¹ Department of State, Bulletin, Sept. 30,1945, pp. 484–487; reprinted below, Supplement, p. 45. The President of Mexico issued a proclamation somewhat similar in effect on Oct. 31, 1945: The New York Times, October 31, 1945, and El Tiempo (Monterrey), November 9, 1945, p. 4.

^1a The New York Times, November 4, 1945.

² same, May 30, 1945, and June 26, 1945.

³ Same, June 26, 1945; 14 U. S. Law Week (Oct. 23, 1945), p. 2248.

⁴ Above, note 3.

⁵ H. J. Res. 225, 79th Cong., 1st Sess. This was introduced in the Senate September 24th and referred to the Senate Judiciary Committee for consideration. See also S. J. Res. 48, 79th Cong., 1st Sess. It is designed to “quiet the titles of the respective States . . . to lands beneath tidewaters and . . . navigable waters within the boundaries of such States . . .”

⁶ The word “tidelands” is used, ambiguously, in two senses: (1) to describe the marginal or territorial sea extending for three marine miles or to the state boundary from low-water mark; (2) to describe the lands covered and uncovered by the ebb and flow of the tides. Beside the tidelands and submerged lands out to the three-mile limit or the state boundary in coastal states, the lands renounced include all lands beneath inland navigable lakes and rivers and the beds of the Great Lakes to the International Boundary. See brief, “The Facts About the Legislation Quieting State Titles to Lands Beneath Tidal and Navigable Waters,” a statement prepared by Robert W. Kenny, Attorney General of California, and Clary, William W., Special Assistant Attorney General of California, 42 Google Scholar pp., at p. 4.

⁷ Below, pp. 64–66.

⁸ The State Department a few years ago refused to license an American citizen desiring to build a platform or artificial island in the Gulf of Mexico, but suggested that he could proceed at his own risk if foreign countries did not object. Manuscript letter of Department of State, September 10, 1918, Hackworth, Digest of International Law, Vol. II, p. 679. The present proclamation seems to modify this view as to resources of the soil and subsoil on the continental shelf.

⁹ “Whatever may be justly regarded as the produce of human art, industry and self-denial must be assigned to those who make these exertions as their merited reward.” Fur Seal Arbitration, IX, p. 50; Leonard, L. Larry, International Regulation of Fisheries, Washington, 1944, p. 70 Google Scholar.

¹⁰ The proclamation on fisheries of September 28,1945, reads: “Where such activities have been or shall hereafter be developed and maintained by its nationals alone, the United States regards It as proper to establish explicitly bounded conservation comes in which fishing activities shall be subject to the regulation and control of the United States.” Department of State, Bulletin, September 30,1945, p. 486. Lord Russell in the Fur-Seal Arbitration contrasted the claim over seals with the claim over sedentary fish. Leonard, p. 79. Hitherto, national claims for the protection of fisheries beyond the three-miles limit seem to have met with opposition from foreign states. Leonard, p. 171.

¹¹ Leonard, pp. 146 and ff.

¹² Any detailed study of the claims of various national states and the extent of recognition of those claims by other states is unnecessary to this article. A survey of the subject will be found in Fraser, Henry S., “The Extent and Delimitation of Territorial Waters,” in 11 Cornell L. Quar. (1926) 455 Google Scholar; Crocker, H. G., Extent of the Marginal Sea, Washington, 1919, p. 633 Google Scholar; the comment to Article 2 of the Draft Convention prepared under the auspices of the Harvard Law School in anticipation of the Codification Conference of 1930 at which agreement proved impossible to achieve; Leonard, pp. 166 and ff.; Fulton, T. W., The Sovereignty of the Sea, New York, 1911, p. 376 Google Scholar; Riesenfeld, Stefan A., Protection of Coastal Fisheries under International Law, Washington, 1942 Google Scholar, in which the practice of each country is outlined. Fulton, p. 697, discusses the inadequacy of the three-mile limit.

¹³ See the discussion approving varying zones for different purposes, ”Protective Jurisdiction over Marginal Waters,” by Philip Marshall Brown and others, 17 Proceedings of the American Society of International Law (1923), p. 15. See also E. Borchard, in 6 same (1912), p. 141; (1923) 23 Columbia L. Rev. 472; also, 11 Cornell L. Quar. 455 at 461; (1936) 21 same 651.

