The Sovereignty of the Sea / An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters

by Thomas Wemyss Fulton

Fig. 14.—Facsimile of part of the chart, showing where the “Twee Gebroeders” were taken. From Robinson, Admiralty Reports.

In deciding the second case, in which the circumstances were much the same, Lord Stowell said that “in the sea, out of the reach of cannon shot universal use is presumed”; but he made no reference to three miles as an equivalent distance.[1071] A few years later, in 1805, in deciding the case of the Anna, which was captured at the mouth of the Mississippi by a British privateer, and in which the question of the violation of American waters had to be considered, the same judge, quoting Bynkershoek, said: “We all know that the rule of law on this subject is terræ dominium finitur, ubi finitur armorum vis; and since the introduction of fire-arms, that distance has usually been recognised to be about three miles from shore.”[1072]

It is, as above stated, in these decisions of the High Court of Admiralty that the three-mile limit originated in England. They furnished the legal precedents which regulated subsequent practice. The gunshot limit was a doctrine borrowed from Continental publicists, and three miles as its equivalent from recent American practice. Both were previously unknown to English law.[1073]

Moreover, although, as we shall see, the writers on international law had in only a few instances accepted the three-mile limit as an alternative to the range of guns from the shore, and scarcely any of the Continental publicists of repute, the actual practice of Great Britain and the United States, together with the legal decisions in the British and American courts, and the dicta of the judges, tended steadily to bring about its adoption. At first the boundary of one marine league as equivalent to the range of cannon had reference solely to questions of neutrality, as the capture of prizes, in the maritime wars that prevailed. But very soon it was applied to other purposes, and first of all by the British Government in connection with the rights of fishery. During the peace negotiations with the United States at Ghent, after the war of 1812-14, the British Government intimated that they did not intend to grant to the United States gratuitously the privileges formerly given by the treaty of 1783 “of fishing within the limits of British territory, or of using the shores of the British territories for purposes connected with the fisheries.” The treaty of Ghent contained no stipulation on the subject, but shortly afterwards the British Government expressed its intention to exclude, and gave instructions to exclude, fishing vessels of the United States from fishing within the harbours, bays, rivers, and creeks, and within one marine league of the shores of the British territories in America, and from drying and curing their fish on shore. Several American vessels were seized for trespassing within British waters, and the prolonged diplomatic discussion which followed resulted in the convention of 1818, by which the fishermen of the United States were allowed the same rights as British fishermen on certain parts of the coast, but at all other parts they were forbidden to fish within a distance of three miles of the “coasts, bays, creeks, or harbours.”[1074] This was the first of the treaties in which the three-mile limit was specified, and it naturally formed a precedent for those which followed.

That the principle of adopting the distance in question as the proper boundary of the territorial sea had not yet become firmly incorporated in British policy in all cases was, however, shown a few years later in the negotiations with Russia concerning Behring Sea. In 1821 the Emperor of Russia issued a ukase or decree, in which he declared that the pursuit of commerce, whaling, and fishery, and of all other industry, on all islands, ports, and gulfs, including the whole of the north-west coast of America, beginning from Behring Straits to the 51st of northern latitude, and in other parts specified, had been exclusively granted to Russian subjects; and therefore prohibiting “all foreign vessels not only to land on the coasts and islands belonging to Russia, as stated above, but also to approach them within less than 100 Italian miles,” the penalty for doing so being the confiscation of the transgressing vessel and the cargo.[1075] The Russian Government claimed that the extent of sea of which the Russian possessions formed the limits “comprehended all the conditions which are ordinarily attached to closed seas (mers fermées), and it might consequently judge itself authorised to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners; but it preferred only asserting its essential rights without taking any advantage of localities.” This, it will be perceived, was a revival in the nineteenth century of pretensions similar to those which Denmark had advanced in the seventeenth and eighteenth; and the claim was opposed by Great Britain and the United States, whose interests were threatened by it. The British Government declared that it was contrary to the law of nations, and that it could not admit the right of any Power possessing the sovereignty of a country to exclude the vessels of others from the seas on its coasts to a distance of 100 Italian miles. In its justification Russia cited, not the Italian publicists or the earlier practice in the Mediterranean, but an article in the treaty of Utrecht, which assigned thirty leagues as the distance of prohibition ([see p. 531]),—an argument which was sufficiently answered by the statement that the distance mentioned was a particular stipulation in a treaty to which the other party had given its deliberate consent. At an early period in the discussion the Russian Government suspended the execution of the ukase, and instructed the commanders of their ships of war to confine their surveillance as nearly as possible “to the mainland, i.e., over an extent of sea within the range of cannon-shot from the shore.”

