But in a subsequent debate Lord Fitzmaurice appears to have qualified his statement, and quoted the observation of Lord Salisbury that where the coast was “folded and doubled,” as where bays exist, it was an unsettled question in international law how far territorial waters extend in such cases.[1336]
Rather a different view was taken by the Lord Chancellor, a few weeks later, in the course of another debate about the Moray Firth. Lord Loreburn confined himself to saying that the obvious contention of other nations, and one very difficult to encounter, if we tried to make byelaws under our own law in regard to waters within a line from headland to headland eighty-five miles apart, would be that we might be trying to legislate for the high seas.[1337] And in a debate in July 1908, the Secretary for Foreign Affairs (Sir Edward Grey) put the matter in an exceedingly lucid manner. Parliament had recognised the contention, he said, that there ought to be special regulations, especially in regard to the Moray Firth, going far beyond the three-mile limit; and, like other members of the Government, he condemned the action of British subjects who, knowing perfectly well the law, made use of a foreign flag to evade the regulations of the Moray Firth, which it was obviously the desire of Parliament should be enforced. But when they came to the question of enforcing the law on foreign subjects, they were placed in a very difficult position. The national policy of this country hitherto “had been to uphold the three-mile limit, but to protest against and to resist by every means in our power the pretension of any foreign country to enforce its own jurisdiction on the sea beyond the three-mile limit.” We had contended before international tribunals, as in the Behring Sea Arbitration, that the three-mile limit is the only one we can recognise as the limit of foreign jurisdiction over British vessels; and suppose we attempted to enforce a doctrine going far beyond the three-mile limit on foreign ships, how could we contend before an international tribunal for a doctrine precisely the reverse of that which we have always upheld on previous occasions? It followed from this that “if there was to be a modification of the rules relating to trawling in the North Sea, it must be by agreement with foreign Powers”—that was really the practical point upon which the matter turned. But in an important question affecting the interests of the country at large, it was impossible for the Foreign Office to approach other Powers with the view of reaching an agreement until it was quite clear that it was in the interest of a policy which had been adopted, affirmed, and declared by the Government to be a policy which was in the general national interest of the United Kingdom. Judging from the very great force with which the case in such regions as the Moray Firth had been presented, and the strong feeling that existed and which was not confined to the Moray Firth, it had always seemed to him that there was a case for grave consideration as to whether any new regulations were required for the preservation of the fishing industry in the North Sea at large. Trawling was a perfectly legitimate industry in which large capital was invested, and if further restrictions were to be imposed on it, it must be because a really important national interest required it; it would not be right to adopt in the interests of particular localities any special restrictions which might result in diminishing the supply and raising the price of fish. But, having laid down these two principles, Sir Edward Grey thought it was equally true that if the supply of fish from the North Sea is being affected by want of further regulations, then the interests of any particular industry must be subordinated to the general interest, which in the long-run was also the interest of the industry itself. “If it be the case,” he proceeded, “that in areas like the Moray Firth, which are important breeding-grounds, the supply of fish is being seriously interfered with by the prosecution of trawling in narrow waters, then it becomes a matter of national interest that we should, as soon as possible, come to some agreement with foreign Powers under which we should be able to make the arrangements which prove to be necessary in the national interest at large.” The subject was one requiring the deliberate investigation of the Government, and the investigation was proceeding; and they should know in the course of a reasonable time whether or not the Government thought they had a case for approaching other Powers, and if so what were the grounds and propositions they should ask those Powers to agree to. With regard to bays, the Foreign Secretary said it had generally been understood that the qualification of the three-mile limit applied to bays ten miles wide, and they must be very careful as to how far they pressed the doctrine as to the width of a bay, or laid down an international doctrine on any particular bay. They must think of what the application of it might be in other parts of the world.[1338]
In this statesmanlike speech the case was put temperately and fairly. Whether the Moray Firth is or is not a territorial bay, it has been the general practice of the British Government to contend for the ordinary three-mile limit, at least on open coasts, in relation to fishery questions. If there are clear reasons for the extension of this limit at any part of the coast, or in the North Sea generally, in the common interests of the fisheries, as recommended by the Select Committee of the House of Commons in 1893; or for the prohibition of trawling within a great area on the Continental coast, as urged by the English trawlers, and recommended by the Parliamentary Committees of 1900 and 1904; or if it is believed to be necessary to regulate the fisheries in any way beyond the ordinary limit, then obviously the best method is to endeavour to come to an arrangement with the other Powers concerned. There are precedents for this course in British policy. By treaties with France, the British Government agreed to bind British subjects not to fish for oysters or any kind of fish within Granville Bay in waters beyond the ordinary limit. In the interests of the preservation of the fur-seal, in which the United States was mainly concerned, they agreed to prohibit British subjects from taking them within a limit of sixty miles around the Pribilov Islands, and to compel them to observe a close-time on the high seas, and to use only the primitive spear. They have also by treaty agreed to respect various other limits beyond the ordinary three miles in the interest of the preservation of other kinds of seals. The case of the North Sea, or of that inlet of it known as the Moray Firth, is on the same footing as these. The question is not one of the extension of territorial sea qua territorial sea, but of special regulations independent of it, and exclusively relating to the fisheries.
