RIGHT OF A STATE OVER THE OPEN SEA ADJOINING ITS COAST. UNINDENTED COASTS. It is undoubted law that a State has territorial sovereignty over a belt of sea adjoining its coast, subject to the right of passage by the commercial vessels of other nations. The extent of this belt was not definitely fixed by international law at the time the treaty was entered into, and though a width of 3 miles has since become generally accepted as the minimum limit of the waters over which sovereignty may be exercised, there is not even now universal agreement on the point. Wider claims are put forward by some nations and by some writers, and the Institute of International Law in 1894 unanimously agreed to recommend 6 miles as the maximum. It is not necessary, however, to discuss this question on the present occasion: it has no bearing on the subject now under discussion, namely, the extent of the bays referred to in the last clause of article one of the treaty. RIGHT OVER ENCLOSED WATERS BAYS. It is also undoubted law that a State can exercise sovereignty over certain portions of the sea enclosed within its territory by headlands or promontories. 109 But different considerations apply in the case of enclosed waters from those which affect the open sea. The possession of headlands gives a greater power of control over waters contained within them than there can be over the open sea, and the safety of a State necessitates more extended dominion over the bays and gulfs enclosed by its territories than over open waters. Moreover, the interest of other nations in bays and gulfs is not so direct if, as i commonly the case, they lie off the ocean highways. For these reasons the 3-mile rule has never been applied to enclosed waters, nor has any defined limit been generally accepted in regard to them. It is true that the understanding of nations has imposed some restrictions on the exercise of sovereignty over these waters, and that States do not now assert claims, such as were common in former times, over waters, which from their size or configuration can not be effectively controlled, or which from their situation can not be fairly held to be the exclusive property of any one State. But these restrictions must depend on the particular circumstances of each case; they have never become formulated in any rule of general application. There was therefore no definite meaning which could have been assigned in 1818 to the term "bays in His Majesty's dominions" unless it were the meaning which His Majesty's Government contends should be put. upon it; and there was no principle of the law of nations under which the meaning could be limited to bays of a certain extent only. USAGE OF NATIONS. The usage of nations is consistent only with this conclusion. The United States and Great Britain have both continuously insisted on claims which would not have been tenable if there had been any such limit as is now suggested by the former Power, and other States have exercised sovereignty over territorial waters equally extensive. UNITED STATES. Turning first to the United States, it will be found that they have claimed wide rights in respect of bays. DELAWARE BAY. In 1793, France seized a British vessel, the "Grange," in Delaware Bay more than 3 miles from land. This bay has a width between its headlands of 10 miles, and it extends in length about 30 miles before the distance between its 110 shores reduces to 6 miles. The United States demanded the release of the vessel on the ground that the seizure had been made in neutral waters-because Delaware Bay was United States territory. Chancellor Kent, in his "Commentaries," refers to this incident in the following terms:— The executive authority of that country in 1793 considered the whole of Delaware Bay to be within its territorial jurisdiction, resting its claim upon those authorities which admit that gulfs, channels, and arms of the sea belong to the people with whose lands they are encompassed, and it was intimated that the law of nations would justify the United States in attaching to their coasts an extent into the sea beyond the reach of cannon-shot." Since that time the United States have continuously treated Delaware Bay as their territory, and have prescribed regulations for fishing which apply to the whole of the bay. (App., p. 788.) UNITED STATES CLAIM, 1804. In 1804, in the discussions which arose as to the right asserted by Great Britain to search American vessels for British seamen, Mr. Jefferson, the President of the United States, writing to the United States Secretary of the Treasury on the 8th September, put forward a claim to sovereignty over enclosed waters which included bays 25 miles in width. An extract from this letter has been set out at p. • Kent's "International Law" (Abdy's 2nd ed.), p. 101. 85 of this case, and a larger part of it will be found in the appendix at p. 59. Its terms are absolutely inconsistent with the claim now put forward by the United States. FUCA STRAITS. In 1846, by the treaty of Washington made between Great Britain and the United States, it was stipulated that the boundary between the United States and British North America should follow the fortyninth parallel of latitude (App., p. 33)— to the middle of the channel which separates the continent from Vancouver's Island; and thence southerly through the middle of the said channel and of Fuca's Straits, to the Pacific Ocean. 