Chapter IV (1)

THE MODERN PRACTICE OF STATES AND THE OPINIONS OF RECENT PUBLICISTS.

We may now pass to the consideration of the modern practice of states with respect to the extent of territorial sea which is claimed or allowed by them, and of the opinions of the later writers on the law of nations as to the extent that may be rightfully conceded or appropriated. It will be found that there is apparently a very considerable discrepancy between the one and the other. For while the opinions of publicists have on the whole become more decided and definite as to Bynkershoek’s principle being the true principle for the delimitation of territorial waters, and the inadequacy of the three-mile limit has been formally declared, the general usage of states is indicated by the common adoption of the latter limit for several purposes. As elsewhere stated, this general use of the one marine league is in large measure owing to the example, or the pressure, of Great Britain and the United States of America, and perhaps chiefly, if indirectly, to the influence of the latter. Although the United States more than any other Power has varied her principles and claims as to the extent of territorial waters, according to her policy at the time--now claiming the vague and wandering “boundary” of the Gulf Stream or the whole of Behring Sea, and now the liberty to fish right up to the shores of the Falkland Islands,--she has been consistent in this, that she has steadily and constantly pressed for the narrowest limit she could get in favour of her own fishermen on the coasts of the British North American Colonies. The unhappy heritage of the British Foreign Office that came from the abnegation of territorial dominion over large parts of the waters in question by Great Britain in former times, has been as fruitful of trouble as Lear’s renunciation of his sovereignty. The numerous negotiations as to the rights of fishing on the coasts of British North America have always resulted in concessions to the United States, and appear to have been conducted, as they were almost bound to be, rather in the light of the general political relationship of the two Powers than on the intrinsic merits of the particular question at issue; and thus in Canada and Newfoundland British diplomacy on this subject has often been criticised. Obviously, when British policy takes this course in regard to North America, one must expect for the sake of consistency, if on no other ground, that it will tend to take the same course elsewhere. An example of this was quite recently shown, when a concession of the kind referred to, as to the rule for bays, which was granted during a _modus vivendi_ as a temporary act of grace, was spoken of as if it were now definitely incorporated in British international policy (see p. 730).

The discrepancy alluded to between the authorities on the law of nations and the common usage is perhaps more apparent than real. The international treaties and municipal laws in which a limit is fixed refer to a few subjects, and in particular to fisheries, and they relate to times of peace. The most vital attributes of the territorial sea relate to the security, the obligations, and the rights of neutral states in time of war; and there has happily been no great maritime war in Europe for a long time to put the principles to the test. But when such a war does come, there is little doubt that during hostilities the three-mile limit will be set aside by the neutral states concerned, and another and greater limit fixed for security, in closer correspondence with the actual range of guns. It is to be further noted, that notwithstanding the numerous municipal enactments and the international conventions in which the three-mile limit is fixed for certain purposes, no state seems to have formally and deliberately defined the absolute extent of the neighbouring sea which it claims as pertaining to it under all circumstances. Many states--and Great Britain is one of them--have taken pains to make it clear that in adopting a three-mile limit for particular purposes they do not abrogate their right to the farther extent of sea that may be necessary for other purposes.

