contact with the seabed. Also like the king crab, the young lobsters drift freely in the open sea but upon achieving adulthood they descend to the bottom where they spend the rest of their lives. Again, there is a distinct similarity in the gear used to catch both the lobster and the king crab. Lobsters are caught in small wooden traps or pots which are baited with fish and lowered to the bottom at depths of 1 to 30 fathoms. The traps are hauled daily or as often as can be allowed. The king crab is similarly caught in steel pots lowered to the bottom of the sea or in tangle nets anchored to the seabed. The king crab is even more mobile than its brother decapod crustacean, the lobster. While lobsters move offshore to deeper waters in the fall and return in the spring, their migrations are not extensive. However, as we have indicated previously, it is known that the king crab travels a great distance with the record substantiated at 300 miles.

39

Although Professor Bailey's statement is generally conceded to stand for the proposition that all crustaceans are excluded from the term "natural resources," any ambiguity relating specifically to the king crab seems to have been dispelled by this analogy to the lobster which species is specifically excluded by the interpretation given by the U.S. Senate and included in its report recommending ratification of the Convention. In view of this fact, we must consign the king crab and the lobster to the regime of the high seas where no State may validly purport to claim sovereign rights.40

In view of the fact that the king crab is not a specie governed by the regime of the Continental Shelf but a specie governed by the regime of the high seas, the provisions of the present legislation prohibiting the taking by foreign nationals of "any Continental Shelf fishery resource which appertains to the United States" or "fishery resources of the Continental Shelf claimed by the United States" cannot identify a valid U.S. claim in international law to exclusive exploitation of the organism. Previously, we have concluded that the Convention on the Continental Shelf although not yet in effect does define international rights, obligations, and duties with respect to the regime of the Continental Shelf.

NO RIGHT IN COASTAL STATE TO EXCLUDE NON-NATIONAL FISHERMEN Even if the Convention on the Continental Shelf did include in article 2, paragraph 4, “king crab” as a natural resource over which the United States could claim "sovereign rights" to exploit, such "sovereign rights" would not extend to the right to exclude absolutely nationals of other states who have historically fished the Continental Shelf area for king crab. Although there is no express provision in article 2 of the Convention that preserves, as against the exclusive rights to exploit of the coastal state, the right of other nationals to continue exploiting fishery resources of the Continental Shelf, this right is clearly defined in all ILC reports and drafts including the final draft article 68 of the ILC eighth session of 1956 which became the basis for article 2 of the Convention. Thus, the 1953 draft of the ILC article is interpreted to mean that the coastal state exercises over the sedentary fisheries on the shelf "sovereign rights" for the purpose of exploiting them, and commentaries 68, 69, and 72 indicated that these rights are to be exclusive and are not dependent on any theory of occupation. Nonetheless, the interpretation of this exclusive right could not justify (according to commentary 71) the coastal state in arbitrarily excluding nationals of other states with pre-existing interests in sedentary fisheries on the Continental Shelf. Again, in the 1956 report, the ILC proposed the same "sovereign rights" of an exclusive nature for the coastal state over living organisms of a sedentary species

39 See S. Doc. No. 51, 79th Cong., 1st sess., Fishery Resources of the United States (King Crab), pp. 33, 34; (Lobster), pp. 86, 87, 88.

The delegates to the convention had good source material to rely on with respect to distinctions between the various species inhabiting the seabed. The General Assembly by Resolution 1105 (XI) of Feb. 21, 1957, requested the U.N. Secretariat to prepare or arrange for the preparation of working documents of a legal, technical, scientific, or economic nature in order to facilitate the work of the Conference. The Preparatory Document No. 10 was drafted by the Secretariat of the FOA and was entitled, "Examination of Living Resources Associated With the Seabed of the Continental Shelf With Regard to Nature and Degree of Their Physical and Biological Association With Such Seabed" (A Conf. 13/13). This document listed lobster under decapod crustaceans. In adult life, it was noted that this organism "lives under stones and among seaweed." A/Conf. 13/13, p. 192. A glossary of marine biology terms and classifications defined the word "sedentary" as "bottom living organisms which although not fixed to the bottom move little if at all." A/Conf. 13/13, p. 196.

40 See Convention on the High Seas, A/Conf. 13/L. 53.

and again affirmed that the preexisting interests of other nationals should be recognized and safeguarded. Although article 68 of the 1956 draft states specifically that the coastal state exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources; and although commentaries (2) and (7) to the 1956 ILC draft indicate that the nature of this right is exclusive and that it does not depend on the occupation or any express proclamation, still the ILC in commentary (6) interpreted the coastal states' rights as limited by respect for the existing rights of nationals of other states. It stated again that any interference with such rights, when unavoidably necessitated by the requirements of exploitation and exploration of natural resources is subject to the rules of international law concerning respect for the rights of aliens.

