Fig. 25.—The Varanger fjord.
Within the territorial waters as described above, Norway claims the exclusive right to the fisheries and all the sovereign rights that are usually exercised in territorial seas, as well as one that is not as a rule included—namely, the right to control all navigation. All vessels within the territorial waters are likewise subject to the control of the customs authorities, while in Sweden the Customs Law of 1877 extends jurisdiction to a distance of one Swedish league from the base-line. The Government does not rest its claim to so large an extent of the bordering sea merely on the principle which is usually held to determine its bounds—the range of cannon fire,—though it is pointed out that the Norwegian boundary is in reality more in conformity with the range of modern artillery than is the three-mile limit. They argue, very truly, that the zone of one marine league, although adopted in conventions between several Powers, has not been definitely established in international law, and they have themselves always refused to agree to a limit so narrow. But the principal reasons advanced are those of necessity and utility. The Norwegian coast is peculiarly irregular. It is engirdled by a multitude of islands, reefs, and rocks, and is broken up by numerous fjords which penetrate deeply into the land. A three-mile limit applied to such a coast on the principle adopted in the North Sea Convention would be intricate, confusing, and impracticable. The boundary would be exceedingly irregular, and patches and strips of extra-territorial water of the most diverse size and form would be intermingled with the territorial water; and in practice it would be extremely difficult or impossible for foreign fishermen to observe the complicated boundary, or for the authorities to enforce it. Constant disputes would result.
Another reason put forward is a moral one. The country is comparatively sterile; the climate is rigorous; the people are poor, and the fisheries are of the utmost importance for their maintenance. A large proportion of the population derive, and have always derived, their livelihood from the sea, “with which they wage a desperate war in the darkness and tempests of winter and spring to gain their daily bread.”1242 It is therefore only just that this natural source of food along their coasts should be conserved as much as possible, so long as the manifest rights of other nations are not violated, and that the poor native fishermen, pursuing a hard and laborious calling, which necessity has imposed on them, should be protected from the intrusion of foreign vessels, better equipped and with more capital at their disposal. It is further urged that the Norwegian fishermen have enjoyed the wider area for many centuries. From immemorial times the right of fishing has been regarded as pertaining to the land. This principle was enunciated in the old provincial laws (landskapslagar) of Sweden in the middle ages, and was continued in the laws of the kingdom since the fourteenth and fifteenth centuries.1243 It is also declared that a smaller extent of territorial sea would interfere with the efficacy of the regulations enforced for the preservation of the fisheries. A lesser boundary would intersect the more important fishing-banks, “making it impossible,” to quote the words of the Minister of the Interior, “for the state to regulate the fisheries on the whole bank, and it would be fatal to those fisheries which are necessary for the subsistence of the coast population.” This consideration, it is pointed out, is likely to have still more weight in future, owing to the increase of the population and the impoverishment of the fishing-grounds along the coast.
The claim of Norway to the wider extent of territorial sea has been as a rule respected by foreigners, probably owing in the main to the fact that its coasts are but little visited by foreign fishermen, but it has not remained without challenge. The French Government on one occasion complained that a French vessel had been prevented from fishing in the Vestfjord; but the prohibition was justified by Norway on the grounds that by the law of nations the Lofoten fisheries, and especially those in the Vestfjord, which was “part of the territorial sea,” belonged exclusively to the inhabitants, and that for centuries no foreign vessels had attempted to take part in them.1244 In communicating the decision to the French Government, the Minister for Foreign Affairs declared that the prohibition applied equally to the adjacent sea and to the entrance to the fjord up to the distance of a marine league (of four miles), measured from the most southerly point of the isles called “Röst”—a group which lies about twenty-six geographical miles west and south of Moskenæs, and about sixty geographical miles from the mainland.1245 In 1870 another foreign Government raised objection to the limits defined off Romsdal by the royal decree of 16th October 1869, on the ground that the base-line drawn between the islands Svinö and Storholmen exceeded eight ordinary marine miles in length, which was the maximum distance according to the Norwegian principle, already referred to, for the inclusion of the “outermost” island. The Norwegian Government, however, declared that by the law of nations it was competent to include a bay or a gulf of “not too large an extent” by drawing the line from one advanced point to another, and that it was necessary to consider local circumstances and what was natural, convenient, and just. The line that had been drawn, they said, coincided with a natural depression in the bottom of the sea which separated the inshore from the offshore fishing-banks, and it formed a natural boundary which could be readily ascertained by the use of a sounding-lead. To adhere strictly to the four-mile line in this case would make the limit intricate and impossible to be observed, and it would pass across the inshore banks. It was also argued that till lately foreign fishermen had never attempted to fish in the neighbourhood, even within a space far more extensive than that comprised in the decree.1246
Since the period referred to, the limit claimed by Norway is said to have been respected by foreign states and by foreign fishermen; and the Scandinavian Government has officially declared on several occasions, and notably in December 1874 to the British Government, that it would never adhere to any international convention which established a maritime zone of less than four marine miles. It declined to become a party to the North Sea Convention of 1882 for this reason, and because the line for the closure of bays was in its opinion much too small. The only treaties with foreign countries in which a limit has been fixed are the one between Sweden and Denmark, previously mentioned, in which the Scandinavian boundary is maintained, and one with Mexico, in 1886, for customs purposes, which stipulates for three marine leagues from low-water mark.1247
