Washington, January 27, 1961.

SUBJECT
Law of the Sea--Canadian Approach to other Governments Concerning a Multilateral Treaty

PARTICIPANTS
Mr. S.F. Rae, Minister--Canadian Embassy
Jim S. Nutt, Counselor, Canadian Embassy
Mr. Raymond T. Yingling, Assistant Legal Adviser, State Department

Mr Rae said they had come in to leave a memorandum indicating the intention of the Canadian Government to sound out a selected number of other Governments (list attached)/2/ on their attitude to adherence to a multilateral Convention embodying the United States-Canadian proposal which narrowly failed to receive the necessary two-thirds vote to be adopted at the Second Conference on the Law of the Sea held at Geneva in 1960./3/ Mr. Rae stated that of course we are aware of the reasons for endeavoring to conclude a multilateral Convention on this matter. He indicated that his Government hoped that our Embassies in the countries which will be approached could be instructed to adopt a "benevolent attitude" to their efforts in the event that the Embassies were approached by the Governments to which accredited. He added that we would be given the results of the soundings at a later date.

I replied that consistent with our present policy with respect to a multilateral Convention, we were not in a position to approach the indicated Governments directly on this matter. On the other hand, as previously informally indicated to the Canadian Government, we had no objection to its taking soundings of the nature indicated even though we could not cooperate in this exercise./4/ Therefore, it could be assumed that we would make no statements contrary to their efforts.

I concluded that of course there has been no opportunity as yet to obtain the views of the new Administration in the Department on Law of the Sea matters.

The United States ratified the Convention on the Territorial Sea and the Contiguous Zone (15 UST 1606), the Convention on the High Seas (13 UST 2312), the Convention on Fishing and Conservation of the Living Resources of the High Seas (17 UST 138), and the Convention on the Continental Shelf (15 UST 471) on March 24, 1961. All four conventions had been signed by the United States on September 15, 1958, and had received the advice and consent of the Senate on May 26, 1960. The United States deposited its ratifications with the Secretary-General of the United Nations on April 12, 1961.

Washington, May 15, 1961.

AIDE-MEMOIRE

The joint assessment of Canada and the United Kingdom of the prospects of a multilateral convention based on the "six-plus-six" Geneva formula is that the support of some twenty-one countries, not including the United States, would probably be forthcoming, provided sufficient additional support could be obtained, and the support of a further nine or ten countries could be fairly readily obtained with United States assistance. This would leave only approximately a dozen countries whose support would be required in order to bring the total up to a workable figure of forty-four or forty-five. This assessment is based on the information which follows.

I. Positive support for a convention at governmental level: Australia, New Zealand, Portugal, The Republic of Ireland, Spain, Switzerland, Greece and South Africa.

II. Favourable initial reaction final replies outstanding: Italy and The Netherlands.

III. Conditional approval: Denmark.

IV. Approval dependent on reactions of other states and/or degree of support forthcoming: Germany, Israel and Japan.

V. Qualified approval, owing to special problems: Pakistan and Turkey.

VI. Hesitant or non-committal: Sweden and Thailand.

In addition to the countries which have been canvassed, Norway can be expected to support a convention.

The arguments in favour of a convention which have been presented to other countries, and which we hope will prove equally persuasive to the United States, are as follows:

(A) The proposed convention, especially if it numbers amongst its signatories the chief maritime and air transport nations of the world, and includes some of the more important fishing nations, would provide an important source of law from which a universal rule of law might gradually evolve.

(B) The general desirability of reaching agreement on the two important questions left unanswered at the 1960 Geneva Conference on the Law of the Sea (i.e. the breadth of the territorial sea and fishery limits) is underlined by the present uncertainty and the likelihood of a continued drift towards chaos in the Law of the Sea. The sooner therefore that a multilateral convention can be concluded the sooner this disturbing drift can be stopped. It is hoped that if a multilateral convention is concluded in time, enough countries will accede so as to fulfill substantially the same purpose as would have been achieved at Geneva.

(C) The initiative is in no sense a cold war project or an attempt to avenge the "diplomatic defeat" at Geneva. On the contrary, it is motivated by a desire to further the orderly development of international law, and in particular to complete the codification of the Law of the Sea so nearly achieved at the last conference.

(D) Support for a multilateral convention at this stage, rather than later, would still have a good chance of building on the large measure of agreement reached at the Conference and of avoiding the loss of effort put into it.

(E) A convention would provide an agreement to which new countries could adhere when they gain their independence, and would forestall the possibility of a twelve-mile convention being the first or even the only possible one in the field.

(F) The movement to a twelve-mile territorial sea would be slowed down and countries might be restrained from making more extravagant claims. Maximum freedom of the seas would thereby be ensured for security, navigational and commercial purposes.

(G) The existence of an agreement would help to prevent disputes arising out of incidents on the seas and would encourage countries with outstanding disputes to arrive at an early solution.

(H) The conclusion of a multilateral convention on the remaining questions in issue might further encourage states to ratify the Conventions adopted by the 1958 Conference.

(I) A further argument which can now be made is that the degree of support already obtained is encouraging.

The first question to be determined, should the United States authorities agree to join actively in the survey, would be whether further approaches should be restricted to likely supporters or should be made to the international community as a whole. The answer to this would seem to depend to a large extent on whether the next phase should be kept confidential.

Since it is still too early to be certain of our objective (i.e. enough support quantitatively to open the proposed multilateral convention for signature) it would seem better to maintain the confidential character of the canvass during the second phase also. Presumably the United States, like most of the eighteen countries already canvassed, would prefer that its views not become generally known at this stage. It may be also that a number of countries to be approached would find it easier to indicate support for the scheme if it were clearly understood that they would not be committed should it transpire that the multilateral approach had to be given up. (This, after all, is the position of Canada and the United Kingdom and would presumably be that also of the United States.) Finally, abandonment of the scheme, if it were publicly undertaken, would weaken the significance of the Geneva vote on the Canada-United States proposal.

