t h a t a p r o b l e m w a s c r e a t e d
when wide-ranging fleets of fishing boats fron one country exploit the
stocks of fish in the high-seas waters off the coasts of another with
such intensity that the continued productivity of these resources is en
dangered. Not only does such exploitation threaten the continued produc
tivity of the resource but i t also gives rise to a psychological problem
aiong people of one country who observe boats of another country operat
ing in the high seas off their coasts. They theiselves aay be Baking
l i t t l e or no use of these stocks of fish, nevertheless, they soietiies
develop a strong feeling that these fish are potential resources of spe-
268
S ta te s w as p rep ared to re c o g n iz e th a t th e " le g itim a te " ,
" s p e c i a l ” 15555 i n t e r e s t s of S ta te s in fish e ry reso u rces o ff
th e ir c o a sts sh o u ld be r e s p e c te d , as w e ll as th e rig h t of
o th e r m em bers of th e in te rn a tio n a l c o m m u n ity . In th e A m e ri
can v ie w ,
There is not...any fundaaental and legitiiate interest of coastal states, or of other

states, which cannot be satisfactorily reconciled through a procedure of international
agreement based upon a negotiation aiong states enjoying equal sovereignty and equal
rights.1SÄ
IV . Co n c l u s i o n
The p o s t- w a r L a tin A m e ric a n c la im s had a p ro fo u n d im

pact on th e m anner in w h ic h th e la w g o v e rn in g m a rin e fish e r
ie s w o u ld s u b se q u e n tly d e v e lo p . In e a rlie r p e rio d s, th e
sc a tte re d S ta te s w h ic h d a r e d tra n sg re ss th e le a g u e lim it fo r
th e e x e rc ise of fish e ry ju risd ic tio n c o u ld e ith e r be ig n o re d
by t h e m a jo r m a ritim e S ta te s w ith o u t undue in c o n v e n ie n c e to
th e l a t t e r ’s in te re s ts , or p re v a ile d upon to conform to th e
th re e -m ile ru le . G iv e n th e ra d ic a l d iffe re n c e b etw ee n th e
lim its c la im e d by t h e L a tin A m e ric a n S ta te s and any o th e r s
th a t had been m ade s i n c e th e age of G r o tiu s ; th e in c re a s in g
num ber o f S ta te s issu in g , or at le a st su p p o rtin g , such
c la im s; th e ir e x a m p le fo r o th e r S ta te s o u ts id e th e re g io n ;
and th e ir p o te n tia l, if not a c tu a l, d e le te rio u s im p a c t on
th e c o m m e rc ia l o p e ra tio n s of d ista n t-w a te r fish in g fle e ts of
cial concern to their own country and that the future of the resources is
endangered by the 'foreign' fleet. Therefore, in spite of the fact that
the stocks are part of an international resource whose extent, behavior,
and aethod of capture would have been little known were it not for the
operations of the 'foreign ' fleet, a popular claaor develops for govern-
aent action to prevent or liait these operations.
155^ US p o s i t i o n , supra n 1 5 1 , 698
iss p h le g e r, supra n 1 2 8 , 9 4 0
1=50 US p o s i t i o n , supra n 1 5 1 , 698

269
th e m a jo r m a ritim e P ow ers, th e c la im s c o u ld h a rd ly be i g
n o red .
At th e sam e t i m e , h ow ever, th e c o m p l e x web o f n a t i o n a l
in te re sts of th e la tte r n a tio n s, e sp e c ia lly th e U n ite d
S ta te s (a ll fu rth e r referen ces in th is c o n c lu sio n sh a ll be
ta k e n to refer as w e ll to t h e o t h e r m a jo r m a r itim e P o w ers o f
th e p e r i o d ) , p re c lu d e d th e m f r o m t a k i n g stro n g and d e c i s i v e
a c tio n a g a in st L a tin A m e ric a n S t a t e s d e te rm in e d to p ro se c u te
th e ir c la im s. As Ann H o l l i c k o bserves, a lth o u g h th e U n ite d
S ta te s em erg ed fro m t h e w ar p o l i t i c a l l y and e c o n o m ic a lly
p re e m in e n t in a w o rld o f s m a ll S t a t e s and e x h a u s te d fo rm er
P o w ers,
the preeninence was not...easily translatable into effective power to influence inter
national fisheries policy. Since fisheries policy is scarcely a proiinent concern in
the hierarchy of national policies, the full weight of goverment influence would
never be brought to bear in this area. Moreover, U.S. fishing interests were autually
inconsistent — including distant-water and coastal fisheries as well as the case of
salaon fisherien — and a single national policy was difficult to foraulate.
Thus, Ü.S. fisheries policy in the post-war period was characterized by ef
forts to protect the status-quo special interests.1 3 '7
G iv e n t h e above, a tte n tio n fo cu ssed on t h e le g a l v a lid

ity o f th e L a t i n A m e ric an c l a i m s . For s e v e ra l reasons --
so m e c o n c e r n i n g th e v ery n a tu re of in te rn a tio n a l la w a n d t h e
la w -m a k in g p r o c e s s its e lf -- re su lts p ro v ed in c o n c lu siv e .
F irst, th e a m b ig u o u s t e r m i n o l o g y found i n m any L a t i n A m e r i
can c la im s and th e so m e tim e s c o n t r a d i c t o r y in te rp re ta tio n s
g iv e n th e m b y r e g i o n a l s p o k e s m e n a n d l e g a l s c h o l a r s made t h e
e x a c t c o n t e n t and p a r a m e te r s of th e c la im s as d i f f i c u l t to
d e te rm in e as th e T ru m a n f i s h e r i e s P ro c la m a tio n on w h ic h t h e y
w ere i n p art based. T h e c o n f u s i o n w as c o m p o u n d e d b y d i f f e r
e n t m ean in g s a t t a c h e d in L a tin A m e ric a and e l s e w h e r e to such
im p o rta n t te rm s as ' s o b e r a n i f a ' . X3e B o th f a c t o r s c o n trib u te d
1S‘7’ H o l l i c k , supra Ch 4 , n 26, 62. See a ls o nn 2 , 19 a n d

2 2 supra.
13Q S e e n 11 supra. G a r c i a S a y a n (supra n 6 1 , 2 4 ) , eg, e x

p l a i n e d i n 1955 t h a t ’ s o b e r a n i a ' a s fo u n d i n t h e p r o c
l a m a t i o n s o f C h i l e , P e r u et al w a s , i n f a c t ,
270
to th e w id e sp re a d c o n c lu s io n th a t th e c la im s w ere, in fa c t,
fro n ta l a ssa u lts on t h e e n t i r e te rrito ria l s e a re g im e and
th u s th re a te n e d v ita l n a tio n a l in te re sts of th e p r in c ip a l
m a r i t i m e P o w e r s m uch m o r e i m p o r t a n t t h a t th o se r e la tin g
p u re ly to fis h e ry ju risd ic tio n .
S e c o n d ly , th e re w as a s i g n i f i c a n t d i f f e r e n c e in th e
g ro u n d s upon w h ic h t h e L a t i n A m e ric a n S t a t e s and th e U n ite d
S ta te s based t h e i r re sp e c tiv e c la im s. The l a t t e r e m p h a siz e d
c u sto m a ry in te rn a tio n a l law a s e v i d e n c e d by S t a t e p ra c tic e ,
in th e fo rm a tio n o f w h ic h t h e y had e x e r t e d a s tro n g in flu
ence. The L a t i n A m e ric a n S t a t e s , on t h e o th e r hand, w h ile
c itin g e v id e n c e o f S ta te p ra c tic e such as th e T ru m a n P r o c l a
m a tio n s w h ic h t h e y c o n s i d e r e d su p p o rte d th e ir own j u r i d i c a l
p o s itio n s , a lso te n d e d to in v o k e b a s ic p rin c ip le s of n a tu ra l
la w , a fe a tu re of th e ir own l e g a l t r a d i t i o n s . 15*9 T hat th e
U n ite d S t a t e s d id not fin d it in th e ir in te re st to a ttrib u te
sig n ific a n t l e g a l w e ig h t to th e la tte r m ad e i t d iffic u lt to
una soberania liiitada, co«o tiene que ser la que reconoce el derecho de
libre navegacion, no coaprende el espacio aereo y se traduce, en suaa, en
el ejercicio de atributos o coipetencias especiales coao son las referi-
das al control y proteccion, con exclusion de otros, de los recursos iin-
erales o pelagicos existentes en deterainada zona del aar y del subsuelo
subaarino.
Las extensiones oceanicas soaetidas a esto genero de 'soberania
de derechos', involucran o se superponen a la antigua faja de 'aguas ter
ritoriales'. Entiehdese que respecto de estas subsisten, en toda su
plenitud, los atributos que generalaente les son reconocidos por la coau-
nidad internacional, incluso el del espacio aereo.
B u t s e e a l s o , h o w e v e r , d i f f e r e n t i n t e r p r e t a t i o n s o f ILC
m e m b e rs o f t h e C h i l e a n d e c r e e (Ch 7 , n 13 a n d a c c o m
p a n y in g t e x t i n f r a ).
S e e , e g , J o s e f K u n z , " N a t u r a l - l a w t h i n k i n g i n t h e mod
e r n s c i e n c e o f i n t e r n a t i o n a l l a w " ( 1 9 6 1 ) 5 6 A JIL 951,
9 5 3 - 9 5 4 ; S z e k e l y , s u p r a n 4 , 1 2 6 ; a n d n 90 s u p r a . Sze-
k e l y ( s u p r a n 4, 11) e x p l a i n s t h a t t h e n a t u r a l law t r a
d i t i o n ' r e s u l t e d i n " t h e l a c k o f a b i l i t y o f L a t i n A m e ri
c a n w r i t e r s and g o v e rn m e n t sp o k esm en t o d i s c r i m i n a t e
b e tw ee n p r o p o s i t i o n s d e l e g e f e r e n d a and l e g e l a t a in
in te rn a tio n a l la w ..." . T h i s , i n t u r n , m ad e i t d i f f i
c u l t to a n a ly z e th e v a rio u s c la im s . C f C R o n n i n g , Law
and P o l i t i c s in I n te r - A m e r ic a n D ip lo m a c y (1963) 111.
S e e a l s o i n t h e a b o v e r e g a r d t e x t a c c o m p a n y i n g n 147
supra.
271
re so lv e th e d is p u te s on t h e b a s i s of le g a l c o n sid e ra tio n s
a l o n e . 1<so
T h ird ly , and c l o s e l y re la te d to th e above, L a tin A m e ri
can S ta te s d isa g re e d fu n d a m e n ta lly w ith th e U n ite d S t a t e s on
th e re la tiv e im p o rta n c e o f f a c t o r s to be c o n s id e r e d in de
te r m in in g w h e th e r a m a ritim e c la im w as j u s t and r e a s o n a b le .
The U n i t e d S t a t e s , f o r ex am p le, su p p o rte d its c la im to th e
c o n tin e n ta l s h e lf by s t r e s s i n g , inter alia , t h a t t h e l a t t e r
w as " n a t u r a l l y a p p u rte n a n t" to th e a d ja c e n t la n d m ass, w h ile
a t t h e sam e tim e a r g u i n g th a t th e liv in g reso u rces of th e
s u p e r ja c e n t w a te rs re m a in ed s u b j e c t to th e re g im e o f th e
h i g h s e a s . 161 T h e CEP a n d o t h e r c o a s t a l S t a t e s , ho w ev er,
d isp u te d th e a lle g e d i n h e r e n t p rim a c y o f t h e g e o l o g i c a l r e
la tio n sh ip b e tw ee n t h e c o n t i n e n t a l sh e lf and th e a d ja c e n t
la n d m ass a s a l e g a l b a sis fo r th e a sse rtio n o f m a ritim e
c la im s. As Tom F a r e r a n d P a u l a n n C a p l o v i t z observe,
States lacking the blessings of a broad shelf were unprepared to accept liiply the Di
vine dispensation [relating to fisheries resources above the shelf found in the United
States and siiilar claias]. If the U.S., the U.S.S.R., and certain other happily en
dowed States could appropriate chauvinistically the resources of the ground off their
coasts, then other States were deteriined to appropriate the resources of the water
above their far deeper and hence inaccessible.. .coastal grounds. They were unper
suaded by the insistence that geological realities required new conceptions of the na
tional doiain.1,02
Had t h e U n i t e d S t a t e s been fa c e d w ith o n ly n arro w

s h e lv e s o ff its c o a s ts , it was a r g u e d , t h e A m e ric a n p o s i t i o n
on w h at c o n s t i t u t e d a ju st and r e a s o n a b le m a ritim e c la im
w o u ld h a v e b e e n d i f f e r e n t . 1 0 3
U ltim a te ly th e n , th e above d if f e r e n c e s b e tw e e n t h e po
sitio n s of th e L a tin A m e ric a n S t a t e s , on t h e o n e h a n d , and
1<so Cf K i n s e y , supra Ch 4 , n 5 1 , 1 2 3 ; D L e c u o n a , "The

E c u a d o r f i s h e r i e s d i s p u t e ( a new a p p r o a c h t o an o ld
p r o b l e m ) " ( 1 9 7 0 - 7 1 ) 2 JMLC 91
101 S e e Ch 4 , nn 7 2 -7 5 supra.
162 T F a r e r a n d P C a p l o v i t z , " T o w a r d s a new l a w f o r th e

s e a s : th e e v o lu tio n o f U n ite d S t a t e s p o lic y " in Western
Hemisphere Perspectives, supra n 6 , 3 5 , 40
103 Cf B a t h , supra n 6 4 , 72
272
the United States, on the other, lend support to the view
that rules of international law are essentially phenomeno
logical, not ontological, in nature, and therefore only ex
ist in so far as they are recognized by members of the in
ternational community. That existence is thus subser
vient to the national interests of States comprising that
community. Whereas prior to WWII the major maritime nations
had generally been able to impose their views of the common
interest on other States, their inability to pressure the
Latin American States into recanting their established
claims or convince them to submit those claims to judicial
assessment, resulted in the simultaneous appearance for the
first time in centuries of two significant, substantially
distinct positions on the legal regime governing marine re
sources, including fisheries, based on two equally different
sets of national interests. Furthermore, given the ICJ’s
1951 Fisheries Judgment and the implications thereof discus
sed above, it became increasingly difficult to argue that
the basic approach adopted by the Latin American States --
if not the entire ambit of their claims -- was devoid of
legal validity. The 'coastal State' had indeed emerged as a
significant actor in the law of the sea.103
At the same time, however, the Latin American claims
went far beyond those of Norway in the Fisheries case by ar
guing that a critical factor in assessing the legal validity
of a State's claim to adjacent marine fisheries was the im
portance of the latter to the general economic development
of the country, not merely to needs of small and isolated
coastal communities. That theme would be taken up in subse
quent arguments by other States in similar circumstances and
Cf Farer and Caplovitz, supra n 162, 40; 0 de Ferron,

Le Droit international de la mer (1958) i, 173
Buzan (supra n 76, 15) points out that from a geograph

ical perspective all States bordering on maritime wa
ters are 'coastal', from a functional perspective
'coastal States’ are those having major interests in
the adjacent waters, while 'maritime States’ have far-
flung maritime interests extending well beyond their
own marine boundaries.
273
both sowed the seeds from which developed the concept of the
exclusive economic zone, and foreshadowed sentiments later
found in wider calls by developing countries for a New In
ternational Economic Order.100
That contribution having been acknowledged, it is at
the same time necessary to note that while the CEP States
had in many ways spearheaded the drive for the recognition
of special coastal State rights to adjacent marine fish
eries, the process was only beginning. Although a growing
number of other States were generally sympathetic to the
thrust of their arguments, the Ciudad Trujillo resolution
revealed that they were still undecided as to what might
constitute a fishery regime acceptable to all interested
parties.
While even the major maritime States had recognized
since at least the Truman Proclamations that the- particular
interests of coastal States in adjacent marine fisheries had
necessarily to be accommodated, they also cited the Fisher
ies Judgment in support of their contention that the rights
of other States similarly required recognition. They were
therefore not prepared to recognize the primacy of coastal
State interests claimed by the Latin American States. As
negotiation within the OAS reached an impasse, the question
was taken up within the broader context of the United
Nations.
1 6 6
Cf Brown, supra n 6, 250; and J Vargas, "Latin America
and its contribution to the law of the sea" in NIMO,
supra n 76, 51, 53
C H A PTER SEVEN
EARLY U N IT E D N A T IO N S C O N SID E R A T IO N
OF F I S H E R Y I S S U E S
"Teipora autantur et legis lutentur in illis."
Battle, J.1
I- Introduction
The early post-war concerns about marine fisheries and

legal issues relating thereto were not restricted to the
American continent. Many of the same issues engaging the
Latin American States and the United States were being si
multaneously considered in the wider context of the newly-
created United Nations. It was, in fact, under the aegis of
the latter that significant developments took place relating
to the international law of marine fisheries, culminating in
decisions reached and principles enunciated at the first two
United Nations Conferences on the Law of the Sea.
Before examining the above, however, it is first neces
sary to consider the early deliberations of the Interna
tional Law Commission (ILC).3 Focussing much of its early
attention on developing and codifying the law of the sea,
State v Soward 83 Ark 264; 103 SW 741
Established on 21 November 1947 by the United Nations

General Assembly (UNGA Resolution 174(11)), the Commis
sion has as its object to promote "the progressive de
velopment of international law and its codification"
(Art 1, Statute of the ILC). "Progressive development"
was defined as "the preparation of draft conventions on
subjects which have not yet been sufficiently developed
in the Practice of States"(ibid Art 15). "Codification"
meant "the more precise formulation and systematization
of rules of international law in fields where there has
already been extensive State practice, precedent and
doctrine"(ibid). It has not always proved possible to
draw a clear distinction between the two activities, as
the Commission admitted in submitting its final draft
articles on the law of the sea to the UNGA (see text
accompanying n 103 infra).
275
including selected legal aspects of marine fisheries, the
Commission laid the foundation for the above Conferences and
in so doing advanced a number of innovative proposals that
were to have an important impact on the evolution of the
law.3
11 - The International Law Commission
A- The Early Deliberations^

Meeting for the first time in 1949. the Commission se
lected for codification the regimes of the high seas and
territorial waters.® A Dutch national, J P A Francois, was
appointed rapporteur.0 Submitting his report to the 1950
For a review of the ILC's overall contribution to the

first Law of the Sea Conference see D Johnson, "The
preparation of the 1958 Geneva Conference on the Law of
the Sea"(1959) 8 ICLQ 122, 124-129.
For a detailed review of the ILC’s consideration of

fishery issues see H Visser 'T Hooft, Les Nations Unies
et la conservation des ressources de la mer.- Stude des
rapports entre le codificateur et le milieu politique
(1958) 179-241.
"Report to the General Assembly on the work of the

first session (A/CN.4/13)"(1949) YILC 277-290, 280,
281. At its first session, the ILC decided to give pro
visional priority to the high seas regime. However,
pursuant to a recommendation in UNGA Resolution 374(IV)
of 6 December 1949, the Commission in 1951 initiated
work on the regime of the territorial sea as well
("Report of the International Law Commission to the
General Assembly (A/1858)" (1951) YILC 123, 140).
A/CN.4/13, supra n 5, 281; A/1858, supra n 5, 140.

Francois had been rapporteur on the question of the
regime of territorial waters at the 1930 Hague Confer
ence (see Ch 3 supra).
From a strictly legal perspective, members of the
ILC are elected without reference to nationality, al
though in electing members the UNGA is required (Art 8,
Statute of the ILC)
to bear in Hind that the persons to be elected to the Couission should

individually possess the qualifications required and that in the Corais-
276
session of the ILC, Francois proposed excluding marine re
sources from further detailed study, as the broad scope and
diverse nature of the subject in his opinion made it unsuit
able for codification in a general convention.17 Other mem
bers of the Commission, however, felt that in light of the
Truman Proclamations and other recent national claims the
narrower topic of marine resource conservation warranted ur
gent consideration. In that regard, Roberto Cordova (Mex
ico) , urged that means be found "to enable those treaties
which protected resources required by mankind to become ap
plicable to all” .Q Despite the claim by Manley Hudson (Uni
ted States) that such a development would be "reactionary",’
there was widespread support for Cordova’s proposal and
Francois undertook to study the matter, including procedures
for the settlement of possible fishery disputes that might
arise .10
In a separate discussion concerning fisheries, the ses
sion also witnessed the adoption with no objection and al
most no discussion, of a Hudson proposal that control and
jurisdiction of submarine areas beyond the territorial sea
sion as a whole representation of the lain foris of civilization and of

the principal legal systeis of the world should be assured.
In practice, the Commission has had since its inception

a national from each permanent member of the Security
Council with the exception of China. For a list of all
members to 1980, see United Nations, The Work of the
International Law Commission (1980; 3rd ed) 109-112.
In the following discussion the name of the Commission
member will be given, following by his nationality in
brackets. In most, if not all, cases, views expressed
by individual ILC members mirrored the official govern
ment position of the States from which they originated.
(1950) YILC i, 180. Similar sentiments, it will be re

called, were expressed in connection with the 1930
Hague Conference. See Ch 3, n 58 and accompanying text
supra.
Ibid 201
Ibid 202
Ibid. Expressions of support were expressed, eg, by

Yepes of Colombia (ibid 201), Sandstrom of Sweden
(ibid), and Scelle of France (ibid).
277
should not substantially affect ’’the right of free fishing
in [superjacent] waters” .11 The latter, it was agreed, con
stituted high seas.12
The ILC also noted the need to distinguish between the
contiguous zone and the question of fishery protection and
conservation, a distinction not always observed in State
practice.13
In his 1951 report, Francois advanced the view that r i
parian States were uncontestably justified in enacting regu
lations to protect resources in adjacent waters and that for
rules to be effective they had to be applied beyond the ter
ritorial sea. He therefore proposed that the coastal State
has the right to promulgate regulations ’’dans une zone con-
tigue aux eaux territoriales de 200 milles marins” necessary
to protect resources against extinction.1-*- At the same time,
however, the coastal State must endeavour to formulate regu
lations with the agreement of other interested S t a t e s ; the
regulations must be non-discriminatory; and any unresolved
dispute must be submitted to the ICJ. Francois stressed
that his system was restricted to resource protection, did
Ibid 224
Ibid 232
In this regard, for example, there was a considerable

difference of views as to the precise import of the
1947 Chilean Decree (see Ch 6, nn 14 and 15 and accom
panying text supra) . Cördova thought that the latter
was not a matter of contiguous zone but "primarily... an
extension of C h i l e ’s territorial waters since it claim
ed sovereignty over the seas mentioned"((1950) YILC i,
237). James Brierly (UK) agreed. Francois, on the
other hand, while noting the Chilean claim to sover
eignty, pointed out that it was only for the purpose of
protecting natural resources. Similarly, Hudson con
cluded that Chile's claim "did n o t ... represent a mere
proclamation of full rights of sovereignty"(ibid) . At
the same time, he explained, Truman’s fisheries Procla
mation concerned an area larger than the contiguous
zone maintained by numerous States for customs, fiscal
and sanitary purposes, and did not involve the exercise
of exclusive American jurisdiction {ibid 236).
"Deuxi^me rapport sur la haute mer par J P A Francois,

rapporteur special (A / C N .4/42)"(1951) YILC ii, 75\ 88
273
not involve the contiguous zone, and excluded any preferen
tial treatment for the coastal State.13 Introducing his re
port to the Commission, Francois explained that the coastal
State's right to establish a protective zone
was not a sovereignty, but just as the coastal State had been acknowledged [by the
ILC] to possess a right of exploration and exploitation over the continental
shelf,10, so in the case under consideration it was acknowledged to possess the nec
essary rights for the protection of larine fauna . 1 "7
Hudson took early exception to the above approach and

suggested starting not from the question of coastal State
competence but from two general principles: the need for
conservation, and the duty of fishing States to take appro
priate conservation measures. He therefore proposed that
high seas fishing States "may regulate and control fishing
activities in such area for the purpose of conserving its
resources against extermination".13 If only a single State
was involved, it "may” take such measures; if several were
involved, they "shall" act in concert.13 In any case, Hud
son added, "no area may be closed to the entry of nationals
of other States to engage in fishing activities".30 Those
principles, he pointed out, were explicitly stated in Tru
man's fisheries Proclamation and reflected the position that
only States actually engaged in fishing were concerned with
conservation measures. Hudson saw no reason for a coastal
State not engaged in fishing outside its own territorial sea
having any right to proclaim conservation regulations over
broad high seas areas.31
Ibid 88-89
(1951) YILC i, 272-275
Ibid 302
Ibid 302, 303
Ibid
Ibid
21 Ibid. In referring to Truman's Proclamation, Hudson
cited only its policy assertion, ie, "Where such activ-
279
Jean Spiropoulos (Greece) considered Francois’ proposal
impractical, as international law gave no State exclusive
high seas jurisdiction. Should there be general support for
the adoption of international regulations, he opined, a con
ference would need to be summoned to formulate rules binding
on all States universally by a "kind of High Seas Board” .22
Hudson's approach was supported by ILC members favour
ing formulation of an arrangement encompassing the high seas
as a whole and not simply those adjacent to territorial wa
ters,23 and by those opposed to riparian nations’ claims to
exercise unilateral fishery jurisdiction in any form.2**
Objecting to Hudson's proposals were Commission members
(particularly from Latin America) anxious to prevent power
ful fishing nations from taking action which the former
thought detrimental to coastal State interests, as well as
those who considered that Truman’s fisheries Proclamation
had already advanced claims beyond those of Hudson.23
ities...in such agreement” . No mention was made, eg,

of the Proclamation's reference to "the special rights
and equities of the coastal State” . See Ch 4, text ac
companying n 49 supra and n 25 infra.
Ibid 304, 305
See, eg, comments by el-Khouri of Syria (ibid 306), Hsu

of China(ibid 308) and Sandström (ibid 313).
See, eg, comments by Scelle (ibid 305) and Spiropoulos

