Chapter III: The Fishery Conventions (2)

As the British and French delegates could not agree on this subject, further discussion was postponed until the former had consulted their Government. When this was done, they announced that their instructions did not permit them to adopt the French proposals; and they continued to press the draft article for acceptance, declaring that the question of defining the limits of the maritime jurisdiction of the various countries did not fall within the province of the convention. The other delegates, however, did not share this view, and when a complete definition was insisted on, the British representatives ultimately agreed to accept the terms employed in the first article of the Anglo-French convention of 1867, and they submitted the following article: “The fishermen of each country shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark along the whole extent of the coasts of their respective countries. As regards bays, the entrances of which do not exceed ten miles in width, the distance of three miles shall be measured from a straight line drawn from headland to headland.” The counter-proposal on the part of France did not materially differ from this, except by the inclusion of islands, by the better definition regarding bays, and by the insertion of a clause providing for the right of free navigation and anchorage in territorial waters.[1170] The German delegate, anxious about the waters at the mouths of German rivers, urged that flats or banks uncovered at low water should also be included, as well as islands. This proposal had been agreed to by the British Government in 1868, after correspondence between the Foreign Office and the German Embassy in London, and though apparently not now desired by Great Britain, it was formally adopted.[1171]

The article as finally agreed upon was as follows: “The fishermen of each country shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark along the whole extent of the coasts of their respective countries, as well as of the dependent islands and banks. As regards bays, the distance of three miles shall be measured from a straight line drawn across the bay, in the part nearest the entrance, at the first point where the width does not exceed ten miles. The present Article shall not in any way prejudice the freedom of navigation and anchorage in territorial waters accorded to fishing-boats, provided they conform to the special police regulations enacted by the Powers to whom the shore belongs.”

It is interesting to note that, at the instance of the Dutch president, the conference agreed that the provisions of the convention would not be applicable to the Zuiderzee; and that in deliberating on the boundaries of the North Sea within which they would apply, it was agreed to exclude the Skagerrack, the fisheries of which, it was stated by the president, were not international, but were “essentially within the jurisdiction of the States to which the shores belong.” The greater part of the Zuiderzee, however, would have been excluded by the definition of bays in the convention, and the rest of it by the inclusion of “banks”; but the Skagerrack, on the other hand, is nowhere less than sixty geographical miles from shore to shore. Neither Norway nor Denmark has asserted since the convention exclusive jurisdiction in its moiety of these waters, where, in point of fact, both English and German vessels now carry on an extensive fishing.[1172]

Some other points of interest were raised during the deliberations of this important conference. It was asked by the president: What would be the fate of the convention during war, in which one or two of the Governments joining in it should be belligerents? Would the fishery cruisers of the Powers concerned merely retire from the North Sea and leave fishermen of their nationality without protection or help? He recommended that the conference should adopt the principle that fishing-boats, _bonâ fide_ engaged in fishing, should be declared neutral. This was to revive a subject that had earlier, especially during the time of Napoleon I., caused much discussion, and which was remote from the object of the convention; and the proposal, though sympathetically received by the French delegates, was not supported by any of the Governments. A proposal of another kind was made by the German delegate. He thought it was necessary that restrictive measures should be enforced to prevent the destruction of the fry of fish and the taking of small fish; for example, by forbidding trawling within a certain distance of the shore, so as to provide a shelter for the free development of fish, and by regulating the construction of trawl-nets. The British and French delegates were opposed to any system of restriction, relying on the results of the inquiry which had been then recently made by Messrs Buckland and Walpole,[1173] and on the part of France the following draft clause was formulated for insertion in the convention: “In the extra-territorial part of the North Sea, fishery shall be free at all seasons, and with all kinds of implements, without any sort of distinction.” The clause was not adopted, and it was generally agreed that the question was not ripe for decision by that conference, which was moreover concerned with the police of the fisheries, and not with the reproduction of fish, in the North Sea.