The conclusions of Canada and the United Kingdom are that Canada, the United Kingdom and, it is hoped, the United States and certain of the countries already approached, should either individually or collectively, as may be agreed, approach another group of some twenty-five to thirty countries who may be expected to react favourably. By an agreed date, the results of this second stage in the canvass would be reviewed and a decision could then be made whether further efforts should be undertaken, or the whole scheme dropped for lack of sufficient support. In making this final decision, it would, of course, be necessary to balance the risks in eliciting a reaction from the twelve milers against the possibility of attracting countries which had been hesitant until the end, or which had not been approached, which might be prepared to join "the Club" later on. In approaches to all countries it would be clearly understood that an indication of support in principle would in no sense be a final commitment to sign the proposed convention, and that a final decision would be reserved until the extent of support from other countries is known. All countries concerned would have an opportunity to consider the results of the survey before either taking any further steps or making a final decision.

The next question to be decided would be whether some or all of the eighteen countries which have been canvassed should be asked to lend their active assistance during the second phase of the survey. Such countries as France, assuming her active support could be obtained with United States assistance, and Italy and Australia could give us considerable assistance, while it would be inadvisable to request support from lukewarm countries. It is therefore suggested that the second phase of the survey should be conducted by the United States, the United Kingdom and Canada, possibly with the assistance of additional countries as might be desirable in certain cases.

Another question to be decided would be the position we should take concerning the Brazilian amendment. It would be unrealistic to include some of the Latin Americans in the next phase of the survey, while hoping that they would not raise the question of the Brazilian amendment. (Thus far only Australia, Turkey and Japan have inquired concerning the amendment, but the support of Turkey is partly conditional upon its exclusion and that of Japan almost entirely so.) In our view the only sensible course we can follow is to continue to give a non-committal answer, as we have done thus far with the initial eighteen countries, and to defer final determination of this question until a later stage. A decision either for or against the amendment is bound to involve loss of some potential signatories. It will be a question of determining which is the least expensive course. It would be for consideration, in this connection, whether Argentina, Brazil, Uruguay and Iceland, which are known to be in favour of the Brazilian amendment, should be approached in the second phase of the survey or later.

As to the question of how many supporters would be required to warrant opening a convention for signature, it is the view of the United Kingdom and the Canadian authorities that this question should be left open for the time being. By an agreed date the results of our individual and joint efforts could be reviewed and decisions made as to the next steps to be taken. It might, for instance, be preferable to line up forty countries, including all key countries from a functional point of view, which are reasonably well distributed geographically than to obtain as many as fifty countries not including the important fishing or shipping countries and not well distributed geographically. The idea would, of course, be to obtain the requisite number both as to distribution and importance, and the next phase of the survey should be devised with this in mind. The main object at this time, however, should be to obtain more supporters; a decision can always be made at a later stage as to whether enough have been obtained to open a convention for signature.

As to which country should be approached, and by whom, the following suggestions are raised for consideration by the State Department, it being understood that should the United States authorities decide to support a convention, their support and their assistance in the survey would be in no way tied to a particular plan of action and that these suggestions are made, therefore, merely in hopes of lessening delays which might otherwise result and in order to present the United States authorities with a concrete plan of action. The list of countries which Canada and the United Kingdom would put forth for consideration by the United States is as follows: Argentina (USA), Austria (USA), Belgium (USA), Bolivia (USA), Brazil (USA), Ceylon (UK and Canada), China (USA), Colombia (USA and Canada), Costa Rica (USA), Cyprus (UK and Greece), Dominican Republic (Canada), France (USA), Guatemala (USA), Holy See (USA and Italy), Honduras (USA), Iceland (USA and Canada), Jordan (UK and USA), Korea (USA), Lebanon (USA), Liberia (USA), Luxembourg (USA), Monaco (France), Nicaragua (USA), Nigeria (UK and Canada), Paraguay (USA), Philippines (Australia and USA), San Marino (Italy), Tunisia (USA and UK), Uruguay (USA), Vietnam (USA).

As soon as the approach to the United States has actually been made, the eighteen countries included in the preliminary survey will be informed in broad terms that its results were sufficiently encouraging to justify an approach being made to the United States, and that the United Kingdom and Canada were proceeding accordingly. France, Belgium and Norway will be informed at the same time.

It is hoped that the United States authorities will agree that on the basis of the preliminary confidential survey already conducted, it would be well worthwhile to undertake a united effort to determine whether sufficient additional support for a multilateral convention based on the "six-plus-six" Geneva formula can be obtained to warrant the opening of such a convention for signature in Ottawa at a future date.

If the United States authorities agree with the course proposed, then it is suggested that three-way talks be held as soon as possible to discuss the nature and timing of the next steps in the survey.

Washington, May 23, 1961.

SUBJECT
Comments on Canadian Proposals Regarding a Multilateral Convention on the Territorial Sea and Fisheries Jurisdiction

1. The proposed formula in either the 6+6 form or the 6+6 with the Brazilian-Cuban-Uruguyan amendment, would be of no substantial benefit to U.S. fishermen off the coast of the United States, particularly since in no event would the USSR be a party nor would Japan be a party if the Brazilian amendment is included. On the other hand, the formula would do very substantial damage to U.S. fisheries off the coast of Latin America, particularly with the Brazilian amendment included, and lesser damage off the coasts of Canada. Consequently the United States should consider accepting the Canadian proposal only if it can be demonstrated that there would be substantial, over-riding benefits in the field of national security.

2. The threat to national security interests appears to lie in the possibility of the world, with the territorial sea problem unresolved, moving increasingly to a 12-mile territorial sea. There appear to be no indications of serious threats to go beyond this distance since the Law of the Sea Conference in 1960.

At both the 1958 and 1960 Conferences the United States based its 3-mile position on the argument that this was the only rule that had been generally accepted by the family of nations and that this rule could not be changed by unilateral actions or agreements between states, except by generally agreed upon multilateral action. It would appear therefore that a multilateral convention of the type proposed would be helpful only if generally accepted by nations. The prospects of such general acceptance can be realistically evaluated on the basis of our extensive experience at the 1958 and 1960 Conferences and our bilateral consultations with most of the participating nations in the course of our preparatory work.

