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Foreign Policy and Fidelity to Law: The Anatomy of a Treaty Violation

Published online by Cambridge University Press:  27 February 2017

John Morton Moore
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On April 13 President Ford signed a bill unilaterally to extend the fisheries jurisdiction of the United States from the present 12-mile limit to 200 miles onto the high seas (and even thousands of miles at sea with regard to salmon) effective March 1, 1977. Barring a sudden breakthrough in the law of the sea negotiations, as of March 1, 1977 the Coast Guard may begin arresting vessels on the high seas pursuant to this act in violation of the treaty obligations of the United States. This action again exposes the inadequacy of the present foreign policy process for taking an international legal perspective into account. It may also prove the greatest mistake in the history of U.S. oceans policy.

Type
Editorial Comments
Information
American Journal of International Law , Volume 70 , Issue 4 , October 1976 , pp. 802 - 808
Copyright
Copyright © American Society of International Law 1976

References

1 See the “Statement of the President Upon Signing the 200-Mile Fishing Legislation,” April 13, 1976. 12 Weekly Compilation Of Presidential Documents 644 (1976), full text in Contemporary Practice section, infra p. 820.

2 See, e.g., Moore, , Law and National Security, 51 For. Aff. 408 (1973)Google Scholar; Falk, , Law, Lawyers, and the Conduct of American Foreign Relations, 78 Yale L.J. 919 (1969)CrossRefGoogle Scholar.

3 See the “Informal Single Negotiating Text,” Arts. 50-62, 53 and 54. UN Doc. A/CONF.62/WP.8, 14 ILM 682 (1974). See also the “Revised Informal Single Negotiating Text,” Arts. 50-52, 53, 54, and 55 UN Doc. A/CONF.62/WP.8/Rev. 1/Part II (May 6, 1976).

4 This early Senate vote was 68 in favor, 27 opposing, and 5 not voting. See 20 Cong. Rec. S.21130 (daily ed. Dec. 11, 1974).

5 See the testimony of John Norton Moore in Hearings on S.961 Before the Senate Comm. on Armed Services, 93rd Cong., 2d Sess., Nov. 19, 1975.

6 15 UST 471, TIAS No. 5578, 499 UNTS 311, 52 AJIL 858 (1958).

7 These new regulations were explained in a letter of September 5, 1974 from John Norton Moore to the Chairman of the Senate Commerce Committee, Senator Warren G. Magnuson.

8 17 UST 138, TIAS No. 5969, 559 UNTS 285, 52 AJIL 851 (1958).

9 See the floor debate on the Cranston-Griffin Article 7 amendment to S.961. 122 Cong. Rec. S.701-10 (daily ed. Jan. 28, 1976).

10 This was done through personal letters and memoranda to all Senators and Congressmen, systematic coverage of staff, and individual appointments with each Senator who would grant an appointment (over half the Senate) and many Congressmen, a high level phone campaign by the executive branch where it was felt to be useful as well as, of course, the usual executive branch-congressional relations efforts.

11 One counterargument heard in the House debate as to the illegality of the bill was that it did not violate the 1958 Geneva Convention on Fishing and Conservation since the Soviets and Japanese were not parties to that Convention! No one pointed out in rebuttal that the United States was a party and would be likely to be arresting signatories that were fishing off the U.S. coast.

12 At one point the Law of the Sea Office succeeded in writing a paragraph in opposition to the 200-mile bill into Secretary Kissinger's testimony on another subject before the Senate Foreign Relations Committee. This arrangement was worked out with the pre-agreement of the staff of the Senate Foreign Relations Committee. An hour before the testimony was to be delivered Kissinger personally removed the paragraph. In fact, I had started for the Hill and received a radio message from the Secretary that the paragraph had been taken out and I need not be present for his testimony.

Both Acting Secretary of State Kenneth Rush and Secretary Kissinger are on record as to the illegality of the 200-mile fishing bill. Even President Ford in his signing statement of April 13, 1976 admitted that “absent affirmative action, the subject bill could raise serious impediments for the United States in meeting its obligations under existing treaty and agreement obligations.” He went on to say “the bill contemplates unilateral enforcement of a prohibition on foreign fishing for native anadromous species, such as salmon, seaward of the 200-mile zone. Enforcement of such a provision, absent bilateral or multilateral agreement, would be contrary to the sound precepts of international jurisprudence,” and “the enforcement provisions of H.R.200 dealing with the seizure of unauthorized fishing vessels, lack adequate assurance of reciprocity in keeping with the tenets of international law.” Statement of the President, note 1 supra.

13 See, e.g., the transcript of the January 22, 1976 interview with President Ford by newsmen in New Hampshire. Reports of White House capitulation on the 200-mile bill circulated widely as early as the fall of 1975. On October 31, 1975 the San Diego Union reported that “the Ford Administration has agreed to support extension of the US fishing zone to 200 miles from its present 12-mile limit, Representative Robert Leggett said here yesterday.” More specifically the Union quoted Representative Leggett, who chaired the House Subcommittee pushing the 200-mile bill, as saying “I got a committment from the White House that if some of their terms can be satisfied there will be no veto.” See the San Diego Union, Oct. 31, 1975.

14 The Legal Adviser, Monroe Leigh, and the Assistant Attorney General for the Office of Legal Counsel, Antonin Scalia, were vigorous in seeking White House recognition of the importance of adherence to international law.