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Catalogue Reference:CAB/129/53
Image Reference:0047
Printed for the Cabinet.
CONFIDENTIAL
C. (52) 247
21st July,
CABINET
RECORD
July
1952
OFFiCfc
Copy N o . ? 2
COPY
1952
CABINET
D E L I M I T A T I O N OF T E R R I T O R I A L W A T E R S : A P P L I C A T I O N B Y H E R
M A J E S T Y S G O V E R N M E N T O F T H E PRINCIPLES L A I D D O W N B Y
T H E I N T E R N A T I O N A L C O U R T O F JUSTICE
MEMORANDUM BY THE SECRETARY OF STATE FOR FOREIGN AFFAIRS
The Hague Court Judgment.—On
18th December, 1951, the International
C o u r t of Justice at T h e H a g u e delivered a judgment in the Anglo-Norwegian
Fisheries case in favour of N o r w a y . This j u d g m e n t was concerned with the m a n n e r
in which territorial waters could be delimited (though not with their actual
breadth), and, in delivering it, the C o u r t laid d o w n certain general principles of
international law governing the matter.
2. These new principles differ radically from those which Her Majesty's
G o v e r n m e n t have hitherto conceived to be the law. They entitle a country to
r e c k o n its territorial waters from a " base-line " joining outer headlands, islands
and rocks, provided that the resulting line is " reasonable " and follows the general
direction of the coast. H e r Majesty's G o v e r n m e n t have in the past held that the
belt of territorial waters should be measured from the low-water m a r k along the
coast and across the entrances to bays at a point where they are n o t m o r e than
10 miles wide.
3. Implications
for the United Kingdom.—The
question arises whether H e r
Majesty's G o v e r n m e n t should in future claim r o u n d the United K i n g d o m a n d
r o u n d the Colonies, Protectorates and other territories overseas for which H e r
Majesty's G o v e r n m e n t are responsible, territorial waters measured according to the
m o r e liberal principles enunciated by T h e H a g u e Court. T h e effect would be to
increase considerably the area of waters over which H e r Majesty's G o v e r n m e n t
could claim jurisdiction, including exclusive fishery rights. This question has been
considered by the H o m e Affairs Committee, who have, however, decided that, in
view of the importance of the issues at stake, it should be submitted to the Cabinet.
4. Divergent
Views of Government
Departments.—In
spite of prolonged
discussion at the official a n d Ministerial level, it has not been possible to reach a n
agreed recommendation.
Considerable pressure is being brought to bear by
fisheries interests in Scotland to have T h e H a g u e C o u r t principles applied r o u n d
the Scottish coast in order to close larger areas to foreign trawlers. T h e Scottish
H o m e D e p a r t m e n t are wholly in favour of extending our territorial limits in this
way as early as possible in the interests of the Scottish inshore fishing industry.
The White Fish Authority, whose responsibilities cover all sections of the British
white fish industry, have r e c o m m e n d e d to the G o v e r n m e n t that action on these
lines should be taken.
5. O n the other h a n d , the immediate a d o p t i o n Of T h e H a g u e C o u r t principles
is opposed by the A d m i r a l t y and the Ministry of T r a n s p o r t on the ground that it is
not yet clear that they are going to be generally adopted by other countries
including particularly the U n i t e d States, or that they will be approved by the
International Law Commission of the U n i t e d N a t i o n s . They believe that as a
naval a n d maritime Power we should hold to our established policy of maintaining
42605
a m a x i m u m area of the seas free from national jurisdiction and should d o n o t h i n g !
which would encourage other countries to apply T h e H a g u e Court principles in a
m a n n e r detrimental to our interests.
