I would like to expand my own views in this regard. There was a northwest Atlantic halibut fishery in past years. This yielded many millions of pounds of halibut per year. With the advent of extensive trawl fisheries in the northwest Atlantic, this fishery has all but disappeared. The present catch in the northwest Atlantic, by our fishermen, is less than a half million pounds per year which is taken incidentally to other fisheries.

In the Pacific coast, of course, we have a unique fishery for halibut. This is a fishery which has been developed by Canada and the United States over the past half century. It is one that we have spent millions and millions of dollars, as has Canada, to nurture and to in a sense protect and develop. It is my view if a large-scale trawl fishery develops without very careful protection, and without very rigid restriction in the northeast Pacific Ocean, the halibut fishery of Canada and the United States is doomed.

Senator BARTLETT. And this revival, which is now threatened, has been brought about, as you say, not only because of the sacrifices made by the Canadian and American fishermen, not only because of wise and prudent management of the international commission, but because the taxpayers all over Canada and all over the United States paid to have this set up, so this resource would be left there forever. You mentioned a desire in your statement, Mr. McKernan, to delete all references in this bill to the Continental Shelf. Since we are going into executive session at 3 o'clock this afternoon, on this subject, at Mr. Herrington's request, I would hope that you might, and Mr. Terry, might also be in attendance at that time, so the committee may question you too relating to this particular feature. I note the chairman of the full committee and the chairman of the subcommittee has entered the room, I am glad to see.

I think he has a question or two here.

The CHAIRMAN. How does the Department of the Interior arrive at 3 miles?

Mr. McKERNAN. As the present territorial limit?

The CHAIRMAN. Yes. What do you base it on?

Mr. McKERNAN. We simply base this on accepted territorial limits of the United States, recognizing that international law is at best not clear in this regard. As was pointed out by yourself yesterday, Mr. Chairman, this has simply been the accepted U.S. position, one which has, up until recently at least, been generally to the advantage of most segments of our country interested in this problem, and by this I mean some segments of the fishing industry and segments of our defense community in the United States.

The CHAIRMAN. Well, I am not critical of the fact that you do. What I am trying to establish is—and I know there is ample reason for us to fall back on the 3 miles as a sort of accepted territorial water limit.

I know some of the reasons how we arrived at it. A lot of it was through legal decisions, mainly stemming back to prohibition.

But I am wondering whether or not this is a flexible thing or whether it is so hard and fast, either in our law or by acceptance, by all of the Government officials as such, that we would have to, if we sought to change it for the purpose of our resources, whether we would havt to write a law and make it another figure, or whether it could be changed just by a conclusion of the executive branch.

I don't know. That is why I am asking.

Mr. McKERNAN. Mr. Chairman, prefacing my remarks byThe CHAIRMAN. Has Congress ever passed a law saying 3 miles? No; it just has been an accepted thing that has grown up.

Mr. McKERNAN. Yes.

The CHAIRMAN. Based upon some good background and good fact? Mr. McKERNAN. It has been accepted really since the beginning of our Republic, in fact.

The CHAIRMAN. Some of the States have broken away from it. I use a humorous example-in our State, Washington, our first decision was as far as man could row a boat, and then there was another decision in our country, where they drew the line from Cape Flattery up to the tip of Vancouver Island and there was some dispute about that.

Then, in California, and all of the oil-producing, offshore oil-producing States, they have switched it around to suit the purpose. If they discovered some oil somewhere, they say this belongs to them. Even Congress had an argument as to whether it belonged to the State or Federal Government.

But there was no argument that it belonged to either the State or the Federal Government, or both. And some of these, as we all know, go out many miles.

Mr. McKERNAN. The edge of the Continental Shelf.

The CHAIRMAN. Conceivably, if we carried this to the extreme on the 3-mile limit, I don't know what legal standing an oil well would have out 31⁄2 miles, if some other nation came in and said this is high seas. We can drill right next to you, they would say, or we can take part of the oil as it comes up. It is a kind of fuzzy thing, this 3 miles. It seems to be accepted by all of us, throughout the years. There are plenty of legal decisions on it.

But there are even some decisions under prohibition where they would seize a person within a 12-mile limit.

And then we ran into, as you know who were there, the international conference, where for military reasons and navigation reasons, we backed up to 3 miles. And, remember, all of the other countries wanted 12. And we had some fishing problems with Canada on 12.

