Another statement that one not uncommonly finds in the text-books, and to which currency was given by Lord Stowell, is that since the invention of firearms the distance at which the power of the state, and therefore the territorial waters, terminated, has usually been recognised as about three miles from the shore. Calvo, a writer of much authority, also makes this statement, affirming at the same time the doctrine of Bynkershoek as the principle of delimitation.[1250] In view of the range of modern artillery, he, however, considers this space too small, and is of opinion that it ought justly, on grounds of logic and reason, to be extended; but until this extension has been sanctioned by a majority of states he looks upon the three-mile limit as the established rule of international law. Much the same view is expressed by Bluntschli.[1251] He defines the territorial sea according to the range of guns, and says that international treaties or the laws of states may fix more precise limits, such as one marine league from the coast at low-water; but, considering the increased range of artillery, he is disposed to think the three-mile limit insufficient. Phillimore, one of the greatest English authorities, agrees with Calvo.[1252] He states that the rule of law may now be considered as fairly established that absolute property and jurisdiction in the adjacent open sea “does not extend, unless by the specific provisions of a treaty, or an unquestioned usage, beyond a marine league (being three miles) or the distance of a cannon-shot from the shore at low tide.” The limit, he says, was fixed at a marine league because that was supposed to be the utmost distance to which a cannon-shot from the shore could reach; and he adds that the great improvements recently effected in artillery seem to make it desirable that this distance should be increased, but he holds that this can be done only by the general consent of nations, or by specific treaty with particular states. Phillimore, like most of the other writers, was apparently ignorant of the fact that the Scandinavian and the Iberian Powers claimed a limit much farther than three miles.
Halleck follows Wheaton in saying that the general usage of nations superadds to bays, &c., an exclusive territorial jurisdiction over the sea for the distance of one marine league, or the range of a cannon-shot, along all the shores or coasts of the state, and that the maxim of law on the subject is terræ dominium finitur ubi finitur armorum vis, “which is generally recognised to be about three miles from the shore.”[1253] On the other hand, Lawrence, in his edition of Wheaton ([p. 321]), says very definitely that all the space through which projectiles thrown from the shore pass, being protected and defended by these warlike instruments, is territorial and subject to the dominion of the Power that controls the shore: “The greatest reach of a ball fired from a cannon on the land is, then, really the limit of the territorial sea.” Bishop, also accepting Bynkershoek’s principle, says that a cannon-shot is estimated for the purpose of delimiting the territorial seas at a marine league, but, like so many others, he argues from the improvement of artillery that, “in reason, the distance would now seem to require extension.”[1254] Woolsey, likewise adopting the three-mile limit “or” cannon range, is of opinion that, “as the range of cannon is increasing, and their aim becoming more perfect, it might be thought that the sea-line of territory ought to be wider,” though this author does not think the point likely to become of great importance.[1255] Dana expresses the usual vague opinion of the English and American writers in regarding it as “settled that the limit of the territorial waters is, in the absence of treaty, the marine league, or the cannon-shot.”[1256] Sir Travers Twiss also speaks of the range of guns, which, he says, with the common lack of information respecting some other countries, “by consent is now taken to be a maritime league seawards along the coasts of a nation.”[1257]
Rather different opinions are expressed by Fiore, an Italian writer of eminence. While pointing out that publicists are not agreed as to the extent of the territorial sea, he thinks it should be determined by the necessity of the case and the nature of the particular rights claimed, as fishing, dues connected with navigation, and defence: for the latter purpose he is of opinion that the zone should increase with the improvement of artillery. With regard to the rights to certain fisheries, he says that the fishing for coral,—an important industry in Italy,—for example, belongs to the people of the neighbouring coast where it is found.[1258] Pradier-Fodéré holds strongly to the doctrine of cannon range. The extent of the territorial sea, he says, depends upon the power of artillery from shore; the farthest distance a shot can be thrown, according to the progress of military art, is the limit of the territorial sea, and he adds that this is the principle almost universally adopted, although, “since the invention of firearms,” this distance has usually been considered as three miles.[1259] Perels, a German writer of eminence, accepts the doctrine of Bynkershoek that the sovereign jurisdiction of a state extends in the sea to the distance of a cannon-shot from the coast, and he says the extension of the boundary-line depends upon the range of cannon-shot at the particular period, but is the same at any period for all coasts. British and American publicists, he adds, have generally adopted three miles as an equivalent, but this has not usually been done by Continental authorities.[1260] Another writer, Ferguson, gives a novel explanation of the reason why three miles is generally adopted in practice. He says the distance referred to is presumed to be the range of the coast defences, but on the maxim that terræ dominium finitur ubi finitur armorum vis, it should be stated to extend to any point on the sea to which the cannon of actual coast defences on shore can carry a projectile. Since, however, the carrying power of any given cannon is such a vague measure, the three-mile radius is generally adopted.[1261]