6. The International
Position.—The
fact is, however, that some other
countries, including N o r w a y , Sweden, Saudi Arabia, Ecuador, Yugoslavia, Egypt
and F r a n c e (the last-named to a limited extent), h a d already adopted the new
principles to a greater or lesser extent even before the announcement of T h e H a g u e
C o u r t ' s judgment. Iceland, which h a d adopted t h e m on her northern coast before
the announcement, has subsequently applied them to the remainder of her coast
line. There is considerable pressure from fishing interests in G r e e n l a n d and the
F a r o e s for the adoption of the principles by the Danish Government. All this is
p a r t of a general tendency in favour of the extension of territorial limits which has
only been strengthened by^The H a g u e Court's judgment. Even in the C o m m o n ­
wealth there is n o chance of solid opposition t o the new principles. T h e position
n o w is that H e r Majesty's G o v e r n m e n t cannot seriously challenge base-lines
a d o p t e d by other countries as long as they apply The H a g u e C o u r t principles
in a reasonable fashion. T h e interests of H e r Majesty's G o v e r n m e n t would there­
fore a p p e a r to be best served b y exercising a m o d e r a t i n g influence without, at
the same time, adopting a n attitude so hostile to the new principles t h a t it would
have little or no support outside the U n i t e d K i n g d o m . Moreover b y accepting
base-lines we are more likely to obtain support from other countries for our efforts
to maintain the principle that the actual belt of territorial waters should be limited
to 3 miles (except where there is a valid prescriptive claim to a wider limit); a
principle to which all D e p a r t m e n t s attach importance.
7. T h e International L a w Commission, which is a b o d y of jurists established
by the U n i t e d N a t i o n s t o m a k e recommendations to the General Assembly for
the codification of international law, is intending t o study the questions of the
delimitation and b r e a d t h of territorial waters, and will probably be issuing a report
in 1953. T h e r a p p o r t e u r of the Commission has recently produced a first report
to provide the basis of the C o m m i s s i o n ^ discussion. I n this he recommends the
general acceptance of T h e H a g u e C o u r t base-line principles for indented coasts,
t h o u g h with some safeguards (such as the limitation of the length of base-lines
t o 10 miles in some cases). A l t h o u g h it is impossible to prophesy what the
Commission itself will r e c o m m e n d , it seems most i m p r o b a b l e that there will b e
any general return to the stricter methods of delimitation still applied by the
U n i t e d K i n g d o m or t h a t any great degree of international support for such an
attitude could be obtained.
8. In the circumstances there would appear to be n o advantage t o be gained
from postponing a decision to apply T h e H a g u e C o u r t principles to the U n i t e d
Kingdom.
9. Action Required to Apply The Hague Court Principles.—If it is decided
to a d o p t T h e H a g u e C o u r t principles, it will be necessary—
id) to introduce legislation providing ifor the definition of the n e w limits
of t h e territorial waters of the U n i t e d K i n g d o m , Colonies, Protectorates,
&c;
(b) to consider w h e t h e r certain international treaties, namely the Anglo-French
Fishery Convention of 1839 and the N o r t h Sea Fisheries Convention
of 1882, which lay d o w n limits b a s e d on the previous conception of the
law, should b e abrogated or amended by agreement. This action will
b e necessary to secure t h e full benefits of the new principles for our
inshore fishermen.
10. Recommendation.—For
the reasons given above, my r e c o m m e n d a t i o n is
that a decision in principle should n o w b e taken t o accept the use of the base-line
m e t h o d for the delimitation of territorial waters r o u n d t h e United K i n g d o m and
that the interdepartmental official committee on territorial waters should be
instructed to p r e p a r e specific r e c o m m e n d a t i o n s on the following points.: —
(d) the timing of any public statement o n the subject and the date when the
decision should be p u t into effect, bearing i n mind the desirability of
prior consultation with the C o m m o n w e a l t h a n d with the U n i t e d States
a n d other G o v e r n m e n t s ;
(b) the detailed definition of the exact waters to be claimed around the U n i t e d
K i n g d o m on the basis of a reasonable a n d m o d e r a t e application of the
principles laid d o w n by T h e H a g u e C o u r t ;
(c) the action to be taken in regard to the Anglo-French Fishery Convention
of 1839 a n d the N o r t h Sea Fisheries Convention of 1882;
(d) the action to be taken in respect of territorial waters r o u n d the Colonies,
Protectorates a n d other territories overseas for which Her Majesty's
G o v e r n m e n t are responsible;
(e) the desirability of holding a conference of fishing Powers to discuss
exclusive fishery limits (a suggestion which has been m a d e in the H o u s e
of C o m m o n s and in the Press);
(/) any other points which require consideration before steps can be taken
to introduce the necessary legislation in the H o u s e of C o m m o n s .
A . E.
Foreign Office,
S.W.1,
21st July, 1952.