all or most of the provisions needed to handle the joint conservation problems of tuna and bait fish. However, since the CEP countries had not accepted an earlier invitation to join in this cooperative project for stocks of fish extending into the waters off their coasts, it appeared that they found the convention inadequate in one or more respects. The United States delegation stated that if they would explain these deficiencies, it would help in determining the type of agreement which would be satisfactory.

With reference to the drafting of a conservation agreement the U.S. delegation set forth its main ideas in document 7, and later in document 9. These documents outlined a conservation program involving the establishment of an international commission on which each participating state would be represented by a national section having one vote. The commission would carry out scientific research on stocks of fish of interest to two or more member states. In the discussion it was made clear that a state would be considered as having an interest in the conservation of a stock of fish either when it participated in the fishing of such stock or when such stock occurred in waters adjacent to its coast. The expenses of the commission with respect to any specific research program would be allocated to the member countries in relation to their share of the total catch of that stock of fish. The commission would be directed to determine, on the basis of scientific investigations, what, if any, conservation measures would be required to make possible the maximum sustainable productivity of a given stock of fish and to recommend the adoption of such measures to the Governments. Decisions of the commission were to be taken by agreement among all the national sections, but in the event of a failure to reach agreement, technical issues could be submitted to an arbitral procedure for a final settlement.

When the commission, either as a result of its own decision or of the arbitral findings, recommended conservation measures to the member states, these would go into effect automatically within a certain period of time unless a country objected. In the event of such objection, the U.S. proposals suggested the issue could again be submitted to an arbitral procedure for decision, and the award in this case would become binding upon all member states.

AVOIDING FURTHER INCIDENTS

The proposals incorporated in the documents referred to set forth the U.S. position. However, an additional oral statement at the meeting of September 20 was made in reply to the CEP request that consideration be given to means of avoiding further incidents. The U.S. delegation suggested that the conclusion of a conservation agreement along the lines proposed would greatly help avoid further incidents by providing for international regulation of vessels of the parties fishing in the waters off the coasts of the CEP Countries. Rules would be established by agreement among the countries on the proposed international commission and, in the view of the United

1

Santiago Negotiations on Fishery Conservation Problems, U. S. doc. 5, p. 50.

States, should be enforced by each Government against its own vessels. The U.S. delegation observed that it had noted with interest the statements of officials of the CEP Governments that the consideration which should govern activities of foreign fishermen in the waters off their coasts should be that they conform to rules for the conservation of the species, and suggested that so long as the commission established such regulations by agreement of all member states, no further difficulties regarding their adoption and validity should be encountered.

The United States proposals did not, however, prove acceptable to the CEP Countries. On September 23 they stated their disagreement therewith and proposed certain alternative ideas differing in various respects from those advanced by the United States. A major difference in the proposals put forth by the CEP countries had to do with the role assigned to the coastal state in enforcing any conservation measures which the international commission might propose, or which the coastal state itself might wish to put into effect. The CEP countries wished to have the agreement recognize the right of the coastal state to exclusive control of fisheries out to 12 miles from its shores and also in areas which each coastal state would unilaterally designate as constituting "areas traditionally exploited" by it. These areas would, judging from illustrative material presented during the negotiations, extend 50 to 60 miles beyond a 12-mile zone and cover most of the desirable fishing grounds off the coasts of the three South American countries. Fishing within these two classes of areas was to be controlled by licenses issued by the coastal state. In the remainder of the area covered by the proposed agreement, fishing for tuna and bait fish would be permitted subject to existing conservation regulations which would presumably include not only those established by the new commission but also apparently regulations promulgated by the three South American States either individually or jointly. Moreover, Chile, Ecuador, and Peru wished in essence to have exclusive jurisdiction to enforce the regulations within a 200-mile zone and, further, to occupy a preferential position with respect to any quotas governing the quantity, kind, etc., of fish taken which might be established pursuant to the conservation program.

The negotiations at this point began to focus upon what proved to be an insuperable obstacle, namely, the insistence of the CEP countries on inserting in any agreement provisions which would in effect recognize their claims to exclusive jurisdiction over large areas of the high seas off their coasts. The U.S. delegation pointed out that the authority to license fishing operations would involve the authority not only to determine the fees and other conditions of the licenses. but also the authority to withhold them completely.

Moreover, the U.S. delegation pointed out that these provisions were in no sense required for the effective execution of a conservation program. In support of this point the United States amplified and clarified its proposals regarding the controversial issues. It stressed

1 Santiago Negotiations on Fishery Conservation Problems, CEP doc. 3, p. 34. 2 Ibid., U.S. doc. 9, p. 50.

that effective enforcement could be achieved by agreement on the provisions which would accord to the properly constituted authorities of any contracting party the right to board any fishing vessel flying the flag of a contracting party within the convention area if there were reason to believe that a conservation regulation was being violated, and, if supporting evidence was found, to take the vessel into the port and prefer charges against it. It urged that at this point the vessel should be promptly turned over to officials of the country of registry for trial and, if guilty, for punishment of the offense. It was pointed out that this system had been incorporated satisfactorily in several other international fishery conservation agreements.

Furthermore, in order to avoid damaging the juridical position of either side, the U.S. delegation proposed that an article be adopted in the convention clearly stating that it was being entered into "without affecting the position of any contracting state in regard to territorial waters."

Finally, the United States, while unable to accept the idea of exclusive jurisdiction by the coastal state over the "traditional" fishing areas which it might unilaterally declare, made a substitute proposal. It agreed to consider any proposals which the CEP countries might wish to advance to take care of special problems or situations involving small coastal fishing villages in the CEP Countries which were dependent directly upon the sea for their sustenance. This proposal was justified on humanitarian grounds. The U.S. delegation insisted, however, that any cases falling under this general proposal would have to be supported by a factual showing of the dependence of the community upon the sea for its sustenance. This proposal did not prove to be of interest to the CEP states.