It is evident that Sweden and Norway, besides claiming a greater extent of territorial water than other countries, also claim in particular cases to depart from the principles which in general govern their own system of delimitation, in order to include other waters lying off their coasts, when they deem it necessary to reserve the fisheries there for their own subjects. In such cases it is said to be impossible to be guided by geographical rules of an absolute kind, and it is urged that any general international rules on the question should be sufficiently elastic to allow of similar exceptions elsewhere.1248 There is little doubt that the wider area claimed by the Scandinavian states is, from the point of view of sea fisheries, preferable to the narrower zone adopted in the North Sea Convention. It will appear later, that both the authorities on sea fisheries in various countries and the authorities on international law agree as to the inadequacy of the three-mile limit for fishery purposes: and it is hardly probable that the Government of any other country will now seriously contest the right of Sweden and Norway to the larger area they claim, unless under exceptional circumstances. Norway has been fortunate in this respect, that her coasts are rarely visited by foreign fishing vessels; but this immunity is not likely to continue. During the last few years the great feature of the sea fisheries both in Great Britain and also on the Continent has been the enormous development of steam-fishing, particularly trawling (see p. 698). Confined for a time to the North Sea and the neighbourhood of their own coasts, steam fishing-vessels now regularly visit distant quarters in large numbers, and trawlers from England and Germany make the long voyage to the grounds off the White Sea, traversing the whole coast of Norway, in quest of fish. The absence of foreign competition in the fisheries of the Norwegian coast is due largely to the generally rough and rocky nature of the bottom and the great depth of the water, which make trawling difficult or impossible; but there are, no doubt, within the territorial limits, more or less restricted areas where trawling could be carried on with success, and if these be discovered by foreign vessels, and they are outside the ordinary three-mile boundary to which they are accustomed, there is little doubt the question of the Norwegian claim will be raised again. Line-fishing by steamers is now, moreover, greatly developed, and this method of fishing can be pursued, and is now pursued by the Norwegians, in deeper water and on rocky bottom, as in the Vestfjord and off Romsdal. In the summer of 1907, indeed, one or two British trawlers were seized by the Norwegian authorities for fishing within their territorial waters at Finmarken, but were released later.1249
From the account which has been given above of the recent practice of civilised states it is apparent that the majority of them have adopted the three-mile limit, with a ten-mile base-line for bays, for fishery purposes. There is a tendency, moreover, for this process to be continued and extended, as is shown by the recent treaty between Great Britain and Denmark concerning the ocean around Iceland and the Faröes, and the action of the British Government respecting the six-mile limit on the coasts of Spain and Portugal. It is possible, and indeed likely, that the Spanish and Portuguese Governments have protested against the infringement of what they regard as their just rights; but if they are unable or unwilling to maintain them, and the three-mile limit comes to be the only one observed on their coasts, the usage will settle the matter in the course of time. Up to the present, however, Norway and Sweden have very justly resisted all attempts to impose on them the ordinary limit and bring them into line with other Powers, and they have successfully caused their wider bounds to be respected. The diversity in practice between the Iberian and Scandinavian states and the other states of Europe may be traced to the modes by which the limits were evolved. In the former case, the boundaries were fixed in the middle of the eighteenth century, without special reference to the range of the guns of the time. The three-mile zone, on the other hand, was developed early in last century from the doctrine of Bynkershoek, three miles being then looked upon as approximately the range of cannon.
The general adoption of this limit, as previously said, was due in great measure to the preponderating influence of Great Britain and America in maritime affairs, the lesser states following their example, willingly or with reluctance. It is not too much to say, indeed, that the three-mile boundary in its origin and development is an Anglo-American doctrine, its authors being Washington and Lord Stowell. It is thus of interest to consider the opinions of modern writers on international law on the question, and to see how far they agree with or differ from their predecessors, whose opinions have been previously passed under review. It will be found that, considering the extent to which the three-mile limit has been actually applied in practice, the writers who accept it as the established rule in international law are singularly few, and are for the most part English or American. It will be also noticed how extremely loose some writers, even of high authority, are in their use of the terms “three miles or the range of guns,” as if they were now synonymous, which they are not. Such looseness of phrase is not absent from some judicial decisions on the question, as in that of Lord Cockburn in the case of Regina v. Keyn, previously referred to (p. 591).
Another statement that one not uncommonly finds in the text-books, and to which currency was given by Lord Stowell, is that since the invention of firearms the distance at which the power of the state, and therefore the territorial waters, terminated, has usually been recognised as about three miles from the shore. Calvo, a writer of much authority, also makes this statement, affirming at the same time the doctrine of Bynkershoek as the principle of delimitation.1250 In view of the range of modern artillery, he, however, considers this space too small, and is of opinion that it ought justly, on grounds of logic and reason, to be extended; but until this extension has been sanctioned by a majority of states he looks upon the three-mile limit as the established rule of international law. Much the same view is expressed by Bluntschli.1251 He defines the territorial sea according to the range of guns, and says that international treaties or the laws of states may fix more precise limits, such as one marine league from the coast at low-water; but, considering the increased range of artillery, he is disposed to think the three-mile limit insufficient. Phillimore, one of the greatest English authorities, agrees with Calvo.1252 He states that the rule of law may now be considered as fairly established that absolute property and jurisdiction in the adjacent open sea “does not extend, unless by the specific provisions of a treaty, or an unquestioned usage, beyond a marine league (being three miles) or the distance of a cannon-shot from the shore at low tide.” The limit, he says, was fixed at a marine league because that was supposed to be the utmost distance to which a cannon-shot from the shore could reach; and he adds that the great improvements recently effected in artillery seem to make it desirable that this distance should be increased, but he holds that this can be done only by the general consent of nations, or by specific treaty with particular states. Phillimore, like most of the other writers, was apparently ignorant of the fact that the Scandinavian and the Iberian Powers claimed a limit much farther than three miles.
