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 the Moray Firth, closed to trawling by the byelaw above referred to, foreign trawlers began to make their appearance first of all in 1895, when a Danish vessel came. Two years later it returned, and a German trawler also, which was prevented from landing its fish at Aberdeen,—an act of the Crown, which was tested by a case in the Court of Session and upheld by it. In 1898 foreign trawlers appeared in the Firth in considerable numbers, and, it was reported, carried on their operations in such a reckless manner as to involve a great deal of damage to the gear of the net and line fishermen.[1318] These vessels appear to have been mainly Danish, but there were a few Belgian, Dutch, and German, and they came for the most part intermittently and for brief periods, some of them appearing only once or twice in a year. Soon, however, the Firth was invaded by a fleet of trawlers flying the Norwegian flag, although it was known that Norway possessed no steam trawlers,[1319] and these vessels fished regularly in the Moray Firth, carrying their fish to Grimsby, where they were landed and sold. It was soon discovered, and admitted, that these trawlers were in reality English, so far as capital, management, and crew were concerned, but they were registered in Norway in order to evade the British statute, and they soon obtained a practical monopoly of trawling in the Moray Firth. In 1901 there were fourteen or fifteen of them, but by 1905 they had increased to twenty-nine or thirty; while the visits of trawlers of other nationalities had diminished to nine in 1903, to six in 1904, and to two in each of the three following years. In 1903 and 1904 thirteen convictions were recorded against foreign trawlers, eight in connection with the Moray Firth and five in connection with the Clyde; in 1905 the number rose to fifteen for the Moray Firth and six for the Clyde. In all these cases the charge was for trawling within the ordinary three-mile limit. In 1905 a case was brought against Martin Olsen, the Norwegian “flag-master” of one of the trawlers registered in Norway, the Catalonia, for trawling within the Dornoch Firth in contravention of the Act of 1889, and byelaw No. 2, made under the Act of 1885. The place where the offence was committed was beyond the distance of three miles from the shore, but it was within three miles of the ten-mile base-line across the Dornoch Firth, and therefore within the exclusive fishery limit as defined in the conventions, and within one of the areas scheduled in the Act of 1889. The Sheriff-Substitute at Dornoch sustained Olsen’s plea of no jurisdiction, on the ground that the Catalonia was registered in Norway, and Norway was not one of the Powers signatory to the North Sea Convention. On appeal to the High Court of Justiciary the decision was reversed, the judges holding that the prohibition in the Act of 1889, being quite general in terms, was applicable to foreigners as well as to British subjects, and that it was not for them to draw a distinction which had not been made by Parliament.[1320]

Fig. 30.—The Moray Firth, showing the line of closure.

This decision was the means of raising the question whether the byelaw did not apply to foreigners equally with British subjects in the whole extent of the Firth, and a series of cases were brought before the Sheriff to test the point. Three prosecutions were instituted, one against Emmanuel Mortensen, a Dane, master of the Niobe, of Sandefjord, Norway, for trawling at a point about five miles off Lossiemouth; another against Thomas Robinson, a British subject, master of the Verbena of Stavanger, Norway, for trawling at a point five miles S.S.E. of Garty Point, Sutherlandshire; and the third against Arthur Lambert, a British subject, fishing-master of the Pinewold, registered at Sandefjord, Norway, for trawling at a distance of seven miles from Tarbetness. Convictions were obtained in all cases in the Sheriff Court of Dornoch, mainly on the same ground as in the above case, that the statute was general and applied to all persons, but Sheriff (now Lord) Guthrie also held that the Moray Firth was within the territorial waters of Scotland.[1321]

