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 already mentioned, the three-mile limit is the one in force in all the British colonies, in Japan,[1215] in the United States of America, and in some at least of the South American states. The Chilian Government, for example, has defined the extent of the territorial sea belonging to it as one marine league from low-water mark, within which distance the right of fishing is reserved to Chilian citizens or domiciled foreigners. At the same time it is stated that “police administration for the purposes of the security of the State or the carrying out of fiscal regulations extends to a distance of four marine leagues, measured in the same manner.”[1216]

Quite lately, however, one of the chief states of South America has advanced a claim to a very wide extent of sea along its coasts—so far, at least, as the right of fishery is concerned. In September 1907 the Minister of Agriculture for the Argentine Republic issued a series of ordinances for the regulation of the fisheries,[1217] in which it is declared that, with respect to the fisheries, a zone of water up to a distance of ten miles (18,520 metres, or about 10¼ nautical miles) from high-water mark on the land is under the control of the state. The great gulfs and bays are, moreover, included, such as the Gulf of San Matias, the Gulf of St George, and the Gulf of Nuevo, the closing line in some cases considerably exceeding one hundred nautical miles from point to point, and extending for more than seventy miles beyond a three-mile limit. All living animals in the sea are considered as objects of sea-fishing, with the exception of those which reproduce on the land, as birds, seals (lobos), and fish-otters. Within the declared limits the exercise of sea-fishing is free, provided that the regulations are adhered to. The one referring to trawling prohibits that method of fishing by sailing-boats within three miles of the shore, but allows such boats to trawl outside that distance if the meshes of the nets have an aperture not less than 16 centimetres (6¼ inches); steam trawling, on the other hand, is prohibited within five miles of the shore. Commercial fishing is forbidden within the great extent of water referred to unless by vessels entered on the official list (matricula nacional), and foreigners are thus excluded. A novel feature, but one in complete harmony with the results of modern fishery investigations, is the reservation of the right to close any area within the limit claimed, so that such area or areas may act as reserves to replenish neighbouring grounds and increase the multiplication of the fish. The right to establish close-times is also reserved, and the sale of undersized fish is prohibited unless for certain specified purposes.

Special regulations are made for sealing. Concessions for this purpose will be granted for a term of five years on various parts of the coast under certain conditions, and it is enacted that for a distance of twenty miles from the coast in such places the right of taking seals is confined to those who have obtained the concession. Penalties for the infraction of the laws are provided, fines varying from five to five hundred pesetas, and offenders may be imprisoned for a period of from one to sixty days.

Later regulations issued by the Minister of Agriculture, applying to that part of the coast between the Rio de la Plata and the Rio Negro, provide that all those engaged or who desire to engage in sea fishing there, must first receive official permission to do so. Within a zone of twelve miles from low-water mark, trawling by steamers is prohibited, but trawling by sailing-boats, and fishing with various kinds of lines and with drift-nets, are allowed; and all vessels employed must fly the national flag, and have their crews partly national, in accordance with the laws.[1218] It may be noted that these regulations are declared to be for the purpose of preventing the extermination of certain species of fish, and that the grantees must, when requested, allow officials to be on board for scientific study.

The adjoining state of Uruguay also lays claim to jurisdiction, with regard to fisheries at least, beyond the ordinary three-mile limit in the extensive inlet of the Rio de la Plata, which lies between Uruguay and Argentina, and is nearly sixty miles wide at its mouth, with an estimated area of about 5000 square miles. In 1905 a Canadian sealer, the Agnes G. Donohoe, was arrested for the contravention of a presidential decree which prohibits sealing within these Uruguayan waters, but it was subsequently released. The British Government formally protested against this claim to jurisdiction outside the three-mile boundary, which, however, is strongly supported by the Argentine Government, which is equally concerned in its maintenance.[1219]

It is evident from the foregoing that most maritime states, and all the great ones, either by treaty or in their municipal laws and decrees, have adopted the three-mile limit, at least for fishery purposes. It is quite appropriate, therefore, to refer to it as the “ordinary” limit, as was done by the Tribunal of Arbitration on the rights of seal-fishing in the Behring Sea, though the tribunal did not affirm, and could not affirm, that it found the three-mile limit to be, as a matter of fact, universally accepted.[1220] But though it is the ordinary limit, it is not the only one enforced, and it is erroneous to declare, as some of the less instructed writers on international law have stated, that territorial jurisdiction cannot be carried further.[1221]

In point of fact, no fewer than four of the maritime states of Europe reject the three-mile limit, while a fifth has in part deviated from it. Norway, Sweden, Spain, and Portugal, all claim to enforce a wider boundary, and Denmark has adopted the old Scandinavian limit in her recent treaty with Sweden ([see p. 655]). Thus, along nearly 4000 miles of the coasts of Europe, or for about one-third of their whole extent, the three-mile limit is not accepted by the bordering state. The right claimed by these countries to a wider extent of territorial sea has been embodied in treaties between some of them, and has been successfully maintained in specific instances against the opposition of other Powers. It is to be noted, moreover, as is shown later, that their claims to the wider space have been quite lately fully justified and homologated by the most authoritative exponents of international law, the French Institute and the British Association on the Law of Nations, as well as by various international congresses of fishery experts dealing with the subject from a fishery point of view.

