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

In England, where the administration of the local fisheries around the coast is in the hands of various Sea Fisheries District Committees, numerous byelaws have been made and are in force, with the sanction of the Board of Agriculture and Fisheries, prohibiting or regulating trawling of one kind or another in the waters under the control of the Committees. None of the byelaws appear to apply to parts of the sea beyond the ordinary three-mile zone, though it is open to question whether the wording of the Act, by which the Committees were created, does not give power in that direction.[1305]

The Irish Fishery Department have made a very large number of byelaws, at various times and under various Acts, for the regulation or prohibition of trawling. Of these some forty-four are at present in force, twenty-two applying to all trawling and twenty-two to steam trawling alone, and one or two of them date from the years 1842 and 1851.[1306] Under these byelaws trawling in one form or another is prohibited entirely or under certain conditions at most parts of the coast of Ireland; and on certain parts of the coast not inconsiderable stretches of the sea, beyond the three-mile limit and the limit for bays as defined in the fishery conventions, are closed against this method of fishing. The lines around the coast within which trawling is prohibited, in many instances pass between headlands which may be as much as twenty-six, and even forty-three, miles apart; not infrequently they are drawn, not between headlands, but from one light-ship to another, and these light-ships may be four or five miles from land and twenty miles apart. Sometimes the closing line is placed three miles to the seawards of such base-lines; and they may pass from about two to seven or eight miles outside the limit as defined in the conventions, and in some instances up to ten or eleven miles from low-water mark on the shore.

It is obvious that the principle upon which these lines have been drawn has been one of convenience. They differ entirely from the lines of closure in the two Scottish Firths referred to below, which are inter fauces terræ with the lines passing from headland to headland. But all the lines on the Irish coast are well within the range of guns from the shore, and are thus, according to the Law of Nations, within the territorial sea. The aggregate area beyond the ordinary limits of the conventions amounts to a little over 400 square (geographical) miles.

It does not appear that foreign trawlers have been found contravening the Irish byelaws to any great extent. Between June 1904 and September 1905 seven steam-trawlers and one sailing-trawler were captured fishing within the limits, one of the former being registered in a foreign country, and, with regard to it, the official report says “it was found impossible to enforce the order made by the magistrates against the owner and skipper.” It is added that “it is thought, however, that means have been found within the existing law of compelling foreign trawlers to observe the byelaws affecting Irish territorial waters.”[1307]

It is, however, with reference to the legislation for Scotland, under which certain areas are closed against trawling, that the main controversies have been raised. Several statutes gave power to the Fishery Board for Scotland to regulate trawling. The first was an Act of 1881,[1308] which empowered the Board of Trade to restrict or prohibit this method of fishing “in any area being part of the sea adjoining the United Kingdom, and within the territorial waters of Her Majesty’s dominions, within the meaning of the Territorial Waters Jurisdiction Act, 1878” ([see p. 591]); which power was transferred to the Scottish Board by subsequent Acts.[1309] Then the Sea Fisheries (Scotland) Amendment Act, of 1885,[1310] empowered the Board to make byelaws for restricting or prohibiting, either entirely or subject to such regulations as might be provided, any method of fishing “in any part of the sea adjoining Scotland, and within the exclusive fishery limits of the British Islands,” when they were satisfied that such mode of fishing was injurious to any kind of sea fishing within that part, or in order to make experiments and observations to ascertain this, or for fish-culture: and such byelaw was not to be valid until it had been confirmed by the Secretary for Scotland. Several byelaws under this Act were made, prohibiting trawling within certain areas on the coast of Scotland within the ordinary limits.[1311] It may well be questioned, in view of the definition of the “territorial waters of Her Majesty’s dominions” in the Territorial Waters Jurisdiction Act, and of the “exclusive fishery limits of the British Islands” in the Sea Fisheries Act, 1883,[1312] whether these powers were restricted to the three-mile limit and to bays whose width was not greater than ten miles; but it is noteworthy that a byelaw with reference to the Firth of Clyde was not confirmed by the Secretary for Scotland, presumably because it was considered at the time to be ultra vires.[1313]

In 1889, however, an Act was passed which directly prohibited trawling “within three miles of low-water mark of any part of the coast of Scotland” (except the Solway and Pentland Firths), and within the waters specified in a schedule annexed, except in such parts as might from time to time be permitted by byelaws of the Fishery Board; and the Board was further empowered to forbid trawling within any area or areas in the Moray Firth between Duncansby Head and Rattray Point, which may be regarded as its headlands.[1314] The waters specified in the schedule included the areas closed under the then existing byelaws, as well as a number of bays, lochs, and areas, the most important of which was “the waters inside a line drawn from Corsewall Point, in the County of Wigton, to the Mull of Cantyre, in the County of Argyll”—that is to say, the Firth of Clyde. In this Act, it will be noted, nothing is said about bays, save in this schedule, and an examination of the charts shows that the waters specified in the schedule, twenty-five in number, would all, with a single exception, be included in the limits of exclusive fishing as defined in the North Sea Convention. Presumably the bays on the coast of Scotland which are not mentioned in the schedule do not come under the provisions of this Act beyond the distance of three miles from low-water mark on their shores. The exception referred to is the Firth of Clyde ([fig. 29]), where the line of closure is about twenty-eight miles in length, within which trawling was directly prohibited by the Act. The area of water outside the ordinary limits of the conventions which is thus embraced amounts to about 380 square (geographical) miles.

Fig. 29.—The Firth of Clyde, showing the line of closure and the ordinary three-mile limit.

Under the section referring to the Moray Firth, a byelaw was passed in 1890 giving effect to its provisions within a straight line drawn from the Ord of Caithness to Craighead near Buckie, the extent of water enclosed, beyond the ordinary limits, being about 310 square miles. This was replaced by another byelaw in 1892, in which the line of closure to trawling was from Duncansby Head to Rattray Head, a distance of about 73 geographical miles, the area of sea enclosed between it and the ordinary limits amounting to approximately 1480 square (geographical) miles ([fig. 30]). It is this byelaw that has of late given rise to discussion in relation to the operations of foreign trawlers within the Moray Firth, as is explained below.

In 1895 another Bill was introduced into the House of Lords by the Lord Privy Seal (Lord Tweedmouth), with the object, among other things, of extending a similar jurisdiction over the waters washing the east coast of Scotland. The line at first chosen in this case was a very long one, running along the open coast from Rattray Head to the Farne Islands, a distance of about 120 miles, and passing a little over thirty miles east of Fife Ness.[1315] It was proposed later to give power to prohibit trawling in any area or areas within eighteen miles of the coast.[1316] In the Act as passed the distance was reduced to thirteen miles from the coast in areas under the jurisdiction of the Crown, and no area was to be so regarded unless the powers conferred had been accepted as binding upon their own subjects with respect to such area by all the states who were parties to the North Sea Convention.[1317] This section of the Act has remained inoperative, and no byelaws have been made under it; and there appears to be no evidence as to whether the views of other Powers have been obtained.