Though Germany has not defined the extent of her territorial waters by municipal law,[1191] she has entered into agreements with various Powers respecting the limits of exclusive fishery. The first of these was made with Great Britain in 1868, and the rules for the guidance of British fishermen, issued by the Board of Trade in accordance with it, stated that,--“The exclusive fishery limits of North Germany are designated by the North German Government as follows: that tract of the sea which extends to a distance of three sea-miles from the extremest limit which the ebb leaves dry of the German North Sea coast, of the German Islands or Flats lying before it, as well as those bays and incurvations of the coast which are ten sea-miles or less in breadth, reckoned from the extremest points of the land and the flats, must be considered as under the territorial sovereignty of the North German Confederation;” and it is further said that the exclusive rights of fishery in the above spaces are reserved to Germans, and English fishermen are not at liberty to enter these limits except under certain specified circumstances, as of wind and weather.[1192] These limits were again formally recognised by Great Britain in July 1880, and, according to Perels, were further confirmed by the North Sea Convention of 1882. It is obvious that “the extremest limit which the ebb leaves dry,” both for the open coast and for bays, will differ considerably on such a coast as that of Germany from the low-water mark of ordinary tides, and that the space included in the measurement will be correspondingly enlarged. Germany also agreed with Denmark, in 1880, to the three-mile limit for the adjacent coasts of the two countries in the Baltic, with a ten-mile base-line for bays, the mid-line or _thalweg_ applying where the waters between the respective coasts were less than six miles in width. More recently, an agreement has been concluded precisely defining on charts the exclusive fishing waters of the two countries in the Little Belt.[1193]

Denmark is one of the Scandinavian countries which, as previously mentioned, claimed a wide extent of territorial sea. In 1812 the limits, both for Norway and Denmark, were defined as follows in a royal ordinance: “We will that it be established as a rule in all cases where it is a question of determining the maritime boundary of our territory, that that territory shall be reckoned to the ordinary distance of one marine league from the outermost islands or islets which are not overflowed by the sea.”[1194] The league in these Scandinavian ordinances, as previously mentioned, is one-fifteenth of a degree, or four geographical miles, and therefore one mile more than the ordinary three-mile limit. But, in point of fact, owing to the method of measurement adopted, the space of sea included as territorial is much greater. Instead of computing the four miles from low-water mark on the shore, which is the base usually taken, it is measured from an imaginary straight line connecting the outermost points of the permanently visible isles or rocks lying farthest from the coast. In some places the extent of water thus cut off as territorial is very considerable. Though the other Scandinavian countries, Norway and Sweden, have maintained this limit to the present day, it has been in practice abandoned by Denmark, which has adopted the three-mile limit in certain agreements with Germany, in the North Sea Convention of 1882, and in the recent treaty with Great Britain with respect to Iceland and the Faröes. In the Skagerrack and Cattegat she concedes the three-mile limit to German and British fishermen, and no doubt also to the fishermen of the other nations which were parties to the North Sea Convention; and it is of interest to note, with reference to the discussion on a former page as to the extent of coast really comprised in the North Sea Convention, that it is in virtue of this convention that the old boundary of four miles has been abandoned there.[1195] But while Denmark has taken up this attitude with reference to English and German fishermen, it is claimed on her behalf by an eminent Danish authority that it is within her right still to maintain the old geographical league as the boundary of her territorial sea,[1196] and this has indeed been recently done in a fishery convention with Sweden, which claims the same limit with regard to the fisheries in the Cattegat, the Sound, the Baltic along the Swedish coast from Falsterbo to Simbrishamn, and around the islands Bornholm and Kristiansö.[1197]

It is to be noted that the terms used in this treaty in defining the limit differ from those in the ordinance of 1812. The ordinance speaks of islands and islets which are not submerged or overflowed by the sea, while the treaty mentions the outermost islets or rocks which are not _constantly_ submerged or overflowed by the sea,--a distinction which might make a very considerable difference in the extent of the waters reserved.

We thus see that Denmark enforces two limits in connection with fishery--one of four miles, measured according to the Scandinavian method, in the Baltic, &c., as against Sweden (and doubtless also against Norway); and the ordinary one of three miles in the Baltic, &c., as against Great Britain and Germany at least, and also in the North Sea and at the Faröes and Iceland. The various limits are shown in the accompanying figure, which is a reproduction of the official chart. It also shows how complicated the three-mile limit is among the islands.

