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 Swedish decree of 5th May 1871 concerning the fisheries, defined the extent of the territorial waters from the Norwegian frontier along the coast to Kullen, at the entrance to the Sound, as one Swedish league (equal to four geographical miles of 60 to a degree), reckoned from the coast, or the farthest out island or rock which is not constantly overflowed by the sea;[1241] and by the treaty with Denmark in 1899, already referred to, the same limit is carried on from Kullen to Falsterbo and up to Simrishamn in Christianstad. There does not appear to be any corresponding decree for the eastern coast of Sweden.

Fig. 25.—The Varanger fjord.

Within the territorial waters as described above, Norway claims the exclusive right to the fisheries and all the sovereign rights that are usually exercised in territorial seas, as well as one that is not as a rule included—namely, the right to control all navigation. All vessels within the territorial waters are likewise subject to the control of the customs authorities, while in Sweden the Customs Law of 1877 extends jurisdiction to a distance of one Swedish league from the base-line. The Government does not rest its claim to so large an extent of the bordering sea merely on the principle which is usually held to determine its bounds—the range of cannon fire,—though it is pointed out that the Norwegian boundary is in reality more in conformity with the range of modern artillery than is the three-mile limit. They argue, very truly, that the zone of one marine league, although adopted in conventions between several Powers, has not been definitely established in international law, and they have themselves always refused to agree to a limit so narrow. But the principal reasons advanced are those of necessity and utility. The Norwegian coast is peculiarly irregular. It is engirdled by a multitude of islands, reefs, and rocks, and is broken up by numerous fjords which penetrate deeply into the land. A three-mile limit applied to such a coast on the principle adopted in the North Sea Convention would be intricate, confusing, and impracticable. The boundary would be exceedingly irregular, and patches and strips of extra-territorial water of the most diverse size and form would be intermingled with the territorial water; and in practice it would be extremely difficult or impossible for foreign fishermen to observe the complicated boundary, or for the authorities to enforce it. Constant disputes would result.

Another reason put forward is a moral one. The country is comparatively sterile; the climate is rigorous; the people are poor, and the fisheries are of the utmost importance for their maintenance. A large proportion of the population derive, and have always derived, their livelihood from the sea, “with which they wage a desperate war in the darkness and tempests of winter and spring to gain their daily bread.”[1242] It is therefore only just that this natural source of food along their coasts should be conserved as much as possible, so long as the manifest rights of other nations are not violated, and that the poor native fishermen, pursuing a hard and laborious calling, which necessity has imposed on them, should be protected from the intrusion of foreign vessels, better equipped and with more capital at their disposal. It is further urged that the Norwegian fishermen have enjoyed the wider area for many centuries. From immemorial times the right of fishing has been regarded as pertaining to the land. This principle was enunciated in the old provincial laws (landskapslagar) of Sweden in the middle ages, and was continued in the laws of the kingdom since the fourteenth and fifteenth centuries.[1243] It is also declared that a smaller extent of territorial sea would interfere with the efficacy of the regulations enforced for the preservation of the fisheries. A lesser boundary would intersect the more important fishing-banks, “making it impossible,” to quote the words of the Minister of the Interior, “for the state to regulate the fisheries on the whole bank, and it would be fatal to those fisheries which are necessary for the subsistence of the coast population.” This consideration, it is pointed out, is likely to have still more weight in future, owing to the increase of the population and the impoverishment of the fishing-grounds along the coast.

The claim of Norway to the wider extent of territorial sea has been as a rule respected by foreigners, probably owing in the main to the fact that its coasts are but little visited by foreign fishermen, but it has not remained without challenge. The French Government on one occasion complained that a French vessel had been prevented from fishing in the Vestfjord; but the prohibition was justified by Norway on the grounds that by the law of nations the Lofoten fisheries, and especially those in the Vestfjord, which was “part of the territorial sea,” belonged exclusively to the inhabitants, and that for centuries no foreign vessels had attempted to take part in them.[1244] In communicating the decision to the French Government, the Minister for Foreign Affairs declared that the prohibition applied equally to the adjacent sea and to the entrance to the fjord up to the distance of a marine league (of four miles), measured from the most southerly point of the isles called “Röst”—a group which lies about twenty-six geographical miles west and south of Moskenæs, and about sixty geographical miles from the mainland.[1245] In 1870 another foreign Government raised objection to the limits defined off Romsdal by the royal decree of 16th October 1869, on the ground that the base-line drawn between the islands Svinö and Storholmen exceeded eight ordinary marine miles in length, which was the maximum distance according to the Norwegian principle, already referred to, for the inclusion of the “outermost” island. The Norwegian Government, however, declared that by the law of nations it was competent to include a bay or a gulf of “not too large an extent” by drawing the line from one advanced point to another, and that it was necessary to consider local circumstances and what was natural, convenient, and just. The line that had been drawn, they said, coincided with a natural depression in the bottom of the sea which separated the inshore from the offshore fishing-banks, and it formed a natural boundary which could be readily ascertained by the use of a sounding-lead. To adhere strictly to the four-mile line in this case would make the limit intricate and impossible to be observed, and it would pass across the inshore banks. It was also argued that till lately foreign fishermen had never attempted to fish in the neighbourhood, even within a space far more extensive than that comprised in the decree.[1246]