Judged by this background, the results of the Canadian-UK preliminary survey of some 21 nations would appear to be more discouraging than encouraging since about half of them have attached qualifications or reservations to their support. If the Brazilian amendment is included in the formula it can be expected that the response of the Europeans would be even less favorable. On the other hand, failure to include the Brazilian amendment would lose most of the coastal states. This includes practically all of Latin America and many in Africa and Southeast Asia. The resulting document then would be primarily a North Atlantic agreement including Western Europeans, Canada, the United States and a few others. Thus it appears that the prospects of general acceptance of either of these formulas approaches the vanishing point. In fact it is most likely that an attempt on our part to get support for any form of 6+6 formula would stimulate the negotiation of a rival multilateral agreement on a 12-mile territorial sea which would gain support approaching or possibly exceeding that for ours. The chief result then would be to crystalize the division of the world into two blocs with the rival claims generating comparable status. Under these circumstances any military action by the U.S. Armed Forces which did not respect the 12-mile jurisdiction of members of the rival agreement would become substantially more subject to criticism than at present if by our own action we have admitted the right of states to determine the breadth of their territorial sea by limited multilateral action. Thus a strong case can be made that the security interests of the United States would be more likely to be substantially damaged than benefited by the proposed action.

In assessing the extent of support that might be developed I have estimated that European adherence to any agreement which includes the Brazilian amendment would be very limited because of the serious threat to their fishing interests by making possible the extension of the fishing jurisdiction of the coastal states beyond 12 miles. On this assumption the possibilities of such an agreement obtaining broad and representative support are so poor as to be negligible. Should this evaluation be open to real question and it be decided that further sounding out of positions is justified, it would appear extremely desirable to first ascertain the position of the European states on the Brazilian amendment before the United States becomes publicly associated with the proposed extended exploratory project. If this check substantiates the evaluation that the European reaction to the Brazilian amendment is generally negative it should provide convincing evidence that the Canadian proposal is more likely to worsen than improve the present situation.

Washington, May 23, 1961.

SUBJECT
Canadian request for United States participation in Law of the Sea canvass

Reference is made to the Canadian Aide-Memoire of May 15, 1961, and to the meeting in your office on May 22./2/

The Department of the Interior's position on the desirability of United States participation in a canvass to determine the attitude of various governments toward a multilateral convention incorporating the essence of the United States-Canadian proposal at the Second Geneva Conference remains as it was in May of 1960 when the question first arose. The basic elements of this position are as follows:

1. The Department has been prepared to agree to certain concessions of fishery jurisdiction in a 12-mile contiguous zone in order to achieve the objectives of the United States at the Geneva Conference, i.e., agreement in the interest of United States security on a six-mile territorial sea in the context of codification or progressive development of international law. It considers that the adoption of a multilateral convention incorporating the provisions of the United States-Canadian proposal is quite another thing. It is convinced that relatively few of the governments which supported the United States at Second Geneva would become signatory to a multilateral convention. It doubts that the advantages to be obtained from a convention with the number of signatories which might be expected are the equivalent of those which might have been obtained at Geneva, and is not convinced that such advantages, whatever they may be worth, justify the same concessions. In the light of the clearly expressed doubts of the Department of Defense as to the value for security purposes of a multilateral convention, the Department of the Interior would at this time oppose a renewed offer of fishery concessions.

2. This Department has consistently opposed the offering of concessions in regard to preferential fishing rights beyond 12 miles. At the time of the Second Geneva Conference it was of the view that such concessions were neither warranted nor necessary to achievement of the objectives sought at the Conference. You will recall that the decision to offer such concessions was made over the objections of Interior's representatives on the United States Delegation. This Department continues of this view, and is firmly opposed to making such concessions for any less substantial advantages than might have been obtained at the Second Geneva Conference. Such concessions would undoubtedly be necessary in order to obtain a substantial number of Latin American signatures without which the proposed multilateral convention would be of virtually no value.

3. The Department of the Interior strongly doubts that a canvass of additional governments will prove of real value. The problem is, after all, not a new one. It and the attitudes of governments toward it have been studied and re-studied in this Government over a long period of years. These attitudes and the factors which control them are well-enough understood to permit this Government to predict with a high degree of accuracy the manner in which these governments will react to a canvass. The United Kingdom-Canadian canvass to date, for example, has revealed little if anything which could not have been predicted a year ago. On the other hand, it is our view that participation by the United States will perhaps be counter-productive in that it will tend to produce commitments with our friends and encourage counter-moves by those whose interests run counter to ours.

4. In view of these considerations, the Department of the Interior opposes, as it did when the question arose a year ago, United States participation in a canvass, as suggested by Canada. Indeed, the Department believes that the United States should discourage further efforts by Canada and the United Kingdom in this regard.

William M. Terry

Washington, May 24, 1961.

SUBJECT
Canadian Request for United States Participation in a Survey to Ascertain Support for a Multilateral Convention on the Law of the Sea Based on the Canadian-United States Proposal at Geneva in 1960

For the following reason, the Office of the Legal Adviser considers that the United States should participate in the extended survey on the above subject:

1) It is the only constructive proposal put forward to salvage something from the Geneva defeat, and to bring some semblance of law and order into the present chaotic situation. The tide is not running in our favor in this field. L cannot accept the alternative of sitting and awaiting the deluge.

2) A treaty of this kind with substantial adherence (say 40 to 45 countries) would not at that stage establish international law, but it would create a hard core to which other countries interested in a rule of law could rally, and thus international law could be made.

3) It would create a blocking one third against the adoption in the foreseeable future at another conference or elsewhere of any other rule not acceptable to its adherents.

4) L does not consider it likely that such a treaty would result in a rival twelve-mile treaty. The principal support for a twelve-mile territorial sea at Geneva came from the Soviet and Arab blocs. It is doubted that the Soviet bloc would be willing to restrict itself by treaty to even twelve miles or if it were that the Arabs would be willing to enter into treaty relations with it. But if there were such a treaty, it would be binding on only the parties thereto. Furthermore, it is not believed that any country would adhere to such a treaty which would not itself unilaterally claim a twelve-mile territorial sea anyway so nothing is lost to us by the existence of such a treaty.