The views of Russia with respect to the limits of territorial waters, as expressed during the negotiations with Great Britain in the earlier part of last century, have been referred to (p. 581), and it appears from the Russian Code of Prize Law, 1869 (Art. 21), that the jurisdictional waters, the extent of which had been fixed in her treaties at the end of the eighteenth century at the range of guns, are limited to three miles (about 5647 metres) from the shore. The same distance was assigned for customs purposes; and as no general boundary has been prescribed for the exclusive right of fishing, it may be presumed that that right is restricted to the same space.[1198] It appears that Russia also claims the White Sea as a _mare clausum_, or _mer fermée_, within a line between Cape Kanin (Kanin Nos) and Cape Sviatoi (Sviatoi Nos), where it is about eighty geographical miles in width.[1199] If this claim is now made by Russia, it would probably be difficult for her to make it good before an international tribunal, did such exist. For not only is the mouth of the width stated, but the area included is nearly 30,000 square geographical miles, only about twenty per cent of which is within the ordinary three-mile limit. Until lately the only foreigners who fished in the neighbourhood of the White Sea were Norwegians, but in each summer since 1905 both English and German steam-trawlers have carried on an important fishery in the vicinity of Cape Kanin, but not within the White Sea itself, where the rocky nature of the bottom is said to prevent this method of fishing.[1200]

In France, fishing in the sea beyond three miles from low-water mark was declared by a decree of 10th May 1862 to be free all the year round, except for oysters; but certain fisheries were allowed to be temporarily suspended beyond the three-mile limit, if it was found necessary for the preservation of the bed of the sea, or of a fishery composed of migratory fishes.[1201] The first Article of the law of 1st March 1888, which originated in the North Sea Convention, states that “fishing by foreign vessels is prohibited in the territorial waters of France and Algeria within a limit which is fixed at three marine miles seawards from low-water mark,” with the same arrangement for bays as in the North Sea Convention. The distance stated does not, however, necessarily represent the bounds of the territorial sea, properly so called, the extent of which has never been precisely defined by France.[1202] No doubt France, like other countries, reserves her right to a wider limit should occasion arise to make that necessary.

It appears that as early as 1832 the three-mile limit was declared by Belgium to be the boundary of her territorial waters,[1203] and by a law promulgated in 1891, and based upon the North Sea Convention, “all foreign boats” were prohibited from fishing within three miles of the Belgian coast.[1204]

In the Netherlands also, in connection with the North Sea Convention, the boundary of exclusive fishing has been declared to be at the distance of three miles from low-water mark, and this applies to all foreign fishermen. No distinction has been formally made between the fishery limit and the limit of the territorial sea for political purposes.[1205]

In Austria-Hungary, whose coast is confined to the eastern shore of the Adriatic, the three-mile limit has been adopted, subject to certain qualifications respecting the right of fishery under treaties with Italy. The regulations concerning foreign vessels of war authorise a shot to be fired from the nearest battery at any such vessel which does not show its flag on coming within range of the guns, and within the same distance of a fortified port they are prohibited from taking soundings, practising with firearms, &c.; other regulations forbid vessels laden with goods which form the object of a monopoly of the state from approaching within gunshot. By a decree of 23rd August 1846, and a circular of 28th April 1849, it was declared that the expression “range of guns” in these ordinances was equivalent to three marine miles of sixty to a degree. The customs regulations operate within the same limit, but the manifest can be demanded within a farther distance of four marine miles.[1206] With respect to the right of fishing, the regulations are somewhat complex. The boundary of exclusive fishing is fixed at three miles,[1207] but inasmuch as the fisheries in the Adriatic are carried on almost only by Austrian and Italian subjects, it was found convenient to arrange by treaty for the fishermen of either country to fish within the territorial waters of the other, except within a distance of one marine mile from the shore, and subject to certain restrictions regarding the fisheries for corals and sponges, and the observance of the local regulations.[1208] This mutual arrangement with regard to the right of fishery was renewed and continued in a later treaty of 11th February 1906.

