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

It may be here stated that some years later, when American and British whalers had greatly increased in numbers in Behring Sea, the Russian officials on several occasions urged their Government to preserve the sea as a mare clausum,[1079] or to prohibit foreign whalers from approaching the coast within a distance of forty Italian miles.[1080] The Russian Government pointed out in reply that to fix such a limit would be contrary to the conventions, and might lead to protests from other Powers, “since no clear and uniform agreement has yet been arrived at among nations in regard to the limit of jurisdiction at sea.” In 1847 the Government repeated the objections, and expressed the opinion that “the limit of a cannon-shot, that is, about three Italian miles, would alone give rise to no dispute”; and they further observed that no Power had yet succeeded in limiting the freedom of fishing in open seas, other Powers never recognising such pretensions. Subsequently, in 1853, in consequence of continued complaints as to foreigners fishing in the sea of Okhotsk, the Russian Government were pressed by the influential Russian-American Company either to close that great stretch of waters, as an inland sea, or to prohibit whalers from approaching close to the shores and whaling in the bays and among the islands. Instructions were thereupon issued to the commanders of the Russian cruisers to prevent foreign whalers from entering bays or gulfs, or from coming “within three Italian miles of the shores” of Russian America (north of 54° 41´ lat.), the peninsula of Kamtchatka, Siberia, the Kadjak Archipelago, the Aleutin Islands, the Pribyloff and Commander Islands, and the others in Behring Sea, as well as Sakhalin and others; and at the same time it was declared that while the Sea of Okhotsk, from its geographical position, was a Russian inland sea, foreigners were to be allowed to take whales there.[1081] Thus the Russian Government adopted at first the principle of the range of guns, then spoke of this or three Italian miles, and eventually accepted and enforced, on the great extent of coast referred to above, the three-mile limit.

Reference must now be made to some decisions in the courts of law and to certain provisions in particular Acts of Parliament which bear upon the question of the extent of the territorial waters. Owing to the long-continued peace on the sea since the decisions of Lord Stowell at the beginning of last century, few occasions have occurred for the question of the boundary of neutral waters to be raised. In a number of civil cases tried in our courts the three-mile limit has, however, been referred to, either as a ground for the decision, or more usually as a dictum of the judges, as the proper boundary of the territorial sea; but this has been frequently coupled with the qualification that it is the assumed distance of the range of guns, or the smallest extent that has been claimed by publicists or states.[1082] Some of these cases dealt with the vexed question of bays.[1083] One of the most important was tried in 1859, and it referred to the Bristol Channel. An offence was committed on an American vessel within one mile of the coast in Penarth Roads, but where the width from shore to shore is less than ten miles, and Chief Justice Cockburn, in delivering judgment, said, “We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of which it is bounded; and the fact of the Holms,[1084] between which and the shore of the county of Glamorgan, the place in question, is situated, having always been treated as part of the parish of Cardiff, and as part of the county of Glamorgan, is a strong illustration of the principle on which we proceed, namely, that the whole of this inland sea, between the counties of Somerset and Glamorgan, is to be considered as within the counties by the shores of which its several parts are respectively bounded.” A good deal of discussion has taken place as to the precise meaning of these words. It is to be noted that much farther seawards than the place in question the width of the Channel is less than ten geographical miles. On the usual rule for bays (as laid down in the fishery conventions), the ten-mile base-line would pass between Nash Point in Glamorgan and Hurtstone Point, the headland east of Porlock in Somerset, and the closing line would be three miles west of this, or about twenty geographical miles from Penarth Roads. The six-mile limit, from land to land, is, however, about twenty-seven miles farther east, between the coast near Goldcliff, in Monmouth, and that near Walton Castle, Somerset. But about midway between these two limits (and seawards of Penarth Roads) there is a part where the three-mile zone around the island, Steepholm, joins that of the coast on either side, and though eastwards of this there are small areas beyond the distance of three miles from shore, the fact that the territorial waters are continuous from side to side at this place probably confers territoriality on all the waters inside, though that is a point which has not apparently been decided. A line drawn from the western boundary of Somerset (and in that case not from a headland) to Worms Head, the most western part of Glamorgan, measures about thirty geographical miles, and it is a markedly oblique line. What is true of one county ought to be true of another, and a much more natural line would be one of about twenty-three geographical miles between Morte Point in Devon and Worms Head in Glamorgan; or one still farther seawards between Hartland Point in Devon and St Goven’s Head in Pembroke, which are about thirty-eight geographical miles apart; but under common law the range of vision has to be taken into account. It may be added that the whole of the Bristol Channel within a line from Land’s End to Milford was one of the “King’s Chambers” ([see p. 122]), the closing line being nearly one hundred miles long; and that Continental publicists have referred to it, probably from this circumstance, as being within British jurisdiction.[1085]