5) If the proposed survey reveals insufficient support to make the treaty feasible, the matter will be dropped. It is not seen what great harm will have been done. It is no secret that we are for a rule of law in this field, and the proposal is the same we sponsored at Geneva.

6) It is believed that failure of the United States to participate in further surveys will kill the project as such non participation will be taken as opposition to the proposal. If, therefore, we decide not to participate, it is recommended that we discourage Canada and the United Kingdom from pursuing the matter at this time.

Washington, May 25, 1961.

Dear Chet:

I am informed that Canada and the United Kingdom have recently completed a joint assessment of the prospects of a multilateral convention based on the "six plus six" Geneva (1960) formula. I am informed further that it is the joint conclusion and recommendation of Canada and the United Kingdom that the United States should join them in further efforts to explore the prospects for the type of convention in question.

I consider that it would be definitely against the best interests of the United States, particularly its security interests, to follow the conclusion and recommendation of the friends mentioned. The reasons for my conclusion are as follows:

If the issue for decision were regarded solely as a question of whether we should join in an effort to learn more about the prospects of such a convention, obligations of courtesy might alone dictate an affirmative answer. I do not so regard the issue. Once the United States joins such an exploratory effort, indicating thereby an active interest in promoting a multilateral on the basis indicated, the states opposed to the United States position on the territorial sea question are expected to learn of such activity and to initiate the highly detrimental countermeasures discussed hereafter. No one has suggested that the opponents of our position could be kept unaware of our activity. In other words, great potential detriment is deemed to exist in the mere act of joining "explorations" for information, wholly apart from any ultimate decision as to whether such a multilateral is to be actually opened for signature.

The real issues for decision I therefore regard as the following. Is the current state of our information on the prospects of such a multilateral adequate for decision on the ultimate question? Are the prospective benefits of promoting this multilateral substantial? Are there detriments involved in promoting this multilateral and if so, how do they compare relative to any expected benefits?

The current state of United States information on this issue is regarded as completely and uniquely adequate for a final decision on the advisability of seeking to promote the multilateral in question. This conclusion is understood to be shared by three of the four remaining sections of the interdepartmental committee which has closely studied this issue for over four years and was shared by the other section before its dissolution.

As to the question of prospective benefits to be derived from promoting the proposed multilateral, it is the considered opinion here that it would be useless from a security viewpoint, even assuming forty-five states became parties to the agreement. (This is the largest number hypothesized by anyone conversant with this subject and it is regarded here as unrealistic.) This conclusion follows from the fact that no one has suggested or would suggest that any (except Iceland) of the twenty-eight states which opposed the 1960 "six plus six" proposal would become parties to such a convention now, [2-1/2 lines of source text not declassified]. As to the remaining states, who voted for the "six plus six" proposal in 1960, the territorial sea breadth presents no substantial security problem and effectuation of the proposed multilateral would therefore afford United States security interests no substantial benefit.

The proposed multilateral could be, and it is judged that it would be, highly detrimental to United States security interests. At present we stand at a position where, at the last vote, the 1960 "six plus six" proposal failed of United Nations Conference adoption by only one negative vote to achieve the required two-thirds majority. No other proposal achieved even a simple majority. Thus, the "six plus six" position must be taken as the decisively marked point of prospective international compromise as matters now stand. If, however, the twenty-seven (leaving out Iceland) opponents of the "six plus six" formula, plus Cuba which now must be added, are galvanized into offensive action by our espousal of the Canada-United Kingdom multilateral, we anticipate a decisively unfavorable modification of the 1960 Geneva vote.

We anticipate, for instance, that action by the United States, Canada and the United Kingdom, proposing a solution to the territorial sea question by independent (of the United Nations) multilateral convention would force the opposition to take cohesive and all-out action to protect their position by means of an opposed multilateral offering twelve mile territorial seas. Though the 1960 opposition was heterogeneous in marked degree (Soviet bloc, Arab bloc, Chile, Ecuador, Peru, Venezuela, Mexico, Indonesia, India, Guinea), it operated with remarkable cohesion and cooperation. As unlikely as such an alliance might otherwise be, it is regarded as almost a certainty that on this particular question, the action recommended by Canada and the United Kingdom would cause the opposition to unite in an opposed multilateral.

By itself this action would greatly disadvantage United States security interests.

Instead of confronting individual states unilaterally claiming territorial seas beyond the limit we acknowledge as legitimate, we would be confronting and challenging the validity of a multilateral treaty of approximately thirty sovereign states. Furthermore, our experience indicates that this opposition would attract more supporters from among the newly emerging states than we could, thus increasing their number to approximately forty. Finally, our ground for challenging the validity of the opposed multilateral would be decimated, once we had abandoned our present position that the territorial sea issue can only be settled by a universal rule and adopted the position that it could be validly settled by a group multilateral. (The grounds for the validity of ours could not then be distinguished from the grounds for theirs.)

On the other hand, we anticipate that our support would diminish as and because the opposition became stronger or more vociferous. Much of the support for our 1960 "six plus six" proposal was not given from any preference for that proposal. In fact no state is known to prefer it. It was supported extensively as the only possible compromise exit from a bitter conflict. When it appears, as we anticipate, that the opposing multilaterals are only going to heighten the conflict, we anticipate a substantial loss of support. In all, we anticipate that our support would be reduced to about thirty-one states. This would be a drastic reduction from the fifty-four supporters in Geneva 1960 and if, as expected, the opposition easily exceeded that figure the ultimate capitulation of our multilateral would be foreordained.

I have dwelt at length on this matter because of its grave importance for the United States, I assure you that we regret advising against this affirmative proposal while being able to offer no alternative course of action at this time. We have had this specific problem under constant review for one year, however, and have consistently concluded that the independent multilateral is a course holding no substantial promise while at the same time it does hold grave potential detriment for the United States.

Sincerely,

Ros Gilpatric

Washington, May 25, 1961.