The fishings within one marine mile of the shore are reserved to the inhabitants of the commune to which the coast appertains; but in certain specified circumstances fishermen from other places may be allowed to fish within this communal zone. The use of drag-nets and trawl-nets is prohibited in all places where the depth is under eight metres; within the first maritime or communal zone at certain seasons, irrespective of depth, and altogether within five miles of the coast when employed from steamers. Owing to the absence of tides, the shoreward limit is not measured from a low-water mark, but from a line, fixed by local authorities, where the water ceases to be constantly brackish.[1209]

It is doubtful how far the three-mile limit has been adopted in Italy. In a Bill of 1872 a distinction was proposed between the territorial waters and the exclusive fishing waters, but this distinction was not made in the law of 1877.[1210] The question was taken up later by the Commission for Fisheries, and the opinions elicited from the local authorities at various parts of the coast, who were consulted, varied, the recommendations for the boundary of the territorial waters (_mare territoriale_) ranging from one and a half miles to ten kilometres, and very commonly the limit suggested was four geographical miles. The boundary recommended for the exclusive fishing waters (_mare pescatorio_) also varied, but in this case the depth of the water rather than the distance from shore was held to be the more important factor in deciding on a limit, an opinion with which the Commission agreed so far as concerned steam trawling. In view of the fishery conventions of the western Powers, the Commission recommended a limit of three miles and ten miles for bays, as in those conventions,[1211] but the proposal was not accepted by the Italian Government. The subject was again considered by the Commission in 1904 and 1906, with particular reference to steam trawling and dredging, but no proposition to determine the boundary of the territorial waters for fishing purposes was adopted. A decree of 4th September 1908, however, introduced a limit of three miles, but only with reference to the use of dredges in some districts of the Tyrrhenian Sea.

With respect to the extent of the territorial sea for political purposes, no definition has been given in Italian laws; it depends therefore upon the general principles of international jurisprudence. It is interesting to note that in some comparatively recent decrees the boundary is stated to depend on the range of guns. Thus, instructions issued by the Minister of Marine in June 1866 commanded the officers of the navy to refrain from all hostile acts in the ports and territorial waters of neutral Powers, and reminded them that the limit of the territorial waters was the range of cannon from the shore; and in a circular from the same Ministry in March 1862 it was stated that the extent of the territorial sea varied in different countries and in the opinion of different publicists, but that the general opinion was that the range of guns was the sole rule on the matter.[1212] It may be added that by the customs law of 1896, the manifest of vessels may be demanded within ten kilometres of the coast.[1213]

In Greece, another of the Mediterranean states, the three-mile limit was adopted in 1869, when a circular of the Minister of Marine prohibited foreigners from fishing within that distance of the shore. Previously, in virtue of a royal decree issued in 1834, foreign boats were allowed to fish for sardines in the Gulf of Corinth, but this concession was withdrawn.[1214]

As already mentioned, the three-mile limit is the one in force in all the British colonies, in Japan,[1215] in the United States of America, and in some at least of the South American states. The Chilian Government, for example, has defined the extent of the territorial sea belonging to it as one marine league from low-water mark, within which distance the right of fishing is reserved to Chilian citizens or domiciled foreigners. At the same time it is stated that “police administration for the purposes of the security of the State or the carrying out of fiscal regulations extends to a distance of four marine leagues, measured in the same manner.”[1216]

Quite lately, however, one of the chief states of South America has advanced a claim to a very wide extent of sea along its coasts--so far, at least, as the right of fishery is concerned. In September 1907 the Minister of Agriculture for the Argentine Republic issued a series of ordinances for the regulation of the fisheries,[1217] in which it is declared that, with respect to the fisheries, a zone of water up to a distance of ten miles (18,520 metres, or about 10¼ nautical miles) from high-water mark on the land is under the control of the state. The great gulfs and bays are, moreover, included, such as the Gulf of San Matias, the Gulf of St George, and the Gulf of Nuevo, the closing line in some cases considerably exceeding one hundred nautical miles from point to point, and extending for more than seventy miles beyond a three-mile limit. All living animals in the sea are considered as objects of sea-fishing, with the exception of those which reproduce on the land, as birds, seals (_lobos_), and fish-otters. Within the declared limits the exercise of sea-fishing is free, provided that the regulations are adhered to. The one referring to trawling prohibits that method of fishing by sailing-boats within three miles of the shore, but allows such boats to trawl outside that distance if the meshes of the nets have an aperture not less than 16 centimetres (6¼ inches); steam trawling, on the other hand, is prohibited within five miles of the shore. Commercial fishing is forbidden within the great extent of water referred to unless by vessels entered on the official list (_matricula nacional_), and foreigners are thus excluded. A novel feature, but one in complete harmony with the results of modern fishery investigations, is the reservation of the right to close any area within the limit claimed, so that such area or areas may act as reserves to replenish neighbouring grounds and increase the multiplication of the fish. The right to establish close-times is also reserved, and the sale of undersized fish is prohibited unless for certain specified purposes.