Fig. 15.—The Bristol Channel.

Another case of the kind decided in a British court concerned Conception Bay in Newfoundland, which is rather more than twenty miles wide between the headlands and from forty to fifty miles in length. It was decided by the Judicial Committee of the Privy Council in 1877 that it was a British bay and part of the territorial waters of Newfoundland. The decision was based partly on the configuration of the bay, but mainly on the evidence that the British Government had for a long time exercised dominion over it, which had been acquiesced in by other nations, and the Legislature had by Acts of Parliament declared it to be British territory.[1086] Lord Blackburn, in delivering judgment, said that there was a universal agreement among writers on international jurisprudence that harbours, estuaries, and bays, landlocked, belong to the territory of the nation which possesses the shores round them, but no agreement existed as to what is the rule to determine what is a “bay” for this purpose. “It seems generally agreed,” he continued, “that where the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is part of the territory,” most of the writers referring to defensibility from the shore as the test of occupation. But the judgment was founded on the principle above stated.

With regard to jurisdiction over foreigners in the waters along our coasts, it is surprising that until quite recently there was no statutory enactment or international agreement defining the extent of that jurisdiction. Even in certain statutes in which the territorial waters are specially mentioned their boundaries are not defined, Thus, the provisions of the Foreign Enlistment Act of 1870,[1087] which was passed for purposes of neutrality in the war between France and Germany, were declared by the second section to extend “to all the dominions of Her Majesty, including the adjacent territorial waters”; and the fourteenth section provided that any ship captured during the war between other nations when Great Britain was neutral, “within the territorial jurisdiction of Her Majesty, in violation of the neutrality of this realm,” &c., would be illegal; yet, in the interpretation clause no definition is given of the meaning or extent of “the adjacent territorial waters.” A similar reluctance apparently to fix a definite boundary to the territorial seas for all purposes has been shown by the British Government on several occasions in recent years—as, for example, in the Territorial Waters Jurisdiction Act, and in the negotiations preceding the North Sea fishery convention of 1882.[1088]

The statute just referred to was the outcome of a very important case which was decided in the English courts in 1876, and raised indirectly the whole question of the extent of the territorial sea (apart from bays) and the nature of the jurisdiction over it. A German ship, the Franconia, bound from Hamburg to the West Indies, ran into a British ship, the Strathclyde, off Dover and within two and a half miles from the English coast, whereby the Strathclyde was sunk and a passenger drowned. The master, a German named Keyn, was convicted of manslaughter in the Central Criminal Court, according to English law, and the case was carried to the Criminal Court of Appeal. The defence was that as the defendant was a foreigner, in a foreign vessel, on a foreign voyage, sailing upon the high seas, he was not subject to the jurisdiction of any court in this country, while it was contended for the crown that inasmuch as at the time of the collision he was within three miles of the English shore, the offence was committed within the realm of England and was triable by the English court.[1089] It was held by seven of the thirteen judges that in the absence of statutory enactment the Central Criminal Court had no power to try such an offence, inasmuch as the original jurisdiction of the admiral, which had been transferred to that court, did not enable him to try offences by foreigners on board foreign ships; the other six judges held the opposite, on the ground that the sea within three miles of the coast of England is part of the territory of England; that the English criminal law extends over those limits; and the admiral formerly had, and the Central Criminal Court now has, jurisdiction to try offences there committed although on board foreign ships. In referring to the limits of the territorial waters under the law of nations, the three-mile distance or the range of guns from the shore was very generally quoted, and not infrequently the two were confused and spoken of as if they were one and the same thing. This was particularly the case with Sir Alexander Cockburn, who referred to various treaties and edicts ([see p. 570]) in which the range of guns alone was mentioned, as having fixed a three-mile limit for purposes of neutrality. He even gives Bynkershoek the credit of having propounded the three-mile theory.[1090] His conclusion was cautiously expressed as follows: “Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treaties, the three-mile belt of sea might at this day be taken as belonging, for these purposes [in connection with fisheries and neutrality], to the local State.”

