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Triangle, and the Pacific the Origins of Modern Ocean Law, 1930-1953

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Triangle, and the Pacific the Origins of Modern Ocean Law, 1930-1953 Japan, The North Atlantic Triangle, and the Pacific Fisheries: A Perspective on the Origins of Modern Ocean Law, 1930-1953 HARRY N. SCHEIBER* TABLE OF CONTENTS I. INTRODUCTION ...............................................................................................28 II. MODERN OCEAN LAW DEVELOPMENT: AN OVERVIEW ....................................33 III. THE BRISTOL BAY INCIDENT ............................................................................38 IV. THE U.S. DIPLOMATIC RESPONSE AND THE CANADIAN ROLE: RECONSIDERING A BASIC TENET OF TERRITORIAL WATERS LAW ....................51 V. TOWARD NEW PRINCIPLES OF LAW: THE 1945 TRUMAN PROCLAMATION AND THE NORTH ATLANTIC TRIANGLE .................... 58 A. Scientific Research, Diplomacy, and the Marine Fisheries ..................58 B. Canadian-U.S.Planning and the Truman Proclamation...................... 63 VI. OUTSTANDING ISSUES, 1946 ..........................................................................74 VII. OCCUPATION-ERA-CONTROVRSIES ..............................................................78 VIII. NEGOTIATING THE "ABSTENTION" PRINCIPLE: OCEAN LAW, FISHERIES SCIENCE, AND DIPLOMATIC COMPROMISE ..............................87 A. ParallelTensions: PoliticalPlanners vs. Fishery Experts.................... 91 B. Adoption of the Abstention Concept......................................................... 101 IX . C ON CLUSION .....................................................................................................108 * The Stefan Riesenfeld Professor of Law and History, Director of the Earl Warren Legal Institute, and Co-director of the Law of the Sea Institute, School of Law (Boalt Hall), University of California, Berkeley. The author also chairs the Boalt Hall Sho Sato Program on Japanese and U.S. law. This article is dedicated to the memory of the late Professor J.Bartlet Brebner, Columbia University. HeinOnline -- 6 San Diego Int'l L.J. 27 2004-2005 I. INTRODUCTION Fishing rights on the high seas, coastal fisheries management, and international ocean law have long been of great significance in the economic and diplomatic relations between Canada, the United States, and Great Britain.1 Fisheries issues, dating back to the 18th century, have been complex because they have involved swings and vacillations between conflict and cooperation in Anglo-North American relationships. In many respects, it has been a history of persistent economic rivalry, pitting the interests of Canada's Atlantic and Pacific fishing fleets against the interests of fishing operators in the United States and Great Britain, and in more recent times, involving differences stemming from the divergent policy objectives of North American distant-water fishing and coastal fishing industries. Nonetheless, at many junctures in this history there has also been significant identity of national objectives in regard to fisheries, a particularly important example being the concerns of the British Columbia and Washington-Alaska salmon fisheries to fend off foreign competition in offshore waters. Not to be overlooked, too, is the fact that the Canadian-U.S. relationship in the last eighty years has involved an active coordination of both scientific fisheries research and important management efforts in coastal waters.2 1. Acknowledgments: The author is greatly indebted to the officers and staffs of the American, Canadian, New Zealand, Japanese, and Australian national archives and of the Public Records Office (Kew) of the United Kingdom; and to the archivists of the special collections in the Scripps Institution of Oceanography Archives (University of California, San Diego), the Hoover Institution, the Franklin D. Roosevelt Presidential Library, and the University of Washington. He acknowledges with gratitude the counsel and encouragement in the course of this research of his wife Jane L. Scheiber; Professors Akio Watanabae (University of Tokyo, emeritus), David D. Caron (UC Berkeley), William T. Burke (University of Washington), Paul Pickowicz and Robert Edelman (University of California, San Diego), and Elizabeth Eliot-Meisel (Creighton University); and the late Hon. William Herrington and the late Prof. Stefan A. Riesenfeld. 