SUBJECT
Multilateral Convention Embodying the Provisions of the United States-Canadian Proposal at Geneva regarding the Law of the Sea

On May 15, 1961, the Canadian Ambassador left with you (Tab E) an aide-memoire giving the results of a preliminary survey made by Canada and the United Kingdom to ascertain the attitude of the eighteen countries approached on the above subject./2/ The Canadian Ambassador indicated that the two governments considered the results encouraging, and the aide-memoire proposed that the survey be extended to twenty-five to thirty countries and requested United States participation in the extended survey. A similar aide-memoire was delivered by the British Embassy to the Legal Adviser's Office the next day. L was requested to prepare a memorandum recommending a course of action with respect to the suggestions in the aide-memoire.

A meeting, attended by representatives of the Department of the Navy, Department of the Interior, U/FW, EUR, FE, ARA and NEA was held in L (Mr. Yingling's office) on May 22 to discuss the subject. The discussion revealed a difference of views as to participation in the proposed survey, indeed as to the objective itself.

L considers that such a multilateral treaty as proposed is the only alternative now available to legal chaos and an ultimate situation very unfavorable to United States interests. Its reasons are briefly summarized in the attached paper (Tab A)./3/ L is authorized to say that EUR, FE, ARA, and NEA concur in its views, and consider the proposed course of action not only feasible but necessary.

The Department of Defense considers that the United States should not participate in the extended survey and questions the desirability of the ultimate objective. Its views have been stated in a letter of May 25, 1961, from Deputy Secretary of Defense Gilpatric, a copy of which is attached (Tab B)./4/

The Fish and Wildlife Service, Department of the Interior and U/FW are of the view that the United States should not participate in the extended survey. They see no advantage in the proposed treaty from a fisheries standpoint, rather the contrary, and do not feel that these disadvantages are compensated by any gains in the field of national security. Their views are briefly set forth in the attached memoranda (Tabs C and D)./5/

/5/Documents 487 and 488.

1. If you agree that the United States should participate with Canada and the United Kingdom in an extended survey to ascertain support for a multilateral treaty on the lines indicated, that you authorize L to participate in talks with representatives of Canada and the United Kingdom to plan the next steps to be taken.

2. If you do not approve participation by the United States in the extended survey that Canada and the United Kingdom be so informed, and that we attempt to discourage them from pursuing the matter further at this time. In this event, L will communicate this decision to the British and Canadians./6/

Washington, July 19, 1961, 2 p.m.

47. Your 1098, June 30, and 31, July 11./2/ Dept regrets that it has so far not reached a decision resolving viewpoints of interested agencies but matter has been under active consideration and you may so inform FonMin Green. Dept hopes to be able to furnish a more definite reply at an early date.

Dept appreciates considerations set forth by Canadian Govt but hopes FonMin realizes this not simple problem for us and appreciates our desire to be as helpful as possible in political situation he faces.

Rusk

Washington, July 24, 1961.

Dear Alex:

On further consideration of the Canadian-United Kingdom proposal that we join in an assessment of the prospects of a multilateral convention concerning the breadth of the territorial sea and fisheries jurisdiction, referred to in my letter of 25 May 1961,/2/ I have concluded that it might be useful to provide you with our analysis of the anticipated support for and opposition to such an endeavor.

In this analysis the following basic assumptions have been made: (1) that the provisions of the proposed multilateral, when offered for signature, would be exactly the same as the proposal which received fifty four affirmative votes at the 1960 Conference in Geneva, Switzerland (i.e., the United States-Canadian proposal plus the Brazil amendment); (2) that the United States and the West European Governments would support and strongly urge others to support a prospective multilateral on the terms mentioned; (3) that United States fishing interests and congressmen and their European counterparts' opposition to the prospective multilateral will be moderate or promptly and effectively overcome.

It is estimated that the maximum number of states which could be persuaded to sign the prospective multilateral is 30 to 35. This range is arrived at on the basis of analysis which indicates that there are 42 reasonably possible adherents. Of these 42, 12 are virtually certain adherents and 11 are substantially doubtful. We resolve the unknown factor on the basis of past experience and conclude that we might persuade 65 to 85 per cent of those in the reasonably possible category to sign the prospective multilateral.

If we attracted the maximum of 35 signatories, there would be left remaining 77 non-signatories (counting Communist China, East Germany, outer Mongolia and Kuwait).

Of the 77 who are regarded as not reasonably possible adherents to a prospective multilateral on the terms mentioned, at least 36 are known to be strongly opposed to the terms of the prospective multilateral and to be strongly in favor of a twelve mile territorial sea.

If, as is considered likely, this nucleus of 36 were to attempt to protect its position by creating a twelve mile multilateral, it is estimated that as many as 50 signatories could be achieved and the reasonable possibilities run as high as 57 to 60.

On the basis of our analysis we conclude that the United States should not engage in attempting to promote a multilateral treaty on the terms mentioned. On the contrary, it is urged that the United States should seek to dissuade Canada and the United Kingdom from further efforts in this direction.

Our conclusions are buttressed by a further consideration: even if our estimate of support for the prospective multilateral proved to be fundamentally in error, and as many as fifty signatories could be attracted, the resulting 50 state multilateral treaty would constitute no current net benefit and would very likely result in a substantial current net detriment. The reason for this conclusion is the circumstance that we could only attract the adherence of "friends", in any case. Their adherence to the treaty contemplated offers no current security advantages. The making of such a treaty, however, would surely harden the attitude of the opposition and that result could be substantially detrimental to current security interests.

Sincerely,

Roswell Gilpatric

Washington, July 25, 1961.

Dear Mr. Secretary:

During recent weeks representatives of the Department of the Interior have been discussing with representatives of the Departments of State and Defense a proposal from Canada and the United Kingdom that the United States join them in a canvass of various foreign governments aimed at determining the attitude of those governments toward a multilateral convention on the breadth of the territorial sea and the extent of national jurisdiction over fisheries in coastal waters. The proposed convention would incorporate the essential elements of the formula which the United States supported at the Second United Nations Conference on the Law of the Sea. These essential elements are a six-mile territorial sea; an additional six-mile contiguous zone in which, at the end of ten years, the coastal nations would have exclusive jurisdiction over fisheries; and, in special circumstances, a preferential right on the part of coastal nations to fishery resources in waters seaward of the contiguous zone.