The North Sea Convention was concluded in 1882, the signatory Powers being Great Britain, Germany, France, Belgium, Denmark, and the Netherlands.[1174] Although the delegates of the United Kingdom of Sweden and Norway signed the protocol and were present at the final deliberations, those Powers did not join in the convention, objections being raised as to the definition of the territorial waters and on some other points.[1175] An additional article was inserted providing that the King of Sweden and Norway might adhere later, for both or either country; but this has not been done, though the coast of Norway forms a not inconsiderable part of the boundary of the North Sea as defined in the convention. The reasons which induced these countries to abstain from joining in a friendly agreement with the neighbouring Powers of western Europe, after having accepted the invitation to the conference and taken part in its deliberations, must have appeared to them strong; and from the delay that occurred in coming to a decision it is evident that the matter received full consideration. They believed, however, that to agree to so restricted a boundary for their territorial waters in respect to fishery would be disadvantageous to them: it is probable, moreover, that the raising of the question was not foreseen, since the object of the conference was to consider the police of the fisheries in extra-territorial waters in the North Sea. It is curious, indeed, that the limits for exclusive fishery, both in the convention with France in 1839 and with the other North Sea Powers in 1882, were fixed as it were incidentally.

The duration of the convention was to be for five years from the date at which it came into operation, unless one year’s notice to terminate it were given by any of the contracting Powers; and it was to continue in force from year to year subject to similar notice. That none of the signatory Powers have withdrawn from the convention is the best proof of its general utility. From the number and influential position of these states, and from the character of the sea to which it applies,--one of the most productive in the world,--this convention is an international document of high importance to the sea fisheries, and deserves careful consideration. The first article declares that the provisions shall apply to the subjects of the high-contracting parties, the object being “to regulate the police of the fisheries in the North Sea outside territorial waters”; and the limits of the North Sea were carefully defined.[1176] The provisions of the convention relate to the registration, lettering, and numbering of boats, the operations of fishermen pursuing different methods of fishing at the same place at the same time, the malicious use of instruments for cutting nets, the salvage of derelict fishing-gear, and the superintendence by cruisers. It was put in force in this country in 1883 by an Act of Parliament,[1177] which also extended its application, so far as British sea-fishing boats were concerned, to the whole of the seas around the British Islands, whether within or without the exclusive fishery limits. In this Act the stipulation in the second article of the convention, as to the freedom of navigation and anchorage in territorial waters on the part of foreign fishing-boats, received a limiting definition. The clause in question was inserted in the convention at the instance of France, and was accepted with some reluctance by the British delegates, who agreed to it in general terms only, without the recognition of a right.[1178] By the Act foreign fishing-boats were prohibited from entering the exclusive fishery limits of the British Islands except for purposes recognised by international law, or by any treaty or arrangement in force between this country and any foreign state, or for any lawful purpose. If a foreign boat did enter, it was to return outside the limits as soon as the purpose for which it entered had been answered, and fishing or attempting to fish within the limits was, of course, forbidden under penalties.

