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

A few years before this, negotiations had been opened between the Governments with the view of establishing reciprocal free-trade between Canada and the United States, and in June 1854 a treaty was signed at Washington, commonly known as the Reciprocity Treaty, by which certain articles of produce of the British colonies and of the United States were admitted to each country respectively free of duty, and reciprocal rights of fishery were granted. The subjects of either state were to be free to fish along the coasts and in the bays, harbours, and creeks of the other, without any restriction as to distance from the shore, in Canada, New Brunswick, Nova Scotia, and Prince Edward’s Island, and on the eastern coast of the United States north of the 36th degree of north latitude. On each side salmon and shad fisheries, and the fisheries in rivers and the mouths of rivers, were reserved.[1156] This treaty was to endure for ten years, and it was terminated by the United States and came to an end on 17th March 1866, when, in consequence, the provisions of the treaty of 1818 again came into force. The British Government, however, being very desirous to prevent, as far as possible, the loss to the citizens of the United States by a sudden withdrawal of the privileges which they had enjoyed for twelve years, decided to allow American fishermen to continue to fish in all provincial waters upon the payment of a small fee.[1157] From the neglect of American fishermen to obtain the licenses, the fee for which had been raised from fifty cents to two dollars per ton, the system was discontinued in 1870, and orders were given to British cruisers to exclude American vessels from fishing in territorial waters, and several of them were seized and forfeited. The Canadian Minister of Marine and Fisheries issued instructions, in May 1870, for the same limits as are contained in the Anglo-French convention of 1839 to be put in force against American fishermen; but, on representations from London, these were withdrawn and other instructions issued to the commanders of the cruisers, in which bays of six miles or less in width at the mouth were alone reserved.[1158]

Further negotiations between the Governments ended in the treaty of Washington in 1871, in which reciprocal rights of fishing were re-established in much the same way as in the treaty of 1854, but the liberty to British subjects to fish on the coast of the United States was restricted to the part north of the 39th degree of north latitude.[1159] Under this treaty it was agreed to appoint joint commissioners to determine the amount of compensation, if any, which should be paid by the United States for the greater privileges granted to American citizens by the treaty; and this commission met at Halifax in 1877, the sum of 5,500,000 dollars being so awarded. The award was not received with favour in the United States, and notice was given at the end of the stipulated ten years for the abrogation of the treaty, and the articles referring to the fisheries were so terminated on July 1, 1885, the provisions of the convention of 1818 again, for the third time, coming into force. Further troubles and disputes occurred, not so much in relation to fishing within territorial waters, as to American vessels frequenting colonial ports for the purchase of bait, salt, &c., a liberty which was not granted by the treaty of 1818, and several of them having been seized, retaliatory measures were threatened by the United States. After negotiations between the two Governments another treaty was signed at Washington, on February 15, 1888, the principal British plenipotentiary being Mr Joseph Chamberlain. This treaty provided for the appointment of a mixed commission to delimit “the British waters, bays, creeks, and harbours of the coasts of Canada and of Newfoundland, as to which the United States, by Article I. of the Convention of 20th October 1818, between Great Britain and the United States, renounced for ever any liberty to take, dry, or cure fish.” The delimitation was to be marked upon charts by a series of lines regularly numbered and described, the three marine miles being measured from low-water mark, “but at every bay, creek, or harbour, not otherwise specially provided for in this treaty, such three marine miles shall be measured seaward from a straight line drawn across the bay, creek, or harbour, in the part nearest the entrance at the first point where the width does not exceed ten marine miles.” A large number of bays were specially dealt with by lines specified, that of Chaleurs being closed, or by other special lines from which the three miles was to be measured; and other articles in the treaty regulated the entry of American fishing vessels into colonial ports. It was further provided that whenever the United States removed the duties on fish and fish-oils from Canada and Newfoundland, United States’ vessels would be licensed, free of charge, to enter the colonial ports and harbours to purchase provisions, bait, ice, seines, and all other supplies and outfits, to tranship their catch, or for the shipping of crews.