Further, no right of exclusion of other nationals from preexisting fishing rights of sedentary species on the Continental Shelf is recognized by those charged with responsibility for drafting of the articles. Thus, Sir Hersch Lauterpacht, formerly of the International Law Commission, has commented:

"There is agreement that with respect to sedentary fisheries the assertion of the right over the sea bed within the Continental Shelf ought not to result in the deprivation of acquired rights of foreign nationals." "1

MacDougal and Burke comment that while the 1958 convention does not, unfortunately, contain a specific provision reserving the rights of nonnationals who previously engaged in the exploitation of the natural resources now considered within the exclusive access of the coastal state, the Commission had seemed to state by way of commentary that such previous exploitation was not to be affected by the decision to confer "sovereign right" upon the coastal state. They feel that it is doubtful that the Convention is to be interpreted as authorizing coastal states to prohibit such previously established access except in connection with the exercise of exclusive authority over mineral resources.42

In applying these principles to the king crab fishery now exploited by the Japanese in the high seas waters north of the Alaskan Peninsula, we submit that there is a valid legal basis founded upon international law for continued exploitation of this resource since Japanese exploitation has been almost exclusive and continuous since 1930 except during World War II and the immediate postwar period. In addition, the Japanese have established certain restrictions designed to protect the king crab.

The foregoing analysis establishes two things. First, the United States appears to have no valid claim under international law to the exclusive exploitation of the king crab fishery resources in the high seas waters off the coast of Alaska, since international law as best enunciated in the Convention on the Continental Shelf (art. 2, par. 4) does not include the king crab as a natural resource over which the coastal state exercises exclusive "sovereign rights" of exploitation. Thus, the king crab is outside of the regime of the Continental Shelf and within the regime of the high seas where freedom to fish in the waters of the high seas is a universally accepted principle.

Second, even if the king crab were to be included in the regime of the Continental Shelf, the United States does not have the right to exclude nonnational fishermen from taking the king crab in the high seas north of the Alaskan Peninsula since the Convention on the Continental Shelf as expositive of international law demands that preexisting fishing rights of other nationals be respected by the coastal state.

S. 1988 AND CLAIM OVER KING CRAB RESOURCES

As previously stated, it is generally agreed that even though the Convention on the Continental Shelf is not ratified, the provisions thereof are the most persuasive statement of the present law of the Continental Shelf. Further, it seems that these rules were intended to be of a permanent and binding nature, and that they are not easily susceptible of change without collective effort at revision, concurred in, and acted upon, by the principal maritime nations who are signatories to the Convention. Thus, it is difficult to see how the United States might have a valid claim to exclusive fishing rights over the king crab in this area without a basic modification of international law.

41 Lauterpacht (Oppenheim), vol. 1, 8th ed., 1955, p. 634, note 1.

43 MacDougal and Burke, "The Public Order of the Oceans," Yale University Press, 1962, p. 663.

43

We have taken great pains to demonstrate this fact because as we understand the legislative history S. 1988, heavy penalties apply to the taking by a foreign national of fishery resources over which the United States has a valid claim in international law, and but one basis for these claims is the Convention on the Continental Shelf. However, it appears to us that the king crab cannot be the basis of such a valid international claim by reason of any interpretation of the provisions of the Convention on the Continental Shelf. The distinguished sponsor of S. 1988 suggests that a second source of a valid U.S. claim to the natural resources of the subsoil and seabed of the Continental Shelf off the United States is found in the Submerged Lands Act of 1953 and the Outer Continental Shelf Act of 1953." Senator Bartlett suggests that these acts have made a unilateral claim-"one that has been repeated by numerous other nations and has been recognized in international law"-to mineral and certain living resources of the Continental Shelf. The term "natural resources" as applicable to the subsoil and seabed of the Continental Shelf are defined as oil, gas, and all other minerals, and fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life." We respectfully urge that a unilateral declaration or proclamation can establish no valid claim in international law to the exclusive exploitation of any resource unless acquiesced in by the principal maritime powers in the world, or unless the claims themselves are consonant with established principles of international law. With respect to fish, shrimp, crabs, lobsters, it is clear that international law will not sustain the validity of any claim that these living resources are subject to the regime of the Continental Shelf. In addition, ratification by the United States of the Convention on the Continental Shelf would seem to bind the United States to the definition of "natural resources" found in article 2, paragraph 4, whatever the scope of any claims asserted in the Outer Continental Shelf Act of 1953, a prior statute." Thus, it would seem certain that crabs, lobsters, shrimp, and fish could not be the subject of a valid claim in international law as living resources of the Continental Shelf belonging to the United States.

