With specific reference to the possible enforcement against the Japanese king crab fishermen who have exploited and developed almost exclusively the king crab fishery in the high seas north of the Alaskan Peninsula, it is the view of the Japan Fishery Society that under a proper interpretation of the Convention on the Continental Shelf or of international law, king crab is not a specie of fish over which the United States would have exclusive rights to exploit. This view finds support in the apparent difficulty of the drafters of S. 1988 and their advisers in the executive departments to agree upon this specie as a valid object of a criminal taking by nationals of other states. The immediate usefulness to the American fisheries interest of possible enforcement of this statute against this specie is debatable since the Alaskan exploitation of the king crab fishery has been developed in the waters of the Gulf of Alaska south of the Alaskan Peninsula while the Japanese have taken this resource in the high seas area north of the Alaskan Peninsula since 1930, an area which is not being fished by Alaskan fishermen. In the North Atlantic, while the Continental Shelf extends several hundred miles outside territorial waters of the United States it is difficult to see how under any interpretation of international law or the Convention on the Continental Shelf the United States can prohibt other nationals from competing with U.S. nationals for those finny fish resources.

It is suggested where arangements already provide for cooperative efforts looking toward continuing productivity of a stock of fish such as the king crab, adherence to these principles will be of greater benefit to American fishermen interested in the exploitation of the king crab and to the interests of all American fishermen, than an attempt to unilaterally exclude the Japanese.

The remainder of this statement will consist of analysis and documentation of our basic position using the king crab fishery in the high seas north of the Alaskan Peninsula.

THE KING CRAB FISHERY

The king crab (Paralithodes camtachatida) like the lobster is a migratory decapod crustacean crawling on the seabed in its adult state. It is found in the cold offshore waters of central and western Alaska, extending from Prince William Sound to the Alaskan Peninsula to the northern part of the East Bering Sea. The spectacular and commercially important feature about king crab is their size. Male crabs with an overall spread of 4 to 5 feet weighing 15 or more pounds are found in waters south of the Alaskan Peninsula. The record weight is 26 pounds. After hatching the crabs pass through various free swimming zoea stages and inhabit the middle and bottom zones of relatively shallow water. The adults are found in depths from 30 to more than 200 meters, depending on the season of the year. With the approach of the breeding season the females precede the males into the shallow water and after breeding both sexes move north toward colder water.' The greatest distance covered by a tagged crab was in the case of a male which was recovered at a distance of 300 miles from the tagging point.2

Beginning in about 1930 the Japanese king crab fishermen fished in the high seas off of Pribiloff Islands and in the East Bering Sea, to the north of the Alaskan Peninsula. The better fishing for the Japanese lies along the exposed coast of the north side of the Alaskan Peninsula. During much of the season this fishery is a considerable distance offshore. Much adverse weather is experienced and shelter is scanty. Beginning in 1960 Soviet king crab fishermen participated in the fishery in the East Bering Sea, however, up until that time exploitation and development of the king crab was almost exclusively by Japanese fishermen. American fishing in the area has been negligible.

For several years prior to 1930 occasional small packs of king crabs were put up in Cook Inlet by the U.S. fishermen. Increasing exploration of the crab fishery by the Japanese raised serious questions as to whether American interests were making adequate use of the high seas fishery resources. Accordingly, early in 1940 the Congress authorized the Fish and Wildlife Service to make extensive exploration missions to determine if possible and under what circumstances the U.S. fishermen might profitably exploit the king crab resource.

1 See "Growth of Adult Male King Crab," Fishery Bulletin No. 200, from Fishery Bulletin of the Fish and Wildlife Service, vol. 62. U.S. Department of the Interior, Bureau of Commercial Fisheries: "Edible Crabs." Fishery Leaflet No. 471, U.S. Department of the Interior. Bureau of Commercial Fisheries,

"Canned Crab Industry of Japan," Fishery Leaflet No. 314, Department of the Interior, Bureau of Commercial Fisheries, p. 15.