111 Disputes involving the title to various islands having arisen, the boundary question at issue between the two nations was submitted to the arbitration of the German Emperor, and in 1873 a protocol was signed at Washington for the purpose of marking out the frontier in accordance with his arbitral decision. Under this protocol the boundary after passing the islands which had given rise to dispute is carried across a space of water 35 miles long by 20 miles broad, and is then continued for 50 miles down the middle of a strait 15 miles broad, until it touches the Pacific Ocean midway between Bonilla Point on Vancouver's Island and Tatooch Island lighthouse on the American shore, the waterway being there 10 miles in width. The United States in this case, therefore, continue to claim as territorial their share of the waters of a strait which is much more than 6 miles in width, and recognised the right of Great Britain to the other moiety." CHESAPEAKE BAY. In 1885, it was held by the United States Court of Commissioners of Alabama Claims, that Chesapeake Bay was American territory, and that seizures made by the Confederate cruisers within any part of Chesapeake Bay were not made on the high seas. The headlands of Chesapeake Bay are 12 miles apart, and its length is over 114 miles before its waters narrow to 6 miles. The fishing in this bay is controlled by State legislation. (App., p. 793.) GREAT BRITAIN. Great Britain, for her part, at the time the treaty of 1818 was made, was asserting sovereignty not only over enclosed waters, but • Hall, pp. 157, 158. The Alleganean: Statson v. The United States, 32 Albany Law Jour., p. 484; Moore's Int. Arb., vol. iv, p. 4333, vol. v., p. 4675. over open seas surrounding her coasts of a wide extent. It is true that at the beginning of the 19th century she was not insisting on her claim to sovereignty over the four seas with the same vigour as she had done at an earlier period, but so late as 1803 the negotiations with the United States for a settlement of the right of search had been broken off because the English Government would not concede freedom from search within the Bitish seas, and so late as 1805 the British Admiralty regulations contained an order that His Majesty's ships should insist on foreign ships striking their top-sails, and taking in their flags, in acknowledgment of His Majesty's sovereignty in his seas, which extended to Cape Finisterre. In 1818, claims to British sovereignty over St. George's Channel and the King's Chambers, which include the waters within lines drawn from headland to headland as from Orfordness to the Foreland and from Beachy Head to Dunnose Point, were admitted without dispute. De Martens states that nobody in his time (1821) contested the exclusive right of Great Britain over St. George's Channel. It was insisted to the full in 1818, and was admitted by Chancellor Kent to be a proper claim. (App., p. 58.) 112 BRISTOL CHANNEL. By the common law of England, all enclosed waters are within the realm. Thus the Bristol Channel was decided by the Court of Queen's Bench in 1859 to be within the counties which bound it. This case is the leading English authority on the point, and it was accepted as good law by the Privy Council in 1877. The Court stated in their judgment, which was delivered by Chief Justice Cockburn, that they proceeded on the principle that the whole of this inland sea between the counties of Somerset and Glamorgan is to be considered as within the counties by the shores of which its several parts are respectively bounded. It is clear, therefore, that by the common law of England enclosed waters on the coasts of the British dominions are within the sovereignty of the British Crown. REGINA V. KEYN. The question of the extent of the jurisdiction which English courts have, by the municipal law, over the open seas adjoining the coast, as distinct from enclosed waters was considered by the Court of Crown Cases Reserved in the case of Regina v. Keyn in 1876. But that case "Précis de Droit des Gens moderne de l'Europe, ed. 1821, p. 87. Rex. v. Cunningham. Bell's Crown Cases, p. 72. Direct U. S. Cable Co. v. Anglo-American Telegraph Co., L. R., 2 App., Cas., p. 394. L. R., 2 Ex Div., p. 63. turned solely on the question whether, under the law of England as it then stood, English courts had jurisdiction over foreigners in foreign ships on the open sea adjoining the English coasts; it in no way affected the law as to jurisdiction over enclosed waters. The Territorial Waters Jurisdiction Act of 1878," passed in consequence of that decision, deals with offences on the open seas only; and Lord Cairns, the Lord Chancellor, in introducing the Bill in the House of Lords, observed that the jurisdiction to which he desired to call attention was not the jurisdiction in relation to rivers, bays, or harbours (because in respect of them no controversy had arisen), but the jurisdiction over the territorial waters in that belt or zone of the high seas which surrounds the shores of the Empire." 113 BAYS IN QUESTION. Turning to the particular shores now in question, it will be found that Great Britain has always claimed and exercised exclusive jurisdiction over the bays on them. The statute 59 Geo. III, cap. 38, passed in 1819 to give effect to the treaty, makes it an offence for foreigners in foreign vessels to fish within 3 marine miles of the bays, creeks, or harbours of the non-treaty shores, and has been enforced in respect of all bays since that time irrespective of their width. The Privy Council in the case to which reference has been made observed on that statute as follows: с But the Act already referred to, 59 Geo. III, cap. 38, though passed chiefly for the purpose of giving effect to the convention of 1818, goes further. It enacts not merely that subjects of the United States shall observe the restrictions agreed on by the convention, but that all persons not being natural born subjects of the King of Great Britain shall observe them under penalties. And, in particular, by section 4 it enacts that if any person' upon being required by the governor or any officer acting under such governor, in the execution of any order or instructions from His Majesty in Council, shall inter alia refuse to depart from such bays, he shall be subject to a penalty of 2001. CONCEPTION BAY. No stronger assertion of exclusive dominion over these bays could well be framed. As has been already observed, Conception Bay is in every sense of the words a bay within Newfoundland, though of considerable width, and as there is nothing to justify a construction of the Act limiting it to bays not exceeding any particular width, this is an unequivocal assertion of the British Legislature of exclusive dominion over this bay as part of the British territory. And as this assertion of dominion has not been questioned by any nation from a 41 and 42 Vict., c. 73. Cited Halleck (Ed. Baker, 1908), vol. i, p. 191. |