But, inasmuch as the above treaty could not possibly be ratified before the commencement of the next fishing season, the British plenipotentiaries, in order to avoid a recrudescence of the usual friction and irritation, and to afford evidence of their anxious desire to promote good feeling, agreed, in a protocol of the same date, to a “temporary arrangement for a period not exceeding two years, in order to afford a modus vivendi pending the ratification of the Treaty.” This arrangement granted the privilege to American fishing vessels of entering the bays and harbours, on payment for an annual license of a fee at the rate of one and a half dollars per ton, in order to purchase bait, ice, and all other supplies and outfits, to tranship their catch and ship crews, and gave them some other privileges, declaring also that forfeiture was to be exacted only for the offence of fishing or preparing to fish in territorial waters.[1160]

Unfortunately, this treaty failed to pass the Senate of the United States and was never ratified, and the system temporarily adopted as a modus vivendi has been regularly renewed since, and is still in force.[1161]

It is to be noted that the arrangement in the treaty, both as to drawing lines on charts to separate the common from the exclusive fishing waters and for the adoption of a ten-mile base-line for bays, was proposed, not by the British Government, but by that of the United States. The British Government, indeed, strongly objected to a ten-mile line as involving “a surrender of fishing rights” and making “common fishing-grounds of the territorial waters which, by the law of nations, have been invariably regarded, both in Great Britain and the United States, as belonging to the adjacent country,” and they cited the Bay of Chaleurs as an example. They argued that in the convention with France in 1839, and in other similar conventions, the boundary-lines selected were due to special configuration of the coast, and could not be well settled “by reference to the law of nations”; and attention was called to the claims of the United States to Delaware Bay and other bays on their coasts. In reply to these observations of the British Government, the United States said they had proposed the width of ten miles not only because it had been adopted in fishery conventions, but also because it was deemed reasonable and just in the case in question; “while they might have claimed a width of six miles as a basis of settlement, fishing within bays and harbours only slightly wider would be confined to areas so narrow as to render it practically valueless, and almost certainly expose the fishermen to constant danger of carrying their operations into forbidden waters; a width of more than ten miles[1162] would give room for safe fishing more than three miles from either shore, and thus prevent the constant disputes which this Government’s proposal, following the conventions above noticed, was designed to avert.”[1163]

Nevertheless, notwithstanding this proposal by the United States’ Government, the limit now enforced for bays on the coasts of British North America is that of six miles, with the exception of the Bay of Chaleurs.[1164] It was apparently found that the attitude adopted by the British Government in 1870, then stated to be temporary and exceptional, of allowing the United States’ fishermen to fish “except within three miles of land, or in bays which are less than six miles broad at the mouth,” ought to be adhered to, during the existence of the modus vivendi and pending the ratification of the treaty of 1888. If a recent statement of the Under-Secretary for Foreign Affairs, made in the House of Lords, represents the policy of the British Government at the present day, this six-mile limit for bays is to be regarded as established not alone for British North America, but for every part of the British dominions unless specially provided for otherwise. ([See p. 730].)

From the foregoing summary of the disputes, negotiations, and treaties, concerning the rights of Americans to fish on the coasts of the British possessions in North America, it is evident that the British Government has gradually given way to the pressure exerted by the United States. In allowing a six-mile line for bays they have, indeed, as just shown, gone further than was demanded, and have departed from the terms of the fishery conventions which they have concluded with European Powers. The basis of the delimitation adopted in the treaty of 1888 was, as Mr Chamberlain intimated to Lord Salisbury, derived from the North Sea Convention of 1882, to which important treaty we must now turn our attention.