Three fishing vessels and a floating cannery were employed, and during 10 months in the field, explored likely areas from southeastern Alaska to within sight of Siberia. Except for poor results around the Pribiloffs, the areas of greatest abundance in the Bering Sea were found to coincide very closely with the Japanese floating canneries reported in Alaskan waters during the late thirties. King crab operations by U.S. fishermen commenced on a significant commercial basis after World War II and exploitation of the king crab has been confined almost exclusively to the Gulf of Alaska south of the Alaskan Peninsula.

The Japanese king crab fisheries are operated under Japanese Government regulations which restrict the taking of king crab by its fishermen in the high seas north of the Alaskan Peninsula. Some of these restrictions now in force to protect the king crab resources include: (a) Prohibition against the taking of the female of the species; (b) prohibition of the taking of the male adult measuring a carapace width of less than 13 centimeters; (c) prohibition against the use of tangle net with a mesh size of less than 50 centimeters; (d) limitation of total catch to be taken in the high seas off the coast of Alaska.*

The king crab has been designated by marine biologists as "stock of fish" in the North Pacific under the regime of the International Convention for the High Seas Fisheries of the North Pacific Ocean. Pursuant to that convention a request for study of the South East Bering Sea king crab stock was made to the International North Pacific Fisheries Commission by the U.S. Government in February 1954. These investigations are going forward with the cooperation of the contracting parties to these investigations scientists of each nation conduct research on fishing on vessels of both nations."

Alaska fishermen took a record 77 million pounds of king crabs in 1963-24 million pounds more than in the previous record year 1962. Production of these shellfish by Americans fishing in the Gulf of Alaska has increased spectacularly in recent years, reaching a total estimated at $13 million in processed and frozen crab in 1963.

In order to properly evaluate the effect of this legislation, it will be helpful to define the term "Continental Shelf." It should be noted that there are actually two definitions-a geological-geographical one and the legal definition as finally formulated in article I of the Convention on the Continental Shelf of 1958.

The geological-geographical definition used by scientists emphasizes that the shelf is a submarine extension of the "continent" outward into the sea; a kind of pedestal on which the continents seem to rest in the ocean lying between the shore and the first substantial fall off, on the seaward side, whatever its depth. This submarine plain which fringes all of the continents, at varying widths from the shore, slopes gradually in most instances out to an edge at which the superjacent water is approximately 200 meters or 100 fathoms deep.

A standard definition is:

"The zone around the continent, extending from the low-water line to the depth at which there is a market increase of slope to greater depth. Where this increase occurs, the term shelf edge is appropriate. Conventionally, its edge is taken at 100 fathoms, or 200 meters, but instances are known where the increase of slope occurs at more than 200 or less than 65 fathoms. ****7

The legal definition of the International Law Commission (ILC) in 1956 and incorporated into the Convention on the Continental Shelf as article 1 varies significantly:

"For the purpose of these articles, the term "Continental Shelf" is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands."

3 U.S. Tariff Commission. "Crab Meat Report to the President," Rept. No. 147. Marine Agency, Agriculture and Forestry Ministry.

1961 Annual Report of International North Pacific Fisheries Commission; Growth of the Adult Male King Crab, op. cit., at pp. 1 and 2.

Advance report on the fisheries of the United States, 1963, Bureau of Commercial Fisheries, Fish and Wildlife Service. Department of the Interior, C.F.S. No. 3450, p. 10: testimony of William A. Ritter, Alaskan King Crab Institute, Inc., before U.S. Tariff Commission, Dec. 11, 1963, transcript, pp. 549 and 550.

7 International Committee on the Nomenclature of Ocean Bottom Features, reported in vol. 1, No. 1, Deep Sea Research (published by Wiseman & Ovey), at pp. 11-16 (October 1953).

