1

shot from shore to shore, or three miles; some, a cannon-shot from each shore, or six miles; some, an arbitrary distance of ten miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of Newfoundland; but also would have excluded from the territory of Great Britain that part of the Bristol Channel which in Reg. v. Cunningham was decided to be in the county of Glamorgan. On the other hand, the diplomatists of the United States in 1793 claimed a territorial jurisdiction over much more extensive bays, and Chancellor Kent, in his Commentaries, though by no means giving the weight of his authority to this claim, gives some reason for not considering it altogether unreasonable.

It does not appear to their Lordships that jurists and text writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the State possessing the adjoining coasts, and it has never, that they can find, been made the ground of judicial determination. If it were necessary in this case to lay down a rule, the difficulty of the task would not deter their Lordships from attempting to fulfill it. But in their opinion it is not necessary so to do. It seems to them that, in point of fact, the British Government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to show that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which, in the tribunals of any country, would be very important. And, moreover (which in a British tribunal is conclusive), the British Legislature has by Acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland.2

CCII. In 1822 Russia laid claim to a sovereignty over the Pacific Ocean north of the 51st degree of latitude; but the Government of the United States of America resisted this claim as contrary to the principles of International Law.3

PIÉDELIÈVRE: Précis de Droit International Public ou Droit des Gens, Paris, 1894.

Volume 1, § 386, page 335.-The territorial sea.-We call the territorial sea the extent of sea over which the State from the shore

1 Bell's Crown Cases, p. 72.

2 Direct United States Cable Company v. Anglo-American Telegraph Company. L. R. 2 App. Cas., pp. 419-20.

"Mr. Adams's letter to the Russian Minister, Mar. 30, 1822.

can exercise effective control. It is fictitiously considered a continuation of the land territory.

The contention is justified by divers reasons.

First. The security and independence of adjacent States require not merely that it should have exclusive possession of the shore but also that it may exercise its sovereign rights over that portion of the sea which washes its coasts and serves it, so to speak, as its border. To permit this free use to all without exception or conditions of any kind, to assimilate it to the high sea in free use, would be to expose a State to the most sudden and hence the most dangerous attack. It would deprive it of the fortifications raised by nature for its defense. Secondly. The surveillance of ships which enter the waters of a State, depart from it, or are stationed there is required in the interest of an effective police and for the development of the political, commercial, and fiscal interests of that State.

Thirdly. It is legitimate for the adjacent State to appropriate the various advantages which the marginal sea may offer to it and thus assure the subsistence of its coastal population. The taking of transitory fish, of pearls, corals, etc., constitutes a valuable economic resource. They would lose almost all of the benefit of their favorable situation if they did not have the power to exclude foreigners from it. § 387.-Extent of territorial sea. This question has given rise to very diverse opinions. The older authors were generally inclined to extend the limits in order to protect a State against the incursions of pirates or belligerent nations, since pirates infested the seas and the principles of international law at that time received little application. Some would have extended it to 60 miles, others spoke of 100 miles, others still fixed it at the distance of two days' navigation, which was absolutely arbitrary since this depends upon the speed of the vessel and the strength of the wind. Modern authors have likewise proposed different solutions. For some, the territorial sea would comprise all the waters within range of eyesight, but even this limit is uncertain, since it has the defect of varying according to the position of the observer, whether at the shore or at an elevation, and eyesight moreover varies with the individual; others used the criterion of the measurable depth of the waters. They would assign the character of territoriality up to the point where bottom can no longer be found with the sounding lead. That system deserves the same objections as the former. It is arbitrary and the limit thus fixed would vary with every State, depending upon the geological character of the coast.

The better opinion and that which seems to have been adopted definitely in practice is that of measuring the extent of the territorial sea by the greatest range of cannon. This solution plainly conforms to the nature of territorial waters-terræ potestas finitur ubi finitur

armorum vis. Only the space thus delimited is actually subject to the control of the adjacent State. It is only within these limits that it can enforce its laws and regulations, and in which the presence of foreign war vessels may threaten its safety. Beyond that, it could not be caused any disquietude. The actual extent of the power of defense is therefore the natural limit assigned to the territorial sea. This limit, as we have said, is termed the line of respect.

This extreme range of cannon is usually considered by treaties both of fishing and neutrality as 3 miles,1 but this standard is neither general nor universal. It would be an error to conclude from it with some authors that the range of cannon was formally identified with the distance of 3 miles, and therefore this limit is actually the fundamental rule of the law of nations. It is certain that in the absence of all conventions the extent of the marginal sea is measured by the greatest range of cannon placed on shore, whatever that range may be. It is therefore subject to change with the progress of the art of firearms.

Moreover we may add that there is nothing to prevent the powers from fixing among themselves by special conventions a different extent to their marginal seas. It is merely to be noted that the limit thus determined is obligatory upon the contracting powers alone, third parties remaining subject to the general rule of law. Likewise, every nation may by special laws, usually promulgated with a view to surveillance or the control of customs or fishing rights, fix a special delimitation for itself and other States which consent to it. Thus in France the limit with respect to the control of customs is extended to 2 myriameters.