In the opinion of Desjardins, the expression territorial sea must be taken in the precise sense given to it by international law. Maritime territory, he says, is only made effectively inviolable at the real range of cannon from the coast, and the laws of police or customs usually applied in time of peace cannot prevail against a principle founded on the nature of things. In his opinion a prize taken beyond three miles from the coast, but within the range of guns, would be illegitimate, while it would be legitimate within the particular limits fixed by a neutral state if beyond the range of guns.[1262] Latour, another recent French writer, also argues that the three-mile limit is not necessarily the true one, but that it depends on the actual range of guns from the shore.[1263] On the other hand, Professor Kleen, in his work on the laws of neutrality, considers the Scandinavian method of delimiting the territorial sea the proper one, since the extent depends not only on the mainland but on the “adjacent isles.” Admitting that the distance from the coast at which the external limit is fixed is, according to the positive international law of to-day determined by the range of cannon, he thinks this measure is so susceptible of change and controversy that it is desirable to replace it by a fixed one, which ought not to be less than four marine miles. The range of guns is much greater than four miles; and there are some coasts where the geographical configuration requires that a larger area should be subject to the territorial state, in order to avoid collision with foreigners as well as encroachments on the natural rights of the inhabitants. He is of opinion that Bynkershoek’s doctrine was wrong in certain respects: it reposed on a basis of brute force; the range of guns differs in different countries and at different times; and the range of the most powerful modern gun is too much to allow a state the exclusive possession of the sea up to that distance from the shore. The range of guns, he says, is admissible in respect of war and neutrality, but in all other respects the distance ought to be fixed and mathematically determined independent of military force, and should be the same everywhere.[1264]
Another Scandinavian publicist, Professor Aschehoug, also argues for a wide extent of territorial sea under international law, according to the principles previously described. He thinks that it is impossible to exclude from the territorial sea of a people that space which is commanded by their guns on shore; and vice versa, this space is necessary to preserve the shores from the projectiles of belligerents. The state has all the rights of sovereignty in this area, as those connected with neutrality, police, inspection, jurisdiction, and the exclusive right of fishery and other usufructs, except the right of forbidding navigation.[1265]
The eminent Russian authority, Professor de Martens, expresses a strong opinion that the three-mile limit is now quite inadequate, and that a state has the power to extend it. The only true boundary of the territorial sea is, he says, the range of guns from the coast, Bynkershoek’s aphorism—terræ dominium finitur ubi finitur armorum vis—forming the only legal and rational foundation for the delimitation. Within the zone so determined the bordering state has exclusive sovereignty and dominion, and the exclusive right of fishing. The limit of the territorial waters ought therefore to change with the modifications in the range of cannon. If at one time the reach of guns was three miles, then the extent of the territorial sea at that time was only three miles. If at the present day, he says, cannon carry to twelve, or even fifteen, miles, the territorial waters extend to the same distance. De Martens, however, thinks that an international agreement with regard to such limits is necessary to ensure the success of the measures of protection established in the open sea for the preservation of the legitimate interests of each nation, especially with regard to fisheries. But he holds that until such an international arrangement has been accomplished, each state has the incontestable right to declare as its territorial sea the waters which are dominated by batteries on its coasts. In view of the necessity of precisely defining the range of cannon, and the exigencies of international commerce, the bordering state, he says, may limit this distance to a number of miles fixed by law; and he himself advocates a limit of ten miles, instead of three miles, as being more in conformity with the actual range of guns, and better fitted to protect the interests of the coast population who subsist by sea fisheries.[1266]
The latest English writer of authority on international law, Mr W. E. Hall, who has given a lucid and philosophical account of the territorial sea, is also of opinion that the three-mile limit is inadequate. The boundary, he says, is generally fixed at three miles, but this distance was defined by the supposed range of guns of position, and the effect of the recent increase in the power of artillery has not yet been taken into consideration, either as supplying a new measure of the space over which control may be efficiently exercised, or as enlarging that within which acts of violence may be dangerous to persons and property on shore. “It may be doubted,” he continues, “in view of the very diverse opinions which have been held until lately as to the extent to which marginal seas may be appropriated, of the lateness of the time at which much more extensive claims have been fully abandoned, and of the absence of cases in which the breadth of the territorial waters has come into international questions, whether the three-mile limit has ever been unequivocally settled; but in any case, as it has been determined, if determined at all, upon an assumption which has ceased to hold good, it would be pedantry to adhere to the rule in its present form; and perhaps it may be said without impropriety that a state has the right to extend its territorial waters from time to time at its will with the increased range of guns; though it would undoubtedly be more satisfactory that an arrangement upon the subject should be come to by common agreement.” In a later edition of his work, which appeared after the results of the international conferences of publicists, to be presently referred to, were known, he says that it is felt and growingly felt, not only that the width of three miles is insufficient for the safety of the territory, but that it is desirable for a state to have control over a larger space of water for the purpose of regulating and preserving the fishery in it, the productiveness of sea fisheries being seriously threatened by the destructive methods of fishing which are commonly employed, and in many places by the greatly increased number of fishing vessels frequenting the grounds.