The definition of the exclusive fishery limits in the North Sea Convention differed in two respects from that contained in the previous conventions with France. The rule for the measurement of bays was modified, and the dependent islands and banks were expressly included as part of the coast from which the limit should be measured. In the Anglo-French conventions of 1839 and 1867 bays which did not exceed ten miles in width at the mouths were comprised in the reserved waters, and the three-mile limit was measured from the line joining the “headlands.” Thus some bays whose width at the mouth, or between their headlands, exceeded ten miles were deprived of the benefit of the principle applied to bays and came under the three-mile rule, even although at a small distance within the entrance the width might not exceed ten miles. Since all bays have not headlands, the French proposal at The Hague conference to substitute “the two extreme points of the bay” for that term was an improvement. Still better was the definition finally adopted, to place the base-line at the first point nearest the entrance where the width did not exceed ten miles. The specific inclusion of islands removed such difficulties as were raised in 1853 by a French commodore at the Farne Islands (see p. 618), though it had long been established in connection with the rights of neutrals that islands carried with them, no less than the mainland, the belt of territorial sea. The inclusion of banks was, however, novel, and was not received with favour by the British Government. It was feared that it would lead to difficulties and complications in future if such banks as the Goodwin Sands, which were situated beyond the three-mile limit, and the similar banks on the German and Dutch coasts, were held to be territorial dependencies of the coast; and so strong was the objection of the British Government to their inclusion, that they instructed their ambassadors abroad, if an objection was raised by any Power, to have this definition reconsidered.[1179] The objection is theoretically well founded. Sand-banks of this character may be not permanent, and usually vary in extent, configuration, and position with lapse of time and even after a single tempest; and the extent of sea appendent will vary likewise. It would thus be difficult to fix a precise and permanent limit in connection with them. Moreover, since the banks may be covered by the sea except at low-water without losing their territorial value, it would sometimes require more than ordinary care on the part of foreign fishing-boats to avoid infringing the limit around them. On the other hand, for the purpose of regulations designed to protect fish life, such as are referred to in the sequel, banks of this nature are of especial value; and, in point of fact, few difficulties in practice appear to have arisen on this score in carrying out the convention.[1180]

On one or two points, however, the definitions in the convention might have been improved. Nothing is said as to the tides at which low-water mark is to be taken for measurements, though on certain coasts the extent of territorial water will vary much according to whether it is a neap or a high spring tide; and the question whether certain banks are or are not territorial and entitled to the limit may vary in the same way. It is to be presumed that the tide is an ordinary neap tide, as in English law. More important is the fact that “rocks” are not included along with islands. Quite recently the omission has given rise to difficulties in regard to three places on our coast--viz., the Eddystone, the Bell Rock, and the Seven Stones Rocks, off the Scilly Islands. The Seven Stones Rocks are a reef near the south-west extremity of Cornwall, about seven miles from Land’s End, and about a mile in length, and with a lightship at it; but it does not appear that any portion is above the sea-level at low-water of neap tides. Complaints were made to the Government by the Cornwall Sea Fisheries Committee that French fishing-boats fished within three miles from the rocks, and close to them; but it was stated by the Admiralty, and also by the Foreign Office, that these rocks could not be claimed as being within British territorial waters.[1181] In this case, presumably, the decision might rest on the fact that the rocks do not appear at low-water of ordinary tides. The Eddystone is somewhat different. The rock or reef on which the lighthouse is placed lies about fourteen miles south-west of Plymouth, and while covered by the sea at high tide, is exposed to the extent of an area of about 500 yards at low-water of neaps. French fishermen also fish around it and close to it, a practice which caused the Devon Sea Fisheries Committee to complain. The gunboat _Circe_, in August 1905, seized and took into Plymouth two French “crabbers” for fishing within three miles from the Eddystone, but after communicating with the Board of Trade, instructions were sent to release the boats; and the Board of Agriculture and Fisheries, while saying that they were not in a position to express an authoritative opinion on the matter, called attention to the decision in 1902 regarding the somewhat similar case at the Seven Stones. Here, no doubt, the decision rested on the absence of the specific inclusion of “rocks,” as distinguished from islands, in the conventions, and one can understand the expression of surprise by the Devon Sea Fisheries Committee that a rock which was recognised as British, and was inhabited by lighthouse-keepers, was not considered as within the territorial limit for fishing purposes.