Halleck follows Wheaton in saying that the general usage of nations superadds to bays, &c., an exclusive territorial jurisdiction over the sea for the distance of one marine league, or the range of a cannon-shot, along all the shores or coasts of the state, and that the maxim of law on the subject is terræ dominium finitur ubi finitur armorum vis, “which is generally recognised to be about three miles from the shore.”1253 On the other hand, Lawrence, in his edition of Wheaton (p. 321), says very definitely that all the space through which projectiles thrown from the shore pass, being protected and defended by these warlike instruments, is territorial and subject to the dominion of the Power that controls the shore: “The greatest reach of a ball fired from a cannon on the land is, then, really the limit of the territorial sea.” Bishop, also accepting Bynkershoek’s principle, says that a cannon-shot is estimated for the purpose of delimiting the territorial seas at a marine league, but, like so many others, he argues from the improvement of artillery that, “in reason, the distance would now seem to require extension.”1254 Woolsey, likewise adopting the three-mile limit “or” cannon range, is of opinion that, “as the range of cannon is increasing, and their aim becoming more perfect, it might be thought that the sea-line of territory ought to be wider,” though this author does not think the point likely to become of great importance.1255 Dana expresses the usual vague opinion of the English and American writers in regarding it as “settled that the limit of the territorial waters is, in the absence of treaty, the marine league, or the cannon-shot.”1256 Sir Travers Twiss also speaks of the range of guns, which, he says, with the common lack of information respecting some other countries, “by consent is now taken to be a maritime league seawards along the coasts of a nation.”1257
Rather different opinions are expressed by Fiore, an Italian writer of eminence. While pointing out that publicists are not agreed as to the extent of the territorial sea, he thinks it should be determined by the necessity of the case and the nature of the particular rights claimed, as fishing, dues connected with navigation, and defence: for the latter purpose he is of opinion that the zone should increase with the improvement of artillery. With regard to the rights to certain fisheries, he says that the fishing for coral,—an important industry in Italy,—for example, belongs to the people of the neighbouring coast where it is found.1258 Pradier-Fodéré holds strongly to the doctrine of cannon range. The extent of the territorial sea, he says, depends upon the power of artillery from shore; the farthest distance a shot can be thrown, according to the progress of military art, is the limit of the territorial sea, and he adds that this is the principle almost universally adopted, although, “since the invention of firearms,” this distance has usually been considered as three miles.1259 Perels, a German writer of eminence, accepts the doctrine of Bynkershoek that the sovereign jurisdiction of a state extends in the sea to the distance of a cannon-shot from the coast, and he says the extension of the boundary-line depends upon the range of cannon-shot at the particular period, but is the same at any period for all coasts. British and American publicists, he adds, have generally adopted three miles as an equivalent, but this has not usually been done by Continental authorities.1260 Another writer, Ferguson, gives a novel explanation of the reason why three miles is generally adopted in practice. He says the distance referred to is presumed to be the range of the coast defences, but on the maxim that terræ dominium finitur ubi finitur armorum vis, it should be stated to extend to any point on the sea to which the cannon of actual coast defences on shore can carry a projectile. Since, however, the carrying power of any given cannon is such a vague measure, the three-mile radius is generally adopted.1261
In the opinion of Desjardins, the expression territorial sea must be taken in the precise sense given to it by international law. Maritime territory, he says, is only made effectively inviolable at the real range of cannon from the coast, and the laws of police or customs usually applied in time of peace cannot prevail against a principle founded on the nature of things. In his opinion a prize taken beyond three miles from the coast, but within the range of guns, would be illegitimate, while it would be legitimate within the particular limits fixed by a neutral state if beyond the range of guns.1262 Latour, another recent French writer, also argues that the three-mile limit is not necessarily the true one, but that it depends on the actual range of guns from the shore.1263 On the other hand, Professor Kleen, in his work on the laws of neutrality, considers the Scandinavian method of delimiting the territorial sea the proper one, since the extent depends not only on the mainland but on the “adjacent isles.” Admitting that the distance from the coast at which the external limit is fixed is, according to the positive international law of to-day determined by the range of cannon, he thinks this measure is so susceptible of change and controversy that it is desirable to replace it by a fixed one, which ought not to be less than four marine miles. The range of guns is much greater than four miles; and there are some coasts where the geographical configuration requires that a larger area should be subject to the territorial state, in order to avoid collision with foreigners as well as encroachments on the natural rights of the inhabitants. He is of opinion that Bynkershoek’s doctrine was wrong in certain respects: it reposed on a basis of brute force; the range of guns differs in different countries and at different times; and the range of the most powerful modern gun is too much to allow a state the exclusive possession of the sea up to that distance from the shore. The range of guns, he says, is admissible in respect of war and neutrality, but in all other respects the distance ought to be fixed and mathematically determined independent of military force, and should be the same everywhere.1264
Another Scandinavian publicist, Professor Aschehoug, also argues for a wide extent of territorial sea under international law, according to the principles previously described. He thinks that it is impossible to exclude from the territorial sea of a people that space which is commanded by their guns on shore; and vice versa, this space is necessary to preserve the shores from the projectiles of belligerents. The state has all the rights of sovereignty in this area, as those connected with neutrality, police, inspection, jurisdiction, and the exclusive right of fishery and other usufructs, except the right of forbidding navigation.1265