(ibid 304).
Gilberto Amado (Brazil), for example, argued that the

Francois proposal "followed the slow and natural evolu-
tionôf law” , whereas Hudson "coldly envisaged that a
powerful and rich State might establish itself in any
area of the high seas and take possession of it..."
(ibid 305; cf, comments by Yepes, ibid 305; CÖrdova,
ibid 306; and Alfaro of Panama, ibid).
Francois, for his part, claimed (ibid 303) that in
Truman’s Proclamation
the United States laid claim to a special zone where American nationals
would enjoy special rights. It was true that the Proclamation referred
to negotiations with a view to an agreement, but that did not alter the
fact that a claim was made to a special zone in which the coastal State
would have special rights in regard to the protection of the marine
fauna.
280
Throughout the session the Commission remained equally-
divided on whether, in principle, priority should be given
to the coastal State concerning conservation.2®- Compromise
draft articles were ultimately approved, containing Hudson's
proposal; a coastal State right to take an equal part with
fishing States in any conservation zone within 100 miles of
that State's territorial sea, even if its nationals were not
engaged in fishing in the area;27 and an elaboration of Spi-
ropoulos’ original proposal whereby a permanent internation
al body would conduct scientific studies and make conserva
tion regulations for adoption by States for any area should
the States concerned be unable to agree amongst themselves
on appropriate measures.20 There being equal support for a
proposal that pending the establishment of the above body
the coastal State should be entitled to lay down non-dis-
criminatory conservation measures in high seas areas adja
cent to its own territorial waters, the Commission decided
simply to bring it to the attention of States without spon
soring it.20
Scelle (ibid 309) thought that Truman’s Proclama

tion allowed a coastal State to take protective action
with respect to marine resources failing an agreement
among the States concerned. Hsu and Cordova (ibid 312)
also thought that the Proclamation was closer to Fran
cois' proposal than to Hudson's.
In a Commission vote taken on 5 July 1951, the Francois

and Hudson proposals each received six votes (ibid
308-309).
This provision (without a distance specified) was orig

inally proposed by Hudson (ibid 309). The distance of
100 miles was a compromised between "a short distance"
favoured by Hudson and 200 miles proposed by Francois
and Yepes (ibid 412). Justification for the latter part
of the provision was given by Alfaro, who explained
that while Panamanian nationals did not fish outside
their own territorial waters, fishing activities by
large Costa Rican companies had had a detrimental ef
fect on the former’s operations (ibid 306).
Ibid 314-315
29
Ibid 415; A/1858, supra n 5, 143
281
The ILC also accepted a Francois proposal that contigu
ous zones not comprehend the recognition of special fishing
rights, as nationals of other States might be deprived of
the right to fish in such areas.30
The above draft articles were subsequently transmitted
to States for comment.31 While many of the 18 replies were
positive,33 the range of views was extreme. The United
Kingdom, for example, recorded her ’’emphatic opposition" to
any form of coastal State fishery regulation, as "unilater
ally declared conservation zones outside territorial waters
are illegal as being in contravention of the principle of
the freedom of the seas".33 In the same vein, she was not
prepared to accept a continental shelf convention lacking a
provision declaring superjacent waters to be high seas.
Chile held the opposite view, arguing that the draft
Commission articles were "unrealistic" and "out of harmony"
with usual State practice.3** Chile and other Latin American
States, the former claimed, had already categorically de
clared that their rights over the submarine shelf contiguous
to their coasts were "proper to or inherent in sovereignty
and dominion" and not merely to those of jurisdiction and
control.3* To avoid both legal contradictions between the
(1951) YILC i, 324. This position was consistently

maintained by the Commission throughout its discus
sions .
In a development indirectly related to fishery
matters, the ILC followed its previous year's decision
(see text accompanying nn 11 and 12 supra) and with no
dissent adopted a draft article providing that ” [t]he
exercise by a coastal State of control and jurisdiction
over the continental shelf does not affect the legal
status of the superjacent waters as high seas"{ibid
277) .
A/1858, supra n 5, 139-140
See "Report of the International Law Commission cover

ing the work of its fifth session, 1 June - 14 August
1953 (A/2456)’’(1953) YILC ii, 201, 241-269.
Ibid 267
Ibid 243
282
regime governing waters above the shelf and that governing
the shelf itself, as well as disputes likely to arise there
from, Chile proposed that the Commission affirm that
the sovereignty of a coastal State extends to its continental shelf and to the super
jacent high seas, subject to the liaitations iaposed by international law to ensure
the innocent and peaceful passage of the ships of all nations and the establishaent
and aaintenance of subaarine cables.3,0.
The above "theory of sovereignty", she pointed out, had

already been adopted by Latin American States which had as
serted sovereignty over waters superjacent to their conti
nental shelves "to the extent required to guarantee to those
States ownership of the resources contained therein".*
3*
*'7
While "no State could reserve to itself absolutely and
against all other nations a monopoly of hunting and fishing
in any part of the ’free’ or ’high’ seas...used to be the
international law or rule", Chile explained, the freedom of
the seas principle had to reexamined in the light of recent
events.30 The Truman fisheries Proclamation and other sub
sequent claims provided sufficient grounds for concluding
that a State may establish "exclusive zones of control and
protection of maritime fishing...in areas of the high seas
contiguous to its territory...” , and thus "there should be a
reaffirmation of the right to establish an exclusive...fish-
ing zone 200 miles wide".30
Finally, she claimed, international law recognized the
existence of a contiguous zone, that is, "a maritime belt or
area between the high seas and the territorial sea" over
which the State might exercise certain limited rights with
respect to, inter alia, the protection of fisheries.**0 In
353 Ibid 244
30 Ibid. See also in this regard Ch 6, nn 109 and 110 and

accompanying text supra.
3^ Ibid
3S Ibid (emphasis added)
30 Ibid 245. For a summary of the detailed argument see

Ch 6, nn 77ff and accompanying text supra.
283
Chile’s view the zone should be "at least 100 nautical miles
measured from the coast".41
The 1953 session saw the ILC complete final draft arti
cles on the continental shelf, high sea fishery resources,
and the contiguous zone. The waters superjacent to the con
tinental shelf remained high seas, thus protecting the
"paramount principle of the freedom of the seas".'42
In a separate article, the Commission posited that
shelf exploration must not result in any unjustifable inter
ference with fishing in superjacent waters. Thus, the free
dom of the sea principle must be modified to an extent de
termined by the relative importance of the needs and inter
ests involved. "While, in the first instance, the coastal
State must be the judge of the reasonableness -- of the jus
tification -- of the measures adopted", explained the ILC,
in case of disputes as to whether the measures constituted
an unjustified interference with the freedom of fishing, the
matter must be settled as provided for in the articles.'43
Ibid
Ibid. The reference to "innocent and peaceful passage"
(see text accompanying n 36 supra) would seem to indi
cate the Chile’s claim of sovereignty over waters su
perjacent to the shelf was, in effect, an extension of
its territorial sea -- innocent passage being one of
the hallmarks of the territorial sea regime. Given her
position on the contiguous zone, however, as well as
the statement in her 1947 Declaration that her claim
does not affect "the rights of free navigation on the
high seas"(ibid 244-245), it appears that the 200-mile
zone claimed was not an extended territorial sea but
rather a restricted resource zone. From the miscella
neous statements made by Chile, the significance of the
100-mile contiguous zone with respect to fisheries is
unclear, given the Chilean claim to sufficient sover
eignty up to 200 miles to guarantee ownership of fish
ery resources. Is it implied that between 100 and 200
miles Chile would not be able to protect her fisheries
(see text accompanying n 40 supra)?
A/2456, supra n 32, 215. This position was consistent

ly maintained by the Commission and an Article to that
effect was ultimately recommended by the ILC to the
UNGA.
Ibid. See Ch 5, n 51 and accompanying text for a simi

lar statement by the ICJ in the Fisheries case.
284
As for high seas fishery conservation itself, the Com
mission adopted three articles following closely the compro
mise reached earlier.'*'* A State whose nationals alone fish
ed in a particular area "may regulate and control fishing
activities... for the purpose of protecting fisheries against
waste or extermination".'*® Where nationals of two or more
States are involved, those States "shall prescribe the nec
essary measures by agreement".*6 If newcomers to the fish
ery do not accept the measures, the question shall at the
request of any interested party, be submitted to a body to
be established.
The second article entitled coastal States situated
within 100 miles of such a zone to take part "on an equal
footing" in any regulatory system, whether their nationals
fished in the area or not.^
The third article required States to accept as binding
on their nationals regulations prescribed as essential for
the purpose of protecting resources against waste or exter
mination by an international authority established within
the UN framework for that purpose.*0
The Commission observed that the articles largely con
stituted progressive development of international law on the
subject, the existing law (mainly found in the first part of
the initial article) being inadequate to protect marine fau
na against extermination. It admitted being influenced by
the concept of ’abuse of rights', explaining:
Ibid 217
Ibid
Ibid. Sandström, who proposed the wording cited,

((1953) YILC i, 159) meant that the coastal State
should be entitled to take part in all the discussions
concerning establishment and implementation of the reg
ulations, and that, if no agreement was reached, the
matter should be referred to the international author
ity referred to in the recommendations (see text accom
panying n 48 infra).
•48
A/2456, supra n 32, 218
285
A State which arbitrarily and without good reason, in rigid reliance upon the princi
ple of the freedoi of the seas, declines to play its part in seasures reasonably nec
essary for the preservation of valuable, or often essential, resources froi waste and
exploitation abuses a right conferred upon it by international law. The prohibition
of abuse of right, in so far as it constitutes a general principle of law recognized
by civilized States, provides to a considerable extent a satisfactory legal basis for
the general rule as foraulated in Article
In f a c t , th e ILC a d d e d , even b e fo re adoption of th e

draft a rtic le s, "en lig h ten ed S t a t e s ” should co n sid er th em
selv es bound to a c t on t h e v ie w t h a t it may b e c o n t r a r y to
th e freedom of th e sea p rin cip le to encourage or perm it a c
tio n am ounting to an a b u se o f r i g h t a n d w h i c h may l e a d to
th e d e s tru c tio n of n a tu ra l r e s o u r c e s . 550
B ecau se o f t h e w ide pow ers t o be c o n f e r r e d on t h e in
tern atio n al au th o rity , t h e C o m m is s io n saw no n e e d t o en tru st
co astal S tates w ith th e rig h t to take u n ila te r a l conserva
tio n m easures, even th o s e of a n o n -d is c rim in a to ry n a t u r e . 31
In s u b m ittin g th e fish ery artic le s to t h e U n i t e d Na
tio n s G e n e r a l A ssem bly (UNGA), th e ILC s u g g e s t e d th at in
view o f t h e i r im p ortance, th e proposed p r i n c i p l e s be f o r
m ally approved as a b a s is for fu tu re d etailed reg u latio n s
and c o n v e n t i o n s , and t h a t , given th e tech n ical n atu re of th e
la tte r, th e FAO s h o u l d be a p p ro ach ed w ith a view t o in v e sti
gatin g th e su b ject and p r e p a r i n g ap p ro p riate d ra ft tech n ical
agreem ents in lin e w ith t h o s e p r i n c i p l e s . 3,38
Ibid 2 1 9
Ibid
F I K o z h e v n i k o v (USSR) a n d J a r o s l a v Z o u r e k ( C z e c h o s l o
v a k ia ) b o th oppo sed any p r o p o s a l a c c o r d i n g an i n t e r n a
t i o n a l a u t h o r i t y j u r i s d i c t i o n to im pose c o n s e r v a t i o n
r e g u l a t i o n s or p ro v id in g fo r com pulsory a r b i t r a t i o n of
fish ery d isp u tes. They a r g u e d t h a t h i g h s e a f i s h e r y
r e g u l a t i o n s h o u l d s i m p l y t a k e p l a c e am o n g t h e S t a t e s
c o n c e r n e d , " w i t h i n t h e f r a m e w o r k o f s o v e r e i g n t y " (i bid
144, 160, 1 6 1 ). T h e i r p o s i t i o n was d i s t i n c t l y a m i n o r
i t y o n e , h o w e v e r , a n d t h e r e m a i n i n g m e m b e r s o f t h e Com
m i s s i o n v o t e d i n f a v o u r o f t h e a r t i c l e (ibid 1 6 4 ) .
32
Ibid 2 1 9
286
Although the ILC had discussed the territorial sea re
gime at both its 1952 and 1954 sessions, neither saw any
substantive consideration of fishery issues relating there
to. Members were unable to agree on an article governing
the breadth of the territorial sea, and in its Report to the
UNGA the Commission simply listed nine suggestions advanced
at the 1954 session.533
B. The 1955 International Technical Conference on the

Living Resources of the Sea
Meeting in 1954, the UNGA declined to offer a definite
view on the ILC's draft fishery articles. Instead, noting
that the Commission had not completed work on related ques
tions, and that problems concerning the high seas, territo
rial waters, the continental shelf and superjacent waters
were closely linked juridically as well as physically, it
deferred detailed consideration of fisheries until the ILC
had completed its study of all associated issues. The UNGA
did, however, decide to convene an international technical
conference to study the problem of marine fishery conserva
tion and "to make appropriate scientific and technical rec
ommendations", without prejudging related problems awaiting
consideration by the UNGA.^
The Conference attracted 45 States. They agreed that
"[t]he immediate aim of conservation of living marine re
sources [was] to conduct fishing activities so as to in
crease, or at least to maintain, the average sustainable
"Report of the International Law Commission covering

the work of its sixth session, 3 June - 28 July 1954
(A/2693)"(1954) YILC ii, 140, 153
UNGA Resolution 900(IX), of 14 December 1954. See

(1954) YUN 423-426 for background to the Resolution.
For a discussion of Conference deliberations see Visser
'T Hooft, supra n 4, 203-212. For an account of the
American approach to the Conference see W Herrington,
"The Convention on Fisheries and Conservation of Living
Resources: Accomplishments of the 1958 Geneva Confer
ence" in The Law of the Sea: Offshore Boundaries and
Zones (1967; L Alexander, ed)[hereafter cited 'Offshore
Boundaries'] 26, 27-29.
287
yield of products in desirable form” .33 The principle con
servation objective, they also decided, was ”to obtain the
optimum sustainable yield so as to secure a maximum supply
of food and other marine products” .
Controversy surrounded the proper role of the coastal
State with respect to conservation. According to one group,
largely composed of States with important distant-water
fishing industries, conservation measures should be based on
technical and scientific evidence and the coastal State was
not necessarily better qualified than other States to assess
the evidence. For that reason, all States concerned should
be entitled to introduce relevant scientific data and play
an equal role in the formulation of appropriate conservation
measures. The coastal State should not unilaterally intro
duce and enforce such measures for high seas fisheries ap
plicable to other States without the latter's consent.
In contrast, a second group, led by a number of Latin
American States, argued that the coastal State had a special
interest in the conservation measures to be applied. Within
this group, views of the rights and duties of riparian na
tions traversed a wide range, some feeling that the coastal
State should be granted jurisdictional rights with respect
to control and conservation regulations in areas adjacent to
its coasts, the only limitation being that the measures
should accord with the general principles of a technical
character adopted at the Conference and be based on the
maintenance of the existing ecological system of the mari
time area in question. This position was compatible with
Report of the International Technical Conference on the

Living Resources of the Sea, 18 April to 10 May 1955.
UNGAOR 10th Session, Suppl 9, doc A/2934 [hereafter
cited 'Rome Conference Report'], para 17.
Ibid para 18. As Garcia Amador, the Deputy Chairman of

the Conference, subsequently explained, the Conference
thus accepted that the objective of a conservation pro
gramme or measure is to obtain the maximum sustainable
yield of the one or more species exploited (supra In
troduction, n 16, 143). For a discussion of evolving
fishery management objectives see Annex I infra.
288
the view that when formulating means for applying conserva
tion measures those nearest to, and dependent upon, the re
sources for food should be accorded primary consideration.
It also resulted from the argument that the coastal State
had a special interest and responsibility for conserving
living marine resources in adjacent waters and as a conse
quence was the best qualified to carry out the task.55'7
The above argument was particularly evident in the po
sition of some Latin American States that the Conference
should offer the ILC as clear a picture as possible of the
multi-facited problem of fishery conservation, including im
portant social and economic aspects.00 Cuba and Mexico pro
posed that the Conference recognize that ’’fishery conserva
tion programmes must also tend to and fundamentally be based
on the maintenance of the existing ecological systems in the
various maritime zones” .00 Furthermore, it would also be
recognized that "in certain cases... social and economic fac
tors may have a bearing upon the evaluation of the objective
of conservation” and account would be taken of the coastal
State and of its "special interest" in maintaining the pro
ductivity of local high seas fishery resources.00 As well,
it would be accepted that where conservation needs were im
perative and States failed to agree on appropriate measures,
the coastal State may adopt non-discriminatory measures
based on scientific and technical principles. While the
’primary’ aim of conservation was achievement of the maximum
sustainable yield (MSY), thus satisfying the ’general inter
est' of the international community, explains Garcfa Amador,
that objective may be "conditioned by the existence of a
Ibid paras 44-47
Auguste, supra Ch 6, n 6, 213
UN doc A/Conf.10/L.40
A/Conf.10/GC.1, cited in Garcia Amador, supra Introduc

tion, n 16, 144
239
’s p e c i a l i n t e r e s t ’ of th e co astal S t a t e ” as in d icated
above.
C ountering o b jectio n s th at th e proposal im plied th e ex
ten sio n of t e r r i t o r i a l w aters, J o r g e C a s t a n e d a o f M exico
stressed th at th e d r a f t reso lu tio n ”in no way a f f e c t e d th e
statu s as high sea s of th e m aritim e zones co n cern ed ".® 2
U ltim ately , how ever, by a v e r y n a rro w m a rg in i t was d e
cided th at t h e C u b a n - M e x i c a n p r o p o s a l wa s o u t s i d e th e scope
o f th e C o n fe re n c e and i t was t h e r e f o r e not d e a lt w ith to
su b stan tiv e f i n a l i t y . d;3
Ib id
UN d o c A / C o n f . 1 0 / S R . 2 1 , p 11
Rom e C o n f e r e n c e R e p o r t , s u p r a n 5 5 , p a r a 4 8 . The v o t e
w as 21 t o 2 0 , w i t h 3 a b s t e n t i o n s . V o t e s on t h e Norwe
g i a n r e s o l u t i o n n o t t o c o n s i d e r t h e p r o p o s a l w ere as
f o l l o w s ( G a r c i a Amador, s u p r a I n t r o d u c t i o n , n 16, 155,
n 2) :
I n f a v o u r : U n i t e d S t a t e s (US), C a n a d a , Denmark, E g y p t,
F r a n c e , F e d e r a l R e p u b l i c o f Germany (FRG), G r e e c e , I s
r a e l , I t a l y , J a p a n , M onaco, N e t h e r l a n d s , Norway, Po
l a n d , P o r t u g a l , S p a i n , Sweden, T u rk e y , U nion o f S o u th
A f r i c a ( S A ), U nion o f S o v i e t S o c i a l i s t R e p u b l i c s
( U S S R ) , a n d t h e U n i t e d K i n g d o m (UK)
Ag a i n s t : U r u g u a y , Y u g o s l a v i a , A r g e n t i n a , A u s t r a l i a ,
B r a z i l , C h i l e , C o lo m b ia , C o s ta R ic a , Cuba, E c u a d o r, El
S a l v a d o r , G u a te m a la , I c e l a n d , I n d o n e s i a , K o re a , M exico,
Panam a, P a ra g u a y and P e ru
A b s t a i n i n g .- C h i n a , H o n d u r a s a n d N i c a r a g u a .
G e o r g e s S c e l l e s u b s e q u e n t l y r e p o r t e d ( ( 1 9 5 5 ) Y IL C
i , 1 0 7 ), h a v in g r e c e i v e d a l e t t e r from a r e p r e s e n t a t i v e
a t t h e C o n f e r e n c e e x p l a i n i n g some o f t h e b a c k g r o u n d t o
th e q u e stio n :
under the cover of a scientific discussion, a political conflict had

arisen between the countries with large fishing industries and those with
little or none. All the countries of Western Europe had stood f i n in
resisting the claias of the Latin Aaerican and certain Asian countries,
and had rejected [the Cuban-Mexican proposal]. ...The writer had gone on
to say that representatives of the Soviet Union, the United Kingdoa and
the United States...had deaonstrated the iapossibility of fraaing reason
able regulations on an ecological basis__ Non-coastal States, particu
larly those which, having long been engaged in fishing, had acquired for
theaselves a special position, aust not now be placed in one of
inferiority.
He a l s o r e c e i v e d a l e t t e r f r o m a L a t i n A m e r i c a n
p o l i t i c i a n in d ic a tin g (ib id ) th a t " th e q u e s tio n of th e
t e r r i t o r i a l s e a was a b u r n i n g o n e i n S o u t h A m e r i c a , a n d
290
The Conference nevertheless did acknowledge more gener
ally that "when formulating conservation programmes, account
should be taken of the special interests of the coastal
State in maintaining the productivity of the resources of
the high seas near to its coast".*'* It also agreed that one
of the "guiding principles" to be followed in formulating
conventions for fishery conservation should be that "all
States fishing the resource, and adjacent coastal States,
should have equal opportunity of joining the convention and
of participating in the consideration and discussion of reg
ulatory measures" .055
While views on the significance of the decision taken
on the ’special interest’ of the coastal State in adjacent
marine fisheries varied markedly, the Conference neverthe
less provided the first international recognition of the
concept.00. The latter would take on much greater signifi
cance in succeeding years, as will be seen.
that those Latin-American countries which did not as

pire to a 200-mile limit had in mind something of the
order of at least 100 miles".
Rome Conference Report, supra n 55, para 18. In a foot

note to the Report, it was explained that ” [a]t its
19th Plenary meeting on 5 May, the Conference decided
by a vote of 18 against 17 with 8 abstentions to in
clude this sentence in its report. The decision is
recorded in Conference document A/Conf.10/SR.19."
Ibid para 76. See ibid para 23 for a list of the types
of measures that might be applied in a conservation
programme
The CEP States all lodged reservations to the Con
ference Report. Peru and Chile {ibid Annex A) maintain
ed "the primacy of the regulations on conservation of
the living resources of the sea contained in their na
tional legislations and in the international conven
tions to which they [were] parties". Ecuador stated
(ibid)that the Report and its conditional approval left
uninpaired any relevant constitutional and legal dispositions adopted

by...Ecuador, and any stipulations of the conventions to which it has ac
ceded, and the unshakable attitude that it [had] taken in defense of the
inalienable rights of coastal States and of their aarine resources.
66 Cf Auguste, supra Ch 6, n 6, 210; and Garcia Amador,
supra Introduction, n 16, 145
291
C. Final Consideration of Fishery Issues
The ILC reverted to fishery matters during its 1955
discussion of territorial and high seas regimes. It agreed
that the term 'high seas' meant all marine areas not in
cluded in a State’s territorial sea or internal waters, and
that freedom of the high seas comprehended freedom of fish
ing.017 The latter freedom was further expressed in a sepa
rate article providing that all States might claim for their
nationals the right to engage in high seas fishing, subject
to their treaty obligations and the revised articles pro
posed by the ILC concerning marine resource conservation.
It was, in fact, high seas fishery conservation that
occupied much of the Commission’s attention during the ses
sion -- due largely to the failure of the Rome Conference to
support the establishment of an international fishery con
servation authority as the ILC had recommended. As Garcia
Amador (Cuba) explained, some States were not prepared to
delegate their powers of fishery regulation to an interna
tional body, while others were genuinely convinced that
since conservation problems were regional or even local in
character, an ad hoc system was required. Even if the major
ity of States were prepared to accept such a body, enforce-
There was no substantive discussion of either principle

by the Commission and the relevant articles (1 and 2)
were adopted unanimously ((1955) YILC i, 4, 59, 236).
They were subsequently included in the final articles
submitted to the UNGA ("Report of the International Law
Commission covering the work of its eighth session, 23
April - 4 July 1956 (A/3159)"(1956) YILC ii, 253, 259).
Francois ((1955) YILC i, 230) explained that it was es

sential to have an initial article on the right to fish
preceding the articles on fishery conservation. In a
comment on the draft article submitted to the UNGA in
1955, the ILC pointed out ("Report of the International
Law Commission covering the work of its seventh ses
sion, 2 May - 8 July 1955 (A/2934)"(1955) YILC, ii, 19,
28) that it accepted no exceptions to the principle in
the high seas covering the continental shelf beyond
territorial waters (save as regards sedentary fish
eries ).
An article in substantially the same form was in
cluded in the final articles submitted by the ILC to
the UNGA (A/3159, supra n 67, 262).
292
ment of regulations remained a problem for which the ILC
draft had contained no solution.69
In light of the above, Garcia Amador submitted new
draft articles to the Commission allowing a coastal State
with a special interest in the high sea fishery concerned to
take unilateral conservation measures when necessary to
avoid any abuse of the freedom of fishing by nationals of
other States. Following a recommendation of the Rome Con
ference, he suggested that while a coastal State's special
interest was undeniable if its nationals actually fished in
the waters contiguous to its coast, that interest was also
present if nationals were not so engaged -- so long as the
State's economic activities or food supply depended upon
maintaining the productivity of the fishery. It was neces
sary he concluded, to substitute such equitable criteria for
the arbitrary 100-mile limit earlier proposed."70
To protect the legitimate interests of other States,
however, Garcia Amador suggested that the right of the coas
tal State to take unilateral action should be subject to
stringent qualifications. In the event of disagreement over
measures adopted, differences would be settled by compulsory
recourse to special ad hoc arbitration boards whose deci
sions would be final and binding on all concerned.71
(1955) YILC i, 78. Garcfa Amador had been the Deputy

Chairman of the Rome Conference.
That principle, he explained, was consistent with de

liberations at the Rome Conference: "[t]he criterion
suggested by the Rome Conference was not the size of a
coastal State's fishing industry, but the country's
economic and social interests"(ibid 108). He also cited
the example of Peru's anchovy fishery as an instance in
which a coastal State while not actually engaged in
fishing might nonetheless be keenly interested in fish
ery conservation (ibid 87). See also n 27 and accom
panying text supra.
Ibid 76-79, 84-85, 108. By "arbitration boards", Gar

cia Amador explained (ibid 85), he had in mind "mixed
commissions with equitable representation of the oppos
ing interests", ie, coastal and non-coastal States.
293
R e a c tio n o f C o m m is s io n m e m b ers w as g e n e r a l l y fav o u r
a b le . S ev eral c o n s id e re d th a t S ta te s th a t had advanced ’e x
tre m e ’ t e r r i t o r i a l sea c la im s c o u ld be p ersu ad ed by a r t i c l e s
a lo n g th e lin e s pro p o sed above to m o d e ra te th e ir p o sitio n s
as th e ir fish e ry in te re sts w o u ld now b e a d e q u a t e l y p ro te c t
ed. F ra n c o is, fo r e x a m p le , o p in e d th a t
When claiiing sovereign rights over a maritime zone, States were priiarily concerned
with conservation measures rather than with reserving exclusive fishing rights to
their nationals. It was clear that if the coastal State's right to promulgate fishery
conservation measures were [sic] acknowledged, that would permit the disclaimer of any
right of the coastal State to proclaim exclusive fishing privileges.7,3
At th e sam e t i m e , it w as re c o g n iz e d th a t th e p ro p o sa ls
w ere a t th a t sta g e d e lege ferenda a n d , th u s, p ro v isio n fo r
c o m p u lso ry a rb itra tio n w as e s s e n t i a l if su p p o rt w as t o be
fo rth c o m in g from m a jo r fish in g n a t i o n s . “73
W h ile n o t d i s a g r e e i n g fu n d a m e n ta lly w ith G a rc ia Ama
d o r 's p ro p o sa ls, o th e rs in c lu d in g S ir G e ra ld F itz m a u ric e
(U n ite d K in g d o m ,) fe lt th a t th e d raft a rtic le s " m ig h t b e c o n
s id e re d to tilt th e b a la n c e to o h e a v ily in o n e d i r e c t i o n , *by
s tre ssin g a lm o st e x c lu s iv e ly th e p o s itio n of th e c o a sta l
S t a t e " . “7-*- O th e r S ta te s w ere a l s o in s p e c ia l p o sitio n s, he
n o te d , th e y h a v in g engaged in fis h in g fo r many y e a r s in d is
ta n t w a te rs w here th e lo c a l c o a sta l S ta te s had not fish e d to
any g r e a t e x te n t. T hose fis h e rie s had com e t o assum e c o n
sid e ra b le e c o n o m ic im p o rta n c e fo r th e fo rm er S ta te s, he ob
serv ed , and t h e r e f o r e th e y a c q u ire d w hat m ig h t be r e g a r d e d
Ibid 7 9 ; cf, F itz m a u ric e of th e UK (i bi d 7 3 ) and H su

( i bi d 8 1 )
S e e , eg, c o m m e n t s b y F i t z m a u r i c e (i bi d 8 9 - 9 0 ) , C a r l o s
S a l a m a n c a o f B o l i v i a (i bi d 8 9 ) a n d S a n d s t r o r a {ibid),
who c o n c l u d e d t h a t t h e p r o p o s e d r e g i m e
entailed no very grave concession to the coastal State, for the latter's
competence to promulgate unilateral conservation measures would be in the
nature merely of a provisional right. Should, however, compulsory arbi
tration not be an element of the scheme recognition of the special posi
tion of the coastal State would confer an inherent right to adopt unila
teral conservation measures.
7 ^.
Ibid 8 2
294
as a vested interest in continuing to fish in those areas
under reasonable conditions.^5
By the end of the session, compromise articles had been
formulated, the main features of which may be summarized as
follows. First, it was confirmed that a State whose nation
als were alone exploiting a high seas fishery may unilater
ally adopt conservation measures; and if nationals of two or
more States were engaged in fishing in any high seas area,
they must enter into negotiations to prescribe necessary
measures if any of those States so requested.'7e-
Secondly, such measures would be applicable to new en
trants to the fishery; and, if the former were not accepted,
the matter would be determined by arbitration or another
agreed method of peaceful settlement at the request of any
of the interested parties .^
Thirdly, a coastal State having a special interest in
maintaining the productivity of contiguous high seas fisher
ies was entitled to participate on an equal footing in any
system of research and regulation in that area, even though
its nationals did not fish there. The spatial limitation of
contiguity was to be based on the criterion of the coastal
Ibid; cf comments by Douglas Edmonds of the US (ibid

83); and Amado, who thought that Garcia Amador's draft
articles went too far in favour of the coastal State,
seeming "to authorize measures to exclude the more
active nationals of other States by a State whose
citizens had neglected to develop the resources near
their coasts" {ibid 86).
See text accompanying nn 18 and 19 supra. The princi

ple relating to the sole fishing State was adopted
{ibid 105) by 9 votes to 1, with 3 abstentions (9-1-3).
Members felt it unnecessary to substitute "shall" for
"may", which would have obliged the State to take mea
sures . It was generally considered that if a State was
experiencing the economic effects of overfishing it
would of its own accord impose conservation measures.
The principle relating to negotiations among fish
ing States was adopted without comment, 12-0-1 {ibid
105) .
The principle was adopted 12-0-1(ibid).

