Lawyers of the Pacific Coast and all lawyers dealing with international law will be interested in President Truman\u27s proclamation of September 28th, wherein he sets forth a constructive policy for the control and conservation of the coastal fisheries of this and other nations. Thus is brought to consummation a campaign originating on this coast some ten years ago to demand that our government review the subject of ocean fisheries and adopt an affirmative policy consistent with existing facts and a rational interpretation of international law

Allen, Edward W.

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Washington Law Review Volume 21 Number 1 1-1-1946 Legal Limits of Coastal Fishery Protection Edward W. Allen Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Natural Resources Law Commons Recommended Citation Edward W. Allen, Legal Limits of Coastal Fishery Protection, 21 Wash. L. Rev. & St. B.J. 1 (1946). Available at: https://digitalcommons.law.uw.edu/wlr/vol21/iss1/1 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. WASHINGTON LAW REVIEWandSTATE BAR JOURNALVOLU!E XXI JANUARY, 1946 NUMBER 1LEGAL LIMITS OF COASTAL FISHERY PROTECTIONEDWARD W. ALLENLawyers of the Pacific Coast and all lawyers dealing with interna-tional law will be interested in President Truman's proclamation ofSeptember 28th,1 wherein he sets forth a constructive policy for thecontrol and conservation of the coastal fisheries of this and other nations.Thus is brought to consummation a campaign originating on this coastsome ten years ago to demand that our government review the subject ofocean fisheries and adopt an affirmative policy consistent with existingfacts and a rational interpretation of international law.In the past, our government frequently acted on the assumption thatthe so-called "Three Mile Rule'--that a nation owns a strip of wateralong its coast just three miles wide-was determinative of all off-shorejurisdictional problems. This was such an easy yardstick to apply thatthere was an overpowering temptation to ignore the origin and historyof this so-called rule, as well as the contemporary foreign practiceconcerning it, except when rum-running or war disturbed this com-placent attitude.Protection of our coastal fisheries seemed to some of our officials tobe such a minor matter internationally that it was not until the Japaneseinvasion of the Alaska salmon fishery threatened largely to destroy thisexceedingly valuable American industry and even to involve this coun-try in bloodshed and war that serious official attention to this subjectcould be secured.It has been incontestably proved that some of the most valuablecoastal fisheries, such as salmon and halibut, are susceptible to deple-tion by over-fishing, though such fishing be pursued more than threemiles off shore. Also, it has been demonstrated by Canada and theUnited States that these same fisheries can be restored and maintainedby proper conservation methods. In the case of Pacific Coast, halibut,almost nine-tenths of which is caught on the continental shelf but morethan three miles off shore, the success of conservation was due to ajoint effort-through the International Fisheries Commisgion created bytreaty between this country and Canada.2110 Fw. REG. 12, 304 (1945).For factual background see: TxomAS W. FULTON, TM SovEmEG=NT OFTHE SEA, Edinburgh and London, 1911; GREGoRY and BAMHs, NoRTH PAcnImcFmims, New York, 1939; Jozo ToMAsEvcE, INTERNATIONAL AGRENas ONCONSERVATION OF MA=E REsoURcEs, Stanford University, 1943.WASHINGTON LAW REVIEWThe international law involved has not been so dear. The modemdevelopment of the law of marginal or territorial waters commencedwith Hugo Grotius in the early part of the seventeenth century. Grotius,though a profound scholar, was also an aggressive advocate of Dutchinterests. He was in thorough sympathy with the two great Dutchambitions relating to the sea: (1) desire to fish for herring off theBritish and Scotch coasts, and (2) desire to promote Dutch seabornetrade. Grotius, therefore, became the great exponent of the doctrine offreedom of the seas. Bynkershoek, another Dutchman, later developedthe so-called cannonball doctrine-that a nation is entitled to paramountjurisdiction over so much, but so much only, of the sea as it can defendfrom the shore with cannon.Although England under the Stuarts opposed the Dutch theories, whenlater England became dominant on the seas, she also became the aggres-sive proponent of the three-mile limitation into which the cannonballconcept had been rationalized on the premise that cannon would nevershoot farther than that distance.England's position was due to a desire to reduce to a minimum thewaters from which her fishing vessels might be excluded or in which hermerchant marine and navy might be subject to restrictions of the coastalstate. That the United States in the first instance acquiesced in thispolicy was largely due to the fact that New England fishermen wishedto frequent the waters adjacent to Canada and Newfoundland. Subse-quently treaties and arbitration defined these Atlantic Coast rights, butthe basis for this country's adherence to the rule was not re-examined.It will hardly be asserted that the origin or promotion of the so-calledthree-mile rule was due to that "sense of justice, humanity, righteous-ness, evolved under the reign of God in the hearts and minds of think-ing men" which Andrew D. White attributes to Grotius.' On thecontrary, it was due to conflicting pressures of dominant national inter-ests of strong naval powers.So much has been written within the last ten years concerning thethree-mile rule4 that it is sufficient to say that two divergent points ofview existed both within and without governmental circles. One grouplooked upon the rule as such a settled and immutable principle of inter-national law that it could only be modified by universal internationalagreement. If, therefore, such universal agreement were unobtainable,S1 HYDE, INTERNATIONAL LAW (2d rev. ed. 1945) 2.'For an historical and analytical review of the subject, see: STEPAN A.RiESENFELD, PRoTEcTIoN OF COASTAL FISHERIES UNDER INTERNATIONAL LAW,Washington, 1942, reviewed in (1942) 52 YALE L. J. 196. For static academicadherence to the Three Mile Rule see: L. LARRY LEONARD, INTERNATIONALREGULATION OF FISHERIES, Washington, 1944, reviewed in (1945) 58 HARv. L.REv. 1106. For constructive criticism of the static academic view of thesubject see: JOSEPH W. BINGHAM, REPORT ON THE INTERNATIONAL LAW OFPACIFIC COASTAL FISHERIES, Stanford University, 1938, reviewed in (1939)14 WASH. L. REV. 91, under title: "Control of Fisheries Beyond Three Miles,"by Edward W. Allen.