Although this Department's representatives have explained our position on this matter on several occasions, I wish now to set it forth more formally for your benefit. We are opposed to United States participation in the proposed canvass. Indeed, we believe that the United States should not only decline to participate, but should also discourage further efforts in this connection on the part of Canada and the United Kingdom. Our opposition goes not so much to the canvass as it goes to the ultimate objective--a multilateral convention--toward which a canvass is the first step. We are not convinced that the benefits which would accrue from a multilateral convention would justify the concessions which the United States would have to make in order to obtain those benefits. It is my understanding that the Department of Defense has taken a similar position.

In our judgment an orderly approach to the problem involves three basic determinations. First, what are the benefits which will accrue to the United States from a multilateral convention incorporating a six-mile territorial sea provision with 30 signatory nations? With 40 signatory nations? With 50 signatory nations? I may say at this point that, in our view, the likelihood of any convention's attracting 50 signatures is remote. Second, what concessions will the United States be required to make in order to obtain 30 signatures, 40 signatures, or 50 signatures? Third, do the benefits which accrue in each case justify the concessions? We believe that the factors involved in these determinations have to date received insufficient attention.

In approaching the first of these determinations, while we would not presume to specify benefits, we think it reasonable to conclude that any convention which obtained substantially fewer signatures than the final proposal at the Second United Nations Conference received supporting votes would result in benefits, substantially less than those which might have been obtained at the Conference. Here again, it is my understanding that the Department of Defense has taken a similar position.

With regard to the second determination, no further canvassing is needed to enable the United States to establish at least the minimum concessions which would be necessary. We think it obvious that any multilateral convention which did not incorporate a provision for preferential rights on the part of the coastal nations to fisheries beyond twelve miles, in addition to a six-mile territorial sea and a six-mile contiguous zone for exclusive fishery jurisdiction, would fail to attract even the smallest number of signatures noted above. This is a critical issue, one which the United Kingdom and Canada have understandably avoided meeting, and one which has been glossed over in discussions in this Government. Without provision for this preferential right, the proposed convention will be acceptable to few Latin American countries. With such a provision, the convention will become most difficult for the European fishing countries and Japan to accept.

Coming to the third determination, I reiterate the position which this Department has taken previously. This Department agreed to the concession to coastal nations of exclusive jurisdiction over fisheries in a zone extending twelve miles from the coast in order to achieve the objectives of the United States at the Second United Nations Conference on the Law of the Sea, i.e., agreement, in the interest of United States security, on a six-mile territorial sea in the context of codification or progressive development of international law. This constituted a maximum concession and this Department opposed the offering of concessions in regard to preferential fishing rights beyond twelve miles. We are not now prepared to agree to the concession of jurisdiction over fisheries in a twelve-mile zone for advantages substantially less than those which might have been obtained at the Second Conference. We do not consider that such lesser advantages warrant the sacrifices which the United States will be called upon to make. It follows that we are not prepared to agree to the offering of concessions in regard to preferential fishing rights beyond twelve miles for the lesser advantages.

One further comment may be made in connection with concessions. To this point this discussion has been limited to concessions related to fisheries. It would be foolhardy, however, for us to conclude that the offering of fishery concessions would bring about the desired result. An enormous effort at persuasion was necessary prior to and during the Second Conference to bring the United States even within reach of its goal, an effort which was prodigal in its expenditure of political goodwill. A similar effort would be necessary in connection with the proposed multilateral convention. The political capital which would be expended in such an effort must be added to the suggested fishery concessions in totaling the cost.

To recapitulate, this Department does not consider the advantages from a convention with the largest number of signatures which may be expected to justify the concessions which would be required. It consequently is opposed to United States participation in the suggested canvass.

One additional factor must be taken into consideration. The attitude of the interested public in the United States to the proposal which the United States and Canada put forward at the Second United Nations Conference, i.e., a six-mile territorial sea and a six-mile contiguous fishing zone, was one of reluctant acceptance of the need for sacrifices on its part in the interest of achieving an objective vital to the security of the United States. Although fearful of the results, the industry with some exceptions supported the Government. Without this support, this Government's problems would have been multiplied immeasurably, and it is questionable in our minds that this Government would have been able to proceed as it did, without this support. Industry did not, however, agree to the additional concession involving a preferential right to fisheries beyond twelve miles, but opposed it to the end.

It is our view that industry will continue to oppose concessions involving waters beyond twelve miles, and that in addition it will oppose the lesser concessions for advantages which in its judgment will appear less substantial than those which might have been obtained at the Second Conference. We believe it essential, in coming to a decision on this matter, that the inevitability of strong opposition from industry and severe criticism of the Administration be taken into account. We think it also necessary to consider as a distinct probability, if not a certainty, a determined effort by industry to prevent ratification of any convention which the United States might sign.

Sincerely yours,

Frank P. Briggs

On August 25, 1961, Canadian Ambassador Heeney sent a letter to Legal Adviser Abram Chayes, in which he wrote that the Canadian Government would like to send a delegation to Washington to discuss the U.S. position on the proposed multilateral Law of the Sea convention. He hoped that the meeting could be scheduled before the reopening of the Canadian Parliament on September 7. On September 7 Chayes replied that although the United States had not reached a decision about the convention, he would be willing to meet with a Canadian delegation on September 8. (National Archives and Records Administration, RG 59, Central Files 1960-63, 399.731/8-2561 and 399.731/4-1612)

Washington, September 27, 1961.

SUBJECT
Multilateral Convention Embodying the Provisions of the United States-Canadian Proposal at the Law of the Sea Conference in Geneva in 1960

The United States-Canadian proposal which narrowly failed of adoption at Geneva in 1960 provided for a six-mile territorial sea plus a six-mile exclusive fisheries zone in which traditional users would have a ten-year phase out privilege. A Brazilian amendment accepted by the United States and Canada provided preferential fishing rights for the coastal State outside of twelve miles in exceptional cases. On May 15, 1961, the Canadian Ambassador left with the Acting Secretary an aide-memoire giving the results of a preliminary survey of eighteen countries made by Canada and the United Kingdom to ascertain the attitude of the eighteen countries to a multilateral treaty embodying this proposal. The Ambassador indicated that the results of the survey were considered encouraging and requested United States participation in a survey of additional countries. A similar approach was made by the United Kingdom Embassy at lower level, and I believe the United Kingdom Ambassador mentioned it informally to you. The matter was referred by the Under Secretary to Mr. Johnson.