Since the period referred to, the limit claimed by Norway is said to have been respected by foreign states and by foreign fishermen; and the Scandinavian Government has officially declared on several occasions, and notably in December 1874 to the British Government, that it would never adhere to any international convention which established a maritime zone of less than four marine miles. It declined to become a party to the North Sea Convention of 1882 for this reason, and because the line for the closure of bays was in its opinion much too small. The only treaties with foreign countries in which a limit has been fixed are the one between Sweden and Denmark, previously mentioned, in which the Scandinavian boundary is maintained, and one with Mexico, in 1886, for customs purposes, which stipulates for three marine leagues from low-water mark.[1247]

It is evident that Sweden and Norway, besides claiming a greater extent of territorial water than other countries, also claim in particular cases to depart from the principles which in general govern their own system of delimitation, in order to include other waters lying off their coasts, when they deem it necessary to reserve the fisheries there for their own subjects. In such cases it is said to be impossible to be guided by geographical rules of an absolute kind, and it is urged that any general international rules on the question should be sufficiently elastic to allow of similar exceptions elsewhere.[1248] There is little doubt that the wider area claimed by the Scandinavian states is, from the point of view of sea fisheries, preferable to the narrower zone adopted in the North Sea Convention. It will appear later, that both the authorities on sea fisheries in various countries and the authorities on international law agree as to the inadequacy of the three-mile limit for fishery purposes: and it is hardly probable that the Government of any other country will now seriously contest the right of Sweden and Norway to the larger area they claim, unless under exceptional circumstances. Norway has been fortunate in this respect, that her coasts are rarely visited by foreign fishing vessels; but this immunity is not likely to continue. During the last few years the great feature of the sea fisheries both in Great Britain and also on the Continent has been the enormous development of steam-fishing, particularly trawling ([see p. 698]). Confined for a time to the North Sea and the neighbourhood of their own coasts, steam fishing-vessels now regularly visit distant quarters in large numbers, and trawlers from England and Germany make the long voyage to the grounds off the White Sea, traversing the whole coast of Norway, in quest of fish. The absence of foreign competition in the fisheries of the Norwegian coast is due largely to the generally rough and rocky nature of the bottom and the great depth of the water, which make trawling difficult or impossible; but there are, no doubt, within the territorial limits, more or less restricted areas where trawling could be carried on with success, and if these be discovered by foreign vessels, and they are outside the ordinary three-mile boundary to which they are accustomed, there is little doubt the question of the Norwegian claim will be raised again. Line-fishing by steamers is now, moreover, greatly developed, and this method of fishing can be pursued, and is now pursued by the Norwegians, in deeper water and on rocky bottom, as in the Vestfjord and off Romsdal. In the summer of 1907, indeed, one or two British trawlers were seized by the Norwegian authorities for fishing within their territorial waters at Finmarken, but were released later.[1249]

From the account which has been given above of the recent practice of civilised states it is apparent that the majority of them have adopted the three-mile limit, with a ten-mile base-line for bays, for fishery purposes. There is a tendency, moreover, for this process to be continued and extended, as is shown by the recent treaty between Great Britain and Denmark concerning the ocean around Iceland and the Faröes, and the action of the British Government respecting the six-mile limit on the coasts of Spain and Portugal. It is possible, and indeed likely, that the Spanish and Portuguese Governments have protested against the infringement of what they regard as their just rights; but if they are unable or unwilling to maintain them, and the three-mile limit comes to be the only one observed on their coasts, the usage will settle the matter in the course of time. Up to the present, however, Norway and Sweden have very justly resisted all attempts to impose on them the ordinary limit and bring them into line with other Powers, and they have successfully caused their wider bounds to be respected. The diversity in practice between the Iberian and Scandinavian states and the other states of Europe may be traced to the modes by which the limits were evolved. In the former case, the boundaries were fixed in the middle of the eighteenth century, without special reference to the range of the guns of the time. The three-mile zone, on the other hand, was developed early in last century from the doctrine of Bynkershoek, three miles being then looked upon as approximately the range of cannon.

The general adoption of this limit, as previously said, was due in great measure to the preponderating influence of Great Britain and America in maritime affairs, the lesser states following their example, willingly or with reluctance. It is not too much to say, indeed, that the three-mile boundary in its origin and development is an Anglo-American doctrine, its authors being Washington and Lord Stowell. It is thus of interest to consider the opinions of modern writers on international law on the question, and to see how far they agree with or differ from their predecessors, whose opinions have been previously passed under review. It will be found that, considering the extent to which the three-mile limit has been actually applied in practice, the writers who accept it as the established rule in international law are singularly few, and are for the most part English or American. It will be also noticed how extremely loose some writers, even of high authority, are in their use of the terms “three miles or the range of guns,” as if they were now synonymous, which they are not. Such looseness of phrase is not absent from some judicial decisions on the question, as in that of Lord Cockburn in the case of Regina v. Keyn, previously referred to ([p. 591]).