So it seems to me when we talk about this bill, which you people support, that when we flatly, categorically mention 3 miles, that we might leave that open; the territorial waters we can determine as a flexible matter when it comes to fisheries or our natural resources. Mr. McKERNAN. Mr. Chairman, doesn't S. 1988 leave this open and call it territorial waters?

The CHAIRMAN. I think we deliberately didn't mention it at all in the bill, because we wanted to leave it open.

Mr. McKERNAN. We would agree with that.

The CHAIRMAN. Our problem may be, what is territorial waters? How far do they go?

Has it been accepted to be 3 miles?

Senator BARTLETT. We are just kind of stepping slowly along here. The CHAIRMAN. What does Peru and Ecuador claim now-200? Isn't it?

Mr. McKERNAN. Yes; they claim 200 miles. This has been pretty well rejected by the family of nations.

The CHAIRMAN. Yes, but only for natural resources.

Mr. McKERNAN. Peru's claim was territorial sea.

The CHAIRMAN. But we have to be careful, I suspect in all this, when we talk about territorial waters, when we get into the question of military and navigation features. As I recall there were some 32 strategic straits in the world, and then if you went even 12 miles, you would close 17 of them for open international waters. I suspect the Straits of Gibraltar, maybe the English Channel, are quite important pieces of water.

But won't this be true, pursuing this a little further, that generally speaking, leaving out the navigation and the military aspects, and the policing aspects, crimes and things of that nature, whether they are committed within the territorial waters or outside, that on the question of natural resources by historic use or otherwise, or the terrain of the land under the ocean, that most of the nations have now come to a point where they are talking about territorial waters for their resources in much different terms than they are about the other matters?

There is a trend to separate them, isn't there, all over the world? Mr. McKERNAN. Yes; this is true, Mr. Chairman. There is a trend.

Now this does not necessarily imply that the United States has taken this position up until the present time.

The CHAIRMAN. No; but there is an international trend, it seems to me, to take this and treat it as something different.

Mr. McKERNAN. There is no question about that, you are correct. The CHAIRMAN. So we might want to keep up with the Jones in the trend. I don't know.

Mr. McKERNAN. This is a very important question.

The CHAIRMAN. We don't like to do that unless we have to, but they seem to be forcing us to do this, by their actions.

Russia claimed, I think, some 200 miles when she had Alaska, as territorial waters, way back before we bought it.

Mr. MCKERNAN. I recall she claimed all of the waters of the Bering Sea, I believe.

The CHAIRMAN. If you committed a crime in the Gulf of Alaska, it wasn't on the high seas, it was within Russian territory.

Mr. McKERNAN. You know, Mr. Chairman, there is another matter here that I know you have given a great deal of thought to, in your position here on this committee and that is this matter of where the U.S. fisheries go in the future. How does it, in a sense, keep up with the fishing "Joneses", as well as the coastal nation "Joneses"? It is my view that this Nation is capable, providing we do have an aggressive fishery policy and implement this policy, of developing our own high seas fisheries. Some of our fisheries, such as the tuna fishery, are doing this at the present time, so we do have, in a sense, perhaps not a conflict, but we have two interests. One interest is to protect these resources, which we have a special interest in such as halibut and salmon, for example, on the west coast, and resources such as haddock and cod and scallops on George's Bank.

The CHAIRMAN. And shrimp, shellfish in the gulf?

Mr. McKERMAN. Yes; on our own shores, on the shelf, and yet we have the same interest in the shrimp throughout the Gulf of Mexico and Caribbean.

The CHAIRMAN. King crab?.

Mr. McKERNAN. Yes. But then we have this tremendous interest in tuna for example, everywhere. And it is my hope our fishermen

from the Pacific Northwest, as well as from New England, will eventually fish tuna everywhere in the world and that we can develop kinds of fleets that will handle this fishery economically and efficiently.

I am quite convinced, myself, that our fishermen, as units, are more efficient at the present time or as efficient as any fishermen in the world.

We have made some comparisons, for example, between the Japanese and our fishermen. Fisherman for fisherman we outfish the Japanese. But the trouble is that there are so many vessels engaged in the Japanese fishery. I don't mean to bring them up as a horrible example, but just as an aggressive fishing nation, which is going out and fishing in every part of the world ocean, and yet we are not doing that, even though our fishermen are efficient catchers of fish food.