Similar complaints have been made concerning the Bell Rock, which lies about ten miles east-south-east of Arbroath, Forfarshire, and has a lighthouse upon it. It is entirely covered at high-water; at the ebb of spring tides it is uncovered to a depth of four feet, while at low-water of neap tides the top of the rock is just visible, and would then probably acquire validity for the measurement of three miles from it and around it, if rocks had been included in the conventions, as they are now included in the recent convention between this country and Denmark concerning Iceland and the Faroës (p. 647). The case of the Seven Stones and the Eddystone is, however, on a different footing; for while the limit of exclusive fishery along the coasts of the North Sea, with the exception of the part formed by Norway, was settled by the convention of 1882 (so far as concerns the fishermen of the signatory Powers), there appears to be some obscurity as to how far the three-mile limit operates on the coasts that lie outwith the boundaries of the North Sea,--such, for example, as the west coasts of England and Scotland and the coasts of Ireland. The second article of the convention declares, without qualification, that the three-mile limit shall apply “along the _whole extent_ of the coasts” of the respective countries,--it does not say merely to the North Sea coasts,--and the view that this stipulation operates on all the coasts appears to be widely prevalent, and is expressed, for example, in the Belgian law which put the convention in force in that country.[1182] It is, however, held by legal authorities that since the special object of the convention was “for the purpose of regulating the police of the fisheries in the North Sea outside territorial waters,” and as the boundaries of the North Sea are defined “for the purpose of applying the provisions of the present Convention,” the definition of the exclusive fishery limits applies only within the area specified, and not to the other coasts of the signatory Powers.[1183] In the Convention Act, as in the Territorial Waters Jurisdiction Act, we accordingly find a distinction drawn between the exclusive fishery limits under international law and those under specific treaties or conventions. In the definition clause, the expression “British Islands” is explained to mean the United Kingdom of Great Britain and Ireland, the Isle of Man, the Channel Islands, and their dependencies, and it is declared that “the expression ‘exclusive fishery limits of the British Islands’ means that portion of the seas surrounding the British Islands within which Her Majesty’s subjects have, by international law, the exclusive right of fishing, and where such portion is defined by the terms of any convention, treaty, or arrangement for the time being in force between Her Majesty and any Foreign State, includes, as regards the sea-fishing boats and officers and subjects of that State, the portion so defined.”[1184]

From all this it would appear that, notwithstanding the ambiguity introduced by the unqualified phrase “the whole extent of the coasts of their respective countries,” the definition of the exclusive fishery limits in the convention of 1882 applies only to the coasts of the North Sea. In the convention of 1839 with France, on the other hand, there seems no reason to doubt that the three-mile limit was applied to all parts of the coasts of Great Britain and France respectively. By Article ix. it was declared that the exclusive right of fishing was reserved for subjects within that distance “along the whole extent of the coasts” of each country; and the British Act of Parliament to carry into effect this convention, and the international regulations agreed upon under it, so far from expressing any qualification or reservation as in the Act of 1883, made it clear that the limit applied generally. In the preamble it is stated that “Whereas a Convention was concluded between Her Majesty and the King of the French ... defining the limits of the oyster fishery between the island of Jersey and the neighbouring coast of France, and also defining the limits of the exclusive right of fishery on all other parts of the coasts of the British Islands and France”; and Article 85 of the regulations enacted that the fishing-boats of the one country, except under certain circumstances, “shall not approach nearer to any part of the coasts of the other country than the limit of three miles specified in Article ix. of the convention.”[1185]

In the convention of 1852 between Great Britain and Belgium, which was simply entitled “relative to fishery,” without any particular purpose, seas, or regions being specified, it was stipulated that “Belgian subjects shall enjoy, in regard to fishery along the coast of the United Kingdom of Great Britain and Ireland, the treatment of the most favoured foreign nation.” The most favoured foreign nation at that time was France, and although no distance was fixed in the Belgian treaty, there is no doubt the three-mile limit applied, and was indeed, as stated above, enforced, on the east coast of Scotland against the Belgians as well as against the French.

