Mark B. Feldman international law

Garvey Schubert Barer

202-321-2690

Georgetown University Law Center (foreign relations law) 

Former Deputy and Acting Legal Adviser U.S. Department of State 

FOOTNOTES TO HISTORY: Experiences of a State Department attorney- diplomat (1965-1981).  

                                                         WORK IN PROGRESS

PRESIDENT NIXON

Peru- IPC Case: On Easter Sunday, April 6, 1969, Ambassador John Irwin, President Nixon’s Special Emissary to Peru, met with the President to discuss the Administration’s decision not to sanction Peru publicly by formally applying the Hickenlooper Amendment in response to Peru’s uncompensated expropriation of the International Petroleum Company.  Nixon confirmed the decision telling Irwin that he was mindful of the dire consequences when the Eisenhower Administration refused funding for Nasser’s Asswan Dam project.  I accompanied Irwin to this one-hour meeting at Bebe Rebozo’s Key Biscayne house. No one else attended, but Press Secretary Ron Zeigler spoke to us afterwards.  Irwin and I were returning to Peru by government jet following week-end discussions at the State Department.

Chile 1970, Copper negotiations - the route not followed: The election of Salvadore Allende as President of Chile on September 4, 1970 surprised and shocked the Nixon Administration.  Much has been written of all that followed, but I have found little notice of an effort made by U.S. Ambassador  Edward Korry to shape U.S. relations with the new Chilean regime before Allende was inaugurated on November 2, 1970.  Allende had campaigned on a promise to nationalize major U.S. investments in Chilean copper mines and other industries.  No one doubted that Allende would keep that promise, and few expected the new regime to provide meaningful compensation.

Ambassador Korry, who was known as an active envoy with a track-record on copper issues in Chile, decided to try and defuse the nationalization issue by launching compensation negotiations before the regime took office.  Korry was in Washington for consultations in late October, 1970, and he asked me (then Assistant Legal Adviser for inter-American Affairs (L/ARA)) to accompany him to Santiago to assist.   We arrived in Chile on October 23, 1970 to be greeted by news of the assault on Chilean General Rene Schneider – a most inauspicious beginning.

Presumably, Korry believed he had approval for this initiative, but within hours of our arrival he told me that the White House had instructed him to abort the mission.   I returned to Washington the next day after one meeting with an Allende supporter.   Apparently, the Nixon Administration preferred a more distant relationship with the Allende government.  Eventually, the U.S. did enter compensation negotiations with that regime, but they did not succeed.

PRESIDENT CARTER

Maritime boundaries:  The Fishery Management and Conservation Act (1976),[1] enacted over DOD/State opposition, extended U.S. fishery jurisdiction out to 200 miles, thus overlapping maritime limits of neighboring states and creating potential boundary disputes with Canada, Mexico, USSR, Cuba, Venezuela, Dominican Republic, Bahamas, and British V.I. (plus Pacific islands)

Maritime boundary matters fell under the jurisdiction of the Office of the Legal Adviser supported by the OES Bureau and the Geographer.  Under general direction of the Legal Adviser and aided by a talented staff, including David Colson and Bernard Oxman, I chaired an inter-agency  committee that determined the maritime limits to be claimed by the United States.  U.S. positions were based on international law principles and U.S. national interests, including natural resources, national security, and a strong U.S. interest in avoiding unnecessary conflicts with friends and adversaries.   U.S. claims were formally defined by Notice, dated, March 7, 1977, announcing the limits of the U.S. fishery conservation zone.  Guided by the principle that maritime boundaries between adjacent and opposite states are to be determined by agreement in accordance with equitable principles, we sought to negotiate boundary agreements with all our neighbors.  