The CHAIRMAN. What is there to the statement, for the record, that unless there is something done in the way of international conservation on tuna, that the tuna stocks are going to gradually be depleted.

Is that a fair and correct statement?

Mr. McKERNAN. It is, Mr. Chairman.

The CHAIRMAN. If they overfish as the situation is now?

Mr. McKERNAN. They are probably overfishing, or have been overfishing some stocks in the eastern Pacific, and there are limits to these stocks. And as I mentioned, a little earlier in my testimony, I believe it absolutely essential that the nations of the world, fishing common stocks, very seriously consider and implement rigid conservation regimes in all of these major oceanic fisheries.

As you know, and I know, this has been your interest for many years, and there has been recent action motivated by yourself, to suggest some kind of a conference considering this matter. It is essential that the nations harvesting resources of the sea work together and conserve these resources and implement effective conservation regulations.

I am afraid in many areas this not being done adequately.

The CHAIRMAN. It has been suggested, too-this is sort of general and looking to the future-that unless we do something like this, we are going to have a great number of problems with the new nations on the coast of Africa, particularly the western coast, where we are trying, all of us, to encourage them to go out and get protein foods, and there are absolutely no rules or definitions established in that area by anyone that I know of.

Mr. McKERNAN. Yes; there are some general rules that have been suggested under the 1958 law of the sea convention, but specifically. you are correct.

And there is a move-in fact, the United States is assuming some leadership in this field of working through the food and agricultural organizations to organized a meeting which would consider the conservation of the tuna resources of the tropical Atlantic and perhaps the entire Atlantic, because as you know, Senator, there is a tuna fishery developing along the Atlantic coast now which shows great promise. Our boats from the west coast, in fact some of our vessels from the Pacific Northwest, have successfully explored this particular area at the present time. We are very much interested in getting together with other nations who might be fishing those stocks of fish and

making sure we don't overfish them, but also, make sure we fully utilize them.

Senator BARTLETT. Thank you very much, Mr. McKernan and Mr. Terry.

Mr. McKERNAN. Thank you, Mr. Chairman.

Senator BARTLETT. The next witness will be Comdr. Larry G. Parks, U.S. Navy, International Law Section.

STATEMENT OF COMDR. LARRY G. PARKS, SPECIAL ASSISTANT ON THE LAW OF THE SEA TO THE JUDGE ADVOCATE GENERAL, U.S. NAVY

Commander PARKS. Mr. Chairman, I have a prepared statement, very short, which I will read, if it pleases the committee.

Senator BARTLETT. We would be pleased to have you do so. Commander PARKS. It is my pleasure to be here today to testify on S. 1988 on behalf of the Department of the Navy. I am the special assistant on the law of the sea to the Judge Advocate General of the Navy. It is my responsibility to keep abreast of the law of the sea and to represent the Judge Advocate General and the Department of the Navy in some of the Navy problems in this regard.

During the past year I have participated with personnel of other departments and agencies of the Government in the study of the problems raised by foreign fishing vessels being in U.S. territorial waters. During these discussions it became apparent, as a collateral matter, that U.S. domestic law with respect to foreign vessels fishing in U.S. territorial waters was inadequate. As a result, the Navy concurred in the desirability of seeking remedial legislation.

Certainly it is clear that under international law the United States has the right to prohibit foreign vessels from fishing in its territorial sea. However, there is an area of doubt as to whether U.S. law specifically prohibits foreign fishing vessels from fishing in the U.S. territorial sea.

The provisions of section 251 of title 46, United States Code, the only statute of general application which could be regarded as a prohibition, are not clear in this respect.

In addition, assuming that section 251 does prohibit foreign fishing in the territorial sea, there are no penalties at present for violation of this section. A naked prohibition is not much use as a deterrent to foreign fishing. In these circumstances, the Department of the Navy strongly supports any efforts to clarify and strengthen U.S. law prohibiting fishing in the territorial sea by foreign-flag vessels. That concludes my statement, Senator.

Senator BARTLETT. I notice at the bottom of your prepared statement these words appear: "This statement is not for publication until released by committee.

Commander Parks, the committee releases this. We are glad to have this go out generally, and we are delighted to have the support of the Department of the Navy, glad to know the Navy Department feels that the rather gray area now present ought to be made perfectly clear and I thank you for having appeared and presented the views of the Department of the Navy.

Commander PARKS. Thank you, Mr. Chairman.