Repeat Rome, The Hague, Bonn, Paris, London, Washington, NATO Paris, Geneva, Permis New York, DM/National Defence (JAG & DNPO) (Information).
By Bag Madrid, Athens, Lisbon, Stockholm, Copenhagen, Oslo, Dublin.

LAW OF THE SEA CONSEQUENCES OF FAILURE OF THE CONFERENCE

In view of the fact that it appears from recent discussions with Western European countries that some of these states or government departments concerned appear to be considering the failure of the Conference as a preferable alternative to the adoption of the Canadian proposal, we are outlining in this telegram for use in any further discussions you might have, some of the possible implications of the failure of the Conference. The argument of paragraph (a) is, of course, applicable only with respect to NATO countries:

(a) Defence Implications. It appears to Canada that the Canadian proposal is the only formula which can obtain two-thirds majority support for a 6-mile territorial sea. If distant water fishing states are unwilling to fall back on the Canadian proposal at the Conference because of a decision to place fishing interests above security interests, the result, in our view, can only be the failure of the Conference. The breakdown of the Conference without agreement would inevitably lead to a wide number of unilateral claims to territorial sea limits of 12 miles or even more. A general 12-mile territorial sea may be expected in areas of critical importance for the defence of the free world in Africa, Asia, South and Central America, with grave implications for western defence policy.

(b) General Effect on Fishing Interests. By preferring the failure of the Conference to the adoption of the Canadian formula, fishing interests of distant water fishing states will not benefit. Unilateral claims will be likely to lead to the loss not only of 12-mile coastal zones but even greater areas. In the absence of firm internationally approved territorial sea and fishery limits many states may consider that, because of the “legal vacuum” larger areas of high seas (i.e. beyond 12-miles) can be appropriately used by the coastal states. The international community have already seen examples of this: Ecuador, Peru, Chile, El Salvador and others in South America; Korea, Indonesia and The Philippines in Asia.

(c) Chain Reaction in Western Europe. So far as distant water fishing in the Western European and North Atlantic areas is concerned the failure of the Conference may have graver implications for distant water fishing states than the Canadian proposal. In the absence of a firm 12-mile fishery limit the possibility cannot be excluded of Iceland assuming jurisdiction over Icelandic continental shelf bringing in its train even greater displacement of foreign fishing than has already occurred through the adoption of a 12-mile zone by Iceland in 1958. (As far back as 1948 Icelandic Parliament authorized government to establish jurisdiction over entire continental shelf.) Norway has intimated it will have to take unilateral action if no agreement is reached on an exclusive 12-mile fishery limit. Western European states (with the exception of the U.K.) are already excluded from fishing in the 12-mile limit around Faeroes Islands and Denmark has recently indicated possible necessity of similar limits for Greenland, which will have effect on German and other distant water fishing. In the North Sea [sic] the Soviet Union already possesses and enforces a 12-mile territorial sea limit.

The displacement of Western European trawlers might accordingly lead to increased fishing off countries such as Ireland and the U.K. which, as the Dutch and Belgium authorities have already noted, could well result in U.K., Ireland and other similarly placed countries also excluding foreign fishing trawlers. Thus while Belgian and Dutch authorities seem to fear that the Canadian proposal would lead to the loss of distant water fishing grounds for herring off Ireland and the U.K. this same result might inevitably flow from the failure of the Conference. As French trawler operations have been or are largely off Iceland, Norway and Ireland, chain reaction following from the failure of the Conference will have similar implications for them. If the Conference fails there would, however, be added disadvantage for distant water fishing states of possibility of friction and the substantial risk of claims being made to limits greater than 12 miles.

(d) Non-Recognition of Claims not an Effective Policy. Non-recognition of unilateral claims would neither seem an effective nor feasible policy in the event of the failure of the Conference. Non-recognition will not, of course, in itself prevent enforcement of unilateral claims by coastal states. Attempts by distant water fishing states to protect by force fishing by its nationals in waters claimed by a coastal state would seem both unrealistic and unprofitable from a fisheries point of view and politically unfeasible. Nor is it likely that such a policy would be strengthened by resort to the International Court of Justice for the following reasons:

(1) A court judgment can only be obtained if two countries agree to its jurisdiction; accordingly it may not be possible to bring before the court a state claiming a 12-mile limit.

(2) Assuming the court has jurisdiction there can nevertheless be no assurance that it will uphold the case of distant water fishing states. In the event of the failure of the Conference, it would seem unlikely that the International Court could hold that the 3-mile limit was the only existing rule of law and that all claims in excess of 3 miles were ipso facto invalid. According to our count eight of the fifteen countries whose nationals serve in the court favour either a 12-mile territorial sea limit or an exclusive 12-mile fishing zone. These are: Norway, Poland, UAR, Uruguay, USSR, Argentina, Mexico and Panama.

(3) If an adverse judgment is handed down, the consequence might well lead to a universal 12-mile territorial sea limit. The result would not only be a loss of fishing grounds but would have the gravest results for western security.

Summary

This analysis demonstrates that the failure of the Conference would be likely to lead to a rapid disintegration of traditional fishing arrangements and patterns in the North Atlantic and Western European areas — a disintegration which began with the failure of the First Conference on the Law of the Sea³⁴ and which could only be accelerated by the failure of the Second Conference. The Canadian proposal which in our view is the only formula which can succeed at the next conference, not only will provide for a clear, universal and orderly system of law, which both protects western security interests and sets a firm limit on the extent of fishing zones, but will enable states, through mutual negotiation to enter into bilateral transitional accommodations and agreements for the phasing out or continuation by treaty of distant water fishing operations now being carried on.

³⁴ Voir/See Volume 24, document 79.