295
State's special interest, and any disputes relating thereto
would be settled by the recommended arbitral procedure.7®
Fourthly, because of the coastal State's 'special in
terest' in adjacent marine fisheries, it had the right to
unilaterally adopt non-discriminatory conservation measures,
provided that negotiations with States fishing in the area
had not resulted in an agreement within a reasonable period
of time,- the measures were based on appropriate scientific
findings; and scientific evidence showed an "imperative and
urgent" need for their adoption.7'9
Finally, should disputes concerning the above not be
settled within a reasonable time, differences would, at the
request of any parties, be settled by arbitration or other
agreed peaceful means.®0
Ibid 112. The principle was adopted 11-0-2.
The principle was unanimously accepted by the Commis

sion (ibid 124). In a related development, citing the
example of tuna that migrated over vast distances,
Georges Scelle (France) argued that a State that was
geographically remote from a particular high seas fish
ery (and therefore not a 'coastal State') and that did
not fish in the area might nevertheless be vitally in
terested in the fishery. It should therefore should
have the same rights as coastal States discussed above,
otherwise the principle of the sovereign equality of
States would be violated (ibid 107).
Garcia Amador countered that States with special
interests must enjoy special rights -- provided that
such interests could be demonstrated by reference to
the criterion adopted by the Rome Conference. No prac
tical criterion could be devised defining special in
terests of non-coastal, non-fishing States, he argued,
and Scelle’s proposal would allow intervention by any
State. Garcia Amador nevertheless appreciated that
there were cases when certain non-coastal States had
some indirect interest in the living resources of spe
cial areas or some historical rights therein. He re
commended (ibid 108, 111), and the Commission accepted
(11-0-2; ibid 112), that any State finding itself in
such a situation had a right to request States fishing
in the area in question to take necessary conservation
measures.
The various articles relating to dispute settlement

were passed by large majorities (ibid 135-139). Nega
tive votes relating to the principle of compulsory ar-
296
As in earlier sessions, some members such as Fitzmau-
rice thought that "the concept of the contiguous zone...to
gether with the coastal State's power to enact measures for
the conservation of fisheries, took care of all genuine
needs” . O t h e r s , however, disagreed. Faris Bey el-Khouri
(Syria), for example, observed that many States required "a
certain monopoly" in respect of fishery resources in order
to provide for their people, and neither the above fishery
conservation provisions nor the traditional three-mile ter
ritorial sea limit was sufficient.®3
Ultimately, no agreement was reached on the matter and
the ILC simply noted that State practice was not uniform
with respect to the three-mile limit; the Commission did not
consider justified an extension of the territorial sea be
yond 12 miles; and, within that distance, and "without [the
Commission] taking any decision as to the breadth of the
territorial sea", States were not required to recognize a
breadth beyond three miles.03
A large number of States responded to the Commission’s
request for comments on the proposals.0** Only a few States
considered the three-mile territorial sea limit sufficient
to satisfy the legitimate needs of all countries, advancing
in support of their position the general thesis stated by
Fitzmaurice above.03 Most other States, while usually only
bitration were cast by S Krylov of the USSR and Zourek

(ibid 135, 139).
9X Ibid 184; cf, comments by Edmonds (ibid 152-153). See

also n 72 and accompanying text supra.
®3 Ibid 185; cf, comments by Hsu {ibid 184)
0:3 A/2934, supra n 68, 35
For the complete text of the individual responses see

"Comments by Governments on the provisional articles
concerning the regime of the high sea's and the draft
articles on the regime of the territorial sea adopted
by the International Law Commission at its seventh ses
sion in 1955 (A/CN.4/99 and Add. 1 to 9)"(1956) YILC
ii, 37-102 [hereafter cited ’A/CN.4/99']. The respon
ses were often detailed and highly technical, and only
a brief survey can be attempted in the present work.
297
ob liq u ely referrin g to fish ery in terests connected w ith
co astal S tate m aritim e ju risd ictio n , supported reco g n itio n
of a t e r r i t o r i a l s e a up t o 12 m i l e s in b read th , or even - -
in some c a s e s -- beyond.
One o f t h e few d e t a i l e d responses d iscu ssin g the re la
tio n sh ip betw een th e b r e a d th of t e r r i t o r i a l w aters and f i s h
ery ju risd ic tio n wa s t h a t of Icelan d . H ig h lig h tin g h er heavy
e c o n o m ic d e p e n d e n c e on a d j a c e n t m a r i n e f i s h e r i e s , she p o in t
ed o u t t h a t th e f o r m e r s u b j e c t wa s c l o s e l y lin k ed w ith th at
of th e co n tiguous zone. If th e la tte r com prehended e x c l u s
ive fish ery ju risd ic tio n , commented I c e l a n d , s h e w ould c o n
sid er th e n e c e s sity o f a w ide t e r r i t o r i a l sea in a d ifferen t
lig h t.
W hile t h e r e co ntinued to be a b ro ad s p e c tru m of view s
on t h e d r a f t co n serv atio n a rtic le s them selves, o p p o sitio n to
re co g n itio n of th e ’s p e c i a l i n t e r e s t ’ of th e co astal S tate
h a d b e e n muc h r e d u c e d . The U n i t e d Kingdom, f o r exam ple, now
accepted th at a co astal S tate sh ould be e n a b l e d to p a rtic i
pate on a n e q u a l b asis w ith o th e r S tates in any c o n s e r v a t i o n
research or re g u la to ry system , w hether or n o t its n atio n als
w ere a c t u a l l y fish in g in th e area. She a p p r e c i a t e d "th e ex
isten ce of both th e needs and f e a r s w h i c h may b e l e g i t i m a t e
w hether or n o t th e c o a s t a l S tate has y e t begun to share in
th e h arv estin g of th o se r e s o u r c e s ’’ , a n d c o n s i d e r e d th at fur
th er e ffo rts should b e made t o meet th e needs and a l l a y th e
S e e , eg, c o m m e n t s by t h e UK (ibid 3 3 - 8 4 ) a n d t h e US
(ibid 9 3 - 9 4 ) . S e e a l s o t e x t a c c o m p a n y i n g n 81 supra.
See, eg, c o m m e n t s by B e l g i u m (ibid 3 9 ) , I n d i a (ibid

51), t h e P h i l i p p i n e s (ibid 7 0 ) a n d S w e d e n (ibid 7 1 - 7 2 ) .
Ibid 4 8 - 5 0 . R e i t e r a t i n g t h e a r g u m e n t a d v a n c e d by e l -
K h o u r i ( s e e n 8 2 a n d a c c o m p a n y i n g t e x t supra), I c e l a n d
e x p l a i n e d (ibid 5 0 ) t h a t t h e I L C ' s d r a f t a r t i c l e s o n
c o n se rv a tio n d id not a d e q u a te ly p r o te c t n a tio n a l
in te re sts:
Although conservation through international agreements, where

foreign fishermen would have the same rights as the local fishermen, is
reasonable and necessary beyond the limit of exclusive coastal jurisdic
tion, the former is not an acceptable substitute for the latter. ...[Tjhe
conservation articles adopted by the Commission would [not] reduce the
importance of exclusive coastal fisheries jurisdiction.
298
fears of coastal States while simultaneously protecting
other States' rights. The 'special interest' of the coastal
State needed for recognition of either its right to partici
pate in fishery conservation activities or to take unilater
al action, suggested the United Kingdom, should be based on
"evidence of economic interest rather than detailed scienti
fic arguments".00
A number of States, on the other hand, continued to
maintain that the draft provisions did not accord sufficient
recognition of the coastal State's special position. Fear
ful of the possibility that powerful fishing nations might
impose conservation regulations in high seas areas adjacent
to developing coastal States harmful to the latter’s inter
est, India, for example, took the position that recognition
should be granted to a coastal State's "exclusive and pre
emptive right” to adopt conservation measures within a rea
sonable area of the high seas contiguous to its coasts, even
though other States may have fished there in the past. The
Ibid 88-89. Cf comments by Fitzmaurice on the British

response ((1956) YILC i, 17-18). Belgium, which had
also objected to the earlier draft articles giving
coastal States the right to unilaterally promulgate
conservation measures, now simply referred to the pro
posal as "controversial", but at the same time recog
nized that countries concerned may nevertheless proceed
with such measures. She accordingly recommended that
measures adopted by coastal States remain in abeyance
until the arbitral commission had made its decision
(A/CN.4/99, supra n 84, 39).
South Africa, the third country that had earlier
objected to unilateral action by the coastal State made
no comment on the revised articles (ibid 80).
The United States accepted that the interests of
the coastal State could be safeguarded by giving them
"upon satisfactory showing of a special interest, a
right to participate fully in the conservation program"
(ibid 92). It did not offer comments on the draft
provision allowing coastal States to take unilateral
conservation measures.
Neither Japan nor the Soviet Union commented on
the draft articles. Shigeru Oda ("Japan and the United
Nations Conference on the Law of the Sea"(1959) 3 JAIL
65) explains that Japan was not able to comment on the
ILC draft articles as she only became a member of the
UN on 18 December 1956.
299
legitimate rights of other States to continue fishing in
those areas would not be extinguished, she explained, but
where conservation measures had been adopted by the coastal
State, other States would be required to approach the former
to negotiate suitable conservation arrangements.®'3
Not only developing countries thought the position of
the coastal State should be strengthened. Although Canada
did not espouse a coastal State's exclusive right to take
conservation measures, she did object to the need for crite
ria to determine a coastal State’s special interest in a
high seas fishery. "A coastal State always has an interest
in the resources of the high seas contiguous to its coasts
by the mere fact of contiguity", she posited, adding that
that interest should be recognized "without question".30
Both Canada and the United States proposed that the ILC
include in its final articles provisions incorporating the
’abstention principle'. The latter, explained the United
States, related to situations in which fishing States which
were not harvesting or had not recently harvested fish
stocks that were being fully utilized, would abstain from
exploiting such stocks in favour of coastal States adjacent
to the waters in which the stocks occur and States which had
"through the expenditure of time, effort and money on re
search and management, and through restraints on their own
fishermen" increased and maintained the productivity of the
stocks in question.31 Strict, precise criteria should be
specified in the qualification of a fishery for coverage un
der the principle, and any disputes relating thereto would
be subject to arbitration.32 Given its 'special interest’,
A/CN.4/99, supra n 84, 50; cf, comments by Chile (ibid

42) and Iceland (ibid 49-50)
Ibid 41 (emphasis added)
Ibid 93. For the Canadian proposal see ibid 42.
Ibid 93. The US considered that such criteria should

include .
*
300
added th e U n ited S tates, th e adjacen t co asta l S tate could be
exem pted from th e r u l e . 93
(a) whether the stock is subject to reasonably adequate scientific in

vestigation with the object of establishing and taking the aeasures re
quired to aake possible the [MSY]; (b) whether the stock is under reason
able regulation and control for the purpose of aaking possible the [MSY],
and whether such yield is dependent upon the prograi of regulation and
control; and (c) whether the stock is under such exploitation that an in
crease in the aiount of fishing will not reasonably be expected to result
in any substantial increase in the sustainable yield.
Y a m a m o t o {s u p r a Ch 4 , n 6 8 , 5 2 ) o b s e r v e s t h a t " a g e r m "
o f t h e a b s t e n t i o n p r i n c i p l e i s t o b e f o u n d i n t h e Amer
i c a n p o s i t i o n i n t h e F u r S e a l s A r b i t r a t i o n ( s e e Ch 2 ,
t e x t a c c o m p a n y i n g n 111 s u p r a ) .
W h ile t h e r e was c o n s i d e r a b l e s u p p o r t f o r t h e p r i n
c i p l e o f a b s t e n t i o n among C o m m issio n m e m b e r s , i t was
n o te d t h a t t h e p r i n c i p l e w ent beyond m ere c o n s e r v a t i o n
m e asu re s and in v o lv e d r e s t r i c t i n g r i g h t s of e x p l o i t a
tio n . I t t h e r e f o r e h a d no p l a c e i n A r t i c l e s d e a l i n g
s t r i c t l y w i t h c o n s e r v a t i o n ( ( 1 9 5 6 ) YILC i , 1 2 2 - 1 2 6 ) .
T h e ILC i n i t s f i n a l r e p o r t t o t h e UNGA c o m m e n t e d t h a t
t h e p r i n c i p l e "may r e f l e c t p r o b l e m s a n d i n t e r e s t s w h i c h
d eserv e re c o g n itio n in in te r n a tio n a l la w ", but th a t th e
C om m ission la c k e d t h e n e c e s s a r y t e c h n i c a l and eco n o m ic
e x p e r t i s e t o m ore t h a n draw a t t e n t i o n t o t h e p r o p o s a l
(A /3159, s u p ra n 67, 2 9 0 ).
M c D o u g a l a n d B u r k e ( s u p r a Ch 4 , n 7 0 , 9 5 8 ) c o m m e n t
th a t
aost of the Coaaission seemed to have only the vaguest notion of the im
plications of the conservation aeasures they were preparing to recommend.
...[T]he provision for allocation of use hardly makes the principle of
abstention any less a conservation measure than the other articles under
examination in the Commission__
Dr W i l b e r t Chapm an ( " T h e U n i t e d S t a t e s f i s h i n d u s
t r y a n d t h e 1958 an d 1960 U n i t e d N a t i o n s C o n f e r e n c e s on
t h e Law o f t h e S e a ” i n T h e L a w o f t h e S e a : I n t e r n a t i o n
a l R u l e s and O r g a n i z a t i o n f o r t h e Sea ( 1 9 6 8 ) [volum e
h e r e a f t e r c i t e d ' I n t e r n a t i o n a l R u l e s ' ] 35, 48) s t a t e s
t h a t d u r i n g t h e 1 9 5 6 I L C d e l i b e r a t i o n s , US o f f i c i a l s
e x p l a i n e d t h e p r i n c i p l e i n d e t a i l t o some C o m m issio n
members an d t h o u g h t t h a t a t l e a s t a b a r e m a j o r i t y s u p
p o rted i t . H o w e v e r, when t h e M e x ic a n member (a v o c a l
su p p o rte r of c o a s ta l S ta te r ig h ts ) a lso endorsed i t ,
d e s c rib in g i t as "th e p r in c ip le of e x c lu sio n of th i r d
p a r t i e s " , t h e E n g l i s h and D u tch m em bers c h a n g e d t h e i r
m inds and d e c i d e d t o o p p o s e i t . T h e US, t h e r e f o r e , a d
v i s e d t h e i r m e m b e r o f t h e ILC t o w i t h d r a w t h e p r i n c i p l e
o f a b s t e n t i o n a r t i c l e from c o n s i d e r a t i o n r a t h e r t h a n
have i t d e fe a te d in a v o te .
The a b s t e n t i o n p r i n c i p l e was e m b o d i e d i n t h e 1952
I n t e r n a t i o n a l C o n v e n tio n f o r N orth P a c i f i c F i s h e r i e s ,
b e t w e e n C a n a d a , J a p a n a n d t h e U n i t e d S t a t e s ( 2 0 5 UNTS
301
N a tio n a l resp o n ses w ere c o n s id e re d by th e C o m m issio n in
1956 w h ile p re p a rin g its fin a l rep o rt on th e te rrito ria l and
h ig h seas re g im e s. A lth o u g h it w as u n a n im o u sly ag reed th a t
S ta te s had e x c lu siv e fish in g rig h ts w ith in th e ir te rrito ria l
seas, it a g a in p roved im p o ssib le to ag ree on th e l a t t e r ’s
b re a d th . The IL C sim p ly re ite ra te d , in ter a lia , th a t, in
its v ie w , in te rn a tio n a l law d id not p e rm it an e x te n s io n of
th e te rrito ria l sea beyond 12 m i l e s .
M ore e x p l i c i t and p ro lo n g e d d isc u s s io n of fish e ry is
sues to o k p la c e d u rin g c o n s id e ra tio n of c o n se rv a tio n a rti-
6 5 ) . F o r d i s c u s s i o n s o f t h e c o n c e p t s e e E A l l e n , "A n e w
c o n c e p t f o r f i s h e r i e s t r e a t i e s ” (1 9 5 2 ) 46 A JIL 3 1 9 ; W
H e r r i n g t o n , "C o m m en ts o n t h e p r i n c i p l e o f a b s t e n t i o n "
i n P a p e rs P r e s e n t e d a t t h e I n t e r n a t i o n a l T e c h n ic a l Con
f e r e n c e on t h e C o n s e r v a t i o n o f t h e L i v i n g R e s o u r c e s o f
th e Sea (A /C o n f.1 0 /7 ) 3 4 4 -3 4 9 ; S O da, I n te r n a t io n a l
C o n tro l o f Sea R e so u rc e s (1961) 1 9 7 -1 9 8 , 2 1 0 -2 1 3 ; C S e-
l a k , " T h e p r o p o s e d I n t e r n a t i o n a l C o n v e n tio n f o r t h e H ig h
S e a s F i s h e r i e s o f t h e N o rth P a c i f i c ” (1 9 5 2 ) 46 AJIL 3 2 3 ;
R v an C le v e , "T he e c o n o m ic an d s c i e n t i f i c b a s i s o f t h e
p r i n c i p l e o f a b s t e n t i o n ” i n A / C o n f . 1 3 / 3 7 ; G v a n d e r Mo
l e n , "T he p r i n c i p l e o f a b s t e n t i o n and t h e freed o m o f th e
s e a s " ( 1 9 5 9 ) 6 N IL R 2 0 3 ; a n d Y a m a m o to , s u p r a Ch 4 , n 6 8 .
A /3 1 5 9 , s u p r a n 6 7 , 2 5 6 . S e e a l s o t e x t a c c o m p a n y in g n
83 s u p r a . In d is c u s s io n s i n d ir e c t ly r e la te d to f i s h e r
i e s an d t h e t e r r i t o r i a l s e a , t h e C o m m issio n d e c l i n e d t o
re c o g n iz e any e x c lu s iv e r ig h t o f th e c o a s ta l S ta te to
engage in f is h in g in th e c o n tig u o u s zo n e, c i t i n g la c k
of S ta te su p p o rt fo r th e e x te n s io n of such r ig h ts be
yond th e t e r r i t o r i a l se a ( ib i d 295). S e e a l s o nn 30
an d 40 a n d a c c o m p a n y in g t e x t s u p r a .
I n a r e l a t e d d e c i s i o n , t h e IL C r e c o g n i z e d t h e
r i g h t o f h o t p u r s u i t , c o m m e n tin g ( i b i d 2 8 5 ) t h a t
The aajority of the Commission was of the opinion that the right
of hot pursuit should...be recognized when the ship is in a zone contigu
ous to the territorial sea, provided such pursuit is undertaken on the
ground of violation of rights for the protection of which the zone was
established. Thus, a State which has established a contiguous zone for
the purposes of customs control cannot commence hot pursuit of a fishing
boat accused of unlawful fishing of the territorial sea if the fishing
boat is already in the contiguous zone. Some members of the Commission
were of the opinion that since the coastal State does not exercise
sovereignty in the contiguous zone, no pursuit commenced when the ship is
already in the contiguous zone can be recognized. The majority of the
Commission did not share that opinion. It admitted, however, that the
offenses giving rise to hot pursuit must always have been committed in
internal waters or in the territorial sea: acts committed in the con
tiguous zone cannot confer upon a coastal State a right of hot pursuit.
302
d e s of the high seas regime. Included for the first time
in the Articles was a definition of 'conservation of the
living resources of the high seas', that is: "the aggregate
of the measures rendering possible the optimum sustainable
yield from those resources so as to secure a maximum supply
of food and other marine products” .^*
Provisions relating to the prescription of conservation
regulations by non-coastal fishing States that had earlier
received endorsement in principle were further tightened
during the session. Given the powerful resources of modern,
industrialized fishing fleets, it was finally decided, for
example, that States whose nationals were alone exploiting a
fishery should have not only the right to impose conserva
tion measures but also the duty to do so if necessary.9®
Much more controversial were the provisions concerning
the role of coastal States in fishery conservation. Radhab-
Article 50. The definition, as the ILC pointed out

(ibid 289), follows closely that agreed to at the Rome
Conference. See text accompanying nn 55 and 56 supra.
McDougal and Burke (supra Ch 4, n 70, 970-971) argue
convincingly that the real objective of conservation
was to obtain the MSY from the resources in question,
'optimum' in this case being equivalent to 'maximum'.
Cf A Dean, "The Geneva Conference on the Law of the
Sea: what was accomplished"(1958) 52 AJIL 607, 625.
Article 51. For a discussion of this point see (1956)

YILC i, 86, 116-117. See also nn 45 and 77 and accom
panying text supra. Judge J Spiropoulos points out
("The contribution of the International Law Commission
to the codification of the Law on fishing and conserva
tion of the living resources of the high seas" in Varia
Juris Gentium (1959) 332, 333) that the obligation
stated by the ILC constituted "an important innovation"
in international law .
The ILC also agreed that requests by non-coastal
fishing States to negotiate with other such States con
servation regulations for a particular area could only
be made when the nationals of all States in question
were exploiting the same stock or stocks of fish or
other marine resources (Articles 52 and 53). In doing
so, however, the Commission noted that measures adopted
by one State may adversely affect the activities of
foreign nationals fishing for different stocks. In
such an event, conceded the ILC, a request for the
opening of negotiations could not be refused (A/3159,
supra n 67, 289).
303
inod Pal (India) and Luis Padilla-Nervo (Mexico), in parti
cular, urged the adoption of provisions strengthening the
position of coastal States; while Fitzmaurice and Garcia
Amador emphasized the essential balance of interests inher
ent in the existing provisions and the need to protect the
rights of non-coastal States, thereby gaining the latter’s
support for the proposed regime.** In urging the acceptance
of existing provisions, Garcia Amador stressed that viewing
the conflict of interests over fishing rights as being ex
clusively between economically-powerful, non-coastal States,
on the one hand, and small, econoraically-weak coastal
States, on the other, was an oversimplification. A number of
small, developing countries, he pointed out, also had vital
interests in overseas fisheries.**®
Ultimately, compromise Articles were adopted recogniz
ing the ’’special interest” of coastal States in high seas
fisheries adjacent to their territorial waters ”by reason of
the sole fact of their geographical situation” .** At the
See, eg, statements by Pal ((1956) YILC i, 18, 25),

Padilla-Nervo (ibid 24-25), Fitzmaurice (ibid 25-26)
and Garcia Amador (ibid 26-27).
Ibid 26. See also Ch 12, nn 9 and 12 and accompanying

text infra on the importance of overseas fisheries for
certain small, developing countries, including Garcia-
Amador’s native Cuba.
A/3159, supra n 67, 288; Art 54(1). Spiropoulos (supra

n 96, ibid) that this provision constituted "a very far
reaching innovation with regard to existing Interna
tional Law” .
The Articles contain no express description of the
size of the zone over which the coastal State might
claim rights. As explained in the ILC's Report (ibid),
[t]he fact that the coastal State's right is based on its special inter
est in laintaining the living resources, iiplies that any extension of
this zone beyond the liiits within which such an interest lay be supposed
to exist would exceed the purpose of the provision.
Any dispute over whether a coastal State was entitled

to assert a claim to special interest in high seas ar
eas far beyond its territorial sea would be settled in
accordance with the arbitration procedure elaborated
(ibid 290). See Annex II for the final text of Articles
prepared by the ILC.
304
sam e ti m e , how ever, th a t in te re st d id not ta k e p reced en ce
p er se over th e in te re s ts of o th e r S ta te s co n cern ed .
By v i r t u e of th a t s p e c ia l in te re s t, c o a sta l S ta te s w ere
e n title d to p a rtic ip a te on an e q u a l fo o tin g in any sy ste m of
research and re g u la tio n in any a d ja c e n t h ig h seas area, even
if th e ir n a tio n a ls d id not fis h t h e r e . 100 They a l s o had th e
rig h t to adopt u n ila te r a l, n o n -d isc rim in a to ry c o n se rv a tio n
m e a s u re s , p ro v id e d th a t n e g o tia tio n s w ith o th e r S ta te s had
not le d to an a g re e m e n t " w ith in a re a so n a b le p e rio d of
tim e ” ; s c i e n t i f i c e v id e n c e re v e a le d "an u rg e n t need” fo r
such m easu res; and th e y w ere based on a p p r o p r i a t e s c ie n tific
f i n d i n g s . 101 O th e r S t a t e s co n cern ed w ere e n t i t l e d to in v o k e
c o m p u lso ry a rb itra tio n p ro ced u res in th e event of d isa g re e
m e n t; how ever, th e m easures w o u ld re m a in in fo rce p en d in g
th e a rb itra l d e c isio n u n le ss th e trib u n a l fo rm ed to hear th e
d is p u te d e c id e d o t h e r w i s e . 102
100 A rtic le 5 4 (2 )
101 A rtic le 55
102 I t sh o u ld be n o te d t h a t th e v a r io u s d r a f t a r t i c l e s r e
l a t i n g to d is p u te s e ttle m e n t un d erw en t m u ltif a r io u s
c h a n g e s d u r in g t h e y e a r s th e y w ere b e in g d i s c u s s e d by
t h e IL C , a n d a d e t a i l e d r e v i e w t h e r e o f i s b e y o n d t h e
s c o p e o f t h e p r e s e n t w ork. The f o l l o w i n g com m ent by
t h e C o m m i s s i o n o n t h e f i n a l p r o d u c t , h o w e v e r , m ay b e
c i t e d (ibid 2 9 1 ) :
The draft text leaves the parties entirely free as regards the method of
settlement. They may submit their disputes to the International Court of
Justice by agreement or in accordance with mutual treaty obligations;
they say set up courts of arbitration; they may, if they so desire, seek
to compose their disagreements through a commission set up for the pur
pose, before resorting to these procedures. It is only where the parties
fail to agree on the method of settling a dispute that the draft text
provides for arbitration, while leaving the parties an entirely free
choice as to arrangements for arbitration. If, however, the parties fail
to agree on this subject within three months from the date of the origi
nal request, the draft provides for the setting up of a Commission partly
or wholly without their co-operation.
The C o m m issio n a l s o n o t e d in its fin a l rep o rt (ibid