There are significant differences in the definitions, the most apparent being the addition to the generally accepted geological limit of 200 meters of a "depth of exploitability" standard which extends beyond the conventional 200-meter depth. This latter standard of course can be theoretically an unlimited one extending jurisdiction of a coastal state in the seabed and subsoil way beyond the 200-meter depth until the partitioning of the sea according to article 6 of the Convention on the Continental Shelf becomes a necessity. Nevertheless using just the 200-meter standard the jurisdiction of the States for the purposes of article 2 of the convention is increased an incredible amount. In House Report No. 413 (May 12, 1953) to accompany H.R. 5134, 83d Congress, 1st session, we find this statement entitled, "What is the Continental Shelf?"

"Along the Atlantic coast, the maximum distance from the shore to the outer edge of the shelf is 250 miles and the average distance is about 70 miles. In the Gulf of Mexico the maximum distance is 200 miles and the average is about 93 miles. The total area of the shelf off the United States is estimated to contain about 290.000 square miles, or an area larger than New York, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, and Kentucky combined. The area off Alaska is estimated to contain 600,000 square miles, an area almost as large as Alaska itself."

Obviously, the application of this doctrine to any specific species of fish in the high seas area outside territorial waters of the United States off Alaska would have the effect of sealing off the whole Bering Sea and the deprivation to many nations of a source of traditional fishery production. At certain points the Coast Guard would be enforcing this legislation more than 600 miles into the high sea area.

FORCE AND EFFECT OF CONVENTION ON THE CONTINENTAL SHELF

The conclusions adduced in our section entitled "The Basic Position of the Japan Fishery Society" embodies what we believe proper fishery policy now accepted in international law with respect to the regime of the Continental Shelf. It is our purpose hereafter to detail these legal arguments with analysis of the provisions of the Convention on the Continental Shelf together with an interpretation of its provisions by leading U.S. spokesmen. The legislative history of S. 1988 detailed in the Congressional Record of Tuesday, October 1, 1963, p. 17558 tells us that in a colloquy with Senator Javits, of New York, Senator Bartlett, of Alaska, the sponsor of the legislation, stated that the legislative history of the act will show that the language concerning Continental Shelf fishery resources conforms to that in international agreements entered into by the United States and that S. 1988 does not endeavor unilaterally to establish new international rights.

Since the Convention on the Continental Shelf is important in defining the species of fish which the United States may claim as "a Continental Shelf fishery resource which appertains to the United States" or "as a fishery resource of the Continental Shelf claimed by the United States," it is germane to consider the convention's effect in establishing an obligation binding in international law. While it is true that the Convention on the Continental Shelf is not presently in effect (needing only one more ratification) it seems certain that in view of the multilateral character of the convention embracing some 46 States and the intensive discussion of international law in this sector over the period of years by the International Law Commission, it was the intention of the signatory parties that the convention should serve as a body making rules of law of a permanent nature. It has been said that the intent of the signatory parties was that the convention codify the newly established law of the Continental Shelf. In any controversy which may arise between States which have signed the convention, or even between States which have not signed it, the judicial or arbitral body called upon to resolve a particular dispute should give it great weight. In 1958, shortly after the signing of the convention, Miss Marjorie Whiteman, the U.S. delegate to the Fourth Committee (the Committee on the Continental Shelf) of the Geneva Convention on the Laws of the Sea, stated:

See U.S. Senate Ex. Rept. 5, "Law of Sea Conventions," 86th Cong., 2d sess., at p. 1; Senator Mansfield in debate, Congressional Record, May 26, 1960, 86th Cong., 2d sess., p. 11187: McNair, "Law of Treaties" (1961), Oxford Press, p. 759; Franklin, "The Law of the Sea: Some Recent Developments," U.S. Naval War College (1961), pp. 62, 63; Lauterpacht (Oppenheim), vol. 1, eighth ed. (1955), sec. 492, at p. 878.

