Szekely, Alberto

English

University of New Mexico

Volume 22 
Issue 1 Winter 1982 
Winter 1982 
A Commentary With the Mexican View on the Problem of 
Maritime Boundaries in U.S.-Mexican Relations 
Alberto Szekely 
Recommended Citation 
Alberto Szekely, A Commentary With the Mexican View on the Problem of Maritime Boundaries in U.S.-
Mexican Relations, 22 Nat. Resources J. 155 (1982). 
Available at: https://digitalrepository.unm.edu/nrj/vol22/iss1/10 
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By Alberto Szekely*
A Commentary With the Mexican
View on the Problem of Maritime
Boundaries in U.S.-Mexican Relations
On May 4, 1978, Mexico and the United States signed in Mexico
City a Treaty on Maritime Boundaries. This bilateral international in-
strument was submitted by President Carter to the U.S. Senate for its
advice and consent on 19 January 1979.1 The Senate has not taken
action on the matter; therefore the Treaty has not come into force.
The purpose of this paper is to analyze the Mexican view on the mat-
ter, as well as the views expressed by Karl Schmitt in his article being
jointly published with this one.
On the basis of the consensus which emerged in 1976 at the Third
United Nations Conference on the Law of the Sea, the United States
proceeded to establish a 200-mile Fishery Conservation and Manage-
ment Zone.2 Almost simultaneously, Mexico established an Exclusive
Economic Zone with the same breadth.' Up to that moment, the two
countries had only established maritime boundaries up to 12 miles
from the coast, through a 1970 Treaty.' It was thus necessary to pro-
ceed to the delimitation of the new boundaries up to 200 miles. The
effort was undertaken jointly with the negotiation of a fisheries agree-
ment between the two neighbors, to give access to U.S. fishing vessels
to some surpluses of Mexican marine living stocks.'
Mexico and the United States have a long and rather sad history of
territorial delimitation disputes.6 Some of them, such as the one over
the El Chamizal, lasted for over a century. Others, which arose from
U.S. policies of territorial expansion, ended in the loss for Mexico of
substantial portions of its territory to the United States. However,
maritime boundaries have been set rather easily, through quick nego-
tiations.
At least that was the surprising initial impression given by the rap-
* Research Fellow, Institute of Legal Research, National Autonomous University of Mex-
ico.
1. Ex. F. 96-1, "Three Treaties Establishing Maritime Boundaries Between the United
States and Mexico, Cuba and Venezuela" (U.S. Government Printing Office: Washington),
1979.
2. Public Law 94-265 (90 Stat. 331).
3. Diario Oficial, 6 and 13 February, 1976.
4. See U.N. Legislative Series (ST/LEG/SER.B/18, p. 417).
5. See U.N. Legislative Series (ST/LEG/SER.B/19, p. 420).
6. C. SEPULVEDA, LA FRONTERA NORTE DE MEXICO (1976).
NATURAL RESOURCES JOURNAL
idity and easiness with which the two negotiating teams reached an
agreement on 24 November 1976, through an Exchange of Notes re-
garding the delimitation of the boundaries between the two 200-mile
zones, and which was subsequently made permanent and formalized
through the above-mentioned 1978 Treaty.
The negotiators met in April of 1976 for two short sessions. They
immediately agreed that they would negotiate on the basis of the
provisions of the Informal Single Negotiating Text,7 which was the
instrument emerging from the Third Session of the referred to Law
of the Sea Conference which, so far, was the best evidence of the
agreements reached there. The Text provided in its Article 61 for the
delimitation of adjacent or opposite 200 mile zones on the basis of
equitable principles and with the use of the median or equidistant
line. The meetings were suspended in order to give time to identify
the points which would constitute the said line.
Two weeks later the negotiations resumed, and the identified
points were provisionally agreed upon. This provisional agreement
was embodied on the Exchange of Notes of 24 November 1976. In
sum, it all was a mere technical exercise, where no political or legal
difficulties arose, despite the fact that Mexico had been the victim of
a grave translation mistake on the part of those employees of the
U.N. Secretariat entrusted with producing the Spanish version of the
Informal Single Negotiating Text (ISNT). This version varied con-
siderably from the original English, on a matter directly related to
the delimitation of the two zones. Article 132 of that instrument
provided that "Rocks which cannot sustain human habitation or eco-