The eminent Russian authority, Professor de Martens, expresses a strong opinion that the three-mile limit is now quite inadequate, and that a state has the power to extend it. The only true boundary of the territorial sea is, he says, the range of guns from the coast, Bynkershoek’s aphorism—terræ dominium finitur ubi finitur armorum vis—forming the only legal and rational foundation for the delimitation. Within the zone so determined the bordering state has exclusive sovereignty and dominion, and the exclusive right of fishing. The limit of the territorial waters ought therefore to change with the modifications in the range of cannon. If at one time the reach of guns was three miles, then the extent of the territorial sea at that time was only three miles. If at the present day, he says, cannon carry to twelve, or even fifteen, miles, the territorial waters extend to the same distance. De Martens, however, thinks that an international agreement with regard to such limits is necessary to ensure the success of the measures of protection established in the open sea for the preservation of the legitimate interests of each nation, especially with regard to fisheries. But he holds that until such an international arrangement has been accomplished, each state has the incontestable right to declare as its territorial sea the waters which are dominated by batteries on its coasts. In view of the necessity of precisely defining the range of cannon, and the exigencies of international commerce, the bordering state, he says, may limit this distance to a number of miles fixed by law; and he himself advocates a limit of ten miles, instead of three miles, as being more in conformity with the actual range of guns, and better fitted to protect the interests of the coast population who subsist by sea fisheries.1266
The latest English writer of authority on international law, Mr W. E. Hall, who has given a lucid and philosophical account of the territorial sea, is also of opinion that the three-mile limit is inadequate. The boundary, he says, is generally fixed at three miles, but this distance was defined by the supposed range of guns of position, and the effect of the recent increase in the power of artillery has not yet been taken into consideration, either as supplying a new measure of the space over which control may be efficiently exercised, or as enlarging that within which acts of violence may be dangerous to persons and property on shore. “It may be doubted,” he continues, “in view of the very diverse opinions which have been held until lately as to the extent to which marginal seas may be appropriated, of the lateness of the time at which much more extensive claims have been fully abandoned, and of the absence of cases in which the breadth of the territorial waters has come into international questions, whether the three-mile limit has ever been unequivocally settled; but in any case, as it has been determined, if determined at all, upon an assumption which has ceased to hold good, it would be pedantry to adhere to the rule in its present form; and perhaps it may be said without impropriety that a state has the right to extend its territorial waters from time to time at its will with the increased range of guns; though it would undoubtedly be more satisfactory that an arrangement upon the subject should be come to by common agreement.” In a later edition of his work, which appeared after the results of the international conferences of publicists, to be presently referred to, were known, he says that it is felt and growingly felt, not only that the width of three miles is insufficient for the safety of the territory, but that it is desirable for a state to have control over a larger space of water for the purpose of regulating and preserving the fishery in it, the productiveness of sea fisheries being seriously threatened by the destructive methods of fishing which are commonly employed, and in many places by the greatly increased number of fishing vessels frequenting the grounds.1267 A still later writer, Oppenheim, has apparently much the same opinion, for he says that although many states in municipal laws and international treaties still adhere to a breadth of one marine league, the time will come when by common agreement of the states concerned such breadth will be very much extended.1268
While there is thus some diversity of opinion among modern writers on the law of nations, both as to the actual extent of territorial sea belonging to a state and in respect to the principles which should govern its delimitation in certain cases, there is all but universal acceptance of the rule that in general the limit is determined by the range of guns. Practically all authorities are agreed that this is the historical basis of the demarcation, and the majority of publicists, as Schmalz, Klüber, Reddie, Ortolan, Hautefeuille, Pistoye and Duverdy, Massé, Bluntschli, Pradier-Fodéré, Lawrence, Perels, Desjardins, De Martens, and Aschehoug, adhere to it as the only true principle. This adherence to Bynkershoek’s doctrine logically implies that the range of artillery at any particular period governs the extent of the territorial sea at that period, and several authorities, as Ortolan, Lawrence, Perels, Desjardins, and De Martens, accept this view in its bare and absolute form, while others, though willing to agree to it as proper and reasonable, think that a mutual arrangement on the subject is first of all desirable or necessary, or that it applies specially to questions of neutrality. There are very few writers, on the other hand, who are of opinion that the three-mile limit has become established in international jurisprudence as the legal limit, notwithstanding that it is the limit commonly adopted. Calvo and Phillimore are the most important authorities who take this view, but both think the extent is too small and ought logically to be increased owing to the greater range of artillery,—an opinion which is shared by Bishop, Woolsey, Fiore, and Hall. Nearly all those who mention three miles as the boundary of the territorial seas—and they are almost wholly English or American—couple with it the alternative, “or the range of cannon,” as Wheaton, Manning, Halleck, Phillimore, Bishop, Dana, Twiss, Ferguson, and Woolsey. In this they merely adopt the language used by Lord Stowell at the beginning of last century, and which was quite appropriate at the time. But for more than half a century the range of guns has exceeded three miles, and to use the terms now as if they were synonymous tends only to confusion. Some modern publicists, it may be added, as Kent, Heffter, and Fiore, follow Wolff and Vattel in the opinion that the limit of territorial waters may be extended in certain cases beyond the range of guns.