From what has been said in foregoing pages as to the impoverishment of the fishing-grounds in the North Sea, and the various remedies that have been at one time or another proposed by the English trawlers and by Parliamentary Committees with the view of maintaining the fish supply, it might appear that a very good case already existed for approaching foreign Powers with the object of arranging for general regulations beyond the ordinary limit, and one far weightier than that which brought about the conference at The Hague and the North Sea Convention in 1882 ([see p. 631]).
Two probable reasons may be advanced for the delay in giving effect to the recommendations of the various Committees of Parliament. The first is that a very important international investigation of the North Sea and adjacent waters has been in progress for a number of years and is still going on. On the invitation of the Swedish Government, representatives of Great Britain, Germany, Russia, the Netherlands, Denmark, Sweden, and Norway met at Stockholm in June 1899, and again at Christiania in May 1901, to discuss and arrange an organisation and a programme for an international scientific investigation of the North Sea, the Norwegian Sea, and the Baltic, in the interests of the fisheries; and in July 1902, the first meeting of the body so constituted, the International Council for the Exploration of the Sea, was held at Copenhagen. Since then all the maritime countries of Western Europe, with the exception of France, have engaged in these researches.[1339] This country entered into the arrangement with special reference to the fisheries in the North Sea, and with a very practical end in view—namely, to secure a careful inquiry into the effect of the methods of fishing in the North Sea, and to promote a scheme for determining whether protection against overfishing was required; and, if so, where, when, and how such protection should be given.[1340] Much strong criticism has been passed as to the origin, the methods, and the programme of these investigations,[1341] and while they have naturally resulted in large additions to our knowledge of the physical and biological conditions of the sea, of the life-history of fishes, and of certain fishery questions, no report has yet appeared dealing with the fundamental problem as to overfishing and any remedies which may be required to safeguard the fish-supply; and it is doubtless such information that is referred to by the Foreign Secretary as essential before Foreign Powers can be approached. An opinion was, however, early expressed as to the particular question of the Moray Firth. The Conference held at Christiania in 1901, at which all the Powers signatory to the North Sea Convention (with the exception of France) were represented, passed a resolution to the effect that “in distinct areas of the sea, as for example the Moray Firth, in which any Government has undertaken scientific experiments in the interest of the fisheries, and in which the success of the experiments is being hindered by the operations of trawlers, it is to be desired that measures be adopted for the removal of such hindrances.”[1342]
The second probable reason that nothing has yet been done to arrive at an international understanding appears to be that the representatives of the great trawling industry have changed their minds within the last few years. Since foreign coasts have been exploited with immediate financial success to the trawling companies, their interest in the North Sea has diminished. They fear that if the question of fishery regulations beyond the ordinary three-mile limit is opened up with foreign Powers in the interest of the North Sea fisheries, proposals may be made, as a quid pro quo, by some of the other Powers for similar regulations on their coasts; and it is evident from the statements made in Parliament that this view has hitherto prevailed.[1343] One would have thought that a quid pro quo which closed to trawling the great area off the Continental coast, which English trawlers for more than fifteen years have been vainly asking to be closed by international arrangement, would be satisfactory to them. Or that a fishery limit of nine or ten miles on the other side of the North Sea, or all around it, which they thought some years ago to be the best remedy for the depletion of the fishing-banks, would meet with their approval. These areas, compared with the whole of the North Sea, are comparatively of small extent ([see fig. 26]). The area of the North Sea between the three-mile line and a nine-mile limit amounts to about 12,000 square miles, or 7·4 per cent of the whole area beyond three miles from the shore; and the area between the three-mile line and a thirteen-mile limit amounts to about 20,000 square miles, or 12·3 per cent.