293) a p ro p o s a l t h a t
where a nation is primarily dependent on the coastal fisheries for its

livelihood, the State concerned should have the right to exercise exclu
sive jurisdiction over fisheries up to a reasonable distance from the
305
In su b m ittin g its fin al report to th e UNGA, t h e Com
m issio n ad m itted th at it had not alw ays proved p o ssib le to
m ain tain a clear d istin c tio n betw een p ro v isio n s cod ify in g
and d e v e lo p in g in te rn a tio n a l law . G iven th e h y b rid n atu re
of th e a rtic le s it had, in fact, proposed, th e ILC f e l t "re
course to co n v en tio n al m eans" necessary to g iv e effect to
th e p ro p o sals fo rm u lated ; and it th e re fo re recom m ended t h a t
th e G eneral A ssem bly convene an in tern atio n al conference for
th at p u r p o s e . 103
D. The I L C 's Con t r i b u t i o n t o t h e D e v e lo p m e n t o f th e

I n t e r n a t i o n a l Law o f M a r i n e F i s h e r i e s
T h e ILC m ade tw o s i g n i f i c a n t co n trib u tio n s to th e de
velopm ent of th e law re la tin g to m arine fish erie s. F irst,
th e C om m ission fo rm u lated th e prem ier, co m prehensive set of
in ter-related p rin cip les aim ed at so lv in g th e p ressin g prob
lem o f m arine resource co n serv atio n -- w ith o u t d estro y in g
coast having regard to relevant local considerations, when this is nec

essary for the conservation of these fisheries as a means of subsistence
for the population. It was proposed that in such cases the territorial
sea light be extended or a special zone established for the above-men-
tioned purpose.
The p r o p o s a l had b e e n s t r o n g l y a d v a n c e d by I c e l a n d
(A /C N .4 /9 9 , s u p ra n 84, 4 9 - 5 0 ) . As w i t h t h e a b s t e n t i o n
p r i n c i p l e a b o v e ( s e e n 93 s u p r a ) , t h e C o m m is s io n d e
c i d e d t h a t i t was n o t i n a p o s i t i o n t o e x a m in e f u l l y
t h e p r o p o s a l 's i m p l i c a t i o n s and i t s i n h e r e n t e le m e n ts
o f e x c l u s i v e u s e o f h i g h s e a s f i s h e r y r e s o u r c e s by t h e
co asta l S tate. T h e IL C t h e r e f o r e r e f r a i n e d f r o m m a k i n g
any c o n c r e t e rec o m m e n d a tio n (A /3159, su p ra n 67, 2 9 3 ).
F o r t h e C o m m is s io n ’s d i s c u s s i o n o f t h e i s s u e s e e (1956)
YILC i , 1 8 3 - 1 8 5 .
103 I b id 256. As f o r th e h y b rid n a tu re of its p ro p o sals,

t h e IL C e x p l a i n e d ( i b i d 255-256) t h a t
Not only Bay there be wide differences of opinion as to whether a subject

is already 'sufficiently developed in practice', but aiso several of the
provisions adopted by the Conunission based on a 'recognized principle of
international law' have been framed in such a way as to place then in the
'progressive developaent' category. Although it tried at first to spec
ify which articles fell into one and which into the other category, the
Commission has had to abandon the attempt as several do not wholly belong
to either.
306
the essential elements of the freedom of the seas doctrine.
Built upon existing legal tenets, the regime incorporated a
number of important innovations de lege ferenda, including:
(a) imposing a duty on States whose nationals alone exploit
ed a high sea fishery to institute conservation measures
when necessary; (b) requiring States whose nationals ex
ploited a high seas fishery to negotiate conservation regu
lations when requested to do so by another State whose na
tionals also exploited the resource(s); and (c) making the
negotiated regime binding on new entrants to the fishery.
Most important of all, however, was the Commission’s pro
posal that States recognize as a legal principle the special
interest of coastal States in living marine resources in
high seas areas adjacent to their territorial seas. The
ILC’s regime thus went beyond the piece-meal approach there
tofore characteristic of State practice in offering general
principles aimed at balancing the legitimate interests of
States with large, distant-water fishing fleets, against
those of coastal States lacking such vessels and predomin
antly concerned with protecting existing or inchoate domes
tic fishing industries focussed on contiguous marine areas.
Second, and as important: by soliciting comments of
States on their evolving proposals and making considered al
terations thereto in light of those comments, the Commission
focussed international attention on the problems involved
and thereby stimulated activities aimed at crystallizing
States' wills either to accept its proposals as lex lata or
to negotiate an improved, alternative regime. The result,
as we have seen, was a considerable narrowing of differences
to a point where international agreement on the main princi
ples appeared possible. As Torkel Opsahl observed at the
time, the ILC's proposed regime "without departing too radi
cally from the existing legal situation,...[seemed] well-
suited to prevent the fishery questions [facing the interna
tional community] from being left at a dead-lock, or in a
vacuum” .1
1 o-* T Opsahl, "Towards the rule of international law in

high seas fisheries"(1957) 27 NTIR 265, 312; W Bishop,
307
The above c o n trib u tio n s h av in g been acknow ledged, it
m ust also be reco g n ized th at th e ILC p ro p o sals w ere lim ited
to co n serv atio n m easures and sp ecifically ex clu d ed o th er
m ajor issu es, in clu d in g the much th o rn ier q u estio n of th e
param eters of co astal S ta te e x p lo itatio n rig h ts over m arin e
f i s h e r i e s . 1053 it was up to th e p len ip o te n tia ry conference
recom m ended by the ILC to in itia te th e next d ev elo p m en ts in
th at regard.
" I n t e r n a t i o n a l Law C o m m i s s i o n draft articles on fish

e r i e s ” ( 1 9 5 6 ) 50 A J I L 6 2 7 , 635
1053 McDougal and B urke ( s u p r a Ch 4 , n 70, 959) observe th at
the deteraination of who aay prescribe conservation measures is by no

leans the end of the problea. There reaains to be considered the auch
lore crucial, and disputed, question of how to divide up the liaited
catch peraissible under the conservation regime. In other words, the ma
jor problea of international conservation goes beyond the allocation of
coapetence to prescribe limitations upon fishing intensity, for after
limitations are agreed upon there remains the task, indispensable to se
curing agreement upon conservation, of deciding how they are to bear upon
the different states fishing the resource.
308
III. The 1958 United Nations Law of the Sea Conference106
With the UNGA endorsing the ILC's recommendation to

convene a conference, the First United Nations Conference on
the Law of the Sea (UNCLOS I) opened in Geneva on 24 Febru
ary 1958, its task being
to exaiine the law of the sea, taking account not only of the legal but also of the
technical, biological, economic and political aspects of the problei, and to eubody
the results of its work in one or aore international conventions or such other instru-
aents as it aay deea appropriate.107
Colouring the entire debate on a number of important

issues -- the paramount one being the breadth of the terri
torial sea -- were the raging Cold War as well as the con
flict between coastal and non-coastal States for control of
marine resources, especially fisheries.10® Already evident
in replies to the ILC draft articles, the latter conflict
intensified and became more open when countries (particular-
loe> See generally: K Bailey, "Australia and the law of the

sea"(1960) 1 Adelaide L R 1; D Chappell, "Conference on
the Law of the Sea"(1958) 1 TULR 323^ R-E Charlier,
"Resultats et enseignements des Conferences du Droit de
la Mer (Geneve 1958 et 1960)"(1960) 6 AFDI 63; C Frank
lin, "The law of the sea: some recent developments”
(1960) 33 SCLR 357; L Green, "The Geneva Conferences
and the freedom of the seas"(1959) 12 Current Legal
Problems 224; P Jessup, "The United Nations Conference
on the Law of the Sea"(1959) 59 Colombia L R 234; D
Johnson, "The Geneva Conference on the Law of the
Sea"(1959) 13 YWA 68; J Patey, "La Conference des Na
tions Unies sur le Droit de la Mer"(1958) 62 RGDIP 446;
M Sorensen, "The law of the sea"(1958) #520 Interna
tional Conciliation-, C Swan and J Ueberhorst, "The Con
ference on the Law of the Sea.- a report" (1958) 56
Michigan L R 1132; G Tunkin, "The Geneva Conference on
the Law of the Sea"(July, 1958) International Affairs
[Moscow] 47; J Verzijl, "The United Nations Conference
on the Law of the Sea, Geneva, 1958"(1959) 6 NTIR 1,
115.
10-7 UNGA Resolution 1105(XI), adopted on 21 February 1957.

See (1956) YUN 381-383 for background to the decision.
XOQ
See generally Ch 4, Introduction supra.
309
ly those newly-independent) which had not submitted their
comments in writing made their views plain on the Conference
floor.109 in that regard, one writer observes, ” [t]he iden
tification of the interests of under-developed countries
with those of coastal States was one of the salient features
of the Geneva debates” .110
The economic situation and, in some cases, new politi
cal status, of many coastal States moulded their approach to
the law of the sea and its development. As the Mexican del
egate argued, for example, " [t]he crucial problem of the law
of the sea... stemmed from the reaction of the less developed
countries situated in the inter-tropical belt against the
growth of fishing imperialism” .*
111
* As the need for conser
vation had only recently become appreciated, he continued,
developing countries "could not now accept the argument that
the only 'legal' solution was for them to abstain from any
defensive measure which might violate the sacred principle
of the freedom of the seas".112
109 For a useful overview of this general conflict in the

broader Conference setting see R Friedheim, "The 'sat
isfied' and 'dissatisfied' States negotiate interna
tional law: a case study"(1965-1966) 18 World Politics
20 .
110 Sorensen, supra n 110, 218.
111 Official Records. United Nations Conference on the Law

of the Sea. (UN doc A/Conf.13/41) v, 32. Hereafter, all
references to reports etc of UNCLOS I will be made by
the UN document number (ie, A/Conf.13/...). For com
ments similar to those made by the Mexican delegate
see, eg, those by the representative of the Philippines
(A/Conf.13/39, at 153), the United Arab Republic (UAR)
(ibid 66), and Peru (ibid 7), who stated that
Rules of international law had sometimes been unilaterally created in the

interests of great Powers; it was therefore reasonable for certain rules
of law to be initiated by snail States in their legitimate interests.
... It was inadmissible that a sort of colonialism of the high seas should
be allowed in the name of the freedom of the seas.
1 12
Ibid 32
310
C itin g th e UNGA R e s o l u t i o n , 1 1 3 m a n y S t a t e s arg u ed th a t
th e p u rp o se of th e C o n feren ce w as not to c o d ify c u sto m a ry
ru le s th a t had been d e v e lo p e d la rg e ly by t h e m a jo r m a ritim e
P ow ers over th e c e n tu rie s but ra th e r to le g is la te a new re
g im e fo r th e fu tu re , one re fle c tin g m odern re a litie s and ac
c o m m o d a tin g th e in te re s ts of a ll co n cern ed . A fte r a ll, ob
serv ed C h i l e 's r e p r e s e n ta tiv e , " th e ris e and d e v e lo p m e n t of
th e law of th e sea had been p ro m p te d by one sin g le fa c to r:
in te re s t. P o litic a l or e c o n o m ic in te re s t had a lw a y s p re
v a ile d in d e fin in g th e law of th e sea th ro u g h th e cen
t u r i e s . M1 x +
In n e g o tia tin g th a t new r e g i m e th e re w as som ew hat le ss
e m p h a sis p la c e d on le g a l d e ta il and te c h n ic a litie s th a n on
fu n d a m e n ta l p rin c ip le s and c o n s id e ra tio n s of j u s t i c e . 1 1=* As
th e B urm ese d e le g a te o b serv ed ,
[there] was an inadequate conception (in some quarters] of the freedoa of fishing on
the high seas, which took no account of considerations of deiocracy and economic jus
tice. Such a conception was at the base of the indefensible and outaoded policy of
laissez-faire in the fishing of the high seas. ...[Furtheraore], there was an over-em-
phasis on legal niceties. Law was respected in so far as i t was based upon reason,
equity, and free consent and adapted itself to changing conditions. 1 1 Ä
113 See te x t a c c o m p a n y in g n 107 supra.
X1^ O f f i c i a l R e c o r d s . S e c o n d U n i t e d N a t i o n s C o n f e r e n c e on
t h e L a w o f t h e S e a . (UN d o c A / C o n f . 1 9 / 8 ) 9 4 ; c f ,
s t a t e m e n t s by t h e r e p r e s e n t a t i v e s o f M e x ic o ( i b i d 7 6 ) ,
J o rd a n (A /C o n f.1 3 /3 9 , su p ra n 111, 18) and P e ru ( i b i d
7). H e re a fte r a l l re fe re n c e s to r e p o r ts e tc o f th e
1 9 6 0 C o n f e r e n c e (UNCLOS I I ) w i l l b e m a d e b y t h e UN
d o cu m en t num ber ( i e , A / C o n f . 1 9 / . . . ) .
A c c o r d i n g t o F r i e d h e i m ( s u p r a n 1 0 9 , 3 1 ) , t h i s w as
m a i n l y f o r tw o r e a s o n s . F i r s t , m any ' d i s s a t i s f i e d
S t a t e s ’ la c k e d l e g a l t e c h n i c a l e x p e r t i s e and w ere
f r i g h t e n e d t h a t th e y m ig h t assu m e u n p e r c e iv e d o b l i g a
t i o n s i f th e y w ere to a g re e to d e t a i l e d p r o v is io n s .
S e c o n d ly ,
agreement on detailed solutions to problems in the law would have reduced

their tactical mobility, which they did not wish to have happen. Rela
tively weak in power terms, they saw as their main protection from the
physically powerful states both the ability to avoid being permanently
obligated to perform required acts and the ability to perform acts not
yet sanctioned by law.
311
C o astal S ta te s, g en erally sp eak in g , co n trasted th eir

p o sitio n s w ith th o se of ’n o n - c o a s t a l S ta te s ', ty p ify in g th e
la tte r as u sin g larg e v essels and tech n o lo g ically so p h isti
cated equ ip m en t to e x p lo it hig h seas fish e rie s a d jacen t to
fo reig n co asts. G iven the cost of such v essels and eq u ip
m ent, n o n -co astal S tates w ere p erceiv ed as b ein g m ain ly
th o se of the ric h e r, W estern m aritim e Pow ers and Japan.
C o m p arativ ely sa tisfie d w ith much o f th e tra d itio n al
law of th e sea, th e m ajor m aritim e Pow ers approached UNCLOS
I as an o p p o rtu n ity to o b tain co n v en tio n al reco g n itio n for
such asp ects of th e law as narrow co astal S ta te ju risd ic tio n
and th e freedom of th e sea p rin c ip le , w h ile at th e sam e tim e
d ev elo p in g new ru les in se le c te d areas. As th e Japanese
d eleg ate ex p lain ed , for exam ple,
[t]he primary purpose of the Conference was codification and, although i t aust give
due thought to the changes necessary for promoting the progressive development of in
ternational law , i t should always bear in aind that any departure froa existing rules
aust only be adiitted if i t contributes to that developaent and was in the interest of
the entire community.x
A /C o n f .1 3 / 4 2 , s u p r a n 11 1 , 4 8 -4 9 ; c f , s t a t e m e n t by t h e
G h a n a ian d e l e g a t e (A /C o n f.1 9 /8 , sup ra n 114, 135) t h a t
h i s c o u n t r y 's f e a r s t h a t i t s f i s h e r y r e s o u r c e s m ig h t be
e x p l o i t e d by o t h e r S t a t e s
could not be allayed by exhibitions of technical knowledge or outright

disaissal of its views. In consultations, the aain point often lay less
in the validity of the arguaent itse lf than in the reaction produced by
the arguaent and the power to convince others. All delegations should
try to understand each other and help each other to overcoae their fears.
xx^ A / C o n f . 1 3 / 3 9 , s u p r a n 1 1 1 , 25; c f , s t a t e m e n t s by t h e
r e p re s e n ta tiv e s of I ta l y (ib id 12), th e N eth erlan d s
( i b i d 1 1 ) , S w e d e n ( i b i d 1 2 ) a n d t h e FRG ' ( A / C o n f . 1 3 / 4 1 ,
supra n 111, 16). V e r z i j l ( s u p r a n 1 1 0 , 2 ) , a member
o f t h e D u t c h d e l e g a t i o n a t UNCLOS I , n o t e d s h o r t l y a f
t e r th e C onference th a t
One of the aain weapons aost frequently used in [the] fight for
political victory was the adroit juggling with the twofold aia of codifi
cation and of progressive development of international law: the same del
egations which, on one topic, urged strongly the replacement of tradi
tional rules, on another clung to the old rules and obstinantly opposed
the idea of further development.
312
Even major maritime Powers professing themselves more
amenable to compromise, such as the United Kingdom and the
United States, sought to preserve important elements of the
legal status quo by claiming that existing norms benefitted
all States. The American representative, for instance, ar
gued that the freedom of the sea principle taken most broad
ly "was the most equitable for all States, whether large or
small, and was no mere historic relic. Freedom was perhaps
of even greater importance to small States than to large
ones...."xie
The above categorization of interests, while generally
valid, is nevertheless subject to qualification. Most major
maritime States, for example, also had significant coastal
fishing communities demanding legal protection. As well, a
number of smaller, economically-weaker States such as Ceylon
(later Sri Lanka), Cuba, Portugal and Spain had relatively
important distant-water fishing interests. On the other
hand, Canada, a comparatively highly-developed country, was
actively engaged in strengthening the legal position of
coastal States vis-ci-vis fisheries. All of their particular
interests had also to be taken into consideration when at
tempting to negotiate a fishery regime.
Each of the above factors influenced Conference pro
ceedings , as may be seen in both Committee and Plenary
sessions.
A. The First Committee

The First Committee (C.I) examined the ILC's proposed
territorial sea and contiguous zone regime. From the begin
ning, there was a great divergence of views on the most dif
ficult issue facing the Conference: the breadth of the ter
ritorial sea. As in the past, on one side stood the major
Western maritime nations and Japan, which wanted the Confer
ence to officially recognize the three-mile limit for a num-
lx& A/Conf.13/39, supra n 111, 25; cf, comments by the del

egates of the Japan (ibid 25), the Netherlands (ibid
11) and the UK (ibid 7)
313
ber of econom ic and stra te g ic r e a s o n s . 119 A draft am endm ent
XX9 A rth u r B urns ("T he Geneva C o n fe re n c e o n t h e Law o f t h e

S e a : w h a t was a c c o m p l i s h e d " (1 9 5 8 ) 52 AJIL 607, 610),
C hairm an o f t h e A m erican d e l e g a t i o n , ex p lain ed a f te r
th e C onference:
the United States, together with Great Britain, Japan, Holland, Belgiua,
Greece, France, West Geriany and other laritiae nations, adopted as its
firs t goal in the Conference the preservation of the traditional limit of
the territo ria l sea at three Biles except as aodified by reasonably
greater historical lia its . It did so, not siaply because that lia it
[had] long been recognized in international law, but for coipelling ail-
itary and coaaercial reasons.
I n t h e v i e w o f t h e a b o v e S t a t e s , p a r t i c u l a r l y t h e US, a
g r e a t e r b r e a d t h ( s u c h a s 12 m i l e s a s p r o p o s e d by t h e
S o v i e t U n io n and some o t h e r S t a t e s ) w o u ld h a v e a llo w e d
R u s s ia n su b m a rin e s (w hich o u tn u m b ered A m erican subm a
rin e s ) to o p e ra te u n d e te c te d in th e t e r r i t o r i a l w aters
o f n e u t r a l S t a t e s , as w e ll as have s e v e r e l y im peded th e
o p e r a t io n s o f A m erican m i l i t a r y and co m m ercial v e s s e l s .
See on t h i s p o i n t , e g , A Dean, "Freedom o f t h e s e a s "
( 1 9 5 8 - 1 9 5 9 ) 37 F o r e ig n A f f a i r s 83 [ h e r e a f t e r c i t e d
'F re e d o m o f t h e S e a s '] 8 9 -9 1 ; and L B e c k e r, "The b r e a d
th o f th e t e r r i t o r i a l se a and f i s h e r i e s j u r i s d i c t i o n "
( M a r c h 1 6 , 1 9 5 9 ) 4 0 DO SE 3 6 9 , 3 7 0 - 3 7 1 .
A c c o rd in g to G reg o r T unkin (s u p r a n 106, 5 1 ), i t
w a s t h e US w h i c h a t t e m p t e d t o i n t r o d u c e C o l d Wa r e l e
m ents i n t o t h e C o n fe re n c e . C om m enting on t h e d e s i r e o f
t h e US t o l i m i t t h e e x t e n t o f c o a s t a l S t a t e m a r i t i m e
j u r i s d i c t i o n , he s t a t e s ( i b i d 49) t h a t
The delegation of [Poland]...subBitted a proposal to [C.I] which

conteaplated the establisiment of security zones (adjacent to the te rri
torial sea]. This was accepted by the CoBnittee. But in plenary session
the aembers of aggressive blocs, in the firs t instance the United States,
sought to secure the right of passage for their warships as close inshore
as possible and opposed this clause. It did not therefore win the neces
sary two-thirds aajority [for inclusion in the convention on the territo
rial sea].
F r a n k lin (s u p ra n 106, 364), w r i ti n g about the

sam e t im e , c o n s i d e r e d t h e P o l i s h p r o p o s a l "d esirab le",
arguing th a t
security...certainly should have been included [in the contiguous zone

article]. Many States currently specify a contiguous zone for security
purposes, and i t is obvious that security is the aost iiportant single
reason why a coastal state needs to control access to its shores.
In S o r e n s e n 's v iew ( s u p r a n 106, 2 3 4 ), t h e US a n d

o th ers " le t se c u rity in te r e s ts p rev a il over m aritim e".
314
to the ILC articles which called for recognition of the
three-mile territorial sea was submitted by Greece.120
Holding the opposing view were many other States, deny
ing either that the above limit had ever been or that it
continued to be the breadth of the territorial sea.121 Of
the proposals calling for the recognition of coastal State
jurisdiction over broad expanses of littoral waters, that of
Peru was the most elastic, suggesting simply that "[e]ach
State is competent to fix its territorial sea within reason
able limits, taking into account geographical, geological
and biological factors, as well as the economic needs of its
population, and its security and defense” .122
It quickly became evident that neither the Greek nor
the Peruvian proposals would gain widespread acceptance,123
120 A/Conf.13/C.1/L.136, in A/Conf.13/39, supra n 111, 248

121 Gregor Tunkin (supra n 106, 31), leader of the Soviet
delegation, cited State practice in arguing that
"[hjistory refuted the assertion that the three-mile
limit was the only universally accepted rule in theory
and practice” . The USSR, he explained (ibid 32), pro
posed the recognition of a 12-mile territorial sea,
not only [because] it had itself adopted the twelve-aile liait, but also
[because of] its policy of helping siall and econoaically less advanced
countries to develop their national econoaies and iaprove their standards
of living.
According to Dean (supra n 95, 608), however,

” [t]he U.S.S.R. bloc was insisting, for military rea
sons, on a twelve-mile or greater territorial sea, a
breadth which, of course, had not been recognized in
international law” .
122 A/Conf.13/C.1/L.133 and Add. 1 and 2, in A/Conf.13/39,

supra n 111, 247. There were no less than 29 different
proposals to the First Committee relating specifically
to either the breadth of the territorial sea or the ex
ercise of coastal State fishery rights in the contigu
ous zone. For a useful summary of the various propos
als and their ultimate fate see Patey, supra n 106,
448-450, and Verzijl, supra n 106, 24-27.
123 Both the Greek and Peruvian proposals were, in fact,

withdrawn before being put to the vote. A Greek
spokesperson did not explain why Greece was not pro
ceeding with her proposal (A/Conf.13/39, supra n 111,
175). Peru's delegate explained (ibid 176) that he was
315
and th at if agreem ent was t o be re a c h e d on t e r r i t o r i a l sea
lim its it w ould be n e c e s s a r y to reco g n ize th e g ro w in g demand
for in creased co astal S tate rig h ts over ad jacen t m arine
fish e rie s. Of t h e m ore w id e l y endorsed com prom ise p ro p o sals
tow ards th a t e n d was t h a t advanced by I n d i a and M exico for a
12 -m ile te rrito ria l s e a . 124 The p r o p o s a l was o p p o s e d , how
ever, by S t a t e s concerned about th e adverse effects a 12-
m ile te rrito ria l sea w ould have both on t h e freedom of n av i-
g a t i o n 12* and freedom of f i s h i n g . X2S In th e fin al event,
th e jo in t proposal was r e j e c t e d by t h e C o m m ittee, th ere be
in g 35 v o t e s in favour, 35 a g a i n s t , w ith 12 a b s t e n t i o n s (35-
3 5 - 1 2 ) . 12-7
w ith d ra w in g P e r u 's p r o p o s a l b e c a u se " d e s p i t e th e Gene

r a l A ss e m b ly 's e x p r e s s i n s t r u c t i o n , th e C o n fe re n c e had
f a ile d to stu d y ad eq u a tely th e te c h n ic a l, b io lo g ic a l
and e c o n o m ic a s p e c t s o f t h e law o f t h e s e a " ( s e e t e x t
a c c o m p a n y i n g n 1 0 7 supra ) . As f o r c a l l s t o a c c o r d
g re a te r re c o g n itio n of th e c o a s ta l S ta te 's s p e c ia l in
t e r e s t s i n a d j a c e n t m a r i n e f i s h e r i e s s e e , eg, c o m m e n t s
b y t h e d e l e g a t e s o f A u s t r a l i a (ibid 6 0 ) , B r a z i l ( i b i d
4 ) , Canada ( i b i d 52) C eylon ( i b i d 29) and T h a ila n d
( ib i d 17).
A /C o n f. 1 3 /C . 1 / L .79, in i b i d 233. In s u g g e s tin g th e 12-

m ile li m i t th e r e i s l i t t l e doubt b u t t h a t th e q u e s tio n
o f f i s h e r y j u r i s d i c t i o n was o f t h e u t m o s t i m p o r t a n c e ,
a s t h e M exican r e p r e s e n t a t i v e e x p l a i n e d ( i b i d 1 6 5 ):
Those who supported the joint proposal.. .would reject the idea that the
peoples of the saaller nations aust be disowned and prevented froa enjoy
ing the living resources of the seas adjacent to their coasts for the
benefit of private interests in foreign countries thousands of ailes
away.
S e e , eg, c o m m e n t s b y d e l e g a t e s o f t h e UK ( i b i d 1 0 4 ) a n d
New Z e a l a n d ( N Z ) , t h e l a t t e r o f w h i c h r e l a t e d t h e i s s u e
to th e b ro ad er i n t e r n a t i o n a l c lim a te of th e tim e ( i b i d
150) :
It has been suggested that the 'cold war1 was a reason for ac
cepting the proposal that each State should be free to fix the breadth of
its own territorial sea up to a aaxiaua limit of twelve ailes. ...New
Zealand...considered the converse to be true. In a period of interna
tional tension there was all the acre reason for ensuring that freedoa of
navigation was not overshadowed by pretensions of national sovereignty.
120 S e e , eg, c o m m e n t s b y t h e r e p r e s e n t a t i v e s of th e FRG