¹⁴ Proposed by Mr. Gidel for the French delegation at the conference of 1930 and still supported by the French. See de Lapradelle as quoted in Riesenfeld, work cited, p. 66. Extended jurisdiction for sanitary, customs, police, or neutrality control, is exercised by various states, by statute or treaty.

¹⁵ Report on the International Law of Pacific Coastal Fisheries (1938).

¹⁶ Fur Seal Arbitration, Vol. I, p. 54; Leonard, p. 80.

¹⁷ Countries which insisted on the inclusion of this clause were Belgium, Chile, Denmark, France, Greece, Italy, Norway, Poland, Spain and Sweden. The three-mile rule was included in the treaties with Cuba, Germany, Great Britain, Japan, the Netherlands and Panama.

¹⁸ See the account of the Moray Firth controversy with Norway in Bingham, work cited, at p. 50. But see Leonard, pp. 48–55.

¹⁹ Sir Cecil Hurst, “Whose is the bed of the sea? Sedentary Fisheries Outside the Three-Mile Limit,” British Yearbook of International Law, 1923–1924, pp. 34 and ff., at pp. 40–43.

²⁰ Jessup, P. C., The Law of Territorial Waters and Maritime Jurisdiction, New York, 1927, p. 14 Google Scholar.

²¹ Fulton, pp. 697–698. Oppenheim supports on five grounds, notably occupation, the national claim to exterritorial resources on or under the bed of the contiguous sea, provided there is no impairment of navigation. Oppenheim, International Law, 5th ed. by Lauterpacht, London, 1937, Secs. 287, b and c.

²² WilliamsWilliams, John Fischer and Wilson, G. Grafton in their report to the Institute of International Law, 1935, on the exploitation of the resources of the sea, as reprinted in Bingham, p. 62 Google Scholar.

²³ North Sea Fisheries Convention of May 6, 1882, Leonard, p. 35; Bering Sea Fur Seal Convention of July 7, 1911, same, p. 55; Tomasevich, J., International Agreements on Conservation of Marine Resources, Stanford, 1943, p. 107 Google Scholar; Manchester v. Massachusetts, 139 U. S. 240 (1891); Letter of Department of State, 1926, League of Nations Document C.196.M.70.1927.V p. 160. See also Daggett, A. P., “The Regulation of Maritime Fisheries by Treaty,” this Journal , Vol. 28 (1934), pp. 693 Google Scholar, 702. The author also discusses regulation of fisheries by treaty within territorial waters. The various halibut treaties of the North Pacific are discussed by Tomasevich, by Leonard p. 110, and by Daggett p. 715.

²⁴ See Jessup, P. C., Exploitation des richesses de la mer, in Recueil des Cours de VAcademie de Dr. Int., Vol. IV (1929)Google Scholar. League of Nations, Pub. C.351(b).M.145(b).1930V.

Advocating an extension of its territorial waters to twelve or fifteen miles (for fishing purposes) and, we may add, for oil exploration of the submarine soil, the Portuguese Permanent Commission on International Maritime Law states: “(Then) each state would have its continental shelf included in its own territorial waters and would consequently be able in that area to adopt such rules as it might hold to be most desirable for the preservation of the species.” They add, “Riparian states are alone able to exercise active, constant, and efficient economic control over their coastal zone.” Bingham, p. 57.

^24a Comment in 39 Col. L. Rev., pp. 317–326, at 319.

²⁵ See Oklahoma v. Texas, 258 U. S. 574 (1922); Gulf Refining Co. v. Grace, 165 La. 979 (1928); Ernst v. Savidge, 110 Wash. 81 (1920); Carr v. Kingsbury, 111 Cal. App. 165 (1931), cert, denied: 284 U. S. 641 (1931).

²⁶ See Alaska Gold Recovery Co. v. Northern M. &. T. Co., 7 Alaska 386 (1926); 31 Statutes 321 (1900), 48 U.S.C.A., See. 64 (1930); Senate Bill 3493, 75th Cong., 3rd Sess., introduced by delegate Dimond.