All interested parties (Defense, Interior, L, U/FW, and the political areas of the Department) have stated their respective views in ample memoranda, and around the conference table. Defense considers that such a treaty would be adhered to only by friends of the United States and not by its potential enemies and, therefore, that it affords nothing from a security standpoint. Interior and U/FW consider that it would be disadvantageous from a fisheries standpoint and that such disadvantages are not acceptable except in exchange for substantial security benefits. L considers such a treaty the only constructive proposal and perhaps our last clear chance to stem the tide running against us toward a twelve-mile territorial sea; therefore in the long range overall interest of the United States as a whole. Moreover, it considers that substantial adherence (40 to 45 countries) to such a treaty would create a blocking one-third against the adoption at another Law of the Sea Conference of any other rule not acceptable to the parties to the treaty.

After considering the views of all parties, Mr. Johnson concluded on August 26, 1961, that there did not seem to be a sufficiently clear balance of advantage to the United States to justify our joining in the Canadian proposal for a survey. However, he suggested that if this Office (or EUR for reasons of our relations with Canada) desired to pursue the matter further, a memorandum should be sent to you./2/

We can see no substantial objection to participation in a survey as requested by Canada and the United Kingdom, and the political areas of the Department support this view. Because of his past association with this problem, I have discussed it with Ambassador Arthur Dean and he also sees no objection to such a survey.

Strong representations have been made to the Department and to our Embassy in Ottawa on this matter, and a Canadian delegation headed by Deputy Under Secretary and Legal Adviser Marcel Cadieux came to Washington on September 8, and supported by a United Kingdom delegation met with the representatives of the interested agencies to present their strong view that the United States should participate in the proposed extended survey.

The Canadian Government is under strong pressure from fisheries interests to proclaim a twelve-mile fishing limit unilaterally and its representatives indicated that this possibility should not be discounted in the event the multilateral treaty approach had to be abandoned.

This Office considers that the views of Defense and the fisheries people cannot be changed, but that the decision as to United States participation in such a survey is ultimately one for the Department.

If you agree that the United States should participate with Canada and the United Kingdom in a further survey to ascertain support for a multilateral treaty on the lines indicated, that you authorize L to participate in talks with representatives of Canada and the United Kingdom to plan the next steps to be taken./3/

On November 8, 1961, Canadian Ambassador Heeney sent a letter to Secretary of State Rusk in which he expressed the hope that Rusk could "spare a few minutes to consider our request" and that Rusk would be willing to join with Canada in "a further confidential exploration of the prospects for a multilateral convention." Rusk replied on November 17 that he had referred the question to the Legal Adviser for coordination and further action, and hoped that he could inform Heeney of his decision soon. (National Archives and Records Administration, RG 59, Central Files 1960-63, 399.731/11-861)

Washington, December 7, 1961.

SUBJECT
Law of the Sea

Tuesday at lunch we discussed briefly the Law of the Sea and the question of our adoption of a proposal made by the Canadians in May that we join them and the British in an expanded survey to ascertain the attitude of certain countries toward a multilateral convention embodying the provisions of the U.S.-Canadian Proposal made at the 1960 Geneva Law of the Sea Conference. This question has been discussed at length, both within the Department and with other interested Agencies. While opinion within the Department is divided, the other Agencies concerned are universally against our going along with the Canadian plan.

On August 26, Deputy Under Secretary Johnson advised L that he did not believe that there was a sufficiently clear balance of advantage to the U.S. to justify our joining in the Canadian proposal for a survey. He indicated, however, that should L desire further to pursue the matter, a memorandum submitting the question to the Secretary should be prepared./2/ L opted to submit such a memorandum and it went forward to the Secretary on October 11./3/ As far as I know this is where the matter stands today.

In my opinion, and I think everyone would probably agree with this, the countries most likely to react favorably to representations aimed at a Law of the Sea accord would be those where there is the least clear advantage for the U.S., i.e., countries that can be expected to meet our high seas' security requirements with or without a signed convention. Conversely, the countries least likely to adopt a Law of the Sea formula agreeable to our interests are precisely those countries whose acquiescence would hold the greatest advantage for us.

It is my understanding that the proposed convention would not constitute a rule of International Law, even if the maximum conceivable number of countries signed, since it would not be the product of an International Convention bound by established rules of procedure. It would be a simple contract binding only upon the signatories in their relationships with each other.

It seems to me that acceptance of the Canadian proposal would cast us in the light of sponsoring a treaty. This role, even if we were only required to deal with those countries that share our inclinations on the Law of the Sea would require a de facto expenditure of a certain amount of political capital. On general principle, such an expenditure should be made on the basis of demonstrable evidence of significant advantages which the U.S. could reasonably expect in return for its efforts. The burden of proof should be placed upon those who advocate favorable consideration of the Canadian plan.

The opposition's case is stated in the attached letters of May 25, 1961, to Under Secretary Bowles from Deputy Under Secretary of Defense Gilpatric and of July 25, 1961, to Deputy Under Secretary Johnson from Assistant Secretary of the Interior Briggs./4/ Representatives of the Departments of the Interior and the Navy have stated orally, in terms as strong as those appearing in these letters, their sentiments against our joining in the expanded survey. In response to these representations it was clearly indicated that, should the disposition of the Department of State be to accept the Canadian proposal, an opportunity would be given the other Agencies concerned to make a final statement of their views before we moved to implement our decision. Such consultation was deemed prudent in view of the categorical opposition of Defense, Interior and Navy to such a course of action.

Washington, February 8, 1962, 4:29 p.m.

