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

CHAPTER IV.
THE MODERN PRACTICE OF STATES AND THE OPINIONS OF RECENT PUBLICISTS.

We may now pass to the consideration of the modern practice of states with respect to the extent of territorial sea which is claimed or allowed by them, and of the opinions of the later writers on the law of nations as to the extent that may be rightfully conceded or appropriated. It will be found that there is apparently a very considerable discrepancy between the one and the other. For while the opinions of publicists have on the whole become more decided and definite as to Bynkershoek’s principle being the true principle for the delimitation of territorial waters, and the inadequacy of the three-mile limit has been formally declared, the general usage of states is indicated by the common adoption of the latter limit for several purposes. As elsewhere stated, this general use of the one marine league is in large measure owing to the example, or the pressure, of Great Britain and the United States of America, and perhaps chiefly, if indirectly, to the influence of the latter. Although the United States more than any other Power has varied her principles and claims as to the extent of territorial waters, according to her policy at the time—now claiming the vague and wandering “boundary” of the Gulf Stream or the whole of Behring Sea, and now the liberty to fish right up to the shores of the Falkland Islands,—she has been consistent in this, that she has steadily and constantly pressed for the narrowest limit she could get in favour of her own fishermen on the coasts of the British North American Colonies. The unhappy heritage of the British Foreign Office that came from the abnegation of territorial dominion over large parts of the waters in question by Great Britain in former times, has been as fruitful of trouble as Lear’s renunciation of his sovereignty. The numerous negotiations as to the rights of fishing on the coasts of British North America have always resulted in concessions to the United States, and appear to have been conducted, as they were almost bound to be, rather in the light of the general political relationship of the two Powers than on the intrinsic merits of the particular question at issue; and thus in Canada and Newfoundland British diplomacy on this subject has often been criticised. Obviously, when British policy takes this course in regard to North America, one must expect for the sake of consistency, if on no other ground, that it will tend to take the same course elsewhere. An example of this was quite recently shown, when a concession of the kind referred to, as to the rule for bays, which was granted during a modus vivendi as a temporary act of grace, was spoken of as if it were now definitely incorporated in British international policy ([see p. 730]).

The discrepancy alluded to between the authorities on the law of nations and the common usage is perhaps more apparent than real. The international treaties and municipal laws in which a limit is fixed refer to a few subjects, and in particular to fisheries, and they relate to times of peace. The most vital attributes of the territorial sea relate to the security, the obligations, and the rights of neutral states in time of war; and there has happily been no great maritime war in Europe for a long time to put the principles to the test. But when such a war does come, there is little doubt that during hostilities the three-mile limit will be set aside by the neutral states concerned, and another and greater limit fixed for security, in closer correspondence with the actual range of guns. It is to be further noted, that notwithstanding the numerous municipal enactments and the international conventions in which the three-mile limit is fixed for certain purposes, no state seems to have formally and deliberately defined the absolute extent of the neighbouring sea which it claims as pertaining to it under all circumstances. Many states—and Great Britain is one of them—have taken pains to make it clear that in adopting a three-mile limit for particular purposes they do not abrogate their right to the farther extent of sea that may be necessary for other purposes.

Though Germany has not defined the extent of her territorial waters by municipal law,[1191] she has entered into agreements with various Powers respecting the limits of exclusive fishery. The first of these was made with Great Britain in 1868, and the rules for the guidance of British fishermen, issued by the Board of Trade in accordance with it, stated that,—“The exclusive fishery limits of North Germany are designated by the North German Government as follows: that tract of the sea which extends to a distance of three sea-miles from the extremest limit which the ebb leaves dry of the German North Sea coast, of the German Islands or Flats lying before it, as well as those bays and incurvations of the coast which are ten sea-miles or less in breadth, reckoned from the extremest points of the land and the flats, must be considered as under the territorial sovereignty of the North German Confederation;” and it is further said that the exclusive rights of fishery in the above spaces are reserved to Germans, and English fishermen are not at liberty to enter these limits except under certain specified circumstances, as of wind and weather.[1192] These limits were again formally recognised by Great Britain in July 1880, and, according to Perels, were further confirmed by the North Sea Convention of 1882. It is obvious that “the extremest limit which the ebb leaves dry,” both for the open coast and for bays, will differ considerably on such a coast as that of Germany from the low-water mark of ordinary tides, and that the space included in the measurement will be correspondingly enlarged. Germany also agreed with Denmark, in 1880, to the three-mile limit for the adjacent coasts of the two countries in the Baltic, with a ten-mile base-line for bays, the mid-line or thalweg applying where the waters between the respective coasts were less than six miles in width. More recently, an agreement has been concluded precisely defining on charts the exclusive fishing waters of the two countries in the Little Belt.[1193]

Denmark is one of the Scandinavian countries which, as previously mentioned, claimed a wide extent of territorial sea. In 1812 the limits, both for Norway and Denmark, were defined as follows in a royal ordinance: “We will that it be established as a rule in all cases where it is a question of determining the maritime boundary of our territory, that that territory shall be reckoned to the ordinary distance of one marine league from the outermost islands or islets which are not overflowed by the sea.”[1194] The league in these Scandinavian ordinances, as previously mentioned, is one-fifteenth of a degree, or four geographical miles, and therefore one mile more than the ordinary three-mile limit. But, in point of fact, owing to the method of measurement adopted, the space of sea included as territorial is much greater. Instead of computing the four miles from low-water mark on the shore, which is the base usually taken, it is measured from an imaginary straight line connecting the outermost points of the permanently visible isles or rocks lying farthest from the coast. In some places the extent of water thus cut off as territorial is very considerable. Though the other Scandinavian countries, Norway and Sweden, have maintained this limit to the present day, it has been in practice abandoned by Denmark, which has adopted the three-mile limit in certain agreements with Germany, in the North Sea Convention of 1882, and in the recent treaty with Great Britain with respect to Iceland and the Faröes. In the Skagerrack and Cattegat she concedes the three-mile limit to German and British fishermen, and no doubt also to the fishermen of the other nations which were parties to the North Sea Convention; and it is of interest to note, with reference to the discussion on a former page as to the extent of coast really comprised in the North Sea Convention, that it is in virtue of this convention that the old boundary of four miles has been abandoned there.[1195] But while Denmark has taken up this attitude with reference to English and German fishermen, it is claimed on her behalf by an eminent Danish authority that it is within her right still to maintain the old geographical league as the boundary of her territorial sea,[1196] and this has indeed been recently done in a fishery convention with Sweden, which claims the same limit with regard to the fisheries in the Cattegat, the Sound, the Baltic along the Swedish coast from Falsterbo to Simbrishamn, and around the islands Bornholm and Kristiansö.[1197]

Fig. 21.—Showing the two Limits in Danish Waters; the dotted line shows the Scandinavian Limit. From ‘Dansk-Fiskeritidende.’

It is to be noted that the terms used in this treaty in defining the limit differ from those in the ordinance of 1812. The ordinance speaks of islands and islets which are not submerged or overflowed by the sea, while the treaty mentions the outermost islets or rocks which are not constantly submerged or overflowed by the sea,—a distinction which might make a very considerable difference in the extent of the waters reserved.

We thus see that Denmark enforces two limits in connection with fishery—one of four miles, measured according to the Scandinavian method, in the Baltic, &c., as against Sweden (and doubtless also against Norway); and the ordinary one of three miles in the Baltic, &c., as against Great Britain and Germany at least, and also in the North Sea and at the Faröes and Iceland. The various limits are shown in the accompanying figure, which is a reproduction of the official chart. It also shows how complicated the three-mile limit is among the islands.