The case in regard to Mortensen was appealed and was heard by the full bench of twelve judges of the High Court of Justiciary, who unanimously upheld the conviction and dismissed the appeal. The leading opinion was delivered by the Lord Justice-General (Lord Dunedin), who treated the question as one of construction, and of construction only, since the court had nothing to do with whether an Act of the Legislature was ultra vires or in contravention of international law; they had only to give effect to it. The terms of the Act, applying to “every person” committing the offence within an area which was precisely defined, made the inference strong that it was meant to apply to all persons whatsoever; and this inference was further strengthened by the consideration that the clear object of the Act was to stop trawling, and that object would be defeated or rendered less effective if the prohibition applied only to British subjects, while leaving those of other nations free. With regard to the territorial or non-territorial character of the place where the Niobe had been trawling, Lord Dunedin said that while it might be assumed that within the three-mile limit the territorial sovereignty would be sufficient to cover such legislation, that was not a proof of the counter proposition, that outside the three miles no such result could be looked for. There were at least three points which went far to show that the locus was intra fauces terræ: (1) the dicta of the Scottish Institutional Writers, as Stair and Bell;[1322] (2) the fact that the same statute puts forward claims to analogous places, as, e.g., the Firth of Clyde; (3) there were many instances in decided cases where the right of a nation to legislate for waters more or less landlocked, though beyond the three-mile limit, had been admitted. “It seems to me, therefore,” continued Lord Dunedin, “without laying down the proposition that the Moray Firth is for every purpose within the territorial sovereignty, it can at least be clearly said that the appellant cannot make out his proposition that it is inconceivable that the British Legislature should attempt for fishery regulation to legislate against all and sundry in such a place. And if that is so, then I revert to the considerations already stated, which, as a matter of construction, make me think that it did so legislate.” He did not think any argument could be drawn from the definition of “exclusive fishery limit” in the North Sea Convention, inasmuch as the Convention, as a whole, did not deal with what was here in question—viz., mode of fishing; and the Act treated subjects and foreigners alike in the matter.

Lord Kyllachy also held that, on the point of construction, the intention of the Act was that in no part of the area should trawling be practised by anybody; the terms were definite and applied to a quite definite area; it would be easier to suppose that the Legislature had reached even an erroneous conclusion as to the extent of its jurisdiction, than that it had resolved deliberately to impose a futile restriction upon its own countrymen and at the same time to create a hurtful monopoly in favour of foreigners. With regard to the territorial or non-territorial character of the Moray Firth, it seemed vain to suggest that according to international law there was any part of it which was simply an area of the open sea, and thus in the same position as if it were situated, say, in the middle of the German Ocean. The whole Firth was prima facie a “bay,” with two well-marked headlands, and stretching inwards for many miles into the heart of the country. All that could be said against this was that at its outer end the Firth was very wide, and of a size, if not also of a configuration, somewhat beyond what is usually characteristic of bays and estuaries; but that might or might not be so, and the cases of the Bristol Channel, the Firth of Clyde, and the Firth of Forth would have to be considered before the proposition could be affirmed. There was no established rule on the subject in international law, and in particular no rule “so arbitrary and artificial as that of the ten-mile limit measure,” for which the appellant contended. Perhaps the most interesting part of Lord Kyllachy’s opinion concerned the bearing of the North Sea Convention on the case. If the question had been one of exclusive fishing privileges, the bearing of the Convention might have been important. “But exclusive fishing privileges—or, at all events, exclusive fishing privileges as defined by convention—are one thing; territorial jurisdiction, proprietary or protective, is a different thing.... There is certainly nothing in the Convention, at least nothing was brought under our notice, which in the least conflicts with the right of the several contracting nations to impose each of them within its territorial limits (whatever these are) restrictions universally applicable against injurious practices or modes of fishing such as are by this statute and byelaw imposed here. In other words, there is nothing in the statute and byelaw in question which at all interferes with the exclusive fishing privileges of the several nations.” He could not consent to the argument that the Convention had introduced a new chapter into international law establishing, with respect to the definition of bays and estuaries, new and artificial rules. The other judges who gave their reasoned opinions expressed similar views, both as to the construction of the Act, the possibility or probability that the Moray Firth was a territorial bay by the law of nations, and as to the distinction between the limits of exclusive fishing as defined in the Convention and the right of the bordering state to regulate the fishery beyond that limit and within its territorial waters, provided the regulations applied equally to all.[1323]