Meanwhile, the condition of the fishing-grounds in the North Sea is described as serious by those who ought to know most about it—the trawlers who are daily working there; and if no remedy is timeously applied, the measures which will eventually be necessary will transcend those which are now proposed.[1344]
But if it be imprudent to postpone indefinitely the seeking of an international remedy for the depleted fisheries of the North Sea, because the trawling industry fears that retaliatory measures may be proposed against British trawlers on some foreign coasts, it may be questioned, on the other hand, whether the action taken to obviate such measures has always been well-judged or in accordance with the true comity of nations. On strictly selfish grounds, and for immediate profit, it is doubtless justifiable to make every fishing-bank, wherever it is situated, available for the enterprise of British capital, irrespective of the interests of the inhabitants of the adjoining coast, if that can be managed. If, indeed, the resources of the sea were inexhaustible,—if it was impossible for the operations of man to diminish the abundance of fish,—then no limit of exclusive fishing would be necessary: only such regulations would be required as would enable fishing operations to be conducted in an orderly manner. But the condition of the North Sea alone proves the opposite. It shows also, what is well enough understood, that unrestrained trawling on any banks will, in course of time, materially reduce their productiveness; and the rapidity of the impoverishment will very largely depend upon the intensity of the fishing and the extent of the grounds. That being so, it may well be said that a measure of protection on the banks which are still productive along foreign coasts would be in the permanent interest of the English trawling industry itself, as well as in the interest of the coast population.[1345]
On some of those coasts the local population are dependent on the fish they catch on the neighbouring grounds, which are often of limited extent, and it is reasonable and just that they should endeavour to preserve this supply for their own use and advantage. At Iceland, for example, the area of the possible fishing-grounds between the ordinary three-mile limit and a depth of 200 metres (or 109 fathoms), including places where trawling is not practicable, amounts to about 36,600 square miles, compared with nearly 312,000 square miles between the same limits off the British Isles.[1346] It was recently stated in the House of Lords, by Lord Heneage, that the Icelanders, with the view of preserving their fishing-grounds, a few years ago brought forward a law in the Althing, or local Parliament, to extend the limit of exclusive fishing to seven miles around their coast. It was also said that in 1901 they passed laws for enclosing extra-territorial waters. As soon as these proceedings came to the knowledge of the English trawl-owners, the National Sea Fisheries Protection Association made a representation on the subject to the Foreign Office, and in consequence of this the Danish Government took action, and the law was prevented from coming into operation.[1347] And any such action in the future was effectually prevented by the immediate negotiation of an international convention in which a three-mile limit was fixed for Iceland and Faröe ([see p. 647]) so far as concerned British fishermen. Then with respect to the coasts of Spain and Portugal, where the available grounds are narrow, amounting altogether between the three-mile limit and the 200-metre line to 15,460 square miles ([see fig. 28]), intimation has been made by the British Foreign Office, at the instance of the National Sea Fisheries Protection Association, that jurisdiction will not be recognised over British vessels beyond three miles from the shore, and the national regulations in regard to trawling are thus rendered comparatively ineffective. With regard to Norway, moreover, where the area between the three-mile limit and the 200-metre line exceeds 30,000 square miles, it appears that soon after her separation from Sweden, in 1905, the British Foreign Office made the proposal that she should join in the North Sea Convention (which, along with Sweden, she refused to do in 1882), so that the ordinary three-mile limit might be imposed along the Norwegian coast; but the proposal was rejected.[1348]
In view of the evidence that has been adduced, the recommendations of the various Committees of Parliament that have inquired into the subject, and the statements made in the House of Commons, it may be assumed that an international conference of the Powers bordering the North Sea will be convened, to consider how fishery regulations may be made more effective, whether by extension of the limits of exclusive fishery or otherwise, as soon as the results of the international fishery investigations justify that course.