47

45

SOME CONSTITUTIONAL CONSIDERATIONS UNDER U.S. LAW

1948

46

The previous discussion has proceeded on the basis that the proposed legislation seeks to extend enforcement provisions over U.S. claims valid in international law to exclusive fishing rights for certain species of living resources of the Continental Shelf; that the legislation does not unilaterally establish any new international rights. Throughout the debate on S. 1988 in the Senate, it was reiterated that the bill itself is not a claim to any living resource of the Continental Shelf nor does it attempt to identify such claims, but only to provide for immediate enforcement "of these claims when clarified and when a question is properly raised." But the king crab cannot be a subject of valid claim by the United States, as we have also pointed out. On the other hand, it is our understanding of U.S. law that a subsequent statute duly enacted by the Congress of the United States may nullify the terms of a treaty ratified by the United States with respect to the domestic law of the United States. In view of this analysis, it is pertinent to consider the effect of an attempt to enforce against Japanese king crab fishermen fishing in the high seas waters of the Continental Shelf of Alaska, the provisions of the legislation as it now stands. It is first to be noted that this is a criminal statute providing for extremely severe sanctions. Due process of law under the fifth amendment to the Constitution in a criminal prosecution consists of a law creating or defining the offense which must be sufficiently explicit in its description of the acts, conduct, or conditions required or forbidden, to prescribe the elements or events with reasonable certainty, fix an ascertainable standards of guilt, make known to those to whom it is addressed what conduct on their part will render them liable for its penalties, and not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Corpus Juris Secundum, Con

43 156 Congressional Record, 88th Cong., 1st sess., p. 17555, Senator Robert S. Bartlett. 44 Submerged Lands Act of 1953, Public Law 31, 83d Cong., 1st sess., 43 U.S.C. 1301, 67 Stat. 29 (1953); Outer Continental Shelf Act of 1953, Public Law 212, 83d Cong., 1st sess., 43 U.S.C. 1332, 67 Stat. 462 (1953).

The Truman Fishery Proclamation ex

45 United Kingdom v. Norway (1951), I.C.J. Rept. 116 at 132. 46 Executive Order No. 2668, Sept. 28, 1945. pressed established principles of international law. 47 MacDouglas and Burke, op. cit., p. 669, note 300.

45 156 Congressional Record, 88th Cong., 1st sess., p. 17555.

30-021-64—13

stitutional Law, section 580. The Supreme Court has held that the due process clause of the fifth amendment requires that "criminal statutes *** give due notice that an act has been made criminal before it is done (Jordan v. DeGorge, 341 U.S. 223, 230, 71 S. Ct. 707, 95 L. Ed 886). The statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of the due process of law (Connally v. The General Construction Company, 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322). In attempting to find a definition of crime which comports with standards of due process under the fifth amendment, we look upon the entire text of the statute and the subject matter it deals with.

With respect to the provisions concerning the Continental Shelf, the statute makes it unlawful for any vessel except a vessel of the United States or for any master or other person in charge of such vessel * **"to engage in the taking of any Continental Shelf fishery resource which appertains to the United States except as provided by international agreement to which the United States is a party." The term "Continental Shelf fishery resource" is not a word of art used in the fishing industry to indicate any individual specie or grouping of species of fish to which the prohibition of "taking" can be applied. Therefore, the statute without more on its face does not establish an adequate standard and we attempt to judge the intent of Congress from the legislative history. Senate Report 500 at page 3 states that "it has not been settled which seabed resources belong to the United States under the Convention on the Continental Shelf and other applicable law and which do not. The committee does not wish to prejudge the question but it seems to the committee that oysters, clams and certain crabs would be included."

In a debate on S. 1988 in the Senate, Senator Bartlett, the sponsor of the legislation, and the floor manager for the legislation, states that the basic purpose of the bill is to provide for the enforcement of our territorial waters and the U.S. claim to the resources of the Continental Shelf which as yet have not been determined. Further, the Senator admits that under the Outer Continental Act, the United States has never specifically or formally named the resources which appertain to the United States. In addition, he states that this legislation (S. 1988) does not attempt to identify these exact claims either, but it does provide for the immediate enforcement of these claims when clarified.