[Piédelièvre then speaks of the different rights of the adjacent State in the marginal seas, and names first the right of regulating and even reserving to its nationals the coastal fishing. He says:]

It is the duty of the adjacent State, justified by various considerations, economic and political, to guarantee these privileges.

The right of fishing may be reserved to nationals either by the municipal law or by treaties. Both systems have their advantages and disadvantages. The treaty is effective between contracting parties alone, while a law has a more general effect; besides, the law may be usually modified if experience shows it is defective, whilst a treaty, a synallagmatic act, can not be changed without the consent of the signatory States; but on the other hand, conventions have the advantage of being more uniform, since they apply to diverse States and more efficaciously avoid difficulties than a statute, since it is their principal object. In general, States usually make a reservation of

1Three marine miles, equivalent to 5,555 meters. See the treaty of October 29, 1888, concerning the Suez Canal, post, p. 487.

coastal fishing not merely in their treaties but also in their municipal regulations.

§ 397, page 346.-States may exercise the right of police in their territorial waters.

This right is required and at the same time limited by the security and defense of the territory, the security of the coastal population, and the protection of commercial and fiscal interests of the country.

A State may likewise for the same purpose establish sanitary regu

The fiscal and commercial interests of the adjacent State likewise require the exercise of the customs police in its territorial waters.

The radius of this customs surveillance is more extensive than that of the territorial sea. It is easy to justify this extension. Indeed, if the frontier were to stop at the boundary line of two States it would be easy to fraudulently introduce prohibited or dutiable articles over the boundary. It is permitted therefore to extend the radius of surveillance and to fix beyond the boundaries a space in which the customs regulations may be applied in all their force. The necessity of a wider frontier for this purpose applies as well to terrestrial as to maritime frontiers. Thus in France the extreme customs radius, after having been fixed at 2 and later 4 leagues, has by the law of March 27, 1818 [1817] (Article 13), been established at 2 myriameters. It has been claimed that this limit is excessive, as it exceeded the extent of marginal sea; but we do not think so. The extent of the customs radius should not be considered merely as a reciprocal concession of States based upon their tacit consent, but rather, as has been remarked in the matter of sanitary police, as a result of the exercise of their respective rights. Moreover, the question has little practical interest since the progress of artillery has given modern cannon a range equal to if not greater than the distance just indicated.

$414, page 361.-Ports, harbors, and roadsteads are considered susceptible of possession and ownership, and the corresponding rights may be exercised over them. In the majority of European legislations they are a part of the public domain.

To the principle of the liberty of access of ports, harbors, and roadsteads, practice and doctrine, however, admit a double derogation: First, no one denies that States may forcibly close the entrance to their military ports or maritime arsenals; secondly, they may likewise forbid access of commercial ports to war vessels, but to those only.

Treaties usually contain stipulations governing the entrance, sojourn, and departure of war vessels.

§ 417, page 363.—Gulfs and bays.-Are gulfs and bays or considerable portions of the sea which encroach upon the land to be considered as subject to the territorial sovereignty of the adjacent State? The general rule makes them part of the territorial sea when their extent is such that it is not impossible to defend their entrance from the shore. That is to say, they are under the sovereignty of a riparian State when they do not exceed in width the double range of the cannon placed on the shore, or when their entrance may be protected by artillery or is naturally protected by islands, banks, or rocks. In all these cases it is evident that gulfs and bays are within the control of the State, proprietor of the land which incloses them. This State has the actual possession.

As to gulfs and bays which do not fulfill one or the other of these conditions they are free as the sea of which they constitute a natural part, except that portion corresponding to the marginal sea of the adjacent State, which is subject to the principles heretofore enunciated.

Practice generally accepts these solutions; thus, Article 9 of the Anglo-French Convention of August 2, 1839, regulating fishing in the English Channel, accords to the adjacent State the exclusive right of fishing in the bays whose width does not exceed 10 miles at the narrowest point of the land or sand banks. Likewise, an opinion of the British Board of Trade of November, 1868, accepts the fishing limits established by the North German Confederation on the German coasts and recognizes the exclusive right of German fishermen to fish in the interior bays or indentations of the coasts, having a width of 10 miles or less at the narrowest points of the land and sand banks.

PRADIER-FODÉRÉ: Traité de Droit International Public. Paris, 1885.

Volume II, § 617, page 147.-Territorial seas.-The extent of an open sea over which the State, from the coast, can cause its power to be respected, is placed within the maritime territory of that State. This is what is called the neighboring sea, the adjacent sea, the territorial sea, the littoral sea. Certain authors more particularly characterize as littoral seas those parts of the ocean which wash the coasts of a State and as territorial seas the gulfs, roadsteads, bays, and, in general, the waters which are surrounded by the possessions of a single State. But I do not accept this distinction, and I maintain that littoral seas are territorial seas, since they are a part of the territory. With justice, then, the territorial sea has been defined as that which washes the coasts of a State and serves it, so to speak, as its boundary. It is, following the expression of Vattel," the sea near the