In the convention of 1867 the same limit was assigned “along the whole extent of the coasts” of the two countries; and the provisions of the convention were expressly stated to apply beyond the exclusive fishery limits, in the one case “to the seas surrounding and adjoining Great Britain and Ireland,” and in the case of France to the seas adjoining the coast of that country between the frontiers of Belgium and Spain; and the object of the convention was “relative to fisheries in the seas between Great Britain and France.” As already stated, this treaty, with an unimportant exception, did not come into effect, and the convention of 1839 remained in force.[1186]

As no other treaties exist defining the exclusive fishery limits along our coasts than those referred to, the position in relation to conventional law appears to be as follows. With respect to France and Belgium, the three-mile limit, with the ten-mile line for bays, seems to be in force along the whole extent of the British and Irish coasts. With respect to the other Powers which were parties to the North Sea Convention of 1882,--namely, Germany, Denmark, and the Netherlands,--this limit is in force only on the eastern, or North Sea, coasts of England and Scotland. On the north and west coasts of Scotland, the south and west coasts of England, and the whole of the coast of Ireland, the limits of exclusive fishery as regards these countries, and as regards all countries except France and Belgium, fall to be determined by the principles of international law. With respect to all other nations, as, for example, the Norwegians, Swedes, and Spaniards, the limits on all parts of our coasts also fall to be determined under international law. The principles of international law, as expounded by the accredited writers, do not, as will be shown later, and as is implied in the quotations from the Acts above cited, support the view that the right of exclusive fishing, apart from treaty, must necessarily be restricted to the three-mile limit. The preponderance of opinion is that the boundary of the territorial sea, including, therefore, the exclusive right of fishery, coincides with the range of guns from the shore; and it is evident that as against such nations as claim for themselves a greater extent than three miles on their own coasts--viz., Norway, Sweden, and Spain--a larger limit than that contained in the conventions could be rightfully enforced on the British coasts.

There are many things to show that the unsatisfactory state of affairs, not to say confusion, with respect to the limits of exclusive fishing to which we are entitled on various parts of our coast, has been brought about partly by a widespread belief that the boundary under international law is three miles, partly also by what must be characterised as a want of knowledge and care on the part of those dealing with the question. Mr T. H. Farrer, the permanent Secretary of the Board of Trade, told a Committee of the House of Commons in 1876 that the convention and regulations with France were “hastily and recklessly” made,[1187] and the record of the proceedings at the conference at The Hague in 1881 shows that it would not have been a difficult matter to clear up some of the obscurity that exists. One point of importance is that, notwithstanding the absence of any treaty or agreement defining the extent of the limits of exclusive fishery with certain nations, the three-mile limit alone has been enforced against the vessels of such nations fishing on our coasts. This has been the case, except for a brief period, with respect to Norwegian and Swedish trawlers in the Moray Firth in Scotland, which is “closed” to British trawlers, and the vessels of these two nations are thus put on the same footing as those of other countries with which a convention has been made. It is also the case on the west coast of Scotland, where the limit of three miles is enforced against foreign trawlers, apparently irrespective of nationality, and certainly against Dutch and German vessels as well as against Belgians in the Clyde, from which British trawlers are excluded.[1188] How far this undoubted usage may modify the position under international law it would be of importance to determine.

A more recent convention must be referred to, which, however, does not relate to the coasts of this country, but to those of the Danish islands, the Faröes, and Iceland, where British trawling vessels carry on extensive operations. The Icelanders, who depend so much upon their fisheries, were desirous of having a considerable extent of the waters around their coasts reserved to themselves, and wished to have a limit of seven miles to protect the grounds from the action of foreign fishing-boats.[1189] As a result of negotiations, however, with Great Britain, Denmark agreed to the usual limit of three miles. The treaty was signed at London on 24th June 1901, and after ratification was brought into force on 31st March 1903 by an Order in Council of the 12th of that month. Its main object, apparently, was to regulate the fisheries of the subjects of the two countries outside territorial waters in a large part of the ocean surrounding the Faröe Isles and Iceland, in a small part of which extensive fisheries are now carried on by foreigners, especially by English and German trawlers; but its immediate effect was to impose the three-mile limit on the coasts in question. The article defining the territorial waters is the same as in the North Sea Convention, except that islets and rocks are included, which thus gets rid of some possible difficulties in interpretation, such as have arisen in connection with the Eddystone and Bell Rock.[1190]