nomic life of their own shall have no exclusive economic zone. .. ."
The Spanish version, however, read that "Islands which cannot sus-
tain human habitation or which do not have economic life of their
own, shall have no exclusive economic zone ......
The mistake was literally embodied in the Mexican Decree which
created the Exclusive Economic Zone.8 Obviously, the meaning of the
two versions was completely different. Under the erroneous Spanish
version, not only rocks, but islands, were subjected to such limiting
rules. Also, it precluded those islands which did not have an economic
life of their own, but which were capable of eventually attaining it,
from having an Exclusive Economic Zone.
Mexico became aware of this lamentable mistake only shortly be-
fore the beginning of the delimitation talks with the United States. It
was the English text which was used during the negotiations, which
7. A/CONF. 62/WP.8.
8. See supra note 3.
[Vol. 22
A COMMENT
means that no detrimental effects were suffered by the United States
as a result of this situation.
Therefore, the U.S. side accepted the delimitation of the Mexican
Exclusive Economic Zone from certain islands in the Gulf of Mexico
(not rocks which cannot sustain human habitation or economic life
of their own), just as much as the United States itself had delimited
its 200-mile zone from certain islands both in the Gulf and in the
Pacific. In both cases, there are islands which are not inhabited or
which do not have an economic life of their own, but which are not
only capable of attaining both requirements but, also, are not subject
to the regime described above anyway, simply because they are not
mere rocks. Moreover, the first proposal of a chart containing the
drawing of the dividing line was made by the U.S. side, a chart which
was merely confirmed by Mexico. This line was drawn from the said
Mexican islands. No discussion was sustained during the talks on the
subject of the islands. The agreed line was only simplified practically
in order to straighten it as much as possible, care being taken, of
course, of mutually compensating for the small affected areas in each
side of the line.
When hearings were conducted at the Senate Foreign Relations
Committee on 12 June 1980, a problem developed as a result of a
statement made by a Professor of Geology at Princeton University,
Dr. Hollis D. Hedberg.9 According to him, the Senate should not rat-
ify the Treaty because it was not in the best interest of the United
States. His arguments were the following: The drawing of the line
from certain Mexican islands off the Yucatan Peninsula is inappro-
priate, as it gives Mexico an important chunk in the central Gulf of
Mexico which has great potential in the way of deposits of minerals
or hydrocarbons. The Mexican Zone should be measured from the
continental coast. Then, the area left between the U.S. line and the
Mexican line should be divided between the two countries. The result
of this exercise is that much of the part that belonged to Mexico
under the drawing of the line from Mexican islands would pass to the
United States side.
In response to that statement, the representative from the United
States Department of State, Mark B. Feldman (Deputy Legal Ad-
viser), stated that Hedberg was completely wrong, since it was not
only an internationally accepted principle that States are entitled to
draw the lines from islands, but the United States itself has proceeded
to do so to its advantage, for instance, in the Florida Keys or in the
Alexander Archipelago in southeastern Alaska. This, however, did
9. Executive Report No. 96-49 (August 5, 1980).
January 1982]
NATURAL RESOURCES JOURNAL
not refute the proposal being made by Professor Hedberg. Instead,
Feldman embarked on a baseless explanation of the alleged quid-pro-
quo built in the Treaty, stating that Mexico had been given the cen-
tral part of the Gulf of Mexico, whose resources are under such deep
waters that their exploitation is many years away, in exchange for a
much larger area for the United States in the Pacific, an area which is
rich in fishery resources. There was absolutely no such bargaining at
all. The lines drawn were exclusively the result of strict application
of the criterion of the median or equidistant line. Mexico would have
absolutely opposed such a trade-off. In order to respond properly to
Hedberg's daring proposal, it was not necessary to resort to a misrep-
resentation of facts.
Still, Mexico should not be overly concerned with the situation
provoked by Hedberg, and by Feldman's lack of an answer. It is not