It is to be noted that although the question was strictly one of the construction of the Act, the judges had necessarily, in reaching its true meaning, to consider certain aspects of international law in relation to the territorial sea. From the above summary of their opinions, it is evident that the most eminent Scottish lawyers are in agreement with the modern publicists whose views have been referred to in a previous chapter, both in rejecting the three-mile limit as the farthest boundary of territorial sovereignty and as to the ten-mile rule (to say nothing of the six-mile theory) for bays. It may, however, be questioned as to how far the doctrine of independent territorial regulation of fisheries beyond the limit of exclusive fishing, as defined in the Conventions, will be accepted as applied to the signatories of the Conventions. It is not expressly stated in the Conventions that the waters outside the exclusive fishery limits shall be free and common to all; but that is implied even in the title of the last of them,[1324] and the Convention, in point of fact, lays down such regulations for the conduct of the fishery, outside the exclusive fishery limits, as appeared to the signatories at the time sufficient for the equitable enjoyment of the common right. It would be easy to conceive of general regulations being applied independently at particular places by one state, which would have the effect of abridging the common right of the other states, without affecting the interests of its own subjects—on the principle of the invitations which the fox and the stork issued to one another in the fable. That the intention was to leave the fisheries outside the limits mentioned free, except in so far as the regulations agreed upon affected them, is clear from the proceedings at the conference at The Hague. As regards other states, however, such as Norway, which were not signatories of the Conventions, it is equally clear that, up to the utmost bounds of the territorial waters, regulations may not only be imposed on their subjects, but they may be excluded from the fisheries altogether.

The effect of the decision of the High Court of Justiciary was apparently to keep the foreign trawlers out of the Moray Firth for a short time. But very soon a number of them came back again from Grimsby, with express instructions from the owners to fish in the Moray Firth. On 31st January 1907 six masters, all foreigners, of trawlers registered in Norway, were charged at Elgin Sheriff Court with thirteen separate contraventions of the byelaw, committed between 23rd November and 22nd December 1906, at various distances from about five to twelve miles from the coast; on conviction, penalties of £100 or sixty days’ imprisonment were imposed, and five of the men went to prison. On 4th February other two masters of foreign trawlers were convicted of a corresponding offence at Wick Sheriff Court. At the trial at Elgin, the Norwegian Vice-Consul at Aberdeen read a protest, at the instance of the Foreign Minister of Norway, against the conviction of the masters of three of the Norwegian vessels which he named, provided the trawling with which they were charged had taken place “outside the territorial limits.”[1325]

Representations were also made to the British Foreign Secretary by the Norwegian Minister in London (Dr F. Nansen), and the men were released on 9th February,[1326] the decision of the Scottish High Court being thus in effect set aside. It was subsequently explained that in taking this action Norway was merely making a formal stand for the rights of her flag, since the trawlers had been registered in Norway in a legal way, Norwegian subjects were concerned, and no claim had been put forward on behalf of the British Government to the Moray Firth as being territorial in character. In point of fact, the Norwegian Government was in full sympathy with the policy of keeping the pseudo-Norwegian vessels out of the Moray Firth,[1327] and they immediately, after the formal protest referred to, issued orders warning all owners of Norwegian trawlers fishing in the Moray Firth to cease from doing so, and not to expect the support of their Government in case of proceedings being taken against them in Scotland.[1328] It does not appear that any advantage was taken of this proceeding for further prosecutions of Norwegians contravening the law; but it was decided to proceed against British subjects who might be found on the foreign vessels which were violating it, and who were undoubtedly under the jurisdiction of British courts. On March 20th twelve cases were brought before the Elgin Sheriff Court, the men charged being the “fishing-masters” of the foreign trawlers,[1329] and the only one who appeared was fined fifty pounds for each of three offences, or fifteen days’ imprisonment. A little later, on 17th April, fifteen fishing-masters of foreign trawlers, one of which was Swedish, all British subjects belonging to Grimsby, were charged in the same court for trawling within the Moray Firth outside the ordinary limits, and on conviction small fines were imposed. Similar cases were brought against eleven men in July, who were charged with twenty-eight offences committed between 2nd March and 24th June, and still smaller penalties were imposed.[1330]