For full discussion of U.S. maritime boundary policy, see Feldman and Colson, The Maritime Boundaries of the United States, 75 AJIL729 (1981); S. For Rel Ctte Report re Maritime Boundary Treaties with Mexico, Venezuela and Cuba,   Ex. Rep. 96-49, 96 Cong., 2d Sess. August 5, 1980, which includes my prepared testimony and dialogue with Senators ( June 12, 1980)

Mexico  --  The U.S. and Mexico signed a treaty in May 1978 establishing boundary lines in the Pacific Ocean and Gulf of Mexico based on points equidistant from the coasts of the Parties giving effect to certain islands.[2]  Giving full effect to these islands began at Mexico's instance with the delimitation of 12 mile contiguous zones in Article V of the 1970 U.S. - Mexican Treaty regarding the land boundary.[3]  At that time, the Legal Adviser's office noted that Mexico may have been looking down the road to the future extension of 200 mile maritime zones.  Applying the 1970 model in that context would push the Pacific boundary south to U.S. advantage while benefitting Mexico in the oil-rich Gulf of Mexico.  200 mile zones were not discussed by the two governments in 1970, but we assumed that Mexico knew exactly what it was doing and had decided that its long-term interest was best served by maximizing future oil revenue. 

The Legal Adviser’s Office concurred in the 1970 treaty text on the assumption that Mexico would take the same position on extended maritime boundaries down-the-road and that the United States would be prepared to agree.  We anticipated that the U.S. would accept a line in the Gulf more advantageous to Mexico because early agreement on the boundary would avoid a boundary dispute with Mexico and permit drilling to proceed promptly to the benefit of both parties.  At the same time, the advantageous line in the Pacific would benefit U.S. fishing interests and better protect U.S. law enforcement and national security interests.   The United States also had significant  island interests potentially relevant to maritime boundary delimitation, including the Florida Keys.  Giving full effect to islands was thought to maximize U.S. resource and security interests while facilitating agreement with our neighbors.

Maritime boundary negotiations developed exactly as expected when the two countries adopted 200-mile zones in 1976-77.  The U.S. and Mexico concluded a provisional boundary agreement by exchange of notes on November 24, 1976[4] following the 1970 precedent, and a treaty using the same boundary lines was signed on May 4, 1978. The Interior Department, the agency responsible for off-shore drilling, was eager to have early agreement on the boundary so that exploration and production could get started.  All parties recognized that the Gulf was prospective for hydrocarbon development, but we assumed that deep water drilling was decades off.  As it turned out, U.S. ratification was delayed until 1997 due to criticism (much exaggerated) that equidistance gave the Mexicans too large a share of hydrocarbon resources in the Gulf.     

Fortunately, the 1976 exchange of notes provided that the lines established therein were to be applied provisionally “pending final determination by treaty.”   I adopted this approach to protect U.S. interests in an uncertain world recognizing that the Executive traditionally has formulated U.S. boundary positions and confident that I was following past practice for provisional agreements and modus vivendi.  This history and rationale is elaborated in Feldman and Colson, The Maritime Boundaries of the United States, 75 AJIL 729, 740 (1981). 

Understandably, Mexican fisherman reacted badly to the Pacific boundary line, and I inadvertently complicated matters for some of the Mexican negotiators by testifying to the Senate Foreign Relations Committee that the boundary line was a negotiated agreement involving trade-offs.  To my mind, this was obvious; all agreements made are negotiated unless imposed, and the trade-offs were apparent to both parties.  Nevertheless, I was accused of misrepresenting the facts as there was no overt discussion of the trade-offs:  “Mexico [it was said] would have absolutely opposed such a trade-off.” [5]   

[1] P.L. 94-265, 16 USC 1801-1884.

[2] 2143 UNTS 405,entered into force November 13, 1997.

[3] Treaty to Resolve Pending Boundary Problems and Maintain the Rio Grande and Colorado River as the International Boundary, 23 UST 373, TIAS 7313.

[4] 29 UST 196, TIAS 8805.

[5] Szelkey, 22 Nat. Resources J. 155, 158 (1982).