[VOL. 21COASTAL FISHERY PROTECTIONa nation would have to sit supinely by while foreigners came, across thesea to destroy its coastal fisheries.The other group maintained: (1) that there has never been anythingpeculiarly sacrosanct about the rule; (2) that, in fact, the concept hadnever become an "established principle" of international law, but nomore than a rule of policy for such nations as chose to adopt it-which many nations, perhaps a majority, had not chosen to do-andcould be abandoned at will by any nation which had previously espousedit; (3) that even if the rule should be accepted or adhered to as definingthe bounds of national territory, it did not constitute a geographicallimit for all purposes, and particularly that the assertion of a nation'sright to protect its coastal fisheries an adequate distance off shore is notinconsistent with maintenance of the three-mile limit as defining thebounds of national territory.The view last expressed appears to be that which the President andthe present Secretary of State have adopted. The proclamation definesthe purposes of the United States to be: (1) to establish zones, andexercise fishery control thereover, in areas of the high seas contiguousto our coasts adequate for the conservation of fisheries developed aloneby our nationals. (The proclamation does not confine the zones to thecontinental shelf.) This will apply to practically all of our coastal fish-eries from California to Alaska except such as have been developedjointly with Canada. (2) To establish similar zones in conjunction withanother nation where the fisheries have been jointly developed by itsnationals and ours. This will apply to all the fisheries from Californiato Alaska except those covered by the first provision, as no nationalsother than Canadians can be credited with joint development with us ofany Pacific Coast fisheries. Canada and the United States have alreadydemonstrated ability to cooperate in the control of joint fisheries. (3 Torecognize in other nations rights correlative to ours. (4) Not to affectrights of navigation.-In an executive order of the same date,5 President Truman has placedthe duty of implementing the proclamation in the hands of the Secretaryof State and the Secretary of the Interior. It remains to be seen howpromptly these officials will act and what they will propose. A feelingexists that some of the subordinate officials to whom fishery matters haverecently been assigned in the Department of State may not be in sym-pathy with the proclamation. For this and other reasons an effort isbeing made to induce the Secretary of State in his pending reorganizationto reestablish a fishery division on a high level, such as was done bySecretary Hull, and to appoint to it officials who not only are in accordwith the spirit of the proclamation but have the background and abilityto make immediate application of its principles.5 Executive Order No. 9634, 10 FED. REa. 12, 305 (1945).1946]WASHINGTON LAW REVIEWPast administrative adherence to an unsound international policywhich lacks universal acceptance cannot estop a nation from reconsider-ing such policy and then aligning itself with those nations which, despiteattempts to coerce them, have refused to acquiesce in that which isbasically wrong. Certainly a policy which promotes the unnecessarydestruction of one of the world's greatest natural food resources-thefish of the sea-is both unsound and antisocial. In partial extenuationof past indifference to the subject it should be noted that the exhausti-bility of ocean fisheries is a fact of only recent ascertainment and that theconcept of ocean fishery conservation is wholly modem.It would be legitimate for this country, if so minded, to abandonearlier contentions and claim a greater width for our territorial waters.Our government has not hesitated to abandon principles of internationallaw which were far more firmly established, when it was felt that theexigencies of war justified such a course. Certainly the preservation of agigantic food supply urgently needed by a hungry world should be noless justifiable.However, the proclamation does not purport to abandon the three-milerule. Yet it is clearly inferred that the rule cannot be so applied as tointerfere with this country's right to conserve its coastal fisheries. Therule may still continue to govern the delimitation of territorial boun-daries. In fact, the official release which accompanied the announce-ment of the fishery proclamation, as well as a concurrent proclamationconcerning oil and mineral rights on the continental shelf, states, as tothe latter, that it "in no wise abridges the right of free and unimpedednavigation of waters of the character of high seas above the shelf, nordoes it extend the present limits of the Territorial waters of the UnitedStates." There is nothing novel about such an interpretation of currentinternational law. Indeed, there have been so many exceptions to andqualifications of the three-mile rule that it would be difficult for this orany country to determine what it does embrace. Even England hasskillfully avoided commitment to such an arbitrary interpretation of therule as would interfere with the assumption of whatever position mightappear at any particular time to be in the interest of the Empire.The proclamation does assert, in effect, that this nation has a specialinterest in the fisheries adjacent to its coast which its own fishermenhave exclusively developed and that the welfare of the nation is vitallyinvolved in their conservation, hence that control will be exercised overthem to whatever distance is deemed to be necessary. Less than thiswould be an admission of impotence with respect to a great responsi-bility. International law must be made responsive to realities if it is toattain the wholesome development which the United Nations' Chartercontemplates.[VOL. 21

Legal Limits of Coastal Fishery Protection

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Legal Limits of Coastal Fishery Protection

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