Considerable discussion was evoked by the various occurrences above referred to. Resolutions were passed at various meetings of fishermen in Scotland in favour of the byelaw being strictly enforced, and asking that an international arrangement should be come to if necessary to enable that to be done. At meetings of trawl-owners, on the other hand, held at Grimsby and elsewhere, resolutions to the opposite effect were agreed to, and the Government were requested to maintain the “three-mile international territorial limits as now defined.” In the Houses of Parliament also numerous questions were put to Ministers on the subject, and there were several debates of a more or less formal kind. It appears that the Foreign Office had come to the conclusion that the Act of Parliament as interpreted by the High Court of Justiciary was in conflict with international law;[1331] and that view having been taken, it was obvious that it would be necessary, if the statute was to have equal effect on foreigners, that some international arrangement, such as had been previously recommended by the Select Committees of the House of Commons and the House of Lords,[1332] should be reached. It appears that there would have been no difficulty in arranging such an agreement with Norway, which was desirous of entering into negotiations for the purpose; but it was felt by the Foreign Office that, while an arrangement of the kind would not bind other Powers, questions of reciprocity might be raised, and British trawlers might be excluded from similar areas on foreign coasts. They therefore declined to enter upon negotiations with foreign Powers until the whole policy had been carefully considered.[1333] One point of view which was taken was indicated in a speech of the Under-Secretary for Foreign Affairs (Lord Fitzmaurice) in the course of a debate in February 1907, which had been initiated by Lord Balfour of Burleigh. He stated that according to the views hitherto accepted by the chief departments of the Government—the Foreign Office, the Admiralty, the Colonial Office, the Board of Trade, and the Board of Agriculture and Fisheries—and apart from the provisions of special treaties, territorial waters were: “First, the waters which extend from the coast-line of any part of the territory of a State to three miles from the low-water mark of such coast-line; secondly, the waters of bays the entrance to which is not more than six miles in width, and of which the entire land boundary forms part of the territory of a State. By custom, however, and by treaty and in special convention, the six-mile limit has frequently been extended to more than six miles.”[1334] The Lord Chancellor, it may be said, was absent through illness; and the declaration quoted, though it represents what has been the general, but by no means the invariable, attitude of the British Foreign Office in dealing with territorial waters, is not in accordance with the law of nations, as is shown in the foregoing chapters. Nor does it agree with the opinions expressed in a former debate by the late Lord Salisbury, so long the distinguished Foreign Minister of this country, by Lord Halsbury, the former Lord Chancellor, and by Lord Herschell, the then Lord Chancellor ([see p. 592]), in which Lord Salisbury said “great care had been taken not to name three miles as the territorial limit.” Nor is it in agreement with the carefully considered and most explicit reservations made in the Territorial Waters Jurisdiction Act, both in regard to the extent of the territorial waters and the rightful jurisdiction of the Crown beyond three miles from the shore under the law of nations, conferred by Act of Parliament, or by law existing, and the similar reservations in certain other Acts previously referred to. Even more singular is the novel statement as to what constitutes a territorial bay. A six-mile limit of the kind will obviously confer in the great majority of cases no greater extent of sea than the three-mile limit on an open coast, and it is thus opposed to one of the best-recognised principles of international law relating to the subject. The only part of the world where it appears to be in force is in British North America, with reference to subjects of the United States. The history of how it came to be applied at all is told in a previous chapter, in which it is also shown that the British Government as late as 1887 rejected even the ten-mile limit for bays, as involving a surrender of fishing rights, and as being contrary to the law of nations ([p. 629]), and they have made declarations equally emphatic on other occasions.[1335]