²⁷ ” Attorney General v. Chambers (1864), 4 de G. M. and G. 205; Lord Advocate v. Wemyss (1900), A. C. 48; Attorney General v. Hanmer (1908), 6 W.R. 804; Hurst, as cited, pp. 49–50; and 21 and 22 Viet. c. 119 (1858).

²⁸ Lewis Bluepoint Oyster Co. v. Briggs, 229 U. S. 82 (1912); State v. Taylor, 3 Dutcher 117 (N. J. 1858); Daniels v. Homer, 139 N. C. 219 (1905); McCready v. Virginia, 94 U. S. 391 (1876); State v. Van Vlack, 101 Wash. 503 (1918).

²⁹ Western Australian Pearl . . . Fishery . . . Act of 1889. Orders in Council, Ceylon Regulation No. 3, 1811, for the protection of H. M. pearl banks.

³⁰ Orders in Council of Ceylon, Regulation No. 18 (1890). See Annakumaru PMai v. Muthupayal (1903), 27 Indian L. Rep. (Madras Series) 551. We might include sponges and other vegetables or minerals. See the Skiriotes case, below, and Leonard, at p. 145.

³¹ Riesenfeld, p. 76.

³² Riesenfeld and Bingham, as cited; Fulton, p. 697. The extension of jurisdiction for the enforcement of Hovering Acts and for purposes of preserving health, the revenue, exercising police jurisdiction, etc., is not here discussed.

³³ Thomas Baty, “The Three Mile Limit,” in this Journal, Vol. 22 (1928), p. 503.

³⁴ Secretary Olney in 1896 expressed a willingness in concurrence with other countries to admit a six-mile marginal sea. Moore, Digest of International Law, Vol. I, p. 733: Leonard, p. 167. There is much academic encouragement of the suggestion. Leonard, p. 166.

³⁵ League of Nations document C.74M.39.(1929).V, pp. 129–130.

³⁶ Riesenfeld, p. 251. The Alabama and the Kearsarge without United States objection were escorted by a French vessel to a distance of seven miles in the English Channel before they began their engagement.

³⁷ Gordon Ireland, “Marginal Seas Around the States,” in 2 Louisiana L. Rev. (1939), pp. 252, 436, at p. 265, note 73.

³⁸ (1933) A. C. 156.

³⁹ (1940) 19 Nebraska L. Bull. 467.

⁴⁰ It has been announced that the two countries have reached an agreement on the subject. See Message of the President of Venezuela to the Congress, April 19,1941, and simultaneous statement published the same day in Caracas and London.

⁴¹ The history and development of the Alaskan salmon fishery, which doubtless gave rise to the President’s claim, is given in Leonard, pp. 121–140, 156–163.

⁴² Leonard summarizes as follows (pp. 175–176) his objection to a national or treaty regulation of high sea fisheries:

This conclusion is based upon the following: (1) An extension of territorial waters or the establishment of a principle of protective jurisdiction for fisheries (a) would grant a monopoly to the riparian states but would not require the adoption of conservation measures by these states; (6) would not protect species of sea products which migrate on the high seas; (c) would require bilateral or multilateral supplementary conservation agreements for fisheries which cannot be considered within the exclusive jurisdiction of one state; (d) would require economic adjustments within states where strong fishery groups depend upon the catch off foreign shores (this considerably weakens the possibility of securing agreements for the extension of jurisdiction); (e) would result, unless the limits were unusually wide, or varied from coast to coast, in fisheries off some coasts being beyond the protection of riparian states. (2) Bilateral and multilateral agreements (a) would protect only the specific fisheries for which these arrangements were concluded; (b) would leave non-signatory states free to fish unregulated, thereby nullifying the conservation arrangements; (e) are usually concluded only after fisheries have become depleted or controversy has arisen.

He proposes a project for an international organization and regulation; at p. 177.

⁴³ (1939) 39 Columbia L. Rev. 317 at 320.

⁴⁴ The Ann, 1 Fed. Cases 926 (1812); Cunard S. S. Co. v. Mellon, 262 U. S. 100 (1923); Mohler v. Transportation Co., 35 N. Y. 352 (1866); Lipscomb v. Kdhroukas, 101 Fla. 1130 (1931); Queen v. Cunningham (1859), Bell’s Criminal Cases 72. Draft Convention, article 1, League of Nations document C.351(b).M.145(b).1930.V.