* * regardless of the number of its ratifications and accessions, the convention, together with the greatly similar 1956 International Law Commission draft on the same subject, will in the future, doubtless have considerable influence on the content and direction of the developing international law with respect to the Continental Shelf.""

From this we conclude that since the United States and 21 other nations have ratified the convention, the question of the species of fish over which the United States as a coastal nation would have sovereign rights would be controlled by article 2, paragraph 4, of the convention.

With respect to the effect of an international treaty on municipal law, it is settled that international law will be enforced directly in the courts of the United States providing there is no statutory to the contrary. Where there is a statute which conflicts with international treaty law, the courts must perforce give effect to the statute even as against the treaty, provided the treaty is prior in time. Yet, whenever a country by municipal statute or decree authorizes an unlawful seizure or arbitrarily discriminates against foreigners under the terms of international law and not municipal law, it incurs international responsibility and must make reparations.10

Thus, if the king crab is a stock of fish on which the United States may not exercise sovereign rights under article 2 of the convention, a statute passed subsequent in time to the ratification of the convention by the United States would be contrary to the terms of the convention. The statute would be valid municipal law, but the United States would incur an international obligation to make reparations for any damages vis-a-vis an injured foreign party.

Interpreting the Convention on the Continental Shelf with relation to the Japanese king crab fishery in the high seas north of the Alaskan Peninsula, the following conclusions will be documented:

1. By any valid legal definition of the terms "any Continental Shelf fishery resource which appertains to the United States" and "fisheries resources of the Continental Shelf claimed by the United States" king crab is not included as a living organism belonging to the sedentary species over which the United States as a coastal state may exercise sovereign rights under any interpretation of article 2, paragraph 4, of the Continental Shelf Convention of 1958.

2. Assuming for the purposes of argument that the Convention on the Continental Shelf does include under article 2, paragraph 4, crustaceans, any claim by the United States to sovereign rights for its nationals of the king crab fishery now exploited by the Japanese which would exclude the Japanese king crab fishermen is invalid in international law and the United States may exclude Japanese king crab fishermen only in derogation of an international obligation. By any valid legal definition of the terms "any Continental Shelf fishery resource which appertains to the United States" and "fishery resource of the Continental Shelf claimed by the United States" the king crab is not included as a living organism belonging to the sedentary species over which the United States as a coastal state may exercise sovereign rights under any interpretation of article 2, section 4, of the Continental Shelf Convention of 1958.

In order to determine what species of fish are included among the living organism belonging to the sedentary species over which the United States as a coastal state may have sovereign rights for the purpose of exploring and exploiting those species it is necessary to examine in some detail the background of the Geneva Conference of the Laws of the Sea, with relation to the Convention on the Continental Shelf. Specifically, it will be necessary to examine what Jessup has called, "the progressive development of the law" with regard to those natural resources-living organisms belonging to the sedentary species, as indicated in various drafts of the International Law Commission and the commentaries thereto."

Whiteman, "Conference on Law of the Sea: Continental Shelf," 52 A.J.I.L., p. 659. 10 See United States v. La Jeune Eugenie, 25 Fed. Cas. 832, No. 15,551 (C.C.D., Mass. 1882); LaNinfa, 75 Fed. 513 (C.C.A. 9th 1896) Borchand, "The Relation Between International Law and Municipal," 27 Va. L.R. (1940), pp. 137, 140, 141, 144-147.

11 Jessup, "The United Nations Conference on Law of Seas," 59 Col. L.R. 234.

ARTICLE 2 OF CONTINENTAL SHELF CONVENTION

The Convention on the Continental Shelf "2 of April 29, 1958, declares in article 2(1) that the "Coastal states exercise over the Continental Shelf sovereign rights for the purpose of exploring and exploiting its natural resources." The fourth paragraph of the same article defines these resources as:

"The mineral and other nonliving resources in the seabed and the subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile or under the seabed or unable to move except in constant physical contact with the seabed or the subsoil.”