Special regulations are made for sealing. Concessions for this purpose will be granted for a term of five years on various parts of the coast under certain conditions, and it is enacted that for a distance of twenty miles from the coast in such places the right of taking seals is confined to those who have obtained the concession. Penalties for the infraction of the laws are provided, fines varying from five to five hundred pesetas, and offenders may be imprisoned for a period of from one to sixty days.

Later regulations issued by the Minister of Agriculture, applying to that part of the coast between the Rio de la Plata and the Rio Negro, provide that all those engaged or who desire to engage in sea fishing there, must first receive official permission to do so. Within a zone of twelve miles from low-water mark, trawling by steamers is prohibited, but trawling by sailing-boats, and fishing with various kinds of lines and with drift-nets, are allowed; and all vessels employed must fly the national flag, and have their crews partly national, in accordance with the laws.[1218] It may be noted that these regulations are declared to be for the purpose of preventing the extermination of certain species of fish, and that the grantees must, when requested, allow officials to be on board for scientific study.

The adjoining state of Uruguay also lays claim to jurisdiction, with regard to fisheries at least, beyond the ordinary three-mile limit in the extensive inlet of the Rio de la Plata, which lies between Uruguay and Argentina, and is nearly sixty miles wide at its mouth, with an estimated area of about 5000 square miles. In 1905 a Canadian sealer, the _Agnes G. Donohoe_, was arrested for the contravention of a presidential decree which prohibits sealing within these Uruguayan waters, but it was subsequently released. The British Government formally protested against this claim to jurisdiction outside the three-mile boundary, which, however, is strongly supported by the Argentine Government, which is equally concerned in its maintenance.[1219]

It is evident from the foregoing that most maritime states, and all the great ones, either by treaty or in their municipal laws and decrees, have adopted the three-mile limit, at least for fishery purposes. It is quite appropriate, therefore, to refer to it as the “ordinary” limit, as was done by the Tribunal of Arbitration on the rights of seal-fishing in the Behring Sea, though the tribunal did not affirm, and could not affirm, that it found the three-mile limit to be, as a matter of fact, universally accepted.[1220] But though it is the ordinary limit, it is not the only one enforced, and it is erroneous to declare, as some of the less instructed writers on international law have stated, that territorial jurisdiction cannot be carried further.[1221]

In point of fact, no fewer than four of the maritime states of Europe reject the three-mile limit, while a fifth has in part deviated from it. Norway, Sweden, Spain, and Portugal, all claim to enforce a wider boundary, and Denmark has adopted the old Scandinavian limit in her recent treaty with Sweden (see p. 655). Thus, along nearly 4000 miles of the coasts of Europe, or for about one-third of their whole extent, the three-mile limit is not accepted by the bordering state. The right claimed by these countries to a wider extent of territorial sea has been embodied in treaties between some of them, and has been successfully maintained in specific instances against the opposition of other Powers. It is to be noted, moreover, as is shown later, that their claims to the wider space have been quite lately fully justified and homologated by the most authoritative exponents of international law, the French Institute and the British Association on the Law of Nations, as well as by various international congresses of fishery experts dealing with the subject from a fishery point of view.

