No branch of International Law is in a more unsatisfactory condition than that of the rights and duties arising out of the possession and user of the margin of sea, along the coast-line of States, called "Territorial Waters." No general understanding has yet been arrived at on such an essential matter as the width of the margin, and even the nature of the dominion the adjacent State is entitled to exercise is still the subject of controversy.1

In the Franconia Case (R. v. Keyn, 1876, 2 Ex. D. 63, and 46 L. J. Rep. M.C. 17), the Court for the Consideration of Crown Cases Reserved held by a majority of 7 against 6, that the Central Criminal Court had no jurisdiction to try offences by foreigners on board foreign ships though committed within the limit of three miles from the shore. This decision led to the adoption of the Territorial Waters Jurisdiction Act (41 and 42 Vict. c. 73, 1878), by which it was enacted that an offence committed by any person on the open sea within the territorial waters of Her Majesty's dominions, although committed on board or by means of a foreign ship, was within the British jurisdiction.2

This enactment has been much criticised by foreign jurists. as involving a claim to jurisdiction over passing vessels not consistent with the actual practice of nations.

As regards the three miles' margin which England, France, and the United States are agreed to respect among themselves, several other States, including Germany, have never agreed to consider it as finally settled for purposes of general jurisdiction, although the international Fisheries Convention of May 6, 1882, has adopted the limit as among the States, except Norway, bordering on the North Sea for fishery purposes.3 A British Fisheries Commission in 1893 reported, after a long inquiry as regards the preservation of fish on the coast of Great Britain, that the present territorial limit of three miles was insufficient, and that for fishery purposes

1 A question which might be raised in circumstances which have not yet arisen is the extent of the sovereignty of the adjacent State in case of tunnelling beneath the sea. The analogies are favourable to the recognition of the right of the adjacent State to exercise its sovereignty under the sea-bed to the point at which it meets another State equidistant from the coast. The nearest analogy is the case of rivers over which adjacent States exercise jurisdiction to any equidistant dividing line (Thalweg). See the present writer, "Channel Tunnel," Westminster Review, Feb. 1907.

2 Lord Halsbury, who passed the Act through the House of Commons, speaking of it on May 6, 1895, observed "that care was taken at the time to avoid measurements. The distance was left at such limit as was necessary for the defence of the Realm. Then the exact limit was given for the particular purpose in view."

3 In the discussion of May 6, 1895, on the Sea Fisheries Regulation (Scotland) Bill (afterwards 58 & 59 Vict. ch. 42, see Appendices) Lord Salisbury (not then in office) observed:

"As long as the coast is open there is no doubt that three miles is the limit of territorial waters, but when the coast is folded and doubled as it is in parts of Scotland, there come in a different set of traditions which belong to diplomatic law, and I may say that it is an unsettled question in international law how far the territorial waters extend. The discussion we have had in regard to Newfoundland, the Behring Sea and to other parts of the world, show that where the coast is not straight, but makes an angle, there the limit of the territorial waters is not so fixed . . . Lord Chancellor Herschell, on the other hand, stated that he was far from saying that three miles was to be the limit of territorial waters for all time. . . . As regards bays, see an interesting paper by Mr. A. H. Charteris, of the University of Glasgow, read at the Berlin (October 1906) meeting of the International Law Association.

The decision of the High Court of Justiciary of Scotland in Mortensen v. Peters (July 20, 1906) has raised the question of whether an Act of Parliament, conferring jurisdiction over any of the (under International Law) High Sea, is binding on non-British persons. The Court held that effect had to be given to the exact terms of the Act (Sea Fisheries Regulation (Scotland) Act, 1895)—that distinctions could not be made which were not made in the Act itself. Comp. Lord Chancellor Halsbury's observations in Cook v. Sprigg (1899). See p. 50 (note). In the judgment in Mortensen v. Peters, Lord Kyllachy observed:-"There is certainly nothing in the Convention 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 by-law imposed here.”