( i b i d 172) and J a p a n ( i b i d 1 4 9 ) .
316
Ibid 177. S e e T a b l e 4 , c o l u m n A f o r r e c o r d o f v o t e s
c a s t . E c u a d o r s u b s e q u e n t l y e x p l a i n e d (ibid) t h a t s h e
had a c t u a l l y in te n d e d to v o te in f a v o u r o f t h e p r o p o s a l
b u t h a d a b s t a i n e d by m i s t a k e . The C o n f e r e n c e d e c i d e d
( 4 8 - 1 7 - 1 7 ) t h a t i t w as n o t p o s s i b l e t o c h a n g e v o t e s
once th e y had been r e c o r d e d . For background to t h a t
d e v e l o p m e n t and t h e a p p a r e n t a t t e m p t by a d e l e g a t e t o
c o e rc e th e E cuadorian r e p r e s e n t a t i v e in to changing h is
v o t e s e e L B e c k e r , " Som e p o l i t i c a l p r o b l e m s o f t h e L e
g a l A d v i s e r " ( M a y 1 9 , 1 9 5 8 ) 38 DOSB 8 3 2 , 8 3 6 .
A S o v i e t p r o p o s a l (A /C o n f . 1 3 /C . 1 / L .8 0 , i n A / C o n f .
1 3 / 3 9 , supra n 1 1 1 , 2 3 3 ; e m p h a s i s a d d e d ) w h i c h w o u l d
have allow ed S ta te s to d e term in e th e b re a d th of t h e i r
t e r r i t o r i a l sea acco rd in g to e s ta b lis h e d p r a c tic e w ith
i n t h e l i m i t s " a s a rule , o f t h r e e t o t w e l v e m i l e s , h a
v in g r e g a r d to h i s t o r i c a l and g e o g r a p h ic a l c o n d i t i o n s ,
econom ic i n t e r e s t s , t h e i n t e r e s t s o f t h e s e c u r i t y of
t h e c o a s t a l S t a t e and t h e i n t e r e s t s o f i n t e r n a t i o n a l
n a v i g a t i o n " wa s r e j e c t e d , 2 9 - 4 4 - 9 (ibid 1 7 7 - 1 7 8 ) .
S o r e n s e n (supra n 1 0 6 , 2 4 6 ) c o m m e n t s t h a t t h e S o
v i e t p r o p o s a l " f o u n d l i t t l e f a v o u r e v e n amon g t h e
’t w e l v e - m i l e r s ' b ecau se th e p h ra se ’as a r u l e ’ l e f t th e
ex act im p lic a tio n s of th e p ro p o sals u n c e rta in " . See,
eg, s t a t e m e n t s i n P l e n a r y s e s s i o n b y r e p r e s e n t a t i v e s o f
I r a n a n d U r u g u a y ( A / C o n f . 1 3 / 3 8 , supra n 1 0 6 , 4 1 ) .
L o f t u s B e c k e r , US L e g a l A d v i s e r ( q u o t e d i n Swan
a n d U e b e r h o r s t , supra n 1 0 6 , 1 1 3 3 ) s u b s e q u e n t l y c o m
m ented t h a t
(t]he entire Soviet bloc cane to the Conference instructed to support a

twelve-iile li ii t and never deviated froi this position froa beginning to
end of the Conference. The Arab bloc in its entirety was also pledged to
the twelve-aile liait and the aeabers of that bloc had no hesitance in
declaring that their position was principally aotivated by their desire
to close off the Gulf of Aqaba [against Israel]. Arguaent or persuasion
even with the aore friendly aeabers of that bloc was wholly wasted. A
vote against this principle by any aeaber of the bloc for any reason
whatever was regarded as disloyalty to the bloc.
[Such] are the practicalities of the developaent of one branch
of international law today. Principle, reason, and persuasion, as well
as coBflon security interests of the utaost iaportance, are subordinated
to 'ward politics' of the aost ruthless character.
On t h e q u e s t i o n o f b l o c v o t i n g a n d t h e p o s i t i o n o f
v a rio u s groups re g a rd in g th e b re a d th of th e t e r r i t o r i a l
s e a s e e a l s o B a i l e y , supra 1 0 6 , 1 5 - 2 2 ; R F r i e d h e i m ,
" F a c t o r a n a l y s i s a s a t o o l i n s t u d y i n g t h e law o f t h e
s e a " i n Offshore Boundaries, supra n 54, 4 7 , 5 7 - 6 0 ; A
G ro s , "La C o n v e n t i o n s u r l a P e c h e e t l a C o n s e r v a t i o n
d e s R e s s o u r c e s B i o l o g i q u e s d e l a H a u t e M e r " ( 1 9 5 9 ) 97
RDC 1, 6 8 - 7 5 ; B H e i n z e n , " T h e t h r e e - m i l e l i m i t : p r e
s e r v i n g t h e f r e e d o m o f t h e s e a s " ( 1 9 5 8 - 1 9 5 9 ) 11 Stan
ford L R 5 9 7 , 6 5 2 - 6 5 3 ; a n d J o h n s o n , supra n 1 0 6 , 8 0 - 8 2 .
TABLE 4
VOTES OF FISHERY PROPOSALS:
UNCLOS I AND II
UNCLOS I UNCLOS II
A B C D E F G H I J K L
Afghanistan Y N N Y A
Albania N N N N N N N Y N N
Argentina Y N Y Y Y N Y N Y A Y Y
Australia N Y N N N Y A Y A N Y Y
Austria N Y A A Y A A Y Y
Belgium N Y N N N Y N Y N N Y Y
Bolivia Y Y A A N Y Y Y A Y Y
3razil N Y N N N A Y Y N Y Y
Bulgaria Y N N N N N N N N Y N N
Burma Y N N Y Y N V N Y Y A N
Byelorussian SSR Y N N N N N N N V N N
Cambodia Y Y Y Y Y Y A A
Cameroon N Y Y
Canada N N Y Y N Y Y N Y N Y Y
Ceylon Y N N Y Y Y A Y A A Y Y
Chile A A N Y Y N Y N Y A Y N
China N Y A A N Y A Y A N Y Y
Colombia A N N N Y N N Y A Y Y
Costa Rica A A A Y Y N Y A Y N Y Y
Cuba N Y N N N Y Y I A Y Y
Czechoslovakia Y N N N N N Y N A Y N N
Denmark N Y A A A Y Y Y Y N Y Y
Dominican Republic N Y N N N Y Y A N Y Y
Ecuador A N N Y Y N Y N Y Y Y N
El Salvador N N N Y Y N Y N Y A
Ethiopia Y Y Y
Finland A A A A A Y A A A A Y Y
France N Y N N N Y N Y N N Y Y
Fed Rep Germany N Y N N N Y N Y N N Y Y
Ghana Y N A Y Y Y Y Y Y Y Y
Greece N Y Y N N Y Y N Y Y
Guatemala Y N N Y Y N N Y A A Y
Guinea Y A N
Haiti N Y Y N N Y N A Y
Holy See A A A A Y A Y Y
Honduras A Y A A Y Y N Y Y
Hungary Y N N N N A Y N N
Iceland A N N Y Y Y Y N Y Y Y N
India Y N N Y Y A Y Y Y Y A N
Indonesia Y N N Y Y N Y N Y Y N N
Iran Y A A Y Y N Y Y Y Y A A
Iraq Y N N Y A Y N N
Ireland N Y A Y A Y Y Y A N Y Y
Israel N Y A N A Y A Y A N Y Y
Italy N Y A N N Y N Y N N Y Y
Japan N A Y N N Y N A N N N A
Jordan N Y N Y N Y
Rep of Korea A N A Y Y N A N A N Y Y
Laos Y N Y Y
Lebanon Y N N A N Y
Liberia N Y Y Y N Y Y A N Y Y
Libya Y N N Y Y N Y N N
Luxembourg N Y N N Y N Y Y
Malaya Y N N Y Y Y A Y
Mexico Y N N Y Y N Y N Y Y Y N
Monaco N Y N N N Y Y N N Y Y
Morocco Y N N Y N Y N N
Nepal Y A A Y A Y
Netherlands N Y N N N Y N Y N N Y Y
New Zealand N Y N N A Y N Y N N Y Y
Nicaragua N Y A N Y A Y Y N Y Y
Norway N Y Y Y N Y N Y N N Y Y
Pakistan N Y A N A Y Y N A Y Y
Panama Y N N Y Y N Y N Y Y Y N
Paraguay A Y A Y A Y Y
Peru A N N Y Y N Y N Y N Y N
Philippines Y A N Y Y N Y A A Y Y A
Poland Y N N N N A N N N Y N N
Portugal N Y A N N Y N Y N N Y Y
TABLE 4 (con't)
A B C D E F G H I J K L
Romania Y N N N N N N N N Y N N
San Marino Y N Y Y
Saudi Arabia Y N N Y Y N Y Y N N
Spain N Y A N Y Y N Y N N Y Y
Sudan Y N N
Sweden N A Y N N Y N Y N N Y Y
Switzerland N Y A N A Y A Y A N Y Y
Thailand N Y Y Y N Y A Y A N Y Y
Tunisia Y N N Y Y A Y N Y Y A Y
Turkey N Y Y Y N Y Y A A Y Y
Ukrainian SSR Y N N N N N N N N Y N N
U of South Africa N Y N N N Y A Y A N Y Y
USSR Y N N N N N N N N Y N N
UAR Y N N Y Y A Y N Y Y N N
United Kingdom N Y N N N Y N Y N N Y Y
United States N Y N N N Y A Y A N Y Y
Uruguay Y N N Y Y N Y N Y Y Y Y
Venezuela Y N N A A N A N Y Y A N
Rep of Viet-Nam A Y A Y Y Y Y Y Y Y
Yemen Y N N
Yugoslavia Y N A Y Y N Y N Y Y Y N
(Y = yes N = no A = abstain)
317
Other proposals attempted to distinguish between the
questions of coastal State fishery jurisdiction and the
breadth of the territorial sea per se, with the latter’s at
tendant implications for Cold War military and commercial
activities. In a major departure from its initial position,
the United States, for example, suggested a six-mile terri
torial sea, plus an additional six-mile zone in which the
coastal State would have the same fishery rights as in the
territorial sea. Those rights would be subject to the right
of foreign vessels that had fished ’’regularly in that por
tion of the zone having a continuous baseline and located in
the same body of water" during the previous five years to
fish in the outer six miles of the zone under an obligation
to respect conservation regulations and other rules of in
ternational law.12B According to the Americans, the propos
al represented a great sacrifice and provided a reasonable
balance between the many conflicting interests of the inter
national community.12^
Other States disagreed. The Canadian representative,
for example, argued that a State which had regularly sent a
few fishing vessels into waters within 12 miles of a foreign
coast "could continue to exploit in perpetuity not merely
the same specific areas but the whole ’major body of water’
concerned” and could even increase the number of fishing
12e A/Conf.13/C.1/L.159/Rev.2, in A/Conf.13/39, 253-254.

Chappell (supra n 106, 325) and Swan and Ueberhorst
(supra n 106, 1135) describe the American compromise
proposal as "spectacular". The American proposal was
made on 15 April 1958. Dean (supra n 106, 91) notes
that ”[o]n April 1, 1958, the United Kingdom first sug
gested the compromise of a six-mile territorial
sea...,which may be regarded as an historic event in
international law".
A/Conf.13/39, supra n 111, 167; cf, comments by dele

gates of Belgium (ibid 183), France (ibid 171), New
Zealand (ibid 170-171) and the United Kingdom (ibid
163)
313
vessels exploiting the resources.130 in the final vote in
C.I, the American proposal was rejected (36-38-9).131
Canada submitted her own proposal for the recognition
of a six-mile territorial sea with an additional six-mile
fishing zone in which the coastal State would have the same
fishery rights as in the territorial sea.132 Such an ar
rangement, argued the Canadians, would negate the need for a
territorial sea greater than six miles. While willing to
co-operate, she stressed, "the reasonable and legitimate in
terests of the coastal population had to come first".133
The Canadian proposal was opposed by States such as
Italy, whose representative argued that the idea of a 12-
mile fishery zone "merely sought to give the coastal State a
very special privilege without offering any safeguard for
the legitimate rights of others".13^ The wish to develop
130 Ibid 168; cf, comments by the representative of Mexico

(ibid 164-165). According to Jessup (supra n 106, 237-
238) ,
Canadian views at the Conference tangled with those of the United States
and the United Kingdo«. The chairaan of the Canadian delegation [who
aade the statement in the text accoapanying this note] can be and was
outspoken on occasion. The Canadian election which took place during the
Conference followed aore than noraal outbursts of anti-United States
feeling in Canada_ _
Dean (Freedom of the seas, supra n 119, 94) iden

tifies other factors besides fishing impacting upon the
Canadian stance: "Canadian resentment of [US] surplus
wheat sales; [US] restrictions on oil imports which af
fect oil production in Canada...; [and] the inability
of Canadian subsidiaries of American corporations to
accept orders from communist China...".
131 A/Conf.13/39, at 179-180. See Table 4, column B, for

record of votes cast.
132 A/Conf.13/C.1/L.77/Rev.3, in ibid 232. Earlier versions

of the Canadian proposal had suggested a three-mile
territorial sea. However, opined the Canadian spokes
person, the revised US proposal (see text accompanying
n 128 supra) "had sounded the death knell of the three-
mile limit” and Canada had amended her proposal accord
ingly (ibid 167) .
13C3
Ibid
319
their economies didn't give coastal States the right to ap
propriate high seas resources to the exclusion of foreign
fishermen, he continued, since "the high seas -- of which
the contiguous zone was a part -- were the common heritage
of all, and no part thereof could be closed to all but a
privileged few” .1355
The Canadian proposal for a six-mile territorial sea
was ultimately rejected, 11-48-23.13,s The Committee, how
ever, did support the 12-mile fishery zone, 37-35-9,13-7
that being the only fishery-related proposal to receive C.I
endorsement.13e
B . The Second Committee

In considering the ILC’s draft articles on the general
regime of the high seas, the Second Committee (C.II) saw
little substantive discussion of fishery issues. Peru, how
ever, introduced a proposal that would have recognized the
right to fish "without prejudice to the rights of the coas
tal State".13*5' According to Peru's spokesperson, the ILC
draft text was too categorical and did not recognize, inter
alia, either fishery conservation rights of coastal States
under other ILC draft articles or the "special -- and to a
certain extent exclusive -- rights exercised by States on
the high seas” referred to by the Commission.1'*0 While no
13-* Ibid 168; cf, comments by representatives of Brazil

(ibid 183), the Netherlands (ibid 169) Portugal (ibid
183) and the UK {ibid 164)
13=8 Ibid 168
13e* Ibid 176. See Table 4, column C, for the record of

votes.
13^ Ibid. See Table 4, column D, for the record of votes.
13e A/Conf.13/C.1/L.168/Add.1, annex, in ibid 258
135? A/Conf.13/C.2/L.34, in A/Conf.13/40, supra n 111, 124.

1 *4.0
Ibid 40; cf, comments by representatives Chile and the
Republic of Korea (ROK) {ibid 43). In comments on its
Article 27, "Freedom of the high seas", the ILC stated
(A/3159, supra n 67, 278) that
320
State referred specifically to the Peruvian proposal, it was
subsequently rejected by C.II, 23-31-14.1'*1
With the failure of the Peruvian proposal, C.II submit
ted a single fishery-related article to Plenary; that recog
nizing freedom of fishing, in the exercise of which all
States were to pay "reasonable regard to the interests of
other States".1'*2
C. The Third Committee

The Third Committee (C.III) considered the ILC's draft
articles concerning fishing and conservation of high seas
living marine resources. Although a number of relatively
non-controversial amendments were made to those Articles,1'*3
the law of the high seas contains certain rules, aost of thea already
recognized in positive international law, which are designed, not to
liait or restrict the freedoa of the high seas, but to safeguard its ex
ercise in the interests of the entire international coaaunity. These
rules concern particularly:
(iii) The rights of States relative to the conservation of the living re
sources of the high seas.
Ibid 56. In a separate move, Mexico proposed that hot

pursuit of a vessel be permitted not only when the lat
ter was within the territorial sea or contiguous zone
of a coastal State as suggested by the ILC (see n 94
and accompanying text supra), but also within a fishery
conservation zone unilaterally adopted by the coastal
State in accordance with the ILC's draft articles on
high seas fishery conservation (A/Conf.13/C.2/ L.4, in
ibid 116). Although there was no recorded dis-cussion
of the proposal, it was rejected, 24-25-8(ibid 91).
Ibid 150-151. The reference to the interests of other

States was proposed by the UK (A/Conf.13/C.2/L.68, in
ibid 134) and adopted 30-18-9, following very little
discussion (ibid 54-55).
The Commission, for example, amended the ILC's provi

sion relating to the right to fish on the high seas
(Commission Article 49), making its exercise subject
not only to a State’s treaty obligations and the arti
cles concerning conservation, but also to "the inter
ests and rights of coastal States" as provided for in
the convention. Burma, the ROK, Mexico and Venezuela
(A/Conf.13/C.3/L.49, in A/Conf.13/41, supra n 111, 43)
suggested inserting the above qualification before ILC
articles 49, 51 and 52. The Committee decided, 29-11-
321
15, to adopt the principle and leave its placement to

the Drafting Committee (ibid 46).
A second paragraph was also added, stipulating
that "[a]ll States have the duty to adopt, or to co-op
erate with other States in adopting, such measures for
their respective nationals as may be necessary for the
conservation of the living resources of the high seas"
(A/Conf.13/C.3/L.72, sponsored by the UK, in ibid 157).
The intent of the addition, explained the British dele
gate, was to ensure that equal weight was given to both
the right to fish and the duty to take conservation
measures (ibid 98). The proposal was adopted, 53-0-2;
and Article 49, as thereby amended, was adopted, 50-0-
1, on first reading (ibid). It was subsequently app
roved on second reading, 50-8-5 (ibid 123).
In a change of emphasis, C.II agreed that where a
State's nationals were alone fishing in an area of the
high seas (ILC Article 51) conservation regulations
would be imposed on fish stocks rather than the area
itself, thereby enhancing the regulations' effective
ness (A/Conf.13/C.3/L.47, sponsored by France, FRG,
Italy, Japan, Netherlands, UK and Yugoslavia; in ibid
149). The proposal was adopted, 56-0-6 (ibid 46). Ar
ticle 51, as thereby amended was approved on first
reading, 58-2-4 (ibid). It was subsequently approved
unanimously on second reading (ibid 113).
ILC Article 52 relating to negotiations between
non-coastal fishing States was amended; the Committee
agreeing that rather than States being permitted to
initiate dispute settlement procedures if agreement on
conservation measures had not been reached "within a
reasonable period of time", the time limit should be
set at twelve months, making the provision more objec
tive and giving sufficient time to gather necessary
scientific data (A/Conf.13/C.3/L.48, sponsored by
France, FRG, Italy, Japan, Netherlands, Portugal, Swe
den, UK and Yugoslavia; in ibid 150). The proposal was
adopted, 33-6-17 (ibid 93). Article 52(1) was approved
on first reading, 53-0-5 (ibid 47); and on second read
ing, 61-0-1 (ibid 113). Article 52(2) was approved on
first reading, 53-0-5 (ibid 47); and on second reading,
47-11-5 (ibid 113). Article 52 as a whole was approved
on second reading, 48-8-7 (ibid). The time limit of 12
months was also inserted in ILC article 53(2)(ibid 94),
54(3)(ibid), and 56(2)(ibid 95) by similarly large ma
jorities. On the advantages of the amendment see, eg,
comments by the representatives of Japan (ibid 41) and
the UK (ibid 93).
A number of States expressed difficulty with res
pect to the applicability of conservation measures to
newcomers, as proposed in ILC Article 53 and, in parti
cular, the need for fishermen of one State being sub
ject to the laws of other States (see, eg, comments by
representatives of the FRG (ibid 47), India (ibid 48)
and the Netherlands (ibid)). C.III agreed that such
322
th ere was a stru g g le from th e sta rt b etw een those S tates ar
guing th at th e ILC had gone to o far in reco g n izin g th e in
tere sts of co astal S t a t e s , 1'*-* a n d those S tates th in k in g th at
th e C o m m issio n ’s articles did not go far e n o u g h . 1'*53 That
m e a s u r e s w o u l d b e n o t i f i e d t o t h e FAO a n d w o u l d a p p l y
t o new com ers no l a t e r t h a n s e v e n m o n th s t h e r e a f t e r (A /
C o n f . 1 3 / C . 3 / L .5 5 , s p o n s o r e d by F r a n c e , N e t h e r l a n d s ,
P o r t u g a l , S w e d e n , UK a n d USA; i n i b i d 1 5 1 ) . T his, as
t h e U n i t e d S t a t e s o b s e r v e d , w ould p r o v i d e a p e r i o d f o r
d i s c u s s i n g p ro b le m s b e f o r e t h e m e a su re s becam e e n f o r c e
a b l e (ibi d 4 9 ) . The p r o v i s i o n was a d o p t e d 4 7 - 0 - 1 0
(ibid 5 1 ) . A r t i c l e 5 3 (1 ) was a p p ro v e d on f i r s t r e a d
i n g , 3 2 - 7 - 1 3 ( i bi d) ; a n d o n s e c o n d r e a d i n g , 5 8 - 0 - 1
(ibid 1 1 3 ) .
A P o l i s h - S o v i e t p r o p o s a l (A /C o n f. 1 3 /C . 3 / L .2 9 , in
ibid 1 4 2 ) t h a t c o n s e r v a t i o n m e a s u r e s w o u l d a p p l y o n l y
t o new com ers w hose S t a t e s d id n o t s u g g e s t v a r y i n g o r
c l a r i f y i n g t h e m , w a s r e j e c t e d 3 8 - 8 - 1 3 ( i bi d) .
J a p a n 's r e p r e s e n ta tiv e , eg, argued (ibid 7) th at th e

ILC 's a r t i c l e s ,
by recognizing a special position for coastal States, departed from the

rule that regulatory measures governing fishing on the high seas were
valid only in respect of nations consenting thereto. It was hard to un
derstand the reasons for that departure. The sere geographical position
of a coastal State did not by its e lf constitute evidence of an interest
in the conservation of the living resources, or proof of superior scien
tific knowledge. Furtheraore, i t was contrary both to the principle of
the freedom of the high seas and to universal international custom re
lating to rules governing fishing on the high seas to give coastal States
the right to regulate such fishing unilaterally, even if only on a provi
sional basis pending an arbitral award.
Cf c o m m e n t s b y r e p r e s e n t a t i v e s o f t h e FRG ( i b i d 1 6 ) ,
G r e e c e (i bi d 1 5 ) a n d S w e d e n (ibi d 1 2 - 1 3 ) , t h e l a t t e r o f
whom c o n c e d e d , h o w e v e r , t h a t S w e d e n " w a s p r e p a r e d t o
c o n s id e r s p e c i a l c la im s t h a t m ig h t be p u t fo rw a rd on
b e h a lf o f S t a t e s w hose econom ic c o n d i t i o n s w ere su c h
t h a t f i s h i n g was t h e i r p r i n c i p a l , o r e v e n t h e i r o n l y ,
s o u rc e o f incom e".
T h e ROK’ s d eleg ate, eg, a sserted (ibi d 2 0 ) th at the ILC

a rticles
did not go far enough in protecting the interests of a coastal State

which depended on the conservation of the living resources of the sea for
the survival of its people. The coastal State should, on the basis of
scientific findings, enjoy an exclusive right to control and regulate
fishing activities over a reasonable distance in the high seas adjacent
to its territo ria l waters. For not only was the coastal State best
placed to evaluate the need for conservation measures, but also such
fisheries should be protected in the interests of its nationals; the sac
rifices of the coastal State in applying conservation measures should not
323
c o n flic t found e x p re ssio n in a num ber o f p ro p o sa ls c o n sid
ered by t h e C o m m itte e fo r a m e n d in g or su p p le m e n tin g th e IL C
a r t i c l e s . 1'*«•
A p ro p o sal w as m ad e, fo r e x a m p le , to am end t h e d e fin i
tio n of c o n se rv a tio n (IL C A r t i c l e 5 0 ), re q u irin g p ro g ram m es
to be fo rm u la te d w ith due re g a rd to th e s p e c ia l in te re s t of
th e c o a sta l S ta te , as had been ag reed to at th e 1 9 5 5 Rome
C o n f e r e n c e . A s a d e le g a te o f M e x ic o , one of th e pro p o
s a l ’s sp o n so rs, e x p la in e d , a lth o u g h " sc ie n tific a lly co r
re c t", th e d e fin itio n "sh o u ld be su p p le m e n te d by a r e f e r e n c e
to hum an an d s o c ia l fa c to rs b efo re it c o u ld be a c c e p te d as a
ru le of l a w " . 140 O th e r S ta te s o b je c te d , how ever, th a t: (a)
th e re w as no p l a c e in a sc ie n tific d e fin itio n of co n serv a
tio n fo r a q u a lific a tio n of th e use to w h ic h th e y ie ld w o u ld
be p u t; (b) th e p o in t w as a l r e a d y co v ered in ILC r e f e r e n c e s
to th e sp e c ia l in te re st of th e c o a sta l S ta te ; and (c) th e
be ignored. In any event, it would be quite unreasonable to put coastal

and non-coastal States on the saae footing fron the point of view of the
distribution of the world’s food supply.
A l a r g e n u m b er o f S t a t e s m ade s i m i l a r c o m m e n ts ,
o f te n in c lu d in g a rg u m e n ts r e l a t i n g to th e n eed s o f d e
v e lo p in g c o u n tr ie s . The Y u g o s la v ia n d e l e g a t e , f o r i n
s t a n c e , o b s e rv e d ( i b i d 21) t h a t
The Connission's draft articles had proclaimed the freedon of fishing on

the high seas for ships of all flags, but for the fishernen of techni
cally under-developed countries that freedon was illusory in those areas
of the high seas which were not adjacent to their territorial sea, be
cause they had no practical possibility of naking use of that freedon.
. . . [ T]he right of the snail and under-developed countries to adopt uni
lateral neasures of conservation would renain illusory, if they were not
allowed to exclude -- at least fron an area of reasonable breadth adja
cent to their territorial sea -- foreign fishing fleets which could ex
haust the area in a natter of a few days.
For a d e s c rip tio n of th e v a rio u s p ro p o sa ls and th e ir

fa te s see V e rz ijl, supra n 106, 122-1 3 0 .
A /C o n f . 1 3 / C . 3 / L .2 1 , s p o n s o r e d by C o s ta R ic a , M e x ic o ,
P e r u a n d t h e UAR; i n A / C o n f . 1 3 / 4 1 , s u p r a n 1 1 1 , 1 4 0 .
S e e a l s o t e x t a c c o m p a n y in g n 64 s u p r a .
x ■+& I b i d 38
324
proposed qualification would sow confusion.x^9 The proposal
was defeated in C.II, 26-32-8.1:50
The coastal - non-coastal State conflict surfaced dra
matically with a proposal to delete Articles 54 and 55 rec
ognizing the special interest of the coastal State in adja
cent living marine resources. It was, however, decisively
rejected.131 Instead, C.III adopted two other amendments to
Article 54 to cover situations not specifically dealt with
by the ILC. First, States whose nationals fished in high
seas areas adjacent to the territorial sea of a coastal
State would not be able to enforce conservation measures op
posed to those adopted by the coastal State. The latter’s
would prevail.132 Secondly, in the event of the coastal
State not having itself adopted conservation measures, other
X4*'9 See, eg, comments by the representatives of the US and

