Volume #12 - 897.|
RELATIONS WITH THE UNITED STATES
Memorandum by Legal Division|
March 27th, 1946|
PROPRIETARY INTERESTS (INTERNATIONAL) IN CONTINENTAL SHELF|
1. A Presidential Proclamation of September 28, 1945, asserted the jurisdiction of the United States over the natural resources of the continental shelf under the high seas contiguous to the coasts of the United States and its territories. The continental shelf was described generally as meaning "submerged land contiguous to the continent which is covered by no more than 100 fathoms (600 feet) of water". It was made clear that the Proclamation had in view the mineral resources of the shelf, that the right of free navigation was not to be impeded, and that the Proclamation was not regarded as extending the present limits of the territorial waters of the United States.
The several questions of international law involved were examined in the Legal Division in July, 1945. The conclusion then reached was that international law and custom did not at present recognize that a coastal state had any proprietary interest in the continental shelf contiguous to its shores. The further opinion was expressed that, while the matter was not free from doubt, authority existed in international law and practice for the view that the bed of the sea (which would, of course, include the continental shelf) could be effectively occupied, at any rate in so far as the occupation did not seriously affect general rights of navigation.
The Legal Division also expressed the view that, as a matter of policy, no objection should be taken to an extension of the principles of international law to provide for the recognition of proprietary interests in the continental shelf in accordance with the Presidential Proclamation. It was felt, however, that any such extension should be accomplished by agreement rather than by unilateral declaration. The further view was expressed that the recognition of effective occupation of the bed of the sea (whether by mining or drilling oil, or by works which would actually come above the surface of the sea, such as the building of jetties and lighthouses), for which authority exists, should be supported by the Canadian Government.
These views appear, from the file, to have been referred to the interested departments for their comments. No replies have been received.
It was pointed out .at the•same.time that the coastal provinces (i.e. Nova Scotia which has leased submarine coal areas beyond the three-mile limit) would have an important interest in the recognition of the doctrine. It was not thought, however, that there would be any necessity of consulting the provinces unless it was proposed to block the United States policy.
On November 1, 1945, a Note was transmitted to the United States Ambassador to Canada in which we stated that the policy outlined in the Presidential Proclamation was still under review here, but that "this delay does not indicate that the proposals ... are regarded with any disfavour by the Canadian Government."
It is suggested that the text of the Proclamation, together with a copy of the views of the Legal Division and of a draft Note to the United States Ambassador to Canada, be once more referred to the interested departments for their concurrence or observations.
The draft Note should, it is thought, indicate that the Canadian Government favours the policy outlined in the Proclamation, but wonders whether it would not be desirable to place such matters, in which a reasonable doubt exists as to the position under international law, on the Agenda of UNO, where the formulation of a suitable multilateral convention could be considered by its Legal Committee. (At the same time, the Canadian views as to effective occupation, while they do not bear directly on the Proclamation, might usefully be outlined).
7. In support of the above recommendation, the following is submitted:
Article 13, paragraph l.a. of the United Nations Charter charges the General Assembly with "promoting international cooperation in the political field and encouraging the progressive development of international law and its codification."
In the common interest, the development of international law should be accomplished in an orderly fashion, by agreement and through the instrumentality of the appropriate international agency, rather than by unilateral action.
In view of the fact that UNO was not functioning when the Proclamation was made, it would seem that these suggestions might now be made at this time to the United States Government, without appearing to criticize the Proclamation.
As presently drafted, the Canadian reaction to the similar Presidential Proclamation regarding the conservation of fisheries beyond the three-mile limit takes the same general line as is recommended above.
E. R. HOPKINS