774. For Ambassador from Under Secretary Ball. Endeavoring here expedite reply long standing Canadian request for U.S. participation in canvass interested nations on possibility undertaking multilateral agreement on Law of Sea. Had anticipated that Canadians would raise this subject with us in Ottawa at January 12-13 session and permit us assess strength Canadian Cabinet views this matter. Issue never raised there but before reaching final decision here wish have your personal assessment of (a) likelihood that negative response our part would result Canadian attempt through unilateral action extend territorial sea, (b) strength underlying internal political feeling this subject and extent to which local political situation, particularly in election year, is basis Canadian request; (c) whether Canadians talking in terms six-mile territorial sea and six-mile fishing zone, or three-mile sea and nine-mile zone, or twelve-mile sea; and (d) any other views you may have on this matter, including impact negative response our part on overall US-Canadian relations.

Rusk

Ottawa, February 9, 1962, 5 p.m.

757. For Under Secretary Ball from Ambassador. Greatly appreciate your attention to question US reply to long-standing Canadian request on Law of Sea.

Following are my comments seriatim on questions raised your 744./2/

(A) Outright refusal on our part participate proposed canvass interested nations would, I assume, greatly lessen interest UK and others. If it thus became apparent to Canadians no point in pursuing multilateral possibilities, then I believe Canadians might well feel obliged take unilateral action.

(B) Issue is active in Canada today though without burning intensity which surrounds number other domestic political issues. Government has thus far avoided action by publicly implying international negotiations in progress. Liberal opposition has publicly said it stands for cooperation with other interested nations but would if necessary take unilateral action. CCF (Socialist) member Parliament has presented bill which would provide unilateral extension fishing rights to twelve miles. This bill however unlikely come to vote so long as government can indicate alternative solution being pursued. We are in heavy pre-election atmosphere and government is growing increasingly restive on this question. By coincidence ExtAff at personal request Foreign Minister Green made oral approach to us again today urging early US reply.

(C) CCF bill referred to above speaks of "12-mile fishing zone" and presumably is not concerned with other territorial rights. In its approach today ExtAff emphasized to us GOC speaking of Six plus Six formula with 10-year phase-out of historic fishing rights.

(D) I believe that by affirmative response to request participate in canvass or even response which falls short of this but indicates willingness sit down and talk (my telegram 234, September 1, 1961)./3/ We would have good chance forestalling unilateral Canadian action during present session Parliament and probably until after elections. For sake our bilateral relations with Canada I would of course hope we could participate in canvass. I cannot judge other factors involved but in this connection Canadians made clear to us again today their understanding our participation would imply no substantive commitment whatsoever.

In any event, as indicated my A-291/4/ there is some reason believe Canadians are becoming concerned over state US-Canada relations and particularly over manner in which they have dealt with us in certain current bilateral issues. If we can now be moderately forthcoming on this question (and, as I believe, at same time further our interests on Law of Sea question) I think we would further encourage their remorse and would contribute to their sense of need to husband more carefully their store of goodwill in US. This would be most welcome development.

Merchant

On February 26, 1962, Ambassador Merchant met with Canadian Foreign Minister Green, who said that lack of progress on the Law of the Sea Convention could become an issue in Canada's national elections. Merchant replied that he would report on the Canadian Government's concerns. In telegram 815 from Ottawa, Merchant requested, "Would appreciate early report present status." On February 28 the Department replied, "Under Secretary seeing Ambassador Heeney tomorrow. Department will report later." (National Archives and Records Administration, RG 59, Central Files 1960-63, 399.731/9-161)

Washington, March 8, 1962, 8:43 p.m.

882. Basis uncleared Memcon,/2/ Under Secretary informed Ambassador Henney today that U.S. could not accede to Canadian request contained in Canadian Embassy Aide-Memoire of May 15, 1961 participate in expanded canvass re possibility Law of Sea multilateral treaty. Memcon follows.

Rusk

Hyannis Port, May 11, 1963, 10 a.m.

SUBJECT
Territorial Sea and Fisheries Zone

PARTICIPANTS

US
The President
Ambassador Butterworth
Mr. William Tyler
Mr. Pierre Salinger

Canada
The Prime Minister
Ambassador Ritchie
Mr. Edward Ritchie
Mr. Basil Robinson
Mr. Orme Dier

The Prime Minister presented the Canadian case on the above. He felt there was no possibility of the matter being settled by international agreement. Forty countries had increased their territorial waters beyond the 3-mile limit. Canada had favored a 6-mile fishery zone in addition to a 6-mile limit but now was prepared to leave the 3-mile limit untouched but would declare an additional 9-mile Fishery Zone. The Prime Minister recognized that Canada must take into account the historic and treaty rights of the United States and that there must be consultations with the United States Government. He felt that the Canadian position was consistent with the Geneva negotiations. He pointed out that a 12-mile zone would affect less than one per cent of US fishing interests. The President then presented the US position, emphasizing not only the protection of US rights but the possible adverse implications of the base line principle, in so far as it might result in the closing of bays and of stretches of water of importance to US interests. The Prime Minister agreed that the application of the Canadian decision must be discussed. Canada did not want to have a row with the United States about this. He hoped that the United States would not overlook the advantage, from the security standpoint, of, for example, Canadian control of Hudson Bay. The President mentioned our difficulties with regard to US interests in the Gulf of Mexico. He said we would like to discuss further the Canadian proposal re the base line, and what this means in reality; also the security implications of the proposed step, for the U.S.A. The President asked the Prime Minister, in view of the latter's statement that US fishing interests would be so little affected, what great advantage there would be to Canadian fishermen. The Prime Minister was not able to answer this very convincingly. The President repeated that we would like to have talks about all these matters with the Canadian Government and see what the application of the Canadian position would mean in practice. Ambassador Butterworth pointed out that taking account of US treaty and historic rights should not mean that they were to be subject to diminution and erosion by the Canadian action. The Prime Minister said the Canadian Government could only modify these US rights in agreement with the United States. The President suggested that Canadian experts on this subject go to Washington soon, perhaps as early as next week, and the Prime Minister agreed that talks should be held very soon. He emphasized that no Canadian action would be taken without prior consultation. The President said that this was likely to be a matter on which the United States and Canada would disagree, and he then dictated some language for the communique on this point, which the Prime Minister accepted. The Prime Minister drew the President's attention to the security aspects of the problem which might alleviate and compensate for any disadvantages for the United States. The President told Mr. Tyler that he would like Mr. Feldman of the White House to sit in on the talks as an observer.