Cuba (ibid 38). McDougai and Burke (supra Ch 4, n 70)
point out that a number of delegates saw the proposal
as "an oblique method for indicating that the coastal
State ought to have priority on the yield from a fish
ery under a conservation regime". The argument that
non-biological interests of the coastal State were al
ready recognized under another article (see sub-para
graph (b) in text accompanying this note), the authors
describe as "curious" in that all discussions up to
that time in both the ILC and the Conference refute
such a suggestion.
1=so A / C o n f .13/41, supra n 111, 40. See Table 4, column E,

for the record of votes. In a somewhat contradictory
decision (given objection (a) in the text accompanying
n 149) the Committee did, however, agree to amend the
definition with a view to securing from conservation
programmes in the first place a supply of food for hu
man consumption (A / C o n f .13 / C .3 / L .8, sponsored by Swe
den, in ibid 137). The proposal was adopted, 32-7-26;
and Article 50, as thereby amended, was approved on
first reading, 50-0-9 (ibid 41). It was subsequently
approved on second reading, 59-0-4 (ibid 113).
1SX A/C o n f .13/C.3 / L .36, sponsored by the FRG, Japan and

Sweden, in ibid 145. The vote was 43-6-9 {ibid 59).
1S2: A/Conf .13/C .3/L .65 , sponsored by Burma, Chile, Costa

Rica, Ecuador, Indonesia, R O K , Mexico, Nicaragua,
Philippines, Republic of Viet-Nam (RVN) and Yugoslavia;
in ibid 153. The proposal was amended orally {ibid 61)
and adopted 30-28-7 {ibid 62).
325
States fishing in the above area would be required to nego
tiate conservation regulations with the coastal State if the
latter so requested.133
A number of coastal States took serious exception to
the ILC's Article 55 regarding their right to unilaterally
impose conservation measures. While Article 54 had recog
nized their special interests. the Mexican representative
observed, the principle was simply a basis for the elabora
tion of the law and alone meant nothing. Article 55, in the
ILC's form, would merely frustrate coastal State efforts to
exercise their rights under Article 54. 153-*
Other States disagreed. Cuba’s delegate, for example,
countered that the Commission's text would safeguard rights
of the coastal State, which could refer any dispute to arbi
tration and, if its position was sound, obtain satisfac
tion .15553
After prolonged discussion, 12 States proposed a number
of important amendments to Article 55: (a) coastal States
would be permitted to institute unilateral conservation mea
sures if negotiations with fishing States had not produced
agreement within six months, rather than "within a reason
able time" as the ILC had suggested;13"5 (b) the need for the
iss A/Conf.13/C.3/L.43, sponsored by Netherlands, Portugal,

UK, and US; in ibid 148. The proposal was adopted, 35-
4-27 (ibid 62). Article 54, as amended, was approved
on first reading, 54-2-10 (ibid); and on second read
ing, 41-8-15 (ibid 114). During second reading a roll-
call vote was taken on Article 54(1), ie, recognition
of the 'special interest' of the coastal State in adja
cent marine fisheries and the paragraph was adopted,
50-6-7, France, FRG, Japan, Monaco, Netherlands and
Sweden voting against recognition (ibid 114).
Ibid 64
15353 Ibid 65. The debate between Cuba and Mexico on this
issue demonstrates that not all Latin American States
shared the same position of law of the sea matters.
1530 Coastal States were worried that negotiations might be

prolonged, during which time considerable damage could
be done to the stocks in question. See, eg, the state
ment by the representative of Ecuador (ibid 62).
326
urgent application of measures would be based on "existing
knowledge of the fishery" rather than on "scientific evi
dence" ;137 and (c) the measures would remain in force pend
ing the settlement of any dispute that might arise surround
ing them. 1550 Over the strong objections of numerous large
fishing nations, the amendments were adopted, 39-22-4.130
Debate on the ILC's Article 57 focussed on the merits
of various forms of dispute settlement. A number of States,
for example, proposed that disputes be settled by means
listed in Article 33 of the United Nations Charter.100 The
Mexican delegate, for example, argued that "[t]here was ab
solutely no need to impose a particular means of settlement
which, by its very inflexibility, was likely to give rise to
is-?- This qualification was relaxed, explained Ecuador's

representative (ibid 69), "since underdeveloped coun
tries would, for technical reasons, be unable to bring
forward scientific evidence as to the urgent need for
conservation measures". McDougal and Burke (supra Ch
4, n 70, 994) comment:
Such a provision is almost wholly politically inspired and cannot be

taken seriously to represent real concern over rational use of the re
sources. It seems doubtful if one could find a single expert in the
fishery management field, not a participant in the 1958 Conference, who
would recommend the use of the information apparently intended to be used
according to [the provision adopted] as adequate justification for a con
servation regime.
iss® A/Conf .13/C .3/L .66/Rev .1, sponsored by Burma, Chile,

Costa Rica, Denmark, Ecuador, Indonesia, R O K , Mexico,
Nicaragua, Philippines, RVN and Yugoslavia; in A/Conf.
13/41, supra n 111, 154
139 Ibid 73. C.III also adopted, 17-14-24, an amendment

proposed by Norway (A / C o n f .1 3 / C .3 / L .46, in ibid 149, as
amended orally (ibid 73)), providing that "the measures
do not apply to the seas adjacent to the coasts of u n
inhabited territories"(ibid) . Article 55, as amended,
was approved on first reading, 27-22-8 (ibid). On sec
ond reading the Committee decided 29-12-20, to delete
the reference to uninhabited territories; and the Arti
cle as thus amended was approved, 34-20-5 (ibid 115).
For the early discussion on this article see ibid 62-
73.
1 -so
See Ch 5, n 67 supra.
327
more serious problems than the minor ones it sought to
s o l v e ” .101
That view was a minority one, however, and was rejected
by the Committee, which instead endorsed a proposal for d i s
putes to be settled by a ’’special c o m m i s s i o n ” along the
lines suggested by the I L C . 1Ä2 The latter, observed the
British representative, was "speedy and effective which was
what was needed when dealing with matters of such vital i n
terests as the conservation of f i s h " . 16,3
Generating much controversy during the debate was an
aspect of a proposal which in its original form would have
permitted the special dispute commission to determine that
pending its decision the measures imposed -- including those
by the coastal State -- should not be applied. As a result
of vociferous protests by a number of coastal States, it was
conceded that the special commission may decide that pending
its final award the disputed measures should not be applied,
provided that in the case of disputes (concerning leasures unilaterally iiposed by the
coastal State under Article 55], the measures shall only be suspended when it is
apparent to the coaaission on the basis of priaa facie evidence that the need for the
urgent application of such Measures does not exist.
With the debate on the ILC articles completed, discus

sion turned to possible preferential treatment in the actual
1Ä1 A / C o n f .13/41, 74. The Mexican proposal was supported

by, inter alia, Eastern European States. See, eg,
comments by the representative of the USSR (ibid 77).
Mexico and the ROK agreed that their similar proposals

(A / C o n f .1 3 / C .3 / L .1 and L .64 in ibid 134 and 153) were
voted upon jointly and rejected, 32-19-12 (ibid 83). A
Soviet proposal (A/C o n f .1 3 / C .3 / L .61, in ibid 152) that
disputes be submitted to the ICJ or referred to a r b i
tration in accordance with the I C J ’s Statute was also
rejected, 38-14-9 (ibid 83).
103 Ibid 77
A/Conf .13/C .3/L .68 , sponsored by Greece, Pakistan and

the USA; in ibid 155, as amended orally (ibid 88). The
provision cited was adopted 35-24-5 (ibid 90-91). See
Table 4, column F for record of votes cast.
328
allocation of fishery resources.163 Claims generally fell
into two groups; those justified in terms of the country’s
economic dependence on the resources, and those justified on
the basis of coastal State investments in fishery develop
ment .
Iceland fell into the former category, her delegate ex
plaining that even a 12-mile territorial sea or exclusive
fishing zone (EFZ) would be insufficient to satisfy needs of
countries overwhelmingly dependent on coastal fisheries for
the livelihood of their people. Consequently, Iceland pro
posed that a country with no resources other than fisheries
should be allowed to satisfy its requirements in adjacent
high seas on a preferential basis.1ÄÄ The proposal was sup
ported by other States advocating coastal State preferential
fishing rights, 10:7 and analogous suggested amendments and
proposals were withdrawn to avoid both duplication and jeop
ardising chances of having the basic principle accepted by
the Conference as a whole.100
1055 For a detailed review of this subject at both the 1958

and 1960 Conferences see N Quoc Dinh, ”La revendication
des droits preferentiels de peche en haute mer devant
les Conferences des Nations Unies sur le Droit de la
Mer de 1958 et 1960” (1960) 6 AFDI 76.
1Ä<3> A/Conf.13/41, supra n 111, 27-28, 102, 118; see also

Iceland's comments in n 37 and accompanying text supra.
According to Iceland's proposal (A/Conf.13/C.3/L.79/
Rev.l, in ibid 158):
Where a people is overwhelmingly dependent upon its coastal

fisheries for its livelihood or economic development and it becomes nec
essary to limit the total catch of stock or stocks of fish in areas adja
cent to the coastal fisheries zone, the coastal State shall have prefer
ential rights under such limitations to the extent rendered necessary by
its dependence on the fishery.
In the case of disagreement any interested State may initiate
the procedure [providing for compulsory arbitration].
See, eg, comments by the delegates of Chile (ibid 102),

Denmark (which classed the Faroe Islands and Greenland
in the same category as Iceland)(ibid 101), Ecuador
(ibid 103), Peru {ibid) and Yugoslavia {ibid 111).
1<SQ Burma, Chile, Costa Rica, Ecuador, Indonesia, ROK, Mex

ico, Nicaragua, Philippines, RVN and Yugoslavia had
jointly proposed that "the fishing interests of the
329
A lthough th e sin g le proposal was g e n e r a l l y seen as
referrin g to th e sp ecia l situ a tio n of Icelan d as w ell as
certain o th e r S t a t e s , 109 v i r t u a l l y all recorded d iscu ssio n
c o a s ta l S ta te sh o u ld re c e iv e s p e c ia l c o n s id e r a tio n i f
r e s t r i c t i o n s a r e im p o se d on t h e i n t e n s i t y o f f i s h i n g "
( A / C o n f . 1 3 / C . 3 / L . 6 6 , i n ibid 1 5 3 ) . I t was s e e n a s d u
p l i c a t i n g th e I c e l a n d i c p r o p o s a l and t h e r e f o r e w i t h
d r a w n ( i bid 1 1 9 ) .
T h e P h i l i p p i n e s a n d t h e RVN h a d j o i n t l y p r o p o s e d
( A / C o n f . 1 3 / C . 3 / L . 6 0 , i n ibid 1 5 2 ) t h e a d d i t i o n o f t h e
f o ll o w i n g p a r a g r a p h to A r t i c l e 49:
If the inhabitants of a coastal State who engage in fishing do so mainly

on the coasts of that State, and derive their subsistence as well as that
of other inhabitants largely fro« such fishing, they shall have a prefer
ential right to fish in any area [of the high seas adjacent to their ter
ritorial sea]: however, no coastal State shall have any right to prohibit
fishing in any such area by the inhabitants of other States after the
needs of its population have been reasonably secured.
T h e p r o p o s a l w a s s u b s e q u e n t l y w i t h d r a w n ( ibid 1 0 0 , 1 0 1 )
a n d t h e f o l l o w i n g new p r o p o s e d a m e n d m e n t s u b m i t t e d , c o
s p o n s o r e d b y t h e ROK ( A / C o n f . 1 3 / C . 3 / L . 8 6 , i n i bid 1 5 9 ) :
The fishing interests of a coastal State shall receive special considera

tion, if any [sic] of the following conditions are met:
(a) the coastal State has imposed restrictions on its own fishermen to
maintain the optimum sustainable yield froa the fishery resources in its
coastal waters;
(b) the inhabitants of the coastal State derive their subsistence aainly
froa such fishing.
T h a t p r o p o s a l was a l s o w ith d r a w n w i t h th e passage of

I c e l a n d ’ s p r o p o s a l ( ib i d 1 1 8 ) .
1Ä9 T h e r e w as, h o w e v e r, some d i f f e r e n c e o f o p i n i o n on t h e

m a t t e r , b o th b e f o r e and a f t e r t h e p r o p o s a l had b een
a d o p t e d by C . I I I . In tro d u cin g I c e la n d 's p ro p o sal, her
d e l e g a t e o f f e r e d to r e v i s e th e w o rd in g "by r e f e r r i n g to
I c e l a n d and other similar countries b y n a m e " s h o u l d
t h a t f a c i l i t a t e a c c e p t a n c e ( ibid 1 0 1 ; e m p h a s i s a d d e d ) ,
th u s in d ic a tin g h is u n d erstan d in g th a t o th e r c o u n trie s
w ould q u a l i f y f o r t h e s p e c i a l t r e a t m e n t p r o p o s e d . The
D anish d e l e g a t e fo llo w e d I c e l a n d ’s le a d in c la im in g
t h a t t h e F a r o e I s l a n d s and G r e e n la n d w ould q u a l i f y f o r
s u c h t r e a t m e n t ( s e e n 1 6 7 supra) . The C h il e a n d e l e g a t e
a t t h e same m e e tin g t h o u g h t i t l o g i c a l t o a m a lg a m a te
t h e K orean, P h i l i p p i n e and V ie tn a m e se , and e le v e n -p o w e r
p r o p o s a l ( s e e n 1 6 8 supra), a n d s u p p o r t e d t h e I c e l a n d i c
p ro p o sal "because th a t c o u n try 's claim fo r s p e c ia l con
s i d e r a t i o n s e e m e d q u i t e j u s t i f i e d " ( ib i d 1 0 2 ) .
A f t e r t h e v o t e was t a k e n , E c u a d o r s u b m i t t e d a
d r a f t r e s o l u t i o n ( A / C o n f . 1 3 / C . 3 / L . 8 9 , i n i bid 1 5 9 ) " t o
g iv e m oral r e c o g n i tio n to th e s p e c i a l s i t u a t i o n s of
330
focussed on the former State's claim for preferential treat
ment. It also followed the general pattern of all Confer
ence discussions on coastal State rights in being framed in
terms of small, developing countries trying to protect them
selves against the more developed fishing nations.1-70
Of the few States expressly objecting to Iceland's pro
posal prior to the vote in C.III, the United Kingdom was the
most explicit.1-71 No doubt mindful of his country's contin
uing fishery dispute with Iceland,17,2 the British delegate
regretted the tendency to regard coastal States "as communi
ties of fishermen whose resources were being exploited, and
the non-coastal States as rapacious profiteers who despoiled
the fisheries of other countries".1-73 He argued that inten
sive fishing in North Atlantic waters surrounding Iceland
countries whose subsistence depended on their coastal

fisheries, or whose coastal populations depended on
them on them for food" as Iceland’s proposal "dealt
only with the specific case of Iceland" (ibid 127). It
was supported in that interpretation by Cuba (ibid) and
Chile (ibid 123), the latter's delegate explaining that
the Icelandic proposal...was a general provision concerning relatively

noraal situations, such as that of Iceland. The Ecuadorian proposal, on
the other hand, was aerely a recommendation, relating to exceptional sit
uations which might arise sporadically_ _
The UK, USSR and Peru all considered that the Ecu
adorian proposed resolution was covered by the Iceland
ic amendment, and on that basis Ecuador withdrew her
proposal {ibid). Even in the Plenary, however, the
Philippines declined to support the proposal as they
viewed the latter as referring only to Iceland (A/Conf.
13/38, supra n 111, 45).
17,0 See, eg, comments by the delegates of Peru (A/Conf.

13/41, supra n 111, 115), Uruguay {ibid 119), the RVN
{ibid 101) and Yugoslavia {ibid 111).
171 Between 16 April, the date on which Iceland introduced

her proposal, and 21 April, the date on which the Com
mittee voted, only two delegations, the UK and Norway,
spoke in C.III against the principle of preferential
coastal State fishing rights in special situations
(ibid 101-119).
17,3 See Ch 9 infra.

173
Ibid 102
331
had n o t had a d e t r i m e n t a l im p a c t on f i s h e r i e s . In any c a s e ,
he c o n t i n u e d , European f i s h e r m e n w e re a s d e p e n d e n t on t h o s e
resources for th eir liv elih o o d as th eir Icelan d ic co u n ter
p arts and ”i t seemed u n f a i r to leav e a l l those resources for
[Icelan d , th e Faroe Islan d s and G r e e n l a n d ] a n d ma ke [E urope]
go s h o r t " . 1~
7* The I c e l a n d i c p r o p o s a l w as a l s o c ritic ised
for being "in some r e s p e c t s rath er vague" and n o t r e f e r r i n g
to c o n s e r v a t i o n . 1"755
Ic e la n d 's d eleg ate responded th a t even i f a 1 2 - m i l e EFZ
and h e r p r o p o s a l w ere a c c e p t e d t h e r e w ould s t i l l be l a r g e
areas in th e N orth A t l a n t i c w here E uropean S t a t e s could fish
and t h e la tte r could im port f i s h from Icelan d . In any c a s e ,
” [t]h e d a y s o f a u t a r k y were o v e r . Every c o u n try should pro
duce th e c o m m o d itie s w hich i t was b e s t ab le to p r o d u c e " . 170
He a l s o ex p lain ed th at recen tly im proved c a t c h e s w ere due to
im proved p r o d u c tio n m easu res in tro d u ced . The s u b j e c t of con
serv atio n had n o t been m en tio n ed in Ic e la n d 's p ro p o sal, he
c o n tin u e d , "because th e crux of th e p r o b l e m was how t o d iv id e
th e y ie ld af t er t h e catch had been l i m i t e d . It w as t h e n
th at th e need f o r p r e f e r e n t i a l rig h ts a r o s e . " 17"7 S u c h r i g h t s
Ibid; cf, a s i m i l a r c o m m e n t b y t h e N o r w e g i a n
r e p r e s e n t a t i v e (ibid 1 1 9 )
17>,s Ibid 1 0 2 ; cf, c o m m e n t s by t h e S o v i e t d e l e g a t e . Icelan d

r e s p o n d e d i n comments on h e r r e v i s e d p r o p o s a l (A /C o n f .
1 3 / C . 3 / L . 7 9 / R e v . 1 , e x p l a n a t o r y n o t e ; i n ibid 1 5 8 ) :
In the draft of the International Law CoMission, expressions such as

'where circumstances necessitate', . . . 'reasonable measures', 'unjustified
interference' and others were used. As Professor Francois, with justice,
pointed out in his statement before the First Committee..., such expres
sions all occur in national legislation and'...a codification of interna
tional law can no more do without these expressions than can national
law’.
Ibid 111
17"7 Ibid 1 1 9 . He a l s o e x p l a i n e d (ibid) t h a t t h e q u e s t i o n

o f c o a s t a l S t a t e p r e f e r e n t i a l r i g h t s w ould f i r s t be
t a k e n up i n t h e c o m p e t e n t r e g i o n a l f i s h e r i e s b o d y , and
i f no a g r e e m e n t was r e a c h e d , t h e c o a s t a l S t a t e w o u l d
a d o p t u n i l a t e r a l m e a s u re s w hich c o u ld be r e f e r r e d t o
arb itratio n .
333
D- The F o u r t h C o m m i t t e e
The F o u r t h C o m m itte e (C .IV ) exam ined t h e ILC a r t i c l e s
on t h e c o n t i n e n t a l sh elf. Im portant for present purposes
was t h e d e b a t e o n t h e n atu re of th e resources governed by
the co n tin en tal sh elf r e g i m e . xec> On t h e o n e h a n d , G reece,
Turkey and o t h e r s argued th at th e co astal S tate sh ould have
rig h ts only to m ineral and n o t to liv in g resources of th e
sh elf. I n tr o d u c in g G re e c e 's proposal to th at e ffe ct, her
d eleg ate, f o r exam ple, claim ed th at "all the liv in g re
sources w ere o f th e w a te r s of th e sea, and w ere a c c o r d i n g l y
su b ject to th e regim e o f th e h ig h s e a s ; only th e m in e ra l re
sources belonged to th e co n tin en tal sh elf pro p erly so
c a l l e d " . 1Q-*-
A number o f S t a t e s , on t h e o t h e r h a n d , argued th at th e
C om m ittee s h o u ld accept th at because of th e p h y sical connec
tio n betw een c e r t a i n bottom fish and t h e s e a - b e d and t h e
m ethods u s e d for h arv estin g t h e m , 13=1 as w ell as "co n sid era-
1S3 ILC A r t i c l e 6 8 r e a d : " [ t ] h e c o a s t a l S tate ex ercises

over th e c o n tin e n ta l s h e lf so v ereig n rig h ts fo r th e
p u r p o s e o f e x p l o r i n g and e x p l o i t i n g i t s n atu ral re
s o u r c e s "( A /3159 , s u p r a n 67, 2 9 7 ) . I n a com m ent, t h e
ILC e x p l a i n e d t h a t i t h a d c o n c l u d e d th at
the products of 'sedentary' fisheries, in particular, to the extent that

they were natural resources peraanently attached to the bed of the sea
should not be left outside the scope of the regime adopted, and that this
aim could be achieved by using the ten 'natural resources'. It is
clearly understood that the rights in question do not cover so-called
bottoa-fish and other fish which, although living in the sea, occasion
ally have their habitat at the bottom of the sea or are bred there.
B o t t o m - f i s h and o t h e r f i s h w ere t o be s u b j e c t t o t h e
regim e of th e h ig h s e a s . S e e i n t h i s r e g a r d n 68
supra. F o r a d i s c u s s i o n o f C o m m i t t e e n e g o t i a t i o n s on
t h i s m a t t e r and t h e f i n a l r e s u l t s e e R Young, " S e d e n
t a r y f i s h e r i e s a n d t h e C o n v e n t i o n on t h e C o n t i n e n t a l
S h e l f " ( 1 9 6 1 ) 55 A J I L 3 5 9 , 3 6 6 - 3 6 8 .
A /C o n f. 1 3 /4 2 , s u p r a n 111, 59; c f , c o m m e n t s by t h e
r e p r e s e n t a t i v e s o f J a p a n ( i b i d 56) a n d M on ac o ( i b i d 5 7 )
133 S e e , e g , t h e c o m m e n t s o f t h e d e l e g a t e s o f Burma ( i b i d
4 9 ) a n d I c e l a n d ( i b i d 5 9 ) , t h e l a t t e r o f whom e x p l a i n e d
th at
333
D- Th e F o u r t h C o m m i t t e e
The F o u r t h C o m m itte e (C .IV ) exam ined th e ILC a r t i c l e s
on t h e c o n t i n e n t a l sh elf. Im portant for present purposes
w as t h e d e b a t e on t h e natu re of th e resources g o v e r n e d by
th e c o n tin e n ta l sh elf r e g i m e . 1(3:3 On t h e o n e h a n d , G reece,
Turkey and o t h e r s argued t h a t th e co astal S tate should have
rig h ts only to m ineral and n o t t o liv in g resources of the
sh elf. In tro d u cin g G re e c e 's proposal to th at e ffe c t, her
d eleg ate, f o r exam ple, claim ed th at "all th e liv in g re
sources w ere of th e w a te rs of th e sea, and w ere a c c o r d i n g l y
su b ject to th e regim e of th e high s e a s ; only th e m in eral r e
sources belonged to th e co n tin en tal sh elf p ro p erly so
c a l l e d " . ieu*
A number o f S t a t e s , on t h e o th er hand, argued th at th e
C om m ittee s h o u ld accept th at because of th e ph y sical connec
tio n betw een c e r t a i n bottom fish and t h e s e a - b e d and th e
m ethods u s e d for h arv estin g t h e m , 103 as w ell as "co n sid era-
1Q:3 ILC A r t i c l e 6 8 r e a d : ” [ t ] h e c o a s t a l S ta te ex ercises

over th e c o n tin e n ta l s h e lf so v ereig n r ig h t s fo r the
p u r p o s e o f e x p l o r i n g and e x p l o i t i n g i t s n atu ral re
s o u r c e s " (A /3159 , s u p r a n 67, 2 9 7 ) . I n a comment, t h e
ILC e x p l a i n e d t h a t i t h a d c o n c l u d e d th at
the products of 'sedentary' fisheries, in particular, to the extent that

they were natural resources permanently attached to the bed of the sea
should not be left outside the scope of the regime adopted, and that this
ail could be achieved by using the term 'natural resources'. It is
clearly understood that the rights in question do not cover so-called
bottom-fish and other fish which, although living in the sea, occasion
ally have their habitat at the bottom of the sea or are bred there.
B o t t o m - f i s h and o t h e r f i s h w ere t o be s u b j e c t to th e
regim e of th e h ig h s e a s . S e e i n t h i s r e g a r d n 68
supra. F o r a d i s c u s s i o n o f C o m m i t t e e n e g o t i a t i o n s on
t h i s m a t t e r and t h e f i n a l r e s u l t s e e R Young, " S e d e n
t a r y f i s h e r i e s a n d t h e C o n v e n t i o n on t h e C o n t i n e n t a l
S h e l f " ( 1 9 6 1 ) 55 A J I L 3 5 9 , 3 6 6 - 3 6 8 .
A /C o n f. 1 3 /4 2 , s u p r a n 111, 59; c f , c o m m e n t s by t h e
r e p r e s e n t a t i v e s o f J a p a n ( i b i d 56) a n d M on ac o ( i b i d 5 7 )
ls;s S e e , e g , t h e c o m m e n t s o f t h e d e l e g a t e s o f Burma ( i b i d
4 9 ) a n d I c e l a n d ( i b i d 5 9 ) , t h e l a t t e r o f whom e x p l a i n e d
th at
334
tions of democracy and economic justice” , especially the
needs of developing coastal States,100 bottom-fish should be
subject to the continental shelf regime -- and hence belong
to the coastal State.
Neither of the above proposals found widespread accep
tance in C .IV however. Restricting coastal State rights to
mineral resources, argued the British, would abolish "de
facto rights” already belonging to certain States over cer
tain species beyond their territorial seas.107 In addition,
commented Ceylon’s delegate, ”[i]t would be absurd to give
coastal States the right to explore and exploit resources
far below the seabed but not resources within easy reach on
top of it".100 At the same time, he objected to the term
’natural resources’ being extended to include bottom-fish
and other fish as had been proposed.109 The term 'bottom-
fish' had various meanings and should be clearly defined.
Of even greater practical importance, the American rep
resentative observed, was that if such a broad definition of
natural resources was adopted the article would comprehend
half the entire yield of world fisheries, including fish
which moved beyond the territorial sea of a single State.
The inclusion of such fish within the continental shelf re
gime "would adversely affect conservation schemes", he as-
Many fish were closely connected with the seabed and others — for in
stance, flat fish -- were so closely connected with the bottOB when older
that they had to be dredged up fron the seabed. Moreover, off-shore den-
ersal fishing in the North Atlantic largely involved the use of gear
which either lay on the seabed or was trawled along it; the seabed there
fore represented a necessary basis for the gear.
100 Comment by the representative of Burma {ibid 48); cf,

comments by the representative of the ROK (ibid 23)
Ibid 61
133 Ibid 62
109 Burma advanced a proposal (A/Conf.13/C.4/L.3, in ibid
127) that would have defined 'natural resources' to in
clude "so-called bottom-fish and other fish which, al
though living in the sea, occasionally have their habi
tat at the bottom of the sea, or are bred there". The
phraseology employed by Burma, of course, follows that
used by the ILC (see n 183 supra).
335
serted.190 It would also, of course, similarly impact upon
foreign fishing activities.
In the end, C.IV compromised, with natural resources
being deemed to include
living organisis belonging to sedentary species, that is to say, organisas which, at

the harvestable stage, either are iaaobile on or under the seabed or are unable to
aove except in constant physical contact with the seabed or the subsoil; but Crustacea
and swimaing species are not included in this definition.191
The above provision was transmitted along with other

continental shelf articles to Plenary for final considera
tion .
E- Final Discussions in Plenary Session