In analyzing the legislative history, it would seem to be a fair statement that the sponsors of the bill almost refuse to define which of the numerous types and classifications of seabed resources belong to the United States and are the object of the prohibited taking for which such severe sanctions are assessed. The Senate Report 500 seems to admit that it is not settled which seabed resources are the subject of valid claims by the United States. Since one assumes that these species must be claimed validly under international law, one could assume that shrimp, crab, lobster, and finny fish at least are not the subject of valid U.S. claims. But there is no assurance of even this and fishing by nationals of other states in the waters of the high seas of the Continental Shelf of the United States is substantial in terms of products derived and in terms of capital investment. In the final analysis, men of common intelligence must necessarily guess at the meaning and differ as to the application of this legislation. It is our conclusion that under applicable U.S. law, the statute is probably void for vagueness on its face and if enacted, would probably raise serious questions in the light of the due process clause of the fifth amendment.

Since the fifth amendment states that "no person shall be deprived of life, liberty, or property without due process of law," the courts have held that friendly aliens within the jurisdiction of the United States are entitled to the protection of the fifth amendment to the Constitution (Wong Wing v. the United States, 163 U.S. 228 at 238, 41 L. Ed. 140 at pp. 144, 145 (1895); and see dicta, Johnson v. Eisentrager, 339 U.S. 763, 94 L. Ed. 1255 at 1266 (1949)). It is submitted that Japanese king crab fishermen fishing for king crab in the high seas waters north of the Alaskan Peninsula arrested and charged with illegal taking of "Continental Shelf fisheries resources" when brought before a U.S. court could avail themselves of the fifth amendment to the Constitution of the United States. In our opinion, the measure as it presently stands, probably would be declared to involve a denial of due process of the law.

CONCLUSION

In the light of the foregoing, it is urged that the provisions of S. 1988 specifically as they relate to the taking of any Continental Shelf fishing resource which appertains to the United States be reconsidered if it is intended to include within such "fishing resource" the king crab or to exclude nonnational fishermen from areas where they have preexisting fishing interests.

Hon. HERBERT C. BONNER,

NATIONAL SHRIMP CONGRESS, INC.,

Key West, Fla., February 14, 1964.

Chairman, Merchant Marine and Fisheries Committee,
House of Representatives, Washington, D.C.

DEAR MR. BONNER: It is noted that hearings have been set to consider S. 1988 and similar bills which are now before your committee.

The National Shrimp Congress which is composed of directors from the regional associations in the Southern States is vitally concerned with this legislation as it affects the domestic shrimp industry. I therefore enclose a statement which outlines the effect that this type of legislation has upon the shrimp industry and urge that the committee consider these matters carefully before reaching its final decision.

Very respectfully yours,

WILLIAM R. NEBLETT,

Executive Director.

STATEMENT OF THE NATIONAL SHRIMP CONGRESS ON S. 1988, PROTECTIVE LEGISLATION AND THE U.S. SHRIMP INDUSTRY

The most amazing and rapid change in national policy in the history of the U.S. fishing industry is exemplified in S. 1988 on which hearings were held on September 5 and 6, 1963, before Senator Bartlett's subcommittee. Witnesses for the Departments of State, Interior, Navy, and Coast Guard (Treasury) blessed and approved the objectives of the bill, "to prohibit foreign fishing in U.S. territorial waters and in certain other areas." The Northwest and Northeast cried for protection. One lonesome voice from the tuna fishery evidenced some alarm over stringent provisions in the bill authorizing the imprisonment of offending foreign crews. Tuna had not forgotten that their distant fishing vessels and crewmen were subjected to seizures in the Southeast Pacific, and thought that the bill should be tempered somewhat, perhaps to avoid retaliation.

The nations which are at odds with the U.S. tuna fleet do not fish in U.S. waters. Sanctions intended primarily for the Soviets and the Japanese will not resolve the problem of the tuna fleet. The only sanction which will help the U.S. tuna fisherman is the economic one, such as proposed by Congressman Van Deerlin (H.R. 6656) and Senator Engle (S. 1651) which would authorize the President to impose an embargo on any fish or fish products from countries which harass U.S. fishermen on the high seas. There is also Congressman Pelly's bill (H.R. 7815) and others of similar scope.

The domestic shrimp industry can join other U.S. fisheries in approving the basic intent of S. 1988. Federal protection is greatly needed. The undersigned, on behalf of the shrimp industry, proposed and helped to pass protective legislation (H.B. No. 942) in the recent session of the Florida Legislature, but the capacity of individual States to deal with this matter is severely limited. (See attachment "A.")

U.S. BECOMING COASTAL STATE

As we now rapidly join the "coastal States” in sudden and rabid protectionist measures, the voice of the shrimp industry must be raised and heard to point out certain dangers inherent in this period of transition-not to oppose the overwhelming trend, but to caution the lawmakers not to destroy by inadvertence the only distant-fishing fleets proudly carrying the U.S. flag-tuna and shrimp.