The continuing Third United Nations Law of the Sea
Conference, which met at Caracas, Venezuela, during the
summer of 1974, has focused the attention of the community
of nations on sovereign rights over coastal seas in
international law# Littoral nations have become concerned
with their potential right to exercise exclusive jurisdiction
for various purposes as far seaward from their coastline as
200 miles# Such a broad expanse of high seas as this 200
mile belt has traditionally been subject to the lawful
exercise of high seas freedoms, especially navigation and
fishing by all nations* It is the limiting of present high
seas freedoms within the proposed 200 mile belt which has
caused a problem for the United States# As a matter of
municipal law, the right to exercise jurisdiction and
retrieve resources within the seas adjacent to the coastline
of the United States Is allocated between the several states
and the federal government.The federal government and the states have been
disputing the property rights and jurisdictional rights
over the coastal sea since at least 1947 when the United
States Supreme Court handed down its decision in United
States v» California,*- That decision determined that rights
of the federal government seaward of low-water mark were
paramount to any rights of the states. Further, the
justices stated that rights held over this area of
coastal seas, or adjacent seas, were held by virtue of
the ability of the federal government to exercise the
rights of the nation in international law. Therefore the
Court determined that the exercise of those rights over
portions of the coastal seas mist as a matter of existing
municipal law be an exclusive exercise of jurisdiction by
the United States. This exercise of sovereign rights
over the coastal sea was described as the product of an
exercise of "external sovereignty" by the federal
government.Because of the federal system of government in the
United States the individual states were able to contest
property rights and jurisdictional rights of the federal
government seaward of low-water mark. Such contest did
not challenge the California decision to the extent that
coastal waters were described as held by the exercise of
external sovereignty or sovereign authority of the nation.
Rather the states attacked in a series of litigations
which claimed that as a matter of "internal sovereignty",
that is, the allocation of governmental rights between
the states and the federal government, it was the states
and not the federal government, which held the right to
exercise jurisdiction and retrieve resources within the
coastal seas, even though those seas were held by
authority of the national exercise of sovereignty* The
states were unsuccessful in achieving the objective of
such litigation, but nonetheless in 1953 Congress enacted
the Submerged Lands Act which essentially quitclaimed
property rights in the coastal seas to the states within
the area of the territorial sea* However, both the State
of Florida and the State of Texas were able to establish
historic rights over resources in the Gulf of Mexico out
to nine nautical miles from the coastline of the United
States and their grant extended to these historic areas
as a matter of municipal law. Other states along the Gulf
of Mexico were unsuccessful in attempting to establish
similar historic rights.Control over resources out to nine nautical miles
from the coastline gave the State of Florida and the State
of Texas a valuable property right over oil deposits out
to nine nautical miles from shore, and eventually the grant
came to include a Jurisdictional right to control valuable
offshore fisheries, especially shrimp through the exclusive
right to exploit resources beyond the boundary of the
territorial sea out to nine nautical miles from the
coastline* Prompted by the success of the State of Florida
and the State of Texas, as well as by the discovery of oil
deposits in the continental shelf under the Atlantic Ocean
and a desire to manage valuable offshore fisheries, now
over-fished, the states of the Atlantic seaboard in 1969
entered into litigation with the United StatesThat
litigation was primarily an attempt by most of the original
states, former British colonies, to establish that they
held exclusive property rights and jurisdictional rights
over their coastal seas since colonial times. The
establishment of those alleged historic rights encompassed
arguments that English law and international law of the
seventeenth and eighteenth centuries recognized such
exclsuive rights over coastal sea resources as inherent
in the sovereign status of a nation in the community of
nations. When these rights were argued for in the seas
adjacent to the American colonies the position taken by
the states was that colonial charters transferred the
rights of exclusive exploitation of resources and jurisdiction
over the coastal seas to the colonies, and that these rights
remained with the states at the time of the revolution, 1776,
and were not granted to the federal government in the 1789
Constitution,It is the purpose of this dissertation to analyse the
historical evidence as to the seventeenth and eighteenth
century rights of Great Britain over its adjacent seas.
By examining international law of this two-century period
not only will the rights which Great Britain could have
claimed in the seas adjacent to the British Isles be
identified, but also identified will be those rights
which could have been exercised in the seas adjacent to
the American colonies. Moreover, this dissertation will
examine English law of the period to determine whether
rights were claimed as a matter of municipal law in the
seas adjacent to the British Isles as well as those
adjacent to the American colonies. Then it must be resolved
whether such rights were passed to the colonies through
their charters or whether they were reserved in Great Britain
and thus subsequently applied by the United States, not the
individual states, after the War of the American Revolution,
1776-1783.Two analytical tools have been adopted in order to
carry out this analysis and they are presented at this
point in order to familiarize the reader. The first tool
of analysis is the "possession standard". This standard
is employed in order to determine the degree of control
exercised in the area of the coastal seas by Great Britain
and the American colonies so as to determine whether a
claim of ownership or some lesser claim of a limited
jurisdiction can be supported in fact and law. Hie second
analytical tool is analysis according to the "protective
jurisdiction test". This is a test which when applied to
municipal law and international law of this period reveals
whether there was an implicit intent to claim exclusive
general jurisdiction or ownership over the coastal seas,
or whether there was only a limited exercise of littoral
national jurisdiction for the peace, order and safety of
the nation.Employment of both these tools presents an analysis
which will accurately identify the authority and rights
of Great Britain over coastal seas during the seventeenth
century and eighteenth century. With respect to the United
States, and the problem of allocation of these rights under
its municipal law and its application of such rights in
international law, this analysis will determine whether
the individual coastal states have historic rights to
exclusive exploitation of property and resources in the
adjacent sea as well as general jurisdiction over the seas
adjacent to the coastline of the United States, If such
historic rights do not exist the claims of the Atlantic
seaboard states to the exclusive right to manage and
extract resources of the continental shelf mast fail# Thus
the rights of these states will not be able to conflict
with the exercise of the foreign affairs power under the
United States Constitution by the federal government now
formulating policy for exploitation of the world's ocean
resources to be presented at the continuing Third United
Nations Conference on the Law of the Sea