Moreover, quite lately the subject of the territorial sea has been jointly and exhaustively inquired into by the leading publicists of Europe, and with important results. In 1887 the International Law Association appointed a committee to consider the definition and régime of the territorial waters, and two years afterwards the Institut de Droit International followed the same course.1269 A long series of questions was circulated among the members to elicit their opinions on the various points connected with the subject; the whole matter was discussed and considered at various subsequent annual meetings; and the rules as finally adopted and approved by the Institute and the Association may therefore be fairly taken as representing the latest views of European publicists.
With regard to the question of the limits of the territorial sea. it was very generally held that a distinction should be drawn between various sovereign rights, as the right of fishery and the rights of neutrals during war. The two limits commonly recognised—namely, cannon range and three miles from low-water mark—were no longer identical. Three miles was now too small a distance for safeguarding the coasts of a neutral from the projectiles of belligerents, and the range of modern artillery fluctuated, and was besides considered to be too great a distance for the exercise of exclusive rights of sovereignty. Sir Thomas Barclay’s proposal was therefore to reaffirm the limit of cannon range as the public law of Europe, but to confine its application to the right of the neutral as founded in reason, and to establish another and a lesser boundary for the exercise of the exclusive sovereign rights of the neighbouring state. The former limit was a “zone of respect”; the latter bounded the true territorial sea. There was general agreement that the neutral line or zone of respect should coincide with the actual range of guns; but some were of opinion that the range should be considered not from the coast, on the principle of Bynkershoek, but from the sea, and others that the neutral zone should be measured from the boundary of the true territorial sea, in order to prevent violation of the latter by the bullets of belligerents. Since the range of guns, however, is uncertain and variable, and the line of respect must necessarily vary with it, it was decided finally not to adopt a fixed distance, but to recommend that in case of war the neutral state, taking the range of guns as the basis, should itself fix and declare the extent of its neutral waters beyond the limit of the territorial sea.
There was not the same agreement as to the limit which should be recommended as the boundary of the territorial sea, within which the rights of the state are much more complex, and of which the extent should be precisely fixed. The historical principle of demarcation—the range of cannon—having been transferred to the line of respect, the only other limit in common use was the three-mile limit, and this was the distance at first proposed by Sir Thomas Barclay in the draft rules, mainly because it was the one which was usually recognised by international usage. But the preponderating opinion of Continental publicists favoured a more extended boundary, in view more particularly of the right of fishery, the distances proposed varying from five to ten miles from low-water mark;1270 and Professor Auber, of Christiania, advocated the extension of jurisdiction with respect to fisheries beyond the limit fixed for the territorial sea, to apply equally to subjects and foreigners, each state assigning boundaries for such jurisdiction, either itself or by convention between the Powers interested, and a similar proposal was made by the Canadian representative, who suggested that the jurisdictional zone should extend to nine miles. Owing to these opinions, and also to the report of the Sea Fisheries Committee of the House of Commons in 1893, presided over by Mr Marjoribanks (the late Lord Tweedmouth), which proposed an extension of the territorial waters in the interests of the fisheries,1271 the three-mile limit was abandoned, and one of six miles from low-water mark recommended instead. This particular distance was selected in order to secure a limit which would correspond to that of Spain and the Scandinavian Powers, and thus make the practice in all European countries more uniform.
With regard to bays, the draft proposal was at first to adopt a base-line of six miles from headland to headland, and afterwards one of ten miles, as in the fishery conventions, was proposed. The Institut finally adopted a base-line of twelve miles—i.e., double the width of the territorial zone,—but the International Law Association preferred the old limit of ten miles. The Scandinavian publicists were of opinion that these limits were too small, and that instead of having a fixed and rigid rule for the delimitation of bays, each state should be permitted to fix the boundaries according to the local configuration of the coast and the local requirements. While this suggestion was not accepted, it was admitted that certain bays whose width exceeded ten miles were necessarily, by their situation, placed under the sovereignty of the neighbouring state, as the Bay of Cancale, the Bay of Chaleur, and the Scottish Firths.1272
The various rules concerning sovereignty and jurisdiction were applied to straits whose width does not exceed twelve miles, with the following modifications: (1) straits of which the coasts belong to different states form part of the territorial sea of the bordering states, which exercise their sovereignty there up to the middle line; (2) straits whose coasts belong to the same state, and which are indispensable for maritime communication between two or several states other than the bordering state, always form part of the territorial sea of the bordering state, and they cannot be closed; (3) in straits whose coasts belong to the same state, the sea is territorial even though the distance between the coasts is greater than twelve miles, if at each entrance of the strait this distance is not exceeded; (4) straits which serve as a passage from one free sea to another free sea can never be closed. The rules were adopted by the Institut in 1894, and by the International Law Association, with slight amendments, in the following year, when Sir Richard Webster (now Lord Alverstone, the Lord Chief Justice of England) was in the chair.1273 The rules as finally adopted in London are given in Appendix O.
