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

Fig. 22.—The White Sea, showing the line between Cape Kanin and Cape Sviatoi.

The views of Russia with respect to the limits of territorial waters, as expressed during the negotiations with Great Britain in the earlier part of last century, have been referred to ([p. 581]), and it appears from the Russian Code of Prize Law, 1869 (Art. 21), that the jurisdictional waters, the extent of which had been fixed in her treaties at the end of the eighteenth century at the range of guns, are limited to three miles (about 5647 metres) from the shore. The same distance was assigned for customs purposes; and as no general boundary has been prescribed for the exclusive right of fishing, it may be presumed that that right is restricted to the same space.[1198] It appears that Russia also claims the White Sea as a mare clausum, or mer fermée, within a line between Cape Kanin (Kanin Nos) and Cape Sviatoi (Sviatoi Nos), where it is about eighty geographical miles in width.[1199] If this claim is now made by Russia, it would probably be difficult for her to make it good before an international tribunal, did such exist. For not only is the mouth of the width stated, but the area included is nearly 30,000 square geographical miles, only about twenty per cent of which is within the ordinary three-mile limit. Until lately the only foreigners who fished in the neighbourhood of the White Sea were Norwegians, but in each summer since 1905 both English and German steam-trawlers have carried on an important fishery in the vicinity of Cape Kanin, but not within the White Sea itself, where the rocky nature of the bottom is said to prevent this method of fishing.[1200]

In France, fishing in the sea beyond three miles from low-water mark was declared by a decree of 10th May 1862 to be free all the year round, except for oysters; but certain fisheries were allowed to be temporarily suspended beyond the three-mile limit, if it was found necessary for the preservation of the bed of the sea, or of a fishery composed of migratory fishes.[1201] The first Article of the law of 1st March 1888, which originated in the North Sea Convention, states that “fishing by foreign vessels is prohibited in the territorial waters of France and Algeria within a limit which is fixed at three marine miles seawards from low-water mark,” with the same arrangement for bays as in the North Sea Convention. The distance stated does not, however, necessarily represent the bounds of the territorial sea, properly so called, the extent of which has never been precisely defined by France.[1202] No doubt France, like other countries, reserves her right to a wider limit should occasion arise to make that necessary.

It appears that as early as 1832 the three-mile limit was declared by Belgium to be the boundary of her territorial waters,[1203] and by a law promulgated in 1891, and based upon the North Sea Convention, “all foreign boats” were prohibited from fishing within three miles of the Belgian coast.[1204]

In the Netherlands also, in connection with the North Sea Convention, the boundary of exclusive fishing has been declared to be at the distance of three miles from low-water mark, and this applies to all foreign fishermen. No distinction has been formally made between the fishery limit and the limit of the territorial sea for political purposes.[1205]

In Austria-Hungary, whose coast is confined to the eastern shore of the Adriatic, the three-mile limit has been adopted, subject to certain qualifications respecting the right of fishery under treaties with Italy. The regulations concerning foreign vessels of war authorise a shot to be fired from the nearest battery at any such vessel which does not show its flag on coming within range of the guns, and within the same distance of a fortified port they are prohibited from taking soundings, practising with firearms, &c.; other regulations forbid vessels laden with goods which form the object of a monopoly of the state from approaching within gunshot. By a decree of 23rd August 1846, and a circular of 28th April 1849, it was declared that the expression “range of guns” in these ordinances was equivalent to three marine miles of sixty to a degree. The customs regulations operate within the same limit, but the manifest can be demanded within a farther distance of four marine miles.[1206] With respect to the right of fishing, the regulations are somewhat complex. The boundary of exclusive fishing is fixed at three miles,[1207] but inasmuch as the fisheries in the Adriatic are carried on almost only by Austrian and Italian subjects, it was found convenient to arrange by treaty for the fishermen of either country to fish within the territorial waters of the other, except within a distance of one marine mile from the shore, and subject to certain restrictions regarding the fisheries for corals and sponges, and the observance of the local regulations.[1208] This mutual arrangement with regard to the right of fishery was renewed and continued in a later treaty of 11th February 1906.

The fishings within one marine mile of the shore are reserved to the inhabitants of the commune to which the coast appertains; but in certain specified circumstances fishermen from other places may be allowed to fish within this communal zone. The use of drag-nets and trawl-nets is prohibited in all places where the depth is under eight metres; within the first maritime or communal zone at certain seasons, irrespective of depth, and altogether within five miles of the coast when employed from steamers. Owing to the absence of tides, the shoreward limit is not measured from a low-water mark, but from a line, fixed by local authorities, where the water ceases to be constantly brackish.[1209]

It is doubtful how far the three-mile limit has been adopted in Italy. In a Bill of 1872 a distinction was proposed between the territorial waters and the exclusive fishing waters, but this distinction was not made in the law of 1877.[1210] The question was taken up later by the Commission for Fisheries, and the opinions elicited from the local authorities at various parts of the coast, who were consulted, varied, the recommendations for the boundary of the territorial waters (mare territoriale) ranging from one and a half miles to ten kilometres, and very commonly the limit suggested was four geographical miles. The boundary recommended for the exclusive fishing waters (mare pescatorio) also varied, but in this case the depth of the water rather than the distance from shore was held to be the more important factor in deciding on a limit, an opinion with which the Commission agreed so far as concerned steam trawling. In view of the fishery conventions of the western Powers, the Commission recommended a limit of three miles and ten miles for bays, as in those conventions,[1211] but the proposal was not accepted by the Italian Government. The subject was again considered by the Commission in 1904 and 1906, with particular reference to steam trawling and dredging, but no proposition to determine the boundary of the territorial waters for fishing purposes was adopted. A decree of 4th September 1908, however, introduced a limit of three miles, but only with reference to the use of dredges in some districts of the Tyrrhenian Sea.

With respect to the extent of the territorial sea for political purposes, no definition has been given in Italian laws; it depends therefore upon the general principles of international jurisprudence. It is interesting to note that in some comparatively recent decrees the boundary is stated to depend on the range of guns. Thus, instructions issued by the Minister of Marine in June 1866 commanded the officers of the navy to refrain from all hostile acts in the ports and territorial waters of neutral Powers, and reminded them that the limit of the territorial waters was the range of cannon from the shore; and in a circular from the same Ministry in March 1862 it was stated that the extent of the territorial sea varied in different countries and in the opinion of different publicists, but that the general opinion was that the range of guns was the sole rule on the matter.[1212] It may be added that by the customs law of 1896, the manifest of vessels may be demanded within ten kilometres of the coast.[1213]

In Greece, another of the Mediterranean states, the three-mile limit was adopted in 1869, when a circular of the Minister of Marine prohibited foreigners from fishing within that distance of the shore. Previously, in virtue of a royal decree issued in 1834, foreign boats were allowed to fish for sardines in the Gulf of Corinth, but this concession was withdrawn.[1214]