MIA EXTRACTS FROM WORKS ON INTERNATIONAL LAW CONCERNING THE EXTENT OF THE MARGINAL SEA. AZUNI: Droit Maritime de l'Europe. Paris, 1805. Page 264, § 17.-It is already established among polished nations that in places where the land by its curve forms a bay or a gulf we must suppose a line to be drawn from one point of the inclosing land to the other or along the small islands which extend beyond the headlands of the bay, and that the whole of this bay or gulf is to be considered as territorial sea, even though the center may be in some places at a greater distance than 3 miles from either shore. BARCLAY: Problems of International Practice and Diplomacy. ASSIMILATION OF PRACTICE RELATING TO TERRITORIAL WATERS. Page 109.-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 seven against six, that the Central Criminal Court had no jurisdiction to try offenses by foreigners on board foreign ships though committed within the limit of 3 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 offense committed by any person on the open sea within the territorial waters of Her Majesty's dominions, although committed 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 favorable 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). the present writer, Channel Tunnel," Westminster Review, Feb. 1907. See 3 on board or by means of a foreign ship, was within the British jurisdiction.1 This enactment has been much criticized by foreign jurists as involving a claim to jurisdiction over passing vessels not consistent with the actual practice of nations. As regards the 3 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.2 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 3 miles was insufficient, and that for fishery purposes 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. The subject had already attracted the attention of English jurists, and, at the Lon 1 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 defense of the Realm. Then the exact limit was given for the particular purpose in view." 2 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 3 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 when 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 3 miles was to be limit of territorial waters for all time. As regards bays, see an interesting paper by Mr. A.-H. Chartells, 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). 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. See p. 6 note. |