CHAPTER V.
THE INADEQUACY OF THE THREE-MILE LIMIT FOR
FISHERY REGULATIONS.
The recommendation of the International Law Association and of the French Institute that the territorial waters should be extended to six miles from the shore, or double the width usually enforced, was avowedly made, as we have seen, chiefly in the interests of the sea fisheries; and it may be presumed from the opinions of the majority of accredited writers on the law of nations, as reviewed in these pages, that it is open to any Power so to extend its territorial sea, except in so far as such extension may be opposed to the provisions of treaties with any other Power or Powers. It is undoubtedly the case that in by far the greater number of instances in which the limits of territorial waters, or the rights of the bordering state in the adjacent sea, have been disputed, or have come under discussion, between one nation and another, it was the right of fishery that was at issue. From the reign of James I. this has been the case, and it has been exhibited on all coasts, and in almost all countries. How replete our history is with such disputes may be gathered from foregoing chapters, while nearly all recent international treaties in which limits in the neighbouring sea are dealt with have been concerned with fishery questions. The numerous treaties and agreements with the United States and France respecting the vexed rights of fishing on the coasts of British North America, the North Sea conventions in Europe, and the various other agreements between European Powers, as between Spain and Portugal, Austria and Italy, Denmark and Sweden, Denmark and Germany, Great Britain and France, Belgium and Germany, and with Denmark concerning Iceland, are instances in point. The fishery interest is thus the determining interest, and the one which has made these various conventions desirable.
There appears to be little doubt that, in many cases at least, the three-mile boundary which has been commonly fixed in the fishery conventions is inadequate from the point of view of the fisheries, and this is the opinion of most of the experts and authorities, as is explained below. It must not be forgotten that the three-mile limit was selected, not on any grounds special to fisheries, but because it had been already recognised and put into force in connection with the rights of neutrals and belligerents in time of war, as representing the approximate range of guns at the time. It is in reality a product of the maritime wars in the latter part of the eighteenth and the beginning of the nineteenth century, and its application to the right of fishing is accidental and arbitrary. The boundaries which were formerly proposed as limiting the right to exclusive fishery, independently of any question of the rights of neutrals or the range of cannon, were invariably greater than three miles. The range of vision was employed in Scotland and on the English coast later; its equivalent of fourteen miles was embodied in the Draft Treaty of Union between England and Scotland in 1604, and was proposed again in 1618; and Sir Philip Meadows, the most able opponent of extravagant claims to maritime sovereignty, favoured a similar distance in 1689. Limits of eight miles and ten miles to be enforced against foreigners were fixed in the Fishery Bill passed by the House of Commons in 1660, while as late as 1824 and 1827 the Dutch Government decreed a limit of six miles for their fishermen on the British coasts. We have seen, too, that the wider extent of sea in which rights of exclusive fishery are claimed by the Scandinavian and Iberian states exists in great measure because those Powers established their limit without reference to Bynkershoek’s doctrine, and before indeed it became prevalent.
The same need of a wider limit is shown in the municipal legislation of many countries, which was specially designed with the object of preserving sea fisheries, as well as in certain international agreements. There are two classes of sea fisheries which have received special treatment beyond the ordinary limits of territorial waters, and both on the same principle—viz., that the action of man, if unrestrained, would lead to their destruction and economic extinction. They are those for marine mammals, as seals and cetaceans, and for certain shell-fishes and coral. A considerable number of countries have legislated for the preservation of seals, and some of the enactments at least apply beyond the ordinary limits. Examples may be found in the Canadian statute of 1886,1274 which refers also to whales and porpoises; the Russian law dealing with the sealing industry in the White Sea; the Norwegian law fixing a close-time for whales in the Varangerfjord; and the concurrent international legislation of Great Britain, Sweden, Norway, Russia, Germany, and Holland concerning the Jan Mayen seal fishery in the Atlantic east of Greenland.1275 A recent instance is afforded by the regulations which were prescribed for British and American citizens and subjects by the Tribunal of Arbitration for the purpose of protecting and preserving the fur-seal in Behring Sea. By these regulations the killing, capture, or pursuit of this animal was forbidden within a zone of sixty geographical miles around the Pribilov Islands, comprising about 15,000 square miles of sea; a close-time was fixed between 1st May and 31st July on the high sea within an immense area—viz., north of 35 degrees North latitude and eastwards of 180 degrees West longitude; only specially licensed sailing vessels, with canoes or undecked boats propelled by paddles, oars, or sails, were at liberty to carry on fur-sealing operations where and when the fishing was allowed; the use of nets, firearms, and explosives was forbidden, except shot-guns outside of Behring Sea, and some minor conditions were laid down.1276
Another instance is the agreements entered into between Russia on the one hand and Great Britain and the United States on the other, by which a zone of ten marine miles on all the Russian coasts of Behring Sea and the North Pacific Ocean, and a zone of thirty marine miles round the Commander Islands and Robben Island, were closed to sealing for the fur-seal.1277