[1267] A still later writer, Oppenheim, has apparently much the same opinion, for he says that although many states in municipal laws and international treaties still adhere to a breadth of one marine league, the time will come when by common agreement of the states concerned such breadth will be very much extended.[1268]
While there is thus some diversity of opinion among modern writers on the law of nations, both as to the actual extent of territorial sea belonging to a state and in respect to the principles which should govern its delimitation in certain cases, there is all but universal acceptance of the rule that in general the limit is determined by the range of guns. Practically all authorities are agreed that this is the historical basis of the demarcation, and the majority of publicists, as Schmalz, Klüber, Reddie, Ortolan, Hautefeuille, Pistoye and Duverdy, Massé, Bluntschli, Pradier-Fodéré, Lawrence, Perels, Desjardins, De Martens, and Aschehoug, adhere to it as the only true principle. This adherence to Bynkershoek’s doctrine logically implies that the range of artillery at any particular period governs the extent of the territorial sea at that period, and several authorities, as Ortolan, Lawrence, Perels, Desjardins, and De Martens, accept this view in its bare and absolute form, while others, though willing to agree to it as proper and reasonable, think that a mutual arrangement on the subject is first of all desirable or necessary, or that it applies specially to questions of neutrality. There are very few writers, on the other hand, who are of opinion that the three-mile limit has become established in international jurisprudence as the legal limit, notwithstanding that it is the limit commonly adopted. Calvo and Phillimore are the most important authorities who take this view, but both think the extent is too small and ought logically to be increased owing to the greater range of artillery,—an opinion which is shared by Bishop, Woolsey, Fiore, and Hall. Nearly all those who mention three miles as the boundary of the territorial seas—and they are almost wholly English or American—couple with it the alternative, “or the range of cannon,” as Wheaton, Manning, Halleck, Phillimore, Bishop, Dana, Twiss, Ferguson, and Woolsey. In this they merely adopt the language used by Lord Stowell at the beginning of last century, and which was quite appropriate at the time. But for more than half a century the range of guns has exceeded three miles, and to use the terms now as if they were synonymous tends only to confusion. Some modern publicists, it may be added, as Kent, Heffter, and Fiore, follow Wolff and Vattel in the opinion that the limit of territorial waters may be extended in certain cases beyond the range of guns.
Moreover, quite lately the subject of the territorial sea has been jointly and exhaustively inquired into by the leading publicists of Europe, and with important results. In 1887 the International Law Association appointed a committee to consider the definition and régime of the territorial waters, and two years afterwards the Institut de Droit International followed the same course.[1269] A long series of questions was circulated among the members to elicit their opinions on the various points connected with the subject; the whole matter was discussed and considered at various subsequent annual meetings; and the rules as finally adopted and approved by the Institute and the Association may therefore be fairly taken as representing the latest views of European publicists.
With regard to the question of the limits of the territorial sea. it was very generally held that a distinction should be drawn between various sovereign rights, as the right of fishery and the rights of neutrals during war. The two limits commonly recognised—namely, cannon range and three miles from low-water mark—were no longer identical. Three miles was now too small a distance for safeguarding the coasts of a neutral from the projectiles of belligerents, and the range of modern artillery fluctuated, and was besides considered to be too great a distance for the exercise of exclusive rights of sovereignty. Sir Thomas Barclay’s proposal was therefore to reaffirm the limit of cannon range as the public law of Europe, but to confine its application to the right of the neutral as founded in reason, and to establish another and a lesser boundary for the exercise of the exclusive sovereign rights of the neighbouring state. The former limit was a “zone of respect”; the latter bounded the true territorial sea. There was general agreement that the neutral line or zone of respect should coincide with the actual range of guns; but some were of opinion that the range should be considered not from the coast, on the principle of Bynkershoek, but from the sea, and others that the neutral zone should be measured from the boundary of the true territorial sea, in order to prevent violation of the latter by the bullets of belligerents. Since the range of guns, however, is uncertain and variable, and the line of respect must necessarily vary with it, it was decided finally not to adopt a fixed distance, but to recommend that in case of war the neutral state, taking the range of guns as the basis, should itself fix and declare the extent of its neutral waters beyond the limit of the territorial sea.