There was not the same agreement as to the limit which should be recommended as the boundary of the territorial sea, within which the rights of the state are much more complex, and of which the extent should be precisely fixed. The historical principle of demarcation—the range of cannon—having been transferred to the line of respect, the only other limit in common use was the three-mile limit, and this was the distance at first proposed by Sir Thomas Barclay in the draft rules, mainly because it was the one which was usually recognised by international usage. But the preponderating opinion of Continental publicists favoured a more extended boundary, in view more particularly of the right of fishery, the distances proposed varying from five to ten miles from low-water mark;[1270] and Professor Auber, of Christiania, advocated the extension of jurisdiction with respect to fisheries beyond the limit fixed for the territorial sea, to apply equally to subjects and foreigners, each state assigning boundaries for such jurisdiction, either itself or by convention between the Powers interested, and a similar proposal was made by the Canadian representative, who suggested that the jurisdictional zone should extend to nine miles. Owing to these opinions, and also to the report of the Sea Fisheries Committee of the House of Commons in 1893, presided over by Mr Marjoribanks (the late Lord Tweedmouth), which proposed an extension of the territorial waters in the interests of the fisheries,[1271] the three-mile limit was abandoned, and one of six miles from low-water mark recommended instead. This particular distance was selected in order to secure a limit which would correspond to that of Spain and the Scandinavian Powers, and thus make the practice in all European countries more uniform.
With regard to bays, the draft proposal was at first to adopt a base-line of six miles from headland to headland, and afterwards one of ten miles, as in the fishery conventions, was proposed. The Institut finally adopted a base-line of twelve miles—i.e., double the width of the territorial zone,—but the International Law Association preferred the old limit of ten miles. The Scandinavian publicists were of opinion that these limits were too small, and that instead of having a fixed and rigid rule for the delimitation of bays, each state should be permitted to fix the boundaries according to the local configuration of the coast and the local requirements. While this suggestion was not accepted, it was admitted that certain bays whose width exceeded ten miles were necessarily, by their situation, placed under the sovereignty of the neighbouring state, as the Bay of Cancale, the Bay of Chaleur, and the Scottish Firths.[1272]
The various rules concerning sovereignty and jurisdiction were applied to straits whose width does not exceed twelve miles, with the following modifications: (1) straits of which the coasts belong to different states form part of the territorial sea of the bordering states, which exercise their sovereignty there up to the middle line; (2) straits whose coasts belong to the same state, and which are indispensable for maritime communication between two or several states other than the bordering state, always form part of the territorial sea of the bordering state, and they cannot be closed; (3) in straits whose coasts belong to the same state, the sea is territorial even though the distance between the coasts is greater than twelve miles, if at each entrance of the strait this distance is not exceeded; (4) straits which serve as a passage from one free sea to another free sea can never be closed. The rules were adopted by the Institut in 1894, and by the International Law Association, with slight amendments, in the following year, when Sir Richard Webster (now Lord Alverstone, the Lord Chief Justice of England) was in the chair.[1273] The rules as finally adopted in London are given in [Appendix O].
CHAPTER V.
THE INADEQUACY OF THE THREE-MILE LIMIT FOR FISHERY REGULATIONS.
The recommendation of the International Law Association and of the French Institute that the territorial waters should be extended to six miles from the shore, or double the width usually enforced, was avowedly made, as we have seen, chiefly in the interests of the sea fisheries; and it may be presumed from the opinions of the majority of accredited writers on the law of nations, as reviewed in these pages, that it is open to any Power so to extend its territorial sea, except in so far as such extension may be opposed to the provisions of treaties with any other Power or Powers. It is undoubtedly the case that in by far the greater number of instances in which the limits of territorial waters, or the rights of the bordering state in the adjacent sea, have been disputed, or have come under discussion, between one nation and another, it was the right of fishery that was at issue. From the reign of James I. this has been the case, and it has been exhibited on all coasts, and in almost all countries. How replete our history is with such disputes may be gathered from foregoing chapters, while nearly all recent international treaties in which limits in the neighbouring sea are dealt with have been concerned with fishery questions. The numerous treaties and agreements with the United States and France respecting the vexed rights of fishing on the coasts of British North America, the North Sea conventions in Europe, and the various other agreements between European Powers, as between Spain and Portugal, Austria and Italy, Denmark and Sweden, Denmark and Germany, Great Britain and France, Belgium and Germany, and with Denmark concerning Iceland, are instances in point. The fishery interest is thus the determining interest, and the one which has made these various conventions desirable.