Article 2 was based on article 86 of the 1956 ILC draft. However, previous to the final draft in 1956 much legal and scientific effort directly related to the interpretation of the convention as finally adopted went into the specific question of coastal state rights in this area.

Article 2 of the 1951 draft of the ILC read:

"The Continental Shelf is subject to the exercise by the coastal state of control and jurisdiction for the purpose of exploring it and exploiting its natural resources."

14

At this early stage it is clear the Commission considered that the coastal state rights in the Continental Shelf regime were confined to mineral resources and that sedentary fisheries should be regulated independently of the Continental Shelf. It is to be noted that under this particular interpretation the so-called sedentary fisheries of the final draft were not treated like any other high-sea fishery. Especially noteworthy in this regard was the restriction of the coastal state power of regulation, and the affirmation of the right of nonnationals to take part in this fishery on an equal footing."

When the ILC next considered the problem of sedentary fisheries at its 1953 session, it was decided that they should be included in the regime of the Continental Shelf where the coastal state is permitted to exercise sovereign rights to explore and exploit certain national resources. The 1953 draft of a comparable article (art. 68) of the 1956 ILC drafts reads:

"The coastal state exercises over the Continental Shelf sovereign rights for the purposes of exploring and exploiting its natural resources.'

9 16

Here it is to be noted that the draft article of 1951 on sedentary fisheries had been dropped entirely, and "products of sedentary fisheries" as understood in 1953 meant only natural resources attached to the bed of the sea." In addition,

18

the coastal state now exercises over the Continental Shelf "sovereign rights" which are independent of occupation and of any formal assertion of those rights. Nevertheless, even with the new emphasis on sovereign rights and lack of necessity for formal assertion, the ILC interpreted the 1953 draft to mean that the exclusive rights of the coastal state should be exercised in a manner consistent with the existing rights of nationals of other states with regard to sedentary fisheries. Any interference with such rights, when unavoidably necessitated by the requirements of exploration and exploitation of natural resources is subject to the rules of international law insuring respect of the rights of aliens."

19

The 1956 text of article 68 of the ILC draft was identical with the 1953 draft. Once again it should be noted with respect to this final draft of article 68 that the ILC in explaining the nature of the "sovereign rights” granted to the coastal state again specifically states that the rights conferred upon the coastal states cover all rights necessary for an connected with the exploitation and exploration of natural resources and that these rights do not depend on occupation, effective or notional, or in any express proclamation." Even so, the Commission goes on to state, as in 1951, and 1953, that the coastal state when exercising its "exclusive" rights must also respect the existing rights of nationals of other states.22

12 U.N. Doc. A/Conf. 13/38: 52 A.J.I.L. 858-862 (1958).

13 ILC report. 8th session, 1956, p. 42; 51 A.J.I.L. 154 at p. 171.

14 ILC report, 3d session, 1951, p. 18; 45 A.J.I.L. (supp.). p. 139.

15 ILC report, 3d session, 1951, p. 20. art. 3; 45 A.J.I.L. (supp.), p. 145.

18 ILC report, 5th session, 1953, p. 12; 48 A.J.I.L. (supp.), p. 28.

17 ILC report, 5th session, 1953, p. 14, par. 70; 48 A.J.I.L. (supp.), p. 32.

18 ILC report, 5th session, 1953. p. 14. pars. 68, 69: 48 A.J.I.L. (supp.), p. 32.

19 ILC report. 5th session, 1953, p. 14. pars. 71, 73: 48 A.J.I.L. (supp.), p. 32. 20 ILC report. 8th session, 1956, p. 42; 51 A.J.I.L. 177.

1 Yearbook of the ILC, 1956, vol. II. p. 297; pars. (2) (5): 51 A.J.I.L. 246, 247. 22 Yearbook of the ILC, 1956, vol. II, p. 297, par. (6); 51 A.J.I.L. 247.