⁴⁵ Manchester v. Massachusetts, 139 U. S. 240, 264 (1891). Cases which sustain the title of the state to the submerged land under public waters whether navigable rivers, inland seas, tidelands or marginal seas are Martin v. Lessee of Waddell, 16 Pet. 366, 416 (1842); Shively v. Bowlby, 152 U. S. 1, 14 (1893); Pollard v. Hagan, 3 How. 212, 230 (1845); McCready v. Virginia, 94 U. S. 391, 394 (1876); Borax Consolidated Ltd. v. City of Los Angeles, 296 U. S. 10, 16 (1935); Weber v. Harbor Commissioners, 18 Wall. 57 (1873); Port of Seattle v. Oregon and W. R. R. Co., 255 U. S. 56, 63 (1921); Louisiana v. Mississippi, 202 U. S. 1, 52 (1906) (Maritime belt . . . under the sway of the riparian state); Humboldt Lumber ManufacturersAssoc, v. Christopherson, 73 Fed. 239, 244 (1896); United States v. Ashton, 170 Fed. 509, 513 (1909); Dunham v. Lamphere, 3 Gray 268 (Mass. 1855); United States v. Bevans, 3 Wheat. 336 (1818); Philadelphia Co. v. Stimson, 223 U. S. 605, 632 (1912); Greenleaf . . . Lumber Co. v. Garrison, 237 U. S. 251, 262 (1915); United States v. Newark Meadows Imp. Co., 173 Fed. 426, 429 (1909) (“One marine league from low-water mark . . . the region annexed is as much a portion of its territory as any other part of its territory”).

⁴⁶ S. J. Res. 208, 75th Cong., 3rd Sess., Hearings of House Judiciary Committee on S. J. Res. 208, Feb. 23, 1938, “Titles to Submerged Oil Lands,” Serial 16, p. 10 et seq.

⁴⁷ Submerged Oil Lands, Hearings before sub-committee no. 4 of the House Judiciary Committee, 76th Cong., 1st Sess., on H. J. Res. 176 and 181, March 22 and 23, 1939, Serial 2, pp. 290.

⁴⁸ Above, p. 54.

⁴⁹ Ex-Representative Blanton, representing some California residents, told the House Judiciary Committee in 1938 that the tideland and submerged land were public lands, that based on the distinction between sovereignty and property California had never owned the public lands of the state, that the states organized from territories or territories received by treaty cession were different from the original states and Texas, which had reserved its coastal waters, that Shively v. Bowlby and the many cases supporting it were dicta only and that the Federal Government really owned the land under tidewater and marginal sea. Hearings cited above, note 46. The Navy took then but not now a somewhat similar position. California and most witnesses disputed this view. See resolutions of legislature, cited in Gordon Ireland, p. 252. Representative Hobbs of the committee thought nobody owned the submerged lands.

On the question of “title,” which it is believed is adequately made certain by the cases quoted in note 45, we may briefly quote from Professor Ireland, p. 268, as follows:

Only a few opinions, indeed, come out boldly and say, beyond the probable requirements of the particular case at hand, that title to the soil under these waters is in the state, but sucn is the implication of all the cases; and clarity in viewing the past and certainty in judging the future would be highly served by receiving and adopting such rules as a general principle necessarily to be deduced from the precedents.

Professor Ireland differs radically with Mr. Blanton as respects Californian law and history: p. 274.

⁵⁰ The cases involving tidelands along the coast are Pollard’s Lessee, above, note 45 (Mobile Bay); Smith v. Maryland, 18 How. 71, 74 (1855) (Chesapeake Bay); Mumford v. Ward-well, 6 Wall. 423, 435 (1867) (California); Weber v. Commissioners, above, note 45 (California); Manchester v. Massachusetts, above, note 45 (Buzzard’s Bay); Knighi v. United States Land Assoc., 142 U. S. 161, 183, 201 (1891) (San Francisco Bay); United States v. Mission Rock Co., 189 U. S. 391, 404 (1903); Port of Seattle and Borax cases, above, note 45; United States v. O’Donnell (1938), 303 U. S. 501, 519 (San Francisco Bay); and many other cases, federal and State.