There appears to be little doubt that, in many cases at least, the three-mile boundary which has been commonly fixed in the fishery conventions is inadequate from the point of view of the fisheries, and this is the opinion of most of the experts and authorities, as is explained below. It must not be forgotten that the three-mile limit was selected, not on any grounds special to fisheries, but because it had been already recognised and put into force in connection with the rights of neutrals and belligerents in time of war, as representing the approximate range of guns at the time. It is in reality a product of the maritime wars in the latter part of the eighteenth and the beginning of the nineteenth century, and its application to the right of fishing is accidental and arbitrary. The boundaries which were formerly proposed as limiting the right to exclusive fishery, independently of any question of the rights of neutrals or the range of cannon, were invariably greater than three miles. The range of vision was employed in Scotland and on the English coast later; its equivalent of fourteen miles was embodied in the Draft Treaty of Union between England and Scotland in 1604, and was proposed again in 1618; and Sir Philip Meadows, the most able opponent of extravagant claims to maritime sovereignty, favoured a similar distance in 1689. Limits of eight miles and ten miles to be enforced against foreigners were fixed in the Fishery Bill passed by the House of Commons in 1660, while as late as 1824 and 1827 the Dutch Government decreed a limit of six miles for their fishermen on the British coasts. We have seen, too, that the wider extent of sea in which rights of exclusive fishery are claimed by the Scandinavian and Iberian states exists in great measure because those Powers established their limit without reference to Bynkershoek’s doctrine, and before indeed it became prevalent.
The same need of a wider limit is shown in the municipal legislation of many countries, which was specially designed with the object of preserving sea fisheries, as well as in certain international agreements. There are two classes of sea fisheries which have received special treatment beyond the ordinary limits of territorial waters, and both on the same principle—viz., that the action of man, if unrestrained, would lead to their destruction and economic extinction. They are those for marine mammals, as seals and cetaceans, and for certain shell-fishes and coral. A considerable number of countries have legislated for the preservation of seals, and some of the enactments at least apply beyond the ordinary limits. Examples may be found in the Canadian statute of 1886,[1274] which refers also to whales and porpoises; the Russian law dealing with the sealing industry in the White Sea; the Norwegian law fixing a close-time for whales in the Varangerfjord; and the concurrent international legislation of Great Britain, Sweden, Norway, Russia, Germany, and Holland concerning the Jan Mayen seal fishery in the Atlantic east of Greenland.[1275] A recent instance is afforded by the regulations which were prescribed for British and American citizens and subjects by the Tribunal of Arbitration for the purpose of protecting and preserving the fur-seal in Behring Sea. By these regulations the killing, capture, or pursuit of this animal was forbidden within a zone of sixty geographical miles around the Pribilov Islands, comprising about 15,000 square miles of sea; a close-time was fixed between 1st May and 31st July on the high sea within an immense area—viz., north of 35 degrees North latitude and eastwards of 180 degrees West longitude; only specially licensed sailing vessels, with canoes or undecked boats propelled by paddles, oars, or sails, were at liberty to carry on fur-sealing operations where and when the fishing was allowed; the use of nets, firearms, and explosives was forbidden, except shot-guns outside of Behring Sea, and some minor conditions were laid down.[1276]
Another instance is the agreements entered into between Russia on the one hand and Great Britain and the United States on the other, by which a zone of ten marine miles on all the Russian coasts of Behring Sea and the North Pacific Ocean, and a zone of thirty marine miles round the Commander Islands and Robben Island, were closed to sealing for the fur-seal.[1277]
The other class of fisheries referred to, for sedentary animals connected with the bottom, such as oysters, pearl-oysters, and coral, which are found in shallow water, as a rule, and usually near the coast, have always been considered as on a different footing from fisheries for floating fish. They may be very valuable, are generally restricted in extent, and are admittedly capable of being exhausted or destroyed; and they are looked upon rather as belonging to the soil or bed of the sea than to the sea itself. This is recognised in municipal law, and international law also recognises in certain cases a claim to such fisheries when they extend along the soil under the sea beyond the ordinary territorial limit. Cases in point are the pearl-fisheries on the banks in the Gulf of Manar, Ceylon, which extend from six to twenty-one miles from the coast, and are subject to a colonial Act of 1811, which authorises the seizure and condemnation of any boat found within the limits of the pearl-banks, or hovering near them: boats or vessels navigating the inner passage are prohibited from hovering or anchoring in water deeper than four fathoms, and those navigating the outer passage from hovering or anchoring within twelve fathoms. These pearl-fisheries are very valuable, and have been treated from time immemorial by the successive rulers of the island as subjects of property and jurisdiction; and the laws referred to apply also to foreigners. Another case is the pearl-fisheries in Australia. In Western Australia certain Acts are applied far beyond the three-mile limit, though apparently only against British subjects,[1278] and a similar Act, of 1888, applied in Queensland to extra-territorial waters west of Torres Strait. The pearl-fisheries of Mexico and Columbia are also subject to regulation beyond the ordinary three-mile limit. Examples of extra-territorial jurisdiction over beds of the common edible oyster are to be found in the British conventions with France in 1839 and 1867, by which the Bay of Granville was reserved to France ([see p. 612]), and in the last of these conventions (Article ix.) a close-time was provided in the English Channel; and likewise in the proceedings concerning the Arklow and Wexford banks, off the Irish coast ([see p. 621]). Coral-beds in the Mediterranean, off the coasts of Algeria, Sardinia, and Sicily, are in a similar way regulated by Italian and French laws beyond the ordinary three-mile limit.