encouraging to see the Treaty stuck in the Senate as the result of a
misguided proposal which found an audience among the Senators be-
cause it sounded nationalistic and, thus, attractive in a time of great
xenophobia in the United States. There is absolutely no legal issue in-
volved, no possibility of a dispute detrimental to Mexico, because
what Hedberg has proposed is not only wrong, but illegal as well.
Mexico should be patient and wait for this situation to be cleared
domestically in the Senate by more lucid brains. In the meantime,
the Exchange of Notes continues fully in force.
If the Hedberg proposal for the drawing of the Mexican line only
from the continental coast was attempted, and then the marine space
situated between the outer limits of the two 200-mile zones was di-
vided between the two countries, they would be appropriating for
themselves, as for the waters, a part of the High Seas, and in regards
to the soil and subsoil, they could also be taking a part of the Inter-
national Sea-Bed area which has been declared as the Common Heri-
tage of Mankind. 10
In either case, the division would constitute a clear violation of in-
ternational law, and the community of States would be wronged.
President F. D. Roosevelt once proposed to his Secretary of State the
division of the Gulf between Mexico and the United States (he forgot
Cuba), but abandoned his plans when told of the highly illegal nature
of such an act.' I
On the other hand, if the United States rejected the Treaty on the
basis that it could not accept the drawing of the line from the Mexi-
can islands involved, the application of such criterion (which in itself
10. General Assembly Resolution 2749/XXV (December 1970).
11. 4 WHITEMAN DIGEST OF INT'L. L. (1975).
[Vol. 22
would be contrary to international law, as the said islands are not
rocks and, in any case, can easily sustain human habitation and attain
an economic life of their own, say, with the establishment of a fishing
community or, if necessary, a desalting plant) to itself would gravely
affect the delimitation of its maritime boundaries in several corners
of the globe.'
It is, then, a non-issue.
In his paper, Karl Schmitt makes some statements which require
some brief comment. First of all, he merely notes that a boundary
treaty was proposed, and that the Senate has not ratified it, but fails.
to make an analysis of the reasons for such a situation, as done herein
above. Moreover, only a very small part of his paper is devoted to the
boundaries question.
He asserts that when Mexico created its Exclusive Economic Zone,
it declared the waters of the Gulf of California as "internal waters."
This simply never happened. 3 Also, he states that the negotiation of
the line between the two 200-mile zones entailed "technical compli-
cations such as islands and, in the eastern Gulf of Mexico, overlap-
ping boundaries caused by claims of third countries, such as Cuba.
No such complications ever arose during the negotiation, and no
overlapping exists with any boundary of the only possible third State,
that is, Cuba.
Schmitt states that, in the Law of the Sea Conference, Mexico
argued for international control over the resources of the high seas,
whereas the U.S. favored open access. There is a clear error here, as
those two conflicting positions were indeed held by the two coun-
tires but as applied to a totally different marine zone, that is, the in-
ternational sea-bed area, and not to the High Seas, where both States
recognize the sanctity of the traditional freedoms under international
law.
Finally, Schmitt suggests the possibility of U.S.-Mexican joint ven-
tures for the exploitation of the rich deposits of polymetallic nodules
in the floor of the Mexican Exclusive Economic Zone. It must be
pointed out, in this respect, that Mexican legislation in force now
would not allow for such joint ventures, and that they would in any
case be highly improbable given the poor record of the two countries
in the field of the exploitation of the natural resources of Mexico.
12. Feldman and Colson, The Maritime Boundaries of the United States, 75 AJIL No. 4
729-63 (October 1981).
13. A. SZEKELY, MEXICO Y EL DERECHO INTERNACIONAL DEL MAR, Ch. IV
(1979).
January 19821 A COMMENT


A Commentary With the Mexican View on the Problem of Maritime Boundaries in U.S.-Mexican Relations

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A Commentary With the Mexican View on the Problem of Maritime Boundaries in U.S.-Mexican Relations

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