A useful list of the cases relating to salt water and the tidelands, the Great Lakes, the navigable rivers and interior lakes, as well as State cases and the opinions of law writers, will be found in the appendix to the memorandum of law in support of joint resolutions quieting titles of the respective states to lands beneath navigable waters within the boundaries of such states. S. J. Res. 48, H. J. Res. 118, 79th Cong., 1st Sess. So far as can be found, there is no decision contra.

⁵¹ See (1938) 13 Tulane L. Rev. 253.

⁵² See Art. V of the Treaty of Guadalupe Hidalgo, 1848 (1 Malloy 1107, 1109), making three leagues the marginal belt as between Mexico and the United States, and Secretary Buchanan’s answer to the British protest in which Buchanan denied that his stipulation was intended to question British rights under the law of nations. 1 Moore, Digest, 730; Crocker, p. 649; Jessup, p. 52.

⁵³ Ireland, p. 274, differing from ex-Representative Blanton, above, note 49.

⁵⁴ Weber v. State Harbor Commissioners, 18 Wall. 57, 65 (U. S. 1873); Shively v. Bowlby,152 U. S. 1, 49 (1894).

⁵⁵ There is doubtless some difference between a claim to a maritime boundary of certain extent and the claim to ownership of all the islands within a certain distance from the coast. E.g., Georgia, Code Annotated, Title 15, claims a boundary of three miles from low-water mark in the Atlantic Ocean, yet all the islands within twenty marine leagues of the coast. The latter claim is not unimportant. See Louisiana, 2 Stat. 701 (1812) (3 leagues); Alabama, 3 Stat. 489 (6 leagues); Mississippi, 3 Stat. 472 (1817) (6 leagues); Florida, 15 Stat. 73, Const. 1868, art. 1 (3 leagues); Louisiana, Gen. Stat. 1938, no. 55 (9 leagues). Texas and states ceded by Mexico, supra note 52 (3 leagues).

⁵⁶ Ireland, pp. 252, 283.

⁵⁷ 313 U. S. 69 (1941).

⁵⁸ 144 Fla. 220 (1940). The zone, according to Section 8087 Compiled Laws of Florida (3 leagues of the west coast of Florida) was characterized as ”within the territorial waters of the state of Florida.”

⁵⁹ See Pope v. Blanton, 10 F. Supp. 18 (D. C. Fla. 1935). If, as the court says, prescription for over 50 years founds a title to the sponges and, a fortiori, their regulation, there seems little reason to distinguish between citizens bound by the law and non-citizens who presumably are not. The case is discussed in (1936) 21 Cornell L. Quar. 651.

⁶⁰ Lipscomb v. Gialourakis, 101 Fla. 1130; Lipscomb v. Kaloroukas, 101 Fla. 1137 (1931).

⁶¹ General Stats. 1938, no. 55; (1939) 39 Columbia L. Rev. 317; (1938) 13 Tulane L. Rev.253; (1940) 19 Nebraska L. Bull. 467; Ireland, p. 252.

⁶² Portugal made such a claim before the committee of experts for the Progressive Codification of International Law, but it was rejected by the American, Wickersham. Professor Bingham thinks well of the Portuguese claim and of José Léon Suarez’ opinion on title to the continental shelf. Bingham, pp. 52–58. 8. 3744, 75th Cong., 3rd Sess., passed by the Senate May 5, 1938, supports the theory, although Alaska is Federal territory.

⁶³ This power to extend territories is generally said to vest in the Federal Government. Willoughby, W. F., Constitutional Law of the United States, 2d ed., 1929, Vol. I, p. 407 Google Scholar; Burdick, C., Law of the American Constitution, 1932, p. 272 Google Scholar.

⁶⁴ Bingham, pp. 11, 60, quoting State Department releases of March 25, 1938; Leonard, p. 121. See the numerous conventions controlling haddock and salmon fisheries on the high seas. Leonard, p. 110; Bingham, p. 27, and answer of the Department of State in 1926 to the Committee of Experts, above, pp. 160–161.

⁶⁵ Letter of March 16,1929, League of Nations document C.74M.39.1929 V., pp. 129 and ff.