We have already stated that Spain in the eighteenth century declared that her territorial sea extended to a distance of six miles from the coast ([see p. 569]). At that time such a limit must have been regarded as moderate, but during last century, after the principle of cannon range had been commonly translated into one marine league, the right to a zone of double that extent was called in question both by the United States and Great Britain. During the civil war in America the question came to the front, more particularly with reference to the waters around Cuba. In 1862 the American Government intimated that they were not prepared to admit that Spain, without a formal concurrence of other nations, could exercise exclusive sovereignty upon the open sea beyond a line of three miles from the coast; while Spain, relying on the legal principle governing the extent of the territorial sea, argued that the improvement of modern artillery made the three-mile limit ineffective. Two years later a discussion on the subject took place between the British and American Governments, the former desiring that during the existence of hostilities the limit of neutral waters should be greatly extended, so that shots from belligerents might be prevented from falling, not only on land, but within the neutral waters, and limits of ten, eight, and five miles were mentioned.[1222] In 1874 the British Government had itself occasion to object to the claim of Spain; and on communication with the Government of the United States, they were informed that that Government had always protested against it, and on the same grounds, that by the law of nations jurisdiction could only extend to one marine league from the coast.[1223] Notwithstanding the opposition of the two chief maritime Powers, Spain did not abandon its claim, for by a royal order of 16th May 1881, passed with special reference to the jurisdiction over American vessels in Cuban waters, it was declared that full jurisdiction extended to a distance of six miles from the coast. This limit was also fixed for customs purposes in Spanish waters by royal decrees in 1830 and 1852, and in the general ordinances of the customs in 1884, the six miles being stated to be equivalent to eleven kilometres.[1224]

With regard to fisheries, Spain has entered into various treaties with Portugal as to the right of fishing along their respective coasts. By a convention in 1878, reciprocity was established in the territorial waters of the two countries, subject to the observance of local regulations and certain specified conditions, as the prohibition of the use of drag or trawl nets (“artes de Bou ou parelhas, chalut, muletas”) within twelve miles from the coast.[1225] In another treaty concluded between these Powers on 2nd October 1885, and slightly amended in 1888, two fishery zones were established, the first extending to three miles from the coast, which was exclusively reserved for nationals, and the second, from three to six miles, in which the fishermen of both countries were at liberty to fish. In a later treaty of commerce and navigation, which came into force in October 1893, the zone of exclusive fishing was extended to six geographical miles from the coast of either country—that is, to the extreme boundary of the jurisdictional waters, measured from low-water mark of spring tides (“de la línea de bajamar de las mayores mareas”), and a ten-mile base-line for bays was adopted. Within this space the fishery and its regulation were reserved by each state; but in the frontier rivers, the Miño and Guadiana, the fishery was specially dealt with, as in previous treaties. Each Government also agreed to prohibit certain injurious modes of fishing (parejas, muletas, &c.) within twelve miles of their coasts, and a series of regulations, like those of the North Sea Convention of 1882, were included with respect to the entry of the fishing-boats of one of the countries within the territorial waters of the other, and the police supervision of the fishing-boats of either country beyond the six-mile limit.[1226] In Spain the reservation of six miles was regarded as unjust, since the water off the coast of Portugal was much deeper than off the Spanish coast, and in the following year the Portuguese Government allowed Spanish fishermen to fish, under certain conditions, to within three miles of the coast of Algarbe.[1227]

While it is evident that Spain and Portugal claim jurisdiction to the extent of six miles from the coast, it appears that an exclusive fishery to that distance is not enforced against all other nations. It seems that on the Mediterranean coast, the three-mile, and not the six-mile, limit is applied against French fishermen,[1228] and the British Government, in the interests of British trawlers, recently intimated that they did not recognise any claims of the Spanish or Portuguese Governments to exercise jurisdiction over British vessels beyond the three-mile limit; and, in point of fact, British and German trawlers now fish off the Portuguese and Spanish coasts up to three miles from the shore.[1229] They have developed an important and extensive trawl-fishery there during the last few years; and although the local fishermen strongly object to their presence within waters where they are themselves prohibited to trawl, and it is stated that negotiations on the matter have taken place between the London and Lisbon Governments, they have not been ordered out of them, and still continue their trawling. Both in Spain and Portugal meetings have been held with reference to the territorial waters, at which resolutions were passed calling for an international arrangement for the extension of the limits to ten or twelve miles; and some unpleasant encounters have occurred between the local and foreign fishermen. On these coasts, however, a limit so extensive would largely prevent foreigners from fishing, owing to the great depth of the water at such distances from the shore. On the other hand, it is argued that as the available fishing-ground is so narrow and small, there is all the more reason why it should be protected from the destructive methods of fishing pursued by the foreign vessels, and preserved as far as possible for the inhabitants of the coast.[1230] Quite recently, it appears, the Portuguese Government have regularised their position with regard to foreign trawlers and foreign fishermen generally, by passing a law forbidding them to fish, under severe penalties, within a zone of three sea miles from the shore. They have thus accepted the inevitable, in view of the pressure applied by at least one of the great maritime Powers. With regard to bays, however, the limit specified in the fishery conventions is not adopted. The zone of three miles in respect to bays has to be reckoned according to the principles of international law.[1231]