It has been already said that the fishery convention with France in 1867 was not ratified by that country, and never came into operation in the general police regulation of the fisheries in extra-territorial waters. The desirability of international regulations to preserve the peace between the fishermen of various countries frequenting the neighbouring seas, and particularly the North Sea, soon became apparent. Complaints of malicious interference with one another increased in number. The Belgians and French were accused of cutting and stealing the lines of Scottish fishermen, and the Dutch of taking their derelict nets, and the Fishery Board for Scotland accordingly pressed upon the Government, as early as 1876, the advantage of negotiating a fishery convention with Holland.[1165] A little later the free use by foreign trawlers of a destructive implement known as “the devil,” or “the Belgian devil,” aroused a strong feeling among British drift-net fishermen. The instrument consisted of a shank and sharpened flukes, which was hung overboard and was designed for the sole purpose of cutting fishing-nets in the sea which might impede the movement of the boat making use of it. It was a product of the disputes and difficulties that occurred in carrying on trawling and drift-net fishing in the same localities at the same time. The British Government in January 1880 appointed Mr W. H. Higgin, Q.C., to make an inquiry on the subject. His report[1166] showed that the state of things with regard to fishing operations in the North Sea by British, Belgian, French, and Dutch boats was unsatisfactory. He found that grievous injury and damage had been done to the drift-nets and tackle of English fishermen in the North Sea by trawlers belonging to France, Belgium, and Holland;[1167] that there was no international law or convention between England and France, England and Belgium, or England and Holland, affecting the fisheries in the North Sea,—the convention with France in 1867 never having been ratified, while that of 1839 was, he said, confined to the English Channel and referred only to French fishermen; and he stated that some international law of the kind was urgently required, as it would be impossible otherwise to put a stop to the outrages described. In consequence of this report the Government invited the co-operation of France, Belgium, Holland, Sweden and Norway, and Denmark in devising a remedy, suggesting that separate agreements might be made for the purpose. At the instance of Holland, it was agreed to have one joint convention, and a conference of the North Sea Powers was convened at The Hague, in 1881, to negotiate it, Germany, at her own request, being included.[1168]

In the proceedings at the conference the question that caused the greatest difficulty and discussion was the definition of the territorial waters or exclusive fishery limits. The British Government, in curious contrast to their action earlier in the century, desired to avoid any definition at all. The memorandum prepared by them as the basis of the deliberations, stipulated that the convention should “apply to the high seas generally outside the fishery limits of the countries joining in the convention.” This somewhat vague, not to say illogical, phraseology did not meet with the approval of the other Governments. It was objected to by France in particular. That Power had accepted the invitation to the conference on condition that the regulation to be agreed upon should be restricted to police rules intended to prevent conflicts between fishermen of different nationalities, “and to secure to them the free practice of their calling in the common waters of the North Sea.” In making a special convention dealing with the open sea which was common to all, it seemed to it impossible to do otherwise than begin by defining the limits within which it was intended to operate.[1169] The French delegates at the conference therefore proposed that the extent of the territorial waters should, for fishery purposes, be defined in precise terms, and they endeavoured further to get the limit made as contracted as possible. They urged that the boundary should be fixed everywhere at three geographical miles from low-water mark, whatever might be the configuration of the coast. As to fixing a larger measurement for bays, as in the Anglo-French convention of 1867, they argued that the rules laid down on this subject in the convention in question ought not to apply to the North Sea; in many instances these rules had reference only to the interests of oyster fisheries, which, they said, did not exist in the North Sea. The French contention regarding bays was thus similar to that of the United States in the negotiations concerning the treaty of 1818; and it was of course to the interest of France, whose own coast would be but little affected, and whose fisheries along the British coast in the North Sea were of great importance, to have the exclusive fishery limit made as narrow as possible.

The proposal that the territorial waters for fishery purposes ought to be precisely defined, and that the limit on the open coast should be fixed at three geographical miles from low-water mark, was generally accepted, Belgium alone supporting the British view that it was better not to define them in the convention. But as regards bays, objection was taken to the French scheme on the part of Germany, with special reference to the mouth of the Elbe, which was declared to be a part of the sea belonging exclusively to Germany; and on the part of Norway, on the ground that that country could not agree to fix the limit at three miles, particularly with respect to bays. The rights which particular states might have acquired, it was urged, ought not to be prejudiced, and “bays should continue to belong to the State to which they at present belonged.” The French delegates then formulated their proposition in the following terms: “In the North Sea the limit of the part known as territorial waters (mer territoriale) is fixed, whatever may be the configuration of the country, at three miles from low-water mark, along the whole length of the shores of ... It is, however, understood that this shall not be taken to modify in any way the rights acquired on certain parts of their coasts by the different Powers to whom the shore belongs;” or else, “It is, however, understood that the present convention shall not be taken to modify in any way the rights which any Government may possess outside the three-mile limit in bays.”