The other class of fisheries referred to, for sedentary animals connected with the bottom, such as oysters, pearl-oysters, and coral, which are found in shallow water, as a rule, and usually near the coast, have always been considered as on a different footing from fisheries for floating fish. They may be very valuable, are generally restricted in extent, and are admittedly capable of being exhausted or destroyed; and they are looked upon rather as belonging to the soil or bed of the sea than to the sea itself. This is recognised in municipal law, and international law also recognises in certain cases a claim to such fisheries when they extend along the soil under the sea beyond the ordinary territorial limit. Cases in point are the pearl-fisheries on the banks in the Gulf of Manar, Ceylon, which extend from six to twenty-one miles from the coast, and are subject to a colonial Act of 1811, which authorises the seizure and condemnation of any boat found within the limits of the pearl-banks, or hovering near them: boats or vessels navigating the inner passage are prohibited from hovering or anchoring in water deeper than four fathoms, and those navigating the outer passage from hovering or anchoring within twelve fathoms. These pearl-fisheries are very valuable, and have been treated from time immemorial by the successive rulers of the island as subjects of property and jurisdiction; and the laws referred to apply also to foreigners. Another case is the pearl-fisheries in Australia. In Western Australia certain Acts are applied far beyond the three-mile limit, though apparently only against British subjects,1278 and a similar Act, of 1888, applied in Queensland to extra-territorial waters west of Torres Strait. The pearl-fisheries of Mexico and Columbia are also subject to regulation beyond the ordinary three-mile limit. Examples of extra-territorial jurisdiction over beds of the common edible oyster are to be found in the British conventions with France in 1839 and 1867, by which the Bay of Granville was reserved to France (see p. 612), and in the last of these conventions (Article ix.) a close-time was provided in the English Channel; and likewise in the proceedings concerning the Arklow and Wexford banks, off the Irish coast (see p. 621). Coral-beds in the Mediterranean, off the coasts of Algeria, Sardinia, and Sicily, are in a similar way regulated by Italian and French laws beyond the ordinary three-mile limit.
Even in regard to the class of fisheries for what is termed “floating” fish—that is to say, the ordinary fisheries for sea fishes, carried on usually by nets and lines—there are a number of enactments conferring jurisdiction, or which have conferred jurisdiction, beyond the distance of three miles from shore. Old English and British Acts, previously referred to (p. 608), fixed limits of four-and-a-half and five miles from the coast, within which distance the use of certain apparatus, as drag-nets and trawls, was prohibited. In the Herring Fishery Act of 1808, which provided for the appointment of commissioners for the herring fishery, and for the regulation of the fishery and the curing of herrings, jurisdiction was extended over “all persons” engaged in catching, curing, and dealing in fish in all the lochs, bays, and arms of the sea, and also within ten miles of the coasts.1279 At the Isle of Man an Act of Tynwald prohibited herring-fishing at a certain season within nine miles of the shore,1280 and other instances might be given where municipal Acts extended jurisdiction beyond the ordinary three-mile limit for similar purposes.
It is, however, in connection with the great development of trawl-fishing from steamers in recent years, that the question of the inadequacy of the ordinary three-mile limit for the preservation and regulation of fisheries has been brought to the front, and it is around this method of fishing that most of the controversies affecting the territorial waters, at least in Europe, have gathered.1281 It is therefore necessary to understand something about it, and how it is that it has given rise to demands for the extension of the ordinary limits and for the closure of large areas beyond these limits. It is the most effective and at the same time the most destructive method of fishing ever made use of. It differs from hook-and-line fishing, in which only a few kinds of fish are taken at the same time, according to the size of the hook and the kind of bait, and from gill-net or drift-net fishing, which is adapted, according to the dimensions of the mesh, to capture a particular fish, as herring or mackerel. Trawling consists essentially in dragging along the bottom of the sea a great bag of netting, which captures a large variety of fishes, big and little; and it may involve, at certain places and in certain seasons, the destruction of immense quantities of edible fishes too small to be marketable, and which are thrown back, dead, into the sea.1282 It is a very old method, but until about a century ago it was confined on the British coast to the mouth of the Thames and neighbourhood and to certain localities in the Channel, its headquarters being Barking and Brixham. Trawling was then restricted to shallow water; the boats were small and the trawls were such as a man could carry on his shoulders. At the close of the French war, Brixham trawlers began to migrate eastwards, prospecting for new grounds, fixing their temporary headquarters first at Dover, then at Ramsgate in 1818, and at Harwich in 1828. Continuing their explorations, the Dutch coast was visited about 1830 and the southern part of the Dogger Bank a few years later, and in 1837 a great impetus was given to trawling by the discovery of enormous quantities of soles in the Great Silver Pit, south of the Dogger. Trawlers flocked thither from all quarters; the Brixham men fixed upon Hull, first as their temporary, and then as their permanent home, and from this time North Sea trawling was firmly established. It was not until 1858, little more than half a century ago, that trawlers began to be employed from Grimsby, which is now by far the greatest fishing-port in the world. Gradually the enlarging fleets of trawlers pushed northwards and eastwards as new grounds were discovered. By 1860 the whole of the Dutch coast and the coast of Schleswig was frequented; ten years later the Danish coast was included, and, for the first time, the whole of the Dogger Bank, as well as large areas north and west of it, off the coast of England and Scotland. About 1875 the Great Fisher Bank, which lies about 200 miles east of the Scottish coast, began to be visited, and in 1891 the English trawlers boldly pushed on to Iceland, where enormous catches of fish were obtained.