2. Although there is no comprehensive history on the subject in its full context, many of the general themes to which this study relates are given full context in the treatise by DOUGLAS M. JOHNSTON, THE INTERNATIONAL LAW OF FISHERIES: A FRAMEWORK FOR POLICY-ORIENTED INQUIRIES (1965); and in WILLIAM T. BURKE, THE NEW INTERNATIONAL LAW OF FISHERIES: UNCLOS 1982 AND BEYOND (1998), the authoritative work on the subject. Articles by Anne L. Hollick that are cited in notes below and Hollick's book, U.S. FOREIGN POLICY AND THE LAW OF THE SEA, are invaluable for their analysis of the large context of U.S. oceans policy process and substantive developments, as well as for their analyses of specific issues. See infra note 10. Research for the present Article has built on archival sources relating to policy and law, especially from the Canadian and other Commonwealth archives that provide much data beyond what Hollick had obtained from her research in the U.S. DOS records, her principal source for historical analysis. The following abbreviations are used in the citations in this Article: CAN: Canadian National Archives Documents: Department of External Affairs, Government of Canada, Documents on Canadian External Relations/DocumentsRelatifs aux Relations Exterieures du Canada HeinOnline -- 6 San Diego Int'l L.J. 28 2004-2005 [VOL. 6: 27, 2004] Modern Ocean Law SAN DIEGO INT'L L.J. Ocean fisheries issues invariably implicate questions of international law. In this aspect of the trilateral interrelationship, there is again a mixed record. Historically, the United States, Britain, and Canada have often stood together on basic doctrinal matters of international law. This was true especially insofar as the governments of all three nations were for many decades strong champions of the "three-mile rule" as the limit of offshore jurisdiction for coastal states.3 And yet, in some periods of the modern era, the three countries have pursued conflicting policies, sometimes producing critical tensions in their diplomatic relations, including direct conflicts over maritime boundaries.4 In all these respects, the "fisheries dimension" of the trilateral relationship has reflected accurately the larger framework of economic, political, strategic, and ideological relationships that the late J. Bartlet Brebner depicted brilliantly in his famous book on historic dynamics of change in the "North Atlantic Triangle." 5 As will be discussed below, the cultural dimension, especially the manifestations of racism directed against people of Japanese origin living on the West Coast of Canada and the DOS: Department of State FRUS: Foreign Relations of the United States NA:United States National Archives PRO: Public Records Office (UK), Kew RG :Records Group SS for EA: Secretary of State for External Affairs (Canada) UW: University of Washington 3. The phrase "three-mile rule" refers literally to the three-mile distance from shore as the formal boundary of national jurisdiction; in fact, prior to the 1940s, even the maritime nations that most assertively defended that rule-the United States and the United Kingdom-had in various ways deviated from it in limited contexts (for defense of security, for policing against pollution of coastal waters, and for interdiction of smugglers). The phrase is used here with those exceptions taken as granted, and for which see, inter alia, the classic work by STEFAN A. RIESENFELD, PROTECTION OF COASTAL FISHERIES UNDER INTERNATIONAL LAW (Carnegie Endowment for Int'l Peace, Div. of Int'l Law, Monograph Series, No. 5, 1941); and SAYRE A. SWARZTRAUBER, THE THREE-MILE LIMIT OF TERRITORIAL SEAS (1972). 4. See, e.g., Anne M. Hollick, Canadian-AmericanRelations: Law of the Sea, 28 INT'L ORG., Autumn 1974, at 755; Barbara Johnson, Canadian Foreign Policy and Fisheries, in CANADIAN FOREIGN POLICY AND THE LAW OF THE SEA 49-99 (Barbara Johnson & Mark W. Zacher, eds., 1977); DOUGLAS M. JOHNSTON, CANADA AND THE NEW INTERNATIONAL LAW OF THE SEA 1-12, 64-75 et passim (1985); HIROSHI KASAHARA & WILLIAM T. BURKE, NORTH PACIFIC FISHERIES MANAGEMENT 1-27 (Res. for the Future, Program of Int'l Studies of Fisheries Arrangements, Paper No. 2, 1973); and see generally DAVID L. VANDERZWAAG, THE FISH FEUD: THE U.S. AND CANADIAN BOUNDARY DISPUTE (1983). 5. JoHN BARTLET BREBNER, NORTH ATLANTIC TRIANGLE: THE INTERPLAY OF CANADA, THE UNITED STATES AND GREAT BRITAIN (1945). HeinOnline -- 6 San Diego Int'l L.J. 29 2004-2005 United States, also figured large in the history of fisheries relationships, as the three countries sought to pursue their respective positions6 and protect their individual interests from the 1930s to the 1950s. During the last half of the twentieth century, the governments and the fishing industries of the North Atlantic Triangle nations have played major roles in the shaping of formal international ocean law. The existing scholarly literature on this subject provides a rich body of data regarding this record. Most studies focus upon the ocean law reforms that were pursued under the aegis of the United Nations, that is to say, the process of reform since 195 1.7 The United Nations, prodded among others by the United States and Canada, began the work of developing a new ocean law in the 1950s with a comprehensive study by the International Law Commission of unsettled legal
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