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

As the British and French delegates could not agree on this subject, further discussion was postponed until the former had consulted their Government. When this was done, they announced that their instructions did not permit them to adopt the French proposals; and they continued to press the draft article for acceptance, declaring that the question of defining the limits of the maritime jurisdiction of the various countries did not fall within the province of the convention. The other delegates, however, did not share this view, and when a complete definition was insisted on, the British representatives ultimately agreed to accept the terms employed in the first article of the Anglo-French convention of 1867, and they submitted the following article: “The fishermen of each country shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark along the whole extent of the coasts of their respective countries. As regards bays, the entrances of which do not exceed ten miles in width, the distance of three miles shall be measured from a straight line drawn from headland to headland.” The counter-proposal on the part of France did not materially differ from this, except by the inclusion of islands, by the better definition regarding bays, and by the insertion of a clause providing for the right of free navigation and anchorage in territorial waters.[1170] The German delegate, anxious about the waters at the mouths of German rivers, urged that flats or banks uncovered at low water should also be included, as well as islands. This proposal had been agreed to by the British Government in 1868, after correspondence between the Foreign Office and the German Embassy in London, and though apparently not now desired by Great Britain, it was formally adopted.[1171]

The article as finally agreed upon was as follows: “The fishermen of each country shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark along the whole extent of the coasts of their respective countries, as well as of the dependent islands and banks. As regards bays, the distance of three miles shall be measured from a straight line drawn across the bay, in the part nearest the entrance, at the first point where the width does not exceed ten miles. The present Article shall not in any way prejudice the freedom of navigation and anchorage in territorial waters accorded to fishing-boats, provided they conform to the special police regulations enacted by the Powers to whom the shore belongs.”

Fig. 19.—Showing the Sandbanks at the mouth of the Ems.

It is interesting to note that, at the instance of the Dutch president, the conference agreed that the provisions of the convention would not be applicable to the Zuiderzee; and that in deliberating on the boundaries of the North Sea within which they would apply, it was agreed to exclude the Skagerrack, the fisheries of which, it was stated by the president, were not international, but were “essentially within the jurisdiction of the States to which the shores belong.” The greater part of the Zuiderzee, however, would have been excluded by the definition of bays in the convention, and the rest of it by the inclusion of “banks”; but the Skagerrack, on the other hand, is nowhere less than sixty geographical miles from shore to shore. Neither Norway nor Denmark has asserted since the convention exclusive jurisdiction in its moiety of these waters, where, in point of fact, both English and German vessels now carry on an extensive fishing.[1172]

Some other points of interest were raised during the deliberations of this important conference. It was asked by the president: What would be the fate of the convention during war, in which one or two of the Governments joining in it should be belligerents? Would the fishery cruisers of the Powers concerned merely retire from the North Sea and leave fishermen of their nationality without protection or help? He recommended that the conference should adopt the principle that fishing-boats, bonâ fide engaged in fishing, should be declared neutral. This was to revive a subject that had earlier, especially during the time of Napoleon I., caused much discussion, and which was remote from the object of the convention; and the proposal, though sympathetically received by the French delegates, was not supported by any of the Governments. A proposal of another kind was made by the German delegate. He thought it was necessary that restrictive measures should be enforced to prevent the destruction of the fry of fish and the taking of small fish; for example, by forbidding trawling within a certain distance of the shore, so as to provide a shelter for the free development of fish, and by regulating the construction of trawl-nets. The British and French delegates were opposed to any system of restriction, relying on the results of the inquiry which had been then recently made by Messrs Buckland and Walpole,[1173] and on the part of France the following draft clause was formulated for insertion in the convention: “In the extra-territorial part of the North Sea, fishery shall be free at all seasons, and with all kinds of implements, without any sort of distinction.” The clause was not adopted, and it was generally agreed that the question was not ripe for decision by that conference, which was moreover concerned with the police of the fisheries, and not with the reproduction of fish, in the North Sea.

The North Sea Convention was concluded in 1882, the signatory Powers being Great Britain, Germany, France, Belgium, Denmark, and the Netherlands.[1174] Although the delegates of the United Kingdom of Sweden and Norway signed the protocol and were present at the final deliberations, those Powers did not join in the convention, objections being raised as to the definition of the territorial waters and on some other points.[1175] An additional article was inserted providing that the King of Sweden and Norway might adhere later, for both or either country; but this has not been done, though the coast of Norway forms a not inconsiderable part of the boundary of the North Sea as defined in the convention. The reasons which induced these countries to abstain from joining in a friendly agreement with the neighbouring Powers of western Europe, after having accepted the invitation to the conference and taken part in its deliberations, must have appeared to them strong; and from the delay that occurred in coming to a decision it is evident that the matter received full consideration. They believed, however, that to agree to so restricted a boundary for their territorial waters in respect to fishery would be disadvantageous to them: it is probable, moreover, that the raising of the question was not foreseen, since the object of the conference was to consider the police of the fisheries in extra-territorial waters in the North Sea. It is curious, indeed, that the limits for exclusive fishery, both in the convention with France in 1839 and with the other North Sea Powers in 1882, were fixed as it were incidentally.