During this period, while the fishing-grounds were being vastly extended, great improvements were made in the means of catching the fish and bringing them to market. The trawling vessels gradually increased in numbers, size, speed, and storage capacity; the trawl-net grew larger and more efficient; the use of ice for the preservation of the fish enabled distant grounds to be visited, and the deeper waters of the north necessitated the substitution of steam-power for hand-labour in hauling the nets on board; the “fleeting” system, by which steam-carriers collected the fish each morning and brought them rapidly to market, allowed the fleets of sailing smacks to remain on the grounds constantly fishing for many weeks at a time. Then the industry was revolutionised by the substitution of steam vessels for the sailing smacks, a change which began about 1878; and trawling, which was at first a summer occupation owing to the frailty of the boats, and then a winter pursuit, as plenty of wind was required to drag the heavier nets, became independent of the season, and almost of the weather. A further improvement was the introduction in 1895 of the otter-trawl instead of the unwieldy beam-trawl, the mouth of the net being kept open by the divergence of two boards, one at each side, on the principle of the kite. This allowed the net to be made very much larger, and also to be used in much deeper water, and commercial trawling is now carried on in depths down to about 200 fathoms.
There has thus occurred during the last generation or so an enormous development in the extent and efficiency of trawl-fishing. The British fleet since about 1885 has grown from some 200 small vessels, of twenty to twenty-four tons, and using trawls of from twenty to thirty feet beam, to an aggregate of 3170 vessels in 1907, of which 1609 were steamers and 918 deep-sea sailing smacks.1283 These figures, however, convey but little impression of the real increase in the catching power. It has been computed, both by practical men and by scientific experts, that the modern steam otter-trawler is approximately eight times more effective in catching fish than was one of the large sailing smacks of a generation ago,1284 and thus the British deep-sea trawling fleet in 1907 was equal to about 13,790 of the older sailing smacks. But in addition to these there are the foreign steam-trawlers which fish on the same grounds, for many other countries have followed the English example in developing deep-sea trawling. The aggregate number of such vessels at the end of 1907 was about 634, of which 224 were French, 239 German, and 81 Dutch;1285 and they would represent 5072 sailing smacks, so that the total trawling fleet of Western Europe was then equal to about 18,862 of the sailing trawlers of twenty or thirty years ago, the sailing trawlers in use on the Continent being left out of account. It has been calculated that the area of the sea-bottom which is swept each day by the nets of this great fleet is equal to about 2000 square miles.
Now, this extraordinary extension of trawl-fishing in recent times bears upon the question of territorial waters in two ways. One relates to the impoverishment of the older fishing-grounds near the coast and in the North Sea. The other relates to the incursion of steam-trawlers on foreign coasts as affecting the fishing of the inhabitants of such coasts.
With regard to the first, there have been many inquiries made by Royal Commissions and Parliamentary Committees, as well as by fishery departments and experts, which show that the excessive fishing has depleted the older banks. In the first of these inquiries, which began in 1863, when there were only from 650 to 700 smacks trawling in the North Sea (and then only in a part of it), the reporters expressed their belief that this method of fishing “in the open sea” was not wastefully destructive, and required no legislative interference, for if any ground were over-fished, the fishing there would become unprofitable, and the trawlers would go elsewhere.1286 The next Commission, in 1878, by which time trawling had greatly developed, came to much the same general conclusions; but they found that a decrease of soles had occurred, and also a decrease of plaice and flounders in some localities, and they recommended that power should be given to the Secretary of State to forbid trawling “in any of the territorial seas,” which power was conferred in 1881.1287 This inquiry was noteworthy as first revealing complaints by the trawlers themselves of the diminution of certain fish and the impoverishment of inshore grounds, and for the advocacy by Grimsby smack-owners of the prohibition of trawling at localities where small fish abound, as the inlets on the Dutch and German coast, the Wash, and off Yarmouth, and even within a nine-mile limit all round the shores of the North Sea. At the next Commission of inquiry, in 1883, the complaints of the trawlers were stronger, and the remedies they proposed more drastic. Those of Hull and Grimsby stated that the numbers of flat fishes, particularly soles, had much diminished; that the nearer grounds were impoverished, and that they had to go much greater distances for their supplies of fish. They expressed the belief that most damage was being done by trawling along the coasts, especially on the Continental side of the North Sea, and that the most effectual remedy would be to prohibit trawling within a ten-mile limit around the whole of the North Sea coasts. The conclusions reached by the Commission were that soles had decreased, and also flat fishes and haddocks in many parts of the territorial waters between Grimsby and the Moray Firth, and they recommended that the Scottish Fishery Board should receive powers to regulate or suspend trawling within territorial waters.1288