We have already stated that Spain in the eighteenth century declared that her territorial sea extended to a distance of six miles from the coast (see p. 569). At that time such a limit must have been regarded as moderate, but during last century, after the principle of cannon range had been commonly translated into one marine league, the right to a zone of double that extent was called in question both by the United States and Great Britain. During the civil war in America the question came to the front, more particularly with reference to the waters around Cuba. In 1862 the American Government intimated that they were not prepared to admit that Spain, without a formal concurrence of other nations, could exercise exclusive sovereignty upon the open sea beyond a line of three miles from the coast; while Spain, relying on the legal principle governing the extent of the territorial sea, argued that the improvement of modern artillery made the three-mile limit ineffective. Two years later a discussion on the subject took place between the British and American Governments, the former desiring that during the existence of hostilities the limit of neutral waters should be greatly extended, so that shots from belligerents might be prevented from falling, not only on land, but within the neutral waters, and limits of ten, eight, and five miles were mentioned.[1222] In 1874 the British Government had itself occasion to object to the claim of Spain; and on communication with the Government of the United States, they were informed that that Government had always protested against it, and on the same grounds, that by the law of nations jurisdiction could only extend to one marine league from the coast.[1223] Notwithstanding the opposition of the two chief maritime Powers, Spain did not abandon its claim, for by a royal order of 16th May 1881, passed with special reference to the jurisdiction over American vessels in Cuban waters, it was declared that full jurisdiction extended to a distance of six miles from the coast. This limit was also fixed for customs purposes in Spanish waters by royal decrees in 1830 and 1852, and in the general ordinances of the customs in 1884, the six miles being stated to be equivalent to eleven kilometres.[1224]

With regard to fisheries, Spain has entered into various treaties with Portugal as to the right of fishing along their respective coasts. By a convention in 1878, reciprocity was established in the territorial waters of the two countries, subject to the observance of local regulations and certain specified conditions, as the prohibition of the use of drag or trawl nets (“_artes de Bou ou parelhas, chalut, muletas_”) within twelve miles from the coast.[1225] In another treaty concluded between these Powers on 2nd October 1885, and slightly amended in 1888, two fishery zones were established, the first extending to three miles from the coast, which was exclusively reserved for nationals, and the second, from three to six miles, in which the fishermen of both countries were at liberty to fish. In a later treaty of commerce and navigation, which came into force in October 1893, the zone of exclusive fishing was extended to six geographical miles from the coast of either country--that is, to the extreme boundary of the jurisdictional waters, measured from low-water mark of spring tides (“de la línea de bajamar de las mayores mareas”), and a ten-mile base-line for bays was adopted. Within this space the fishery and its regulation were reserved by each state; but in the frontier rivers, the Miño and Guadiana, the fishery was specially dealt with, as in previous treaties. Each Government also agreed to prohibit certain injurious modes of fishing (_parejas_, _muletas_, &c.) within twelve miles of their coasts, and a series of regulations, like those of the North Sea Convention of 1882, were included with respect to the entry of the fishing-boats of one of the countries within the territorial waters of the other, and the police supervision of the fishing-boats of either country beyond the six-mile limit.[1226] In Spain the reservation of six miles was regarded as unjust, since the water off the coast of Portugal was much deeper than off the Spanish coast, and in the following year the Portuguese Government allowed Spanish fishermen to fish, under certain conditions, to within three miles of the coast of Algarbe.[1227]