It was, as we have said, in sequence to the above case of the Franconia that the important statute, the Territorial Waters Jurisdiction Act, was passed by the British Parliament in 1878.[1091] This Act is sometimes loosely referred to as having settled the extent of the territorial waters at three miles from the shore. This is far from being the case. In the preamble it is stated that “whereas the rightful jurisdiction of Her Majesty, her heirs and successors, extends and has always extended over the open seas adjacent to the coasts of the United Kingdom and of all other parts of Her Majesty’s dominions to such a distance as is necessary for the defence and security of such dominions. And whereas it is expedient that all offences committed on the open sea within a certain distance of the coasts of the United Kingdom and of all other parts of Her Majesty’s dominions, by whomsoever committed, should be dealt with according to law,” it was enacted that an offence committed by a person, whether or not a British subject, within the territorial waters of Her Majesty’s dominions was an offence within the jurisdiction of the admiral, although committed on board, or by means of, a foreign ship, and the person who committed the offence might be arrested, tried, and punished accordingly. The legal advisers of the Government were, however, careful to guard against the limitation of the general rights of the crown in the adjacent seas to the distance to which criminal jurisdiction was declared to extend. In the interpretation clause it is stated: “‘The territorial waters of Her Majesty’s dominions,’ in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty’s dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty: and for the purpose of any offence declared by this Act to be within the jurisdiction of the admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty’s dominions.” The reservation is made explicit in the fifth section, which says that “nothing in this Act contained shall be construed to be in derogation of any rightful jurisdiction of Her Majesty, her heirs or successors, under the law of nations, or to affect or prejudice any jurisdiction conferred by Act of Parliament or now by law existing in relation to foreign ships or in relation to persons on board such ships.”

In the debate that took place in the House of Lords in 1895 in connection with the Sea Fisheries Regulation (Scotland) Act,[1092] by which power was conferred on the Fishery Board for Scotland of regulating trawling, under certain conditions, up to thirteen miles from the coast ([see p. 720]), it was stated by Lord Halsbury, who had charge of the Territorial Waters Jurisdiction Act in 1878, that “in that Act they took care specially to avoid any measurements. The distance was left at such limit as was necessary for the defence of the Realm; then the exact limit was given for the particular purpose in view.” Equally clear was the statement of the late Lord Salisbury in the same debate, that “Great care had been taken not to name three miles as the territorial limit. The limit depended on the distance to which a cannon-shot could go.”[1093]

It is evident from the foregoing that the territorial sea that may be claimed as belonging to this country is not restricted to a distance of three miles from the shore on an open coast, though a certain jurisdiction and certain rights may be confined to that distance by municipal law or international agreement. The determination of the extent is left to the law of nations, and there is but little doubt that by the law of nations the true principle of delimitation is the actual range of guns from the coast, where the coast is washed by the open sea. It is to be noted that in the Territorial Waters Jurisdiction Act nothing is said about bays: criminal jurisdiction is confined to “the open sea” within one marine league of the coast. Offences such as come under the Act may obviously be committed as well in territorial bays and arms of the sea as within the three-mile limit on the open coast; and the omission to include bays was no doubt deliberate, bays in England being left under the common law on the principle previously explained, the range of vision, and in Scotland presumably under Scots law—i.e., “within land” (see pp. 545, 547).