The duration of the convention was to be for five years from the date at which it came into operation, unless one year’s notice to terminate it were given by any of the contracting Powers; and it was to continue in force from year to year subject to similar notice. That none of the signatory Powers have withdrawn from the convention is the best proof of its general utility. From the number and influential position of these states, and from the character of the sea to which it applies,—one of the most productive in the world,—this convention is an international document of high importance to the sea fisheries, and deserves careful consideration. The first article declares that the provisions shall apply to the subjects of the high-contracting parties, the object being “to regulate the police of the fisheries in the North Sea outside territorial waters”; and the limits of the North Sea were carefully defined.[1176] The provisions of the convention relate to the registration, lettering, and numbering of boats, the operations of fishermen pursuing different methods of fishing at the same place at the same time, the malicious use of instruments for cutting nets, the salvage of derelict fishing-gear, and the superintendence by cruisers. It was put in force in this country in 1883 by an Act of Parliament,[1177] which also extended its application, so far as British sea-fishing boats were concerned, to the whole of the seas around the British Islands, whether within or without the exclusive fishery limits. In this Act the stipulation in the second article of the convention, as to the freedom of navigation and anchorage in territorial waters on the part of foreign fishing-boats, received a limiting definition. The clause in question was inserted in the convention at the instance of France, and was accepted with some reluctance by the British delegates, who agreed to it in general terms only, without the recognition of a right.[1178] By the Act foreign fishing-boats were prohibited from entering the exclusive fishery limits of the British Islands except for purposes recognised by international law, or by any treaty or arrangement in force between this country and any foreign state, or for any lawful purpose. If a foreign boat did enter, it was to return outside the limits as soon as the purpose for which it entered had been answered, and fishing or attempting to fish within the limits was, of course, forbidden under penalties.

The definition of the exclusive fishery limits in the North Sea Convention differed in two respects from that contained in the previous conventions with France. The rule for the measurement of bays was modified, and the dependent islands and banks were expressly included as part of the coast from which the limit should be measured. In the Anglo-French conventions of 1839 and 1867 bays which did not exceed ten miles in width at the mouths were comprised in the reserved waters, and the three-mile limit was measured from the line joining the “headlands.” Thus some bays whose width at the mouth, or between their headlands, exceeded ten miles were deprived of the benefit of the principle applied to bays and came under the three-mile rule, even although at a small distance within the entrance the width might not exceed ten miles. Since all bays have not headlands, the French proposal at The Hague conference to substitute “the two extreme points of the bay” for that term was an improvement. Still better was the definition finally adopted, to place the base-line at the first point nearest the entrance where the width did not exceed ten miles. The specific inclusion of islands removed such difficulties as were raised in 1853 by a French commodore at the Farne Islands ([see p. 618]), though it had long been established in connection with the rights of neutrals that islands carried with them, no less than the mainland, the belt of territorial sea. The inclusion of banks was, however, novel, and was not received with favour by the British Government. It was feared that it would lead to difficulties and complications in future if such banks as the Goodwin Sands, which were situated beyond the three-mile limit, and the similar banks on the German and Dutch coasts, were held to be territorial dependencies of the coast; and so strong was the objection of the British Government to their inclusion, that they instructed their ambassadors abroad, if an objection was raised by any Power, to have this definition reconsidered.[1179] The objection is theoretically well founded. Sand-banks of this character may be not permanent, and usually vary in extent, configuration, and position with lapse of time and even after a single tempest; and the extent of sea appendent will vary likewise. It would thus be difficult to fix a precise and permanent limit in connection with them. Moreover, since the banks may be covered by the sea except at low-water without losing their territorial value, it would sometimes require more than ordinary care on the part of foreign fishing-boats to avoid infringing the limit around them. On the other hand, for the purpose of regulations designed to protect fish life, such as are referred to in the sequel, banks of this nature are of especial value; and, in point of fact, few difficulties in practice appear to have arisen on this score in carrying out the convention.[1180]

On one or two points, however, the definitions in the convention might have been improved. Nothing is said as to the tides at which low-water mark is to be taken for measurements, though on certain coasts the extent of territorial water will vary much according to whether it is a neap or a high spring tide; and the question whether certain banks are or are not territorial and entitled to the limit may vary in the same way. It is to be presumed that the tide is an ordinary neap tide, as in English law. More important is the fact that “rocks” are not included along with islands. Quite recently the omission has given rise to difficulties in regard to three places on our coast—viz., the Eddystone, the Bell Rock, and the Seven Stones Rocks, off the Scilly Islands. The Seven Stones Rocks are a reef near the south-west extremity of Cornwall, about seven miles from Land’s End, and about a mile in length, and with a lightship at it; but it does not appear that any portion is above the sea-level at low-water of neap tides. Complaints were made to the Government by the Cornwall Sea Fisheries Committee that French fishing-boats fished within three miles from the rocks, and close to them; but it was stated by the Admiralty, and also by the Foreign Office, that these rocks could not be claimed as being within British territorial waters.[1181] In this case, presumably, the decision might rest on the fact that the rocks do not appear at low-water of ordinary tides. The Eddystone is somewhat different. The rock or reef on which the lighthouse is placed lies about fourteen miles south-west of Plymouth, and while covered by the sea at high tide, is exposed to the extent of an area of about 500 yards at low-water of neaps. French fishermen also fish around it and close to it, a practice which caused the Devon Sea Fisheries Committee to complain. The gunboat Circe, in August 1905, seized and took into Plymouth two French “crabbers” for fishing within three miles from the Eddystone, but after communicating with the Board of Trade, instructions were sent to release the boats; and the Board of Agriculture and Fisheries, while saying that they were not in a position to express an authoritative opinion on the matter, called attention to the decision in 1902 regarding the somewhat similar case at the Seven Stones. Here, no doubt, the decision rested on the absence of the specific inclusion of “rocks,” as distinguished from islands, in the conventions, and one can understand the expression of surprise by the Devon Sea Fisheries Committee that a rock which was recognised as British, and was inhabited by lighthouse-keepers, was not considered as within the territorial limit for fishing purposes.