While it is evident that Spain and Portugal claim jurisdiction to the extent of six miles from the coast, it appears that an exclusive fishery to that distance is not enforced against all other nations. It seems that on the Mediterranean coast, the three-mile, and not the six-mile, limit is applied against French fishermen,[1228] and the British Government, in the interests of British trawlers, recently intimated that they did not recognise any claims of the Spanish or Portuguese Governments to exercise jurisdiction over British vessels beyond the three-mile limit; and, in point of fact, British and German trawlers now fish off the Portuguese and Spanish coasts up to three miles from the shore.[1229] They have developed an important and extensive trawl-fishery there during the last few years; and although the local fishermen strongly object to their presence within waters where they are themselves prohibited to trawl, and it is stated that negotiations on the matter have taken place between the London and Lisbon Governments, they have not been ordered out of them, and still continue their trawling. Both in Spain and Portugal meetings have been held with reference to the territorial waters, at which resolutions were passed calling for an international arrangement for the extension of the limits to ten or twelve miles; and some unpleasant encounters have occurred between the local and foreign fishermen. On these coasts, however, a limit so extensive would largely prevent foreigners from fishing, owing to the great depth of the water at such distances from the shore. On the other hand, it is argued that as the available fishing-ground is so narrow and small, there is all the more reason why it should be protected from the destructive methods of fishing pursued by the foreign vessels, and preserved as far as possible for the inhabitants of the coast.[1230] Quite recently, it appears, the Portuguese Government have regularised their position with regard to foreign trawlers and foreign fishermen generally, by passing a law forbidding them to fish, under severe penalties, within a zone of three sea miles from the shore. They have thus accepted the inevitable, in view of the pressure applied by at least one of the great maritime Powers. With regard to bays, however, the limit specified in the fishery conventions is not adopted. The zone of three miles in respect to bays has to be reckoned according to the principles of international law.[1231]

Spain, it may be added, after the victorious campaign of 1859-60, concluded a treaty with Morocco, by which Spanish subjects are allowed to fish on the coast of that country up to the shores, for corals, sponges, and other marine products, as well as for fish.[1232]

The extent of the territorial waters claimed by Norway and Sweden is even greater than that claimed by Spain and Portugal, owing to the method of measurement, the distance of four geographical miles being measured either from the coast or from the outermost part of the outermost isle or rock which is not submerged by the sea at high tide. Such isles and rocks are numerous on the Scandinavian coasts, so that the fishermen distinguish the waters “within the rocks” (_inom skärs_) from those “without the rocks” (_utom skärs_) or at sea, and in many places the extent of water reserved by the rule is very considerable. There appears, however, to be a difference in Sweden and Norway as to the precise method of measurement. In Norway such isles and rocks are appropriate for the base-line, if they are not farther from the mainland than eight geographical miles of sixty to a degree; and it seems to follow from the rule that the measurement from the coast or shore must be made at high-water, but this is not expressly said.[1233] In Sweden the isle or rock is spoken of as within one geographical league of the coast, and it may be such as is not _continuously_ submerged, but is periodically uncovered, which implies a base of low-water.[1234] On some parts of the Norwegian coast the territorial sea may thus extend to twelve miles from the mainland. Bays and fjords are, moreover, included in the territorial waters irrespective of whether their width at the mouth is or is not greater than ten miles; and in including these, as much importance is attached to the islands which may lie at their entrance as to the distance between headlands. With regard to large open ways or stretches of sea partly enclosed, no fixed rule has been laid down, but Norway reserves the right in certain cases to exceed the limit derived from the general principle as above explained. On some parts of the coast special laws regulate the extent of the sea in which the exclusive right of fishing is reserved to subjects. The rich cod-banks on the coast of Söndmöre, Romsdal, and Nordmöre are thus included within the territorial waters, the base-line being drawn between various islands, in the manner described above. The first of these was a royal decree of 16th October 1869, which prescribed that a straight line drawn at a distance of one geographical mile (of fifteen to a degree) from and parallel to a straight line drawn between Storholmen and Svinö, shall be taken as the boundary of the waters off the coast of the Söndmöre district, in which the fishing is entirely reserved for the inhabitants of the country. Another royal decree of 9th September 1889 continued this boundary farther to the north-east. It ordained that a line drawn at a distance of one geographical mile from and parallel to a line from Storholmen through Skraapen (outside of Harö), Gravskjær (outside of Ona), and Kalven (the last of the Orskjærens), to the last of the Jevleholme, outside of Grip, was the boundary of the waters off the coast of the Romsdal district, in which fishing is entirely reserved for the inhabitants of the country.[1235]

A, The base-line; B, the line of closure; C, the three-mile limit.]