The case in question, it may be mentioned, "concerned a Norwegian trawler or rather one of a fleet of trawlers maintained by English capital, but registered in Norway to evade the statute and enable them to fish habitually in the Moray Firth." "Foreign Trawlers and Territorial Waters," Blackwood, March 1907, p. 431.

this limit should be extended, provided such extension could be "effected upon an international basis, and with due regard to the interests and rights of all nations." No attempt has been made by the British Government to carry out this recommendation. It must not be forgotten that any broadening of the national margin. would mean a corresponding curtailment of the international fishing area.1 The subject had already attracted the attention of English jurists, and, at the London meeting in 1887 of the Association for the Reform and Codification of the Law of Nations (now the International Law Association), a Committee was appointed to make a full inquiry into the subject. The year following the Institute of International Law also took up the subject. Both bodies 2 published exhaustive reports on evidence obtained as to prevailing usages in all parts of the world. The inquiries of these two bodies resulted in the adoption in 1894 of a number of rules, drafted by the present writer, first by the Institute and, later on in the same year, by the Association. The rules adopted were brought by the Dutch Government, in 1896, to the knowledge of the leading European Governments, who were at the same time sounded as to holding a conference for the purpose of dealing with the question officially. The correspondence was afterwards published by the Dutch Government. The refusal of Lord Salisbury, then Foreign Secretary, resulted in the matter being dropped. In 1903 (March 12), Mr. J. W. Crombie asked Lord Cranborne, Under Secretary of State for Foreign Affairs, in the House of Commons, "whether he was aware that the Dutch Government some four years ago brought to the notice of His Majesty's Government certain resolutions passed by the Institute of International Law, and confirmed by the International Law Association, of which the Lord Chief Justice is president, and proposed to call a conference of European Powers to reconsider the existing rules applicable to the limits of territorial waters for fishing purposes, and, seeing it was owing to the refusal of His Majesty's Government to take part in it that the conference fell through, whether he would now reconsider the advisability of promoting this conference."

"No such proposals were made at the time mentioned. But in 1895 the Dutch Government consulted Great Britain and other maritime Powers on the expediency of calling together a conference for the purpose of determining in a uniform manner for all nations the distance of the limit of territorial waters from the shore. The limit was not to be discussed only with reference to fisheries. His Majesty's Government, and, we believe, other Governments concerned, were of opinion that no advantage would be gained by opening such a discussion, and, as far as I am aware, nothing has since occurred to modify that opinion."

The answer given by Lord Cranborne was correct in so far as that there was no proposal to limit the discussion to fisheries,

1 See p. 111, note 2.

2 The present writer was Convener of both Commissions. His reports on the subject will be found in the Annuaire de l'Institut de Droit International for the years 1892 and 1894 and in the Report of the International Law Association for 1894. A further and exhaustive monograph by him, bringing the subject down to 1903, will be found in the proceedings of the Association Internationale de la Marine. The grounds of the distinction, adopted by both the Institute and the Association of International Law, between the limits of territorial waters necessary for the purposes of neutrality and rights of defence and those requisite for fishery purposes, proposed by the Convener, are fully set out in these reports.

See also an excellent treatise on the subject of Territorial Waters generally, Prof. Stoerk in Holtzendorff's Handbuch des Volkerrechts.

but it is not quite correct in its assumption that other Governments were of the same opinion as the British Government. The replies of other Governments were shortly as follows:The United States Government was not disinclined to adhere, if a number of other Powers also adhered. The German Government thought that the question was not yet ripe to be settled by an International Convention, but was disposed to deal with existing difficulties by separate arrangements. Russian Government was favourable to the proposal, and promised to attend the conference if the principal maritime Powers accepted the invitation also. The answer of the Spanish Government was practically the same, and the Portuguese Government accepted unconditionally.

It is true that the Dutch Government placed the matter before the Governments of Europe in a way that seemed to pledge them to accept an extension of the width of the margin from three to six miles, and Lord Salisbury's objection may have been chiefly to this widening of the zone.

New considerations have arisen out of the Russo-Japanese war, especially in connection with the laying of floating mines. and mine fields;1 and the distinction made in the Institute and Association rules between the zone necessary for the protection of fishery rights and that necessary in time of war for the protection of the neutral coast-line and coast traffic, seems to have been amply justified by subsequent events.

As regards fishery rights, on the other hand, a great difference of views still prevails. With both Norway and Spain, diplomatic difficulties may any day result from both of these countries claiming jurisdiction over a larger margin of coast waters than the ordinary three-miles. English trawlers fishing within the Spanish six-miles limit expose themselves under Spanish law to penalties; this has already, it seems, given rise to trouble.