Most of the fishery-related articles approved in Com
mittees were subsequently adopted in Plenary session with
minimum discussion.192 Rather, attention focussed on the
1S>° Ibid
x^x A/Conf.13/C.4/L.36, sponsored by Australia, Ceylon,

Federation of Malaya (FOM), India, Norway and UK; in
ibid 136. The proposal was adopted 41-11-17; and Arti
cle 68, as amended, was adopted 34-14-17 (ibid 70).
See n 192 infra concerning the the final agreed defini
tion of continental shelf natural resources.
16,3 The high seas fishery conservation articles were large

ly incorporated into the Convention on Fishing and Con
servation of the Living Resources of the High Seas (559
UNTS 285)[hereafter cited ’Fisheries Convention']. See
Annex III infra for the text of the Convention. The
article relating to freedom of the seas, including
fishing (see text accompanying n 67 supra), was adopted
51-0-1 (A/Conf.13/38, 20). The Convention on the High
Seas (450 UNTS 11) was adopted 65-0-1 (ibid 61), and
that on the continental shelf (499 UNTS 311), 57-3-8
(ibid 57). The article containing the definition of
natural resources subject to the continental shelf re
gime (see text accompanying n 191 supra) was adopted
59-5-6 (ibid 15), with the words "but Crustacea and
swimming species are not included in this definition"
eliminated from the provision. Bailey, the leader of
the Australian delegation of UNCLOS I, explained (supra
n 106, 10-11) that Australia took the lead in formulat
ing a definition of 'natural resources’ that would in
clude living organisms capable of locomotion but inca-
336
q u e s tio n s o f th e b re a d th o f th e te r r ito r ia l sea and th e
p o s s ib le r e c o g n itio n o f EFZs a d ja c e n t to th e te r r ito r ia l sea
and p r e fe r e n tia l c o a s ta l S ta te f is h in g r ig h t s .
Four p r o p o s a ls w e re v o te d upon r e la t in g to th e f ir s t
tw o in te r - r e la te d is s u e s . N one r e c e iv e d th e n e c e s s a ry tw o -
th ir d s m a jo r ity needed fo r a d o p tio n , a lt h o u g h as a r e s u lt o f
m uch lo b b y in g th e A m e r ic a n p ro p o s a l e a r lie r c o n s id e r e d in
C .I now saw 45 S ta te s v o tin g i t its fa v o u r, 33 v o tin g
a g a in s t , and seven a b s ta in in g .193 The C o n v e n tio n on th e
p a b le o f m o v in g o ff th e s e a -b e d its e lf . He c o n c lu d e s
th a t
I t is the earnest hopes of it s draftsmen that [the d e fin itio n found in

the Convention] w ill be found in practice to exclude the shrimp and the
sole f r o i the natural resources of the continental shelf ju s t as unequiv
ocally i t includes the io th e r-o f-p e a rl s h e ll, the pearl oyster, the
beche-de-mer, the trochus and the green s n a il, as well as the sacred
shank of India and Ceylon.
193 A /C o n f . 1 3 /L . 29 . S e e T a b le 4 , c o lu m n H f o r r e c o r d o f
v o te s c a s t. A c c o r d in g t o T u n k in (supra n 106, 48),
" C a jlth o u g h th e U . S . A . b r o u g h t e v e r y k in d o f p r e s s u r e
to b e a r, b o th d ip lo m a t ic a lly and d ir e c t ly u p o n th e C on
fe re n c e i t s e l f , i t w as u n a b le t h e s e c u r e t h e a d o p t io n
o f its r e s o lu tio n " .
E x p l a i n i n g w h a t t h e US c o n s i d e r e d t o be th e f a c
to rs im p a c t in g u p o n th e d e c is io n o f v a r io u s S t a te s t o
v o te a g a in s t i t s p r o p o s a l, D ean ( s u p r a n 9 5 , 6 1 5 -6 1 6 )
w r ite s :
Panama did not wish to y ie ld her alleged rig h ts to claim that the 3ay of
Panama is an h is to ric water which can be le g a lly excluded from the high
seas. Others, such as Burma, wished to claim twelve miles in order to
exclude Japanese fishermen from her t e r r it o r ia l waters. The Philippines
and Indonesia voted 'no' in order to preserve th e ir claims to the waters
surrounding and in between the islands in an archipelago. Canada had a
general election while the Conference was in progress and took in to ac
count Canadian fishermen's desire to exclude foreign fishermen from the
rig h t to fis h w ithin twelve miles of her shores, a re s u lt that would have
been profoundly detrimental to our cod, h alibu t and salmon fish e rie s.
Others, such as Afghanistan and Nepal, t e r r it o r ia lly located
near borders of the Soviet Union or it s s a te llite s , abstained fo r p o l i t i
cal reasons, as did certain Arab States whose neighbours voted 'n o '.
Chile abstained in committee, but voted ’ no' in plenary, because in the
interim our Secretary of the In te rio r had recommended in a report to the
Senate Finance Committee that we restore t a r if f s on copper. Tunisia and
Morocco voted 'no' in order to exclude France from exercising fish in g
rig h ts w ithin nine miles of th e ir coasts.
E ls e w h e r e (F re e d o m o f th e s e a s , supra n 119, 89;

e m p h a s is a d d e d ) , D e a n w r i t e s th a t the vote g a v e t h e US
337
Territorial Sea and Contiguous Zone (the Territorial Sea
Convention) was accordingly adopted without a provision ei
ther specifying the breadth of the territorial sea or recog
nizing a distinct fishery zone.194
Turning to the C.III articles, the South African rep
resentative recommended instead of the earlier-approved Ice
landic article19* a resolution whose purpose it was "to se
cure the acceptance of a moral obligation for the opponents
of [Iceland's] article...to take steps to agree with coastal
States on fisheries regulations, having special regard to
those States' dependence on the fishing industry” .19*
Although there was little discussion of Iceland's pro
posal in Plenary, Sweden's delegate was unable to support
the draft article as its full effect could not be known un
til the Conference had reached a decision on the territorial
sea and EFZ. He also thought the proposal too vague, "es
pecially in referring to the vast concept of economic devel
opment, and in placing no limitation on the area of the high
seas to which it would apply".199.
"a moral victory. No other proposal received a major

ity vote and, indeed, all the others were resoundly de
feated. ”
The Soviet Union's proposal rejected in C.I (see n
127 supra) was reintroduced into Plenary (A/Conf.13/L.
30, in A/Conf.13/38, supra n 111) and, indeed, rejected
decisively, 21-47-17 (ibid 40).
A proposal (A/Conf.13/L.34, in ibid 38) submitted
by Burma, Colombia, Indonesia, Mexico, Morocco, Saudi
Arabia, UAR and Venezuela, which would have in effect
recognized a 12-mile EFZ did receive support, 39-38-8
{ibid 39-40).
The Canadian proposal (A/Conf.13/L.28, in ibid)
approved in C.I (see n 127 and accompanying text su
pra), was again endorsed, 35-30-20 {ibid 39), not ex
actly a resounding defeat!
19^ The Convention (516 UNTS 205) was adopted 61-0-2

(A/Conf.13/38, supra n 111, 73).
19* See n 178 and accompanying text supra.
19* A/Conf.13/38, supra n 111, 45 (emphasis added)
Ibid
338
The final vote on the Icelandic proposal, 30-21-18,
fell short of that needed for adoption.190 Instead, the
Conference adopted, 67-0-10, a South African resolution rec
ommending that where conservation needs result in a limita
tion of catch in high seas areas adjacent to a coastal
State, other States should co-operate with the latter
to secure just treataent of such situation, by establishing agreed aeasures which

shall recognise any preferential requireaents of the coastal State resulting froa its
dependence upon the fishery concerned while having appropriate regard to the interests
of other States.1- ^
Any disagreement concerning the above would be settled

through "the appropriate conciliation and arbitral proce
dures " .200
The inability of the Conference to agree on a maximum
breadth for the territorial sea largely nullified any chance
of agreement being reached on several outstanding issues,
including the parameters of exclusive or preferential fish
ing rights. Encouraged by what was accomplished and a nar
rowing of individual State differences in numerous respects,
the Conference requested the UNGA "to study...the advisabil
ity of convening a second international conference of pleni
potentiaries for further consideration of the questions left
unsettled...".201
1<5>e Ibid 45-46. See Table 4, column I for record of votes

cast.
15,9 Ibid 48
200 Ibid. States abstaining were Bulgaria, China, FRG,

Greece, Holy See, Italy, Japan, Netherlands, Poland and
Portugal.
201 The proposal for the follow-up conference was official

ly advanced by Cuba (ibid 73) in its draft resolution
A/Conf.13/L.25, adopted 48-2-26 (ibid 77-78). The res
olution is found in A/Conf.13/L.56, in ibid 145.
In other resolutions adopted by the Conference re
lating to fisheries, States were urged to co-operate in
establishing necessary conservation regimes through the
medium of international conservation organizations
(ibid 47, 144); to co-operate with such organizations
in the adoption and enforcement of conservation mea-
339
IV. The Second United Nations Law of the Sea Conference2°2
The UNGA convened the Second United Nations Conference

on the Law of the Sea (UNCLOS II), which met in Geneva in
1960 ’’for the purpose of considering further the questions
of the breadth of the territorial sea and fishery
limits” .303
A- The Committee of the Whole

From the start it was recognized that there would be no
hope of obtaining recognition of a three-mile territorial
sures in fishing areas under their jurisdiction for

stocks of fish inhabiting both the State’s territorial
sea and adjacent high seas (ibid); and to prescribe the
most humane methods possible for the capture and kill
ing of marine life (ibid).
The draft resolution relating to abstention ap
proved by C.III (see n 182 and accompanying text su
pra) was supported 31-20-8 (ibid 47). Not receiving a
two-thirds majority, it was not adopted. Assessments
of the concept varied after the Conference. Dean, eg,
called it a "doctrine” (supra n 106, 626), while Verzijl
(supra n 106, 130) referred to as "a so-called 'princi
ple'” . It was not reintroduced at UNCLOS II, no doubt
because of the narrower terms of reference of that Con
ference (see n 203 infra). Ten years later, Chapman
(supra n 93, 41) commented that the American-Canadian
abstention proposal
puzzled a good aany of (the US’] friends, particularly in Europe,...be

cause it was so ridiculous to be in favour of freedou of fishing on the
high seas and the 'principle of abstention' at the sane tiie.
20:2 See generally, D Bowett, "The Second United Nations

Conference on the Law of the Sea"(1960) 9 ICLQ 415; A
Dean, "The Second Geneva Conference on the Law of the
Sea: the fight for freedom of the seas”(1960) 54 AJIL
751; and J Francois, "La Deuxieme Conference sur le
Droit de la Mer1*’(l960) 7 NILR 249.
20 3 UNGA Resolution 1307 (XIII), adopted on 10 December
1958, the vote being 71-0-6. For background informa
tion on UN consideration of the matter see (1958) YUN
381-383.
340
sea, and that success hinged on a compromise being reached
on other limits. Fisheries were of special concern.20'*
Eighteen, mainly developing States proposed a 12-mile
territorial sea. Where the coastal State chose a lesser dis
tance, it would be entitled to a contiguous fishery zone to
12 miles in which it would have identical fishery rights to
those exercised in the territorial sea.2055 Introducing the
so-* Qf Bowett, supra n 202, 421; Franklin, supra n 106,

369; W Gormley, "The unilateral extension of territo
rial waters: the failure of the United Nations to pro
tect freedom of the seas"(1966) 43 UDLJ 695, 713-719; A
Gros, "Entre deux Conferences sur le droit de la mer"
in Hommage d ’une generation de Juristes au President
Basdevant (1960) 237, 241, 244-245; Jennings, supra Ch
5, n 121, 35; and Sorensen (supra n 110, 250-251), who
before UNCLOS II even began observed prophetically that
after UNCLOS I ,
the three-aile H a l t can never again be taken into consideration as a

possible eleaent of any negotiated solution. Future negotiations are
bound to start where the deliberations of [UNCLOS I] ended — that is, by
accepting the aaxiaua breadth of six alles, coabined with certain exclu
sive fishing rights beyond that limit. It will also have to be borne in
aind that, as tiae goes on, the chances of inducing states adopting a
twelve-aile liait to withdraw froa that liait are likely to diainish
rather than increase.
No proposal for a three-mile territorial sea was

introduced at UNCLOS II.
203 A/Conf.19/C.1/L.2/Rev.1, sponsored by Ethiopia, Ghana,

Guinea, Indonesia, Iran, Iraq, Jordan, Lebanon, Libya,
Mexico, Morocco, Philippines, Saudi Arabia, Sudan, Tu
nisia, UAR, Venezuela and Yemen; in A/Conf.19/8, supra
n 114, 165-166. The proposal also provided that a
State which had not proclaimed either a 12-mile terri
torial sea or contiguous fishing zone would be entitled
vis-^-vis any other State with a wider delimitation
thereof, to exercise the same sovereignty or rights
mentioned above to a limit equal to that fixed by that
other State. Each State would also be obliged to enact
legislation preventing its nationals from fishing with
in the territorial sea or fishing zone of other States
without authorization by the latter.
The USSR withdrew its similar proposal (A/Conf.19/
C.l/L.l, in ibid 164) in favour of the 18-Power pro
posal without, however, co-sponsoring it (ibid 147).
Bowett (supra n 202, 422) observes that "the U.S.S.R.
was left little option for it would have been unwise to
split the twelve-mile vote". For a discussion of the
18-Power proposal's development see A Garcia Robles,
341
proposal, the Mexican delegate argued that "its realistic
approach and the spirit of equality and justice which in
spired it would enable the proposal to make a genuine con
tribution to the development of international law".2oe-
Continuing their opposition to such limits were major
fishing nations, which eloquently advanced their own case
for just and equitable consideration. Instancing her North
Atlantic fisheries, the British representative, for example,
claimed that such fishing was necessitated by geographical
factors and had nothing to do with imperialism or colonial
ism.207, Exclusion from waters within 12 miles of foreign
coasts would cause serious and unjust hardship for many
fishermen. While the United Kingdom was prepared to recog
nize coastal State interests, he conceded, it was also nec
essary for such States to appreciate the position of dis
tant-water fishing nations.20®
The proposal was finally rejected, 36-39-13, by the
Committee.*
2*°®
More successful in Committee proceedings was a joint
American-Canadian proposal that would have recognized a six-
mile territorial sea and a contiguous six-mile fishing zone
in which States that had fished there during the five years
immediately preceding 1 January 1958 would be entitled to do
so for 10 years from 31 October I960.210 The United States
"The Second United Nations Conference on the Law of the

Sea -- a reply"(1961) 55 AJIL 669, 671-675; and A
Dean's response in ibid 675-677.
200 A/Conf.19/8, supra n 114, 130
2°'7 See n 111 and accompanying text supra.
zo® Ibid 57-58; cf, comments by representatives of Aus

tralia (ibid 82), Ceylon (ibid 99), Italy (ibid 64),
Japan (ibid 72), Portugal (ibid 72), and the US (ibid
46) .
2°® Ibid 151. See Table 4, column J for record of votes

cast.
210 A/Conf.19/C.1/L.10, in ibid 169. Canada had originally

introduced a proposal (A/Conf.19/C.1/L.4, in ibid 167)
very similar to that submitted at UNCLOS I (see n 132
and accompanying text supra); while the US had offered
342
delegate observed that the proposal involved "a sacrifice of
fundamental principle and of large economic and human pro
portions” for distant-water fishing States, but that it had
been made in a sincere attempt to meet the legitimate needs
of all.311 Canada’s representative pointed out that the 10-
year period could not be used as a bargaining counter, but
rather constituted a reasonable compromise given the multi
farious interests involved. Stressing the exclusive fishery
rights to be gained by coastal States, he urged a positive
approach to the joint proposal, as the needs of all would be
met by the ’6+6’ arrangement.213
Some State remained unconvinced, however. Saudi Ara
bia's representative, for example, thought the proposal nei
ther new nor a compromise. Rather, he argued, it was an
attempt to impose a six-mile limit "for all time, in the in
terests of a single group of States, not those of the inter
national community as a whole".313 in reality, he contin-
a proposal (A/Conf,19/C.1/L.3, in ibid 166-167) based

on their proposal at the first Conference (see n 12S
and accompanying text supra) which attempted to meet
the objections then raised by Canada and others (see
text accompanying n 130 supra). Both L.3 and L.4 were
withdrawn upon the introduction of L.10 (ibid 121).
The date of 31 October 1960 had been chosen because the
Fisheries Convention negotiated at UNCLOS I had been
signed on 31 October 1958 (ibid 122).
Bowett (supra n 202, 424-425) comments that the
five year period has been chosen as it had not been un
til recently that some States such as the FRG, Italy
and Japan had been able to rebuild fishing fleets de
stroyed during the war. A period was required "which
would reveal a genuine and established fishing practice
under normal conditions". In Peru's view (A/Conf.19/8,
supra n 114, 61-62), however, the selection of a short
period
had been [aotivated] by a desire to assert the claia to fish off the Pe
ruvian coasts by 'tuna clippers', flying the United States flag, which
had, in certain cases, begun to operate only after 1950.
See also Ch 6, n 22 and accompanying text supra.
211 Ibid 122
Ibid 123
343
ued, " [t]he six-mile formula had been conceived as part of
the cold war between the major powers, and the rest of the
world had no choice in the matter".214 Furthermore, added
the Mexican delegate, the proposal contained no limitations
on either species or volume of fish allowed to be caught
during the phasing out period.213
Despite the above objections, the proposal was adopted,
43-33-12, and transmitted to Plenary.210
21=3 Ibid 16. He pointed out that the six-mile limit had
been proposed as early as 1895. See in this regard Ch
3, n 40 and accompanying text supra.
21** Ibid. Bowett (supra n 202, 417) comments:
It is froi...the apprehension of the use of the fleet as an instrument of

foreign policy, that the objections of certain States to a six-mile limit
are [at least in part] to be understood. ...It is without doubt that mem
ories of the use of the British fleet in the Persian Gulf in 1950 and of
the United States fleet off Lebanon in 1958 conditioned the thinking of
many States.
2155 A/Conf.19/8, 130; cf, comments by the representatives

of Ethiopia (ibid 150), Ghana (ibid 135) and Saudi Ara
bia (ibid 145). Such restrictions had been contained in
the original American proposal to the Conference (A/
Conf.19/C.1/L.3, in ibid 166-167), but, in Bowett's
view (supra n 202, 427) were probably eliminated in
part because of the impracticability of accurately de
termining catch levels in the zone and in part because
it was felt that they were not needed because of the
temporary nature of the rights granted the non-coastal
States. For references to the problems of determining
catch levels see, eg, the statement by the Yugoslavian
representative (A/Conf.19/8, supra n 114, 70)
21<s Ibid 152. Other amendments to the joint proposal were

voted upon by the Committee and defeated. One (A/Conf.
19/C.1/L.11, in ibid 134), offered by Argentina, eg,
would have recognized that
In any area of the high seas adjacent to its exclusive fishing

zone the coastal State shall have a preferential fishing right, espe
cially if its economic development or the feeding of its population de
pends on that activity.
Australia's delegate, speaking against the proposal,

argued that the matter had been settled by the 1958
fisheries convention; the expression "adjacent to its
exclusive fishing zone" required clarification; and
that such a preferential right for all States was unac
ceptable (ibid 150). The vote on the amendment was 27-
33-28 (ibid 151) .
344
In a d d itio n to th e above, Ic e la n d r e in tr o d u c e d th e p ro
posal u n s u c c e s s fu lly advanced in 1958 ,:zx~7' h e r r e p r e s e n t a t i v e
p o in tin g out at th e sam e t i m e th e "fu n d a m e n ta l lo o p h o le " in
th e re s o lu tio n on s p e c i a l s itu a tio n s a d o p te d at UNCLOS I :
th a t is ," a ll m easures to be t a k e n w e re s u b je c t to th e a p p ro
val and consent of th o s e ve ry S ta te s w h ic h w e re fis h in g in
th e a re a s c o n c e rn e d , and w h ic h w e re t h e r e f o r e u n lik e ly to
fa v o u r r e c o g n itio n of th e c o a s ta l S ta te ’s p r e fe re n tia l p o s i
t i o n " . 313
Once a g a in th e m a in o p p o s itio n to th e above cam e f r o m
th e B r itis h , whose r e p r e s e n t a t i v e c la im e d th a t ” [s ]p e c ia l
s itu a tio n s c o u ld a p p ly to fis h e r y S ta te s as w e l l as to coas
ta l S ta te s " and th a t th e p ro p o sa l " b r is tle d w ith c o m p lic a
t i o n s " . 2 1 ’5> In any ca se , he a d d e d , th e s itu a tio n in 1960 was
c o m p le te ly d iffe r e n t to th a t of 1958 b e c a u s e of th e new 12-
m ile A m e r ic a n -C a n a d ia n p ro p o sa l and u n d e r th e F is h e r ie s Con- *
2X 7 See n 166 and a c c o m p a n y in g te x t supra.

210 Ibid 8 1 . W h ile t h e E n g lis h la n g u a g e t e x t o f th e f i r s t
p a r a g r a p h o f t h e 1960 I c e l a n d i c p r o p o s a l ( A / C o n f . 1 9 / C .
1 / L . 7 / R e v . l , i n ibid 1 6 9 ) was i d e n t i c a l t o t h a t o f h e r
1 9 5 8 p r o p o s a l ( s e e n 166 supra) , c h a n g e s w e r e a p p a r
e n t l y made i n t h e F r e n c h l a n g u a g e t e x t w h i c h r e a d
( c i t e d i n D i n h , supra n 1 6 5 , 9 4 ) a s f o l l o w s :
Lorsque la subslstance ou le d^veloppement economique d'un peu-

ple dependent au premier chef de ses pecheries dfttieres et lorsqu'il de-
vient necessaire de liaiter la prise totale d'un ou plusieurs stocks de
poissons, dans les zones adjacentes a la zone des pecheries cotieres,
1'Etat riverain possede, coapte tenu de ces restrictions, des droits pri-
oritaires dans la aesure rendu necessaire par sa dependance a regard de
ces pecheries.
A c c o r d i n g t o D i n h (ibid 9 5 ) , " d r o i t s p r i o r i t a i r e s " r e

p la c e d " d r o i t s p r e f e r e n t i e l s " t o c o n fo rm t o th e w o rd in g
o f t h e 1958 r e s o l u t i o n ; w h i l e t h e a b o v e o p e n in g s e c t i o n
r e p l a c e d " L o r s q u e p o u r a s s u r e r s o n e x i s t e n c e ou s o n d e -
v e lo p p e m e n t Ic o n o in iq u e l a p o p u la t i o n d ’ un p ays e s t i n -
e x o r a b le m e n t t r i b u t a i r e de ses p e c h e r ie s c o t i e r e s " , th e
l a t t e r g iv in g th e im p r e s s io n t h a t th e t e x t a p p lie d o n ly
t o I c e l a n d . A l t h o u g h t h e r e was no c h a n g e i n t h e E n g l i s h
t e x t , i t is c le a r fro m th e s ta te m e n ts o f I c e la n d 's
s p o k e s p e r s o n t h a t t h e p r o p o s a l was m e a n t t o a p p l y t o
o t h e r S t a t e s a s w e l l ( s e e n 169 supra).
2 1 ^ A / C o n f. 1 9 /8 , supra n 1 1 4 , 128
345
vention coastal States ’’would be able to take care of con
servation requirements beyond the twelve-mile zone” .220
The Committee ultimately adopted the Icelandic proposal
and transmitted it to Plenary.221
B. Final Plenary Deliberations
In early Plenary discussions, Brazil, Cuba and Uruguay

introduced detailed amendments to the American-Canadian
joint-proposal, the purpose of which was to go further to
wards meeting the special interests of coastal States with
out disregarding legitimate interests of others.222 It was
designed, claimed the co-sponsors, was designed to overcome
perceived deficiencies in the Icelandic proposal while con
firming preferential fishing rights "explicitly and unequiv
ocally".223 The proposal provided, Inter alia, that a coas
tal State could claim preferential fishing rights in high
seas areas adjacent to its EFZ when it became "scientifical
ly established that a special situation or condition" exist
ed making the exploitation of the living resources in those
areas "of fundamental importance to the economic development
220 Ibid 127-123
221 Ibid 151. The vote was 31-11-46. Commenting after the
vote was taken, the U K ’s delegate suggested that the
large number of abstentions reflected a general feeling
among States that the problem required further study,
perhaps by a specialized UN agency (ibid 154). Ice
land's representative, on the other hand, thought that
the number of abstentions reflected the need to study
further the question during the Conference itself, oth
erwise States would have voted against the proposal
(ibid). It appears from subsequent developments that
the latter interpretation was the more accurate. While
there was widespread sympathy for the Icelandic posi
tion (see, eg, comments by the representatives of Is
rael (ibid 101) and Switzerland (ibid 126)), there was
nevertheless dissatisfaction with Iceland’s proposal as
formulated (see, eg, comment by the representative of
Colombia (ibid 148)).
222 See, eg, comment by Mexican delegate (ibid 13).
223 Statement by Cuban delegate (ibid 14)