This special line from Svinö (which lies about eight miles north of Stadtland, or Van Staten) to Jevleholm stretches for about eighty-five geographical miles along the coast,[1236] the distance between the islets through which the base-line passes being respectively 28, 14½, 7, 23½, and 12 geographical miles, and some of them are over seven miles distant from the mainland or the nearest large island. The extent of water reserved is thus large, the area between the base-line and the boundary-line being alone about 340 square miles; but the extent of sea included which would be outside the ordinary three-mile limit is much less than might be expected, owing to the great number of isles and islets along the coast. In the accompanying figure (fig. 23),the part of the coast embraced by the law of 1889 is represented, the base-line, the boundary of the reserved waters, and the ordinary three-mile limit being shown. The area of water between the latter and the Norwegian limit amounts, approximately, to 140 square miles. The figure also shows how complicated a three-mile boundary based on the provisions of the North Sea Convention would be on such a coast. It is to be noted further, that within the limits prescribed by the royal decrees a series of stringent regulations have been made for the orderly prosecution of the fishery.[1237]

Of much greater international importance is the claim made by the Norwegians to the exclusive right of fishing in the Vestfjord, an arm of the sea which extends between the coast of Nordland and the Lofoten Islands, where from time immemorial the greatest cod-fishing in Europe has been carried on.[1238] It is, strictly speaking, a strait, as indicated in the accompanying figure (fig. 24), bounded on one side by a chain of islands and on the other by the mainland, opening to the northwards by several narrow channels, and to the south by a wide mouth about forty-five geographical miles in breadth. The waters of the Vestfjord have for centuries been considered as territorial, and the fisheries within them as reserved for the Norwegian people; but no decree or law has as yet been promulgated respecting the boundary between the reserved waters and the open sea.[1239] Locally, however, as at Bodö, it is supposed that the line of closure runs from Moskenæs on the west to Stot on the east, which are about forty-five miles apart, and the length of the fjord from this line is about sixty-five miles. As stated below, however, it appears from a letter of the Minister of Foreign Affairs, in 1868, that the line may be drawn from the southern part of Röst, a group of isles situated nearly fifty miles from the mainland and about 110 miles from the extreme head of the fjord. The total area within a line drawn from the south end of Moskenæsö (Lofoten Point) to Möst Fjord is over 2000 square (geographical) miles, about 900 square miles of this lying outside the ordinary three-mile limit. Within a line from Röst to Kunna the total area is nearly 3900 miles, about half being beyond the ordinary limit.

Another large expanse of sea, the Varangerfjord, in East Finmarken (fig. 25), has been closed, with special regard to whaling, for a distance up to one geographical mile (of fifteen to a degree) outside a line drawn from Kibergnæs on the north to Jacobs River on the south; and it is stated by the Norwegian Minister for Foreign Affairs that the boundary mentioned has always been considered as indicating the true limit of the territorial waters in the Varangerfjord. This arm of the sea, claimed as territorial, is thirty-two miles wide at the entrance and about fifty miles in length. The total area of the fjord is about 630 square (geographical) miles, of which approximately 225 square miles are beyond the ordinary three-mile limit. Various laws have been made by the Norwegian Government affecting whaling in this quarter.[1240]

A Swedish decree of 5th May 1871 concerning the fisheries, defined the extent of the territorial waters from the Norwegian frontier along the coast to Kullen, at the entrance to the Sound, as one Swedish league (equal to four geographical miles of 60 to a degree), reckoned from the coast, or the farthest out island or rock which is not constantly overflowed by the sea;[1241] and by the treaty with Denmark in 1899, already referred to, the same limit is carried on from Kullen to Falsterbo and up to Simrishamn in Christianstad. There does not appear to be any corresponding decree for the eastern coast of Sweden.

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).