CEP DRAFT CONVENTION

At the same meeting at which the United States submitted its document 9, the CEP Countries presented a complete draft convention, modifying in some respects their early proposals. However, the same fundamental obstacles to agreement remained, namely the desire of the CEP states to assert exclusive jurisdiction over large areas of the high seas off their coasts. A new thought was introduced in regard to the trial of alleged violations. The CEP draft suggested the setting up of a special jurisdiction under which the national section of the state making the arrest would try the vessel charged with an offense by means of administrative procedure and would impose penalties. It was further suggested that should the alleged offender wish to appeal he could do so to a special tribunal made up of the two national sections of the commission other than those representing the country of the alleged offender and the country of the arresting officer. In view of the bilateral character of the agreement proposed by the CEP Countries, with Chile, Ecuador, and Peru identified as one party, and the United States identified as the other party, this procedure

1 Ibid., CEP doc. 5, p. 45.

would, in most cases, result in two members of the same party hearing appeals from decisions in which the other member of that party was involved.

NEGOTIATIONS SUSPENDED

At this stage it became clear that the negotiations had proceeded to a point which exhausted the capacity of the delegations to reach agreement within their instructions. The issue posed by the insistence of the CEP countries on exclusive jurisdiction over areas which the United States considered to be high seas in accordance with existing international law was apparently insuperable. The proposal for special tribunals to try offenders posed problems which would at the very least require careful and extended consideration, certainly within the U.S. Government. The proposals of the United States with respect to policing and enforcing the area likewise proved to be beyond the authority of the CEP delegations to accept. Accordingly, a decision was made to suspend the negotiations and a communiqué was issued announcing this decision.'

Differences in the interpretation of scientific information were also brought out in the course of the negotiations. The CEP countries, in their document of September 23,2 advanced a theory of "eco-systems" and "biomas" according to which the interdependence of life on the coastal land with the living communities of the sea, plus the geographic, hydrographic, climatic, and other environmental factors influencing both, were said to create a relationship of such unity as to serve as a scientific basis for the legal claim of coastal states to preferential rights over adjacent waters. The U.S. delegation challenged this concept, pointing out that the idea of the existence of a perfect unity and interdependence between the communities that live in the sea and the coastal populations could have at most limited, if any, validity, such as for example in the well-known case of the guano bird populations of Peru. It stated that, on the contrary, conditions responsible for the existence of rich marine life in the area off the west coast of South America were the result of meteorological and oceanographical factors originating far from those areas-factors such as major wind systems of the Pacific and the interplay of its great oceanic currents. It also pointed out that many stocks of fish of greatest importance, such as tuna, moved widely over a broad area through and beyond the "biomas" of the area in question and that the interrelated communities of living organisms of the ocean, moreover, certainly bore no relationship to national boundaries as established by man on the land.3

Such differences were in part responsible for a substantial variance of opinion regarding the area to be covered by the proposed conservation agreement. The United States urged that, since some of the most important stocks of fish to be conserved (yellowfin and skipjack tunas) ranged all the way from the waters off Chile north to California, the con

1 Santiago Negotiations on Fishery Conservation Problems, annex 2, p. 67. 2 Ibid., CEP doc. 2, p. 30.

3 Ibid., U. S. doc. 8, p. 36.

vention should cover this entire area and be open to adherence of other American coastal states contiguous to these waters. Otherwise, only divided and therefore less effective attention could be given to those important stocks of fish. The CEP countries made it clear, however, that their interest was confined to waters off their coasts and that they were not prepared to enter into a broader agreement. The United States finally stated that, if the CEP states found it impossible to participate in a broader arrangement, it would, should other outstanding differences be resolved, agree to work out with them a convention limited to the four negotiating states. However, in that case the United States would suggest certain changes in the functions to be assigned to the proposed commission to avoid conflict or duplication with the research activities of other organizations.

PURPORT OF 1945 PROCLAMATION

The U.S. delegation was interested to note during the course of the negotiations that official or public opinion in the CEP Countries labored under considerable misunderstanding in respect to facts relating to U.S. policy regarding fishery conservation. For example, the purport and effect of the proclamation issued by the President of the United States in 1945 2 concerning fishery conservation was widely misinterpreted as constituting a precedent for unilateral claims to large offshore areas of high seas for conservation purposes. The U.S. delegation repeatedly made clear that the United States through the Truman proclamation did not claim exclusive jurisdiction over the high seas off its coasts but on the contrary recognized that when foreign fishermen participated in fisheries off the coast of the United States beyond the 3-mile limit, conservation regulations would be worked out with the agreement of the governments concerned. It explained that only when U.S. nationals alone were involved would the United States establish the conservation regulations unilaterally in the exercise of the right of any government to regulate its own. nationals on the high seas.3

Another misconception of U.S. policy at times reflected in statements appearing in the local press during the course of the negotiations was that the United States represented those countries which wished to be free to fish without restraint anywhere in the world, as opposed to the CEP countries, which represented the desire of other states to protect and conserve fishery resources. The U.S. delegation took such opportunities as it could to reiterate the firmly established policy of the United States to promote the conservation of fishery resources in which it had an interest in any area of the world. It was

1 Ibid., U.S. doc. 9, p. 50.

2 "Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas"-Proclamation by the President of the United States, Sept. 28, 1945; for text, see ibid., annex 3, p. 68, and Department of State Bulletin of Sept. 30, 1945, p. 486. [Also 10 Fed. Reg. 12304.]

See "Recent Developments Affecting the Regime of the High Seas," by Herman Phleger, Legal Adviser, Department of State, Department of State Bulletin of June 6, 1955, p. 934 [supra, doc. 27].