The question of revising the limits fixed for Territorial Waters in the Convention of 1882 (see above) was the subject of an animated discussion at the recent conference at Hull of the National Sea Fisheries Protection Association (Sept. 18, 19, and 20, 1906), when a resolution was adopted in favour of maintaining the present three-mile limit on grounds of expediency, which deserve serious consideration.2

It seems practically impossible to regulate fishery rights in accordance with any uniform limits. The necessities of preservation of the fish supply justify a claim to the exercise of jurisdiction by adjacent States over areas which differ so widely that even to fix any reasonable maximum distance from low-water mark would not meet all cases.

1 See p. 59 et seq.

2 Mr. C. Hellyer of Hull, who moved the resolution, produced tables of figures showing that a 13-mile limit would exclude British vessels from an area of over 135,000 nautical square miles of the fishing grounds of Western Europe, i.e. from an area nearly equivalent in size to the trawlable area of the North Sea, or nearly one-third of the total area available for trawling (ex White Sea or Baltic). A 9-mile limit would exclude them from over 80,000 nautical square miles. As the British steam trawling fleet is more than six times greater than that of all other countries combined, the subject cannot be disposed of as involving legal principles only.

...

The subject is, however, far from exhausted with the claims of the trawling industry, as the following passages from an interesting article by an apparently highly competent correspondent in the Standard of April 9, 1907, show:-"During the spring of the present year there has been a recrudescence of the old grievance on the part of British fishermen against alien trawlers. The agitation has assumed proportions never before approached. The starting point of this outcry was an incident which occurred off Start Point on the evening of March 2 last. The Plymouth fishing boat Shamrock was riding to her nets upon the mackerel grounds. A French steam trawler was seen approaching, and, although the English boat was showing her regulation lights, the steam vessel continued holding her course. . . . The Frenchman came sweeping past within musket shot, dragging his trawl right athwart the Plymouth boat's gear. Her number and port of registry were carefully concealed by a corner of sail thrown over the lettering. The wire rope by which steam trawlers drag their nets cut through the Shamrock's riding rope, the whole wall of her meshes was carried away by the foreign trawler, and her skipper returned to Plymouth a ruined man for the rest of the fishing season. I boarded the vessel myself the following morning, and can vouch for the absolute accuracy of the narrative. I have spoken of this incident as the starting point, but it would be, perhaps, more correct to term it the culminating point in a long series of similar acts of depredation. At the time of its occurrence there were known to be no fewer than one hundred and fifty alien steam trawlers upon the mackerel grounds between Dartmouth and Eddystone. It may be explained that these boats were fishing well outside the three-mile limit, and that, consequently, by all the laws of freedom of the sea, they had as much right there as our own fishers. The great industry of sea fishing may be broadly classed under two heads, trawling and drifting. In the first of these the vessel drags her nets, fashioned like a great purse, over the ground, and picks up all the prime fish of the ocean. In the second case the vessel shoots her nets, which are buoyed along the upper ridge and weighted at the lower, so as to float perpendicularly and form a solid wall of meshes in the water. At one end of this network barrier rides the boat; to the other end, which may be a mile and a half away, is attached a dan or buoy. The drift nets catch fish which swim near the surface in schools, thus evading the bottom trawl, and include mackerel, herrings, pilchards, and sprats. It is an unwritten international law that trawlers shall trawl by day, and that drifters shall drift by night, so that there shall be no conflict between the two methods. For it stands to reason that if a powerful trawler came dragging her heavy gear right through a fleet of drift boats she would ruin a whole "village" in a single night. The alien trawlers have not respected this rule, hence the trouble. They are seeking the same species of fish as the drifters, which they catch in "flying trawls," or trawls poised to drag through the water at a little distance beneath the surface. . . . To increase the coastal patrol would be but a half measure. There is no use in establishing a complete and effectual guard without defining exactly the terms upon which it may exercise its authority. And before this can be done certain moot points require to be resolved into specific acts of international law. Chief amongst these is the question of the legitimacy of trawling by night upon the drift fishery grounds. Usage is not a sufficiently definite sanction. Unless practical action is speedily taken, an important and most deserving industry, which, after all, is really national in its importance, will have been crushed out of existence by the unchecked exercise of a species of rivalry which disregards all the limitations of fair competition in the pursuit of its end.'