346
of the c o a s ta l S tate or the feeding of its p o p u la tio n " . 22^
A sp ecial situ atio n or cond itio n w ould e x i s t when:
(a) The fisheries and the econoaic development of the coastal State or the feeding of
its population are so aanifestly interrelated that, in consequence, that State is
greatly dependent on the living resources of the high seas in the area in respect of
which preferential fishing is being claimed;
(b) It becomes necessary to limit the total catch of a stock or stocks of fish in such
areas in accordance with the provisions of the [Fisheries] Convention....3 3 *
A sp ecial c o m m is sio n would be e s t a b l i s h e d to d eterm ine

w hether such c o n d itio n s ex isted and c o n d i t i o n s u n d e r w hich
th e co astal S t a t e m ig h t be g r a n t e d p referen tial rig h ts.
The p r o p o s e d am endm ent s i g n i f i c a n t l y d iv erg ed from t h e
Icelan d ic p ro p o sals in encom passing n o t o n ly v e ry s p e c i a l
situ atio n s such as th o se of Icelan d , but also situ atio n s
w here t h e liv in g resources were o f fundam ental im p o rtan ce to
th e econom ic dev elo p m en t o f th e c o a s t a l S tate or th e feed in g
of its popu latio n . Hence, t h e Cuban d e l e g a t e e x p l a i n e d , the
phrase "is g reatly dependent" w as n o t t o be e q u a te d w ith th e
ex p ressio n "is overw helm ingly d e p en d e n t" co n tain ed in Ice
la n d 's p r o p o s a l s . 330
In u rg in g support for the p ro p o sal, C u b a ’s s p o k e s p e r s o n
noted th at th e am endm ents w ere t h e product of a len g th y ex
c h a n g e o f v i e w s am ong S t a t e s w ith m u l t i f a r i o u s i n t e r e s t s . 237
To b e e f f e c t i v e , he s t a t e d , it was n e c e s s a r y to o b tain a le
gal n o rm n o t o n l y s e c u r i n g m ajo rity support but also accep t
e d by t h o s e S tates whom t h e ru le would a f f e c t . Both t h e
fundam ental needs of th e co astal S tate and t h e leg itim ate
A /C onf.1 9 /L .1 2 , in ibid 173
223 Ibid
33s I b i d 14. At t h a t t i m e , t h e r e w e r e two I c e l a n d i c p r o

p o s a l s u n d e r c o n s i d e r a t i o n by t h e C o n f e r e n c e : t h e f i r s t
h a v i n g b e e n a d o p t e d by t h e C o m m itte e o f t h e Whole ( s e e
t e x t a c c o m p a n y i n g n 2 2 1 s u p r a ) , a n d a s e c o n d ( A / C o n f . 19
/ L . 1 3 ) b e in g an amendment t o t h e C a n a d a - U n ite d S t a t e s
j o i n t p r o p o s a l a l s o a d o p t e d by t h a t C o m m itte e .
33-7 F o r an A m erican a c c o u n t o f t h e d e v e lo p m e n t o f t h i s
p r o p o s a l s e e Dean, s u p r a n 202, 7 7 7 -7 7 9 .
347
rights and claims of non-coastal States were adequately pro
tected .2:20
The three-Power proposal was quickly endorsed by a num
ber of other States, the American delegate, for instance,
describing it as "constructive” and urging its support by
the Conference.229 Colombia’s spokesperson considered the
amendments a "satisfactory fusion" of the various individual
proposals submitted to protect coastal State rights.230
While expressing sympathy for Iceland's position, he consid
ered that the set of amendments proposed by the three Latin
American States provided even more safeguards for Iceland
than the latter’s own proposals.231
With the appearance of the three-Power proposal and
rising pressures late in the Conference to negotiate an
overall regime satisfying as many States as possible,232 the
general support for Iceland's uncompromising position began
to dissipate and they were rejected.233
Those decisions did not, however, reflect any less sup
port for the concept of coastal State preferential fishing
rights, as the Brazil-Cuba-Uruguay compromise amendment to
the joint Canadian-United States proposal was adopted in
Plenary, 58-19-10, being the largest support garnered for
223 A/Conf.19/8, supra n 114; cf, comments by the

representatives of Brazil and Uruguay (ibid 15)
239 Ibid 21
230 Ibid 28
231 Spokespersons for both the Philippines and Turkey ex
plained after the vote on the various proposals that
they had voted against the Icelandic proposals only be
cause they also thought that Iceland would be well-pro
tected by the three-Power proposals (ibid 34).
232 See, eg, statements by the delegates of Belgium {ibid

32), Ethiopia {ibid 33), Greece {ibid) and Jordan {ibid
32) for expressions of willingness to compromise in
order to secure Conference agreement.
233 Her proposal earlier adopted by the Committee of the

Whole (see text accompanying n 221 supra) was rejected,
25-37-26 {ibid 29), while the second (see n 226 supra)
was rejected, 24-48-15 {ibid 268).
348
any proposal at either of the first two Law of the Sea Con
ferences .33**
Despite that strong support, however, the American-
Canadian joint proposal itself fell one vote short of ob
taining the necessary two-thirds majority required for adop
tion .3355
Other proposals on the same issue were even less suc
cessful. A ten-Power draft resolution which would have,
inter alia, recognized the entitlement of any State to a 12-
mile EFZ was rejected 32-38-18,33e’ as was a Cuban draft res
olution which would have allowed coastal States to discrim
inate against foreign fishermen in the unilateral imposition
of conservation measures when necessary to take account of
the "special requirements" of the coastal State.33*7
234 Ibid 29-30. See Table 4, column K for the record of

votes cast.
233 The vote was 54-28-5 (ibid 30). See Table 4, column L
for the record of votes cast. For an American account
of the factors influencing the final vote by the CEP
States on this proposal see Dean, supra n 202, 780-782.
According to Bowett (supra n 202, 433), "[cjlearly the
United States had brought pressure to bear on several
States". Chapman (supra n 93, 55), while admitting
that "bargaining, lobbying, arm-twisting, reasoning
[and] browbeating" were even more "vigorous" than in
1958, observes at the same time that the joint Ameri-
can-Canadian proposal would have so compromised some US
interests "that the Navy and fishery people on the U.S.
delegation breathed a sigh of relief after the vote and
had a rousing party that night".
While a discussion of the pros and cons of employ
ing a two-thirds majority rule for the adoption of any
proposal at the 1958 and 1960 Conferences is beyond the
scope of the present work, their failure to see agree
ment on some key elements led to criticisms of the
rule. Francois {supra n 202, 251), eg, argued shortly
after UNCLOS II that "le principe de la majorite simple
devrait etre accepte, parce qu'il donne la seule solu
tion logique au probl^me de 1'adoption des conventions
par une conference diplomatique".
236
Ibid 31. The resolution (A/Conf.19/L.9, sponsored by
Indonesia, Iraq, Lebanon, Mexico, Morocco, Saudi Ara
bia, Sudan, UAR, Venezuela and Yemen) appears in ibid
172.
349
With the failure of any of the above proposals to at
tract the necessary support, the Final Act of the Conference
contained only one reference to fisheries: a resolution urg
ing that technical assistance be provided to developing
countries to aid them in making "adjustments” in their coas
tal and distant-water fishing industries.23®
V- Conclusion
The 1950s proved a significant period in the evolution

of the international law of marine fisheries. While there
had been numerous earlier instances of bilateral and multi
lateral attempts to regulate fishing activities on an ad
hoc, regional basis,23® the increasingly widespread threat
of exhausting economically important fish stocks, together
with the rapidly growing world demand for food in the post
war era, gave rise to a universal recognition that the legal
aspects of conservation and exploitation of living marine
resources had to be dealt with on a global basis. That re
cognition, in turn, generated activities which had a great
impact on the development of the law, both immediately and
over the longer term.
Considered from the former perspective, the decade wit
nessed the first plenipotentiary conferences convened speci
fically to address, inter alia, the international law gov
erning marine fisheries. The most immediate product was, of
course, the Fisheries Convention. An acknowledged develop-
23^ A/Conf.19/L.9, in ibid 172. The vote was 22-33-24

{ibid 32).
23S A/Conf.19/L.15, in A/Conf.19/8, 175-176. The resolu

tion had been submitted by Ethiopia, Ghana and Liberia
(A/Conf.19/L.8) and was adopted, 68-0-20 (ibid 30-31).
23® See Ch 2, supra, as well as A Daggett, "The regulation

of maritime fisheries by treaty"(1934) 28 AJIL 693; and
Gros, supra n 127, 7-19.
350
m ent o f th e la w on th e t o p i c , 2 **0 th e C o n v e n tio n b ro k e new
g ro u n d in a num ber o f re s p e c ts , th re e o f w h ic h m ay be m en
tio n e d h e r e i n . 2 -*x
F ir s t, w h ile c a r e fu lly c ir c u m s c r ib e d w ith in s c ie n tific
p a ra m e te rs , th e concept o f 'c o n s e r v a t io n o f liv in g m a r in e
re s o u rc e s ' w as in tr o d u c e d in to in te r n a tio n a l la w . As w ill
be seen, th e p a ra m e te rs o f th a t d e fin itio n w o u ld expand in
s u c c e e d in g y e a rs in lig h t of s c ie n tific d e v e lo p m e n ts and th e

c h a n g in g c h a ra c te r o f in te r n a tio n a l s o c i e t y . 2 **2
S e c o n d ly , by im p o s in g a d u ty on S ta te s p a r tie s to th e
C o n v e n tio n to in s titu te c o n s e r v a tio n m e a s u re s w hen c o n d i
tio n s r e q u ir e d , th e C o n fe re n c e r e c o g n iz e d th a t th e a b s o lu te
n a tu re o f th e fre e d o m o f th e sea p r in c ip le (to th e e x te n t
T h is i s e v id e n t fro m th e w o r d in g o f th e C o n v e n tio n ’ s
P r e a m b le . See A n n e x I I I infra.
3!‘* 1 F o r a d e t a i l e d d is c u s s io n o f t h e C o n v e n tio n s e e W
B is h o p J r , " T h e 1 9 5 8 G e n e v a C o n v e n t io n o n F i s h i n g a n d
C o n s e r v a t io n o f t h e L i v i n g R e s o u r c e s o f t h e H ig h S e a s "
( 1 9 6 2 ) 6 2 Columbia L R 1 2 0 6 ; d e F e r r o n , supra C h 6 , n
166, i i , 9 5 - 1 0 3 ; G r o s , supra n 1 2 7 , 1 3 1 ; M c D o u g a l a n d
B u r k e , supra C h 4 , n 7 0 , 9 7 8 - 9 9 8 ; P a t e y , supra n 1 0 6 ,
4 5 5 ; and V e r z ijl, supra n 1 0 6 , 1 2 2 - 1 3 0
Cf d e F e r r o n , supra C h 6 , n 1 6 6 , 9 6 . M cD ougal and

B u r k e (supra C h 4 , n 7 0 , 1 0 0 1 ) d r a w a t t e n t i o n t o t h e
s h o r tc o m in g s o f t h e d e f i n i t i o n as c o n ta in e d i n th e C o n
v e n t io n i n s u g g e s tin g t h a t
The chief significance of the d e fin itio n of conservation.. .is to

be seen in its projected influence upon future efforts to adopt conserva
tion aeasures. I t is iaportant to note that the Convention speaks in a ll
its operative paragraphs about the aeasures 'necessary' for conservation,
i. e . , the aeasures necessary for securing the [MSY] froa a fishery. For
recognition of the lawfulness of its regulations a state aust accordingly
be prepared to show that such regulations are necessary for that purpose.
This has two iaportant consequences. F irst, there there lik e ly to be few
instances in which i t w ill be possible to show that fishing e ffo rt is
taking fish beyond the aaxiaua a stock w ill yield and that, therefore,
conservation is necessary. The Convention has a United scope indeed
froa this perspective. Secondly, and aore iaportantly, the State wishing
to introduce aeasures to reduce fishing e ffo rt even though that e ffo rt is
currently not enough to produce a [MSY] would appear to be confronted
with very great d iffic u ltie s in persuading decision-aakers that its aea
sures are 'necessary' in teras of the purpose stipulated in the Conven
tion. Nevertheless, i f we are to believe those econoaists and biologists
who have looked beyond the biological aspects of exploitation, these in
stances of need for conservation are the aore frequent and iaportant.
351
that it ever existed) was no longer compatible with modern
conditions. In other words, as Professor Matine-Daftary ob
serves , the Conference was guided by "un principe superieur”
dominating international law and justifying limitations to
the traditional freedom of the seas; that is, "le bien com-
mun de 1'humanity, 1'inter£t collectif de la communaute in
ternationale et les imperatifs economiques".243
And thirdly, by providing the initial legal recognition
of the ’special interest’ of coastal States in the conserva
tion of marine fisheries beyond their territorial seas, the
Conference sanctioned an important exception to the rule of
equality of States on the high seas.244 In so doing, how
ever, the Conference was careful to limit the practical im
plications of that recognition by making it contingent upon
simultaneous acceptance by coastal States of compulsory ar
bitration. Thus, explains Matine-Daftary, the Conference
opted for ”une solution transactionelle entre la these de la
reglementation par l ’Etat riverain et celle de la reglemen-
tation a’caractere international” .:2'4=5
Historic as those developments were alone, as impor
tant, if not more so, in the longer term evolution of the
law were certain non-legal factors and compromise proposals
prominent in Conference deliberations which had a profound
impact on subsequent events.
For the first time, non-Western States constituted a
significant proportion of those actors participating in the
international law-making process (see Table 2). Having nei
ther vested interests in maintaining certain parts of the
traditional law of the sea nor having participated in their
formulation, the validity of some norms was widely denied as
not being in keeping with contemporary realities. In their
A Matine-Daftary, "Cours abrege sur la contribution des

Conferences de Geneve au developpement progressif du
droit international de la mer” (1961) 102 RDC 635, 651
Cf Dinh, supra n 165, 80; and Garcia Amador, supra

Matine-Daftary, supra n 243, 651

352
p la c e , m any n o n -W e s te rn S ta te s se t o ut to n e g o tia te w hat
th e y c o n s id e r e d to be m o re ju s t and e q u it a b le r u le s s a tis fy
in g th e ir own needs and i n t e r e s t s . As a r e s u lt , and to
th e c h a g r in o f som e tr a d itio n a l ju r is ts , th e p o litic a l e le
m ent o f th e la w becam e m o re o b v io u s and, in som e w ays, m o re
im p o r ta n t th a n ever b efo r e . As Johnson o b s e rv e s , UNCLO S
I, "w a s n o t a c o n fe re n c e w hose o u tc o m e th e la w y e r s [in a t
te n d a n c e ] as such c o u ld in f lu e n c e to any g re a t e x t e n t " . 2 ,4 0
I t is u s e fu l a t th is p o in t to n o te a d is t in c t io n S to n e
m akes ( supra Ch 4, n 20, 351) in s u g g e s tin g t h a t
the real issues behind the controversies concerning Afro-Asian nations

and interna tion al law are not probleas, but probleas of ju s tic e . They
are not probleas of what is the content of the ’ universal law’ . . . ; they
are probleas rather of what the contents of th is law ought to be.
P h ilip Jessup ("T h e la w o f t h e s e a a r o u n d u s " ( 1 9 6 1 ) 55

A JIL 104, 109), fo r e x a m p le , o b s e r v e s t h a t
a study of [UNCLOS I and UNCLOS I I ] suggests that the fa a ilia r separation

of developaents in interna tion al organisation between ’ fu n c tio n a l’ and
’ p o lit ic a l’ ...nay no longer be capable of conteaporary application. . . . I t
is unhappily necessary to recognise that i t is the p o litic a l [question]
which has overflowed the legal and not vice versa.
V e r z ijl ( supra n 106, 2), even m o re o u ts p o k e n ,

c o m m e n ts t h a t
the p o litic a l eabitteraent of the discussions [a t UNCLOS I ] , has done

auch to hinder the attainaent of solutions of legal controversies that
were both well-considered and well-balanced, and there has often been ev
idence of a tendency to le t p o litic a l group interests pre vail over legal
considerations of a aore general character. ...[T ]h e indifference, even
h o s tility , to accurate d ra ftin g , proved an obstacle to any reasonable ia -
proveaent of the texts under consideration. This was p a rtly owing to the
predoainantly p o litic a l concern of aany delegations and p a rtly a con
sequence of the understandable apprehension of aany of the saall delega
tions, in s u ffic ie n tly equipped with experts, to deviate froa the te xt of
the I.L .C ., previously examined in th e ir respective ca pita ls.
Jo h n so n , supra n 106, 78. S im ila r ly , R o n a ld W a l l , a

f is h e r ie s s c i e n t i s t a n d a p r o m in e n t m e m b e r o f th e
B r itis h d e le g a t io n a t th e 1958 C o n fe re n c e l a t e r
c o m m e n te d ("P a ne l: t h e G e n e v a C o n v e n tio n [s ic ] - - te n
y e a rs l a t e r " in I n t e r n a t i o n a l R u le s , s u p ra n 9 3 , 3 1 - 3 2 )
t h a t t h e IL C
had p la in ly recognized in it s report of 1956 that there was no agreement

on the extent of t e r r it o r ia l waters, which carried fish ery lim its with
them as between three and twelve miles. I would submit that from that
moment on the question was p o litic a l rather than legal, fo r i t was no
353
W it h th e ascendancy of th e p o litic a l e le m e n t and th e
m o d e rn p r o h ib it io n of th e use of fo rc e to s u s t a in le g a l
c la im s , it b e ca m e o b v io u s th a t c o m p r o m is e w as c a l l e d f o r . 2 '* 9
G iv e n th e m u ltifa r io u s , d iv e r g e n t and o fte n c o n f lic tin g in
te re s ts of th e a c to rs now a t th e c e n te r of th e w o r ld s ta g e ,
one can say w ith th e b e n e fit of h in d s ig h t th a t such a com
p r o m is e w o u ld n e c e s s a r ily ta k e t im e to n e g o tia te a n d w o u ld
by it s v e ry n a tu re in v o lv e a c a re fu l b a la n c in g of p o liti
c a l, m ilita r y a n d e c o n o m ic in t e r e s t s in a ’ package d e a l'.
L e g a l q u e s tio n s c o n c e r n in g m a r in e f is h e r ie s th a t m ig h t in
e a r lie r t im e s have been c o n s id e r e d a lm o s t e x c l u s i v e l y fro m
b io lo g ic a l, te c h n ic a l and n a rro w e c o n o m ic p e r s p e c tiv e s cen
te r in g on th e re s o u rc e it s e lf, b e ca m e m o re th a n ever en
m e sh e d in w id e r is s u e s and th e a tte m p ts by S ta te s to re a c h
a g re e m e n t on a new , c o m p r e h e n s iv e le g a l o rd e r fo r th e oceans
a s w h o le .
T o w a rd s th a t end, s ig n ific a n t p ro g re s s was m ade a n d
seeds sow n, th e fr u its of w h ic h w o u ld u ltim a te ly be h a r v e s t
ed d e c a d e s la te r . T h re e r e la te d d e v e lo p m e n t s w e re o f . p r im a r y
im p o r t a n c e c o n c e r n in g fis h e r ie s . F ir s t, we w i t n e s s e d , on
th e one h a n d , a r e p u d ia tio n by th e m a jo r ity of th e in te r n a
t io n a l c o m m u n ity of th e th r e e - m ile d is ta n c e as th e le g a l
lim it of c o a s ta l S ta te m a r itim e r ig h ts , in c lu d in g th o s e over
f is h e r ie s . At th e sam e t i m e , th e m a jo r m a r itim e P o w e rs ,
w h ile at th e b e g in n in g of th e decade in s is t in g th a t c u s to m
a ry in te r n a tio n a l la w r e c o g n iz e d th e th r e e - m ile lim it, w e re
p re p a re d to c o m p r o m is e on a g r e a t e r b re a d th by th e t im e it
cam e t o v o te on k e y p r o p o s a ls at UNCLOS I I . A r g u m e n ts in
s u p p o rt of p o s itio n s espoused beca m e in c r e a s in g based on
longer an arguaent fron law whether the breadth of te rrito ria l sea and
fishery lia its should be three or twelve ailes. Yet the countries sent
their lawyers rather than their politicians to head their delegations at
the 1958 Conference and auch of the debate there was conducted on the
arid question whether the three aile lia it was or was not established
fron the past, as the law of the Medes and Persians. With one side argu
ing about the past and the other arguing about the future, there wasn’t
likely to be any coaing together.
Cf B o w e t t , supra n 2 0 2 , 4 3 4 - 4 3 5 ; J e s s u p , supra n 1 0 6 ,
2 6 4 - 2 6 5 ; a n d G S c h w a r z e n b e r g e r , " T r e n d s i n t h e la w o f
t h e s e a : f r o m L e v i a t h a n t o J a w s ? ” ( 1 9 7 9 ) 33 YWA 3 2 8 , 3 6 3
354
fundamental grounds of justice and equity and less on tradi
tionally recognized specific norms.
A second major development, and one widely supported as
the key to a compromise was the advancement of the concept
of the EFZ. While not a new idea in itself, as Professor
Burke points out, "this was the first time it had such an
influential sponsor [as the United States]".2®0
Thirdly, the even more broadly endorsed proposal to ac
cord certain States preferential fishing rights beyond their
EFZ based on economic necessity, constituted in the words of
the Mexican delegate at the close of UNCLOS II, "a signifi
cant step in the development of international law".2® 1 in
fact, as will be seen, the qualified success of the proposal
would serve to stimulate States to pursue the matter further
on a unilateral and multilateral basis and presaged many ar
guments advanced in later years in support of expanded
coastal State jurisdiction or sovereignty over fisheries.
But what about in 1960? What might one conclude to be
the state of the law at the end of UNCLOS II? In some key
respects, it remained uncertain.2®2 In closing statements
to the Conference, a number of delegates pointedly explained
2550 W Burke, "Some comments on the 1953 Conventions" (1958)

53 PASIL 197, 204. See in this connection Ch 3, n 32
and accompanying text supra. Wilbert Chapman ("Fishery
resources in offshore waters" in International Rules,
supra n 93, 37, 100) concludes that "by casting loose
the fishery limits problem from its firm anchor in the
territorial sea problem [the United States] lost its
ability to control the outward surging of the fishery
limits".
2=51 A/Conf.19/3, supra n 114, 34. Commenting at the same

time, the Canadian representative (ibid 35) observed
that the Conference "had given clear recognition to the
special case of States whose economy was largely depen
dent upon fisheries” ; while Peru's representative accu
rately forecasted that the recognition by many States
of preferential rights "will make a deep mark on con
temporary international law and lead to a decisive new
step forward in the development of the law of the sea"
(A/Conf. 19/L.16, in ibid 174).
2®2 Cf Bowett, supra n 202, 434; Francois, supra n 202,

253; and Franklin, supra n 110, 3b6
355
that while they had voted for the ’6+6' proposal (as amend
ed) in a spirit of compromise, its failure to secure adop
tion meant that their Governments maintained their original
positions; some, such as the United States, claiming that
international law recognized only a three-mile territorial
sea and neither EFZs nor preferential fishing rights ;2S:3
while others, such as Ethiopia and Peru, claiming sovereign
ty or 'economic title' to resources beyond six miles.
Given the significance of developments at the first two
Law of the Sea Conferences and the pressing nature of fish
ery questions and other related aspects of the law, neither
position was realistic in the long run however. If disputes
over resources were to be avoided in future, political
agreement had to be reached on the legal limits to the ter
ritorial sea and rights to fishery resources. With the
failure of UNCLOS II to settle the matter, attention shifted
once again to the 'theatre' of State practice, and so shall
we.
2,3:3 A/Conf.19/8, supra n 114, 34; cf, comments by the

representatives of Greece (ibid 33) and Portugal (ibid
35)
23-4
Ibid 33, 174

The Development of The International Law of Marine Fisheries

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The Development of The International Law of Marine Fisheries

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THE DEVELOPMENT OB’ THE

INTERNATIONAL LAW OF MARINE

A thesis submitted for the degree of Doctor of

This dissertation is entirely my original research and

Any doctoral dissertation is, figuratively speaking, an

While one naturally strives for ’objectivity' when pre­

This marriage of theory and practical application of

Baron F van Asbeck, ’’Growth and movement in interna­

There is much to be said for Franck’s recommended ap­

T Franck, "Remarks [on the subject ’Promoting training

R Falk, "Review of 'The Changing Structure of Interna­

This dissertation traces the development of the inter­

LIST OF TABLES AND MAP xviii

CHAPTER ONE: FISHERIES IN INTERNATIONAL LAW: THE BEGINNING

CHAPTER TWO: FISHERIES AND THE THREE-MILE LIMIT

CHAPTER THREE: EARLY CODIFICATION EFFORTS

CHAPTER FOUR: THE RACE FOR OFFSHORE FISHERIES BEGIN IN

CHAPTER FIVE: THE ANGLO-NORWEGIAN FISHERIES CASE

CHAPTER SIX: COASTAL STATES REACT: A NEW CHALLENGE TO THE

CHAPTER SEVEN: EARLY UNITED NATIONS CONSIDERATION OF

CHAPTER EIGHT. THE SPREAD OF SPECIAL FISHERY ZONES

CHAPTER NINE: THE ICELANDIC FISHERIES CASE

CHAPTER TEN: THE SEA-BED COMMITTEE

CHAPTER ELEVEN: THE THIRD UNITED NATIONS CONFERENCE ON

CHAPTER TWELVE: STATE PRACTICE (1973-1982) AND

EPILOGUE: WHITHER THE INTERNATIONAL LAW OF MARINE

I . Evolving ConceptsofFisheryManagement 693

ABA American Bar Association

1. International Fishery Law: Theatres 10

World Marine Catches (1938-1975) 155

Votes on Fishery Proposals: 316

UNCLOS III Sessions and Texts 513

Selected High Seas Fishery Proposals (Geneva) 547

Canadian Maritime Boundaries: Atlantic Coast 372

On 1 0 D ecem ber 1982, th e F in a l A ct o f th e T h ird U n ite d

1 A Survey o f the Century , I I I The Collected Papers of

2 UNCLOS I I I docum ent A /C o n f. 6 2 /P V .1 9 3 , at 2

The Final Act of the Conference appears in Conference

Robinson (ibid 2) writes that only a part of the pro­

ing been 'informal' or even 'secret' agreements reached

One such term is "optimum utilization" in reference to

See, eg, Articles 69 and 70, relating to the rights of

Article 64, eg, simply imposes on certain States a duty

The Convention's Preamble affirms that "matters not

International legal prescriptions...can be divided for analysis into

See, eg, G Gidel, Le Droit international public de la

Fenn's work was published in 1926. Other works which,

See, eg, M Dahmani, "Access of land-locked and geo­

See, eg, T Scovazzi, "Explaining exclusive fishery

in international law, there tends to be a confusion of the ways of identifying what is

An exhaustive analysis of the matter is beyond the

D Johnston, The International Law of Marine Fisheries:

Jennings, supra n 8, 79. On the general questions of

It is im p erativ e at th e o u tset to d is tin g u is h conceptu­

S ch ach ter, s u p r a n 13, 784-785

It is not simple to differentiate between international law and its sci­

C f, A F a t o u r o s , " I n t e r n a t i o n a l law and t h e T h i r d W orld"

C o n sid e ra tio n w ill th u s be p a id to b o th th e ru le s and

F a t o u r o s , s u p ra n 20, 3 1 8 -3 1 9 ; c f , A G ra h l-M a d se n , " I n ­

O ’C o n n e ll, su p ra n 15, 37, 38; c f, P G uggenheim , T r a ite

The study of international law should not be liaited to foraalistic expo­

For present purposes, appreciation of the international

Recent attempts to supplenent or rebuild...the law of the

While one naturally strives for ’objectivity' when pre

Baron F van Asbeck, ’’Growth and movement in interna

There is much to be said for Franck’s recommended ap

R Falk, "Review of 'The Changing Structure of Interna

This dissertation traces the development of the inter

Robinson (ibid 2) writes that only a part of the pro

See, eg, M Dahmani, "Access of land-locked and geo

It is im p erativ e at th e o u tset to d is tin g u is h conceptu

It is not simple to differentiate between international law and its sci

F a t o u r o s , s u p ra n 20, 3 1 8 -3 1 9 ; c f , A G ra h l-M a d se n , " I n

The study of international law should not be liaited to foraalistic expo

For a brief discussion of dialectical analysis of in

For a general discussion concerning the impact of sci

as soon as there developed a cultural center of a certain level of civi

C f , K u n z , supra n 22, 115. Pioneering works in the in

The evolution of international law as it relates to ma

P Fenn, The Origin of the Right of Fishery in Ter

Phillipson, supra Introduction n 32, ii, 377-378. Al

Fenn, supra n 4, 3, 9-10. The classical period of R o

The Institutes were commissioned as a briefer intr o d u c

( J T h o m a s , The Institutes of Justinian: Text, Transla

coaaon to all, both as to ownership and as to use. It is owned by no one; i t is inca

The le g a l p o sitio n of fish reso u rces is c o n c ise ly ex

"F ro m th e s ta n d p o in t of p o litic a l th eo ry and of sc ie n

In 1245, the doctrine of the extension of territorial jurisdic

Fenn, supra n 4, 95. He a d d s ( i b i d 9 5 - 9 6 ) t h a t t h e j u