An article in the draft convention subsequently arranged between Great Britain and Russia provided for an exclusive fishery, not within three miles, but within two leagues or six miles, from the coasts of their respective possessions in the regions referred to; but when the British Government discovered that in the corresponding convention concluded a little earlier between Russia and the United States no limit at all had been specified, they withdrew this article. Mr George Canning, in a despatch to Mr Stratford Canning, the British plenipotentiary at St Petersburg, withdrawing the article, said that its omission was, in truth, immaterial, since “the law of nations assigns the exclusive sovereignty of one league to each Power on its own coasts, without any specific stipulation.” The Russian Government raised no objection to the new article, and the distance from the coast at which the fishing was to be exercised in common passed without specification, “and consequently,” added Stratford Canning, “it rests on the law of nations as generally received.” A little later, before the convention was ratified, the British plenipotentiary, thinking it might be desirable to have the law of nations declared therein, jointly with the Court of Russia, in some ostensible shape, broached the subject anew and suggested that notes should be exchanged in London “declaratory of the law as fixing the distance at one marine league from the shore.” The Russian Minister, however, expressed disinclination to do anything that might retard the immediate ratification of the convention; and he assured Canning that the Russian Government would be content in executing the convention to abide by the recognised law of nations, and that if any question should afterwards be raised upon the subject, he would not refuse to join in making the suggested declaration, “on being satisfied that the general rule under the law of nations was such as the English Government supposed.”[1076]

It is evident from these despatches that the British Government at that time held the opinion that the territorial waters of a state on an open coast extended, “by the law of nations,” for one marine league from the shore. But it would not have been easy for them to adduce convincing testimony in support of that opinion from the accredited writers on the law of nations whose works were then available, or from the general usage of nations apart from Anglo-American practice. The Russian Government were obviously not satisfied on the point, and their instruction to their naval commanders to enforce the limit of cannon range, though that was a less definite boundary, was more in consonance with the law of nations as generally understood. It was natural that the British Government should give weight to the decisions of Lord Stowell in the Admiralty Court.

The Government of the United States, in discussing the Russian pretension, did not apparently lay the same stress on the principle of the three-mile limit as they did on some other occasions. The claim that the Northern Pacific might strictly be regarded as a closed sea was met by the simple statement that the opposite coasts on the parallel of 51 degrees were 4000 miles apart. The right of American subjects to navigate and fish within the prescribed distance of 100 miles from the coast was rested on continuous exercise from the earliest times. Universal usage, it was declared, which had obtained the force of law, had established for all coasts “an accessory limit of a moderate distance” which was sufficient for the security of the country and for the convenience of its inhabitants, but which laid no restraint upon the universal right of nations, nor upon the freedom of commerce and of navigation.[1077]

In the conventions which followed, it was provided that the subjects of the contracting Powers should not be molested either in navigating or in fishing in any part of the Pacific Ocean, and they were to be at liberty for ten years to frequent without hindrance all the inland seas, gulfs, havens, and creeks, on the coasts mentioned, for the purpose of fishing and of trading with the natives, subject to certain conditions to prevent illicit commerce.[1078]