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

The matter was again raised in connection with the convention of 1867, and it was associated with a recent act of jurisdiction by the Irish authorities beyond the three-mile limit. Some Welsh boats which had been dredging for oysters on the coast of Wexford, at a distance, it was said, of four or five miles from the shore, were arrested, taken to Wexford, the fishermen fined, and the oysters forfeited. The Board of Trade thereupon asked the Irish Department, with reference to an Act that had been passed in 1842 to regulate the Irish fisheries,[1151] to state what were “the limits of the Act to regulate Irish fisheries” in pursuance of the provisions of which they presumed they had acted, and “whether the oysters in question were captured within those limits.” The reply was that the oysters were taken two and a half miles from the shore, but that the most extensive and valuable oyster-beds on the east coast of Ireland lay at a distance of from five to ten miles from and parallel to the shore, and so far as they, or any other beds, were “within the reach of ordinary shore boats, and were habitually frequented by and afforded the means of living to a shore population, the Commissioners conceive they are justly entitled to be considered Irish beds, and to come within their control.”[1152]

The Irish Members of Parliament strenuously supported this contention, and they succeeded in getting a clause inserted in the Convention Act of 1868 enabling the Irish Commissioners, with the approval of the Queen in Council, to regulate the dredging for oysters on any oyster-beds situated within the distance of twenty miles seawards from a straight line between Lambay Island and Carnsore Point—an area of nearly 1300 square (geographical) miles, outside the three-mile limit, including the Arklow and Wexford banks, and stretching from twelve and a half to nineteen miles beyond the ordinary limit. All such regulations were to “apply equally to all boats and persons on whom they might be binding,” and they were binding “on all British sea-fishing boats, and on any other sea-fishing boats in that behalf specified in the Order, and on the crews of such boats.”[1153] By an Order in Council, dated 29th April 1869, regulations were made under this section of the Act appointing a close-time; but no other boats than British boats were therein specified.[1154]

In the interval between the two conventions with France, referred to above, there were some other treaties that dealt with territorial waters to which allusion may be made. The provisions of the treaty of 1818 with the United States respecting the fishery rights on the coasts of the British dominions in America ([see p. 581]) had given rise to disputes, and in particular the words “within three marine miles of any of the coasts, bays, creeks, or harbours.” This was interpreted by the British and Colonial Governments as meaning that the boundary of three miles was to be drawn, not everywhere along the coast following all its sinuosities, but, where bays or creeks existed, from a straight line passing from one headland to another across their mouth or entrance—that is, according to the principle now known as the headland doctrine. The United States, on the other hand, generally contended that the words meant that the three-mile limit was to be measured everywhere along the coast from the line of the shore, following it in all its curves and indents, thus eliminating altogether any special treatment for inlets or bays, and dealing with all parts of the coast as if it were an open coast. There is little doubt that the British interpretation was the correct one. This is evident from the previous usage with regard to bays as shown by the rules relating to the King’s Chambers and the practice of the Admiralty Court in England, and the reserved firths in Scotland, and by the claim advanced by the United States with respect to neutral rights in 1806. It is also evident from the language of previous treaties. That of 1686 between France and Great Britain referred to “havens, bays, creeks, roads, shoals, or places”; in that of 1783 between Great Britain and the United States, “coasts, bays, and creeks” are spoken of; and in that between the same Powers in 1794, with respect to neutral rights, it was agreed that ships should not be taken “within cannon-shot of the coast, nor in any of the bays, ports, or rivers of their territories.” It is clear that a distinction was drawn between coasts and bays—a distinction which is now and always has been recognised in international law, which is made in the North Sea and other fishery conventions of recent times, and is claimed by the United States with regard to their own coasts.[1155] If no such distinction between coast and bays was meant in the clause of the treaty of 1818, then the words “bays, creeks, and harbours” are without meaning and superfluous, a construction which is contrary to the rule which requires that effect be given to every word in a contract or treaty. That the British construction was correct was virtually admitted by Mr Webster, the American Secretary of State, when he said in a State paper, 6th July 1852, that “it was undoubtedly an oversight in the convention of 1818 to make so large a concession to England, since the United States had usually considered that those vast inlets, or recesses of the ocean, ought to be open to American fishermen as freely as the sea itself, to within three miles of the shore.” He admitted, moreover, that the word bay applied equally to small and large tracts of water situated between capes or headlands.

Fig. 17.—Bay of Fundy. A, United States territory.

In 1824, and again in 1838 and 1839, British cruisers seized American vessels for fishing within the Bay of Fundy, the Bay of Chaleurs, and elsewhere in contravention of the treaty of 1818; and in 1843 the schooner Washington was arrested for fishing in the Bay of Fundy at a distance of ten miles from shore, taken to Yarmouth, Nova Scotia, and sold. In the diplomatic correspondence which followed these seizures, the two Governments took up the position as to the interpretation of the treaty which is referred to above; but eventually, in March 1845, Lord Aberdeen intimated that the British Government, while adhering to their interpretation, would as a matter of courtesy relax the rule with regard to the Bay of Fundy, and allow “the United States fishermen to pursue their avocations in any part of it, provided they should not approach, except in cases specified in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick.” The Bay of Fundy ([fig. 17]) is a very large but typically landlocked inlet of the sea, passing between Nova Scotia and New Brunswick for a distance of about 140 miles from its mouth. As with many other bays, there is more than one cape or projection of land that might be taken as its headlands, but one of them is clearly in the United States; and the distance from it to the opposite coast is from forty to fifty-five nautical miles, while the bay itself at sixty or seventy miles from the entrance is over twenty-five miles in width. Chaleur Bay, between New Brunswick and Quebec, is a little over sixteen miles in width and over sixty miles long ([fig. 18]).

The United States declined to receive the above-mentioned privilege as a favour, and the colonists made a strong representation to London as to the injurious results that would ensue if the proposed policy were adopted; and in 1849 the British law officers of the Crown gave their opinion on the provisions of the treaty, “that the prescribed distance of three miles is to be measured from the headlands or extreme points of land next the sea of the coasts, or of the entrance of the bays, and not from the interior of such bays or inlets of the coast; and consequently that no right exists on the part of American citizens to enter the bays of Nova Scotia, there to take fish, although the fishing, being within the bay, may be at a greater distance than three miles from the shore of the bay.”

In terms of the convention of February 8, 1853, the case of the Washington, above described, came before referees in London, and on their disagreement it was decided by the umpire, Mr Joshua Bates, in favour of the United States. His conclusion was that the Bay of Fundy was not a British bay, nor a bay within the meaning of the word as used in the treaties of 1783 and 1818, but belonged rather to the class which comprised such bays as the Bay of Bengal and the Bay of Biscay, over which no nation can have the right to assume sovereignty. He also pointed out that one of its headlands was in the United States; and he thought that the doctrine of the headlands had “received a proper limit” in the Anglo-French convention of 1839, where a ten-mile base-line was adopted.

Fig. 18.—Bay des Chaleurs.